author: Earl, Ch. J.

text:
    Fletcher W. Camp, Adm’r, App’lt, v. James W. Smith et al., Resp’ts.

      (Court of Appeals,

      Filed December 6, 1892.)

    1. Limitation—Application op payments.
    Defendants as copartners made four promissory notes to plaintiff’s intestate, the defendant James being at the time individually indebted to her upon a bond and mortgage and on other notes. In this action upon the four notes, brought eight years after they were due plaintiff alleged that certain payments had been made by James to said intestate from year to year; that no application of said payments had been made by either; that they had not been endorsed on the bond and mortgage and asked that-the payments be applied on said four notes. Defendants set up the statute-

      limitations. The trial judge held that all the payments specified in the complaint should he applied on the individual indebtedness and refused to apply them upon the notes in suit. Held, no error.
    3. Same.
    Where one indebted individually and also jointly with another to the same creditor makes a general payment, the creditor himself in pursuance of the implied consent of the debtor may apply the payment either upon the joint or the individual demand as he chooses; but the court, when neither party has made the application, will apply the individual payment upon an individual and not upon a joint demand.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of defendants, entered upon verdict directed by the court
    This action was brought to recover the amount of four promissory notes made by the defendants and payable to Mary Etta Camp, who is represented by the plaintiff. The notes were all payable in one year after thsir respective dates. They were respectively dated December 9, 1875, June 5, 1877, July 28, 1877, and March 18, 1878. Mrs. Camp died November 25, 1884, and this action was. commenced January 30, 1890. The plaintiff in his complaint alleges four separate causes of action, one upon each note. In his first cause of action, after alleging the death of Mrs. Camp, administration upon her estate, the co-partnership of the defendants, and the execution and delivery of the note, the plaintiff further alleges as follows : “ In 1880, and in each year after said note became due, until the death of said Mary Etta Camp, the defendant James W. Smith made various payments to said Mary Etta Camp.
    “At the time of making said payment and at the time of the death of said Mary Etta Camp, said defendant James W. Smith was also indebted to said Mary Etta Camp upon each of the other causes of action set forth in this complaint from the time the same became due repectively as therein stated, and was also indebted to said Mary Etta Camp upon the cause of action upon a bond and mortgage, dated June 20, 1866, executed by said James W. Smith and held and owned by said Mary Etta Camp, made to secure the principal sum of $35,000 and «interest; and was also indebted to said Mary Etta Camp upon two promissory notes of said James W. Smith made payable to the order of said Mary Etta Camp, and delivered to her for value received at or about the dates and for the sums following, to.wit:
    December 9, 1875............................... $2,887 89
    Jtine 5, 1877................................... 3,400 00
    both of which notes were paid by individual payments made by defendant James W. Smith to Mary Etta Camp between December 14, 1875, and September 7, 1884.
    “No application of the payments hereinafter enumerated was made by said James W. Smith nor by said Mary Etta Camp upon any one of the aforesaid causes of action other than those sued on in this action. None of said payments hereinafter enumerated made since the causes of action herein sued upon accrued have

      been endorsed upon said bond and mortgage, although payments made before the making of the notes sued upon in this action were endorsed on said bond and mortgage. An action is now pending undetermined in this court by this plaintiff as administrator with a will annexed as above described against the defendant, James W. Smith, to recover the amount due on said bond and mortgage.”
    “ That among the payments made by said defendant, James W-Smith, to said Mary Etta Camp, were payments made on or about the dates and of the amounts following, viz:
    December 2, 1880..................................... $25
    December 23, 1880.................................... 15
    January, 1884..................................... • 35
    March 29, 1884 ...................................... 10
    April 10, 1884...............................■........ 85
    April 16, 1884....................................... 10
    April 21, 1884....................................... 10
    May 12, 1884............. 10
    •May 19, 1884................... 15
    Total........................................ $215
    “ That since the death of Mary Etta Camp, the defendant James TV. Smith paid to James TV. Camp, as executor of her will, $30 in October, 1885, which sum was applied by said James W. Camp as such executor upon the note sued upon in and set forth in the statement of this cause of action.”
    In the other three causes of action the plaintiff makes the same allegations, except that he sets forth in each count a different note and a different sum paid by James W. Smith after the death of Mrs. Camp to her executor, and applied by him upon the note. And the prayer for relief is as follows: “ Whereupon plaintiff demands judgment against -the defendants declaring and determining that the payments of December 2, 1880, December 23, 1880, January, 1884, and March 29, 1884, be applied on the note sued upon in the first cause of action, and that some of the remaining payments hereinbefore alleged, made in April and May, 1884, be applied upon each of the several other causes of action upon which this action is brought, set forth in the statements of the second, third and fourth causes of action, and that the plaintiff recover from the defendants $7,368.36, with interest at six per cent, per annum on $1,183.36 thereof from December 9, 1875; and on $1,185 thereof, from June 5,1877; and on $4,000 thereof, from July 28, 1877; and on $1,000 thereof, from March 18, 1878, less the payments aforesaid, to be applied as aforesaid, and less any other payments which the court may direct to be applied on account of said notes, respectively, and for the costs of this action, and such other and further relief as may be just.”
    The defendants answered separately. William F. Smith admitted the making of the notes as alleged, but denied the payments alleged in the complaint; denied that any payments were made to Mrs. Camp by the firm composed of the defendants, or by his or its authority, or with its funds, and he alleged that whatever payments were made by James W. Smith were made on his individual account with his individual money; and for a further defense, he alleged that “eight years have elapsed since the accruing of the right of action upon the said several four promissory notes set forth in the complaint, and that this defendant pleads the statute of limitations as a defense thereto.”
    James W. Smith, in his answer, admitted the copartnership of the defendants, and the making of the notes as alleged in the com- . plaint, but he denied the allegations in the complaint of the annual payments made by him to Mrs. Camp in the year 1880, and in each year thereafter to her death, and he alleged the following to be the facts:
    “ That in 1880, and in each year after the note for $1,183.36 made by the defendant, and set forth in the complaint, became due, and until the death of said Mary Etta Camp, this defendant, James W. Smith, made various payments to said Mary Etta Camp, and at the time of making said payments, and.at the time of the death of said-Mary Etta Camp, this defendant was indebted to .said Mary Etta Camp upon a certain bond and mortgage dated June 20, 1866, executed by him and held and owned by said Mary Etta Camp, to the extent of $25,000 of the principal thereof, said bond and mortgage being made to secure the principal sum of $35,000 and interest; but he denies that he was indebted to her upon any other bond, note, claim or obligation whatever.”
    He admitted “ that he made and delivered to Mary Etta Camp two promissory notes made payable to her order, at about the dates and for the sums following, to wit: December 9. 1875, $2,887.89 ; June 5, 1877, $3,400, and that both of which notes were paid by individual payments made by the defendant James W. Smith to Mary Etta Camp between December 14, 1875, and September 7, 1884, or thereabouts.”
    He denied “ that no application of the payments enumerated in the complaint were made by this defendant nor by said Mary Etta Camp upon any one of the causes of action set forth in the complaint, other than those sued on in this action; but, on the contrary, alleges the fact to be that each and every of said individual payments made by him were applied by him to the payment of the bond and mortgage herein recited.” He admitted that among the payments made by him to Mrs. Camp were those particularly specified in the complaint, and that he had made the payments specified in the complaint after her death to her executor, but he denied that such payments were appliéd by the executor upon the notes as alleged in the complaint. And he alleged the fact to be that all the several payments set out in the complaint were made by him individually' out of his individual moneys, upon his individual account and not upon firm account, and that they were applied by him at the time of such payments to his individual indebtedness existing at the time of such payments to Mrs. Camp. As a further and separate defense he set up the statute of limitations in the same language contained in the answer of the other defendant
    The action was brought to trial and the court directed a, verdict in. favor of the defendants.
    Other facts appear sufficiently in the opinion.

      William Mitchell, for app’lt; Éugene H. Pomeroy, for resp’ts.

       Affirming 45 St. Rep., 331.

   Earl, Ch. J.

The notes set forth in the complaint as the plaintiffs causes of action appear upon their face to have been barred by the statute of limitations long before the commencement of this action. The plaintiff sought to save his causes of action from the bar of the statute in no other way than by payments alleged to have been made thereon by the defendant James W. Smith.

In his complaint he alleges certain payments, but he does not allege that they were made upon the notes, or that they were made by the firm composed of the defendants, or that they were made on behalf of the firm or with its money, or that the payments made to Mrs. Camp were by either of the parties applied upon the notes. He alleges the payments were made by James W. Smith to Mrs. Camp, he at the time of the payments being otherwise individually indebted to her, and for relief he asks the court to apply such payments upon these firm notes. Ho one, we think, can read the complaint without the conviction that the plaintiff meant to rely solely upon the payments particularly alleged to save his cause of action from the bar of the statute. He alleges that certain payments, specifying them, made by James W. Smith after the death of Mrs. Camp, were applied upon the notes by her executor, and he asks to have the payments made to her, specifying them, applied by the court. They are the payments upon which in his complaint he relies, and as to which he seeks the verified answer of the defendants.

I have not failed to take notice of the allegation that James W. Smith made payments in each of the years from 1880 to the death of Mrs. Camp, and the allegation that the particular payments specified were “ among the payments ” so made. Hone of the payments having been applied upon the notes, the payments specified were the only payments which he asked to have applied to save his causes of action.

The trial judge held that the plaintiff could not, under his complaint, have the benefit of any payments except those particularly specified therein; and all those payments (except .that of ten dollars alleged in the complaint to have been paid by James W. ) Smith to the executor of Mrs. Camp and applied by him upon the note set forth in the fourth cause of action), were shown to have been applied upon the bond and mortgage in the suit brought by this plaintiff to foreclose that mortgage ; and, therefore, it is not now claimed that such payments could be used to save these notes from the bar of the statute. As to the ten dollars it does not appear clearly how that was applied, or whether it was applied at all. It is sufficient to say that the plaintiff did not prove his allegations in reference thereto, and his counsel did not, upon the trial, call the attention of the court to that item or make any claim that it should be allowed as a payment upon- any one of these notes.

Therefore, assuming that the judge was right in his ruling as to the complaint, he committed no error in the disposition he made of the case.

But it is claimed on the part of the plaintiff that the judge erred in his ruling, and that he had the right to prove in answer to the defense of the statute of limitations any payments made by James W. Smith which were applied or applicable upon the notes in suit Even if the judge did err in that ruling, the error was not harmful to the plaintiff. He was permitted to give all the evidence he offered or claimed to have as to payments. He does not complain that any of his evidence as to payments was excluded, and the question now is, whether any payments were proved which were available to save his causes of action from the statute of limitations.

There had been a prior action by the plaintiff against the defendant James W. Smith, which is reported in 49 Hun, 100; 16 St. Rep., 932, and 117 N. Y., 354; 27 St. Rep., 322. In that action the plaintiff sought to recover of him, individually, a certain sum of money alleged to have been due to Mary Etta Camp under the will of her father. In that action the notes upon which the plaintiff seeks to recover in this action were mentioned in the complaint, but the action was not based upon them. In his answer in that action the defendant alleged, among other things, that Mary Etta Camp had been paid all that was due her under the will of her father, and he further made what turned out to be the unnecessary averment that the several promissory notes mentioned in the complaint had been paid. Upon the motion of the plaintiff’s counsel in that action the defendant was required to furnish a bill of particulars of his answer as to payments, and he served such a bill, specifying numerous payments claimed to have been made by him to Mary Etta Camp between December 19, 1876, and November 18, 1884. Upon the trial of that action before a referee the defendant was able to prove some of the items specified in his bill of particulars, and some of them he was unable to prove; and the referee reported in favor of the plaintiff a balance due from the defendant From the judgment entered upon that report the defendant appealed to the general term, where it was reversed, and then the plaintiff appealed to this court. In the general term and here it was held that the cause of action set forth by the plaintiff in his complaint in that action was for money due Mar}' Etta Camp under the will of her father; that the action was not based on the promissory notes mentioned in the complaint; that the money due her under her father’s will had been discharged by the giving of the promissory notes, and that, therefore, there was nothing due her upon the cause of action alleged.

Hence none of the money payments alleged or proved in that action were applied upon any claim of the plaintiff as executor against the defendant, and such payments became wholly unimportant in that action. Upon the trial of this action the plaintiff, for the purpose of proving payments upon the notes in suit here, introduced in evidence the bill of particulars served in the former action, claiming that it should have the force and effect of establishing that payments were made by the defendant, James W. Smith, to Mary Etta Camp as therein specified, and that it was the duty of the court to apply them upon these notes in such way as to save them from the bar of the statute of limitations. He claimed that the six items of payments made in 1878, six in 1879, two in 1880, one in 1881, nine in 1882, four in 1883, and four in 1881, thirty-two in all, had never been applied by any court, or by Mary Etta Camp or the plaintiff as her executor, upon any obligations on which the payor was liable to her or him, and hence that they should be applied by the court upon these notes.

It is not easy to determine how much force, if any, under the circumstances, these specifications of payments in the bill of particulars are entitled to in this action. The former action was against this defendant individually, and the payments specified in the bill of particulars were alleged to have been made in discharge of his individual obligations, and he then claimed the benefit of those payments in discharge of such obligations. They were payments, as we must assume, made from his own funds, on his own account. By looking at the record in the former action it appears that those payments were denied by the plaintiff, and the defendant was defeated in his attempt to prove them on the objection of the plaintiff that he was not competent to give evidence of ■the payments to Mary Etta Camp, as they involved personal transactions between him and her! So if we have the admission of the defendant that he paid those items we have the denial, and so far as that action was concerned a successful denial, that he had made such payments. At the time those payments were made the defendant was individually indebted to Mary Etta Camp upon promissory notes and a bond and mortgage, in a gross sum largely ■exceeding all the payments made by him to her. The plaintiff now comes into court alleging that those payments were not applied in any way by either party. The defendant alleges that they were not applied upon the notes in suit, but that they were «applied upon his individual obligations, and there is no proof ■whatever in the case of the circumstances under which the payments were made.

At the commencement of this action there remained no individual obligations of the defendant upon which these payments could be applied except the bond and mortgage. The plaintiff had commenced an action to foreclose the mortgage, claiming that there was due thereon the sum of $35,000, besides interest The defendant in his answer in that action, among other things, alleged that he had made various payments upon the mortgage, and that there was due thereon only the sum of about $20,000. After the trial of that action judgment of foreclosure was entered for nearly $30,000, besides costs, which the defendant paid and discharged. Upon the trial of this action the plaintiff introduced the judgment roll in the foreclosure action in evidence for the purpose of showing that the payments above specified, which the plaintiff claimed to have applied upon the notes in suit, had not been applied upon the bond and mortgage. It was admitted on the trial of this action that the defendant attempted in the foreclosure action to prove the payments above specified, but that the defendant denied them and evidence of those payments was excluded on his objection that it involved a personal transaction with Mary Etta Camp. The result was that upon the objection of the plaintiff and the denial by him of the payments, the defendant was deprived in that action of the benefit of the payments which the plaintiff now claims he actually made to Mary Etta Camp. So this case stands upon the proof of payments, and we have this curious state of things; that in two suits prior to this between these same parties the, defendant alleged these payments to Mary Etta Camp, and the plaintiff denied that he had made them. In other words, the defendant admitted that he had made them, and we have the admission of the plaintiff that he had not made them. If the plaintiff is entitled to give in evidence the admission of the defendant against him the defendant is entitled to give in evidence the admission of the plaintiff against him ; and under such circumstances it is difficult to perceive, in the absence of any evidence corroborating either party, each party so far as the record discloses being entitled to the same credence, how it can be claimed under such conflicting admissions that anything whatever is established.

But if we are to assume upon any view of the evidence that the bill of particulars introduced by the plaintiff is to be taken as establishing that these payments were made to Mary Etta Camp, the whole admission contained in the defendant’s answer in the first suit and in the bill of particulars, and the circumstances under which the bill of particulars was served, must be taken into account, and then the legal effect of the admission of the defendant is that he had made those payments from his individual funds on his individual account in discharge of his individual liability. It would be exceedingly unjust now, after the plaintiff in the two prior actions had denied these payments, and in the foreclosure action deprived. the defendant of the benefit of them, that he should now be permitted to use them upon such evidence as we have here to the detriment of the defendant for the purpose of saving from the bar of' the statute notes many years past due at the time this action was commenced.

We have not overlooked the fact that these payments, so far as appears in this action, have not actually been applied upon any obligations due from the defendant to Mary Etta Camp. There was no finding in either of the prior actions that the defendant had not made these payments. He had simply been unable to prove them, because the plaintiff objected to his evidence as involving personal transactions between himself and Mary Etta Camp. It may, nevertheless, be true that he made the payments, and that but for the failure of his proof in consequence of the legal obstacles standing in his way, the judgment in the foreclosure action would have been for a much smaller sum than that rendered against him. It was either adjudicated in the foreclosure action that he had not made those payments (in which event both parties would be bound by the adjudication), or it was simply adjudicated that he had failed to prove them, while he may, nevertheless, have made them, in which latter event he was unjustly deprived of the benefit of the payments.

The most feasible view for the plaintiff is that these thirty-two payments were made to Mary Etta Camp generally while she held individual obligations against the defendant for larger sums than all the payments and also the firm obligations set up in the complaint in this action. There is no proof that Mary Etta Camp supposed or had any right to suppose that the individual payments made by Smith were made by him as a member of the firm, or out of firm funds, or to apply upon firm indebtedness. The rule is that where payments are made generally to a party who holds several obligations against the payor, which are not applied by either party, the court will make such application of the payments as equity and justice require, according to its own notion of the intrinsic equity and justice of the case. Field v. Holland, 6 Cranch, 8; Cremer v. Higginson, 1 Mason, 825; Bank of California v. Webb, 94 N. Y., 467.

From the facts and circumstances of this case it was not the duty of the court to apply the thirty-two payments or any of them upon these four notes, and it cannot be said that equity and justice required that they should be so applied.

The conclusion thus reached may be still further fortified. The defendant knew when these payments were made that Mary Etta Camp held against him these firm obligations as well as his individual obligations, and he made the payments to her from his individual funds, and, as I will assume, no application of the payments was made by either party. So, assuming the bond and mortgage to be then outstanding, it became the duty of the court upon the trial of this action to make application of the payments according to justice and equity. In such a case it seems to me quite obvious, in the absence of qualifying circumstances, that the payments made by the individual out of his individual funds should be first applied by the court upon his individual obligations, and I think at least the weight of authority sanctions such a rule. It appears to have been held in Van Rensselaer's Executors v. Roberts, 5 Denio, 470, that if one indebted individually and also jointly with another to the same creditor makes a general payment, the creditor may apply it to either account as he may choose.

That rule seems to have been announced without much consideration, and upon the authority of the case of Baker v. Stackpoole, 9 Cowen, 420, decided in the court of errors, where an entirely different rule appears to have been laid down, as follows: “Where A. has a demand against B. and 0. and a more recent demand ■against B. alone, who makes an indefinite payment, the law will

appropriate the payfnent first to the extinguishment of the individual demand, and then the residue, if any, to the joint demand, though, if both demands were against B. alone it might appropriate the payment first to the extinguishment of the oldest debt.” So the case of Baker v. Stackpoole is not authority for the decision in Van Rensselaer’s Executors v. Roberts. But the two cases may be so reconciled by holding that in such a case the creditor himself, in pursuance of the implied consent of the debtor, may apply the payment either upon the joint or the individual demand as he chooses, but that the court, when neither party has made the application, will apply an individual payment upon an individual, and not upon a joint demand.

In Livermore v. Olaridge, 33 Me., 428, it was held that a partial payment made by a party who was indebted severally and also jointly with another to the same creditor for items of book charges, is to be applied upon the several debt, unless a different appropriation is proved to have been intended at the time of payment. In Johnson v. Boone’s Adm’r, 2 Harr., 172, it was held that if one member of a firm make a payment to one who has an account against him, and also an account against the firm, the creditor must apply the payment on the individual account, unless he can show a consent to have it otherwise applied. In Munger on the Application of Payments, p, 173, the author, citing various authorities, lays down the role as follows: “A partial payment made by a party who was indebted severally and also jointly with another to the same creditor for items of book charges is to be applied on the several debt unless a different application is proved to have been intended at the time of payment." The rule laid down by these authorities is a reasonable one, and would, in most cases certainly, give effect to the intention of the persons making payments under such circumstances.

However, the plaintiff claims that this rule can have no application to this case, as at the time of the trial of this action he did not hold any unpaid, individual obligations against the payor upon which these payments could be applied. But he does not seek to have the payments applied as of the date of the trial upon these notes then barred by the statute of limitations. Ho court would make such an application to give new life to outlawed notes. What he seeks is to have them applied upon these notes as of the dates when they were made, and at those dates he held the individual obligations. If he wants them applied as of those dates the facts and circumstances then existing must control the application. He cannot have them applied as to the payor as of the date of the trial and as to himself as of the dates when they were made. He cannot claim that because the payor was, in consequence of her denials and objections, deprived of the benefit of these payments, now confessed to have been made, upon the individual obligations where, under the rules of law, they should have been applied, they should now be applied, to the disadvantage of the payor, where the law would not apply them when made. Having denied these payments when their admission would have benefited the payor, he should not now be permitted to assert them when their admission will harm the payor.

Our conclusion, therefore, is that the trial judge did not err in refusing to apply any of these payments upon the notes in suit, and there was no evidence in reference to them for submission to the jury.

It is, however, claimed on the part of the plaintiff that the answer of the statute of limitations in this case is not sufficient because it alleges eight years instead of six as the time which had elapsed. The attention of the court upon the trial was not called to this alleged defect, and the objection now made is altogether too technical. If eight years had elapsed certainly six years had, and the allegation was ample to give the plaintiff notice of the precise defense relied upon.

We are, therefore, of opinion that the judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    George Sweet, Ex’r, Pl’ff, v. Henry K. Burnett et al., Def’ts.

      (Court of Appeals,

      Filed December 6, 1892.)

    Will—Construction.
    While the meaning of the word “ money” when used in a will depends upon the context and may not be affected by the condition of the testator’s property and the surrounding circumstances, a construction broad enough to give it a meaning which includes real estate can only be sustained where the intention is so clear and plain as to be in effect compulsory.
    (Earl, Ch. J., and Peckham, J., dissent.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      Herrick & Losey, for pl’ff; L. B. Sackett, for deft.

       Affirming 47 St. Rep., 766.

   Finch, J.

construction of the last will of Julia A. Rozell is involved in this appeal; the question arising between her legatees and her brother as sole heir and next of kin, and respecting mainly the ultimate disposition of a farm devised to the testatrix by her deceased husband. At the date of her death she owned and possessed in her own name and right personal property which consisted of a bond and mortgage against the widow of Ephraim Rozell for $545, upon which some interest had accrued ; a deposit in bank amounting to about $543 ; some household goods valued at $110, and farm produce inventoried at eighty dollars. She died in August of 1891, and her husband in September of the previous year. By his will he had devised and bequeathed to her all his property, real and personal, but subject, of course, to the payment of debts and expenses. The husband’s personal estate had not been settled at the date of the death of testatrix, but remained in the hands or under the control of his executor. The real estate consisted of a farm valued at about seventeen hundred dollars, which the testatrix as his devisee had agreed by paroi to sell to a third person and had given him the key of an'unoccupied house on the premises. Nothing had been paid on this agreement, and it does not even appear that the purchaser had taken actual possession. These are the principal facts in the light and by the aid of which we are to determine the disputed question of construction.

The testatrix by her will gives the proceeds of her mortgage partly to her cousin, Mary Hawley, partly to the Methodist church, and a residue remaining to Mary Hawley, Agatha Ketcham, Mary J. Heermance and Almira Rozell, and to the four persons last named all her clothes and housekeeping utensils. The testatrix disposed of the money in the bank ” standing in her name, by giving to her brother, the appellant Burnett, the sum of five dollars, and the balance to the four ladies last above named. These provisions disposed of all her personal property, except the eighty dollars of farm produce, so far as she held and owned it in her own right. But between the gift of the mortgage proceeds on the one hand, and of the money in the bank on the other, there appears in the will the clause over which this controversy has arisen. It reads thus : “ From the money of my husband’s estate now belonging to me, I desire that all my funeral and other expenses be paid, and out of the same I give to Robert Nickerson the sum of one hundred dollars, to Francis Nickerson the sum' of one hundred dollars, both being of Yonkers, N. Y. The residue of said money I wish to have divided equally between my husband’s nephews and nieces.” There were more than twenty of these, who appear in this action by ten different attorneys, and on their behalf it is claimed that the phrase “ money of my husband’s estate now belonging to me” includes, and so devises to them, the real estate of about fifty acres, which vested in the testatrix by the devise of her deceased husband. The special term sustained that construction, and adjudged that the clause in question passed all the property, personal and real, which was bequeathed and devised to testatrix by him. The heir appealed, and the judgment was modified by the general term so far as to decide that the faim did not pass by the will, but descended to Burnett, as heir-at-law, and as modified, the judgment was affirmed. Thereupon both parties appealed to this court.

Burnett’s appeal denies that the phrase in question covers even the personal property in the hands of the husband’s executor, so far as the same is uncollected and has not been transformed into cash due and payable to the legatee. . That is quite too narrow a construction. Little or nothing would be left for the legatees of the testatrix; not even enough to pay the two particular legacies, saying nothing of those given as residue. The testatrix drew no such distinction. That which she did draw, and the only one in her mind, was between the personal estate which she owned in her own right, and that which she derived from the bequest of her husband. She regarded the latter as money, because it was to come to her as money. She referred to it not as a definite sum due and payable to.her, but as money “of her husband’s estate,” and as “ belonging to " her, the clear meaning being that the expression covered the entire personal estate belonging to her under and by force of her husband’s will.

But further than that we do not think it is permitted to go. It may be true that the word “ money ” might be so used in a will as to include and cover a farm or some specific real estate. One authority to that purport has been brought to our attention. Estate of Miller, 48 Cal., 165. But certainly no such violent extension of the word beyond its normal and proper meaning can ever be justified unless the intention to so use it is clearly manifest on the face of the will and put beyond all reasonable doubt. That cannot be said of this will. Granting that the bare fact of making a will raises a presumption that the testator did not intend as to any of his property to die intestate, although that is pertinent rather to the solution than the creation of an ambiguity; granting also that the testatrix may have regarded her paroi and invalid contract for the sale of the farm as likely to become effective, still these are not sufficient reasons for reading a gift of money as a gift of land. The purchase price could not be properly or naturally described as money “ of ” her husband’s estate. It never was his money or that of his estate, and that fact she perfectly well knew, for she had gone into possession of the farm as her own property and gathered the crops from it and it had ceased to be any part of her husband’s estate and became distinctively her own. Nothing on the face of the will suggests that the word “money” was used so far away from its normal and ordinary meaning as to include land. She used it in two other-instances : once, speaking of the money payable to her on .the Bozell mortgage, and again of the money standing in her name in the bank. In both instances she uses the word in its common and ordinary sense and never in a manner to indicate that it included or covered real estate. On the contrary, the very form and character of the provision in question indicate that she meant money and not land. Her own personal property only amounted to about twelve hundred dollars, and that she gave to the four ladies, one of whom was her cousin, less two small legacies.

In the hands of her husband’s executor was about four thousand dollars. She naturally and’ properly describes that as “ money of her husband’s estate belonging to her,” that is money or the securities representing it still “ of ” the estate, that is, remaining in it and not paid over, but nevertheless “belonging to her,” that is, again, to come into her possession under the will. She directs her funeral expenses to be paid out of it, evidently assuming that it would be at once available as money and in that form, and “ out of the same ” gives two ‘sums of one hundred dollars each, and the “ residue of said money ” to be divided equally between her husband’s nephews and nieces. It is a residue of said money, of the same money out of which she directed her funeral expenses to be paid. If she meant to include the farm, did she mean that the devisees should have two acres each., or if she meant its proceeds, why did she not authorize a sale ? She had made none which she could enforce and must have known it. So far we see that she was not unmindful of her husband’s nephews and nieces. If we add the farm, as descending to her brother, to what she gave to her own relatives, it makes less than three thousand dollars, and it is quite obvious that she gave as much as that to her husband’s relatives. When she treated them as well as she did her own, have we any right to make her say land where she said money in order to treat them better ? Obviously we are driven out of the will and to the extrinsic fact that she had made an invalid contract for the sale of her farm in order to get the shadow of a basis for a guess that she might have regarded it as “ money of her husband's estate." If an extrinsic fact may create an ambiguity which does not previously exist it should at least be itself without ambiguity and not merely the basis of a possibility.

It is said that she gave Burnett five dollars and so meant that he should have no more, but it is easier to suppose that she gave him that because she knew he would have the farm than that she1 meant to treat him with contempt without even the excuse of quarrel or dislike.

While it is true that the meaning of the word “ money ” when used in a will depends upon the context and may be affected by the condition of the testator’s property and the surrounding circumstances, Smith v. Burch, 92 N. Y., 228, it must yet be added that a construction broad enough to give it a meaning which includes real estate, if ever possible, can only be sustained where the intention is so clear and plain as to be in effect compulsory. The facts of this case do not disclose such1 an intention.

The judgment of the general term should be affirmed, but without costs to either party.

All concur, except Earl, Ch. J., and Peckham, J., dissenting.


author: Pryor, J.

text:
    George W. Wilson, Resp’t, v. The Manhattan Railway Company, App’lt.

      (Mew York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Pause imprisonment—Judgment in criminal prosecution not evidence OP GUILT IN CIVIL SUIT.
    A judgment in a criminal prosecution is admissible in a civil case only to establish the fact of the rendition of the judgment, but is not evidence of the facts upon which the judgment proceeded; that is, of the guilt of the accused.
    3. Same—Pleadings.
    In an action for false imprisonment, a denial of knowledge or information-whether defendant caused the arrest is nugatory, and justification, to be available, must be pleaded as a defense.
    Appeal from judgment on verdict and from order denying a new trial.
    Action for false imprisonment.

      Davies & Rapallo (Joseph H. Adams, of counsel), for app’lt; Eugene F. Daly, for resp't.
   Pryor, J.

Not often does a railroad company appear in court with a case of such moral merit as, in the present action, must be conceded to the defendant. It is sued for damages incurred, if at all, in attempting to protect its female passengers from indecent assaults; and surely it is entitled to every encouragement in so laudable an endeavor. Still, unless error be apparent in the record, we have no alternative but to affirm the judgment.

It is admitted that the plaintiff was arrested; and, hence, the -only issues before the jury were, whether he was arrested by the defendant, and whether his arrest was unlawful.

We are favored with very elaborate briefs by the respective counsel; and yet the questions for decision are simple and not ■of difficult or doubtful solution.

That the plaintiff was arrested at the instigation of the defendant, that is by the defendant," and that he was innocent of the offense for which -he was detained, were found by the jury upon conflicting evidence; and we are not of the opinion that the preponderance of proof against these facts is so clear and decisive as to justify us in reversing the denial of a new trial by the learned judge who heard the testimony and observed the witnesses. From his position he was peculiarly qualified to determine whether the verdict involved a miscarriage of justice; and although it appears to us of doubtful validity, we do not feel authorized to gainsay the concurrent conclusions of the jury and the presiding judge.

The plaintiff was arrested for breach of the peace, but without a warrant; and the question is: Did the occasion authorize the arrest by the defendant without a warrant ?

In this state the law is that, if a felony or a breach of the peace has in fact been committed by the person arrested, the arrest may be justified by any person without a warrant, whether there was time to procure a warrant or not; but if an innocent person be arrested upon suspicion by a private individual, such individual is not excused unless such offense has in fact been committed, and there was reasonable ground to suspect the person arrested.” Burns v. Erben, 40 N. Y, 463, 466; ‘'Hawley v. Butler, 54 Barb., 490; Brown v. Chadsey, 39 id., 253, 263; Holley v. Mix, 3 Wend., 350.

The defendant, then, being justified in the arrest if a breach of the peace had been committed, and there was reasonable ground to suspect the plaintiff of the offense, the inquiry is: Had such breach been committed, and was probable cause shown to suspect the plaintiff? Since the assault, if any, upon the lady was committed by the plaintiff, and he testified that he put his hand on her shoulder with an innocent, and even commendable motive, the conflict of evidence raised a question for the jury, and the verdict is conclusive against the appellant that no assault was committed. And as to the question of probable cause to suspect the plaintiff, it was expressly referred to the jury by the learned trial judge, and that issue, too, the verdict conclusively determines against the defendant.

It follows, therefore, that the defendant failed to justify the arrest.

The police court convicted the plaintiff; and appellant contends that the trial judge erred in refusing to charge that such conviction was evidence of plaintiff’s guilt. The proposition is untenable. A judgment in a criminal prosecution is admissible in a civil case only to establish the fact of the rendition of the judgment; but is not evidence of the facts upon which the judgment proceeded, that is, of the guilt of the accused. And this because neither the parties, nor the rules of decision, nor the course of proceedings, are identical in the two actions. 1 Greenl. on Ev., § 587; 2 Wharton’s Law of Ev., § 776. In malicious prosecution an acquittal of the plaintiff, though an indispensable condition of the action, is not evidence of his innocence between the parties.

Appellant urges, finally, that the trial judge coerced the jury to an agreement on a verdict; but the contention is without support in the record. “ It is not error for a judge to refuse to discharge the jury until they have agreed upon their verdict; and whether or not to discharge them then, is a question addressed to his discretion.” White v. Calder, 35 N. Y., 183. It is his right, and his duty even, to exhort the jury to an agreement. S. C., p. 184; Green v. Telfair, 11 How., 260; Erwin v. Hamilton, 50 id., 32. The motion, moreover, should have been made at special term. Cases supra.

We have considered the case as if the points discussed were presented by- the pleadings; but, in truth, neither justification of the arrest nor defendant’s responsibility for it was put in issue by the answer. A denial of knowledge or information whether defendant caused the arrest, is nugatory, Lawrence v. Derby, 15 Abb., 346, note; and justification, to be available, must be pleaded as a defense to the action. Brown v. Chadsey, 39 Barb., 253.

It results that the judgment must be affirmed.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


text:
    Anna Maria Doyle, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.
    1. Motions and orders—Settlement of order — Recollection oe trial JUDUE DEEMED CONCLUSIVE.
    Upon an appeal from an order denying a motion to re-settle an order of reference, because of the omission in the proposed order of “matters essential to a proper review of the order of reference,” and because of recitals in it, said by the trial judge to be inaccurate, Held, that there being no authentic record of the facts in question, the appellate court would accept the recollection of the trial court as conclusive.

      2. Railroad—Elevated—Reference unconstitutional.
    In an action for an injunction and for damages to property caused by the operation of defendants’ elevated railroad, the trial court, of its own motion, and against objection, ordered a referee to take the testimony necessary to ascertain the value of the fee and^ amount of rental loss. Held, that such order is prohibited by the constitution, because it directed the taking of testimony in an equity case otherwise than in cases at law.
    Appeal from two orders, one denying a motion to re-settle an order of reference, and the other denying a motion to vacate the reference.

      Davies & Rapallo (Brainard Tolles, of counsel), for app’lts; Peckham & Taylor (W. G. Peckham, of counsel), for resp’t.
   Pryor, J.

The appeal is from two orders, one denying a motion to re-settle an order of reference, and the other denying a motion to vacate the reference.

As to the proposed order upon re-settlement, the learned trial judge refused it, because of the omission of “ matters essential to a proper review of the order of reference,” and because of recitals in it said by the judge to be inaccurate. There being no authentic record of the facts in question, we accept the recollection of the court as conclusive. But, should the divergency of view between the court and counsel be supposed to leave the facts in doubt, it is quite obvious that any attempt, upon a re-settlement, to reconcile the discrepancy would be nugatory.

The affirmance of the order denying a re-settlement is, however, of no prejudice to the defendants; since, upon the appeal from the order refusing to vacate the reference, they are at liberty to contest the order of reference as an unwarrantable exercise of judicial power. Kamp v. Kamp, 59 N. Y., 212 ; People v. Brown, 103 id., 684 ; 4 St. Rep., 271; Read v. Lozin, 31 Hun, 286. As the record contains the order of reference, the proposed order upon re-settlement, the order denying the motion to re-settle, and the pleadings exhibiting the character of the action and the issues involved, we have before us everything requisite to a determination of the question submitted to adjudication; which is, whether the order of reference was within the jurisdiction of the court ?

The order is in these terms : “ The issues in the action having come on for trial at an equity term of this court, held by the Hon. Henry Bischoff, Jr., justice, and the court having taken testimony as to the title of the plaintiff to the premises described in the complaint, and as to certain other issues, and having noted certain admissions made, it is now by the court, of its own motion, counsel for defendants, objecting; Ordered, that it be referred to Charles H. Morgan, Esq., counsellor at law of the city of Hew York, to take testimony as to the value, if any, of the easements and property taken, appropriated or interfered with by the defendants for the maintenance or operation of their railway in front of plaintiff’s premises, and as to the amount of the rental loss, if any, which plaintiff has heretofore suffered therefrom, and to report the same to the court, with his opinion thereon, but as to the value of the fee he shall only estimate on the impairment of light, air and' access.

Ordered further, that the taking of such testimony proceed with all convenient despatch, and

It is further ordered that upon the filing of said report in the office of the clerk of this court, either party may apply to the Hon. Henry Bischoff, Jr., the justice before whom this action is pending, upon two days notice, for the continuation and closing of the trial of the above entitled action.

It is requisite to observe that the reference .s not to hear and determine, but only to take and report testimony with an opinion,, for the consideration of the court.

The action is in equity, the cause of action is single, and is exclusively of cognizance by a court of equity. Lynch v. R. R. Co. 129 N. Y., 274; 41 St. Rep., 541. But this is the theoretical' aspect of the action, according to scientific classification. In practical result it is to recover the value of the property taken and damages for antecedent injury to it. Hence the query in Roberts v. R. R. Co., 128 N.Y., 455; 40 St. Rep., 454, significantly repeated in a subsequent case in the same court, “ whether the defendant has the right to refuse to pay and to submit to the injunction ? ” Regarding the action, however, in a technical view and as a formal suit in equity for injunctive relief, the precise question is, whether the court had power to delegate to a referee the office of taking the testimony necessary to ascertain the value of the fee and the amount of rental loss ? Upon principle and authority, we are of opinion that the court had not the power.

It is no argument for the power to say that it is inherent in a court of chancery. In this state, in respect of the point in controversy, the procedure on the trial of causes in equity is subject to express and peremptory regulation. .The constitution prescribes-that “ the testimony in equity cases shall be taken in like manner as-in cases at law; ” that is, in open court in the presence and under the supervision of the judge who is to decide the cause. Phillips v. Gorham, 17 N.Y.,273; Draper v. Day, 11 How., 441; Rathbun v. Rathbun, 3 id., 139. The present is “ a case in equity; ” and the order of reference, being merely to take testimony, is apparently within the express interdict of the constitution.

It is insisted, however, that here is no taking of testimony in the case, but only upon a collateral question of fact arising in the progress of the action. Code, § 1015. The argument is a palpable evasion of the letter and the policy of the constitutional provision. The question of fee value and rental loss are inseparably incorporated in the action, and their determination is essential to-that complete relief which it is the function) of a suit in equity to afford. Nay, more, the amount of that value and of that loss is-alleged in the complaint and denied' in the answer, and so is formally as well as substantially an issue in the action. But, by the-express terms of § 1015, no question of fact arising “ upon the pleadings” can be assigned to a referee for proof; and even when a question of fact not arising on the pleadings is referred, it is referred, not merely to take testimony, but “ to determine;” whereas,, here the reference is only to take testimony and report. Obviously, the order in discussion is not authorized by the last sentence of the section.

Neither is there warrant for it in the rest of the section. The first clause empowers the court to “ direct a reference to take an account; ” but here is no pretense of an account Camp v. Ingersoll, 86 N. Y., 433.

That case the respondent adduces as authority for the proposition that the last clause of § 1015 permits the reference in controversy. The action was “ to recover the value of certain shares of the stock of a manufacturing corporation, which the complaint alleged the plaintiff was entitled to recover under an award.” The ■decision of the court was, that although to ascertain the value of the stock it might be necessary to strike a balance between the •assets and liabilities of the corporation, yet f lis was not such an •account between the parties as would just fy a reference under the first clause of the section. At the end i c the opinion (p. 437) it is said, however, that a reference might be directed, under the second clause of the section, to take and report testimony as to the value of the assets, with the opinion of the referee thereon. But this was mere obiter dictum, unsupported by argument or authority, and in direct conflict with the terms of the clause, which allow a reference to “ determine * * * a question of fact”

If the case were an adjudication, still it is not apparent that the ■question of value, as here, arose upon the pleadings, and so within the provision of the statute. In Shepard v. R R. Co., 131 N. Y., 215, 224; 43 St. Rep., 117, Judge Gray denominates the disputes as to the amount of fee and rental values “ questions which arise on the pleadings;” and in Roberts v. R. R. Co., 128 N. Y, 455, 464; 40 St. Rep., 454, Judge Peckham says that by the action the plaintiff has brought before the court the question, what were the damages to the fee ? The amount of damages thus caused to the plaintiff’s fee is the precise question which the court or jury must determine.” But, the reference authorized by the •second clause of the section (1015) is not to take and report testimony upon the issues in the action, but to determine and report upon collateral matters arising in the progress of the cause. “ In such equity cases where facts other than those presented by the issues in the pleadings are necessary to be known to the court, in order to enable them to frame the proper decree, the court have power, even without the consent of "parties, to refer the case for such purpose.” Potter, J., in Elmore v. Thomas, 7 Abb., 70, 72.

That the dictum in Camp v. Ingersoll is of no authority upon the point in controversy is not only evident in reason, but has been decided by the supreme court at general term in Farmers' Nat. Bank v. Houston, 44 Hun, 570; 8 St. Rep., 557, the court saying, (page 570 per Learned, P. J., Bockes and Landon concurring) : “ Camp v. Ingersoll reversed an order of reference on the ground that the issues did not strictly involve the examination of .a long account. The court referred to § 1015, and said that if the suit was one in equity, the testimony as to the value of the assets might be taken by a referee. An examination of that section will show that it does not speak of a reference to take evidence upon, "the issues, but only what may be called collateral matters. Ñor was anything decided by the court except a reversal of the order •of reference. * * * On the other hand, the case of Rathbun v. Rathbun, 3 How., 139, and Stewart v. Gardner, id., 156, are decisions on this very point, and are in conflict with the order in this case. We concur with those decisions, and are of the opinion that the court has no power compulsorily to order that testimony '•to be used on a trial should be taken before a referee.”

Another authority, confidently adduced by the respondent, is-Methodist Society v. Brooklyn It. It. Co., 46 Hun, 531; 12 St. Rep., 500 (second department); but here again the reliance is upon a mere suggestion, of no relevancy to the case and not at all countenanced by the actual adjudication. True, the action was similar to the one under review ; but the issues were submitted to a jury, and judgment entered upon their verdict at special term. The-decision being that “ the trial of the cause at circuit was no error the remark that “ the testimony might have been taken by a referee and reported to the court,” was as gratuitous as it was unsupported by argument. Neither Farmers' Nat. Bank v. Houston nor any case of the like import was noticed; nor did the court, fortify its dictum by a solitary citation.

As little warrant, less indeed, is there for the order on appeal in any other provision of the Code.

Section 827 does not touch the question in controversy. Farmers' Nat. Bank v. Houston, 44 Hun, 567, 569; 8 St. Rep., 557. Section 1011 applies only to a reference by consent. Section 1013, in its first sentence, provides for an involuntary reference of issues in an action at law ; namely, “ when the trial will not require the examination of a long account, and will not require the-decision of difficult questions of law.” The second sentence-reads: “ In an action triable by the court without a jury ” (this case) a reference may be made, as prescribed in this section, to-decide the whole issue, or any of' the issues, or to report the referee’s findings upon one or more specific questions of fact involved in the issue.” By the settled construction of all courts, the words, as prescribed in this section, qualify and confine its operation in-actions which do involve an account and do not involve difficult questions of law. Thayer v. McNaughton, 117 N. Y., 111; 26 St. Rep., 843; Streat v. Rothschild, 12 Daly, 95 ; Barnes v. West, 16 Hun, 68; Read v. Lozin, 31 id., 286. In Thayer v. McNaughton, the court of appeals says : “ In equity actions the reference may be of the whole issue or of any one of them, or to report to the court upon specific questions of fact. But the power of the court to order the reference is limited by the general condition contained in the first clause of § 1013, which is applicable alike' to cases, triable by the court and cases triable by jury.” In Farmers' Nat. Bank v. Houston, supra, the court says: “ References are provided for in § 1013, but they are references to try the issue. No intimation is given that any other reference can-be made when an action is at issue.” Here is no account involved in the sense of the section, Camp v. Ingersoll, 86 N. Y., 433; Randall v. Sherman, 131 id., 669; 43 St. Rep., 923, nor is the-reference to try the issue.

In Drexel v. Pease, 129 N. Y., 96; 41 St. Rep., 236., it is not-apparent an account was not involved, the contrary rather ; but however that be, the reference was to “ ascertain,” i. e., determine, certain questions of fact. Indisputably the reference was to try specific issues, and so may have been within the express terms of the section. Here the reference is not to ascertain, or determine or try anything, but merely to take testimony and report with an-opinion. In no event, therefore, is the order under review within -the scope of the dictum in Drexel v. Pease, for dictum it is, and not an adjudication.

To criticise all the authorities cited by counsel in their elaborate and instructive briefs would prolong this opinion beyond reasonable limits; suffice to say that none of them is an adjudication in support of respondent’s position, while Farmers' Nat. Bank v. Houston, supra, is an explicit decision in favor of appellants’ -contention.

To recapitulate: 1st. The order on appeal is not warranted by § 1013 of the Code, because the action does not require the examination of a long account, and because the reference is not to try ihe questions submitted, but only to take testimony and report it with opinion. 2d. The order is not authorized by § 1015, be•cause it is not to take an account; because the questions referred arise upon ihe pleadings, and because the reference is not to determine the questions, but only to take testimony, and report it with opinion. 3d. The order is prohibited by the constitution, because it directs the taking of testimony in an equity case otherwise than in cases at law ; i. e., in open court, and in the presence and under the supervision of the judge who is to decide the cause.

The order, therefore, was made without jurisdiction, and is a nullity.

Counsel for respondent objects that defendants, having proceeded with the trial before the referee, are estopped to appeal from the order. Read v. Lozin, 81 Hun, 286, is a decisive authority to the contrary; and so is the current of adjudication.

Doubtless the disposition of the case by the learned judge below would operate greatly in ease of the courts; but its effect, in inflicting upon suitors virtually a double trial of the cause, once by the court, and again by a referee, would oppress them with a burden of superfluous expenditure and delay. We are to remember that it is a fundamental principle of our law that the judicial function cannot be delegated, Broom’s Maxims, 840: and we reflect, with chagrin, that the ideal of cheap and speedy justice is not yet realized in the administration of our courts. It is within our power, however, not to aggravate the evil, if it be incorrigible, by ¡still further protracting the delay and increasing the expense of judicial procedure.

Order denying re-settlement affirmed : order denying motion to set aside order of reference reversed, and reference vacated, without costs to either party.

Daly, Ch. J., and Bookstaver, J., concur


author: Daly, Ch. J.

text:
    Patrick Cassidy et al., Resp'ts, v. Joseph McFarland et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Reference—Long- account.
    If the pleadings show that the examination of a long account is involved, no other proof is necessary to authorize the court, upon its own motion, to refer the case; it will be presumed that the trial will not require the examination of difficult questions of law.

      3. Same—Mechanics’ men.
    The complaint disclosed that the action was to foreclose a mechanics" lien for certain plumbing materials sold and delivered by plaintiff to certain sub-contractors, to be used in the erection of buildings for defendant. 3T.; that the amount and value of the materials was $4,383, no part of" which has been paid, except $375, which amount said contractor agreed to pay. The answers denied all the allegations. Held, that it appeared by the pleadings that the examination of a long account was involved.
    Appeal from an order made at the special term referring the-issues in an action to foreclose a mechanic’s lien.

      George A. Stearns, for appl’t, Wood ; Oscar Frisbie, for app’lt, McFarland; Thos C. Ennever, for resp’ts.
   Daly, Ch. J.

The order appealed from recites substantially: that the cause coming on for trial regularly in due course, upon reading the complaint and answers of the defendants, Wood,, Snape, McFarland, Orlofski and Cornet, and the reply of the plaintiffs, and it appearing therefrom to the satisfaction of the court that the trial of the action will involve the examination of a long account, and that no difficult questions of law will arise on the trial, the court upon its own motion refers the action to a sole referee to hear, try and determine the issues raised by the pleadings.

The Code expressly authorized the court, upon its own motion, in a proper case, to refer the whole issue or any of the issues. Code, § 1013. If the pleadings show that the examination of a long account is involved, no other proof is necessary. Holmes v. Bennett, 28 How., 289. Ho proof is necessary that the trial will not require the examination of difficult questions of law; that-will be presumed, and it is for the party opposing the reference to make it appear otherwise. Barber v. Cromwell, 10 How., 351; Dewey v. Field, 13 id., 437; Patterson v. Stettauer, 39 Superior Ct., 413.

The pleadings show that the trial will involve the examination of a long account. The complaint disclosed that the action is to foreclose a mechanic’s lien for certain plumbing and gas-fitting materials sold and delivered by the plaintiff's to Gorman &. Sylvander to be used in the course of the erection of three buildings in the city of Hew York, and it is alleged that the amount- and value of the materials is $4,382.30, no part of which has-been paid except $375, and that there is now due $4,007.30 with interest, and that the last item of said materials was furnished and delivered within ninety days prior to the filing of the lien. All these allegations are denied by the answers of the appellants, and it was manifest that the plaintiffs would have to prove the sale- and delivery of all the items of materials for which they claim.

A reference may be ordered where several items of goods sold and delivered must be proved. This involves the examination off an account, Welsh v. Darragh, 52 N. Y., 590, and so where the-items of work done and materials furnished by a contractor will be the subject of inquiry. Kingsley v. City of Brooklyn, 1 Abb. N. C., 108. The items of the plaintiff’s claim were manifestly numerous, as they amounted to $4,382.30 and were used in the-course of the erection of three buildings and were delivered at different times, as is to be inferred from the complaint The proof of work done and materials furnished in mechanic’s lien cases under allegations such as are contained in the pleadings before us always involves the examination of a long account, as experience has fully proved.

It is urged, however, that the complaint sets up a cause of action upon a special agreement. It alleges “ that the amount and value of materials so furnished is the sum of $4,382.30, which amount said Gorman & Sylvander agreed to pay the plaintiffs therefor.” There may be two causes of action thus alleged, one for the value of the materials and the other upon a special agreement to pay the value. If so, the defendants might have called upon the plaintiffs to elect upon which of the causes of action they would proceed, Gardner v. Locke, 2 Civ. Pro. R, 252, and, failing to do so, the plaintiffs would have the right to do so and recover upon the quantum meruit

If, however, there be but one cause of action alleged, then that is upon the quantum meruit. There is no allegation of a contract for an agreed price before the delivery of the goods, or performance of the work, as in Evans v. Kalbfleisch, 16 Abb., N. S., 13, where it was held that a single cause of action only was stated, although, after a special agreement was set out, there was an allegation of value the court holding that the alleged quantum meruit was but a continuation of the preceding averment pertaining to the special contract, and not in any proper sense the allegation of a separate or different cause of action.

In the complaint before us there is ho averment of a special contract, i. e., an agreement by which the price to be paid for the work, labor or materials was fixed or agreed upon in advance of performance or delivery. After the averment of the amount and value of' the goods there is the addition of an allegation that the defendants agreed to pay the amount, but this clearly implies a promise subsequent to performance, and this is no more than the agreement which the law implies. To recover upon such a promise it would be necessary to show consideration in the delivery of the goods, or part of them, upon the request of the defendant. This would require proof of the account to some extent, and in such a case the “ examination brings the case within the reasons for referring actions.” Welsh v. Darragh, above cited. Hone of the authorities cited by appellants conflicts with these views,

But not only would plaintiffs be required, under the pleadings, to prove the items of their own account for materials furnished to Gorman & Sylvander, but they were also bound to prove the items of work done and. materials furnished by the latter to the defendant Frederick Wood, who was the principal contractor with the owner, Joseph McFarland, and under whose contract the plaintiffs supplied the materials for which they filed their lien. The complaint alleges that Gorman & Sylvander were to do the plumbing and gas-fitting for the buildings and that Wood was to pay them therefor a sum in excess of $4,007.30, and. that they commenced to work thereunder and completed the same, and that there remained due and owing them a sum in excess of said last named amount. These allegations are denied by the defendant, Frederick W ood.

It was also manifest from the pleadings that the plaintiffs were bound to prove the performance by Frederick Wood of his contract with McFarland, the owner, and an examination of the accounts between Wood and McFarland was necessary to show that a sum sufficient to satisfy the plaintiffs’ lien was due from the owner at the time of the tiling thereof. The complaint alleged that Wood agreed to erect and did erect the buildings, and that there became due from McFarland at the time of the filing of the lien a sum in excess of $4,007.30. This allegation was put in issue not only by the answer of the owner, McFarland, but also by the answer of Wood, the contractor. It thus appears that the plaintiffs, in order to maintain their lien, would be compelled, under the pleadings, to prove performance of no less than three contracts for work, labor and services, and the furnishing of materials, and this would involve proof of items not only on one account but several, and the reference ordered was eminently proper and should be affirmed.

With respect to the motion by respondent to dismiss the appeals, it appears that the papers were printed in time for the argument, and it is customary to relieve appellants from their default in such cases upon terms. The motion to dismiss the appeal on the ground of waiver must be denied. The appellants proceeded before the referee after having first made formal objection to going on with the reference. The case is thus distinguishable from Ubsdell v. Root, 3 Abb. Pr„ 142.

' The motion to dismiss the appeals is denied. Order appealed from affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Balthasar Runt, App’lt, v. Frank O. Herring et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.

    1. Contract—Validity—Public policy.
    In an action for injury to plaintiff by defendants’ negligence, the latter pleaded in bar of the action, and on the trial offered in evidence a written agreement, whereby plaintiff, in consideration of employment and one dollar, agreed "not to institute, or appear osa witness in, any suit or proceeding,” nor to “ countenance or authorize any person to sue or appear and give testimony in any suit claiming'damages for injuries ” received while in defendants’ employ. Held, that such agreement was void upon grounds of public policy.
    3. Same—Void contract—Not competent evidence.
    Such contract being avoided for repugnancy to public policy, was not competent to be employed as an instrument of legal evidence.
    3. Same—Part OP CONSIDERATION ILLEGAL, WHOLE CONTRACT VOID.
    If any part of a consideration is illegal the whole contract is void as against public policy, even though the illegal act or promise is coupled with one that is legal.

      Appeal .rom a judgment on a verdict.
    Action for injury to plaintiff by the defendants’ negligence.

      Leopold Leo, for app’lt; Charles Ruslon, (J. A. Shoudy, of counsel), for resp’t.
   Pryor, J.

The case is before us on a single exception, and with only so much of the evidence as is requisite to show the point and pertinency of that exception.

On the 19th of January, 1885, the plaintiff, being in the service of the defendants, but for no definite time, signed the following paper:

“ For, and in consideration of employment, and one dollar in hand paid to me by Herring & Go., I hereby agree that in the event of my receiving any personal injury, accidental or otherwise, whether from the fault of other employees or machinery, belting, boilers, engines, trucks, defects of buildings, or from any other cause whatever, I will not hold Herring & Co., or any member of said firm, responsible, or make any claim for money damages, or appear as a witness in any suit- or proceedings. Neither will I countenance or authorize any other person to sue, or appear and give testimony in any suit claiming damages for injuries received as above stated. B. Runt.”

Thereafter, upon an allegation that, on the 20th of November. 1888, he had sustained an injury by the 'negligent omission of the defendants to provide him a safe working place, the plaintiff sued them in an action for damages; and, besides denying the imputed negligence, and attributing contributory negligence to the plaintiff, the defendants pleaded the above paper in bar of the action. On the trial, and as special matter of defense, the defendants offered the paper in evidence; the plaintiff objected to its introduction on the grounds that it was irrelevant, immaterial and incompetent, and a void instrument, because without consideration, and contrary to public policy. Nevertheless, the court admitted it in evidence, and it was marked “ Defendants’ Exhibit, No. 1,” to which ruling the plaintiff duly excepted. The reception of’ this paper as evidence in the cause is the error, and the only error, of which the plaintiff complains.

The recital of the employment, and the dollar paid, distimuu-dies the case from Purdy v. R. R. Co., 125 N. Y„ 209; 34 St. Rep., 737, and probably discloses a sufficient consideration to sustain the agreement. Nevertheless we are of opinion that the paper was a nullity; and if so, it was irrelevant and immaterial, because ineffectual as a defense to the action.

The action proceeds upon an allegation of the defendants’ own negligence; since the careless omission of the master to provide a safe working^ place for the servant is the breach of a duty incumbent upon him. and from the obligation of which he cannot escape by delegation to an agent

_ Whether a servant may, by contract, exonerate the master from liability for an injury inflicted by his own negligence, is queestio vexata in the jurisprudence of England and this country. The following cases support the affirmative of the proposition. Griffiths v. Earl Dudley, L. R., 9 Q B. D., 357 ; Western, etc., R. R. Co. v. Bishop, 50 Ga., 465 ; Western, etc., R. R. Co. v. Strong, 52 id., 461; Galloway v. Western, etc., R. R. Co., 57 id., 512. The great weight of American authority, however, is distinctly to the contrary. Roesner v. Hermann, 8 Fed. R, 782; Kansas Pac. R. Co. v. Peavey, 29 Kans., 169 ; Memphis, etc., R. R. Co. v. Jones, 2 Head, 517; R. R. Co. v. Spangler, 44 Ohio St., 471; Willis v. Grand Trunk R. Co., 62 Mc., 488 ; Greenhood on Public Policy, 528 ; Purdy v. R. R. Co., 125 N. Y., 209, 214; 34 St Rep., 737, obiter dictum by Peckham, J.

However this may be, still the agreement under criticism is • void, upon grounds of public policy. For an entire and indivisible consideration, the plaintiff stipulates “ not to institute, or appear as a witness in, any suit or' proceeding,” nor to “ countenance or authorize any person to sue or appear and give testimony in any suit claiming damages for injuries.” It is familiar learning that the courts will not tolerate an agreement to oust them of jurisdiction; and “a contract to prevent the performance of a duty imposed by law, and in the performance of which the state has an interest, is in contravention of public policy, and therefore void.” James v. Hendree, 34 Ala., 488. No duty upon a citizen can be more obligatory, or of greater interest to the state, than to be obedient to the process of the courts, and instrumental, as a witness, in the administration of justice. “ It is an established general principle that contracts having for their subject-matter any interference with the due enforcement of the laws are against public policy, and are therefore void. The law guards with jealousy every avenue to its courts of justice, and strikes down everything in the shape of a contract which may afford a temptation to interfere with its due administration. 13 Am. St., 362, note; Ormerod v. Dearman, 100 Pa. St., 561..

It is insisted, however, that here the stipulation of the plaintiff to forego his claim against the defendants may be valid and operative, although, his engagement not to sue or give testimony in the courts be illegal ana ineffectual. The contention is untenable. “ If any part of a consideration is illegal, the whole contract is void as against public policy, even though the illegal act or promise is coupled with one that is legal,” McNamara v. Gargett, 68 Mich., 454, for illegal contracts cannot be divided, and held valid in part and invalid in other parts. Santa Clara Valley Mill & Lumber Co. v. Hayes, 76 Cal., 387.

The respondent urges, however, that “ whether its provisions were binding or not, the contract was certainly admissible in evidence as the agreement under which plaintiff's services were rendered." But, surely, the agreement is fallacious, in assuming that a thing which in law is no agreement may still be an agreement between the parties, with the effect of controlling their rights and remedies. A nullity is inoperative for any and all purposes ; and when an apparent contract is avoided for repugnancy to public policy, it may not, without absurd inconsistency, be employed as an instrument of legal evidence.

Assuming that the admission of the paper was error, respondent contends that it was of no prejudice to the plaintiff because '‘no question in respect thereto was submitted to the jury,” and because “ the court refused to submit it to the jury, or to give it any effect whatever.” We do not so read the record. Against plaintiff’s objection the court received the paper in evidence; that ruling imports that it was read to the jury and by them considered; and this presumption is repelled by nothing in the case. It is of no avail to the respondent that reference was not made to the paper in the general charge by the court; nor that the court refused to charge that because of the paper the plaintiff could not recover. The paper was not withdrawn from evidence; nor did the court instruct the jury to exclude it from consideration, or tell them that it was not a defense to plaintiff’s recovery. The mere fact that the court refused to rule it to be a peremptory bar to the action, still left the jury free to attach the utmost importance to it as evidence against the plaintiff. And, doubtless, this effect it had on their decision; for, privileged by the court to weigh the paper as evidence, they, naturally, held the plaintiff to a deliberate agreement, in consideration of his employment, to release the defendant from liability to him for any injury in that employment.

Again, the respondent argues that the error in the admission of the paper was of no detriment to the appellant, because “the case does not contain a particle of evidence tending to show that the plaintiff had any cause of action, whatever, against the defendant.” But, the submission of the case to the jury itself imports an apparent right of recovery on the evidence; and, indeed, in its charge, the court expressly instructed the jury that the plaintiff’s evidence, if believed and not overborne, authorized a verdict in his behalf for the cause of action exhibited by the complaint.

The conclusion is that, for the ■ error indicated, the judgment should be reversed.

Judgment reversed, and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Alfred Shrimpton & Sons, Limited, Resp’t, v. Abraham J. Dworsky, App’lt.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Appeal—Waives ov objection.
    Having on the trial treated an issue as in litigation, when otherwise it might have been introduced, a party may not be heard to say on appeal that it was not in the action.
    2. Sale—Evidence.
    The complaint alleged that the plaintiff "sold to the defendant goods, viz.-, fifty gross needle-books.” On the trial, plaintiff, without amendment, was allowed to prove that the contract was not for the sale, but for

      the manufacture of goods. It appeared that needles were the goods contracted to he sold; that they were to he delivered in envelopes; that the needles and envelopes were in stock, and nothing remained but to print on the envelopes certain words. Held, that the evidence showed that the contract was simply for the sale of goods.
    3. Same—Acceptance.
    In such case, plaintiff, for evidence of due acceptance, relied upon the fact that defendant receipted for the case of needles as “in good order,” and said, “it is all right,” hut, it was uncontradicted that the needles were not in fact delivered to defendant, hut were left on the side-walk; that he never saw them, refused to receive them and returned them to plaintiffs’ place of business. Held, that the proof of acceptance was insufficient to authorize a submission of the issue to the jury.
    Appeal from judgment of the general term of the city court, affirming judgment for plaintiff on a verdict, and from an order affirming order denying a new trial.
    Action for goods sold and delivered.

      Francis B. Chedsey, for app’lt; George C. Coffin, for resp’t.

       Reversing 48 St. Rep., 937.

   Pryor, J.

In form and in substance, the action is for goods sold and delivered, and for nothing else. The allegation of sale and delivery is traversed by an explicit denial in the answer. This, then, was the issue, and the only issue, presented by the pleadings, namely: Whether the plaintiff had sold and delivered to the defendant the goods for recovery of the purchase price of which the action is brought.

Nevertheless, upon the trial, the plaintiff was allowed to give evidence of a different cause of action; that, is,-for work and labor; and in submitting the case to the jury the judge expressly charged, that “ if the goods were not in existence at the time of the purchase, but had to be manufactured, then this case does not come within the statute of frauds.” To this instruction the defendant dilly excepted; and he excepted, also, to evidence in support of an action for work and labor, on the grounds that “ it is irrelevant, incompetent and immaterial,” and that “ the action is brought for goods sold and delivered, and proof of manufacturing, is improper.”

True, the defendant did not, in terms, claim a “variance" between the pleadings and proof; nor could he have appropriately urged such claim, because here was not a variance, but a failure of proof of the cause of action formally in litigation. Code, § 541., Furthermore, on the conclusion of plaintiff’s case, the defendant moved for a dismissal, on the ground “ that there is no proof of the delivery of the goods to the defendant sufficient to satisfy the requirements of the statute of frauds. ” We are unable to conjecture how the defendant could have more unequivocally presented the point that the evidence was directed to a cause of action not alleged in the complaint, and that there was not the requisite correspondence between the pleadings and the proofs.

No amendment of the complaint was made or moved; and the question is, whether, against the protest of the defendant, a plaintiff may claim upon one cause of action and recover on another ?

In this state the question is no longer open to controversy. In Romeyn v. Sickles, 108 N. Y., 650; 13 St. Rep., 864, the court of appeals held that, where an objection has been properly taken, or an exception presents the point, it is fatal to a recovery that it does not conform in all material respects to the allegations of the pleadings, saying (page 652): “ It is a fundamental rule that judgment shall be secundinn allegata etprobata," and that “if a party can allege one cause of action, and then recover upon another, his complaint will serve no useful purpose, but rather to ensnare and mislead his adversary.’’

Here two distinct and independent causes of action were alternatively submitted to the jury, upon either of which they were told, in effect, they might return a verdict for the plaintiff. But one of these causes of action, being foreign from the case, did not authorize a recovery by the plaintiff; and, as it cannot be ascertained upon which cause of action the jury found for the plaintiff, we are unable to say that the defendant has not been prejudiced by the erroneous rulings on the trial.

We are of the opinion, therefore, that upon the ground indicated the judgment should be reversed.

But other consideration touching the merits of the controversy conduct to the same conclusion.

The defendant resisted a recovery against him upon the ground that the contract in action was for the sale of goods, and was invalid for want of due delivery and acceptance.

It is argued, however, that the invalidity of the contract under the statute of frauds not being pleaded, the defense was unavailable by the defendant. Wells v. Monihan, 129 N. Y., 161; 41 St. Rep., 409; Crane v. Powell, 46 St. Rep., 668. The answer is, that the point was not taken by the plaintiff on the trial; but, on the contrary, the question of the validity of the contract was litigated by the parties, and considered by the court, as an essential issue in controversy. At the instance of the plaintiff himself, the court charged that if the goods were not in esse, but were to be fabricated, the contract was not within the statute of frauds. After this explicit concession on the trial, that the validity of the contract under the statute of frauds was in issue, and in controversy, with what consistency or justice can the plaintiff be suffered on appeal to say that • the question is beyond the scope of the pleadings? Had the plaintiff raised the objection on the trial, non constat but the court would have allowed an amendment of the answer. Having treated the issue as in litigation, when otherwise it might have been introduced, the plaintiff may not now be heard to say that it was not in the action. Effray v. Masson, 45 St. Rep., 296.

Assuming, then, the defense of the statute of frauds to be before us for consideration, we are of opinion that it was established by the undisputed evidence.

The complaint alleges that the plaintiff “ sold to the defendant goods, viz.: fifty gross needle books.” If ever a party is to be bound by his pleading, the plaintiff is estopped to say that the contract was not for the sale, but for the manufacture of goods. And although, without amendment, he was allowed on the trial to prove that the goods were not in existence, his evidence clearly establishes the contrary proposition. The needles was the thing contracted to be sold; and although they were to be delivered in envelopes, these wére in stock; and nothing remained but to print on them “Empire Stationery and Novelty House, New York.” Indisputably here was a contract for the sale of goods and nothing more. Passaic Man. Co. v. Hoffman, 3 Daly, 495, 504; Flint v. Corbitt, 6 id., 429; Cooke v. Millard, 65 N. Y., 352, Kellogg v. Witherhead, 6 Thomp. & C., 525; Fitzsimmons v. Woodruff 1 id., 3; Smith v. N. Y. C. R. R. Co., 4 Keyes, 180 ; Lamb v. Crafts, 12 Metc., 353; Clark v. Nicholas, 107 Mass., 547; Gardner v. Joy, 9 Metc., 177; Cason v. Cheely, 6 Ga., 554 ; Atwater v. Hough, 29 Conn, 508; O'Neil v. Mining Co., 8 Nev., 141; Finney v. Apgar, 31 N. J. L., 266. Warren Chem. Co. v. Holbrook, 118 N. Y., 587; 29 St Rep., 848, is not contra.

The contract being within the statute of frauds, the question is, would the jury have been justified, on the evidence, in finding an acceptance of the goods by the defendant? The point was duly raised by a motion to dismiss as well as by requests to charge.

For evidence of due acceptance, the respondent relies upon the fact that the defendant receipted for the case of needles as “in good order.” and said “it is all right.” But it is uncontradicted that the needles were not in fact delivered to the defendant, but were left on the sidewalk; that he never saw them ; that he refused to receive them, and returned them to the plaintiff’s place of business. The proof of acceptance was insufficient to authorize a submission of the issue to the jury. Shindler v. Houston, 1 N. Y., 261, 271, 273 ; Cooke v. Millard, 65 id., 352, 357-8 ; Caulkins v. Hellman, 47 id., 449, 452; Stone v. Browning, 51 id., 211, 214-215 ; S. C., 68 id., 598, 604; Heermance v. Taylor, 14 Hun, 149, 151; Fitzsimmons v. ’Woodruff, 1 Thomp. & C., 3; Kellogg v. Witherhead, 6 id., 525. In Jones v. Reynolds, 120 N. Y., 213 ; 30 St. Rep., 881, the buyer took the model into his possession, retained it for a year without returning or offering to return it, and solicited a patent on the basis of it. Of course the court held that there was evidence of acceptance for the jury; but the ruling is obviously inapplicable to the case before us.

Judgment reversed, and new trial ordered, costs to abide event.

Daly, Ch. J., and Bischoff, J., concur.


author: Herrick, J.

text:
    Charles E. Bullard et al., App’lts, v. James H. Kenyon nd Ellen M. Kenyon, Impl’d, Resp'ts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Chattel mortgage—General creditor cannot attack for failure TO FILE..
    A mere creditor at large cannot avail himself of a neglect to file a chattel mortgage, as he is not a creditor within the meaning of the statute.
    Appeal from judgment in favor of defendants.
    Action to set aside a chattel mortgage on the ground that it was given for the purpose of defrauding the creditors of the defendants Kenyon, and that plaintiffs were judgment creditors of

      defendants Kenyon. It appeared that prior to July 6, 1889, defendants purchased goods of plaintiffs ; that on that day defendants gave a chattel mortgage to defendant Harris, which was not filed until September 6, 1889 ; that it was refiled in August, 1890, and foreclosed in March, 1891; that plaintiffs recovered judgment on their debt after the refiling.

      E. G. Bullard (E. F. Bullard, of counsel), for app’lts; Henning & McCall (W. H. McCall, of counsel), for resp’ts.
   Herrick, J.

I think the judgment in this case should be affirmed. The trial court found that the mortgage in question was not given in fraud of creditors ; that it was for a valuable consideration and was a bona fide transaction. The appellants cannot avail themselves of the neglect to file the mortgage, because during the time it was not on file they were not creditors within the meaning of the statute. Laws 1883, chap. 279.

The debt was not contracted during that time, and they were merely creditors at large. “ The term creditors of the mortgagor ’ has been defined by these decisions to be a creditor armed with some legal process which authorizes him to seize the property, such as an execution issued upon a judgment or an attachment. A mere creditor at large, without some process for the collection or enforcement of his debt, is not in a position to question an unfiled mortgage given by his debtor which is otherwise valid.” Button v. Rathbone, Sard & Co., 126 N. Y., 187-91; 36 St. Rep., 945, and cases cited.

Let the judgment be affirmed, with costs.

Mayham, P. J., concurs; Putnam, J., concurs in result.


text:
    Charles E. Bullard et al., App’lts, v. Mary C. Harris, Impl’d, Resp't

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)
    OOSTS—J UDGMENT.
    Respondent was joined with others as defendant in an action to set aside a chattel mortgage held by her. She appeared by a separate attorney, put in a separate answer, and made separate requests to find, which were found, and costs were awarded to her. She entered up judgment for costs without filing a formal decision embracing the findings. Held, that while this was not good practice, plaintiffs were not harmed as the facts and conclusions found by the court were a part of the record.
    Appeal from order denying motion to set aside judgment entered in favor of defendant for costs.
    The judgment was entered in the action of Bullard v. Kenyon et al., ante, in which this defendant was made a defendant as the mortgagee.

      E. G. Bullard, (E. F. Bullard, of counsel), for app’lts; John H. Benedict, (William H. McCall, of counsel), for resp’ts.
   Herrick, J.

The respondent, Mary C. Harris, was joined with others as defendant; her interests were not entirely the same as those of the other defendants; she appeared by her own attorney, she put in a separate answer, and upon the trial separate requests to find were proposed in her behalf and found by the court, and the court awarded her costs.

Upon those findings of the court she has entered up a judgment for costs, but has not written out and filed a formal decision embracing the findings of the court. While the course pursued is not good practice, still the facts and conclusions of law found by the court are made a part of the record; everything really essential is there; no injustice is done to the plaintiff by the procedure adopted, and I can see no reason why the judgment should be set aside.

Let the order of the special term be affirmed, with ten dollars costs, and printing and other disbursements.

Mayham, P. J., and Putnam, J., concur.