author: McAdam, J.

text:
    Lewis Seasongood et al., Pl’ffs, v. The New York Elevated Railroad Co. et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed March 29, 1892.)

    Costs—Stenographer's fees on reference.
    The stenographer at a reference is not an officer of the court, and in the absence of a stipulation or entry on the minutes to the contrary, his fees cannot be taxed as a disbursement.
    These are the ordinary actions against the elevated railroad companies, to recover damages and for an injunction. After the cases had appeared upon the calendar of the court, they were referred to Mr. William H. Willis, referee, to hear and determine. Judgments were entered on the report of the referee against the defendants, from which judgments defendants appealed to the general term of this court. On the argument of the appeal before the general term the judgments were affirmed, with costs. On the 13th day of March, 1892, bills of costs were taxed for the plaintiffs. The clerk of the court on the objection of defendants’ counsel taxed the amount mentioned in each bill of costs for a copy of stenographer’s minutes.
    Counsel for defendants objected to the taxation on the ground that the cases were tried before a referee and that as the stenographer was not an official stenographer of the court there was no authority for the taxation of any sum for stenographer’s minutes as a disbursement, and that the disbursements for said minutes were improper and unnecessary.
    In the orders by which these cases were referred there was no stipulation by which the defendants agreed that the prevailing parlies should tax disbursements for stenographer's minutes, nor was any agreement entered into or entry on the minutes made as to the expense of procuring stenographer’s minutes.

      Davies, Short & Townsend, for the motion; Sackett & Bennett, opposed.
   McAdam, J.

The stenographer at a reference is not an officer of the court.

It was held in the case of Varnum v. Wheeler, Supreme Court, 9 Civ. Pro., 421, that “A stenographer is not legally known in judicial proceedings, except as an officer of the court, acting under its direction and subject to its control; hence the cases holding that the expense to a party for a copy of the minutes kept by him, in a trial before a referee or other party where his services are invoked, are not taxable as a necessary disbursement, are not applicable to the case in hand; the employment being by the party or parties for his or their accommodation simply, and therefore a personal charge against the employer; and unless so stipulated, such expenses cannot be taxed as a necessary disbursement. Mark v. The City of Buffalo, 87 N. Y., 184; Rust v. Harsett, 2 N. Y. Monthly Law Bul., 6.

“ The rule in reference to a trial had at the circuit is different There the stenographer is an officer of the court and acts in an •official capacity.”

In Nugent v. Keenan, 53 N. Y. Supr., 530; 1 St. Rep., 708, it was held that “the stenographer’s fee on the trial of an action before a referee is not a disbursement within the meaning of the law regulating the adjustment of costs and cannot be taxed without a stipulation between the parties to that effect, Newhall v. Appleton, 4 Law Bul., 6, and where the parties on a trial before a referee employ a stenographer to take the minutes and agree that each party shall pay half the fee, the successful party cannot tax as a, disbursement the amount paid by him. Colton v. Simmons, 14 Hun, 75; Mark v. City of Buffalo, 87 N. Y., 184.”

It has also been held that even where the attorneys for the respective parties agree for convenience to employ a stenographer to take the minutes, each party to pay one-half of the expense, that the successful party cannot tax costs of -such minutes as a disbursement. This was decided in the case of Colton v. Simmons, 1st Dept. The opinion is written by Davis, P. J., part of which is as follows:

“ On presenting the bill of costs for adjustment to the clerk the defendants claimed as a disbursement the sum of $1,847 paid by him to the stenographer for his services. The clerk refused to adjust that item on the ground that it was not a taxable disbursement. The special term has overruled the decision of the court and directed a taxation of this item. We think the clerk was right in rejecting the item. It was not a disbursement within the meaning of the law regulating the adjustment of costs. The parties for their mutual convenience agreed upon the employment of a stenographer, and that each should pay half the expenses of his services in taking the notes of the evidence; he was not rendering any official service nor was he acting within any provision of the Code which allows the expense in taking notes or furnishing the parties thereto to be treated as a disbursement in the case.
“ It is very clear that if they had employed under such mutual agreement any clerk of ordinary capacity to take notes for them and furnish them copies of his notes, the services would not be regarded as a disbursement; nor was it ever known under the former system that charges could be made by one party against the other for the taking of notes of the testimony on the trial. The fact that the person thus employed was a stenographer and used a shorter and easier mode of taking notes could not make any difference in the real applicability to the case.
“ Either party could have employed his own stenographer and certainly would not have charged the other party with the expense thereby incurred as a disbursement in the action; and the fact that they unite in such employment for the purpose of lessening the expense of each, gives no force to the suggestion that what one pays as his proportion can be taxed against the other on the termination of the action.”

In Mark v. City of Buffalo, 87 N. Y., 184, above cited, the attorneys for the respective parties at the beginning of the trial agreed that a stenographer should be employed whose fees should be paid by the parties in equal proportions. An extra copy of Ms minutes was ordered by the referee. This was taxed as an item of the plaintiff’s disbursement. It was held that it was error in an opinion by Judge Finch, part of which is as follows:

“ The stenographer employed was not the official stenographer of the court, but was hired as any clerk or copyist might have been, and this was done under an agreement made at the commencement of .the trial, that the fees of the stenographer thus employed should be borne by the parties in equal proportion, each paying one-half thereof. Although an extra copy was ordered by the referee, we see no reason why the costs should be taxed against the defendants. If the service was rendered on their order it was still one fairly covered by the original agreement, and was equally for the benefit of both litigants." See, also, Newhall v. Appleton, 4 Law. Bul., 6.

Adams v. N. Y., Lake Erie & Western, 20 Abb. N. C., 180, was tried before Lawrence, J., and a jury, in the supreme court, first district, January, 1888, and the report of the case contains the following:

“ In the absence of special agreement, all parties to an action are jointly liable to an unofficial stenographer employed to take the official records of proceedings before the referee and furnish parties with minutes of testimony." See note to the case last cited.

Hasbrouck v. The Manhattan R. R. Company, was brought in the court of common pleas, and was tried before a referee, and the judgment was appealed from and affirmed at the general term of the court. The same question which arises in these cases came up in that case. The clerk refused to tax the amount for stenographer’s minutes under the objection of counsel for defendants, and the plaintiff appealed from the taxation. The motion came on to be heard before Chief Justice Daly, and after a full argument of the question Judge Daly denied the motion, with costs, in the following opinion:

“The expense of procuring a copy of the stenographer’s minutes in order to prepare amendments to a case on appeal have been allowed to a respondent upon taxation of his costs of the general term.” Stevens v. N. Y. El. R. R. Co., 31 St. Rep., 404; S. C., 18 Civ. Pro., 350; Sebley v. Nichols, 32 How. Pr., 182. “It has been held, however, that it is only in the case of official stenographers that disbursements for their fees can be taxed, and that as to stenographers employed upon a reference, in the absence of a stipulation to that effect, their fees are not taxable as a disbursement." Mark v. City of Buffalo, 87 N. Y., 184; Nugent v. Keenan, 53 Supr. Ct., 530; 1 St. Rep., 708. “The stenographer here was employed on a reference, and there was no stipulation to tax his fees. Motion denied, $10 costs.”

The case relied on by the respondent, Stevens v. N. Y. El. R. R. Co., supra, was tried before the court, and is therefore inapplicable.

In view of these adjudications, the taxation by the clerk must be reversed, and the item for stenographer’s fees disallowed.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Application of Jacob Leicht, Pl’ff, v. The Board of Excise, Def’t.

      (New York Superior Court, Special Term,

      Filed May 26, 1892.)

    Excise—Premises near church.
    The prohibition contained in § 43 of chap. 401, Laws 1893, against licensing places for the sale of liquor within 300 feet of a church or school house, does not apply to persons who have heretofore been licensed, although such license expired the day prior to that on which the act took effect. Such person comes within the exception in the section and has a proprietary interest which the legislature intended should be protected.
    Application to compel the excise board to issue a license to the applicant.

      A. J. Dittenhoefer, for applicant; Edward Browne, for board of excise.
   McAdam, J.

The question of this proceeding turns upon the construction of § 43 of the new excise law (1892, chap. 401). It reads as follows: “ Ko person or persons who shall not have been licensed prior to the passage of this act shall hereafter be licensed to sell strong or spirituous liquors, wines, ale or beer, in any building not used for hotel purposes, and for which a license does not exist at the time of the passage of this act, which shall be on the same street or avenue and within 200 feet of a building occupied exclusively as a church or school-house.”

It will be noted that the interdiction applies to persons who-were not licensed prior to the passage of the act, and to a building not used for hotel purposes, and in which a license did not exist. at the time of the passage of the act. The petitioner’s case comes-within "both those provisions. He had a license for years, and the one last granted continued by its terms down to and including April 29, 1892. The statute in question was approved by the governor April 30, 1892, and by force of § 46 took effect on that day, so-that there was no appreciable interval between the expiration of the license and the time the law -went into operation. The excise-commissioners acted on the application for a renewal of the license- and refused to grant it for the reasons stated in the following resolution : “ In the matter of the application of Jacob Leicht, Jr.,, for license to premises west side of 140 East Houston street, whose license expired on the 29th day of April, 1892, be and the saméis hereby rejected, for the reason that the said premises are-located within 200 feet of a building used exclusively as a church, and there was no license existing on said premises on-the 30th day of April, 1892.” The qualifications of the- applicant and the propriety of granting the license are conceded, and the license must issue, unless the grounds of refusal assigned by the commissioners are a sufficient answer in law to the application.

The jurisdiction of the court to grant the- relief applied for is found in § 24 of the act It provides, among other things, that if the court “ shall, upon the hearing, determine that such application for a license has been by such board arbitrarily denied, or denied without good cause or valid reasons therefor, such court may make an order commanding such board of excise to grant such application and to issue a license to such applicant upon payment of the proper license fee.”

The sale of liquors was valid at common law, yet the traffic,, even to the extent of absolute prohibition, is under legislative control, Tiedeman’s L. of P. P., 304, but the provisions of an act which substantially destroy property in liquors, owned and possessed by persons within the state when the act takes effect, is unconstitutional and void. Wynehamer v. The People, 13 N. Y., 378. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already passed, must be deemed “retrospective.” The ruléis, that words in a statute ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. Chew Heong v. U. S., 112 U. S., 559; Salters v. Tobias, 3 Paige, 344; Hill v. Duncan, 110 Mass., 240.

In all retroactive laws there must be an element of surprise, by which the persons whose rights are affected are taken unawares. They are called upon to act differently from what they had been led by the previous state of the law to anticipate. So repugnant is such a system of legislation to our natural sense of justice, that it has been stigmatized as more unreasonable than that adopted by Caligula, who was said to have written his laws in a very small character, and hung them upon high pillars the more effectually to ensnare the people. Wade on R Laws, § 34. The act in question carefully guards the existing rights of licensees, and was clearly intended to exclude only those who had not theretofore carried on business on the premises sought to be licensed. If it had been intended to exclude all persons from receiving a license in a building within 200 feet of a church or school house, the act would have read: “ Ho person or persons shall hereafter be licensed to sell strong or spirituous liquors, wines, ale or beer in any building within 200 feet of an edifice occupied as a church or a school house,” omitting the qualifying words “ who shall not have been licensed prior to the passage of this act.”

True,: the license, by its terms, expired April 29th, and the act went into effect the following day, but this does not bring the applicant within the disability imposed by it. The new act was not designed .to create forfeitures, or to destroy rights of property, or to prevent persons whose money was invested in an established business at the time of the passage of the act from carrying on the same because of its proximity to a church or schoolhouse. It was designed merely to prevent the extension of the privilege on grounds of public policy. It must be interpreted by the state of facts it was designed to meet. It is not contended that the circumstance of the applicant having a license would operate as a surrender of the power of the legislature to regulate the sale of liquor, Dorman v. State, 34 Ala., 216, or even to prohibit the traffic entirely. See cases collated in Wade on Retroactive Laws, §§ 18, 62, 63. But the law-making power, in this instance, expressly recognized the rights of existing licensees, indicating an intention to preserve them unimpaired. These rights were, by the terms of the act, treated as vested, and to be respected as such. “ This evident intention of the lawmakers of the statute is as much within the statute as if it were within the letter.” Dwarris Stai, 691. The letter of a statute may, in doubtful cases, be even enlarged or restrained by equitable construction to conform to the obvious intent of the framers. The spirit of the act must be respected, and the statute so construed as to promote in the fullest manner the policy and object of the legislature. U. S. v. Winn, 3 Sum., 209; The Enterprise, 1 Paine, 32; 6 Cranch, 314, 823. The applicant clearly came within the purview of the law as to existing licensees, and had a proprietary interest which the legislature intended should be protected. The prohibition in the act had no application to a person so situated, and he is entitled to an order commanding the board, to issue a license upon payment of the proper fee.


author: Macomber, J.

text:
    David A. McDonald et al., Pl’ffs, v. Albertus B. Johnson, Impl’d, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Bills and notes—Good faith—Charge.
    In an action upon a promissory note claimed to have been fraudulently obtained, it is not reversible error to refuse to charge that if the plaintiffs discounted the note at an usurious rate of interest, more than six per cent, it was a circumstance tending to show bad faith on their part, where the court has charged that the large discount might be considered by the jury in determining whether plaintiffs were innocent holders of the paper.
    2. Same—Public policy.
    While the original payee of the note might not be permitted to recover on it, it will not be held void on the ground of public policy in the hands of bona fide holders for value before maturity.
    Motion by the defendant, Albertus B. Johnson, for a new trial on exceptions taken at the Genesee circuit June 24, 1891, ordered to be heard at the general term in the first instance.

      William Carter, for def’t; T. P. Heddon, for pl’ffs.
   Macomber, J.

This action was brought by the plaintiffs, who are private bankers, to recover upon a promissory note in the sum of $190, given November 22, 1889, and payable January 1, 1891, which was made by the defendant, Albertus B. Johnson, and endorsed by the other defendant. The note was obtained from Johnson by one Toal, who represented himself as the agent of a corporation known as The Pennsylvania Seed Company, Limited. The transaction was the customary Bohemian oats fraudulent scheme, in which all the parties to the arrangement seem to be equally culpable. So far as the questions arising on this appeal are concerned, it is not necessary to go into the facts of the principal transaction.

After the defendant had made the note, it was negotiated in the usual way to the plaintiffs, who paid in cash therefor the sum of $165. The plaintiffs were well acquainted with the defendant, who was a depositor in their bank. The note was transferred to the plaintiffs before maturity, and the verdict, of the jury shows they were bona fide holders thereof for value, and hence had neither notice or knowledge of the original taint existing in the paper. The defendant in making and delivering the note to the' payee manifestly intended to'put it in circulation. Though it was executed by the maker as a part of a joint fraudulent scheme, such circumstance did not in any manner defeat the inception of the note at that tima It follows, therefore, that this verdict must be upheld, unless it was arrived at by some erroneous methods, or through erroneous instructions given by the court.

The learned counsel for the defendant argues that a new trial should be granted upon the ground that the court refused to charge that if the plaintiffs discounted the note at an usurious rate of interest, more than six per cent., it was a circumstance tending to show their bad faith in the purchase of the paper.

We think the request to charge in this instance was not specific enough to enable counsel to raise the point which he now argues. He nowhere made a proposition that the court should submit to the jury for their consideration the question whether or not the circumstance that the plaintiffs obtained the note for twenty-five dollars less than its face value could be considered by them in determining the question of their good faith. The court in the charge in chief instructed the jury that the large discount might be considered by them in determining whether or not the plaintiffs were innocent holders of the paper; the question was entirely left for the jury’s consideration.

It is further contended by the counsel for the defendant, that the note should be declared void on the ground of public policy. Had the action been brought by the original payee of the note or by any person engaged with Toal and'the defendant Johnson in the scheme to defraud, that question would be considered, and doubtless in the administration of the well-established rule, neither party to the scheme would be permitted to use the court to help himself as against another party thereto; but we venture to think that the public would suffer through the proposed violation of the ancient law protecting commercial paper in the hands of bona fide holders for value before maturity, quite as much as it would be benefited by an effort to apply the doctrine of public policy in condemnation of this transaction.

The case having been properly submitted to the jury, and its verdict having been rendered for the plaintiff upon all of the issues, we think the judgment should be entered upon the verdict.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiffs upon the verdict.

Dwight, P. J., and Lewis, J., concur.


text:
    Charles F. Mellish, Ex’r, Resp’t, v. Thomas McMahon, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Limitation—Partnership.
    In an action upon a promissory note defendant set up an equitable counterclaim arising out of partnership transactions between himself and plaintiff’s testator. It appeared that all matters were settled between them except some uncollected accounts in November, 1877, when defendant bought out testator’s interest, and that in 1883 testator collected some trifling sums on accounts considered valueless. The referee found that six months was a reasonable time to close up the partnership business. Held, that defendant's claim was barred by the statute of limitations.
    Appeal by the defendant, Thomas HcHahon, from a judgment of the supreme court, entered in Niagara county July 15, 1891, on the report of a referee.

      W. H. Hansom, for app’lt; David, Millar, for'resp’t.
   Macomber, J.

This action was upon a promissory. note for $1,000, given by the defendant as maker to the plaintiff’s testator as payee April 18, 1883. No question arises respecting the defendant’s liability thereon. The defense is a counterclaim upon unsettled partnership accounts between the defendant and the deceased during the years 1876 and 1877.

The testator, Titus S. Butler, entered the employment of the defendant, who was engaged in meat market business, in the year 1869. In the year 1876 these persons became copartners in such business and so continued until the 11th day of November, 1877, when such relations were dissolved by mutual agreement, and within a few months thereafter all of the accounts were adjusted between the copartnership and its debtors and creditors, and all of the debts of the concern were paid. After the date of such dissolution no firm business -was transacted, but on the contrary all acts of the members thereof in relation to the firm prop-, erty consisted of the collection of the debts of the firm and the division of the property of the firm. On the 25th day of November, 1877, the several members having collected various sums of money due the firm, and having adjusted their accounts between themselves, the defendant bought of Titus S. Butler, the testator, the latter’s half interest in the goods and chattels owned by the concerns, and paid him therefor in cash upwards of $1,000. At this time all matters relating to the business of the firm had been settled as between the parties, excepting certain remaining uncollected accounts due the firm. Between November 25, 1877, and February 25, 1878, by an agreement between the parties, certain accounts due the firm, amounting to upwards of $1,000, were charged to the defendant, and the proceeds thereof were received by him, and all the moneys and other assets of the firm existing at that time were settled and adjusted between the partners and divided between them according to their respective rights.

The referee has found upon ample proof that even the matter of collecting the accounts of the firm and settling the business was adjusted and practically closed in the spring of the year 1878, not later than the month of March. There remained but a few outstanding debts due the firm after that time and these were not collectible, except that in the year 1883 a demand for eight dollars was collected of one Patrick Tobin by Titus S. Butler, the testator, and on July 17,. 1883, the sum of $3.75 was collected by him on a note for upwards of sixty dollars made by one A. H. Tenbrook and given to said firm.

But these with other outstanding accounts uncollected had been considered valueless by the parties since the spring of 1878. With these trifling exceptions, all matters relating to the business concern, even the collection of the outstanding debts, were fully settled by and between the defendant and the deceased partner, and the balance paid over to and received by each party thereto.

The learned referee has further found that a period of six months from November 11, 1877, was a reasonable and sufficient time after the ending of the business of the copartnership to close up its affairs; and also that such affairs were substantially closed within that time. This conclusion, we find, rests upon a just and accurate conception of the nature of the business and the situation of the parties.

This action was begun on the 2d day of May, 1889, and the referee has found, as conclusions of law, that the claim of the defendant for these moneys collected by the deceased partner from Patrick Tobin and A. H. Tenbrook was barred by the statute of limitations. His conclusion we think is correct, whether six years limitation or ten years limitation is relied upon. Middleton v. Twombly, 125 N. Y., 520; 35 St. Rep., 856; Gray v. Green, 125 N. Y., 203; 34 St. Rep., 732; Butler v. Johnson, 111 N. Y., 204; 19 St. Rep., 85; Roberts v. Ely, 113 N. Y., 128; 22 St. Rep., 185; Mills v. Mills, 115 N. Y., 80; 23 St. Rep., 604.

The learned counsel for the appellant has, in an elaborate brief submitted by him, urged with much earnestness and skill that there were many other claims which the deceased had collected, the proceeds of which he had converted to his own use, besides those above mentioned. But an examination of the testimony in the case convinces us that the conclusion of the learned referee upon the facts is sustained by what appears tobe reliable evidence. In particular we fail to find any evidence which would have warranted the referee in reaching the conclusion that the deceased partner fraudulently concealed from the defendant the existence of funds which he had collected. The books have remained from the year 1878 in the hands of the defendant and, as we understand it, all the items contained in-the bill of particulars of the defendant’s claim, which was demanded and served, were spread upon the hooks themselves, open at all times to the defendant We have considered the numerous exceptions taken by the counsel for the defendant, but do not find in them anything which would warrant us in reversing the judgment, either upon the facts or the law of the case.

Judgment appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of Margaret Chamberlain, Ex’rx.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Executors and administrators — Accounting—Preliminary examination.
    The executrix was examined pursuant to § 2735 of the Code, and upon the hearing certain portions of such examination were introduced in evidence by the contestant. The surrogate ruled that any portion of such examination as would tend to modify, contradict or explain the portions already in evidence might be given in evidence by the executrix. Held, that" the decree of the surrogate would not be reversed for inadvertent omissions to apply practically such ruling to certain offers, where the evidence thus excluded would not have changed the conclusion upon the facts reached by him.
    Appeal by Margaret S. Chamberlain, Executrix, etc., of Julius A. Chamberlain, deceased, from portions of the decree of the surrogate of Cayuga county, dated July 24, 1891, judicially settling her accounts as executrix of the last will of Iter husband, Julius A. Chamberlain. Also, an appeal by Julius W. Chamberlain, a contestant of such account, from certain portions thereof.

      Coburn & Hunter, for Margaret S. Chamberlain, executrix, app’lt and resp’t; Fred. A. Storke, for Julius W. Chamberlain, app’lt and resp’t.
   Macomber, J.

The executrix presented- a claim against the estate of the late Julius A. Chamberlain, in the sum of $2,065.56. Of this sum the learned surrogate has allowed all except $796, which consisted of a book account, containing many small items. We have examined the testimony adduced before the surrogate in respect to the claim in its several parts, and are of the opinion that the conclusion reached by the surrogate was well sustained by the preponderance of the evidence.

A question, however, is raised by the learned counsel for the executrix, that the surrogate erred in excluding certain evidence which should lead to a reversal and rehearing of the case. Before issue was joined upon the claim personally made by the executrix, her preliminary examination was had under § 2735 of the Code of Civil Procedure. This section obviously was designed to enable parties to an accounting to subject the executor to a rigid personal examination in order to ascertain the condition of the accounts and the application made of trust property. Afterwards, and after objections to the account had been filed, the contestant, Julius W. Chamberlain, through his counsel, introduced in evidence before the surrogate upon that accounting portions of the preliminary examination theretofore taken. Thereupon, the counsel for the executrix offered other portions of such preliminary examination in evidence, and sought to examine the executrix anew in some respects. The ground of the error claimed is, that the surrogate refused to admit certain portions of such preliminary examination which tended to explain other parts thereof already put in evidence by the contestant, and to exonerate, to some extent, the executrix from any blame in the management of the estate. On inspection of the record, however, it is found by us that the surrogate ruled consistently, that any portion of such preliminary examination as would tend to modify, contradict or explain the portions already put in evidence by the contestant might be given by her, and to this ruling he adhered consistently throughout the whole trial, which was somewhat protracted. If there have been any inadvertent omissions to apply practically such ruling to the many offers contained in the case, they are not of sufficient moment to lead to a reversal of the decree. On the contrary, under the obligation imposed by, or which may be assumed by us under § 2586 of the Code of Civil Procedure, we have examined these parts of the preliminary testimony so thrown out by the surrogate, and, from such examination, we are of the opinion that there was nothing which was excluded therefrom by the surrogate which would have changed in any respect the conelusion upon the facts reached by him. We think, therefore, that the decree should be affirmed.

Decree of the "surrogate of Cayuga county appealed from affirmed, without costs of this appeal to either party.

Dwight, P. J., and Lewis, J., concur. ■


text:
    William H. Ketchum, App’lt, v. Eugene E. Lewis, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Pleading—Pabtnebship accounting.
    The complaint alleged that a partnership existed between the partners; that no settlement had been had; that a certain sale of the partnership goods made by defendant was fraudulent and asked for an accounting; that the joint property be sold, debts paid and the surplus divided; that said s de be adjudged void as to plaintiff and that defendant be required to account for the value of the property so sold and for property sold by plaintiff to defendant, which in fact was partnership property which defendant had taken with plaintiff's consent. Held, that these allegations related to the joint dealings of the parties and constituted but one cause of action, viz., for an accounting of the partnership transactions.
    Appeal by the plaintiff, William Ii. Ketchum, from an order made at the Yates special term on the 5th day of November, 1891, and entered in Yates county on the 1st day of December, 1891, directing that the complaint herein be made definite and certain, and that each cause of action as set forth therein be separately stated and numbered.

      Briggs & Sunderlin, for app’lt; M. A. Leary, for resp’t.
   Macomber, J.

The learned justice at the special term was of the opinion that the complaint in this action contained three separate causes of action, namely, one for damages for fraud in inducing the sale of certain property to one Hopkins; 2, a cause of action for lumber sold and delivered by the plaintiff to the defendant; and 3, a cause of action for an accounting for the lumber owned jointly by the parties. The court was further of the opinion that the action for damages and that for the sale of lumber were common law actions, and hence triable by a jury, while that for a general accounting between the plaintiff and the defendant was triable before the court as an equity action. It also directed that these several causes of action be separately stated.

In these conclusions, however, we are unable in this instance to concur with the learned justice. It seems to us from an inspection of the complaint that there is but one cause of action set forth, and that is, that the plaintiff and defendant had had. dealings as copartners in somewhat extensive transactions, and that upon an accounting it would be shown that the defendant was indebted to the plaintiff in a considerable sum of money. The complaint avers that no settlement had ever been had between the parties as copartners in respect to their dealings. The prayer of the complaint is for an account to be taken of all the dealings and transactions from the commencement of the copartnership, and of the moneys received and paid out by the plaintiff and defendant respectively, in relation to such copartnership; that the property remaining unsold and undisposed of belonging to the plaintiff and defendant should be sold ; that all debts contracted by them in carrying on their joint business be paid and the surplus, if any, be divided between the parties according to their respective rights and interests; that the sale to Hopkins be declared null and void as against the plaintiff, and that the defendant be adjudged and required to account for the full value of the property alleged to have been fraudulently sold by him. to Hopkins, and that a receiver be appointed, etc.

We do not find in the complaint any allegation which does not relate to the joint dealings of the plaintiff and the defendant. The facts stated all appertain to" the business transactions of the parties, and constitute but one cause of action under subd. 9, § 484 of the Code of Civil Procedure. The allegation in the complaint respecting a fraudulent sale by the defendant to one Hopkins of a portion of the lumber which was owned in common, is not a separate cause of action within the meaning of the provisions of the Code of Civil Procedure, because it is not sought thereby to set aside such a sale (Hopkins not being made a party), but to declare that the plaintiff should be relieved from his assent to such sale procured through the false representations of the defendant, and that the defendant be required to account for the actual value of the property sold to Hopkins, rather than for the money actually received from him.

As was said by the court in the case of King v. Barnes, 109 N. Y., 290; 15 St. Rep., 52 : “But we know of no rule of .law requiring that charges of fraud, incidentally arising upon an accounting with reference to partnership transactions, shall be tried by a jury. It has been the invariable rule of courts of equity to try all questions arising before a referee in the stating of accounts between partners or joint owners, and necessarily involved in such accounting since their origin, and we are referred to no authority questioning their power to do so.” This authority is sufficient warrant for our position upon that part of the decision appealed from which holds that the allegations in respect to the sale to Hopkins rendered that portion of the case one to be tried by a jury.

ín respect to the charge in the complaint touching the sale by the plaintiff to the defendant of certain quantities of lumber, it is sufficient to say that the lumber in question appears to have been the joint property of the plaintiff and the defendant, and that the same was turned over to the defendant by the consent of both parties. It is spoken of in the complaint, it is true, as a sale by the plaintiff to the defendant; andina certain sense it was a sale. The defendant had no right to take into his own possession and control this property without the consent of the plaintiff.

We see in the complaint but one cause of action, and that is for an accounting between the partiSs of their copartnership transactions. It follows, therefore, that the order appealed from should be reversed.

Order appealed from reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Dwight, P. J., and Lewis, J., concur.


text:
    May Ensign, Adm’rx, Resp’t, v. Thomas Dickinson, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Pleading—Sufficiency of complaint.
    The complaint in this action alleged that defendants presented to the executor of plaintiff’s testator a claim for goods sold and work, duly-verified, upon which the executor made a payment; that each of the items of said claim were charged on defendant’s books to one M., and none were charged to deceased; that defendants have presented a claim for the same identical claim to, and have brought action against said M. thereon, and on the trial of the action testified that said indebtedness was never owing by deceased, but was due from M., and that none of such goods were in fact sold to deceased, and demanded judgment for the amount so paid by the executor. There was no allegation as to which of the oaths imputed to defendants was true, or that plaintiff’s testator was not liable for so much of the account as was actually paid, nor any allegation of fraud or mutual mistake. On demurrer, Held, that the complaint was insufficient, as stating only evidence and not facts.
    Appeal by the defendant, Thomas Dickinson, from an interlocutory judgment, together with an order directing such judgment, entered on the 21st day of December, 1891, overruling his demurrer interposed to the complaint upon the ground that the complaint did not state facts sufficient to constitute a cause of action.

      Seward A. Simons, for app’lt; Adelbert Moot, for resp’t.
   Macomber, J.

The learned justice at special term, in overruling the demurrer to the complaint interposed by the defendant Thomas Dickinson, while criticising the allegations as inartistic and incomplete, has found means of sustaining the pleading as against the demurrer. He was of the opinion that the remedy, if any, which was available to the defendant, rested in a motion, either to strike out allegations in the complaint, or make that pleading definite and certain.

It seems to us, however, that if the matters contained in the complaint which the learned justice below regarded merely as evidence to be adduced in the case were struck out, there would remain no allegation which would entitle the plaintiff to any relief. This, we think, will clearly be seen by an inspection of the complaint itself. That pleading contains suitable allegations showing the death of one Charles Ensign on December 3, 1880; the admission of his last will to probate and the issuing of letters testamentary to the executor named therein, one George W. Holt; the removal of such executor and the superseding of his letters, and the appointment of this plaintiff as administratrix with the will annexed in his stead. It further alleged that .while George W. Holt had charge of the decedent’s estate as executor, a claim of $2,674.75 was presented to him in his representative capacity, for goods sold to his testator in his lifetime and for work; that the claim was duly verified by the defendants as true and correct and unpaid ; that no offset or counterclaim existed against it in favor of the estate; that the same was unsecured; that the executor thereafter, upon examination of the account and the proofs attached, believing and relying upon the statement and Tepresentation made by the defendants, and believing that such claim was just, allowed it, and paid thereon to the defendants the sum of $1,337.38 on the 26th day of June, 1882.

The complaint further alleges, “that each and every of the items set forth in their pretended claim and demand, so by said defendants presented to said executor, were entered in their books of account at the dates of such sales respectively, as sales made to and services rendered for one Mary A. Ensign, and that not a single item thereof was entered in such books as being sold to or rendered for said deceased, and that the defendants, since the said payment to them as aforesaid,-by said executor, to apply on such claim and demand, have presented the same identical- claim and demand to the said Mary A. Ensign, verifying the correctness, thereof, as being an individual debt owing by her, by their respective oaths, taken on the trial of an action brought by them against her in the superior court of Buffalo, by testifying on such trial that such pretended indebtedness never was an indebtedness owing by said deceased, but that it was an individual and sole indebtedness of said Mary A. Ensign to them, said defendants, and that none of the goods, wares and merchandise stated in such claim made by them against the estate of said deceased were, in fact, sold by them to the deceased, and that none of the items thereof for work and labor, as so rendered tosuch executor, were in fact rendered for said deceased, and that said deceased did not, and never did, owe said defendants any sum or portion of such claim or demand so presented by them to said executor, as hereinbefore stated; that the said executor was not acquainted with such matters and facts when he paid such sum of $1,337.38 to the defendants, as above alleged, and same were not discovered until long after such payment, to wit, until about the month of February, 1885. That said defendants are indebted, by reason of the premises, to the plaintiff as such administratrix, etc., as aforesaid, for such moneys so had and received by them, to and for the use .of said estate of said Charles Ensign, in the sum of $1,337.38, together with interest thereon from July 26th, 1882.”

It is thus seen that the only allegation against the defendants, for which a money judgment is asked, is that a verified account was presented to the executor and was allowed and in part paid by him. That the same account was afterwards presented to one Mary A. Ensign as her individual indebtedness; that the same stood against her alone upon the books of the defendants, and that this, too, was properly fortified by the oaths of the defendant given in court. The complaint lacks any allegation showing which of the oaths imputed to the defendants was true and which was false, and thére is an entire omission to allege that the plaintiffs testator was not liable to the defendants for so much of the account as was actually paid by the executor. Furthermore, there is no allegation that the defendants have committed any fraud, nor is there any allegation of a mutual mistake made which should entitle the plaintiff to relief.

The portion of the complaint above quoted consists of an aliegation of evidence which might be adduced upon the trial of the case if properly presented. They are not allegations which are susceptible of an issue of fact on the question of indebtedness. We see'nothing in this pleading which calls upon the defendant to answer.

Under our system of pleading evidence should not be spead upon the record, but facts only, which are the realities of evidence, should be alleged, and unless these appear in the complaint, we are of the opinion that the demurrer, interposed upon the ground that the complaint does not state facts sufficient to constitute a cause of -action, is well taken. It follows that the interlocutory judgment appealed from should be reversed.

Interlocutory judgment and order appealed from reversed, with costs of the demurrer and costs of this appeal; with leave to the plaintiff to amend her complaint in twenty days, on payment of such costs.

Dwight, P. J., and Lewis, J., concur.


author: Freedman, J.

text:
    Mary N. Townshend, App’lt, v. Ellen L. Thomson et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Ejectment—Title—Assignee in bankruptcy—Foreclosure.
    In an action of ejectment it appeared that at the time of a foreclosure under which defendants claimed title, the owner was a bankrupt and that neither the bankrupt nor his assignee were made parties; that subsequently an action was brought by the administrator of the mortgagee, who was the purchaser, against the wife of the bankrupt and his assignee individually, to foreclose said mortgage against them and a, sale had. Held, that the title of the assignee was not divested thereby, as it was not brought against him nor did he appear therein in his representative capacity.
    A Same—Prior sale.
    Plaintiff claimed under a.deed from the assignee given in 1869. It appeared that he had given a prior deed in 1846 to one who presumably conveyed to said mortgagee. Held, that he had thereby divested himself of the title and had none left to convey in 1869.
    8. Same—Adverse possession.
    Plaintiff repaired the curb and gutter in front of the premises and leased them to a tenant who occupied for four years and then retired peaceably, disclaiming any right to hold as against these defendants. Meld, that this did not constitute adverse possession on plaintiff’s part.
    4. Same.
    Defendants, who are subsequent grantees by mesne conveyances from said mortgagee, are subrogated to his rights as mortgagee in possession, so> that an action of ejectment could not be maintained against them, and plaintiff’s remedy, if any, is in equity.
    Appeal from judgment entered in favor of the defendants upon a dismissal of the complaint at the trial.

      John Townshend, for app’lt; Foster & Thomson, for resp’ts.
   Freedman, J.

This is an appeal by the plaintiff from a judgment entered upon the dismissal of the complaint at the trial.

The action is brought by the plaintiff upon the claim that on June 1, 1887, she was seized of an estate in fee and was lawfully in possession of the premises in suit, consisting of a lot on the southwest corner of One Hundred and Seventeenth street and Eighth avenue in the city of ¡New York, and that while plaintiff' was in such lawful possession on that day the defendants unlawfully entered upon the premises and ejected the plaintiff therefrom,, and have ever since withheld possession from the plaintiff, wherefore plaintiff demands judgment that she recover possession, etc.

The answer admits that the defendants at the time alleged were and still are in possession, and that they withheld and do withhold possession from plaintiff, and alleges that the defendants have' been and are lawfully in possession, and denies the other allegations of the complaint.

Upon the trial before a judge of this court and a jury the substantial facts proved were as follows:

The premises in question with other property were owned in 1885 by one Edward Price. His title is admitted by both parties, to have been good. He became seized of the premises in 1827.
In 1835 Edward Price conveyed the premises by deed to John Scudder, taking from Scudder a purchase money mortgage thereon.
In 1838 John Scudder conveyed to Ebenezer L. Williams.
In 1843 Ebenezer L. Williams, while the owner of the premises, was adjudicated a bankrupt upon his own petition under the act of 1841, and .William C. H. Waddell was duly appointed his assignee.
In 1845 a bill was filed by Edward Price to foreclose the purchase money mortgage made by Scudder, and in 1846 a decree of foreclosure and sale was entered, the premises sold and conveyed by deed of the master in chancery to Edward Price. But neither Williams nor Waddell were made parties to the foreclosure.
In 1855 Edward Price died intestate, leaving him surviving as his only children and heirs-at-law Artemas M. Price, Edward H. Price, James C. Price, Andrew J. Price, Julia Ann Coulter and Sarah M. Coddington.

In February, 1858, Artemas M. Price and Caroline, bis wife, filed a bill against the other children and heirs-at-law of Edward Price for a partition of the premises in question with others. Decree was entered and the premises sold, but no conveyance was made.

In December, 1858, for the purpose, as may be assumed, of clearing the record title and foreclosing the rights of Williams assignee and the dower rights of Williams’ wife, a bill was filed by William Coulter, as administrator of Edward Price, against Rhoda Williams and William C. H. Waddell, alleging the execucution of the mortgage, that Waddell had become seized of the interest of Scudder in the premises, the previous foreclosure suit of Price against Scudder, and asking for a decree of foreclosure and sale. Waddell appeared in the action, and on the consent in writing of his attorney a decree of foreclosure and sale was entered, and the premises were sold thereunder and bought by Julia Ann Coulter, and conveyed to her by the referee by deed dated January 28, 1859. But this foreclosure and sale were not effectual for the purpose of divesting the title of Waddell as assignee of Williams, if any was left in him, because the suit had proceeded against him individually, and not in his representative character as assignee, and he had not appeared therein in his representative character. This has been decided in Landon v. Townshend, 112 N. Y., 92; 20 St. Rep., 223.

Julia Ann Coulter, by various conveyances, acquired all the interest of all the other heirs at law of Edward Price, and thereafter, viz., in April, 1863, she and her husband conveyed the premises in question to Timothy Donovan; in May, 1863, Donovan conveyed to Adams; in 1864, Adams conveyed to Whitbeck; in 1867, Whitbeck conveyed to Andrew ; in 1868, Andrew and wife conveyed to William Thomson, by deed dated March 9, 1868.

William Thomson died seized of the premises in question January 18, 1872, leaving him surviving his widow, Ellen L. Thomson, and John W. Thomson, William A. Thomson and Ernest A. Thomson, his only children, who are defendants in this action and who, upon the death of William Thomson, became and still are seized of all the right, title and interest in the premises which the said William Thomson had in his lifetime.

William Thomson paid all the taxes and assessments imposed upon the premises from the time of his purchase until his death, and his executors and the defendants have paid all taxes since that time.

When the premises were sold and conveyed to Edward Price in 1846, under the decree of foreclosure and sale in Price v. Scudder. Price at once took possession under the master’s deed, and maintained his possession continuously down to his death in 1855, and his heirs and their grantees have continued in possession from that time down to the present, unless the proof offered by the plaintiff established the contrary.

The burden was upon the plaintiff to prove the allegations of her complaint, and she can recover only on the strength of her own title or of her own right to immediate possession.

The title claimed by the plaintiff rests, 1st, upon an instrument in the form a conveyance by William 0. H. Waddell, as assignee of Williams, to George Law, executed March 1, 1869, and 2d, upon an instrument in the form of a quit claim deed, executed by Law to the plaintiff in this action January 10, 1873.

Of these two instruments that executed by Law was, under the evidence in the case, absolutely void under the statute as against the defendants because given while the property was in the possession of a person claiming under a title adverse to that of the grantor.

Moreover Waddell, as assignee, had no title or estate left in 1869 which he could convey, and no order of the court authorizing or directing him to convey could invest him with a title or an estate if he had none. He had divested himself of all title and estate he ever had twenty-three years before the attempted conveyance to Law. On February 8, 1845, he filed a report as assignee in which he reported that certain assets of Williams, among which the premises in and some adjoining erty which may be styled the Landon property were enumerated, were “ in his opinion of uncertain value, and ought to be disposed of at once without incurring further expense or delay respecting them.” In due course of proceedings the premises in suit, including the Landon property, were thereafter sold by him as assignee at auction, March 23,1846, for a small sum, and in his account of the assets and sales of property of Williams, which is in the custody of plaintiff’s attorney, the assignee charges himself with the amount as received on the sale of this property. There is a very great probability that the person who purchased at this sale subsequently conveyed his interest to Edward Price, who was then in possession of the premises under the sale on foreclosure in Price v. Scudder, but, at all events, Waddell, as .assignee, was absolutely divested of all interest in or control of the property and absolutely divested of the right to sell the same a second time. This being so, it is not necessary to determine whether the second sale in 1869 was or was not produced by fraud practiced upon the court.

A further consideration is that the only interest Waddell ever had in the premises was as the assignee of Williams in bankruptcy, and that, independently of the sale of 1846, that interest, under the authorities cited by respondents’ counsel, before the time of the attempted sale in 1869, may be deemed to have reverted to the bankrupt or his heirs, the purposes for which the assignment had been created having expired, the bankrupt having been duly discharged in 1843 and no debts having been proved against his estate prior to 1869. The alleged debt advanced by Yard, the receiver, in 1869 was barred by the statute of limitations, and, being so barred, the assignee could not for his own purposes create a liability of the estate where none existed.

The proceedings in the superior court and in the United States district court brought by plaintiff to bolster up the alleged title which came through Waddell, as assignee, do not bind the defendants in this action, because they were not made parties to the proceedings.

It having been sufficiently shown that the plaintiff could not at the trial succeed upon the strength of her record title, it remains to be seen whether she established a right to possession superior to that of the defendants.

It was shown that in 1875 the plaintiff caused a board fence to be built around the premises; but it was also shown that the fence disappeared about one year thereafter. The effect of the building of this fence was fully considered by the court of appeals in Landon v. Townshend, 41 St. Rep., 419, and the decision was adverse to the plaintiff now here.

It was further shown that in 1878 the plaintiff repaired the curb and gutter stones in front of the premises. As this involved not even an entry, it is not evidence of adverse possession.

And finally it is claimed that in 1883 the plaintiff leased the whole plot, consisting of the premises in sure and the Landon property, to one Wieck, who occupied the lot in suit for about four years. The lease was never recorded, and it was not shown that the defendants ever had any notice of it, but it was shown by one of plaintiff’s own witnesses that Wieck’s retirement from the possession of the premises was peaceable, and that he disclaimed any right to occupy the premises as against the defendants.

Upon the whole case the plaintiff wholly failed to establish title in herself by adverse possession, or any right to possession superior to that of the defendants.

There is still another aspect of the case. The defendants are in, possession, and have at least the rights of mortgagees in possession. Upon the sale under the first foreclosure of Price v. Scudder, the premises were bought by Edward Price, who immediately entered into possession. Though the foreclosure was defective, the mortgage was good, and Price became at least a mortgagee in possession. He was expressly authorized by the terms of the mortgage to take possession on default, and the presumption is warranted that he went into possession with the consent of the mortgagor. That he continued in possession until June 26, 1855, the date of his death, is admitted in the brief of the attorney for the appellant. The defendants, claiming under Edward Price by mesne conveyances, became subrogated to the rights of Price as mortgagee in possession. The master’s deed on foreclosure passed to the purchaser the mortgagee’s right to the debt, and the mortgage security, and the defendants are entitled to all the rights of Edward Price in the premises as well by virtue of his possession as mortgagee as by viitne of the conveyance from the master. For these reasons ejectment will not lie against the defendants. The remedy of the plaintiff was in equity.

The exceptions taken by the plaintiff in the course of the trial require no specific discussion, because they do not affect the final result.

In every aspect, therefore, that can be taken of the case as made by the plaintiff, the complaint was properly dismissed.

The judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.


text:
    William E. Coffin et al., Resp’ts, v. The Prest., etc., of The Grand Rapids Hydraulic Co., App’lt. (3 cases.)

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Bills and notes—Burden of proof.
    Where the answer admits the making of the note in suit, but alleges-that it was made pursuant to certain agreements which were not set out in the complaint, the burden of proving such agreements is upon the defendant.

      2. Same—Collateral—Agreement as to substitution.
    One of such agreements gave the defendant liberty to substitute as collateral a certain new contemplated issue of bonds. Held, that the execution of the new mortgage and issue of the new bonds was a condition precedent to such substitution, and as neither had been made or issued, the covenant never became the subject of default on plaintiff’s part.
    3. Same—Covenant as to unity of action.
    A covenant in such agreement that in a certain event the members of a syndicate should act as a unit is abrogated by the withdrawal of a member of such syndicate and the transfer of his interest to one who is hostile to the interests of the other members.
    ■4. Same—Pleading.
    Allegations of an answer that the plaintiffs have wrongfully brought the action in violation of their written agreement and in violation of the spirit, terms and conditions of said other agreement, and that defendant fully carried out and performed all the portions and parts of the agreement thereto annexed binding or obligatory upon the defendant, but that plaintiffs failed to perform and carry out the parts obligatory and binding on them, are mere conclusions of law.
    -5. Same—Pleading—Admissions.
    Where the instrument is sued upon as a promissory note, which fact is not denied by the answer, this constitutes an admission which concludes the defendant from afterward claiming that it was not a promissory note, but a conditional agreement for the payment of money.
    •6. Appeal—Waiver oe objections.
    An objection that the collateral should have been returned before suit brought on the note cannot be taken for the first time on appeal.
    7. Parties—Trustees op express trust.
    Persons to whom a note is payable as agents may maintain an action thereon where the contract was made in their own names.
    Appeals from judgments entered on verdict directed by the court.
    There are three actions, the facts in each of which are similar, ■except as to date of the obligation, time when due, amount and parties plaintiff, so that the questions involved in the three cases may be disposed of by the decision of one. The trial judge directed verdicts in favor of the plaintiffs. In the first action for $88,096; in the second for $34,860, and in the third for $1,985.40. The defendant appeals from the judgments entered on the verdicts and from orders denying motions for a new trial. The opinion will be directed to the facts presented by the record in the first action, as the disposition made of that disposes of the other two appeals.

      F. R. Coudert, David Keane and E. T. Lovett, for app’lt; Norwood & Coggeshall, for resp’ts.
   McAdam, J.

The issues were simple enough, and the complications attempted to be interjected into the case arise from an effort on the part of the defendant to litigate questions not raised by the pleadings nor germane to the controversy before the court. This circumstance requires us to state the issues raised, that the propositions involved maybe intelligently understood.

The complaint alleges three causes of action, each based upon .-a promissory note.

The copartnership of the plaintiffs as bankers in the city of New York, under the firm name of Coffin & Stanton, was alleged and admitted by non-denial. The complaint then alleged that the defendant was and is a foreign corporation, duly incorporated under the laws of the state of Michigan, and that its principal place of business is at Grand Rapids, in that state. These allegations were also admitted by non-denial. Then the complaint alleges, as the first cause of action, that on or about the 15th day •of May, 1889, the defendant, at the city of New York, made its certain promissory note in writing, whereby it promised, one year after date, to pay Coffin & Stanton, agents, etc., (the plaintiffs) or order, the sum of $30,000, with interest at six per cent per annum, and that the defendant duly delivered said note to the plaintiffs.

The amended answer expressly admitted the making of the note described in paragraph fourth of the first cause of action,” but alleged as new matter that the same was made and delivered pursuant to an agreement between the plaintiffs and defendant April 12, 1889, known as the “ syndicate ” agreement, a copy of which is annexed to and made part of the answer.

The amended ahswer then alleged that .the note was not delivered to the plaintiffs other than as copartners or members of a ■syndicate as mentioned and set forth in said agreement and that the plaintiffs are not entitled to maintain this suit on said note for the reason that the same has been satisfied and paid, and should be delivered up and canceled to the defendant, and that the said note was not made otherwise than under the said agreement, and that it was only delivered to the plaintiffs under and pursuant to the terms of said agreement thereinbefore referred to. The complaint contained similar allegations as to the second and third causes of action. The admissions, denials and new matter in the defendant’s amended answer relating to the second and third causes of action are the same as those affecting the first cause of action.

The amended answer then alleges additional matter by way of defense to the several causes of action, reiterating the defense of payment and satisfaction, and further stating that the plaintiffs, by an instrument in writing bearing date June "11, 1890, known as the “ bondholders ” agreement, agreed to surrender and cancel said notes, and were given and allowed full satisfaction and payment therefor pursuant to such agreement, but they had failed, neglected and refused to deliver the notes and had wrongfully brought this action in violation of the terms and conditions of said •agreement, a copy of which is also annexed to and made part of the answer.

The amended answer then alleges that the defendant fully carried out and performed all the parts of the “ syndicate agreement ” binding or obligatory upon the defendant up to the date of the ■commencement of the action, but that the plaintiffs herein failed to perform and carry out the parts of the agreement binding and obligatory upon them, to the damage of the defendant, etc.

As an offset and counterclaim, the amended answer further alleges that pursuant to the syndicate ” agreement and the bondholders ” agreement, the plaintiffs became bound unto and liable to the defendant to account for the funds and property of this defendant in the hands of the plaintiffs to the value of upwards of $60,000; that plaintiffs, although the defendant has duly demanded such accounting, have failed and neglected to make the same or cause the same to be made; that on such accounting the plaintiffs should be adjudged and ordered to deliver over to the defendant herein the notes sued in this action and such cash and bonds received by the plaintiffs and withheld from this defendant after demand as may be found or decreed to be in the hands of or withheld by the said plaintiff from this defendant These allegations were controverted by the reply.

The amended answer also alleged that by reason of the failure of the plaintiffs to carry out their part of the “ syndicate ” agreement, the defendant had suffered loss, damage and expense, for which the plaintiffs are liable to the defendant under said agreement and under the “bondholders” agreement. This matter was controverted by the reply. Judgment was prayed for dismissing the complaint, for an accounting, and for whatever might be found due upon such, accounting, and for sixty thousand dollars damages.

The plaintiffs proved the interest on the several notes, and rested their case. The defendant then moved to dismiss the complaint, on the ground that the execution of the notes sued upon was not proved. The court inquired if the defendant did not admit the making of the notes, to which the defendant’s counsel replied, that it admitted the notes were made subject to the two» agreements mentioned, and the court properly held, that as they were not referred to in the complaint, but were pleaded in defence, the onus of proving the agreements was on the defendant

The defendant then offered in evidence the “ syndicate ” agreement. Its execution was admitted, but it was excluded for the reason that it contained nothing that operated as a bar to the action, and was therefore immaterial. The “bondholders” agreement was next offered in evidence, and excluded as irrelevant and immaterial, and as not- sufficiently proven. These rulings were proper.

First. As to the syndicate agreement. The parties thereto are the defendant company on the one part, and a syndicate, composed of the plaintiffs, together with Stanton D. Loring of Boston; Wood-bury & Moulton of Portland, Me.; Elliott, Johnson & Co., of Wilmington, Del.; and Duncan F. Cameron of New York, of the second part. The agreement was not merely joint as to the syndicate, but several “ for the respective interests or amounts for which they (the members) severally signed their names.”

The syndicate agreed to loan the defendant $100,000 on its notes as specified therein. The ncites in this and the two other suits are the notes given on the loan, and aggregate the entire amount thereof. There is no claim that the moneys thereon were not advanced, nor the sums claimed actually due, if the terms of the notes are to control the time of payment. That they were to control (subject to certain contingencies that have not happened) is apparent. The agreement provides that the notes are to run “ one year ” at six per cent interest, with $200,000 par value of the bonds of the company attached thereto as collateral. The notes were the principal obligation, the bonds merely incidents in the nature of security for their payment.

The defendant had the liberty of'substituting as collateral for the notes a certain new contemplated issue of bonds, and the syndicate was to take such new issue, and pay for the same at ninety cents on one dollar, at or before the maturity of the loan. This portion of the agreement did not become operative, because the new mortgage was not made, nor the new bonds issued, so that this phase of the case need not be pursued. So with other provisions of the contract which require no special reference. They are not in the nature of conditions precedent on the part of the syndicate, for they depended on the prior performance of certain duties by the defendant, which formed the executory consideration for the acts the syndicate was to perform; and the failure of the defendant to execute such prior duties relieved the syndicate from fulfilling the promises which made it dependent on such performance. The law in this regard is settled.

There are covenants which are conditions and dependent, in which the performance of one depends 'upon the prior performance of another, and until this prior condition is performed the other party is not liable to an action on his covenant. The dependence or independence of covenants is to be collected from the evident sense and meaning of the parties, and however transposed they may be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance. Addison on Cont., 2d Am., from the 4th Eng. Ed., 865. “In all executory contracts,” observes Holt, G. J., “ if the agreement be that one shall do an act, and for the doing thereof the other shall pay, the doing of the act is a condition precedent to the payment, and the party who is to pay shall not be compelled to part with his money till the thing be performed for which he is to pay.” Thorpe v. Thorpe, 1 Salk., 171. And, therefore, if two men should agree, one that the other should have his horse, the other that he will pay him ten pounds for it, no action lies till the horse be delivered. Id.; Peeters v. Opie, 2 Saund., 350. Tested by these rules, it is evident that the execution of the new mortgage and issuing of the new bonds by the defendant was to precede any duty or liability on the part of the plaintiffs or the syndicate to do any act concerning them ; and as neither was made nor issued, the covenant of the syndicate concerning them, never became the subject of default on the part of the plaintiffs, or any other member of the combination. See Dunham v. Mann, 8 N. Y., 513.

The plaintiffs were not the disbursing agents of the defendant, but of the syndicate. They were to get in the necessary contributions from members, and pay the moneys over to the defendant, and that they performed this duty is evidenced by the promissory notes, which are the written acknowledgments for the money. The amount paid over by the plaintiffs to the defendant became its property as soon as it entered the treasury of the company, and the duty of disbursing such funds within the restrictions imposed by the agreement devolved upon its officers.

There was no breach of condition dr duty by the plaintiffs, and no default by them, and consequently no reason why they should not be allowed to enforce the obligations owned by them, or why they should be held to have incurred any present liability to the defendant.

Ho evidence was given in support of the defendant’s counterclaim, and no legal basis for its existence appeared in any form.

The defendant lays great stress upon the clause in the “ syndicate ” agreement, that “ in the event of the non-purchase of the water works system of the city of Grand Rapids, Mich., and nonpayment of the note by the Grand Rapids Hydraulic Company,, or its assigns, then the syndicate shall act as a unit for their mutual interests.”

The purchase was not made,' and the defendant urges that the loans could be enforced by the syndicate only after all the members thereof had voted to enforce them, and that there was a want of unanimity, becauses Moses R. Crow, who succeeded to-the interest of Duncan F. Cameron in the syndicate, opposed the enforcement thereof. Crow was the president of the defendant' company, and his interests, like those of the corporation he represented, were antagonistic to the syndicate. It is but reasonable to hold that the provision requiring the members to act as a unit in certain contingencies does not mean that one member of it may transfer his interest to a hostile party and thus prevent unanimous action. To decide otherwise would be to permit the president of the defendant company to postpone the payment of the notes in suit until such time as he (Crow) saw fit to permit their enforcement.

The unity of interest for concerted action was destroyed when Cameron, who was disinterested, went out, and Crow, who was-interested and hostile, came in. The other members of the syndicate could not be expected to consult him as to their interests, when they knew in advance that his advice and judgment were biased by interests hostile to their own. The compact as to mutual advice and united action was by the withdrawal of Cameron abrogated or changed to such an extent at least that Crow, representing the adverse interest, could neither dictate nor control the action of the other members of the syndicate.

The trial judge properly held that the “syndicate ” agreement was not a bar to the action, that unanimity of purpose was no longer necessary, and though, perhaps, in a sense relevant to the issues, the agreement was immaterial as matter of defense, and refusing to admit "it in evidence in no manner prejudiced the. defendant.

Next, as to the “ bondholders agreement. This was offered in evidence by the defendant and excluded. It was not executed by the defendant, was not sufficiently proved to have been executed by all who purported to have subscribed it, and by its terms it was not to become binding until it was signed by all the bondholders, and until all the bonds and past due coupons were delivered and deposited as therein provided, and there was no proof or offer to prove that these pre-requisites to a binding contract had been complied with. The evidence (both documentary and oral) excluded by the trial judge would not have altered the result if it had been admitted. No error was committed in its exclusion. The defendant was technical at the trial in regard to the plaintiffs' proofs and their right to maintain the action, and the plaintiffs in turn were equally fastidious about the defendant’s mode of pleading, and insisted upon the rule that a defendant cannot avail himself at the trial of a defense consisting of new matter not pleaded, Code, § 500, subd. 2, and claimed that the allegations in defendant’s amended answer that plaintiffs “ have wrongfully brought this action in violation of their written agreement and in violation of the spirit, terms and conditions of the said other agreements hereininbefore mentioned, etc.,” and the- further allegation “ that the defendant fully carried out and performed all the portions and parts of the agreement thereto annexed, binding or obligatory upon the defendant, up to the date of the commencement of this action, but that plaintiffs herein failed to perform and carry out the parts and portions of the said agreement, binding and obligatory upon them, to the damage of this defendantall were conclusions of law ; no facts having been pleaded tending to show a breach of the agreement by the plaintiffs. L. S. D'Arles v. Freedman., 53 N. Y. Super., 518; Knapp v. City of Brooklyn, 97 N. Y., 520, 523; Van Schaick v. Winne, 16 Barb., 89; Butler v. Viele, 44 id., 166, 169; Chauvrant v. Maillard, 4 N. Y. Supp., 126; Jennings v. Grand Trunk Railway Co., 52 Hun, 227, 232, 233; 23 St. Rep., 15; aff’d, 127 N. Y., 438; 40 St. Rep., 318.

The defendant’s amended answer is open to the criticism made, and to the objection sustained by the cases cited. The defendant now insists that the obligations sued upon were not promissory notes, but conditional agreements for the payment of money. The complaint declared upon them as promissory notes, and the amended answer did not dispute the allegations in that regard. The admission concluded the defendant. Code, § 522. The obligations were offered in evidence by the defendant, but no point was made that the securities should have been tendered before suit brought. That objection might have been obviated then and cannot be urged for the first time upon appeal. Devoe v. Brandt, 58 Barb., 493; Newton v. Harris, 6 N. Y., 345; Binsse v. Wood, 37 id., 526; Jencks v. Smith, 1 id., 90; Lewis v. Ryder, 13 Abb. Pr., 1; Ferguson v. U. S. L. & I. Co., 33 St. Rep., 425. But, aside from this, the defendant on paying the judgment will be entitled as of right to the collaterals given to secure the debt, and in no ■event would the defendant have been entitled to the securities until it tendered payment of the debt.

The plea of payment and satisfaction set up in the answer was unproved, and apart from the complications and technicalities imported into the case by the defendant, there does not seem to have been a shadow of defense established.

The objection that the plaintiffs could not maintain the action is untenable. The obligations sued upon, according to the complaint (and not denied by the answer), were absolute promises to pay to “ Coffin & Stanton, agents,” etc. (the plaintiffs), at times stated, specific sums of money, and according to the instruments themselves they were promises to pay to them, in manner aforesaid, upon the return of the securities deposited as collateral. See Oatman v. Taylor, 29 N. Y., 649. If the action was not maintainable by the plaintiffs, as the real parties in interest, it was certainly maintainable by them as trustees of an express trust, for the contracts were made in their name. Code, § 449; Considerant v. Brisbane, 22 N. Y., 389; Slocum v. Barry, 34 How. Pr., 320; Hutchins v. Smith, 46 Barb., 235.

If the defendant intended to raise the objection that the plaintiffs were not the real parties in interest, it should have been, pleaded in defense. Savage v. Com. E. F. Co., 4 Bosw., 15, 16; Hammond v. Earle, 58 How. Pr., 438; White v. Drake, 3 Abb. N. C., 134. A number of the rulings excluding testimony are sustained by the disposition we have made of the “ syndicate ” and' “bondholders” agreements, some because facts were not pleaded making the proof competent, others because the questions attempted to prove facts which according to the legal rights of the parties under the obligation sued upon and the agreements aforesaid, as we have interpreted them, were immaterial. It is not necessary to review these rulings in detail, as it would lead to useless repetition.

The defendant, appreciating the defective condition of the amended answer for the purpose of raising the questions it undertook to litigate, moved to amend it, but the trial judge in the exercise of judicial discretion refused to allow the amendment proposed. The discretion was not abused, and therefore the ruling, cannot be assigned as ground of reversible error. We have examined the record with the aid of the elaborate briefs of counsel,, and find no error that requires a new trial.

There was no real, substantial or meritorious defense to the action, and the verdict directed merely gives effect to the legal rights and obligations of the parties. It follows that the judgment entered on the verdict and the order denying the motion for' a new trial must be affirmed, with costs.

Sedgwick, Ch. J., concurs.


author: Per Curiam.

text:
    Frazier M. Dolbeer, App’lt, v. John Stout, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Stay—When will be granted.
    Where it appears that the claim in suit was set up as a cross demand in a suit previously brought by defendant in another court, in which entire relief may be awarded, a stay until the trial of the prior action is proper.
    Appeal by plaintiff from order staying all proceedings in this action until the determination of an action pending in the supreme court.
    The following is the opinion of the special term:
    McAdam, J.—The supreme court action was commenced first. It is to recover $19,546.09, and but for the voluntary assignment made by Linde & Co., the cross demand could have been litigated in the supreme court action. If that action is stayed, the defendant here, who is the plaintiff there, can use only a small portion of his demand ($4,811.46), and may have to renew his litigation as to the balance. If the supreme court action is tried first, the entire $19,546.09 will be litigated and disposed of. The law does not encourage double trials and multiplicity of suits, and the court. will stay one action and allow the other, in which the entire relief maybe awarded, to proceed. 53 Barb., 98; 4 Cow., 78; 5 id., 282; 2 Sand., 699; 30 St. Rep., 239; S. C. 9 Sapp., 404; 54 N. Y., 159; 15 St. Rep., 237; 18 How. Pr., 509; 86 NT. Y, 270; 98 id., 652; 46 How., 255. It follows that the defendant’s motion for a stay must be granted, and the plaintiff’s motion to compel an election denied. No costs.

      Edward S. Clinch, for app’lt; B. M. McMahon, for resp’t.
   Per Curiam.

The order should be affirmed, with costs, upon the opinion of the special term.

Sedgwick, Ch. J., and Freedman, J., concur.


text:
    George C. Johns, App’lt, v. The Press Publishing Co., Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Libel—Privileged publication—Report and comments on trial.
    Where the article complained of appears to be a report of judicial proceedings and comments thereon, and such report is fair and the comments true, in the absence of proof of malice a dismissal of the complaint is proper.
    Appeal from judgment in favor of defendant, entered upon dismissal of the complaint, and from order denying motion for a new trial.
    Action for libel.
    The following is the opinion of the trial judge:
    McAdam, J.—Aside from ex parte petitions and the like, any publication made in the ordinary course of judicial proceedings is privileged if the article be a fair and impartial account thereof. Though the publication may be to the disadvantage of the particular suitor, the paramount advantage to the public fully justifies the end attained. Perhaps the earliest and best expression of the reason of the rule is that contained in the opinion of Lawrence, J., in Rex v. Wright, 8 Term R., 298, in which it is stated, in substance, that though the publication of proceedings in courts •of justice may severely reflect on individuals, yet such publications, if they contain true accounts, are not libels, nor the subjects of actions, because it is of great importance that the proceedings of courts of justice shall be known; that the general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to the person whose conduct may be the subject of the proceedings; or, as Pollock, C. B., said in Ryalls v. Leader, L. R., 1 Exch., 299: “ We ought to make as wide as possible the right of the public to know what takes place in any court of justice, and to protect a fair Iona fide statement of proceedings there.” There was a judicial hearing and inquiry had in the present case in open court, and the public had the right to know all about it. The policy of the state is tersely expressed in these words: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” Const., art. 1, § 8. This is the supreme law of the land, and. contains as noble a sentiment as was ever penned by man. The truth, irrespective of motives, is a complete justification to a civil action for libel. In criminal prosecutions the accused is obliged to go a step further, and prove that the publication was made with good motives, and for justifiable ends. Id. This is to prevent breaches of the public peace. ISTor is a defendant, by pleading the truth in justification, although the plea be unsustained by proof at the trial, entitled to have that circumstance considered by the jury as evidence of malice, or to enhance the damages, Klinch v. Colby, 46 N. Y., 427, unless it be interposed in bad faith, Holmes v. Jones, 121 N. Y., 461; 31 St. Rep., 379, and the circumstances warrant that conclusion. Every one has a right to comment on matters of public interest and general concern, provided he does so fairly, and with an honest purpose. Such comments are not libelous, however severe in their terms, unless they are written maliciously. While the law justifies honest reports and comments, it will not permit one, under the guise of reporting proceedings, tcv use the dagger of malice, the assassin of character, to circulate falsehood, whose only office is to injure and destroy. Eeport and comment are two separate and distinct things. A report is the mechanical reproduction of what actually took place. Comment is the judgment passed on the circumstances reported by one who. has applied his mind to them. Fair reports are privileged, while fair comments are no libels at all. Blending the reports and comment together does not make the article libelous if it would not, be such if the one were separated from the other. A careful reading of the article complained of, in connection with the pleadings in the action commented upon, in the light of the evidence given by the plaintiff on this trial, proves that the article is a fair report, and that the comments are substantially true. The report is, therefore, within the protection of privileged publications, and the comments are fully justified by the facts disclosed. The comments, being true, are not libelous, and the report being privileged, the plaintiff could only recover upon affirmative proof of malice, and there is an entire absence of that essential element in this case. Where the publication is not privileged, a different, rule prevails, and malice may be implied from the mere falsity of the charge, but where the communication is privileged it rebuts the prima facie inference of malice, and throws upon the plaintiff the burden of proving malice in fact. Eeference to the language of the article, and to the facts in the pleading and evidence confirming its accuracy, has been intentionally omitted, as it might, prove as offensive to the plaintiff as the article itself; perhaps more so. There has been a tendency in some cases to limit the power of the court to the decision of the question whether the article complained of is privileged, and requiring the submission to the jury of the question whether the defendant fairly and properly conducted himself in the exercise of it; but the evidence in this case so clearly shows the absence of misconduct that the action admits of only one result, and that a verdict for the defendant. The English cases hold that it is only when the judge is satisfied that the publication cannot be a libel, and that, if it is found by the jury to be such, their verdict will be set aside, that he is justified in withdrawing the question from their cognizance. Per Kelly, C. B., Cox v. Lee. L. R., 4 Exch., 288; Hart v. Wall, 2 C. P. Div., 146. The article here complained of is not susceptible of a double meaning, one innocent, and the other libelous; and the action does not fall within the rule requiring the jury to determine whether the article is libelous or not. The rule applicable is that where, upon the whole evidence, a verdict in favor of a plaintiff would be set aside as against evidence, it is the duty of the court to grant a nonsujt. Neuendorff v. World M. L. I. Co., 69 N. Y., 393. This is such a case. No injustice was done to the plaintiff; his complaint was properly dismissed, and the motion for a new trial must be denied.
    Smith, Bowman & Close, for app’lt; Lowrey, Stone & Auerbach, for resp’t.
   Per Curiam.

Judgment and order affirmed upon the opinion of the learned trial judge.

Sedgwick, Ch. J., Dugro and Gtldersleeve, JJ., concur.


author: Per

text:
    Mary A. Wardlaw, Adm’rx, Resp’t, v. The Mayor, etc., of New York, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Municipal corporations—Suspension of officer.
    An assistant engineer in the department of public works cannot be suspended without pay, and the moneys earned by him in other employments during a suspension are not to be credited against his salary.
    2. Same—City surveyor not an officer.
    The position of city surveyor, to which no salary is attached and which does not become vacant by the death, removal or resignation of the incumbent, is not an office within the meaning of § 55 of the consolidation act, so as to make an acceptance thereof a vacation of another office held by such incumbent.
    Appeal from judgment entered on a verdict directed by the court in favor of plaintiff, and from order denying defendant’s motion for a new trial.
    The action was to recover $5,700 and interest, aggregating $6,821, for the salary of James R. Wardlaw, an “assistant engineer,” during the interim between the time of his suspension and discharge. The defendant concedes the appointment, the suspension and discharge, and the readiness of Wardlaw to perform his duties at all times. It claims, however, that because Wardlaw was appointed “ city surveyor,” in 1877, by a resolution of the common council, his attempt to hold the position of “ assistant engineer ” was the holding of two offices, which, under § 55 of the consolidation act,- prevents a recovery. Ths court directed a verdict in favor of the plaintiff for the amount claimed, and the defendant moves for a new trial.
    The following is the opinion of the trial judge :
    McAdam, J.—While the defendant might have discharged the decedent and relieved itself from liability, it could not suspend him without pay, Gregory v. The Mayor, 113 N. Y., 416; 22 St. Rep., 703; Émmitt v. Same, 38 id., 355, aff’d id., 907, and the moneys he earned in other employments during the suspension are not to be credited to the defendant. Fitzsimmons v. City of Brooklyn, 102 N. Y., 536; 2 St. Rep., 475; Lethbridge v. The Mayor, etc., 39 id., 385. There is nothing in the case which shows that the decedent abandoned or relinquished the office of assistant ■engineer, or in any manner discharged the defendant from its obligation to pay. The real question involved turns on whether the ■decedent, because he held the position of “ City Surveyor ” under a resolution of the common council, passed in 1877, held an office within the meaning of the prohibition contained in § 55 of the consolidation act, which made him ineligible to hold the position of “assistant engineer" under the defendant.
    There is no express authority given to the common council to appoint city surveyors, and if the board possesses any power upon the subject it is by implication only. But that question need not be seriously considered, for it is apparent that the appointment is not an office within the meaning of § 55, supra. Office, in the sense there employed, embraces the idea of public station, tenure, emolument and duties, involving the right and •corresponding duty to execute some public trust. In re Hathaway, 71 N. Y., 238; People v. Duane, 121 id., 367; 31 St. Rep., 516; U. S. v. Hartwell, 6 Wall., 385; U. S. v. Germaine, 99 U. S., 508. In legal contemplation an office is an entity and may exist though without an incumbent People v. Stratton, 28 Cal., 382. It is an employment on behalf of government, in any station of public trust, not transient, occasional or incidental. It is where ■one has to do with another’s affairs against his will and without his leave. The position of city surveyor has no tenure or salary.. It does not exist independently of the incumbent and does not become vacant by his death, removal or resignation. It resembles that of licensee more than anything else.
    Every office implies an authority to execute some portion of the sovereign power of the State, either in making, executing or administering the laws.- The question came up in this court when it held that Frederick Dwight Olmstead, in holding the position of landscape architect of public parks and ■ commissioner of state surveys, was not holding two offices within the meaning of the section referred to. ' ‘
    The Court said: “One who receives no certificate of appointment, has no term or tenure of office, but performs such duties as are required of him by the persons employing him, and whose responsibility is limited to them, is not an officer and does not hold an office.” Olmstead, v. The Mayor, 42 Super. Ct., 488.
    The court of appeals has held that the legislative prohibition to common council against creating new officers extends to clerks, but not to janitors and ordinary servants, for they are not officers. Sullivan v. The Mayor, etc., 53 N. Y., 652; Costello v. Same, 63 id., 48. The decedent, by reason of his position of city surveyor, was in no sense a clerk, city employee or public official, and did not come within the purpose and intent of the prohibition contained in § 55, supra.

    “ The distinction," said the court in Olmstead v. The Mayor, supra, “ is plainly taken between a person acting as a servant or employee, who does not discharge independent duties, but acts by direction of others, and an officer, empowered to act in the discharge of a duty, or trust, under obligations imposed by the sanctions and restraints of legal authority in official life.” The verdict was properly directed, and the motion for a new trial must be denied.

      William H. Clark, counsel to the corporation, and Sidney J. Cowen, for app’lt; L. Laflin Kellogg, for resp’t.
   Per

Curiam—The judgment and order should be affirmed, with costs, upon the opinion filed by the trial judge on denying, defendant’s motion for a new trial.

Sedgwick, Ch. J., and Freedman, J., concur.