author: Merwust, J.

text:
    William Barry, Resp’t, v. Orson Coville et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)
    Seevices—Right to eecover—Pledged peofeety.
    Plaintiff assigned to defendants, by an instrument absolute in form, but in reality as collateral security, a two-thirds interest in certain patents, defendants agreeing to furnish him with certain funds and with goods and provisions as long as they were satisfied to carry on business under the patents, and it was agreed that after a certain time, if satisfied that it would not be profitable to continue, they might terminate the agreement, retaining their interest as security for any indebtedness due to them. While the arrangement continued, plaintiff was employed by defendants to do certain work about and make improvements in the patents. In an action for a reassignment after termination of the agreement, Held, that while the agreement lasted defendants occupied the position of owners of two-thirds of the patents, and it was competent for them to employ plaintiff to do such work, and that their subsequent voluntary abandonment of such ownership furnished no ground for a claim that plaintiff should not be paid for his work.
    Appeal from a judgment entered in Onondaga county on July 3, 1890.
    The action was brought to compel the defendants, Ooville & Morris, to reassign to plaintiff certain patents previously assigned to them by plaintiff and for an accounting, it being alleged that said defendants had received royalties to a large amount and were also indebted to plaintiff in a large amount for services performed by him in connection with improvements. The plaintiff also claimed to recover any balance that might be found due him. The action was brought to trial at a special term December, 1888, where the main issue was as to whether an assignment, absolute in form and made the 13th April, 1885, was in fact held as collateral security for certain debts and obligations.
    Upon this issue the plaintiff succeeded, and in the decision of the court after such trial, after setting forth the facts found, it was decided and adjudged that the plaintiff upon the payment to the defendants of what might be Hue them, was entitled to a reassignment of the patents in controversy, and an interlocutory judgment to that effect was ordered, providing, among other things, for a reference to take and state the accounts between the parties, including the matter of royalties and any services the plaintiff during the time in controversy may have performed for the defendants and at their request. It further provided that, upon the coming- in of the report of the referee, either party might move for final judgment and to settle the terms thereof. The question of costs was also reserved. An interlocutory judgment was entered accordingly, from which the defendants appealed to the general term, where the same was affirmed. 25 Ñ. Y. State Rep., 658. Thereafter the reference proceeded, and on June 20, 1890, a report was made which, after setting out items upon both sides, found a balance due the plaintiff of §211.33, and that plaintiff upon the accounting was entitled to judgment in his favor in that amount. The defendants filed exceptions to the report Thereupon, at a special term held by the same justice who tried the case, the plaintiff made a motion to confirm the report and for final judgment, and an order was made which, after reciting the reading and filing of the report and the exceptions, ordered that the report be in all things confirmed, and “that final judgment herein may be entered in favor of the plaintiff and against the defendants for the relief demanded in the complaint, and according to the provisions and findings of the interlocutory judgment herein, and especially adjudging and directing the defendants to execute proper conveyances and assignments of all the patent rights and property mentioned in the complaint.” Judgment was accordingly entered, and it included a provision that the plaintiff recover of the defendants the balance as found by the referee.
    The defendants in their notice of appeal state that they appeal from the judgment and from the order confirming the report of the referee, and intern^ to bring up for review the whole of the judgment and the report of the referee and the order of confirmation.

      B. N. Bailey, for app’lts; Baldwin & Kennedy, for resp’t.
   Merwust, J.

The main question on this appeal is over the allowance by the referee to the plaintiff of the sum of $985, for services. The finding of the referee is that the defendants Co-ville & Morris are indebted to the plaintiff, for services performed for them at their request in and about and growing out of the patents and inventions, part of the subject matter of this action, commencing November 12,1884, and ending July 1, 1885, being 197 working days, and that 1 find that the value of said services to be worth five dollars per day and amounting in the aggregate sum and value of $985.”

This matter of services was within the scope of the reference as provided for by the interlocutory judgment. It was a thing to be determined before the amount that the plaintiff equitably should pay before having a re-assignment could be ascertained. It was a part of the accounting asked for in the complaint and which the court in the interlocutory judgment adjudged that the plaintiff was entitled to have. It, therefore, follows that the point of defendants, that the judgment appealed from, so far as it affects the question of services, has no foundation in the original decision of the special term and the interlocutory judgment thereon, is not well taken. The case of MacNaughton v. Osgood, 114 N. Y., 574; 24 N. Y., 531, does not apply.

It is, however, urged that whatever services the plaintiff performed were on the mortgaged property, and therefore he is not entitled to credit therefor. Under the agreement between the parties, dated October 2, 1884, the plaintiff assigned to defendants Coville & Morris a two-thirds interest in certain patents and they agreed to furnish him with certain funds and with goods and provisions so long as they were satisfied with the success of the manufacturing and carrying forward the business under the inventions, and the agreement provided that after a certain period, if the defendants became satisfied that it would not be profitable for them to continue their interest and obligations, they might terminate the agreement, with the right, however, to retain their interest ns security for any indebtedness from the plaintiff up to the time of such termination. Under this provision, the defendants terminated the agreement on July 1, 1885. So that during the time covered by the findings of the referee, the defendants were in the position of owners of two-thirds of the patents.

The employment, as claimed by plaintiff, was subseauent to the contract of October 2, 1884, and was something that the contract did not require him to do. It was, therefore, competent for the defendants, if they so chose, to employ the plaintiff, and the fact that they afterward voluntarily abandoned their ownership furnishes no good ground for them to say that the plaintiff ought not to be paid according to their agreement. The statute of frauds does not apply. The work was at defendants’ request and presumably for their benefit. The case of Belknap v. Bender, 75 N. Y., 446, is not in point. There the promise was to pay a prior debt, and was without consideration.

But the defendants further say that the evidence is not sufficient to sustain the finding of the referee. The record shows that no question is made on the appeal “ of the value of plaintiff’s services per diem.” The only things then to consider are whether the services were performed for the defendants at their request and for the length of time as found by the referee. The plaintiff testifies that on or about November 12, 1884, at the special request of the defendants and upon their promise to pay him for his time, he left other work at which he was then employed, and went to work upon improvements on patents in which defendants were interested, mainly a roller skate, and so continued until after the defendants terminated the original contract. There was some evidence that corroborated the plaintiff. The defendants denied the arrangement, and some circumstances were shown that corroborated their view. Where the truth was, was for the referee to determine, and we think his conclusion on that subject should not be disturbed.

The referee charged the defendants with royalties to the amount of $722.35. The defendants claim the amount should be only $489.01. The evidence, however, is sufficient to sustain the referee on this subject.

The referee allowed the defendants $1,196.70, “for amount of grocery account $1,263.23 less $66.53 disallowed.” The defendants claim there is no proof authorizing this disallowance. In this we agree with the defendants. There is proof from which it may be suspected that there was before the referee some statement as to errors in the grocery account, but no such statement appears in the record, and it is certified to contain all the evidence on this subject. We must, therefore, assume that it does. It follows that the credit to defendants should be increased by the sum of $66.53, with interest from February 9, 1887, and this will operate to reduce the judgment the same amount.

Judgment and order modified by deducting from the amount of the judgment against defendants the sum of $66.53 and interest from February 9, 1887, and, as modified, affirmed, without costs of this appeal to either party.

Hardin, P. J., and Martin, J., concur.


source: Caselaw Access Project

author: Merwin, J.—The

license: Public Domain

text:
    Jennie V. Bellinger, Adm’rx of Betsy D. Bellinger, App’lt, v. George B. Potter, Ex’r, of George Potter, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Executors and Administrators—Inventory—accounting.
    Testator’s will declared that he had conveyed certain land to defendant, which was intended as a bequest of a less sum, leaving in his hands §1,400, for the use of which he was to pay §70 per year, and bequeathed §1,000 thereof to either of his children who should care for him in his last sickness, and the balance to defendant’s wife. Defendant, as executor, charged himself in the inventory with said sum of §1,400. On the trial of an action to compel payment of a legacy the defendant introduced in evidence an instrument executed by him on receiving the deed by which he agreed to pay testator §70 per year for life, and that in case he sold the property and testator preferred the payment of §1,000, to pay the same on demand, in lieu of such yearly payments. The referee held that defendant was not chargeable .with said sum of §1,400 and should be credited with $1,000 paid to one of the children for care of testator in his last sickness. Held, that the strong presumption furnished by the inventory was not overcome and that the referee erred in allowing from the general estate the amount paid for care.
    Appeal from a judgment entered in Oneida county on 11th February, 1890, upon the report of a referee in favor of defendant, without costs.
    Action for a legacy of $4,000, given to plaintiff’s intestate, Betsey D. Bellinger, in the will of George Potter, who died April 26, 1869. The will was proved and letters testamentary issued to the defendant on May 25, 1869. The executor has never had a judicial accounting except in this action. The legatee, Betsey D. Bellinger, died August 6, 1885, and letters of administration were issued to the plaintiff on the 7th March, 1889. This suit was commenced soon after.
    The referee found that on the 17th October, 1871, the defendant, by the consent and direction of the legatee, transferred to Hathan Bellinger, the husband of .the legatee, a mortgage of $1,980 on account of her said legacy. He also found that, upon a statement of the account of the executor, there was only the sum of $834.73 properly applicable to the payment of general legacies, and that of this sum $830.47 was the pro rata amount applicable on the legacy of plaintiff’s intestate. So that, therefore, the legatee was in her lifetime largely overpaid.

      JE. 0. Worden, for app’lt; J. S. Baker, for resp’t.
   Merwin, J.—The

evidence is sufficient to sustain the finding

of the payment of $1,980 upon the legacy. The claim, however, of the plaintiff is that numerous errors to her prejudice were made by the referee in stating the executor’s account.

In the will, which is dated June 1, 1868, there is the following clause:

Third. Having deeded to my son, George B. Potter, the homestead farm, containing 128 acres of land, said deed bearing date the 5th day of February, 1868, and said premises being valued at the sum of $6,400, and the amount intended as.a bequest being $5,000 to the said George B. Potter, leaving in his hands the sum of $1,400, for the use of which the said George B. Potter agreed to pay the yearly sum of seventy dollars during the life of the undersigned testator, or if he sold said premises during the life of said testator, then in case of demand of said testator he was to pay the sum of $1,000 to him.

If this sum of $1,000 is not demanded or paid in my lifetime, then it is my will and wish that in case I should be cared for in my last sickness by either of my other children, and my funeral expenses borne and paid by them, they shall receive the said sum of $1,000, but should the said George B. Potter care for me in my last sickness and pay funeral expenses, etc., then he is to keep in possession the same; and further, I give and bequeath to Frances Potter, wife of the said George B. Potter, the above referred to $400, to be paid her by the said George B. Potter.”

In the inventory of the estate which was made by the defendant and filed in the surrogate’s office on October 5, 1869, there is the following item:

“Demand against George B. Potter, the executor, for part price of farm conveyed to him by testator in his lifetime.......................... $1,400 00
“Interest on $1,000 from February 5, 1869, to date of inventory................................ 26 59
“ Due and collectible....................... $1,426 59.”

At the trial the defendant put in evidence a paper which, as he testified without objection, was executed by Mm at the same time as the deed, and of which the following is a copy:

Whereas, George Potter has this day deeded to me 128 acres of land, and whereas said conveyance was made in consideration of an amount less than expressed in said deed of conveyance, therefore be it known that I., G. B. Potter, do obligate myself, in consideration of said conveyance, to pay to the said George Potter the sum of $70 per year during the term of his natural life, but if the said George Potter should see fit to come and live with me, then I am not to pay said $70 such years as he may do the same.
“ And I do further agree, that in case I should sell said premises, and the said George Potter would prefer the payment of $1,000 in lieu of the aforementioned sum of $70 per year, to pay the same on demand, but in case of the payment of the said sum of $1,000, then the payment of the yearly sum of $70 is to cease.
“ Dated this 5th day of February, 1868.
“In presence of G. W. Davis. “G. B. Potter.” [seal.]

It appears that the deed referred to was dated February 5, 1868, and the consideration expressed therein was $5,000. What was done with the paper signed by defendant after its execution does not appear. .

The $1,000 was not demanded in the lifetime of the testator, nor was the farm sold until after his death. The referee held that the defendant was not chargeable with the item of $1,426.59, and should be credited with the sum of $1,000 which he paid to Lura A. Spink, one of the children of the testator, for care of him during his last sickness and his funeral expenses. This payment was allowed upon the theory that the intent of the testator was to have this paid in any event, although the fund specifically referred to may have failed.

Assuming that the item of $1,426.59 was a valid debt against the defendant, the plaintiff would not be entitled to any benefit from it, as it was specifically appropriated by the will. But in that case, the defendant would not be entitled to credit from the estate generally for the $1,000 which he paid for care. It therefore becomes material to determine whether defendant is bound by the item as entered in the inventory. The circumstances under which the inventory was made do not appear. We must, therefore, assume it was purposely made as it was and with a full understanding of its contents. The claim of the testator, as shown by the will, was known to the executor and was yielded to. It is not made clear that the paper signed by the defendant contained the entire agreement. The testator evidently understood that there was, at least, $1,000 in the defendant’s hands. I am of the opinion that the strong presumption furnished by the inventory is not overcome, and that the referee erred in allowing the defendant from the general estate the amount he paid for care. See Matter of Camp, 32 N. Y. State Rep., 336.

The plaintiff further claims that the defendant should have been charged with the amount of a mortgage given by John Spink for $1,000. This was specifically bequeathed by the testator to Lura Ann Spink, the wife of John Spink, and appears to have been transferred to one Mace by the defendant, and the proceeds or a portion thereof used in payment of debts against the estate. It is quite evident that this was done with the consent of Mrs. Spink and her husband. The latter had a portion of the proceeds. Under what arrangement the transfer was made, it does not appear. There is nothing to show that the legacy was waived or abandoned by the legatee for the benefit of the estate. If the defendant used it, presumptively he has accounted or is bound to account to Mrs. Spink for it. The plaintiff has no claim on it.

The plaintiff claims that the defendant should be charged in his account with another mortgage against John Spink for $203.48. The case shows that he was so charged, but was credited back with the sum of $43.66, which Spink paid on the notes given by the testator when he purchased the mortgage, thus reducing the amount for which the estate could properly hold the mortgage against Spink. It in effect was the same as if Spink had paid that amount to the prior holder of the mortgage.

The defendant is credited with $270.80 for uncollected debts in the inventory. Ho error is made apparent as to this, especially in view of the provision of § 1833 of the Code of Civil Procedure, that in an action like this an executor shall not be charged with a demand or right of action, included in the inventory, unless .it appears that the same had been collected, or might have been collected with due diligence.

The plaintiff further claims that in several instances the referee has allowed the defendant payments on debts which in whole or in part were not justified by the evidence.

It has been held that the verified accounts of an executor, with vouchers for the payments made, raise the presumption that the payments were properly made, and that the burden of impeaching the payments is then on the party objecting. Metzger v. Metzger, 1 Brad., 265; Bainbridge v. McCullough, 1 Hun, 488. In view of this rule, we find no substantial ground for the plaintiff to complain, except in the case of the debt of N. B. Foot & Co., which the referee allowed at $2,657.86. A voucher for this sum was produced by the defendant upon an account in form against the estate. This account seems to have been mainly for goods sold by Foot & Co. to John Spink as agent for the deceased in running a store, and of indebtedness of Spink assumed by the deceased in connection with the purchase of the store. There was no question as to Spink’s agency.

Mr. Foot testified that the books of his firm showed charges against John Spink, as agent, after April 25, 1869, of a total of $1,340.55, and that the payments, making up the total of $2,657.86, paid those charges in full. The argument of the plaintiff is that the credit to defendant should be lessened by the sum of $1,340.55. It is shown that in the amount'of $1,340.55 there is only one item of merchandise after April 25th, and that is May 4, 1869, $130,81. It is not shown that any other item arose after Mr. Potter’s death. On the contrary, the inference from the evidence is that the other items making up the balance of the $1,340.55 were items carried along upon the books of Foot & Co. and arising from the business which Spink conducted as agent for the deceased, or were debts of Spink assumed by the deceased. It follows that in this transaction there should be a deduction of $130.81 from the defendant’s credit, but no farther.

The foregoing considerations would require that the credits to the defendant should be lessened by the sum of $1,130.81. So that the defendant, instead of having in his hands, applicable to the payment of general legacies, the sum of $834.73, as found by the referee, would have the sum of $1,965.54, of which about the sum of $1,956 would be applicable on the $4,000 legacy. This being less than the legatee in fact received, nothing would be due the plaintiff.

Several rulings of the referee upon evidence are challenged by the appellant. Among others it is claimed that error was committed in allowing Clark Mace to state conversations that he had with Betsey D. Bellinger in relation to payments made to her from her father’s estate. The objection was that Mace was incompetent to testify as to those conversations, under § 829 of the Code of Civil Procedure, by reason of his interest under the will in a legacy given to him and his wife. That legacy was a specific one and cannot be reached or affected by the subsequent general legacy to Mrs. Bellinger. Mace is not a party to the action and is not interested in the event within the rule laid down on that subject. Hobart v. Hobart, 62 N. Y., 83.

It is not necessary to consider the other rulings in detail There are none that furnish a good reason for reversal. The judgment ■should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


author: Van Brunt, P. J. Barrett, J.

text:
    Catherine McIntyre, Resp’t, v. Patrick Costello et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Dower—Evidence op seizin in husband.
    In an action for dower, evidence that the land was conveyed to plaintiff's husband by one who contracted for its sale as its owner and that her husband conveyed the same to defendant’s grantors, and that the latter have apparently been in possession under such title, tends to establish seizin in plaintiff’s husband, and is therefore admissible.
    Appeal by defendants, James Carroll, Ellen Carroll and The German Savings Bank, from order denying motion for new trial ■oma case made.
    Action of ejectment for dower.

      Lewis Sanders, for app’lts; L. L. Kellogg, for resp’t.
   Van Brunt, P. J.

Without passing upon the question of practice raised, it seems to be sufficient to say that all the questions involved in this appeal were determined when this case was before the general térm upon a previous occasion. 14 N. Y. State Rep., 369.

It is true that objections to evidence were taken upon this trial which were not insisted upon upon the previous trial. But this in no manner affected the question adjudicated upon the previous appeal, because then the complaint was dismissed because the evidence now objected to did not establish or tend to establish seizin in the husband of the plaintiff. Upon this trial the evidence is objected to because it did not so tend. Therefore the same proposition is raised and must be disposed of in the same manner.

It is not necessary to re-discuss that which was decided upon the previous appeal; but for the reasons then given we think the rulings of the court upon the trial of the case were correct and the judgment should be affirmed, with costs.

Bartlett, J., concurs.

Barrett, J.

As I am bound by the previous decision, I concur present any concurrence in such previous decision.


author: Daniels, J.

text:
    In the Matter of the Application of The Metropolitan Elevated R. Co. to Acquire Title to Land.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Railroads—Eminent domain—Appeal. "
    An appeal from an order confirming the report of commissioners in condemnation proceedings may be taken by the petitioner, although it obtained such order.
    3. Same—Report—Easements.
    A report of commissioners appraising the value of easements of an adjoining owner in the street, taken by an elevated railroad, is sufficient where it follows the description of the easements as set forth in the petition and order, although it also contains a description by lines and bounds, where such lines include all the street in front of the premises in question which has been interfered with by the petitioner’s structure and tiie use made of it.
    . Appeal by the railway company from the appraisal and report-of commissioners of appraisement, etc.

      Davies & Rapallo, for app’lt; Gratz Nathan, for resp’ts.
   Daniels, J.

The petitioner, the Metropolitan Bailway Company, applied for the appointment of commissioners to appraise and determine the amount to be paid by it, for

So much of the privilege, easement or other interest in said West Third street as has been taken by reason of the construction, maintenance and operation of the elevated railway of the petitioner, belonging to or claimed by Augustus- Yogt, or Elias; B. Schlesinger, or Louise T. Kneeland, executrix of and trustee under the last will of Charles Kneeland, deceased, and appurtenant to the lot and premises known as number 64 West Third street, in the city of New York, and bounded and described as. follows: Beginning at the south-westerly corner of West Third street and South Fifth avenue, running thence westwardly along-the southerly line of West Third street twenty-five feet; thence southwardly, parallel with South Fifth avenue, 100 feet; thence eastwardly, parallel with West Third street, twenty-five feet to-the Westerly line of South Fifth avenue, and thence northwardly along the said westerly line of South Fifth avenue, 100 feet to the point or place of beginning. * * *

Commissioners were appointed for this object, who were by the order then made directed to ascertain and appraise the compensation -to be made to the owners, or persons interested for,

So much of the privilege, easement or other interest in said West Third street as has been taken by reason of the construction, maintenance and operation of the elevated railway of the-petitioner, belonging to or claimed by Augustus Vogt, or Elias B. Schlesinger, or Louise T. Kneeland, executrix of and trustee under the last will of Charles Kneeland, deceased, and appurtenant to the lot and premises known as No. 64 West Third street in the city of New York and bounded and described as follows: Beginning at the southwesterly corner of West Third street and South Fifth avenue, running thence westwardly along the southerly line of West Third street twenty-five feet; thence southwardly, parallel with South Fifth avenue, 100 feet; thence •eastwardly, parallel with West Third street, twenty-five feet to the westerly line of South Fifth avenue, and thence northwardly, along the said westerly line of South Fifth avenue, 100 •feet to the point or place of beginning. * * "*

These commissioners viewed the premises, and heard the evidence offered, and reported that the sum of $6,500 should be paid bj the petitioner to compensate the owner and persons interested for the value of so much of the easements of light and of air and of access, in or from said West Third street, appurtenant to the said lot of land known as No. 64 West Third street in the city -of New York, as has been taken for the purposes of the petitioner, in the manner that the same has been taken by the petitioner, by the construction, maintenance and operation of the ■said railway in front, upon said West Third street, of said lot of land as hereinbefore described, and in accordance with the plan hereto annexed, is the sum of six thousand five hundred ($6,500) which sum ought to be paid to Jefferson H. Levy and Louise T. Knee-land, as executrix of and trustee under the last will and testament of Charles Kneeland, deceased, and George Hillen, as respectively the owner of, and persons interested in, said easements and said lot No. 64 West Third street, the same being described in subdivision 1 of the said petition, and in said order, and hereinabove.

It was determined to be the value of these easements in or from West Third street- appurtenant to said lot of land, as has been taken by the petitioner by the construction, maintenance and op-eration of the said railway in front, upon said West Third street, of said lot of land, as hereinbefore described, and in accordance with the diagram hereto annexed, relates to all of, and is exclusively confined to, that portion of said West Third street included in the quadrilateral area formed by the following four straight lines: (1) The westerly boundary line of the said lot and premises projected across said West Third street; (2) a straight line extending from the northeasterly comer of said lot and premises at the junction of the front house line upon said West Third street of said lot and premises with the front house line upon South Fifth avenue of the said lot and premises, to the southwesterly corner of the lot and premises situated diagonally across said West Third street and South Fifth avenue, viz.: upon the northeasterly corner of said West Third street and South Fifth avenue at the point of junction of the front house line, upon said West Third street, of the last mentioned lot and premises, with the front house line, upon South Fifth avenue, of the last mentioned lot and premises; (3) the northerly line, and (4) the southerly line of said West Third street, extending between the two lines immediately previously mentioned; and the said sum of six: thousand five hundred dollars ($6,500) has been determined upon uy us as the proper compensation to be paid by the petitioner to-the parties hereinbefore mentioned for the property of said parties taken by the petitioner by the construction, maintenance and operation of its elevated railroad within the said area, and within the-said area alone.

The report was confirmed on the motion of the petitioner, and this appeal was brought by it to review the report of the commissioners. This practice is not liable to the objection taken to it by the counsel for the respondent on account of the fact that it obtained the order confirming the commissioners’ report. The object of the appeal is not to review that order, but to obtain- a further hearing before these or other commissioners by setting aside the-report. And it has been clearly provided for by §§ 21-2 of chap.. 606 of the Laws of 1875, as it previously had been for other companies by chap. 140 of the Laws of 1850, authorizing the'formation of railroad companies, and prescribing the proceedings to be taken by them to obtain the title to lands required for the purposes of the corporation.

The proceedings of the commissioners have been no otherwise' brought in question by the appeal than in the extent and effect of that part of the report which is descriptive of the space in the street in front of the premises, from which the owner and persons-interested in them have been deprived of the easements of light, air and access, by the construction of the elevated railway structure and its use as a railway by the trains passing and repassing thereon. It is objected that the premises, or the portion of the street described in the report, has not included all that was described in the order and the petition.

But this objection does not seem to be sustained by the record. For what the petitioner applied to have appraised was “ the value-of so much of the easements of light and of air and of' access, in or from said West Third street appurtenant to the said lot of land known as Ho. 64 West Third street in the city of New York, as has been taken for the purposes of the petitioner, in the manner as the same has been taken by the petitioner, by the construction, maintenance and operation of the said railway in front, upon said West Third street, of said lot of land as hereinbefore described.” And that is what the report states was appraised by the commissioners. They reported that their award was for “the value of so much of the easements of light and of air and of access in or from said West Third street, appurtenant to the said lot of land, as has been. taken by the petitioner by the construction, maintenance and operation of the said railway, in front, upon said West Third street, of said lot of land as hereinbefore described,”' which is in substance the same description contained in th'e petition and in the order in the proceedings. And it underwent no substantial change or restriction by the lines and bounds after-wards added.

They include the space between the westerly line of the lot projected across West Third street, which is the westerly limit of this lot and of its bounds by the street, and a straight line extending from the northeasterly corner of said lot and premises, at the junction of the front house line upon West Third street of said lot and premises with the front house line upon South Fifth avenue of the said lot and premises, to the southwesterly corner of the lot and premises situated diagonally across said West Third street and South Fifth avenue, viz.: upon the northeasterly corner of said West Third street and South Fifth avenue, at the point of junction of the front house line upon said West Third street of the last mentioned lot and premises, with the front house line upon South Fifth avenue of the last mentioned lot and premises. This line is projected straight from the southeasterly corner of the lot and building affected on the west of South Fifth avenue to the northeasterly corner of West Third street and South Fifth avenue, at the junction of the lines of these two streets. And that, with the west line, seems to include the entire front of the house and lot in question on West Third street, and is also stated to have done so by the north and south lines, which is what the petitioner applied to have done, and the order directed should be done. The description, it is true, has been made a little obscure by the prolixity of the verbiage employed. But still, as the lines as they have been extended across West Third street, from the westerly and easterly bounds of the premises, include all that street in front of them which has been interfered with by the structure of the petitioner and the use made of it, the petitioner has been secured all that it applied to have estimated and made the subject of compensation.

The result, therefore, should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.


author: Van Brunt, P. J.

text:
    Frank Ross, Ancillary Adm’r, Appl’t, v. Nathaniel P. Hamlin, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Pleading—Okdeb. to make definite.
    On appeal by one of two defendants from an order denying motion for a bill of particulars of certain contracts set forth in the complaint, the general term modified the order so as to require a bill of part of the particulars. Thereafter, on motion of the other defendant an order was made requiring the complaint to be made more definite as to certain provisions of such contracts. Held, that while the order enlarged somewhat on that of the general term, it did not injure the plaintiff, as he could as easily comply with it as with that of the general term.
    Appeal from order requiring the complaint to be made more definite and certain, by giving certain provisions of the contracts referred to in the complaint as the basis of defendant’s liability.

      G. B. Adams, for app’lt; Theodore F. Sanxay, for resp’t.
   Van Brunt, P. J.

Although we are of the opinion that the court below have somewhat enlarged the decision of the term, in respect to the same complaint upon the" appeal of Willett, 34 N. Y. State Rep., 121, yet we do not think that the appellants have, in any respect, been injured by such action of the court. They can as easily comply with the order of the special term as they could with the order of the general term.

We think, under these circumstances, that the appeal taken was entirely unnecessary to protect the rights of the plaintiffs, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Beady and Daniels, JJ., concur.


text:
    Frank Ross, Ancillary Adm’r, etc., App’lt, v. Wallace P. Willett, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Appeal from order requiring the complaint to be made more definite and certain.

      G-. B. Adams, for app’lt; T, F. Sanxay, for resp’t.
   Van Brunt, P. J.

The decision of the appeal in the case of Foss v. Hamlin disposes of the appeal in this case.

The order should therefore be affirmed, without costs.

Brady and Daniels, JJ., concur.


author: Brady, J.

text:
    Frank S. Gray, App’lt, v. Elliott F. Shepard, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    Bill of particulars—Pleading.
    An answer denying that plaintiff entered defendant’s employment under the agreement alleged in the complaint, but that he did so under an agreement set forth; that under such agreement he could he discharged for incompetency, etc., and that he was incompetent, is simply a general denial, and the case is not one for a bill of particulars as to the matters alleged in the answer.
    Appeal from order denying plaintiff’s motion for a bill of particulars.
    The complaint alleges that the plaintiff was engaged by the defendant to render his services for a term of five years from May 13, 1888, and that, after performing his services until the 4th of January, 1890, the defendant refused to permit him to continue in bis employ. The answer denies that the plaintiff entered into defendant’s employment under the agreement alleged in the complaint, and affirmatively avers that on or about April 18, 1888, defendant and plaintiff made an agreement, of which a copy is annexed to the answer. Under that agreement the defendant could discharge plaintiff “ for any dishonesty, incompetency, incompatibility or breach of contract; ” and to justify the discharge he alleges that the plaintiff was incompetent, incompatible in his habits and manners to and with the defendant and other persons in his employ, and that he did not deal honestly or fairly with the defendant or with his newspaper and its business and interest, but was active in his own interest and for his own benefit and advantage without regard to the interest of the defendant or his newspaper, and was unfaithful to the trust reposed in him.” Immediately on the service of the answer, plaintiff moved for a bill of particulars upon an affidavit alleging that he had no knowledge or information and could form no opinion of the matters with which he is charged in the answer, and that he could not safely go to trial for want of said knowledge.

      A. J. Dittenhoeffer, for app’It; Noah Davis, for resp’t.
   Brady, J.

answer in an expansive manner contains simply a general denial; and, therefore, the case is not one for a bill of particulars.

The order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and Daniels, J., concur.


text:
    Lizzie Koetter, Resp’t, v. The Manhattan Elevated Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Railroads—Negligence of guard—Charge.
    In an action to recover damages for the alleged negligence of defendants, they requested a charge “ that the plaintifl: cannot recover merely upon the ground of unintentional negligence of a guard, hut only on the ground of direct wilful negligence inflicted by the guard.” Held, that defendants were not entitled to this.
    2. Same—Evidence.
    The statement of the guard who caused the accident, made at the time to plaintiñ, “ that he was very sorry that he had done it,” though not material, is not incompetent; it tends to explain the character and quality of the act, and is a part of the transaction.
    3. Sam:e.
    Where a physician had testified that plaintiff’s injuries were, in his opinion, incurable, it is hot error, to charge that the jury are to consider the damages, “and then she is entitled to compensation if from the testimony you find that there is a reasonable certainty that she may suffer in the future from these injuries.”
    Appeal from a judgment on verdict.
    Davies, Cole & Bapallo, for app’It; Howe '& Hummel, for resp’t.
   Brady, J.

This action was brought to recover damages resulting from the negligence of the defendant. The defense was that the defendant was free from negligence and that the injuries received by the plaintiff were caused by her own negligence. The account- of the accident given by the plaintiff was as follows:

“ On the 26th day of October, 1886, Miss Shane resided in the same house with me. We started from there to my place of business, and to her place of business. -We went through Eighty-first street to the Eightieth street station. We went through the gate together, Miss Shane and I, and we drooped the ticket, and the train came along and Miss Shane boarded the train. That was twenty-five minutes to eight o’clock in the morning. I was due down town at eight o’clock. Miss Shane boarded the train. Two or three gentlemen crowded in between Miss Shane and L I was pushed off by the guard. As I stepped back, waiting to board the next train, the signal was given. The rope was pulled by the guard I did not hear the bell ring. I only saw him pull the rope. As I stood back, waiting to board the next train, my arm was seized by the guard, which is my right arm, and I was dragged the extreme length of the platform. From the force of the push that I received, I felt that I was falling, but I don’t know where I fell to. Then I went into the waiting room when I came to myself, and the ticket agent was there, and he told me not to go to business. He told me not to go, but I did go. I could not tell exactly how long I remained. I didn’t remain there any time at all. I went direct to my physician, Dr. Yandergriffe. He called some time in the evening, about five o’clock. I was then in bed. Up to that time I had always been a healthy girl. “ Nothing at all the matter with me up to the time of the injury. When I was seized by the arm I was standing on the platform of the station, standing back waiting to board the next train. I think I have stated all that took place. I could not exactly tell you how far I was dragged by the guard.
Q. One foot or ten feet ? A. I could not tell you; I don’t remember; I was so 'frightened; I remember screaming that I didn’t want to board the train.
“ Q. Notwithstanding which, he kept hold of you all the time? A. He seized me; I felt that I was falling; and that is all I remember ; up to that time I suppose the guard still had hold of me, up to the time I fell; after that I was unconscious; I was confined to my bed, I think it was seven months from the start; Dr. Yandergriffe treated me for about a month or six weeks; then Dr. Gaedke, who is still treating me now, was called in; the train had started when the guard had hold of my arm; besides Dr. Gaedke I was examined by Dr. Yandergriffe, Dr. Leale, a specialist for the Manhattan Railway Company, and Dr. Field from the Manhattan Railway Company, but he only made an external examination; the other physician examined me internally ; I am still under treatment; I have not done any work since that time; to my knowledge I have not done anything, nothing that amounts to anything; ” and is consistent with that of Miss Shane, who was referred to in that statement, and tells the same story. The defendants called several witnesses including the guard, and by which they insist that the occurrence was proved substantially to be as follows:

That the guard saw the plaintiff coming up stairs to the landing after he had given the signal to start. That the plaintiff rushed up after he had closed one gate and was just closing the other. That he told her she was too late, but she persistently tried to get aboard the car; that she then grabbed the stanchion of the car, and he leaned over the gate and tried to wrest her, and put his arm around her waist to keep her up. That she was walking along the car line, and she finally tripped, and he thought he put her on her feet, and did not push her down or any way pull her along the platform.

The occurrence, therefore, was presented to the jury for their consideration upon conflicting evidence. Indeed it may be said as to all things except the presence of the plaintiff and her witnesses. The learned judge, in his charge, called the attention of the jury to the testimony pro and con, leaving them to decide the real issue, whether the plaintiff had established the negligence of the defendant and her own freedom from negligence which in any way contributed to the accident Several requests, however, to charge were made by the defendants, nearly all of which the court granted; some of which were extremely favorable to them. The jury, nevertheless, found for the plaintiff a verdict for $10,000.

The first point presented on behalf of the defendant was that the verdict is contrary to the evidence, and the motion for a new trial should have been granted. This is founded on the proposition that the plaintiff’s case presents an alleged act of wanton and total negligence on the part of the guard, and that the plaintiff’s story was confronted at the outset by an inherent improbability, while the defendant’s account is so natural as to almost suggest itself even in the absence of any testimony. The counsel for the appellant had the opportunity upon the trial to elaborate this view of the case, and no doubt did so in his address to the jury, and there were elements which might be used with success, but unfortunately for him the jury established by law as the tribunal to dispose of such conflicts found against his clients.

A perusal of the evidence does not suggest the propriety of interfering with the verdict upon the ground that it is contrary to the evidence. It must be said the evidence sustains it; sustains the propositions that the defendants were guilty of negligence and that the plaintiff was guiltless of any contributory negligence on her part. The next point presented on behalf of the appellants is that the learned justice of the court below refused to charge as follows:

“ That the plaintiff cannot recover merely upon the ground of unintentional negligence of a guard, but only on the ground of direct willful negligence inflicted by the guard.”

The answer to the alleged error of this refusal is given by the respondent’s points, and is that the plaintiff was entitled to recover if the defendant, by its agents or servants, was guilty of negligence, whether that negligence was direct and willful or whether the guard had been merely careless in conducting himself and caring for the passengers, the safety of whose life and limb was entrusted to the defendant

It-is said in Shearman & Eedfield on Law of Negligence, vol. 1, § 141, that the liability of defendants in cases of this character “ is not confined to the mere negligence of servants, but extends also to their willful acts, though unauthorized or even forbidden by the master, so far as such acts deprive third persons of a benefit which the master was bound to confer upon them or for any other reason have occurred in the course of the servant’s employment. Although the master may, as has been stated, be responsible for some willful wrongs committed by his servants, such responsibility, when these acts have not been authorized by the master, may still fall under the law of negligence. The master, if sued on the ground of negligence, may be considered in such case guilty, not of the wrongful act itself, but only of neglect to restrain his servant from committing it.” And further that “ the soundness of the principle thus stated and the necessity of the rule which we have inherited from the Eoman law, have received new and convincing illustrations in the immense development of modern corporations.” There is, therefore, no value in the second point. The next error complained of is that the witness, Lizzie Shane, was allowed to testify what the guard stated after the accident, viz., “ that he was very sorry he had done it.” The objection thus urged arose in the following manner:

Q. What did the guard say in reference to the train, if anything ?

The counsel for the defendant objected to the question as hearsay and irrelevant.

The court overruled the objection; the counsel for the defendant duly excepted.

That question, however, was not answered, but was followed by this question, namely: Did you see the guard here in court yesterday ? To which the answer was, No, sir; I did not see him. This was followed with the question, Did you hear the guard say anything then ? To which answer was given in the form of a question, namely: At the time of the accident ? (Question.) Yes, (Answer.) He said he was very sorry he had done it. It will be perceived that there was no objection to the question asked, which was: Did you hear the guard say anything at the time of the accident? and which was entirely different from the question previously asked, which was, “ What did the guard say in reference to the train, if anything ? ” This is- supposed to be a complete answer to the exception mentioned for three reasons: 1st. As already stated, no objection was made to the question. 2d. That it was wholly immaterial whether the guard was sorry he had done it or not, the liability of the defendant resting upon the fact that the act complained of had been permitted, and that the evidence could not prejudice the defendant in any manner; and 3d, that if this be not so, the declarations of the party in a case like this made at the time and calculated to elucidate and explain the character and quality of the act, and so connected with it as to constitute one transaction and so as to derive credit from the act itself, are admissible in evidence. Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y., 274-278.

The next proposition urged on behalf of the appellant is that the learned judge presiding at the trial charged the jury that they could award damages to the plaintiff for future pain and suffering in the absence of any evidence that she was likely to suffer it in the future. A complete answer to this proposition is, that the learned counsel for the appellant is entirely mistaken in supposing* that such a charge was made. What the learned judge said was this: “That if they found a verdict in favor of the plaintiff, they should consider the damages which should be allowed to her, ‘and then ’ she is entitled to compensation, if from the testimony you find that there is a reasonable certainty that she may suffer in the future from these injuries.”

There was nothing, therefore, said about future pain. The propriety of the charge as to the future suffering arises from the fact that Dr. Gaedke testified that “in his estimation, the injuries received by the plaintiff were incurable,” which was not contradicted in any way and it may be presumed could not be from the fact that two physicians on behalf of the defendant made an examination of the plaintiff, neither of whom was called upon the trial. And the further fact which the plaintiff had testified to, namely, that she was still under treatment and had done nothing in the way of work since the accident occurred, which was on the 26th of October, 1887. Under such circumstances the charge was strictly within the rule declared in Feeney v. L. I. R. R. Co., 116 N. Y., 382; 26 N. Y. State Rep., 729, in which the court said: “ It may now be regarded as settled that the jury in cases of this character may take into account the pain and suffering which may reasonably be expected in the future, provided evidence has been given tending to show that the person injured will' probably experience future pain as a result of the injury.” The testimony of Dr. Gaedke, which is as follows, after his statement of his examination of the plaintiff:

“ Q. What did you find ? A. I had heard previously that there had been an accident I cannot make a diagnosis without a history of the case.
“ Q. What did you find ? A. I found a blood tumor in the abdomen, a so-called hsematocele.
“Q. That is called a haematoma? A. Yes, sir; that is right. I found the pelvic cellular tissue, which is a fatty cellular substance in the pelvis which surrounds the pelvic organs, was highly inflamed on the right side. That could have been brought about by a recent injury. I think it could by a violent fall. Between the uterus and the rectum I found this haemetocele, the blood tumor. The uterus was very sensitive and painful, according to the patient’s statement of the case. The cellular tissue was infiltrated by the process of inflammation. It was enlarged and inflamed. A violent shock or injury, such as being thrown down, would bring that out At that time I did not notice any fracture of anything about them. I noticed, I think, about a month after that, a fracture of the so-called coccyx, the last bone of the spine.
“ Q. When did you find that that had been fractured ? A. I think about a month after that I noticed that During the time that I was examining her and treating her, Dr. Leale called. I don’t know whether he is the physician for the elevated railway company. I visited Miss Koetter on very frequent occasions, and treated her for the injury that she had at that time, and that she had not had before. At the time that I found the fracture of the lower bone of the spine in the condition that I have described, I made a diagnosis of her case. The injuries, in my estimation, are incurable,” contains evidence tending to show that the plaintiff’s injuries would probably subject her to future suffering as a result of the injury. This exception to the charge, therefore, cannot be sustained. It is next urged that the verdict is excessive and the result of the passion or prejudice of the jury, and one of the reasons assigned as establishing the justice of the criticism is that the whole of the plaintiff’s case is contained in eight (8) printed pages of the testimony. It is true that that is not the only reason assigned, but it is illustrative of the disposition to treat the plaintiff’s case as one of little importance, notwithstanding that the uncontradicted medical evidence shows that her injuries are incurable and that she has been deprived of the power apparently of making a livelihood, and from the time of the accident in 1887 at least down to the time of the trial was still under treatment, and also that from that time to the time of the trial she had been supported by the kindness of one friend or more. Under such circumstances, $10,000 substantially paid for a ruined life does not seem to be excessive. If well invested, it would not produce more than $300 a year, although that sum would not be left after payment of the expenses to which her injuries subjected her and the payment also of counsel fees for the prosecution of this action, whatever they may be.

Whatever may be said on the part of the defendant as to the inherent improbability of the plaintiff’s story, it must not be forgotten that as to the accident the plaintiff was sustained by the testimony of her companion at the time it occurred, and that the jury, after a charge embracing all the necessary elements, decided that the plaintiff’s statement was a correct account of the occurrence. And it must be further said that under all the circumstances disclosed by the record the plaintiff’s injury and its results properly considered suggest that such a .verdict as was rendered might well be given without passion and without prejudice.

If, however, we resort to authorities, it will be found that:

“ The general rule is, that the jury are the exclusive judges of the amount of damages, except in those cases where they follow, as a matter of law, from facts proved and the result of a mere computation. In all cases for injuries to the person, to family rights, or to the reputation, the jury are allowed to give what is sometimes termed a round sum. The law prefers the judgment of twelve men in the jury box to the judgment of one man on the judicial bench. It is,, therefore, the settled rule, enforced by many decisions, though couched in various forms of expression, that in cases of this character a new trial will not be granted, unless the damages are such as strike every one with the enormity and injustice of them, and such as would induce the court to believe that the jury must have acted from prejudice, partiality or corruption.” See Thompson on Trials, vol. 2, § 2067, and numerous cases cited.

It was said by Bockes, J., 8 Hun, 289: “ The subject of damages is for the jury, and must be at all times in their discretion and judgment. The court can only interfere on this point when it is apparent that the jury were improperly influenced, or must have acted from passion, prejudice, partiality or corruption. The authority to grant new trials on the ground of excessive damages is undoubted, but its exercise by the courts has been thought equally capricious as has been the verdict of juries. Little aid can be obtained on this subject by referring to the cases, as will be seen by turning to the opinion of Mr. Justice Hogeboom in the case of Murray v. Hudson R. R. Co., 47 Barb., 196." And in Walker v. Erie R. R. Co., 63 Barb., 267, it was said by Mr. Justice Daniels: “ The law has committed the determination of the amount of, damages to be awarded to the experience and good sense of the jury, and where the verdict rendered by them may reasonably be presumed to have resulted from an honest and intelligent exercise of judgment upon their part, the policy of the court is, and necessarily must be, not to interfere with their conclusion.”

The judgment should be affirmed, with costs.

Van Bbunt, P. J., and Daniels, J., concur.


text:
    Charles A. Breck, Resp’t, v. Frederick A. Ringler, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Contract—Sale of business—Liquidated damages.
    Where one sold to another his entire plant and the good will of a business, and agreed not to engage in the same line of business in any form or manner for five years, and further agreed, in writing, that for any forfeiture or non-compliance with the agreement he would pay a sum stated and which was agreed upon as liquidated damages, JSeld, that it was clearly the intention of the parties that this sum should, in case of breach, be paid absolutely, and that it was not necessary for plaintiff to show that he had suffered damages to the amount named.
    Appeal from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial.

      Henry Daily, Jr., for app’lt; Calvin & Bréele, for resp’t.
   Daniels, J.

This action was brought to recover the sum of $5,000 as liquidated damages for the breach of a contract entered into between these parties on the 19th of March, 1886. By this contract the defendant and his partner, William Kurtz, sold and transferred their business plant, machinery, tools, fixtures, stock on hand, and all appliances used in their business, or connected with it, together with its good will, to the plaintiff, for the sum of $14,000. And the contract by which the sale was made contained the covenant that:

“ It is further understood and agreed between the parties hereto, that the said Frederick A. Ringler shall not carry on the same line of business (the good will of which is hereby agreed to be sold to the party of the second part) and shall not be employed by or enter into any partnership with any person or persons in carrying on the same line of business in any way or manner whatever, for the term of five years from the first day of April, 1886, and for any forfeiture of .or noncompliance with this portion of this agreement within said period of time the said Frederick A. Ringler shall pay unto the said party of the second part the sum of $5,000, which is hereby agreed upon as liquidated damages, •and shall be due and owing to the party of the second part, immediately upon such forfeiture or noncompliance. ”

This part of the agreement was alleged to have been broken by the defendant Ringler, by carrying on the same line of business as had been carried on at the place transferred to the plaintiff, and for and on account of which this sum of $5,000 was claimed from the defendant Evidence was given during the progress of the trial tending to prove the fact that the defendant with his copartner had carried on this business in the city of New York after the sale was made to the plaintiff. And that evidence was sufficient to require the inquiry as to the fact to be submitted, as it was by the court, to the jury.

But it was insisted on behalf of the defendant that his liability was exclusively one for damages, and that the plaintiff was not entitled to recover this sum of money without proof, which was not made in the case, that an equivalent amount of damages had been sustained from these acts of the defendant. But it is quite plain that no amount of evidence could present any intelligible criterion for estimating or ascertaining the damages which would be sustained by the plaintiff by reason of the defendant carrying on and pursuing this same line of business. And it is td be inferred, therefore, because of that fact, that the parties themselves fixed this sum as an amount the plaintiff should become entitled to demand in case of a violation of this part of the agreement by the defendant. Whether a sum of money mentioned in this manner is to be regarded as fixed damages, or as a penalty, depends upon the intention of the parties, to be ascertained from the agreement and the business or transactions to which it shall relate. This agreement has plainly expressed the intention to have been that the sum of $5,000 should be paid by the defendant for a violation on his part of the agreement made by him with the plaintiff; and the inability of producing and presenting proof of the actual extent of the damages which might be incurred by reason of a violation of the contract by the defendant is a circumstance also indicating that the parties intended this sum of money to be the fixed and settled measure of the defendant’s liability. And where that may appear to be the condition of the case, there it has been the constant practice of the courts to sustain the agreement as it has been expressed, and to hold the party entitled to its observance and performance to be vested with the right to recover the amount mentioned as stipulated damages when the covenant shall be shown to have been broken. Kemp v. Knickerbocker Ice Co., 69 N. Y., 45, 58; Little v. Banks, 85 id., 258.

There was, therefore, no error on the part of the court in ruling this point against the defendant.

A large number of exceptions were taken by the defendant’s counsel upon rulings made concerning the admission and exclusion of evidence. The first in its order to which attention has been drawn by the counsel was the offer to read an advertisement published in the New Yorlcer. But this objection amounts to nothing whatever, for it was specifically confined to the ground that the date of the clipping was not shown, while the witness testified, before the evidence was received, that it must have been printed not earlier than November, 1887. This fully answered the objection and rendered the exception which was taken conspicuously frivolous.

Evidence was proposed to be given, and was given, but after-wards stricken out by the court, of conversations which were stated to have taken place between these parties prior to the time of the execution of the contract concerning the right of the defendant to receive orders for the class of work included in the business transferred to the plaintiff. "And exceptions were taken to the rulings of the court upon this subject. These exceptions are without legal support, for the reason that whatever was said between the parties prior to the execution of the contract was afterwards merged in the instrument itself. Q

Exceptions were also taken to questions which were propounded to the defendant on his cross-examination concerning business transacted by him which was claimed to have been in violation of this contract after the commencement of the suit. But these inquiries were admissible for the purpose of affecting the credit of the witness himself. And they did tend to indicate some improbability of statement upon his part in giving the evidence which had been obtained from him on his direct examination.

An exception was also taken to the exclusion of a statement made by the attorney, Mr. Clapp. But as this was in the absence of the plaintiff, and the attorney was not shown to be authorized to compromise him by any statement he might make, the evidence was rightly excluded.

A further exception was. taken to the exclusion of evidence from the defendant’s partner as to orders received and filled for zink etchings for the defendant and his partner. The exclusion of this testimony had no practical effect on the disposition of the defendant’s rights, for it did appear by evidence which was received that the plaintiff had from time to time after the purchase of this business received orders from the defendant, or his firm, for this description of work, and that they were performed and paid for by that firm. This evidence was not of any substantial importance in the disposition of the case, for the right of the plaintiff to maintain the action was not placed upon orders obtained by the defendant in this manner. Mo complaint whatever as to such orders was at any time made by the plaintiff. But what the action was made to depend upon was the other evidence in the case tending to prove the fact that the defendant had, without authority frorn the plaintiff, carried on this same line of business between the time when he sold out to him and the commencement of the action. Other exceptions have been presented concerning other rulings made as to the production of evidence on the trial, but they have no more merit certainly than those which have already been referred to.

The case appears to have been correctly disposed of at the trial, .and the judgment and order should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.


text:
    William E. D. Stokes, Resp’t, v. Anson P. Stokes et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Partnership—Action for accounting.
    A member of a partnership assigned an interest therein, and in its accumulated profits, to his son, and soon thereafter died, and subsequently another partner died. In an action for an accounting brought by the son, Held, that the action could be maintained.
    2. Same—Parties.
    The surviving partners held the assets in trust for the son, and for the legal representatives of the deceased partners as well, and hence the executors of the deceased partner were necessary parties to the accounting.
    Appeal from interlocutory judgment overruling a demurrer interposed to the complaint.

      M W. Sheldon, for app’lts; W. 0. Choate, for resp’t
   Van Brunt, P. J.

This action was brought by the plaintiff’ for an accounting in respect to the copartnership dealings and transactions of the firm of Phelps, Stokes & Co., from the time of the commencement thereof to the time of its dissolution.

It appeared from the complaint that James Stokes, Isaac N. Phelps and Anson P. Stokes entered into copartnership, the articles concerning which were in writing and which provided that said copartnership should commence on the 1st of January, 1879, and continue for five years unless terminated by the death of Anson P. Stokes or by a written notice of either of the partners to the other members of the firm of at least six months of the termination of said firm. , Shortly after its formation the defendant Olcott was admitted as a copartner in said firm, but such admission presents no question raised by this demurrer.

On the 18th of November, 1880, James Stokes assigned and transferred to his son, William E. D. Stokes, the plaintiff, an undivided fifth part of his interest in said firm, together with all profits accrued thereon since January 1, 1879, the formation thereof.

In 1881 James Stokes died, leaving the defendants, Anson P. Stokes and Frederick P. Olcott and Isaac N. Phelps, the sole surviving partners, and the said Phelps died in August, 1888, leaving -Anson P. Stokes and Frederick P. Olcott sole surviving partners, and also leaving a will which was duly proved upon which letters of administration were issued to the appellants. The defendants, the executors of Phelps, interposed a demurrer to the complaint upon the ground that the complaint as against them failed to state facts sufficient to constitute a cause of action.

This demurrer was overruled and from the judgment thereupon entered this appeal is taken.

From an examination of the authorities cited by the appellants it appears that they claim that because the plaintiff, by reason of the assignment from his father, did not become a partner in that firm, he had no right to maintain this action.

It is clear that by such assignment he obtained. no rights as a partner and was not responsible for the debts of the firm, as is held in the case of Burnett v. Snyder, 81 N. Y., 555. And in none of the cases cited upon the part of the appellant is it held that the assignee of the interest of a partner, upon the dissolution of the firm, has no rights which he may enforce against the survivors. In the case of Hooley v. Gieve, 9 Daly, 104, affirmed upon the opinion of the court below, 73 N. Y., 599, it is expressly held that upon the death of a copartner the surviving partners became trustees of the partnership fund, not only for the creditors, but for the personal representatives of the deceased partner, and that the entire assets of the firm subject to the payment of its debts became impressed with a lien in favor of the representatives of the deceased partner to the extent of the share of the deceased partner in the firm’s assets.

How in the case at bar the plaintiff is a representative of the deceased partner, James Stokes, by assignment; and if the assets in the hands of the surviving partners are impressed with a lien in favor of the deceased partner, it is clear that he has a right and interest in the assets belonging to the firm, and having such right or interest as one of the personal representatives of James Stokes, deceased, he certainly can maintain the action for an accounting,, in order that that interest may be ascertained.

It is an elementary rule of law that a cestui que trust may call his trustee to an account, and that is precisely the relation which existed between these surviving partners and the plaintiff, as assignee of James Stokes, deceased.

But it is insisted that the appellants are the executors of a partner who, surviving James Stokes, died since his decease,' and therefore they have no interest in this controversy. Upon the contrary, these executors are cestuis que trust precisely the same as the plaintiff.

Anson P. Phelps and Frederick P. Olcott, the sole surviving partners of the firm, hold the assets of the firm as trustees of the representatives of the deceased partners, of whom Isaac H.Phelps is now one. In order that the accounts of the firm as between the various claimants upon the same may be settled, it is necessary that all the cestuis que trust be before the court, and, therefore, these executors are necessary parties defendants. The plaintiff has stated a cause of action as against them; he has shown by the allegations in the complaint that they are necessary for a complete determination of these accounts.

If there had been any doubt in regard to the proposition hereinbefore stated, it is distinctly held in the case of Menagh v. Whitwell, 52 N. Y., 146, that the assignee of the interest of a partner is entitled to an account of the dealings of the firm from its other members, and to share to the extent of the assignment in the surplus of the property of the firm.

It seems to us, therefore, both upon principle and authority, that the plaintiff is entitled to an account and that he is entitled to bring in all those who are interested in the surplus of the property after the payment of the debts in order that there maybe a complete determination of the rights of all the parties, and the fact that by the assignment he never became a partner in no way deprived him of this right

It would be difficult to say why a partner has not the right to assign his interest in a firm, and if he has that right, why his assignee has not the right to call upon a court of equity to determine the extent of his interest, which can only be done upon a settlement of the affairs of the firm.

We are of opinion, therefore, that the judgment should be affirmed, with leave to the defendant to answer within twenty days upon payment of the costs of the demurrer in the court below and of this appeal.

Brady and Daniels, JJ., concur.


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    The People ex rel. Anna M. Dean, App’lt, v. The Board of Assessors of the City of New York, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. New York City—Closing op streets—Notice.
    In chap. 697, Laws of 1867, relating to the closing of streets in New York city, it is provided that all damage shall be ascertained in the manner prescribed by §§ 3 and 4 of chap. 52, Laws of 1852 ; this latter act provides that the defendants shall make to the owner a just and equitable award for his loss and damage, but does not provide a method. Held, that the duties of the defendants were judicial and the proceeding was of the character of that of commissioners appointed to assess the Value of land taken under the power of eminent domain. That, therefore, claimants were entitled to notice and were entitled to be heard before an award made; that it was error to make an award and then call upon them to contest it if they saw fit.
    2. Same—Award.
    It is error for the assessors in making an award, to consider benefits arising from opening new streets, such benefit having been already paid for once by the owner.
    3. Same.
    It is error to deduct the value of the land which the owner obtained by closing the street although it is proper to consider what it was worth to him to have the land freed from the public easement.
    4. Same.
    The value of land should be taken as of the time of the filing of the report of the commissioners.
    Certiorari to review proceedings of the board of assessors in awarding compensation for the closing of the Kingsbridge road.

      J. A. Beering, for app’lt; G. L. Sterling, for resp’ts.
   Van Brunt, P. J.

In view of the conclusion at which we have arrived, it will not be necessary to discuss in detail many of the the counsel to the court.

It would seem from an examination of the authority conferred upon the board of assessors that there has been an entire misapprehension by the board of the nature of their duties and of the rights of claimants to damage.

It seems to have been assumed that the powers and duties conferred upon them in reference to passing upon claims for damages because of the closing of streets were similar to those strictly pertaining to their office, viz.: the making of estimate and assessment for paving, regulating and repairing streets, relaying pavements, constructing sewers, etc. A very brief examination of the law under which the respondents were carrying on these proceedings will show that such a view was entirely erroneous. By the act of 1867, which provided for the allowance of compensation for the closing of streets, it was provided that all damage by reason of the closing of a street should be ascertained and paid in the manner specified in §§ 3, 4 of the act entitled “An act to make permanent the grades of streets and avenues in the city of New York,” passed March 4,1852. The act of 1852 provided that in all cases where the grade of any street or avenue now established * * * shall be changed or altered in whole or in part it shall be the duty of the assessors appointed to estimate and assess the expenses of confirming such change of grade and regulating the street or aveenue in accordance therewith (namely, the board of assessors), to estimate the loss and damage which each owner of land fronting on suck street will sustain by reason of such change to such lands or to any improvements thereon, and make a just and equitable award of the amount of such loss or damage to the owner or owners of such lands, etc. The act contains no provision as to the method in which they are to proceed in ascertaining this damage and making this award.

It will be at once seen that under these circumstances the board of assessors occupied the position of commissioners to ascertain the damage done by a public improvement, and their proceeding seems to be of the same character as that of commissioners appointed to assess the value of land taken under the power of eminent domain.

This view of the duties of this board, under these circumstances, is specially recognized in the case of the People ex rel. Heiser v. Gilon et al., 121 N. Y., 551; 31 N. Y. State Rep., 890, where, under a special act in reference to the change of grade of the Eighth avenue, the board of assessors proceeded to award compensation to owners fronting, upon the avenue. In that case the authority conferred upon the board of ^assessors being the same as is conferred by the legislation above referred to,' the pourt held that the duties which the board was required to perform were essentially judicial in their nature, and that these judicial functions could not be properly performed in contemplation of the law without giving the parties interested some notice of the time and place of the hearing and an opportunity to be heard. And it is plainly intimated in that case that this time and place of hearing and opportunity to be heard shall be before an award shall be completed; for the court say, that the notice in that case was defective because it called for objections to the assessment made, not proof or arguments in support of a claim for damages. In other words, the party affected is entitled to notice to present his claim and not to notice to present his objections to an award already determined upon. In this the proceeding is entirely different from those which the board pursue under the statute in the levying of an assessment. The board levies the assessment in the latter case and then notifies the parties affected by the assessment to come in and present their objections, and they pass upon the objections.

But in a case of the character of that at bar this board is bound to notify claimants to present their claims. The claimant is entitled to present his proofs, and after hearing the proofs the board makes its award. It.follows from this authority conferred upon the board of asessors that the board cannot take proof except upon due notice to the claimants.

It is one of the essential features of a judicial proceeding that the suitor shall have notice of all proceedings which may affect his rights, and that he cannot be barred by an adjudication rendered upon evidence taken without his knowledge, and which he may have had no opportunity to refute.

It appears from the return of the board of assessors in this case that they, in the absence of the claimants, took evidence, and that there was proof given in the case which is not in the return of which the claimants had no notice, and of the character of which they are not now even informed. In assuming that they had the right to base their award upon any information that they could get from any source whatever or in any manner which may seem proper in their own eyes, we think, as already stated, that the board erred, they attempting to assimilate this proceeding to that which the statute prescribes in the case of the levying of an assessment. It follows, therefore, that the whole proceedings have been governed by an erroneous theory.

It is to be observed that the board is to make a just and equitable award of the amount of damage; not to levy an assessment for damage. It may well be claimed that they occupied the position of arbitrators selected under the act to determine as between the state and the owner what will be a just amount to pay for the damages inflicted upon the owner.

There are one or two other points which it seems to be necessary to consider, in order that upon a new proceeding the board should not fall into some errors in reference to the method of ascertaining the damage which seem to have pervaded the present proceeding.

It appears from the return that in determining the amount of loss resulting to the relator by the closing of the road they have considered the benefits arising from the opening of the new streets, and this they have deducted from the amount of the loss. This would appear to be compelling the owner to pay twice for the same benefit In the proceedings for the opening of the new streets the owners were assessed for benefit, and now in the proceeding for the closing of the old road they are compelled to pay another assessment for benefit. There cannot be two benefits arising from the opening of the same street.

In this proceeding, therefore, the board of assessors had no right to consider the question as to what amount of benefit the owner had received from the opening of the new streets. The question which they were to consider was the damage which the owner would sustain by the closing of the old road. The question of access by the new streets had, of course, some relation to that question, because if no access to the property could be gained by the new streets, greater damage would necessarily be sustained by the closing of the old road than would occur if access could be obtained by the new street. But whatever benefit may have resulted to the owner could not be considered, except so far as the existence of the new streets giving new access to the property would affect the amount of damage sustained by the owner by the closing of the old means of access.

It follows that the board in taking into consideration the benefits conferred by the opening of the new streets erred, and that they should have made their award independent of that fact.

There is also an objection taken to the fact that the board of assessors deducted the value of the land which the owner obtained possession of by the closing of the street This was clearly incorrect The ábutting owner was the owner of that land all the time. He did not acquire title thereto by the closing of the street. But it was subject to a public easement which undoubtedly affected its value, and the board had the right to consider what benefit it was to the owner to have that portion of his land which was situated within the road relieved from the easement which existed over it prior to the closing of the old road. This necessarily is a circumstance to be considered in determining the amount in which the abutting owner is damaged by reason of the closing of the street

The only other question is the point which is made that the assessors erred in not making the compensation as of the date when the road became closed upon the map, although not closed, in fact, until many years later.

We do not think, although the road may not have had any legal ■existence after the filing of the map, no proceeding whatever having been taken in reference to the matter, that the relator was necessarily entitled to have his damages assessed as of the time of the filing of the map as though the street had then been actually closed.

It is a familiar principle in reference to the assessment of damages for the taking of land for street opening that the value as of the time of the commissioners making the report is the true rule to be followed, and this proceeding is analogous in that respect. It would seem, therefore, that the same rule of damages would apply. And this, of course, disposes of the question of interest. Even if the foregoing rule should be wrong, it does not seem to be possible that interest could run until the amount of the award had been determined; because up to that time the damages were unliquidated and there was no power upon the part of the city to pay an unascertained obligation.

We do not think it necessary to discuss further the questions which were presented by the elaborate points of counsel.

The proceedings should be reversed and sent back to the board of assessors in order that they may proceed in accordance with the views herein expressed, without costs.

Barrett and Bartlett, JJ., concur.


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    John J. Molloy, Resp’t, v. The Long Island R. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. Malicious prosecution—Burden of proof.
    In actions for malicious prosecution the burden is upon the plaintiff of showing want of probable cause and malice upon the part of the defendant.
    2. Same—Probable cause.
    Where the leading facts of a case are not in dispute the question of probable cause is one of law for the court and is not for the jury.
    3. Same.
    If the evidence is such, that a reasonable man would think a person guilty of a felony which had been committed, and especially if the stolen, articles are found with the accused, who then offers no explanation, probable cause is established and the person is protected in making complaint.
    Appeal from judgment entered upon verdict and from order denying motion for new trial.

      É. E. Sprague, for app’lt; Peter A. Hendrick, for resp’t.
   Van Brunt, P. J.

This is an action for malicious prosecution. In the month of April, 1877, a boy by the name of Thomas Keenan procured from the defendant a set of commutation books for a year’s travel between Lawrence and Long Island City. The books were procured in the name of Arthur M. Jones and paid for by a check signed by the same name. The check proved to be a forgery. The defendant corporation then caused the arrest of Keenan, who, upon being arraigned, apparently made a full and frank confession of his own share in the transaction, and stated that he obtained the check from the plaintiff; that he saw the plaintiff write it and the plaintiff gave it to him with instructions to do precisely as he did, and that plaintiff was then in possession of some of the commutation books which had been obtained by means of the check, and that the plaintiff could be found at a Third avenue saloon, which he frequented. Thereupon a complaint was made by one Cody, a special officer in the defendant’s employ, and a waraant was issued by the justice for the plaintiff’s arrest upon a charge of forgery. Cody took the warrant to New York and plaintiff was arrested by a city detective.

At the time of his arrest plaintiff produced four of the commutation books and handed them to the officer. He claims to have told the detective officer of the company that he was innocent of the charge, but he made no explanation of how he came into possession of the books. He was taken to Long Island City and arraigned the next day, and an examination was had subsequently, when the procuring of the books, the giving of the check and the fact that the check was forged was proved, and the boy Keenan repeated under oath the story which he had previously related. The examination was adjourned upon one or two occasions, and finally the plaintiff, by his counsel, waived examination and elected to go before the grand jury. The plaintiff, in his evidence upon this trial, stated that he had no chance to make an explanation and that'he did not waive examination, but the record shows that such examination was waived and it must have been done by his counsel.

The plaintiff was committed by the magistrate; he was twice indicted by the grand jury; and on his trial at the sessions a motion was made to dismiss, which was denied. At the close oí the trial the plaintiff was acquitted.

There was evidence tending to show that in consequence of certain statements made by Cody, the officer in the defendant’s employ, to the person who had gone bail for the plaintiff in the criminal proceeding, he was surrendered and remained in custody until discharged at the end of his trial.

This action was brought for malicious prosecution, and the case was submitted to the jury upon the questions of probable cause and malice.

During the progress of the charge the court instructed the jury that if they found there was a want of probable cause for suspecting or believing that this man was really the perpetrator of this crime or connected with its perpetration, and that the charge was inspired by malice, then the plaintiff would be entitled to recover.

The counsel for the defendant, excepted to that portion of the charge in which the court said it was for the jury to say whether the defendant had probable cause in this case, and also requested the court to charge that under the circumstances, as matter of law, there was probable cause, and excepted to that part of the charge in which it was stated that malice could be inferred from want of probable cause in any case.

The jury found a verdict in favor of the plaintiff and from the judgment, and from an order denying a motion for a new trial, this appeal was taken.

The rule is well settled that in actions for malicious prosecution the burden is upon the plaintiff of showing want of probable cause and malice upon the part of the defendant, and that where there is no dispute as to the facts, the question as to the existence of probable cause is one for the court. Anderson v. How, 116 N.Y., 336; 26 N. Y. State Rep., 787; Thaule v. Krekeler, 81 N.Y., 428.

In the case at bar there is no dispute as to the salient features of the case, and therefore the question of probable cause was a question of law for the court, and not for the jury. The fact that this boy Keenan had procured from the defendant a set of commutation books upon a forged check was established without contradiction. Upon the arrest of Keenan he pretended to make a full and frank confession of his connection with the transaction and that he had obtained the check from the plaintiff, had seen him write it, and that the plaintiff was then in possession of some of the commutation books which had been obtained by means of the check, and upon the plaintiff’s arrest certain of these books were found in his possession.

¡Now it is a familiar rule that the possession by a person of property recently stolen raises a presumption of guilt which may be considered by a jury and, in the absence of explanation by such person, authorizes it to infer a criminal connection with its acquisition. People v. Weldon, 111 N. Y., 569; 20 N. Y. State Rep., 112.

In the case at bar we have the proof that a felony had been committed and that the plaintiff was in possession of a portion of the fruits of the felony, and that he made no explanation of how such fruits came into his possession.

We think that under these circumstances any reasonably prudent man might safely assume that the story of the boy Keenan was true. It is true that with the books was enclosed a letter in these words: Jim, I don’t want to buy these books f I am afraid they are not all right J. Molloy.”

But in the absence of any explanation as to how he came into-possession of the books this letter contained not the slightest evidence of his innocence. On the contrary it might safely be presumed to be the mere scheme of a guilty man to attempt to> establish an innocent possession. It would appear from the evidence in the case that the plaintiff never opened his mouth for the purpose of saying how he came into possession of this property obtained upon this forged check until his trial on the indictment, contenting himself with stating that he was innocent.

We think if under circumstances such as have been stated a party has not reasonable cause to lodge a complaint, then no complaint can be made unless followed by conviction with any degree of safety. This is not the law. If the evidence is such that a reasonable man would think a person to be guilty of a felony which has been proved to have been committed, probable cause is-established and he is protected in making the complaint

It may be all very true, as claimed upon the part of the counsel for the respondent, that to arrest a person for the crime of forgery upon the statement of a self confessed criminal admittedly guilty of passing the forged instrument without seeking to substantiate his-story, warrants a finding of want of probable cause. But there is*a material feature in the case which is omitted from this statement, and that is that the plaintiff was shown to have been in possession of a part of the fruits of the crime.

It is undoubtedly true -that the detective Cody, in procuring the bail to surrender the plaintiff after he had been bailed, acted in a manner which is deserving of the highest censure; but such acts cannot make the defendant guilty of malicious prosecution in lodging a complaint which they had reasonable grounds for believing to be true.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide event Brady and Daniels, JJ., concur.


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    Theresa Branth, Resp’t, v. John H. Branth, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Contempt—Divorce—Costs.
    Costs and counsel fees awarded by a judgment in an action for divorce cannot be enforced by proceedings as for contempt.

      (Jacquin v. Jacquin, 36 Hun, 378, followed and approved; Park v. Park, 80 Ñ. Y., 156, distinguished.)

      Appeal from order adjudging the defendant to be in contempt for non-payment of costs and counsel fees contained in a decree of divorce.

      W J. Lynch, for app’lt; George F. Langbein, for resp’t
   Van Brunt, P. J.

We are of opinion that the case of Jacquin v. Jacquin, 36 Hun, 378, was correctly decided.

It is true that it appears to be in conflict with the case of Park v. Park, 80 N. Y., 156, wherein it is said that the claim that the attachment should be vacated because it was based upon the refusal of the defendant to pay the costs of the suit is sufficiently answered by the fact that it was issued for disobedience of the order of the court.

Ho such question was involved in the case of Park v. Park, as we ascertained by examining the record as it was presented to the court of appeals. The only costs, for the recovery of which the attachment was issued, were the costs and expenses of the proceedings for the attachment. And it is clear for the reasons stated in Jacquin v. Jacquin that the power to commit for nonpayment does not extend to the costs and allowances contained in the final judgment. In fact, it is evident that the court does not direct the payment of such costs in a judgment of that description, but simply allows a recovery of the same and permits judgment to be entered therefor; in this respect differing very materially from the provisions of a judgment for the payment of alimony, in respect to which no judgment can be entered, and which can only be collected by the proceedings authorized by the Code.

We think, therefore, that the order should be reversed, but, in view of the fact of its having been made relying upon the previous opinion of the general term, it should be without costs.

Brady and Daniels, JJ., concur.