author: Merwin, J.

text:
    Marcus M. Cass, App’lt, v. James Shewman, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Appeal—Exceptions.
    Exceptions to the decision of the court on the trial of an issue of law are not required in order to raise the question of the correctness of the decision on appeal.
    2. Lease—Liability op surety.
    Plaintiff leased certain lands for three years, the lease providing that the lessee should carry on the farm in a good and farmer-like manner, and prohibiting the cutting of standing timber until the down timber was used • up. Defendant executed an agreement as surety on said lease, agreeing to fulfill all the terms and conditions thereof not fulfilled by the lessee. Held, That this was a guaranty of payment, and not of collection, and that an action could be maintained thereon for breach of the conditions of the lease in failing to pay rent, committing waste, failing to do the work in á farmer-like manner, and cutting timber, without previous demand of the lessee and notice to the surety.
    Appeal by the plaintiff from a judgment entered in Schuyler county on July 6, 1891, overruling a demurrer by plaintiff to the fifth coun't or defense in the answer. Appeal, also, from an order entered July 2, 1891, regulating the form of the judgment to be entered.
    On the 3d April, 1888, the plaintiff and one Jennie D. Shew-man entered into a written agreement, by which the plaintiff leased to said Shewman bis farm of 110 acres for the term of three years from April 1, 1888, at the annual rent of $125, payable on the 1st of March of each year. It was among other things provided that Shewman, the party of the second part, should have “ fire wood and privilege to cut and use posts for fencing on said, farm, but shall not cut standing timber until down timber is used up,” and the party of the second part agreed to carry on the farm in a good and farmer-like manner.
    Upon the same occasion, and in connection with said lease, the defendant executed and delivered to plaintiff an instrument, of which the following is a copy: “ For a valuable consideration to me paid by M. M. Cass, the receipt whereof is hereby acknowledged, I hereby agree to become, and do become, security for the fulfillment of the above lease by the party of the second part, hereby agreeing to fulfill all the terms and conditions of said lease not fulfilled by said party of second part. Witness my hand this 3d day of April, 1888. Jambs Shewmah.”
    In the complaint, the lease and the guaranty of defendant are set out, and it is alleged that the lessee went into possession, and that the year’s rent of $125 that became due March 1, 1891, has not been paid. It is also alleged that the lessee has not carried on the farm in good and farmer-like manner, has committed waste, has tom down and injured fences, has injured the buildings, and has cut down and appropriated many standing trees contrary to the provisions of the agreement, thereby damaging the plaintiff to the amount of $300, which by the terms of the agreement the lessee is liable to pay; that in these respects the lessee has made default and has failed to fulfil the agreement. Judgment is demanded against the defendant for $425.
    In the fifth count or defense in the answer, it is alleged by the defendant that no demand Was made by plaintiff before the commencement of this action of said lessee for the payment of said rent, or for the performance on her part of the conditions and provisions in said lease contained, alleged in the complaint to have been broken and violated by her, or for compensation in damages for such alleged breach or for the injury as alleged to the real property ; that plaintiff had taken no steps and resorted to no legal remedy against the lessee to recover the said rent and for damages for a breach of performance of the conditions of the agreement, and had not exhausted his remedies, legal or otherwise, against the lessee.
    In the seventh count or defense, the defendant alleged that the lease or agreement set forth in the complaint was void for the reason that it was not sealed, acknowledged or witnessed.
    The plaintiff demurred to the fifth and seventh defenses in the answer, on the ground that each of said answers is insufficient in law upon the face thereof and neither contains sufficient facts or allegations to constitute a defense.
    The court in its decision sustained the demurrer to the seventh defense, giving the defendant leave to amend on payment of costs of the demurrer, but overruled the demurrer to the fifth defense and directed an interlocutory judgment to that effect. The court at the same term granted an order, which was entered July 2, 1891, directing that the demurrer to the fifth count be overruled, « and that “the defendant may enter judgment herein, dismissing said complaint, with costs, which judgment shall stand upon the record until the trial of the issue joineu in this action, and in case said action shall be determined in favor of the defendant, said judgment, together with judgment for further costs, shall stand as the final judgment in this action, otherwise to be of no force and effect.” This order and the judgment entered in pursuance thereof on the 6th July, 1891, are appealed from.

      M. M. Cass, Jr., for app’lt; Cole & Bolyen, for resp’t.
   Merwin, J.

No exceptions to the decision of the court were filed by the appellant, and the respondent therefore claims that the appellant is not in a position to question the correctness of the decision. The cases cited to sustain this view of the practice relate only to trials of issues of fact. By §' 992 of the Code of Civil Procedure it is provided that “ an exception may be taken to the ruling of the court or of a referee upon a question of law arising upon the trial of an issue of fact.” The manner in which such exceptions shall be taken is regulated by §§ 994 and 995. We are referred to no provision of the Code, or to any authority, which requires exceptions to be taken to the decision of the court on the trial of an issue of law. Under the former Code, the practice, as understood, did not require exceptions in such a case. 3 Waits Pr. 232. We think none were necessary.

Upon the merits of the demurrer the claim of the respondent, as indicated by his points, is that he is not liable until a demand is made upon the principal debtor and that “ it must be shown that she refused to fulfil the covenants, and the surety must have previous notice and a demand must also be made on him so that he may have knowledge of the breach and an opportunity to fulfil himself." To sustain this view the cases of McMurray v. Noyes, 72 N. Y., 523 ; Toles v. Adee, 91 id., 562; Bank, etc. v. Livingston, 2 Johns., Cas., 409 ; Mechanic Fire Ins. Co. v. Ogden, 1 Wend., 137, are cited.

In the McMurray case, the defendant, upon an assignment of a bond and mortgage, covenanted that if, in case of foreclosure and sale of the mortgaged premises, there should arise a deficiency, he would pay the same on demand. In an action on this guaranty it was held that the foreclosure and sale were conditions precedent, to be performed with due diligence in order to establish the liability of the guarantor. Toles v. Adee was an action upon an undertaking, given upon the discharge of a defendant from an order of arrest and conditioned that the party discharged would at all times hold himself amenable to process issued to enforce the judgment. It was held that the entry of judgment and issuing of process against the principal debtor were conditions precedent to the liability of the surety, and that a neglect to perform such conditions with due diligence discharged the surety. In Bank v. Livingston, there was an absolute guaranty of repayment of certain monies advanced to a committee. The only question raised was whether the committee should have been first sued, and it was held that this was not necessary. In Mechanic Fire Ins. Co. v. Ogden, the defendant had assigned to plaintiff certain contracts-and covenanted that the sum set opposite to each contract in a statement annexed was then justly due 'thereon, and that “ each and every sum should be well and truly paid to the plaintiffs, with the interest on each, respectively.” It was held that plaintiffs could not call on defendant for payment without first making demand of those who signed the contracts, but that it was not necessary to bring suit against them.

The first two cases are clearly distinguishable from the present. In those, something was to be done by the creditor before the liability of the surety was determined. Here the liability attached and was determined the moment the lessee failed to perform his duty, and the liability of the surety was as extensive as that of the lessee. Pothier on Obligations, 404.

The case in 1st Wend, sustains somewhat the position of defendant, but other cases are in a different direction. In Allen v. Rightmere, 20 Johns., 365, there was a guaranty by the defendant of the payment of a note, and it was held not to be necessary to make a demand of the maker before suing the defendant, it being said that the undertaking of the defendant was that the maker should pay the note when due or that the defendant would pay it himself. The doctrine of this case was followed and established by the court of appeals in Brown v. Curtiss, 2 N. Y., 225.

In Mann v. Eckford's Ex’rs, 15 Wend., 502, the obligation sued on was a bond of defendant’s testator, conditioned that one Gibbons “should punctually satisfy and pay to the J5tna Insurance Company ” the amount of a certain bond and mortgage executed by Gibbons and upon which the company had advanced the money, with interest, as the same should become due. It was held not to be necessary for the plaintiff to prove a demand upon Gibbous for payment of the money and notice to the obligor or to defendants, it being said that if a person make an unconditional engagement for the act of a third person the contract will be broken if that person fails to do the act.

In Douglass v. Howland, 24 Wend., 35, there was an agreement between plaintiff and one Bingham whereby, among other things, Bingham agreed to pay 'the plaintiff such, sum as should be found due upon an accounting provided for in the agreement. Underneath the agreement the defendant executed an instrument by which he covenanted that Bingham should “ well and faithfully perform on his part the above agreement." It was held that defendant was not entitled to notice, before action, of Bingham’s default. Among other cases there cited was the case of Brookbank v. Taylor, Cro. Jac., 685, where the promise was that the defendant would pay the plaintiff the rent due from another if the latter did not pay it, and it was held that the defendant must notice the non-payment at his peril.

In the East River Bank v. Rogers, 7 Bos., 493, the plaintiff made a loan to one Chase, payable in sixty days, and the defendant promised that if Chase failed to repay the amount, with interest, within the sixty days, “ then and in such case the defendant will become answerable to the plaintiffs for such repayment, after thirty days notice of such default.” It was held that a demand of the principal need not be made before suit against the defendant.

In Clark v. Burdett, 2 Hall, 197, there was a guaranty by defendant of payment of bills of merchandise, purchased or to be purchased, and it was held that a demand of the purchaser and notice to defendant were not necessary as conditions precedent to plaintiff’s right of action. In Turnure v. Hohenthal, 4 J. & S., 79, where a surety to a lease bound himself that in case default should at any time be made by his principal in payment of rent and in the performance of the conditions of the lease to be by him performed, he would pay the rent in arrear and all damages in consequence of the non-performance of the covenants, without requiring any notice of such default, it was held that no demand was necessary to be made of the tenant by the landlord for the rent before proceeding against the surety, and that the landlord was under no obligation to attempt to collect the rent or enforce the covenants against the tenant. A like view was taken in McKensie v. Farrell, 4 Bos., 204, and in Ducker v. Rapp, 9 J. & S., 235. In Cordier v. Thompson, 8 Daly, 172, one Perrero executed an instrument by which she agreed to return to plaintiff’s intestate a certain amount of money at a certain time, and the obligation of the defendant was in the following form: “ I guarantee the above obligation.” This was held to be a guaranty of payment and that neither demand on the principal or notice to the guarantor of default were prerequisite to an action on the guaranty. Voltz v. Harris, 40 Ill., 155, was an action upon a guaranty of a lease by which the guarantor became “ security ” that the lessee would do and perform all the covenants contained in the lease, and promised to pay to the lessors all rents and damages the lessors might sustain by reason of the non compliance or non fulfilment of the stipulations of the lease by the lessee. It was held that the liability of the guarantor was primary and that he was not entitled to notice of the non-performance of the stipulations. In Ashton v. Bayard, 71 Penn St., 139, the obligation against the surety was “ I hereby become the security of S. Coulter for the fulfilment qf the within obligation.” This referred to a due bill given by Coulter for certain shares of stock. This was held to be an original undertaking by the surety and a recovery thereon could be had without proving diligence to pursue Coulter. See, also, Brandt on Suretyship, §§ 86, 172.

In the present case, as against the lessee, no demand was necessary. Jackson v. Binns, 10 Wk. Dig., 105; McMurphy v. Minot, 4 N. H., 251. His agreement was broken when he failed to pay and when he violated the conditions of the lease. The defendant agreed to fulfil all the terms and conditions not fulfilled by the tenant. This was in effect an agreement to pay, if the lessee did not. When the plaintiff shows a breach by the lessee and nonpayment or non-fulfilment, then he shows all that by the terms of the contract he is required to show in order to make the defendant liable. The agreement of defendant was not that the lessee would pay on demand or upon suit brought, but it was absolute that he would fulfil if the lessee did not. This in substance was a guaranty of payment and not of collection. The defendant in his agreement required no demand or notice or exhaustion of remedies against the tenant. Ho duty was imposed on the lessor in the first instance to take any steps against the debtor, and that is said to be the test in order to determine whether a guaran ty'of payment or collection exists. Toles v. Adee, supra, 573.

The contracts of sureties are to be construed like other contracts; so as to give effect to the intention of the parties. People v. Backus, 117 N. Y., 201; 27 St. Rep., 173. It is hardly to be assumed here, in the absence of an express stipulation to that effect, that the intention of the parties was that the lessor should pursue the lessee to the end of an execution before calling upon the surety. In fact, that does not now seem to be claimed by the respondent’s counsel, but he relies on the question of demand and notice. This the defendant did not require by his agreement, and he was not entitled to it, any more than in "case of an absolute guaranty of payment. This view is, I think, in accordance with the current of authority, as illustrated by the cases above referred to. It follows that the demurrer should have been sustained.

Judgment and order reversed, with costs of appeal, and interlocutory judgment ordered for the plaintiff upon the demurrer, with costs, with leave to the defendant to answer in twenty days upon the payment of the costs of the demurrer and of the appeal.

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


source: Caselaw Access Project

license: Public Domain

text:
    Eliza A. Martin, Resp’t, v. The Equitable Accident Association of Binghamton, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    1. Insurance (accident)—Evidence as to amount of assessment.
    An allegation in a complaint " that an assessment under the articles of incorporation and by-laws of said defendant, at the time of the death of said assured, and for a long time thereafter, far exceeded the said sum of,” is sufficient to authorize proof of what an assessment under the provisions of the policy in question would have amounted to
    2. Same—Waiver.
    A forfeiture by reason of failure to give written notice of the accident is waived where the company, with knowledge of such forfeiture, recognizes the continued validity of the policy by requiring the insured to do acts based thereon.
    3. Same.
    The assured injured a finger of his right hand, and the evidence showed that he died from the effects of blood poisoning occasioned by the inoculation into the wound of some poisonous substance at or very soon after the injury. Held, that it was a question of fact for the jury whether the injury was within the terms of the policy and was the proximate cause of the death.
    Appeal from a judgment entered in Broome county June 1, 1891, upon a verdict in favor of the plaintiff for §5,512.50, directed by the court at the Broome circuit, May, 1891; also from an order denying a motion for a new trial upon the minutes.

      David Murray, for app’lt; Carver, Deyo & Jenkins, for resp’t.
   Merwin, J.

This action is brought upon a certificate of membership, issued, by the defendant on the 23rd November, 1883, to William A. Martin, the husband of the plaintiff, agreeing to pay to the plaintiff the principal sum, not exceeding $5,000, realized upon an assessment in accordance with the by-laws of the defendant, within sixty days after due and satisfactory proof that the member, at any time during the continuance of the membership, shall have sustained bodily injuries, effected through external, violent and accidental means, within the intent and meaning of the contract, and the conditions thereunto annexed, and such injuries alone shall have occasioned death within ninety days from the happening thereof. One of the conditions referred to was that the benefits under the certificate should not extend to any bodily injury happening directly or indirectly in consequence of any disease, nor to any death or disability which may have been caused wholly or in part by bodily infirmities or disease existing prior or subsequent to the date of the certificate, nor to any case except where the injury is the proximate and sole cause of the disability or death. Another of the conditions was that immediate notice of the injury should be given to the defendant in writing and’ that failure to give such notice within five days from the happening of the accident should invalidate all claim under the certificate.

It was alleged in the complaint that on the 27th April, 1889, William A. Martin accidentally cut or wounded a finger on his right hand and that some substance was at or about the same time, either from the instrument that made the cut or wound or from some other source or manner unknown to plaintiff, accidentally communicated to the cut or wound, and blood poisoning ensued and the assured died from said injury or injuries on the 10th May, 1889, and that said death was occasioned alone by said accidental injury or injuries. The defendant, in its answer, claimed that the death was due to disease and that written notice of the injury had not been given as required by the conditions of the certificate.

At the trial evidence was given by the plaintiff tending to substantiate the allegations of the complaint, and that the written notice of the injury had been waived by the defendant. It also appeared that on the 8th April, 1889, Martin had accidentally received an injury upon the thumb of the left hand; had badly bruised it; that the thumb became quite swollen, was lanced about ten days or two weeks after the injury ; that after it was lanced it continued to suppurate up. to the time of the second injury, and that virus from this sore upon the thumb may have been in some way communicated to the second injury at or about the time of its occurrence and produced the blood poisoning. How the second injury happened is not shown by direct evidence. A piece of flesh about the size of a pea was taken from the finger, and there is evidence leading toward the inference that this was torn out in the use by Mr. Martin of an umbrella that he had been accustomed to use during the existence of the sore on bis other hand.

At the close of the evidence, the court held, as matter of law, that the plaintiff could recover though the death was caused by blood poisoning caused by the pus from the first wound, and that the only question for submission to the jury was in relation to the waiver of the condition of written notice. Upon the latter question, as the defendant did not ask to go to the jury upon it, the court also held upon that in favor of the plaintiff, and directed a verdict for the amount claimed.

The appellant claims (1) that the assured came to his death from a disease known as “blood poisoning” contracted by or through contact of the sore on the right hand with diseased matter from the sore on the thumb of the left hand, and that it was error to direct a verdict for the plaintiff; (2) that there is no evidence from which waiver of notice can be held as matter of law or at all; (3) that the court erred in admitting evidence of the amount of an assessment.

Upon the last proposition the defendant claims that the allegation in the complaint was not broad enough to admit the evidence. The allegation was “ that an assessment under the articles of incorporation and by-laws of said defendant, at the time of,the death of said assured, and for a long time thereafter, far exceeded the said sum of $5,000.” This evidently referred to an assessment such as the certificate or policy in question called for, and, under it, it was competent to show what an assessment under the provisions of the policy would have amounted to.

The rule upon the subject of waiver has been quite definitely settled by the court of appeals. The failure to give written notice would result in a forfeiture. In regard to such a case, it is said, in Titus v. Glens Falls Ins. Co., 81 N. Y., 419, that “it may be asserted broadly that if, in any negotiations or transactions with the insured after knowledge of the forfeiture, it (the company) recognizes the continued validity of the policy, or does acts based thereon, requiring the insured by virtue thereof to do some act or incur some trouble or exposure, the forfeiture is as matter of law waived; and it is now settled in this- court, after some difference of opinion, that such a waiver need not be based upon any new agreement or an estoppel.” This principle was followed in Roby v. A. C. Ins. Co., 120 N. Y., 510; 31 St. Rep., 560. There was evidence in the present case sufficient to warrant a finding of waiver under the rule as above laid down. Very likely upon this subject the defendant would have had the right to go to the jury, had it been requested, but as no such request was made when the attention of counsel was called to it, the defendant cannot complain that the court decided it.

Upon the other issues, did the court err in ordering a verdict for the plaintiff ?

The evidence showed that the death was produced by blood poisoning, and that this was occasioned by the inoculation into the wound of some poisonous substance at or very soon after the wound was made. If the inoculation occurred at the time the wound was made, so that it was in fact a part of the accident, I see no good reason why the death might not be attributed to the accident as the sole and proximate cause, although blood poisoning ensued. The latter would be produced ,by the accident, and within tne distinction recognized by Judge Peckham in Bacon v. U. S. M. A. Ass’n, 123 N. Y., 308; 33 St. Rep., 591. Whether, as a result from the first injury, the plaintiff might not have a cause of action therefor is not involved here, as no such cause of action is alleged in the complaint

In Martin v. Manufacturers' Accident Ins. Co., 40 St. Rep., 17, which was an action brought by the same plaintiff as in the present case_upon a similar certificate issued by another company, and having reference to the same accident and death, it was held by this court that the question whether the death ensued from injuries covered by the provisions of the policy was for the jury to determine. The evidence in that case on the subject was substantially as here. Following that case, it became here a question of fact for the jury to determine whether the injury complained of was within the terms of the policy, and was the proximate and sole cause of the death. This involved the question whether the death was caused wholly or in part by any disease within the meaning fil the policy.

We think the case should have been submitted to the jury, and that a new trial should be granted.

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

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


text:
    James Van Camp, for himself and all other legatees under the will of Ann Jennette Van Camp, Resp’t, v. Albert Fowler, Ex’r of Oliver H. Perry, Deceased, et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    Former adjudication—Construction on will.
    The will of defendant’s testator gave his estate to his executor in trust during thelife of his wife, and until the majority of his son, and upon the death of the wife and the majority of the son gave the whole estate to the son. The son having died before the widow, she brought action against the executor for a construction of the will, and a direction to the executor to pay the fund to her as heir of the son, in which action it was adjudged that she was entitled to accumulations of income, and that the executor invest the fund and pay her the interest and so much of the principal as was necessary for her support, and remain subject to the order of the court, as to all things connected with the trust, lleld, that this judgment- did not determine what should become of the fund at the death of the wife, and was not a bar to an action by legatees of the widow against the executor and heirs of his testator for a construction of the will and for a recovery of the fund.
    Appeal from a judgment entered in Onondaga county on 9th June 1891, upon the decision of the court at the trial at Onondaga special term, June, 1891.
    The facts of this case as appearing on this trial are substantially the same as upon a former trial, which was considered by this court on appeal and is reported in 59 Hun, 811; 86 State Rep., 580. The facts sufficiently appear in the report of the case.
    Upon the last trial, the court decided that by the provisions of the will of Oliver H. Perry, deceased, a trust estate was created in the defendant, Albert Fowler, for the support and maintenance of the widow, Ann Jennette, during her lifetime, and for the education and maintenance of the son, Walter T. Perry, during his minority ; that the son had a vested estate in and to all the property of his father which remained after the execution of the trust imposed by the will, which said estate became absolute and vested in the son upon the death of his father; that, upon the death of the son, bis mother acquired as his heir and next of kin all the right, title and interest which the son had in and to the property of his father, sub j ect however to the trust imposed by the will for her support, and this interest she had a right to dispose of by will, and upon such disposition it passed to her legatees and devisees ; that the present representatives and legatees of Mrs. Van Camp are entitled to the avails of the estate of said Oliver H. Perry now in the hands of Albert Fowler as trustee and executor, and he should account and pay over the same to the executor or personal representatives of Mrs. Van Camp; that the defendants, Jennette Fowler and others, being the brothers and sisters of said Oliver H. Perry or their representatives, have no right, title or interest in the fund in the hands of said Albert Fowler as executor, etc. Judgment was directed and entered accordingly, and all the defendants, except Levi Fowler, as executor, etc., of Mrs. Van Camp, appeal.

      Ceylon H. Lewis, for app’lts; William M. Ross, for resp’t
   Merwin, J.

The controversy in this case is over the ownership of the final residue of the estate of Oliver H. Perry, deceased. His widow and son survived him, and the will provided for the support of the widow during her life and of the son during his minority. The son died intestate and before his mother. Then the mother died leaving a will under which the plaintiff claims, the executor thereof being a party defendant.

The claim of the plaintiff is that the balance of the estate, after providing for the support of the widow and son in the manner specified in the will, vested in the son as of the time of the death of the testator, and therefore passed upon the son’s death to his heir and next of kin, being his mother. The claim of the appellants is that the son had no vested interest, and that upon his death before the termination of the trust provided for in the will the balance of the estate passed as undisposed of property to the brothers and sisters of» Oliver H. Perry, deceased, or their representatives.

We find no sufficient reason for reconsidering the questions passed upon by us on the former appeal. Our conclusions there were adverse to the claim of the present appellants. The questions there passed upon comprise all now presented by the appellants, except the question as to the effect of the judgment in the suit brought in 1868 by Mrs. Van Camp against Albert Fowler, executor, etc., of Oliver H. Perry, deceased. The appellants claim that this judgment is a bar to the claim of the plaintiff, upon the theory that it in effect adjudged, or might have adjudged, that Mrs. Van Camp, as the heir and next of kin of her son, was not the owner of what might remain of the fund at the termination of the trust.

That action was by Mrs. Yan Camp individually and the sole defendant was Albert Fowler, as executor. In the complaint, the will of Oliver H. Perry was set out and its probate in February, 1864, and the issuing of letters testamentary to the executor, Albert Fowler, the remarriage of the plaintiff in March, 1866, the death of the son in August, 1866, intestate, and leaving his mother, the plaintiff, his only heir and next of kin, her appointment as administratrix of his estate on October 14, 1867, the amount of the estate of 0. H. Perry and the amount in the executor’s hands. It was also alleged that the plaintiff had called on the executor to render an account of the estate to her and pay the same over to her or some part thereof, but he refused, alleging that under the will he had no legal right to do so; that she claimed that under the will the executor had no right to the possession of the- estate after the death of the son, but that upon his death the estate passed to his heir at law and personal representatives, and that she, as heir at law and administratrix, was entitled to the same; that she had not any legal source from which to derive means for a comfortable support, and that defendant refused to pay her out of said estate, or the uses and profits thereof, any sum whatever toward her support. An accounting was demanded, and a construction of the will to the end “that it may be determined and settled what are the rights of herself and of said defendant under said will,” and that the defendant might be adjudged to pay over to her the amount of the estate in his hands or such part thereof as she may be adjudged to be entitled to, annually or otherwise.

The answer was a general denial. In the decision of the court, the execution of the will, its probate and issuing of letters were found as charged, also the remarriage of the widow and the death of the son, and that the amount of the estate in the hands of the executor subject to the provisions of the will was $8,067.94. As matter of law it was found that the plaintiff was legally entitled to be paid the accumulations on the balance of the fund as the same became due, and was also entitled to have the principal applied to her comfortable support, whenever she should be unable to derive such support from any other legal source, and the executor was directed to invest the fund, pay the interest to the plaintiff as it became due, and under the order of the court apply of the principal to her comfortable support whenever she was entitled to it as above provided. Upon this decision the judgment in question was entered March 5, 1868, and its last clause was as follows: “ And it is further adjudged, that the said Albert Fowler, executor, etc., be always subject to the order of any court having jurisdiction in the premises as to the rendering of accounts, as to all inquiries and examinations into his investments, and as to his removal or continuance as trustee, and as to compelling payments as hereinbefore directed, and as to any other matters and things connected with said trust estate or his trusteeship thereof.”

The judgment did not provide what should become of the fund, or what might remain of it, at the death of Mrs. Van Camp. It could not, at the time the judgment was rendered, be said that any would in fact remain. It was determined that the executor was entitled to the possession and management during the continuance of the trust, Asche v. Asche, 113 N. Y., 232; 22 St. Rep., 799, and the rights of Mrs. Van Camp during this period were provided for. The adjudication, so far as made, did not involve the determination of the ownership of the balance that might exist at Mrs. Van Camp’s death. That matter was in effect reserved by the concluding clause of the judgment. Clearly there was no intention to pass upon that subject.

The appellants who now claim the fund were not parties to that action. They were not bound by any decision as to the final ownership. There was not in this respect any privity between them and the executor. They do not hold or claim under the executor, or for that matter under the will. Rot being themselves bound, they cannot say the plaintiff is bound. Freeman on Judgments, § 159 ; Brower v. Bowers, 1 Abb. Ct. App. Dec., 219; 1 Greenl. Ev., § 524.

It follows that the judgment of 1868 is not a bar to the present-action, and the judgment now appealed from should be affirmed.

Judgment affirmed, with costs.

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


text:
    The City of Binghamton, Resp’t, v. The Binghamton & Port Dickinson Railway Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November 21, 1891.)

    Railroad—Liability of street railroad to repair between tracks.
    Defendant’s charter required it to keep the surface of the street between its tracks and for one foot outside thereof in good and proper order and. repair. At the time of the construction of its road the street was not paved. Subsequently the common council directed the paving of the street with asphalt. Defendant failed to so pave between its tracks, and this action was brought to recover the amount paid by the city therefor. Held, that defendant’s charter did not require it to pave unless it was clearly shown to be necessary; that the declaration of the common council that an asphalt pavement should be laid did not, as against defendant, presumptively prove the necessity of such pavement, and that a breach of defendant’s agreement to keep such space in repair was not shown.
    Appeal from a judgment entered in Broome county on the 23d day of March, 1891, upon the report of a referee in favor of the plaintiff for $5,181.12 damages, besides interest and costs.

      Edmund O'Connor, for app’lt; A. D. Wales and Charles F. O'Brien, for resp’t
   Merwin, J.

This action is brought to recover the expense of paving between the defendant’s railway tracks on- Chenango street in the city of Binghamton from the Erie railway northerly to the north line of the city.

The plaintiff was incorporated as a city by chapter 291 of the Laws of 1867. By this act, the mayor and common council were made commissioners of highways and given the general powers of commissioners in towns. They were also given the power to regulate, pave, repair and improve the streets. It was however provided that, before any paving should be ordered, it should be necessary that two-thirds of all the owners of real estate fronting upon the street to be paved petition or consent that the same shall be done. The expense of paving was directed to be assessed upon the owners in proportion to the number of feet frontage, except that when the street was paved for the first time, two-thirds only of the expense should be assessed on the owners and the remainder be paid from the highway fund, and “such street or part of street shall, after such first payment as aforesaid, be kept in repair at the expense of the city.”

The defendant was incorporated by chapter 501 of the Laws of 1868, passed May 1, 1868. By this act, the defendant was authorized to construct and operate a railroad, with a double or single track, through and along certain streets and public roads of the city and town of Binghamton. One of the designated streets of the city was Chenango street. The mayor and common council of the city and the proper authorities of the town were “authorized and directed to grant permission to the company herein named, or their assigns, to construct, maintain, operate and use said railroads in, upon and along the several streets and highways herein mentioned.” It was further provided that the cars should be drawn by animal power, and “ the tracks of the said railroad shall be laid flush with the surface of the said streets and highways, and shall conform to the grade as it now is, or shall be from time to time established or altered by the proper authorities in 'each case; and the said company and their assigns shall keep the surface of the said streets and highways within the rails, and for one foot outside thereof, and to the extent of the ties, in good and proper order and repair.” On the 21st August, 1871, the common council of plaintiff granted the defendant authority as directed by the act.

Prior to January 2, 1872, the defendant, pursuant to the powers, rights and privileges granted it, constructed its track through Chenango, Court and Main streets, and has, at all times thereafter, run its cars over its track and operated a horse surface railway through those streets.

Oil the 2d January, 1872, the common council of the plaintiff adopted an ordinance in relation to street railroads, which in substance provided that all street railroad companies that should thereafter maintain railroads in any of the streets should, under the direction of, and as required by the common council, “improve with such suitable materials as the common council shall direct and in a proper manner, between the rails, and shall keep the surface of the street inside the rails in good repair,” and in default thereof the common council should have the right to cause the repairs to be made and assess the expense thereof upon the property of the company or sue for the same.

The charter of the plaintiff was revised by chapter 214 of the Laws of 1888. Under it, as so revised, paving could be ordered without first requiring the consent of any part of the abutting owners, and in all cases . one-half the expense was to be assessed upon the owners according to extent of frontage, and it was provided that “ all repairs on said streets or parts of streets, not including grading and paving or repaving, as aforesaid, shall be done at the expense of the city.”

On the 16th April, 1889, the common council adopted the following resolution:

“Whereas, persons owning a majority of the property fronting on Chenango street, in the city of Binghamton, N. Y., between the railway tracks and the north line of the city, have subscribed a petition asking this council to pave said street between said points with Trinidad asphalt pavement, with concrete foundation, now, therefore, be it

“ Resolved, That we deem it for the best interest of said city, and the public good demands, that said street be paved withs aid pavement and foundation, and be it further ■

“ Resolved, That we will pave said street from the railway tracks to the north line of said city with Trinidad asphalt pavement, with concrete foundation, and that the city engineer and corporation counsel be and they are hereby directed to prepare proper specifications for said pavement, and report the same to this council at the next meeting thereof, that the city clerk may prepare and give the necessary notice in the official paper for proposals to build said pavement.”

On the 22d April, 1889, plans and specifications were reported and adopted, advertisement for proposals was thereafter made, and on the 21st May, 1889, the common council accepted the bid of the W arren Scliarf Paving Company to construct the pavement at $2.80 per square yard. On the 11th June, 1889, the council adopted a resolution directing the defendant to place its tracks on the established grade, and that it pave within its tracks and one foot on the outer side of said track with Trinidad asphalt pavement, with a concrete foundation, according to the specifications for the paving said street, now on file in the city clerk’s office,” to be completed within thirty days after the service on the company of a copy of the resolution. The resolution was duly served on the defendant, and it put its tracks on the grade, but refused at all times to fill between the tracks with asphalt pavement, or pay for the same, but did offer to pave between the tracks with wooden blocks. The pavement was laid by the paving company under its contract with the city, and one-half the expense was paid" by the abutting owners, and the other half by the city. The street had not at any time prior thereto been paved. The expense of paving between the rails of defendant’s tracks at the rate of $2.80 per square yard was $5,181.12. This sum the common council assessed upon the defendant under the ordinance of 1872, but it has not been paid.

In the complaint, the ordinance of January 2, 1872, is alleged as a foundation of liability against the defendant, and this position was apparently urged at the trial, but the referee held that the plaintiff could not base its claim on that ordinance. The correctness of this ruling is not here questioned by the counsel for the plaintiff, and it need not be further here considered. The referee, however, held that under the provisions of chapter 501, of 1868, the defendant became obligated and bound itself to pave the surface of the street, within the rails of its track and for one foot outside thereof and to the extent of the ties, when duly requested or directed by the proper authorities of the plaintiff, and in the manner and with the material designated and directed by such authorities. Upon this theory, he ordered judgment for the amount claimed by plaintiff. The claim of the defendant is that the expression in the act of 1868, “ in good and proper order and repair,” does not include paving, and that it does not impose on defendant an obligation to reconstruct the surface of a portion of the street at the arbitrary will of the plaintiff. •

There are many cases in which a distinction is recognized between paving and repairing. In the Matter of Repaving Fulton Street, 29 How., 429, where Eulton street, in the city of Brooklyn, having then a cobblestone pavement, was repaved with Belgian ¡lavement, it was held that the work was not a repair of a street and the expense chargeable to the city, but a local improvement and, therefore, the subject of a local assessment. In The State ex rel. The City of Kansas v. The Corrigan Consolidated Railway Co., 85 Mo., 263, the obligation on defendant was that “ the space between the rails of said track, and the street for a space of two feet on either side and along the line of said track, shall be kept and maintained in good repair by said railway company.” The street was then unpaved. The city authorities afterwards determined to pave the street with sandstone blocks, to be laid upon a foundation of concrete nine inches thick, and called upon the railway company to pave in that way between its tracks. It was held that the defendant was not liable, it being said that an obligation to repair a street is not an obligation to construct thereon a new pavement. A similar view was taken in Mayor of Baltimore v. Scharf 54 Md., 499, 525, where the obligation on the street railroad company was to keep its track and two feet on each side of it “ in thorough repair,” and the improvement was to repave with Belgian pavement in place of cobblestone. In Western Paving & Supply Co. v. Citizens' Street Railway Co., 26 N. E. Rep., 188; S. C., 28 id., 88, the obligation was that “ the said company shall keep the tracks, and two feet on the outside of each rail, together with all bridges and the crossings of all gutters, at all times, in good repair, to the satisfaction of the common council.” It was held that the company could not be compelled to pay the expense of regrading with asphalt.

Upon the other hand, in Middlesex R. R. Co. v. Wakefield, 103 Mass., 261, 266, it is said that no sound distinction can be made between needful repairs and such improvements as are required by the public good. In People ex rel. City of Detroit v. Fort Street & Elmwood Railway Co., 41 Mich., 413, it was assumed that a liability to keep “ in good order and repair " included paving. And so it was in Ridge Avenue Railway Co. v. Philadelphia, 124 Pa. St., 219, under an obligation to keep “in perpetual good repair.” In Huggans v. Riley, 125 N. Y., 88 ; 34 St. Rep., 458, it was_ held that a commissioner of highways, under the power given him to repair highways, may build a new bridge when necessary to connect the two portions of a highway interrupted by an intersecting stream. This was placed on the theory that it was necessary in order to make the highway passable.

In the present case, the liability was assumed in 1868 at a time when the road was not paved, and it may be assumed that since that time the use of the road has largely increased. The liability however upon the defendant to keep it in good and proper order and repair was continuing, and what would be necessary for that purpose would depend upon the situation at the time the performance of the covenant was called for. A condition of things may be imagined that would call for some kind of paving in order to reasonably perform the agreement. Whether a kind that would amount to a reconstruction of the street would in any event be within the agreement is a matter of some doubt. The necessity of such, to say the least, should be clearly made to appear.

The liability in question is somewhat similar to the liability upon a railroad company, under the general railroad act, to restore a street or highway that it uses to its former state or to such state as not unnecessarily to have impaired its usefulness. In such case the company is bound not only to restore the street to its former state but to keep the portion used by it in a reasonable state of repair. Of such a liability Judge Earl says, in Gilmore v. City of Utica, 121 N. Y., 572; 31 St. Rep., 880, “ that certainly does not bind a railroad company, whenever the municipality shall resolve to pave or repave a street, to conform its repairs to the absolute directions and requirements of the municipality.”

In the case before us, there is no finding or proof that, at the time the common council of the city ordered the asphalt pavement, the space in the street occupied by the defendant was not in good and proper order and repair, or that the pavement was necessary for the purpose of keeping the street in such a condition, except as it may be inferred from the act of the city authorities in directing the pavement The question then arises whether such act in those respects binds the defendant, or is proof against it of any facts in controversy. The counsel for the plaintiff claims in effect that the resolution of the common council is presumptive evidence that the asphalt pavement was necessary and proper, and cites the case of Tingue v. Village of Port Chester, 101 N. Y., 294; 1 St. Rep., 9. In that case it was simply held that in an action to restrain the sale of land for non-payment of an assessment for a local improvement and to set aside the assessment because of alleged invalidity in the proceedings, the burden is on the plaintiff to establish the invalidity complained of. In Mayor, etc., of New York v. Second Avenue Railroad Co., 102 N. Y., 572 ; 2 St. Rep., 526, it was shown on the part of plaintiff that the street was out of repair, that the defendant, after due notice, neglected to put it in repair as required by its covenant, and thereupon the plaintiff proceeded to make the repairs at a certain cost for labor and materials, employing laborers at the usual wages and purchasing materials in the usual way. It was held that prima fade the amount expended was the measure of plaintiff’s recovery. These cases do not help us here.

The rights of the defendant were obtained from the act of the legislature. The city authorities had no right to increase the burden on defendant. They were given the right to establish and alter the grade but were not given the right to say what materials the defendant should use, or to decide what was necessary for defendant to do. The defendant having accepted the grant and built its railroad, there existed between it and the people, represented, as we may here assume, by the plaintiff, an obligation in the nature of a contaact. Commonwealth v. Proprietors of New Bedford Bridge, 2 Gray, 339 ; Chicago v. Sheldon, 9 Wall., 50. That being so, it is not in the province of either party by its own declaration to interpret the contract or fix the extent of the liability of the other. In the case cited from Gray, page 350, it is said : “ The interpretation and construction of contracts, when drawn in question between the parties, belongs exclusively to the judicial department of the government. The legislature have no more power to construe their own contracts with their citizens than those which individuals make with each other.” See also Cooke v. Boston & Lowell R. R., 133 Mass., 188; State v. St. Paul, etc., Railway Co., 35 Minn., 138; 3 Wood’s Railway Law, § 491.

_But it may be suggested that the city authorities had absolute authority to pave the street and direct the kind of pavement. The same statute that gave this authority provided for the manner of the payment of the expense of such paving, and did not charge any part of it on the street railroad company. The obligation of the defendant was not in any manner affected. It still continued liable to keep the portion of the street used by it in good and proper order and repair. So, it was ‘the duty of the common council, as commissioners of highways, to see to it that the streets were in proper repair, and the city was chargeable with the expense. This did not give them power to say what the defendant should reasonably have done in order to perform its agreement. Cooke v. Boston & Lowell R. R., 133 Mass., 188; 2 Wood’s Railway Law, 976, § 271. In United States v. Ross, 92 U. S., 281, it is said that the presumption that public officers have done their duty does not supply proof of independent and substantive facts.

It follows that the defendant is not bound by the determination of the plaintiff’s common council that an asphalt pavement should be laid. Such determination does not as against the defendant presumptively prove the necessity of such pavement. The plaintiff here seeks to recover damages for the non-fulfilment by defendant of its agreement. It is, therefore, incumbent on plaintiff to show, according to the ordinary rules of evidence, breach of such agreement and what expense has, by reason thereof, been incurred by it that was reasonably necessary. Neither of these things are shown. The plaintiff cannot, by its own declaration, determine the fact of breach, and cannot arbitrarily fix the method of repair.

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

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


author: Newburger, J.

text:
    John A. Nesbit, Resp’t, v. Elizabeth A. Mathews, App’lt.

      (City Court of New York, General Term,

      Filed November 16, 1891.)

    1. Money had and received—Jurisdiction of city court.
    Defendant held title to certain real estate for the benefit of plaintiff and his brother, which property was sold. Reid, that an action to recover plaintiff’s share of the proceeds of sale was not an action to create a trust, but one for money had and received, and that the city court had jurisdiction thereof.
    2. Triad—Requests for direction of verdict.
    Where both parties request a direction, and defendant fails to request a submission of the questions of fact to the jury, he thereby waives all objections to the mode of trial, and must stand on the exceptions taken.
    Appeal from judgment entered on verdict directed in favor of plaintiff.

      Martin J. Keogh, for app’lt; Guggenheimer & Untermeyer, for resp’t.
   Newburger, J.

This action was brought to recover the sum of $191.38, for money had and received by defendant for the benefit of plaintiff.

It appears that the defendant held title to certain real estate in the city of Hew York for the benefit of the plaintiff and his brother.

The property was sold, and after satisfying liens there remained in the hands of the defendant the sum of $382.77, one-half of which belonged to plaintiff, and for which sum this action was brought.

On the trial of the action, defendant moved to dismiss the complaint, claiming that the action was one to create a trust, and that this court therefore had no jurisdiction; this motion was denied, and exception taken.

The trial justice properly denied the motion. The evidence clearly shows that the defendant received the moneys for the benefit of the plaintiff, and this action was properly brought

At the close of the case, both parties moved for a direction, which resulted in the court directing a verdict for the plaintiff, to which no exception was taken by defendant.

It has uniformly been held that where both parties request the court to make a direction, and defendant fails to request the submission of the questions of fact to the jury, he thereby waives all objections to the mode of trial and must stand upon the exceptions taken.

A careful inspection of the printed case fails to disclose any exceptions showing error on the part of the trial justice.

Judgment must be affirmed, with costs.

Van Wyck, J., concurs.


author: Fitzsimmons, J. Newburger, J.

text:
    Samuel Schurr, Resp’t, v. The New York & Brooklyn Suburban Investment Co., App’lt.

      (City Court of New York, General Term,

      Filed November 16, 1891.)

    1. Corporations—Contract—Ultra Vires.
    Defendant was organized to tray, improve and sell suburban real estate. Its president employed plaintiff to induce persons to organize corporations which would locate on its land, and do their manufacturing there. Held, That such act was not ultra vires; that it was clearly within the scope and policy of defendant’s incorporation, and tended to aid it.
    2. Same—Power of president to contract—Ratification.
    Even if the defendant’s president had no power to make such contract with plaintiff, yet as defendant accepted the benefits and profits resulting from plaintiff’s services, it must be held to have sanctioned the employment, and was liable to pay for such services.
    (Newburger, J., dissents.)
    Appeal from judgment in favor of plaintiff, entered on a trial by the court without a jury.

      A. H. Sarasohn, for resp’t; Francis H. Van Vechten, for app’lt.
   Fitzsimmons, J.

The defendant is a corporation duly authorized to purchase, hold, sell, improve and lease real estate and buildings, manufacture, purchase, sale, use of building stone, lumber and other materials, and to do its business within certain counties of this state.

In pursuance of its corporate privileges, the defendant purchased certain lands in Bellport, Suffolk county, N. Y., and desiring to improve said property so as to be better able to sell the same, its president, Mr. Walker, engaged the plaintiff as its agent to induce persons to organize corporations or companies who would locate on the property of defendant and manufacture their goods there, and agreed to pay him for such services two per cent, on the capital stock of such companies.

The plaintiff caused to be organized two such corporations, the aggregate capitalization of which amounted to $36,000; one of these corporations manufactured shirts, the other one cigars.

This action is brought to recover the compensation fixed by the above contract, viz.: $720.

The main defense is that said contract was and is ultra vires and void, and that the person making the same was not authorized to do so.

The action was tried without a jury and judgment rendered in plaintiff’s favor, which in my opinion should be affirmed.

The defendant, it appears, is mainly engaged in the business of buying and selling suburban lands, and undoubtedly buys as cheaply as possible and sells at the highest obtainable prices; to enjoy the latter advantage such lands must, of course, be made attractive, and I think that one of the most valuable, substantial and enduring aids to the accomplishment of that end is the presence of factories, which invariably attract both capital and labor, and these two powerful factors in turn attract various other kinds of businesses, and also people seeking homes, all of which would, certainly very greatly assist the defendant to carry out the practical purpose of its incorporation; to sell its lands; in fact I cannot conceive a surer way to do so. The contract made by defendant’s president when he engaged the plaintiff greatly aided the defendant in the prosecution of its business; he had the right to employ the plaintiff as defendant’s agent to induce persons and corporations to locate and do business on its lands; such act was not ultra vires, but was clearly within the scope and policy of defendant’s incorporation.

The defendant further contends that even if such contract is not ultra vires, it is void, because it does not appear that its president was authorized to make the same; however that may be, it is certain that it accepted the benefits and profits flowing from that contract; fair dealing, honesty and the law, I think, now require it to bear its burden.

When a person is employed by a corporation by one assuming to act on its behalf, and renders services according to the agreement with the knowledge of its officers and without objection on their part, the corporation will be held to have sanctioned the contract, and will be compelled to pay for the services according to the agreement. O’Hara v. Lamson & Goodnow Mfg. Co., 2 City Ct., 159.

It is now very well settled that a corporation cannot avail itself of the defense of ultra vires when the contract has been fully performed by the other party and the corporation has had full benefit of the performance and of the contract. “ Upon the general ground of reason and justice no such answer can be set up.” “ The executed dealing of corporations must be allowed to stand for and against both parties, where the plainest rules of good faith require.” Whitney Arms Co. v. Barlow et al., 63 N. Y., 70, 71.

The judgment appealed from should be affirmed, with costs.

Van Wyck, J., concurs.

Newburger, J.

(dissenting.)—This action was brought to recover commissions for services rendered by plaintiff upon a special contract with defendant, in organizing certain manufacturing corporations.

The defendant is a corporation organized under the act of 1848, for the purpose of purchasing, taking, holding, possessing, selling, improving and leasing real estate and buildings, manufacture, purchase, lease, sale, use of building stone, lumber and other building materials.”

The agreement was not in writing, but is alleged to have been made between plaintiff and three of the trustees of the defendant corporation, but there is no evidence that the contract was authorized by the corporation through its board of trustees. Whatever powers were conferred on the corporation must be exercised in its behalf by the trustees. They, acting as a board, can make or authorize acts binding on the corporation, and they alone. The qualification that the collective authority of the trustees acting as a board is essential in order to bind the corporation by the action of the trustees, is a recognized doctrine of the law of corporations. People's Bank v. St. Anthony's R. C. Church, 109 N. Y., 521; 16 St. Rep., 856.

The trial justice, therefore, erred in finding that the defendant employed the plaintiff; the judgment must be reversed, and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


text:
    George E. Bush, App’lt, v. The Christopher & Tenth Street Railroad Co., Resp’t.

      (City Court of New York, General Term,

      Filed November 16, 1891.)

    Trial—Direction oe verdict.
    In an action for an assault on plaintiff by the driver of one of defend ant’s cars, the evidence as to plaintiffs right to ride on the car and as to the alleged assault was contradictory. Held, that plaintiff was entitled to have the case submitted to the jury and that a direction of a verdict for defendant was error.
    Appeal from judgment in favor-of defendant, entered on verdict directed by the court.

      Edward D. McCarthy, for app’lt; Merrill & Rodgers, for resp’t.
   Newburger, J.

This is an appeal from a judgment entered upon a verdict directed by the court.

This action was brought to recover damages for an alleged assault committed upon plaintiff by a driver of one of defendant’s cars, while plaintiff was on said car as a passenger.

On the trial it appeared that the plaintiff boarded one of defendant’s cars at Sixth avenue and Fourteenth street, paid his fare, and rode to the corner of Ninth avenue and Fourteenth street. He then got off, receiving from defendant’s agent a transfer ticket for the car that was to take passengers to the ferry. He boarded one of their cars, and deposited his ticket in the box, there being no conductor on said car. The driver then told plaintiff that he must pay his fare or get off, as the ticket he deposited in the box was not the right one. Plaintiff refused to leave, and, as he claims, was assaulted by the driver, while being removed. Defendant’s driver admits removing the plaintiff from the car, but denies that any assault was committed, or that any force was used.

At the close of the evidence, defendant moved that the jury be directed to find a verdict for the defendant, which motion was granted, and to which plaintiff excepted.

We think the trial justice erred.

The evidence as to the right of plaintiff to ride on the car, as well as the alleged assault on the plaintiff, was of a contradictory character, and whatever might have been the opinion of the court as to the value of the testimony offered, plaintiff had the right to have the same submitted to the consideration of the jury. McCann v. Sixth Avenue R. R. Co., 117 N. Y., 511; 27 St. Rep., 834.

The judgment should be reversed, a new trial granted, with costs to abide event

Van Wyck, J., concurs.


author: Van Wyck, J.

text:
    John Coyne, Resp’t, v. Solomon Feiner, App’lt.

      (City Court of New York, General Term,

      Filed November 16, 1891.)

    Lease—What constitutes.
    A written agreement signed by both parties, which contains a description, of premises and fixes the rent and time of payment as well as the time of occupancy, must be deemed a lease.
    Appeal from judgment entered on a verdict directed by the court.

      Hayes & Rothschild (Arthur J. Westermayr, of counsel), for app’lt; Thornton, Earle & Kiendl, for resp’t.
   Van Wyck, J.

The written agreement of March 20, 1886, signed by plaintiff's assignor and the defendant, is a lease of the premises mentioned for the term of three years from May 1, 1886, at an annual rental of $1,500, payable monthly in advance. The defendant.entered into possession of the premises just prior to May, 1886, under that lease, and from thenceforth the relation of landlord and tenant was established thereunder between him and plaintiff’s assignor. The defendant continued in possession under this lease for seven months and paid the rent for these months as it became due under the lease, and then without the permission or assent, expressed or implied^ of his landlord, he abandoned the same and now seeks to avoid his liability, for further rent under the lease upon the claim that by that agreement the landlord had covenanted “ to put in water closets on four floors,” which meant more than one on each floor, and that the building was not ready for occupancy by May 1st, although he went into possession by that day and continued in such possession for seven months, paying the .rent meanwhile as it fell due. The defendant does not make counterclaim for any of the damages which he claims to have suffered, but merely seeks to avoid payment of rent by reason of such damage, and he also contends that the agreement of March 20 is not a lease.

The rulings of the trial judge, excluding evidence offered by defendant, were proper, as such evidence was not admissible under the pleadings or the rules of evidence. It would seem that defendant’s main feliance, in resisting payment of rent, is that the agreement is not a lease, but in this he is wrong, for he with plaintiff’s assignor signed the same, and it contains a description of the premises and fixes the rent and time of payment as well as the time of occupancy, and must, under established rules of construction, be deemed a lease. The judgment must be affirmed, with costs.

Fitzsimons and Newburger, JJ., concur.


text:
    Julius Wallach et al., App’lts, v. Rosa Kind et al., Resp’ts.

      (City Court of New York, General Term,

      Filed November 16, 1891.)

    Bills and notes—Extension of time of payment.
    In an action upon three promissory notes the answer alleged that the time of payment had been extended. Defendants introduced in evidence a written agreement to extend in consideration of the payment of $15 down and $15 each month, and testified that the $15 was paid as a new and additional consideration for the extension. Plaintiffs introduced in evidence the first note with said $15 endorsed as a payment thereon, hut gave no testimony themselves. Held, that the court properly found that the extension was valid and based on a new and valuable consideration.
    Appeal from a judgment rendered by the court for the defendants.

      Leonard Bronner, for app’lts; Johnson & Johnson, for resp’ts.
   Van Wyck, J.

This cause was by consent tried, without a jury, before the judge, who thus became the trier of the issues of fact as well as those of law. This action was commenced on May 2, 1891, upon three promissory notes for $50 each, dated November 4, 1890, payable respectively at one, two and three months after date, and were made by defendant Eosa Kind to her own order, endorsed by the other defendant, and delivered to plaintiffs. The defense set forth in the answer was, that on February 2, 1891, the plaintiffs by written agreement extended, for a valuable consideration, the time of the payment of these notes for ten months from that date. The defendants on the trial read in ■evidence this written extension of February 2, which was signed by plaintiffs and which recited that in consideration of the sum of $15 to plaintiffs, then paid, and upon payment of $15 regularly each month, they agreed to extend the payment of these 'three notes, provided they were fully paid within ten months from that date. The plaintiffs read in evidence the one month note which fell due on December 17, 1890, upon the back of which was credited the $15 as a payment on account as made on the day the extension agreement was delivered. Plaintiffs’ counsel contends with great vigor that notwithstanding the recital in this agreement, that plaintiffs had received the $15.as a new consideration for the extension, still, that as they had themselves produced this note with that sum so credited thereon, it was clearly shown that this $15 was no new consideration passing to them, and hence - that the agreement of extension was not binding on them. However, this credit on the note made by plaintiffs themselves was not properly admissible against the defendants, especially when it was in such direct conflict with the recital in the agreement signed by plaintiffs. However, the same is in evidence without objection from or exception by defendants, and must be considered for all it is worth.

About the only disputed question of fact which the judge was called upon to determine was whether this payment of fifteen dollars was a new consideration moving from defendants to plaintiffs for the extension granted by their agreement, or whether it was merely a payment on account of the one month note which defendants were already legally obligated to pay. And this disputed question of fact was decided against the plaintiffs’ contention by the judge, as appears by his second finding of fact, whereby he finds that the extension agreement was valid and binding,> having been given for a new and additional consideratian, namely, “ the fifteen dollars then and there paid them by defendants,” and again this result is shown by his refusal to find plaintiffs’ seventh request, that this fifteen dollars “ was paid to be applied, and was actually then and there- applied on the one month note, which said note had already matured.” The record shows that the judge could not have fairly decided any way other than against the plaintiffs, for neither of them took the witness stand, nor did they give any evidence whatever which tended to show that this payment was credited, or intended by defendants to be credited, as a payment on account of this note, except that on the note read in evidence they had endorsed such payment, while, on the other hand, we have the testimony of the defendant to whom the extension agreement was delivered that the fifteen dollars was paid as a new and additional consideration for such extension, and stronger evidence still is the recital in the agreement itself that this sum was so paid. But if doubt existed, the same would be dispelled by attention to the sworn statement of the plaintiff who, on May 4, 1891, verified the complaint. He swears that the complaint is true to his own knowledge, yet it is alleged in the complaint that the one month note, upon which is endorsed the payment of fifteen dollars, as made in February, was then, May 4, wholly unpaid, and “ that no part of said sum has been paid, and there is now due and owing the plaintiffs from defendants the sum of fifty dollars, with interest thereon from the 17th day of December, 1890 (the one month note was dated November 14,1890,), besides $1.30 protest fees. This judgment must be affirmed, with costs.

Newburger, J., concurs.


text:
    Frank W. Robbins et al., Resp’ts, v. Charles Downey, App’lt.

      (City Court of New York, General Term,

      Filed November 16, 1891.)

    Account stated—When a question oe fact.
    The action was brought on an alleged account stated. Defendant denied that an account had ever been stated or balance found due from him, or that payment had been demanded. Held,, That the question as to whether an account had been stated was properly submitted to the jury as. a question of fact; that under these circumstances it was not a question of of law.
    Appeal from judgment entered upon a verdict for plaintiff.

      Phillips & Avery, for resp’ts ; Malcolm Campbell, for app’lt.
   Van Wyck, J.

This action is for a balance due on an account stated. Both plaintiffs testify that an account was stated between them and the defendant, and that the balance sued for was found to be due them from defendant, who had frequently admitted that such balance was so due and owing, and promised to pay the same, but failed to do so, although payment thereof had been demanded about twenty-five times, and that he never raised any objection to the balance as stated to him. The defendant testifies that no account had ever been stated between him and plaintiffs, that hence no balance had been found as due from him, and that no payment had been demanded, nor had he promised to pay any sum to plaintiffs. Thus it became a disputed question of fact as to whether or not an account had been so stated and a balance found as so due. And hence all that defendant’s counsel says about the decision of Lockwood v. Thorne, 11 N. Y., 170, holding thát whether the transaction amounts to an account stated is a question of law, is inapplicable, for in that case it was merely held that certain undisputed facts rendered it a question of law whether an account had been stated in that case, but it is different in this case, for here the question as to whether an account was stated is sharply contested, and is clearly in dispute. The trial judge charged the jury that before a verdict could be rendered for the plaintiffs they must determine whether an account had been stated, showing a balance due plaintiffs, which defendant had admitted as correct, and promised to pay, as testified to by plaintiffs, and if they should believe the testimony of the defendant, then that their verdict should be for him.

The amendment of the complaint was within the discretion of the judge, and was properly allowed.

The judgment is affirmed, with costs.

Newburger, J., concurs.


text:
    Garret V. Van Doren, Resp’t, v. Taylor Jelliffe, App’lt.

      (City Court of New York, General Term,

      Filed November 16, 1891.)

    Verdict—Contradictory evidence.
    A verdict of a jury in favor of the plaintiff, rendered upon conflicting evidence and under a proper charge, will not be disturbed.
    Appeal from judgment entered on the verdict of a jury in favor of plaintiff.

      E. M. Wight, for resp’t; Benjamin Estes, for app’lt.
   Van Wyck, J.

This action is brought for commissions for selling defendant’s farm situated in New Jersey. The defendant’s defenses were that plaintiff did not bring about the sale; that he was the purchaser’s broker; that no agreement of employment was made, and if any that the same was not in writing and was made in New Jersey, where a statute provides that a real estate broker cannot recover unless the contract is in writing and specifies the rate of commission, and that plaintiff was not the party in interest. The evidence clearly shows that, as to all of these defenses, disputed questions of facts were raised. The trial judge, in a carefully considered charge, which, if anything, was too favorable to defendant, submitted all of these disputed questions of fact to the jury, whose verdict was for the plaintiff, and thus their findings were that plaintiff caused the sale; that he was employed by defendant and not by the purchaser; that such employment was entered into in New York, and that plaintiff was the party in interest.

These findings are justified by the evidence and no errors of law can be discovered.

The judgment must be affirmed, with costs.

Fitzsimons and Newburger, JJ., concur.


text:
    Mark R. Muckle et al., Resp’ts, v. Arthur H. Rennie, App’lt.

      (City Court of New York, General Term,

      Filed November 16, 1891)

    1. Contract—Value of work performed.
    In an action for materials and labor furnished in making steam connec- , tians of an engine to drive a dynamo, plaintiff testified that he had seen the work and materials and that they were worth the sum claimed, and also introduced his books in evidence. Defendant, who had not seen the work, testified that it was not worth the sum claimed. Held, that a verdict for plaintiff was not against the weight of evidence.
    2. Same—Evidence—Books of account.
    Plaintiff’s books of account were admissible as part of the res gestae upon proof by the book-keeper that they were correctly kept and the entries made in the course of business immediately after the transactions occurred and proof by plaintiff that all the items included therein had been furnished and performed for defendant.
    Appeal from judgment entered on verdict for plaintiffs.

      W. Lee Cannon, Jr., for resp’ts ; W. L. Groo, for app’lt.
   Van Wyck, J.

Plaintiff sues for materials furnished and labor performed, at defendant’s request, in and about the starting of a new electric plant at Salem, N. J., and in making steam connections of an engine to drive an Arc Dynamo which defendant wanted ready for use in two or three days from time of delivery of the engine.

Plaintiff testified that he had seen the work and materials which were performed and furnished in and about the engine and its connections, and that the same were reasonably worth the sum sued for.

The defendant, who had not seen the work, testified that it was not worth near so much as the plaintiff claimed.

The plaintiff’s books of original entry were properly admitted ■as a part of the res gestae, for the bookkeeper testifies that the books were correctly kept and the entries were made in the regular course of business immediately after the transactions occurred, and the plaintiff testified that all of the work and materials as itemized in these books were performed for and furnished to the defendant. The competency of the witness Vail to testify as to the values is shown on page 33, where he says that he was assistant manager for the Westinghouse Go., whose business is steam engineering, for six and a half years. dSTo errors of law seem to have been made, and the verdict is not against the weight of evidence.

Judgment affirmed, with costs.

Newburger, J., concurs.


author: Per Curiam.

text:
    Frank V. Gillespie, an Infant, Resp’t, v. The Coney Island & Brooklyn Railroad Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed November 23, 1891.)

    Railroad—Negligence—Evidence.
    The action was brought to recover damages for injuries sustained in a collision between two of defendant’s cars, by reason of which plaintiff was thrown against a window. The answer admitted defendant’s negligence and joined issue only as to the damages. Held, that plaintiff was entitled to prove the speed of the car at the time, as such proof would tend to show the violence of his fall.
    Appeal from judgment in plaintiff’s favor, $930.79, entered upon verdict.
    The defendant railroad company operates its cars by electric power, from the southerly end of Prospect Park to Coney Island. The system used is that which is known as the single trolley system.
    The complaint of the plaintiff alleged, in substance, that the plaintiff was a passenger on one of defendant’s electric cars, and that solely through the negligence and carelessness of defendant’s agents said car collided with another of defendant’s cars, by reason of which plaintiff was thrown against a glass window, and received certain injuries.
    The answer of defendant denied knowledge or information sufficient to form a belief as to the allegations contained in the complaint.
    Upon coming into court for trial of the issues joined by the pleadings, the defendant asked to amend its answer so that the only issue to be tried should be the amount of damages sustained by the plaintiff, the negligence of .defendant being admitted. There was no objection on the part of the plaintiff, and defendant’s answer was amended accordingly.
    The plaintiff testified that he got on one of defendant’s cars on the 2d of January, 1891, and that while the car was running at ordinary speed, something occurred and he was knocked senseless on the floor. When he got his senses again, he got up and walked toward the platform. One or two gentlemen came up and told him he was hurt, and put a handkerchief around his head and one under his chin, where he was cut and bleeding; that the witness Maher came with a carriage and took him to two doctors, one of whom refused to sew it up, but said to bring him to the hospital. That he was taken to the hospital, and there four stitches, he believed, were put in his forehead and two in his chin ; that he went home, for several nights had some trouble with his sleep; that his forehead and chin swelled where they were sewed up; that the wounds were sore and sensitive to touch, and that he did not go to work for a month after the injury, because he was afraid of catching cold in his head.
    On cross-examination plaintiff testified that he went around the house the day after the accident as much as he wanted to ; that he did not go out in the yard, but did go to the door; that the accident happened January 2d, and that he remembered seeing defendant’s attorney in Mr. Backus’ office, but could not say for sure that it was in January; that he did not go back to work for a month because he was afraid of catching cold in his head where it was cut.
    Plaintiff was asked the following question:
    “ Q. Was the car running at ordinary speed? ” .

      To this question the witness answered: “Yes, sir.” Defendant’s attorney moved to strike out the answer as irrelevant, incompetent and immaterial evidence under the pleadings. The motion was denied and exception taken.

      Backus & Manne, for resp’t; H. W. Slocum, Jr., for app’lt.
   Per Curiam.

We think that the plaintiff had the right to prove the speed of the car; such proof would have a tendency to show the violence of the fall of the plaintiff. We have carefully examined the record in this case and concluded that no error was committed by the judge or the jury on the trial.

Judgment and order denying new trial affirmed, with costs.

Clement, Ch. J., and Osborne, J., concur.


author: Osborne, J.

text:
    Charles E. Pell et al., Resp’ts, v. Christian Baur, Impl’d, App’lt.

      (City Court of Brooklyn, General Term,

      Filed November 23, 1891.)

    1. Mechanic’s lien—Contract.
    Two persons submitted estimates to the owner of land, one for mason work and the (>ther for carpenter work, plumbing, etc. When the contracts were to be drawn up both told the architect to include their estimates in one agreement, and that when a payment was earned it made no difference to whom it was paid. The contract was so drawn. Held, that these facts were sufficient to justify a finding that these persons were partners or joint contractors.

      2. Same—Notice.
    A person who furnishes materials for the building in such a case has a remedy against both contractors, and a failure to insert the names of both in the notice of lien does not invalidate it.
    3. Same—Priority.
    The rights of the contractors are subject to those of a sub-contractor or material man, and the lien of the latter is entitled to priority although filed after that of the contractors.
    Appeal from judgment rendered upon a trial before the court without a jury.
    Action to foreclose a mechanic’s lien.

      A. Shiland, Jr., for resp’ts; H. M. Hitchings, for app’lt
   Osborne, J.

This action was brought to foreclose a mechanic’s lien filed by plaintiffs, and the defendant Baur appeals from so much of the judgment rendered by the special term of this court as decrees that plaintiffs have a lien next in priority to that of the defendant Tweed to the extent of $2,002.68, and interest on the fund deposited in court by the defendant Schloen, who was the owner of the premises affected by the liens filed by plaintiffs and the other defendants.

It appears from the case on appeal that, on August 13, 1890, the defendants Matthew Thornton and Christian Baur entered into a. written contract with the defendant Schloen to erect and finish the new buildings on the southeast corner of Hall street and Saratoga avenue in this city agreeable to architect’s drawings and specifications, and to provide all material proper and sufficient for the completing and finishing “ all the mason, iron, carpenter, tinner, painter, plumber and other work of the said buildings”' for the sum of §19,050, to be paid in seven different instalments, as provided in said contract. That, between September 2,, 1890, and January 16, 1891, plaintiffs sold to defendant Thornton lumber and timber used in the erection of said buildings to the-amount of §2,002.68; that on January 19, 1891, at 9.04 A. M., plaintiffs filed the notice of lien sought to be foreclosed herein for the lumber and timber so furnished by them.

The defendant Baur, in his answer, sets up that he is a mason and defendant Thornton is a carpenter; that he furnished an estimate to the owner for the furnishing of all the brick, stone- and mason work for the buildings, and that defendant Thornton likewise furnished an estimate to the owner to furnish all the carpenter, plumber, tinner, painter and other work upon said buildings; that the estimates of both Baur and Thornton were-separately accepted by the owner; that for the convenience of all parties only one contract was made and drawn between the owner of the first part and said Baur and Thornton of the second part, which included the entire work upon the buildings, but that the-interests of Baur and Thornton were separate and distinct; that, as the work progressed the owner paid to Thornton and to Baur the amounts coming to each of them according to their respective-estimates for the work done by them severally ; denies that he-ever purchased any lumber or timber from the plaintiffs; that, on January 17, 1891, Baur and Thornton executed a notice of hen for §5,050, the balance due and unpaid under said contract; that immediately thereupon Thornton assigned all his interest in said notice of lien, and the moneys due thereunder, to defendant. Baur, and Baur then executed an agreement to pay out of the moneys received by him under said notice of lien the sum of §2,700, alleged to be the balance coming to Thornton, to various-material men to whom Thornton was indebted; that on January 19, 1891, at 9.01 A. M., said notice of lien and the assignment thereof were duly filed; Baur then prays judgment of foreclosure of the lien of Thornton and Baur so filed lay him as a first lien.

The defendant Schloen paid into court the sum of §4,532, which was accepted in discharge of the liens filed against his premises.. Defendant Hilzinger, a subsequent lienor, made default in pleading.

The judgment rendered provided for the payment of the lien filed by defendant Tweed as a first claim on the fund paid into-court, and no exception is taken thereto; the judgment further-provided that, out of the moneys so deposited in court, there should next be paid to the plaintiffs the sum of $2,002.68, with interest and costs, and that defendant Baur is entitled to the balance. The contention of the defendant Baur is that, out of the-fund so deposited as aforesaid, there was due to the defendant. Thornton, on his separate estimate, a balance of $2,182, and to-the defendant Baur, on his separate estimate, the sum of $2,350, and that, by the filing of the notice of lien by Thornton and Baur three minutes before that of plaintiffs, and the assignment by Thornton to Baur of Thornton’s interest in their notice of lien, as.' well as by reason of the imperfections of plaintiffs’ lien, Baur became entitled to a judgment in his favor for the whole of said deposit, less the amount of Tweed’s lien, and this appeal, as before stated, is from so much of the judgment as gives plaintiffs a priority of payment over Baur.

The learned trial judge has found that the defendants Thornton and Baur were partners in the erection of the buildings in question; exception is taken by the appellant Baur to this finding, and it is very plain that the judgment in favor of plaintiffs is largely dependent upon the correctness of this conclusion.

It appears from the evidence, and is so found, that prior to the execution of the written contract, Schloen, the owner, received a written estimate from Thornton to furnish all the carpenter, timber, plaster and painter’s work for the buildings for $9,800, and that he also received from Baur a written estimate to furnish all the mason, iron and brick work for §9,250, and that Schloen accepted these estimates.

The testimony shows that the owner, Schloen, met Baur and Thornton at the house of Mr. Yollweiler, the architect, by appointment, to sign agreements. Mr. Yollweiler testifies: “I commenced to figure out how much each one would get when he had certain work completed. Then those gentlemen told me that they would not put me to that great bother to figure out everything separately, that they wanted to get through quick, and that I should write out the estimates for both in one agreement.

“ Q. By the Court: They would take one contract ? A. Yes, sir, one contract.

“ Q. And that is the way that contract came to be made ? A. That is the way it came.”

The owner testified that he made payments as the work progressed, to either Baur or Thornton, on the order of the architect

“ Q. Did Thornton and Baur tell you that, when a payment was earned under this contract, it made no difference to whom you paid the money, whether it was to Thornton or Baur? A. Well, they said that, if the money should be paid, they would divide.it amongst themselves.

“ Q. Did they tell you that, when a payment was made due under this contract, it did not make any difference who you paid it to, whether you paid it to Thornton or to Baur? A Well, they said that to me, yes, sir.”

Baur testifies that there was no understanding between him and Thornton about dividing the money on the payments, except that he was to get $9,800 and Thornton was to get $9,250, and that they did not intend to be partners.

The instalments to be paid under the contract, it is well to note, are in such amounts as not to be susceptible of application to make up the amount of the estimate or offer of either Baur or Thornton without dividing them up, and the periods in the progress of the work designated for the maturity of the several instalments, in almost every case, involve and require the performance of mason as well as carpenter work

When Baur and Thornton made out their notice of lien, they described themselves as the contractors who had performed the work and furnished the materials, and they described their claim as arising under the written agreement of August 13, 1890, by which they were to be paid $19,050, and that there remained unpaid the sum of $5,250. This notice of lien was signed and verified by both of them, and there is not an intimation in it of each of them having a separate contract with the owner, and being respectively entitled to balances due on such separate contracts, as Baur now claims. Again, in the assignment by Thornton to Baur of his interest in the lien Thornton describes himself and Baur as claimants for the sum of $5,050; in the agreement the assignment of Thornton’s interest in the lien is recited as amounting to above $2,700, the balance belonging to said Baur.

Now, while it is true that both Baur and Thornton testified that they had no intention of becoming partners, still, we are decidedly of the opinion that the oral evidence, in conjunction with the documentary evidence, is all-sufficient to sustain the finding of the learned trial judge that Baur and Thornton were partners in the erection of the buildings in question. The mere fact, if it is a fact, that they had agreed between themselves what work each should do, and what share of the total sum to be paid should be received by each, does not make them any the less joint contractors, as far as the work in question is concerned. It was at their suggestion that a joint contract was made by which they jointly undertook to do the work, without an intimation in it of any private understanding that each was only to be responsible for the work on which he had estimated, and the payments were arranged to be made on the basis of a joint undertaking.

We do not think that the lien was defective in that it only named Thornton as the party to whom the materials were furnished ; it is true that plaintiffs sold to him in the first instance, and gave him the credit, but, on finding that he had a partner jointly interested with Mm in the contract to build, plaintiffs’ claim and remedy was as well against such undiscovered partner. This principle is too well settled to leave room for argument. Plaintiffs having their remedy against both Bauer and Thornton as joint contractors, we fail to see how their failure to insert Baur’s name in their notice of lien can invalidate the lien; no one was prejudiced thereby ; the owner had notice, Thornton had notice, and notice to him was notice to his co-partner Baur, and there is no pretence that any one was misled or any interest injuriously affected by the omission to insert Baur’s name in plaintiff's lien. Section 25 of the lien law directs that the statute shall be construed liberally, and that a substantial compliance with its several provisions shall be. sufficient for the validity of the lien, and to give jurisdiction to the courts to enforce the same. We are of the opinion that the provisions of the statute were substantially complied with. Certainly, we do not think that the appellant Baur can be heard to complain that it was not, when we remember that the furnishing of the timber and lumber by plaintiffs was essential to the progress of the building, so that Baur might be entitled to claim that any instalment had become due and payable by the terms of the contract.

Baur and Thornton being the contractors with the owner, the lien of the plaintiffs as sub-contractors, by the provisions of § 20 of the lien law, had priority over that of Baur and Thornton, and was first entitled to be paid, before any portion of the fund deposited could be paid to Baur and Thornton. It follows, therefore, that any assignment to Baur by Thornton of his interest in the lien filed by them both was subject to the prior rights of the plaintiffs as sub-contractors, by virtue of their lien, and could not affect their right to priority of payment.

The learned counsel for the appellant raises the point before us that the trial judge had no power or right, after the rendition of his decision, to sign any other or different findings than those previously settled and signed by him upon request of both parties.

We are somewhat at a loss to discover the applicability of this proposition to the case before us. If, by it, it is intended to maintain that the trial judge is limited, in any decision that he may make, to the finding or refusing to find on the propositions that may be submitted to him by the attorneys for both parties, we cannot assent to such a contention. The trial judge, when he renders his decision, must state separately the facts found and conclusions of law. Sec. 1022, Code Civ. Pro. It is then provided by § 1023 that either party may submit a statement of facts which he deems established by the evidence, and of rulings on questions of law which he desires, and the court must pass upon them. This is precisely what the appeal book shows to have been done. These sections of the Code, with rule 32, were intended to prevent the making of additional findings and conclusions after passing upon the requests to find of both parties and the rendition of its decision by the court. We cannot see that this provision has been violated, or that the trial judge has in any manner transcended his powers.

None of the other objections urged by the learned counsel for the appellants seem to us to have any weight, or to call for any discussion.

The judgment appealed from should be affirmed, with costs.

Van Wyck, J., concurs.