author: Patterson, J. Per Curiam.

text:
    Alonzo C. Monson, Ex’r, Resp’t, v. The New York Security & Trust Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    W ill—Tbusts—Sbcumtibs.
    Where a will gives to the executors the residue of the estate in trust for the life of the widow, with poWer of sale and reinvestment, but expresses testator’s preference that investments made by him should be continued so long as. in the judgment of the executors, it could be done without loss to the estate; and upon the death of the widow directs that the proceeds and investments be divided into as many shares of a specified amount as he should have daughters then living and of daughters who had died leaving descendants, ana hold the same in trust for such daughter during her life, Held, that it was the intention of testator that each of the trusts should consist of the specific sum mentioned in money value only; that there was no specific gift of the securities as they should stand at the death ■ of the widow, and that the trust sums are not to be augmented by an increase in value of the particular securities of the whole estate on the theory that portions of those precise securities should have been devoted to constitute the investment of each trust fund.
    Appeal from judgment of special term, entered upon decision of the court
    Action to obtain a settlement of accounts and discharge of plaintiff as executor and trustee under the will of Eeuben Withers, deceased.
    The will was as follows :

      First. I will and direct that all my just debts and funeral expenses be paid by my executors so soon as conveniently may be done after my decease. Second. I give and bequeath to my dearly beloved wife, Matilda Anne Withers, all my wines, liquors and family stores which may be in the possession and use of myself and my family at the time of my decease forever. Third. I bequeath to my son Alfred D. Withers the interest now accrued and which shall hereafter accrue during the residue of his natural life upon the two bonds and mortgages, one made by Caleb La Grange (his wife uniting in the mortgage) to John B. Montgomery, to secure the payment of five thousand dollars and interest, dated the first day of May, one thousand eight hundred and forty-eight, by said Montgomery assigned to the Poughkeepsie Savings Bank, and by said bank to me; and the other made by my said son Alfred D.. Withers (his wife uniting in the mortgage) to George W. Berrian,. Jr., of the city of New York, to secure the payment of eight thousand dollars and interest, and by the said Berrian assigned tome ; said mortgages being upon the farm now occupied by my said son in the town of Vestal, in Broome county, in this state. And it is my wish that no step shall be taken by my executors for the collection of the principal of said mortgages during the life of my said son, so long as he shall continue to occupy the-said farm, and shall execute such papers as may be advised by counsel, and required by my said executors, to prevent the debts from being barred by any statute of limitations ; and, in the case of the collection of said principal sums during the life of my said son, I give him the interest accruing thereon during his lifetime, such principal to be invested by my executors, and the interest collected and applied to his use by them. From and after the death of said son, I give and bequeath the said principal sums to his descendants then living, in equal shares, per stirpes, and not per capita, to them, their executors and administrators, forever. Fourth, I give, devise, and bequeath all the rest, residue and remainder of my estate, real and personal, which I am now seized or possessed of, or entitled to, or which I may be seized or possessed of, or entitled to, at the time of my decease, to my executors hereinafter named, to have and to hold to them as joint tenants, and not as tenants in common, upon the trusts and with the powers following, that is to say : Fifth. To take possession of all my estate, real and personal, and to collect and receive the rents, issues, income and profits thereof with power to sell all or any part of my real estate at such times and in such manner, and on such terms and conditions, either at public or private sale, and for cash or on credit, or partly for cash and partly on credit, as to my qualified executors for the time being may seem expedient and proper, and to collect and receive the proceeds of such sales, and to collect and get in all my personal estate, and to keep my estate and its proceeds safely and securely invested; my own preference being that investments made by. me in my lifetime should be continued so long as the same, in the judgment of my executors, can be done without loss or detriment to my estate, and my will being that my house and appurtenances, furniture and contents thereof, both of use and ornament in housekeeping, in the Second avenue, in the city of New York, now occupied and used by me for my family residence, shall not be sold by my executors so long as my wife shall continue to occupy and use the same, but that she shall be permitted so to use and occupy the same for her residence and housekeeping. Sixth. To set apart out of my estate, and the proceeds and investments thereof, an amount sufficient to produce the clear yearly income of nine hundred dollars, and to apply the said clear yearly income of nine hundred dollars 3'early, and every year, to the use of my son Reuben B. Withers during his natural life. Seventh. From and after the death of my said son Reuben B. Withers, I give, devise and bequeath the capital specified in the sixth article to his descendant or descendants, if any, whom he shall leave surviving him, in equal shares and portions, per stirpes, and not per capita;■ if he shall leave no descendants surviving him, then to my son Alfred D. Withers, if he shall then be living; or, if he shall not be living, then to the descendant or descendants of my said son Alfred then surviving, if any, share and share alike, per stirpes and not per capita, forever. Eighth. To apply the net rents, issues, income and profits of all the rest, residue and remainder of my estate, and of the proceeds and investments thereof, to the use of my said wife, for and during her natural life, free from the debts, contracts, control, or engagements of any other person. Ninth. Upon the death of my said wife, to allot and set apart out of the said rest, residue and remainder of my estate, and of the proceeds and investments thereof, (exclusive of what is disposed of in the third, sixth and seventh articles of this, my will), into as many shares, each of the value and amount of twenty thousand dollars, as there shall then be survivors of my three daughters, Elizabeth Mary Center, Euphemc D.Clason, and Virginia Paine, and of the descendants of either of my said three daughters who may have previously died leaving descendants or a descendant, and also of the descendants of my daughter Cora, whether she bo then living or not, all the descendants of either deceased daughter counting but as one, however, for the purpose of such allotment, and to apply the net rents, issues, income and profits of one of such shares or portions to be set apart for that purpose to the use of each of my said three daughters, Elizabeth Mary Center, Eupheme D. Clason and Virginia Paine, who may then be living, during the natural life of such daughter, respectively, free from the debts, contracts, control or engagements of any other person, and in like manner, during the life of my daughter Cora, to apply the net rents, issues, income and profits of one of such shares or portions to be set apart for that purpose to the use of the descendants of my daughter Cora who may be living, from time to time, during her lifetime, in equal shares, per stirpes, and not yer capita, my said executors, in their discretion, being at liberty to make such application by paying the same over to my said daughter Cora for the use and benefit of her said descendants, but being under no obligation so to do ; and if either of my said three daughters, or my said daughter Cora, shall not then be living, to divide and distribute one of such shares to the descendants or descendant of each such deceased daughter, share and share alike, per stirpes, and not per capita. To have and to hold to them, respectively, their respective heirs, executors and administrators, forever. Tenth. Upon the death of each of my said three daughters who shall have been living at the time of the allotment directed by the ninth article of this, my will, and also upon the death of my daughter Cora, to divide and distribute the share or portion of my estate, and of the proceeds and investment thereof, of which the income is, in pursuance of the said ninth article of this will, to be applied to the use of such daughter during her life, or to the use of the descendants of my daughter Cora during her life, to and among the descendants of such daughter, if she shall leave any her surviving, share and share alike, per stirpes and not per capita, and, if such daughter shall leave no descendant surviving her, to and among the then survivors of my said three daughters, other than my daughter Cora, and the descendants of either of my daughters who may have died leaving descendants or a descendant, share and share alike, per stirpes, and not per capita. To have and to hold to them, respectively, their respective heirs, executors, and administrators, forever Eleventh. Upon the death of my said wife, if my said sons Reuben B. Withers and Alfred D. Withers shall then both be living, or if the said Reuben B. shall be then living, and the said Alfred D. shall have died, leaving descendants or a descendant who shall then be living, to allot and set apart out of the rest, residue and remainder of my estate, and the proceeds and investments thereof, if any, remaining after the deduction of the said equal shares or portions of $20,000 each, specified in the ninth article of this, my will, a value and amount sufficient, together with the capital specified in the sixth article of this, my will, to make up the one-half of the value and amount of my residuary estate, its investment and proceeds, remaining after the deduction of the said shares or portions of $20,000 each, specified in the said ninth article, computing the capital specified in the sixth article as a portion of such residue, and to apply the net rents, issues, income, and profits of the said one-half of such residue, if more than the capital specified in the sixth article, but, if less than the capital specified in the sixth article, then of the whole of that capital, according to the provisions of the sixth article, to the use of my said son, Eeuben B. Withers, during the residue of his natural life; and from and after the deaths of my said wife and son, Eeuben B. Withers, I give, devise and bequeath the said share or portion of my estate, its investments and proceeds, if any, which would be added to the capital specified in the sixth article by virtue of this article, to the descendants of my said son, Eeuben B., if he shall leave any surviving him, share and share alike, per stirpes, and not per capita ; and, if he shall leave no descendants surviving him, then to my son, Alfred D. Withers, if living, or to his descendants, if he shall have died leaving a descendant or descendants who shall be living, in equal shares, per stirpes, and not per capita, forever. Twelfth. Upon the death of my said wife, if my sons, Eeuben B. Withers and Alfred D. Withers, shall then both be living, or if the said Eeuben B. shall, then be living and said Alfred JD. shall have died, leaving descendants or a descendant who shall then be living, I give, devise, and bequeath all the rest, residue and remainder of my estate, its investments and proceeds, after the deduction of the said shares or portions of $20,000 each, specified in said ninth article, and after deduction of the capital specified in the sixth article, if such rest, residue or remainder shall be less than the capital specified in the sixth article, but, if it shall be more, then the balance of the said rest, residue and remainder, after deducting therefrom, and adding to the capital specified in the sixth article, sufficient to make said capital specified in the sixth article equal to what is left, to my said son, Alfred D. Withers, if living, or to his descendant or descendants who shall then be living, share and share alike, per stirpes, and not per capita, forever. Thirteenth. Upon the death of my said wife, if my said son, Eeuben B., shall not be living, I give, devise, and bequeath the share or portion, if any, of the rest, residue and remainder of my estate, and its proceeds and investments, which would be added to the capital specified in the sixth article by virtue of the provisions of the eleventh article if my said son Eeuben B. were then living, to the descendant or descendants of my said son Eeuben B., if any shall be living, share and share alike, per stirpes, and not per capita, and, if none shall then be living, then to my son Alfred D. Withers, if living, or his descendant or descendants, if he shall have died leaving any who shall be living, in equal shares and portions, per stirpes, and not per capita, forever. And, in the same contingency provided for in this article, I give, devise and bequeath the share or portion of the said rest, residue and remainder which is given, devised and bequeathed to my son Alfred D. Withers, or his descendant or descendants, by the twelfth article, in the contingency therein provided for, to my said son Alfred D. Withers, if living, or to his descendant or descendants, if he shall have died leaving descendants or a descendant who shall then be living, in equal shares or portions, per stirpes, and not per capita, and, if none shall be living, then to the descendant or descendants of my said son Eeuben B. Withers, who shall then be living, in equal shares and portions, per stirpes, and not per capita. Fourteenth. Upon the death of my said wife, if my son Reuben B. Withers shall then be living, and my son Alfred D. Withers shall have died, leaving no descendant who shall then be living, then to apply the net rents, issues, income and profits of the whole rest, residue and remainder of my estate, after the deduction of the said share or portions of $20,000 each specified in the ninth article, to the use of my said son Reuben B. Withers during his natural life; and from and after his death, I give, devise and bequeath the whole of the said rest, residue and remainder, after such deduction, to his descendant or descendants, if any, whom he shall leave surviving him, in equal shares and portions, per stirpe and not per capita. Fifteenth. I hereby declare that the reasons why no provision is made for my son David Dunham Withers, and no greater provision for my son Alfred D. Withers, are that my son, said David Dunham Withers, is already wealthy in his own right, and that I have already made large advances to my son Alfred D. Withers. Sixteenth. I hereby constitute and appoint my son David Dunham Withers, and my friends James M. Waterbury, of the city of Brooklyn, and George R. J. Bowdoin of the city of New York, executors of, and trustees under, this, my will. Lastly. I hereby revoke and annul all former and other wills by me at any time heretofore made, declaring this, and none other, to be my last will and testament.
   The following is the opinion at special term:

Patterson, J.

The important question, and the only one requiring special consideration in this cause, relates to the construction to be given to that clause of the will of Mr. Reuben Withers by which the trusts for three of his daughters and the descendants of a, fourth are created. They date from the death of the testator’s widow, which accrued in 1879. Notwithstanding the ingenious argument of the counsel for the New York Security & Trust Co., I am persuaded that under the ninth and subsequent clauses of the will and from the structure of the whole instrument, it was the intention of the testator to have each of these four trusts consist of a specific sum of twenty thousand dollars in money value only, and that the executor would have performed his whole duty had he so established those several trusts by investing the amount of each in any authorized court security, and that had he done otherwise and a loss resulted he might well have been held to accountability for it. The residuary estate for the purposes of these trusts was to be diminished by $80,000. If to constitute them it was necessary to release that sum even at the cost of the whole of such residuary applicable under the will the executor would have been protected in doing so. A specific gift of the securities of the estate as they might stand in executors’ hands at the death of Mrs. Withers could not have been contemplated, for there was a power of sale and it is impossible that the testator could have imagined even how the estate would be invested at the death of his widow. These four amounts were fixed capital sums to be securely invested without reference to the preservation intact or the actual allotinent in specie of securities held by the executor. Nothing contrary to this view is to be inferred from the retention by the executor of the securities in the same form of investment in which they existed at the time of Mr. Withers’ death. He took the risk of that, and by the assent all paid interest for years to the beneficiaries on the several sums, without reference to what each class of securities earned. I am convinced that these trust sums are not to be augmented by an increase in value of the particular securities of the whole estate on the theory that portions of these precise securities should have been devoted to constitute the investment of each separate trust fund.

Kellogg, Rose & Smith, for app’lts; Shipman, Larocque & Choate, for resp’t.

There being no questions raised as to the accounts, the whole case may be disposed of without a reference. I have adopted the findings of fact proposed by the plaintiff’s attorneys and the conclusions of law presented by Mr. Hand, the latter apparently covering the whole case. Judgment in accordance with the findings ; costs of all parties to be paid from the estate and decree to be settled on two days’ notice.

Per Curiam.

Judgment in this case is affirmed, with costs (1) to the plaintiff; (2) to the defendants Reuben B. Withers and others ; (3) to the United States Trust Company, and to the New York Security & Trust Company, as trustee, payable out of the estate of Reuben Withers, upon the opinion of Mr. Justice Patterson at special term.

Van Brunt, P. J., Follett and Barrett, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Andrew Freedman, Rec’r, Pl’ff, v. J. Chester Chamberlain, Def’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Clubs—Liability of membees fob dues—Insolvency.
    Members of an incorporated club, whose dues are payable semi-annually in advance, are liable for such dues although the club, after they become due, and before payment thereof, suspends because of insolvency.
    Submission of case upon an agreed statement of facts to determine whether members of the Manhattan Athletic Club, which was organized under chap. 267, Laws 1875, are liable in law for their semi-annual dues, payable in advance January 1, 1893, the club having suspended in February, 1893, because of insolvency.

      Stern & Rushmore (C. E. Rushmore, of counsel), for pl’ff; Kenneson, Crain & Alling (A. B. Havens and Asa A. Alling, of counsel), for def’t.
   Van Brunt, P. J.

Judgment should be rendered in favor of the plaintiff for $25; but, as costs on the submission of a controversy are always in the discretion of the court, I do not think costs should be directed in favor of the defendant.

Follett and Barrett, JJ., concur.


author: Follett, J.

text:
    H Van Rensselaer Kennedy, App’lt, v. Mifflin Kennedy et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Railroad — Reorganization — Injunction against transfer of bonds.
    A railroad reorganization agreement provided that the bondholders who wished to participate therein should transfer the legal title to their bonds to the committee, which had power to make changes and modifications of the agreement; but in cas<S>of a modification any bondholder might withdraw his bonds on surrender of his certificate of deposit and payment of his share of the expenses theretofore incurred in carrying- out the agreement. Such modification having been made, plaintiff elected to withdraw his bonds, which was refused by defendants unless he paid his share of the expenses. In an action to recover said bonds, Held, that defendants could only hold them as security for expenses incurred under the original agreement, and have no right to sell, transfer or dispose of them for the purpose of carrying into effect the modified agreement, and that plaintiff was entitled to an injunction pendente lite, to restrain any such transfer.
    Appeal from order denying motion to continue an injunction ;pendente lite, provided defendants give an undertaking in the sum of §10,000 for the payment of such damages as plaintiff may sustain.

      Charles J. Hardy (George Zabriskie, of counsel), for app’lt; Butler, Stillman & Hubbard (William Allen Butler and Wilhelmus Mynderse, of counsel),for resp’ts.
   Follett, J.

The San Antonio & Arkansas Pass Railway Company is a corporation of the state of Texas. On July 1,1886, the corporation mortgaged its property to a trustee to secure the payment of 10,000 bonds of the denomination of §1,000 eacii, with interest at 6 per cent, per annum, payable on the first days of January and July in every year, until July 1, 1936, when the principal becomes due. The plaintiff is the owner of 120 of these bonds. In July, 1890, the corporation made default in the payment of part of the interest on these bonds, and has paid none of the interest which has become due, since July 1, 1890. In the month last mentioned a receiver ■ was appointed for the corporation on a judgment which is asserted to be a lien prior to the mortgage. On the 2d day of March, 1891, a contract was entered into between Mifflin Kennedy, party of the first part, and such of the share and bondholders of the corporation as should join therein and comply with its terms, as party of the second part, and Frederick P. Olcott, Joseph Wharton, Henry Budge, Frederic Cromwell, J. Kennedy Tod, Alfred S Heidelbach and Eric P. Swenson, a committee of the share and bondholders of the ■corporation, parties of the third part. The purpose of the contract was to effect a reorganization of the corporation, and to issue new securities to the various classes of its creditors, according to a scheme set forth in the contract, which is called a “ reorganization agreement,” and the parties of the third part a “reorganization committee.” The contract provides that the bond and shareholders who elect to become p'arties to the contract shall transfer the legal title to their shares and bonds and deliver the securities to the Central Trust Company of Hew York. Among other provisions, the reorganization agreement contains the following:

“ Fourteenth. That the committee are vested with full power and authority to do any and all acts and things necessary and proper in their judgment to be done in order to carry out this plan of reorganization, including the power from time to time to make such changes in the same as they may consider necessary or expedient: provided, that no alteration or modification shall be made by the committee involving the acceptance by them, after reorganization, for distributionas hereinbefore provided, of any less amount or inferior quality of bonds or_ stock than are described herein. Publication daily for twenty vdays in such newspaper or newspapers published in the city of New York as the committee may designate of any alteration or modification shall be notice thereof to all parties to this agreement, and within two weeks after the last day of such advertisement any party to this agreement may withdraw his securities on surrender of his certificate of deposit, and payment of his share of expense theretofore incurred in carrying out this agreement; and parties not so withdrawing shall be deemed to have assented to such alteration or modification. In the event of this agreement not becoming binding, or not being consummated through the purchase of the property by the committee of reorganization, or through the rehabilitation of the now existing company, then the committee shall return to the several depositors their respective bonds, coupons, or stocks so deposited upon the payment of all advances paid and expenses incurred by the committee, including their remuneration, and upon the surrender of the certificates issued on the deposit of the same.”

The plaintiff transferred his bonds and the unpaid coupons annexed to the Central Trust Company, receiving therefor certificates stating that the bonds were deposited under the agreement of March 2, 1891, and “ that the holder hereof assents to said agreement by receiving this certificate.” By the reorganization agreement the committee was authorized to complete the Waco line and the Buffalo Bayou extension, and to do various other acts involving the expenditure of large sums of money, for which the bonds and shares transferred to the trust company were to be held as security. The committee completed the Waco'line, and expended large sums of money, the amount of which, and for what, purposes, need not here be stated. On the 14th of December, 1892, the reorganization committee modified the scheme contained in the contract of March 2, 1891, so that the bondholders of plaintiff’s class should receive for each bond a new one for $1,000, bearing four per cent, interest, instead of like bonds bearing five per cent interest, as provided by the original reorganization contract. The plaintiff refused to accept of the terms of the modified agreement, and demanded a return of his bonds, which the committee declined to deliver unless the plaintiff paid his pro rata share of the expenses incurred under the reorganization agreement up to that date,which are asserted to be about fifty per cent, of the face value of the bonds. The plaintiff brought this action to recover his bonds on payment by him of his pro rata share of expenses incurred, and asks that the defendants be restrained from dealing with the bonds so deposited by him.

The only disputed question of fact between the parties seems to be over the question how much the plaintiff should pay in order to secure a return of his bonds. That he is not bound to assent to the terms of the modified agreement is clear, it being so expressly provided; and it seems to us equally clear that, after the plaintiff gave his notice that he wished to withdraw his bonds, the reorganization, committee could not thereafter, in execution of the modified plan, create any further lien or charge upon them. Their right is limited to holding them as security for such expenses and advances- as had been then made under the original reorganization agreement, and they clearly have no right to sell, transfer or dispose of these bonds in any way for the purposes of carrying into effect the modified- agreement to which the plaintiff has not assented. The plaintiff does not seek an injunction restraining the action of the committee under either agreement, nor in respect to any securities other than his own, and we are unable to see why he is not entitled to this relief. The order should be reversed, with ten dollars costs and printing disbursements, and the motion for an injunction granted, with ten dollars costs, upon the plaintiff’s giving an undertaking to the effect that he will pay to the parties enjoined such damages, not exceeding $>10,000, as may be sustained, as provided by § 620 of the Code of Civil Procedure.

Barrett, J., concurs; Van Brunt, P. J,, concurs in result.


author: Per Curiam.

text:
    Frederick A. Card, App’lt, v. Mary M. Meincke et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Judgment—Entry must conform to decision.
    In an action tried by the court without a jury the clerk can only enter a judgment as directed by the decision filed, or upon a subsequent approval by the trial judge of the judgment proposed to be entered. Where the decision is simply that judgment be entered in favor of defendants and against plaintiff, an entry of judgment dismissing the complaint “upon the merits ” is erroneous.
    Appeal from an order denying plaintiff’s motion to amend the judgment herein by striking out the words “ upon the merits.”
    At the close of plaintiff’s evidence defendants moved to dismiss, which motion was granted, and judgment ordered to be entered in favor of defendants and against the plaintiff. Judgment was entered by the clerk dismissing the complaint upon the merits.

      L. Karge, for app’lt; Hinrichs & Rudolph, for resp’ts.
   Per Curiam.

In an action tried before the court without a jury the clerk can only enter a judgment as directed by the court in the decision filed, or upon a subsequent approval by the judge who tried the cause of the particular judgment that is proposed to be entered. In the case at bar the decision filed contained no such explicit directions, and certainly did not state that any judgment should be entered dismissing the complaint in this action on the merits, whatever might have been the intention of the learned judge who tried the cause. We think, therefore, that the motion should have been granted, striking out from the judgment the words, “ upon the merits.’” The order appealed from should be reversed, and the motion granted, with ten dollars costs of appeal and disbursements, and ten dollars costs of motion and disbursements.

Van Brunt, P. J., Follett and Parker, JJ., concur.


text:
    Dirck Dode, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Costs—Extra allowance—Railroad.
    In an action to enjoin the operation of an elevated railroad, the injury to the plaintiff's easements is a part of the subject matter involved, and such injury, or fee damage, having been assessed at a certain sum, such sum represents the value of the subject matter involved, and the court may grant an extra allowance thereon.
    3. Same—Certificate or referee.
    Although it is usual, and the better practice, not to grant an additional allowance without a certificate of the referee who tried the cause that the case was difficult and extraordinary, the absence of it is not jurisdictional, and does not deprive the court of the power to consider the motion and determine for itself whether the case falls within the language of the Code.
    Appeal from an order granting the plaintiff an extra allowance of fifty-six dollars, and from an order denying motion to resettle the order granting the extra allowance.

      Davies, Short & Townsend (Herbert Barry and Julien T. Davies, of counsel), for app’lts; John A. Weekes, Jr., and Henry A. Forster, for resp’t.
   Per Curiam.

This action was brought to recover the damages sustained by an abutting owner occasioned by the construction and operation of the defendants’ railroad in one of the. streets of this city. It was tried before a referee, who found that the damages sustained by the plaintiff by the operation of the road from the time it was built to the date of the trial of the action were $336.76, and that the injury sustained by the plaintiff by the taking of the easements, usually termed “fee damages,” amounted to $800. The plaintiff moved for an additional allowance, and five per cent, was granted. The defendants insist that the court erred in granting an additional allowance upon the amount of the so-called “fee damages.” The Code provides, § 3393, that ah allowance may be made “ upon the sum recovered or claimed, or the value of the subject-matter involved.” The $800 does not represent a sum absolutely recovered by the plaintiff. It was payable at the election of the defendants. But the injury to the plaintiff’s easements was a part of the subject-matter involved in the action, and the damages occasioned by the injury to those easements having been assessed at the sum of $800, we think that that amount represents the value of the subject-matter involved, and that the court might grant an additional allowance upon that sum. Lattimer v. Livermore, 72 N. Y., 175; Johnson v. Association, 122 N. Y., 330 ; 33 St. Rep., 514.

Upon the motion made for an additional alio wance the plaintiff failed to produce a certificate of the referee that the case was “ difficult and extraordinary.” It is usual, and we regard it as the better practice, not to grant an additional allowance without a certificate of the referee who tried the cause ; but the absence of it is not jurisdictional, and does not deprive the court of the power to consider the motion, and determine for itself whether the case falls within the language of the Code. It is not recited in the order granting the additional allowance that the referee’s report was read upon the motion, and the defendants insist that it was orally agreed on the hearing that the plaintiff had applied for a certificate from the referee, which had been refused. The defendants moved for a resettlement of the order by having inserted therein the fact that it was agreed upon the argument that the referee had refused a certificate on the application of the plaintiff, and" that his report was read on the motion, which was refused. The report of the referee is a part of the record presented upon this appeal, and it must be presumed that it was used upon the motion, and so both parties got the same benefit from it as though it had been recited in the order that it was so used. The court had the right to determine for itself whether or not it was agreed upon the hearing of the motion that a certificate of the referee had been applied for and refused. It may be that the attention of the court was not called to the statement. Had the parties desired to make - this fact a part of the record, either they should have filed a stipulation or else the party desiring to have it appear should have presented an affidavit on the hearing of the motion stating the fact. We think no error was committed in refusing to resettle the order, and, under the view we have taken of the case, a resettlement of it would not have affected the rights. of the defendants. The orders should be affirmed, with ten dollars costs and printing disbursements.

Van Brunt, P. J., Follett and Parker, JJ., concur.


text:
    Hattie E. Bucki, Resp’t, v. Charles E. Bucki, App’lt.

      (Supreme Court. General Term, First Department,

      Filed June 30, 1893.)

    Divorce—Alimony.
    "Where the allegations of the complaint in. an action for divorce, if supported by evidence on the trial, will entitle the plaintiff to the judgment prayed for, a case is presented, in the exercise of a proper judicial discretion, for an allowance of costs and alimony.
    Appeal from order granting a motion for alimony pendente lite and a counsel fee.

      Vanderpoel, Cuming & Goodwin (Delos McCurdy, of counsel), for app’lt; Howe & Hummel (Austen G. Fox, of counsel), for resp’t.
   Per Curiam.

The allegations in the complaint, if supported by evidence on the trial, will entitle plaintiff to the judgment prayed for. A situation therefore, was presented on the motion which authorized the court, in the exercise of a proper judicial discretion, to make an allowance for costs and alimony pending the action. The amount awarded was justified, we think, by the affidavits before the court. ' The order appealed from, should be affirmed, with ten dollars costs and disbursements.

Yan Brent, P. J., Follett and Parker, JJ., concur.


author: Pratt, J.

text:
    Elizabeth Byrnes, Adm’rx, App’lt, v. The New York, Lake Erie & Western Railroad Co., Resp’t.

      (Supreme Court, General Term,, Second Department,

      Filed July 28, 1893

    RAmnoAD—Ne&li&ence—Rules.
    Testimony of an agent of a railroad company who had charge of the business at the depot where the car in question was loaded, that he considered it part of his duty to inspect cars loaded by shippers before they were sent out, and that he so instructed the men under him, is insufficient to prove that the company had established and maintained a rule for the inspection of such cars; and where such agent failed to make the inspection and is contradicted by two witnesses the question is one of fact and should be submitted to the jury.
    Appeal from judgment dismissing the complaint.
    The action was brought to recover damages for causing the death of Sylvester Byrnes at Lordville, H. Y., February 25,1884. He was a brakeman in the defendant’s service at the time. Aflat car had been loaded with lumber at Lordville by William Holbert and was to be taken in the train on which the deceased was employed. The switch on which it was standing connected with the main track only at the west end, and it was necessary to push this car out by means of a stake placed between the rear end of the engine and the front end of the car, a process called “ staking a, car.” The train the deceased was on was east bound and, before reaching Lordville, the engine was cut loose and went ahead to stake the car out, so that it might be placed in the train. The deceased remained on the train. By the time the car was staked out the train, still moving, had nearly reached the switch, and so there was apparently danger of a collision between the car moving westward and the train moving eastward. The deceased left the train, ran forward, climbed on the lumber car, reached the brake and, either did apply it, or attempted to do so, when the collision occurred, and its force was such as to move the lumber back, and he was caught between the lumber and the end of the first car in the train, receiving injuries that caused his death. It was claimed by the plaintiff the lumber was so loaded on the car as to interfere with the use of the brake, and so it was impossible for the deceased to check its speed. Ho claim was made that the car was not in good order, or that the brake staff and appliances were in any way defective.

      John W. Lyon, for app’lt; Lewis E. Carr, for resp’t.
   Pratt, J.

The law of this case has been settled by the court of appeals in 113 N. Y., 255; 22 St. Rep., 936. It was there held, reversing a judgment for the plaintiff, that the evidence showed that the defendant was not guilty of negligence inasmuch as the defendant had established a system of rules for the inspcction of cars after they were loaded and before they were sent out upon, the road, to ascertain if they were properly loaded so as to be safe for handling by its employes.

The cause of the accident, therefore, was the fault of a fellow servant in not complying with the rules in making a proper inspection.

The plaintiff claimed that the car had been loaded with lumber so as to prevent the use of the brake at one end of the car and thereby the husband of the plaintiff lost his life.

The case was sent back for a new trial with the following instructions contained in the opinion, to wit:

“ If there should be made any question on a retrial as to whether the company had, in fact, provided rules for an inspection of the cars, and proper men to inspect them, after they were loaded and before they were taken away, such question would be proper to submit to the jury under proper instructions.”

We think the evidence raised precisely that question, and that it should have been submitted to the jury.

It is to be observed that there was no evidence whatever on the part of the defendant of the promulgation of any such rule. Ho printed or written rule of that kind was sworn to, nor even verbal instructions given by any officer to persons in charge of depots on the road.

The nearest approach to any such proof was the testimony of Lord, who had charge of the business at the depot where this car was loaded, who said he considered it a part of his duty to do so, and so instructed the men under him, and there was also proof by some men under him that he had so instructed them. But this proof was shaken by the fact that Lord did not inspect this car, and by further proof by former employes that Lord had never given them any such instructions.

It is true Lord said it was his custom, but that is far from proving that the defendant had established and maintained a rule for the inspection of loaded cars before they were sent out.

The question was purely one of fact, and considering the manner of Lord’s testifying, and the fact that it was possibly his fault in failing to inspect this car that the accident happened, and the further fact that he was contradicted by two witnesses, made it proper that this question should be submitted to the jury.

The defendant makes no point that the deceased was guilty of contributory negligence, or that the car was not proved to be defective when deceased took possession of it.

The only point in the case, therefore, is whether the defendant had established and maintained a system of inspection to ascertain whether its cars were properly loaded.

In this case the question is vital, as this car was not loaded by the employes of the defendant, but by the shipper of lumber.

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

Dykmaísí, J., concurs; Barnard, P. J., not sitting.


text:
    Henry L. Beakes, Resp’t, v. The Phœnix Insurance Co. of Hartford, Conn., App’lt.

      (Supreme Court, General Term,, Second Department,

      Filed July 28, 1893.)

    Insurance (fire)—Lightning.
    In an action on a policy of insurance which provided that it should cover all direct loss or damage caused by lightning, and in no case to include loss or damage by cyclone, tornado or wind storm, where the building had been destroyed during a heavy thunder storm, the court charged that if lightning was the primary cause of the destruction the jury might give a verdict for the whole damage sustained; but if lightning was not the primary cause, they should give only such verdict as would compensate for the damage directly caused by lightning. Held, that as the jury gave a verdict for less than half the damages sustained, the error in the charge, if any, was not such as called for reversal.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $1,100, and from order denying motion for a new trial.
    The action was brought to recover on a policy of fire insurance, issued by the defendant to the plaintiff through its local agents in Middletown, N. Y, in June, 1889, covering the plaintiff’s two barns and contents, located on his farm about a mile from Middle-town, the amount of insurance on the barns and contents, which was damaged or destroyed, was two thousand seven hundred and forty-seven dollars and fifty cents ($2,747.50); the loss was total.
    The policy contained the following condition :
    “It is understood and agreed that this policy shall cover any direct loss or damage caused by lightning, meaning thereby the commonly accepted use of the term lightning, and in no case to include loss or damage by cyclone, tornado or wind storm, etc.”
    The plaintiff claimed that on the 10th day of August, 1890, his barns and contents, which were covered by said policy, were totally destroyed by lightning during a severe thunder storm, which visited his locality. The evidence which tended to establish his theory was almost wholly circumstantial, but of such a character that it clearly demonstrated the fact that if lightning was not the primary or proximate cause of the whole loss or damage, it at least contributed in part to cause it.

      William Vanamee, for app’lt; William F. O'Neill, for resp’t.
   Pratt, J.

The only questions seriously discussed are whetner the circuit judge fell into error in his instructions as to the rule of damages, and if error exists whether it requires a new trial. The jury were told that if lightning was the primary cause of the destruction they might give a verdict for the whole damage sustained, $2,747. But, if lightning was not the primary cause of the destruction, they should give only such verdict as would compensate for the damage directly caused by lightning.

Had the jury given a verdict for $2,747, we should have been compelled to carefully construe the language of the policy. It is, however, evident that the jury made the discrimination suggested by the court and allowed a recovery for such portion of the loss as they believed to be caused by the direct action of the lightning, ascribing $1,647 of the loss to other causes, the questiou whether they could have properly given a verdict for the larger sum becomes unimportant.

No other subject requires discussion.

Judgment and order affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


author: Dykman, J.

text:
    Elizabeth Greenleaf et al., App’lts, v. The Brooklyn, Flatbush & Coney Island Railroad Co. et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Appeal—Peo poema affibmance.
    ' Where it is not entirely clear that the contention of the appellants on a second appeal rightly interprets the opinion of the court of appeals on fhe former appeal, the judgment should be affirmed and the question left for the determination of the court of appeals.
    Appeal from judgment in favor of defendants in an action of ejectment.
    On a former appeal a judgment in favor of plaintiffs was reversed by the court of appeals, and a new trial granted.

      Williams & Ashley (Frederic A. Ward and Mornay Williams, of counsel), for app’lts ; Thomas E. Pearsall, for adjoining owners ; William C. Dewitt, for resp’ts.
   Dykman, J.

The parties to this action differ in respect to the decision of the court of appeals when the case was there last.

According to the understanding of the defendant the court of appeals overthrew the proposition that the judgment in partition imported seizin of the land, while the plaintiffs contend that the opinion of the court of appeals sustained the decision of the general term respecting the legal effect of that judgment and the deeds executed in pursuance thereof; and held that as to the judgment and deeds in view of their age it was unnecessary to show possession.

The opinion of the court of appeals states that the authenticity of the judgment was established by the record and was admissible in evidence, and that it was usually impossible to prove an ancient possession of property by living witnesses, and when a deed forming part of a chain of title is so ancient that there can be no person living who can testify to acts of ownership by the grantor or grantee it may be received in evidence without such proof.

Then it contains this language, “while under this rule the judgment in partition and the subsequent deed to John Emmons were admissible in evidence without proof of contemporaneous possession of the land by the parties to the judgment and deed, yet they are not sufficient evidence of title of one who claims under them through mesne conveyances to recover in ejectment without showing some subsequent or modern possession by the parties who have received later deeds which go to make up plaintiff’s chain of title.”

Understanding this last clause to specify a requirement which might be supplied upon another trial, the plaintiffs upon the trial introduced testimony to show that the land in question was so situated as to render any use or occupation thereof impossible.

It was a sand lot .lying upon the shore of the ocean and destitute of anything useful. It could not be utilized for access to ■the water because the surf beat upon the beach so as to prevent ■the launching or boats, the sand was not salable or useful there, and there was no grass or timber to cut.

There was a concession, also, that apart from the possession of the defendant the premises have always been vacant and actually unoccupied.

Therefore, the plaintiffs now contend that with the new testimony supplemented by the principle of law which requires courts to consider the true owner as constructively in possession of the lands to which he holds title, unless they are in actual hostile occupation of another under a claim of title, Bliss v. Johnson, 94 N. Y., 235, they have made a case which entitles them to a judgment in their favor within the decision of the court of appeals.

These views are in accordance with the decision of this general term, but we are not entirely clear that they rightly interpret the opinion of the court of appeals, and as the case must go there again, we think it wise to let it go directly upon a judgment of affirmance.

We have said nothing upon the question of location, because we think it unnecessary to do so, but we are prepared to adhere to our former decision that' the premises are properly located. In fact, the concession upon the trial respecting the possession substantially admits that the defendant is in possession of the premises, and if they are so, then they are located.

However, as we have said, we think the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    Julia Morris, Resp’t, v. John Morris et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    L Fraudulent Conveyance.
    Pending an action brought by plaintiff against him, the defendant Morris was told that it was best to put everything out of his hands; he thereupon conveyed real estate worth $5,000, subject to a mortgage of $1,500, to his mother-in-law in exchange for property in Kansas which he had never seen, and which was worth $1,000. Held, that such conveyance was properly held to he fraudulent as to plaintiff.
    3. Same—Set off.
    Plaintiff became possessed of some property of defendant after she recovered the judgment. Held, that the value of such property was properly set off against the judgment debt.
    3, Same—Evidence.
    In an action to set aside a fraudulent conveyance, proof of a conversation between defendant and the sheriff in plaintiff’s absence is inadmissible; the sheriff being in no respect the plaintiff’s agent.
    Appeal from judgment in favor of plaintiff, and from order appointing a receiver of the premises described in said judgment.
    In August, 1891, the plaintiff brought suit against her son, the defendant, John Morris, upon an alleged contract made by him to support her and her husband so long as they lived.
    In that action the plaintiff claimed that she had given her son numerous articles of furniture and farming utensils, set out at length in the complaint, which were worth $800. That in consideration of such a gift he had agreed to support her.
    That complaint also alleged, that the son at that time had and used all of said property, except what had been sold by him.
    That action was tried and a verdict rendered for the plaintiff for $164. An execution was issued upon this judgment and returned unsatisfied, whereupon this action was brought to set aside a certain conveyance made by the defendant, John Morris, to Marie S. Crowe.

      G. Z. Snider, for app’lts; Arthur S. Tompkins, for resp’t.
   Barnard, P. J.

The plaintiff is a judgment creditor of John Morris. The judgment was recovered on the 6th of October, 1890. On the 20th of September, 1890, the judgment debtor conveyed a farm of land of about fifty-one acres to the defendant, Marie S. Crowe, by deed in which his wife joined. The plaintiff’s execution was returned unsatisfied and this action is brought to set aside this deed as fraudulent. The defendants aver that there was sufficient personal property to pay the execution issued by plaintiff and that the sale was made in good faith by the debtor of the farm and for an adequate consideration. The trial court found the deed to have been fraudulently given and taken. The evidence sustains the finding. The plaintiff had brought her action to recover the judgment which she did obtain and in September previous, the debtor was told that it was best “ to put everything out of his hands,” to which he replied that he supposed it would be a good thing.” This was in the presence of the grantee, Marie S. Crowe. Mrs. Crowe was the mother-in-law of the debtor and lived with him and his wife. Ho money was paid for the deed. The pretended consideration was eighty acres of land in Kansas. The debtor had never seen the land there and it was worth $1,000. This, if true, would make out no adequate consideration for the farm worth $8,000 with a mortgage on it of $1,500 only.

The case is a clear one where a debtor interposed a title between-his property and his creditor to hinder, delay and defraud the-creditor. Alter the recovery of the judgment by plaintiff, she-became possessed of certain articles of personal property belonging to the debtor. The proof is not very clear what this property was nor what was its value. It was proven by plaintiff not to have been worth twenty-five dollars by one witness and the plaintiff testified that it was not worth ten dollars. The trial judge found the value to be seventy-five dollars and deducted it from the judgment debt. The debtor has no cause, from this finding and under this proof, sufficient to reverse the judgment as to the deed. The proof of a conversation between the defendant and the sheriff was properly rejected. The sheriff was not a party to the action and was in no respect the plaintiff’s agent because he had in his hands an execution in her favor against the judgment debtor.

The inquiry as to the value of this personal property was necessary to determine what was equitable between the parties. It would have been inequitable to set aside the transfer in favor of a plaintiff who had in her hands personal property of the debtor without applying the value of the same upon her debt.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    John G. Murphy, Resp’t, v. James F. Carey et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Bills and notes—Consideration.
    On the purchase of a quarry by plaintiff, defendant, at his request, gave a note to the vendor, O, as a personal contribution to plaintiff. The notes in suit, with others, were afterwards given to wipe out said note, which defendants claimed was to be exchanged for the smaller ones, which was not done. There was evidence tending to show that the large note was owned by plaintiff at the time of the giving of the ones in suit and that it was given to defendant, and also proof that it was owned by 0. and was to be given up to defendant when the new notes were delivered. Held, that a case was made for the jury, and that a direction of a verdict for plaintiff was error.
    Appeal from judgment in favor of plaintiff, entered on verdict directed by the court.

      J. Stewart Ross, for app’lts ; James McKeen, for resp’t.
   Barnard, P. J.

This action is brought to recover the amount due upon three promissory notes, all made by the ~ defendant; Carey, to the order of defendant Cillen, and indorsed by him, all dated May 25, 1891, and maturing in three, six and nine months from date. The defendants admit the making and indorsement of the notes as alleged, but the answer avers that at the time the notes were given to the plaintiff, the defendant, Carey, was not indebted to him except in the sum of about $2,000, which had been fully paid by Carey. The answer does not plead the fact actually tried. It was proven that on the day the notes in suit were given there was a settlement of a claim in an action pending in favor of plaintiff against Carey alone. In this settlement $2,100 was found to be due the plaintiff, and the parties when they agreed upon the amount also agreed to give time in which to pay this sum due, is certain monthly payments, about $200 per month, commencing June 1, 1891, and ending March 1, 1892. Presumably these payments have been made ; but upon the same day the settlement was made the notes in the present action were given as has been stated, and they were given for an entirely different purpose. One Dugan owned a quarry property. They conveyed to one O’Brien, a brother-in-law of Murphy. He conveyed to Murphy & Co. Upon this transfer Carey gave his note to O’Brien for $5,000 at plaintiff’s request as a “ personal contribution ” to Murphy, whatever that expression may mean. The notes of $750 each were given on this $5,000, note and that was admittedly outside of the amount covered by the stipulation. The defendant Carey states that these $750 notes, with four others, were given to wipe out the $5,000 held by O’Brien, and that this large note was to be exchanged for the small ones, which has not been done. There seems to be no doubt but that the $5,000 note was the consideration of the notes sued upon. There is proof tending to show that plaintiff owned the $5,000 note at the settlement and even tending to show that it was given up to Carey on the occasion. There is also proof tending to show that O’Brien owned the note at the time and that the same was to be delivered up to defendant Carey when the new indorsed notes were delivered. This was not done and a case was made for the jury.

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

Dykman and Pratt, JJ., concur.


text:
    James O’Neill, App’lt, v. The Brooklyn Heights Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Negligence—Injury to horse—Damages.
    In an action for injuries to a horse by collision wilh a street car, the plaintiff and his brother, who was riding the horse at the time of the accident, testified that he was permanently injured, his hip being knocked down; but it appeared that a few days later plaintiff applied to a veterinary surgeon to pronounce it sound, and the surgeon testified that the horse was lame, but lie discovered no dislocated hip. Held, that a verdict for nominal damages would not be disturbed.
    (Dykman, J., dissents.)
    Appeal from judgment in favor of defendant for costs, entered on verdict for six cents damages in favor of plaintiff, and from order denying motion for a new trial on the ground that the verdict is for insufficient damages.
    Action to recover $400 damages for inj uries to plaintiff’s horse, sustained through being negligently run down by one of defendant’s cable cars.

      James P. Niemann, for app’lt: Henry D. Hotchkiss and William S. Maddox, for resp’t.
   Barnard, P. J.

The extent of the injury to the horse alleged to have been caused by the accident depended very much, if not entirely, on the testimony of the plaintiff and his brother Edward, who was riding the horse when he was injured. It is true that these witnesses if credited would call for a substantial verdict, but the case shows that the plaintiff applied to a veterinary physician to pronounce the horse sound within a few days after the accident The plaintiff says that he was requested to nave this examination made by the physician at the request of one McCoy, who knew of the injury the horse sustained and wanted to buy him. The doctor did not discover the extent of the injury as claimed by the plaintiff. He said the horse was lame but he discovered no dislocated hip. The jury had abundant reason for placing the injury at a nominal sum in case they discredited these two witnesses.

The judgment should be affirmed, with costs.

Pratt, J. concurs; Dykman, J., dissents. (See opinion in next case.)


text:
    Edward O’Neill, App’lt, v. The Brooklyn Heights Railroad Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Negligence—Damages.
    In an action for personal injuries sustained by the horse which plaintiff was riding being run into by a cable car of defendant, the testimony did not show his injuries to be severe, and there was evidence from which the jury might find them to be slight. Held, that a nominal verdict would not be disturbed.
    Appeal from judgment in favor of defendant for costs, entered on verdict of six cents in favor of plaintiff, and from order denying motion for a new trial on the ground that the verdict is for insufficient damages.
    Action for personal injuries sustained by plaintiff while riding the horse of his brother by reason of a collision with a cable car of the defendant. This case and that for injuries to the horse were tried together, and a verdict for six cents was given in each case. The following opinion was written in both cases.

      James P. Niemann, for app’lt; Henry D. Hotchkiss and William S. Maddox, for resp’t.
   Dykman, J.

Both of these actions are based upon negligence, and the cause of action grew out of the same accident; they were both tried together at the circuit before a jury, and both plaintiffs recovered a verdict for six cents damages.

Both have appealed from the judgment entered upon the verdict, and from the order denying a motion for a new trial upon the minutes of the court.

The facts are substantially these: The plaintiffs are brothers. Edward was in the employ of his brother James, who was the-owner of a horse. While Edward was riding the horse down Montague street, in the city of Brooklyn, it was struck by one of the cable cars of the defendant and thrown down, and Edward went off." Both horse and man received injuries, and these actions are for the recovery of damages resulting therefrom.

As we have stated, the verdict was in favor of the plaintiffs in both cases, and so it must be assumed that the jury found all the facts in favor of the plaintiffs, and the question is whether we should interfere with the judgment by reason of the inadequacy of the damages.

In relation to the plaintiff Edward the testimony did not show his injuries to be severe, and there was evidence from which the jury might find them to be slight. In his case therefore the verdict is not so palpably inadequate as to justify our interference with the verdict.

In relation to James O’Neill, however, we cannot take the same view. There was no evidence to justify a nominal verdict in his case. The horse was shown to be a fine young horse of the value of $500 or $600 previous to his injuries, and after that to be worth no more than $100.

That testimony was uncontradicted, and there was no dispute about his injuries. His hip was knocked down, and he was injured otherwise.

Under such proof there was no justification for a nominal verdict, and it should have been for substantial damages.

The size of the verdict shows that it was the result of mistake or passion or prejudice. It is unjust, and should not be permitted to stand. It finds that the defendant has negligently inflicted serious injuries to a valuable horse belonging to the plaintiff without his fault, or the fault of his servant, and then assessed his damages at six cents.

With full knowledge and appreciation of the peculiar province of the jury in the determination of the amount of damages to be allowed in actions sounding in tort, and the reluctance with which appellate courts interfere with verdicts upon questions of amount only, we yet recognize the rule which permits such interference in a proper case.

Juries cannot be permitted to do injustice to suitors. Inadequate and excessive verdicts stand upon the same ground, and where they are so large or so small as to be palpably unjust, and the result either of an objectionable compromise, passion or prejudice, improper influence or disregard of law, it is the duty of the courts, in the exercise of the supervisory power with which they are clothed, to review the evidence and grant a new trial where the ends of justice require it. McDonald v. Walter, 40 N. Y., 551; 8 Abb. N. C., 392 ; Cowles v. Watson, 14 Hun, 41.

Tins question comes legitimately before us on the appeal from the order denying the motion for a new trial on the minutes of the court.

The trial judge may now grant a new trial because the verdict is for excessive or insufficient damages, Code Civil Procedure, § 999, and one of the grounds of the motion for a new trial upon the minutes in this case was the insufficiency of the damages. See, also, Cowles v. Watson, 14 Hun, 42.

The judgment and order denying the motion for a new trial in the case of Edward O’ISfeill should be affirmed, with costs; but the judgment and order denying the motion for a new trial in the case of James OflSTeill should be reversed and a new trial granted, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur as to Edward O’Meill case.


text:
    Henry W. Sage et al., App’lts, v. Andrew R. Culver et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Cobfobatioits—Rights op minobity stockholdebs.
    While the mere fact that the company has done business sufficient to pay dividends and has not done so is not sufficient to make a cause of action in favor of a minority stockholder, a complaint showing such fact, and that the officers managing the company have issued bonds and a mortgage on its property, and admit that they have taken a large sum from the treasury for money loaned by themselves for improvements which were not made for several years thereafter, and which were, in fact, paid out of the ordinary revenue of the company, states a sufficient cause of action for an accounting.
    Appeal from judgment and order sustaining a demurrer to the complaint on the ground that it did not state a cause of action.

      William C. Dewitt, for app’lts; Geo. W. Wingate, for resp’ts.
   Barnard, P. J.

The Prospect Park & Coney Island Bailroad Company was organized in 1874 and operates a railroad from the city of Brooklyn to Coney Island. The defendant Culver is the president and the defendant Washington the treasurer thereof. The complaint states that in 1879 the capital stock was $500,000 in amount, of which the plaintiffs owned $50,000. That there then existed a first and only mortgage of $500,000. That in 1880 the capital stock was reduced by an issue of income bonds to the extent of one-half its stock. In 1886 the company sold a part of its line for $420,000, secured by a mortgage due January 1, 1895. The defendants Culver and Washington then proposed to create a new mortgage on the part of the line wanted for' $500,000 and with the proceeds to pay a debt to defendants Culver and Washington. To pay the $80,000 needed with the $420,000 mortgage; to pay in full the $500,000 first mortgage and to leave the balance of $170,000 in the treasury of the company for improvements. Three hundred and ninety thousand dollars of bonds were issued under this project. The defendants Culver and Washington owned a large majority of the stock of the company and have always controlled its management. The plaintiffs were opposed to the second mortgage of $500,000. The company has, apparently, done a prosperous business, which the plaintiffs believe to have been sufficient to pay dividends upon its stock, especially after the sale of the portion of its line for $420,000, but it has never paid a dividend on its stock or any interest on its income bonds. The company leased a small road built by the New York & Coney Island Bailroad Company, of which the defendant Culver was president and the defendant Washington the treasurer, for $10,000 a year, which did not cost more than $50,000. The defendant company has refused to give the plaintiffs information as to its management. The company has refused to show its books to the plaintiffs. A new mortgage of $200,000 was authorized by the stockholders in 1891 for the purpose of paying off the floating debt. The company refuses to give any information about this floating debt. Culver and Washington state that the $250,000 debt which they paid themselves out of the treasury of this company was for a loan by them to the company for certain improvements which were not, in fact, made until several years after that date.

Culver, Washington and the plaintiffs own the entire stock and income bonds with the exception of a slight fraction, and Culver and Washington have the exclusive control of the road and its management. The complaint states a cause of action. While a minority stockholder, in the absence of waste, mismanagement or fraud has no individual standing, the complaint does charge a general misapplication o£ the funds by two persons who have obtained control of the corporate management. That the company has done business sufficient to pay dividends, and it has not done so, this, of itself, would not be sufficient to make a cause of action ; but the managers admit that they have taken $250,000 from the treasury for themselves for money loaned for improvements which were not then made, nor were they made for several years thereafter, and which were, in fact, paid out of the ordinary revenue of the company, so that the admission of averment assert a direct charge of misappropriating the proceeds of a loan which the company made under the management of the president and treasurer, and that there was no legal justification of the act. Assuming all the facts in the case in connection with this charge, there is a case made for an accounting. The minority stockholder should have the right to require a statement from the company. Robinson v. Smith, 3 Paige, 222.

It is not necessary to demand that the company bring the action, as the company is still under the control of the alleged wrongdoers. Brinckerhoff v. Bostwick, 88 N. Y., 52.

The order sustaining the demurrer to the complaint, and the interlocutory judgment therein, should be reversed, and the demurrer overruled, with costs, the defendants to have the right to answer in twenty days on payment of costs of demurrer and of appeal.

Dykman and Pratt, JJ., concur.


author: Davie, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of William H. Proctor, Ex’r. of John Hildebrand, Deceased.

      (Surrogate’s Court, Cattaraugus County,

      Filed November, 1892.)

    1. Executors and. administrators—Funeral expenses.
    Where an executor has proceeded in good faith, his claim, for reimbursement for an expenditure of sixty dollars for funeral expenses should not he denied on the ground that such expenditure was unwarranted.
    2. Same—Assets—Widow’s allowance.
    Where the testator delivered to his executor certain notes with directions to co iect the same and use the proceeds in paying his funeral expenses and for a monument, such notes do not form a part of the assets of the estate and are not subject to the rights of the widow.
    Settlement of the account of the executor of the will of John Hildebrand, deceased.

      J. K. Ward, for executor; E. D. Northup, for widow; A. Ward, creditor, in person.
   Davie, S.

John Hildebrand died in the town of Ashford, Cattaraugus county, December 3, 1889, leaving a will, which was admitted to probate March 26, 1890. William H. Proctor was named in said will as executor, and now presents an account of his proceedings as such for judicial settlement. Testator left him surviving his widow, but no child. An appraisal of his estate was made., and an inventory thereof filed during the time that chapter 406 of the Laws of 1889 was in force. In making such inventory, in addition to the articles exempt to the widow by the Revised Statutes, 2 Rev. St., 83, the appraisers set off to her the other personal property of the testator, amounting to $42.75. They also appraised and assumed to set off to her the real estate of the testator, consisting of twenty-five acres of land of the value-of $625. The executor sustained the funeral expenses of the testator to the amount of sixty dollars, and incurred necessary expenses in the probate of said will and in the administration of said estate to the amount of $99.70. The account filed shows an increase of inventory to the amount of $101.40. Such, increase-arose from the following facts : Prior to the death of the testator he delivered to Proctor two promissory notes owned by testator, with instructions to collect the same, and use the proceeds thereof in defraying his funeral expenses and in the purchase of a tombstone for his grave. During his lifetime testator received from Proctor the sum of five dollars of the proceeds of said notes, and the balance, $101.40, remained in Proctor’s hands at the time of the death of the testator. The widow objects to the items charged in the account for funeral expenses as unreasonable and unwarranted, and asks that this increase of $101.40 be set off to her, claiming that the same is absolutely exempt to her under the statute referred to, chapter 406, Laws 1889, .and that, she is entitled to take the same free from charges for funeral expenses or expenses of administration. The objection that the amount paid out by the executor for funeral expenses is unwarranted is not tenable. The authority of an executor to pay the funeral charges of his decedent, even before the granting of letters, is regulated by statute. 2 Rev. St., 71. His duty so to do is well defined under the common law. Rappelyea v. Russell, 1 Daly, 214. In determining whether an expenditure is warranted or not, the executor is only chargeable with knowledge of the apparent condition of the estate. In re Rooney, 3 Redf., 15. It is-entirely apparent that the executor, in this case, has acted in entire-good faith. The expenditure was a moderate one, and the executor’s claim to be reimbursed should not be denied on the-ground that the expenditure was unwarranted.

A somewhat more perplexing question, however, is raised by the application of the widow to have this $101.40 set off to her. The widow could not, of course, be deprived of her statutory exemptions by any default on the part of the appraisers in not setting off to her all she was entitled to ; and in a proper case the decree upon judicial settlement should remedy the omissions of the appraisers. Code Civ. Proc., § 2721. But I am of the opinion that the act of the testator in turning over these notes to Proctor, with instructions to expend the proceeds for a specific purpose, puts it beyond the claim of the widow. The testator bad the unrestricted right to use the proceeds of these notes in any manner he saw fit, for his own individual benefit, or even to give the same away, without regard to the rights of the widow. Testator had substantially disposed of the proceeds of the notes; that is, he had turned the notes over to Proctor with express instructions to expend the reoeipts therefrom for a certain purpose ; and Proctor was justified, without regard to the execution of his trust as executor, in making the disposition directed. The appraisers, in making the inventory and in setting off the real estate to the widow, evidently entertained a mistaken impression of the terms of the statute. Chapter 406, Laws 1889. The widow gets no additional interest in the real estate in this case under the terms of that statute. Section 1 of that act amends the provisions of chapter 2, part 2, of the Revised Statutes, relating to title to real estate by descent, by enlarging the interest of the widow therein in cases of intestacy, but such section has no application to a case like this, where there is a will. The additional exemptions to the widow provided for by section 2 of said act are confined to personalty. The words of the act are: “ In case the interest of the widow in the real estate of the deceased husband, in addition to her dower right, and together with said $150, shall be of less value than $1,000, then said appraisers shall set apart for the use of such widow * * * personal property, which, together with said real estate, shall .amount to $1,000.”

Under that section the appraisers had nothing whatever to do with the real estate, except to appraise the interest of the widow therein, in order to determine the additional amount of personal property to be set off to her. A decree should be entered herein disallowing the claim of the widow to any part of the $101.40, permitting the executor to retain therefrom the amount of the funeral expenses as set forth in his account; also adjusting the •expenses of administration at the amount charged in the account, and adjudging the same to be a valid claim against the estate.


author: Coffin, S.

text:
    In the Matter of the Probate of the Will of James Finn Deceased.

      (Surrogate’s Court, Westchester County,

      Filed November, 1892.)

    2. Will—Testamentary capacity.
    Where it appears that the testator was not influenced in any way in the drawing of his will, and fully understood the fact of the existence of his wife and. children and others who were the objects of his bounty, and the extent of his estate, the mere fact that he gave his children but an inconsiderable portion is not sufficient to show want of testamentary capacity.
    2. Same—Mistake as to executor.
    A mistake of testator as to the person nominated as executor will not render the will void.
    Petition for the probate of decedent’s will, executed while he was a patient in a hospital.

      F. X. Donoghue, for Nathan A. Warren, executor; Joseph F. Daly, for St. Matthew’s Church; Arthur J. Burns, for contestants.
   Coffin, S.

The deceased left a widow, Catharine Finn, and two sons by a former wife, John and James Finn, which sons are 'the contestants. After a careful consideration of the facts developed by the testimony, the conclusion that the deceased was possessed of a sound and disposing mind when the will was made seems quite irresistible. He sent for the attorney to come and draw it. He fully understood the fact of the existence of his wife and children, and of others who were made objects of his bounty. The attorney was ignorant on the subject, and received the instructions as to the provisions of the will wholly from the deceased, who also stated correctly the amount of his estate, to wit, about $6,000 in money. By the paper propounded he gives to his wife for life the use of the whole. At her death he gives $500 to the children of John and Julia Fox, of Galway, Ireland; .to his sister in Ireland, $2,000 ; to the children of John Finn, of the same place, $1,000 ; to the children of James Finn,' of the same place, $700; to his own sons, $100 each ; to Sister Josephine, for the benefit of St. Matthew’s School, Hastings, $800 ; for saying of masses for the repose of his soul, $25 ; and the residue (about $1,275) to Rev. David O’Connor, for the benefit of St. Matthew’s Church, Hastings. However much we might feel‘disposed to criticise these provisions, and especially those for his own children, yet it cannot be denied that being competent to make the will, and not subjected to any influence, undue or otherwise, it must be permitted to stand as a final disposition of his estate.

It is claimed that there was a mistake made in the person nominated as executor, and that the will is void for that reason. If such mistake were made, it is not considered that that fact would furnish a sufficient ground for its rejection. It might still be admitted to probate as to the disposing portions, as they are in no way involved, and an administrator with the will annexed appointed. There were three physicians connected with the hospital, Dr. Warren, Dr. Miles and Dr. Duffy. The latter two attended the patient; whether the first did or not does not appear. After the question as to who should be named as executor had been discussed between the deceased and his lawyer, the testator suggested that “ the doctor ” be the executor. On being asked the name, he did not recall it, whereupon he was asked if it was Dr. Warren, and he replied that he believed it was, and the proponent’s name was accordingly inserted. Under these circumstances, no sufficient evidence of a mistake in that respect is found. As the court has not been asked to construe the will on the probate, the questions which may arise in regard to the validity of the bequests to the religious and charitable institutions named in the will must remain undisposed of here until an accounting shall be had. A decree granting probate will be entered.


text:
    In the Matter of the Probate of Porter’s Will.

      (Surrogate's Court, Westchester County,

      Filed January, 1893.)

    WrLL—Pbobate—Sbbvice oe citation on non-bbsidents.
    Personal service of a citation on -non-residents within the state thirty-days before the return day is insufficient.

      Petition for the probate of decedent's will. It appeared that two persons interested in the proceedings were non-residents of the state, and service of citation was ordered to be made either personally without the state or by publication. The service was made personally, however, within the state, thirty days before return day.

      John F. Lambden, for petitioner.
   Coffin, S.

The question as to the proper service of the citation is jurisdictional. Section 2520 of the Code provides that, “ except where special provision is otherwise made by law, service of a citation within the state” must be made upon a person at least eight or fifteen days, according to the place of service, before the return day, personally, or by leaving a copy at his residence, etc. Sections 2522, 2524, direct the mode of service upon a non-resident of the state, which is by publication for six weeks, or, at the option of the petitioner, by personal service, without the state, at least thirty days before the return day. This case then comes within the exception mentioned in § 2520, and renders a service of the citation in this matter under that section void. That section only prescribes the mode of service upon residents. The other sections, supra, prescribe the manner of service upon a non-resident, of the state, and, as none other is provided, unless so served, the court fails to obtain jurisdiction of the person. The object of the statute is undoubtedly to afford the person served time to make his arrangements to attend on the return day. It is his right, and, residing out of the state, if personal service be made upon him within the state eight, fifteen or thirty days before the return day, it is a failure to comply with the statute, as well as the order directing the mode of service. Had the petitioner here filed admissions of due service by these non-residents, or had they appeared in person, making no objection, or had a duly executed and acknowledged waiver of the issuing and service of the citation upon them been presented within the petition, and the fact stated therein, the difficulty would have been obviated. In the latter case there would have been no necessity for an order of service by publication. As there must be proof of due service of the citation upon all of the persons entitled thereto, or such service be obviated in one of the modes indicated above before the examination of the subscribing witnesses can be proceeded with, this matter must stand over until all of the parties are properly before the court.


author: Barnard, P. J. Pratt, J.

text:
    Matilda Ackerman, Adm’rx, App’lt, v. Mary A. Herrick, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Venue—Convenience of witnesses.
    The action was brought to recover certain moneys alleged to be represented by three savings bank books, one of which was issued to plainiifi’s intestate in his name in trust for defendant by a bank in Newburgh, and the others by a bank in Kingston; the deposit in one case being made in defendant’s name, and the other in that of decedent and indorsed in case of his death to defendant. Defendant claimed that the latter hook was delivered to her by decedent. Meld, the transaction in the case of the latter book having taken place in Ulster county, the place of trial was properly changed to that county on the ground of the convenience of witnesses.
    Appeal from-order changing the place of trial from Orange to Ulster county.
    Action brought by the widow of John K. Ackerman, deceased, as administratrix, to recover the sum of $7,860,82, represented by three savings bank books, two of which were issued to decedent by the Ulster County Savings Institution, of Kingston, and the other by the Newburgh Savings Bank.

      William D. Dickey, for app’lt; J. E. & J. G. Van Etten, for resp’t.
   Barnard, P. J.

There is nothing in the papers which tends to invalidate the title of the defendant to the Newburgh savings bank book. The deceased, intestate, made the deposit and took a book in the name of “ J. K. Ackerman in trust for Mary A. Herrick.” This raises an inference of an intent to give the money and create himself, the depositor, the trustee of the donor. Martin v. Funk, 75 N. Y., 134; Mabie v. Bailey, 95 N. Y., 206.

One of the other bank books was deposited in the name of'the defendant, and there is nothing stated in either the complaint or .affidavits which constitute any claim by the administratrix to it. The other book represents deposits made by the deceased in his own name. This book contains this indorsement. “ Jn case of my death to my daughter, Mary Ann Herrick, Kingston, January 1, 1890.” The defendant states in her affidavit that this book with its indorsement on it, was delivered to her at about the date of the assignment. If this was so and she agreed to pay the interest to the deceased for his life, the gift would be complete. Young v. Young, 80 N. Y., 422.

This transaction is one which arose in Ulster county and requires the witness to the transfer as well as such, if any, besides the defendant who can testify to the delivery of the book in January, 1890.

The order changing the place of trial from Orange county to Ulster was therefore right and the order should be affirmed, with costs and disbursements.

Pratt, J.

This is an appeal from an order changing the place of trial of an action from Orange to Ulster county.

There is not such a preponderance of evidence in the affidavits that we are enabled to say there was such an abuse or misuse of discretion in the court below as to warrant us in reversing the order.

The respondent claimed and seemed to have a large number of witnesses whose convenience would be promoted by a change of venue, and we cannot say that she would not be entitled to produce them upon the trial even if the appellant should stipulate to admit copies of the bank books.

Considering all the facts and circumstances, we think the order should be affirmed, without costs.

Order affirmed, without costs.

Dykman, J., concurs.


text:
    Mary Ann Recor, Resp’t, v. Charles Blackburn et al., Def’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Judicial sale—Aliens.
    One R., an alien, died seised of certain lands, and the state released its interest therein to the widow, subject to the rights of R.’s heirs therein. In an action of partition between the heirs of the widow a sale was ordered, and the referee sold the land subject to the claims of the heirs of R., although such direction was not contained in the decree. There was evidence of the existence of a brother of R. in England. Held, that the release by the state did not give a title as against the heirs of R., and that the title was not a merchantable one which the purchaser would be required to take.
    Appeal by Levi Blumenau, the purchaser at a sale in partition, from an order compelling him to complete his purchase.

      Bearns & Brenner, for app’lt; Wm. C. Kellogg, for resp’t.
   Barnard, P. J.

This is an action for partition and sale of lands. The title sold is derived under the will of Jane Richards. She was the wife of James Richards, who died seized of the same in December, 1884 The legislature, by chapter 170. Laws of 1886, released the interest of the state of Mew York in the lands to Jane Richards, the vidow, subject to the rights of the heirs of James Richards therein. The report of the referee finds that James Richards was never made a citizen of the United States and that he left no child or children nor heirs-at-law nor next of kin expept the widow. There is no return of the evidence on which the fact of alienage is found nor any testimony showing what heirs-at-law James Richards left. The decree ordered the premises sold; decided that the devisees of Jane Richards owned the title. The referee sold the land subject to the claim of the heirs of James Richards, although this direction was not contained in the decree. One Levi Blumenau became the purchaser at the sum of $1,800, and he declines to take the title. The papers show no title out of James Richards. The release of the state did not give a title as against the heirs of James Richards. The affidavit of Cahill tends strongly to show that there is a brother of James Richards living in England, who corresponded with his brother up to a period shortly before James Richards’ death. As against this brother the act granting title to the widow is inoperative. The purchaser is entitled to a merchantable title. Fleming v. Burnham, 100 N. Y., 1.

This is not such a title. It is doubtful at least, as it is unproven that James Richards died an alien. It is more than probable that he has a brother living who can inherit under chapter 38, Laws of 1875. The conditions of sale should have no binding effect The wife was directed to sell a good title and the conditions were signed by the purchaser’s son, without understanding its force and effect. He should be relieved if he did not get a good title notwithstanding the conditions of sale. The title is not one which will sell. It demands proof and explanation. The court will not force a poor title on a purchaser who is holding only by a condition of sale unauthorized by the decree in so vital a particular.

The order should be reversed, with costs and disbursements, and the motion denied, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


text:
    William W. Taylor, App’lt, v. Franklin B. Bernard et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Mortgage—Payment.
    In an action to foreclose a mortgage it appeared that both the mortgagor and mortgagee were dead; that they were friends and dealt with each, other; that the mortgagor credited the interest on the mortgage in the account on his books, which, in 1883, showed that the mortgagee was indebted to him in an amount equal to that of the mortgage. The parties lived six years thereafter, and no claim on the mortgage was made until after both died. Held,, that it was properly found that the mortgage was paid.
    2. Evidence—Books of account.
    The evidence showed that the mortgagee kept his own books and that persons settled with him on those books and had found them correct. Held, that the books were properly received in evidence.
    Appeal by plaintiff from a judgment in his favor for $44.59.
    Action to foreclose mortgage given by Charles Bernard to one James Brown, in 1877, for $600, and interest for 16 years, ever since bond and mortgage was executed. The mortgagor and mortgagee are both dead. Bernard died in 1889, leaving children, who are made defendants, and Brown died in August, 1890; his administrator assigned this mortgage to plaintiff. The defense is payment of all except $44.59. The court found in defendant’s favor, allowing the defense of payment and off-set, and granting judgment for plaintiff for the $44.59.
    Bernard, the mortgagor, kept a country grocery store and hotel, and sold farm truck, segars, etc. Brown, the mortgagee, traded with him at his store, and also worked for him on his farm. Brown was seen frequently in mortgagor’s store, several times a week during the time this account between mortgagor and mortgagee was kept.
    Bernard kept no clerk in his store, attended to the búsiness, and kept his own account books.
    One witness testified he saw Brown go with Bernard (mortgagor) into the private room off the store; they took the books of account with them, and they went over them together.
    The account was originally with James Brown, the mortgagee, but afterwards it appears that James’ brother John bought some goods, and the articles thus purchased by John were charged “ John.” Excluding the purchases made by John, and allowing interest on the balances, from time to time, the amount due on the mortgage was $44.59, as found by the court.
    The books showed after allowing credits, that $609 was due Bernard. The mortgage was $600. After the book account was closed in 1883, the parties, mortgagee and mortgagor, saw each other frequently, almost every day, and their relations were most friendly.
    Three witnesses testified all the entries were in mortgagor’s handwriting, and that he kept no clerk; that they settled with him on those books of account, that they found them correct and honestly kept. Two of the witnesses testified that they were in the store frequently, and saw customers settle on those books. Never heard any objection made to the accounts ; that the goods were delivered as mentioned in the accounts.

      James C. De La Mare, for app’lts; I. Newton Williams, for resp’ts; G. D. W. Clocke, guardian for infant def’t.
   Pratt, J.

This is an action for foreclosure of a mortgage for $600, made in 1877, and both parties to it are dead.

It was assigned by the mortgagee’s administrator to the plaintiff. The defense was payment in effect.

The original parties to the mortgage were neighbors and friends and dealt with each other as long as they both lived. The mortgagor kept a store and the mortgagee dealt there continuously, and in 1883 the account appears to have been substantially closed by it appearing that the mortgagee owed the mortgagor on book account the amount, of the mortgage. This was proved beyond question, so that if the amount which the mortgagee owed the mortgagor could not be set off or regarded as payment pro tanto, the result would be to collect the whole amount of the mortgage and leave the book account entirely unpaid, as the statute of limitations would cut it off. It is difficult to conceive how anyone can maintain such a proposition in this case.

We think the findings of the court below are just and amply supported by the evidence, and that the conclusions of law naturally follow from the findings.

The only question is as to the admissibility of the books. We think they were admissible under the proofs, and that, taken with all the other proof in the case, established beyond all question the payment of the mortgage.

All the circumstances surrounding the transaction point to the payment of this mortgage during the lifetime of the parties, and, even disregarding the evidence furnished by the books of account, it looks very much as if the mortgage was regarded by both parties as settled and paid.

When we take into consideration the relation of the parties, their course of business, the fact that interest on the mortgage was credited on the books of the mortgagor with the items of goods sold to the mortgagee, that no claim was made for so many years that anything was due on the mortgage, all point to the theory that the mortgagee permitted the mortgagor to pay off the mortgage by goods out of his store. No other reasonable construction can be placed upon their conduct.

The decision below was just and right, and should be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Dennis Crown, by Guardian, Resp’t, v. John C. Orr et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Trial—Weisht of evidence—Testimony of interested witness.
    It is not error for the jury to give credit to the testimony of the plaintiff, although he is contradicted by those who, if he is believed, were themselves in fault.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from order denying motion for a new trial.
    Action to recover for injuries sustained by plaintiff while in the employ of defendants. It was claimed that defendants negligently placed plaintiff at work on a dangerous machine and neglected to properly instruct him in the working thereof and thereabouts, whereby, without his fault, his right hand and part of his arm were caught in the machine and cut off.
    Butler, Stillman & Hubbard (John Notman, of counsel), for app’lts ; I. S. Catlin, for resp’t.
   Pratt, J.

The trial judge charged the jury fully upon all the questions of law involved and as favorably to the defendants -as they could require.

The plaintiff’s testimony, if credited, entitled him to recover.

Those of defendant’s servants who, if plaintiff was to be believed, were themselves in fault, contradicted the .plaintiff, and the court charged that as plaintiff was an interested party the jury should consider that fact, and might disbelieve him, even when not contradicted.

The jury gave faith to his testimony, and we cannot say they were in error. It will not do to say that a plaintiff can never recover on his own testimony when he is contradicted. That would put him at the mercy of those surrounding him. The circuit judge was satisfied with the verdict, and so are we.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.