author: O’BRIEN, J.

text:
    Gould Roofing Company, App'lt, v. William Gilldea et al., Resp'ts.
    (Supreme Court, Appellate Division, First Department,
    Filed April 24, 1896.)
    Deposition—Discovery and inspection.
    In an action by a purchaser of a partner’s interest for an accounting, a statement in the answering affidavit that such partner had previously assigned all his interest in the profits to a certain date, is no ground for limiting the inspection of the firm books to time subsequent to that date.
    Appeal from so much of an order for inspection and discovery as refused permission to examine books and papers of defendant prior to Hovember 2-8, 1892.

      John J. Lenehan, for app’lt; James Flynn, for resp’ts.
   O’BRIEN, J.

The defendants, with one Gould, were engaged in business under the style of the Elmira Roofing Company, from September 4, 1891, to October 23, 1894. The single question presented upon this appeal is as to whether the limitation of time during which an inspection was allowed was proper, or, differently expressed, whether, in addition to the permission granted plaintiff to make an examination for a period subsequent to November 28, 1892, the order should not include the year and three months prior to that date. The defendants, in their-offer to allow an inspection, fixed no such limitation as was made by the order, but insisted that the books should not be removed from Elmira, where they were needed, and that the examination should be had at that place. It will therefore be noticed that the question before the special term was the place of examination, and not the scope. The plaintiff, having purchased the interest of Gould in the Elmira Roofing Company, had the same rights as Gould himself, which concededly entitled the latter to one-third of the profits of the business; and, for the purpose of ascertaining what such profits were, an inspection of the books and papers. The limitation upon the scope of the examination was undoubtedly the result of a state-.; ment in the answering affidavits that upon the 28th of June, 1892,1 Gould had assigned “all moneys that may be due and owing to me under said contract at the end of this present quarter.” It is not claimed that this assignment was known to plaintiff at the time of the purchase from Gould and defendants, nor do defendants allege any acceptance, ratification, or payment by them under it. To hold that such an assignment was valid would be, in effect, to' determine on this point adversely to plaintiff, in advance of the trial. It will be noted that, at best, it is but a defense to a portion of the plaintiff’s claim, which, like the other defenses, will be disposed of upon the trial; and its suggestion upon the motion is no more reason for limiting the scope of the examination than would be the denial of a right of discovery because other defenses," going to the whole cause of action, were pleaded, which, if maintained upon the trial, would defeat the plaintiff’s right to any relief. The plaintiff’s claim, therefore, being for the interest of Goiild, which, as a partner or employe, it is conceded, was a one-third interest in the profits from the commencement of the business, the plaintiff would be entitled to have such interest ascertained‘for the entire period, unless, in the first instance, upon the trial, the assignment referred to should be successfully established-as a bar to any relief prior to November 28, 1892. "We cannot, however, anticipate the order or method of the trial, and the validity and extent of this assignment may not fully appear until the defendants are permitted to introduce their evidence to establish their defenses; among others, that relating to this assignment. It is therefore as important for the plaintiff to be in a position to establish its entire cause of action as any part thereof, and it should not be prevented from obtaining the evidence for that purpose, or having before the court the facts which, if the validity of the assignment is successfully assailed, will entitle the plaintiff to the full relief demanded. It being conceded by the defendants and by the learned judge at special term that a discovery was proper, we do not think that sufficient reason appears for limiting it, an therefore the scope of the order should be extended so as to include the entire period.

So much of the order appealed from as refuses plaintiff permission to examine the books and papers of the defendant prior to November 28, 1892, is reversed, and the motion granted, so as to permit the examination of such books and papers for the yeas and three months preceding that date. Order modified accordingly, with $10 costs and disbursements to the appellant.

All concur.


source: Caselaw Access Project

author: WOODWARD, J.

license: Public Domain

text:
    The People ex rel. W. Crawford Ramsdale, Pl'ff, v. Board of Supervisors of Orleans County, Def’t.
    (Supreme Court, Erie Special Term,
    Filed February, 1896.)
    1. Counties—Supervisors—Audit.-
    The action of a board of supervisors, acting through and by its committee, in considering and examining each and every item of a bill, including an item which was disallowed, constitutes an audit of the whole account.
    3. Mandamus—Review.
    Where the board is called upon to examine the proofs and determine judicially whether the service has been in fact rendered, their determination of that question cannot be reviewed by mandamus.
    Application for a peremptory writ of mandamus against the board of supervisors of Orleans county.
    Albert C. Burrows, for relator; James Swart, for deft.
   WOODWARD, J.

The relator was during the the year 1895 a justice of the peace of the county of Orleans. In March of that year, there was laid before him, as such justice of the peace, an information charging the accused person with the crime of arson in the third degree, committed in one of the towns of said county. This information the relator entertained, and issued a warrant thereupon for the apprehension of the assused, who was arrested and brought before the relator. An examination took place, which resulted in holding the accused for trial, and he was committed on the warrant of the relator. In October, 1895, at the annual meeting of the board of supervisors, the relator presented an itemized account for services and fees in the said proceedings, amounting in the aggregate to the sum of $15.05. One of the items was in these words and figures: “20 certificates, at 25c, $5.00.” The hoard referred the account to a committee, who, in a report to the board, recommended that the sum be audited and allowed at $10.05, and that an order be drawn in favor of the relator for that sum. This report was adopted by the board, and the order was drawn and tendered to the relator for that sum, which he refuse to accept. The relator now moves for a writ of peremptory mandamus to issue against the board of supervisors, directing them to forthwith convene and audit the said bills, and to levy and collect a tax upon the taxable property of the county of Orleans for its payment. The board of supervisors appear, and resist the application, upon the ground, 'among others, that the board did examine, pass upon, and audit each and every item of the relator’s account, including the item of “20 certificates,” by disallowing the same, and allowing all the other items, which amounted to the aggregate sum of $10.05. It very satisfactorily appeai-s, by the affidavits presented to the court, that the board, .acting through and by its committee, did separately cosider and examine each and every item of the bill, including the one enteed as “for 20 certificates,” and that that item was disallowed. This action constitutes an audit of the whole account. An “audit,” in its broad sense, is to hear, examine, and determine a claim, by its allowance or its disallowance or rejection in toto or in part. People ex rel. Myers v. Barnes, 114 N. Y. 317; 22 St. Rep. 164, and 23 St. Rep. 795. The relator contends that the item “20 certificates” should have been allowed in toto, and that the board 'committed an error in rejecting the same; and the error can be 'corrected by the order of this court directing the board to audit the rejected item for the amount claimed. The board contends that, by the record presented to it by the relator, it had a question of fact to determine from the evidence; and, having used its judgment in the matter, it acted judicially in rejecting the item., •and the court cannot compel it to re-examine the item, and allow if for the whole amount claimed. Whether the board committed .an error or not involved a mixed question of fact and law. The fee for making a necessary and proper certificate is fixed by statute; and, when the number of necessary certificates is determined, the board has no discretion whatever as to the fee to be allowed for such service. The relator stands upon the single point that he made “20 certificates;” and that fact is indisputably maintained, he claims, by the papers he presented to the board, which are now before the court, to be carefully examined. The conclusion is reached that the case, as presented to the board of supervisors, in.volved an examination of the record to determine if “20 certificates,” for each of which the relator would charge the fee fixed" by law, were made. The evidence is not conclusive on that question, and disposing of the item involved a judicial determination.

If the making of the certificates, and the fact that they were necessary, were clearly established by the pro of e, or if the board •admitted that the service was performed, and disallowed the item, because, in their opinion, the service was not a legal charge, then the error can be corrected by an allowance of the writ demanded by the relator. People v. Board of Supervisors, 45 N. Y. 196; People v. Board of Supervisors, 51 N. Y. 401. On looking at the account as printed, it will be observed that there is an omission to state the nature and character of the certificates for which the charge is made. The item is this, and no more: “20 certificates, at 25c, $5.00.” Standing alone, it is not made to appear that each was proper and necessary. It does appear that eighteen witness® were sworn and examined on the hearing, and that the legal fee for the certificate of each deposition of such examination is 25 cents, when made. But the bill on its face do® not state that any of the certificates were attached to such deposition. The Criminal Code (section 204) does require the depositions to be certified, but there must be proof that, as a matter of fact, the certificate was made, before the fee given by the statute can be allowed. It is not stated that the examination of the several witnesses was taken in writing in the form of depositions. The only statement is, “The witnesses sworn on such examination were as follows;” giving the name of each, eighteen in all. There is another item ■in the account as follows, “Swearing 18 witnesses, 10c each, $1.80,” which was allowed. I am unable to discover any evidence in this item aiding the board in deciding the qu®tion of fact involved as to whether the certificates were; in fact, made.

The affidavit of the relator, attached to the account as printed, fails, it seems to me, to state in a direct and positive manner that the certificat® were made. The affidavit is as follows: “That all items in such account above set forth are correct; that the services charged therein have been in fact made or rendered, or necessary to be made or rendered.” This form of verification indicates that some of the servic® charged in the account were yet to be performed. The use of the disjunctive word “or,” in connection with the preceding wards in the same sentence, seems to leave it in doubt whether or not all the items charged were for past services. Grammatically construed, it is a statement that the relator has performed, or will in the future perform, the services mentioned. The account was verified on the 25th day of Eovember, 1895; and on the same day it was presented to and filed with the board of supervisors, and audited on the 2d of December following. In the relator’s affidavit verified of the 2d day of January, 1896, on which this motion is founded, he do® state that “the depositions taken on the said proceedings were duly signed, certified, and filed as required by law.” This additional statement was not before the board, and cannot be used for the purpose of showing that eighteen of the certificates were attached to the written depositions of the witnesses sworn on the hearing. The relator’s case must, on this motion, abide by the record of service, and the proof- thereof which he presented to the board of supervisors. Upon the papers presented, it seems very clear that the board of supervisors audited all the items in the account, and did not reduce the amount of the relator’s bill by deducting therefrom an arbitrary sum not paid, but by rejecting and disallowing an item thereof.

It is not necessary to examine the other cases cited on the hearing, as the motion is denied on the ground that the proof presented to the supervisors as to the performance of the service of making “20 certificates” was not sufficient to establish the fact beyond controversy. The board was called upon to examine the proofs, and determine judicially whether such service had been in fact rendered; and their determination of th-at. question cannot be reviewed by mandamus. If I am correct as to the character and force of the proofs, the other points discussed need no examination.

' Motion denied, with costs.


author: HARDIN, P. J.

text:
    David F. Wilber, App'lt, v. John L. Williams, et al., Resp'ts.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    1. Costs—Extra ailowauce.
    The reason of the rule that a motion for an extra allowance must be made before the judg-e who tried the case is not violated, where the judge who granted the motion had about as much information as to the nature of the issue, and of what transpired on the occasion of the dismissal of the complaint, as the judge who granted the dismissal.
    2 Same.
    When such objection was not taken at the time of the argument of the motion, it is waived.
    8. Same.
    Where there is a conflict in the papers before the special term relating to the question whether the case was difficult and extraordinary, its order should he sustained.
    The order was granted on the affidavit of O. M. Bushnell, the answer of the defendants, the examination of the defendants before a referee-, the affidavits used upon the motion to change the place of trial from Otsego to Erie county, and “upon the proceedings of record in this case.” The motion was opposed upon an affidavit of the attorney for the plaintiff. It was made to appear by the affidavits, examinations and proceedings of record, aa the -order recites, “to the satisfaction of the court, that the sum claimed herein was $400,000, and that said action was a difficult and extraordinary action, and that a defense was interposed thereto.” The complaint contained 32 folios, and set out an agreement made on the 5thday of February, 1892, between F. W. Hawley and the defendants, as to a joint venture to be made in the-purchase of land in Erie county, and that the contract was subsepuently assigned to the plaintiff. The prayer of the complaint was that the plaintiff have judgment for „the sum of $400,000, his said damages; also compelling and directing a specific performance on the part of defendants of the said contract; also compelling and directing the said defendants to account to this plaintiff for all lands purchased by them under and by virtue of the said contract hereinbefore set forth, including the said Briggs farm, and to account for such of said lands as have been sold by ■them, and such other or further order or relief as the court may ■deem just.” The answer consisted of numerous denials, and an admission that on the 5th day of February, 1892, the defendants entered into a contract with one F. W. Hawley, set forth in the complaint, and which the complaint alleges was assigned to the plaintiff. The answer also alleges that the defendants informed Hawley on the 8th of February, 1892, “that no lands could be purchased under said contract; and it was then and there mutually agreed by the defendants and said Hawley, that no lands could or should be purchased under said contract, and that the contract should be abandoned, and no futher steps taken thereunder; and. •they did then and ther abandon and cancel said contract, and the said Hawley did consent to the cancellation of such contract, in writing duly signed by him.” It was further alleged in the answer that Hawley failed to carry out and perform any of the provisions of the contract alleged in the complaint.
    Douglas W. Miller, for app'lt; Norton & Bushnell, for resp’ts.
   HARDIN, P. J.

Section 3253 of the Code authorizes an additional allowance “in a difficult and extraordinary ease, where •a defense has been interposed in an action”; and subdivision 2 of that section authorizes the allowance to be a “sum not exceeding five per centum upon the sum recovered or claimed.” It seems that several ineffectual efforts were made to bring the action to trial at special term, and it was set down for trial at a future day of the term by a judge who did not appear on the adjourned day, when it was finally brought to a hearing. At the hearing, several motions were made of a dilatory character, and one of them was based upon an affidavit verified October Ith by the attorney, and another one verified October 8th by the counsel for the plaintiff; and, after those several motions were denied, the defendants moved to dismiss the complaint, and the plaintiff objected on several grounds, and the complaint was dismissed, with costs, by Mr. Justice Childs. The term was further adjourned, and, upon affidavits, a motion was made at a later day in the term, when the motion came on to be heard before Mr. Justice Spring, who had heard some preliminary motions that had been made in the cause. The record before us does not show that any objection was made at the time the motion was argued before Mr. Justice Spring on the ground that he did not preside at the trial at the time the dismissal of the actioji took place. The order does not recite any objection to the organization of the court; and, although rule 44 provides that motions for extra allowance should he made at a term held by the judge who presided at the trial, we think that, inasmuch as it does not appear that the plaintiff objected at the time the motion was presented and submitted, the plaintiff did not promptly object to the irregularity of which he now seeks to complain. Again, it appears that the object of the rule was to enable the judge who is to pass upon the question whether the case was difficult and extraordinary, or not, was that he might be possessed of the facts and circumstances transpiring at the trial. Safety Steam-Generator Co. v. Dickson Manuf'g Co., 61 Hun, 335; 40 St. Rep. 681; Sentennis v. Ladew, 140 N. Y. 463; 55 St. Rep. 831: In this ease there seems to have been no protracted trial, and therefore the reason of the rule was not violated, inasmuch as it appears that the judge who granted the motion had about as much information as to the nature of the issue, and of what transpired on the occasion of the dismissal of the complaint, as the judge who granted the dismissal. The justice who heard the motion had jurisdiction cff the parties and of the subject-matter; and, inasmuch as the objection was not taken at the time of the argument of the motion, we think it should now be overruled. Wiley v. Railroad Co., 88 Hun, 177; Cowenhoven v. Ball, 118 N. Y. 231; 28 St. Rep. 870.

There was a conflict in the papers before the special term relating to the question whether the case was difficult and extraordinary. The special term was called upon to solve that conflict, and has done so by its conclusion that it satisfactorily appeared to it that the case was both difficult and extraordinary; and, after reaching such a conclusion, it was called upon to- exercise its discretion; and a perusal of the appeal hook does not lead to the conclusion that the discretion was abused. Its order should, therefore, he sustained. Tolman v. Railroad Co., 31 Hun, 397; Meyer Rubber Co. v. Lester Shoe Co., 92 Hun, 52. The foregoing views lead to an affirmance of the order. '

Order affirmed, with $10 costs and disbursements.

All concur.


author: VAN BRUNT, P. J.

text:
    James Ridgway, as Receiver, etc., App'lt, v. Samuel Symons, as Receiver, etc. Resp't.
    (Supreme Court, Appellate Division, First Department,
    Filed April 24, 1896.)
    1. Corporations—Insolvent—Preference.
    An insolvent corporation is not obliged to defend any suit brought-against it for a valid debt, against which there is no valid defense, for the sole purpose of defeating a preference, but it may suffer default and thus allow a preference.

      3. Same.
    Where an order, appointing a receiver declares that a judgment should be the first lien upon the assets which came into his hands, it cannot be vacated in an action by the receiver to set aside such judgment.
    Appeal from a judgment in favor of defendant.
    Gilbert R. Hawes, for app’lt; H. M. Goldfogle, for resp’t.
   VAN BRUNT, P. J.

This action was commenced by the plaintiff, as receiver of the property and assets of Charles Casper & Co., a corporation, against Samuel Symons, as receiver of the assets of the co-partnership of Robinson & Symons, to set aside certain judgments obtained in an action brought by the defendant against the corporation of Casper & Co-, on the 19th of January, 1895, in which judgment was entered on the 18th of March, 189 5, by default, and an order was entered on the 1st of April, 1895, whereby it was ordered that the levy made upon the property of Casper & Co. upon the execution issued upon said judgment should be released upon condition that the property of the defendant be sold by the receiver of the defendant in that action, who had been subsequently appointed, and the proceeds of such sale be applied towards the payment of the judgment recovered by the plaintiff. The complaint in this action, after setting up the appointment of the plaintiff as permanent receiver of the corporation of Casper & Co., and his qualification as such receiver, and the entry of an order authorizing and empowering this action to be brought, alleged the appointment of the defendant, Symons, as receiver of the firm of Robinson & Symons; the insolvency of the corporation of Casper & Co., and that such insolvency was known to tire officers and directors of the company, including one Bobinson, its president, and one Stodola, its secretary and treasurer; the commencement of an action by the defendant on the 19th of March, 1895 (January probably being meant), in the city court of Hew York, against said corporation of Casper & Co-., by the service upon its president, Robinson, of a summons' and complaint, which resulted in a judgment on the 18th of March, 1895, by default; the issue of execution, and the levy of such execution upon the property of the corporation; the due entry of the order of April 1,1895, above referred to; the payment by the temporary receiver on the 14th of May, 1895, of $100, on account of said judgment, to the defendant; the payment to the defendant of’* $50 after the commencement of said action, and of the further sum of $588.33 after knowledge by its officers of ite insolvency, and after knowledge on the part of said Bobinson & Symons thereof. The complaint further alleged that the said judgment was made and entered while said corporation of Casper & Co. was wholly insolvent, and known so to be by the officers thereof and by said receiver, Symons, and that said action was commenced, and judgment allowed to be entered by default, in contemplation of such insolvency, and was made and suffered for the purpose of defrauding the creditors of said corporation other than said Robinson & Symons, and said acts were performed, and payments made, with the intention of giving a preference to the defendant in this action over the other creditors of said corporation, by transferring to such defendant the property of said corporation, contrary to the statute in such case made and provided, and that the said execution so issued and levied, and the stipulation on which the order was entered, and the payment of $100 by the receiver, were all contrary to the statute in such case made and provided, and were wholly void and without effect. The defendant answered, denying knowledge of the insolvency of Casper & Co., admitting the commencement of the suit and the entry of the judgment, and alleging that the debt upon which the judgment was obtained was a bona fide debt, and setting up other facts not necesary to notice here. The plaintiff replied to such answer, putting in issue most of the allegations thereof. The issues thus raised coming on for trial, the complaint was amended by setting up the additional fact that the corporation had refused to pay certain of its notes or other obligations when due, prior to the suffering of the judgment set out in the complaint. The parties having conceded most of the facts hereinabove stated, the order of April 1, 1895, directing the payment of the judgment out of the proceeds of the sale of the property of Casper & Co., was offered in evidence, and also the stipulation therein referred to,I and the articles of incorporation of Casper & Co., and the orderj of June 4, 1895, appointing the plaintiff as permanent receiver, of Casper & Co-., by which it was adjudged that the defendant, by virtue of the judgment above mentioned, had a first lien upon all the money and assets of said Casper & Co., which lien was to be satisfied and pain in full before payment of any other creditors of said corporation, and said judgment was to have precedence over any other payment on any indebtedness due from said corporation; especially, over any and all fees, costs, and commissions applicable to the receivership. _ The oo-urt having suggested that it did not think the plaintiff could maintain this action without a general motion setting aside all o-f those prior orders, and restoring the defendant, as near as possible, to the state he w-as in when the stipulation was made, the plaintiff offered to malee proof of the matter’s set forth in the complaint. The defendant objected, upon the theory that, upon the state of facts as alleged, the plaintiff could not recover. The court sustained this objection, and, upon motion of defendant’s counsel, dismissed the complaint, upon the ground-that the facts proved, and those offered to be proved, did not constitute a cause of action. And from the judgment thereupon entered this appeal is taken; it being claimed upon the part of the appellant that, the court then having jurisdiction, not only could it declare the judgment fraudulent and void, but it also had power to vacate tire order of May 1, 1895 (probably meaning April), as improvidently and improperly made, all of which was prayed for in the complaint.

We do not think that this contention upon the part of the plaintiff is well founded. The court, in malting the orders in question, had jurisdiction of the parties, and the right to make the same, and there were no facts whatever alleged in the complaint tending in any manner to impeach such jurisdiction. By the very order under which the plaintiff in this action was appointed receiver, it was declared that the judgment in question should he the first lien upon the assets which should come into- his hands. This order has in no respect been modified, nor is it attempted, in this action, to set the same aside. There is a general allegation contained in the complaint that these acts and things were done for the purpose of defrauding the creditors of the corporation. But there is no statement that anything was done by the officers of the corporation except to suffer the judgment above mentioned, and it is difficult to see upon what theory the officers 'of a corporation can put in an answer in an action brought against the corporation upon a debt which is confessedly due, even if such corporation should happen to he insolvent. Ho such duty is inn posed upon the officers of a corporation. In the ease of Varnum v. Hart, 119 N. Y. 101; 28 St. Rep. 262, it was held that the statute under which this action is brought does not impose upon the officers of an insolvent corporation the duty to take measures to procure a disposition of its property, without preference, among all its creditors.- It is further stated in that case that, while the purpose of the statute was to prevent unjust discrimination, this was sought to he accomplished, not by securing affirmative action, but by restraint upon the action of the corporation and its officers, leaving the property to be taken and disposed of by due course of law, and that the corporation might, like an insolvent person, permit the creditors to take hostile proceedings, and allow those to obtain a preference wffi> were most vigilant; this does not constitute an assignment or transfer on its part; and that an insolvent corporation is not obliged to defend any suit brought against it for a valid debt, against which there is no valid legal defense, for the sole purpose of defeating a preference, hut that it may suffer default, and thus allow a preference. Hpon a consideration of the case cited, it will he seen that upon the facts alleged, if the plaintiff would he permitted in this action to attempt to attack the orders and judgment above mentioned, no right to a recovery is shown. We are also of the opinion that the court was correct in holding that the judgment and orders could not he assailed as was attempted to he done in the case at bar.

The judgment should he affirmed, with costs.

All concur.


text:
    People ex rel. Commissioners of Public Charities and Correction, App'lt, v. William Cullen, Resp't.
    (Supreme Court, Appellate Division, First Department,
    Filed June 29, 1896.)
    1. Husband and wide—Disorderly person.
    A husband, from whom his wife has obtained a decree of separa-: tion without alimony, who abandons her without adequate support, becomes a disorderly person.
    3. Appeal—Appealable order.
    An order, which adjudges a husband a disorderly person in failing to support his wife, is appealable.
    Appeal from an order of the general sessions, reversing a judgment of the special sessions, affirming an order made by a police justice adjudging defendant a disorderly person in abandoning his wife without adequate support.
    Percy McElrath, for app’lts; Payson Merrill, for resp’t.
   VAN BRUNT, P. J.

This proceeding was brought at the instance of the above-named plaintiffs against the above-named defendant on the ground that he was a disorderly person, in that he had abandoned bis wife, in the city of New York, without adequate support, and in danger of becoming a burden upon the public, and had neglected to provide for her according to his means. A warrant for his arrest was issued on the 28th of May, 1894, by Police Justice Ryan, who on that day took, under oath, the examination of Eliza Cullen, the wife, and William Cullen, the defendant. The police justice adjudged the defendant to be a disorderly person, as charged, and ordered him to pay, or cause to he paid, to the relators, the sum of eight dollars per week for the period of one year. On the same day the defendant appealed, and on the 20th of June the said appeal came on for hearing at the court of special sessions, by which court the order of the police justice was affirmed. An appeal was thereupon taken to the court of general sessions, and on the 24th of June an order was made reversing, vacating, and setting aside the order of conviction and judgment. And from this order of the court of general sessions the plaintiffs have appealed to this court.

It appears from the record that the complainant and the defendant lived together from 1862 to 1868, when the complainant left the defendant, and that ten years later she brought an action against him for limited divorce and alimony. The result of such action was a decree of separation from bed and board, but, in con'sequence of the pecuniary condition of the defendant, no alimony was decreed. A provision was attached to the judgment that in the event of the pecuniary circumstances and condition of the defendant becoming materially changed, touching his ability to-support the complainant, an application might be made on tire foot of the judgment, by any party in interest, for modification ■of the judgment touching the support of the plaintiff. In 1887 an application was made for support, at the foot of such judgment, and a referee appointed to ascertain the amount of the defendant’s property and income. An appeal having been taken to the general term, such order was reversed, and the motion to open the judgment, and for alimony and counsel fee, was denied. Cullen v. Cullen, 55 Supr. 346; 18 St. Rep. 381. The learned judge in the court of general sessions, in determining the question before 'him, held that these proceedings in the action for a separation were a bar to the present application. In this view we are unjable to concur. By the decree of separation there was no termina(tion of a marital relation existing between the parties to the (action. . They continued to be husband and wife, although the judgment did determine that in October, 1868, the defendant abandoned- and failed to provide the plaintiff with the necessaries ¡of life, and refused and neglected to provide for her support. It as apparent, under these circumstances, that the defendant was a disorderly person, under section 899 of the Code of Criminal Procedure. % That section describes, among others, disorderly persons as persons who actually abandon their wives or children, in the city of ¡New York, without adequate support, or who leave them in danger of becoming a burden upon the public, or who in eglect to provide for them according to their means. The record ■shows beyond question that the defendant had abandoned his wife without any means of support whatever, and that she was in. danger of becoming a burden upon the public unless she was able' to sustain herself by her own efforts, which she seems to have done for a number of years. With the provision, or rather the want of provision, in respect to alimony, the plaintiffs in this action have nothing to do. A disorderly person is defined by the statute, and all that the court determined, in the separation proceeding, is that it would not decree that the defendant should contribute to the support of his wife. If he abandoned his wife without adequate support, he became, under the statute, a disorderly person, and the fact that some other court failed to do its duty certainly cannot absolve the defendant from the offense against the law which he has committed. That is a question between the people of the state and one of its citizens. It might be that the wife would be entirely unwilling that this proceeding should bo instituted, but the relators had a duty to the public, to see to it that deserted wives and children should not become public 'charges, but that the duties imposed by law upon those responsible for their support should be performed. So in the case at bar the defendant was under the legal obligation of supporting the wife whom he had abandoned. His failure to do so made him a disorderly person, and the commissioners of charities and correction ¡had a right to proceed against him as such.

It is urged upon the part of the respondent thjat, fio demand having been made by the complainant for support, there was no criminal intent, and consequently the defendant could not be guilty of a crime. It appears from this record that the complainant was using every means in her power to compel him to support her. She asked for support in the separation proceeding, and for some unexpláined reason her demand seems never to have received the slightest recognition, and it was only after she was unable to support herself that these proceedings were initiated. It can hardly be claimed, under these circumstances, that the defendant was ignorant of the desire upon the part of the plaintiff that he should contribute to her support.

In regard to the question of the appealability of this order, that point was determined upon the motion to dismiss the appeal. The court held that, under section 515 of the Code of Criminal Procedure, writs of error and certiorari in criminal actions, and special proceedings of a criminal nature, as they had theretofore existed, were abolished, and that thereafter the only method of reviewing criminal actions, or special proceedings of a criminal nature, was hy appeal, and that the subsequent provisions in regard to appeals in criminal actions was in no way intended to take away the right of review which had previously existed in reference to special proceedings of a criminal nature.

The order appealed should be reversed, with costs.

All concur.


author: INGRAHAM, J.

text:
    Mart E. Side, et al., Resp’ts, v. Charles Brennemah et al. App’lts.
    (Supreme Court, Appellate Division, First Department,
    Filed June 29, 1896.)
    1. Partition—Jury trial.
    An action for partition is triable by a jury.
    3. Same—Essential.
    In order to maintain an action for a partition, it is not enough that a person is entitled to a conveyance of an interest in real property which a court of equity could enforce, hut a legal title to such real property must vest in two or more persons as joint tenants or as tenants in common.
    3. Same.
    Where a decree simply adjudicates as to the rights of the beneficiaries in certain property of the estate which is in the hands of the executor, without attempting formally to distribute such estate, it does not make them joint tenants or tenants in common so as to entitle them to maintain an action of partition. .
    Appeal from a judgment ascertaining the interest of the parties and directing partition.
    Howard Y. Stillman, for app'lt Elizabeth Brenneman; Daniel G. Rollins, for app’lt Charles Brenneman; Henry A. Forster, for resp’ts.
   INGRAHAM, J.

We think, as this section is clearly an action for partition, that the defendants’ demand for a trial by a jury should have been granted, as under section 968 of the Code an action for partition is triable by a jury. The case, however, having been tried by the court without a jury on the demand of the plaintiffs, and the court having rendered a short decision under section 1022 of the Code, the plaintiffs cannot complain if we consider the case as one triable at special term, and determine the question involved as we would an action there triable.

The only cause of action alleged is one for the partition of real property. The complaint alleges the execution of the decree of the surrogate, which will be hereafter referred to, and then “that the plaintiffs and the defendants Charles Brenneman and Josephine Kager and Edward Leonhard are seised in fee and possessed of the premises hereinbefore described as tenants in common, and they own no other real property in common.” Then follows a statement of the respective interests of the parties in the real property described, and the complaint demands judgment for a partition of the said premises thereinbefore described between the parties interested, and that, if an actual partition thei’of cannot be had without prejudice to the owners, then for a sale of the said premises, and a division of the proceeds thereof. There is no allegation in the complaint from which it would appear that the plaintiffs had any lien upon the said premises, nor is the court asked to establish or enforce a lien; and upon this complaint the right of the parties to any relief must depend upon whether or not the proof established that the parties to the action, or some of them, held the premises described in the complaint as joint tenants or tenants in common. The answer of these defendants denies all of the substantial allegations of the complaint, and' upon the pleadings the case came on for trial. The only evidence offered for the plaintiffs was the testimony of hfary E. Side, stating her relationship to the defendants, the ages of the parties, a description of the property described in the complaint, and the allegation that she owned no property in common with the defendants, except the property in question.. The plaintiffs then offered in evidence the decree of the surrogiate set forth in the complaint, and also a judgment of the general term of the supreme court affirming that decree. This decree and judgment were objected to by the defendants, the objection overruled, an exception taken by defendant, and the parties thereupon rested.

We have first to determine whether or not this decree is sufficient to prove the allegations of the complaint that the plaintiffs are seised in fee and possessed of an undivided interest in the real estate described in the complaint. The decree mentioned was entered upon an accounting of the defendant Charles Brenneman, appellant, as executor of an estate in which the plaintiffs were interested. Upon that accounting it was adjudged that certain money of the estate had been invested by the executor in the property in question; that said executor was charged with a cash balance in his hands of $13,827.37, and also this undivided interest of substantially twelve twenty-ninths of the Houston and Mott street property, subject to mortgages aggregating $42,000, in the hands of the executor; and the surrogate’s decree then contains the following provision:

“.And it is further ordered, adjudged, and decreed that $12,388.71 of the $29,188.36 invested by the executor in the property at the southwest corner of Houston and Mott streets, being about 63 feet 4 inches wide on Houston street by 76 feet $ inch on Mott street, was money of the estate of Frederick Leonhard, deceased; that the executor is charged with 12388.71—29188.36 of said property as an asset of the estate, subject, however, to mortgages thereon amounting to $42,000; that Mary E. Sjide is entitled to one undivided eighteenth equal part or share of said property, and has been entitled to the possession thereof since July 24, 1891, the date of the death of the life tenant, Margaret Leonhard, and to the rents, issues, and profits thereof since August 23, 1892; that Frederick Leonhard is entitled to one undivided eighteenth equal part or share of said property, and has been entitled to the possession thereof since July 24, 1891, the date of the death of the life tenant, Margaret Leonhard, and to the rents, issues, and profits thereof since August 23, 1892.” ..,

Did this decree vest a legal title or interest, as joint tenants or as tenants in common in the property, in the plaintiffs? By section 1532 of the Code, to entitle a person to maintain an action for a partition it must appear that “two or more persons hold and are in possession of real property as joint tenants or as tenants in common.” It is not énough that a person is entitled to a conveyance of an interest in real property which a court of equity could enforce, but a legal title to such real property must vest in two or more persons as joint tenants or as tenants in common. We think it clear that this decree, even assuming that the surrogate had jurisdiction to vest a title of real property in the plaintiffs, fails to accomplish that result. The surrogate found that the executor bad invested certain moneys of the estate in this real property; that he held that interest in the real property as an asset of the estate, but that the legal title to such property was in the executor individually, and not as executor; and that the interest of the estate, or the beneficiaries thereof, arose because of a trust that resulted in their favor, the property of the estate having been invested in such real property. That being the fact, the surrogate decreed that the executor held this interest in the real property ■not individually, but as executor of the estate, and that the various beneficiaries were entitled to an interest in the estate, and to the possession thereof. No provision, however, directs the executor to transfer the legal title to the beneficiaries. No provision in the decree adjudges that the legal title is in the beneficiaries, nor does the decree attempt to put the beneficiaries in possession. It simply adjudicates as to their rights in certain property of the estate which is in the hands of the executor, without attempting formally to distribute such estate. Without attempting, therefore, to determine just what jurisdiction the surrogate had to compel this trustee to convey to the beneficiaries their interest in this estate, or without determining as to whether or not as between the trustees and these beneficiaries this property is to be considered real or personal, it is sufficient to say that the decree of the surrogate does not attempt to make any adjudication as to the legal title of the property, and does not attempt to put the beneficiaries in possession of the property. In equity, this executor, under this degree, would undoubtedly hold the interest in the estate as trustee for the plaintiffs and their beneficiaries as property in which bad been invested certain moneys of the estate, and of which these plaintiffs are entitled to their proportionate share. This interest in real property, thus being treated as an asset of tlie estate, upon an accounting the surrogate undoubtedly would have jurisdiction to adjudge that such real property was an asset of the estate held by the executor. This is the extent of the decision, ar. we understand it, of the general term of the supreme court on the appeal from the decree of the surrogate. Whether or not the surrogate would have jurisdiction to direct the executor to distribute this estate among the beneficiaries by making a conveyance to them which would vest in them the undivided interest in the estate to which each of them is entitled, or would have jurisdiction by a proper decree to compel the executor to sell this interest of which he was executor, and to divide the proceeds among the beneficiaries according to their respective interests, are questions that it is not necessary for us to determine upon this appeal, as the surrogate has not attempted to exercise such jurisdiction. He has only attempted to-define the interest of the estate which has been invested in this real estate, and adjudged that the executor held that interest as executor for the benefit of the beneficiaries. Such adjudication went far short of holding that the beneficiaries were the owners and are in the possession of real property as joint tenants or as tenants in common. We think, therefore, that the evidence failed to show that the plaintiffs were the holders or in possession of any real property in common with the defendants, and that the complaint should have been dismissed.

The judgment is reversed, and the complaint dismissed, with costs. All concur.


author: FOLLETT, J.

text:
    W. Warren Kingsley, Resp't, v. Jacob Sauer, App'lt.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    Lease—Effect.
    The right of a lessor under a covenant hy the lessee to leave an equal amount of hay on the premises at the expiration of the term,, passes under an assignment by, and not under a subsequent deed from the assignor.
    _ Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.
    E. O. Worden, for app’lt; P. H. Fitzgerald, for resp’t.
   FOLLETT, J.

Welcome J. Dixon, being the owner of a farm, leased it to Bernard Seifert, for five years, from April 1,1890, for $150 per year, payable on the 1st day of January of every year. The lessor left on the farm seven and one-half tons of hay, and the lessee, in his lease, covenanted “to leave as much hay on the place as found when taking possession.” The transaction in respect to the hay amounted to a sale by the lessor to the lessee of seven and one-half tons, to be paid for in kind by the lessee at the end of his term. February 6, 1894, Dixon, the lessor, conveyed the farm to Jacob Sauer, the defendant, by a full covenant warranty deed. The lessee was notified of the transfer of title, attorned to the grantee, and paid to him the rent due January 1, 1895. November 28, 1894, Dixon, the lessor, assigned his claim against the lessee for seven and one-half tons of hay, and to certain implements left upon the farm, to this plaintiff. March 16, 1895, the lessee vacated the dwelling house on the farm, and the defendant moved in, the lessee having at that time a quantity of hay in the barn. March 18th the lessee and litigants met at the barn, measured off a quantity of hay which the lessee should leave to perform his contract, and aftewards the lessee drew away the remainder.

The question is: Who, then, acquired title to the hay,—the-plaintiff, under his bill of sale from Dixon, or the defendant, under his deed from Dixon? When Dixon conveyed this farm to the defendant, the former had no title- to any portion of the hay. All of it could have been taken on execution against the lessee, or his vendee would have acquired a perfect title. The right of Dixon to be paid in kind for the hiay which he, in 1890, sold to or left for the lessee, was not an incident to the lease. This right did not arise out of the futriré occupation of the farm, nor was it to be returned as part of the rent for the premises. Tho covenant was merely an executory right of action, which wras to be satisfied by the delivery of-a like quantity of hay at the end of the term, which right did not pass to the grantee, the defendant under the deed, but did pass under the bill of sale to the. plaintiff; and when the hay left in payment was agreed upon and set apart, by consent of all parties, it became the property of the plaintiff, who thereupon acquired the legal title to, and became entitled to the immediate possession of, the hay, just as Dixon would have acquired title by its being set apart had he not made the bill of sale or deed. This title and the right of possession were disputed by the defendant, and the plaintiff was entitled to maintain this action to recover the hay. There was no question of fact for the jury, except as to the value of the hay; and the learned court committed no error in its rulings on the admission or rejection of evidence, or in its instructions to the jury bearing upon this question.

The judgment and-order should be affirmed, with costs.

Judgment and order affirmed, with costs.

All concur.


text:
    Elizabeth Cohen, App’lt, v. Rebecca Silverman, Resp’t.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    1. Contract—Construction.
    A contract that the purchaser, if he becomes dissatisfied with any mortgage or title to mortgag-ed property, must signify his dissatisfaction within three months from the date thereof, and, in such case, must foreclose at once, does not require him to foreclose within the three months.
    2. Same.
    The term “at once” does not mean instantaneously, but requires-action to be taken within a reasonable time.
    Appeal from a judgment dismissing the complaint.
    E. N. Wilson, for app’lt; Frank Hopkins, for resp’t.
   FOLLETT, J.

On March 15, 1890, the defendant was, and for some years before had been, engaged at the city of Syracuse, in the business of loaning money on chattel mortgages, pledges, and notes, and in selling jewelry and merchandise on installment contracts. On the date mentioned, the litigants entered into a written contract, by which the defendant agreed to sell and the plaintiff to purchase the aforesaid business upon terms specified. The contract contains the following provisions:

“Said first party (defendant) further agrees that she wall guaranty the title to all pledges now in her possession, and which she-wall hereafter by bill of sale transfer to said second party (plaintiff). Said first party (defendant) further agrees that she will guaranty unto said second party (plaintiff) the collection of all mortgages turned over by her, and now owared by her, if the second party (plaintiff) shall be dissatisfied with her security, or with the title to the property covered by such mortgages, within three months from the time when the bill of sale hereinbefore referred to shall be executed by said first party (defendant) to said second-party (plaintiff). If said second party (plaintiff) becomes dissatisfied with any such title she shall, foreclose the same at once, if the same can be foreclosed by its terms; and if there be any deficiency or any mistake of title in the said goods, then the said

first party (defendant) agrees to make the second party (plaintiff) whole hy paying whatever deficiency shall occur, and interest at the rate of six per cent, from the time said second party (plaintiff) advances said money to the time when it shall be demanded of said first party (defendant). Such parties further agree that, should there be any chattel mortgages upon which there is due more than one commission, and should the same he foreclosed by said second' party (plaintiff), and the deficiency he found, she, the said second party (plaintiff), agrees to claim only what she has paid for said chattel mortgage from said first party (defendant), allowing said commission to be deducted. And the said first party (defendant) further agrees to guaranty the payment to said second party (plaintiff) of all notes and orders or bills of sale, which she will transfer to said second party (plaintiff), which are not otherwise secured, and also the payment of all goods which have been sold upon contract and not otherwise secured.”

Afterwards an inventory of the property, described, in general terms in the foregoing contract, was made, and on the first day of April, 1890, the defendant executed and delivered a bill of sale of the property, a schedule of which was annexed. The hill of sale contains the following provisions:

“Said first party (defendant) further guaranties unto the said second party (plaintiff) the collection of all mortgages turned over by her and now owned hy her; but said second party (plaintiff) must signify her dissatisfaction with such mortgage, or the title to the property coverel by such mortgage, within three months from the date hereof, and when second party (plaintiff) signifies such dissatisfaction, said first party (defendant) agrees to make such title good; hut if the same is not done within three months, said second party (plaintiff) is hound to keep the same. If said second party (plaintiff) becomes dissatisfied with any such title she shall foreclose the same at once, if the same can he foreclosed hy its terms; and if there be any deficiency or any mistake of title in the said goods, then the said first party (defendant) agrees to make the said second party (plaintiff) whole by paying whatever deficiency shall occur, and interest at the rate of six per cent, from the time said second party (plaintiff) advances said money to the tiro e when it shall he demanded hy the said first party (defendant). Said second party (plaintiff) further agrees that, should there he any chattel mortgage upon which there is due more than one commission, and should' the same be foreclosed hy the second party (plaintiff), and a deficiency he found, then the said second party (plaintiff) agrees to claim only what she has paid for said chattel mortgage to said first party (defendant), allowing said commissions to he deducted. And the said first party (defendant) hereby guaranties the payment to the said second party (plaintiff) of all notes, orders, and goods sold upon installment plan, which said notes, orders, and goods are hereby transferred to said second party (plaintiff).”

On the 13th of June, 1890, the plaintiff personally served upon the defendant a written notice expressing her dissatisfaction with certain chattel mortgages, bills of sale, notes, pledges, and installment contracts which were mentioned and described in a schedule Annexed. The reasons for her dissatisfaction were set forth. The •defendant refusing to make good her guaranty in respect to any of the securities, this action was begun on the 16th of September, 1890. The learned referee finds that the chattel mortgages were not foreclosed until after July 1, 1890, and held, as a conclusion of law, that, by the terms of the bill of sale, the plaintiff was bound to foreclose them before that date. In this construction of the contract we think the learned referee erred. The contract and the bill of sale required the plaintiff to express her dissatisfaction with any of the securities before the 1st of July, 1890, but we fail to find any provision which required the plaintiff to foreclose the mortgages on or before that date. The plaintiff had until the very last day of June to express her dissatisfaction, and she could not have availed herself of the provisions of the contract and foreclosed the mortgages before July 1st. By the contract and the bill of sale, the plaintiff, upon becoming dissatisfied with any of the mortgages, was required to foreclose them “at once,” but, as we read the contract, not until after she had become dissatisfied with them. The term “at once,” like the words “forthwith” and “immediately,” does not mean instantaneously, but requires action to> be taken within a reasonable time, Bennett v. Insurance Co., 67 N. Y. 274; Bamforth v. Reddin, 14 Allen, 66; Roberts v. Brett, 11 H. L. Cas. 337; Oldershaw v. Ring, 2 Hurl. & N. 399, 517, which, under the circumstance» of this case, was a question of fact, to be determined by the referee; and the conclusion of law of the learned referee that, because the mortgages were not foreclosed before July 1, 1890, the plaintiff lost her remedy, cannot be sustained. Of course, the plaintiff was bound to exercise due diligence to attempt to foreclose the mortgages, and to collect the obligations; but in cases where neither the mortgagors nor the mortgaged property could be found by the exercise of diligence, a foreclosure was not required in order to perfect the plaintiff’s right of action. The judgment should be reversed, and a new trial granted, with costs to abide the event.

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


text:
    Emma F. M. Ayres, Resp'ts, v. Delaware, Lackawanna and Western Railroad Company, App'lt.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    1. Carriers— Negligence.
    Where the plaintiff is free from negligence in falling over a mail bag on a station platform, the carrier is liable for injury, in case the platform, on the occasion of the accident, was insufficiently lighted, and in case the carrier knew, or ought to have known, that the postal clerk was accustomed to throw mail bags on the platform at such station.
    3. Same.
    The evidence, in this case, was held to be sufficient to authorize the jury to find that the plaintiff did not contribute to the accident by any negligence in attempting to enter the car.
    Appeal from an order entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.
    William Kernan, for app’lt; William Townsend, for resp’t.
   FOLLETT, J.

This action was begun November 12, 1891, to recover damages for a personal injury caused, it is alleged, by the negligence of the defendant. October 24, 1891, the plaintiff purchased of defendant a ticket at North Brookfield for Utica, for the purpose of taking passage on train No. 3, due at North Brookfield at 5:33 p. m. On this date the train arrived at North Brookfield at nine minutes past six and left at ten minutes past six, it being thirtyisix minutes late. This train carried the United States mail, and had for twelve or thirteen years. The mail was in charge of a postal clerk, who, on the occasion in question, threw a mail bag from the mail car to the station platform about the time that the train came to a stop. The bag fell upon the platform about thirty feet south of the waiting-room door and between it and the passenger car. The plaintiff, in going from the waiting room to the passenger car, fell over the bag, and was injured. She was assisted to the oar, and rode to Utica, there took a New York Central train to Albany, at which place she took the Delaware & Hudson train for Saratoga, her home, arriving there at about three o’clock on the morning of October 25th. It is asserted that the accident caused severe and permanent injuries, from which the plaintiff has not recovered. October 24th the sun set at 5:05, and the accident occurred one hour and five minutes after sunset. It is alleged that the defendant was negligent (1) in permitting the mail bag to be thrown upon the platform between the waiting room and the passenger car, and (2) in not lighting the platform so as to enable passengers to see and avoid obstructions.

There is no dispute in the evidence that the mail bag was thrown upon the platform, and lay between the door of the waiting room and the passenger car. There was no gas or electricity at this station, and the only means of lighting it was by lamps. There was a lamp, with a reflector, affixed to the exterior wall of the station, for the purpose of lighting the platform, which, at the time of the accident, was not burning. Two or three hanging lamps in the waiting room, one of which hung in a bay window, and a hand lamp in the ticket office, were lighted, and the lamps in the cars were burning. It is contended by the defendant that the light from these lamps, shining through the doors and windows of the depot opening upon the platform, with the lamps in the train, sufficiently lighted the platform to have enabled the plaintiff, by the exercise of due diligence, to have avoided the mail bag, and escaped injury. On the other hand, the plaintiff gave evidence that the platform was not sufficiently lighted to have enabled her, by the exercise of diligence, to have avoided the mail bag which lay in her path. On the trial much evidence was given on each side of this issue, and so much and of such a character that it became a question of fact for the jury, and its finding on this issue cannot be disturbed. When this action was first before this court, 60 St. Rep. 13, it was held, following Carpenter v. Railroad Co., 97 N. Y. 494; Muster v. Railroad Co., 61 Wis. 325, and Snow v. Railroad Co., 136 Mass. 552, that the defendant was liable for the injury, the plaintiff being free from negligence, in case the platform, on the occasion of the accident, was sufficiently lighted, and in case the defendant knew, or ought to have known, that the postal clerk was accustomed to throw mail bags on the platform at this station. The rule there laid down must be regarded by this court as the law of this case. On this trial the plaintiff called three witnesses who testified to the practice of the postal clerk. One swore that he had seen, mail bags thrown onto the platform from this train by the postal clerk more than 100 times within two years preceding the accident. Another witness testified:

“Prior to the 24th of October, 1891, the mail clerks generally throwed the mail bag right off on the platform south of the depot. It usually struck right close by the cars as they passed along. They used to sometimes kick it out with their foot. It would strike anywhere from ten to thirty feet south of the depot. That custom had continued ever since I kept the hotel,—since 1884,— from 1884 to 1892.”

This witness kept a hotel from 1884 tO' 1892 near this station, from which he could see the station and platform. Another witness testified that, within two years prior to the accident, he had seen mail bags lying on the platform about the time this train passed, on fifteen or twenty occasions. TJpon this issue the defendant called the agent at this station, who testified that sometimes the mail bag was kicked out of the mail car north of the bay window as the train passed, but that he did not remember ever having seen it thrown off south of the waiting-room door before the night of the accident. The conductor of the train testified that he never know of mail bags being thrown off south of the waiting room. A trainman who had been employed on the train for two years testified that he had never known of mail bags being thrown off south of the Availing room, and the person who carried the mail between the post office and the train testified that he had never seen mail bags thrown off south of the waiting room before the accident. That it had long been the custom for the postal clerk to throw bags from the car to some place on the platform is testified to by all of the witnesses. The only point of difference among them was as to the particular place on the platform where bags had usually been deposited. The point where the bags were thrown off was undoubtedly dependent upon the place where the train stopped. This evidence is quite sufficient to sustain the finding that the defendant knew or ought to have known of the practice of the postal clerk. The evidence was sufficient to authorize the jury to find that the plaintiff did not contribute to the accident by any negligence of her own in attempting to enter the car.

It is urged that the damages awarded are excessive. This case has been three .times tried. On the first trial, in January, 1892, the jury disagreed; on the second trial, in March, 1893, a verdict for $19,000 was rendered; and on the present trial, in May, 1895, a verdict was rendered for $9,083. The testimony in respect to the extent of the plaintiff’s injuries, and whether they are likely to be permanent, is voluminous. Physicians testified on both sides. The plaintiff has submitted to a physical examination by the defendant’s surgeons. The medical features in the case were gone over on the first and second trials, and every opportunity has-been had to develop the extent and character of the injuries complained of, and though the sum awarded seems large, yet we cannot say that it is so large as to-justify this court, under the circumstances, in setting aside the verdict on the ground that it is excessive.

The court, while instructing the jury, said:

“But, gentlemen, if she took cold going to Albany as the result of the injury which she received, and that was the necessary consequence of such injury, then the defendant is liable for that condition of things.”

To this the defendant excepted. Upon a careful examination of the case we fail to find any evidence that her illness was caused, in whole or in part, by talcing cold on the journey from North Brookfield to Saratoga. Indeed, we find no evidence that would justify the conclusion that she took cold on that trip. The plaintiff testified that, immediately after entering the car at North Brookfield she had a severe chill, and felt cold, and while at Albany she had a second chill. The night of the accident was chilly. The foregoing is the only evidence from which it was sought to have the jury infer that the plaintiff’s illness was caused by talcing cold. It is conceded that the plaintiff was injured, and the evidence is ample to justify the conclusion that the injuries were sufficient to produce the chills and subsequent symptoms. There being a known and efficient cause for the chills, subsequent fever, and rise in temuerature, the court was not required to instruct the jury that they might attribute these conditions to a cause not shown to have existed, which, if it existed, might ha produced many or all of the symptoms. The instruction excepted to was quite as favorable to the defendant on this branch of the case as it was entitled to.

The exceptions taken to the admission and exclusion of evidence are unimportant and require no discussion. The judgment and order should be affirmed, with costs.

Judgment and order affirmed, with costs.

All concur.


text:
    Emily Shank, Resp't, v. Glens Falls Insurance Company, App'lt.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    1. Insurance—Agent.
    The power of an agent to countersign and issue policies of insurance which have been previously signed by the president and secretary of an insurance company, is not broad enough to authorize him to bind the company by an executory, oral contract to insure property in the future.
    3. Same.
    A provision in the policy that “no officer, agent or other representative of the company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto,” excludes the idea that an agent may orally contract that a policy shall be continued in force beyond the period when by its terms it expires.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.
    William E. Hughitt, for pl’ff; Frank D. Wright, for def’t.
   FOLLETT, J.

January 25, 1895, this action was begun to recover the value of a dwelling house destroyed by fire, which, it is alleged, the defendant insured. April 2, 1869, Calvin Co-burn was appointed an agent for the defendant by a written instrument, of which the following is a copy:

“Glens Falls Insurance Company.

“Be it known that Calvin Coburn,: of Union Springs, in the county of Cayuga, and state of New York, is appointed, and by these presents duly constituted, agent of the Glens Falls Insurance Co., of Glens Falls, N. Y, with full power to receive proposals for insurance against loss and damage by fire in Union Springs and vicinity, and to fix rates of premium, to receive moneys, and to countersign, issue and consent to the transfer of policies of insurance, signed by the president and attested by the secretary of the Glens Falls Insurance Company, subject to such rules and regulations of said company, and to such instructions as may from time to time be given hv its officers. In witness whereof, the said Glens Falls Insurance Company have caused the same to be signed by their president and attested by their secretary in Glens Falls, in the state of New York, this second day of April, A. D. 1869.

“CL. S.) E. M. LITTLE, President.

“C. NEWTON LOCKE, Secretary.”

Under this appointment Coburn has continued to act as defendant’s agent.. He testified, “I never received any instructions or powers excepting in this paper” (referring to the commission). April 12, 1893, Cobum'countersigned a New York standard policy, which had previously been signed by defendant’s president and secretary, by which the defendant, in consideration of three dollars, insured from April 12, 1893, to April 12, 1894, against loss or damage by fire, the plaintiff’s frame dwelling house to- an amount not exceeding $400, and her frame bam to an amount not exceeding $100. The policy contains the following provisions which are pertinent to this litigation:

“In any mater relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company. This policy may, by a renewal, be continued under the original stipulations, in consideration of premium for the renewed term, provided that any increase of hazard must be made known to this company at the time of renewal, or this policy shall be void. * * * No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subect of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representa^ tive shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached thereto, nor shall any privilege or'permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached. In witness whereof, this company has executed and attested these presents this 12th day of April, 1893, but this policy shall not be valid until countersigned by the duly-authorized agent of the company at Union Springs.

“Union Springs, April 12, 1893.

“J. L. CUNNINGHAM, President.

“E. A. LITTLE, Secretary.

“A. Coburn, Agent.”

August 5,1894,—three months and twenty-three days after the expiration of the policy,—the dwelling was totally destroyed by fire. It is alleged in the complaint that about April 12, 1893, the plaintiff and defendant entered into an agreement in consideration of the payment of three dollars per year, by which the defendant undertook to insure the plaintiff by a policy of insurance -n the sum of $400 on her house and in the sum of $100 on her barn, from year to year, and at the same time promised and agreed to renew the policy without further application, and keep the same in full force until further notice. It is also alleged that thereafter the defendant duly issued and delivered to the plaintiff its policy No. 2,425, which purported to be a standard fire insurance policy of the state of New York, by which the defendant insured the plaintiff in the amount aforesaid from April 12,1893, to April 12, 1894, and that at the expiration of the policy she was ready and willing’ to renew the same, and that by force of the agreement the same was renewed, and was in full force at the time of the fire. The defendant admits that it issued the policy described, but denies that it agreed to' keep the same renewed from year to year, and alleges that due proofs of loss were not served, as provided by the policy. The defendant’s agent testified that April 11, 1893, the plaintiff called at his house, and applied for insurance on the property, and that he informed her that he would examine it, determine the amount for which it could be insured, and at what rate. He says that he immediately examined the property, and on the next day (April 12th) called on the plaintiff, told her the amount and rate, and advised her to take a policy for three years, as it would cost only about twice as much as a policy for one year, but that she declined a policy for three years, on the ground that she expected to sell the property. He testified that after this conversation, and on the same day, he issued the policy, reported it to the company, and on the next day (April 13th) delivered it to the plaintiff at her house. The plaintiff testified that she had two conversations with the agent; one before he inspected the property, and the other on the day when he delivered the policy. She does not fix the date of either interview, but 'says that the last, when the policy was delivered, occurred in the latter part of April or early in May, 1893. Her corroborating witness, who was present when the policy was delivered, says that the interview was in April or May. Upon her cross examination the plaintiff was uncertain as to the date of the delivery of the policy, and testified that only three or four days intervened between the two interviews described by her. It is not, however, important whether the interview occurred on the day after the date of the policy or several days thereafter. The plaintiff testified:

“He (defendant’s agent) came to our house that day, and he said, ‘I have been down and looked your property over, and I have brought over the policy;’ and he said that he would insure me; and I said to him, ‘I can’t take it only for one year, but I want it kept yearly,’ but I couldn’t pay only for one year at each time; and then hie said he would take — he said he rather I would take it for three years. I told him I couldn’t, on account that I didn’t have the means. * * * Then I repeated to him that I wanted him to keep it renewed, and he said he would. I repeated it two or three times. Them when he got ready to go away I repeated it again. He said he would, and then I told him I didn’t understand business very much, and I always left it to agents to see to it for me. He said‘Yes,3 he would see to it. Then I said to him I didn’t want it to run out as long as I held it, because I talked of selling it. I didn’t want it to run out, and if I should sell it I would notify him that I had sold it. * * * Then 1 asked him again, I said, ‘Now, I shan’t have to pay no attention to this,’ and he said ‘No;’ and I couldn’t think of any more, and I thought that ought to be enough. Then I said to him, ‘Then I won’t have to look after this at all?? * * * He said, ‘No;’ that was his business.”

A Mrs. Stout was present at this conversation, and corroborated the plaintiff’s version of what was said. This is the contract upoii which the plaintiff seeks to recover, and this is the only evidence of its existence. The defendant’s agent denied that he had any such conversation with the plaintiff, and swore that he never agreed ■ to' keep the policy renewed. The court instructed the jury:

“The only question which I shall submit for your consideration is, was there a contract made between the plaintiff and the agent of the insurance company at the time the policy was issued, as claimed by the plaintiff, which was, in substance, that the agent of the defendant would renew the insurance policy for two years longer, providing the plaintiff would take an insurance policy on her buildings for one year?”

No question in réspect to the value of the property, or in respect to the service or the waiver of the service of due proofs of loss, was submitted or requested to be submitted to the jury, but the court was requested by defendant to charge, as matter of law, that the plaintiff had not furnished proofs of loss as required by the policy, which was refused, and an exception taken. The issue of fact submitted to the jury was found for the plaintiff, and a verdict for $409 rendered.

Four questions are presented by te record:

(1) Had Cobum authority to bind-the defendant by his oral promise to keep the policy renewed?

(2) Is the evidence sufficient to sustain the finding that Cobum agreed that the defendant would keep the policy renewed?

(3) Is the oral contract void under the statute of frauds, or un~der the 121st section of the insurance law of this state (chapter 690, Laws 1892), which prescribes that a standard fire insurance' policy, the form of which is on file in the office of the secretary of state, shall be issued by insurers of property in this state, and further provides:

“No fire insurance corporation, its officers or agents, shall make, issue ordeliver for use, any fire insurance policy or the renewal of any such policy on property in this state, other than such as shall conform in all particulars as to blanks, size of type, context, provisions, agreements and conditions with such printed blank form of contract or policy filed in the office of the secretary of state; and no other or different provision, agreement, condition or clause shall be in any manner made a part of such contract or policy, or indorsed thereon or delivered therewith, except as follows, to wit.”

The exceptions which follow have no relation to the questions involved in this ease.

(4) Were the proofs of loss furnished sufficient?

A contract of insurance is one thing, arid a contract to insure is qu$e another thing. The former is executed and takes effect immediately, while the latter is executory; and the liabilities arising out of these contracts are not always the same. May, Ins. (3d Ed.) § 45; Thomas, Neg. 683; National Mahaiwe Bank v. Hand, 80 Hun, 584; 62 St. Rep. 384; Id., 89 Hun, 329; 69 St. Rep. 858. The extent of Coburn’s authority is defined by the power of attorney and by the policy, and the uncontradicted evidence is that he had no other or greater powers than those conferred by these instruments. He- had power to countersign and issue policies of insurance which had been previously signed by the president and secretary of the defendant, but the power is not broad enough to authorize him to bind the defendant by an executory, oral contract to insure property in the future. The policy provides:

“No officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such'as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be written upon or attached thereto; nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

By the express terms of the policy it expired April 12,1894, and the provision above quoted excludes the idea that an agent may orally contract that a policy shall be continued in force beyond the period when by its terms it expires. The terms of the policy do not provide that oral contracts to renew the policy “may be the subject of agreement,” and such a promise, had it been made by Cobum, and indorsed, would not bind the company unless ratified by it. There is no evidence in the case that Coburn had ever assumed to bind the defendant by an executory, oral contract to insure, or that he ever assumed to bind the defendant to keep policies renewed. So far as it appears, the policy in suit is the only one ever issued by the defendant to the plaintiff, and there is no evidence that Coburn ever issued to the plaintiff a policy in any other company. There was no attempt made to show a course of dealing between the defendant and its customers, or between it and its agents, which would authorize a jury to infer that Cohum’s power was broader than that expressed in the power of attorney and in the policy. The contract sought to be enforced is so unusual that it cannot be presumed to be within the power of an agent, acting under an express and limited authority, to make. tIf local agents of insurers possess such power, the companies can never know the extent of their liabilities. The history of insurance litigation presents no case in which such authority has been claimed under a power of attorney like the one in the case at bar. In Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 305; Id., 18 Barb. 69; 23 How. Prac. 448; Id., 28 N. Y. 153,—a contract to keep the policy renewed was made directly with the insurance company, through its president, and the power of the president was not the question on which the decision of the case turned. The plaintiff failed to show that Cobum had power to bind the defendant by the promise which the jury found that he made.

Again, the promise testified to is not, in form or substance, the promise of the defendant, but it is the individual promise of Co-burn; and the testimony is insufficient to sustain the finding that by it Coburn undertook to bind the defendant, or that the plaintiff understood that he assumed to bind it. The just and natural construction of the conversation—not an unusual one between those who insure and insurance agents—is that Coburn undertook for himself to see to it that the policy should be renewed at its expiration. His promise^ if made as testified to, was his promise, and not the promise of the defendant.

Without considering the third and fourth questions, we think, for the reasons above given, that the court erred in refusing to dismiss the plaintiff’s complaint, that the defendant’s exceptions should be sustained, and that a new trial should be granted, with costs to abide the event.

ADAMS and GREEN, JJ., concur. HARDIN, P. J., and WARD, J., concur in result.


text:
    Lillian B. Denton, App'lt, v. William Carroll, Resp't.
    (Supreme Court, Appellate Division, Fourth Department,
    Filed April, 1896.)
    1. Witness—Credibility.
    The jury are not authorized to disbelieve the ■ uncontradictory evidence of a party, or of an interested witness, simply because he is a party or is interested therein.
    2. Taxes—Sale.
    The possession which a boarder in a house or hotel has of the furniture in the room occupied by him does not authorize a collector to seize it for a tax assessed against him.
    3. Same—Excessive.
    When several chattels are seized under a tax warrant, and enough' has been sold to satisfy the tax, the sale of the remainder is a trespass and the officer becomes liable.

      Appeal from a judgment affirming a judgment rendered by a justice of the peace in favor -of defendant.
    Eugene M. Bartlett, for app’lt; G. S. Van Gorder, for resp’t.
   FOLLETT, J.

August 2,1894, this action was begun in a justice’s court, and upon the trial a verdict of no cause of action was rendered. It is alleged in the complaint that the plaintiff was the owner of an ingrain carpet, a rag carpet, and a washstand, which the defendant, July 23,1894, wrongfully took from the plaintiff’s possession, and sold July 30, 1894. The defendant, in his answer, denies all of the allegations in the complaint, and alleges that he was the collector of taxes in school district Ho. 4 in the town of Genesee Falls, and that he levied upon and sold the property described in the complaint by virtue of a tax warrant issued to him for the collection of a tax duly assessed against Olive Bigelow, who was the owner of or in the possession of such property.

It is conceded that the defendant was the collector of school district Ho. 4; that in April, 1894, he received a tax warrant commanding him to collect of Olive Bigelow a tax of $2.96; and that, by virtue of the warrant, he took, July 23, 1894, from the plaintiff’s house, against her protest, the articles described in the complaint, and July 30, 1894, sold them at public auction. He sold —First, the ingrain carpet, for $7; second, the rag carpet, for $1.50; and, third, the washstand, for 65 cents. The tax and the defendant’s fees amounted to $3.31. He was asked on the trial why he sold the rag carpet and washstand after having sold the ingrain carpet for more than sufficient to satisfy his claim. He answered: “I thought if a man advertised property .for sale he was obliged to sell it all.” After satisfying the tax and his fees, there was left in his hands $5.84, which he told the persons at the sale would be left with Mr. Beardslee, and it was so left with him for a time, but was afterwards withdrawn and deposited with the supervisor of the town of Genesee Falls.

The defendant attempted to justify his seizure and sale of the property on two grounds: (1) That Olive Bigelow was the owner of it; (2) that she was in the possesison of it, within the meaning of 1 Rev. St. p. 397, § 2, of which the following is a copy:

“Sec. 2. In case any person shall refuse or neglect to pay the tax imposed on him, the collector shall levy the same by distress and. sale of the goods and chattels of the person who ought to pay the same, or of any goods and chattels in his possession, wheresoever the same may be found, within the district of the collector; and no claim of property to be made thereto by any other person, shall be available to prevent a sale.”

It is conceded that the property seized and sold was part of the furniture of a house owned and occupied by the plaintiff and her husband, and was taken from rooms of which the plaintiff was in actual control when it was seized. The plaintiff testified that she owned the property, and that, though Mrs. Bigelow occupied a sleeping room in the house, and boarded in the family, the rooms from, which the furniture was taken had never, been used or controlled by Mrs. Bigelow. To overthrow this positive testimony, and to justify the seizure, the defendant testified that in May, 3894, he saw Mrs. Bigelow in the parlor. A former servant of the plaintiff, called by the defendant, testified: “Was employed there (in plaintiff’s house) as a domestic two and one-half years ago. Mrs. Bigelow occupied the north part of the house then.” This witness did not testify that Mrs. Bigelow ever occupied the parlor and bedroom from which the goods were taken, nor does she describe the rooms in the north part which were occupied by her. Another witness testified that he had “seen Mrs. Bigelow at the Denton house, in the rooms on the north side of the house;” but he does not specify the rooms, nor does he testify when and under what circumstances he saw her in rooms on the north side of the house. This evidence, given by these three witnesses, is absolutely the only testimony given in behalf of the defendant to establish the fact that Olive Bigelow was the owner of, or ever was in possession of, the goods taken and sold.

IJpon this evidence the jury found for the defendant, and it is now urged that the verdict should be sustained, on the ground that the only evidence of the plaintiff’s ownership and possession was given by her, and that the jury had the right to disbelieve it. Her testimony is not the only evidence of her title and possession, for every witness who was sworn in behalf of the defendant testified that these articles of furniture were in the plaintiff’s dwelling, and were there devoted to the uses for which they were designed. The defendant established the plaintiff’s actual possession, from which fact, uexplained, title may be inferred.

It has been often held that the credibility of the uncontradicted testimony of a party is a question for the jury. So is the credibility of every witness, interested or disinterested; but a jury is not at liberty to disregard the evidence of any witness who is in nowise impeached, and whose testimony is such that its truth is highly probable. Elwood v. Telegraph Co., 45 N. Y. 549; Cunningham v. Gans, 79 Hun, 434; 61 St. Rep. 249. In some of the cases it is said that a jury is at liberty to disregard the testimony of a party to 'the action, or the testimony of an interested witness. This rule, expressed in this' absolute form, is a survival of the theory of the common law, that persons interested, in the event of an action, whether parties or not, were so likely to commit perjury that they could not be sworn as witnesses. In 1848 persons interested in the result of actions, and in 1857 parties to actions, were by the Code of this state authorized to testify in such actions. The courts regarded this change with great disfavor, "and the rule that the undisputed evidence of a party to an action, or of a person interested therein, might he disbelieved by a jury, was often charged, and is declared in several reported cases without qualification, and without much regard to whether there were or were not facts or circumstances which tended to discredit the witness. But when time and' experience demonstrated the wisdom of the •change, which had been made in England some years earlier (6 & 7 Vict. c. 85; 14 & 15 id. 99), the rule began to be qualified, and the tendency of the later cases seems to be that a jury is not authorized to disbelieve the uncontradicted evidence of a party, or of an interested witness, simply because he is a party or is interested therein. The rule, as first laid down, has been stated in some recent decisions; but an examination of the cases shows that there was, in those cases, more than the mere fact that the witness was a party &r interested. There were facts and circumstances surrounding the cases which authorized the inference that the witness was or might be unreliable. The true rule is declared in Kelly v. Burroughs, 102 N. Y. 95; 6 N. E. 109, where it is held:

“The mere fact that the plaintiff, who testified to important particulars, was interested, was unimportant, in view of the fact that there was no conflict in the evidence, or anything or circumstance from which an inference against the fact testified to by him could be drawn. The cases cited by the appellate lack this element, while Lomer v. Meeker, 25 N. Y. 361, sustains the ruling of the trial court.”

In that case a verdict was directed for the plaintiff upon his uncorroborated evidence, though the defendant asked to have the testimony submitted to the jury. Every circumstance in this case tends, not to discredit, but to corroborate, the testimony of the plaintiff. She owned and was in possession of the dwelling. The articles seized wore a part of its furniture, and she had actual and undisputed possession of the rooms and of the articles which were taken, and, when taken, she was exercising dominion over them and over the rooms in which they were, and she then asserted her title and possession. It was shown that the tax debtor had been seen two or three times in the parlor, from the floor of which the ingrain carpet was taken, and she undoubtedly had been in that room many times; but this fact did not establish her title to or possession of that carpet. It was not shown that the tax debtor had ever used the rag carpet or the washstand, or that she had' ever seen them, though it may be that she had seen and used them many times. The circumstances shown were insufficient to establish title or possession in the tax debtor, or to authorize the jury to discredit the' plaintiff’s uncontradicted testimony that she was the owner and in possession of the property. The position that such possession as a boarder in a house or hotel has of the furniture in the room occupied by him authorizes a collector to seize it for a tax assessed against him cannot be suported. Railway Co. v. Roach, 80 N. Y. 339; Hersee v. Porter, 100 id. 403; Stockwell v. Veitch, 38 Barb. 650; 15 Abb. Prac. 412.

But, if it be assumed that the goods were liable to be taken for the taxes assessed against Olive Bigelow, on ‘the theory that she was in possession, the defendant is liable to this plaintiff for making an excessive sale. Under the evidence Of the defendant, the possession and title of the plaintiff were sufficient to authorize the plaintiff to maintain an action against a person converting the goods or any part of them. Collectors of school districts are commanded to enforce their warrants in the same manner that collector’s of town and county taxes enforce warrants issued by boards of supervisors (Laws 1894, c. 556, § 78); and, in case they levy and sell, they may charge five per cent, on the amount collected and traveling fees at the rate of ten cents per mile, to be computed from the schoolhouse in the district (Id. § 81). This chapter did not take effect until June 30, 1894 (after this warrant was issued, but before it was enforced). Llowever, the powers and fees of collectors were the same under the statutes in existence in April, May, and June, 1894. Laws 1864, c. 555, § 81; Id. § 84, as amended by section 1, c. 526, Laws 1890. Officers,-when proceeding under executions or tax warrants, are generally liable for excessive levies, and are always liable for excessive sales. When several chattels are seized, and enough have been sold to satisfy the demand, the sale of the'remainder is a trespass, and the officer becomes liable. Cone v. Forest, 126 Mass. 97; Cooley, Tax’n (2d Ed.) 496, 802; 2 Desty, Tax’n, 868; Burroughs, Tax’n, p. 260, § 106; Freem. Ex’ns, § 302. In the case cited the collector of,a school district tax levied upon nine cows, sold seven for a sum sufficient to satisfy the tax and all charges, and then sold the other two cows. It was held that he was guilty of converting the two cows last sold, and liable for their value. This rule is elementary, is as old as the Six Carpenters’ Case, 8 Coke, 146, and is suported by many, decisions cited in the text-books above cited. The defendant had no right, after selling the first article for more than twice enough to pay the tax and his charges, to sell the other articles.

The judgment of the county court and the judgment of the justice’s court should be reversed, with costs. All concur.

WARD, J., concurred in result, upon the last ground stated in the opinion.