author:
Learned, P. J.
      Math am, J.

text:
    Absalom W. Dieter, App’lt, v. Francis C. Fallon, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    1. Specific pebfobmancb.
    It is to some.extent discretionary whether the court will grant relief in a case of specific performance; this may depend upon whether the contract was certain in its terms or whether it was hard and unreasonable.
    2. Same—Exchange of heal estate—Teems.
    Where parties have been negotiating for a long time relative to an ex- ’ change of properties and have mutually examined them and their titles, the fact that an offer made by one of the parties is not complete in its terms, does not cover all points, and refers to previous conversations had between the parties, is not a'ground for refusal to enforce the contract, especially where it appears that all the details omitted are such as can be supplied by a consideration of the circumstances and the application of ordinary rules of law.
    3. Same—Offeb of pebfobmance.
    Where a contract did not state the time when the exchange of properties should take place, Held, that either party conld tender performance on reasonable notice, and thereupon require performance from the other party.
    4. Same—Omission of dollab mabk.
    The mere omission of the dollar mark from the sums stated in the contract as the amounts of the mortgages on the property cannot make its meaning doubtful.
    (Mayham, J., dissents.)
    Appeal from judgment of $633.40 costs in favor of defendant, entered upon the report of a referee dismissing the complaint.

      Chester B. McLaughlin, for app’lt; F. A. Rowe, for resp’t.
   Learned, P. J.

This is an action to compel the specific performance of a written agreement to exchange land. It was tried before a referee and the referee decided that the written contract was incomplete, inoperative and void; and ordered judgment for the defendant, with costs. The plaintiff appeals.

The right to a specific performance of a contract has always been held to a certain extent discretionary. Courts have refused to grant this relief w'hen a contract was not certain in its terms. Stanton v. Miller, 58 N. Y., 192. So also where the contract though not fraudulent was hard or unreasonable.

Sometimes they have refused this relief because they thought better justice could be done by a recovery of damages. Wilson v. Northampton & Banbury Junction Railway Company, L. R., 9 Ch. App., 279.

If the learned referee in this case had thought that the plaintiff ought not to have the relief of a specific performance for any of these reasons, but that he might bring an action at law to recover damages, then the plaintiff would not be quite remediless. But as the referee has decided that the contract is void this decision probably bars any other action upon the contract. And it, therefore, becomes very important to consider the facts carefully.

As early as July, 1888, the defendant had employed Messrs. Ward & Boswell of New York to procure a purchaser for property of the defendant at Au Sable Chasm.

They negotiated for that purpose with the plaintiff, beginning about August of that year.

The plaintiff had three pieces of property, viz., 2,074 Fifth avenue, New York, 705 Gates avenue, Brooklyn, and 26 Patchin avenue, Brooklyn. The defendant went and examined the pieces of property.

After negotiations had been pending for some time the defendant went to his brokers above named, and Ward, one of them, said to him: “ If you will make a proposition in writing just what you will do with him (the plaintiff) I will submit it to him, and if he accepts, all right.”

Therefore the defendant wrote the following and left it with them to be submitted to plaintiff for his acceptance.

New York, January 28, 1889.

Dear Sirs—I will exchange the “Lake View Hotel property,” meaning thereby in good faith, all without further detail of real and personal property now in use or existing, and so called heretofore when negotiating. For the Fifth avenue, Gates avenue and Patchen avenue properties, as heretofore spoken of, all proper ties to be mortgaged as spoken of, i. e., 25,000, 10,000, 12,000 respectively, for the N. Y. properties, and said hotel property to be given with $10,000, in all only upon it including what is now thereon or given to make up $30,000, by Mr. Dieter.

Yours, etc.,

Francis C. Fallon.

(I hereby accept. A. W. Dieter.)

P. S.—Of course it is included in above, that as to Chasm, all is as already supposed assented to, lease five years at $3,000 and ■500 additional yearly, etc.

Francis 0. Fallon.

(I hereby accept. A. W. Dieter.)

Defendant delivered this to Ward to present to plaintiff. Ward did so soon after and the plaintiff wrote, as above shown, in two places: “ I hereby accept. A. W. Dieter.”

Of such acceptance defendant was duly notified. This is the contract between the parties.

On the same day defendant wrote plaintiff a letter of the. same date, informing him that defendant had left with the brokers a statement of what he would do as to exchange. In this he said: “ I did not attempt to go into formal detail or form at all. As I meant it merely to be what in effect I already stated to you.” He proceeded to explain why he could • make no better terms. Defendant afterwards examined plaintiff’s title to the property above mentioned.

On the 2d of February, 1889, plaintiff wrote defendant that he understood that the time for delivering deed was March 1st, and that, if he did not hear from defendant to the contrary, he would be at defendant’s brokers that day at twelve o’clock, noon, ready to exchange deeds. Defendant had previously notified plaintiff that he would prepare the lease.

Plaintiff was at the brokers that day and hour ready to.perform. Defendant was not present. Subsequently plaintiff met defendant at the office of defendant’s attorney, and had his deeds ready to deliver, and tendered them to defendant.

The defendant had a deed of the Lake Yiew Hotel, and a bill of sale of the property, and a proposed lease of the Chasm property for five years. The lease required the plaintiff to spend $1,200 a year in advertising, and the defendant insisted that the plaintiff should buy certain views, etc., at a cost of $700. The plaintiff refused to accept such terms, and the defendant refused, and has ever since refused, to execute a deed of the hotel property, or a lease of the Chasm.

It is plain that a contract was made between the parties. The proposal of defendant was written after long negotiations, and at the request of his brokers, to show .just what he would do. It was intended for the plaintiff; was given to him by defendant’s agents, and the terms were accepted by him. There was no question as to what property was intended by each party.

On October previous the plaintiff had gone with defendant, and had examined the Lake Yiew Hotel and Chasm property; and the-defendant had examined plaintiff’s property on Fifth avenue, Gates avenue and Patchin avenue.

Bach knew the exact property as to which they were negotiating. And the referee finds that in the negotiations between them these several pieces of property were mentioned and referred to by the words used by defendant in his proposal of January 28th.

The defendant used the words by which the parties had in their conversations described the pieces of property; and that was sufficient. Coleman v. Manhattan Beach Improvement Company, 94 N. Y., 229.

But the learned referee held that in other respects the contract was so indefinite as to be inoperative. Now we must notice that the contract was drawn up by defendant;. Unless we suppose that he intended to commit a fraud, we must believe that he intended to make a proposition which was definite and could be understood and acted upon. Every reasonable construction in favor of the validity of the contract should be allowed to the plaintiff.

It is said in the contract that all the properties to be mortgaged “as spoken of:" If the writing had stopped there it might be uncertain. But it proceeds “i. e., 25,000, 10,000 and 12,000 respectively for the New York properties.” The defendant urges that it does not appear what 25,000 means ; whether pounds, dollars or cents. It does not seem necessary to discuss that point.

Oar currency is not in pounds or piasters. It is in dollars. The omission of the dollar mark (which appears in the subsequent part of the paper) cannot make the meaning doubtful.

The three lots belonging to plaintiff had just been mentioned, and defendant was to take them respectively burdened with mortgages to these amounts. The hotel property was to have an incumbrance of $10,000 on it. The expression “to make up $30,-000 by Mr. Dieter,” is only an explanation of the reason why the total property is’ to be taken with this incumbrance.

The objection that the contract does not express the terms of the mortgages in detail is not fatal to its validity. There were already mortgages on all these pieces of property, the amount of which is not quite certain from the case.

That part fixed the terms as to existing mortgages. And as the defendant, in drawing the paper, did not specify any details, he could not complain if any ordinary terms were inserted in the mortgages. In fact, when the plaintiff had executed his deeds and presented them to defendant and his counsel soon after the 1st of March, no objection to them was made.

It is further objected that a part of the contract (contained in the subjoined memorandum) referring to the Chasm property is indefinite. The defendant says it is not plain which of the parties is to be lessor. As defendant was owner he must be lessor.

The Chasm, as was well understood by the parties, -was an important matter in giving value to the hotel. The defendant had published a very elaborate account of the beauties and value of the new hotel and of its having a mónopoly of the Chasm business. He explained his reason for endeavoring to sell the hotel to “be that the sole owner is an elderly lady." The plaintiff, however, acquired title in May, 1888, before these negotiations. Then in this postscript to the proposal, he added: “ Of course it is included in the above that as to Chasm, all is as already supposed assented to, lease five years at $3,000, and 500 additional yearly, etc.

Now the reference to the fact that they had assented to the terms which he proceeds to set forth is harmless. The important part is that the Chasm is to be leased, the length of time and the rent.

The term was to commence when the lease and the other papers were to be delivered. As no time was specified, such delivery would be on reasonable demand. The rent was specified; $3,000 yearly, with an advance of $500 each year. The term was five years. The defendant cites Marshall v. Berridge, L. R., 19 Ch. D., 233, where it was Held that an executory agreement for a lease did not satisfy the statute of frauds unless it could be collected from it what day the term is to begin.

In the present case the principal part of the contract was the agreement to exchange property. As no time was mentioned when the exchange was to take place, it was for either party to-tender performance on reasonable notice, and thereupon to require performance from the other party. Altman v. Tillson, 10 N. Y. State Rep., 235; Tipton v. Feitner, 20 N. Y., at 425. Then the language as to the Chasm is: “ Of course it is included in the above that, etc.’’ ‘ That is to say, as a part of the contract for sale, it is agreed that the Chasm should be leased. Hence, the lease of the Chasm is, by necessary construction, to begin with the sale of the hotel property.

The whole arrangement was one transaction, which is apparent from all the negotiations, as well as from the defendant’s advertisement of his hotel above mentioned.

The inducement to purchase was the right for five years to the-possession of the Chasm. And it would be unreasonable to say that there was any doubt as to the time when the lease should begin. It is objected by defendant that the deeds tendered by plaintiff were subject not only to the mortgages but to the interest thereon. If that was wrong, objection should have been made.' The defendant refused to complete the contract and claimed that no contract had been made. It further appears that in January, 1889, the plaintiff applied to defendant’s attorney for consent that he might lease the Fifth avenue property; and that consent was refused; that consequently it was not rented and still remains (at the time of the trial) unrented.

The defendant gave no evidence in the case. We are, therefore, unable to say whether on a second trial it would appear that there should be a judgment for specific performance or whether the plaintiff should be allowed only to recover damages.

That is a question which we do not decide.

The defendant in his verified answer states that on the 2d day of February, 1889, he leased the Chasm for nearly three years to William H. Macey, who is called manager, for the Au Sable Chasm Company. This was before the time when the plaintiff' met him in the office of his attorneys in New York, and when defendant offered him a lease of the Chasm with the condition that, he should spend. $1,200 a year in advertising.

Whether this allegation of the answer is true did not appear on the trial. Whether if true it would prevent a specific performance, or whether specific performance should be granted of a part of the contract, with compensation for that which defendant cannot perform, are questions not before us.

We are of the opinion that the contract was not incomplete, inoperative and void.

Judgment reversed, new trial granted, referee discharged, costs, .to abide the event,

Lardón, J., concurs.

Math am, J.

(dissenting).—The plaintiff prosecutes this action to compel the specific performance by the defendant of the alleged contract between the plaintiff and defendant for the exchange of a farm and hotel property called the “ Lake View Hotel ” including the personal property used in carrying on the hotel with conveyances and transfer of the same and also a leasing for five years of premises known as the “Au Sable Chasm property,” all in Essex county, by the defendant for two lots in the city of Brooklyn,, one known as No. 715 Gates avenue and one as No. 26 Patchin avenue, also one lot in the city of New York known as No. 2,074 Fifth avenue by the plaintiff.

The evidence relied upon to prove the contract sought to be enforced is these words:

New York, January 28, 1889.

Dear Sirs.—I will exchange the “Lake View Hotel property,” meaning thereby in good faith, all without further detail of real and personal property now in use or existing, and so called heretofore when negotiating. For the Fifth avenue, Gates avenue and Patchin avenue properties, as heretofore spoken of, all properties to be mortgaged as spoken of, i. e. 25,000, 10,000 and 12,-000 respectively for the N. Y. properties, and said hotel property to be given with $10,000, in all only upon it including what is now thereon or given to make up $30,000, by Mr. Dieter.

Yours, Francis C. Fallon.

“I hereby accept A. W. Dieter.”

P. S. Of course it is included in the above, that as to Chasm, all is as already supposed assented to; lease five years at $3,000 and. 500 additional yearly, etc. Yours,

Francis C. Fallon.

“ I hereby accept. A. W. Dieter.”

This proposition was written by the defendant and signed by him at the office of and left with one Ward, who was acting as> broker, who communicated to plaintiff the fact that such proposition was at his office, and the plaintiff thereafter signed the acceptance.

On the trial the referee admitted certain paroi evidence tending to prove the identity of the property referred to in the above correspondence, and finds that aided by such evidence the ambiguity appearing in the writing as to identity of the land is explained, and that the land and premises described in the complaint are the same to which reference is made in the correspondence or written proposition and acceptance, and that the written proposition and written acceptance thereof constitutes the only written agreement between the parties in reference to this land.

The referee also finds that such written contract is per se indefinite, vague and incomplete as to essential particulars; that the meaning and intent of the parties cannot be spelled out or inferred from its terms with reasonable certainty.

That the references therein are to oral conferences and conversations, not' disclosed in the writing, but essential to full understanding of the agreement between the parties, and no reference is made in the writing to any other writing or paper furnishing any light as to the meaning'and intent of the parties.

And the referee finds that no written contract, such as is alleged in the complaint for the exchange and leasing of property, is proved.

That the written contract proved is incomplete, inoperative and void and no action for a specific performance of the same can'be maintained, and consequently dismissed the plaintiff’s complaint. Upon these writings alone it is quite apparent that no decree for a specific performance could be predicated.

The writings leave too much for conjecture. The ellipsis would have to be supplied either by paroi extrinsic evidence or filled up by judicial speculation, neither of which could be indulged in with safety to, the parties.

The appellant insists that the omissions in the writing may be or are supplied by the correspondence, the maps and the oral proofs offered on the trial. If the intention of the parties had been fully expressed; in other words, if the writings had not omitted to specify the terms of the agreement arid that omission was not apparent upon the face of the papers themselves, the offer in writing and its acceptance in writing would be a good execution of a contract relating to real estate within the statute of frauds.

If it was not apparent on the face of the writings that there were rights of the parties connected with the transaction and essential to the carrying out of the intention of the parties not expressed in the paper, the expression of consideration, the signing of the offer by one party and the signing of the acceptance by the other, would be a good execution of the agreement.

But the difficulty does not- arise out of a failure to comply with the provisions of the statute of frauds, but rather out. of the fact that the court is required to decree a specific performance of an agreement where it is impossible, from an inspection of the agreement, to determine in what a performance consists:

It is a general and elementary rule that the court will not decree a specific performance of a contract unless its provisions are free from reasonable doubt. Parsons, in his treatise on contracts, lays down the general rule.

“ The contract, of which performance is sought, must be clearly proved, and its terms should be so specific and distinct as to leave no reasonable doubt of the meaning.” Parsons on Contracts, 7th ed., page 354, § 354.

In Pray v. Clark, 113 Mass., 283, it was held that the agreement in a lease to renew it at its expiration, the rent tobe proportionate to the value of the premises at that time, but with no provisions for determining that valuation, is too vague to be enforced in equity.

The uncertainty in this case does not arise out of doubt as to the identity of the land, for if it did, the parties could clear up any ambiguity upon that subject by paroi testimony. Waring v. Ayres, 40 N. Y., 357, and cases there cited.

But the doubt in this case grows out of the uncertainty arising out of the incumbrances which are referred to in the contract, as follows: “All properties to be mortgaged as spoken of, i. e., 25,000, 10,000 and 12,000, respectively, for the New York properties.”

It will be observed that this writing speaks of these amounts respectively for the New York properties, but the writing does not describe them as in New York but if it may be ascertained by-paroi, which of the lots is to be incumbered by 25,000, and which by 10,000 and 12,000, and yet a decree foi specific performance would require the court to go- outside of the contract to answer that important question.

Again, on what property is the $10,000 designated as hotel property ?

The writing proposes to exchange “ all the real and personal property now existing and so called heretofore when negotiating.” Can the court by a decree give effect to that provision and determine how much of that $10,000 shall be charged against the personal, and how much against the realty ?

But the plaintiff insists that the parties knew when they made and accepted this offer what their previous negotiations were, and in the light of that knowledge there was no uncertainty to them, and that taking the paroi testimony, the letters, maps and exhibits, the meaning and intent of the parties may be ascertained and the apparent uncertainty of the contract removed.

But this action was brought, as appears by the complaint, to enforce a specific performance of a written contract

It cannot be aided by reading with it maps, or other contemporaneous writings, as no reference is made to them in the instrument and they therefore constitute no part of the contract. In Wright v. Weeks, 25 N. Y., 160, the court says: “If the agreement be vague and indefinite, so that the full intention of the parties cannot be collected from it, it cannot be said that the contract is in writing and it is therefore void.

. “ If the parties have used abbreviations or technical terms, or terms of trade, evidence may be given by paroi to show what meaning such terms and abbreviations acquired by usage and custom ; but not in what sense the parties used them (citing authority

n agreement need not be perfect in itself. It may be made certain and definite and thus valid under the statute by reference to another writing as well as by incorporating the entire contract in one paper.

“But reference must be made to another paper, and so distinct as to make that paper a part of the contract itself.

“ The parties cannot unite two papers so as to make them unitedly constitute a valid contract, unless they are physically joined or the intention to unite them appears on the face of the papers.”

Nor can the parties import into this writing contemporaneous or previous paroi negotiations or agreements, for the purpose of making the writing complete as a contract, except, as we have seen, to explain patent ambiguities apparent on the face of the paper. To do so would be to avoid the statute of frauds not only, but another equally well settled principle of law, that all such previous •or contemporaneous negotiations are deemed merged in the writings.

There are other questions raised on this appeal, but we see no error committed by the referee that can affect this judgment. Without determining whether the plaintiff may or may not have relief in' some other form of action, we think this contract too vague, uncertain and indefinite to be capable of having a specific performance decreed in equity.

The judgment is affirmed, with costs.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Isaac Goldsmith, Resp’t, v. Valentine E. N. Cook, App’lt.

      (City Court of New York,

      General Term,

      Filed December 24, 1890.)

    Brokers—Commissions—Evidence.
    In an action by a broker to recover for services in procuring a purchaser at the price named, the fact that defendant employed and paid another broker who effected a sale to a different person is not a defense, and evidence respecting it is incompetent.
    Appeal from judgment entered on verdict in favor of plaintiff.

      Smith Tuttle, for app’lt; J. G. Mitchell, for resp’t
   Per Curiam.

The plaintiff swears that the defendant employed him as a broker to sell the realty in question for $13,000; that he procured Marks Rinaldo as a purchaser at that price, and that the defendant refused to sell unless Rinaldo paid $250 more for the property, which Rinaldo refused to do. The defendant denied the employment, and claims that on the same day he sold the property to Annie E. Crooker for $13,150. See contract at fol. 66. The evidence was conflicting and the case had to go to the jury. The fact that the defendant employed and paid another broker, who effected a sale to another person, was not a defense, and the evidence respecting it was incompetent and therefore properly excluded. Jarvis v. Schaefer, 105 N. Y., 289; 7 N. Y. State Rep., 502. It is settled that when one of the contracting parties either prevents or waives .the literal performance of a condition precedent, which the other is ready and offers to fulfill, he cannot avail himself of such non-performance to relieve him from his own obligation. Moses v. Bierling, 31 N. Y., 463 ; Risley v. Smith, 64 id., 576 ; Home Bank v. Drumgoole, 109 id., 63; 14 N. Y. State Rep., 40. The evidence sufficiently sustains the verdict, and we find no error requiring a new trial. Judgment affirmed, with costs.

Mo Ad AM, Ch. J., and Yan Wyck, J., concur.


text:
    Henry B. Broyer, Resp’t, v. Jacob Ritter, App’lt.

      (City Court of New York,

      General Term,

      Filed December 24, 1890.)

    Brokers—-Verdict—Error i-n amount op.
    In an action to recover broker’s commissions an order to interplead a rival broker was granted with twenty dollars costs to the defendant, which were paid from the fund The court charged, without objection, that the successful party was entitled to a verdict for the amount of the fund, his attention not having been called to the fact that the twenty dollars had been paid therefrom. Held, that no error was committed, but that to prevent injustice the judgment would be modified by deducting twenty dollars therefrom.
    Appeal from judgment entered on verdict in favor of plaintiff.

      J. G. Bitter and I). E. Anthony, for app’lt; Babe & Keller, for resp’t
   Per Curiam.

Theaction assumed the form of an interpleader suit between rival brokers to determine which of them earned the brokerage on the sale of certain real property on the corner of Tenth avenue and Ninety-eighth street, in the city of New York. The jury found that the plaintiff was the procuring cause of the sale and gave him a verdict. The evidence, though not strong, was sufficient to warrant the jury in finding as they did. The conflicting proofs required the trial judge to submit the cause to the jury. Neither side asked him to direct a verdict. No error was committed at the trial. The attention of the trial judge was not called to the fact that twenty dollars costs were allowed to the defendant in the original suit on his application for the order of interpleader, and that this sum was deducted from the fund on deposit and in dispute. Indeed the trial judge was permitted to charge the jury, without objection, that the party succeeding (whether plaintiff or defendant) was entitled to a verdict in his favor for §330 with interest. The defendant got the benefit of this charge, and if he had succeeded would have recovered a verdict for §330. It is too late now to raise this question for the first time upon appeal. The error might and no doubt would have been corrected in the court below if the attention of the trial judge had been called to it. Corn. Exch. Bk. v. Blye, 7 N. Y. Supp., 434; 27 N. Y. State Rep., 297, and cases cited. The appellate court is to review such errors of the trial judge as are excepted to in the court below and the court was not put in error in regard to the twenty dollars complained of here. To prevent any possible injustice, however, the judgment will be modified by deducting the twenty dollars aforesaid, and, as modified, affirmed, with costs. See Belgard v. McLaughlin, 9 N. Y. State Rep., 40.

McAdam, Gh. J., Ehrlich and Van Wtck, JJ., concur.


text:
    John W. Hallenbeck et al., Resp’ts, v. Gerhard Coenen et al., App’lts.

      (City Court of New York,

      General Term,

      Filed December 24, 1890.)

    Attachment—Affidavit for—Intent to transfer property.
    The mere fact that one of the defendants said that defendants thought they would have to turn over their business, that creditors might be left and that they would have to protect themselves, does not prove that they intended to transfer their property to cheat and defraud creditors.
    Appeal from order denying motion to vacate attachment.

      L. Baser, for app’lts; J. M. Me Gee, for resp’ts.
   Per Curiam.

The attachment is founded on subd. 5 of § 3169 of the Code, which permits of that remedy “where the defendant has removed, or is about to remove, property from that city (New York) with intent to defraud his creditors, or that he has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property with like intent.” The affidavit shows that one of the defendants (which does not appear) said the defendants could not pay anything,'that they thoitght they would have to turn over their business to a friend down town and all creditors would get .left; that one Freece who had obtained judgment would get-nothing; that when they were sued it ruined their credit, and npw they would have to protect themselves. The proofs are insufficient. The fact that one of the defendants said the defendants thought they would have to turn over their business, that creditors might be left, and that they would have to protect themselves, does not prove that the defendants intended to transfer their property to cheat and defraud creditors. Skiff v. Stewart, 39 How. Pr., 385. It miay lead to the inference that the defendants intended something wrong, but this does not affirmatively prove fraud, which must be proved and cannot be presumed. See Stringfield v. Fields, 13 Daly, 171. It does not appear what the defendants’ property consisted of, nor what it was worth, nor that anything was done to the injury of the plain tiffs.

It follows that the order appealed from must be reversed, with costs to abide the event of the action.

McAdam, Oh. J., Ehrlich and Van Wyck, JJ., concur.


text:
    Carl Gutman, App’lt, v. Henry Rogers, Resp’t.

      (City Court of New York,

      General Term,

      Filed December 26, 1890.)

    Consignor and consignee—Right oe consignor to insurance moneys ON PROPERTY DESTROYED.
    Plaintiff consigned to defendant certain property for sale, -which, with property of other consignors was destroyed by fire and a sum was paid by isnurers to defendant on account of the total loss ; no particular sum being paid on account of the loss of plaintiff’s property. _ Held, that the court could notin this action determine plaintiff’s Interest in the moneys so-paid and that the complaint was properly dismissed.
    Appeal from judgment entered on dismissal of complaint by the trial judge.

      Kaufmann & Saunders, for app’lt; J. H. V. Arnold, for resp’t.
   Per Curiam.

The fire destroyed property to the amount of $151,950.29, all of which, excepting $2,500 worth, belonged to the defendant. The total amount of insurance money received was $61,750, or about forty per cent of the total loss. Besides the plaintiff and defendant, there were nine other parties whose property was also destroyed by said fire. As their goods, like those of the plaintiff, were onAonsignment with the defendant, these individuals were interested in the moneys received from the companies. No particular sum was paid by the companies on account-of the loss of any particular property, nor on account of the loss of any particular person or persons, but the $61,250 was paid on account of the total loss of all the property of the eleven different parties, irrespective of its nature or ownership. The trial court could not, under the circumstances, determine from the evidence the extent of the plaintiff’s interest in and to the insurance moneys received by the defendant, nor could it determine the several equities of the nine other parties not before the court. Neither could be determined without the other. The result could be more appropriately reached by a suit in equity with the proper parties, wherein their several equities might be fixed and determined. Under the conditions stated, we find no error in dismissing the complaint. This left the plaintiff free to seek a more appropriate remedy than the one he invoked. It follows that the judgment appealed from must be affirmed, with costs.

McAdam, Ch. J., and Van Wyck, J., concur.


author: McAdam, Oh. J.

text:
    The Pelham Hod Elevating Company, App’lt, v. Joshua Baggaley, Resp’t.

      (City Court of New York,

      General Term,

      Filed December 26, 1890.)

    Replevin—Interpleader not proper where property not reclaimed.
    In an action of replevin the property was taken by the sheriff and not reclaimed by defendant. Thereafter, - on motion of defendant, an order was granted substituting one K. as defendant on the ground that he claimed title to the property, and directing its delivery to him to hold subject to the order of the court. Held, error: that defendant was not entitled to the order because he could not tender into - court the property claimed; that plaintiff became entitled to possession, and the court could make no different direction concerning it.
    The action, in form for replevin, was begun October 27,1890, to recover an engine and boiler valued at $400, and $100 damages for the detention thereof. The property was taken into the custody of the sheriff on that day. The defendant failed to counter bond, and no claim was made to the property by any third person in the manner prescribed by the Code. § 1709. On November 13, 1890, the defendant applied for an order substituting one Frank W. Keys, receiver, etc., as defendant, in place of the defendant, on the ground that Keys claimed title to the property. The application was granted, and the defendant was directed to deliver the property to Mr. Keys, the receiver, who was to hold it subject to the further order and direction of the court From this order the plaintiff appeals.

      J. M Bustis, for app’lt; Smith, Bowman & Close, for def’t; Levein, <6 Johnson, for Keys.
   McAdam, Oh. J.

—The Code has provided a special procedure by which a defendant against whom replevin is instituted may retain the property claimed, § 1704, and by which a third person, not a party, may obtain possession of the same under claim of title. Sec. 1709. Neither of these methods were resorted to in the present instance, and the plaintiff became entitled to receive and hold possession of the property until the final determination of the action. The defendant was not entitled to an order of interpleader under § 820 of the Code, because he did not tender into court the property claimed. Indeed, he had lost the right of possession, and could not deliver the property.- The plaintiff became entitled to possession under the provisions of the Code, and the court could make no different direction concerning it. This view is in accord with the authorities. Edgerton v. Ross, 6 Abb. Pr., 189 ; Vosburg v. Huntington, 15 id., 254; Lynch v. St. John, 56 How. Pr., 144. Section 820 of the Code must be construed in harmony with the other sections cited, so that all may have effect, without infringing'upon or impairing the purpose of either.

It follows that the order appealed from must be reversed, with, costs.

Ehrlich and Yan Wtck, JJ., concur.


author: Per Curiam. Fitzsimons, J.

text:
    Eugene Higgins et al., App’lts, v. William C. Dewey, Resp’t.

      (City Court of New York,

      General Term,

      Filed December 27, 1890.)

    Arrest—Exemption from—Person inveigled into the state.
    Defendant, an officer of a corporation in Massachusetts, wrote plaintiffs, that a meeting of creditors would be held about the 26th inst. Plaintiffs wrote saying they would like to see him before he went to the meeting. On the 30th defendant came to Mew York and while here was arrested on an order procured by them. Held, that defendant was brought into this. state by the letter written by plaintiffs and while here was exempt from, arrest at their instance.
    (Fitzsimons, J., dissents.)
    Appeal from order setting aside the' order of arrest and the service thereof, on the ground of fraud in the service, to wit, in. inveigling the defendant within the jurisdiction of the court.

      Gruber, Bard & Landon, for app’lts ; F. A. Burnham, for resp’t.
   Per Curiam.

To inveigle is to persuade to something bad or hurtful by deceptive arts or flattery, to wheedle, to allure, to entice, to seduce (Webster’s Die.) In a legal sense (as applicable to this case), it is to induce a party to come within the jurisdiction of the court by some scheme, subterfuge, fraud, trick, device or misrepresentation, that he may be served with process. Baker v. Wales, 14 Abb., N.S., 331; Carpenter v. Spooner, 2 Code Rep., 140; affid., 2 Sandf., 717; 3 Code Rep., 23; Metcalf v. Clark,, 41 Barb., 45. The defendant wrote to the plaintiffs from Palmer, Mass, Sept 17, 1890, that the creditors of a corporation, in which all the parties were interested, would be called together on Friday of the following week.

The plaintiffs, under date of September 22, replied that Mr. Wood, one of the plaintiffs, would like to see him (the defendant) before he went to the meeting. It does not clearly appear where the meeting was to be held, but it was presumably to be held at Palmer, Mass., where the corporation did business. The defendant came to New York, September 30, 1890, in answer to the plaintiffs’ letter, and was thereafter and on the-same day arrested on the order-granted herein. The summons is dated September 16, and the papers sworn to September 17, but the order to arrest was not granted until September 30. The plaintiffs swear that, although they contemplated arresting the defendant, they abandoned the intention until after they had conversed with him on September 30, and that his statements were so unsatisfactory that they instructed their attorney to proceed with the arrest, and proceedings were thereupon institued.

Where a defendant enters this state voluntarily, he comes at his own risk, and creditors may avail themselves of legal remedies against him. Atlantic, etc., Tel. Co. v. B. & 0. R. R. Co., 46 N. Y., Superior Ct., 377 ; S. C., on appeal, 87 N. Y., 355 ; Browning v. Abrams, 51 How., 172, limiting Adriance v. Lagrave, 59 N. Y., 110, and Lagrave’s Case, 14 Abb., N. S., 333n. We feel constrained to hold, however, that the letter written by the plaintiffs brought the defendant on to Hew York, and that while here, under their letter, he was exempt from arrest at their instance. The order appealed from goes too far. It sets aside the order of arrest as well as the service. In this' respect the order is erroneous. Metcalf v. Clark, 41 Barb., 45. In so far as it vacates the order of arrest, the order appealed from will be reversed, and in so far as it sets aside the service thereof (the irregularity charged), it will be affirmed, without costs to either party.

MoAdam, Oh. J., and Van Wyck, J., concur.

Fitzsimons, J.

(dissenting)—This is an appeal from an order made vacating an order of arrest against the defendant, and the service made thereunder, upon the ground that the defendant, who it appears is a resident of Massachusetts, was enticed by plaintiffs within the jurisdiction of this court for the purpose of serving upon him said process.

The application for the vacation of said order or arrest and ser- ■ vice thereof is based upon technical grounds and reasons, and ■ should not be encouraged or supported unless the defendant demonstrates that he was enticed by plaintiffs within the jurisdiction of this court for the purpose of having said process served.

If from the affidavits submitted it is possible for the court to conclude that the presence of the defendant in this city at the time of such service was voluntary, then it seems to me that it is our duty to so determine.

The law of this case is plain and undisputed. Before the defendant can succeed he must prove that by subterfuge, scheme, enterprise, pretense or design, he was brought within the jurisdiction of this court by plaintiffs for the purpose of serving process upon him ; if he fails to prove this then he cannot succeed.

I have carefully examined the facts presented by the papers submitted, and it seems that all the facts and circumstances show that the defendant came to this city voluntarily, and for the purpose of transacting his business, and not, as he would have us believe, that he came here at the invitation of plaintiffs, and solely for the purpose of seeing them, and then immediately to return to his home in Massachusetts.

The facts developed upon the argument of this appeal and by the papers are about as follows: The defendant at and prior to his arrest was the president of the Palmer Carpet Co. of Palmer, Mass. This company at that time had some trouble with its creditors, nearly all of whom conducted business in this city, the plaintiffs being one of them. On September 17, 1890, the defendant wrote plaintiffs a letter, as follows:

“Gentlemen—There have been so many delays that it has been impossible to decide what to do. I think, however, that the creditors will be called together next week about Friday.”

The Friday mentioned is September 26th. In response to said letter, the plaintiffs wrote to defendant on September 22, 1890, a letter as follows:

11 Your favor of the 17th inst. came duly to hand, and in reply would say our Mr. Wood would like you to call and see him at this office, if you can possibly do so, before the meeting.”

And this is the letter that induced defendant, as he says, to come to this city on September 30th, visit plaintiffs at their office, where, after a conversation, he was arrested by the sheriff.

The defendant’s letter to plaintiffs fixes the probable meeting of creditors of the defendant’s company for some time during the next week, which would end on Saturday, September 27th, and a reasonable construction of that letter would be that, he having mentioned Friday as about the day of the meeting, he meant on or before that day; therefore, if plaintiffs’ letter, written as a response to this letter, is to be construed by this court as an invitation coming from plaintiffs to defendant to visit this city, then it seems to me that the last day that said invitation included was Friday, September 26th, and then it ceased, and if defendant visited this city subsequent to that day, as he did, for he was arrested here on September 30th, I 'think it is only fair and reasonable to assume that he came here of his own free will and for business purposes, and his actions bear out this assumption ’ for although he swears -that he came here.in response to plaintiffs; letter, and solely for the purpose of seeing them, yet on that very day, and before his arrest, he called at the office of Patrick Dougherty, another creditor of defendant’s company, and said he wanted to see said Dougherty (who was then absent) in reference to business, and waited for one-half hour for that purpose.

This visit to Dougherty’s office, as well as plaintiffs’, ■ I think, clearly indicates that defendant was here on September 30th for the purpose of visiting the creditors of his company in this city, for the purpose, perhaps, of arranging some settlement of their claims, and this purpose was probably set aside by his arrest Although defendant’s company was a Massachusetts corporation, yet its creditors, as admitted on the argument, were principally in, this city, and as defendant’s letter shows he contemplated calling them together, there is nothing to show that defendant intended that such meeting would be held in Palmer, Mass., and therefore it is reasonable to assume that such meeting being for the benefit of defendant’s company, and he on behalf of his company would have such meeting held 'at a place most suitable and convenient for them, which place would certainly be somewhere in this city, (and plaintiffs, upon receipt of def-rdant’s letter, acting upon this theory, invited him to call at their office before such meeting was held). Every person of ordinary common business experience knows that this is the course ordinarily pursued by business men or corporations in straitened circumstances financially; however, it appears (by admission made upon the argument of this appeal) that the defendant abandoned the idea of holding a meeting of his creditors here or in Massachusetts, or in any other place, on or before or since Friday, September 26th, and the next time he is heard from is on September 30th, when he visited Dougherty's and plaintiffs’ office to discuss his business matters and was arrested

I believe that all the facts and circumstances of and surrounding this case show that the defendant came here voluntarily and for the purpose of settling the financial difficulties of his company, and that the letter written by plaintiffs did not influence his coming, and that his contention that he was enticed here by plaintiffs can be sustained only by straining the facts and circumstances of this case, which I believe is not the policy or purpose of the law; every presumption of both law and fact is at all times in favor of sustaining the "legality of a process and its service, and such presumptions should surely be indulged in, in cases of this character.

For these reasons I am of the opinion that the order vacating the order of arrest and the service thereof, should be reversed, with costs.

Order reversed as far as it vacates the order of arrest and in so far as it sets aside the service affirmed, without costs.


author: Ehrlich, J.

text:
    Sophie Robinson, Pl’ff, v. George H. Cornish, Def’t.

      (City Court of New York,

      Trial Term,

      Filed December, 1890.)

    Carrier—Expressman—Liability fob goods entrusted to him.
    A person who makes it a business to solicit from the public the carriage of trunks and packages for hire is a common carrier, and is bound to use ordinary diligence in the custody of goods entrusted to him. When the goods have been stolen from him, he is bound to show that he used the utmost care that a prudent man would use to protect his property from such casualties, and, in the absence of such proof, is liable for the value of the goods.
    The parties have by stipulation submitted this cause upon the following agreed state of facts:
    1. That for several years past, the defendant has earned on the business of a city expressman, with a place of business at 168 East Sixty-eighth street, in the city of New York, and that as such expressman he was licensed by* a permit or license from the mayor of the city of New York in the usual form issued to city express-men ; which license or permit may be produced upon the trial and offered in evidence
    2. That on the 11th day of June, 1889, the plaintiff called at defendant’s said place and requested him to carry a parcel for her from 111 East Sixty-ninth street to 65 West Ninety-seventh street, in said city.
    3. That the defendant’s express wagon, in charge of and driven by David Thomas, called at 111 East Sixty-ninth street and took said package from the hands of Minnie Collins, who had been entrusted with it by plaintiff to deliver to the defendant.
    4. That the said wagon was driven by said David Thomas, and taken care of by Mm, and that the said package was stolen from the defendant’s wagon at some time or place after the receipt of the same, and before any offer of delivery of it to 65 West Ninety-seventh street. . That it was not stolen by the said driver, nor with the knowledge or connivance of the said driver or the defendant.
    5. That the value of the articles in the package was one hundred and eighty four ($184) dollars.

      James J. Thomson, for pl'ff; Fromme Brothers, for def't.
   Ehrlich, J.

A person who makes it a business to solicit from the public the carriage of trunks and packages from place to place for hire-is to all intents and purposes a common carriel’. The test seems to be whether he holds out, either expressly or by a course of conduct, that he will carry, for hire, the goods of all persons indifferently who send them to him. See 4 Lawson’s Eights and Eem., § .1789: The definition given fits the defendant’s occupation.

The defendant received a license from the mayor “to set up and keep two public express wagons * * * to be used and employed in the conveyance and transportation of goods, wares and other things, from place to place in said city, for hire, wages or pay for such transportation, he conforming to and obeying in all things the ordinances of the common council.” One of these ordinances provides that the licensee shall be responsible for all articles intrusted to the driver of the wagon. See Eev. Ord. of 1881, p. 251, § 383. In Richards v. Westcott, 2 Bosw., 589, it was held that a city express company, engaged in carrying parcels between the city of New York and Brooklyn, and in carrying trunks of travelers to and from the passenger depots of the various railroads, are common carriers, and perform their duties under the responsibilities of common carriers.

A similar ruling was made by thesupreme court of Illinois. Parmelee v. Lowitz, 74 Ill., 116. The courts of New York have, in several cases, held that joint stock companies engaged in the express business were common carriers. See Russell v. Livingston, 19 Barb., 346; Sherman v. Wells, 28 id., 403; Sweet v. Barney, 23 N. Y., 335 ; Lawson on Carriers, § 1. As the character rather than the magnitude of the business is the test of the liability, it is difficult to discover any distinction between the cases cited and the one at bar. The loss complained of not having been caused by the act of Grod, or the public enemies, the defendant, as a common carrier, is bound to make reparation.

Even a private carrier is bound to use ordinary diligence, and is liable if he does not. Open theft by superior force is excusable, but secret purloining shifts the burden of proof, and compels the carrier to show that' he used the utmost care which a prudent man would use to protect his property from such casualities. Browne on Carriers, Ed. of 1873, pp. 30, 31. The defendant gives no information whatever concerning the loss, and I am unable to learn when, where or how it occurred. In short, the defendant seems to be in a blissful ignorance concerning these important elements, and his driver has given no satisfactory account of the disappearance of the property. Aside from liability as a common carrier, the defendant, even as a private carrier or as a bailee for hire, would be liable on the facts, on the theory of negligence. Upon the facts, the plaintiff is entitled to the value of the property, with interest thereon from the time of the loss.

Judgment accordingly, with costs.


author: McAdam, Ch. J.

text:
    Julia Aiken, Pl’ff, v. The Massachusetts Benefit Association and Frey C. Leeson, Def’ts.

      (City Court of New York,

      Trial Term,

      Filed December, 1890.)

    Insurance (lire)—Assignment on policy under Massachusetts statute.
    An assignment of a policy issued by a company organized under the laws of Massachusetts on the life of a husband in favor of the wife made to a creditor is void; hut such defense is not available to the insurer in an action to recover the fund after death of the member where the beneficiary is a party and asserts the validity of the assignment.
    The Massachusetts Benefit Association, on May 28, 1881, delivered to Daniel W. Lesson its certificate of membership, whereby it agreed to pay to Frey 0., his wife, in the event of his death, a sum equal to the amount received from a death assessment, but not to exceed $5,000. On June 26, 1889, Daniel W. Leeson borrowed $350 from the plaintiff, and joined with his wife (the beneficiary) in an assignment of one-fifth of the certificate of membership. The association consented to the transfer. In January, 1890, the assured, Daniel W. Leeson, departed this life, and the association levied the necessary assessment and paid to his widow the sum of $4,000, reserving the remaining $1,000 to protect itself from the claim of the plaintiff as assignee. Mrs. Aiken brought the present action to recover this sum. The association denied the validity of the assignment and pleaded the non-joinder of the widow, whom it claimed was a necessary party to the determination of the controversy. The widow, Mrs. Leeson, was thereupon brought in and joined as a party, so that all persons interested in the fund are now before the court. The rights, equities and liabilities of the respective parties are up for determination.

      Isaac N. Folk, for pl’ff; J. K. Haywood, for the association; Me Gall & Arnold, for the beneficiary.
   McAdam, Ch. J.

The death assessment having realized the full limit of the policy, there is no question as to the extent of the liability of the association. Darrow v. Family Fund Society, 116 N. Y., 537; 27 N. Y. State Rep., 474; and the contention is narrowed down to determining the conflicting claims of the plaintiff, as assignee, and the beneficiary, to the balance unpaid. The plaintiff insists that the entire sum belongs to her, but the writings clearly show that the transfer was intended as a pledge, and, if valid, it is operative only to the extent of the advance,- viz., $350. The association was organized under the Laws of Massachusetts, and the purpose for which such beneficiary associations can be formed is strictly limited by statute, to rendering assistance to the widows and orphans of deceased members, or other persons dependent upon them, and transfers made during the lifetime of the assured to creditors or others not within the purpose of the statute are void. Briggs v. Earl, 139 Mass., 473; Daniels v. Pratt, 143 id., 216. The classes of persons to be benefited are specially designated, and the corporation has no authority to create a fund for other persons than of the classes named. Am. Legion of Honor v. Perry, 140 Mass., at p. 589. The transfer to the plaintiff (she not being within the classes designated) would have to be declared inoperative, but for the fact that the beneficiary, who now has a vested interest in the fund, is before the court, and has by her answer asserted the validity of the assignment to the extent of the advance actually made on the faith of it. If the transfer is to be deemed effective as to her, it is because it is operative on the fund. The association cannot make a defense for her, if she will not make it for herself, as it is immaterial to it ■ as a stakeholder what becomes of the fund so long as the person for whose benefit it was intended directs its disposition. Her right to the fund is now a vested one, and her jus disponendi absolute. It follows that Mrs. Leeson, the beneficiary, is entitled to judgment against the association for the unpaid $1,000, and out of the sum so to be paid the plaintiff is entitled to recover $350 and interest from June 26, 1889. Judgment, accordingly, without costs. Submit findings and decree in accordance herewith.


author: McAdam, Oh. J;

text:
    Theodore F. Schumann et al., Pl’ffs, v. John H. Davis, Def't.

      (City Court of New York,

      Special Term,

      Filed December, 1890.)

    Attachment—Perishable property.
    Goods which are liable to deteriorate and become of less value by being •kept, such as woolen goods which are liable to become hard and unfit for use, moth eaten and injured by dust and dirt, are perishable property and may properly be ordered sold as such.
    Motion to set aside order for sale of property as perishable.

      Goodrich, Deadly & Goodrich, for motion; George Hahn, opposed.
   McAdam, Oh. J;

The order directed the sale of certain woolen goods levied on by the sheriff under a warrant of attachment issued herein. The goods are such as fashionable tailors use to make up clothing. The plaintiff proves by experts that the styles in such goods change every season, and that, in consequence, the value will depreciate largely if they are not sold at once. That the action will hot be reached for trial for many months, and that in the meantime the goods will become hard and unsuitable for use, and are liable to become moth eaten and injured by dust and dirt, consequences that will be difficult to avert The question presented on these facts is whether the goods are perishable within the meaning of § 656 of the Code. This provision was intended to prevent loss either to the debtor or creditor by the depreciation of attached property, and should be construed to further its object and purpose. The construction approved in Fisk v. Spring, 25 Hun, 367; 62 How. Pr., 510, is too circumscribed. That case holds that to procure an order under this section, it must be shown that the property is inherently liable to deterioration and decay. This may be a correct conclusion, if the technical meaning of the word “ perishable ” is to be adopted, but the statute uses that term in a broader and more liberal sense, one more suited to the exigencies of business requirements. Bouvier gives a better definition of the term, which he says means goods which are lessened in value, and become worse by being kept.”

In Webster v. Peck, 31 Conn., 495, it was held that where, in the case of levy upon personalty, the time before a sale can be made is necessarily long, a sale may be directed of property liable to material depreciation in value from other causes than decay. In the case cited, Judge Butler said: The great delay between the attachment of property on mesne process and obtaining judgment, which attended. litigation previous to the reorganization of our judicial system, and the obvious equity of the law, led to a liberal construction of the statute to advance the remedy, and orders for the sale of property, not in its nature perishable, but which would materially depreciate in value for other causes, have been quite common. The only object of the General Assembly was to prevent loss to the parties, and so long as the parties are benefited, that liberal construction may be tolerated.”

Speedy sales of perishable property proceed upon the principle of necessity. To permit property to deteriorate or become worthless by the law’s delays, would be to impair, if not defeat the object of the attachment. To keep property until it deteriorates in value is to do an injury to all concerned, and this is certainly not the policy of the law. The purpose of the attachment is to realize money, the net amount received is credited to the defendant, and it is to the interest of all that the attached goods be sold while in their best condition and calculated to bring the best prices. It is clear that the goods will not increase in value; the proceeds of the sale may, for the amount realized may earn interest, while the retention of the goods by the sheriff must involve both expense and risk. The defendant who moves to set aside the order claims that the goods belong to another, who has sued or threatened suit against the sheriff for their conversion.

Our statute (Code, § 656) provides that if property attached, other than a vessel,” is perishable, it may by order of the court be sold. This special exception is significant

Excepting a vessel from the term “ perishable ” property implies that, but for the exception, a vessel might be sold as perishable property. The language certainly indicates that the'term “ perishable ” property was to receive a liberal-and not a literal, technical or narrow construction. The order made is really a benefit to all concerned, is within the spirit and purpose of the statute, was not an abuse of discretion, and the motion to set aside must be denied, but without costs. The order to be entered hereon must provide for notice of sale to the defendant’s attorneys and to the claimant as well, m addition to the usual advertisement. This will enable all the parties to protect their respective interests from any possible injury. _


author: ' Adlington, S.

text:
    In the Matter of the Revocation of the Probate of the Will of Robert Liney, deceased.

      (Surrogate’s Court, Monroe County,

      Filed September 20, 1890.)

    Wills—Undue influence.
    Decedent was a feeble, illiterate, intemperate and credulous old man and easily influenced and controlled by others. He had made two wills in favor of his son and grandchildren. While at the house of a friend he made another will, giving the bulk of the estate to the friend and his wife. Held, that under such circumstances the duty devolved upon such beneficiaries to prove that the will was the outcome of decedent’s own wishes, and was not procured by improper influence on their part, and in the absence of such proof the presumption of undue influence or fraud arises.
    Proceedings to revoke probate of will. '

      W. .4. Armstrong, for ex’rs; John H. Iiopkins, for contestants.
   ' Adlington, S.

This. decedent was an illiterate, intemperate, credulous old man, past eighty years of age. He was feeble both in body and mind, subject to certain delusions, and, while probably of sound mind in a strictly legal sense, was so feeble in will and intellect as to' be easily influenced and controlled by other people.

During,the last half year of his life he had executed three wills, the last of which is now the subject of controversy. By the first two wills he had given to his son and grandchildren nearly all his property, and in making such wills had shown much readiness to need the suggestions of outsiders as to the form of his testamentary dispositions and the appointment of executors. Within two weeks after the date of the second will, and while temporarily sojourning in the house of a friend, the third will is executed by him, giving the great bulk of his estate to that friend and his wife.

No satisfactory reason appears for the sudden change of purpose in this feeble old man. Upon the persons claiming to benefit by a will máde under circumstances such as surrounded this transaction, by an aged and feeble-minded man, the law devolves the duty of proving that the instrument was the voluntary outcome, of the decedent's own wishes, and was not procured by the improper influence of the beneficiaries. Unless this is satisfactorily shown the presumption arises that the will is the result of undue influence, or fraud, and it should not be allowed to stand. Marx v. McGlynn, 88 N. Y., 357; Mowry v. Silber, 2 Bradf., 133; Will of Clausmann, 24 W. Dig., 226.

Such fraud or undue influence is not usually open and visible to the draughtsman of the will, or to the attesting witnesses, but is commonly exercised behind the scene. Mowry v. Silber, supra, 149.

I think the facts and circumstances.of this case warrant the in- • ference that this will was procured by the undue influence of the Murrays, the chief beneficiaries under it, and that the probate should therefore be revoked.

There may be a decree accordingly on three days’ notice.


author: Mayham, J.

text:
    James F. Burke and Mary Fisher, Resp’ts, v. The Niagara Fire Insurance Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    Insurance (fire)—Assignee op mortgage interest.
    John Fisher and wife gave a mortgage on real estate which was assigned to Burke, and he procured a policy of insurance from defendant payable to him. The policy ran in the name of John Fisher, who was dead, to the knowledge of defendant’s agent. Mary Fisher, as devisee, procured insurance on the property from another company in her name, loss, if any, pa"able to Burke, as his interest may appear. It appeared that after the destruction of the premises by fire Burke assigned the mortgage and his claim under his policy to Mary Fisher as collateral security fura loan and indebtedness, but subsequently obtained possession of the papers and made a settlement with defendant. Held, that Mary Fisher was the owner of this claim under the policy, and that a judgment in her favor was proper.
    Appeal from judgment in favor of Mary Fisher, one of the plaintiffs, entered on verdict, and from order denying motion to .set aside the verdict and for a new trial.

      John F. Van Ftten, for resp’ts; FeForest & Weeks, for app’lt
   Mayham, J.

This case shows that in 1876 John Fisher and Mary, his wife, mortgaged to Brown and Humphrey real estate in Ulster county for §700. That in 1882 the mortgagees assigned the mortgage to James F. Burke. That September 1st, 1884, the ■defendants insured the house on the mortgaged premises for §600, loss payable to Burke as mortgagee.

On the 6th of July, 1885, a policy was issued on the same property to Mary Fisher for §1,800 in the Greenwich Insurance Company, loss, if any, payable to James Burke as bis interest may ■appear.

On the 17th of July, 1885, the insured building was destroyed by fire. About July 2.1, 1885, Burke filed proof of loss. About the 25th of September, 1885, Mary Fisher and J. F. Burke filed proof of loss in which reference is made to the proofs filed July .21st, both of which proofs the defendant received and retained.

John Fisher, one of the mortgagees, died February 1,1880. The insurance policy ran in the name of John Fisher and at the time ■of the execution of the mortgage the title to the property mortgaged was m him. Letters testamentary were issued on his will •to Mary Fisher and Thomas Grant. Before the commencement of this action they as executors assigned all their interest in this policy to this plaintiff, James F. Burke, in whose name this action was originally commenced, -the complaint in which was served January 19, 1886, to which the defendant answered alleging various violations of the terms of the policy.

On the 15th of May, 1886, defendant moved this court at •special, term for leave to serve a supplemental answer, which motion was granted upon condition that the plaintiff, Mary Fisher, might come in as a party plaintiff and serve a supplemental complaint ; thereupon Mary Fisher served a supplemental complaint alleging that in the month of October, 1885, she loaned to James F. Burke the sum of $600 and as collateral security for such loan Burke executed and delivered to her an assignment of the bond and mortgage given by her husband and her to Burke, subject to a lien of John E. Van Etten, as Burke’s attorney, for $355.

The complaint further stated that on the 31st of March, 1886, the defendant’s agent and Burke purloined the policy of insurance, the bond and mortgage and the assignment of the same from Burke to her.

The supplemental answer denied these allegations and set up that after the commencement of the action the plaintiff, James E. Burke, had released to the- defendant all the claims and demands set forth in the complaint

On the trial at the Ulster circuit the jury rendered a verdict for the plaintiff for $711, on which judgment was entered, from which and from the order denying a motion for a new trial on the minutes this appeal is taken.

The recovery in the judgment is in the name of Mary Fisher. We see no error on the trial in the receipt of the proof of original title to these premises in John Fisher, his death, the probate of his will and the granting of letters of administration to Mary Fisher and Thomas Grant.

The complications in which this case was involved as well after as before the commencement of this action made the evidence competent as throwing some light upon the whole transactions involved in the issues in this action, and we do not see how the defendant was improperly affected by the introduction of this evidence in any of its legal rights, especially as tlie evidence discloses that at the time the policy was issued the general agent of the defendant knew that John Fisher was dead and made the policy in his own handwriting to John Fisher, and the policy upon its face purported to be given to secure Burke’s mortgage interest in the premises of which Fisher died seized.

The objection was also taken to the introduction of the policy in evidence on the ground that upon the face of the policy the plaintiff, Mary Fisher, had no apparent interest in it, and that as the action was joint on behalf of her and Burke, and as there was no claim in the complaint to reform the policy on the ground of mistake, no recovery by her was proper and the policy was inadmissible as evidence.

We do not see that this offered evidence and the objection to it was conclusive upon the question as to the right of Mary Fisher to recover in this action.

The will of John Fisher showed the title in his widow subject to the mortgage.

The defendant’s agent knew of her husband’s death, and as the policy was written by him the mistake in the name of the owner, if mistake it was, was his mistake and not the mistake of the plaintiff, and as the policy was payable to the mortgagee, it was-not necessary that this mistake or mis-description should be corrected to entitle the mortgagee to recover, and Mrs. Fisher contended that as assignee she took the rights of the mortgagee.

Under the circumstances of this case, even if the policy required the owner of the property to be correctly stated, that condition was waived by the company, by writing a policy by its authorized agent, with the knowledge of the fact that Fisher was dead, in not naming Mrs. Fisher or the estate of John Fisher, deceased, as owner.

In De Wolf v. Capital City Insurance Co., 16 Hun, 116, the policy insured Van Tuyl & Co., as interest may appear, to the amount of .$2,500 on two houses.

The houses stood on leased ground, the lease being then owned by Gilbert, etc., who had given Van Tuyl a mortgage. An .action on the policy was defended on the ground of an alleged breach of a condition requiring that when one procures a policy otherwise than as sole owner that fact should be stated; and of .a further condition requiring that when the building stood on leased ;ground it should be so stated. Held, that by the words “ as interest may appear,” the company insured Van Tuyl & Co. and any insurable interest which they might have in the property, .and waived the condition requiring a specific statement of such interest in the policy.

Applying that rule to this case, Burke, as assignee of the mortgage given by John and Mary Fisher, had an insurable interest, .and when by the policy the defendants made the insurance, in •case of loss, payable to him as mortgagee, they insured that mortgage interest and waived the condition in the policy upon which •defendant now relies to escape liability.

The company had, with knowledge of the facts, adopted that form and received premiums on the same, and could not now be heard to object that the wrong person was named as owner of the premises. See, also, Clinton v. Hope Ins. Co., 45 N. Y., 454; Savage, Trustee v. Howard Ins. Co., 52 id., 502 ; Pechner v. Phenix Ins. Co., 65 N. Y., 208; Richmond as Executrix v. Niagara Fire Ins. Co., 79 N. Y., 230.

On the trial the plaintiff, Mary Fisher, sought to prove the assignment of the mortgage from Burke'to Mrs. Fisher by Van Etten, in whose custody it was claimed to have been, and from whom plaintiff claimed defendant’s agent, in complicity with Burke, had wrongfully taken it. Defendant objected to the testimony offered, ■and particularly to evidence of acts and declarations of a Mr. Selvage, defendant’s adjusting agent, for the purpose of showing how the assignment became lost.

This evidence was received under objection by defendant.

We think it was properly received, as it abundantly appears from the case that the defendant, to the fullest extent, recognized the authority of Selvage in the premises.

The undisputed evidence of Selvage is, that he knew that Mary Fisher claimed to be the owner or assignee of Burke of this mortgage. That with that knowledge he negotiated on behalf of the •defendant with Burke for a release or assignment to the defendant of this claim.

These negotiations were in the office of the defendant in New York, and it was there agreed that if Selvage could get possession of the papers connected with the case, the bond and mortgage, the assignment of the same, and the insurance policy, Burke would, for a consideration, assign them to the defendant, and release the * cause of action in this case, and that papers were prepared in the principal office of the company for the purpose of carrying out that agreement.

That in pursuance of that understanding Selvage called-on Yan Etten, in whose custody the papers were, and upon some suggestion that he desired to effect a compromise of the case with Mrs. Eisher, got them in his possession, and without the knowledge or consent of Yan Etten, and against his will carried them away.

Whatever might be justly said in criticism of this conduct of Selvage, it in itself would not establish a general authority in him as agent to bind the company by his declarations or acts, but for the subsequent conduct of the defendant in fully ratifying his acts upon this subject in setting up the transaction with approval as a defense in the supplemental answer interposed by permission of the court.

We think it does not lie with defendant after, in such unequivocal terms, adopting this act, and availing itself of its fruits, to assert that it was unauthorized. '

It is true that, there is no positive evidence of any precedent authority from the defendant to Selvage to perform this act, but a subsequent ratification by the company binds it quite as effectually as if a precedent authority were proved.

This conclusion is in no way in conflict with Weed v. Insurance Co., 116 N. Y., 106; 26 N. Y. State Rep., 414; Lohnes v. Insurance Co., 121 Mass., 439, and Bush v. Insurance Co., 63 N. Y., 531, cited by the learned counsel for the defendant.

The assignment by Burke to Mrs. Fisher being proved, and of the plaintiff’s possession without her fault and beyond her control, we think proper foundation for paroi evidence of its contents, was laid, and it was not error to allow Yan Etten to give evidence of its contents.

Eor do we think it was error under the circumstances to allow Yan Etten to state why he did not refer to the assignment from Burke to Mrs. Fisher in his letter to the company, informing it. of Selvage’s unauthorized taking of the papers from his office.

The defendant, had examined him upon that sujbject to such an extent that an examination of that omission was proper.

It was competent for the plaintiff to prove the value of her1 building, as the evidence shows it was a total loss, and the objections to that proof were properly overruled.

The remaining question to be- considered is, was this policy vitiated by the issuance of a policy to Mary Fisher on the 6th of July, 1885, on the property covered by the policy in question ?

Ón that day the Greenwich Insurance Company, by it's policy, agreed to indemnify Mary Fisher against loss and damage by fire to an amount not exceeding $1,800 on the same property, loss, if any, payable to James Burke, as his interest may appear!

The loss on this policy was on the 6th of October, 1885, adjusted and paid at the sum of $750, and the policy cancelled and surrendered on that day.

The first policy was taken by Burke, on his insurable interest as mortgagee; such an interest is insurable. Wood on Insurance, § 297, and cases there cited.

The second policy was taken by Mary Fisher who, at the time of taking the same, seemed to be owner as devisee of the property, subject to the mortgage, of which Burke was assignee.

The first policy, which is the one in suit, provides as follows: “ This policy shall become void unless consent in writing is endorsed by the company hereon in each of the following instances.”

Then follow -six different cases of forfeiture, the second of which reads as follows: “ If the assured have or shall hereafter obtain any other policy or agreement for insurance, whether valid or not, on the property above mentioned or any part thereof.”

The defendant insists that this clause wras violated by the policy of the Greenwich Company, procured by Mrs. Fisher, and was therefore rendered void.

The plaintiffs contend that even if it be assumed that the second insurance might have worked a forfeiture of the first, that was waived by the defendant’s agent, who swears he was authorized by the company to issue policies, collect premiums and everything else, told Mrs. Fisher that he would let her know if he can-celled the policy, while the agent swears that he told her that the. policy was cancelled.

It is not claimed that the policy was in fact cancelled physically by any endorsement of the agent, or that the company by any affirmative act cancelled the same. The disputed question of fact as to whether Mrs. Fisher was to have notice of the cancellation of the policy, as she claims was agreed by the agent, or whether he then and there notified her that it was cancelled, was, we think, properly left to the jury by the learned judge, if that was a material fact in the case.

It is not contended that this policy was void ab initia.

If avoidable it became so by the violation by the assured of a. condition subsequent; such a forfeiture might or might not be enforced by the company.

The violation of the condition did not, ipso facto, extinguish the policy.

If, therefore, the jury were authorized to find from the evidence that the defendant agreed to notify Mrs. Fisher if they elected to insist upon a forfeiture or cancellation of the policy, as she claims no such notice was ever .given, the jury would be authorized to hold, as we must assume they did, that she understood that they would not insist upon the second policy as a violation of the conditions of the first.

In Landers v. Watertown Ins. Co., 86 N. Y., 414, which was a case of subsequent insurance, the court says : “ The prior policy was valid when issued, but was avoidable by the company issuing it, for breach of condition subsequent.”

But this company had elected to avoid it for that reason. It was not certain that it would have so elected if the facts had been known to it

In some cases it might be very inequitable for a company to take advantage of a breach of condition as to vacancy, or of increased risk to avoid a policy originally valid, although the legal right so to do might be unquestionable.

It certainly would be competent for the company to waive such an objection. The first policy was voidable only at the election of the company. The condition was inserted for its benefit; but its violation did not ipso facto extinguish the policy.

The condition of the defendant’s policy was to protect it from over-insurance.

Applying this rule to the case at bar, it would seem to follow that if the jury, as they might, found a waiver or failure or neglect to enforce this condition from which a waiver might be found, they might find for the plaintiff. But there is another ground, we think, upon which, upon this point, the verdict should be upheld, and that is, that the policy issued to Mrs. Fisher was not additional insurance, within the terms of the first policy, upon second or subsequent insurance.

We think Burke had an insurable interest in his mortgage, Wood on Insurance, § 297, supra, and that Mrs. Fisher had also an insurable interest as owner or devisee under the will of her husband. Wood on Insurance, § 265.

Mis. Fisher was not the assured in the first policy and had no interest in that policy at the time of taking out of her policy; her interest in this policy did not attach until she became assignee of the mortgage from Burke, which was October, 1885.

Wc think the evidence sufficient to uphold the verdict of the jury, that Mrs. Fisher was the owner of the interest in, or claim on this policy, against the company, and there was no error committed on the trial for which the judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., and Landon, J., concur in result.


author: Landon, J.

text:
    The People, App’lts, v. William H. Coughtry, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    Game laws—Venue.
    The provisions of § 3 of chap. 577, Laws 1888, that suits for violations of the act may be brought in an adjoining county, and that “ such suits shall be prosecuted to determination in the county where they shall be commenced,” unless discontinuance is directed by the chief game and fish protector, does not deprive the court of the power to change the place of trial to the county where the alleged offense occurred where the convenience of witnesses or the ends of justice demand it.
    Appeal from an order of the Albany special term, changing the place of trial from the county of Columbia to the county of Albany upon the ground of the convenience of witnesses.

      A. B. Gardenier, for app’lts; F. M. JDanaher, for resp’t.

       Affirming 33 N. Y. State Rep., 205.

   Landon, J.

The action is for the recovery of penalties for alleged violations by the defendant of the game laws. The violations are alleged to have been committed in the county of Albany. The action was brought by the district attorney of Columbia county and the place of trial laid in that county. The appellants’ sole contention is that under the statute the court had no power to-change the place of" trial. Section 3 of chap. 577, Laws of 1888, provides that “ such suits shall be commenced on the order of any game and fish protector, in the name of the people, by any district-attorney where the offence shall be alleged to have been committed, or by the district attorney of an adjoining county; and such suits shall be prosecuted to determination in the county where-they shall be commenced, unless for good cause appearing a discontinuance' shall be directed by the chief game and fish protector.”

Unquestionably the intent of the legislature was to authorize-in proper cases these actions to be brought in a county adjoining that in which the violation of the law occurred, but we do not think the legislature, by tl\e provision “ and such suits shall be prosecuted to determination in the county where they shall be commenced,” intended to deprive the supreme court of the power to change the place of trial from the adjoining county to the county where the alleged offence occurred. The jurisdiction to change the venue in actions where the convenience of witnesses or the ends-of justice demand it is ancient and useful.

The learned counsel for the appellant, points out in his instructive brief its antiquity, and the bench and bar would probably unite in attesting its usefulness. The constitution, art 6, § 6, confers upon the supreme court “general jurisdiction in law and equity.” The 8th section of the same article provides that “except as herein otherwise provided, the legislature shall have the-same power to alter and regulate the jurisdiction and proceedings in law and equity that they have heretofore exercised.” The-power “ to alter and regulate,” implies that the old jurisdiction shall in some degree continue in an altered or regulated form. Many cases affirm the inability of the legislature to abridge the general jurisdiction of the court. DeHart v. Hatch, 3 Hun, 375, 380; People v. Supervisors, 49 id., 481; 18 N. Y. State Rep., 898; Brooklyn v. New York, 25 Hun, 612 ; People v. Nichols, 79 N. Y., 590; Alexander v. Bennett, 60 id., 206, Popfinger v. Yutte, 102 id., 42; 1 N. Y. State Rep., 334; Hutkoff v. Demorest, 103 N. Y. 380; 5 N. Y. State Rep., 597. Ordinarily an action to recover a penalty must be tried in the county where the cause of action arose. Code Oiv. Pro., § 9,83. Where the legislature authorizes such - actions to be brought .in another county, the propriety of the jurisdiction of the court to change the place of' trial to the county where the cause of action arose, if justice requires it, would seem to be clear. A legislative attempt to deprive the court of it would be an attempt to replace judicial' functions with legislative mandates.

We need pursue the subject no further than to say that we decline to impute to the legislature an intention, by the use of the language here employed, to deprive the court of its accustomed jurisdiction. The real intent of the act is manifest when the whole provision is read: “ Such suits shall be prosecuted to determination in the county where they shall be commenced,, unless for good cause appearing a discontinuance shall be directed by the chief game and fish protector.” The main intent is to prevent a discontinuance except under the direction of the chief game and fish protector. If there had been an intention to abridge the jurisdiction of the court, we think it would not have been disguised under an enlargement of the powers of this officer.

Order affirmed, with $10 costs and disbursements.

Mayham, J., concurs; Learned, P. J., takes no part.


text:
    The People ex rel. Jasper W. Gilbert, Resp’t, v. Edward Wemple, Comptroller, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    Constitutional law—Salary of justice whose term: is abridged by REASON OF AGE.
    The provision of the constitution as to the continuance of compensation of justices whose term is abridged by reason of age, and who shall have served ten years or more, applies to all cases where such justice shall have served ten years, and is not confined to cases where such service of ten years has been within the abridged term.
    Appeal from order of special term directing the issuance of a peremptory mandamus to the comptroller of the state, directing him to pay the relator the sum of '$6,000.
    The following is the opinion at special term: -
    Edwards, J. On January 1,1883, the relator had served as a justice of the supreme court for the period of seventeen years continuously, when his second official term of fourteen years, nine of which had expired, was abridged by reason of his having attained the age of seventy years.. His compensation for the remaining five years of his term has been paid to him, except the annual stim of $1,200 provided by § 1, chap. 541, Laws of 1872, which the respondent declines to pay, on the ground that the provision of the constitution which continues the compensation of a justice whose term of office has been abridged by limitation of age is inapplicable- to one who has served fewer than ten years of the abridged term. It is now settled that the $1,200, of which payment is sought to be enforced, is part of the compensation provided by § 13, article 6 of the constitution, Bockes v. Wemple, 115 N. Y., 302 ; 26 N. Y. State Rep., 330, and the only question for our consideration is, whether the relator is within the provisions of that section. The portions of the section which are here material read as follows: “ The official terms of the said justices * * * who shall be elected after the adoption' of this article, shall be fourteen years from and including the first day of January next after their election. But no person shall hold the office of justice * * * longer than until and including the last day of December next after he shall be seventy years of age.
    “ The compensation of every * * * justice of the supreme court, whose term of office shall be abridged pursuant to this provision, and who shall have served as such justice ten years or more, shall be continued during the remainder of the term for which he was elected." Must the “ten years or more” be a part of the abridged term to entitle the retiring justice to a continuance of his compensation ? This is the sole question to be answered, and its proper determination must be sought for in the language of' the section cited. In the interpretation of statutes it is a primary rule that the intent is to bel ascertained, but it is also fundamental that, so far as possible, the intent must be derived from the language employed. When this is free from ambiguity or contradiction, it is self-interpreting, or, more accurately speaking, needs no interpretation. When the words used have a definite and obvious meaning we are not at liberty to resort to those artificial rules of construction which wisdom and ingenuity have been compelled to devise by reason of the infirmity and obscurity of language. The words must be accepted in their plain import, and we are not permitted to add to or take from the language eriiployed in order to extend or restrict the operation of the statute to what we might conceive to have been the legislative intent. With the familiar principle in view, let us see whether the language of this section is not so plain, so free from doubt, as to need no extrinsic aids of construction. Concededly the apparent meaning of the first and second clauses is that the official term of a justice of the supreme court shall be fourteen years, and in case he shall become seventy years of age during such term he shall not hold the office longer than until the following last day of December ; that is, his term is thereby abridged.
    Unless the framers of this section have chosen inapt words .to express their idea, their intent is as clearly discoverable in the language of the following clause, which explicitly declares that the compensation of a justice of the supreme court whose term has been abridged shall be continued during the remainder of the term for which he was elected in case he has served as such justice ten years or more. But it is claimed that this clause should be construed as if it read, “ ten years or more of such term; ” that is, ten years or more of the term abridged. Why should it be so construed ? The import of the words used is plain, and why should we add to them to change the signification ? The language is not, “ who shall have served ten years or more of such abridged term,” but is, “ who shall have served as such justice ten years or more.” It seems to me quite clear that it is only by injecting into the clause the additional words which the respondent claims should be regarded as there, that his contention as to its meaning can be sustained. Without these additional words it is obvious that the language means one thing; with them it is equally obvious that it means another thing. The interpolation of such words into a statute, as change the meaning and restrict its operation is a legislative and not a judicial function. Perhaps it would have been wiser if this clause had been so framed as to extend its beneficent provisions to those only who had served ten years of the abridged term. However this may be, it is our province not to reform the law, but simply to declare ita lex scripta est.

    The motion for a writ of peremptory mandamus should be granted.

      Charles F. Tabor, for app’lt; Stephen P. Nash, for resp’t.
   Order affirmed on opinion of the court below, with fifty dollars costs and disbursements.

Learned, P. J., *Landon and Mayham, JJ., concur.


author: Learned, P. J.

text:
    Patrick Fox, Resp’t, v. Robert Dixon, Overseer of the Poor of the Town of Rosendale, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 12, 1890.)

    Physicians—Who have not filed certificate cannot recover for services.
    A recovery will not be permitted for professional services performed or rendered by a physician who has not filed the certificate required by chap. 513, Laws 1880.
    Appeal from judgment in favor of plaintiff, entered 'on verdict, and from order denying motion for a new trial on the minutes.
    Action to recover the amount of certain orders issued by defendant for the relief of poor of the town. A part of the orders were for goods furnished by plaintiff and the balance were for services rendered by one Little as physician and which were discounted by plaintiff. Little had not filed the certificate required by chap. 513, Laws 1880.

      John E. Hardenlerg, for app’lt; William Lounslery, for resp’t.
   Learned, P. J.

Chapter 513 of the Laws of 1880 forbade any physician to practice who had not obtained and filed the certificate therein mentioned; and it declares that it shall be a misdemeanor to practice without having obtained and filed this certificate. It is not disputed in this case that Little, the plaintiff’s assignee and the physician to recover payment for whose services this action is brought, had not obtained or filed such certificate at the time when the services were rendered.

It is a settled principle that one cannot recover compensation for doing an act to do which is forbidden by law and is a misdemeanor. The contrary rule would make an absurdity. It would permit one to hire another to commit a misdemeanor and would compel the payment of the contract price for doing what the law forbids.

Whether this statute is wise or not we cannot examine. It is enacted in the interest of the health of the public, to prevent incompetent persons from practicing as physicians. We must give effect to it. And we cannot permit a recovery of compensation for doing an act which this statute declares to be a misdemeanor. Oscanyan v. Arms Company, 103 U. S., 261.

It would seem that the attention of the learned justice who tried the case could not have been called to the statute. For he states that the inhibition had been removed by the legislature and that now anybody can practice.

In saying this he seems to have had reference to the law as it existed before the statute of 1880, above cited. At any rate it is not disputed that when Little performed these services the statute forbade him to practice.

As the defendant proved affirmatively that Little had no license, we need not inquire whether proof that a physician has a license is a necessary part of the plaintiff’s case in an action for services.

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

Landon and Mayham, JJ., concur.