text:
    Thomas Kitson, Resp’t, v. Sarah Frances Blake, App’lt. Thomas Kitson, Resp’t, v. Frederick D. Blake, Impleaded, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    •Judgment upon an inquest—Grounds for setting aside.
    Where a judgment is rendered upon an inquest taken by default, it will not be set aside upon the ground of the enforced absence of the defendants and their attorney at a trial in another city, where it appears that there was ample time to reach the court room before the case was called after the completion of the other trial, and that the attorney's clerk, a lawyer, was present, appeared, announced the defense ready, and then objected to the jury.
    Appeal from order of special term, Westchester county, denying motions to set aside inquests.

      C. Bainbridge Smith, for app’lts; Carlisle Norwood, Jr., for resp’t.
   Pratt, J.

—These are motions to set aside inquests taken at a •circuit court held in Westchester county.

It is evident from an examination of the papers on this appeal that there was no merit in the defense, and that the whole effort of the defendant was to secure delay.

Not only does it appear that the notes sued upon were given for a valid consideration, but liability had been conceded by the defendant.

If the counsel for the defendant had exercised due diligence, he could have reached the court at White Plains, at the time the case was called for trial. He was represented, however, and what took place must be regarded as a trial.

It does not appear that there was not a legal panel of jurors present to try one ol the cases when called; besides no challenge was made that was sufficient to raise that question.

The plaintiff was no way in fault for the absence of defendant’s witnesses, and no motion was made -to postpone on the ground of absence of witnesses.

In one case there was no appearance at the circuit, and default and inquest were duly taken. Such being the case, it was incumbent in that case to show merits, which was not done.

We do not think there was any irregularity in either case sufficient to warrant the granting of the motions, neither do we think there is any merit in the defense in either action.

Order affirmed, with costs.

Barnard, P. J., concurs.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Gideon F. Smith, Assignee, Resp’t, v. F. Frank Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Assignment for benefit of creditors—Preferences—When fraudulent.
    The firm of M. & N. were successors to M. & H. H. sold out his interest in the property and business to N. The firm of M. & H. then owed one M. $1,000. This debt was assumed by the new firm, and they gave H. a note for the amount. M. & N. afterwards made an assignment for the benefit of creditors, and preferred H. for the amount of the note given, but in the inventory the debt was specified to be on the note held by M. Held, that the preference was not fraudulent, being made to secure the debt due M. from the assignors.
    Appeal from a judgment rendered on report of a referee.

      Nathan D. Petty, for app’lt; Wilmot M. Smith, for resp’t.
   Barnard, P. J.

—The plaintiff proves a title to the goods in question by virtue of a general assignment made by Mosbacker & Newey to him for the benefit of creditors, dated 12th of December, 1888. After he had taken possession of the property under the assignment, the defendant, a deputy sheriff of Suffolk county, by virtue of an execution on a judgment against the assignees, took from the plaintiff goods of the value of $649.10. The issue is whether the assignment was made with intent to hinder, delay and defraud the creditors of the assignee. The referee found in favor of- the validity of the assignment, and this appeal is from the judgment entered upon his report. The firm of Mosbacker & Newey were successors of Mosbacker & Howell. Howell sold out his interest in the property and business to Newey-November 10, 1887. The firm of Mosbacker & Howell then owed one Massury $1,000 for borrowed money. This debt was assumed by the new firm, and it was a question of fact whether at the formation of the new firm a note was given to the retiring partner Howell for $500, the amount remaining due to Massury after closing up his accounts with the old firm and after a money payment made therein by the new firm of $500. There is no difference as to the fact of the promise made by the new firm to pay this balance, but the assignment prefers Howell for a debt, and it is claimed that the preference should have been to Massury, who held the note.

The inventory specifies the debt to be upon the note held by Massury. Whether the preference be given to Howell or Massury, it is the debt which is preferred and clearly Howell had a right to enforce its payment to either himself under agreement with the assignee or to Massury who held the note.

There was no error, therefore, in the finding of the referee that the preference to Howell was not fraudulent, especially as he finds that Howell held the note of the two partners for the Massury balance. The case shows that between the 28th of September, 1888, and December 12, 1888, the date of the assignment, no books were kept showing receipts and disbursements of the firm. It was found by the referee that the firm had between these dates received from collections $1,341.50, and from cash sales $800. Two hundred and forty-one dollars in cash was handed over to the assignee. The books were solely kept by Mossbacker. He testifies: “ I paid bills with the receipts of the store Between September 1, 1888, to December 15th as fast as I got it.” The books showed the amounts drawn out by the partners during this period for cash but the exhibit is not returned (Exhibit C.). The testimony of Mosbacker is that between these dates the daily balances were kept on cash slips in the drawer and did not go upon the books. That the bills due creditors were filed each one separately and payments were entered on the firm’s book. This book Ho. 2 is not returned. The collection for goods sold on credit did in fact appear upon the books in another form and Mossbacker stated it exactly as found by the referee. The amount of the payment 'to Valentine & Berger is not proven. The referee does not find that the assignee kept back any money or property. He has found that the assignment was valid and has refused to find that it was executed with an intent to hinder, delay and defraud creditors. The point taken on the trial that the assignment did not conform to chapter 294, Laws of 1888, is not now presented by appellant. The firm of Mossbacker & Hewey agreed to pay the debt of A. G. Howell & Co., and a preference of these debts was a, preference of the debt of assignor.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    James Thompson, Resp’t, v. Henry D. Leslie, App’lt.

      (Supreme Court, General Term, Second Department,

      Failed May 11, 1891.)

    Sale—Agreement—Payment on delivery.
    Plaintiff sold defendant a lumber yard under a written agreement that an inventory of stock be taken at once, defendant to take control of the business at once, the price to be $2,000 cash and $8,000 in notes, and whatever amount over this that the inventory showed to be paid for at the market price. Before the inventory was completed defendant handed plaintiff's son a check for $2,000 and received the keys of the yard. Four days afterward plaintiff returned the check to defendant and notified him that, he must not assume possession until the inventory was completed and the notes given. The inventory was never completed. Held, tha" defendant had no right to possession, as the agreement was one which called for payment on delivery.

      Appeal from a judgment of special term, Kings county, restraining defendant from interfering with plaintiff’s lumber yard.

      Palmer & Boothby; for app’lt; William H. Mullen, for resp’t.
   Barnard, P. J.

—In November, 1888, the defendant conveyed to the plaintiff a lumber yard and stock of lumber with the books of account for lumber sold. The transfer was made to secure the plaintiff for a claim he had against the defendant. The informal understanding was that the plaintiff upon being paid his claim, including money paid for future purchases of lumber after crediting the collections from the books, was to convey the property back to the defendant. The plaintiff took possession of the property and conducted the business on his own account until the 5th of June, 1889. Thomas G. Patterson then entered into-an agreement in writing with the plaintiff on these terms.

“ I, James Thompson, of Staten Island, hereby agree to sell back to H. D. Leslie the lumber business sold to me by him on November 21, 1888, as per bill of sale of that date for the firm of Leslie & Patterson, to wit: H. D. Leslie of West New Brighton and Robert Patterson of Jersey City, N. J., are the following creditors.

“ Whatever stock is over the amount at the time I purchase it, to be paid for at market prices. The above firm of Leslie & Patterson to assume the debts due on purchase of lumber • by me. Also to assume the amount of cash paid by me for H. D. Leslie’s account to the amount of $12,000, secured as follaws: $2,000 in cash and $8,000 in notes, tobe made payable in one, two, three, four, five and six months from date of purchase endorsed by T. G-. Patterson of New York City. An inventory of stock to be taken at once satisfactory to both parties. The firm of Leslie & Patterson to take control of.the business at once.

“Signed, T. G. Patterson.

“James Thompson.”

This agreement was dated 19th of May, 1889, but was not executed until the 5th of June following. The parties at once began to take an inventory and continued until the 13th of June, 1889, when Leslie & Thompson appraisers, left and did not return. The inventory was not finished. On the 8th of June, 1889, Henry D. Leslie handed a check to plaintiff’s son for $2,000, endorsed by T. G. Patterson, stating to him that everything was all right, and that he would take possession on Monday, June 10, 1889. The plaintiff had, therefor, delivered up the keys to him, and on Monday Leslie took possession. The plaintiff on Monday, June 10, 1889, returned the check to the defendant, who has since retained the same, and he notified Leslie-that he must not assume possession until the inventory had been taken and the notes given. On the 19th of June, 1889, this action was- commenced, upon Leslie claiming a right to take and keep possession of the yard. The defendant had no right to the possession. The general rule is well established that upon a sale of personal property for cash, the payment and delivery are to be simultaneous acts. Empire State, etc., Co v. Grant, 114 N. Y., 40; 22 N. Y. State Rep., 302.

The agreement is one which calls for payment on delivery. The sale is upon the express condition that the purchaser secure a debt of $12,000 by notes endorsed by T. Gr. Patterson, as well as the payment of $2,000 in cash. The expressions in the agreement that the inventory is to be given at once, and that the purchaser is to take control of the business at once, are not to be construed as making an exception to the general rule that the performance and the delivery must be simultaneous acts. There was no waiver of the condition. Proof of a waiver must be clear. On Saturday, June 5, 1889, the $2,000 check was given and no notes; the inventory was commenced on Monday and on Thursday all effort to take it fell through. On Monday the check was returned, and the plaintiff protested against Leslie assuming any control of the business. What was done was done upon the supposition that the inventory would be completed and the notes given, and did not amount to a delivery of possession with the intent to transfer the title and" waive the condition. The exceptions are not well taken. The contract alone controlled the time of delivery. The consideration paid by plaintiff in November, 1887, was immaterial; the contract made the consideration for the re-transfer. If there was lumber delivered by Leslie to plaintiff from the yard on the' 12th of June, 1889, it would not tend to establish a waiver under the other evidence in the case.

The judgment should, therefore, be' affirmed, with costs.

Dykhan and Pratt, JJ., concur.


author: Dykman, J.

text:
    People ex rel. Thomas McCormick, App’lt, v. Patrick J. Weldon et al., Superintendents of Poor, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Poob laws— Officers—Abridgment or tebm—Salary.
    The relator was appointed by the respondents as keeper of the county poor house, in January, 1890. for one year; but in June, 1890, the legislature passed a law authorizing and requiring the board of supervisors of the county to elect an officer to be known as the “ county superintendent of the poor,” who was to be keeper of the poor house by virtue of his office. During his incumbency a county superintendent was elected in pursuance of the statute, who took possession of the poor house. Meld, that the appointment of the county superintendent terminated the employment of the relator, and he cannot compel payment of salary accruing after his removal.
    Appeal from an order of special term, Richmond county, denying a motion for a peremptory writ of mandamus.

      W. J. Powers, for app’lt; Van Hoevenberg & Holt, for resp’ts.
   Dykman, J.

—This is an appeal from an order of the special term of this court, denying the motion of the relator for the issuance of a peremptory writ of mandamus requiring the respondents to meet and pay the relator the sum of $250, claimed by him to be due him for a quarter’s salary as keeper of the county poor house in Richmond county.

The relator was appointed by the respondents as keeper of the poor house in January, 1890, for one year, but in June, 1890, the legislature passed-a law authorizing and requiring the board of supervisors of the county to elect an officer to be known as the county superintendent of the poor, who was to be keeper of the poor house by virtue of his office. Chap.'539 of the Laws of 1890.

On the 9th day of October, 1890, the board of supervisors of the county of Bichmond, in obedience to the law of 1890, elected Benjamin J. Bodine county superintendent of the poor, and he entered upon the performance of his duties.

There is some discrepancy in the dates, for the relator states in his affidavit that Bodine turned him out on the 21st day of July, 1890, while the record shows that he was appointed on the 9th day of October, 1890. The difference is not, however, very important, for the appointment of Bodine terminated the employment of the relator, and he cannot compel the respondents to pay him his salary.

Even though the relator was legally appointed for a year, yet he could be discharged or removed at any time. Chapter 498 of the Laws of 1847, as-amended by chap. 298 of the Laws of 1862. So his term of office could be abridged by the legislature, as it probably was by the law of 1890.

- In no view, therefore, was the relator entitled to the writ, and the order should be affirmed, with ten dollars costs and disbursements.

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


author: Per Curiam.

text:
    Patrick J. McPhillips, Adm’r, Resp’t, v. The New York, N. H. & H. R. Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Evidence—Testimony given on former trial—Admissions.
    Defendant introduced the testimony of the plaintiff given on a former trial of the same action. Eeld, that it was not only operative in contradiction of his present testimony, but, as the admission of a party, was competent evidence upon the issues in litigation.
    Motion for reargument.

      Page & Taft, for app’lt; Christopher Fine, for resp’t
   Per Curiam.

—The learned counsel for the respondent is quite mistaken in the supposition that the court misconceived the evidence in the record, and confounded the evidence on a former trial with the evidence on the trial under review.

Having'laid the foundation, imperative in the case of a witness ■ not a party but here unnecessary, the defendant introduced the testimony of the plaintiff, Patrick J. McPhillips, on a former trial, as follows: “Q. What is the distance * * * as to where the train was when he ” (the intestate) “ fell ? ” A. Between the third pole, 277 feet from where he fell. Q. Did you make the measurements ? A. I made the measurement myself.1’ This, being the statement of the plaintiff in the action, was not only operative in contradiction of his present testimony i but, as the admission of a party, was competent evidence upon the issues in litigation. Besides, there was much other evidence of the same tendency and effect. See the testimony of Avala McPhillips and other witnesses at fols. 222, 226, 486, 487, 516, 519, 520, 526.

Motion denied.


author: Pryor, J.

text:
    Annie Conlin, as Adm’rx, Pl’ff, v. John C. Rodgers et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Negligence—Evidence.
    Plaintiff’s intestate while in defendants’ service was ascending a shaft through which he went to and from his work in a tunnel. The cage had iron guard rails, a top and middle rail, with two uprights. The middle rail in the rear had been out for over three weeks, leaving a space four feet high. He had been going up and down in the cage for several months. He was alone in the cage and fell from it and was killed. No one saw him leave the cage, or testified how he came to fall, nor was it shown that he fell through the space left by the absent rail. Held, that it was not error to dismiss the complaint at the close of plaintiff's case.
    Motion for new trial, on exceptions heard at general term. Action for damages from the death of plaintiff’s intestate, alleged have been caused by the defendants’ negligence. On the conclusion of plaintiff’s case, the complaint was dismissed “on the ground that the plaintiff has not proven facts sufficient to constitute a cause of action.’
    Plaintiff’s counsel duly excepted.
    At the time of the accident the intestate was in defendants’ service, and was ascending a shaft though which he went to and from his work in a tunnel. He was alone in the cage. The cage had iron guard-rails, a top and middle rail, with two uprights. In the rear of the cage the middle rail was out, leaving a space of about four feet in height. This rail had been out for three weeks or longer. Before the defendants took the work from Brunten & Go., former contractors, there were no protection rails on the cages. Plaintiff’s witness testified: “ I was hoisting him when he fell off. I saw him go right off the cage. * * * I didn’t see him, and didn’t see what occasioned his fall. I didn’t know who had been in the case until I saw him between me and the shutter. * * * I saw the shadow going right off the cage * * * I let Conlin down that night. The next I saw him he came up dead. I saw him fall down the shaft. * * * The guard rails would come up to about his elbow. He had been going up and down the shaft for three months.

      John M. Coman, for app’lt; Nathaniel Smith, for resp’ts.
   Pryor, J.

—Upon this state of fact the question is, Was it error to dismiss the complaint? Or, to present the point in another form, was it the legal duty of the court to submit the case to the jury?

The rule is familiar and fundamental that, to authorize a recovery in such an action as the present, the plaintiff must prove that the defendants’ negligence was the cause of his injury. But, before this issue can be referred to the jury, the court must determine a preliminary question, namely: whether there be sufficient evidence to warrant the inference that the defendants’ neg-"* ligence was the cause of the injury. If there be such evidence the case must go to the jury, and it would be error to withhold it from them. If there be not such evidence, the case must be withdrawn from the jury, and it would be error to submit it to them. •

“ If the evidence would not authorize the jury to find a verdict for the plaintiff, or, if the court would set it aside if so found, as contrary to evidence, in such case it is the duty of the court to nonsuit."’ Willard J., in People v. Cook, 8 N. Y., 67, 74.

“ The judge has -a certain duty to'discharge, and jurors have another and a different duty. The judge has to say whether any facts have been established by evidence, from which negligence may reasonably be inferred; the jurors have to say whether, from those facts, negligence ought to he inferred.” Lord Cairns, in Met. R. R. Co. v. Jackson, 3 App. Ca., 193, 197 ; Lord Blackburn, p. 207.

“ Nor are judges any longer required to submit a question'to a jury, merely because some evidence has been introduced by the-party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what is called a scintilla of evidence in support of a case, thé judge was bound to leave it to the jury; but recent decisions of high authority have established the mo,re reasonable rule that, in every case, before the evidence is left to the jury, thre is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it.” Miller J., in Improvement Co. v. Munson, 14 Wall., 442, 448 ; Commissioners v. Clark, 94 U. S., 278, 284.

“ It is not enough to authorize the submission of a question as one of fact to the jury, that there is some evidence. A scintilla of evidence, or a mere surmise, that there may have been negli-' gence on the part of the defendant, would not justify the judge in leaving the case to. the jury.” Ruger, Ch. J., in Dwight v. Ins. Co., 103 N. Y., 341, 359 ; 3 N. Y. State Rep., 115

A refusal to nonsuit, in a case where a nonsuit would be proper, is error requiring a reversal. Wendell v. R. R. Co., 91 N. Y., 420, 429 ; Lomer v. Meeker, 25 id., 361.

We are of opinion that, from these principles, the dismissal of the complaint was a necessary corollary.

Assuming the negligence of the defendants, as charged in the complaint, the burden was still upon the plaintiff to prove that the negligence was the cause of the injury to her intestate; in other words, that the fall'of the intestate was due, as alleged, to “the uns'afeness, defectiveness and insecurity of said car or cage.” But the manner arid occasion of his leaving the cage are not apparent on the evidence. No witness saw his exit from the cage; no witness testifies how he came to fall from the cage; no witness says he fell through the space left by the absence of the rail.» It is evident enough that he might have fallen from the cage otherwise than through that space; thus, he might as well have fallen over the top rail as have slipped under it. Nothing in the case points to the latter, rather to the former alternative. Had the jury found that the intestate fell through the interval left by the removal of the rail, the finding would have been, not a legitimate inference from the circumstances, but a surmise or conjecture of a fact utterly without evidence. But “ the law demands proof, and not mere surmises.” Bond v. Smith, 113 N. Y., 378, 385 ; 22 N. Y. State Rep., 666 ; Riordan v. S. S. Co., 36 N. Y. State Rep., 476. u These are mere conjectures, without any basis in the evidence to support them.” Reynolds v. R. R. Co., 58 N. Y., 248, 252.

“ It was for the plaintiff to show how the accident occurred, and to prove negligence of the defendants in respect to some matter that caused it." Dobbins v. Brown, 119 N. Y., 188 ; 28 N. Y. State Rep., 666. If the evidence be equivocal, and point equally to another fact and the fact in controversy, the proof is insufficient to establish the latter. Cordell v. R. R. Co., 75 N. Y., 330. “When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale.” Erle, C. J., Cotton v. Wood, 8 C. B., N. S., 568.

“ The burden of proof is on him who complains of negligence. He must not only show that he suffered harm in such a manner that it might be caused by the defendant’s negligence; he must show that it was so earned.” Pollock on Torts, 360 marg.; Hayes v. R. R. Co., 97 N. Y., 259 ; Baulec v. R. R. Co., 59 id., 357 ; Searles v. R. R. Co., 101 id., 662 ; Ryan v. R. R. Co., 121 id., 126, 135 ; 30 N. Y. State Rep., 624, Taylor v. Yonkers, 105 N. Y., 203, 209 ; 7 N. Y. State Rep., 332 ; Kaveny v. Troy, 108 N. Y., 571, 577 ; 14 N. Y. State Rep., 18.

If the plaintiff failed to furnish sufficient evidence of the fact that the defendants’ negligence caused the injury to her intestate, her case is still more defective in the other essential particular, namely, proof that no negligence of his own contributed to his injury. “It belongs to the definition of the cause of an action that the injury must have been occasioned solely by the negligence of the defendant; and either by direct proof given by the plaintiff, or from the circumstances attending the injury, the jury must be authorized to find affirmatively that the person injured was free from fault that contributed to the accident, or the action is not maintained. If this element is wanting in the case, the court may nonsuit or set aside a verdict for the plaintiff. Reynolds v. R. R. Co., 58 N. Y., 248, 250.

Of direct evidence of the absence of contributory negligence the plaintiff’s case is totally destitute; and not a single circumstance is shown that suggests a presumption of the fact Whatever may have been the rule in former times, it is not now the law that the instinct of self-preservation authorizes an inference of due care to avoid an impending peril. “ The presumption that every person will take. care of himself from regard to his own life and safety cannot take the place of proof.” Cordell v. R. R. Co., 75 N. Y., 330 ; Riordan v. S. S. Co., 36 N. Y. State Rep., 476, 478 (court of appeals, March, 1891). Assuming that plaintiff’s intestate fell through the interval left by the removal of the rail, it is still not apparent but that he negligently so fell. Formerly the cage had no guards, and the missing rail had been out for three weeks or a month; yet it is not shown that any one had before fallen from the cage, a fact affording demonstrative proof that a fall from the cage was not the necessary consequence of the absence of the rail. To infer, therefore, that the intestate did not fall through his own negligence would be a wholly gratuitous assumption. Quite decisive of the proposition are Bond v. Smith, 113 N. Y., 378, 22 N. Y. State Rep., 666 ; Hoag v. R. R. Co., 111 N. Y., 199 ; 19 N. Y. State Rep., 80 ; Cordell v. R. R. Co., 75 id., 330 ; Reynolds v. R. R. Co., 58 id., 248 ; Riordan v. S. S. Co., 36 N. Y. State Rep., 476.

“ It is not enough to prove facts from which either the conclusion of the presence or absence of negligence may with equal fairness be drawn; but the burden is upon the plaintiff to satisfy the jury that there was no contributory negligence on the part of the deceased.” Hart v. Bridge Co., 84 N. Y., 57 ; Hale v. Smith, 78 id., 480 ; Muhr v. Mayor, 15 Daly, 12, 16 N. Y State Rep., 668; Tolman v R R Co., 98 N. Y., 198.

It results, that the exceptions are overruled and motion for a new trial denied, and judgment directed for the defendants.

Daly, Ch. J., and Bischoff, J., concur.


text:
    Virginia W. Baldwin, Resp’t, v. Wilhelmina A. Thibaudeau, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Appeal—Practice—Amending return.
    Where it is manifest from the return of a case on appeal that the time of rendering judgment was erroneously stated, it appearing to be before the return date of the summons, and the parties fail to amend it by stipulation the court will order it amended of its own motion.
    Appeal from district court by defendant.

      Winthrop & Parker, for app’lt; S. F. Higgins, for resp’t
   Per Curiam.

—It is manifest from the return in this case that the time of rendering judgment in this action is erroneously stated, as it appears to be before the return date of the summons. This, date being material, and the parties having failed to amend the return by stipulation, the court of its own motion orders the return to be sent back to the justice who tried the case, for amendment, and orders a reargument of this cause to be had at the next additional general term. The appellant’s attorney to enter the order and procure the amendment

Bookstaver and Bischoff, JJ., concur.


text:
    Alfred Schrimpton et al., Resp’ts, v. Samuel Schener et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Vendor and purchaser—Sale by sample—Evidence.
    Upon the trial of an action to recover purchase price of goods sold on sample, as defective, there was a conflict of evidence as to how the defective goods were to he returned. Held, that there being abundant evidence to sustain the finding of the justice this court would not disturb the judgment on that account.
    Appeal from a judgment rendered in the district court of the city of New York, for the seventh judicial district.

      George C. Coffin, for resp’ts; Lyman Rindskopf, for app’lts.
   Per Curiam.

—The appellants’ counsel is mistaken in supposing the sale of the 400 gross of needle cases in controversy was not by sample. The contract itself expressly says that the sale was by sample, and the case shows that after the delivery of the first lot of goods under the contract, immediately upon the discovery that some of them were defective, the defective ones were returned to the defendants.

The plaintiffs’ case contains testimony tending to show that there was then an agreement made by which the plaintiffs were to return the defective goods altogether, and after the entire order had been filled, and not in small lots as the defects were discovered. It is true this is contradicted by the defendants, but on this point there is conflict of evidence, which it was peculiarly the province of the trial justice to determine, and there being abundant evidence to sustain his finding this court will not disturb the judgment on that account. And the same is true of all the other questions raised by this appeal.

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

Bookstaver and Bischoff, JJ., concur.


author: Bookstaver, J.

text:
    Samuel D. Levy, Resp’t, v. Jacob Backer et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Res adjudicata—Pendency of another action not a bar.
    In an action brought to recover money alleged to have been laid out and expended at request of defendants, the latter offered in evidence a judgment roll in an action in the district court as being obtained for the same cause of action, but expressly said that they did not offer the judgment rendered in that action in evidence. Held, that it was no bar to this action, as they merely showed that there was an action pending, and did not show that there had been a judgment rendered in that action
    2. Same.
    The former action was originally brought for $250, and the complaint stated it was for an account stated, services rendered. Held, that this did not necessarily include moneys advanced, for which cause this action was brought; and as it was a mixed question of law and fact as to whether the claim for moneys was litigated, and there was sufficient evidence to sustain the finding oí the justice that it was not, this court will not disturb the finding of the court below.
    Appeal from a judgment rendered in the district court of the city of New York for the fifth judicial district

      Samuel D. Levy, resp’t in person, Sidney H. Stuart, for app’lts.
   Bookstaver, J.

—This action was brought by the plaintiff to recover the sum of $99.99, money alleged to have been laid out and expended at the request of appellants. The answer, among other defenses, interposed as a bar an alleged judgment obtained by the plaintiff against the defendants in the fifth district court, for the same cause of action for $117.49 on the 13th July, 1887, which had been paid. On the trial it appeared that the plaintiff, an attorney, had been employed by the defendants in February, 1887, to search the title to premises 247 Second street in this city. The plaintiff testified that at the time there was nothing said as to the amount of compensation for his services,, that he did the work, made out the original searches, sent in requisitions, etc., and passed the title; he also testified that, while engaged in searching, lie advanced the money necessary to pay for those searches, upon the distinct and separate understanding that they should be repaid to him at once. The defendants, on- the trial of this action, offered in evidence the judgment roll in the first action, but expressly said that they did not offer the judgment rendered in that action in evidence; consequently they failed to show anything more than that there was an action pending, and did not show that there had been a judgment rendered in that action, which would not prevent the trial of this action,, or the rendering of a judgment therein. In other words, the mere pendency of one action is not a bar to the commencement and prosecution to judgment of another.

But if the judgment in that action had been introduced in evidence, it would not have been a bar to this, because, upon the trial of the action, the plaintiff expressly testified that the bill for moneys advanced for the defendants was not included in that action. It is true it was originally brought for the sum of $250, and the complaint states it was for an account stated, services rendered : this did not necessarily include moneys advanced. It also appeared on the trial of that action that two separate bills, one for services and the other for moneys expended, were rendered the plaintiff. It was in dispute whether these bills were upon one paper or not, and whether or not both were included in that action was one of the questions litigated upon this trial. It was a mixed question of law and fact whether the claim for moneys expended was litigated in the first action, and thus was a bar to this,, or not. There is quite sufficient evidence to sustain the finding of the justice, that the bill for moneys advanced was not included in that action, and consequently he was right in the conclusion of law that the former action was not a bar to this, and under the circumstances, we will not disturb the finding of the court below.

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

• Bischoff, J., concurs.


author: Daly, Ch. J.

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

      (New fork Common Pleas, General Term,

      Filed June 1, 1891.)

    Brokers—Commission—When sale made by other brokers.
    In an action brought by a real estate broker to recover commissions in effecting a sale, the defendant may show that he employed other biokers, and that they obtained an offer for the premises which defendant had accepted before plaintiff produced Ms customer.

      Appeal from judgment entered on a verdict of a jury at a trial term of the city court, and order denying motion for new trial, affirmed by the general term of the city court.

      Smith Tuttle, for app’lt; J. Grant Mitchell, for resp’t.
   Daly, Ch. J.

—The action was brought to recover commissions as real estate broker, the plaintiff claiming that he was employed by the defendant to sell certain premises at the price of $13,000, and that he produced to defendant a purchaser at that price. The defense was a denial of the alleged employment and an averment that defendant had previously placed the property in the hands of his brokers for sale, and that they had obtained an offer for the premises at $13,150, which he had accepted before the plaintiff produced his customer.

Upon the trial the court excluded evidence of the employment by defendant of other brokers, and that before the plaintiff introduced the purchaser he had procured, such other brokers had obtained the refusal of the property from defendant and effected a sale, which was subsequently consummated. This was error, and the exceptions taken by the defendant to the rulings of the court require a reversal. “ The employment of a broker does not preclude the owner from making any efforts to sell, or from receiving offers and closing a sale to a purchaser not procured by the broker; and if he make such a sale without having in any manner availed himself of the efforts of the broker, he will not be liable for commissions.” Chilton v. Butler, 1 E. D. Smith., 150. The case of Jarvis v. Schaefer, 105 N. Y., 289, 7 N. Y. State Rep., 502, cited in the opinion of the trial court as authority against the defendant, holds no more than that the payment of commissions to another broker does not impair the rights of one who was the procuring cause of the sale for which commissions were claimed.

A new trial must be had and the facts will disclose whether the defendant was committed to a sale made through another broker before the plaintiff produced his customer;

Judgment and order reversed and a new trial ordered, with ■costs to abide event.

Bischoff and Pryor, JJ., concur.
      ■Reversing 34 N. Y. State Rep., 688.


text:
    John H. Byron, Resp’t, v. Edward T. Bell et at., Adm’rs, App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    Appeal—Evidence—Review.
    Where a case is referred to a jury on evidence ample to sustain plaintiff’s contention, and by a charge free from just exception, the verdict will not be disturbed on appeal.
    Appeal from judgment on verdict of a jury at a trial term, and from order denying motion for new trial. Action on contract to recover for work in the construction of a railroad.

      W. J. Groo, for app’lts; L. Laflin Kellogg, for resp’t
   Per Curiam.

—The engineer’s certificate was a condition precedent to the plaintiff’s right of recovery, and the principal questions litigated were whether demand was made for the certificate and whether it was unreasonably withheld or delayed. " The affirmative of these questions was supported by sufficient evidence; they were submitted to the jury upon a charge clear, full and far beyond criticism; and nothing appears.in the case to justify us in disturbing the verdict.

And so as to the minor issues. They, too, were referred to the jury on evidence ample to sustain the plaintiff’s contention, and by a charge free from just exception.

On examination we find none of the alleged errors in law well imputed or maintained by reasoning cogent enough to require refutation.

Upon a careful review of the case we are satisfied with the verdict and with the conduct of the trial by the learned judge.

.Judgment and order affirmed, with costs.

Bischoff and Pryor, JJ. concur.


author: Dwight, P. J.

text:
    Sylvester Trimmer, App’lt, v. George T. Fish et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891 )

    , Mortgage—Foreclosure—Rights of purchaser—Agreement.
    In an action on two promissory notes, made by defendant F., and endorsed by his wife, and delivered to one L., who assigned them to plaintiff after maturity, no denial of the facts, but a counterclaim was set up, alleging that at the time the notes were given, premises belonging to Mr. F. had been advertised for sale under foreclosure of a $3,000 mortgage; that there was a second mortgage of $240 on the premises; that the second of the notes in suit was given for an indebtedness of defendant F., for which she was not liable; that to induce her to endorse this note, and to induce F. to produce the endorsement, L., assignor of plaintiff, agreed with the defendants that he would buy the said premises at the foreclosure sale, and procure a loan thereon of the amount which it would be necessary to use in payment of the purchase price, the second mortgage, and the two notes, and then convey the same to the defendants and take from ■ them a second mortgage for the balance, if any, over and above said loan; that, relying upon such agreement, defendant F. procured and Mrs. F. made the endorsement of the second note, and permitted L. to purchase the premises, which he did, but refused to convey to defendants; that it was worth more than the amount given by L. The defendant F. testified to conversations with L., during which the alleged agreement was made. He was partially corroborated by his wife, but contradicted by L. and a witness who was present when the notes were made and endorsed. Evidence was also given, and not contradicted, that F., not relying upon the agreement, personally forbade L. to bid at the sale. Held, that the counterclaim was not clearly established by the evidence, and that a motion for a new trial should be granted.
    Appeal by plaintiff from a judgment of the county court of Monroe county entered on the verdict of a jury, and from an order denying plaintiff’s motion for a new trial on the minutes of the court.

      Mr. Turk, for app’lt; D. N. Salisbury, for resp’ts.
   Dwight, P. J.

—The action was against the defendant, George T. Fish, as maker, and the defendant, E. Louisa Fish, as endorser of two promissory notes, one for $190.93 and one for $108.50, made, endorsed and delivered to one Arthur W. Lawton, and by him transferred to the plaintiff after maturity. . There was no denial of the facts establishing the plaintiff’s cause of action, but an affirmative defense, denominated a counterclaim, was interposed first by the joint answer of the two defendants and afterwards by the separate amended answer of the defendant, Mrs. Fish. Those answers contained allegations to the effect that at the time the two notes were so made and endorsed, Mrs. Fish was the owner of an equity of redemption in certain real estate in the city of Bochester; that prior to that time a judgment had been obtained by one Holden foreclosing a certain mortgage on such real estate for $3,000 and interest, and that the premises had been advertised to be sold, on such judgment, on the day after the notes were delivered; that at the same time there was a second mortgage on the premises outstanding and due, given by the defendant, Mrs. Fish, to one Charles F. Lawton, for $240 and interest; that the second of the notes in suit was given for an indebtedness of the defendant, George T. Fish, but for which the defendant, Mrs. Fish, was not liable; that to induce the defendant, Mrs. Fish, to endorse the second note, and to induce the defendant, George T. Fish, to procure her endorsement", “ the said A. W. Lawton undertook and agreed with the defendants herein that upon such sale of said premises under the judgment so advertised to take place he would buy the same and thereafter procure a loan thereon of funds which it would be necessary, in whole or in part, to use in payment of the amount of the purchase price thereof, and the said mortgage of $240, and the said two notes, and then convey the same to these defendants, and take from them a second mortgage upon the same for the balance, if any, over and above the said loan so to be procured, remaining unpaid upon the said mortgage for $240 and the said two notes; ” that relying upon such agreement the defendant George T. Fish procured and the defendant Mrs. Fish made the endorsement of the second note; that on the sale, as so advertised, A. W. Lawton bid off the property for the sum of $3,700; that the defendant George T. Fish .was present at the sale, but “ relying upon the agreement by Law-ton refrained from bidding thereon, and permitted the said Lawton to purchase the said premises.” The answers further allege that after bidding off the property as aforesaid, A. W. Lawton directed the conveyance of the same to be made to one A. L. Lawton, his brother; that A. W. Lawton has never conveyed the premises, nor caused them to be conveyed to the defendants, but has always neglected and refused so to do upon request. There is also the allegation that at the time of the sale the premises were worth more than the amount for which the same were sold on the foreclosure sale, and the amount due on the mortgage to Charles F. Lawton and upon the two notes.

There was no other allegation of damage sustained by the defendants by reason of the breach of the agreement of Lawton, but the case was tried without objection, upon the theory that a counterclaim in behalf of both defendants had been pleaded, and it was submitted to the jury upon the single question whether the agreement alleged in the complaint was established by the evidence.

On that question we think the verdict was clearly against the weight of the evidence, and that the motion for a new trial ought to have been granted. The defense was strictly affirmative, and the burden of proof was on the defendants. The strength of their case is in the testimony of the defendant George T. Fish, which is as follows: I had a conversation with Arthur W Law-ton ; I think it was on the street, but I am not positive; lie • wanted the endorsement of my wife, and also her mother; I told him I could, not give the endorsement of her mother; that she-was not well, and I would not ask it of her; he said he would do as he talked; He would attend the sale and bid in the property and give us a chance to pay off; and I told him that perhaps Mrs. Fish would endorse it, but I would not ask her mother to, and he said, ‘ very well, let her endorse it,’ and he would do as we had talked.

“ Previous to this time we had talked several times in reference to the sale of this property, which was advertised to take place January 22d. He said he would help us out on that; he said he had some money in the bank, several hundred dollars, and would save some for that purpose; I told him that if he would do that and bid it in, I would include the whole indebtedness to himself and his brother; that his brbther had a claim of about $100,1 thought, a balance on an old note; that he could put that in, and also the second mortgage which was given to another brother, Charles F. Lawton, and he said he would take a second mortgage for the whole indebtedness; he would get the first mortgage for what he could, and would put in some money, if necessary, and take a second mortgage, and give us an opportunity to pay for it That was the conversation to which he referred on this day in question.”

This evidence, at the best, but sparingly supports the allegation of an agreement on the part of Lawton to purchase the property on the foreclosure sale, to raise money sufficient, if possible, to pay the purchase price and the second mortgage held by Charles Lawton, and the amount of the two notes by a loan secured by a new first mortgage on the premises, and then to convey to the defendants upon being reimbursed, or secured by a new second mortgage on the same premises, for the amount by which the sum of those payments to be made by him should exceed the amount of the loan he might obtain on the premises; and all this in consideration, merely, that Fish should procure his wife’s endorsement, on the second of the two notes for $108.50. The testimony of Fish is but partially corroborated by that of his wife, the other-defendant, and it is directly contradicted in all its parts by that of Lawton, which is corroborated by that of his brother, A. L. Law-ton, who testifies that be was present at the time the endorsement of Mrs. Fish to the second note was procured, and to the agreement under which it was done.

But aside from the direct evidence on the question in dispute, and of which it cannot fairly be said that the preponderance is in. favor of the defendants, the circumstantial evidence to the contrary is very strong. It is highly improbable that Lawton, upon the sole consideration of obtaining the endorsement of Mrs. Fish to a note of $108, would have made the agreement alleged. It involved the giving of his personal bond secured by a mortgage on the premises to be purchased, for an amount sufficient to pay the purchase price, whatever that might be, even to the full value of the property, and the second mortgage of $240, and the amount of the two notes; or if he should be unable to obtain a loan to that extent on the property, he must advance the money required and depend tipon the second mortgage on the same property for its reimbursement. And the noticeable thing about the arrangement is that in no event was he to realize any profit whatever from the transaction. All that he could hope for was to secure the payment of his two notes, for the larger of which Mrs. Fish was already liable and if any gain was to result it would be the defendants, and not his.

Moreover, the conduct of the defendant Fish, at the sale, was entirely inconsistent with the theory of the defense as to the agreement of Lawton. The uncontradicted evidence is that at the sale, so far from relying upon Lawton to purchase the property, Fish was there attempting to prevent the sale; he read a paper which declared that the sale was irregular, and warned all persons against bidding; and he personally forbade Lawton to bid on the property.

The affirmative defense alleged and relied upon was clearly not established by the evidence on the trial, and the motion for a new trial should have been granted.

Macomber, J., concurs.

Judgment and order appealed from reversed and a new trial granted, with costs to abide the event.


text:
    Charles W. Kerner, Resp’t, v. Charles H. Boardman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Conversion—Pleading—Allegation of possession.
    The allegation in a complaint for conversion that “the defendant wrongfully took into his possession property of which the plaintiff was the owner,” is in substantial conformity with the requirement of good pleading that there must be an allegation of possession in the plaintiff.
    3. Same.
    Plaintiff paid for the teas in question and received a bill of sale, and at the same time a warehouse receipt for them, to the order of plaintiff, was given to him, and they so remained on storage until the seizure of them by the sheriff under a claim that plaintiff’s vendor had obtained them frorn defendant Boardman by fraud. Held, that there was a sufficient acquisition and retention by plaintiff to satisfy the statute.
    Appeal from judgment on verdict and from order denying new trial.
    Action, trover for conversion of a parcel of teas. Plaintiff bought the teas of Payne & Storm in good faith and for value paid. Upon an allegation that Payne & Storm had got the teas from him by fraud, defendant'Boardman brought replevin against Johnson, assignee for creditors of Payne & Storm, and under process the sheriff took possession of the teas. Kerner, plaintiff herein, made affidavit of claim to the teas, pursuant to | 1709 of the Code; and, having been indemnified by Boardman, the sheriff delivered the teas to him. Kerner sued the sheriff pursuant to § 1710 of the Code, and by order duly entered under § 1711, the indemnitors were substituted as defendants instead of the sheriff;

      Wm. S. Beaman, for app’lts; Marbury & Fox, for resp’t.
   Pryor, J.

—The validity of the judgment is impugned upon three grounds; but a slight discussion suffices to show that neither objection is tenable.

In the first place, the appellant challenges the sufficiency of the complaint, because it omits to allege a right of possession in the plaintiff. True it is, that to recover in trover actual possession or a right of possession is indispensable. Clement v. Yturria, 81 N. Y., 290. But the gist of the action is injury to the property, as in trespass the gist of the action is injury to the possession. Hence, in trover an averment of property is necessary ; but as possession is prima facie evidence of property, it results that the evidence in the two actions is commonly identical, namely, proof of possession rightful as against the defendant. And, as the fact of possession imports a right of pioperty, so, conversely, the right of property imports the right of possession. “ The right of property draws to it the right of possession.” 2 Grreenl. on Ev., 614; 7 Lawson’s Eights, Eemedies, etc., § 3664.

In trover, therefore, an allegation of property in the plaintiff involves an allegation of the right of possession, and proof of title suffices as proof of possession until the presumption is overcome by contrary evidence. Hence, the allegation in the complaint that “ the defendant wrongfully took into his possession property of which the plaintiff was the owner,” although not artistic in form," is in substantial conformity with the requirement of good pleading. “ It is necessary in an action for conversion that the plaintiff should show by his complaint, title to the property alleged to be converted, or his right to the possession thereof. Either of these is sufficient to entitle him to maintain the action. ” Berney v. Drexel, 33 Hun, 34, 35 ; Dodds v. Johnson, 3 T. & C ; 215 ; Malcolm v. O'Reilly, 46 Super., 222 ; Heine v. Anderson, 2 Duer, 318 ; Davis v. Morrell, 16 W. Dig., 530 ; Baylies on Code Pleading, § 30 ; Moak’s Van Santvoord, 275 (marginal).

Hext, the appellants contend that, as against Boardman, a creditor of Payne & Storm, the vendors, there was not an actual and continued change of possession in favor of Kerner, the vendee. But, it appears without contradiction that simultaneously with the payment and bill of sale for the teas, a warehouse receipt for them to the order of Kerner, was given to him, and that they so remained on storage until the seizure of them by the sheriff. Obviously and indisputably here was a sufficient acquisition and retention of possession by Kerner, the plaintiff, to satisfy the statute.

Finally, the indemnitors appellants contend that no cause of action was established against them. But a complete right of re-

covery against the sheriff was shown, and that was enough to authorize a recovery against the indemnitors. Pool v. Ellison, 9 N. Y. Supp., 171, 30 N. Y. State Rep., 315 ; Goodman v. Goetz, Gen. Term, Com. Pleas, February, 1891; 36 N. Y. State Rep., 731 ; Hess v. Hess, 117 N. Y., 308; 27 N. Y. State Rep., 346.

Judgment affirmed, with costs.

Allen, P. J., Bischoff and Pbyob, JJ., concur.


author: Daly, Ch, J.

text:
    Angelo Garoni, an Infant, etc., Resp’t, v. The Compagnie Nationale De Navigation of Marseilles, App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Negligence—Evidence—Infant, liability of.
    Plaintiff, a boy over seven years was on board an ocean steamship with his mother, father and sisters, who were steerage passengers. The captain ordered a general vaccination of the passengers, and while they were assembled the boy, attempting to follow his father who had gone for a drink of water, was crowded by the other passengers against an exposed rudder cuain and his foot crushed so that it had to be amputated. Held, that the evidence was sufficient to justify the jury in finding that plaintiff was not on the dock unattended, and that his parents exercised ordinary care for his safety.
    2. Same.
    The jury was the judge as to whether the act was heedless or not in a child of the plaintiff’s age, as also the question as to the negligence of the defendant in leaving the rudder chain exposed in such a place, under the evidence given regarding it.
    3. Damages—Excessive.
    The child, seven years old, was maimed for life, and $10,000 was not an excessive amount for the jury to award.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury for $10,000 damages for personal injuries; and from an order denying a motion for a new trial.

      H. C. Henderson, for app’lt; Thomas A. Bassford, for resp’t.
   Daly, Ch, J.

—The infant plaintiff, Angelo Garoni, aged over seven years, with his father, mother, brother and two sisters, was a steerage passenger on the defendant’s steamship “ Cachemere ” from Naples to New York. There were over one thousand passengers on the ship, which was a new one, making her second voyage. When the vessel was three or four days out from Naples, the captain ordered a general vaccination of the passengers, who were thereupon assembled upon the deck in the stern of the vessel, and were required to go up, one or two at a time, to the bridge, by the starboard gangway and down on the port side. The Garoni family were on the port side; the mother was ill; the oldest daughter, a girl fifteen years of age, held the plaintiff by the hand as she sat beside her mother; the plaintiff wanted a drink of water; his father went to get it; the plaintiff let go his sister’s hand and attempted to follow his father; he was crowded by his fellow passengers against the rudder chain, which ran exposed along the deck just inside the bulwarks; he placed his foot upon the chain, which drew it into an iron sheave or block through which the chain ran, crushing the foot The plaintiff screamed, and the doctor, who was vaccinating, came to his assistance and attempted to extricate him. At this juncture, a sailor named Privat, who was stationed at the ladder near by, gave, by mistake, an order to starboard the wheel, which caused the chain with the child’s leg to be drawn still further through the block up to the middle of the thigh, the doctor’s hand being also caught and injured. The captain then gave orders to have the movement of the chain reversed, and the boy’s leg was released. The injury required amputation of the leg at the thigh, which was performed.

The foregoing is the version of the accident given by the plaintiff’s witnesses. The defendant introduced evidence to show that there was no crowd at the place where the child was hurt; that he was entirely álone ; that he placed his foot upon the chain and that the accident occurred at a place where passengers were not allowed to go.

The court charged the jury that if they found from the evidence that the plaintiff was allowed by his parents to be upon the deck ■of the vessel unattended by anyone to protect him, they were thereby guilty of negligence; and that the plaintiff was chargeable with the negligence of his parents, if there was such negligence, in permitting him to be unattended on the deck of the vessel; and that if the plaintiff failed to establish bis own freedom from fault, he was not entitled to a verdict

The finding of the jury in plaintiff’s favor established that he was not on the deck unattended; and, under the additional charge that to constitute negligence in the parent there must be an omission of such reasonable care as persons of ordinary prudence would exercise and deem adequate for the purpose under the circumstances of the case, the finding of the jury also established that the parents, on this occasion, exercised ordinary care. The evidence in the case is sufficient to sustain both of these findings.

The court refused to charge, at defendant’s request, that if the jury find from the evidence that the accident was caused by the child placing his foot upon the chain and that he was not pushed upon the chain by any crowd, his negligence was such that he could not recover.

This request, based .upon the act of the infant himself, assumed that he was sui juris, for it sought to hold him responsible, not for his parents’ carelessness, but for his own. To charge this request would have withdrawn from the jury the question as to whether the child, if sui juris, had exercised such care as was reasonably to be expected from a child of his age. Of this the jury, under the instructions of the court, were to judge; and taking all the circumstances of the case into consideration, the crowded emigrant ship, the exposed chain,' the natural propensities of a child of the plaintiff’s age, the absence of apparent danger and of any warning, it was a fair question for the jury whether the plaintiff was negligent in putting his foot upon the chain, even if he did so in play. The jury was the judge as to whether the act was heedless or not in a child of the plaintiff’s age. That question was fairly submitted under the general instructions upon the law if the jury found that the plaintiff was capable of exercising discretion or judgment.

The court charged, at the plaintiff’s request, that if the jury found from the evidence that it was negligence on the part of the defendant to leave the steering chain exposed, the fact that plaintiff was crowded against the chain by his fellow passengers, does not constitute a defense to such negligence. The defendant excepted to the charge, and claims that it took away from the jury the consideration of the question as to how the child came to be in a position where he could be crowded upon the chain. The instructions must be taken with all the prior instructions on this point, as to the duty of the parents to use reasonable care and not to leave the plaintiff at the mercy of the crowd, and the duty of the plaintiff himself to exercise care proportioned to the circumstences and to his tender years. The charge excepted to, therefore, worked no harm to the defendant.

The fact that the child was in such a position that he could be crowded or pushed against the chain was not, as defendant claims, conclusive evidence that either he or his parents were negligent. The parents of a child are not bound to such care as shall make it impossible for the infant to stray into danger.

In the case of Fallon v. C. P. N. & E. R. R. Co., 6 Daly, 8, where a child aged five years and three months, which had never been known to go into the street alone, after playing" in the yard of defendant with other children, came into the house for a drink of milk which its mother gave it, and while she went into an adjoining room to change her dress, the child, without her knowledge, left the room and, descending the stairs, went into the street through the open street door and was run over by a passing railroad oar, we held that whether there was negligence in the matter which could be imputed to the child, was a question properly submitted to the jury, and, in affirming this decision, the court of appeals held that the evidence did not establish con- . tributary negligence as matter of law, but that it was a question of fact, and properly submitted to the jury. Id., 64 N. Y., 13.

The question of the negligence of the defendant in leaving the rudder chain exposed in a place on the deck where a child either running about in play, or jostled by the crowd, could get his foot upon it so that that member could be drawn into the sheave or block with a certainty of serious injury, was left to the jury upon proper instructions and upon evidence which justified a finding that there was negligence. Mr. Rowland, a shipbuilder since 1846, engaged in the building and equipping of passenger steamships, connected for the last nineteen years with the firm of John Roach •& Sons, testified that this construction of the steering gear or chain was very unsafe, that it should be covered, that it is not necessary that the chain should be exposed for the proper steering or handling of the ship, that in American ships where the chain is on deck, it is covered with a grating, that in all ships now built it is boxed in or so covered, and that he never in his life saw one exposed like this, and that it is most dangerous and a regular man trap.

On the part of the defendant four witnesses were called, who testified that the construction was the usual one and was proper. One of these witnesses was a mechanical engineer and shipbuilder, one a consulting engineer, and two were inspectors for marine insurance. The effect of this testimony was to raise a question of fact which it was the province of the jury to determine. The defendant claimed that nothing could be required of a steamship company except the usual construction of vessels of the class to which she belonged; that the plaintiff had no right to require any protection that was unusual or which belonged to a different class of vessels; to quote from -the brief, “As well might a second-class-passenger expect first-class accommodation. ”

Ho authority is cited for the proposition that carriers of emigrants are bound to a less degree of care than carriers of passengers generally. The rule is, that the law imposes upon carriers of passengers the highest degree of practicable care, and no distinction has ever been made between carriers of particular classes of passengers. Hence, the exceptions of the defendant to those portions of the charge which stated the general rule and the refusal to charge that the measure of defendant’s duty was reasonable prudence and care only,point out no error.

The court charged that the law imposed upon carriers of passengers the highest degree of practicable care and the use of the best appliances and apparatus which are known and in use. The defendant claims that this rule has reference only to those appliances of which the passenger is supposed to have no knowledge. Ho authority for this distinction is cited. At the defendant’s request the court charged the jury that “ in order to charge the defendant with negligence it must be established to the satisfaction of the jury that the defendant’s vessel was with respect to this chain, constructed in an unusual manner, and that necessary and usual precautions for the safety of passengers were omitted.” Also “ that it was not required to have such safeguards on its vessels as to prevent the pbssibility of accidents to persons incapable of taking care of themselves.” Also “ that the defendant is not an insurer of its passengers and is not bound to use precautions which are unusual and to equip its vessels so as to avoid the possibility of accident.” These instructions were most favorable to the defendant and showed the jury that nothing unreasonable was exacted by the law from carriers of passengers.

Error is alleged in permitting plaintiff’s father and mother to testify, that they had never been on board of a ship before. This had a bearing upon the question of care to be expected from the parents of the child, if any negligence on their part was to be attributed to him.

We cannot say that the verdict was against the weight of evidence, and there is nothing in the case or proceedings on the trial which would justify the court in setting the verdict aside and submitting the issues to another jury.

Nor is the verdict excessive. The child is maimed for life. The permanence of the injury is not a matter of doubt or speculation, and the damages awarded are no greater than have been given by juries in similar cases and approved by the general terms.

The judgment and order appealed from should be affirmed.

Daly, Ch. J., Biscoff and Pryor, JJ., concur.


text:
    Henry E. Hall, Resp’t, v. Julia Dennerlein, App’lt.

      (New York Common Pleas. General Term,

      Filed June 1, 1891.)

    1. Mechanic’s lien—Discharge—Laws 1885, chap. 343, § 19.
    Section 19, chap. 343, Laws 1885, providing that the owner of the property affected by a mechanic’s lien may at any time after an action is commenced offer in writing to pay into court a stated sum in discharge of the lien, must be strictly complied with. The offer must follow the language of the statute, and state that it is in “ discharge of the lien.”
    3. Same.
    The twenty-fifth section, declaring the act to be remedial and requiring a liberal construction, refers to those provisions enacted for the benefit of the lienor.
    3. Same-Costs.
    Where an offer made under § 19, of chap. 343, Laws 1885, is defective, the plaintiff is entitled to his costs of the action, the same as if no offer had been made.
    Appeal from judgment of special term.

      H. C. Henderson, for app’lt; Thomas A. Bassford, for resp’t.
   Daly, Ch. J.

—There are two appeals in this action, which was brought to foreclosure a mechanic’s lien for $325.97, filed by the plaintiff against the property of the defendant. The action was referred. Before the trial the defendant served a written offer to pay into court the sum of $232.47, with interest from October 1, 1888. The offer was not accepted. The referee found the sum of $224.25, with interest from October 1, 1888, due the plaintiff. Judgment, therefor, with $315 costs and disbursements was entered in plaintiff’s favor. Defendant moved, upon his offer, to strike out the allowance of costs in the judgment, which motion was denied. Defendant appeals from the judgment and also from the order denying his motion.

The appeal from the judgment is upon the ground that the referee failed to allow the defendant, for certain omissions in the plaintiff’s work, the full amount which, it is claimed, the undisputed testimony shows should have been made. No exceptions have been filed to the findings of the referee; there were no requests to find and there is no certificate that the case contains all the evidence taken on the trial. We cannot, therefore, review the questions of fact sought to be argued by the appellant. We have not the power to do so. Travis v. Travis, 122 N. Y., 449 ; 34 N. Y. State Rep., 42 ; Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. N. Y. State Rep., 479.

The main reliance of the appellant is upon his appeal from the order denying his motion to strike out the allowance of costs, •upon the ground that the plaintiff failed to recover a more favorable judgment than the defendant’s offer.

By § 19, of the mechanics lien act (chap. 342, Laws 1885), the owner of the property affected may at any time after an action is commenced, offer in writing to pay into court a stated sum in discharge of the lien or liens. If the offer /is accepted in writing ■within ten days, the court may make an order that on depositing the amount offered, with the clerk of the county, the lien or liens be discharged and the money take the place of the property upon which the lien or liens was or were created and be subject to the same. In case the offer shall not be accepted within ten days and the plaintiff fails to recover any more favorable judgment against the property, he shall pay any costs in the action incurred by the owner from the time of the offer.

This provision appears to be one exclusively for the benefit of the owner. By accepting the offer the plaintiff gains nothing; by refusing it, he becomes liable to pay costs to the owner. The provision should, therefore, be strictly construed as against the latter, and a strict compliance with the statute be required in the written offer which he makes and .through which he claims the benefit of the provision. The twenty-fifth section of the statute declaring the act to be remedial and requiring a liberal construction, refers to those provisions enacted for the benefit of the lienor, as appears by its concluding clause, “a substantial compliance with its several provisions shall be sufficient for the validity of the lien, or liens, hereinbefore provided for, and to give jurisdiction to the courts to enforce the same.”

A strict compliance with the statute requires that the written offer shall follow the language of the statute, and contains an offer to pay into court a stated amount in “ discharge of the lien.” The offer made by the owner in this case was defective in omitting the words quoted, and was ineffectual, therefore, to cast upon, the plaintiff the obligation to pay to the owner the costs of the action incurred by him from the time of the offer.

I have not failed to give due weight to the appellant’s claim that the nineteenth section of the act is intended to afford the lienor the privilege of receiving the amount offered, together with bis costs accrued to that time, and that for that reason the section is to be liberally construed; but I find no support in the statute for such contention. If the offer is accepted the court may make but one orde-r, i. e., for the discharge of the liens and the substitution of the money for the property and subjecting the money to the lien. If the statute be not mandatory, the court may,.or may not, in its discretion, make such order. It cannot make any other order, as for instance that the lien be discharged by the payment into court of any additional sum for costs and that the lienor draw the money so deposited. It is clear that he gains nothing in aid of his lien or its enforcement by this provision.

The special term properly decided that the plaintiff was entitled by reason of the defect in the offer to his costs of the action the same as if no offer under § 19 had been made.

The order appealed from must be affirmed, with ten dollars costs, together with, the disbursements. The judgment must be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    Richard Goedecke et al., Resp’ts, v. Leopold M. Schwerin et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Partnership—Liability.
    Even among partners, an agreement that one of them shall not he charged with losses resulting from bad debts and ill commodities is valid, and can be enforced.
    2. Appeal.
    Appellants cannot, for the first time on appeal, be allowed to raise obiections which could have been obviated had they been raised at the trial.
    Appeal from a judgment in favor of plaintiff, and an order denying defendants’ motion for a new trial made upon the minutes, in an action to recover a share of the profits of & joint adventure entered into between the parties to this action for the manufacture and sale of campaign buttons and badges.

      John Fennell, for resp’ts; David Tim, for app’lts.
   Bischoff, J.

—Plaintiffs, constituting the firm of Goedecke Bros., and defendants, constituting a firm doing business as the National Button Works, entered into an agreement for the manufacture and sale of campaign buttons and badges, plaintiffs to make and deliver the dies required in such manufacture, and defendants to assume the manufacture and sale.

According to plaintiffs’ version of the agreement, the defendants were to be allowed out of the gross product of sales only the cost of manufacture, and the balance was to be divided in the proportion of two-fifths to plaintiffs and three-fifths to defendants. Defendants, however, claim that they were to be allowed, in addition to the cost of manufacture the value of goods sold and re- . turned, the traveling and business expenses incurred in promoting sales, stock remaining unsold and bills remaining uncollectible.

Testimony was introduced in support of these several versions of the agreement, the plaintiff, Herman Goedecke, asserting that it was agreed that after deducting the cost of manufacture, the division of the remainder of the proceeds of sale was to be made, and defendant, Christian Kessler, insisting that there was an express understanding to reimburse the defendants for the cost of manufacture, the necessary business and traveling expenses, losses and goods returned. It was conceded on the part of the defendants that the gross sales amounted to $3,389.54, and much, if not the greater part of the evidence adduced for both sides, was directed to establish the cost of manufacture.

One of the plaintiff’s witnesses, Haas, estimated the cost at sixty-five cents per gross for the buttons and $1.35 per gross for the badges, and at these rates the cost of the goods conceded to have been made arid sold, 328 gross eight and one-half dozen buttons and 422 gross three dozen badges, would 'have been about $783. According to the testimony of the defendant Schwerin, the actual cost of manufacture was $1,492.61. Not a single exception was taken to the admission or exclusion of evidence, and the court charged the jury that they were to determine from the evidence what the terms of the agreement between the parties were, and what the items were for which defendants, pursuant to such agreement, were to be reimbursed before a division of the profits was to be made.

The jury were furthermore directed to ascertain and determine from the evidence the cost of manufacture, and to arrive at a conclusion anywhere between $783, as testified for plaintiffs, and $1,492.61, as testified for defendants, and to disallow the item of $504.75, bills uncollectible, if from the evidence they were satisfied, that the terms of the agreement between the parties did not entitle defendants to such a deduction.

No request to charge was made on behalf of defendants, nor did they except to the charge made in any manner.

The jury found for plaintiffs in $526.17, and from the special finding made as to the various items involved, it appears that they arrived at this conclusion by fixing the cost of manufacture at $950, and allowing defendants all deductions claimed by them from the gross amount of sales, except the item of $504.75, bills uncollectible.

Counsel for defendant then moved that the verdict be set aside as being against the evidence and the weight of evidence, and for a new trial upon the several grounds specified in § 999 of the Code of Civil Procedure. Both motions were denied, and the exceptions thereto present the only grounds of alleged error urged for reversal.

Neither exception is available. The verdict is in every detail consistent with the charge, and it was proper for the court to direct the jury to determine upon the conflict of evidence presented what the cost of manufacture was, accepting as the lowest estimate of the cost the amount shown by plaintiffs, and as the highest 'the amount claimed by defendants, and in the absence of an exception to the charge and a request that the jury be instructed to find the cost of manufacture either as claimed by plaintiffs or as claimed by defendants, the latter must be deemed to have acquiesced in the submission of the question of cost to the determination of the jury, and cannot now be heard to complain because their version was rejected.

The same must be said of defendants’ contention on this appeal, that the jury unauthorizedly disallowed the item of $504.61 for bills uncollectible. This was one of the items is dispute, plaintiffs claiming that from the gross amount of sales 'only the cost of manufacture was to be deducted before division, while defendants maintained that plaintiffs had agreed to an allowance also of losses resulting from uncollectible demands. This involved a disputed question of fact, and was properly submitted to the jury and determined by them.

It is, however, now claimed that the agreement between the parties to share in the profits of a joint adventure constituted them partners, and that plaintiffs were therefore chargeable in law with a proportion of the losses accruing from uncollectable demands in favor of the copartnership. The answer to this claim is that there was evidence of an express understanding that plaintiffs were to be charged only with their proportion of the cost of manufacture, thus excluding all liability for other causes, and the verdict of the jury in favor of plaintiffs on this point must be accepted as conclusive. Even among partners an agreement that one of them shall not be charged with losses resulting from bad debts and ill commodities is valid and would be enforced. The rule that all the partners must bear such losses does not prevail where the liability of one of them is limited in that respect by express agreement. Another answer is, that if defendants had desired to avail themselves of any legal obligation of the plaintiffs growing^ out of the peculiar relationship of the parties respecting their joint undertaking, the trial court should have been specifically requested to instruct the jury that the plaintiffs must be charged with their proportion of the losses sustained from bad debts. This was not done, and the defendants cannot for the first time on appeal be allowed to raise objections which could have been obviated had they been raised at the trial Cohn v. Goldman, 76 N. Y., 284 ; Mead v. Shea, 92 id., 122.

There is sufficient evidence to support the verdict, and after careful consideration we cannot say that the evidence for the defendants so preponderates in their favor as to justify us in reversing the judgment.

The judgment and order appealed from must be affirmed, with costs.

Allen, P. J., and Pryor, J., concur.


text:
    Francis J. C. Ferris, Resp’t, v. Adolph Tannebaum et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 1, 1891.)

    1. Action on undertaking—Evidence—Appeal prom order vacating ORIGINAL ORDER OP ARREST—UNDERTAKING GIVEN ON APPEAL APTER SERVICE OP ANSWER IN ACTION AGAINST SURETIES MUST BE PLEADED BY SUPPLEMENTAL ANSWER.
    On the trial of an action brought against defendants to enforce their liability as sureties on two undertakings executed by them upon the granting of orders of arrest against plaintiff in two actions brought against him in this court, the judge, after admitting in evidence a notice of appeal to the court of appeals, in the original action, from the orders of the general term vacating the arrest, which notice had been served before the answer in this action, excluded evidence of the undertaking on appeal, executed after the answer, on the ground that it should have been pleaded by supplemental answer. Held, no error.
    2. Same—Appeal.
    An appeal to the court of appeals from an order, as from a judgment, until undertaking given is a mere nullity and is ineffectual to affect the finality of the decision from which the appeal is taken.
    Appeal from a judgment, a trial by the court, in an action against sureties upon an undertaking on arrest given pursuant to § 559, Code of Civil Procedure.

      Answer, that the defendants .had duly appealed to the court of appeals from the order vacating the order of arrest, and that so the action was premature. A motion to vacate the orders of arrest was denied at special term, but on appeal to the general term the orders of the special term were reversed, and the orders of arrest vacated. The orders of the general term vacating the orders of arrest, were entered the 2d of April, 1889. This action was commenced the 4th of April, 1889. On the 29th of May, 1889, the defendants appealed to the court of appeals from the orders of the general term, but no undertaking on appeal was given until the 8th of December, 1890.
    The answer was served the 6th of August, 1889. The action was tried the 21st January, 1891. The orders of the general term were affirmed by the court of appeals the 20th January, 1891.

      Franklin Bien, for app'lts ; Andrew Gilhooly, for resp’t.
   Pryor, J.

—On the trial the learned judge, after admitting in evidence the notice of appeal to the court of appeals, served before the answer, excluded evidence of the undertaking on appeal, executed after the answer, on the ground that it should have been pleaded by supplemental answer; and then,, because the defendants had failed to prove a supersedeas by the pendency of an appeal, the court gave judgment for the plaintiff. Whether those rulings were correct, is the only question for adjudication.

The conduct of the court in receiving evidence of the notice of appeal and rejecting evidence of the undertaking on appeal, is criticised for inconsistency; but there is obviously no inconsistency in admitting matter occurring before answer, and excluding matter of defense occurring after answer.

Equally by the terms of the Code and of their undertaking, the defendants were not liable to action before it was “ finally decided that the plaintiff (in the original suit) was not entitled to an order of arrest.” But, until appealed from, the order of the general term vacating the orders of arrest was a final decision against the right to arrest. Had an effectual appeal been taken, then the finality of the decision would have been deferred till the determination of the appeal. Musgrave v. Sherwood, 76 N. Y., 194, 195 ; Wettig v. Molls, 45 Super., 392. But when the action was commenced, no appeal, even by notice, had been taken; and at that time the order of the general term stood as a finality. The action was then well brought, though subject to bar or abatement should an effectual appeal be taken.

The notice of appeal to the court of appeals from the general term was served after the action was commenced, though before answer. In an equitable action, matter occurring after suit commenced but before answer, may be pleaded as of right; and the reason is that in such action costs are discretionary, and if the defendant prevails, notwithstanding there was good cause to sue, the court can charge him with costs. But in an action of a legal nature, the right of the parties must be determined as they, existed at the commencement of the action, except so far as the situation has been since changed unfavorably to the plaintiff’s claim, either by his own act or by operation of the law, the reason being that, in a legal action, the statute gives costs; and as they ought not to be charged on a plaintiff who had good ground to sue, the defendant should get leave to plead, so that the court may impose terms. 26 Abb. N. C., 22, 24 ; Wisner v. Ocumpaugh, 71 N. Y., 113 ; Styles v. Fuller, 101 id., 622. The matter is then pleaded “ to the further maintenance of the action.” Carpenter v. Bell, 19 Abb., 258, 263. Hence, although the notice of appeal was served before answer, it is questionable if it were properly pleaded, or if it could have been pleaded even by supplemental answer.

But, waiving the point, the answer of notice of appeal was nugatory. An appeal to the court of appeals from an order, as from a judgment, until undertaking given is a mere nullity, and so is ineffectual to affect the finality of the decision from which the appeal is taken. Code, § 1326 ; Cowdin v. Teal, 67 N. Y., 581 ; Agricultural Works v. City, 85 id., 652 ; Raymond v. Riehmond, 76 id., 106 ; Kelsey v. Campbell, 38 Barb., 238 ; Matter of Dumesnil, 47 N. Y., 677 ; Benedict v. Thayer, 82 id., 610, where said, “when no undertaking is given no appeal is pending.” It follows, therefore, that even after the notice of appeal, the order of the general term, vacating tlm orders of arrest, wás still a final decision.

Eventually, however, on the 8th of December, 1890, more than a year after answer, an undertaking was given and the appeal perfected. Then, for thé first time, the order of the general term ceased to be a final decision. But the matter, even if it might have been, was not presented by supplemental answer; and only by supplemental answer, allowed by the court, could it be presented as a defense to the action. Code, § 544 ; Hall v. Olney, 65 Barb., 27 ; Styles v. Fuller, 101 N. Y., 622 ; Williams v. Hernon, 16 Abb., 173 ; Matthews v. Co., 3 Robt., 711 ; Wettig v. Moltz, 45 Super., 389.

Counsel for the defendants argues that the appeal perfected in December, 1890, was admissible in proof of the defense pleaded in August, 1889. True, the answer then served did set up the defense that the order of the general term was not final, and that so the action was prematurely brought. But an allegation that the action was arrested by an appeal in April, 1889, is not established by proof that it was arrested by an appeal in December, 1890.

Evidence of a perfected appeal on the 4th of April, 1889, would have been relevant and effectual tó make good the defense pleaded, but not so evidence of an appeal perfected the 8th of December, 1890. Moreover, the latter defense, arising after issue joined, could have been presented, if at all, only by supplemental answer.

To sustain their contention the appellants rely, in vain, on Briggs v. Bowen, 60 N. Y., 454. That action was trespass quare clausum, and the answer alleged that the locus in quo was a public highway. On the trial plaintiff showed an order discontinuing the highway, and defendant met this proof by evidence of a reversal of the order after the trespass.

Answering the argument of the plaintiff that the defendant could not avail himself of the reversal without pleading it, the court say: “ there was no occasion for pleading it. The order was not alleged in the complaint. The plaintiff relied upon the order to prove his title, by showing that the highway had been discontinued. The defendant had a right to meet this claim by showing that the order relied upon by the plaintiff had been reversed. Furthermore, it does not appear that the point was taken at the trial, that this proof was inadmissible under the pleadings, and that of itself is sufficient ground for not entertaining it here.’’ Criticism is not needed to exhibit that the decision cited has no bearing upon the case at bar.

Conceding for argument, however, that without being pleaded the defense was available to the appellants, it was still ineffectual to defeat the judgment. When the action was brought it was well brought, because, there being then no pretense of an appeal, the order of the general term was, at the time, a final decision. When the action was commenced the cause of action was complete; only the further maintenance of the action was liable to be arrested by a subsequent appeal. But the defendants themselves gave in evidence the affirmance of the order of the general term by the court of appeals; and so it appeared at the trial that the appeal had been determined, and determined adversely to the defendants. Hence, there was no obstacle to the prosecution of the action, and no pending appeal to defeat a recovery by the plaintiff. When an action is well brought, and the plaintiff is confronted by no defense upon the trial, judgment for him is an inevitable consequence. This is not the case of an action essentially defective when commenced, and sought to be reinforced by subsequent matter, but of an action begun and obstructed pendente lite. The obstruction gone, judgment must follow.

“ The fact that plaintiff’s right of action was divested after commencement of the action by his bankruptcy, is not an available defense, if, before defense pleaded, he re-acquires the right of action by purchase from the assignee.” 26 Abb. N. C., 23.

Judgment affirmed, with costs.

Allen", P. J, and Bischoff, J., concur.


text:
    Matthew Grier et al., Resp’ts, v. Hazard, Hazard & Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 1, 1891,)

      1. Appeal.
    An exception to the denial of a motion for a new trial made on the minutes is ineffectual to present any question for review on appeal.
    2. Same.
    On the conclusion of the case, the counsel for the defendant said to the court: “I don’t see any questions of fact here,” and the court directed a verdict for the plaintiffs. Held, that an exception to such a direction was ineffectual to present the point that the verdict should have been for a less amount.
    Appeal from judgment of the general term of the city court, affirming judgment on a verdict directed by the court.

      Action by executors for work, labor and materials rendered by their testator to the defendant corporation.

      Edmund B. Whitney, for resp’ts; Henry L. Landon, for app’lt.
   Pryor, J.

—Whatever errors may have been committed by the court below, it is impossible for this court, on the record before it, to reverse the judgment.

After affirmance by the general term of the city court of a judgment on a verdict we have no jurisdiction to review the facts.

A motion for a new trial was made on the minutes and denied ; but no order denying the motion was entered, and the appellant relies only on an exception to the denial of the motion. But such an exception is utterly ineffectual to present any question for review. “On trials by jury the only subjects for exception are rulings at the trial. The motion for a new trial is a proceeding subsequent to the trial, and the order made on such motion is reviewable only by appeal.” Boos v. Ins. Co., 64 N. Y., 236, 242. “ There must have been an order made and entered denying the motion for a new trial, and an appeal taken from such order.” Ehrman v. Rothschild, 23 Hun, 273.

Wherefore, we are confined, on this appeal, to the review of errors of law, raised and presented by proper exceptions.

On the conclusion of the case the counsel for the defendants said to the court: “I don’t see any questions of fact here.” Acting upon this voluntary and explicit concession, the court directed a verdict for the plaintiffs. The defendants made no request to go to the jury. Incontestably the defendants are' precluded to contend here that there were facts in controversy for determination by the jury; and the only question before us is, was there any evidence to sustain the verdict ? Dillon v. Cockcroft, 90 N. Y., 649; Sutter v. Vanderveer, 122 id., 652; 34 N. Y. State Rep., 211. And a wrong reason advanced. by the judge for his direction is of no moment. 122 H. Y, 654. The respondents urge that there was evidence to support all the issues in their favor; but even if this be not true, still a portion of their claim was established beyond controversy. But the only exception by the defendants was “ to the direction of the court; ” and, as by concession, the court was right in directing a verdict for some amount, the exception is ineffectual to present the point that the verdict should have been for a less amount. If it be admitted that the respondents, as executors, were entitled to recover only a portion of their claim, and that the appellants were liable for only a part of the debt, still it was the duty of the appellants to call the attention of the court to the distinction, and the court was under no obligation, of its own motion, to discriminate between claims which the appellants had authorized to be disposed of by the court in mass. The appellants have themselves only to blame for their failure to escape, upon technical defenses, from payment of an indebtedness which, in equity and good conscience, they were bound to discharge.

We are well content, even on technical grounds, to affirm a judgment which stands so clearly upon substantial justice. Judgment affirmed, with costs.

Allen, P. J., and Bischoff, J., concur.