author: Finch, J.

text:
    The People, Resp’ts, v. Stephen F. Sherman, App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Larceny—Penal Code, § 528—Elevators.
    Defendant as general manager had custody and control of grain in several elevators in the city of Buffalo. The evidence showed that he caused the grain in question to be transferred from one elevator to another without the usual and competent order and authority; that he confused and falsified the accounts so as to cover and conceal his action; that the “ shortage ” resulting from the removal was concealed by a false and fraudulent weighing of the remaining grain occasioned by indirect suggestion, to which he assented and of which he availed himself, and that he sold the grain which it was his duty to keep and for the delivery of which to the true owners the elevators were bound. Held, that the evidence furnished an adequate foundation for the conclusion of fact involved in the verdict of the jury that defendant was guilty of larceny.
    3. Same.
    It was no adequate answer to the charge to say that the proceeds of the sales made by Sherman went into his bank account as manager of the Associated Elevators and were applied by him upon its liabilities.
    8. Same.
    Defendant’s ofiense was covered by the second subdivision of § 528 of the Penal Code.

      4. Same—Evidence.
    Defendant knew of the shortage, his superintendent K. also knew of it, and they had frequent conversations concerning it. Defendant said he didn’t want it to be known. K. had á conversation with the men before the weighing with reference to it, and they averted consequences by making it nearly hold out. Held, that this evidence was admissible as a foundation for the further fact that defendant assented to and availed himself of the fraud with full knowledge of its existence.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment of conviction of the crime of grand larceny in the first degree.

      Louis Marshall, for app’lt; Geo. T Quiriby and Tracy G. Beclcer, for resp’ts.

       Affirming 40 St. Rep., 881.

   Finch, J.

The evidence given for the prosecution furnished an adequate foundation for the conclusion of fact involved in the verdict of the jury. The business combination of the numerous elevators, the consequent complication of their dealings with their customers and with each other, and the peculiar system of accounts which became necessary, rendered it extremely difficult to follow and trace any particular and identical ownership of grain from its original receipt to its final disposition; and yet a prolonged study of the proofs has left upon our minds the conviction that the defendant did convert to his own use and misappropriate the grain referred to in the indictment That he caused it to be transferred from one elevator to another without the usual and competent order and authority; that he confused and falsified the accounts so as to cover and conceal his action; that the “ shortage ” resulting from the removal was concealed by a false and fraudulent weighing of the remaining grain, occasioned by his indirect suggestion, to which he assented and of which he availed himself; and that he sold the grain which it was his duty to keep and for the delivery of which to the true owner the elevators were bound, are facts more or less clearly proved, and supported by sufficient evidence to put them beyond our review.

Nor is it an adequate answer to say that the proceeds of the sales made by Sherman went into his bank account as manager of the Associated Elevators, and were applied by him upon its liabilities. The elevators were bailees. Their contract and their duty was to keep and not sell the grain, to deliver it in specie and not in its value in money, and the sale and conversion by Sherman was not condoned or relieved of its character as a crime by transferring the proceeds to those who had no right to receive them. But the evidence does not at all exclude an inference of the jury that the proceeds went to Sherman’s benefit. In his. bank account were involved all of his private and personal transactions as well as those of the elevators and possible to trace only by the stubs of his checks. Against that account he drew at his pleasure for all purposes, and that the loss of this grain, however pushed along or disguised by substitution, landed as a loss upon the elevators is quite certain from the evidence.

It is claimed, however, that the defendant could not properly be convicted of the form of larceny which the indictment charges. The offense is described as within the second sub-division of § 528 of the Penal Code, and the claim now made is that the grain was in the custody and control of the elevator corporations and not in that of the defendant. The section itself obviates the difficulty. It assumes that beneath the technical legal control of the corporation as such lies an actual and effective custody and control of corporate officers and servants. They are specifically described, and the fact in this case corresponds with the description. The corporation as such, the technical legal entity, cannot suffer imprisonment for a crime, but those who represent it and act for it as its officers and agents can. The defendant, as general manager, had the custody and control of the grain in the elevators. It was by means and by force of that very custody and control that he was enabled to shift the grain, to sell and convert it and confuse and falsify the accounts. It is of little utility to carry our inquiry back of the terms of the Penal Code when the offense charged and proved is clearly'within it.

Error is further alleged to exist in the admission of the evidence showing the false weighing of the grain, and in the suggested inference therefrom contained in the charge of the trial judge. That proof was competent to show the actual fact of the alleged “ shortage,” notwithstanding the apparent and reported result of the weighing, and as a foundation for the further fact, very strongly proved, that the defendant assented to and availed himself of the fraud with full knowledge of its existence. Beyond that, the circumstantial evidence tends forcibly to the inference "that the deception practiced had its origin in the purpose and necessities of the defendant. He knew the fact of the “ shortage,” for it originated in his own act His superintendent Klieves also knew it. There were frequent conversations about it Sherman said he didn’t want it to be known; Klieves had a conversation with the men before the weighing with reference to such weighing; without telling them what to do it was easy to indicate the disastrous consequences certain to follow if the elevator failed to. hold out; the men averted those consequences by making it nearly hold out; when it was done Klieves said, “ I didn’t tell the men to do it,” and Sherman added, “ I didn’t tell you to tell the men to do it,” and yet conceals the fraud from his principals, stands upon and defends himself with it and so makes it his own. The men who accomplished it had no conceivable motive of their own; quite surely the deception did not originate with them; and it takes very little reflection to become confident of its source. The evidence was admissible and was properly submitted to the-jury.

I do not think that the court transcended its just discretion in the examination of Klieves. Called by the prosecution, he manifested a disposition to favor the defendant and keep back or soften injurious facts. Necessarily some degree of latitude in his examination was allowable. I do not think that any effort was made-on behalf of the People to impeach him. On the contrary, the effort was to make him tell all that he knew. For that purpose it was proper to refresh his recollection or remove his hesitation by recalling to his mind what he had already once testified to before the grand jury. The right to ask the witness leading questions, was asserted by the prosecution, admitted by the defense to be within the discretion of the court, and that mode of examination permitted. The court made no ruling which allowed an impeachment of the witness, explicitly declaring that no such question had yet arisen. We think no error was committed.

The remaining questions raised do not seem to us to require discussion.

The judgment should be affirmed.

All concur.


source: Caselaw Access Project

author: O’Briew, J.

license: Public Domain

text:
    Alexander S. Turner, Resp’t, v. William W. Weston et al., App’lts.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Appeal—Exceptions.
    The exceptions to a referee’s report, in form, should he directed at some-distinct and separate proposition found by the referee, or at some part of it, in such a way as to enable the appellate court to understand clearly what particular fact found is challenged.
    2. Partnership—Accounting.
    Plaintiff and one R, and defendants, who were partners in 1863, became owners of a large timber tract in Pennsylvania, whence timber could be floated to defendants’ saw-mills in this state, and the latter were to be paid for their services in preparing the lumber for the market, the expenses to be shared and the net profits tobe divided between defendants’ firm and the plaintiff. In 1869 R assigned his interest to plaintiff. In this action for an accounting, the referee found that there was a large discrepancy between the amount manufactured and the amount accounted for as sold and on hand, and that defendants were chargeable with the value of about 3,000,000 feet of lumber, appropriated to their own use. Held, no error, as the defendants were liable upon the theory that they had received the lumber themselves, and the proceeds thereof went into their business, and they had the benefit of it,
    3. Same.
    _ If not strictly a partnership, it was certainly a joint enterprise, and the rights and obligations of the parties are to be determined and adjusted upon the rules and principles applicable to partnership transactions.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff against defendants, entered upon the report of a referee.

      D. E. Bolles, for app’lts; Boswell B. Moss, for resp’t

       Affirming 40 St. Rep., 963.

   O’Briew, J.

The appeal book in this case contains the record of a long and expensive litigation, important to the parties on account of the large amount involved, but which, in the end, turned almost entirely upon the disposition of questions of fact. Those questions seem to have received careful consideration, in the first instance from the learned referee who tried the cause, and subsequently at the general term. The evidence was conflicting, and the findings of fact sustain the legal conclusions upon which the judgment is based. The powers of this court in such a case are limited to a review of questions of law raised by proper ex ceptians to some decision or ruling at the trial.

It is quite doubtful whether the record presents any question for this court except the sufficiency of the findings of fact to support the legal conclusions. There is no statement that the case contains all the evidence, and it is claimed that there is no proper exception to any finding of fact. The latter, at least, is essential to enable the defendants to raise the question of law here that any of the findings are unsupported by evidence. Porter v. Smith, 107 N. Y., 531; 12 St. Rep., 479; Brayton v. Sherman, 119 N. Y., 623; 28 St. Rep., 854; Aldridge v. Aldridge, 120 N. Y, 614; 31 St. Rep., 948; Travis v. Travis, 122 N. Y., 449 ; 34 St. Rep., 42.

Exceptions appear in the case to the referee’s report, which were filed, but they are aimed at his legal conclusions, although there is blended with some of them matters of fact and argument. It is exceedingly difficult to say just what propositions of fact found by the referee it was intended to question. Without holding now that the defendant is precluded in this court from raising the question that any of the findings are without evidence to support them, it is proper to suggest that this practice is not to be ■encouraged. The exceptions in form should be directed at some distinct and separate proposition found by the referee or court, or at some part of it, in such a way as to enable the appellate court to understand clearly what particular fact found is challenged. Daniels v. Smith, 130 N. Y., 696; 42 St. Rep., 644.

In August, 1863, the plaintiff and one Ross,.and the defendants, who were partners, became the owners of a large tract of timber land in Pennsylvania from which logs and timber could be floated down the Allegany river to the defendants’ saw mills in this state. The plaintiff and Ross acquired the one-half interest in the lands and the-defendants, as partners, the other half. The respective owners then agreed that the defendants should cut the timber, drive it to their mills, and there manufacture it into timber and shingles, sort, pile and properly care for the same in order to prepare it for market and then to sell it. They were to superintend the work in all its parts and the sales for the best interest of all interested, and for manufacturing the lumber and shingles were to charge and receive what their services were reasonably worth at the time. The plaintiff and his partner were to bear one-half of the cost of producing the lumber and the defendants the balance. The net profits derived from the sale of the lumber and shingles were to be divided equally between the defendants’ firm and the plaintiff’s. The defendants immediately entered upon the performance of this agreement and continued in its performance, rendering tó the plaintiff and Eoss a statement each year .of the expenses and sales. In the year'1869 the plaintiff by transfer from Eoss became the sole owner of the one-half interest. In the original agreement the parties had designated their joint enterprise and business by the term “5 Lumber,” and after the transfer by Eoss to the plaintiff the business was conducted under the same name and in the same way, except that the annual statements were made out and delivered to the plaintiff until about the year 1878, when the business was substantially finished. The plaintiff claimed that since 1869 a large amount of the lumber and shingles produced from the land, and which was the joint property of the parties, had not been accounted for by the defendants, and brought this action to dissolve the partnership and for an accounting. The answer puts in issue all the allegations of the complaint in regard to a failure on the part of the defendants to account for the proceeds of the undertaking, and also demands that an accounting be had.

Besides the facts already stated the referee found that the total amount of pine lumber taken from the tract since 1869 and manufactured, and for the manufacture of which the defendants had charged and had been allowed, was 31,625,284 feet, and the total amount sold by them, and for which they had rendered an account to the joint concern, was 24,832,097 feet. That the amount on hand unsold was 92,655 feet, leaving a deficiency between the amount manufactured and the amount accounted for as sold and on hand of 6,700,530 feet. That the natural and ordinary waste and shrinkage arising from defective logs, breakage, errors in measurements and inaccurate accounts rendered by the sawyers and from all other causes, naturally and usually incident to the manufacture, shipping and sale of such lumber, did not exceed 3,700,530 feet, and that the defendants had received and appropriated the balance of 3,000,000 feet or had the benefit thereof and were chargeable with its value found, to be $20.14 per thousand feet. There is no dispute as to the discrepancy above stated between the defendants’ statements of charges for lumber sawed or manufactured and for lumber sold and credited. The substantial element of the controversy was whether these facts and the other facts established proved, or tended to prove, that the defendants were liable for the deficiency, if such in fact existed. The referee held that the defendants should be charged in the accounting with this deficiency. The judgment is made up of this large item and three smaller ones as to which there is really no dispute, namely, shingles, hardwood lumber and a balance received from the sale of a small parcel of the land. Hone of the numerous exceptions taken during the progress of the trial have been argued and the requests referred to, so far as they were material and refused by the referee, were not predicated upon testimony that can be said to be without conflict, and hence they present no question here. The argument of the learned counsel for the defendants is directed substantially to three propositions which will be briefly noticed.

1. He contends that the evidence did not warrant the finding that the defendants had appropriated "to their own use three million feet of the pine lumber. If it had been shown that any part of the lumber produced from the tract had been destroyed, lost or stolen, the question then might arise as to how far the defendants were liable for it, but as no question of that kind is raised or suggested we cannot perceive how it is material to determine the degree of care which the defendants were bound to exercise or the degree of negligence for which they might in such case be responsible. The defendants were held liable upon the theory that they had received the lumber themselves, ,and the proceeds thereof went into their,business, and they had the benefit of it. It is not material whether this resulted from design or otherwise, though the referee in his opinion shows how it might have and probably did occur without any dishonesty on thepartof the defendants. The logs and lumber were mingled with other logs and lumber and the accounts were kept in sucha way that mistakes probably occurred which, in such a large business as the defendants were transacting, during so many years, might account for the deficiency. However that may be, the evidence of the discrepancy, as to which there was no dispute, followed by the testimony of expert and other witnesses as to what percentage of the bills for sawing should be deducted on account of waste, breakage and the other causes mentioned, in order to determine the true amount of merchantable lumber, with theother facts and circumstances shown, was sufficient to warrant the findings. Prior to 1869, the difference between the bills for manufacturing and the statement of sales was comparatively trifling. How far that was due to a difference in the quality of the timber was for the referee to decide in giving the circumstance proper weight. But-he could avail himself not only of the experience of six years of this same business but the ■experience of witnesses generally familiar with the subject. It would, we think, be impossible to hold that this feature of the case presented a question of law. It was essentially one of fact. It is not important to define the precise legal z-elations which the plaintiff and defendants sustained to each other in the business. If not strictly a partnership it was certainly a joint enterprise, and the rights and obligations of the parties ai’e to be determined and adjusted upon the rules and principles applicable to partnership transactions.

2. It is urged that the referee erred in refusing to allow an account of some $17,000 claimed to be due by the plaintiff to the defendants. The referee made no finding in regard to it, and the ■only question here is whether it was error in refusing to find upon that subject It was not claimed that this account, whatever its nature or amount, constituted any part of the assets of the joint concern. It was an individual claim of the defendants. It was not pleaded as a counterclaim, and no mention is made of it in the answer. There is some proof in the record in z-egard to it, but it seems to have come in incidentally and not with a view of asserting it by way of defense in this action, as is to be infez’red from the opinion of the referee. The defendants can maintain an action upon this claim, and it appears from the briefs submitted that one is now pending to offset the amount of it against the judgment in this case. As the judgment of the referee should have been and was rendered secundum allegata et probata, we do not think his refusal to find with respect to this individual claim was error.

3. In the accounting the referee credited the joint concern with $38,648.76, the value of a large quantity of pine lumber which belonged to it The defendants claim that it was sold to them by the plaintiff for $33,117.01. and they credited that amount to the -concern, and it is urged that the referee erred in allowing mora The evidence on this question was substantially this. In 1877, and after the plaintiff had made a claim on account of the deficiency, there was a large amount of lumber on hand. By consent of the parties its amount and value were determined by two men selected for that purposa Subsequently negotiations passed between them for a sale of the lumber, and at the request of the plaintiff the defendants submitted to him figures representing the price they would give or take, which were considerably less than the value as fixed ’by the two persons selected.

The defendants, without the plaintiff’s consent, appropriated the lumber as their own, and credited it at the figures they had submitted to the plaintiff. The plaintiff had, prior to this time, notified the defendants that he was not able to purchase so large an amount of lumber,’and the referee has found, upon sufficient evidence, that the plaintiff never assented to a sale or appropriation by the defendants of the lumber at the price credited, and he charged them with what he found to be its value upon the evidence. The offer of the defendants not having been accepted by the plaintiff, but in fact refused, no contract of sale was con■summated. There is no ground upon which we can disturb the finding on this branch of the case.

The judgment should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Peter Grant, Resp’t, v. The Pennsylvania & New York Canal & Railroad Co., App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Negligence—Railroad—Defective drawhead.
    In an action for damages caused by alleged negligence of defendant, plaintiff’s evidence consisted entirely of proof that the drawbar was an inch and a half out of the true in three feet, which rendered it difficult to couple on a curve, and that after the accident the cast iron head of the drawhead where the link goes, and to which a bolt is attached, was found broken and lying in front of the engine and attached to the drawbar. Defendant’s evidence was that the bar was so fastened that the small bend had no effect. Held, that if the accident occurred by reason of a latent defect in the drawhead of the car, the defendant would not be liable in this case, if it had employed competent persons to build the car, and had exercised proper diligence in that behalf.

      2. Same.
    Where there are two or more possible causes of an injury, for one or more of which the defendant is not responsible, the plaintiff, in order to recover, must show by evidence that the injury was wholly or partly the result of that cause which would render the defendant liable. If the evidence in the case leaves it just as probable that the injury was the result of one cause as of the other, the plaintiff cannot recover.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff.

      Frank P. Taber, for app’lt; Charles M. Baker, for resp’t.

       Reversing 35 St. Rep., 999.

   Per Curiam.

The difficulty with the plaintiff’s case is that it lacks proof that the injury was caused by any defective appliance. The case is barren of any evidence that the drawhead which broke was defective in such, a manner as to involve liability to plaintiff on the part of the defendant It may have broken on account of a latent defect in the iron which no inspection would have reached. Whether it did of not we do not know and there is no evidence upon the subject. No facts are shown from which the cause of the accident can be more than guessed at There is' food for speculation or wonder, but there is no evidence as to the cause.

Regarding the alleged defect in the drawbar on the locomotive-the evidence is very light that the small deviation from a straight line constituted a defect at all It was but an inch or an inch and a half in three feet, and the only evidence on the subject on the part of the plaintiff showed there was no difficulty in coupling-the drawbar to the drawhead of a car, excepting on a curve. After the accident the cast iron head of the drawhead where the link goes, and to which a bolt is attached, was found broken and lying in front of the engine and attached to the drawbar thereof. These two facts constitute all the plaintiff’s, evidence as to the .cause of the accident. We may speculate and wonder whether the accident was or was not caused by this alleged defect in the drawbar and whether by reason of this slight bend it did not unduly press against the drawhead and thus cause the fracture of the latter, but there is nothing in the case that would permit us to exchange our speculation or wonder for a belief formed upon the evidence. If the accident occurred by reason of a latent defect in the drawhead of the car, the defendant would not be liable in this case if it had employed competent persons to build the car and exercised proper diligence in that behalf.

Where there are two or more possible causes of an injury, for one or more of which the defendant is not responsible, the plaintiff in order to recover must show by evidence that the injury was wholly or partly the result of that cause which would render the defendant liabla If the evidence in the case leaves it just as probable that the injury was the result of one cause as of the other, the plaintiff cannot recover. Searles v. Manhattan Railroad Co., 101 N. Y., 661; Taylor v. City of Yonkers, 105 id., 202, 209; 7 St Rep., 332.

When the evidence on the part of the defendant is examined it appears almost beyond doubt that the deviation of the drawbar from, a straight line had no effect whatever in producing the result. The evidence on the part of the defendant shows that the peculiar manner in which the bar was fastened to the locomotive, styled the universal knuckle,” permitted such room for play on the part of the bar that the small bend in it was absolutely of no effect whatever. If there were any evidence to the contrary on the part of the plaintiff, this question would be one for the jury, but where there is an entire absence of evidence on the part of the plaintiff as to the cause of the injury, that which was introduced on the part of the defendant warns us of the wholesome character of the rule which requires some evidence, and not mere speculation upon which to base a verdict upholding the defendant’s liability.

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

All concur.


author: Landon, J.

text:
    Sylvester Trimmer, App’lt, v. The City of Rochester, Resp't.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Payment—Limitation—Action to recover back money ignorantly PAID ON ILLEGAL ASSESSMENT.
    Where lands are covered by an assessment appearing to be valid on its face, and an apparent lien upon the lands, but in fact illegal and void by reason of facts outside the record, and the owner involuntarily pays the assessment in ignorance of the facts, he can in one action set aside the assessment and recover back the money paid, and the statute of limitations begins to run against him from the date of his paying the money.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered in Monroe county on a decision of the special term dismissing plaintiff’s complaint upon the merits.

      Turk & Barnum, for app’l.t; llenry J. Sullivan, for resp’t

       Affirming 30 St. Rep., 703.

   Landon, J.

This case was argued with Trimmer v. City of Rochester, 130 N. Y., 401; 42 St. Rep., 382, and affirmed upon the opinion in that case. Id., 950. Reargument was granted because the plaintiff’s assignor was, in fact, a party to the Hassen actions referred to in our former opinion. In the reported case the plaintiff’s assignor was not a party to those actions and the judgments in them did not set aside the assessment as to him, and we assumed that this case was like it in that respect

Our opinion in 130 N. Y., 401; 42 St. Rep., 382, requires a reversal of the judgment, unless the statute of limitations defeats the plaintiff’s recovery. We think within the rule established in Diefenthaler v. Mayor, 111 N. Y., 331; 19 St. Rep., 126, the cause of action is barred by the statute.

The assessment was made in 1865 and involuntarily paid in 1865 and 1866. The judgment setting aside the assessment was entered September 9, 1882, and this action was commenced September 9, 1888. The plaintiff’s contention is that his cause of action did not accrue until the assessment was set aside. That would be so if it had been necessary to bring two separate actions, the first to vacate the assessment, and, succeeding in that, the second to recover the money involuntarily paid upon it. But this case, like the Diefenthaler case and Strusburgh v. Mayor, 87 N. Y., 452, was one in which the lands were covered by an assessment appearing to be valid on its face, and an apparent lien upon the lands, but in fact illegal and void by reason of facts outside the record, and, therefore, there was no need to bring two separate actions; but the owner having involuntarily paid the assessment in ignorance of the facts could in one action seek to set aside the assessment and recover back the money paid upon it

The setting aside the assessment, it is held, is a mere incident to the legal cause of action to recover back the money, and, therefore, the cause of action did not accrue until the assessment was paid, and the six years limitation applies. The judgment must be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Joseph J. O’Donohue et al., App’lts, v. Francis H. Leggett et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1. Sale—Breach oe warranty as to quality.
    Plaintiffs’ assignors, through brokers, sold to defendants 1,700 piculsFree Preanger coffee to arrive. It appeared that only 1,645 piculs were shipped, and that defendants refused to accept them on the ground that they were not Free Preanger. The coffee was “ Pondok Gedeh,” a plantation in a district adjoining Praenger, and coffee from the latter commanded a higher price. Plaintiffs introduced evidence to show that “Free Preanger ” had a trade significance which covered plantations outside the district, but it did not appear that previous to this sale any effort was made in New York to sell Pondok Gedeh as Free Preanger. Meld. that the trial court properly held that no general custom was shown to sell the one for the other.
    3. Same—Evidence—Custom:.
    Evidence of local custom requiring vendees of coffee to reject it if they intend to do so within twenty-four hours after samples are delivered, is not admissible where the time for delivery is definitely fixed by the contract,, and liberty is thereby given to the vendees to sample it in bulk.
    (Bradley and Haight, JJ., dissent.)
    Appeal from a judgment of the general term of the supreme-court of the first department, affirming a judgment entered in New York county, upon the direction of the court at circuit, dismissing the complaint upon the trial before a jury.
    The action was to recover damages for the alleged breach by the defendants of the following contract:
    “ New York, October 27, 1879.
    “ Sold for account for Messrs. Sheldon, Banks & Co., to Messrs. F. H. Leggett & Co., 1,700 piculs of Free Preanger coffee, to arrive, the name of vessel or vessels to be given as soon as known. to the sellers, at twenty-two cents per pound. Sound and made, sound. Basis, four months’ notes from average delivery in store. Payable, cash within first month’s storage; discount for unexpired time; rate seven per cent per annum; first month’s storage and fire insurance free and to weigh coffee. Should government impose duty on coffee, this coffee to be taken in bond. No arrival, no sale. (Signed)
    “ O’SHAUGHNESSY & SOBLEY,
    “ Brokers.”
    And written across the face: “Accepted. Sheldon Banks & Go.”
    The vessel, the Jacobus Johannes, did arrive early in May, 1880, and the defendants, after examining the coffee, refused to accept it, and wrote plaintiffs’ assignors under date of May 29,1880, confirming previous verbal notice of refusal. Defendants placed their refusal “ on the ground that they are not Free Preanger as purchased  to arrive ’ of you October 27, 1879.” The plaintiffs after notice to defendants, and proper advertising, caused the coffee to be sold at public auction August 20, 1880, upon defendants’ account, and realized $11,342.90 less than the contract price. This difference with interest they seek to recover in this action. Further facts are stated in the opinion.

      Joseph II. Choate, for app’lts; B. Randolph Robinson, for resp’ts.

       Affirming 39 St. Rep., 983.

   Landon, J.

The coffee offered for defendants’ acceptance was not “ Free Preanger,” but was “ Pondok Gedeh.” Preanger is a large district in Java, Buittenzorg is the adjoining district, and Pondok Gedeh is a plantation in the latter district. Free Preanger coffee, “ Free ” distinguishing the coffee grown upon private plantations from that grown by the government, was better known than the Pondok Gedeh, and at the time of this transaction commanded a higher price in the New York market

The plaintiffs, however, cont end that there was a trade signification attached to the term Free Preanger; that the product of several plantations outside of the district of Preanger, but near it, was known in the New York market as Free Preanger; that Podolc Gedeh was one of these plantations, and that this contract was made and should be construed with reference to such trade signification. Much evidence was given upon this subject We have examined it, and conclude that it was not sufficient to sustain a verdict in favor of the proposition. It does not appear that before September, 1879, any effort was made in the New York market to sell Pondok Gedeh coffee as Free Preanger, but that about that time, and until the defendants refused to accept this parcel of coffee, some importers and dealers in coffee did sell a few parcels of coffee as Preanger which were grown in that district.

In September, 1879, these defendants bought 1,200 piculs of Tziserora as Free Preanger and some other dealer bought 2,200 piculs. But it was not shown that the defendants or the other buyers knew that their purchases were in fact Tziserora. A few sales of coffee from the Nan goon district as Free Preanger were mentioned by one witness, but he could not give the particulars. Several witnesses testified in general terms that coffee raised upon the private plantations in the Buittenzorg district near to Preanger, including those already mentioned and some others, were sold in 1879 as Free Preanger, but when asked to give particulars their recollection was defective, and their testimony leaves it in doubt whether the hujier had the knowledge of the seller as to the district in which the coffee was grown.

Respecting the sale of Pondok Gedeh as Free Preanger, no witness had knowledge of any sales other than of the consignment of coffee here in question. The trial court properly held that no general custom was shown to sell Pondok Gedeh as Free Preanger, and that no knowledge of such a custom was brought home to the defendants.

The plaintiffs proved that "they notified the defendants January 28, 1880, of the name of the vessel, the “Jacobus Johannes” upon which the coffee was expected to arrive,, and that March 1, 1880, overland samples having arrived, via London, pursuant to the custom of the trade, they delivered them to the defendants, who kept them two days, and then brought them back to the same brokers through whom this contract was made with instructions to offer the coffee for sale. The marks on the samples would indicate to the trade that the coffee was Pondok Gedeh, but would not aside from that designation indicate the district in which it was grown. The plaintiffs then sought to show a trade custom in New York making it the duty of the buyer to accept or reject the coffee immediately after the receipt and examination o£ such samples. The questions asked, tending to prove this custom, were excluded upon defendants’ exception. In this we think there was no error. The contract was in writing and contained no mention of samples. According to its terms the defendants could await the arrival of the coffee and its inspection in bulk. The custom, if allowed, and of the force suggested, would in effect alter the contract in a particular material to the rights of the defendants. Evidence of it was therefore properly excluded. Corn Exchange Bank v. Nassau Bank, 91 N. Y., 74; Beirne v. Dord, 5 id., 95; Westcott v. Thompson, 18 id., 363-7; Bradley v. Wheeler, 44 id., 495; Barnard v. Kellogg, 10 Wall., 384.

The court sustained defendants’ objection to questions asked by plaintiff to prove that when defendants in March returned the overland samples to the brokers, they instructed them to sell the coffee as Free Preanger. As they still had until after the vessel's arrival in which to determine whether they would accept the coffee, the trial of the experiment whether the market would take this coffee as Free Preanger upon inspection of the samples, might assist them in reaching that determination; the mere trial of the experiment in the absence of evidence of its success was not evidence that in trade signification this coffee actually was known by that name. Besides, Pondok Gedeh was the name of a plantation or estate very small in comparison with Preanger or Buittenzorg, and it does not appear that the defendants then knew that it was in the latter and not in the former district The objection was properly sustained.

It appeared that only 1645 1-2 piculs of coffee arrived instead of 1700 as specified in the contract Upon the trial this variance in the number of piculs was insisted upon in justification of the defendants’ refusal to accept The coffee arrived in mats, two mats making a picul. “ Picul ” is a measure of the weight of coffee and is understood in New York to call for from 128 to 136 pounds, the weight of the coffee being affected during transportation by various causes.

By the contract the coffee was to be sold by the pound and to be weighed. The actual weight of the 1645 1-2 piculs was 221,000 pounds which was equal to 1700 piculs at 130 pounds each. The defendants did not place their refusal to accept the coffee upon any deficiency in the number of piculs, and since the deficiency was not in the actual weight of the coffee but in the number of packages in which it was enclosed, we incline to think this variance was not material in fact or in the intention of the parties. But the variance from the contract in the kind of the coffee offered the defendants was fatal to the plaintiffs’ right of recovery, and the judgment must be affirmed, with costs.

All concur, except Bradley and Haight, JJ., dissenting.


author: Bradley, J.

text:
    The People ex rel. Aaron B. Gardenier, Resp’t, v. The Board of Supervisors of Columbia County, App'lt.

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    1. District attorney —Expenses of, in pursuit of indicted criminal A CHARGE ON COUNTY.
    One Cadby was indicted in Columbia county for forgery, but he had previously fled to Canada. Relator, as district attorney,went to Hamilton, Canada, and took proceedings for his arrest, but before it was accomplished he fled to Halifax, where relator had him arrested with a view to taking him to Hamilton. While passing through New Brunswick he was. released on habeas corpus, but he was again arrested and held there, and finally on requisition lodged in jail in Columbia county. In all these proceedings relator expended large sums of money. Held, that relator was authorized by his official relation in charging the county with such expenses incurred and paid by him in the Dominion of Canada, in the proceedings taken there for the purpose of bringing the alleged offender within the jurisdiction of the court which could take cognizance of the ofiense, all of which expenses had been incurred prior to the time of making application for the extradition of the fugitive from justice.
    2. Same—Penal Code, § 51.
    The action of the district attorney, and the expenses so incurred by him, did not necessarily come within the abuses which § 51 of the Penal Code was intended to prevent. That statute relates to abuses by officers of the state in seeking requisitions from the governor, and in extradition proceedings instituted by it.
    3. Same.
    It was not essential to such arrest and custody that proceedings should first have been taken under the treaty by requisition and mandate.

      Appeal from judgment entered "upon the order of the general term of the supreme court, in the third department, reversing an order and judgment sustaining demurrer to the alternative writ of mandamus and directing, that a peremptory writ issue.
    It appears that John H. W. Cadby, who was indicted in Columbia county in April, 1886, for the offense of forgery, had before then fled from the county to the Dominion of Canada; that the relator, who was district attorney of that county, having learned that Cadby was at Hamilton in the province of Ontario, went there in March, 1886, for the purpose of instituting proceedings in the courts of that Dominion to secure his apprehension with a view to extradition. The relator had with him a warrant against Cadby issued by a police justice of the city of Hudson. And proceedings were taken at Hamilton for his arrest, but before it was accomplished he fled from there to the city of Halifax in the province of Nova Scotia, to which place the relator pursued him and there caused his arrest with a view to have him taken to Hamilton before the magistrate there, who issued the warrant. But that such purpose was interrupted by his discharge from custody by means of a writ of habeas corpus in the province of New Brunswick, where new proceedings were necessarily instituted for his arrest and custody, and they resulted in his imprisonment there for such purpose and were sustained on review taken and had in the latter province. Afterwards the relator as such district attorney made through the governor of the state of New York application to the executive department of the United States for extradition of Cadby pursuant to the treaty of 1842 between the United States and Great Britain. -And upon the requisition of the governor such proceedings were taken by the executive department of the United States that Cadby was removed from the Dominion of Canada to the jail of Columbia county. The purpose of this proceeding was to require the board of supervisors of that county to pass upon, audit, allow and provide for the payment as a county charge of the relator’s claim, or so much of it as should be found due him, for the expenses incurred and paid by him for the purpose before mentioned in Canada, including his necessary expenses incurred and paid by him while so engaged there, it appearing that such board had refused to audit or allow his bill for such expenses or any portion of it.

      Levi F. Longley, for app’lt; Albert Hoysradt, for resp’t

       Affirming 29 St. Rep., 455.

   Bradley, J.

The matters stated in the alternative writ so far as they purport to be of fact must, for the purpose of this review, be taken as true. The question is whether or not his official relation to Columbia county of district attorney enabled the relator legitimately to charge the county with expenses incurred and paid by him in the Dominion of Canada in the proceedings taken there with a view to extradition of the person who had committed an extraditable offense in such county and fled to that dominion. The expenses in question were for that purpose wholly incurred prior to the time of making application through the governor to the president of the United States with a view- to such proceedings pursuant to the treaty with Great Britain as were necessary to place the fugitive from justice within the jurisdiction of the courts of the county in which the crime had been committed. Proceedings taken and had for that purpose would necessarily • be attended with some expense. This, as between the contracting parties to the treaty, would have to be assumed by the one seeking the mandate, as appears by the provision of the treaty of 1842 that “ the expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition and receives the fugitive.” Such party in this instance was the United State's. It is unnecessary to refer specifically to the regulations on the subject of extradition. The application for' such purpose is from the district attorney of the county in which the offense has been committed to the governor of the state, and by the governor to the president And pursuant to the regulations of the executive department of the state it must appear by the application of the district attorney that he is willing that such expense be a a charge on his county.

The expenses referred to in the treaty and in the regulations are those which are incurred after application for requisition is made and attend the process of extradition thereupon had of the fugitive. Those do not include the expenses constituting the relator’s bill, which embraces only those incurred by him prior and with a view to such application and its result.

The question here, therefore, relates to his powers in his official relation to his county in respect to the prosecution of those charged with the commission of crime there. The theory adopted by the statute of this state is that criminal offenders be tried in the county where the crime is committed, and that the expense of the prosecution be borne by the county. And it is also provided that “It shall be the duty of every district attorney to attend the courts of oyer and terminer and jail delivery and general sessions to be held from time to time in the county for which he shall have been appointed, and to conduct all prosecutions for crimes and offenses cognizable in such courts.” 1 R S., 383, § 89. It thus appears that the duty of prosecution for criminal offenses committed in his county is devolved upon the district attorney. And in respect to the expense incurred by county officers it is provided that “ The following shall be deemed county charges:

(2) “ All expenses necessarily incurred by the district attorney in criminal cases arising within the county.

(9) “ The moneys necessarily expended by any county officer in executing the duties of his office in cases in which no specific compensation for such services is provided by law."

(15) “ The contingent expenses necessarily incurred for the use and benefit of a county." 1 R S., 385, § 3.

This statute charges upon a county the expenses, and those only, which are legitimately incurred for purposes within th,e powers or duties of those who have some official or representative relation to it.

The district attorney is a county officer, and has been such since 1818. Chap. 283. Prior to that time, and from 1796 (chap. 8), as assistant attorneys-general and as district attorneys (Laws 1801, chap. 146), they were appointed for districts. And then-duties were defined in their relation to the districts substantially as they were and have been to the counties for which they were appointed, and later have been elected. The fact that the office has become a constitutional one (art. 10, § 1) adds nothing to the nature and extent of the powers of district attorney. The responsibility is upon him to conduct all prosecutions for crimes triable in his county. It may be assumed that he was charged with the duty of' prosecuting Cadby, who had committed a crime there. And for that purpose it would seem that unless the performance of that duty is restricted by some other statute, it was, by virtue of that before mentioned, within his power to do that which was essential to such prosecution; and that is a matter necessarily to a great extent dependent upon his judgment. This is so as to all county officers in respect to the subject to which their duties relate. They take as incidental to them such powers as may be deemed necessary to the proper performance of their official duties. People v. Supervisors of Del. Co., 45 N. Y., 196; People v. Supervisors of New York, 32 id., 473; Neary v. Robinson, 98 id., 81; Hoevenbergh v. Hasbrouck, 45 Barb., 197.

The offending party had fled from Columbia county, beyond the reach of any process the district attorney could issue, and had sought refuge in the country where his pursuit was permitted, and means were provided by international treaty for the surrender of the fugitive to the authorities of the state and county in which he could be brought to trial. The district attorney has not failed to take proceedings to cause the arrest of Cadby, but it is urged that it was not within his power as such officer to go into Canada for the purpose and charge the county with the expenses by him in that manner incurred. ' It was his duty to conduct prosecutions for crimes committed in his county, and expenses necessarily incurred by him in criminal cases arising therein were county charges. This duty to conduct prosecutions may fairly be construed to embrace whatever is properly essential to bring a criminal to trial, as well as the proceedings of the trial.

It may here be assumed that he acted in good faith, and that in his judgment it was necessary to the successful prosecution of Cadby to proceed with the diligence and as he did to effect his arrest and custody for the purposes of extradition. It was not essential to such arrest and custody that proceedings should first have been taken under the treaty by requisition and mandate. The purpose was by such preliminary action to subject the fugitive to the process of extradition to follow pursuant to the treaty. As no such condition precedent was by it made necessary none such was required in practice. Spear on Extradition, 3d Ed., 241; 1 Moore Id., Sec. 235; In re Thomas, 12 Blatch., 370; Castro v. De Uriarte, 16 Fed. R., 93; In re Herres, 33 Id. 165.

There is no statute in terms charging the district attorney with the duty of going from the state to seek the arrest of a fugitive from justice who lias committed a crime within his county. But the general provisions of § 89 of the Revised Statutes may fairly be construed as giving that officer the power to do that which may be reasonably necessary to the prosecution of persons chargeable with criminal offenses arising and triable in his county; and for that purpose he may use such means as the law permits to bring them within the jurisdiction ot" the court. The presence of Cadby was necessary to his trial for the felony with which he was charged. Tire way was open by force of the treaty to his arrest in Canada with a view to his removal into such jurisdiction upon the proper requisition being made. It is true that after the issue of the mandate he may, if then found, have been arrested and proceedings had to subject the fugitive to extradition, but certainly the execution of the mandate for that purpose was rendered effectual by his previous arrest and custody, and in the judgment, of the district attorney the delay which would have been occasioned by the requisite proceedings to produce its issuance may have lessened the opportunity to extradite the person charged with the offense, who, it seems, sought to escape the diligent efforts for his commitment that were made for that purpose.

While these are considerations which do not go to the question of power of the district attorney, they do relate to the propriety of the exercise of such as he did in that respect, and may have furnished a reason for not requiring 'as a prerequisite to the arrest and commitment the requisition and proceedings founded upon it The district attorney of Columbia county was the public prosecutor of criminal cases arising within that county, and the only officer charged with such duty. But he had no official relation with the province of Canada in respect to the proceedings taken there; such relation was with his county only, and he assumed to represent it in incurring the expenses necessary in those provinces to the purpose for which he went there. The question arises whether he, as such officer in his relation to the county, could charge it with the necessary expense of the means employed to accomplish such purpose. To do so the employment of such means must be regarded as his official act, and his personal expenses must likewise have been incurred in pursuit of a legitimate object within his official power. All of those expenses arose in .aid of the prosecution of the fugitive, and to bring him to trial in the county where the case arose. This he is authorized by the statute to conduct, and by it, as we have seen, all expenses necessarily incurred by such officer in criminal cases arising in his county are deemed county charges. A criminal case arises when the offense is committed, and duties of the district attorney prior to indictment are not limited to issuing subpoenas for witnesses and attending upon the grand jury. The whole subject of inquiry into the commission of crimes in his county is properly within the official duty with which he is charged. And when he is advised that a criminal offense has been committed there, the duty to prosecute the offender is with him, and it is within his power to use such means as are legitimate and necessary for the purpose. The power is well recognized of district attorneys to incur the expense of special compensation necessary to employ the service of experts to prepare themselves by investigation, in cases requiring it, to testify as witnesses upon the trials of persons charged with crimes. . This is in aid of the prosecution of the alleged offender; and so is the expense incurred for the purpose of having him brought within the jurisdiction of the court which can take cognizance of the offense.

It is, however, urged on the part of the defendant that in cases where the right of requisition is by comity recognized, claims like that presented by the relator come within the prohibition of the statute which provides that “An officer of this state who asks or receives any fee or compensation of any kind for any service rendered, or expense incurred in procuring from the governor of this state a demand upon the executive authority of a state or territory of the United States or of any foreign government, for the surrender of any fugitive from justice, or for any service rendered or expense incurred in procuring the surrender of such fugitive, or of conveying him to this state, or for detaining him therein except upon an employment by the governor of this state, is. guilty of a misdemeanor.” Penal Code, § 51. The purpose of this statute evidently was to prevent abuses by officers of the state in seeking requisitions from the governor and in extradition proceedings instituted by it. And so far as relates to procuring from the governor a demand upon other executive authority for the surrender of fugitives from justice it legitimately has reference only to interstate extradition, as the governor can have no power under an international treaty to make demand upon a foreign government for the surrender of such fugitive. Such treaty is necessary between the United States and the other ■ government, U. S. Const., art. 2, § 2, sub. 2, as no state of the Union has any power to enter into it as a contracting party. Id., art 1, § 10. And any statute of the state which should purport to invest its governor with power to control the surrender of fugitives from foreign countries with which such treaty existed would for the purpose be ineffectual. People ex rel Barlow v. Curtis, 50 N. Y., 321; United States v. Rauscher, 119 U S., 407.

The expenses in question could not have been incurred in proceedings founded on demand of the governor upon any other executive power or authority, ñor were they in fact incurred in any proceeding instituted by requisition, through which only the fugitive could be surrendered and conveyed to this state for detention therein, but were incurred before then and in contemplation of it And, therefore, the action of the district attorney and the expenses so incurred by him do not necessarily come within the abuses which this section of the Penal Code was intended to prevent. By an early statute provision was made for the payment by the state of the expenses of extradition proceedings founded upon the demand by the governor. 2 E. S.. 748, § 45. And by the Code of Criminal Procedure, as passed in 1881, it was provided that: “ When the governor shall demand from the execu-1 tive authority of a state or territory of the United States the surrender to the authorities of this state of a fugitive from j ustice, the accounts of the person employed by him for that purpose must be paid out of the state treasury.” Section 836. And that “ No compensation for a reward of any kind can be paid to or received by a public officer of this state for a service rendered or expense incurred in procuring from the governor the demand mentioned in the last section, or the surrender of the fugitive, or for conveying him to this state, or detaining him therein.” Id., § 837. By the repeal of those provisions and the substitution of those of § 51 of the Penal Code, the inhibition in respect to incurring expense seems still to be confined to cases in which demand for surrender of the fugitive may be and is made by the governor, and to expenses incurred in the proceeding in that manner instituted. If it is sound policy to limit in that respect the powers of the prosecuting officers of counties, that may be done by legislation, so that the custody or commitment of fugitives from justice whose surrender is dependent upon international extradition may be .sought by official direction or authority only after the mandate is obtained from the government upon which the demand is made.

We think it is not so under the present statutes, and although the power of such officer may be abused in so far that expenses may be immoderately and perhaps unreasonably incurred, that would be imputable to his want of sound judgment or failure to properly exercise it in the particular case; and whether or not they are unnecessarily incurred in the exercise of his power would be a matter for inquiry by the body called upon to allow them and provide for their payment. In the present case that question does not arise on this review further than it has relation to the gen. eral purpose he had in view in what he did and caused to be done in the premises. Further than that the subject so far as it relates to the details of the relator’s account will be submitted to the consideration of the defendant as auditing board. In the view taken of this case we have not failed to observe the able argument of the defendant’s counsel. That is founded upon the contention forcibly urged that it was not within the power of the district attorney to cause or direct the arrest of the fugitive in the foreign jurisdiction; and, therefore, the expenses arising from action taken in that behalf at his instance cannot be made the subject of charge .against his county. While it must be conceded that he has only such powers as are conferred upon him by statute and such as are essentially incident to the powers so expressed, we think the provisions before mentioned of the Revised Statutes embrace within those given the power from the exercise of which the alleged claim of the relator for expenses arose.

The conclusion follows that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Landou, J., not sitting.


author: Parker, J.

text:
    Edward Mitchell et al., Resp'ts, v. The Metropolitan El. R. Co. et al., App’lts.1

      (Court of Appeals, Second Division,

      Filed May 31, 1892.)

    Railroads—Elevated—Bar.
    . S., the plaintiff in an action against an elevated railroad, having died, it was revived by his 'executors and a judgment for permanent injuries recovered, which was affirmed by the general term, and paid and satisfied. Subsequently in an action for partition of said premises, it was decreed that the will was not valid and the premises were sold to plaintiff. Held, thatS. died intestate as to this real estate and thereafter the right to all permanent damages vested at once in his heirs, and while testator’s claim for’ temporary damages accruing before his death was a personal asset and passed to his executors, the allowance by the court of a recovery for permanent damages was error and cannot operate as a bar to this action.
    Appeal from a judgment of the general term of the supreme court, first department, entered on an order affirming a judgment, entered on a decision after trial at special term.

      Brainard Tolies, for app’lts; William Mitchell, for resp’ts.
   Parker, J.

The judgment awards to the plaintiff two thous- and and seventy-five dollars for damages occasioned to his property, prior to the commencement of this suit, by the maintenance of defendants’ elevated railroad structure, and the operation of trains thereon, and enjoins the defendants from further operating the railroad, and maintaining the structure, unless they pay to the plaintiff the sum of twelve thousand dollars, adjudged to be the value of so much of plaintiff’s rights and easements appurtenant to his real estate as are necessary for defendants’ permanent use.

Appellants insist that this judgment ought not to stand because prior to the commencement of this suit, in pursuance of a judgment of the court, and in satisfaction thereof, they were compelled to pay the sum of seven thousand five hundred dollars awarded by a jury, as and for the permanent damages occasioned to this property by defendants’ structure and the movement of trains thereon. How it happens that two different parties plaintiff have each succeeded in obtaining a judgment for the permanent damages sustained by the same parcels of real estate, may be briefly told. Daniel Schnarr was formerly the owner of the premises in controversy. In March, 1880, he brought an action at law against the Metropolitan Elevated Railway Company, to recover damages for the "permanent depreciation in the value of such premises, caused by the construction, maintenance and operation of defendants’ railway.

Before the trial of the action, and in December following, he died, leaving a last will and testament, by which he attempted to' dispose of all his real and personal estate. The will was subsequently probated; letters testamentary issued to the executors named therein ; the action revived and continued by the executors in their names, and judgment rendered in favor of the plaintiffs in June, 1884, for the full amount of the loss sustained. The court instructed the jury that the verdict to be rendered would be full compensation to the plaintiffs and a bar to another suit. Defendants’ counsel excepted to such instruction, and also to the court’s refusal to charge certain requests made for the purpose of presenting sharply the defendants’ contention that a recovery could only be had for the damages incurred up to the commencement of the suit. The general term of that court subsequently affirmed the judgment, which was paid and satisfied of record June 9, 1886.

In the meantime such proceedings were had • as resulted in vesting the title in the plaintiff Mitchell. The widow and a daughter of the testator subsequent to the probate of the will instituted a suit for the partition of the real estate, claiming that testator’s attempted disposition of it by will was invalid because it unduly suspended the absolute power of alienation.

The court so held and decreed that the premises be sold at public auction by a referee appointed for that purpose. This plaintiff was the purchaser at the sale which took place in December, 1884, and the inquiry is, did he acquire the easements which are the subject of this dispute ?

It is well settled that in an action at law such as that commenced by Schnarr a recovery can only be had for the temporary damages , which have accrued at the time of the commencement of the action, because the appropriation of the easements by the defendants being unlawful is presumably not permanent Pond v. Met. El. R. Co., 112 N. Y., 186; 20 St. Rep., 479.

In Lahrs’ case the plaintiff recovered for permanent damages, but the affirmance of the judgment as to that question was placed on the ground that the defendant admitted the permanency of the intended use and acquiesced in the rule of damages adopted by the trial court. Lahr v. Met E. R. Co., 104 N. Y., 268-293; 4 St. Rep., 340. Had Schnarr in his lifetime obtained a judgment for permanent damages under circumstances like those alluded to in the Lahr case, while the judgment would not have operated to transfer the easements to the defendants, Pond's case, supra, 190, it would have been effectual as a bar to any future claim by him. Hussner v. Brooklyn City R. R. Co., 114 N. Y., 433; 23 St. Rep., 856.

. His privies would have been in no better position, because defendants’ possession of the easements operated to give notice to all the world of a claim of right in respect thereto, so as to put all purchasers on inquiry, and such a judgment would confirm the defendants in that right, because obtained by the owner for permanent damages and precluding him and all persons claiming under him from maintaining another action therefor.

Schnarr’s position would have been the same if (ns happened on the trial of the action with the executors as plaintiffs) the defendants instead of acquiescing in a recovery for permanent damages, had unsuccessfully objected that such a recovery could not lawfully be had.

Had Schnarr effectually vested the title of this real estate in the trustees named in his will, as they may have supposed he did when they procured the action to be revived in their names and prosecuted to judgment,- the recovery would have operated to bar any future action in respect to these easements, either by the trustees or their grantees.

But- he died before the trial, and intestate as to this real estate. It became vested at once in his heirs at law together with the easements annexed. Thereafter the right to all damages accruing belonged to them and their successors in title. Shepard v. Manhattan R. R. Co., 117 N. Y., 442; 27 St. Rep., 705 ; Kernochan v. N. Y. E. R. R. Co., 128 N. Y., 559-69 ; 41 St. Rep., 110; Pappenheim v. M. E. R. Co., 128 N. Y., 436; 40 St. Rep., 445.

The executors of Daniel Sehnarr s will had no power to represent or affect the rights and interests in the lands which‘descended to the heirs on his death. Testator’s claim for temporary damages accruing prior to his death was a personal asset which passed to his executors. Shepard v. Manhattan R. R. Co., 117 N. Y., 442; 27 St. Rep., 705; Griswold v. M. E. R. Co., 122 N. Y., 102; 33 St. Rep., 232.

"Whatever those damages amounted to was property recoverable in' the action which Sehnarr had begun and which was subsequently revived in the names of the executors. Against the objection of the defendants, the court allowed a recovery for permanent damages as well as for the temporary damages which the plaintiffs had a right to recover. This was error and has resulted in great injustice to the defendants.

But the consequences cannot be shifted to the shoulders of him upon whom has devolved the title to the real estate of which Sehnarr died seized. The judgment should be affirmed.

Judgment .affirmed, with costs.

All concur.

       Affirming 31 St. Rep., 625; see id., 80.


text:
    Horace C. Sylvester et al., Resp’ts, v. John F. Crohan et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Bills and notes—Protest—Laws 1887, chap. 289.
    Plaintiffs received on Friday a draft drawn by defendants on a banker here, which they deposited in bank, by which it was presented to the drawee the following day, and being requested by him to present again, did so on Monday, demanded payment and protested it. Held, that under Laws 1887, chap. 289, the plaintiffs had until Monday in which to protest the draft, and that they were not guilty of loches.

    Appeal from judgment entered, after decision of the court, without a jury.

      Goldsmith & Doherty, for app’lts ; John C. Green, for resp’ts.
   Per Curiam.

action was brought to recover on a sight draft, made by defendants to the order of the plaintiffs and drawn upon one Abraham Backer.

The defense was that the payment of the draft was lost by the loches of the plaintiffs, and thereby the defendants became discharged from liability thereon. The draft being drawn in favor of a resident here and made payable here, the rights of the parties are to be governed by the laws of this state. In determining them, resort .must be had to the construction to be given to the statutes of the state with reference to the time within which a draft may be presented for payment and, if refused, thereafter protested.

The court found that the plaintiffs received said draft through the mails on Friday, July 31, 1891, at eleven o’clock in the forenoon, and without presenting it to the drawee, Abraham Backer, on the same day and hour deposited it to their credit in the Importers & Traders’ National Bank of New York, and returned said note to the defendants.

That a messenger of said bank presented said draft to Abraham Backer for payment on Saturday, August 1, 1891, between ten and half-past ten o'clock in the forenoon, and was directed to-leave notice and present it again on Monday, and,

That said draft was presented for payment to said drawee on Monday, August 3,1891, and payment thereof was then demanded and refused, whereupon said draft was then and there protested for non-payment, and on the same day the usual notice of protest was mailed to defendants at Savannah, Gra.

By § 1 of chap. 289 of the Laws of 1887, every Saturday from, twelve o’clock at noon until twelve at midnight is designated a half holiday; and for all purposes whatever as regards the presenting for payment or acceptance, and protesting and giving1 notice of the dishonor of bills of exchange, bank checks and promissory notes, might after the passage of the act be treated and considered as the first day of the week, commonly called Sunday, and as public holidays or half holidays, and all such bills, checks or notes, otherwise presentable for acceptance or payment on any of said days, shall be deemed to be payable or to be presentable for acceptance or payment on the secular or business day next 'succeeding such holiday; but in case of a half holiday shall be presentable for acceptance or payment at or before twelve o'clock noon of that day. Provided, however, that for the purpose of' protesting or otherwise holding liable any party to any bill of exchange, check or promissory note which shall not have been paid before twelve o’clock noon on any such half holiday, the demand of acceptance or payment thereof may be made and notice of protest or dishonor thereof may be given on the next succeeding secular day.

We think that this case falls within these provisions. The plaintiffs were bound to present the note for payment on the day succeeding the day on which it was received. It was presented for payment on Saturday and not paid, and by the provisions of the statute the plaintiffs had until the next succeeding secular or business day upon which to present a formal demand and protest and give notice thereof to the drawer, and this provision having been complied with, we think .the drawer was properly held.

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

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Yan Brunt, P. J.

text:
    The American Bank Note Co., Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Railroad—Elevated—Damages to personal property.
    In an action against an elevated railroad to restrain its operation and for damages to easements, damages for injuries to personal property arising- , from interference with the light and from cinders cannot be recovered.
    3. Same—Improper evidence—How cured.
    The admission of opinion evidence is not cured by a finding that it is-disregarded as to all matters except where the opinion is a matter of personal experience and knowledge of the expert, as shown by prior and later testimony. The only way in which improper evidence can be removed from the record is to strike it therefrom.
    3. Same—Bar.
    A recovery for damage by an elevated road running upon one street is not a bar to an action to recover damages to another portion of the same building caused by a different railroad running upon another street, although one of the defendants is the lessee of both roads.
    Appeal from judgment of the special term enjoining the operation of the defendants’ road unless fee damages be paid, and .also awarding a sum for past damages.

      E. 0. James, for app’lts; W. Q. Peckham, for resp’t.
   Yan Brunt, P. J.

We think that this judgment must be reversed because of errors in the admission of evidence; and also because of error in reference to an allowance for damages to personal property.

This action was brought to enjoin the operation of the elevated •road unless they should pay for easements which had been taken by them in the street in front of the plaintiff’s premises and by which the said premises had been depreciated in value.

The plaintiff’s corporate business is that of bank note engraving and printing, which business is one requiring good air and light, free from dust and other impurities of a like character. The plaintiff gave evidence tending to show the valué of the machinery fixed and unfixed which was contained in the part of the building covered by the» suit in question, and of damages to the machinery, plates, paper, processes and business thereof arising from interference with the light by the erection of the defend.ants’ ’structure and also arising from the cinders coming from the engines used in operating the defendants’ road. The learned court gave judgment in this action for such damages to the personal property of the plaintiff. This we think was error. .No damages of this class can be recovered in an action such as the one at bar as incidental thereto. This action, as has already been stated, is to restrain the running of the road unless they paid the value •of the easements taken, which value is to be ascertained by. ■determining the depreciation of the plaintiff’s premises caused by reason of the erection and operation of the road.

As incident to such an action past damages in the shape of -diminution in rental or usable value of the premises occasioned by this continuing trespass have been allowed. But in no case has the court gone so far as to hold that damages to personal property might be recovered in an action of this description. The action in question is one relating entirely to the realty, and has no reference to any question as to personal property, and if any damages have been sustained by personal property which the plaintiff can recover against the defendants it must be by an action of a different nature.

Error seems also to have been committed upon the part of the learned court in allowing evidence of the opinion of witnesses in respect to the amount of damage done by the operation of defendants' railroad. Various witnesses were allowed to give their estimates as to the annual damages arising from the various causes which were mentioned as interfering with the plaintiff’s business. The effect of the admission of such testimony seems to have been realized by the learned court in a finding which was to the effect that the testimony of plaintiff’s experts is disregarded and excluded as to all matters of opinion except where the opinion is a matter of personal experience and personal knowledge of the1 expert as shown by prior and later testimony.

But this finding by no means cured the error. It is impossible for the appellate court to determine how much of this objectionable testimony was considered by the court, and how much it considered to be matters of personal experience as shown by later and prior testimony, and how much was not so fortified. The only way in which evidence can be removed from the record is to strike it therefrom, so that the appellate court may know what is intended to be excluded, and not leave it entirely to inference.

The claim is made that a recovery by this plaintiff for damage to another portion of the building erected upon these premises by an elevated railroad running upon another street is a bar to a recovery in this action. We do not think that any such claim can prevail. These roads were erected by different corporations, and although one of the defendants, the Manhattan Company, has become the lessee of both roads, and is a defendant in both actions, yet the ultimate rights of the parties are different. Notwithstanding the lease, their ulterior remedies, if they should fail in obtaining satisfaction from the Manhattan Company, would be against each of the other companies separately, and in respect thereto they would have .no community of interest, and it would have been improper to have joined them in the same action.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event

O’Bbien and Pattebson, JJ., concur.


author: Patterson, J.

text:
    Mary A. Dickinson, Resp’t, v. Albert E. Dickinson, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Divorce—Evidence—Code Crv. Pro., § 831.
    The plaintiff in an action for absolute divorce is incompetent, under S 831 of the Code, to testify to her residence at the time of the acts of adultery charged, and at the time of the commencement of the action.

      Appeal from judgment in favor of plaintiff.

      &-timson & Williams, for app’lt; Sioddart & Hart, for resp’t.
   Patterson, J.

This judgment must be reversed for error in the admission of testimony. The action was for divorce; the plaintiff suing on an- allegation of adultery on the part of the defendant. It appeared in evidence that the defendant had pro-' cured a decree of divorce against the plaintiff in Illinois.

After procuring the decree referred to the defendant married again, and the adultery charged is his cohabitation with the woman to whom he claims to have been so married. The present plaintiff, basing her action upon that alleged adultery, was called as a witness on her own behalf. She has set up in her complaint the jurisdictional facts required in actions of this character. She .averred that the plaintiff and defendant had been actual inhabitants of the state of New York and that “ this plaintiff for eight years last past has been and now is an actual inhabitant of the •city, county and state of New York.”

The action was commenced in June, 1889. The adultery charged is alleged to have been committed at various times since the 15th day of August, 1887. The answer denies the residence of the plaintiff and puts it in issue; both as to the time of the alleged commission of the acts of adultery charged upon the defendant and at the time of the institution of this action. The plaintiff was allowed to testify under objection and exception as to her residence in both aspects in which that subject became material on the trial. '

The qualifications of a husband or wife’to bring an action for divorce in this state and the grounds upon which a decree may be pronounced are matters of positive legislation. That was expressly decided in Erkenbrach v. Erkenbrach, 96 N.Y., 456. As to the right to one, it is regulated by the Code of Civil Procedure. When, as in the present case, there is sought a divorce a vinculo, on the grounds of adultery, it is provided by § 1756 of that Code that the plaintiff, when the parties were not both residents of the state when the offense was committed and where they were not married in this state, and where the offense was not committed in this jurisdiction while the injured party was a, resident therein, and such is this case, the plaintiff must have been a resident of this state when the offense was committed and also when the action was brought

As lying at the very foundation of the suit, therefore, it was necessary to establish two jurisdictional facts, and they were distinctly put in issue. The general averment of the complaint that the plaintiff had resided in the state of New York for eight years before the commencement of her present action covers both requirements as a matter of pleading, but when the record is critically examined we cannot find any sufficient proof of that allegation outside of the plaintiff’s own testimony. There were three •other witnesses called on that subject, viz.: Albert S. Dickinson, Henry P. Hu ling and Mary Eoberts, but it is quite clear that their testimony is utterly inconclusive on the subject, and if there had been no other testimony than theirs, it would not have been an ■erroneous finding of fact had the learned judge determined that when the acts of adultery complained of were committed the plaintiff resided in Hew Jersey and not in Hew York The only real testimony as to residence at the times last referred to is that ■of the plaintiff herself, and it seems too plain for argument that under § 831 of the Code of Civil Procedure she was incompetent to testify to anything involved in her right to a decree except as to marriage ana to disprove any charge of adultery against herself. Jurisdictional facts must be proven as well as merits when they .are put in issue, and there was clear error in allowing the plaintiff to testify as to those facts. The inhibition of the statute applied, and we" cannot say that it was not that very testimony which induced the learned judge at the special term to find that the plaintiff had that legal status which was a prerequisite to her maintaining her action in the courts of this state. She had formerly brought a suit in Hew Jersey for the same relief and ■on the same state of facts, and on the testimony there adduced it was decided that she was not a resident of that state, but of Hew York She had sworn in that suit that she lived in Hew Jersey and not in Hew York when the alleged acts of adultery were ■committed by the defendant. Precisely in what aspect of the' proof in the court of chancery in Hew Jersey that conclusion was reached we do not know. ' It may have been a question of credibility ; but that the court in that state found she did not reside there is no reason why on this record we should find she did ■reside here. On the state of the proof, and in view of the plaintiff being allowed to testify to her residence as she did, we think the judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and O’Brien, J., concur.


author: O'Brien, J.

text:
    Ann E. Wynkoop, App’lt, v. Mary S. Van Buren et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)
    Injunction—Final determination—Discontinuance.
    The discontinuance oí the action by plaintiff, upon a motion which is opposed by defendants, is equivalent to a final determination that plaintiff was not entitled to the injunction so as to make the sureties upon the undertaking liable.
    Appeal from an order appointing referee to assess damages •under an undertaking on injunction.

      G. B. Alexander, for app’lt; William Mitchell, for resp’ts.
   O'Brien, J.

This action is brought to enjoin the defendants from injuring, disturbing or undermining a party wall. Upon ■obtaining a preliminary injunction herein, plaintiff gave an undertaking conditioned upon the payment of such damages, not ex■ceeding the sum of $1,000, which the defendants might sustain by reason of the injunction, “ if the court finally decides that the plaintiff was not entitled thereto, such damages to be ascertained and determined by the court or a referee.” This preliminary injunction was subsequently dissolved; although the defendants answered, and the case was on the day calendar it was never tried, but on October 7, 1891, the plaintiff made a motion for leave to discontinue without the payment of costs, which motion was opposed by the defendants, and was finally granted upon payment of costs. After the order of discontinuance was entered, the motion was made to ascertain and determine the damages sustained by the defendants, by reason of the injunction, and an order was made thereon, sending the same to a referee, from which order this appeal is taken.

The principal point made by the appellant is that, as a matter of law, there not having been an actual final decision against the plaintiff’s right to an injunction, that the court had no jurisdiction to order a reference to ascertain the damages sustained by the defendants by reason of the injunction. In support of this contention reliance is placed on the cases of Palmer v. Foley, 71 N. Y., 111; Johnson v. Elwood, 82 id., 362; Neugent v. Swan, 61 How. Pr., 40, 42; Hall v. Sexton, 19 St. Rep., 677.

In the first case cited, it will be found upon examination that the court’s decision was placed upon the ground that no damages could be recovered because the action had been settled and discontinued by an amicable and voluntary agreement between the parties, and that virtually they had fixed their own damages. Without, however, commenting upon and distinguishing the other cases relied upon by appellant, we must regard this question as settled, in view of the decisions in the case of Amberg v. Kramer, 29 St. Rep., 958, and Parker v. Commercial Telegram Co., 3 id., 174, and particularly the case of the Pacific Mail Steamship Co. v. Toel, 86 N. Y., 646. These are all authorities which sustain the view that the discontinuance of the action by plaintiff, upon a motion which is opposed by defendants, is equivalent to a final determination that the plaintiff was not entitled to the injunction, so as to make the sureties upon the undertaking given upon the injunction liable.

We are, therefore, of opinion that the order appealed from should be affirmed, with costs.

Yan Brunt, P. J., and Ingraham, J., concur.


text:
    Edward Ulrich, Ex’r, Resp’t, v. Charles Ulrich, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Trustees—Rents—Agreement as to.
    A testamentary trustee has no power to make an agreement with one of the cestui que trusts that the rent of premises leased, to him shall he charged to his share in the estate.
    Appeal from judgment entered on verdict directed by the court

      Nelson Smith, for app’lt; F. W. S. Johnston, for resp’t.
   Per Curiam.

The pleadings in this case show an agreement between the plaintiff and the defendant for the renting of the premises in question at an agreed price. The defendant claims that the plaintiff agreed that the rent should be paid by having the same charged against his share in the estate of which the plaintiff was trustee. This defence the court refused to allow the defendant to prove; and in this we think there was no error. 'The trustee had no power to make an agreement with the defendant that the rent should be paid in the form in which it was claimed by the defendant it was agreed to be paid. The result of legalizing such an agreement would be allowing a trustee to accept payment by charging the debt against a supposititious share or interest in an estate by an heir or devisee. No trustee can deal with a trust fund in that manner, and so far as the contract provided for payment in that form it was null and void, it being beyond the power of the trustee to make any such agreement.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Richard A. Springs, Rec’r, Resp’t, v. The Bowery National Bank, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Receives—Pboof of appointment.
    ■ In an action by the receiver of a corporation, where his due appointment is denied by the answer, it is necessary, in order to prove such appointment, to prove the commencement of an action and that the court acquired jurisdiction of the corporation as provided by § 1, of chap. 378, Laws 1883 ; the order of appointment is insufficient to prove the appointment.
    Appeal from judgment entered after decision of the court at special term.

      J. B. Marvin, for app’lt; W. W. Jeriks, for resp’t
   Per Curiam.

The complaint alleged that by an order of the supreme court, made at a special term thereof, held on the 16th December, 1890, before Justice George P. Andrews, the plaintiff was duly appointed receiver of the property and effects of the I. Herrman Manufacturing Company. The defendant, in answering this allegation, alleged on information and belief that the court in which said action was brought never acquired jurisdiction of said .corporation or had power or jurisdiction to render or make any j udgment or order therein, or to make the order appointing the receiver mentioned in said complaint, and that said order and the judgment rendered in said action are without jurisdiction and void.

The plaintiff to support this allegation of the complaint put in ■evidence the order appointing the plaintiff receiver made in the .action of Walter Kenzie v. Herman Mfg. Co., and filed December 16, 1890. We find no evidence of any action commenced in which this order was entered, or that the court by service of process ever acquired any jurisdiction over the corporation. And we think that in the face of this denial of the answer, the order was not sufficient to prove the appointment of the plaintiff as receiver of the corporation.

By § 1 of chap. 378, of the Laws of 1883, authority is conferred upon the supreme court to appoint receivers of domestic corporations, and it is there provided that “ any order appointing a receiver, otherwise made, shall be void.”

And it was necessary to prove the commencement of an action and that the court obtained jurisdiction over the corporation as provided in that section of the statute before cited, to sustain the allegation that the plaintiff was duly appointed receiver.

The judgment must, therefore, be reversed and a new trial, ordered, with costs to appellant to abide event

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    Sophia Brown, Individually and as Ex’rx, Resp’t, v. Lafayette J. Finch, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Reference—Accounting.
    Where it appears that at some stage of the action an accounting will be-necessary, and that the questions of law involved have been passed upon by the general term, an order of reference is proper.
    2. Same.
    It is not necessary for the court to try affirmative defenses which are-questions of fact before making an order of reference in a case in which a. reference would otherwise be proper.
    Appeal from order appointing a referee to hear, try and determine the issues in this action.

      L. V. Booraem, for app’lt; Ditienhoefer & Gerber {Wheeler H. Peclcham, of counsel), for resp’t.
   Per Curiam.

It is claimed upon the part of the appellant, that the issues in this action are not referable, in that serious questions of law are involved, and that it is only after the disposition of these questions of law. and the defenses that any possibility of. an accounting can arise. It is admitted by these objections, therefore, that at some stage of this action an accounting between the-parties thereto will be necessary. The objection that serious questions of law are involved does not seem to be well taken; because-whatever questions of law there may have been in the case as it. originally stood have been disposed of by the general term of this, court.

In respect to the defenses which are raised, they seem to be-questions of fact, and it is as competent for the referee. to determine the question as to whether there had been an account stated as it would be for the court

It certainly cannot be necessary for the court to try the affirmative defenses before it makes an order of reference in a case in. which a reference would otherwise be proper.

The order should be affirmed, with ten dollars costs and dis.bursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    The People, Pl’ffs, v. The Bushwick Chemical Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Receiver—Discharge.
    Where no property of a corporation has come into the hands of the receiver thereof, and the order appointing him has been vacated and set aside, he is entitled to his discharge.
    Appeal by judgment creditors of defendant from order overruling exceptions to report of referee and discharging receiver.

      0. B. ¡Smith, for app’lts; G. F. MacLean, for resp’t.
   Per Curiam.

It appears among the findings of the referee that no property, assets, effects or books of said company came into the hands of said William Brookfield as receiver under the order of the supreme court of the city, county and state of New York appointing him receiver upon the application of the People of the state of New York. The evidence not being before the court, it must be assumed that it was sufficient to sustain the finding.

As no property of the corporation ever came into the hands of the receiver, and as the order appointing him receiver had been vacated and set aside, he was entitled to his discharge as receiver; and the order which discharged him and cancelled his bond should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Per Curiam.—

text:
    The People ex rel. William L. Markell v. Stephen B. French et al.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Municipal corporations—Police—Removal.
    Relator was removed from the police force on a charge of intoxication. He claimed that the intoxication was produced by taking the prescription of a doctor; but the doctor testified that the things which relator admitted having done would not account for his condition. Meld, that - there was no such preponderance of evidence against the conclusion of the commissioners as called for a reversal of their action.
    Certiorari to review the dismissal of the relator from the police force.

      W. McKinley, for relator; J. J. Delany, for resp’t.
   Per Curiam.—

It is a familiar principle governing the disposition of cases such as the one at bar, that the power of the court to reverse the proceedings is limited to those cases where there is no evidence to support the conclusion arrived at, or if there is some evidence, the preponderance of proof is so great against such conclusion that if it were the verdict of a jury such verdict would be set aside as against the evidence.

In the case at bar the relator was accused of drunkenness, and the strong preponderance of evidence seems to have been in favor of that conclusion. The excuse made by the relator that he became intoxicated by talcing the prescription of a doctor does not-seem to be at all substantiated by the evidence; his own physician being called as a witness, and virtually testifying that those things which the relator admitted having done would not account for the condition in which he undoubtedly was at the time in-question.

There was therefore no preponderance of evidence against the-conclusion arrived at by the respondents on the trial; but.on the contrary, the weight of evidence seems to be in accordance with such conclusion.

The writ should be dismissed, with costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    Francis C. Reed, Substituted Trustee, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Bailroad—Elevated—Trustee and life tenants.
    Where the plaintiff is a trustee who has only a limited power of sale, to-be exercised with the assent and concurrence of the life tenants, the judgment should require that the life tenants should join in the conveyance, to-be given on payment of the fee damage.
    Appeal from judgment entered on report of referee.

      A. 0. Townsend, for app’lts ; A. L. Smidt, for resp’t.
   Per Curiam.

It appears from the trust deed through which the plaintiff derives his title to the premises in question that only a limited power of sale is conferred upon him, viz: that such power of sale shall be only exercised with the assent and concurrence of certain life tenants named in such trust deed. Therefore in order that a complete title to the easements mentioned in the complaint, it is necessary not only that the trustee should convey, but that the said life tenants should signify their assent and concurrence. in such conveyance, which might be done by joining therein.

The judgment should provide, therefore, that the compensation, for fee damage should only be paid upon the tender of a conveyance executed by the trustee accompanied by the consent and concurrence of such life tenants.

All of the other questions involved have béen passed upon in other actions determined by -this court, and it is not necessary to-discuss the same.

We think, therefore, that the judgment should be modified by requiring that, as a condition of the demand of payment of the amount found as the value of the easement 'forming the subject-matter of this action, the plaintiff should not only tender his deed, but also the assent and concurrence of the said life tenants to such conveyance, and as so modified the judgment should be affirmed, without costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.