author: PATTERSON, J.

text:
    Frederick Correll et al., Pl’ffs, v. William Lauterbach, Def't.

      (Supreme Court, New York Special Term,

      Filed November, 1895.)

    1. Will—Poweb of sale—Execution.
    Where a power of sale given by testator is to be executed by the act and deed of the donee, but only with the consent of third parties, such consent must he shown in the particular manner pointed out by the statute.
    2. Same.
    Where a power of sale, to be effectually exercised, requires the consent of two sets of trustees a,nd the trustees of each trust are equally interested in and responsible for the due and proper constitution of the trust estates, and the power is given to aid in carving out and establishing from the-testator’s general estate the separate trust estates, the trustees of each independent trust are to be consulted and to approve of any sales, the proceeds of which are to become part of the capital of the trusts.

      3. Same—Defective execution.
    Purchasers for a valuable consideration, under a defectively executed power, have the same right to the protection of the statute as is accorded to such a purchaser claiming under a defective deed from an owner.
    4. Same.
    But such remedy cannot be made available in an action for specific performance of a contract made with the vendee for the purchase of the land.
    5. Same.
    A purchaser, who is entitled to his deed at the time named in his contract, will not be compelled to wait for years for the institution and determination of an action brought by his vendor against third parties or strangers to the contract to effect the title.
    Action by Frederick Correll and others against William Lauterbaeh to enforce the specific performance of a contract for the purchase of land. Plaintiffs claimed title through a deed executed by Maria L. Price, executrix of the will of Francis Price, deceased, and a confirmatory deed executed two years later, with the consent of Rodman L. Price annexed thereto. The deed was executed under a provision of the will that testator’s estate “be divided into two equal parts by my executors, with the concurrence of the trustees, to be signified in writing, under their hands and seals; and that so much thereof as my said executors and trustees shall deem advisable, be converted into money;” and that “any powers or estate herein given to my trustees are given to the acting trustees, or to the survivor or survivors of them, and to those who may succeed to the trust.” The trustees referred to in such provision were Rodman M. Price, as trustee for the children of the testator hv his first wife, and John H. Suckley, Rutsen Suckley, and George Suckley, as trustees of testator’s children by bis second wife. Defendant claimed that the attempted execution of the power of sale by Maria L. Price was ineffectual. Judgnient for defendant.
    David B. Ogden, Abram I. Elkus and E. P. Schell, for pl’ffs;
    George Hoadly, Abraham L. Jacobs and Samuel F. Jacobs, for def’t.
   PATTERSON, J.

The plaintiffs, vendors, pray that specific performance of a contract for the sale of land may he decreed against the defendant, the vendee. The evidence shows that, on the day appointed for the completion of the purchase, the plaintiffs were unable to convey, in accordance with the requirements of the contract, all the property the subject of the agreement; that is to say, their deed would not pass to the purchaser the clear legal title to an important part of the premises, viz. a strip some ten feet or more in width, constituting the whole avenue frontage of such premises. This inability resulted from the insufficient execution of an express power of sale contained in the will of Francis Price, who, in the year 1864, died seized of the land in question. The vendors’ paper title is derived through two deeds claimed by them to be sufficient in execution of the power,—one executed by Maria L. Price, executrix, etc.; and the other called a “conformity deed,” by Maria L. Price, executrix, etc., and by Rodnian M. Price, who was trustee of a particular trust created by the will referred to. The rights of the parties must be determined by considerations attaching to the express power of sale. I have sough in vain to uphold the conveyances as adequate to pass the whole title, on the theory that an implied power of sale might be spelled out; but the proof is unsatisfactory and inconclusive as to the condition of the testator’s estate, and as to the necessity of a sale of reality to pay either debts or legacies, or as to anything else to support an implied power, and the donation of the express power is so precise in its terms and definite in its scope that I am forced to the conclusion that no sale of the testator’s realty was authorized otherwise than pursuant to and in conformity with the actual power granted for the specific purposes ordained by the testator in his will. In the absence of .an implied power of sale, it is obvious that the deed from Maria L. Price, executrix, was ineffective as a grant. The power was given by the testator to be exercised under conditions. It was one of that class recognized by the statute of powers, to be executed by the act and deed of the donee, but only with the consent of third parties, which consent must be testified in the particular manner pointed out by the statute. Neither the formal statutory evidence nor any other proof of a consent of the third parties appears in connection with the deed referred to. Nor does the subsequent so-called “confirmatory deed”'remove the objection; for soniething more than an adoption of the sale by means of a conveyance, in- which Rodman Price, trustee, joined, was necessary to that end. The power of sale, to be effectually exercised, 'required the consent of two sets of trustees. I do not agree with the view that the power was granted to the executrix and trustees conjointly, and that, therefore, a deed under it must be executed by all of them as grantors; but it is plain, I think, that the testator intended that both sets of trustees, he survivors or successors, should consent to sales and conveyances to be made in furtherance of the testamentary scheme of establishing separate and independent trusts for the benefit of the children of each of his two marriages. As the trustees of each trust would be equally interested in and responsible for the due and proper constitution of the trust estates, and as this power was evidently given to aid in carrying out and establishing from the testator’s general estate the separate trust estates, it is plain that the trustees of each inde-. pendent trust were to be consulted, and were to approve of any sales he proceeds of which were to become part of the capital of the trusts. The confirmatory deed, considered as a consent, is merely that of the trustee of one of the trusts. The other trust was not represented in that transaction. No consent was given for it, and none is to be inferred. The situation is not relieved by the provisions of the will that all the powers, etc., are granted to the acting trustees and the survivor of them and their successors, and the suggestion that Rodman Price was the only acting and surviving trustee at the date of the confirmatory deed. He was not the trustee of the trust for the benefit of the children of the testator’s second marriage. The two trusts are with great care kept separate and independent through the whole will. The consents necesssary to a valid sale and conveyance were to be given by the trustees qua trustees, and not as mere individuals. It was an official consent, so to speak, that was required; and hence, if there were any one standing in the relation of successor to the trustees of the trust for the benefit of the children of the second marriage, the consent of that successor was requisite. At the time the confirmatory deed was made, that trust was not without a representative. It had devolved upon the supreme court. It was altogether within the power of the court to give or to withhold consent, either upon application directly made or through a person appointed to carry out the trust. But neither the court nor the present substitute of the original trustees (there was one appointed by this court shortly after the deeds referred to were made) has ever consented to or confirmed the sale or the conveyances, and hence it follows that, on the day performance was due under the contract in this cause, the vendors could not convey that marketable title to which the vendee was entitled, not by the contract only, but as a legal right. The case is therefore considered as presenting a feature of the defective execution of a. power of sale, and, as such, doubtless, the defect may be remedied on its being shown to the court that the sale was made bont fide, and for a full consideration. The plaintiffs, as purchasers for a valuable consideration, under a defectively executed power, may have the right to the protection of the statute which allows them the same relief in equity that would he accorded to such a purchaser claiming under a defective deed from an owner. But that remedy cannot be made available in this action for specific performance against this defendant. It is a familiar rule that in suits of this character, if no equities intervene to prevent, and a valid title can be made before decree, the court has a judicial discretion to compel a purchaser to take; but it is also a rule that the vendee shall not be required to await the result of an action brought or proceeding taken by his vendor against third parties or strangers to the contract to perfect the title. Toole v. Toole, 112 N. Y. 333; 20 St. Rep. 723. Such further proceedings are necessary to perfect this title. The statute says it may be perfected in the same way as a title claimed under the defective execution of a deed, viz. by a suit in equity, which, in the case of a deed, would be against the grantor or his heirs. In this case the beneficiaries of the trust and the substitute of the trustees of the trust for the children of the second marriage are entitled to be heard, and to have all questions bearing upon the original transaction and the consideration given for the land investigated. It is not equitable that a purchaser who was entitled to his deed at the time named in his contract should be compelled to wait for years for the institution and determination of such an inquiry, and especially so under the changed circumstances' of the defendant, sworn to by him on the trial of the cause. There must be judgment dismissing the complaint on the merits, and in favor of the defendant, for the recovery of the amount of the counterclaim, but, in view of the good faith of the plaintiffs, with taxable costs only.

Ordered accordingly. .


source: Caselaw Access Project

author: HARDIN, P. J.

license: Public Domain

text:
    Henrietta L. Butler, Plaintiff, v. Trustees of Parochial Fund of Protestant Episcopal Church of the Diocese of Western New York, Defendant.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Will—Void.
    A trust clause of a will, which does not name a definite, ascertainable beneficiary, is void. So held, where a testatrix gave to her neice a certain sum in trust to be invested by her, and the proceeds to be used for the support of a clergyman who should hold services in a specified chapel “as often as may be convenient, and for such other purposes in keeping up the church services as she may think advisable.”
    2. Same.
    Where a certain chapel and cemetery in a diocese are neither owned nor controlled by any organized body or corporation, but are owned by a privileged person, such corporation cannot, on the death of such owner, receive a certain sum bequeathed to him to be invested, and on his death be paid to such trustees, “to be held by tliem, and the income thereof used for paying a clergyman who shall hold divine services in” such chapel,
    ' “and to keep up and in good repair” such chapel and cemetery.
    3. Statutes—Retroactive.
    Chapter 701 of 1893 is not retroactive and does not apply to the will of a person who dies before it was enacted.
    Controversy submitted without action on an agreed statement of facts, pursuant to section 1279 et seq. of the Code.
    M. J. Sunderlin, for pl’ff;
    A. P. Ross, for def’t.
   HARDIN, P. J.

Jane G. Campbell died on the 19th day of January ,1891, being a resident of the town of Catharine, Schuyler county. She left her last will and testament, which bears date the 27th day of June, 1889. The will was admitted to probate on the 12th of March, 1891, by the surrogate of Schuyler county, and letters testamentary were issued to George H. Butler and to the plaintiff, who were the persons named in the will as executors, and who have qualified as such. The surrogate gave a construction to a portion of the will, and his decision was brought before us, and was reversed by us “upon the ground that the question as to the validity of the trust was not properly before the surrogate.” See 88 Hun, 374; 68 St. Rep. 769. Subsequent to our decision, and in September, 1895, the submission was agreed to by the parties. According to the language of the submission we arc asked to decide, viz.:

“Whether or not the following clause, contained in the last will and testament of Jane C. Campbell, deceased, constitutes a legal and valid trust, viz.: ‘Item. I give and bequeath to my niece, Henrietta L. Butler, the sum of fifteen thousand dollars, in trust, nevertheless, said sum to be invested by her as she may think best, and the proceeds thereof to be used for the support of- a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Cayuta Lake, as often as may be convenient, and for such other purposes in keeping up the church services as she may think advisable; and at the death of the said Henrietta L. Butler the said sum of fifteen thousand dollars shall be paid to the trustees of the parochial fund of the Protestant Episcop'al Church in the diocese of Western Hew York, to be held by them, and the income thereof used for paying a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Cayuta Lake as often as convenient, and to keep up and in good repair the said Lawrence Chapel and cemetery at Cayuta Lake.7 77

It is claimed in behalf of the plaintiff that the attempt to create a trust as to the $15,000 is invalid, and that the provisions of the will in that regard are void, and that, as she is the sole residuary legatee named in the will, she is entitled to receive the $15,000 as her own property. On the contrary, the defendant claims that a legal and valid trust is created under the will, and that the plaintiff can only hold the same subject to the provisions contained in the language used for the purpose of attempting to create a trust, and that upon the decease of the plaintiff the $15,000 must pass to the defendant for the uses and purposes mentioned in the mil. It appears that on the 1st day of June, 1888, the testatrix was the owner in fee of a farm consisting of about 194 acres, situated in the town of Catharine, and that by her deed she conveyed the same to the plaintiff, and that the plaintiff became the owner of the same, and that upon the lands was a residence, and that the lands were used and occupied as a farm. In the submission presented to us we find the following language: “Lawrence Memorial Chapel and Cemetery at Cayuta Lake,77 mentioned in the said will, are situated on the farm of 194 acres so conveyed by the testatrix to the plaintiff. It appears this chapel was erected a numher of years prior to the death of the testatrix by contributions of the Lawrence family and its descendants “as a mortuary chapel for holding the funeral services of the family in. It is a stone structure, 25 by 55 feet, and one story high; and when erected it was the intention of some of those furnishing the funds for its construction to hold nothing but funeral services of the familv therein, but since its erection divine services have been held therein at times at the instigation of said Lawrence familv, and paid for exclusively from their own private funds.77 It is further stated, that the Lawrence family were Episcopalians; and that funeral services of other denominations have been held in the-chapel, but only by permission of the owners of the chapel, as an accommodation to the neighbors. The case further states, viz.:

“There is not now, nor has there ever been, any church organization, or religious association, society or corporation of any kind, connected in any way or manned with said chapel or cemetery, and there is not, nor has there ever been, any incorporation of the cemetery under the statute or in any other way. Neither has there ever been any board of trustees, managers or vestrymen, or any other religious or corporate officers of any kind, connected with either the chapel or cemetery, or having any interest therin, or control of the same, or any part thereof, but the same has always been the private property of the owner of the farm, and has been in the possession of some of the Lawrence family or said descendants down to the present time; the said Elenrietta L. Butler, the present owner, being a niece of the said Jane G. Gampbell, deceased, who was one of the Lawrence family, and both of them contributed to the erection of said chapel. Said chapel and cemetery are situated on said farm, several miles away from any village or hamlet, and divine services have only been held in said chapel when some one or more of said Lawrence family have procured and paid for the same from their own private funds.”

The plaintiff resides in the city of New York. Schuyler county is a part of the diocese of Western New York.

According to the language used in the will, it was manifestly the intention of the testatrix that the $15,000 should be received by the plaintiff in trust, and held by her during her lifetime for the purpose of gathering “the proceeds thereof,” and she was directed to use the same for the support of a clergyman who shall hold divine services in the Lawrence Memorial Chapel at Cayuta Lake, and for such other purposes in keeping up the church services as she, the trustee, may think advisable.” We think this-clause does not name a definite, ascertainable beneficiary, and that it falls within the condemnation of the authorities relating to a-trust without certain beneficiaries who can claim its enforcement. Levy v. Levy, 33 N. Y. 97; Iseman v. Myres, 2 Hun, 654; dissenting opinion of Macomber J., in Be Ingersoll, 59 id. 572; 37 St. Rep. 419; which dissenting opinion was approved by the court of appeals, 131 N. Y. 573; 42 St. Rep. 752; Miller v. McKenzie, 95 N. Y. 576; Read v. Williams, 125 id. 560; 35 St. Rep. 909; Tilden v. Green, 130 N. Y. 29; 40 St. Rep. 512; People v. Powers, 147 N. Y. 115; 69 St. Rep. 403. The validity or invalidity of the trust does not depend upon the volition of the trustee. Holland v. Alcock, 108 N. Y. 312; 14 St. Rep. 761. We see nothing-in the language of the will which defines or names a beneficiary who could call upon the named trustee to execute the trust. Surely, it cannot be claimed that the Lawrence Memorial Chapel or the cemetery at Cayuta Lake are beneficiaries within the meaning of the rule of law which requires some definite or certain beneficiary to be named before validity can be assigned to a provision of a will creating a trust. ETor is any definite clergyman named or mentioned who could apply to the court and compel the plaintiff during her life to execute the trust in his behalf. The property is so situated that, if any itinerant clergyman should attempt to hold services in the chapel, he could not do so without the permission of the plaintiff; otherwise he would be a trespasser. 3STor do we find anything in the language of the will which would authorize a party to compel her to open the chapel for the purpose of allowing such a clergyman to hold religious services therein. If there was an organized parish, with wardens and vestrymen, and having corporate powers, known by the name of “Lawrence Memorial Chapel,” another question would be presented. Under the circumstances disclosed in the case submitted to us we are of the opinion that the trust must fail so far as the will attempts to create it during the lifetime of Henrietta L. Butler.

It is contended in behalf of the defendant that it was entitled to receive the $15,000 at the close of her life, under the provision in the will, “to be held by them, and the income therefrom used for paying a clergyman, who shall hold divine services in the Lawrence Memorial Chapel at Cayuta Lake as often as convenient, and to keep up and in good repair the said Lawrence Chapel and cemetery at Cayuta Lake.” In determining this last contention it is important to refer to the act incorporating the defendant, known as “Chapter 59 of the Laws of 1863, and the amendment of the eighth section thereof found in chapter 144 of the Laws of 1885.” The fourth section of the act authorizes the defendant to receive under the will such fund as shall be “devoted in part to the assistance and support of officiating ministers of the said church, engaged in parochial duty within the said diocese” (the section provides that this portion of the fund shall be called the “Fund for Clerical Support”), “and in part to the purchase of glebes and the erection of parsonages within the limits of organized parishes in the said diocese, in communion with said church; and which shall be called ‘Fund for Parsonage Aid.’ ” In the sixth section of the act provision is made for the distribution of such funds, and in prescribing the manner of distribution it is required that application shall be in writing, “signed either by the minister or by order of the vestry of the parish, and shall state the facts essential to a full understanding of the necessities of the case, and particularly the amounts already contributed or secured towards the support of the minister, or for the erection of a parsonage, as the case may be.” This language seems to apply to an organized body having legal existence. In the case before us we find no such organization, no such incorporation, and, therefore, no application could be made, signed by fiffe minister, or by the order of the vestry of the parish. In the eighth section power is given to receive by bequest, and hold “for clerical support or parsonage aid in particular parishes * * * for the benefit and interest of any parish in said diocese.” If we turn to the language of the will, we find that it does not specify any particular parish, or any organized body, that is to receive the income that may arise upon the $15,000; and we are of the opinion that the purposes mentioned in the will are not the purposes which are mentioned in the eighth section of the act under which the defendant is incorporated. The language of the will does not carry the idea that the testatrix intended to apply her bounty “to the whole or any one or more of the various purposes for which” the defend^ ant was authorized to hold property. Bird v. Merklee, 144 N. Y. 550; 64 St. Rep. 243.

Subsequent to the execution of the will the legislature passed chapter 701 of the Laws of 1893, providing that any bequest “shall not be deemed invalid by reason of the indefiniteness or uncertainty of the persons designated as the beneficiaries thereunder in the instrument creating the same.” It is contended that this act enables the defendant to receive the moneys mentioned in the will under consideration. As already stated, the will bears date the 27th of June, 1889, and the testatrix died on the 19th day of January, 1891. We are not inclined to hold that the statute is retroactive in its provisions, and are of the opinion that the statute has no application to the case in hand. In alluding to that statute in Dammert v. Osborn, 140 N. Y. 43; 55 St. Rep. 586, it was assumed that the statute could not apply to a case where the property had vested before its enactment. In the will before us we find a provision as follows:

“All the rest and residue of my property, both real and personal, of every description, I give, devise and bequeath to my niece, Henrietta L. Butler, and constitute her my residuary legatee; and, should any legacy or devise herein lapse, or be held by any competent court to be invalid, then the part of my estate included therein shall go to my said niece, Henrietta L. Butler, the residuary legatee and devisee of all my property.”

We are of the opinion that under this provision of the will Henrietta L. Butler, at the death of the testatrix, became entitled to receive the $15,d00, inasmuch as we are of the opinion that the trust attempted to be created in the clause to which we have given attention was invalid. We therefore reach the conclusion in this case that judgment should be ordered in favor of the plaintiff, declaring that the plaintiff is entitled to the $15,000-, and that the clause contained i the will does not constitute a legal and valid trust. We think judgment should be ordered in favor of the plaintiff. Hnder the circuihstances of this case we think it is proper to award costs to both parties out of the fund. Dammert v. Osborn, 140 N. Y. 48: 55 St. Rep. 586.

Judgment ordered in favor of the nlaintiff, with costs of both parties payable out of the fund. All concur.


text:
    Maria A. O’Harra, as Administratrix, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1, -Negligence—Eailroad companies.
    Where, during the strike of the employes of a railroad company, a militiaman was, at the company’s request, placed on guard in its yard, and the cars in such yard were not moved- for twenty-four hours after he arrived at the yard, the question whether the company, in moving its cars without warning to said soldier used ordinary care, was one of fact.
    9, New trial—Newly discovered evidence.
    The new evidence must be of such importance that it will probably overcome all the evidence given upon the trial inconsistent with it, in order to entitle the party to a new trial.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from orders denying motions for a new trial made on the minutes, and on the grounds of newly discovered evidence.
    Mullin, Griffin & Walker, for app’lt;
    C. N. Bulger and D. P. Moorehouse, for resp’t.
   HARDIN, P. J.

In August, 1892, there was a strike on the defendant’s road in the city of Buffalo and East Buffalo. It became so general and alarming that the defendant appealed to the governor of the state to exercise his powers as commander of the militia, and he did so by calling out the militia of the state to the extent of some 8,000 men. The call that was communicated to the forty-eighth separate company of Oswego reached there about twelve o’clock on the night of the 16th of August, and about three o’clock of the morning of the next day the company were placed in cars, and transported immediately to the scene of the trouble; and upon reaching the defendant’s property, some of the defendant’s officers immediately communicated their desires to the officers of the forty-eighth separate company in respect to the operations to be observed in order to carry out the efforts to protect the property of the defendant. . Defendant’s property was in the hands of riotous strikers, and a mob spirit prevailed, and its property was in great danger of disaster and destruction. After the officers of the forty-eighth separate company had received information and instructions from the officers and managers of the defendant’s affairs, they proceeded to deploy their men in and about the stock yard of the defendant in East Buffalo, where there were numerous tracks and side tracks, besides the main tracks of the defendant. Plaintiff’s intestate was called upon to act as sentinel in guarding a certain portion of the yard.' He was a young man about twenty-one years of age, and apparently obedient to the instructions of his military superiors; and in the discharge of his duty after receiving such instructions, he was engaged in pacing a distance of about 200 feet, in uniform, attempting to guard the property of the defendant against depredations, either from the strikers, or evil-disposed, riotous persons; and while engaged in the discharge of his duty, in obedience to the instructions of his commanding officers, he received the injuries which resulted in his death. There was a train of some twenty-five cars standing in the yard near the end of the beat given to the intestate, and they had not been moved in any way by the defendant during the time the intestate had been in the yard. The arrival of the forty-eighth separate company was at eight o’clock on the morning of the 17th. The injuries resulting in the intestate’s death were received about eleven o’clock of the morning of the 18th of August. Considerable evidence was offered tending to show that the yard was apparently a “dead yard,” or to show that there had been no movement of this train of cars, and,, that, judging from the fact that no movement had been made of them, it is not reasonable to apprehend a sudden change of operations on the part of the defendant. The twenty-five cars extended from west to east, and the easterly portion seemed to be upon a curve, and the easternmost portion, apparently, was not discernable from the western portion, or from the beat occupied by the intestate. They were suddenly put in motion by an engine which was at the east end of the train, pushing several cars down against the body of the dead cars, and suddenly moving the whole line westerly, and apparently the movement thus occasioned caused the westerly end of the cars to collide with, the deceased, and to cause the injuries to him which he received on that occasion, resulting in death in about an hour after he was struck.

After reading the evidence presented in the appeal book, we are of the opinion that the question of whether the defendant exercised towards the intestate ordinary care and precaution; whether its omission to give timely and due warning of the movement of the cars, or in some way to apprise the intestate that the cars were to be set in motion,—was a juestion of fact for the jury. In considering this question, it was very proper for the jury to bear in mind that the soldiers were invited by the defendant to come to its aid when its property was in peril, and when its business was interrupted, and that at the instance of the defendant the soldiers were placed in the yards, and were instructed, in a general way, to look out for all depredations and depredators, and that, tinder the circumstances of the case, the railroad was called upon to treat the soldiers with care and prudence. There was evidence tending to show that no bell was rung or whistle sounded or alarm given, which could in any way arrest the attention of the deceased to the disposition of the defendant to suddenly change its course in respect to the dead cars standing near the termination of the intestate’s beat. The defendant was chargeable with notice of the position occupied by the intestate, and of the possible dangers that might arise from a sudden change of its action by causing its cars, without warning of any kind, to be put in motion. The question, therefore, was for the jury to determine, whether such reasonable precaution in their management as ordinary prudence dictates, to protect the intestate, was given. Hollender v. Railroad Co., 19 Abb. N. C. 18; Young v. Railroad Co., 13 Daly, 294; affirmed, 103 N. Y. 678. It is contended in behalf of the appellant that the intestate was chargeable with contributory negligence. After all the facts and circumstances surrounding the situation of the deceased at the time of receiving the injuries are considered, a reasonable deduction therefrom seems to be that it was a question so circumstanced that the question of whether he was guilty of negligence or not was one which should have been, and was properly, submitted to the jury. Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 364; 22 St. Rep. 697. We think the facts of the case before us differ quite essentially from the pivotal facts disclosed in Van Schaick v. Railroad Co., 43 N. Y. 527. In that case it did not appear that Van Schaick had any such assurances from the lapse of time as the deceased in the case now before us had, as to the stationary condition of the cars which he was passing. The instructions of the trial judge were quite reasonable upon the question of the intestate’s freedom from negligence on the occasion of his receiving the injuries. We see no error in the course of the trial which requires us to interfere with the verdict of the jury.

2. A motion was made for a new trial on newly-discovered evidence, based upon the affidavits of Cottle and Harlach. Some of the facts which are stated in the affidavits are upon subjects upon which testimony was given, and can, at most, be said to be conflicting with some of the evidence found in the progress of the trial. Under the rule which is to the effect that the new evidence must be of such importance that it would probably overcome all the evidence given upon the trial inconsistent with that newly discovered, we think the trial judge committed no error in refusing to grant a new trial. Adams v. Bush, 2 Abb. Prac. (N. S.) 104; Railroad Co. v. Sage, 35 Hun, 95. The trial judge saw the witnesses during the progress of the trial, and was called upon to judge as to whether or no, in his opinion, the affidavits furnished indication of such evidence as, if considered in connection with that given upon the trial, would lead to a different result; and his judgment, and therefore his decision, in the premises, was that the alleged newly discovered evidence would not produce a change of result. We are not persuaded that he committed any error in that regard. We are of the opinion that the judgment and orders should be affirmed, with costs.

Judgment and orders affirmed, with costs.

All concur.


text:
    Cortland Howe Ventilating Stove Company, Resp’t, v. Hezekiah Howe et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Contracts—Reformation.
    Where, in an action to reform a .contract, the oral evidence and the original resolutions and the record in the books of the company furnish clear and satisfactory evidence that the written paper does not contain the actual agreement entered into between the parties, a judgment reforming the parol agreement will not be disturbed on appeal.
    2. Evidence—Opinion.
    A witness, who is familiar with the manufacture and sale of stoves, may testify to the value of a, patent for a stove.
    Appeal from a judgment rendered for plaintiff.
    Smith & Dickinson, for app’lts;
    B. T. Wright and O. U. Kellogg, for resp’t.
   HARDIN, P. J.

Voluminous appeal books are presented to us containing evidence which satisfactorily sustains the findings of fact made by the referee. In July, 1887, the Howes were the-owners of certain letters patent described in the complaint. Upon their efforts, in connection with other persons, the plaintiff was organized under the manufacturing laws of 1848, and a certificate was signed and filed, and Caleb B. Hitchcock was elected president, and Prank W- Collins was elected secretary and treasurer. The amount of the capital stock was $180,000. In August, 1887, an oral agreement was made between the defendants Howes, on the one part, and the corporation, on the other, whereby the Howes, agreed to sell and transfer to the corporation all their right, title and interest in the said letters patent, and in certain inventions, patterns, castings, designs, cuts, and drawings, and all their right, title and interest in and to a certain contract in writing between the Howes, on the one part, and the Howe-Ventilating Stove Company of Pulton, on the other part, and all the benefits and interests accruing to the Howes or their assigns thereunder subsequent to July 6, 1887. The plaintiff corporation agreed to purchase the same, and did pay the Howes therefor the sum of $150,000, in the capital stock of said corporation to be-issued and delivered to them, and in royalties at the rate of one dollar for each and every ptove manufactured by said company, or caused to be manufactured by it, under said letters patent, up to the number of 75,000. At a meeting of the trustees of the corporation held on the 1st of August, 1887, the defendant Benedict, who had been employed by one or both of the parties to the said oral agreement to reduce the same to writing, read his draft of the same, in which it was stated that the royalties to be paid by the company “to the said Howes shall be at the rate of $1.00 per stove on all stoves made by said company at its works in Cortland, or caused to be made elsewhere.” It was then stated in the said meeting that the proposed contract was not in accordance with the terms of the agreement of the parties, and thereupon resolutions were written out and adopted at the meeting, and afterwards entered by the secretary in the records of the proceedings of the meeting. The resolutions were as follows:

“On motion of William Howe, resolved, that the contract with the Messrs. Howe Brothers and their wives for the transfer of their patent, etc., to this company, be rewritten so as to show clearly the original intention and agreement, viz, that the company are to issue Messrs. Howe Brothers and their wives, in consideration of such transfer, $150,000 of the stock of this company, and pay them a royalty of one dollar on each stove made or caused to be made by this company under such patent up to the number of 7 5,000, preserving the other features of the agreement.”
“On motion of William H. Clark, resolved, that Mr. Benedict be authorized to superintend the preparation of the new contract with Messrs. Howe and their wives, and the signing of the same, and the issue of the stock, pursuant to the above.”

When these resolutions were adopted, there were present at the meeting Hitchcock, Rickard, H. Howe,* William Howe, William H. Clark, Theodore Stevenson, F. W. Collins, and B. A. Benedict.

It was found by the referee: “Each of the foregoing resolutions was deliberately considered,- fully understood by the persons present at said meeting, and was adopted without dissent.” Very-soon thereafter Mr. Benedict drew what purported to be duplicate copies of the agreement between the defendants Howe and the corporation. The contract as set forth in the complaint was executed, and it is found that Benedict, Hitchcock, and the Howes, in executing the contract, “acted with full knowledge that the said duplicates were drawn as above stated, and that in that respect they did not conform to the agreement of the parties and the directions contained in the said resolutions adopted at the meeting of August first, and also with the purpose and design of furthering the interests which said Duell & Benedict and Hitchcock, respectively, had under their said agreements with the Howes in respect to said royalties, and -with the intent of defrauding the said company in that respect.” < It is also found by the referee that “the defendant Hitchcock, in executing said duplicates, as president of said company, acted without authority, and in disregard and violation of the express direction of said company and its trustees, as was known to the Howes.” Other formal facts are found by the referee, and he then found as conclusion of law that “the plaintiff is entitled to a judgment reforming said contract (a copy of which, Exhibit A, is attached to the complaint herein) so as to conform to the true agreement of the parties, to wit, by so altering it as that it shall provide that the royalties of one dollar on each stove to the number of 75,000, to be paid by the said corporation to the said Howes, shall be upon the stoves made or caused to be made by said corporation under the said Howe patent, instead of upon all stoves made or caused to be made by said corporation.”

Inasmuch as the plaintiff was not organized for the purpose of manufacturing stoves under the Howe patent exclusively, it is not very probable that there was any occasion for its entering into an agreement to pay royalties on stoves not manufactured under the Howe patent. The oral evidence and the original resolutions and the record in the books of the company furnish.clear and satisfactory evidence that the writen paper did not contain the actual agreement entered into between the parties. We think the evidence is sufficient under the somewhat stringent rules in respect to proofs to be given in an action for the reformation of a parol agreement. The rule to be applied in a case where a reformation of contract was sought is stated in Born v. Schrenkeisen, 110 N. Y. 59; 16 St. Rep. 412, and in Devereux v. Sun Fire Office, 51 Hun, 147; 20 St. Rep. 584. See Southard v. Curley, 134 N. Y. 148; 45 St. Rep. 778.

Our attention is invited by the appellants to the case of Allison Bros. Co. v. Allison, 38 N. E. 956. Upon careful attention being given to that case, it is not apparent that the testimony offered there was as strong or as satisfactory as the evidence found in the appeal book before us. We are unable to see that that case contains any rule of law or of evidence that requires us to interfere with the findings of fact made by the referee.

Some criticism is made by the appellants upon the complaint. In looking into it, we find that it states facts very fully and clearly which were important to form the basis for the relief granted by the referee. Under all the proofs before the referee and now presented to this court upon the essential features of the case, if amendment was required of the complaint, there is no authority for saying it might now be made.

In Born v. Schrenkeisen, 110 N. Y. 59; 16 St. Rep. 412, near the close of the opinion, it was said:

“The elements for a reformation all existed in the record, and/' the judgment may now be so modified as to grant a reformation. It is clear that the case was tried upon the assumption by both parties that, if the defendants proved the facts alleged in their answer, they were entitled either to a dismissal of the complaint or to a reformation of the written agreement.”

In that case a judgment was allowed “to reform the agreement in accordance with the findings of fact.”

2. Complaint is made by the appellants of a ruling which allowed in evidence a certified copy of a patent issued to Messenger in November, 1886. Before that was offered, considerable evidence had been given upon the question of alleged fraudulent acts in respect to the reformation by the plaintiff in which some of the defendants were alleged to have participated. The referee, when receiving the evidence, observed: “The evidence is admissible; its effect to be considered afterwards upon the issue of fraud.” We think the exception taken to the ruling does not present any error which requires us to interfere with the decision of the referee.

Collins was called as a witness, and after giving testimony showing his familiarity with stoves, and the manufacture thereof, and the sale of them, he was allowed to state what was the value of the Howe patent, agaist the objection and exception of the appellants. We think the witness was sufficiently familiar with the subject-matter involved in the question to render his evidence competent. The force and effect to be given thereto were for the referee to determine after all the facts disclosed by bim were considered. We think the exception does not present error. Nor do' we think it was error to allow the witness Clark to state that in purchasing the Howe patent, and in making the contract, he relied upon and believed the representations of the Howes with reference to the patent.

It seems, before this action was brought, the Howes brought an action against the plaintiff upon a written contract, and the corporation appeared and interposed a demand for reformation of the contract, and, as the case was approaching trial, an application was made to discontinue the action. Objection being made to that discontinuance, as a counterclaim asking for that reformation of the contract had been set up, and in response to that objection, proof was made that the plaintiffs in that action were prosecuting one against the trustees of the corporation, and to recover royalties claimed to be due under the contract. The defendants in that action then insisted that the question as to the reformation of the contract ought to be first determined before the action for recovery of royalties should be tried; and it seems to have been agreed that the question as to whether the written contract did or did not correctly state the agreement made between the parties should be determined in an action brought for that purpose; and thereupon it was agreed that this action should be brought, and that it should be referred, with the action for royalties, to the same, referee, and that the question as to the re^1 formation of the contract should be first determined. In the order entered at special term the 21st of April, 1890, it was .provided that upon the action “to reform said contract being brought,” the action for royalties should be tried before the same referee, “and that the referee shall first determine the issues for the reformation of said contract before determining the other issues in said action.” During the trial the referee seems to have doubted his power to authorize an amendment of the complaint. Hpon the pleadings as they were, and upon the ■proofs as given, and under the arrangement entered into by the parties in respect to the trial of the question as to the reformation. of the agreement mentioned above, we are of the opinion that the denial of the motion to amend the complaint did not work any harm to either of the parties. Christopher & T. St. R. Co. v. Twenty-Third St. R. Co., 78 Hun, 472; 60 St. Rep. 774. "We are of the opinion that the appellants’ learned counsel is in error when he supposes the court had made “a new contract for the parties.” On the contrary, upon the evidence entirely satisfactory to the referee, and which meets with our approval, the decision of the referee is such as that it conforms the written contract to the actual agreement entered into between the plaintiff and the appellants according to well-settled rules of equity. Pitcher v. Hennessy, 48 N. Y. 415; Born v. Schrenkeisen, 110 id. 55; 16 St. Rep. 412; Devereux v. Sun Fire Office, 51 Hun, 153; 20 St. Rep. 584.

Judgment affirmed, with costs against the appelants.

All concur.


author: MERWIN, J.

text:
    Charles Davis, as Receiver, etc., Resp’t, v. Charles H. Knipp, App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Banks and B anking—Rational—Insolvency.
    Under sectiohs 5236 and 5242 of the United States Revised Statutes, the maker of a note held by an insolvent national bank, cannot, in defense to an action thereon by the receiver, offset a claim against the bank which was assigned to him after the bank suspended and before the receiver was appointed.
    Appeal from an interlocutory judgment sustaining a demurrer to the answer.
    Youmans & Moss, for app’lt;
    Charles H. Peck, for resp’t.
   MERWIN, J.

In the complaint it is alleged that the Elmira National Bank was incorporated as a national banking association on August 1,1887, under the laws of the Hnited States, and as such carried on the business of banking at Elmira down to and until the 23d day of May, 1893, when it became insolvent, closed its doors, and then and there suspended and discontinued its business, and has not since resumed the same; that on the 26th May, 1893, the comptroller of the currency of the Hnited. States, having become satisfied of the insolvency of the bank, and being thereto duly authorized by law, appointed the plaintiff, Charles Davis, receiver of the bank, by a certificate dated that day, and the plaintiff duly qualified, and on the 2d June, 1893, entered upon the trust, took possession of the assets of the bank, and ever since has been, and now is, engaged in the discharge of his duties as such receiver, among which duties is the collection of all debts due the-bank; that on or about the .18th of February, 1893, the defendant, for value received, executed and delivered to the bank his promissory noto for $500, payable to the order of the bank, and at the bank, three months after the date thereof, and this note was transferred to the plaintiff, as such receiver, and is still held and owned by him as such; that the note was duly presented for payment, and no part has been paid, except $49.31, paid September 28, 1893. In the answer no part of the complaint is denied, except the allegation of payment. In the second count of the answer, being one of the counts demurred to, it is alleged, by way of offset and counterclaim, that the said bank is such corporation and the plaintiff such receiver thereof, as in the complaint alleged; that on the 25th May, 1893, the bank was indebted to the firm of Knipp & Clark in the sum of $46.94 for moneys theretofore deposited by them therein, and at the date named the said firm gave to-defendant a check for said moneys, and assigned to defendant their claim therefor; that the defendant has been prevented from presenting the check for payment by reason of the fact that prior to and on the 25th May, 1893, the bank and its banking house was and has continued to be closed, and its business suspended , it refusing and neglecting to pay all and every of its obligations. The other counts demurred to are in the same form, except as to the amount of the debt and the name of the depositor. All are for claims assigned intermediate the failure of the bank and the appointment of the receiver. The demurrer is upon the grounds that the counts demurred to are respectively insufficient in law, upon the face thereof, and that they do not state facts sufficient to constitute a cause of action. It is not claimed that the defendan has any cause of action against the receiver, except by way of offset to the claim sued upon. The insolvency of the bank on the 23d May, 1893, is admitted. Long v. Mayor, etc., 81 N. Y. 427. After that, and before the appointment of the receiver, the defendant purchased claims against the bank. Are they available to him in this action, by way of offset? The defendant claims that his rights are to be determined as of the date of the appointment of the receiver. The plaintiff claims that the right of offset must be determined as of the date of the insolvency. The provisions of the national banking law which are claimed to be applicable are as follows:

“See. 5236 (Rev. St. U. S.). From time to time, after full provision has been first made for refunding to the United States any deficiency in redeeming the notes of such association, the comptroller shall have a ratable dividend of the money so paid over to him by such receiver on all such claims as may have been proved to his satisfaction or adjudicated in a court of competent jurisdiction, and, as the proceeds of the assets of such association are paid over to him, shall make further dividends on all claims previously proved or adjudicated; and the remainder of the proceeds, if any, shall be paid over to the shareholders of such association, or their legal representatives, in proportion to the stock by them respectively held.”
“Sec. 5242. All transfers of the notes, bonds, bills of exchange, or other evidences of debt owing to any national banking association, or of deposits to its credit; all assignments of mortgages, sureties on real estate, or of judgments or decrees in its favor; all deposits of money, bullion, or other valuable thing for its use,, or for the use of any of its shareholders or creditors; and all payments of money to either, made after the commission of an act of insolvency, or in contemplation thereof, made with a view to prevent the application of its assets in the manner prescribed by this chapter, or with a view to the preference of one creditor to another, except in payment of its circulating notes, shall be utterly null and void; and no attachment, injunction or execution, shall be issued against such association or its property before final judgment in any suit, action, or proceeding, in any state, county, or municipal court.”

The question involved on this appeal was considered in Bank v. Taylor, 5 Pa. St. 14; and it was there held that the defendant, a debtor of the bank, could not use as an offset a claim of a depositor purchased the day after the bank, being insolvent, closed its doors, and before the appointment of a receiver. It would give a preference to one creditor of the bank after the act of insolvency, and would defeat the primary object of the statute. The doctrine of that case was approved in Scott v. Armstrong, 146 U. S. 511, where it is said:

“The state of case where the claim sought to be offset is acquired after the act of insolvency is far otherwise, for the rights of the parties become fixed as of that time, and to sustain such a transfer would defeat the object of these provisions. The transaction must necessarily be held to have been entered into with the' intention to produce its natural result,—the preventing of the application of the insolvent’s assets in the manner prescribed.”

In Louis Snyder’s Sons Co. v. Armstrong, 37 Bed. 18, 21, it is said that the fact that the claim sought to be set off was assigned to the debtor of the bank after the act of insolvency—

“Malees all he difference imaginable, for it is well settled that the rights of the parties become fixed at the moment and by the act of insolvency; and any subsequent change of the then situation, by assignment or other transfer, cuts off this equity of ‘insolvency set-off,’ if I may call it so.”

In Armstrong v. Warner, 49 Ohio St. 371, 391, the eqrdtable right of set-off existed at the time of the failure, and was therefore allowed. In Bank v. Colby, 21 Wall 609, it was held that an attachment against the property of a national bank organized under the act of 1864, obtained after the bank became insolvent, and before the appointment by the comptroller of a receiver, was not good as against the receiver. The claim sustained by the court in Hughitt v. Hayes, 136 N. Y. 163, 165; 49 St. Rep. 100, related to demands held by the plaintiff against the bank at the time of its failure. The receiver is a trustee for creditors (Scott v. Armstrong, 146 U. S. 507), and represents also, to some extent, the bank and its stockholders. Case v. Terrell, 11 Wall. 202. The statute intended to prevent preferences among creditors (Robinson v. Bank, 81 N. Y. 393), unless based on some right that had accrued before insolvency. Very clearly, the object of the law would be frustrated if a valid set-off could be obtained by a debtor under the circumstances alleged in this case. Nor do we think that the defendant, under the provisions of section 502 of the Code of Civil Procedure, acquired any right of set-off superior to the claim of the receiver. We are referred to no authority that sustains that proposition. The case of Elmira Savings Bank v. Davis, 142 N. Y. 590; 60 St. Rep. 305, is based on an entirely different theory. There the right of plaintiff was initiated before insolvency. The assets of the bank are in the hands of the receiver, to be administered under the banking law (Resenblatt v. Johnston, 104 U. S. 463), and that law, so far as applicable, must control in this action, although it is brought in a state court. We are of the opinion that, as against the receiver, the judgment, upon his assigned claims, has no right of set-off.

The judgment must therefore be affirmed.

All concur.

Judgment affirmed, with costs.


text:
    Pius Stahlberger, Resp’t, v. New Hartford Leather Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)
    Principal and Agent—Authority.
    An agent who has authority to hire parties to work, as between his principal and strangers dealing with him, will be deemed to possess general authority to employ, unless the limitation or qualification of his authority has been made known to the persons whom he employs in the service of his principal.
    Appeal from a judgment for plaintiff and an order denying a motion for a new trial.
    Van Auken & Pitcher, for app’lt;
    Sayles, Searle & Sayles, for resp’t.
   MERWIN, J.

The defendant is a domestic corporation organized in the spring of 1893 for the purpose of tanning and manufacturing fancy leather at the village of New Hartford. The plaintiff is a tanner by trade, and on the 24th July, 1893, he entered into the employ of the defendant under a contract of hiring, as he claims, for the term of one year, at the price Or wages of $13.50 a week, payable at the end of every week. lie continued at work to the 21st October, 1893, and was then discharged. This action is to recover, as damages for the breach of the contract, his wages for the balance of the year, less what he has been able to earn elsewhere; and,the recovery is on that basis. The claim of the defendant is that the hiring was by the day, and not otherwise, so that it had a right to discharge the plaintiff at any time. The contract with plaintiff was made on the part of defendant by one Rose, who was its general manager. Rose had a written contract with defendant, dated June 30, 1893, by which he was employed by the defendant for the term of five years to act as its general manager, and to superintend the manufacturing and tanning of leather; and it was by the contract provided that he was to be in all things under the direction and control of the board of directors of the defendant. It was also provided that if, at any time, the board of directors of the defendant should decide that it was not for the interest of the company to continue its business, the contract should be canceled, and the employment of Rose should terminate. There was ’evidence on the part of the plaintiff that tended to show that Rose, as general manager of defendant, and acting for it, employed plaintiff for a year. There was evidence to the contrary on the part of the defendant. Whether there was such a contract made was clearly a question of fact which the jury have disposed of in favor of the plaintiff. But the defendant claims that Rose, as general manager, had no power to make a contract for a year. Besides'the contract between defendant and Rose, there was some evidence that Rose had the general management of the business and had power to hire and discharge men. There were five directors of the corporation, and on the 16th June, 1893, they appointed one of their number (Mr. Seaton) managing director. It does not appear that after the contract with Rose was made the' board of directors, as such, took any action limiting or controlling the power of Rose. There was evidence on the part of the defendant that Rose, before consummating any arrangement for help, consulted with Seaton; also that, before plaintiff left, Seaton never hired any one, and that he never asked plaintiff under what arrangement he was at work. Plaintiff lived at the village of Oneida, and upon entering the employ of defendant moved his family to New Jlartford. According to the testimony of Rose on the part of defendant, the plaintiff was discharged for cause, but no defense of that kind is set up. At the close of the trial the defendant moved for a nonsuit upon the ground, among others, that no authority was shown in Rose to hire plaintiff for a year. This motion was denied, and defendant excepted. Defendant also moved on the same grounds that the court direct a verdict in its favor. This was denied, and exception taken. The court charged the jury that under the contract between Rose and the defendant, and upon the other evidence in the case, whatever Bose did with reference to hiring the plaintiff was the same as if the defendant in person had done it, and whatever bargain Bose made, so far as this case was concerned, the defendant made; and refused upon the request of the defendant to charge that the contract between defendant and Bose does not confer authority upon Bose to bind the defendant by the contract of hiring for a year. Defendant duly excepted.

In Cox v. Albany Brewing Co., 56 Hun, 489; 31 St. Rep. 666, which was an action like the present for damages under a contract of employment for a year, it was held that:

“An agent who has authority to hire parties to work, as between his principal and strangers dealing with him, will be deemed to possess general authority to employ, unless the limitation or qualification of his authority has been made known to the persons whom he employs in the service of his principal.”

In Williams v. Getty, 31 Pa. St. 461, which was an action for damages on a contract of employment made between plaintiff and the general manager of defendant, it was held that:

“The authority of a general agent to contract so as to bind his principal is only limited to the usual and ordinary means of accomplishing the business intrusted to him. If the principal holds out the agent to the world as a general agent in the transaction of his business, any contract made by him within the scope of that business will bind the principal, although there may be, as between the principal and agent, a restriction upon the general authority of the latter, if the person with whom the contract is made have no notice of such restriction. Persons dealing with an agent carrying on a.general business, such as a general manager of a railroad contractor, are not bound to inquire into the particulars of the agent’s authority when held out to the world as a general agent.”

A general manager of a lumber manufacturing corporation has been held to be authorized to employ workmen for the season, although he had no express authority to employ by the season. Ceeder v. Lumber Co., 86 Mich, 541; 4 Thomp. Corp. § 4854. “A foreman intrusted with the general management of a trade or business has an implied general authority from his employer to enter into all such contracts. as are usually and necessarily entered into in the ordinary conduct and management of the business.” Add. Cont. § 69. See, also, 2 Cook, Stock, Stockh. & Corp. Law, § 719.

The case of Smith v. Association, 12 Daly, 304, is relied on by the defendant. In that case one Wales was in July, 1881, employed by defendant as general manager for one year. , In March, 1882, he hired plaintiff for one year as a “buyer.” It was held that the defendant was not bound. There were no circumstances that indicated any apparent authority to make a special bargain of that kind, and emphasis was given to the fact that the control of the general manager was limited to a year. This does not reach the present case.

The motions for a nonsuit and for a direction of a verdict for "defendant were properly denied. By these the court was asked to hold as matter of law that the defendant was not bound by the act of Rose. There was, out side of the contract of Rose with the defendant, evidence tending to show that Rose was held out as general agent with general power to hire and discharge men, and that the contract with plaintiff was within the scope of such agency, and that plaintiff had no knowledge of any restriction on the apparent power of Rose. .Very clearly the court was right in declining to say as matter of law that Rose had no power to bind the defendant. The exception to the charge that Rose did under the contract and the other evidence in the case, have power to bind the defendant, is not available under the ruling in the case of Village of Port Jervis v. First Nat. Bank, 96 N. Y. 551, 560, ther being no request to have the question of authority submitted to the jury.

Nor do we think that the court erred in refusing to charge that the contract between Rose and the defendant did not confer authority upon Rosé to bind the defendant by the contract of hiring-for a year. The point of the defendant seems to be that no contract of Rose would be effective to bind the defendant until the defendant, by its managing director, approved of it. This construction should not, we think, be given to the contract between Rose and the defendant. The board of directors, and probably the managing director, had the right to control and direct Rose in the discharge of his duties; but, in the absence of such direction, the presumption would be, as the trial court well said, that Rose had the general authority of a general manager. Any one dealing with Rose within the scope of the agency, and without knowledge of any restriction on his presumptive power, could hold the company. The presumption was that Rose had power to make the contract with plaintiff, and so the request was properly refused. If there was any question whether the contract with plaintiff was within the scope of the agency of Rose, or whether-the plaintiff had any notice of any limitation on the authority of Rose, the defendant should have asked for the submission of those questions to the jury. The provision of the contract between Rose and the defendant, that the contract might be terminated if thought best for the interest of the defendant, is not important here, as there is no claim that it did not continue long after the term of plaintiff’s contract. These considerathins lead to an affirmance of the judgment.

Judgment and order affirmed, with costs.

All concur, j


text:
    Juliaette L. Montgomery, Resp’t, v. George H. Burgess, as Executor, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Executors —Disputed claims—Reference.
    Where an executor agrees ,Iiat, on the approval of the surrogate of a certain county, a claim may be referred to a certain person, and attends the trial before such person, he cannot, after the case is submitted, and before the referee reports, have the order of reference vacated on the ground that the reference should have been approved by the surrogate of another county, by whom his letters were issued.
    2. Letters—Mortgaged lands.
    Where a testator for an adequate consideration furnished by his daughter, agrees to purchase and pay for a certain piece of property and deed it, or cause it to be deeded, to his daughter, and subsequently purchases it and deeds it, but does not pay for it, the agreement to pay for the property, in the absence of the intent to relieve the testator from full performance, does not merge in the deed but survives as a part of the origninal transaction, and a sum paid by the uaughter to satisfy the mortgage is a valid claim against the estate.
    3. Same—Interest on mortgage.
    Where the testator and his daughter gave their note for money borrowed by him to pay interest on such mortgage, and the testator agrees to pay it, the sum paid by her thereon is a valid claim against his estate.
    Appeal from an order denying a motion to vacate the order of reference, and from a judgment for plaintiffs.
    Charles D. Thomas, for app’lt;
    Devendorf & Smith and J. A. Steele, for resp’t.
   MERWIN, J.

The appeal from the order may be first considered. On the 20th March, 1893, the plaintiff presented a claim against the estate of defendant’s testator to the defendant, to whom letters testamentary had been issued on December 24,1889', by the surrogate’s court of Otsego county. The claim was rejected by the defendant, and thereupon, under the provisions of section 2718 of the Code of Civil Procedure, a stipulation was made and an order of reference was entered in Herkimer county on August 16, 1893. The ground upon which it is sought to set aside this order was that the approval of the stipulation was made by the surrogate of Herkimer county, and not by the surrogate of Otsego county.

The provision of the Code on this subject is as follows:

“If the executor or administrator doubts the justice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such agreement and approval in the office of the clerk of the supreme court in the county in which the parties of either of them reside, an order shall be entered by the clerk- referring the matter in controversy to the person or persons so selected. On the entry of such order the proceeding shall become an action in the supreme court. The same proceedings shall be had in all respects, the referees shall have the same powers, be entitled .to the same compensation, and subject to the same control as if the reference had been made in an action in which such court might, by law, direct a reference.”

The stipulation, which was signed by the parties, is dated June 24, 1893, and states that, “upon the approval of the surrogate of Herkimer county,” the matter be referred to the referee named, “to hear, try and determine the same according to the statute in such c,ase made and provided.” The plaintiff lived in Herkimer county. After the order of reference was entered, on November 3, 1893, the defendant’s attorney signed and .delivered to the plaintiff’s atorneys a stipulation entitled in the action, stating “that the trial of this action be, and the same is, set down to be had before the Hon. Watson T. Dunmore, the referee heretofore duly chosen and appointed herein, at the law office of O. D. Thomas, in the village of West Winfield, on Friday, the 10th day of November, 1893, at 10 o’clock in the forenoon of that day:” I The trial did not occur on the day named, and thereafter, on the rllth November, the referee, at the request of the defendant’s attorney, designated and appointed in writing the 13th December, 1893, as the time, and the office of Mr. Thomas, the attorney, the place, for the trial of the action. This designation was on or ;about November 11, 1893, served by the defendant’s attorney 'on the plaintiff’s attorneys, together with the notice of hearing. On the 13th December, 1893, at the place named, the case was brought to a hearing before the referee, the defendant and his attorney being present, and several hearings were thereafter had in the usual way, evidence being given on both sides, and the defendant being sworn as a witness in his own behalf. Several stipulations were signed by the defendant’s attorney as such with reference to the time or place of particular meetings. The evidence was closed on the 31st January, 1895, and, by agreement of counsel, briefs on each side were to be prepared and submitted on or before the 1st of March, 1895, which was accordingly done. Thereafter, and before the referee made his report, the motion to vacate the order of refernce was noticed and made. Tip to the making of the motion, no question appears to have been made about the validity of the order. It is suggested that, on the motion for nonsuit after the close of the plaintiff’s evidence, one ground taken was that the court was without jurisdiction. No basis for this ground was stated, and no intimation that the order of reference was invalid.

It may be assumed that the approval should have been made by the surrogate of Otsego county, and the question is whether the defendant is now in a position to raise the question. He waited until after the trial and submission of the case. He, at the start, assented to the approval by the surrogate of Herkimer county. He appeared in person and by attorney, and there is no suggestion that he has not had a fair trial before a competent referee. If the trial is a nullity, there is danger, as the plaintiff showed on the hearing of the motion, that the plaintiff may lose her claim by reason of the short statute of limitation. By the Code as it now stands, the proceeding becomes, upon the entry of the order of reference, an action in the supreme court. In effect, a short method is provided for the commencement .of an action in the supreme court, and having immediate reference. In case of an action sought to be commenced in the ordinary way, if the defendant appears and answers, consents to a reference, and proceeds to trial, it will be too late for him then to say that lie was not properly served with process, or that the action was not properly commenced. There is no good reason why the same rule should not apply to an action sought to be instituted as in the present case. There was in substance an appearance, such as was adapted to the case, in person and by attorney; and the court, as' there constituted, was called upon by the defendant to act. The defendant had the right, if he so chose, to appear in an action, and so waive defects in service of process, or could consent to an arbitration. Wood v. Tunnicliff, 74 N. Y. 43.

In Bucklin v. Chapin, 53 Barb. 488, 492, in a case relating to reference of this kind, it is said:

■ “The supreme court has jurisdiction over the claims which were submitted to the referees; in other words, it has jurisdiction of the subject-matter. By the voluntary consent and appearance of the parties, jurisdiction of their persons was obtained; and, when jurisdiction over both is acquired, the proceedings thereafter are valid, however irregular they may be.”

In Everts v. Everts, 62 Barb. 577, it was held that voluntary appearance in’the surrogate’s court gave the surrogate jurisdiction to act in a case where he had jurisdiction of the subject-matter. Ordinarily, parties who go to trial before a referee are estopped from denying the validity of the order of reference. Bell v. Vernooy, 18 Hun, 127.

We are of the opinion that the motion to vacate the order of reference came too late; that the defendant, by his conduct, has waived any defect in that regard; that the court had jurisdiction of the parties and the subject-matter, and had power to give judgment in the action. ^

Coming to the appeal from the judgment, it is found by the referee:

“First. That in the spring of 1880, plaintiff and Hiram Burgess, the defendant’s testator, entered into an agreement xvhereby said Hiram Burgess, in consideration of mutual love and affection, agreed to purchase for the plaintiff, who was his daughter, about eight acres of land, with the buildings thereon, known as the Spencer Place,’ situated in the town of Winfield, Herkimer Co., N. Y., and pay for the same, and give the same to plaintiff for a home for said plaintiff; and, in consideration thereof, plaintiff agreed to move upon the premises, and occupy said premises as a home, and agreed to make certain repairs to said premises ¡and certain improvements thereon. Second.- That thereafter, and on on about April 1st, 1880, said Hiram Burgess did purchase said premises from Herbert J. Spencer for the sum of $2,-000, took a deed thereof in his own name, paid $200 thereon, and executed and delivered to said Herbert J. Spencer a mortgage upon the same for the sum of eighteen hundred dollars, the balance of the purchase price. Third. That at the time said premises were purchased, as aforesaid, the buildings and fences were greatly out of repair. Fourth. That at about the time said premises were purchased by said Hiram Burgess, as aforesaid, the plaintiff moved upon said premises, repaired the buildings and fences, made substantial improvements thereon, and since that time has, and now does, occupy the same as a home. Fifth. That said Hiram Burgess paid the interest on said mortgage till the spring of 1886, and at that time had paid eight hundred dollars on the principal, and thereby reduced the principal to the sum of one thousand dollars, and that said Hiram Burgess made no payments on said mortgage thereafter except as stated in the fifteenth finding herein. Sixth. That on or about the 13th day of March, 1886, said Hiram Burgess conveyed said premises to this plaintiff by a deed which contained the following covenant: ‘And the said party of the first part does hereby covenant and agree 'to and with the said party of the second part, her heirs and assigns, that the premises thus conveyed in the quiet and peaceable possession of the said party of the second part, her heirs and assigns, he will forever warrant and defend against any person whomsoever lawfully claiming the same, or any part thereof and said deed contained no reference tp said mortgage.”

It was also found that Burgess died in November, 1889, leaving a will, that was proved December 24, 1889, and letters issued to the defendant; that the mortgage referred to was in July, 1893, assigned by the mortgagee to Eli S. B. Spencer, who died in February, 1892, leaving a will, which was duly proved, and letters issued to the executrix, Anna W. Spencer; that in August, 1892, said executrix commenced in the supreme court an action to foreclose the mortgage, making as parties defendant the executor of Burgess, the plaintiff, her husband, and others, and a judgment of foreclosure was entered September 10, 1892, on which the •property was advertised for sale; that, before the judgment, the plaintiff requested the executor of Burgess to pay the mortgage, which he did not do, and on the 26th October, 1892, the plaintiff paid in satisfaction of the mortgage and judgment the sum of $1,172.13. It was also found that on the 29th March, 1887, Hiram Burgess borrowed of Harry Thomas tbé sum of $60 for the purpose .of paying, and which was applied in paying, one year’s interest on the mortgage, and Burgess gave for such loan the promissory note of the plaintiff and himself, -which was payable on March 1, 1888, with interest; that the note was the debt of Burgess, and plaintiff signed it, relying on his promise to pay the same,; that he did not pay it, and on the 26th October, 1892, the plaintiff paid thereon the sum of $70.30, and became the owner and holdea of the note as against the estate of Burgess. The referee decided that the plaintiff could recover the two sums of $1,172.13 and $70.30, with interest, and ordered judgment, accordingly. . The claim presented and referred covered those items.

We are of the opinion that the evidence was sufficient to sustain the findings of fact made by the referee. The agreement between plaintiff and Hiram Burgess in the spring of 1880 was a verbal one, but there was such a part performance on the part of plaintiff that she would have been entitled to specific performance from Burgess, within the authority of cases that have established the law on the subject. Lobdell v. Lobdell, 36 N. Y. 327; Parsell v. Stryker, 41 id. 480; Freeman v. Freeman, 43 id. 34. In the Parsell Case the owner of a farm agreed to devise it to the plaintiff free of incumbrance. He did not do this, but conveyed it before his death, talcing back a mortgage for the purchase money, which he assigned to other parties. The grantee had notice of plaintiff’s rights. It was held that the grantee was bound to convey to plaintiff, and that the mortgage was ineffectual as against plaintiff’s rights.

The plaintiff having a right to specific performance, the main question here is whether, by talcing the deed given to her by Burgess on March 13, 1886, she is precluded from asserting any remedy outside of the deed. It is not found that the deed was accepted in full performance of the prior agreement. There is evidence that Burgess, soon after the deed was given, recognized his obligation to pay the mortgage, and told plaintiff that he would do so. The deed is not made subject to the mortgage, and the evidence authorizes the assumption that Burgess then expected to pay it, and that the deed was given in part performance only of the original agreement by Burgess. Burgess, for a consideration furnished by the plaintiff, and which, under the authorities, must be deemed adequate, agreed to purchase and pay for a certain piece of property, and deed it, or cause it to be deeded, to plaintiff. He purchased it, and subsequently deeded it, but did not pay for it. In the absence of an intent to relieve Burgess from full performance, it should not be held that the agreement to pay for the property merged in the deed, but it should be held that it. survived as a part of the original transaction. If, before the deed, the plaintiff had sued for specific performance, she could, without doubt, having established her right to a specific performance, have compelled a conveyance to her, and also required Burgess to relieve the property of the mortgage, or pay the equivalent, as matter of damages. That is what is.accomplished, by the result in this action. See Hawkins v. Mosher, 13 Hun, 563. The debt which plaintiff paid to the holder of the mortgage was, as the evidence authorizes us to assume, the debt of Burgess, and the plaintiff was in the position of a surety. Having been obliged for her own protection to pay the debt, she should have the remedy of a surety against the principal debtor. f'

We have examined the numerous cases cited by the learned counsel for the appellant, and find nothing that requires us to reach a different conclusion. It is suggested that the statute of limitations may be a defense; but that question was not raised at the trial, and we are referred to no case that holds that such a defense can, in a case like' this, be raised for the first time on appeal. It does not, we think, avail here.

/ Judgment and order affirmed, with costs.

All concur.


text:
    Patrick Preston, Resp’t, v. City of Syracuse, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Contract—Building—Construction.
    Where, after the construction of a building has been abandoned, the owner makes acontract for its completion with another contractor according to specifications, a clause of which requires the contractor, as the building progresses, to protect the finished work then constructed the latter is not responsible for the neglect of the original contractor, or of the architect, in not having the walls properly protected.
    2. Same—Conditions—Waiver.
    Where a building contract provides that the value of all changes in the work shall he determined by the architect and that, if any dispute arises as to his determination, it shall be submitted to arbitration, and the contractor, in August, presents a hill to the architect for extra work, who-retains it without objection till December, when an action for such work is brought, the obtaining of an adjustment of the value by the architect or by arbitration is not a condition precedent to a right of action; but, if it is such a condition, the defendant waives it in not specifically urging, on a motion for a nonsuit, as a ground thereof that the action was premature, or by not raising such question at the close of the case or asking that the question of waiver he submitted to the jury.
    Appeal from a judgment rendered for plaintiff on a verdict directed in his favor.
    Charles E. Ide, for app’lt;
    M. E. Driscoll, for resp’t.
   MERWIN, J.

Prior to December, 1892, the hoard of education of defendant entered into a contract with Isley & Dixon for the construction of a brick schoolhouse on Montgomery street. The building was partially constructed, and then, in December, 1892, the contractors abandoned the contract. On the 31st December, 1892, the board of education entered into a contract with the plaintiff to complete the mason work of the building, in accordance with the plans and specifications of the architect, for a certain sum. In the specifications was the following clause: “Note. Building at present up to first-floor joists. All outside brick walls to be taken down to water table,” There was also the following clause: “Particular care must be taken of all the finished work as the building progresses, which work must be covered up, and thoroughly protected from injury or defacement, during the erection and completion of the building.” The time at which the work, under the plaintiffs contract, should be commenced, was not specified in the contract. Soon after the contract was made, the plaintiff applied to the architect for leave to go on, but by reason of the weather, and the impracticability of then ascertaining to what extent the walls already up might be injured by the frost, it was deemed best to postpone the work until spring, and the work was not commenced until the latter part of March. It was then discovered that it was necessary to take down, to some extent, the inside walls, and rebuild them, before the plaintiff could proceed to the completion of the building from the point to where it was completed at the time the contract was entered into. It was shown that such inside walls had become defective, by reason of the action of water and frost during the winter. When the situation was ascertained, the plaintiff was. directed by the board of education and by the architect to take down and rebuild the defective inside walls. This he did, and in this action seeks to recover the expense, in labor and materials, of doing it. He showed the expense to he $600.50, and that no part had been paid. On the part of the defendant, the value of the work and materials was shown to be $524.40, and for this sum and interest the verdict was ordered. The defendant asked to go to the jury “on the question as to whether the injury to these walls resulted from the failure upon the part of Mr. Preston to protect the work then completed, at the time he took the contract, which was the 31st December.” This the court refused, on the ground that the plaintiff was under no obligation, under the specifications or the contract, to protect the work then constructed. The exception by the defendant to this raises the main question in the case. It was quite apparent, as the court said,' that the defective condition of the inside walls was due to the unprotected condition of the work during the winter. The claim of the defendant is, in effect, that it was the duty of the plaintiff, immediately upon the execution of the-contract, to investigate and see if the work already done was properly protected, and to remedy any defect in that line. The contract did not impose that duty on him. The clause as to care of finished work related to his own work to be dojie under the contract, and not to what had been previously done by some one else. The architect, called as a witness for the defendant, testified that:

“When he (plaintiff) took that contract, "he was to tear down the outside wall of the building, from the first floor joists down to the water table, and relay it. Everything else was all in good shape, np to that point, but the outside was not laid right. 'We put it in the specifications that .the outside wall would have to be taken down, to the water table, and relaid. In other words, the other walls looked all right up to that time. Q. That was the understanding when you made the contract? A. Yes, sir.”

Nothing seems to have been said to plaintiff about protecting the work of his predecessor. The architect had as good or better means than the plaintiff had for knowing whether the walls were not adequately protected. The court did not, we think, err in holding that the plaintiff was not responsible for the neglect of the original contractor, or of the architect, in not having the walls properly protected.

Clearly the work in question was outside of the work for which the price named in the contract was to be paid. The defendant, however, claims that the plaintiff cannot recover, because the value of the extra work was not, before suit, determined by the architect, or by arbitrators, in case of dispute as to the value, in accordance with the provisions of the contract on the subject of extra work. The clause of the contract on which this claim is based, provides that, in case changes are ordered—

“The value of such changes to be mutually agreed on in writing between the architects and contractor beforehand. In default of such agreement in writing, the fair value of the same, as determined by the architects, shall be added to or deducted from the contract price, as the case may be; but should any dispute arise respecting the value, as so determined, then the same shall be valued by two competent persons,—one employed by the proprietor, and the other by the contractor,—and these two shall have the power to name an umpire, whose decision shall be binding on all parties.”

The architect himself testifies that it was practically impossible to estimate beforehand how much the cost or value of the change in question would be. According to the evidence of the plaintiff, which is not denied, he, at the request of the architect, kept track of the material and labor furnished for the particular work in question, and when the work was done he made out a bill for it, and delivered it to the architect in August. This suit was commenced in December. There is no evidence that the amount was disputed, but the position of the defendant, or those representing it, was that they were not liable at all. The plaintiff may well have believed that he had done all that was required in regard to fixing the amount. Besides, at the trial, at the close'of the evidence, the only question then raised was that the plaintiff could not recover- by reason of his neglect to protect the walls from the date of his contract. On the motion for nonsuit, the question' that the amount had not been properly ascertained was not specifically raised. We are inclined to the opinion that under the ruling in the cáse of Seward v. City of Rochester, 109. N. Y. 164; 15 St. Rep. 193, the obtaining of an adjustment of the value by the architect or by arbitration was not a condition precedent to a right of action. Assume, however, it was. There is evidence tending to show a waiver. So that the motion for a nonsuit was properly denied, and as, at the close of the case, no point was made as to this, and no request to go to the jury on the subject, the de fendant will be deemed to have assented to the disposition by the court of any question that may have existed on the subject. We find no good reason for reversing the judgment, and it should be affirmed.

Judgment affirmed, with costs.

All concur.


author: GIEGERICH, J.

text:
    Amelia L. Spies, as Administratrix, Plaintiff, v. Heinrich Michelsen, Defendant.

      (Supreme Court, New York Trial Term,

      Filed January, 1896.)

    Appeal—Case—Settlement.
    Upon an appeal from a judgment determining only that the complaint does not state facts constituting a cause of action, the addition to the record •of any paper other than the pleadings, the demurrer and the judgment, is ■unnecessary, and a bill of particulars relating to items of account served in pursuance of a demand by defendant should not be included in the proposed case as part of the complaint.
    Motion to settle a proposed case on appeal.
    James Harold Warner, for app’lt;
    Hamilton R. Squier, for resp’t.
   GIEGERICH, J.

The complaint was dismissed at the trial because it did not, in my opinion, state facts sufficient to .constitute a cause of action; and plaintiff has appealed. The latter seeks to incorporate into the case on appeal “a copy of the account existing between the estate of Francis Spies, deceased, and the defendant, Heinrich Michelsen, from the 1st day of January, 1893 (the day of the last previous accounting between the said Francis Spies, deceased, and the said defendant), to the 21st day of June, 1893,” served in pursuance of a demand therefor by the defendant’s attorney, and which the defendant, by proposed amendments, seeks to eliminate from plaintiff’s proposed case. It is urged by plaintiff that “the bill of particulars is regarded as being incorporated into the complaint; the two are read together as if they constituted a complaint consisting of a statement of the cause of action with particulars, and are deemed the complaint.” But the authorities do not favor the position contended for. The Code contemplates two kinds of bills of particulars, the first relating to “items of an account” alleged in a pleading, the second to matters constituting any other form of claim. Code Civ. Proc. § 531; Dowdney v. Volkening, 37 N. Y. Supr. Ct. 313, 316. The copy account in the case at bar comes clearly within the first class of cases, and is therefore subject to the rules applicable to a bill of particulars. It is not the office of a bill of particulars testate the grounds upon which the plaintiff claims to recover, but only to point out the items and particulars embraced in his claim, in order.to identify them. Seaman v. Low, 4 Bosw. 337. A party cannot plead or answer to a bill of particulars which forms no part of the record. Kreiss v. Seligman, 8 Barb. 439. “The facts that would entitle a party to judgment must be stated in the pleading; and details of the claim are to be stated in the bill of particulars.” Per Ingraham, J., in Arrow Steamship Co. v. Bennett, 57 St. Rep. 117. And where the sole question determined by the judgment is that the pleading demurred to does-or does not state facts sufficient to constitute a cause of action, the addition to the record of any paper other than the pleadings, the demurrer, and the judgment is unnecessary. Steamship Co. v. Bennett, supra. See Kreiss v. Seligman, supra. It would seem to follow from these views that the copy account in the present case forms no part of the complaint, and, since it was not put in evidence, it forms no part of the record; hence the defendant’s proposed amendments numbered 2, 3, and 5, respectively, should not he allowed. All other proposed amendments contested by plaintiff’s counsel are allowed.

Case and exceptions settled and ordered on file.