author: Mullin, P. J.: Noxon, J.

text:
    EDWIN L. SWARTOUT, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Miidenae — Oattle-guard on railroad — eomtruetion of — Opinion as to — Testimony of experts.

    The question whether a cattle-guard on a railroad is properly constructed, is not a question calling for the testimony of an expert; hut when the manner of its construction is shown, the jury is competent to speak of its fitness for use.
    Appe'al from a judgment entered on a verdict in favor of the defendant, in an action for damages for the killing of a horse and injury to a wagon and harness belonging to the plaintiff by the defendant.
    The plaintiff left his horse for half a minute to go into a store when the horse started, and after passing through several streets got on the direct road toward home. When the horse reached the railroad track crossing the. road he became frightened by an approaching train and turned up the track, and after crossing a cattle-guard he came into collision with a train coming toward him, and was so injured that it was necessary to kill him.

      A. M. Beardsley, for the appellant.

      A. Cobourn, for the respondent.
   Mullin, P. J.:

A new trial must be granted in this action by reason of the admission of the evidence of one of the defendant’s witnesses, in answer to the question whether the cattle-guard, over which plaintiff’s horse passed, was a proper one.

The court held that if the question was one of skill merely, the answer of the witness was properly admitted, but it was not. When the manner of its construction was shown the jury was competent to speak of its fitness for use, as was any person engaged in its construction, or in the construction of such guards, however numerous. It does not require experience in the construction of cattle-guards to know that if the timbers composing the superstructure are so near each other that the feet of horses or cows will not pass between them the guard furnishes no obstruction to cattle desiring to pass over. If the opening between the timbers is only two inches and the animal’s foot, is five inches in length it can pass almost as easily as if the timbers were in actual contact. No amount of opinions could justify the finding that a cattle-guard so constructed was fit for the use for which it was constructed, however skillful and competent the witnesses might be.

In calling the space between the timbers two inches I do not intend to speak with accuracy of the width of the spaces in the cattle-guard in question, or the size of the animal’s feet; my understanding of the evidence is that the openings were less in size than were the horses’ feet.

It is sometimes quite difficult to determine when a question is one proper to be put to experts only, and is therefore one of skill, or whether it calls for facts merely and not opinions. The question put to the witness in this case was allowed as one calling for the opinion of the witness, whereas the subject was one, as to which opinion was not competent.

Whether a bridge is properly constructed — that is, whether the principles applied in its construction are such as to secure permanence and safety, are questions of skill, and can only be put to persons acquainted with business of bridge building, or, in certain cases, to men of science, theoretically acquainted with the strength of material and with the rules which should be adopted in combining together the various parts of the structure, so as to secure permanence and safety. But whether an inch board would be suitable for flooring, or whether the timbers laid as flooring might be laid five or six inches apart, every person of sound mind and who has passed the age of boy or girlhood is capable of testifying in regard to.

By reason of the improper admission of the evidence, to which reference is made above, the judgment must be reversed and new trial granted, costs to abide event.

Noxon, J.

(dissenting):

This is an action by plaintiff for the recovery of damages to his horse, wagon and harness, claimed by plaintiff to have been caused by the neglect of tlie defendant, to construct and maintain cattle-guards at a railroad crossing on Schuyler street in the city of Utica, suitable and sufficient to prevent cattle and animals from getting on to the railroad track of defendants. The plaintiff left his horse and carriage in front of a store in Utica, at the corner of Hotel and Liberty streets, and went into the store, where he remained about thirty seconds, and when lie came out tlie horse and carriage had gone. It was discovered that the horse with the carriage passed through several streets to Schuyler streeet, and thence upon Schuyler street to the railroad crossing, when he turned and passed over the cattle-guard with the carriage on to the railroad track, and thence went west some considerable distance, when he was met and struck by an engine attached to a freight train going east, and by tlm collision tbe horse was injured so that it became necessary to kill him, and the carriage and harness were broken and damaged. At, or just previous to tbe time the horse readied the railroad crossing on Schuyler street a freight train was approaching the crossing from the east, which probably caused the horse to be frightened, and turned him across the cattle-guard on to the track, upon which lie ran until the collision happened. The jury found, as a question of fact, under the charge of the court, that the cattle-guard was suitable and sufficient to prevent cattle and animals from getting on to tbe railroad. This was the only question bearing upon the liability of defendant which was submitted by the court to the jury. It is true on the motion for nonsuit the defendant’s counsel, in case he was compelled to go to tbe jury, asked to go to the jury upon the question of contributory negligence, which was granted by the court, and an exception taken by plaintiff. The exception is of nc avail, for the reason that no evidence was given upon that question, and the defendant made no claim to have the same submitted to the jury. The court so clearly submitted to, and charged the jury that if they found the cattle-guard unsuitable and insufficient, the plaintiff was entitled to recover, that the jury were in no way misled as to the real question submitted to them, and upon which they passed. The renewal of the motion for nonsuit at the close of the testimony was made solely upon the ground that the evidence proved the cattle-guard suitable and sufficient. The rule of law seems to be well settled that mere negligence of the plaintiff is no defense to an action against a railroad company for negligence in constructing or maintaining cattle-guards. (Laws 1850, chap. 140, § 44; Laws 1854, chap. 282, § 8 ; Corwin v. N. Y. and Erie R., 13 N. Y., 42 ; Bradley v. Buffalo, N. Y. and Erie R., 34 id., 432 ; Shepard v. Buffalo, N. Y. and Erie R., 35 id., 645.) The exception to the -ruling of the court, refusing the offer to prove by Cowley that he saw a cow walk across the cattle-guard about three months after the accident, was not well taken. The fact, if proved, would not tend to show the condition of the guard at the time of the accident, and the court correctly held that the suitableness and sufficiency of the guard should be judged by the manner of its construction. The exception by plaintiff to the question put to the witness Weigant, “ whether, in his opinion, the cattle-guard was suitable and sufficient to prevent horses and animals from getting on to the track,” was not well taken. It already appeared, from the testimony of the witness, that he had been for a number of years engaged in building and repairing cattle-guards; that he knew how they were built from time to time; that he was acquainted with the construction and object of building them, and, also, that he knew the guard in question and had examined it and had seen its practical operation, and that he had been in the business of railroading for eighteen years, and in the habit of seeing cattle guards every day. When the question calls for a mere opinion in regard to a matter, as to which the jury may be supposed to be equally well acquainted, the rule laid down in Ramadge v. Ryan (9 Bing., 333) applies. But in this case the witness was competent to speak from his knowledge in the construction of guards, and from the experience and observation derived by him from many years’ study and labor in the building of such guards, as will, best prevent cattle and other animals from crossing. Iiis business and observation gave him a better opportunity to judge as to whether the guard would prevent animals from crossing, and whether the same was suitable and sufficient for that purpose. (Bellinger v. N. Y. C. R. R., 23 N. Y., 42.) The injury to the plaintiff’s horse and carriage was not the result of imperfect cattle-guards. The guards were suitable and sufficient, ordinarily, to prevent the mischief intended by the act — not, indeed, under any and all circumstances. The design and object of the law was to reach and cover the ordinary cases of cattle and animals allowed to run at large upon the lands, farms and highways, near and adjoining the tracks of railroads. It was not designed to cover the case of a runaway horse upon the highway, or of vicious and unruly horses, or animals found in the highway or upon lands adjoining. Such cases could not be and were not provided for by statute. The statute covered fences to be erected and maintained as well as guards at crossings, and can it be maintained that frightened horses or other vicious and uncontrollable animals who may leap the fences or cattle-guards, come within the provisions of the act and render the company liable, if the guards are built, and the fences erected in the manner and as provided by the statute?

These questions, relating to the proper guards and fences to be constructed, are questions for the jury, and it is not every case where the fence or the guard fails to prevent a horse or other animal from passing that a recovery can be had. Such failure does not establish the fact that the fences or guards have not been properly erected or built. The evidence to show, as in this case, that the guard was properly constructed, must be obtained from men experienced in the construction of guards, from personswhose occupation and business make them peculiarly qualified to speak intelligently upon the subject, and who can convey to the jury more reliable information than the jury possess, or which can be given by other men not skilled in that business. The men who construct, build and observe for many years the workings of their structures, become so well versed in their adaptation to the use for -which they were intended that they become experts, and as such are entitled to give' an opinion without violating in any manner the law of evidence. The same rule applies to the objection and exception to the evidence of Schreck, who made the guard at the Schuyler street crossing, and who was also experienced in the business and who was also competent as an expert, from his experience and observation, to testify on the same subject.

The offer to show that the cattle-guards or new tracks on either side of the guard in question were constructed on a different plan from the guard over which the horse passed, was properly excluded.

This evidence was not material as bearing upon the suitableness and sufficiency of the guard in question. These are the only exceptions presented by the appellant.

The judgment should be affirmed.

Smith J., concurred in reversal.

Judgment reversed and new trial granted, costs to abide event.


source: Caselaw Access Project

author: Noxon, J.:

license: Public Domain

text:
    BENJAMIN F. SWEET, Respondent, v. GEORGE CHAPMAN, Impleaded with REUBEN J. GREEN, Appellant.

      Usury —promissory note, inception of — Consideration.

    A promissory note to be the subject of sale must be an existing valid note in the hand of the payee, and be given for some actual consideration, so that it can be enforced between the original parties, and if not valid in the hands of the payee it cannot be rendered valid by a sale to a Iona fide purchaser at a rate of interest exceeding seven per cent. The question of the inception of a note and the time when it took place, is a question of fact, and when the evidence is conflicting should be submitted to the jury.
    Appeal by defendant Chapman from a judgment entered in favor of plaintiff upon a verdict directed by the court at the Onondaga Circuit, held in January, 1874.

      R. H. Tyler, for the appellant.

      Randall & Randall, for the respondent.
   Noxon, J.:

The action in this case was upon a promissory note. The answer of the defendant Chapman denies the delivery of the note to Green, the payee, and interposes the defense of usury. It appeared on the trial that the defendant Green was the agent of a life insurance company, and that, on the 20th September, 1872, he solicited; the defendant Chapman to take a policy of insurance of $o,000in the company; and that they agreed upon terms, provided the-defendant Chapman passed the examination of the doctor of the-company ; and, for final payment of premium, the said Chapman was to give his note for $130.63 at nine months That thereupon-, (according to the evidence of Chapman), he signed the note in. suit for the said sum of $130.63, payable nine months after date,., with interest, to the defendant Green or bearer, and dated the said, note 20th September, 1872; and that he let the defendant Green, take the note with the express understanding that it was to be of no effect, and not be binding upon him until he passed the-doctor and received the policy of insurance from the company.. When that was done he was to be bound by the note, and not before. The defendant Green, a witness for the plaintiff, states-that the note was delivered to him upon the condition that when Chapman passed the doctor the note was to take effect; and that nothing was said about the note not taking effect until he got his policy. Chapman states the policy was to be delivered to him, or sent to him by mail to Hinmansville; that he had never received the policy, and had often inquired for it at the post-office at Hinmansville. Green states that he was to deliver the policy to Chapman, or have it sent to Doctor Hice for Chapman, Hice being the medical examiner for the company. Chapman was examined by Eice on the 28th September, 1872, the examination was satisfactory, and the examiner passed him, and so certified to the company. In October, 1872, the plaintiff purchased the note in suit of the defendant Green, and paid him therefor, in' cash, the full face of the note, at a discount of ten per cent. That when he purchased he knew nothing of the circumstances under which Green received it, or of any arrangement or agreement made between. the defendants in relation to the note, and supposed it was a good and valid note. At the close of the testimony, the counsel for Chapman insisted that the evidence showed that the note had no vitality or inception until it was passed to plaintiff; and, as plaintiff purchased it at ten per cent discount, and the conditions upon which the note vas handed to Green never having been performed, the note was usurious and void in the hands of the plaintiff, and requested the court to subnjit the question to the jury. The court decided that, as the plaintiff had purchased the note before it became due, without any knowledge of the .circumstances under which it was obtained from defendant Chapman, and paid a bona fide consideration therefor, it was a valid note in his hands, and not obnoxious to the defense of usury, and refused to submit the case to the jury, to which ruling and decision and refusal the counsel for defendant Chapman excepted. Under the direction of the court, the jury found a verdict for the plaintiff for the amount of the note, with interest.

The rule is well settled, that if the plaintiff, under the circumstances of this case, had paid the full amount of the note in question to Green, he would have been a bona fide purchaser, and as such protected against the agreement claimed by Chapman to have been made with Green.

The important question in the ease is, as to the time the note Tad an inception. If it had an inception at the time it was delivered to Green, or at the time Chapman passed the examination of the medical examiner, and before the sale was made to the plaintiff, then the 'ruling and decision of the court was correct. If, however, it had no inception, and had no existence as a note until the sale to and purchase by the plaintiff, then the note, upon such purchase, became void in the hands of the plaintiff for usury. The question of inception, and as to the time it took place was a question of fact, upon which the evidence was conflicting. That question of fact was one which should have been submitted to the jury. It was the vital point in the case, and it was error in the court to refuse to submit the same, and the exception to the ruling was well taken. The decision upon the question of law, that because plaintiff purchased the note before due, without knowledge of the circumstances under which it was obtained from Chapman, and paid a bona fide consideration therefor, it was a valid note in plaintiff’s bands and not obnoxious to tbe defense of usury, is erroneous. The error consisted in overlooking the fact of inception. It is true, if a note is executed and delivered by the maker to the payee in payment of a debt, and stolen from the payee and then sold to an innocent purchaser, such note in the hands of the purchaser would not be subject to the defense of usury; and the ruling and decision of the court would not in such case be erroneous. On the contrary, if, as in the ease of Hall v. Wilson (16 Barb., 548), the note is stolen, prior to a delivery by the maker to some person as evidence of a subsisting; debt, and then sold, the note takes its legal inception at the time of sale, and is subject to the defense of usury if it is transferred at a discount greater than that allowed by law. The note in question was handed to Green by the maker, and as between the parties conditions could be imposed that it should have no vitality until the condition had been performed. (Benton v. Martin, 52 N. Y., 574, 575; Lovett v. Adams, 3 Wend., 381.)

The rule appears to be settled, that a promissory note to be the subject of sale, must be an existing valid note in the hands of the payee, and given for some actual consideration, so that it can be enforced between the original parties ; and if not valid in the bands of the payee, cannot be rendered valid by a sale to a tona fide purchaser at a rate of interest exceeding seven per cent. (Hall v. Wilson, 16 Barb., 548; Hall v. Earnest, 36 id., 588, and cases cited ; Rapelye v. Anderson, 4 Hill, 483; Bossange v. Ross, 29 Barb., 576: Clark v. Sisson, 22 N. Y., 316; Catlin v. Gunter, 11 id., 368.) The cases cited by the respondent in 56 New York, 137 (Chapman v. Rose), 57 New York, 253 (Colson v. Arnot), do not affect the question in this case. After the argument of this cause, the attention of this court was called to a copy of the opinion, in manuscript, of the case of Eastman v. Shaw (argued in the Commission of Appeals in May, 1875, and not yet reported). One of the important questions in that case arose as to the time of inception of the promissory note given in that case, which had been sold before maturity for thirty-five dollars less than the amount due and payable, by the terms of the note, to a party wholly ignorant of the circumstances attending the making, consideration and delivery of the note. The defense interposed was usury, and the defendant claimed that the facts as to the delivery of the note and the intent to deliver should be submitted to the jury; and the court having charged, as matter of law, that the plaintiff could recover, the court held that the decision of the General Term, granting a new trial, was correct, and affirmed the judgment. Upon the authority of that case and cases therein cited, and upon the authorities herein referred to, the judgment is reversed and a new trial granted, costs to abide the event.

Mullin, P. J., and Smith, J., concurred.

Judgment reversed; new trial granted, costs to abide event.


text:
    ROBERT NICHOLS and WILLIAM HALL, Respondents, v. CHARLES G. SMITH, LARRY LEWIS and DUNCAN McRAE, Appellants.

      Executor — Foreign judgments, action upon — must be brought in his individual name.

    An action can be sustained by a plaintiff in Ms own name, upon a judgment recovered by Mm as administrator in a foreign State.
    Appeal from an order made at Oswego Special Term sustaining a demurrer to the second count of defendant’s answer. The action was brought in the individual names of the plaintiffs, and not in their representative characters as executors, to recover the amount of a judgment rendered in favor of the plaintiffs as executors of the last will and testament of Samuel Dickson, late of the province of Ontario, in the dominion of Canada, deceased. Said judgment was recovered on September 12,1872, in the Court of Common Pleas ot' said province in said dominion, then being a court of gen eral jurisdiction duly created under the laws thereof The complaint alleged that there are no creditors of the estate of said Dickson residing in the State of New York. The defendants allege, in their second answer or defense, that the plaintiffs have not the legal capacity to sue in the courts of this State; that they are the executors of Dickson, deceased, named in the complaint, and are appointed and authorized as such executors, by virtue of and under the law of said province and dominion, a foreign government, and not otherwise, and that the judgment was obtained by and belongs to plaintiff's in their representative capacity as foreign executors and not otherwise. The plaintiff demurred to the said second answer on the ground of insufficiency, and that the same constituted no defense to the action. The demurrer was sustained at Special Term, with leave to defendant to amend on payment of costs. The defendants appealed to this court from the order sustaining the demurrer.

      John H. White, for the respondent.

      Rhodes ds Richardson, for the appellants.
   Noxon, J.:

The precise question in this case was decided in the courts of Massachusetts in the case of Talmage v. Chapel (16 Mass., 69), where it was held, in an action upon a judgment already recovered in favor of the plaintiff as administrator, in the State of New York, that the action could be sustained by the plaintiff in his own name, and not as administrator. The court say in the opinion : “ The debt was due to him, he being answerable for it to the estate of the intestate.” An administrator here (in Massachusetts) could not maintain an action upon this judgment, not being privy to it. Nor could he maintain an action on the original contract; for the defendants might plead in bar the judgment recovered against them in New York. The debt sued for is in truth due to the plaintiff in his personal capacity. For he makes himself accountable for it by bringing his action ; and he may well declare that the debt is due to himself.” I am not aware that the precise question has been adjudicated in the courts of this State. But the reason of the rule for promoting justice, as laid down in 16 Massachusetts, is as strong in this State as in Massachusetts. In Bright v. Currie (5 Sandf., 437), Justice Bosworth states the rule to be, that an administrator in one State may sue, in his individual capacity, on a judgment recovered'by him in another State as administrator. And the same rule is laid down by the chancellor in Lawrence v. Lawrence (3 Barb. Ch., 74), who cites the case in 16 Mass., 71, with approval. (See, also, Story on Conflict of Laws, 516, 517.) In the case of Petersen v. Chemical Bank (32 N. Y., 21), a number of cases are cited where the executor or administrator may sue in his own name in the courts of this State; and the rule is laid down as established, that an “ executor, as soon as he has clothed himself with the commission of the Probate Court, is vested with the title to all the movable property and rights of action which the deceased possessed at the instant of his death. The title of the executor, it is true, is fiduciary and not beneficial. That title is, however, perfect against every person except the creditors and legatees of the deceased.” So in the case before us, the title to the judgment was absolutely in the plaintiffs; and when they take proceedings in our courts to collect the judgment it is in the nature of a chose in action, and may be prosecuted here in their individual names. The judgment is to be used on the trial to show and establish their title, and the amount they are entitled to recover. There is no substantial reason, why a recovery may not be had in this case in the individual names of plaintiffs, as well as in eases arising upon promissory notes and other choses in action. If the judgment had been assigned by them the assignee would be entitled to recover in his own name within the authority of 32 New York, 21. It is not stated in the complaint how the plaintiffs, as individuals, derive title, except as may be inferred from the complaint.

The complaint states that there are no creditors of the estate of said Dickson, deceased, residing in the State of New York; and this fact, if proved, would show that the rule established as to executors and administrators, suing in our courts, would hardly apply if the action had been in the name of plaintiffs as executors.

The rule laid down in 16 Massachusetts can work no injustice ; on the other hand, it gives a remedy in cases where, without it, no remedy would seem to exist.

The order sustaining the demurrer should be affirmed with costs, with leave to defendants to amend their answer within twenty days, on payment of costs.

Mullin, P. J., and Smith, J., concurred.

Judgment accordingly.


text:
    BENJAMIN H. TISDALE, Respondent, v. MARGARET MORGAN, Administratrix, etc., Appellant.

      Statute of frauds — Agreement to pay debt of another — Practice — conformity of evidence with pleadings.

    The plaintiff and defendant were each creditors of H. H. transferred property to the defendant, and as part of the consideration of the transfer, the defendant assumed and agreed to buy the plaintiff’s claim against Higgins, paying him the amount thereof, $218, and the plaintiff agreed to release H. from any claim on his part. The agreement was by parol and no money was paid. Held, that the agreement to pay plaintiff’s claim was valid, and not within the statute of frauds.
    Although the pleadings do not conform to the evidence, if the facts in the case prove a good cause of action, and no objection is made to the evidence, the case may be disposed of on appeal, as though the pleadings had been amended on the trial.
    This is an appeal from a judgment of the Herkimer County Court, rendered in favor of the plaintiff in April, 1878, and from the order of said court denying a new trial upon the minutes of the court in an action brought to recover of the defendant as administratrix of the estate, of Samuel Morgan, deceased, a claim originally due from one Higgins, the amount of which said Morgan agreed to pay to plaintiff, in consideration of a transfer of a canal boat to him by said Higgins.

      J. A. & A. B. Steele, for the appellant.

      Joseph J. Budluton and Isaac D. Garfield, for the respondent.
   Noxon, J.:

In December, 1868, one Lewis Higgins was indebted to the plaintiff for running a canal boat, in the sum of $218. The said Higgins was also, at the same time, indebted to certain boat captains in Buffalo in the sum of $300, and was also indebted to the firm of Petrie & Co., of which Samuel Morgan was a member, in the sum of $322, in all $840. On or about December 18, 1868, the said Higgins being embarrassed, and the said plaintiff being desirous of his pay, a meeting was had at a hotel in New York, at which was present said Higgins, said Morgan, and William H. Tisdale, the agent of, and acting in behalf of the plaintiff, to determine what should be done in the matter of these several claims. And it was thereupon agreed that the said Morgan should advance to Higgins $300 to pay his captains in Buffalo, and should buy plaintiff’s claim of $218; and that Higgins should execute a bill of sale to Morgan of the canal boat Sehermerhorn; and that the claim of Petrie & Co., of $322, should form a part of the consideration, making the full consideration of the boat $840; and that Morgan should execute to Higgins an agreement, in writing, providing that upon the payment by Higgins to Morgan, within one year, of the $840, with interest, that Morgan should reconvey the boat to Higgins. Morgan was to pay plaintiff’s claim, and plaintiff release Higgins from the debt. It was also agreed that plaintiff should have the net proceeds of the freight on a cargo of brick, which should be deducted from plaintiff’s claim, and be allowed Higgins -on the contract for the boat Morgan agreed to pay ,the plaintiff .his debt during the next season, with interest. In pursuance of the agreement, and on or about the 18th December, 1868, the bill of sale of said boat was executed and delivered by Higgins to Morgan, in consideration of $840, and at the same time said Morgan executed and delivered to Higgins an agreement to convey to him the title of said boat upon payment to him of the $840, with interest, in one year from date. The net proceeds of the cargo of brick amounted to $120, and was collected and paid to the plaintiff upon liis claim of $-218. The $300 was advanced by Morgan. Morgan died in October, 1869, and the defendant was appointed administrator upon his estate in January 1870. No other payments were made to plaintiff, and in the month of March, 1872, this action was brought to recover the balance of plaintiff’s .claim amounting to $98 besides interest.

The defense to the action, and the ground upon which a reversal of the judgment is claimed, is contained in the motion for nonsuit, upon the ground that the pretended sale of the plaintiff’s claim to .defendant’s intestate was woid by -the statute of frauds, because it was not in writing, no part of tbe purchase money having been paid at the time of the sale, ,-nor any delivery of the property sold.

It is very clear under the authorities if the transaction between the parties had been simply a sale of the plaintiff’s claim against Higgins to Morgan (and no payinent had been made by Morgan), and a parol agreement by Morgan to pay the plaintiff the amount of the claim, the case would come within the statute of frauds, and no recovery could be had. The evidence, however, shows a state of facts, and an agreement wholly outside the statute. The plaintiff and the defendant Morgan were each creditors of Higgins, and Higgins, the debtor, transfers a boat to Morgan, and in consideration of the transfer, and as part of the consideration, Morgan assumes and agrees to pay the plaintiff his debt, and the plaintiff agrees to release Higgins from the debt. The agreement was valid and the plaintiff was entitled to recover within the authorities laid down in Barker v. Bucklin (2 Denio., 45); Ellwood v. Monk (5 Wend., 235); Barker v. Bradley (42 N. Y., 316); Lawrence v. Fox (20 N. Y., 268); Seaman v. Hasbrouck (35 Barb., 151).

The complaint may not have covered the case as proved, but the facts in the case proved a good cause of action, without objection to the evidence, and the rule is settled in such cases, that the case on appeal may be disposed of as though the pleadings had been amended on the trial. (Sherman v. Parish, 53 N. Y., 488; Tyng v. Commercial W. House Co., 58 id., 313, and cases cited.) It is unnecessary to examine the question as to the effect of the receipt by the plaintiff of $120, which was applied on the plaintiff’s claim, although some of the later cases seem to hold that such payment would make the contract valid within the statute of frauds. The case of Belknap v. Bender (6 N. Y. S. C., 611), cited by the appellants, was correctly decided but does not cover this case.

The judgment should be affirmed with costs.

Mullin, P. J., and Smith, J., concurred.

Judgment affirmed with costs.


text:
    EPHRAIM H. FISH and JOHN L. LENT, Appellants, v. WILLOUGHBY PAYNE, Respondent.

      Frcmd — Insobent —jpurchase of goods by, on credit — does not establish fraud.

    Proof that a man is insolvent and knows of his insolvency at the time he makes a purchase of goods is not of itself, and without additional evidence of an intent to defraud, sufficient to establish fraud.
    Appeal by plaintiff from a judgment of the County Court reversing a judgment in favor of plaintiffs, rendered in a Justice’s Court.
    The action was brought by the plaintiffs to recover damages against the defendant for wrongfully and fraudulently obtaining goods of the value'of sixty-one dollars and forty-one cents, with the fraudulent intent and preconceived design not. to pay the plaintiffs for the same, and with the wrongful intent to cheat and defraud the plaintiffs of the same, and the value thereof. The plaintiffs had judgment in Justice’s Court for the value of the goods, and costs.

      S. G. Barrows, for the appellants.

      Charles B. Searle, for the respondent.
   Noxon, J.:

Upon the trial before the justice it was proved that the plaintiffs were partners, engaged in selling goods at Utica, in 1873 and 1874; lhat the defendant in those years was engaged in the business of selling goods as a peddler, with a horse and wagon, and that during that time he purchased goods of the plaintiffs and others, and that prior to the 15th September, 1874, he had purchased of the plaintiffs from time to time, in several bills, goods to the amount of $700 or $800, upon a credit of thirty days, and which said bills were paid in full. That in the months of September and October, 1874, he purchased other goods of the plaintiffs to the amount of sixty-one dollars and forty-one cents upon the same credit, and at the time of such purchase was insolvent, and the fact oí such insolvency, although known by defendant, was not disclosed by him to the plaintiffs. The justice held that the defendant was guilty of fraud by reason of his failure to disclose his circumstances at the time he made the purchase, taken in connection with the trade he had with plaintiffs for a year and one-half, and upon this ground gave plaintiffs judgment. This was error, and unless additional evidence was given to show an intent to defraud, the judgment could not be sustained, and was properly reversed by the County Court. (Nichols v. Pinner, 18 N. Y., 295; Nichols v. Michael, 23 id., 264; Hennequin v. Naylor, 24 N. Y., 139 ; Byrd v. Hall, 2 Keyes, 616.) The justice, in his opinion and decision, held that there was no preconceived design by the defendant not to pay plaintiffs, but that he intended to pay, and would have paid if he had the ability. Upon an examination. of the whole evidence as it appears, no proof was given tending to show that the defendant intended to commit a fraud, or avoid paying for the goods he had purchased. It was not fraudulent in the defendant, although he was embarrassed, to make every effort he could to relieve himself from his embarrassment. Instead of preconceiving a design to defraud or cheat (which nowhere appears in the testimony), his purchase appears to have been made in the ordinary business way; he had dealt with the plaintiffs for a year and over, and no circumstance is disclosed tending to prove that he did not intend to pay at the time he purchased, as he had uniformly paid on the purchase of other bills. There was, therefore, no fraud committed by the defendant, and the judgment of the justice should have been for the defendant.

The grounds upon which the appeal to the County Court were founded were sufficient.

The judgment of the justice was correctly reversed by the County Court, and the judgment of the County Court should be affirmed with costs.

Uullin, P. J., and Smith, J., concurred.

Judgment of County Court affirmed with costs.


author: Mullin, P. J.

text:
    CHARLES M. KNAPP, Respondent, v. HENRIETTA J. HUNGERFORD and others, Appellants.

      Parol agreement to convey land — made by ancestor binds heirs — Evidence as to statements of ancestor — Action for partition of such land — what interests mvy be considered in — proper judgment in —Referee—powers of, as to amendments.

    Appeal from a judgment in favor of the plaintiff, entered on the report of a l’eferee.
    In May, 1873, Thomas Knapp died seized of a farm of land situated in the town of Lafayette, in the county of Onondaga. He left surviving him six children, his only heirs at law. During the life of the father the plaintiff, one of his children, took a farm to work upon shares a short distance from the residence of his father and went into possession of it. The father was an old man, incapable of carrying on his farm alone, and he offered to the plaintiff that if he would return and take charge of the farm and build a house thereon at a place designated, he (the father), would give the plaintiff a deed of the lot so designated. The plaintiff returned, built a house on the lot designated at an expense of some $400 or $500, removed his family into the house and remained there for a time, and then rented it to one of his brothers.
    This action is brought by the plaintiff to obtain a partition of the farm amongst the heirs, and in the event of a sale being necessary, to have the amount expended in building the house charged on the proceeds of such sale and paid t.o him, in addition to his sitare of the proceeds, as one of the heirs of his father.
    Some of the heirs who were made parties defendant did not appear in the action, and judgment passed against them by default; and others appeared and by their answers denied the allegations in tlie complaint, as to the agreement between the plaintiff and his father.
    The issues were referred for trial to a referee who, after hearing the proofs and allegations of the parties, found the facts substantially as alleged in the complaint, and ordered judgment that each of the parties to the action was entitled to one undivided sixth part of said premises; that they could not be partitioned without inj nry to the parties and that they should be sold; he also held that plaintiff was entitled to recover out of the proceeds the sum of $400, paid out in the erection of the house on the farm, in addition to one sixth part as heir of his father.
    From this judgment Henrietta J. Hungerford, Caroline A. Gates and Cornelia Gates, three of the heirs at law, appealed to this court.
    On the trial the plaintiff called a witness to prove the agreement between the plaintiff and his father, Jonathan Hotaling, being a brother-in-law of Thomas Knapp, deceased, who testified that before the plaintiff built the house on his father’s farm he, witness, had a conversation with Thomas in which he, Thomas, told the witness that he was going to get his son to live with him, he was getting old and not able to carry on the farm. That he was going to let Charles, the plaintiff, have apiece of land to build a house on, the same piece on which his son George had begun to build a cellar, etc.
    The court at General Term say: “ A parol agreement between an ancestor and a third person, by which the former for a valid consideration agrees to sell and convey land to the latter, when performed by the purchaser, binds the heirs of the vendor, and the admissions of the ancestor are competent evidence against them to establish such agreement. (Mattoon v. Young, 45 N. Y., 696 ; Spaulding v. Hallenbeek, 39 Barb., 79; Sehenek v. Warner, 37 id., 258; 1 Cowen & Hill’s Notes to Phillips’ Evidence, 646.) The evidence being competent it authorized the finding of the contract alleged in the complaint between the plaintiff and his father.
    That agreement was supported by a valuable consideration, to wit, the erection of the house at the request of the father, and upon his agreement to convey the land. (lóbdell v. Lobdell, 36 N. Y., 327.) * * * The parol agreement being proved, the plaintiff acquired thereby, and by the performance on his part of the same, an equitable interest in, and title to the land on which the house was built, and that equity binds the land so agreed to be conveyed in the hands of the heirs at law, and they are bound to convey their interest in the same to the plaintiff. The referee could not compel the heirs to take the house and pay the plaintiff either what it cost him or what it was worth, without their consent.
    * * * As a general rule, it is not admissible in actions for partition to try conflicting claims to the legal title, but the equitable rights and claims maybe determined in such an action. (Ooxev. Smith, 4 Johns. Ch., 271; German v. Maohin, 6 Paige, 288; Conklin v. Oonklin, 3 Sandf. Ch., 64; St. Felix v.- Rankin, 3 Edw., 323; Town v. Needham, 3 Paige, 545.)
    The court, before it will order a sale of land in partition cases, requires that all those having an interest in them should be made parties to the action, to the end that the purchaser may get a perfect title to it. Hence the wives of those entitled to a share of the land must be made parties.
    -x- * * The referee lias power to amend a complaint on the trial, by striking out or inserting the name of a party, upon such terms as he shall deem just, having, by section 272 of the Code, the same power of amendment in this respect as the court has. (3 Wait’s Pr., 276.)
    -x- * •* The judgment appealed from must be amended by striking therefrom all that relates to the payment to the plaintiff, out of the proceeds of the farm, of $400 for the house, and, instead thereof, there must be inserted a provision requiring the heirs of said Thomas Knapp to convey to said plaintiff their interests in the lot of land on which the house erected by plaintiff stands, with covenants against their own acts; and that the residue of said farm be sold, and the proceeds divided as provided in said decree. The costs of both parties to this appeal to be paid out of the fund.”

      Ruger & Jenney, for the appellants. Hiscock, Gifford & Doheny, for the respondent.
   Opinion by

Mullin, P. J.

Present — Mullin, P. J., Smith and Noxon, JJ.

Judgment modified as per opinion of Mullin, P. J., and- as modified affirmed, costs of both parties to be paid out of'the fund


author: Noxon, J.

text:
    FRANK HALE, Receiver, etc., Respondent, v. GEORGE STEWART and HENRY W. HOTCHKISS, Appellants.

      Transfer by insolvent debtor in payment of claim of one crreditoi' — not void, or fraudulent as to other creditors, notwithstanding debtor has no other pi’operty — and that the claim paid, was barred by the statute of limitations.

    Appeal from a judgment entered at the Onondaga Special Term in favor of the plaintiff.
    The action was brought for the purpose of having a deed from defendant Stewart to the defendant Hotchkiss declared fraudulent and void, as to a judgment in favor of Fannie Niles against the defendant Stewart. The plaintiff was appointed receiver in proceedings supplementary to execution instituted in behalf of Mrs. Niles, under her judgment. The receiver was authorized to bring this action, and after issue joined, the cause was tried at Special Term, and resulted in a judgment for the plaintiff against the defendants, whereby the deed was declared fraudulent and void as to the plaintiff, Mrs. Niles, and her judgment. The deed was set aside, and the judgment declared a lien upon the premises, prior to the conveyance to defendant Hotchkiss.
    The court at Special Term held the transactions between the defendants fraudulent and void, and among other reasons, for the reason that the deed was executed and delivered with full knowledge on the part of the grantee of the fact that the grantor had no other property or means to pay the judgment of Mrs. Niles, and of his insolvency after the transfer; also because some of the claims, the consideration of the conveyance, were barred by the statute of limitations.
    The court at General Term say: “ This finding of the court conflicts with the current of leading authority on that subject, and cannot be sustained. A creditor may receive a conveyance from his debtor to secure a bona fide debt, although the debtor is left with no other property from which another creditor can enforce payment of the debt, and such conveyance will be upheld, although the grantee had full knowledge that the grantor had no other .property or means to pay other creditors, and was insolvent after the transfer. If the debt of the creditor is bona fide, and the property taken is of no greater value than the amount of the debt, the transaction is free from fraud, and will be upheld against the claims of creditors. (Waterbary v. Sturtevant, 18 Wend., 353; Auburn Exch. Bank v. Fitch, 48 JBarb., 344.) * * * It is true that the greater part of this debt had existed for more than six .years prior to the settlement made, but it by no means follows from this circumstance that the demands were stale within the rules governing courts of equity, so that the parties themselves could not forego the length of time.the accounts had run, and settle their demands upon principles of equity. The debtor was not bound to interpose the statute, nor could he in justice refuse to pay the interest which had accrued upon advances paid him by his creditor.
    The only question under the evidence was: Did the creditor have a bona fide debt against the debtor, and was the undisputed evidence of debtor and creditor to be overcome by the finding that the demands were stale, and therefore fraudulent? Within the decision of Fordham v. Smith (46'N. Y., 683), the court had no right to infer the truth to be the reverse of what was testified to by the defendants.

      Gilbert c& Hancock, for the respondents. Lansing c& Lymcm, for the appellants.
   Opinion by

Noxon, J.

Mullin, í\ J., and Smith, J., concurred.

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


author: Smith, J.

text:
    MARY E. SHERMAN, Administratrix, etc., v. PETER D. McINTYRE.

      Promissory note — the giving of, evidence of settlement of all demands between the parties — presumptive only, not conclusive.

    Appeal from a judgment in favor of the defendant for $102.73, entered on the report of a referee, in an action upon a promissory note for $100, executed by defendant to the plaintiff’s intestate. The proofs given and received at the trial in explanation of the giving of the note in this action, showed that it was a mere accom modation note, given by the defendant for the benefit of another person to whom plaintiff’s intestate was not willing to lend the amount of the money specified in said note, without security, but agreed to do so upon the defendant’s responsibility as indorser or otherwise. The referee found that the defendant established a set-off (a large part of which claim existed before the giving of the note), exceeding the amount of said note.
    The court says: “ It is well settled in this State that proof of the giving of a promissory note by one person to another, nothing else appearing, is prima faeie evidence of an accounting and settlement of all demands between the parties, and that the maker at the date of such note was indebted to the payee upon such settlement to the amount of such note. {lake v. Tysen, 6 N. Y., 461; De Freest v. Bloomingdale, 5 Den., 304; Dutoher v. Porter, 63 Barb., 20.) But this is a mere presumption, which may be repelled by proof of the consideration of such note, and of the occasion for and circumstances attending the giving of the same.”

      8. N. Dada, for the appellant. Howe de Bice, for the respondent.
   Opinion by

Smith, J.

Present — Mttllin, P. J., Smith and Noxon, JJ.

Judgment affirmed.


author: Gilbert, J.:

text:
    MARIA V. McILVANE, Respondent, v. MRS. S. A. HILTON, Appellant.

      Married woman — separate personal effects of — hoarding-house keeper's lien — Chapter 446, Laws of 1860.
    The plaintiff, a married woman, resided with and was supported by her husband, and her separate property, such as wearing apparel, was sought to be detained by the defendant, a boarding-house keeper, with whom she hoarded with her husband, under a contract made by him with the defendant for the board of himself and wife.

      Held, that chapter 446, Laws of 1860, for the protection of boarding-house keepers, confers upon them no greater rights than inn-keepers possessed at common law.
    That the common law did not, nor does this act, where the guest is received under a contract to furnish board for himself and wife who accompanies him, give to an inn-keeper a lien upon her effects, brought on the premises by her, on the faith of such contract.
    That her husband became liable for her board by special contract with the defendant ; she incurred no liability, and as nothing was due from her the defendant had no right to detain her goods for the debt of her husband.
    Appeal from a judgment of the County Court of the county of Kings, in favor of tlie plaintiff and against the defendant, a married woman, that the plaintiff have and retain possession of her personal property delivered to her by the sheriff in this action of replevin, and recover six cents damages, with $113.05 costs. The defendant’s husband made a contract with'the plaintiff for the board of himself and wife. The defendant held and detained the property of the wife, claiming to have a lien thereon for an amount due from her husband for such board. The plaintiff brought this action of replevin and obtained possession of the property.

      M. F. Waring, for the appellant..

      Anthony Barrett, for the respondent.
   Gilbert, J.:

The only question in the case is, whether the statute for the protection of boarding-house keepers (Laws 1860, chap. 446), gives a lien upon the separate property of the wife of a boarder, who engaged board for himself and his family, and we are of opinion that it does not. Taking the language of the statute in its ordinary sense, it is only the baggage and effects of the boarder that are affected by the lien, and the lien is given only for the amount which may be due for board by such boarder. For the purposes of this statute the effects which the boarder brings with him to the boarding-house are to be deemed his effects, although they in fact belong to another, if the boarding-house keeper has no notice of the latter fact. That was the rule of the common law with respect to inn-keepers, and a reasonable construction of the statute makes the same rule applicable to keepers of boarding-houses. (Jones v. Morrill, 42 Barb., 623.) Not so, however, where the guest was received under a contract that the inn-keeper should furnish lodgings, or board, or both to him and others who accompanied him, and for whom he undertook to provide, e. g., relatives, servants or workmen, and who brought their own effects on his premises on the faith of such contract. The lien no doubt might be excluded by special contract between the parties, and a contract made by A. with an inn-keeper to pay for the board of B. would necessarily exclude any lien on the goods of B. (Cross on Liens, 40), for no lien could exist unless the guest had become liable to the innkeeper.

The statute cited confers upon boarding-house keepers no greater rights than inn-keepers possessed at common law.

In the case before us, the effects on which the lien is claimed consisted of the wearing apparel of the plaintiff, and formed a part of her separate property. Her husband alone became liable for her board by special contract with the defendant. She incurred no liability.

We think, therefore, that as nothing was due from her to the defendant, the latter had no right to detain her goods for the debt of her husband.

The judgment must be affirmed.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment of County Court affirmed, with costs and disbursements.


author: Gilbert, J. :

text:
    DAVIS HATCH, Appellant, v. BUENAVENTURA BAEZ, Respondent.

      Arrest — party not'liable to in this country, for acts done by him as sovereign of another nation.

    The defendant, formerly president of the Dominican Republic, while residing in New York, was arrested in an action against him by the plaintiff, for injuries sustained at the hand's of defendant as sovereign of San Domingo. Held, that the general rule that all persons and property within the territorial jurisdiction of a State are amenable to the jurisdiction of the courts, did not apply to such a case; that the fact that the defendant had ceased to be such president, did not destroy his immunity.
    The immunity of individuals from suits brought in foreign tribunals, for acts done within their own States in the exercise of the sovereignty thereof, is essential to preserve the peace and harmony of nations.
    Appeal from an .order made at Special Term, vacating and setting aside an order of arrest.

      Nelson Gross, for the appellant.
    It is only to the extent of his • just and proper exercise of constitutional and legal powers that tbe president of Dominica is to be regarded as the executive of that republic. No unjust or oppressive act committed by his direction upon any one of liis subjects, or upon others entitled tu protection, is in any true sense the act of the executive in his public and representative capacity, but of the man simply, rated as other men are rated in private stations; for in the perpetration of unauthorized offenses of this nature, he divests himself of his “ regid prerogatives,” and descends to the level of those untitled offenders, against whose crimes it is the highest purpose of government to afford protection. (Chitty’s Pre. Crown, 5 ; Broom’s Legal Max. [4th ed.], 40, and authorities cited in note; Mattel, 17, et seq. ; Federalist, art. 68.) This action, being strictly personal, is transitory in its nature, and requires only the voluntary presence of the defendant within the judicial limits of our State courts to confer jurisdiction. “The judicial power of every State may be extended to all controversies respecting personal rights and contracts, or injuries to the person or property, when the party resides within the territory, wherever the cause of action may have originated.” (Wheaton’s El. Int. Law, part 2, ch. 2, § 20.) “ Considered in an international point of view, jurisdiction, to be rightly exercised, must be founded either upon the person being within the territory, or upon the thing being within the territory.” (Story’s Confl. of Laws, § 539.) “ All persons who are found within the limits of a government, whether their residence is permanent or temporary, are to be deemed subjects thereof.” (Story’s Col. of Laws, § 541; Henry on Foreign Law, ch. 8, p. 54, ch. 9, p. 63, ch. 10, p. 71; Wheaton, supra.) And “ whoever comes voluntarily into a country, subjects himself to all the laws of that country, and therein to all the remedies directed by those laws, on bis particular engagements.” (Story’s Confl., §§ 570, 571, citing authorities in notes.) It is not denied that the defendant took up his temporary residence in this State voluntarily, and that he was residing here at the time of his arrest. He indeed sought the safety of our borders and the protection of our laws. He came here a private citizen, and was clothed with no official or representative capacity when arrested at the suit of plaintiff, for damages inflicted in clear violation of law, and it is the settled rule of this country, as well as England, that shits are maintainable in the local courts, and.are constantly maintained, between foreigners, or by citizens against foreigners, “ where either of theia is within the territory of the State in which the suit is brought.” (Story’s Confl., § 542.) This doctrine has been promulgated by the courts of this State. (Latourette v. Clarke, 45 Barb., 327; Dewit v. Buchanan, 54 id., 31.)

      Bvarts, Southmayd & Choate, for the respondent.
    It is clear that the sovereign of another nationality is not amenable to any court of this State, for acts so done in his governmental capacity within his own territory. The municipal courts of one country cannot thus sit in review of the acts of state of another nation. This is a well recognized principle growing out of the nature of international relations. The House of Lords, in the case of The Duke of Brunswick (2 H. of L. Cases, 1), very recently established and illustrated it. In fact, they refused to hear the counsel for the respondent, and said that there could be no doubt of the principle, and that it applied to all acts done by the defendant in his sovereign capacity, whether right or wrong, and whether within or in excess of his constitutional power and authority. The Lord Chancellor (Colusnham) said that “ a foreign sovereign, coming into this country, cannot be made responsible here for an act done in his sovereign character in his own country; whether it be an act right or wrong; whether according to the constitution of’ that country or not, the courts of this country cannot sit in judgment upon an act of a sovereign, effected by virtue of his sovereign authority abroad, an act not done as a British subject, but supposed to be done in the exercise of his authority vested in him as sovereign.” It is obvious that if the High Court of Chancery in England could not entertain such questions, our own State courts of municipal jurisdiction cannot do so. It makes no difference upon the principle for which we contend that the defendant, since the occurrence of the acts complained of, has ceased to be the sovereign of San Domingo, and was, at the time of his arrest, a private individual in exile from the country over which he once exercised sovereign powers. For it is the nature of the subject-matter, which removes the question involved altogether from the domain of our municipal law, which prohibits the jurisdiction of our courts. Not only the inherent limits of municipal jurisdiction forbid it, but the universal comity of nations prohibits the courts of one to sit in judgment upon the continental acts of another, and for that purpose to take advantage of the accidental presence on our soil of one who, at the time of the acts complained of, exercised sovereign powers, of which he has been since deprived. Imagine Gladstone visiting this country and arrested by order of one of our State courts, at the suit of some aggrieved Fenian who had been tried and convicted in Ireland, under the government of which Gladstone was premier. The plaintiff in the case supposed might make the same allegations as were contained in these moving papers, but who doubts that the detention under process of the ex-premier would be an immediate casus belli.

   Gilbert, J. :

The wrongs and injuries of which the plaintiff complains were inflicted upon him by the government of St. Domingo, while lie was residing in that country, and was in all respects subject to its laws. They consist of acts done by the defendant in his official capacity of president of that republic. The sole question is, whether he is amenable to the jurisdiction of the courts of this State for those acts. If he is, no doubt his having been served with process here gives the court jurisdiction of his person, and the action being-transitory, the court has also jurisdiction of the subject-matter.

The counsel for the plaintiff relies on the general principle, that all persons, of whatever rank or condition, whether in or out of office, are liable to be sued for acts done by them in violation of law. Conceding the truth and universality of that principle, it does not establish the jurisdiction of our tribunals to take cognizance of the official acts of foreign governments. We think that, by the universal comity of nations and the established rules of international law, the courts of one country are bound to abstain from sitting in judgment on the acts of another government done within its own territory. Each State is sovereign throughout its domain. The acts of the defendant for which he is sued were done by him in the exercise of that part of the sovereignty of St. Domingo which belongs to the executive department of that government. To make him amenable to a foreign jurisdiction for such acts, would be a direct assault upon the sovereignty and independence of his country. The only remedy for such wrongs must be sought through the intervention of the government of the person injured, or by an appeal to the sense of justice of that, which inflicted the injury.

In the case of the Duke of Brunswick v. The King of Hanover, (2 H. L. Cas., 1), the House of Lords in England held, that the defendant, who was also a British subject, and was in England exercising his rights as such subject, could not be made to account '.n the Court of Chancery, for acts of state whether right or wrong, done by him in Hanover, and elsewhere abroad in virtue of his authority as a sovereign, and not as a British subject. The adjudication was put upon the principle, that no court in England could entertain questions to bring sovereigns to account for acts done in their sovereign capacities abroad.

The general rule, no doubt, is, that all persons and property within the territorial jurisdiction of a State are amenable to the jurisdiction of its courts. But the immunity of individuals from suits brought in foreign tribunals for acts done within their own States, in the exercise of the sovereignty thereof, is essential to preserve the peace and harmony of nations, and has the sanction of the most approved writers on international law. It is also recognized in all the judicial decisions on the subject that have come to my knowledge. (See 2 Phil. Int. Law, 121, et seq. ; Wheat. Int. Law [Lawrence ed.], 189, note; The Exchange, 7 Cranch, 1151; The Santissima Trinidad, 7 Wheat., 283.)

The fact that the defendant has ceased to be president of St. Domingo does not destroy his immunity. That springs from the capacity in which the acts were done, and protects the individual who did them, because they emanated from a-foreign and friendly government.

The order appealed from must be affirmed with costs.

Present — Barnard, P. J., Gilbert and Dykhan, JJ.

Order affirmed with costs and disbursements.


text:
    WILLIAM F. CAMERON and JOHN L. SLOAT, Respondents, v. ROBERT SEAMAN and HENRY A. SEAMAN, Appellants.

      Trustees — of corporations formed under chap. 40, Laws of 1848 — liability of — Failure to publish annual reports — Extending time of payment of debt — effect of.

      A failure to publish, the annual report required by the act of February 17th, 1848, entitled “An act to authorize the formatiou of corporations for manufacturing, mining, mechanical or chemical purposes,” creates the same liability, as a failure to make the report or to file it would have done. It was the intention of the legislature to make it the duty of the trustees to cause all those acts to he done.
    Although the statute is a penal one, and will not he extended in its operation by construction, yet the same rules of interpretation apply to it as to statutes not penal. The legislative will governs in all cases.
    The extent of the liability is “for all debts then existing and for all that shall he contracted before such report shall be made,” and it falls upon those in office when the default occurred, although contracted before they became trustees. The liability of the trustees is not affected by the recovery of judgment against the corporation, or by extending the time for the payment of the debt without their consent.
    Appeal from a judgment entered upon the decision of the justice, on a trial by the court without a jury.
    This action was brought against the defendants to recover a debt due to the plaintiffs from the Sbenandoab Mining Company (a corporation organized under tlie general act of the legislature in relation to manufacturing and mining corporations, passed February 17th, 1848), for failure on the part of the trustees of said company to file or publish the annual report required by section 12 of said act, within twenty days from January 1st, 1874, or within twenty days from January 1, 3875. The place where the business of the company was carried on was East Fishkill, Dutchess county. The newspaper published nearest said place of business was the Fishkill Journal, published at Fishkill, in said county. The report of the said trustees for 1874 was filed in the clerk’s office on the twenty-second day of January, and published in the Poughkeepsie Eagle, a newspaper published in the city of Poughkeepsie, on the twenty-fourth day of January, and was not published in any othei ” newspaper. In so tiling and publishing, the trustees intended in good faith to comply with the statute concerning the making, tiling and publishing of the annual reports of said companies. The report of said company for 1875 was not signed by any persons who were trustees of the company. The persons who signed said report hav ing been elected trustees in June, 1873, and at the election held in September, 1874, a new board had been elected, none of whom had made any report for January, 1875. The defendant Henry A. Seaman was elected a trustee in September, 1874, and claimed on the trial that he had resigned his office. The court decided that he was still a trustee. The plaintiffs’claim, for which this suit was brought, was for lumber sold the company, between January 29, 1873, and August 20, 1873. On March 26, 1874, the plaintiffs took the notes of the company at four mouths, for the whole amount of the claim then unpaid, which notes the plaintiffs procured to be discounted at the bank, and credited the company with the proceeds, thereby balancing the account. When the notes fell due the plaintiffs took them up, and afterwards obtained judgment thereon against the company.

      E. A. Brewster, for the appellants.
    By this statute, the making of the report is the only act which is required to be done within the twenty days, and for the failure to do which the penalty is imposed upon the trustees. The publishing and filing are acts to be done after the report is made. No time is absolutely fixed within which they must be done. It may be impracticable, in certain cases, to publish the report within the twenty days, as where the nearest newspaper is only issued monthly, and the publication day is after the twenty-first of the month. So as to the filing, the report may have to be sent to a distant clerk’s office, and require several days for its transmission. Yet the trustees have the whole twenty days within which to make their report. Both the publication and the filing are matters not wholly within the control of the trustees. In the one case the printer and in the other the county clerk, must do the act. Therefore, when the statute comes to impose the penalty upon the trustees, it is when they shall fail to do so, that is, fail to do what they are required to do, viz., to make the report, and not when they shall fail tc canse to be done, acts, which from their nature must be done by others than themselves. This construction is further supported by the concluding words by which they are made liable for debts contracted before the report shall be made; not made, filed and published. The publication in the Poughkeepsie newspaper was sufcient. The company had a “ place where the business of said company was carried on,” in the city of Poughkeepsie. The fact that some one published a paper in the little village of Fishkill (a little nearer to the iron mine of the company than Poughkeepsie), which paper was so obscure that the trustees of this company never heard of it, cannot have the unreasonable and illogical effect of making the trustees personally liable for all the debts of the company. By taking the notes of the company on time, having them discounted, and balancing the account, the plaintiffs canceled the original debt, and waived any claim they may have then had against the trustees. (Fisher v. Marvin, 47 Barb., 159.) Their liability, if any, was of the nature of a suretyship. {Moss v. MoOuttough, 5 Hill, 133; Miller v. White, 50 N. Y., 137, 141, 142.) And the giving time to the principal debtor released them. {Hart v. Hudson, 6 Duer, 294.) There - was no ground for recovery against the defendant Henry A. Seaman. He was not a trustee in January, 1874. Henry A. Seaman, as soon as he heard of the action of that meeting refused to serve, and never did serve as a trustee. The old board of trustees held over. He had the right to resign, from which it follows he had the right not to accept. {Chandler v. Hoag, 3 Hun, 613; since affirmed by Court of Appeals.) Even if Henry A. Seaman duly elected, and bound to be a trustee nolens volens, yet he is not liable in this case, because the debt was contracted before he became a trustee. {Shaler Quarry Co. v. Bliss, 27 N. Y., 297; Gat rison v. Howe, 17 id., 458 ; Boughton v. Otis, 21 id., 261.)

      Cassedy cfe Brown, for the respondent.
    The company failed to comply with the statute in January, 1874. The report of 1874 was not filed in the clerk’s office until January twenty-second. East Fishkill was named in the certificate of incorpciat’on as the town where the business of the company was carried on, and was the place of business of the company, within the meaning of the act of the legislature. {McHarg v. Eastman, 4 Robt., 635 ; West. Transportation Oo. v. Saheu, 19 N. Y., 408; Oswego Starch Go. v. Holloway, 21 id., 453,454.) There was no newspaper published in East Fishkill, and the Fishkill Journal was the newspaper published nearest the place of business of the company. They were required to publish the report in this newspaper. They had no nore right to publish in the Poughkeepsie Eagle than in a newspaper in Buffalo or New York city. Their failure to comply with the law made “ all the trustees jointly and severally liable for all debts of the company then existing.” {Garrison v. Ilowe, 11 N. Y., 458; Shaler dé Hall Quarry Go. v. Bliss, 27 id., 297; Bough-ton v. Otis, 21 id., 261; McHarg v. Eastman, 1 Robt., 137; Shaler dé Hall Quarry Go. v. Brewster, 10 Abb. Pr., 467; Doming v. Pulleston, 55 N. Y., 655; Miller v. White, 8 Abb. Pr. [N. S.], 55.) It is no answer for the defendants to say that the report was made within the twenty days. The law intended the report for some purpose, and what purpose could be accomplished by permitting the trustees to sign the report and then keep it in' their pocket for an indefinite period. _ The language of the statute is, “ shall make a report * * * which shall be published * * * and filed * * * and if any of said companies fail so to do the trustees shall be liable,” etc. The failure to which the penalty is attached is not only the making but the publishing and filing. The debt due to the plaintiffs was an existing debt on the 21st day of January, 1874. The lumber had all beeu sold aud delivered prior to September 1st, 1873, and had never been paid for. It is true the plaintiffs had taken the company’s draft or acceptance for a part of the debt, but this was only the promise of the company to pay at a future day. It did not extinguish or pay the debt; and the taking of the note of the company for the debt does not relieve the trustees. {Jones v. Barlow, 6 Jones & Spencer, 162; Demivg v. Pulleston, 3 id., 309; S. C., 55 N. Y., 655; McHarg v. Eastman, 1 Robt., 137.) In Jones v. Barlow, after the default of filing the report, the plaintiff took ten notes of the company for his debt* one of which was not due at the commencement of the action. The court held that the remedy against the trustees is distinct and concurrent, and not inconsistent with the other remedies in favor of the creditors against either corporation and stockholder. lie may take notes of the company or sue the company or stockholders, and if he does not collect can still sue the trustees. It was claimed on the trial that the defendant Henry A. Seaman was only liable for debts contracted while he was trustee. There is nothing in the law that warrants such a construction, and the cases in the Court of Appeals effectually dispose of such a defense. (Garrison v. Howe, 17 N. Y., 458 ; Boughton v. Otis, 21 id., 261; Shaler <& Tlall Quarry Co. v. Bliss, 27 id., 297; Miller v. White, 8 Abb. Pr. [N. S.], 55.) In Boughton v. Otis, Judge Combtogk says (page 264): “ The general policy of the act is immunity from personal liability, but this is attended by certain conditions demanding the personal observance of the trustees. A single case may occur where successive boards may be liable for the same debts, and that is where there are successive defaults in January The liability of the trustees for a failure to make a report is in the nature of a penalty, and the penalty is all the debts of the company then existing. The trustees are not relieved by the recovery of a judgment against the company, or by the creditor’s taking the company’s note, and the statute of limitations commences to run anew upon every sue cessive default. (.Miller v. White, 2 Abb. Pr. [N. S.], 61; Shaler da Ilcill Quarry Go. v. Bliss, 27 N. Y., 297; Squire v. Brown, 22 IIow., 35; Merchants' Bank of New York v. Bliss, 35 N. Y., 412; McTIarg v. Eastman, 7 Hobt., 137.) Nor is it any defense that the trustees acted in good faith. (Whitney Arms Co. v. Barlow, 6 Jones & Spencer, 554.)
   Gilbert, J.:

None of the positions assumed by the counsel for the plaintiffs are tenable. It is not necessary to the determination of this case to decide whether the act of 1848 (chap. 40, § 12,) requires the annual report to be published and filed, as well as made, within twenty days from the first day of January, inasmuch as there was a failnre to comply with the requirement in respect to publication at any time. Such failure devolved the same liability upon the defendants as a failure to make the report or to file it would have done. But we think the intention of the legislature was to make it the duty of the trustees to cause all those acts to be done within the twenty days. It is only by such an interpretation that the object of the statute, namely, to convey information of the affairs of the corporation, in the mode prescribed, can be accomplished. The making of the report alone certainly would give no knowledge of its contents to persons not privy to the making of it. Hence, it must be filed, in order that persons interested may have access to it, and the object of the publication is to facilitate the same purpose. The language of the statute, too, is not ambiguous. It imposes the duty of making, publishing and filing the report, and the liability declared is for a failure so to do. Clearly, therefore, the making of the report only would not save the liability. It must be published and filed also, and that must be done within the time limited for the making of it, for as the liability attaches upon the failure to do all those acts, the only reasonable inference is, that the limitation of time applies to all. Although the statute is a penal one, and will not be extended in its operation by construction, yet the same rules of interpretation apply to it as to statutes not penal. The.legislative will governs in all cases.

The extent of the liability is, “for all debts then existing, and for all that shall be contracted before such report shall be made,” and it falls upon those in office when the default occurred. It matters not that the debts were contracted before the officers became trustees, if they existed when the default occurred. (Boughton v. Otis, 21 N. Y., 261; Shaler, etc., Co. v. Bliss, 27 id., 297.) Nor is the liability of the trustees affected by the recovery of a judgment against the corporation, or by extending the time for the payment of the debt without their consent.

They are not parties to the contract between the corporation and the plaintiffs, nor does their liability depend on their membership in the corporation. It is imposed by the statute as a penalty for the non-performance of a duty thereby enjoined on them, the extent of the penalty being fixed by the amount of the corporate debts at the time the default occurred, and before the duty shall have been performed. The equitable principles growing out of the relations which parties to a contract sustain among themselves, therefore, have no application to such a case. (Corning v. McCullough, 1 Comst., 47; Moss v. Averill, 10 N. Y., 450; Harger v. McCullough, 2 Den., 119; Bank v. Ibbotson, 24 Wend., 473.)

The election held in September, 1874, at which the defendant Henry A. Seaman was chosen a trustee, appears to have been regular in all respects. No election having taken place in June, 1874, it was properly held at the next regular meeting, which occurred on the second Friday in September following; and the board of trustees had power to fix Newburgh as the place of meeting for that purpose. Mr. Seaman testified that, on receiving notice of his election from Mr. Haines, the president of the company, he told him he could not serve. Haines testified that Seaman was a trustee in January, 1875, and the judge, at the trial, found that he was a trustee, and refused to find that he notified Haines that he would not serve. There appears to be no sufficient ground for reversing the decision of the judge upon this question of fact. It is, at least, doubtful whether there was an effectual refusal to t-erve, or resignation of the office of trustee. (Ang. & Ames on Corp., § 433.) But we need not pass on that question.

The judgment must be affirmed.

Present — Hilbert and Dykman, JJ.; Barnard, P. J., not sitting.

Judgment affirmed with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. GEORGE S. WRIGHT, Respondent, v. OWEN T. COFFIN, Surrogate of Westchester County, Appellant. GEORGE S. WRIGHT, Appellant, v. ABBIE J. FLEMING and others, Respondents. THE SAME v. THE SAME. GEORGE S. WRIGHT, Administrator, v. ABBIE J. FLEMING and others.

      Surrogate — Mandamus — Injunction — cannot issue against, when — settlement of accounts — Power to open accounting before decree made — Discretion.
    Where a party has a clear legal remedy, a mandamus will not issue, and the same rule generally governs the exercise of the jurisdiction of courts of equity, in restraining parties from procuring or enforcing the orders and judgments of other courts, in cases within the jurisdiction of such courts.
    A. surrogate has the power, and it is his imperative duty to settle the accounts of an administrator. To settle such accounts is to ascertain what is justly due by him to the several persons who are entitled to share in the distribution of the moneys in his hands, after defraying the expenses of the trust.
    Where the surrogate would not allow proof of certain payments to the next of kin because the parties had submitted their case without proof of such payment, although the application was made while the proceedings were still pending, and after the surrogate had announced that he would hear the parties, touching any thing that had escaped his attention, when they came before him to settle the decree: held, error.
    1. That the submission of the case without proof of the payments referred to, at most, furnished matter for the exercise of his discretion, like an application on a trial to introduce further testimony after counsel had rested, or to recall a witness after he had left the stand; and although as a general rule a higher court will not review the exercise of a discretionary power by an inferior tribunal, yet it is their duty to do so in the case of a palpable abuse of discretion.
    2. That as he refused to exercise his discretion, on the ground of a want of power, that also was an error, which it was the duty of the higher court to correct.
    Appeals from a surrogate’s order on a final settlement of the accounts of an administrator.
    From an order directing that a mandamus issue directed to the surrogate of Westell ester county, commanding liim to receive evidence in the matter of the accounting of George S. Wright, administrator.
    From an order overruling a demurrer to the complaint in an action brought by the administrator to restrain the next of kin from taking any decree in the Surrogate’s Court which failed to allow him credit for certain alleged payments, and from an order granting an injunction in the last mentioned action.

      Clarkson N. Potter, for George S. Wright.

      Francis FF. Bangs, for Thomas, Francis and H. Nelson Wright.

      Alexander Thain, for Abbie J. Fleming.

      George Norris, for John T. Wright.

       These appeals were decided at'the February term, 1876.

   Gilbert, J.:

In disposing of the appeal from the order granting a mandamus, aud the appeals from the orders made in the suit in equity, it is sufficient to say that Mr. Wright had a clear legal remedy, of which, as will hereafter appear, he availed himself successfully. That a mandamus will not issue where the relator has another specific legal remedy is a familiar elementary rule.

The same rule governs the exercise pf the jurisdiction of courts of equity in restraining parties from procuring or enforcing the orders and judgments of other courts in cases within the jurisdiction of such courts. For where there is an adequate remedy, by motion or by appeal, there is no occasion for the interference of a court of equity. Mr. Wright had the remedy of appealing from the order of which he complained. Orders made in Surrogates’ Courts must be entered, and appeals therefrom may be taken to this court, which possesses all the powers in such cases formerly vested in the circuit judges, and in the Court of Chancery. (Laws 1847, ch. 280, § 17; Schenck v. Dart, 22 N. Y., 420.) An appeal, when perfected, except in certain specified cases, of which this is not one, stays all proceedings on the order appealed from (2 R. S, 609, §§ 104, 107, 109 ; Whitbeck v. Patterson, 22 Barb., 88); and this court has power to stay all other proceedings which might frustrate or impair the benefit of the appeal. (Vredenburgh v. Calf, 9 Paige, 128.) Such appeals are not affected by the Code. (Sec. 471.) Without intending to intimate that in no possible case will this court interfere by mandamus or injunction with proceedings pending in Surrogates’ Courts, we think the case before us did not call for the exercise of such powers.

The order granting the mandamus, that overruling the demurrer, and that granting an injunction, are reversed, with costs of such appeal.

With respect to the appeal from the order of September 20, 1875, whereby the surrogate denied the application of the administrator to prove payments, or advances intended if necessary to operate as such, amounting to $114,000 and' upwards, made by him to the next of kin of the intestate, the order ought, in our opinion, to be reversed. It is evidently based upon a misconception, both of the power and the duty of the surrogate. He had the power, and it was his imperative duty to settle the accounts of the administrator. To settle the accounts of an administrator is to ascertain what is justly due by him to the several persons who are entitled to share in the distribution of the moneys in his hands, .after defraying the expenses of his trust. That is to be done after a citation of the parties in interest, and a hearing of their allegations .and proofs. He is authorized to adjourn the hearing from time to time as shall be necessary (2 R. S., 93, §§ 60 to 64, 70), and, finally, to settle the account, and, in doing so, to administer justice accord-to the provisions of the statutes of this State. (Id., 220, § 1, sub. 3 and 5.) It is difficult to conceive language more comprehensive to confer all the power needful to a just discharge of the duty imposed under any and all circumstances. The nature of the proceeding, says Chancellor Walworth, in Gardner v. Gardner (7 Paige, 112), is like a proceeding to take an account before a master where additional charges or discharges may be received upon sufficient reason shown. It is not worth while to discuss the question often mooted respecting the incidental powers of surrogates, for here is an express power ample for the purpose. The application was not to open a decree or grant a rehearing, for no decree has yet been made. It was simply to be allowed to prove payments to the next of kin ; and it was made while the proceeding was still pending, and after the surrogate had announced that he would hear the parties, touching any thing that had escaped his attention, when they carne before him to settle the decree. The whole proceeding, therefore, was still open and pending before him. The submission of the case, without proof of the payments referred to, did not annihilate his power to do justice. At most that furnished matter for his discretion, to be exercised in furtherance of justice; like an application made upon the trial of an action to be permitted to introduce further testimony after the counsel had rested, or to recall a witness after he had left the stand. I never heard the power of a court to grant such an application doubted. Surrogates clearly have the power, whether other courts have or not. (Sipperly v. Baugus, 24 N. Y., 49; Campbell v. Thatcher, 54 Barb., 387; Van Alen v. Hewins, 5 Hun, 44; Kerr v. Kerr, 41 N. Y., 272.)

As the surrogate denied the application on the ground that he had no power to grant it, is is our duty to reverse the order without reference to the question whether the order was a proper exercise of judicial discretion or not. (Tilton v. Beecher, 59 N. Y., 176.) But we think the order cannot be upheld as an exercise of discretion. The omission of the payments from the account presented was sufficiently explained as attributable to mistake or inadvertence. The imputation that the administrator fraudulently caused or connived at such omission, and withheld the evidence of the payments until after the surrogate had decided upon the account as presented, in order to accomplish sinister purposes of his own, seems to us to be a harsh one and not warranted by the evidence. Still, whatever may have been the motives which actuated the conduct of the administrator, we think it did not justify the surrogate in inflicting such punishment, or relieve him from a just and conscientious performance of the duty of settling the accounts. We think that the object which the administrator had in view may have been to shield the memory of his father, certainly it was not to defraud his brothers and sisters. We think, therefore, that the surrogate should have granted the application.

While, as a general rule, this court will not review the exercise of a discretionary power by an inferior tribunal, yet it is our duty to do so in a caso of palpable abuse of discretion. If the surrogate exercised his discretion in this case — of which there is no evidence save the suggestions of counsel — we think he fell into an error which it is our duty to correct.

The order of September 20, 1875, is reversed, with costs, and the proceedings are remitted to the surrogate with directions to proceed and settle the account.

Present — Barnard, P. J., Gilbert and Talcott, JJ.

Order granting mandamus revei’sed, with costs. Order granting injunction reversed, with costs. Order overruling demurrer reversed, with costs. Order of surrogate reversed, with costs, and proceedings remitted to surrogate with directions to proceed.


text:
    JASON PAYNE, Respondent, v. JOHN P. HODGE, Appellant.

      Contract — quantum meruit —Memoranda—entry in iooles —proof of facts entered.

    Where a party is engaged to superintend a job, to act instead oí another in selecting materials and paying employes, he is entitled to a reasonable compensation, and to be paid his disbursements; and, if the work has not been done according to the plans, any injurious departure therefrom would affect the quantum of his recovery, but would not prevent his recovering what his services were worth. When the right to compensation does not depend on the value of the work when done, the evidence of experts as to its value and the number of days consumed in doing it is not admissible.
    The lime required to do a particular work is not a matter of skill or science. Smith v. Brady (17 N. Y., 173) distinguished. '
    Where a party testifies that he made certain entries in his book in accordance with statements made to him by others, and such others testify that the facts were correctly given to him and that he entered them, such evidence is not necessarily hearsay, and is admissible. It makes no difference how the truth of the fact stated in the entry is proved, whether by the one who made the entry or by the one who gave him the facts which he entered.
    A.n entry is not incompetent evidence because of a fact not within the personal knowledge of the person making it. It is enough if it appears that such entry rests upon knowledge and not hearsay, and is proved to have been correctly made.

      Gould v. Conway (59 Barb., 361) distinguished.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was for work done by plaintiff, in superintending, etc., some work for defendant. The defendant by his answer admitted the delivery of a certain portion of the materials and admitted the credits, and denied every other material allegation. He denies specially that the labor amounted to the sum charged by the plaintiff, or that any other of the materials charged for were furnished by his direction, or that he ever accepted them. He alleges, also, that the contract between him and plaintiff, under which all services rendered by him were rendered, was that the work was to be done, according to the plans, skillfully and in a workmanlike manner, and under the personal supervision and superintendence of the plaintiff. He alleges that the work was not so done and that the plaintiff did not give such supervision and superintendence to the work, and that damages resulted to the defendant in a large amount from such failures, which lie pleads as a counter-claim, set-off and by way of recoupment.
    The referee found, among other things, that by the contract between the plaintiff and defendant it was agreed by the plaintiff that he would take charge of and superintend the repairs and additions to defendant’s building. That in‘pursuance of said contract he agreed to employ for the same purpose mechanics to work under him on said building, and that after said plans had been submitted to the defendant the defendant examined said plans and directed the plaintiff to do the work called for by the contract.
    That the plaintiff entered upon the prosecution and completion of the contract aforesaid under the plan submitted by him to the defendant. That the work, according to the contract, was to be done by the plaintiff and the servants under his superintendence by day’s work.
    That it was agreed between the plaintiff and defendant, in regard to said contract, that the plaintiff was to furnish a good, substantial, plain job, done well.
    That in the prosecution and completion of the work so performed under said contract the plaintiff hired and employed competent mechanics, to whom he paid the going wages and who worked under his superintendence on said job. That the work. labor and services performed by the plaintiff and his servants fox the defendant, in the execution of the contract, were x’easonably worth the sum of $1,376.11.
    The evidence in relation to the books of account is thus stated in the case by the referee. “The books of the plaintiff offei’ed in his behalf are received in evidence merely as cotempox-aneous memoranda made by him of the time of the workmen in his employ on the house in question, who have been examined as witnesses in the case and who have testified that they gave their time coi’rectly to the plaintiff, saw him enter it in the books and settled with him according as given.”

      Bacon & Duryea, for the appellant.

      O. U. Winfield, for the respondent.
   Gilbert, J.:

The rule of Smith v. Brady (17 N. Y., 173), which has been so often invoked to deprive the laborer of his hire, we think does not apply to this case. All that the plaintiff agreed to do was to superintend the job; to act instead of the plaintiff in selecting materials, in employing axxd paying mechanics and workmen and in exercising an oversight over the work. For this service he was entitled to a reasonable compensation, and to be x-epaid his disbursements. And his right to recover did not depend on px-oof that the work had been done in conformity with the plans. The plans, no doubt, were intended to govern the manner in which the work was to be done, and any injurious departure from them might evince a want of skill in the plaintiff which would affect the quantum of his compensation, but did not disentitle him to recover what his services wei’e x'easonably worth.

The opinions of experts as to the value of the work done, and the nunxber of days consumed in doing it, we think was properly excluded. The plaintiff’s compensation did not depend on the value of the work when done, and the time requisite to do a pax-ticular work is not a matter of skill or science.

The evidence was clearly sufficient to establish the correctness of the plaintiff’s account. The plaintiff testified that he made the entries in accordance with statements made to him by other witnesses, and the latter testified that such statements were true. This is all that the law requires. Such evidence is not necessarily upon hearsay, which is very properly condemned in Gould v. Conway (59 Barb., 361). But the plaintiff testified that he entered the facts as given to him, and' the other witnesses proved that the facts were correctly given to the plaintiff and that he entered them. It can make no difference how the truth of the facts stated in the entry is proved, whether by the one who made the entry or by the .one who gave him the facts which he entered. Nor is an entry incompetent because it is oí a fact not within the personal knowledge of the person who made it; it is enough if it appears that the entry rests upon knowledge and not hearsay, and is proved to have been correctly made.

Evidence of the defendant’s acquiescence was competent to show that the plaintiff faithfully performed his duty, and that the defendant’s complaint on that subject was an afterthought. It was not received to show that any violation of an express contract had been waived, and had no bearing in that direction.

If the views expressed are correct, the other exceptions do not require particular notice.

Upon the merits, the referee seems to have dispensed substantial justice, and his findings of fact and of law are abundantly sustained.

The judgment must be affirmed.

Barnard, P. J., dissented.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.