text:
    George A. Cunningham, App’lt, v. Alexander Whitford, Individually and as Executor of the Last Will of Daniel Whitford, Deceased, Sarah A. Whitford, Wife of Alexander Whitford, Lucena Briggs, Harrier Swoap, Bradley S. McCabe, De Witt Stevens, John Whitford, Elizabeth Jane Grogan, Lucy Ann Cunningham, and Albert Parker, and W. Irving Jennings, and Amy Hamilton, as Executors of the Will of David Hamilton, Deceased, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Witness—Section 829.
    A person interested in the event of the action or proceeding, when called as a witness by an adverse party who is seeking to establish a liability against him, is not incompetent under § 829 of the Code.
    8. Same.
    The fact that he is a party to the action does not, in such case, disqualify him from being a witness.
    3. Decedent’s estate—Lien.
    The réal estate of a decedent cannot be aliened by his heirs or devisees during three years after his death, so as to defeat the claims of his creditors thereon.
    Appeal by the legatees named in the will of Daniel Whitford, deceased, and the creditors of said deceased, to recover a judgment and decree directing the payment of a mortgage given by Alexander Whitford to David M. Hamilton on land devised in such will to him ; and adjudging the same a prior lien upon such lands on the bequest in said will, and the debts of the testator.
    The creditors and legatees appeal separately.

      J. A. Griswold, for pl’ff-app’lt; A. C. Griswold, for def’ts-app’lts; Emory A. Chase, for resp’t.
   Mayham, P. J.

The case discloses that Daniel Whitford died May 20, 1880, the owner of a farm, and leaving a will whereby he bequeathed to three of his children $300 each, and to two grand-children each, $100.

In and by said will he devised his farm to his son, Alexander Whitford, by the following provisions:

Third. I give, devise and bequeath unto my beloved son, Alexander Whitford, all the rest, residue and remainder of my estate, both real and personal, of what nature and kind so ever, to have and to hold the same to him, his heirs and assigns on the condition and proviso, that he pay to the above named legatees respectively, the legacies herein given, within four years after my decease, without interest, and the real estate so devised to my son, Alexander Whitford, is charged with the payment of the same.” The testator also in his will, nominated Alexander Whitford as sole executor. The will was duly proved and admitted to probate on the 25th.day of June, 1888, as a will of real and personal estate, and letters testamentary were duly issued to the executor named therein, who duly qualified as such executor, and thereupon took possession of the real estate of which the testator died, as devisee under the will.

One of the legacies in the will has been paid by the executor and devisee of the téstator’s real estate.

The trial judge finds that the testator at the time of his death owed debts, not secured by mortgage to five persons amounting in the aggregate, without interest, to $3,024.59, which are still unpaid, and that there are four unpaid legacies, amounting, without interest, in the agrégate to $1,046.97. This action is prosecuted by a creditor of the testator upon a simple contract debt, to reach the estate of the deceased in the hands of the legatees, devisees, or heirs, of the deceased, under the provisions of § 1834 of the Code of Civil Procedure. The case shows that, on the 1st day of April, 1890, the defendant Whitford, the devisee of the real estate, under the will of the testator executed and delivered to David M. Hamilton a mortgage on the real estate devised to him for $2,200 to secure a loan of that amount at that time, made to him. The mortgagee having died before the commencement of this action, his personal representatives are made defendants in this action, and are the respondents on this appeal.

The only question of fact litigated on the trial, and in dispute on this appeal, is as to whether David M. Hamilton took and accepted the bond and mortgage from Alexander Whitford in good faith, and without notice of the debts of the testator, above referred to! Upon this subject the mortgagor Alexander Whit-ford, who was called as a witness for the plaintiff, was on plaintiff’s behalf asked this question:

“ Q, Did you tell David M. Hamilton, now deceased, about the debts of the estate, in favor of the creditors ? ” This question was objected to by respondents, on the ground that it involved a personal transaction between the witness and deceased, and was therefore inadmissible, under § 829 of the Code of Civil Procedure ; and the objection was sustained and the plaintiff duly excepted. By plaintiff’s counsel: The plaintiff offers to prove by this witness that at the time of the execution of the bond and mortgage executed by witness to David M. Hamilton, the mortgagee, the witness told the mortgagee of all the debts of the testator and the legacies in the will. Counsel for Parker, Jennings and Hamilton objects to the offer on the same grounds last above. Objection sustained by the court, to which plaintiff excepted. Counsel for the legatees and other creditors named as defendants on their behalf repeated the same question and offer, to which the counsel for the personal representatives of Hamilton made a similar objection which was in like manner sustained by the court and like exceptions were taken. The attorneys for the respondent on the behalf of the personal representatives of the mortgagee called a witness, and proved conversation between Hamilton the mortgagee and Whitford the mortgagor, at the time of making and accepting the mortgage, to the effect that the mortgaged property was unincumbered except by a $800 mortgage. The counsel for the plaintiff further inquired into that conversation and Alexander Whitford was recalled by plaintiff, testified: “ I remember the occasion I was at Mr. Bronk’s office with David M. Hamilton. At the time spoken of by Mr. Bronk as a witness here I was present, I heard Mr. Bronk testify.”

Q. Now, what was said between you and David M. Hamilton, about liens and claims on the property ? Objected to by counsel for defendants Parker, Jennings and Hamilton, as a personal communication or transaction between the witness and a deceased party in which he is interested, and a party in this action; and otherwise objected to as incompetent under § 829 of the Code. Objection sustained by the court, and exception by the plaintiff and defendants, except the executors of Hamilton.

It is now insisted by the learned counsel for the appellants both plaintiff and defendant, that the exclusion of this evidence was error. There can be no question as to the fact, that this offer bore directly upon the question of knowledge in the mortgagee of the existence of these debts. But was the witness by whom it was sought to be proved competent to give evidence upon the subject. The provision of the Code invoked by the respondent provides that “A party or persons interested in the event * * * shall not be examined as a witness in * -x- against an executor * * transaction, or communication between the witness and the ceased person, etc.” The witness in this case was not called as a witness in his own behalf. He was called by an adverse party who was seeking to establish a liability against him. Nor do we see how it can be maintained that he was called in his own behalf. own behalf, or interest, concerning a personal deHe was liable on the covenants in his bond to Hamilton for the full amount of his mortgage, and if the debts of testator were first to be paid out of this real estate, that fund would be so diminished as to increase his probable chances of liability on his bond.

It is urged on the other hand that if the debts of testator are left to stand behind the mortgage, his liability on them may be increased ; but if as we shall see he fails to perfect his title under the will, by neglecting to comply with its conditions, then the real estate devised to him -would be the primary fund for the payment of the legacies, out of which they would be paid, and to that extent his interest in the real estate would be diminished ; so that it is difficult to see how he could promote his own interest by his testimony. It is true he is a party to the action, bnt that alone does not disqualify him from being a witness, unless coupled with some of the elements of disqualification specified in § 829 of the Code. • The disqualification created by that section is where the witness testifies in his “ own behalf or interest.” Carpenter v. Soule, 88 N. Y., 251. We do not see that the testimony offered comes within that prohibition, and think its exclusion error.

If it was material in this case to show knowledge of the testator’s indebtedness, then the rejection of this evidence was to the prejudice of the appellants, and should furnish reason for reversal. The respondents’ mortgage was executed in less than two years after the proof of testator’s will and within two years from the time of testator’s death.

There could, therefore, at the time of taking of such mortgage be no legal presumption that, the simple contract debts of the testator had all been paid, as the three years within which such creditors might apply to the surrogate under § 2750 of the Code for proceedings to charge the real estate with the payment of such debts, had not expired. In Platt v. Platt, 105 N. Y., 488 ; 8 St. Rep., 77, the court says: “ During three years after his, testator’s, death, his creditors have a kind of statutory lien upon the real estate left by him, and such real estate cannot be so aliened by his heirs or devisees during that time as to defeat the claims of creditors thereon, citing 2 R. L., 100 etc., Code, § 2749 etc.

It is true that after the expiration of the three years from testator’s death this presumption of the existence of a lien ceases. Covell v. Wetson, 20 Johns., 414; Hyde v. Tanner, 1 Barb., 75 ; Wilson v. Wilson, 13 Barb., 252. Under these circumstances, it cannot, I think, be held that at the time Hamilton took this mortgage from a devisee under the will, who claimed no title except through it, that he can be treated as a bona fide incumbrancer or purchaser so as to place his lien upon these premises prior to the claims of creditors of the deceased devisor whose liens were in force upon this land at the time he took the mortgage. The creditors of the deceased at that time owed him no duty, and as he is presumed to have known the law relating to the rights of deceased creditors, he, and not they, must suffer if either by his his neglect. The counsel for the creditors requested the court to find and decide that the creditors of the estate be paid out of the proceeds of the sale of the real estate prior to the bond and mortgage. The refusal of the court so to find we think for the reasons above stated was error. The devisee, under the will, took the land only upon the condition of payment of the legacies. As the will was his only source of title, the payment of the legacies was a condition precedent to the vesting of the title in him, and in addition to that, the payment of the legacies was expressly charged on the real estate devised.

It seems to require no argument or citation of authorities to reach the conclusion that the mortgagee under such circumstances cannot claim under his mortgage taken from the devisee’s priority over the legatees.'

We think the learned judge erred in his conclusion, and that the judgment should be reversed.

Judgment reversed and a new trial ordered, costs to abide the event.

Putnam, J., concurs; Herrick, J., concurs in result.


source: Caselaw Access Project

author: MAYHAM, P. J.

license: Public Domain

text:
    Michael O’Neil, Resp’t, v. The Hudson Valley Ice Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Contract—Promise por benefit op third person.
    Where by the terms of the contract the defendant reserves the privilege of paying claims against its contractor to the extent of its liability to him, the creditors of "the latter cannot maintain an action against it upon such claims.
    3. Same—Evidence.
    In such case, evidence of communications made by the contractor to the claimants that the defendant would pay them, is inadmissible.
    Appeal from a judgment of the Albany county court upon an appeal for a new trial from a judgment of the city court of Albany. The plaintiff recovered a judgment in the city court and the county court on appeal, and a new trial directed a verdict for the plaintiff, on which judgment was entered, from which judgment the defendant appeals to this court.

      George H. Stevens, for app’lt; John A. Stephens, for resp’t.
   MAYHAM, P. J.

This action is brought by the plaintiff to recover for alleged services rendered in filling an ice-house for the defendant.

On the 30th day of December, 1882, Thomas Mullen, agent, entered into a contract in writing with the defendant, in consideration of the sum of twenty-two cents per ton, to scrape, cut, convey and house all the ice necessary to fill the ice-house belonging to the defendant, situate at the corner of Bridge street and Broadway, and when harvest is complete to return defendant’s tools and implements to the dock near the elevator, and to pay all expense from start to finish, except for coal necessary for the engine, and pay the defendant $1.25 per day for what horses he hires of him and to accept seventy-five per cent, of pay for what is harvested weekly, and to do all things subject to what the party defendant shall require. The defendant agreed to pay Mullen twenty-two cents per ton of forty-five cubic feet per ton. The defendant also reserved the right to pay those employed on the contract and keep their time, and as soon as the job is completed to pay the balance of the contract price. The case discloses that the ice furnished amounted at the contract price to $2,200 of which sum the defendant had paid $2,056.98 to the employes, leaving a balance on the contract price due from the defendant of $143.07. But it is insisted that the defendant is liable under this contract to pay the laborers on this job for all the work performed by them, and that seems to be the theory upon which the learned trial judge proceeded in directing the verdict in this case; and that contention is sought to be maintained under-this provision of the contract. “ The party of the second part reserves the right to pay the men on the above contract and keep the men’s time.”

We do not think this contract; taken as a whole, will bear any such construction. It is npt quite clear why this provision was incorporated in the contract; but it is quite obvious that this volition reserved to the defendant was not intended to nullify the other provisions in it, which regulated the price for this work, and obligated Mullen, or the unknown principal whom he represented, “to pay all the expense from start to finish,” and turn the contract into an obligation on the part of the defendant to pay upon a quantum meruit the very expenses which Mullen had contracted to pay, nor did it authorize Mullen in employing the men to perform this work to bind the defendant by any statement made by him to them to pay for their services.

The case is not analogous in principle to that of Kingsbury v. Earle, 27 Hun, 141. That was a case where the father conveyed land to his son, with an express covenant on the part of the son to pay all his father’s debts, and the amount of the debts, and not the nominal consideration in the deed, was deemed to be the actual consideration agreed to be paid by the son. No such agreement was made by the defendant, in this case, by the written contract. Nor does this case come within the principle of the cases cited by the respondent, when a party having money in his hands due to another, pays part 'of the same on the debts of that other, from which a trust may sometimes be presumed in favor of other creditors. Cook v. Moon, 18 Hun, 31, and other cases cited by the respondent on this point. Under this written contract there was no privity between the defendants and the plaintiffs' assignors. They were employed by Mullen, who was only authorized to act under the contract for himself, and not as the agent of the defendant. Nor is the case like that of Lawrence v. Fox, 20 N. Y., 268, that was a case where the defendant agreed to pay a third person for the benefit of the plaintiff. In the case at bar, there was no agreement to pay a third person, made by the defendant, but only a reservation of the privilege by the defendant to pay to the extent of its liability to Mullen. The case is more nearly analogous to that of Lorillard v. Clyde, 122 N. Y., 502; 34 St. Rep., 224, which was distinguished from Lawrence v. Fox, supra. In Wheat v. Rice, 97 N. Y., 302, it was held that the principle of the case of Lawrence v. Fox, supra, should be limited to cases having the same essential facts. Under such limitation it cannot be extended to this case.

We think the trial court erred in admitting the evidence of communications, made by Mullen to plaintiff’s assignors at the time of employing them, that the company would pay them. In doing so he acted without authority from the defendant, and his statements were but hearsay, and should have been excluded on the objection of the defendant. Happy v. Mosher, 48 N. Y., 313.

There was perhaps a sufficient dispute upon the facts in this case to have justified sending it to the jury. But as both parties called upon the court to direct a verdict, and the defendant made no request to submit that dispute to the jury, that question cannot be raised here. Dillon v. Cockcroft, 90 N. Y., 649.

We think for the reasons hereinbefore stated the trial court erred on the trial of this action, and for that reason a new trial should be ordered in the county court.

Judgment reversed, and a new trial ordered in the Albany county court, costs to abide the event.

All concur.


author: Mayham, P. J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Sarah M. Ryalls, Administratrix of the Goods, etc., of William H. Ryalls, Deceased, as to the Proceedings of the said William H. Ryalls, as Executor of the Last Will and Testament of Elizabeth Haney, Deceased.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Executors—Accounting.
    The burden of proof in affirmatively establishing liability is upon the contestants seeking to surcharge the accounts of the administrator.
    2. Same.
    The fact that the testator, one year before his death received money, is insufficient, without any evidence connecting his executor with it, to charge the latter, on his final accounting, with such money.
    3. Appeal—Error op law.
    A finding of fact without evidence is errof of law.
    4. Evidence—Documentary.
    A memorandum, made by the intestate of claims due her, and choses in action belonging to her, not delivered to the administrator, is inadmissible against him on his final accounting.
    5. Same—Improper evidence.
    When improper evidence is received which, it is not evident to the court, can in no way harm the appellant, it is the duty of such court .for that reason to reverse.
    Appeal by the administratrix from the decree of the surrogate of Saratoga county, on the judicial settlement by her, as to the proceeding of William H. Ryalls, as executor of the will of Elizabeth Haney, deceased.

      Grenville M. Ingalsbe (L. H. Northup of counsel), for app’lt; C, H. Sturges, for resp’t, Elizabeth R. Cowan; J. W. Houghton, for iesp’t, Charlotte A. Patterson; Henning & McCall, for resp’t, Harlam P. Ryalls.
   Mayham, P. J.

Sarah M. Ryalls having been cited before the surrogate to show cause why she, as administratrix of the estate of William H. Ryalls, deceased, did not settle his accounts as executor of the will of Elizabeth Haney, deceased, appeared before the surrogate and filed her petition for such accounting. Whereupon the surrogate issued citations to the persons entitled to notice, and on the return of such citations she filed her account duly verified, in and by which she charges herself, as such administratix, with the suni of $935.58, and alleges want of knowledge of any other liability with which the estate of William H. Ryalls should be credited on account of disbursements, made by him in his lifetime. Each of the children of Wm. H. Ryalls, who are the residuary legatees in the will of Elizabeth Haney, filed objections to such account, in and by which they surcharged the same, alleging in substance that the said William H. Ryalls held about ten thousand dollars of the property of the said Elizabeth Haney, in which he had a life interest only, by her will, and that the remainder was bequeathed to his children after his death, in equal proportions. In support of this contention the contestants proved by evidence quite satisfactory, that a mortgage of $2,000 given to Mrs. Haney on which there appeared to be due at the time of the death of William H. Ryalls the sum of $500, on which sum the interest was paid to the petitioner for three years.

There is also some evidence of the confessions or statements of William H. Ryalls, made at about the time of marshalling the assets of his testator Elizabeth Haney, that her estate would amount to about $20,000. It does not appear that this statement was an assertion of a fact, but rather a loose estimate or opinion of the probable amount, and standing alone does not seem to me under the circumstances in which it was made, to be such an admission of a fact as would bind him to account for that amount. But the contestants seek to charge the estate of the deceased executor by proving the amount of property and money received by and known to be in the possession of his testator during the four or five years in which she lived with him immediately before her death. And upon this proof the surrogate seems mainly to have relied in making his decree without any direct proof that this property ever passed into the hands of her executor. Was this proof alone sufficient to charge his estate with the amount of the testator’s property in the hands of his administratrix ? The rule is well settled that the burden of proof in affirmatively establishing liability is upon the contestants seeking to surcharge the accounts of the administrator. Forbes v. Halsey, 22 N. Y., 60-61; Marre v. Genochio, 2 Brand. Sur. R., 165 ; Bainbridge v. McCullough, 1 Hun, 488.

The will of Elizabeth Haney by its terms placed the residuum of her estate so completely at the disposal of her executor as devisee and legatee for life that so much of the estate as may have been under the terms of the will consumed by him in his lifetime, would not be properly chargeable against his administratrix as the personal representative of his estate. It was, therefore, incumbent on the contestants, before they can surcharge the accounts of the petitioner, to show the amount of the estate of Elizabeth Haney which came to the hands of the executor of her will, and also the amount remaining in his hands undisposed of at the time of his death.

While the testimony of Lighthall as to the payment made to the testatrix of money during the time she resided with William H. Ryalls was competent as a circumstance tending to prove the amount of the' estate of testatrix, it does not seem sufficient standing alone to charge the estate of her executor with a liability for that amount. Assuming that the statement of Mrs. Haney dated October 6, 1875, that she at that time left with Lighthall $7,971.-85 was competent evidence and was at the time tru’e, and that $7,545.82 of that amount was from time to time from that date to August, 1879, forwarded by him to her, does it raise such a legal presumption that she had it at the time of her death, March, 1879, as to create a valid charge against the estate of the executor?

For answer to that question we are referred by the learned counsel for one of the contestants to Matter of Clark, 119 N. Y., 427-433 ; 29 St. Rep., 682. In that case the court held that § 5606 of the Code of Civil Procedure which authorized a surrogate upon the death of an executor to require his executor or administrator to account for and deliver over the trust estate ; such representative stands in the place of the decedent for the accounting, and the surrogate’s power is precisely the same as if the letters of the deceased executor had been revoked in his life time, and he had been called upon to deliver up the assets. In that case his mouth would be closed as to any evidence of personal transactions between him " and the testatrix, and the case would stand upon the memorandum of the testatrix and the evidence of Lighthall alone. Such evidence in our judgment would not be sufficient to charge the deposed executor with the payment of this $7,545.82, forwarded by Lighthall to the testatrix. There is to my mind a marked difference between the facts of this case and those of Matter of Clark, Supra.

In that case the referee found upon direct proof that the executors within three months after the death of the testator received $15,000 of money belonging to the estate, and deposited the same in the bank to his own credit. That case is not an authority that money in the possession of the testator some time before his death is evidence upon which to charge the estate of his deceased executor with the amount of the same, and we do not think that evidence, that a testator one year before his death.received money is sufficient without any evidence connecting his executor with it, to charge such executor on his final accounting with such money. It might be sufficient on a proper application to compel him to marshal the assets/to require him to search for such money, and, if found, place it upon the inventory, but is not sufficient evidence to create a liability against the estate of the deceased executor.

If we are right in this conclusion then there is no evidence upon which a finding that the executor or his estate can be charged with $8,685.51 as found in the first conclusion of law, of the learned surrogate, or that that sum came into the hands of this administratrix belonging to the estate of Elizabeth Haney, deceased. It is well settled that a finding of fact without evidence is error of law; Code of Civil Procedure, § 993. Van Bokkelen v. Berdett, 130 N. Y., 141; 41 St. Rep., 312; Turner v. Seabury, 135 N. Y., 50-51; 48 St. Rep., 120.

Several questions are raised by the appellant as to alleged errors of the surrogate in the receipt of evidence offered by the contestants. We think the learned surrogate erred in receiving the memorandum made by Mrs. Haney, of claims due her, and choses in action belonging to her, delivered to Lighthall. That was not a statement made to or presented to William Byalls, or in any way binding upon him or his estate. It must have been received as evidence of the amount of property owned by his testatrix. But as he was not a party to it, or, so far as appears cognizant of its existence, it is difficult to see how it could bind him or his estate.

It was not competent, even in corroboration of the testimony of Lighthall as to the amount of money forwarded by him to the testator, and yet this court cannot see that it did not harm the petitioner. When improper evidence is received which the court cannot see could in no way harm the appellant, it is the duty of the appellate court for that reason to reverse. For the reasons above stated we think the surrogate’s decree erroneous, and as the facts are not sufficiently before this court to enable it to modify the decree, there should be a new trial or hearing before the surrogate under § 2587 of the Code of Civil Procedure, ■ with costs of this appeal to be charged upon the contestants, and paid out of their shares of the estate of Elizabeth Haney, deceased, and bequeathed to them in her will.

Let an order be entered in accordance with this opinion.

Herrick, J., concurs ; Putnam, J., concurs in result.


text:
    Johanna Driscoll, App’lt, v. The German American Insurance Company of New York, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Insurance—Fere.
    An insurance company cannot, after receiving the premium and issuing a policy with knowledge, at the time of such issue, of the existence of a fact which would work a forfeiture, claim, on the happening of a loss, a forfeiture on such ground.
    3. Same—Agency.
    The knowledge of such fact by the agent, who issued the policy, is the knowledge of the company, and it is error to reject such proof, when ofeered by the insured to rebut a forfeiture.
    3. Same—Warranty.
    Where the application and policy state that the building was used as a lodge, such language cannot, even if true in fact, be construed into a warranty that occupancy for that purpose was to be continuous.
    4. Same.
    A change of occupancy will not avoid a policy, unless there is a substantial increase of risk.

      Appeal from a judgment entered upon a non-suit at the circuit.

      J. F. & J. O. Van JEtten {J. IS. Van JEtten, of counsel), for app’lt; William D. Murray, for resp’t.
   Mayham, P. J.

The respondent, through its general agent, who was authorized to fill up and issue policies signed in blank by the president and secretary of the respondent, issued its policy to Dennis Driscoll for one year from January 3, 1891, to January ■3, 1892, for a premium of $8.75 on an amount of $700 on building described in the policy as follows: “ On his one-story frame, shingle roof building, 30x50, occupied as a lodge room, situate, detached at Hickory Bush in the town of Rosendale, bf. Y., payable in case of loss to Catherine Cummings, mortgagee, as her interest may appear. This policy was endorsed as follows :

January 6, 1891.

“ This company hereby agrees to recognize Catherine Cummings as sole owner of insured property, loss, if any, payable to her. Chas. B. Westbrook, Agent.”

February 21, 1891.

“ The title to insured property is now vested in Johanna Driscoll, as owner. Loss, if any, payable to her.

“ Chas. B. Westbrook, Agent.”

At the time of issuing this policy the hall was occupied one night each week as a lodge room for Knights of Labor.

The proof shows that the building was also used as a place for Sunday schools and religious services on Sundays, and for shows, dancing parties and other public entertainments week days when not occupied by the Knights of Labor on the nights of their meetings. One key was always kept by the plaintiff, who was her own janitor of the building. Kept it swept, and in order for use, hired it to parties and received the income for its use. •

On the trial the witness who negotiated with the defendant's agent and procured the policy, was asked by the plaintiff this question : “ Did you state to Chas. B. Westbrook, the agent who issued the policy, how the building was occupied at the time the policy was issued.” This question was objected to, and the objection was sustained, and the plaintiff excepted.

This question was later in the trial followed by an offer by the plaintiff as follows:

“I offer to show that the agent who issued the policy was informed of the way that this building was used in all its details, that it was used for church purposes, Sabbath schools, for dances and other public entertainments, and that the plaintiff was in the continual occupation of the property herself. ” Defendant objected. Objection sustained. Plaintiff excepted.

We are inclined to the opinion that the exclusion of this offered evidence was error. The evidence offered did not tend to prove an unauthorized change in the condition of the policy by the agent. Its object and effect was to prove that the defendant had knowledge at the time of taking the risk, of the manner in which this building was occupied, and the purpose for which it was constructed and used; and while it was, as set out in the application, used as a lodge room, it was also to the knowledge of the company used by the owner for the purpose of a hall for public meetings of various kinds, and for that purpose was in her possession, and under her control, and the proof shows that it continued so to be used and controlled, up to the time of its destruction by fire, except that the Knights of Labor had ceased using it for one night each week, as they were doing at the time the policy was issued.

With this knowledge directly imputable to the respondent it did not lie with them to set up the removal of the lodge as a violation of the policy of insurance, but rather such knowledge worked a waiver by it of the condition upon which it now seeks-to avoid liability. It would be little less than a fraud upon the assured to allow an insurance company to receive the premium and issue a policy with knowledge of the existence of a fact at the time of such issue upon which, they could claim on the happening of a loss against which it assumes to insure, a forfeiture of the policy.

In Forward v. Continental Ins. Co., 21 N. Y. Supp., 665; 49 St. Rep., 867, the court in discussing the principle involved in the the question and offer above quoted, uses this language: “The-

question is not whether the plaintiff can avail himself of an unauthorized waiver by the defendant’s agent of any provision contained in the policy. It is rather whether the knowledge of the existence of the chattel mortgage brought home to the company in this manner through its agent, who procured the policy, effects a waiver of any ground set up for avoiding liability. The recent cases in the court of appeals seem to have settled this question in favor of the contention in behalf of the plaintiff, namely, Berry v. Insurance Co., 132 N. Y., 49; 43 St. Rep., 400; Cross v. Insurance Co., 132 N. Y., 133; 43 St. Rep., 482.

In Berry v. American Central Ins. Co., 132 N. Y., 49; 43 St. Rep., 400, the assured informed the agent who issued the policy, that his son had bought the property of him; that he was to have it as a home as long as he lived, and was to insure it, and the court held that this statement fairly gave notice that the plaintiff was not the owner.

In Cross v. National Ins. Co., 132 N. Y., 133; 43 St. Rep., 482, the defendant’s agent who issued the policy, knew that the premises were vacant, and unoccupied, having personal knowledge of that fact, and had notice of the plaintiff’s title. The policy provided that it should be void if the insured were not the sole and unconditional owner, or if the building were not on the ground owned by him in fee, or if they should remain vacant and unoccupied, and it was held that the plaintiff had an insurable interest, and that the condition as to the plaintiff’s title, and premises remaining vacant, and unoccupied, must be deemed to have been waived.”

Within these cases and many others that might be cited we think it must be held that the knowledge of the agent was that of the company, and that it - was competent for the plaintiff to prove that knowledge, and the exclusion of evidence offered for that purpose was error.

Again, the language of the policy and application, that the. building was used as a lodge, while it was true in fact, cannot, we think, be construed into a warranty that occupancy for that particular purpose was to be continuous. O’Neil v. Buffalo Fire Ins. Co., 3 N. Y., 122; Smith v. Mechanics and Traders’ Ins. Co., 32 N. Y., 399; Blood v. Howard Fire Ins. Co., 12 Cush., 472. The policy itself, excepted from the ground of forfeiture “ exchange of occupants without increased hazard,” and if the question of increased hazard existed in the case, it was clearly one for the jury. Walradt v. Phœnix Ins. Co., 136 N. Y., 375 ; 49 St. Rep., 666. A change of occupancy will not avoid a policy unless there is a substantial increase of risk. Miller v. Oswego & Onondaga Ins. Co., 18 Hun, 525.

We are also inclined to the opinion that there was sufficient evidence upon the question of occupancy to require the submission of that point to the jury, and that it was error to deny plaintiff’s motion to submit the question to the jury.

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

Putnam, J., concurs; Herrick, J., concurs in result.


text:
    James Averill, Jr., Resp’t v. Louis W. Emerson, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Reference—Compulsory.
    In determining whether a compulsory reference is allowable, the court must look at the issues tendered by the pleadings, and which, on the trial, it will be required to determine.

      2. Same.
    The power of the court to order a reference is limited by the general conditions contained in the first clause of § 1003 of the Code.
    Appeal from an order of reference granted at special term, on motion of the plaintiff against the objection of the defendant.
    Townsend, Boche & Nason ( Wm. J. Roche, of counsel), for app’lt; Frank H. Smith, for resp’t.
   Mayham, P. J.

The plaintiff moved for and obtained an order referring the issue in this action to a referee to hear and determine.

The motion was made upon the pleadings and an affidavit of tim plaintiff’s attorney, and also an affidavit of the defendant which had been used on his behalf on a motion to change the place of trial. The complaint among other things alleged that S. Alonzo Kellogg had and possessed the promise of the warden of Clinton prison, of - a contract for the sale of articles manufactured in that prison, and that he and defendant entered into an agreement whereby Kellogg agreed to surrender, such option and obtain the consent of such warden, and have such contract made in the name of the defendant or some person satisfactory to such warden, to be named by the defendant, whereby the defendant, or such other person named by him, should sell all the shirts manufactured in such prison for three years, and should receive a commission after guaranteeing all sales made on credit, of ten per cent, on all sales made within that time, and that the defendant, in consideration thereof, and of other, good considerations, agreed to pay over to said Kellogg one-half of such net commission so received by him from time to time on demand.

The complaint also alleged that the defendant named his brother, James A. Emerson, and the contract was made with the defendant in the name of James A. Emerson. The written contract was attached to, and made a,part of, the complaint.

The complaint also alleged that the defendant made sales under such contract from time to time at many times, to many persons, and in many places, amounting to over $500,000 and alleged demands by Kellogg of his shares of the commission under the contract, which defendant had refused to pay. The complaint also alleged an assignment of the alleged claim of Kellogg to the plaintiff.

The answer denies ever making such arrangement with Kellogg, as set out in the complaint, or any arrangement by which Kellogg was-to share in the commissions which were to be received for selling these prison manufactured goods, and also denies that the contract set out in the complaint, is the contract under which such goods were sold. The answer alleges the making of a contract between the warden of said prison and James A. Emerson, and alleges that at the time of making of the same Kellogg and his firm were acting therein as the attorneys-of the warden, and not for the defendant or the said James A. Emerson, and was not a party in interest with them or either af them. The answer also denies that the defendant was a party to or interested in the contract between the warden and James A. Emerson. That answer also alleges that James A. Emerson after procuring the contract, entered into an agreement with the Empire Shirt Co., a co-partnership consisting of himself and Louis Weinman, for putting such goods upon the market. The answer admits numerous sales of goods, and does not deny that they were sold at different times to different persons and at different places as alleged in the complaint

Defendant by the answer expressly denies that he was a member of the Empire Shirt Co. and that any partnership existed between him and Kellogg, and that any contract or agreement such as set out in the complaint, existed between them, or that any contract or agreement of co-partnership existed between them.

The moving affidavit set up that the action was for an accounting by the defendant of all the moneys paid to him and expenses incurred by him on account of transactions by him under the contract or arrangement with Kellogg set out in the complaint, and alleges on information and belief the receipt by the defendant of large sums of money on account of such alleged contract. The affidavit of Louis W. Emerson in opposition to this motion sets up at great length a reiteration of the facts in the answer, and contradicts some of the alleged personal transactions between him and Kellogg set out in the moving affidavits.

It is quite apparent from the pleadings and affidavits used on this motion, that if the action could be regarded as one solely for an accounting by the defendant upon the theory of the plaintiffs complaint, and of the relations between defendant and the plaintiff’s assignor as therein set forth; that this would "be a proper case for a reference within most if not all of the authorities. But it seems quite apparent that in determining whether or not a compulsory reference is allowable, the court must look at the issues tendered by the pleadings, and which on the trial it will be required to determine.

bio inquiry into the sales or commissions under or arising out of the contract set out in the plaintiff’s complaint would be necessary or material unless the relation of co-partners, or a community of interest is established between the defendant and the plaintiff’s assignor, such as is alleged on the part of the plaintiff in his complaint. That relation is denied by the answer, and the issue tendered by that denial becomes one ,of the leading features, and grounds of contention in this action. This being an equitable action triable by the court, and no issues having been settled to be submitted to a jury as required by the rules and practice of this court; it is quite clear that a jury trial cannot now be insisted upon by either party. Is it referable against the objections of the defendant under § 1013 of the Code of Civil Procedure? The language of that section is as follows: “ The court may, of its own motion, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact by a referee when the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law.” In an action triable by the court, without a jury, reference may be made, as prescribed by this section, to decide the whole issue or any of the issues; or to report the referee’s finding upon one or more specific questions of fact, involved in the issue. Two conditions referred to must appear to the court before granting a reference in cases triable by the court.

First. Where the trial will require the examination of a long account.

Second. Where the trial will not require the decision of difficult questions of law.

It is by no means certain that the trial of this action will involve the examination of a long account. To assume that, will involve also the assumption in advance of the trial, that the plaintiff will establish the contractual relations between the defendant and his assignor set up in the complaint. This the court cannot determine in advance.

In Thayer v. McNaughton, 117 N. Y., 111; 26 St. Rep., 843, Andrews, J., says: “It is not enough to justify a compulsory reference that the case may by possibility involve the examination of a long account.” “ There must be enough alleged or shown to justify the inference that that will be the course of the trial. The same rule applies to equitable as to legal actions. In neither case can a compulsory reference be ordered unless the trial will require the examination of a long account. * * * But power of the court to order a reference is limited by the general conditions contained in the first clause of § 1013, which is alike applicable to cases triable by the court and a jury.” Citing Camp v. Ingersoll, 86 N. Y., 433; Barnes v. West, 16 Hun, 68; Read v. Lozin, 31 id., 286.

It is difficult to distinguish the principle involved in this decision from the one involved in the determination of the case at bar. As this is one of the latest utterances of the court of appeals on this subject to which my attention has been directed, I think it must control in the decision of this appeal.

It is true that we are referred by the learned counsel for the respondent to the case of Brown v. French, reported in 45 St. Rep., 327, and affirmed on appeal in 133 N. Y., 617, without comment or opinion; but in that case it is evident from the brief statement in. the opinion of the general term that that court put its decision on the express ground that it appeared affirmatively that, at some stage of the action, the examination of a long account must be had. It also appears that the objection that the case was not referable, grew out of affirmative matter of defense, set up in the answer. That is unlike this case. Here the objection that the case is not referable grows out of affirmative allegations in the complaint which are put in issue by a denial of the answer. Nor is it quite clear that the other condition which may stand in the way of a compulsory reference does, not exist in this case. It is not quite clear that the manner in which the the plaintiff claims to connect the assignor with the defendant, and thus to connect them both with the profits of the contract in writing, to which neither of them are parties, will not present difficult questions of law which, within the provisions of § 1013 of the Code, would render this action not one in which an involuntary reference can be ordered by the court.

We are, therefore, of the opinion that the order awarding a reference, and appointing a referee in this case, should be reversed.

Order reversed, with ten dollars ($10) costs, and printing disbursements.

All concur.


text:
    Augustus Regner, an Infant by William Regner, his Guardian ad litem, Resp’t, v. The Glens Falls, Sandy Hill & Fort Edward Street Railroad Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Raileoads—Rules.
    A rule of the company, requiring conductors not to allow intoxicated or filthy persons to ride on its cars, affords no protection for excluding from its cars an unfortunate person suffering from a disease, not embraced within the letter or spirit of the rule.

      2. Same—Evidence.
    In such case, the exclusion of the rule, when offered in evidence, is not error.
    Appeal from a judgment of the Washington county court in favor of the plaintiff against the defendant.

      G. M. Ingalsbe (A. D. Wait, of counsel), for app’lt; A. V. Pratt {J. M, Whitman, of counsel), for resp’t.
   Mayham, P. J.

This is an appeal from an order denying a motion for a new trial, on the minutes, and from a judgment rendered on the verdict of a jury.

The action was for an alleged wrongful removal of the plaintiff from defendant’s cars by the conductor of one of the defendant’s horse railroad cars.

The plaintiff recovered a verdict for $400, and the defendant seeks to reverse the judgment on the ground that the damages are excessive, and for alleged errors of the judge on the trial. The evidence discloses that while one of its cars was on its way from Glens Falls to Fort Edward the plaintiff boarded the same against the objection of the conductor, and was forcibly removed and ejected therefrom by the conductor. There is a conflict in the evidence as to the manner in which the force was applied, and the amount of force used, the plaintiff testifying that the conductor seized him by the throat and injured him1 so that his throat was made sore. The evidence of the manner in which the conductor took hold of plaintiff was in part corroborated by the plaintiff’s witnesses. The conductor denies that he seized the plaintiff by the throat, but all the evidence concurs in establishing the forcible ejectment from the car. The evidence tends to prove that the conductor stated that he ejected plaintiff from the car because from his appearance he believed the plaintiff intoxicated. The proof, however, shows that the plaintiff was not intoxicated but was afflicted with St. Vitus’s dance, which produced involuntary motions in the plaintiff somewhat resembling the movements of an intoxicated person.

The plaintiff made no disturbance and said nothing while on the car. The defendant offered in evidence a rule of the defendant requiring conductors not to allow intoxicated or filthy persons to ride on their cars. This rule was objected to by the plaintiff, and excluded by the court, under the defendant’s exceptions. It is urged by the appellant that the exclusion of this rule was error. It is true that the law authorized railroad companies to make and promulgate reasonable rules for the government of the conduct of their employes, but it is difficult to see how the introduction of this rule could aid the defendants, as the proof does not bring the defendant within the operation of such rule, as there is no pretense that the plaintiff was intoxicated, and the rule would afford no protection to the defendant for excluding from its car an unfortunate person suffering from a disease not embraced within the letter or spirit of the rule.

The defendant judged at its peril, as to the application of such a rule, in a given ease, and if it erred it would be answerable for its mistakes or that of its servants acting under its authority. It was within the power of the conductor to have ascertained the real cause of the plaintiff’s appearance, and thus to have avoided the mistake, if mistake it was. One of the questions for the jury to determine was as to the degree of force used by the defendant in ejecting the plaintiff from the car, and while it was competent to prove what was in fact done, it was not error to exclude the evidence offered by the defendant, of the conductor, as to whether or not he used more force than was necessary. That was for the jury to determine from the facts proved. We see no errors in the rulings of the judge in admitting or rejecting evidence or in his charge. Hor can we say that the verdict in this case is so large as to evince prejudice, passion or corruption on the part of the jury. They heard the conflict in the testimony as to the manner in which the plaintiff was removed from the car; the language used by the conductor, and the alleged injury suffered by the plaintiff, and were the proper judges of the truth of the respective stories and had a right to believe the plaintiff’s version if it commended itself to their judgment as true.

The judgment and order should be affirmed, with costs.

11 concur.


text:
    George Patterson, Resp’t v. Joseph Hare, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Pleadings—Supplemental.
    Where the plaintiff, at the time the original complaint is served, is ignorant of the facts which are set out in the proposed supplemental complaint, it is a proper case for such relief.
    3. Appeal—Discretion,
    The discretion of the trial judge in granting an order for leave to serve a supplemental complaint, when exercised in a proper case, will not be interfered with, on appeal, unless the appellate court can clearly see that there has been an abuse of its exercise.
    Appeal from an order opening an interlocutory júdgment and granting leave to the plaintiff to serve a supplemental complaint.

      O, D. Hudson, for app’lt; Farrel & Finder, for resp’t
   Mayham, P. J.

The relief granted on this motion was largely in the discretion of the special term at which the order was made, and the power of the court to grant such relief is not, and cannot, we think be questioned. Code of Civil Procedure, § 544. The reason stated for the application for leave to serve supplemental complaint in this case is one of - those given in this section, viz., that the plaintiff was ignorant of the facts which are set out in the proposed supplemental complaint, at the time the original complaint was served. If this is a proper case for the granting of such relief, then it would seem to be one of the cases when the provisions of this section might be regarded as mandatory. But whether this be so or not, there can be no doubt but that the case is one in which the court may properly exercise its discretion in granting the order. Such discretion when exercised in a proper case should not be interfered with on appeal unless the appellate court can clearly see that there was an abuse of its exercise. Nothing of that kind appears in this case. The favor was properly granted on terms which appear reasonable. Nor do we think, under the facts appearing in this case, that the pláintiff was guilty of such laches as to deprive him of this relief.

The order should be affirmed, with ten dollars costs and printing disbursements.

Putnam, J., concurs, Herrick, J.,' not acting.


text:
    John M. Haskell, Resp’t, v. The Northern Adirondack Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Damages—Trespass.
    In an action to recover for the destruction of fruit trees hy fire, evidence of the value of the standing fruit trees so destroyed is improper.
    8. Appeal—Immaterial error.
    Where the appellant is not prejudiced hy the error in the admission of improper evidence, the error should, under the provisions of § 1003 of the Code, be disregarded on appeal.
    Appeal from a judgment in favor of the plaintiff.

      S. A. Beman, for app’lt. J. C. Saunders, for resp’t.
   Mayham, P. J.

We think all the questions raised on this appeal were correctly disposed of by this court on a former argument, as reported in 49 St. Rep., 483, unless this court erred in. sustaining the decision of the trial judge wherein he allowed evidence of the value of the standing fruit trees' destroyed by the fire, instead of the difference in value of the land on which they stood, by reason of their destruction. In deciding this case on the former argument this court followed the decision in Whit-beck v. N. Y. C. R. R. Co., 36 Barb., 644. That was an action for damages, for the destruction of plaintiff’s fruit trees by fire, caused by the negligence of the defendant, and the witness was permitted, in answer to questions put by the plaintiff’s counsel under defendant’s objection, to state the value of the trees destroyed, and this court, on appeal, held the evidence competent. That decision was referred to in Argolsinger v. Vines, 82 N. Y., 314, and was tacitly approved by the court, although a different rule of damages was adopted in that case, and the court, without sustaining the rule then laid down, affirmed the judgment on the ground that the difference, if any, in the damages in that case, was too small to justify a reversal, and, therefore, applied the maxim “ de minimis non curat lex." But it is now claimed that the law was definitely settled in Dwight v. The Cortland & Northern R. R. Co., 132 N. Y., 199, where it was held that, the following questions were erroneously put and answered under the defendant’s objection.

“ Q. What were these twenty-one trees worth at the time they were killed?” ■ The attention of this court was not called to that decision at the'time of the former hearing of this appeal, if, indeed, it had been promulgated at that time. Assuming, however, as we must, that this decision, which is directly in point, is the law of this state, the evidence offered and received in this case was erroneous, and as the same related to an important question in the case, the judgment must for that reason be reversed, unless we can see that the other rule of damages also adopted by the plaintiff in his proof cured the error, and that no damage resulted to the defendant from the receipt of the evidence erroneously received. It is quite apparent that sufficient evidence of an unobjectionable character was given in this case upon the question of damages to sustain this verdict.

Evidence was offered and received showing the value of the farm before the injury complained of and its value after the damage by fire to these fruit trees. This was legal evidence, and an examination of it shows that there was enough of that class of evidence to uphold the verdict of the jury. An examination of the evidence upon the question of damages in this case shows that the testimony as to the value of the trees was more favorable to the defendant than that relating to the difference in the value of the farm before or after the fire; and hence it is apparent that the appellant was not prejudiced by the error, and under the provisions of § 1003 of the Code of Civil Procedure the error should be disregarded on this appeal. Carley v. N. Y., Ont. & Wes. R. R. Co., 16 St. Rep., 307; Powell v. Fletcher, 45 id., 294; Miller v. Barber, 66 N. Y., 558.

The error in the receipt of the evidence of the value of these trees was not, therefore, prejudicial to the appellant, and does not afford ground for reversal. Lewis v. Hojer, 41 St. Rep., 619.

On the whole case, therefore, we see no reason for the reversal of this judgment.

Judgment affirmed, with costs.

Herrick, J., concurs; Putnam, J., not acting.


author: Herrick, J.

text:
    The People, Resp’t, v. Allen Barber, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Criminal law—Arrest.
    Where a person is committing an offense under § 448 of the Penal Code, in the presence of a constable, the latter has authority to arrest him for such offense without a warrant.
    Appeal from a judgment of the court of sessions adjudging defendant guilty of assault in the second degree.

      B. M. Moore, for app’lt; Fred’k O. Paddock, for resp’t.
   Herrick, J.

It seems to me that the indictment sufficiently sets forth an offense under § 218 of the Penal Code. The evidence shows that the defendant was committing an offense under § 448 of the Penal Code. The person who made the arrest, and whom the defendant assaulted was a constable, and the defendant’s offense was committed in his presence.

Under § 177 of the Code of Criminal Procedure, a constable had authority to arrest him for such an offense without a warrant.

The judgment should, therefore, be affirmed. I see no occasion for an opinion.

All concur.


author: Hebbick, J.

text:
    John Wright, Resp’t, v. William Wright, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Evidence—Presumption.
    The giving of a note is prima facie evidence of an accounting and settlement of the accounts between the parties at that time, but this presumption may be rebutted.
    Appeal from a judgment entered upon the report of a referee.

      Keeler & Squires, for app’lt; N. M. Glajlin, for resp’t.
   Hebbick, J.

This is an appeal from a judgment upon the report of a referee in favor of the plaintiff and against the defendant for the sum of. $496.60 recovery, together with costs.

The plaintiff is the son of the defendant, he was born in 1849, .and resided with his father until April, 1885, after he became of age and until his marriage in 1885, and whenever not engaged in temporary employment elsewhere, he lived at his father’s home, and was treated in all respects as a member of the family. In December, 1891, he commenced an action against his father, claiming that his father was indebted to him “ for a balance of an open, mutual and current account for work, labor and services, goods, wares and merchandise, money loaned and paid, rent and use of property in the sum of $1,600." A bill of particulars subsequently rendered sets forth various» items to the amount of $1,664, and concludes with stating that “the defendant is entitled to credit for board, clothing, cash and other items, the particulars of which the plaintiff is not able to give.” The items in the plaintiff’s bill of particulars commence in year 1877 and conclude in 1883.

Ueither party to the action kept any account of any of the dealings between them. The plaintiff testifies that he did not keep any account, and that he never attempted to make up any statement until the year 1891. He testifies that he made up a bill of items about the 1st of January, 1890 or 1891. “ Up to

that time I had not a memorandum of any one of these items; I made this bill with the assistance ‘of my two sisters, Mrs. Tobin and Mrs. O’Hara; it was at my house; I did not depend entirely on them for the dates; I had nothing but my memory to •assist me ; they had talked with me that they had claims against my father which they had sued or were going to sue; I understood that they were making out some accounts, too." The claim was disputed by the defendant, and there was a conflict of evidence in regard to it. The referee in his report allows the plaintiff for the following items :

1874, 7 1-2 month's work at $20 a month............ $150 00

1877, balance due on horse trade agreed upon at...... 15 00

1877, 6,000 hoops had by defendant................. 30 00

1879, Heifer, chickens, turkeys and corn as agreed upon. 10 00 1879, stack of hay, about two tons at current prices... 10 00

1882, April 26th, note for cash loaned............... 100 00

1883, making 6,000 hoops......................... 12 00

And he allowed interest to the plaintiff upon each of these items from the 1st of January of the year following that in which they are said to have been furnished or performed. He finds that on the 26th of April, 1882, the defendant executed and delivered to the plaintiff his promissory note for the sum of $100, at the same time paying to the plaintiff money claimed by the plaintiff to have been loaned by him to the defendant, and at the time of the giving of said note by the defendant the plaintiff did not let the defendant have any other money or thing therefor.

The giving of the note is prima facie evidence of an accounting and settlement of accounts between the parties at that time. Sherman v. McIntyre, 7 Hun, 592; Lake v. Tysen, 6 N. Y., 461; Approved, Sheldon v. Sheldon, 133 N. Y., 1-6; 44 St. Rep., 260. The ordinary presumption is that the demands between the parties were then liquidated, and the note made for the balance found to be due from the maker. DeFreest v. Bloomingdale, 5 Denio, 304. Of course it is open to explanation that it was not given in settlement, but there is no satisfactory evidence presented in the case to rebut the prima facie evidence of the note itself indeed what evidence there is, rather carries the impression with it, that it was given in settlement, than otherwise. The statement of both parties that no memoranda of the dealings between them was kept; the fact that the plaintiff was living at home, receiving assistance from his father, his statement in his bill of particulars that the defendant was entitled to credit for board, clothing, cash and other items, the particulars of which he is not able to give; and the statement by him in his evidence that he requested the defendant to settle with him and give him a note.

At the time of giving the note the defendant testifies that “John-at that time was going to Watertown, and wanted to settle up; and I gave him this note; I gave him what I owed him, and this settled it all up, what I owed him; he gave me no money at that time; but I paid him eighty dollars at that time ; he was there three years before He came back.” It also appears in the case that subsequently, to that time commencing in the year 1887, the plaintiff hired a farm of the defendant at a stipulated rental, and from time to time made payments thereon, and at no time apparently seeking to have credited upon his account for rent any balance claimed by him to have been due to him upon any old account. These several facts coupled with the direct testimony that I have quoted, support rather than negative the presumption that by the giving of the note there was a settlement and adjustment between the parties at that time, and that such note was given for the balance found due. It was error, therefore for the referee to allow the plaintiff for the several items of account prior to the giving of the note in 1882, and for that error, judgment should be reversed.

Let judgment be reversed, the referee discharged, and a new trial granted, with costs to abide the event

Mayham, P. J., concurs, Putnam, J., concurs in result.


text:
    Jane E. O’Bryan, App’lt, v. The City of Amsterdam, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    Appeal—Finding.
    The finding of a referee will not be disturbed where there is sufficient evidence in the case to warrant it.
    Appeal from a judgment entered upon the report of a referee, dismissing plaintiff’s complaint.

      A. B. Fíansburg, for app’lt; E. J. Maxwell, for resp’t.
   Herrick, J.

The referee has found in this case that the plaintiff “ tripped or stubbed ” on the curbstone, and “ did not stub or trip upon the stump of a tree ” or because of any opening in the sidewalk, nor because of any elevations or depressions in the sidewalk where the stump was situated; in other words that the proximate cause of the plaintiff’s injury was her stubbing or tripping over the curbstone and not the defect in the defendant’s sidewalk set forth in the complaint; and that being so, the plaintiff has no cause of action against the defendant. I have read over the testimony in the case and there is sufficient in the evidence to warrant the finding of fact by the referee. I can see no sufficient reason for reversing it. '

Judgment should, therefore, be affirmed, with costs.

All concur.


text:
    Joseph Fowler, App’lt, v. The New York Central and Hudson River Railroad Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Negligence—Contributory.
    To maintain an action for negligence, the plaintiff must establish the lack of contributory negligence on his part without the aid of any presumption; and, where the circumstances point as much to negligence as to its absence, he is not entitled to recover.
    2. Same—Care.
    When a person approaches a place of danger, it is his duty to do so with a care and caution commensurate with the perils of the locality.
    3. Same.
    _ A person is not justified in going into a place of danger where the variation of a few seconds of time will mean to him death or serious injury.
    4. Witnesses—Credibility.
    The testimony of witnesses who swear positively that the bell was rung and the whistle blown must be accepted by the jury as against the testimony of witnesses to the contrary, whose attention was not specially . directed to this matter.

      Appeal from a judgment entered upon a verdict. ,

      Parker & Fiero (J. Newton Hiero, of counsel), for app’lt; Harris & Rudd (Hamilton Harris, of counsel), for resp’t.
   Herrick, J.

State street, in the city of Schenectady, is intersected at right angles by the railway tracks of the defendant; at the point of intersection, State street runs substantially east and west, and the defendant’s tracks north and south. There are four tracks, numbered from the west toward the east, Nos. 1, 2, 3 and 4. At the southwesterly corner of the railroad crossing and State street, and between track No. 1 and a building standing on the corner of State street, and known in this case as the “ Express office,” there is a short spur-track running beside the building south from State street. On the night of the accident hereafter referred to there was a car standing on this spur-track. The defendant was accustomed to keep a flagman at this State street crossing. On the evening of November 1, 1891, and about 11 o’clock in the evening, the plaintiff, who is a man about sixty years of age, and somewhat deaf in one ear, was on the south side of State street, going east, toward the railway crossing; when he had arrived at the express office, he testifies that he looked both ways, northerly toward the depot, which is on the north side of State street, and southerly in the direction of Albany. It was a dark night and somewhat rainy. He states that he neither saw nor heard any approaching train, and that he did not see any flagman there, nor any man with a lantern; that he saw no light except one, and that was a low switch light back of a shanty on the railroad tracks below State street in the direction of Albany; that he proceeded on across the tracks, crossing track No. 1, and was just on or across track No. 2 when he was struck by the bumper of the engine attached to the train coming from Albany on track No. 2; that he was thrown to the ground, injured and bruised and rendered unconscious, and sustained injuries from which he claims to be still suffering; he was picked up out of the street, taken to a dispensary, where he lay unconscious until the next day; he testifies that he neither saw nor heard the approach of the train which struck him; that he did not see any light from any headlight upon the engine.

The plaintiff is familiar with this crossing, had used it for twenty-nine years, sometimes crossing it three or four times a day, frequently crossing in the night time as well as in the day time. Several witnesses upon the part of the plaintiff were sworn and testified that they did not hear any bell rung or whistle sounded, but did not testify that there was anything that called their attention to the absence of any such signals.

The engineer, fireman, trainman and conductor of the train, and the gateman who tended the gate opening into the depot on the north side of State street at the crossing, all testify positively to the ringing of the bell and the blowing of the whistle. That there was a head-light upon the locomotive is not controverted. Several witnesses sworn on the part of the plaintiff, testify that in their judgment the train was going at the rate of thirty-five-miles an hour, and that they do not think the train stopped at the depot. The trainman and a telegraph operator located in the depot or station at a distance of four or five hundred feet from the State street crossing, all testified that the train was going at a speed of eight or ten miles an hour, and that it stopped in the depot from four to five minutes.

The plaintiff introduced in evidence an ordinance of the city of Schenectady prohibiting the passage of trains through the city at a greater rate of speed than ten miles an hour. At a distance of about two hundred feet south of the State street crossing, the tracks of the defendant curve to the west, and the uncontradicted evidence is, that at the point at the end of the car on the spur-track, and twenty-five feet from the westerly rail of track number two, and looking south, where the vision would be shortened up by such car, that the track can be seen for a distance of one hundred and seventy-four feet to the south; that beyond the spurtraclc and by the west rail of track number one, and twelve feet nine inches from the west rail of track number two, the track of the defendant can be seen for a distance of four hundred and seventy-five feet, and when the space between tracks number one and two is reached, the tracks can be seen for a distance of five hundred feet. There is no evidence in the case to show that the plaintiff looked or listened for approaching trains, after he passed the express buildings, or the car standing on the track next to the express buildings.

At the close of all the evidence in the case, the court directed the jury to find a verdict for the defendant upon the ground that the plaintiff did not show the absence of contributory negligence upon his part. From the judgment entered upon such verdict the plaintiff appeals to this court. The only question necessary to be discussed is that of contributory negligence. To maintain his action it is necessary for the plaintiff to establish the lack of contributory negligence on his part, the burden of proof is upon him, and he is not entitled to the benefit of any presumption to establish lack of negligence on his part, and where the circumstances point as much to negligence as to it absence, he is not entitled to recover. Wiwirowski v. L. S. & M. S. R. R. Co., 124 N. Y., 420-25; 36 St. Rep., 405; McDonald v. L. I. R. R. Co., 116 N. Y., 546-50; 27 St. Rep., 481; see also, Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y., 308; 36 St. Rep., 272; a case in some of its phases similar to the one now under consideration.

When a person approaches a point of danger, it is his duty to do so with a care and caution commensurate with the dangers of the locality. The duty of looking and listening when one approaches a crossing of many tracks does not seem to me to be adequately discharged by merely looking as the dangerous point is approached, and then when it is absolutely reached going blindly forward. Here were four tracks to be crossed, and the only evidence offered the court on the part of the plaintiff is that when the Express building was reached, and when yet some feet distant from the first track, he looked both ways.

It is claimed that the car upon the spur-track obstructed his vision to the south, and yet when he got beyond this obstruction to his vision there is no evidence that he made any additional attempt to gain a view of the tracks, but went blindly forward to and upon the spot and place where danger was to be apprehended without either looking or listening. He vas familiar with the crossing, knew that he had a number of tracks to cross, and it seems to me that under such circumstances, to put the evidence in the most favorable aspect for the plaintiff, it points as much to his negligence as it does to its absence. It is argued upon the part of the plaintiff that he had a right to rely upon the defendant’s obedience to the ordinance prohibiting a greater rate of speed than ten miles an hour, and that had it been going at that rate of speed, and if he had seen the head light of the locomotive when it was one hundred and seventy-four feet away, that he could have traversed the tracks with safety before the train could reach him, whereas if it was going at the rate of thirty-five miles,an hour, or more, as possibly the jury might have a right to infer from the evidence, that then it could reach him before he had time to cross, and this is attempted to be demonstrated by showing the number of seconds that it would take the plaintiff to cross the track, and the number of seconds it would take to reach the point where the plaintiff was struck by the train going at ten miles an hour, and again when it was going at thirty-five miles an hour. It seems to .me going rather far for the court to assume that a person under such circumstances would enter into any such mathematical calculations, and it would be going still further to attempt to uphold a person in going into a place of danger where the variation of a few seconds of time would mean to him death or serious injury. If he makes such a venture he should take the risk and abide by it.

This is not a case where one is brought face to face with imminent danger, and where he is called upon to act at once to escape it, where his acts in endeavoring to escape ought not to be too strongly scrutinized as to whether under such stress of circumstances he acted wisely or was prudent. Here the plaintiff claims never to have known of his danger until after the danger occurred. It is somewhat difficult to conceive that he should have reached the point where he was struck without either hearing or seeing the approaching train, knowing only of its presence when he was actually struck by it.

The jury could hot have found that no bell was rung or whistle blown, for while plaintiff’s witnesses swear they did not hear either, yet, it does not appear that their attention was specially directed to either, the defendant’s witnesses swear positively that the bell was rung and the whistle blown, and the jury, under such a condition of the testimony, could not have found to the contrary. Rainey v. N. Y. C. & H. R. R. R. Co., 68 Hun, 495-99; 52 St. Rep., 677.

The judgment should be affirmed, with costs.

All concur.


author: Herrick, <J. Mayham, P. J. (dissenting).

text:
    The People, Resp’t, v. Seth Olmsted, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Criminal law—Information.
    An information should state, with sufficient accuracy, the crime charged, that the defendant may know the exact offense which it is claimed he has committed, so that he may properly prepare his defense, and so that, after he has been tried upon it, he may plead it in bar upon any subsequent charge against him for the same offence.
    3. Same.
    An information under the excise law which does not state both the time and place, when and where the crime is alleged to have been committed, is insufficient.
    3. Same—Warrant.
    Though the warrant properly states the sale to have been without a license, it does not supply the omission in the information.
    Appeal from, a judgment of the court of sessions of Sullivan county, affirming a conviction by a court of special sessions in the town of Bethel, in that county.

      Charles H. Stage, for app’lt; Melvin H. Gouch, dist. att’y, for resp’t.
   Herrick, <J.

It seems to me that the conviction in this case should be reversed, for the reason that the complaint or information upon which the defendant was tried did not sufficiently state the crime charged against him.

While proceedings before inferior courts are to be liberally construed, and informations lodged before committing magistrates are not be expected to be drawn with the technical accuracy that an indictment should be, Hewitt v. Newburger, 48 St. Rep., 811, yet such informations, talcing the place as they do of indictments in superior courts, should state with sufficient accuracy the crime charged, that the defendant may know the exact offense which it is claimed he has committed, so that he may properly prepare his defense, and so also that after he has been tried upon it, he may plead it in bar upon any subsequent charge against him for the same offense. The information in this case does not specify the crime charged with sufficient accuracy to comply with the requirements suggested: it does not apprise the defendant of the exact charge against him, and the charge is so indefinitely made that it does not seem to me that it would be available as a plea in bar to a subsequent charge made against him for the same offense. The information is that the defendant “ on various occasions of 1890 and 1891 at Mongaup Valley, in the town of Bethel, county of Sullivan, BT. Y., at different times did commit the crime of selling strong and spirituous liquors to Andrew R. Ramsay, Thomas Casey, Edgar Peck and others.” When a person is charged, with doing an act which may or may not be a crime, and the circumstances or facts which render the act criminal are not set forth, it seems to me that no crime is charged. Selling strong and spirituous liquors may or may not be a crime; if it is sold without a license, that is a crime; if sold with a license, it may or may not be crime; if sold to a minor, to Indians, on Sunday, or within prohibited hours on secular days, it is a crime, although the person selling has a license. Hone of these offenses are set forth in this information, yet, if it is held good, any one of these charges could be proved upon the trial. What particular violation of the excise law, in regard to the sale of liquors, is the defendant notified to defend himself against by this information ; against what particular charge can he plead it in bar after he has been tried upon it ?

It is true that in this case the warrant states the sale to have been without a license, but the defendant is not tried upon the warrant, but upon the information ; the warrant has fulfilled its office when it has brought the defendant' into court, that is its only function. So, also, the allegation as to time is defective. While time is not an ingredient of the crime of unlawfully selling liquors, except as to prohibited days and hours, and when alleged need not, perhaps, be proven exactly as alleged, yet the time of the commission of the offense should -be alleged for the purpose of appraising the defendant when it is claimed he committed such crime, People v. Stocking, 50 Barb., 573, in order that he may prepare his defense, and also that he may use it, as before suggested, as a plea in bar. Stating the offense to have been committed during two years, as in this case, is not fixing any time at all; it seems to me that both time and place, when and where, his crime is alleged to have been committed, should be set forth in the information, that justice to the person charged so requires; and the information not complying with that, it is insufficient.

I conclude, therefore, that the information is defective in that it does not charge any specific crime, and that the crime attempted to be set forth is defectively alleged as to time, and that the defendant should not have been placed upon trial upon it, and that his conviction thereupon should be reversed.

Putnam, J., concurs; Mayham, P. J., dissenting.

Mayham, P. J. (dissenting).

Appeal from a judgment of the court of sessions of Sullivan county, affirming a conviction by a court of special sessions in the town of Bethel, in that county.

The return shows that, preliminary to the issuing of the warrant upon which the defendant was convicted, an information in writing, and on oath by two complainants, was filed with the, justice, containing the following charges: “That one Seth-Olmsted, on various occasions of 1890 and ’91, at Mongaup Yalley, in the town of Bethel,„ county of Sullivan, H. Y, at. different times did commit the crime of selling strong and spirituous liquors to Andrew R. Ramsey, Thomas Casey, Edgar Peck and others.” That pursuant to such information, the justice of the peace with whom the same was filed, took the examination on oath of the persons to whom it was in the information charged, that the defendant had sold liquor, who each severally swore that they had purchased, .lager beer of the defendant at his house in the town of Bethel, and had paid him for the same, and drank it upon his premises, without specifying the precise time of such purchase, two of whom fixing the time in 1890, and one in January, 1891. Upon this information and proof the justice issued his warrant, under which the defendant was arrested and brought before such justice. The warrant contained the following language: “Information upon oath having this day been laid before me that the crime of selling strong and intoxicating liquors at his residence in the town of Bethel, county and state aforesaid, on various occasions, in the years of 1890 and 1891, without a license for selling the same, has been committed, and accusing Seth Olmsted thereof.”

On the return of the warrant the defendant made various objections, as follows:

1st. That the facts set forth in the complamt herein, do not constitute crime.

2d. That the facts set forth in the complaint are not sufficient to give the court jurisdiction.

3d. That the warrant was issued without legal proof as required by the Code.

4th. This charged partiality in the magistrate.

5th. Tin t the defendant was illegally arrested.

All of these objections were overruled by the justice. The case was tried by a jury, and objection is made that the jury was illegally organized. The venire purports to have directed the constable to summon the persons named on the back thereof to make a jury for the trial of the defendant, charged with selling intoxicating liquors without a license. The names or number of jurors so directed to be summoned do not appear in the return, except inferentially by the certificate of the constable by which it appears that he served ten persons named therein personally, and two by leaving copies at their residences. A second venire was issued on request of the people. This contained a general direction to summon ten good and lawful men to serve as jurors, not exempt by law from such service, and not of kin to the complainants or defendants. This was returned by the constable with a certificate made by him that he had served the same on ten persons whose names were embraced in the return. The return fails to show that the jury returned on this second venire was challenged by the defendant either to the array or poll. The defendant requested the court to compel the People to specify upon what charge or alleged offense the defendant was to be placed on trial, which request was denied and the defendant excepted. So far as information and proof preliminary to the issuing of the warrant was concerned, we think the proceedings a substantial compliance with chapters 1 and 2 of title 3 of the Code of Criminal Procedure.

It is quite true that it does not appear from the information or examination that the defendant at the time of selling this lager had no license or that the lager was intoxicating liquor. But the warrant charges the sale without a license, and we think the information and examination was sufficient to confer jurisdiction upon the justice to issue the warrant. The case is not similar to that of People v. Gregg, 35 St. Rep., 757, or People v. Nowak, 5 N. Y. Supp., 239 ; 24 St. Rep., 274, cited by the appellant. In the latter case the justice, on the receipt of the information, did not before issuing the warrant examine on oath the informant, or witness, but seemed to rely upon an affidavit taken before a notary public, and another affidavit not prepared by the justice, and'it was held not a substantial compliance with the provisions of § 148 of the Code of Criminal Procedure and not sufficient to confer jurisdiction upon the justice. The irregularity in the proceedings of the justice in procuring a jury would, I think, have been fatal to this conviction had proper challenges been interposed either to the array or poll of such jury.

But the return discloses the manner in which a jury was obtained, without objection except that he objected to the issuing of the second venire, which objection was disregarded by the justice. But it does not appear that the jurors returned on that venire were challenged or objected to, and no objection was raised or appears to have been made to their serving as jurors in the case.

The Code of Criminal Procedure provides that the defendant has the same number of challenges in a court of special sessions as are allowed on the trial of an indictment for a misdemeanor (Code, § 707); and § 363 provides that a challenge to the panel must be taken before the jurors are sworn, and must be in writing, specifying the facts constituting the ground of challenge. This appears to have been entirely omitted by the defendant.

It would seem, therefore, that the irregularities in obtaining this jury were waived by the defendant, and he cannot avail himself of them on this appeal. In Pierson v. The People, 79 N. Y., 429, it was held that the prisoner on trial under an indictment for murder, could waive any irregularity in procuring the jury, and that he might even waive a constitutional right, and in the absence of an objection and exception he is deemed to have waived such irregularity. But it seems that a mere irregularity in procuring a jury or in the organization of a jury is not ground for the reversal of a conviction unless it appears that the defendant was prejudiced by the same. In Cox v The People, 80 N. Y., 511, the court says: “ It is well settled that mere irregularities in the drawing of grand or petit jurors, is not ground for reversing a conviction unless it appears that they operated, to the prejudice of the prisoner.’’ The evidence in this case fully sustains the charges in the information, examination and warrant of the sale by the defendant without a license of lager beer which was by the evidence shown to be intoxicating liquor, and, therefore, fnlly justified the verdict and judgment.

Judgment of the court of sessions and of the special sessions must be affirmed.


author: Putnam, J.

text:
    Louis Bourdon, Resp’t, v. Francis A. Martin, as Receiver of the Property of Emma Walker, a Judgment Debtor, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1893.)

    1. Costs—Receiver.
    Tlie court is justified in finding that a receiver improperly contested a claim, after the positive affidavit of the party for whom he is receiver that such claim was valid, and without any sufficient evidence to sustain the position taken by him.
    8. Same.
    So, if he voluntarily embarks in the litigation without funds to pay the ■ costs, he may, on that account, he deemed guilty of had faith.
    3. Same—Motion to compel payment.
    A motion to charge a receiver with costs can be heard at any special term before judgment has been entered.
    Appeal from an order charging the receiver personally with costs.

      J, W AtJdnson, for app’lt; Thomas O’ Connor, for resp’t
   Putnam, J.

We think that on the affidavits and papers presented, the court below was authorized to find that defendant, as receiver, had been guilty of mismanagement or bad faith in the defense of the action.

Louis Bourdon had commenced an action against the New York & Lake Champlain Transportation Company to recover on an alleged claim for board of employes of said company. It was not necessary for the defendant, as receiver’, to take part in that litigation. A judgment in that action would not have prevented the defendant Martin, as receiver of Emma Walker (or Bourdon), from recovering any just claim due from the company to him. But it seems that he demanded the fund sought to be recovered by Bourden from the company, and thus voluntarily thrust himself into the litigation. The papers presented were such that the court below could properly determine that Martin was not justified in entering into the litigation. Long before his answer was served, to the knowledge of his attorney, Emma Walker (or Bourdon) had made a positive affidavit that the claim against the New York & Champlain Transportation Company, sought to be recovered, was the property of her husband. Her husband, in his affidavit, had sworn to the same fact. The examination of Mitchell in supplemental proceedings was not inconsistent with the affidavit of Mr. and Mrs. Bourdon.

It appeared that on the trial of the action the trial judge directed a verdict for the plaintiff, and thus that defendant produced no evidence of the truth of his allegations contained in his answer to submit toa jury. The court below was therefore justified in finding that defendant improperly contested the claim of plaintiff m the action, after the. positive affidavit of the party for whom plaintiff was receiver, that such claim was valid, and without any sufficient evidence to sustain the position taken by him. Also the defendant having voluntarily embarked in the litigation, and as the affidavits show without funds to pay the costs, on that account may be deemed guilty of bad faith. Cumming v. Egerton, 9 Bosw., 684.

We are, therefore, unable to hold that the view taken by the special term as to the mismanagement or bad faith of defendant was incorrect. The motion to charge defendant with costs was made at a special term, of this court, after the entry of the verdict and before the entry of judgment, and not to the judge before whom, the case was tried. Doubtless such a motion is properly prescribed to the same court before whom the trial was had. We do not think, however, that it is necessarily, so made. It can be beard at any special term before judgment has been entered. This is especially so in a case like this, where i t appears that, for some reason not disclosed, the trial judge declined to entertain the motion. Such being the fact plaintiff's only course was to apply to a subsequent special term. The case of Hone v. De Peyster, 106 N. Y., 645; 11 St. Rep., 309, followed by Jack v. Robie, 48 Hun, 181; 15 St. Rep., 605, cited by defendant are not inconsistent with this view. In these cases after a trial the trial court had ordered a judgment against the plaintiff, in one case an executor and in the other an assignee, in their representative capacities. A motion was afterwards made in each case to charge the plaintiff’s with costs. The motion was denied on the ground that the trial court in each case had charged costs against the plaintiffs in their representative capacities, and thus impliedly held that they were not liable personally and that a collateral attack on such an adjudication is unauthorized. "Here no judgment has been entered. The trial court declined to entertain a motion to charge defendant with costs. It does not appear that any direction has been given as to the judgment to be entered, or that plaintiff has taken any steps in the action since the rendition of the verdict.

We think, therefore, that the court below was authorized to make the order from which the appeal is taken.

The order should be affirmed with, costs and disbursements.

All concur.