text:
    Julia Fuchs, Resp’t, v. Morris W. Cohen et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    FORCrEUE ENTRY—PETITION—STATEMENT OF INTEREST OF PETITIONER.
    A statement in a petition in a proceeding of forcible entry and detainer that petitioner “ is the tenant of the premises pursuant to an agreement with the landlord/’ is not sufficient under § 2235 of the Code. The petition should state the nature of the right to possession, and how and from whom, obtained and whether the tenancy was at will, by sufferance, or from year to year or by the month.
    Appeal from judgment of district court, in a proceeding of forcible entry and detainer.
    The forcible entry was charged to have occurred in the foreclosure of a chattel mortgage.

      S. Feuchtwanger, for resp’t; Andrew Blake, for app’lts.
   Pryor, J.

Upon an attentive examination of the evidence in this proceeding the conclusion is irresistible that, not the petitioner, but her husband, was the person whose possession was invaded; and that the invasion complained of was not characterized by the violence and terror essential in the legal definition of a forcible entry. The petitioner’s claim of tenancy was obviously a mere pretence; and the respondents’ conduct in foreclosing the mortgage, if rough and resolute, still lacked the element of threat and force necessary to constitute the grievance remediable by the proceeding. We are of opinion that, upon both points, the verdict of the jury is clearly against the evidence.

If otherwise, however, still the return discloses a defect in the proceeding which is fatal to its validity. «

The statute of forcible entry and detainer being in derogation of the common law, and authorizing a process by which one may be summarily divested of his right, is to be strictly construed, and the proceeding rigidly restrained within its prescribed limits. Bloom v. Burdick, 1 Hill, 131; Schneider v. Leizman, 57 Hun, 561, 562; 33 St. Rep., 351.

The statute requires that in forcible entry and detainer the applicant must present to the justice “ a written petition describing the premises and the interest therein of the petitioner,” Code § 2235; which means “ a description of the particular title, estate or interest under which the petitioner claims.” Schneider v. Leizman, 57 Hun, 561, 562; 33 St. Rep., 351. Here, the petition recites merely that the applicant “ is the tenant of the premises pursuant to an agreement with the landlord.” Tenant simplidter is “ one who holds or possesses lands or tenements by a kind of title.” Me Ad am, 45. Whether the applicant was tenant for years, or from year to year, or from month to month, or at will, or at sufferance, is not indicated by the petition; wherein, therefore, “ is not a description of the interest of the petitioner, but, at most, an allegation that she had some interest which entitled her to the possession.” Schneider v. Leizman, 57 Hun, 562; 33 St. Rep., 351. An allegation of interest is not equivalent to a description of the interest.

The complainant should disclose in his petition the nature of his right to the possession and how and from who it was acquired; and an allegation as to his rights, without facts to sustain it, is a legal conclusion. People v. Field, 52 Barb., 198.

A technical objection suffices to defeat the proceeding. People v. Smith, 24 Barb., 16; People v. Whitney, 1 T. & C., 533.

The defect in the description of petitioner’s interest in the premises deprived the court of jurisdiction. Schneider v. Leizman, supra.

Judgment reversed and proceeding dismissed, with costs.

Bookstaver and Bischoff, JJ., concur.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Jacob Shaver, Resp’t, v. Fred R. Gillespie, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Demurrage—Liability oe freighter for delay nr unloading.
    For delay in unloading caused by the negligence of the freighter, the latter is liable in damages in the nature of demurrage, but not where the same is caused by the vis major.

    Appeal from judgment of district court in action for damages in the nature of demurrage.

      J. R. Mac Arthur, for app’lt; Hyland & Zabriskie, for resp’t.
   Pryor, J.

The fact of the delay in unloading plaintiff’s boat, and the amount of damages, if any be recoverable, are uncontested ; but the issue in controversy is whether vis major or defendant’s negligence be accountable for that delay and those damages.

It is settled law that, though the bill of lading be silent as to lay-days and demurrage, still the freighter “is liable to the master of the vessel for damages for unreasonable delay in discharging the cargo after arrival.” Scholl v. The Company, 101 N. Y., 602; Van Etten v. Newton, 15 Daly, 538; 25 St. Rep., 751. Failure to provide a safe berth and a proper dock and customary facilities for unloading is such negligence as imposes a responsibility for damages on the freighter. Paquette v. A Cargo, 23 Fed. Rep., 301; Fulton v. Blake, 5 Bissell, 371. In McLaughlin v. Albany, etc., 8 Fed Rep., 447, the adjudication turned on the peculiar phraseology of the bill of lading.

On the other hand, it is equally clear that for delay in unloading caused by vis major, the consignee is not liable. Cross v. Beard, 26 N. Y., 85. But the vis major, and not the negligence-of the consignee, must be the cause of the tardy unloading. Bowen v. Decker, 18 Fed. Rep., 751.

Which of the two causes, namely, vis major or defendant’s negligence, was accountable for the delay in unloading plaintiff’s-boat was strenuously litigated on the trial; and the decision of the justice not being without sufficient support in the evidence is not open to reversal by this court. Scholl v. The Albany Steel Co., 101 N. Y., 602.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


author: Mayham, P. J.

text:
    Robert Dansinger et al., App’lts, v. Edward C. White, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Partnership—Title to property purchased by one partner.
    D. and V. formed a partnership for the purpose of carrying on the ice-business at Glen Lake, and on the same day V. made a contract with the owner of a portion of the lake for all the ice on that portion. V. opened negotiations with defendant for a sale of the ice, and referred him to D., with whom he made a contract. Held, that if any interest passed under the sale from said landowner, it became the property of the firm, and an action by the firm would be maintainable for any wrongful interference-with it.

      2. Same—Conversion.
    Defendant contracted to purchase the ice, title to remain in the seller-until paid for. He cut and removed and sold a quantity thereof, but did not pay as-agreed. Held, that his possession of the same while being cut and removed, and until payment, must be regarded as that of an agent for the seller, and when he removed and sold it without consent of the owner, such removal was a conversion for which an action would lie.
    Appeal by the plaintiff from a judgment entered on the report of a referee dismissing the complaint.

      Young & Kellogg (L. H. Northup, of counsel), for app’lts; S. & L. M. Brown (L. M. Brown, of counsel), for resp’t.
   Mayham, P. J.

The complaint in this action alleged that the plaintiffs were the owners of 3,000 tons of ice stored in an ice house, and that the defendant wrongfully carried away 1,500 tons of the same, and was engaged in carrying away the remaining 1,500 tons; that he was irresponsible, and plaintiffs could not collect damages of him, and prayed for a preliminary injunction, and for a judgment enjoining the defendant from moving said ice, and for $3,000 and costs.

The answer contained a general denial, alleged a misjoinder of parties plaintiff.

The proof tended to show that, on the 10th of February, 1890, the plaintiffs entered into a copartnership for the purpose of carrying on the ice business at Glen Lake, and on the same day, and after the formation of such copartnership, the plaintiff Vandenburgh made a paroi contract with the owner of the portion of Glen Lake from which the ice in question was afterwards taken, for all the ice on the portion of said lake owned by her, and paid her therefor in cash fifty dollars, and took her receipt in these words:

“ Queensbury, February 10, 1890.
I, Mary J. Titus, received of J. H. Vandenburgh fifty dollars for ice in Glen Lake for this year, what we own, except what we want for the use of our cottage and our own use here at home, with privilege of putting up an ice-house if he wishes, and loading ice-cars on our land that forms the lake.
“Mary J. Titus,
Fkcecutrix of Titus Éstate

After the payment of the fifty dollars and receiving such receipt the plaintiffs built the ice-house and commenced to cut and gather ice. Prior to the 10th of March, 1890, the plaintiff Vandenburgh agreed by paroi to sell the defendant White some ice, to be cut and harvested by him from this lake, and about that time the defendant built an ice-house on the shore of the lake and commenced harvesting ice, and a short time after, on the 18th of March, 1890, defendant signed and delivered to plaintiff Dansinger the following memorandum of agreement:

“ Albany, N. Y., March 18, 1890.
“ E. Dansinger, of the city of Albany, 3ST. Y, party of the first part, sold part of ice lying in Glen Lake for amount of 15 cents per ton in said lake. The Said party who purchase the same for the sum of 15 cents per ton. The said party take it out, cut it, and house it, and pay for it as soon as housed 45 feet per ton. The said ice to be held to E. Dansinger till the party pays for the same, subject in said house or stack.
“E. G. White.”

At the time of signing this memoiandum the defendant was cutting and putting inf this ice at Glen Lake.

On the trial the defendant put in evidence, under the objection of the plaintiff, an agreement in writing and under seal and reciting that the plaintiff Dansinger was the owner of all of the ice on Grlen Lake along the land of Mrs. Titus to .the centre line of the lake, and purporting to convey to Chas. H. Sherman, Darwin W. Sherman and Emmet T. Johnson all of the ice to which Dansinger had title in said lake lying northerly from a line of bushes, at the price of fifteen cents per ton, estimating forty-five cubic feet to the ton, to be paid for on the completion of the harvesting of the same. The plaintiff put in evidence a release from Johnson, Sherman and Sherman to R. Dansinger, dated August SO, 1890, of all claim to ice sold by Dansinger to White. The referee refused to find that the defendant was insolvent at the time of the commencement of this action.

The referee found that the defendant cut and harvested 2,664 tons of ice, the contract price for which was $381.60, no part of which had been paid by the defendant. The referee also found that about the 10th of February, 1890, plaintiffs entered into copartnership to carry on the business of cutting, storing and shipping ice at Grlen Lake, and' that the ice cut by the defendant was cut within 250 feet of the westerly shore of the lake on the premises designated in the paroi contract between Mrs. Titus and 'the plaintiff Vandenburgh, and that before the commencement of this action the plaintiffs demanded payment for said ice of the defendant.

The referee also found that before the commencement of this action the defendant had shipped to Albany 920 tons of such ice, and that such shipping was wrongful and was a conversion of the same by the defendant, and that the defendant never acquired any title to said ice, or any part thereof, or any right to remove or ship the same, and that the value of the ice so shipped and removed by the defendant was $1,848, and that prior to and at the time of the commencement of the action the defendant was wrongfully removing said ice and converting the same to his own use, and was wrongfully threatening and intending to remove all of said ice. The referee also found that the plaintiff Vandenburgh under the paroi contract made by him with Mrs. Titus for ice, and the payment by him of the purchase price, acquired an equitable interest or right in the ice, and of having the ice, as effectual between him and the owners of the same as though they had conveyed the same in the mode required by statute, but that he never made any transfer of it, or any part thereof, or interest therein, to the plaintiff Dansinger, and that he never owned any interest. or title in the samé legal or equitable, and that no part of the ice was ever owned jointly by the plaintiffs or by them as partners, and that they had no interest as partners in the damage resulting from the sale or conversion of the same by the defendant; that the defendant’s failure to perform the contract by which he was to have title to the ice in controversy left the equitable title to the same in the plaintiff Vandenburgh, and that such title still remained in him when the defendant removed the same, and the sale and conversion by the defendant was unauthorized and tortious as to the plaintiff Vandenburgh, and that there was no tortious or wrongful conversion of the ice for which the plaintiffs could unite in this action; that there was a misjoinder of parties plaintiff, and that they were not therefore entitled to the relief demanded in the complaint, and directed judgment for the defendant.

The referee, as we have seen, finds that the plaintiffs at the time of the alleged purchase of the ice by the defendant were copartners in the ice business on Glen Lake, but in substance refuses to find that they were copartners as to the ice in question in this action, and his refusal so to find was excepted to by the plaintiff.

We cannot agree with the learned referee in his conclusion that the plaintiffs were not partners as to whatever interest was acquired in this ice by the agreement between Mrs. Titus and the plaintiff Vandenburgh. Both of the plaintiffs swear that they were partners, and the defendant treated them as such, and conducted his negotiations with them as such. Vandenburgh opened negotiations with him, and referred him to Dansinger, whom he described to the defendant as his partner, and pursuant to that direction the defendant continued the negotiations with Dansinger, and consummated the bargain with him.

If, therefore, any interest passed under the sale from Mrs. Titus, it seems clear that it became in fact the property of both the plaintiffs under their partnership agreement, and either or both of the plaintiffs were in a position to make a valid sale of the same, and such sale would enure to the benefit of the firm, and for the same reason an action by the firm would be maintainable for any wrongful interference with it.

The referee finds that under the sale of Mrs. Titus, and the acceptance by her of the consideration, and giving a receipt in writing acknowledging payment for this ice, an equitable interest was created in the purchaser, which, as between the parties to that transaction, passed the title as effectually as though the same had been conveyed by deed.

This determination was not excepted to by either party, and we are not called upon to challenge its correctness on this appeal. Assuming, therefore, for the purpose of this case, that the plaintiffs were partners, and that by the purchase of Mrs. Titus they acquired a right to this ice in the lake, we are brought to the consideration of the question of the defendant’s liability for the conversion of the same. The insolvency of the defendant not having been found by the referee, or established, as we think, by the proof, it is quite clear that the plaintiffs have not brought their case within any rule which would entitle them to the equitable relief demanded in the complaint.

But the referee finds that the defendant was guilty of a wrongful conversion of the ice, or so much of it as was sold and removed by him before the commencement of the action.

Whatever the character of this ice may have been in the lake before it was gathered dr harvested, it clearly became a chattel after it was taken from the lake, and as it was by the terms of the agreement to remain the property of the plaintiffs until fully paid for, the possession of the same while being cut and removed must be deemed that of the plaintiffs, and until their title was divested by the payment of the purchase price, the defendant’s custody of the same must be regarded as that of an agent for the plaintiffs, and when he sold and removed the same without the consent of the owner such removal was a conversion, for which trover or an action for a wrongful conversion of this property would lie. For this reason we think the referee erred in dismissing the plaintiffs’ complaint, and the judgment should be reversed.

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

Putnam and Herrick, JJ., concur.


author: Per Curiam.

text:
    George C. Preston, App’lt, v. Samuel R. Hawley, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)
    Use and occupation.
    In an action for use and occupation it appeared that defendant, as a general assignee, sold a factory building to plaintiff and requested permission to leave the goods on the premises until they could be disposed of or worked up, which was granted; that subsequently defendant objected to a charge for rent as excessive, saying that if he had known so much would bo charged he would have gone to a cheaper place. It also appeared that a watchman employed by defendant had a key, but it did not appear that plaintiff was excluded. Held, that there was no agreement of letting, and that an action for use and occupation could not be maintained.
    Appeal from dismissing the complaint
    The action is for use and occupation. The firm of Babcock & Watrous made a general assignment, conveying their individual and firm property to defendant as assignee for creditors. -
    By such assignment a large factory building, containing machinery for the manufacture of hats, owned by Babcock and, prior to the assignment, used by the firm, passed to the assignee. The assignee sold the factory and machinery at public sale June 7, 1883, and the plaintiff bought the same subject to mortgages of over $30,000. The deed was delivered about June 21, 1883, the day of its date.
    On the day of the sale, June 7, there was a large quantity of goods and stock, consisting of wool hats in all stages and conditions of manufacture, hat trimmings and bodies, distributed in process of manufacture all through the building, some of the hats being in the machines. Just after the sale a conversation took place between plaintiff and defendant, which plaintiff states as follows: “ I had a talk with Mr. Hawley on the day of the sale, after the sale, at the factory; the talk I had with him was in reference to the occupation of the property; he said he wanted permission to leave the goods there until they were disposed of or worked up.”
    The goods of defendant were in the machinery in a partially manufactured condition, and distributed all through the building.
    Mr. Howell, the agent of defendant, occupied the office three or four hours a day in the business of defendant, and went through the other rooms in the building frequently, nearly every day; had the key of the building; with six or eight other men in defendant’s .employ arranged the property in lots and catalogued it; during all the time he was there occupied the office and went through the building generally; used the building in connection with a straw hat factory which defendant was conducting. Henry Crum, a watchman, was hired by Mr. Howell at the direction of defendant. Crum stayed in the building day and night, and had all the keys; looked after the goods, turned them over, stirred up the hats in the machines to keep them from spoiling.
    On August 1, 1883, plaintiff wrote defendant a letter stating that taxes amounting to $169.47 and also insurance were due upon the property, and requesting payment of $250 on account of rent. On August 13 plaintiff wrote again, stating that he had drawn on defendant for $500 for two months’ rent, and requesting him to honor draft Defendant answered the second letter, and without disclaiming liability stated that the demand for rent was excessive, but continued to occupy the premises. Defendant afterwards, November, 1883, wrote plaintiff to come to New York with relation to the matter, and plaintiff went there and saw the defendant; the latter stated that plaintiff’s claim was “ excessive,” and that he ought not to charge so much. Plaintiff afterwards saw defendant in New York in October, 1887, on which occasion defendant said: “I am free to admit right here that I expected to pay you something, but the amount you charged was too much. If I had known you would have asked me so much I would have moved the goods to a cheaper place.”

      Preston & Chipp (Howard Chipp, Jr., of counsel), for app’lt; George Wilcox (F. L. Westbrook, of counsel), for resp’t.
   Per Curiam.

The evidence in the case appears to be not substantially different from that given on the former trial and passed upon by the general term. 39 St. Rep., 721. There was some additional testimony given on the last trial, but none materially changing the facts as they appeared in the case submitted to the general term, as such facts are stated in the prevailing opinion.

That the man who watched the store had a key, as shown on the last trial, does not sufficiently change the facts as to justify a reversal of the judgment. There is no evidence that plaintiff was excluded from the premises. We think that Justice Fursman at circuit was correct in deeming that he was bound by the holding of the general term to grant the motion for a nonsuit, and that there should be an affirmance of the judgment, with costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.


author: Tappan, J.

text:
    Frances D. Hall et al., Trustees, Resp’ts, v. Fanny Brennan et al., Ex’rs, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Limitation—Death op debtoe.
    The maker of a note executed in September, 1880, payable in one year, died in August, 1887. Contest arising over his will, no letters were issued on his estate until March, 1889, two days after the expiration of eighteen months from his death. Held, that as during this period there was no person in being_ against whom the holders oí the note could have brought suit to enforce it against the estate, this was in effect a statutory prohibition, and such time-was no part of the time limited for the commencement of an action.
    Appeal from judgment in favor of plaintiff. The facts appear fully in the opinion of the court below, as follows:
   Tappan, J.

The plaintiffs were, in June, 1880, appointed by this court trustees under the will of Henry L. Webb, deceased, in place of Richard Van Rensselaer, the last surviving trustee under said will.

George B. Bixby, the defendant’s testator, on or about the 17th day of September, 1880, duly executed and delivered to the defendant, William Slocum, his promissory note in writing, whereby twelve months after date he promised to pay William Slocum, or order, $8,000 for value received, at the office of Hand & Hale, Albany, N. Y., with interest payable semi-annually from date. On the same day said note was by the defendant, William Slocum, duly endorsed and transferred to the plaintiffs, and by such endorsement made payable to the order of said plaintiffs, waiving demand and notice of protest.

The principal of such note, with interest from September 17, 1890, remains unpaid, and plaintiffs are concededly entitled to recover the same against defendants, the personal representatives of George B. Bixby, unless such recovery is barred by the statute of limitations.

George B. Bixby died on the 12th day of August, 1887, leaving a last will and testament, whereby the defendants Fannie Brennan and John B. Bixby were duly appointed executrix and executor of said will.

Said will was presented for probate to the surrogate of the county of Saratoga, of which county the- said George B. Bixby was a resident at the time of his death, on the 27th day of September, 1887.

The probate of the said will was contested by the heirs at law of the said George B. Bixby, deceased, but the same was admitted to probate and letters testamentary thereon issued to the defendants on the 23d day of March, 1889 ; and no letters testamentary or of administration were issued until that day.

The summons in this action was delivered to and received by the sheriff of Saratoga county, where the defendant Fannie Brennan then resided and still resides, and to the sheriff of Wayne county, where the defendant John H. Bixby then resided and still resides, on the 21st day of March, 1890, with the intent that it should be served upon said defendants respectively, and such summons was actually and personally served on the defendants on or about the 15th day of April, 1890.

Hpon these facts it appears that the right of action upon the note accrued to the plaintiffs at the end of twelve months and three days from the date of the note, viz.: on September 21, 1881, and had George B. Bixby lived the last day on which an action could have been sustained against him would have been September 21, 1887. Code Civ. Pro., §§ 380, 382, 403; Smith v. Aylesworth, 40 Barb., 104; Oothout v. Ballard, 41 id., 33.

The period of eighteen months after the death of George B. Bixby was no part of the time limited for the commencement of the action. Code Civ. Pro., § 403.

The eighteen months are calendar months, next succeeding the end of the six years limitation.

The period of eighteen months expired March 21, 1889.

Letters testamentary were issued to the defendants March 23, 1889; not six months before the expiration of the time to bring the action, but two days after that time.

The provisions of the last part of that section, that if letters testamentary or of administration have not issued at least six months before the expiration of the time to bring the action, as extended by that section, the term of one year after such letters are issued is not a part of the time limited for the commencement of said action, would seem to apply; but this court at general term in Chapman v. Fonda, 24 Hun, 130, has held that where the full period of limitation had expired before such letters issued, such provision had no application.

For the purposes of the statute of limitation, the action will be deemed to have been commenced on March 21, 1890, when the summons was delivered to the sheriffs, with intent to have the same served, such service having been actually made within sixty days thereafter. Code of Civil Procedure, § 399.

From the time of the death of George B. Bixby, August 12, 1887, until letters testamentary were issued upon his will, March 23, 1889, there was no person in being against whom plaintiffs could have brought suit to enforce their claim upon their note against his estate ; this was in effect a statutory prohibition and such time was no part of the time limited for the commencement of an action. Code Civ. Pro., § 406. Mead v. Jenkins et al., 95 N. Y., 31; Brehm v. Mayor, etc., 104 id., 186; 5 St. Rep., 661; Church v. Olendorf 49 Hun, 439-444; 19 St. Rep., 700.

It is no answer to this view to say that plaintiffs might have applied for a temporary administrator under § 2668, Code of Civil Procedure.

They could not procure such appointment as a matter of right. It is expressly made dependent on the discretion of the surrogate.

The law did not require them to make the application under penalty of losing their debt.

The payment by Slocum with Bixby’s.money is not proven to have been with the authority of the latter.

Plaintiffs do not contend that this authority is shown except by averment in the answer which they insist should be construed as an admission of such authority. Such averment is upon information and belief, and for that reason alone should not be construed to be an admission of the fact thus averred against the defendants, personal representatives, who have no actual knowledge. Mayor v. Fay, 53 Hun, 553; 25 St. Rep., 840.

Again, if the admission was absolute and unqualified in its form, it would have to be read together at least so far as it tends to discharge the defendants from liability when detached parts would tend to fix liability upon them. Goodyear v. De La Vergne, 10 Hun, 537; Gildersleeve v. London, 73 N. Y., 609.

The allegation in the answer and the proof given at the trial are not sufficient to show that Slocum made the payment of interest upon the note by the direction or authority of Bixby, or that Bixby eyer approved of such payment.

Such payment did not operate to affect the running of the statute of limitations against Bixby or his personal representatives, the defendants.

Costs against the defendants can be allowed only on the special order of the court.

The question of costs does not properly come up on the decision of the case.

The right to costs depends upon the facts not within the issues made by the pleadings, which can be properly shown by affidavits on special motion. 3 Wait’s Practice, 535, and cases there cited; Baylies’ Trial Practice, 384, 385.

The plaintiffs are entitled to judgment against the defendants, executors, etc., for three thousand dollars ($3,000), with interest from September 17,1890, also against defendant William Slocum for the same amount.

Judgment is ordered accordingly.

J. W. Houghton, for app’lts; Hale & Bulkeley, for resp’ts.

Judgment affirmed on opinion of the court below.

Máyham, P. J., Putnam and Herrick, JJ., concur.


text:
    Augusta Bogardus, Resp’t, v. Edwin Young, Ex’r, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Decedents’ estates—Promise—Want oe consideration.
    Defendant’s testator, being indebted to his father and step-mother, promised his father prior to the latter’s death, to give $5,000 to each of his half sisters and set his half brother up in business. At the time of his stepmother’s death, on being reminded of his promise, he told her his sisters should have that sum and more too. Reid, that as there was no present consideration passing to testator at the time of the promise, there was no valid agreement enuring to either of the sisters which she could enforce by action.
    3. Same—Limitation.
    The promise to his father was made in 1860, and that to his stepmother in 1878, in the presence of plaintiff who was of age. Reid, that the agreement to pay said sums, if valid, was barred by the statute of limitations.
    Appeal from a judgment entered upon the report of a referee in'favor of the plaintiff on a disputed claim against the estate of the testator, referred under the statute with the approval of the surrogate of Ulster county.

      Linson & Van Buren (John J. Linson, of counsel), for app’lt; William Lounsbery (J. Newton Fiero, of counsel), for resp’t.
   Mayham, P. J.

Thomas Cornell, the testator, was a son of Peter Cornell. After the death of testator’s mother, Peter Cornell married a Mrs. Woodmansee. The issue of’ this second marriage was four children; one son and four daughters, of whom this plaintiff is one. In 1840 Peter Cornell received from a former partner, with whom he at that time dissolved his business relations, certain promissory notes. Nothing appears to have been paid on these notes, and in 1860 Peter Cornell handed them down to his son Thomas, stating at the time that he had some information that they could be collected.

From the time of Peter’s second marriage until the time of his death he resided with his wife on a farm on which she had resided during her widowhood. Peter Cornell died November 11, 1860, and shortly before his death he and his son Thomas had a conversation, which the witness gives as follows: “ Mr. Cornell was very restless and wanted Tommy sent for. Tommy was sent for, and had a talk with him. He said he felt as if he could not die, unless some provision was made for those younger children.

“ His wife was very much dissatisfied with regard to her money; it was all in that property. He said to Thomas Cornell, “ that he felt that these younger children ought to be provided for; that he felt as if his time was short.”

“He says: ‘ Father, don’t worry; they will be provided for; I will give each of them five thousand dollars, and set Joseph up in business.’ ” In answer to a question as to what was said by Peter about his wife’s money, the witness said: “ There was nothing particular spoken of, only that all her money she got from her father was in that property; the property where they lived.”

The case shows that Peter’s wife was present at this conversation and that all Peter’s girls were children at that time. The mother of the plaintiff and stepmother of testator died May 7, 1879, and during her last sickness in 1878 or 1879 the following conversation occurred between her and testator. She said: “ Major, you know you had all my money in the business: I am on my death-bed now, and I think the girls should be paid the money agreed upon long ago.” He said: “ Are any of them in need?” She said: “No, not for bread.” He replied: “ They shall be paid that money and more too.” At this conversation plaintiff and one of her sisters were present.

There is some evidence in the case tending to show that the testator expressed himself under obligations to do something for his half-sisters, and the plaintiff proved under the defendant’s objection that he had given one of them property valued at about $10,000.

The claim presented by the plaintiff and rejected by the executor is in the following form:

Estate of Thomas Cornell to Augusta Bogardus, Dr.
“ For five thousand dollars, with interest thereon from October, 1860. At the date last mentioned the said Thomas Cornell acknowledged himself indebted in the sum mentioned, and agreed to pay the same, with interest, on demand, as a part payment of his indebtedness to Peter Cornell and Mary C. Cornell.”

On the trial the defendant insisted that no cause of action was made out by the plaintiff, and that the alleged claim was barred by the statute of limitations.

The referee found for the plaintiff $5,000, with interest from September 2, 1890.

The appellant insists that this evidence does not establish the existence of a binding contract on the part of the testator, and creates no liability against his estate. It is not disputed but that the testator told his father in the conversation in I860 that he would give each of the girls $5,000 and set the son, -Joseph, up in business, but it is claimed that that promise was wholly without consideration and was at most only a promised gratuity made to quit the anxiety of his father, and was a nudum pactum. The only evidence in the case of any business transaction between testator and his father, Peter Cornell, was the delivery of the stale notes received by him from his father in 1840 and by him delivered to testator in 1860, and it does not appear from that transaction that testator acquired any title to the notes or that they were at the time of any value, and there is nothing in that transaction from which it can be legally inferred that those notes formed the consideration for the promise made to pay the plaintiff and her sisters $5,000 each. Ho mention of these notes was made at the time of making such promise. But it is said that at this time he spoke of his wife’s dissatisfaction in regard to her money, and that all of her money was in the place or farm on which Peter lived; but it nowhere appears that the testator had any interest in that farm, derived either from Peter or his wife, that could form a basis or consideration for the promise made Peter to pay money to the plaintiff. But it is sought to find a consideration for this promise in the conversation which occurred between testator and his stepmother, mother of this plaint-' iff, in 1879, eighteen years after Peter’s death. In that conversation she said that testator had all her money in his business, and thought the girls should be paid the money agreed upon long ago, and testator said: “ They shall be paid that money and more too.”

The testimony of Mrs. Overbaugh, it is claimed by the respondent, strengthens this theory of a consideration for the promise by the testator to his father to pay money to the plaintiff. She makes, her father say in that conversation narrated by the other witnesses : “ I have a family of small children and nothing to leave them. Mother is very much dissatisfied, and says you have her money.” He said: “Don’t worry; to cancel that debt I will give each of the girls $5,000 and put J. in business.”

There is some evidence in the case of declarations of the testator that he intended to give to his sisters something, or make some provision for them in his will, which it is claimed by respondent tends to prove that testator recognized some obligation or liability to his sisters; but the whole evidence bearing upon the question of a valid consideration for his promise is at best but very slight and unsatisfactory. • But it is urged that as these acts, and statements of the testator may admit of more than one interpretation, and tlie effect to be given to them may to some extent depend upon the intention of the testator and the manner in which he intended them to be understood by the persons to whom they were made, the meaning of his language becomes a mixed question of law and fact, proper to be passed upon as a question of fact by the referee, and that his determination upon such facts ought not to be disturbed on appeal White v. Hoyt, 73 N. Y., 505. But the defendant insists that even if there was an antecedent obligation existing against the testator, and in favor of Peter Cornell or his wife, that of itself would not be a good consideration to uphold a promise by the testator to pay the plaintiff, a third person, between whom and Peter Cornell, the promisee, there was no privity, and we are referred by the learned counsel for the appellant to the cases of Fairchild v. Feltman, 32 Hun, 398; Kelly v. Roberts, 40 N. Y., 432; Vrooman v. Turner, 69 id., 284; and Gates v. Hames, 28 St. Rep., 313, in support of that proposition. In Fairchild v. Feltman, supra, one C. was indebted to plaintiff, and at the same time defendant was indebted to 0., and while so indebted, promised plaintiff to pay plaintiff the amount of his indebtedness to C. C. did not release the defendant from his liability, but gave him credit for the sum agreed to be paid on his books. Upon this state of facts plaintiff sued the defendant on his promise, and the court held that the defendant’s promise to pay plaintiff was a nudum pactum. It was nothing more than a paroi executory promise, without consideration, to discharge C.’s obligation to the plaintiff.

In Vrooman v. Turner, 69 N. Y., 280, the court says: “ To give to a third person who may derive a benefit from the performance of the promise an action, there must be first, an intent by the promisee to secure some benefit to the third party, and second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter, which would give a legal or equitable claim to the benefit of the promise, or an equivalent from him personally.” In Gates v. Hames, 28 St. Rep., the defendant, in consideration of the discharge of a mortgage held against her by her mother, promised to pay the amount thereof by boarding the latter, if she chose to live with her, and if not, to pay the same at her mother’s death to five of her next of kin, of whom the plaintiff was one. The mother failed to board out the amount, and the plaintiff, after the mother’s death, brought an action to recover one-fifth of the amount, on such promise, and it was held that she could not recover, as the promisee, who was the grandmother of the plaintiff, was under no obligation to the plaintiff, and the benefit she sought to obtain for her grandchild was a mere gratuity.

In Todd v. Weber, 95 N. Y., 188, the putative father of a bastard child acknowledged his paternity, and requested the mother and grandmother to take good care of the child, and bring her up right, and he would see that it was all right. Some twelve years later, and after the mother and grandmother had supported and cared for the child as requested by the father, the mother asked him if he remembered what he had promised to do for the child, and he answered: “Yes, and I will do well by her, and if she outlives me, will remember her in my will.” He frequently told the plaintiff’s mother and grandmother in substance to spare no pains and expense in educating her, and on being told that it was expensive, he said “You will get that all back," and similar expressions.

The court held that these promises, followed by the rendering of the services and incurring the expense, constituted a valid contract, and that as the plaintiff had the sole beneficial interest in the contract, she could recover. In that case, however, it will be noticed that there was a present consideration, and the services were rendered and expense incurred upon the strength or faith of the promise that they should be paid for, or compensated for in the testator’s will.

This case, therefore, differs from the case at bar in this, that there was no present or immediate consideration moving from the promisor to the promisee, and that seems to be the distinguishing feature between the case of Todd v. Weber, and cases followed in it, and that of Gates v. Hames, supra, and the cases cited by Dwight, J., in his opinion in the latter case.

The rule to be deduced from these and other cases seems to be that when there is a present consideration moving from the promisee to the promisor, upon which the^promisor agrees to pay money to a third person, to whom the promisee owes some debt,' duty or obligation, such promise may be enforced by the third person. Two things must concur: first'. The passing of a present consideration from the promisee to the promisor; second. The existence of some debt, duty or obligation from the promisee to the third person, before a recovery in such case can be upheld. We do not think in this case that both of these conditions have been proven to have concurred. Clearly there was no present consideration for the promise passing from Peter Cornell or his widow to the testator at the time of his making the promise, nor was there any debt, obligation or duty due from Peter Cornell'or his widow to the plaintiff which she could enforce against them, or either of them, but we are not prepared to say that the relationship existing between the plaintiff and her parents was not such' as to create a privity between her and them which might meet the last condition above referred to. Gates v. Hames, 28 St. Rep., 313; Vrooman v. Turner, 69 N. Y., 280; Kelly v. Roberts, 40 id., 432; Fairchild v. Feltman, 32 Hun, 398.

But the first condition is nowhere met by the evidence ;■ and there was therefore no valid agreement enuring to the benefit of the plaintiff which she can enforce by action. But if it should be held that the agreement of the testator to pay this money to plaintiff was valid, then there was nothing in that promise which in any way postponed its performance or prevented the plaintiff from enforcing it as soon as it was made. There seems to be no evidence to support the finding of the referee that this money was payable on demand. The promise as proved was that “ I will give each of them five thousand dollars.” This was said to the father. To the mother the promise was : “ They shall have that and more too.”

There was nothing in either of these statements that indicated the postponement of the payment until a demand was made for it If this promise created a valid and binding agreement on the part of the testator to pay this money to the plaintiff, that payment could have been enforced at once, and if that were so, an action was maintainable upon it as soon as it was made; and unless the plaintiff was under some disability the statute of limitation would commence to run from that time. The conversation between the testator and plaintiff’s mother in which testator is claimed to have last promised to pay the plaintiff was in 1878 and in the presence of the plaintiff when from the evidence it appears that she must have been about thirty years of age. No disability of infancy existed at that time on the part of the plaintiff, and if the plaintiff had a valid cause of action on that promise, the statute of limitation ran from that time, and this, claim appears to have been presented on the 20th of February, 1890, twelve years after the alleged promise of the testator to plaintiff’s mother and thirty years after the alleged promise to Peter Cornell. But it is insisted that money was received by the testator from his father or step-mother as a deposit or trust, and did not therefore become due or payable until demanded by the cestui que trust or some one in her behalf. We see nothing in the evidence to justify that contention. Neither Peter Cornell or his wife in terms imposed any trust on the testator for money due them, or either of them, nor did they or either of them direct the testator to hold such money for the benefit of the plaintiff.

Unless, therefore, the agreement of testator to pay money to-the plaintiff at the request of his father or step-mother created that relation, no trust was created. The case does not show that the testator held money of his father or step-mother as a deposit with him, but on the contrary the account on which this claim is prosecuted shows upon its face that testator bore the relation of debtor to them at the time of making the agreement to pay plaintiff, as appears by the claim which we have above set out in full.

Whatever money the testator owed either his father or stepmother cannot, therefore, on this evidence be claimed to be money deposited with him, by them, and held as a deposit, for which a demand was necessary, but rather under the ordinary relation of debtor and creditor.

There is nothing in this case to show, or from which it can be reasonably inferred, that a demand would have been necessary to enable Peter or Mary Cornell to recover any money due from Thomas in the lifetime of all of the parties.

The debt, if any existed, was not as between them impressed with any trust; nor was it a deposit.

In Payne v. Gardiner, 29 N. Y., 146, it was held that an action could not be maintained against a depository until after a demand. In Matter of Waldron, 28 Hun, 481, the writing given by defendant acknowledged the possession of a certain sum of money, and that it was held in trust, and a demand was necessary to set the statute in operation.

_ In Boughton v. Flint, 74 N. Y., 476, the husband in his lifetime had collected money on a mortgage belonging to his wife, ■which she allowed and requested him to retain; the transaction was a deposit and not a loan, and a demand was necessary to set the statute in motion.

These cases are cited by the plaintiff as authority that the debt due from testator to his father and stepmother was a deposit, and that a demand was necessary to set the statute in operation. I fail to see their analogy to the case at bar. In each case they were in effect but deposits, and in their very nature required a demand before an action could be maintained on them or the statute would commence to run.

In the case at bar, as we have seen, the claim was that testator owed his father and stepmother and at their request agreed to pay the same to the plaintiff, and if. valid was but the transfer of that debt, with whatever right of action existed against the testator to the plaintiff, who became clothed with all of the powers of a creditor of the defendant, and could as such maintain an action at law upon such claim.

No trust was, therefore, created in favor of the plaintiff by testator’s agreement to pay her any sum due from the testator to her parents. But if it could beheld in this case that a.demand were necessary, it would seem that the plaintiff has slept upon her rights, and that the statute of limitations had attached before this claim was presented to the executor. The Code, § 410, requires that, “ Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time within which the action must be commenced must be computed from the time when the right to make the demand is complete, except in the following ■cases.” The first exception relates to the detention of money held by an agent, trustee, attorney or other person acting in a fiduciary •capacity, and then the time must be computed from the time the person having the right has actual knowledge of the facts upon which the right depends.

The second is when a deposit is made, not to be paid at a fixed time, but only on special demand.

Tested by these rules the plaintiff should, under the above section, have commenced her action within six years after the conversation which she heard between her mother and testator in 1878. Subdivisions one and two of this section cannot be made to apply in this case; the money was not held by testator as agent, .attorney, or in any fiduciary character, as required in subdivision one, nor was it a deposit to be paid only on a special demand, as required by subdivision two of that section.

It seems, therefore, that the claim, if valid in its inception, was at the time of the presentation to the executor barred by the statute of limitations, and he was not only justified in rejecting it, and refusing to pay it, but was bound in the discharge of his duty ■as executor to treat it as a stale demand and interpose the statute ■of limitations as a defense.

The judgment must be reversed, the referee discharged and a new trial ordered, costs to abide the event

Putnam and Herrick, JJ., concur.


text:
    Loretta H. Randall, Resp’t, v. The National Ice Co. of New York, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Contract—Modification.
    Plaintiff, through her husband as agent, entered into a written contract to sell 800 to 900 tons of ice to defendant at §3 per ton railroad weight. The railroad refused to weigh the ice, but delivered weigh bills for the purpose of fixing freight charges. Plaintiff claims that after the railroad refused to weigh, she obtained consent of defendant to weigh a few cakes of ice to ascertain the approximate weight and by keeping accurate account of the cakes fix the total weight of the ice delivered; while defendant insists that the railroad weigh bills furnish the weight as agreed. Held, that if defendant consented to the modification of the contract as claimed, and plaintiff acted upon it and defendant received the ice under it, it would be estopped from refusing to pay for the ice or from fixing any other method of determining the quantity, and that whether such modification was in fact made was a question for the determination of the jury.
    3. Same— Sale—Excess of delivery.
    Where a vendee receives and retains goods in excess of the amount called for by the contract, he is liable to pay for the same, and, in the absence of any agreement to the contrary, at the price stipulated in the contract.
    Appeal from a judgment rendered upon the verdict of a jury and from an order denying a new trial made upon the minutes of the judge.

      Beckwith & Wheeler (George H. Beckwith, of counsel), for app’lt; Pratt & Logan (Louis W. Pratt, of counsel), for resp’t.
   Mayham, P. J.

The complaint alleges that the defendant is a. corporation, and that the plaintiff sold and delivered to the defendant 1,476 tons of ice, for which the defendant agreed to pay plaintiff three dollars per ton, and that there was due plaintiff therefor the sum of $2,500. The answer admits that the defendant is a corporation, but denies that plaintiff sold defendant ice and that the defendant is indebted to plaintiff therefor. The answer further alleges that the defendant contracted with one W. C. Randall, and in substance alleges that the plaintiff is not the real party in interest The reply of the plaintiff alleges that the defendant purchased the ice in question of W. C. Randall as agent for the plaintiff, and denies that the plaintiff is not the real party in interest.

The plaintiff proved that W. C. Randall was her agent, and that' she carried on the business of harvesting and selling ice in the winter of 1890, and that as such agent he received from the defendant an order, of which the following is a copy:

“Hew York, 'February 6, 1890.
“Bought of Mr. W. G. Randall, Agent, about 800 or 900 tons of ice delivered at Weehawken, H. J., in lots of 10 to 15 cars per day, at the rate of $3.00 per ton, R. R. wt. Rouses Point, said ice to be shipped daily commencing Monday, February 10, 1890.
“ Payment for same when barge load is delivered.
“¡National Ice Company of ¡New York,
“ Per W. ¡N. Bavier, Gen'l Manager.
To be good merchantable ice not less than 10.
“W. ¡N. B.”

At the same date the plaintiff by her agent executed and ■delivered to the defendant a paper of which the following is a copy:

“ ¡New York, February 6, 1890.
“ Sold to ¡National Ice Company about 800 or 900 tons of ice delivered in cars at Weehawken, ¡N. J., in lots of 10 to 15 cars per day at the rate of $3.00 per ton R. R. wt. Rouses Point.
“ Said ice to be shipped daily commencing Monday, February-10, 1890. Payment for same when barge load is delivered. To be good merchantable ice not less than ten inches.
“ W. C. Randall, Agent,
Plattsburgh, N. Y.”

Soon after making the above memorandum the plaintiff commenced to ship ice to the defendant, and claims to have shipped 1,314 tons, 497 pounds of ice. The ice was not weighed by the railroad company, that company refusing to weigh the same, but for the purposes of fixing freight charges rendered its weigh-bills at the rate of 30,000 pounds per car for 66 cars amounting to 990 tons of ice, making a difference of 324 tons which is the subject ■of this controversy.

The plaintiff insists that after the railroad would not weigh the ice she obtained consent of the defendant to fix the amount of the ice to be delivered by weighing a few cakes of ice so as to ascertain approximately the average weight, and then by keeping an accurate account of the number of cakes fix the total weight of all ice delivered, and she claims to have done this, and thus to have ascertained the quantity of ice delivered. The contention of the defendant is that the weigh-bills of the railroad furnish the railroad weight as contemplated by the memorandum of agreement between the parties and that such written contract must control.

There is sufficient evidence to establish that the quantity of ice •charged for by the plaintiff was delivered, if we adopt her method of fixing the amount, and if we adopt the defendant’s theory, then the railroad weight attainable is that furnished by thp railroad weigh bills used for fixing the freight charges.

The first contract between these parties was in writing, and would bind the parties both as to the manner of weighing this ice and as to the amount to be delivered under it, unless subsequently modified by the parties, and as modified acted upon by them' or one of them relying upon such modification. It is quite true that parties may insert any provision they please provided they violate no principle of law, Allen v. Ins. Co., 123 N. Y., 13; 33 St. Rep., 216; but it is also true, as said by the learned judge in his charge to the jury in this case, that a written contract which imposes conditions upon one party or the other may be modified by paroi, and if such modification is acted upon by both parties the party who has induced the other to act in pursuance of the modification cannot afterwards deny that the change in the contract was properly made. If, therefore, the defendant agreed when it was ascertained that the railroad company would not weigh the ice, that the plaintiff might weigh the cakes and average the weight, and thus determine the quantity, and the plaintiff adopted that method, and acted upon it to the knowledge of the defendant, and the defendant received the ice under it, the defendant would be now estopped from refusing to pay for the ice or from fixing any other method of determining the quantity.

Whether such a modification of the contract was or was not in fact made and acted upon by the parties was, we think, a question of fact which was properly submitted "to the jury by the trial judge.

The defendant also insists that the maximum amount of ice -called for by the contract was 900 tons, and that they are not liable for the excess. But they have received the whole amount of ice sent and have paid the freight and charged it to the plaintiff for 990 tons, thus conceding a receipt of ninety tons more than called for by the written contract.

Having received this ice in excess of the amount called for by the contract, the law would hold the defendant liable to pay for the same and, in the absence of any agreement to the contrary, at the price stipulated in the contract.

The questions of the modification of the contract and of the amonnt of ice received under the same were under proper instruction from the trial judge submitted to the jury as questions of fact and the verdict of the jury is sustained by the evidence. On the whole case we see no error committed by the court for which this judgment can be reversed.

Judgment affirmed, with costs.

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


text:
    Orlando P. Dexter, App’lt, v. Warren Joseph Alfred, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Pleading—Demurrer.
    A demurrer cannot single out one paragraph in an answer and treat it as insufficient in law, when by reading it in connection with another portion of the answer, of which it is made a part, the two constitute a complete or partial defense.

      % Trespass—Defense—Authority of highway commissioner.
    In an action for trespass it is competent for the defendant to set up as a defense or partial defense the acts of a highway commissioner under a statute which was afterward held unconstitutional, and that the acts complained of were done under the orders and direction of said commissioner.
    Appeal from an order and judgment overruling a demurrer to the defendant’s answer.

      Cantwell & Cantwell (William P. Cantwell, of counsel), for resp’t; Rufus P. Livermore (Eugene Burlingame, of counsel), for app’lt.
   Mayham, P. J.

The plaintiff demurred to the second and third counts of the defendant’s answer.

The complaint was for trespass in entering upon lands of the plaintiff, alleging in various forms over thirty distinct allegations of wrongful entries and trespasses on the plaintiff’s premises by the defendanb

The second count in the answer, and the one to which the first branch of the demurrer is' directed, alleges in substance that in January, 1890, in pursuance of 'chapter 114 of the Laws of 1880, one Henry Foster, the commissioner of highways of the town in which the plaintiff’s premises are situate, laid out a public highway across the lands mentioned in .the plaintiff’s complaint, and in so doing fully complied with all of the provisions of § 2 of said act, and that the defendant believed that said highway was legally laid out, and was a public highway, and while the defendant so believed and before the court had declared such act unconstitutional, the said commissioner of highways ordered and commanded the defendant to cut some fallen trees on said, land, and remove them from the road, and that such acts are the supposed trespasses alleged in the plaintiff’s complainb

The third paragraph, or count, in the answer, and the one to which the second demurrer is directed, is in substantially the same form, but relates to other allegations of trespass in the complaint.

The ground of each demurrer is, that the part of the answer to which they relate, respectively, as far as they relate to the attempt of the highway commissioner to lay out the highway, and so far as they relate to the defendant’s acting in aid of the commissioner of highways in attempting to lay out and open a highway across the plaintiff’s land, such defenses are insufficient in law upon the face thereof.

These demurrers were overruled by the learned trial court, and the plaintiff appeals. The plaintiff by his demurrer admits the allegations of fact in the subdivision of the answer demurred to and the question to be determined on this appeal is whether that portion of the answer demurred to constitutes in law a defense in whole or in part to the plaintiff’s complaint.

Taking these allegations of fact as true, we think that they constitute a partial defense, and cannot, therefore, be held’ insufficient in law so as to constitute ground of demurrer, especially when paragraphs two and three in the answer are by the express language of paragraph four incorporated into and made a part of it.

The question presented on this demurrer is not whether some portion of this answer on a proper motion might not have been stricken out as irrelevant or redundant, but whether taken as a whole the answer, or that part of the same as to which the demurrer is interposed, constitutes a defense in whole or in part to the allegations of the complaint.

It is uot strictly necessary that a counterclaim or defense be stated completely in one paragraph, or count; it may refer to others, and the matter thus referred to may be considered as a part of the count in which it is referred to. 101 N. Y., 328.

Tested in this way a demurrer cannot single out one paragraph in an answer and treat it as insufficient in law, when by reading that paragraph in connection with another portion of the answer, of which it is made a part, the two constitute a complete or partial defense.

But it is urged by the learned counsel for the appellant that § 2 of chap. 114 of the Laws of 1880, was repealed by chap. 696 of the Laws of 1881. This latter statute does not in express terms repeal the former, and it is so much in doubt whether it did so by implication that this court in Peo. ex rel. Dexter v. Mosier, 29 St. Rep., 129, declined to hold that it had that effect.

But this court did hold in that case that some of the provisions of § 2 of chap. 114, Laws of 1880 were unconstitutional; and it is now urged that by reason of its unconstitutionality no act done under it by an administrative officer can be protected by its provisions. The defendant in his answer in this case undertakes to justify or mitigate the alleged trespass, committed by him after the passage of the act and before the same was declared unconstitutional by the courts, on the ground that the commissioner of highways was acting under and in pursuance of the provisions of tins act while it was in force and before it was adjudged to be unconstitutional, and that the defendant was acting under the orders of the commissioners.

. It was no part of the duty of the commissioner of highways to decide whether the law in question was or was not constitutional. His duty was to execute the law as he found it. “ Under our system of government, no power is given to a public officer to refuse or suspend their obedience to laws on any opinion of their own that a law is unconstitutional.” Johnson, C., Clark v. Miller, 54 N. Y., 532. It is true that, as a general rule, ignorance of law cannot be urged as an excuse for a wrong, but we think in this case that it was competent for the defendant to set up as a defense or partial defense to this action the acts of the commissioner under this statute, and that the acts done by the defendant were under the direction or orders of the commissioner, and that the judgment and order on this demurrer should be affirmed.

Judgment and order affirmed, with costs to the respondent, and leave to the plaintiff on payment of costs to withdraw the demurrer.

Mayham, P. J., and Herrick, J., concur.


text:
    In the Matter of Proving the Will of Roxalana Williams, Deceased. Norman Carpenter, Ex’r, Resp’t, v. Emery Hall, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    1. Will—Genuineness of sig-natube.
    Where the testimony of the experts, upon a comparison of the signature to the will and genuine standards of the testatrix, handwriting, differ as to whether such signature is genuine or forged, but the subscribing witnesses, testify unequivocally to having seen the testatrix write the same, the weight of evidence is in favor of its genuineness, and a finding to that, effect will not be disturbed.
    2. Same.
    A signature cannot be held to be forged or simulated from the mere fact that it is divided in a different manner from that usually adopted by the testatrix, where it appears that she formerly wrote her name in that manner.
    3. Same—'Undue influence.
    Undue influence must be such as is exercised by coercion, imposition or fraud, and not such as arises from gratitude, affection, confidence and esteem; unless it be proved that a weak minded or deluded testator has been misled and deceived by artifice or fraud.
    4. Same—Errors in admission of evidence.
    If the error of the surrogate in the admission of evidence does not affect the determination on the merits, the decree should not be reversed.
    Appeal from the decree of the surrogate of Rensselaer county, admitting a certain instrument to probate as the last will and testament of Roxalana Williams, deceased".

      Smith & Parmenter (R. A. Parmenter, of counsel), for app’lt; Warren & Patterson (Charles E. Patterson, of counsel), for resp’t.
   Mayham, P. J.

The formal objections made to the probate of this will to the surrogate were:

First. That said alleged will is not the last will of said Roxalana Williams.
Second. That said Roxalana did not sign or execute the same.
Third. That said Roxalana Williams at the time of the pretended execution of said will was not capable by reason of mental incapacity to make a will.
Fourth. That said alleged will was produced by reason of undue influence exercised upon said Roxalana Williams, without which she would not have executed the same.

The case discloses that the alleged testatrix was a widow about eighty-two years of age at the time of the execution of the instrument, in somewhat feeble health, and for some years previous to the alleged execution of the will too deaf to hear what was said to her, and was accustomed to converse by use of a tablet or slate on which those conversing with her wrote their communications, which she answered orally.

She had for some years resided with her brother, who was a bachelor and died of softening of the brain, intestate, leaving his. sister Roxalana Williams his next of kin, and the sole inheritor of his property, which consisted of a farm worth about $5,000 and $20,000 worth of personal property,

Mrs. Williams before inheriting her brother’s estate was worth in her own right about $5,'000. At the time of making this alleged will her nearest relatives and only next of kin were three cousins residing in the state of Connecticut, between whom and Roxalana Williams no intimate social relations existed at the time of making the alleged will or at any time previous thereto.

These kinsfolk were not named in the will and the principal beneficiary named therein was a Mrs. Harriet Carpenter, who for many years had been an intimate friend of the testatrix, and who, not in any wise loin to her, had been an adopted daughter of her deceased sister and had been reared and educated by her, and, as testatrix claimed, had for years rendered her valuable services and kindnesses which she by her gratified expressions seemed highly to prize and appreciate, calling her on many occasions her main stay.

The proof shows that Norman Carpenter, husband of Harriet Carpenter, the principal beneficiaiy, called on the draftsman of the will and informed him that Mrs. Williams desired him to do some writing for her, and that the draftsman pursuant to such information called on the testatrix, who informed him that she wanted him to draw her will, which he agreed to do, and a short time thereafter Mrs. Carpenter brought to and left with him written instructions in her own handwriting from which he drew the will.

The will was duly executed with all statutory requirements and witnessed.by the draftsman and his wife with whom it was left until produced for probate.

The surrogate in an able and exhaustive opinion sustained the will and admitted it to probate, and the contestant, who is one of the next of kin of the testatrix, appeals.

The first point urged on this appeal is that the paper offered for and allowed for probate is not the will of the testatrix, and this contention is sought to be maintained on the ground that by the will the testatrix disinherits all of her next of kin and gives all of her property to strangers ; an unusual and unnatural act, and one which suggests either that the paper was never executed by her, or if signed by her at all, was the result of fraud or undue influence.

Upon this subject attention is first directed to the signature of the alleged testatrix to the paper, and a large amount of evidence was taken before the surrogate, consisting of the testimony of the ■subscribing witnesses and of experts offered by both parties, and ■exhibits consisting of genuine standards of the handwriting and ■signature of Mrs. Williams, between which and the signature in dispute comparison was made by the expert witnesses in their testimony, and the same were laid before the surrogate for his inspection, and produced and exhibited to the court on this appeal. Each party produced on the trial expert witnesses justly celebrated in their profession, claiming to have great skill and experience, and exhibiting a zeal and fidelity to their employers worthy of their employment, who unhesitatingly testified to the genuineness of this ¡signature on one side, and to the forgery and simulation of the same on the other; and the surrogate and this court would be puzzled by the unanswered question, “ who shall decide when doctors disagree ?” but for the testimony of the subscribing witnesses, who unequivocally swear to having seen the name written by Mrs. Williams.

It is quite true that the unusual manner in which the name is divided at once attracts attention.

But the argument from that is quite as strong in favor of the genuineness of the signature as against it It would be most unnatural for a party seeking to commit a forgery to adopt a signature unlike the genuine. Forgeries are usually committed by attempted simulation and fac similes, and not by the adoption of a method unlike the usual signature of the one against whom the forgery is committed.

It would seem from the testimony, and the genuine signatures of Mrs. Williams used on the trial, that her usual way of writing her name was in one word, “ Roxalana,” and not as it appears on this instrument, “ Roxa Lana.” But several genuine signatures were introduced where she had written her name “Roxa L.,” and her linen and silver marked years before the time of the alleged execution of this instrument were marked R. L. W., and for her maiden name, R. L. H., her name before marriage being “Hall.”

From an inspection of the exhibits we are unable to determine that this signature to the alleged will is forged or simulated, and we think the weight of evidence is in favor of its genuineness, and must therefore agree with the learned surrogate on this branch of the case.

The questions of fraud and undue influence raised by the contestant in the court below, and so ably and exhaustively discussed by the learned counsel for the appellant on this appeal, have been carefully examined by us, and seem so completely anticipated, and effectually and properly disposed of by the learned surrogate in pronouncing his opinion in this case, that we venture to adopt it in haec verba as decisive of this branch of the case, giving him credit for the same. The learned surrogate says :

“It is urged that Mrs. Williams was a person of great age,, eighty-two years old, somewhat feeble in health, shut off from ready communication with the world by reason of her loss of hearing, residing with her aged brother who was himself an invalid,, and by reason of his malady (softening of the brain) incapable of advising with her; that the memorandum for the will was prepared by Mrs. Carpenter, the principal beneficiary, without the-presence or knowledge of any other person, so far as appears; that there existed between the deceased and the principal beneficiary (as she admits and claims) the most tender relations, amounting to those between mother and daughter, which had existed for many years, and grown closer as time progressed; that such beneficiary was not a relative, either by blood or affinity; that the blood relations (heirs at law and next of kin of said deceased) were not even mentioned in her will, although the deceased had frequently said she expected a portion of her property would go to them; and finally that Mrs. Williams denied, as alleged, after making of said instrument, on one or more occasions, that she had made a will; that Mrs. Carpenter had also on several occasions, made the same denial.
“ These circumstances, it is claimed by the contestant, establish that the alleged will, if executed, was the result of moral coercion amounting to fraud. Upon the other hand the proponent relies, upon the general intelligence and capacity of the deceased, the absence of proof of impaired memory or of the exhibition of mental weakness or loss of will power, her full knowledge of her property and of those upon whom she desired to bestow her bounty, the deliberation and care with which the act was done, the affection which prompted the act, and the absence of all proof of fraud and imposition, to repel any and all presumptions of undue influence.
“ Cases of this class have been before the courts so frequently that certain general rules have been established by which evidence of the character adduced by contestant in this case should be weighed and applied; the courts have also decided what kind and amount of countervailing evidence will avail to repel the presumption of fraud or undue influence raised by such evidence. The general rule as to capacity and ability of persons to dispose of their property is as follows: “ Every person of sound mind, acting with full knowledge of his affairs; competent to understand his relation to those whom he choses to benefit, may bestow his bounty as he likes, although the disposition may appear, and in fact be, unjust and inequitable. Clapp v. Fullerton, 34 N. Y., 190; Seguine v. Seguine, 4 Abb. Ct. App. Dec., 191; Coit v. Patchen, 77 N. Y., 533; Hollis v. Drew Theo. Sem., 95 id., 166. The fact that a will disinherits testator’s kindred is not alone evidence of undue influence; nor is the fact that a. memorandum for the will is prepared by the person who is largely benefited under the will and who is active in procuring its execution. Matter of Smith, 95 N. Y., 516; Matter of Martin, 98 id., 193; La Bau v. Vanderbilt, 3 Bedf., 384; Cudney v. Cudney, 68 N. Y., 148.
“ Neither is the fact that the will is not in accordance with testator’s previously expressed intention, although it may have an important bearing in connection with other facts, but without such facts of a pertinent and forcible character a change in purpose of making a testamentary disposition does not invalidate the will.”

Without quoting further from the opinion of the learned surrogate, we think the authorities cited by him abundantly establish, when applied to the facts proved in this case, that the will was the free and voluntary act of the testatrix, and that the contestant has failed to establish by any affirmative evidence undue influence such as would invalidate the same. Intimacy between the testatrix and the beneficiary cannot be regarded as an element tending to establish undue influence. Nor do acts of kindness and marked attention on the part of the beneficiary amount in themselves to evidence of undue influence.

To invalidate a will on the ground of undue influence there must be affirmative evidence of facts from which such influence is to be inferred. It is not sufficient to show that the party benefited by the will had the motive and opportunity to exert such influence; there must be evidence that he did exert it Cudney v. Cudney, 68 N. Y., 148. Undue influence must be such as is exercised by coercion, imposition or fraud, and not such as arises from gratitude, affection, confidence and esteem, unless it be proved that a weak minded or deluded testator has been misled and deceived by artifice or fraud. We see nothing in this case that justifies the conclusion that this will was the result of undue influence or fraud. The only remaining question is, whether the surrogate erred in the receipt and rejection of evidence to the prejudice of contestant to such an extent as to justify a reversal of the decree

The well settled rule in reference to decrees of surrogates is,, that when testimony is improperly received or rejected by a surrogate, it is not sufficient ground for the reversal of a decree unless it appears to the appellate court that the party against whom the evidence is received or rejected is necessarily prejudiced thereby. Code Civ. Pro., § 2545; Loder v. Whelpley, 111 N. Y., 239 19 St. Rep., 631; Matter of Will of Smith, 95 N. Y., 517. The rule laid down in the last case cited, that when incompetent evidence has been received or competent evidence rejected, and it. appears that the same was important and material and might have affected the result, and the court on review cannot say that notwithstanding the error the judgment is right, and the party excepting was necessarily prejudiced, the judgment should be reversed, and the converse of this proposition is, under the section above referred to, equally true; if the error does not affect the-determination on the merits the decree should not be reversed.

We have carefully examined all the rulings of the surrogate upon the receipt and rejection of evidence to which exceptions were taken and we see no error which, when tested by the above rule,, would justify the reversal of the decree in this case.

The decree is, therefore, affirmed, with costs.

Putnam and Herrick, JJ., concur.

         Affirming 40 St. Rep., 356.


text:
    Eliza Babcock, Adm’rx, App’lt, v. The Fitchburg Railroad Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 2, 1892.)

    Railroad—Negligence—Explosion of powder mill.
    Plaintiff’s intestate was employed in a powder mill, near which defendant’s tracks ran on a heavy grade. As a freight train was passing the-smoke from the locomotive settled on the mill, and an explosion occurred immediately after, by which intestate was killed. Evidence was given tending to show that the extension stack in use by other roads was less, liable to emit sparks than the one in use on the locomotive in question; while defendant’s witnesses testified that this one was no more liable to emit sparks than the extension stack. Held, error to dismiss the complaint, as there were questions of fact which should have been left to the-jury-
    Appeal from a judgment entered upon the order of the judge at the circuit, dismissing the complaint of the plaintiff.

      Townsend, Roche & Nason (Martin I. Townsend, of counsel), for app’lt; T. F. Hamilton, for resp’t.
   Mayham, P. J.

Plaintiff's intestate' was at the time of his-death and for several years prior thereto had been employed as a manufacturer of powder at the Schaghticoke Powder Mills in Columbia county. He was a sober and steady man, thirty-one years of age, and resided with his mother, to whose support he contributed. On the 15th day of October, 1889, he was killed by an explosion of the powder mill in which he was at that time employed. The mill in which he was at that time at work is-located about 195 feet from the track of the defendant’s railroad.

The mill was constructed in 1862. Previous to this time there had been a railroad on the line of the defendant’s road at this point, but it ceased to be operated as a railroad soon after 1862, and the defendant succeeded to this road-bed some fourteen years thereafter, and has since that time operated a railroad at, that point.

The grade of the railroad track opposite this mill is at the rate of about thirty feet to the mile, and at the time of the explosion of the powder mill by which intestate was killed there was a freight train consisting of twenty-six loaded freight cars drawn by one locomotive passing up this grade opposite the mill.

The case shows that the fuel used for generating steam for the propulsion of the locomotive engine was bituminous coal, and that large volumes of dense smoke were emitted from the smokestack, and carried by the wind towards and to this mill, settling down upon it, and when the smoke settled over the mill the explosion occurred.

3STo other theory is developed by the evidence than that the powder was ignited by the sparks from the locomotive, which were forced out of the smoke-stack by the action of the engine with this volume of smoke.

The evidence chows that 'the spark-arrester on the smoke-stack of the engine" employed in drawing the train of cars is what is known as the diamond stack, and there was evidence introduced in the case from which the jury might have found that the more approved stack, and one less liable to emit large sparks, is one known as the extension point, which was extensively in use at that time by railroad companies.

Upon this subject the defendant introduced some expert witnesses, who testify that the diamond stack was as good as the extension, and no more liable to emit sparks; so that upon that subject there was a conflict of opinion between the experts, and a conflict of evidence upon the fact, which, if important in this case, should have been submitted to the jury.

If that disputed question had been submitted to the jury under proper instruction from the court, and the jury had found that the powder in that mill had been ignited by sparks emitted by that smoke-stack in consequence of the defective spark-arrester, the verdict could not have been set aside on the ground that it was not supported by evidence.

It is true that railroad companies are not always required to use the very best appliances and machinery known to the business, but when in the proper prosecution of their business life and property of others are jeopardized, they are required to minimize that risk by the use of such approved appliances and implements as are in use, and reasonably attainable, to prevent damage to others.

The defendant is presumed to know, what the undisputed evidence in this case established, that the effort required of a single locomotive to haul a train of twenty-six loaded cars up a grade of thirty feet to the mile would force out of the smoke stack a large amount of smoke, which would carry with it, unless prevented by a suitable spark arrester, burning coals and cinders, and thus increase the hazard of igniting the powder at this mill. And while the defendant should not, by harsh and unreasonable requirements, be deprived of the reasonable use of its property, it should not, on the other hand, be permitted to negligently or wantonly jeopardize the lives and property of others by the use of defective machinery, when, by the use of proper appliances, the danger would be removed or lessened.

It is true that the intestate, by the character of his employment, voluntarily subjected himself to the ordinary risks of the dangerous character of his business, but he had a right to engage in that occupation and to have his life not unnecessarily imperilled by defendant’s use of an inferior spark arrester, and we think the jury, under the evidence in this case, should' have passed upon that question^

The rule in cases of this character was well stated by Folger, J., in Steinweg v. The Erie Railway, 43 N. Y., 123, as follows : “The rule of law is that the appellant was guilty of negligence if it adopted not the most approved modes of construction and machinery in known use in the business, and the best precaution in known practical use for securing safety.

“ If there was known and in use any apparatus which, applied to an engine, would enable it to consume its own sparks and thus prevent emission of them, to the consequent ignition of combustible property in the appellant’s charge, it was negligent if it did not avail itself of such apparatus. But it was not bound to use every possible precaution which the highest scientific skill might suggest, or to adopt an untried machina”

And after citing several authorities, English and American, in support of that rule, he continues: “And it was a question for the jury whether there did, in fact, such negligence exist”

The doctrine of that case seems to apply to and be controlling of this on that point.

We think it was also a question of fact from the evidence whether the spark from the locomotive ignited this powder. 'There was enough evidence, if the jury had so found, to support a verdict that a spark from the engine ignited the powder, although there is no positive proof that it did so. The smoke settled down upon the building and was mixed with sparks or burning cinders. Sparks are not always seen in the daylight, but always in the dark, and we think under the evidence it was for the jury to say whether the fire in this case was caused by sparks from the smokestack. Positive proof is not always attainable; but a verdict ' based on circumstantial evidence will in a proper case be upheld. Hinds v. Barton, 25 N. Y., 544.

We think that there were questions of fact in this case which should have been left to the jury, and that it was error to dismiss the complaint.

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

Putnam and Herrick, JJ., concur.


author: Van Brunt, P. J.

text:
    Henry Steubing, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Appeal—Questions not raised below.
    Objections not raised on the trial' or appearing by the record are not available on appeal.
    3. Evidence—Refreshing memory.
    An objection to evidence on the ground that the witness’ memory was refreshed by looking at books is not well taken where the record shows that the witness testified from his memory independent of the books in most of the instances mentioned.
    3. Same—Proof op correctness op books.
    Where the witness testifies that he examined the books from time to time to see if any mistake was made and that he knew the entries at the time to be correct, it is immaterial where the person who made the entries is at the time of the trial.
    4. Railroad—Elevated—Evidence.
    , An objection to an inquiry of the plaintiff in an" action against an elevated railroad, as to whether when he purchased his property he considered the presence of the railroad an injury or benefit to the property, is immaterial, as it is a question not as to what plaintiff considered the structure, but what it actually was.
    Appeal from judgment entered upon the report of a referee.

      J. S. Wood, for app’lts; H. G. Atwater, for resp’t.
   Van Brunt, P. J.

Upon an examination of this record we see nothing to distinguish the case from the many which have been before this court upon appeal.

The claim that the amount awarded is excessive does not seem to be sustained by the evidence. Upon the contrary, the findings of the referee seem to be fully justified in that regard.

The objection that no permanent injunction can issue in respect to one of the pieces of property because the owner only had a life estate therein, does not seem to be well taken, as the objection does not appear upon the record.

The objection to the evidence of the plaintiff in respect to rents received because his memory was refreshed by looking at the books in which the receipts of the rents had been entered, does not seem to be well taken. It would appear from certain parts of the record that the witness had testified from his memory independent of the book in most of the instances mentioned.

The claim that the witness nowhere stated that he could not testify without refreshing his recollection and that, therefore, he should not have been allowed to look at the books, is not well taken, because no such objection was raised upon the trial.

The question as to where the man who made the entries in the books was at the time of the trial seems to have been entirely immaterial. The witness testified that he had examined these books from time to time to see if any mistake was made, and that at the time he knew the entries were correct.

It is true that it subsequently appeared that there were discrepancies between the amount of rents as given from his recollection by the witness and those which were entered in the books, and that in those instances the witness testified that the books must be wrong. But that circumstance was only to be considered by the referee in determining the weight to be given to the testimony of the witness.

The objection to the question, “Did you consider the presence of the Elevated Railroad at the time you purchased in 1890 as an injury or a benefit to the property ” was immaterial. It was not a question as to what he considered the structure when he purchased the property, but what it actually was.

The judgment should be affirmed, with costs.

O’Brien and Barrett, JJ., concur.


author: Barrett, J.

text:
    Philip A. Smyth et al., Resp’ts, v. Hugo S. Mack, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 3, 1892.)

    1. Brokers—Commissions.
    Plaintiffs were employed by one S. to sell real estate, and procured a purchaser. Defendant being called in to prepare the contract, and finding that S. had failed and made an assignment, postponed the making of the ■contract, and subsequently made a contract with the purchaser in his own name. The title was afterwards vested in defendant, and at the request of S. he conveyed it to a different person. No deed was given to the purchaser procured by plaintiffs. In an action to recover brokerage of defendant, as having benefited by plaintiffs’ services, all evidence tending to show that defendant had no personal interest in the transaction, but acted as a mere vehicle for the transfer of title, and neither paid nor received a consideration, was rejected. Held, error ; that plaintiffs had a right of action against S., but none against the defendant for such services.
    8. Promise—Statute of frauds.
    One of the plaintiffs testified that defendant told him not to worry, that he was the owner, and would make the contract himself, and if they were anxious, he would pay half commissions then in lieu of the whole commission when the contract was closed. At this time he was not in fact the owner. Held, that such promise was either one to pay the debt of S., and thus invalid under the statute of frauds, or an original agreement void for want of consideration between the parties to it.
    Appeal from a judgment in favor of the plaintiffs, rendered upon a verdict had at circuit; also from an order denying the defendant’s motion for a new trial.

      Louis Marshall, for app’lt; Samuel Greenbaum, for resp’ts.
   Barrett, J.

This action is for brokerage on the sale of a piece ■of real estate in this city. The defendant did not employ the plaintiffs, and their claim rests upon the contention that he benefited by their services. The property in question was owned by one Solomon. Upon his employment, the plaintiffs, in October, 1889, procured a purchaser therefor named Canavan. Canavan paid Solomon seventy-five dollars on account, and the defendant, who is a lawyer, was sent for by Solomon to draw the contract. The defendant, finding that Solomon had failed and made an assignment for the benefit of creditors, postponed the making of a written contract

Some two months later, namely, on the 13tli of December, 1889, Mack himself signed a contract with Canavan for the sale of the property. At this time Mack had not taken the title and it was provided in the contract that he was to incur no liability in case he failed to deliver a good and sufficient deed Canavan paid Mack $500 upon the signing of this contract,, which sum Mack turned over to Solomon's assignee. Mack had no real interest in the property and he signed the contract in question as a convenient means of carrying out the original agreement made verbally between Solomon and Canavan. The title was afterwards vested in Mack by several deeds, one executed by Solomon and Ms late partner, Adler, another by the assignee of Solomon & Adler, and a third by Solomon as sole surviving executor of Moritz Solomun, deceased. Subsequently, Mack conveyed the property to one Auerbach as collateral security for a note, and still later, under the instructions of his client, who was Solomon, he completely divested himself of the title by giving a deed to one Bohm. It seems that no deed was given to Canavan in execution either of the verbal agreement with Solomon or the written .agreement with Mack.

It is clear that the plaintiffs’ right of action against Solomon was complete when they procured a purchaser who was ready and willing to pay Solomon’s price. That cause of action still exists and has never been waived, cancelled or satisfied. It is equally clear that this cause of action is the only one which has accrued to the plaintiffs and that they have no additional claim against the defendant Indeed, it is difficult to perceive upon what principle the defendant has been held for this brokerage. He never employed the plaintiffs and the learned trial judge expressly refused to submit to the jury the question whether he made an independent agreement to pay the commission. The defendant attempted to prove that he never profited by the plaintiffs’ services; but all evidence tending to show that he had no personal interest in the transaction, that he acted as a mere vehicle for the transfer of title, and that he neither paid nor received a consideration thereon, was ruled out.

It is true that one of the plaintiffs, Ryan, testified that sometime after the discovery of Solomon’s financial condition the defendant told him not to worry, that the matter would surely go through; that he, defendant, was the owner of the property then and would make the contract himself, and that if the plaintiffs were anxious he would then pay them half the commission in lieu of the whole commission when the contract was closed. At the time when the defendant is said to have made these statements he was not in fact the owner of the property, nor, as already observed, was lie the owner when he signed the contract with the purchaser Canavan on the 13th of December, 1889. Two of the deeds, formally vesting the title in him, were dated the 30th of December, 1889, and the third was dated the 31st of December, 1889. They were all recorded on the 10th day of January, 1890, the same day when the deed to Auerbach was recorded. The promise testified to by Ryan was either a" promise to pay Solomon’s debt, and therefore void under the statute of frauds, or it was an original agreement void for want of consideration moving between the parties to it Such original agreement was not in consideration of services rendered or to be rendered to the defendant, nor was it in consideration of services of which he intended to avail himself for his own personal benefit. When the defendant spoke as Ryan would have us believe he did, he was acting simply as Solomon’s attorney, and was speaking for his client. He had no possible interest in the property, nor had he even a contract for the vesting in him of the formal title. He could not have known either then or when he signed the contract of December 13, 1889, that the arrangements which were pending to unite in him, for the mere purposes of transfer, the interests of the executor, the assignee and the partners, would go through. He simply was willing to have all these interests united in him so that he could execute, in his client’s interest, a valid deed to the original purchaser, or to any other person, upon his client’s instructions. Plainly he assumed no personal liability to the plaintiffs, nor was-he legally bound, by the formal instrument which passed or by the offer which was testified to by Ryan, to pay the commission which was earned by the plaintiffs and became due to them by Solomon when the purchaser was originally found.

The learned trial judge seems to have put the case to the jury upon the theory that if Ryan’s testimony, read in connection with the documentary evidence, was to be credited, the defendant “ took the original contract off from Solomon’s hands ” and assumed all its obligations ; in other words, put himself in the place of Solomon precisely as though he, the defendant, had from the beginning been the owner of the property. This, however, was an inaccurate view of the effect of the evidence, taken in its most favorable aspect to the plaintiffs. It entirely overlooked the defendant’s professional relation to the case, the absence of any personal interest, and'the purely formal character of the conveyances-to and by him. Besides, if well founded, it makes the error of rejecting evidence as to the want of consideration already referred to more conspicuous.

We think, upon the whole, that there was nothing to submit to the jury, and that the complaint should have been dismissed.

The judgment and order appealed from sliould, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

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