text:
    NATHAN P. WHEELER as Administrator, etc., of ADALINE BROOKS, Deceased, Respondent, v. JAMES H. CROSBY, LYSANDER BROOKS and others, Appellants.

      Enfcn'cement of a contract for the sale of lands made by a deceased person— right of Ms ad/ministrator to maintain an action therefor —■ when the tendel' of a deed is not necessary to the maintenance of such an action.

    The plaintiff, as the administrator with the will annexed of one Adaline Brooks, deceased, "brought this action to compel the specific performance of a contract made by the deceased in her life-time, for the sale of certain land owned by her to certain of the defendants herein. The vendees had made all the payments that could be required, except that which was to be made on the delivery of the deed, which the heirs refused to execute. The heirs and the vendees were all made defendants to this action.

      Held, that the action could be maintained, and that as the heirs refused to execute a deed the plaintiff was not obliged to tender one to the vendees before the commencement thereof.

      Appeal from a judgment in favor of the plaintiff, entered upon an order overruling a demurrer interposed by certain of the defendants herein.
    This action was commenced in March, 1879, to compel the sjoecific performance of a contract.
    The complaint alleges that in March, 1866, one Adaline Brooks, now deceased, was the owner in fee and in possession of certain real estate described therein. That in said month she entered into a contract in writing for the sale thereof to James II. Crosby, one of the defendants, which contract is set forth in the complaint; that by successive assignments from James H. Crosby, the defendants Emiline Crosby, James N. Crosby and Horatio S. Pope became interested in said contract, and that said contract has been partially performed by them ; that in August, 1876, said Adaline Brooks died, seized in fee of the land and premises, “leaving her surviving said defendant Lysander R. Brooks, her son, and said defendant Calvin Brooks, her husband, the only heirs at law of said Adaline Brooks and the persons to whom the fee of said lands descendedthat the plaintiff was duly appointed administrator; that the parties to the contract declined to pay anything more thereon until the execution and delivery to them of a sufficient deed, and that the defendants Brooks refused to execute such deed conveying their interest in said lands, though requested so to do.
    That the defendants Crosby and Pope were requested to join with the plaintiff in the action, but refused.
    The plaintiff demanded judgment that the defendants Brooks execute and deliver a deed, and that the other defendants accept the deed and pay the balance due upon the contract.
    The defendants Lysander Brooks and Lydia Brooks, his wife, and CaLvin Brooks demurred to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. On the trial the demurrer was overruled and an interlocutory judgment was entered, from which the demurrants appealed.

      D. M. Powers, for the appellants.
    The plaintiff cannot main-tarn an action for specific performance without first tendering a deed. (Hinckley v. Smith, 51 N. Y., 21; Schroeppel v. Hopper,
      40 Barb., 425 ; Adams v. Green, 34 Barb., 176 ; Moore v. Burrows, 34 id., 173 ; Thompson el at v. Smith et at, Survivors, etc., 63 N. Y., 301.) The complaint does not allege that the real estate, the subject matter of the contract, was owned by Adaline Brooks as her separate estate ; and, therefore, it does not appear that she was competent-to make the contract. (Nash v. Mitchell, 71N. Y., AlleN, J., 202 ; Manhattan B. and M. Co. v. Thompson, 58 id., 80, 82, Church, Ch. J.; The Corn Exchange Ins. Co. v. Babcocic, 42 id., 639; Colvin v. Currier, 22 Barb., 371.) The defendant Calvin Brooks, the husband of Adaline Brooks, deceased, and the father of Lysander Brooks, is entitled to an estate by the curtesy in the lands in question, of which the complaint says she died seized. He cannot be compelled to convey his title, and therefore the title contracted for cannot be conveyed to the vendees, and the vendees cannot be compelled to accept a title so incumbered. (Hinckley v. Smith, 51N. Y., 21; Vrooman v. Sheppard, 14 Barb., 441; Hatfield v. Sneden, 54 N. Y., 280 ; 4 Kent’s Com. 27 ; Doolitte v. Eddy, 7 Barb., 74 ; Browning v. Home Ins. Co., 71 N. Y., 509 ; Warner v. Blackman, 4 Keyes, 487, 494.)

      Albert F. Gladding, for the respondent.
   Per Curiam:

Wheeler, administrator, was entitled under the will of testatrix to have and receive the moneys payable under the contract for the sale of the real estate by the testatrix to Crosby. The vendees had paid all that could be required of them before the giving of a deed to them of the land by the heirs of the testatrix, when a bond and mortgage was to be given for the unpaid purchase money. But the heirs would not voluntarily give the necessary deed, and hence the administrator could not collect or receive the remainder of the purchase money of the land. Hence, his only course was to enforce by action in equity a specific performance of the contract by the parties thereto or their representatives. ■The administrator therefore had an interest in this contract which he could enforce by action in equity.

The ownership by a wife of real estate constitutes in law a separate estate.

The husband may or may not have an interest in.this real estate as tenant by .curtesy. The demurrer in this case is on behalf of the husband of testatrix,' her heir and his wife. If the demurrer is bad as to the heir it was properly overruled.

Under the facts in the case a tender of a deed was not requisite to thé bringing of this action. The administrator could not give the deed. The heir will not. The vendee cannot be compelled to pay without the deed. No other course is possible than to compel by equity the performance of the contract, so that all parties may have the interests to which they are entitled. Any other conclusion would result in gross injustice and might often thwart the wishes and wills of testators, and destroy the rights of devisees or legatees under last wills.

The order and judgment appealed from should be affirmed, with costs.

Present — Leaened, P. J., Boaedman and Bockes, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    WEARE C. LITTLE AND CHARLES W. LITTLE, Respondents, v. A. BLEECKER BANKS, Appellant.

      Contract for publication of reports — powers of State officers as to — they may give third, persons a right of action against the published' for a failure to comply with the contract — When a sum named in a contract is treated as liquidated - damages, and not as a penalty.

    The defendant, in pursuance of chapter 224 of 1848, entered into a contract with the proper State officers, for the publication by him of the decisions of the Court of Appeals, for the term of three years. The contract provided that he should at all times keep the volumes so published for retail, and at the price named in the contract, in one or more public and accessible law-book stores in the cities of New York and Albany, and that such volumes should be supplied to any law-book seller in either of said cities “ upon application, in quantities not exceeding: 100 copies to each applicant, unless said party of the second part shall choose to deliver a greater number when applied for, which he shall be at liberty to do,” and that he should “ thereafter, at intervals, not exceeding ten days, furnish to said booksellers copies of any of said volumes when required, in quantities not exceeding fifty volumes at a time.”

      It further provided that for a breach of any of its terms or conditions the defendant should forfeit to the People of the State of New York the sum of ¡f©,000, as and for liquidated damages, and not as a penalty, and that for any failure on his part to keep on sale, furnish and deliver the said volumes he should forfeit and pay for every such failure the sum of $100, which was agreed upon as the liquidated damages suffered by the parties aggrieved thereby, and which sum was to be sued for and recovered by such parties.
    In an action by the plaintiffs to recover the damages, provided by the contract to be paid, for the failure of the defendant to deliver volumes to them on demands made therefor, lield, that the State officers had a right to make the said contract, and that the same was valid.
    That the plaintiffs were entitled to demand and receive any number of volumes, provided such number did not exceed the limits fixed by the contract, and were not compelled to take 100 volumes the first and fifty at each subsequent time.
    That for each failure to deliver volumes as required by the contract, the party aggrieved was entitled to sue the defendant and recover the sum specified in the contract as liquidated damages.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this- action by the court without a jury.
    The action was brought upon a contract for the publication of the reports of the decisions of the Court of Appeals of this State, made in pursuance of chapter 224 of 1848.
    The material facts are fully stated in the following opinion delivered at the Special Term, which was approved and adopted by the General Term :
    Osborn, J. :
    The plaintiffs claim to recover in this action $600, the amount of six different penalties for the failure of defendant to sell and deliver to plaintiffs certain volumes of the Court of Appeals Reports.
    On the 25th day of November, 1874, the defendant, in pursuance of law, entered into a contract with the proper officers of the State, viz. : Hiram E. Sickels, State reporter, Nelson K. Hopkins, comptroller, and Diedrich Willers, Jr., secretary of State, for the publication, by defendant, for three years, of the decisions, etc., of the Court of Appeals and of the Commission of Appeals.
    It was, among other things, provided in the contract, that the defendant “should, at all times, keep the volumes so published for retail, and at the price named in the contract, in one or more public and accessible law-book stores in the city of Albany and in the city of New York, and should any other law-bookseller, in either of said cities, apply to purchase any of said volumes, the same shall be supplied to such booksellers, upon application, in quantities not exceeding one hundred copies to each applicant, unless said party of the second part (the defendant) shall choose to deliver a greater number when applied for, which he shall be at liberty to do ; and the said party of the second part (the defendant) shall thereafter, at intervals not exceeding ten days, furnish to said law-booksellers copies of any of said volumes when required, in quantities not exceeding fifty volumes at a time.”
    The price was to be $1.10 a copy.
    It was further provided in the contract, “ that for a breach of any of the terms or conditions of this contract, the party of the second part (the defendant) shall forfeit and pay to the People of the State of New York the sum of $5,000, which sum is hereby agreed upon, not as a penalty, but as fixed, stipulated and liquidated damages, suffered by the people aforesaid, to be sued for and recovered by the attorney-general,” etc.
    “And it is hereby further agreed that for any failure on the part of the party of the second paid (the defendant) to keep on sale, furnish and deliver the aforesaid volumes, or any of them, at the price aforesaid, the said party of the second part (the defendant) shall forfeit and pay for every such failure the sum of $100, hereby fixed and agreed upon, not as a penalty, but as the liquidated damages suffered by the person or persons aggrieved thereby, the same to be sued for and recovered by the person or persons so aggrieved.”
    The parties are rival law-booksellers in the city of Albany, and the plaintiffs claim and prove clearly that on six different occasions they applied to the defendant for a certain number of the volumes so published under said contract, which the defendant refused to sell and deliver, hence this action.
    The first question that arises is, whether the contract in question is a legal and valid one — which the State officers named therein had a right to make.
    From an examination of the authorities to which I have been referred, and others, I am satisfied that the contract is a valid one — one which these officers had a right to enter into.
    They were the agents of the people, and it was their duty to •make the most advantageous contract possible, and they could insert therein such provisions and conditions as should be most beneficial to the public. It is true that the plaintiffs were not made parties to the contract; but this does not bar them from maintaining an action for a breach thereof. The principle that when a person contracts with another for the benefit of a third person, such third person may maintain an action thereon, is well settled. (Coster & Pruyn v. Mayor of Albany, 43 N. Y., 399; Lawrence v. Fox, 20 id., 268; see opinion of Folger, J., on page 411, etc., of Coster et al. v. Mayor of Albany, 43 id., as above cited; Van Schaick v. Third Ave. R. R., 38 id., 346.)
    The defendant, with full knowledge, entered into this contract with the State officers, and for a breach of its conditions on his part consented to the payment of a certain amount to certain parties. Acting under and adopting this contract, and receiving the full benefits to be derived therefrom, he is. hardly in a position to question its validity in any respect.
    The principle which seems to be well settled is, “ that whenever an individual or a corporation, for a consideration received from the sovereign power, has become bound by covenant or agreement, either express or implied, to do certain things, such individual or corporation is liable in case of neglect to perform such covenant, not only to the public, but to a private action at the suit of any person injured by such neglect.” ( Weet v. Trustees, etc., 16 N. Y., 163, note.)
    In the case of Robinson v. Chamberlain, decided in Court of Appeals in January, 1866 (34 N. Y., 389), the question was, whether an action would lie against a contractor employed by the State to keep a portion of the canals in repair who neglected his duty, whereby the plaintiff sustained damage. The court held that the defendant having received valuable consideration from the State, as a consideration for the contract, was liable to a third party for damages sustained by a breach thereof. (See, also, Weet v. Trustees of Brockport, 16 N. Y., 163, Selden, J.)
    Under this contract, the plaintiffs, as law-booksellers, had the right to apply to the defendant to purchase the volumes in question at any time. On the first application they would only be entitled to demand 100 volumes; after that, at intervals not exceeding ten days, not to exceed fifty volumes at any one time. ■The, limitation of the number was for the' benefit of the defendant. It seems to me clear that the plaintiffs were not bound to take 100 volumes on the first application, and fifty at each of the subsequent applications, as claimed by defendant, but could ask for any less number, which the defendant was bound to furnish.
    This brings me to the consideration of the only remaining question in the case — the question of damages. As it has been shown, this was a valid contract, one which the parties thereto had a right to make, and one which is wise in its provisions, and well calculated to protect the public rights and interests.
    The defendant had a right to obligate himself to furnish these books to other law-booksellers, and to make that one of the conditions to be performed by him. This being so, I see nothing to prevent him from liquidating with the other parties to the agreement, the amount of damage which he should pay to any law-bookseller for a failure to perform this part of the agreement.
    I am also satisfied that, from the language employed; the damages must be regarded as fixed and liquidated. These damages are confined to a single specified breach of the contract, namely, a failure to furnish to the plaintiffs the volumes in question when applied for. The language is clear and explicit, and it is evident that the parties intended thereby to fix the amount. It was but reasonable that the parties should do so, fcr the damages were uncertain in their nature and difficult of proof.
    The sum which has been fixed is not exorbitant, and therefore does not come within the authorities, that where the contract is to pay a certain sum of money, and for a failure so to do, a larger sum is stipulated as the damages to be paid, the parties will be presumed to have intended the larger sum as a penalty. (See Clement v. Cash, 21 N. Y., 259, opinion.) In the case at bar, I am clearly of the opinion that the sum named in the contract must be regarded as the liquidated damages, and which the plaintiffs are entitled to recover. (Baglay v. Peddie, 16 N. Y., 469; Leggett v. Mut. Ins. Co., 50 Barb., 616; id., 53 N. Y., 394; Clement v. Cash, 21 id., 253.)
    The plaintiffs having shown six different occasions when they applied for, and the defendant neglected and refused to furnish books in pursuance of tbis contract, are entitled to recover the sum. of $600, with interest, as claimed in the complaint, and judgment is ordered accordingly, with costs.
    I ought, perhaps, to add that the questions involved are interesting and important. There has been, undoubtedly, an honest difference of opinion between the parties as to the validity of, and the proper construction to be given to, the contract in question. The amount which the plaintiffs recover is undoubtedly much larger than the actual damage sustained, and I should have been inclined to award only the sum of $100 for one refusal to sell the books in question, except for the reason that this might have prevented the parties, if they desired, from obtaining the opinion of the Court of Appeals. As it is important that the questions raised should be finally and definitely settled, and this is what the parties have desired — the amount being of secondary importance — I think the plaintiffs ought not to insist upon receiving the whole amount awarded, if in the end they should finally succeed.”

      O. L. Stedman, for the appellant.
    The reporter, secretary of State and comptroller have no legal power or right to make the contract in question, so far as it relates specifically to the law-booksellers of Albany and New York — to the giving them a cause of action against the defendant, and to the fixing the penalty. (McLanehan v. City of Syracuse, 18 Hun, 259 at p. 263a; Whiteside v. United States, 3 Otto, 247, 257.) The court erred in holding that the damages were liquidated by the contract. (Sedg. on Damages [5th ed.], 481; Richards v. Edick, 17 Barb., 260; Colwell v. Lawrence, 38 N. Y., 71.) The use of the word “forfeit,” meaning to lose by reason of a fault or crime, shows that a penalty was intended. (Richards v. Edick, supra; Salters v. Ralph, 15 Abb. Pr., 273; Kemp v. Knickerbocker Ice Co., 69 N. Y., 57-59.) Unless the intent of the parties is very clearly expressed, the forfeiture named for non-fulfillment when excessive will not be construed as liquidated damages. (Colwells. Lawrence, supra; Dennis v'. Commons, 3 Johns. Cases, 297; Staples v. Parker, 41 Barb., 648; Beal v. Hayes, 5 Sandf., 640.)

      Daniel Ketchum, for the respondent.
    The statute gave the State officers ample power to make this contract. _ (3 B. S. [6th ed.], 188, § 44.) The fact that the plaintiffs are not parties to the contract does not prevent them from maintaining this action. (Coster v. Mayor of Albany, 43 N. Y., 399, per Folger, J., 410-412; Lawrence v. Fox, 20 id., 268; Robinson v. Chamberlain, 34 id., 389; Fulton Ins. Co. v. Baldwin, 37 id., 648, MasoN, J., 650; Brewer v. Dyer, 7 Cush., 337; Auburn City Bank v. Leonard, 40 Barb., 119; Johnson v. Belden, 47 N. Y., 130, per Grover, J., 131; Conrad v. The Village of Ithaca, 16 id., 158.) The damages in this case are liquidated. (Bagley v. Peddle, 16 N. Y., 469; Cotheal Y. Talmage, 9 id., 551; Leggett v. Mut. Ins. Co., 50 Barb., 616; id., 53 N. Y., 394; Clement v. Cash, 21 id., 253; Dakin v. Williams, 17 Wend., 447; Brinkerhoff v. Of, 35 Barb., 27; Knapp v. Maltby, 13 Wend., 587; Noyes v. Phillips, 60 N. Y., 408.) The law is well settled that the intention of the parties must govern. ’ (Smith v. Smith, 4 Wend., 468; Noyes v. Phillips, 60 N. Y., 408; Kemp et ad. v. Knickerbocker Ice Co., 69 id., 58; Bagley v. Peddle, 16 id., 469; Leggett v. Mut. Ins. Co., 50 Barb., 616; id., 53 N. Y., 394.) A party who has secured to himself the advantage of a contract and has accepted and used its benefits, is estopped from denying the validity or binding force of the instrument, or from setting up or asserting to the contrary. (Per Potter J., in Hathaway v. Payne, 34 N Y., 109; Otis v. Sill, 8 Barb., 102; Laurrence v. Brown, 1 Sold., 395; Dezell v. Odell, 3 Hill, 216-221; Thomas v. Bell, Hill & Denio’s Sup. by Lalor, 433-434; Costar v. Brush, 25 Wend., 628; Plumb v. Cattaraugus Co. Mut. Ins. Co., 18 N. Y., 394; Welland Canal Go. v. Hathaway, 8 Wend., 483.) It is also well settled that one who accepted the terms of a contract must accept it “ in ioio.” He cannot accept a part and claim that the rest is invalid. (Bigelow on Estoppel, 514; Swanson v. Tarkington, 7 Heiskell, 612; Williams v. Gideon, 7 id., 617; Fmmons v. Milwaukee, 32 .Wis., 434; State v. Lawyer, 29 ich, 68; Roby v. Chicago, 64 Ills., 437; Bigelow on Estoppel, 511;, 1 American Leading Cases, 161.)
   Per Curiam:

After a careful examination of this case, and the authorities bearing on the questions involved in it, we shall content, ourselves by simply expressing our approval of the conclusion reached by the learned judge at Special Term. The action seems to have been brought as a test case on the contract counted on, and it was disposed of at the trial, as we understand it, with a view to its final disposition in the Court of Appeals. In general terms we may add that we are satisfied with the opinion given by Mr. Justice Osborn at the trial. The learned judge considered, upon authority, the principal and controlling questions involved in the case, and, as we think, made a proper disposition of them. Without again going over the questions in an opinion, which would be but to elaborate the argument, perhaps with some few further suggestions, and may be with some few additional authorities, we will declare our conclusion favorable to an affirmance of the judgment upon the opinion given at Special Term.

Present — Learned, P. J., Boardman and Bocees, JJ.

Judgment affirmed with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL H. THURSTON, Respondent, v. THE BOARD OF TOWN AUDITORS OF THE TOWN OF ELMIRA, Appellant.

      Board of town auditors — must pass specifically upon the items of which a bill is composed.

    Where a claim, consisting of separate items, is presented for audit to a hoard of town auditors it is the duty of the said board to examine each of the items separately, and allow or disallow the same accordingly as it shall be found correct or incorrect.
    It is error for the board in such a case to deduct a gross sum from the amount of the claim, without passing upon or specifically altering any of the items of which it is composed.
    Appeal from an order made at Special Term directing a peremptory writ of mandamus to issue requiring the defendant, when next convened at a legal meeting, to audit a claim of the relator against tho town of Elmira, for services rendered by the relator as one of tbe commissioners of highways thereof.

      John T. Davidson, for the appellant.

      John A. Reynolds, for the respondent.
   Per Curiam:

The statute makes it the duty of the board of town auditors, of the several towns of the State, to meet and audit all charges and claims payable by their respective towns. It prescribes the time for presentation and the mode of verification of all such claims. It also declares that nothing contained in the law shall prevent the board from disallowing any account in whole or in part, although rendered in due form and properly verified; nor from requiring other or further evidence of its truth and propriety. No mode is prescribed by the statute as to the manner in which the board shall conduct its inquiry in obtaining evidence as to the truth and propriety of the account submitted for audit. Thus it is seen that the action of the board in the auditing of bills is, to a considerable extent, discretionary as well as judicial. The per diem allowance to commissioners of highways for ser-, vices performed by them is fixed by statute at two dollars. From such allowance the board of auditors may not depart; but the number of days of service claimed is open to examination by that body. This is a question of fact, the truth of which the board may inquire into ; and this question of fact the board must determine, in order to make the audit of the account. On this point the case is similar to the case of The People ex rel. Francis v. The Common Council of the City of Troy, recently decided by the Court of Appeals. It was there decided that where the question to be determined by a public body is one of fact, and there is no particular mode prescribed by law for determining the fact, the action of such body cannot be controlled by mandamus further than to require it to exercise its power in that regard. The question here is, therefore, whether the board of auditors did in this case actually examine, consider and pass upon the relator's account, by determining the number of clays service which, he rendered to the town as highway commissioner. If the board has performed this duty it is not amenable to the process of mandamus. If not, the writ was properly granted. The board was not bound by the number of days service charged in the bill. But, in order to a proper and legal audit of the account, the board must examine the bill in detail and allow or disallow the various items. It would be no proper or just audit of an account made up of numerous items to allow a gross sum instead of considering and passing upon the items. This was held in The People ex rel. Johnson v. The Board of Sup. of Del. Co. (45 N. Y., 196). Now, in the case in hand, it seems that the board of auditors concluded and determined that thirty-four dollars, as a gross sum, would be a sufficient compensation for the services of the relator as highway commissioner during the period covered by his account. The board, therefore, allowed his account in gross at that sum. The bill was for twenty-seven days service and specified the particular service rendered, and gave dates. But, although the sum of twenty dollars was deducted from the bill, no deduction was made for any specific day. The sum of twenty dollars was deducted in gross, not because any particular day was erroneously or improperly charged in the bill, but because the board concluded that thirty-four dollars in gross should satisfy the claim. This proceeding was in no just sense a legal audit. This precise question was decided in the case last cited. A legal and proper auditing of an account requires an examination of the items of which it is composed, and the allowance or disallowance of them, accordingly as they' shall be found correctly or incorrectly charged, both in fact and law.

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

Present — Leajested, P. J., Bocees and BoakdmaN, JJ

Order affirmed, with ten dollars costs and printing.


text:
    JOHN HANSEE, Respondent, v. WILLIAM PHINNEY AND EDWARD PHINNEY, Appellants.

      Action on a usurious note — plaintiff cannot prove or recover upon the original debt, unless he sets it up in his pleadings — A usurer cannot set up usury to his own advantage.

    In this action, brought npon a promissory note, the defences were that the note was void for usury, and also that it had been superseded by reason of its being included in a new note given by the defendant to the plaintiff, which was still outstanding. The jury having found a verdict in favor of the defendant the plaintiff moved to set it aside, claiming that even if the note was void for usury he was entitled to recover upon the original valid indebtedness for which it was given, and that as the renewal note was usurious and void the fact that it was outstanding was no defence to the action.

      Held, that the action having been brought upon the note the plaintiff could not recover upon the original valid debt without setting the same forth and claiming to recover thereon in his pleadings.
    That the plaintiff could not allege that the renewal note was usurious, and therefore constituted no bar to the action, as he being the usurer could not set up _ his own turpitude to his advantage.
    Appeal from an order of tbe County Court of Sullivan county granting a motion for a new trial, made upon tbe minutes of tbe court.
    Tbe action was commenced in a justice’s court upon a promissory note for $87.26, made by tbe defendant. Tbe defences were that tbe note was void for usury, and that it was included in a second note given by tbe defendant, wbicb was then outstanding.
    Tbe plaintiff recovered a judgment in tbe justice’s court from wbicb tbe defendants appealed to tbe county court, where a new trial was bad and a verdict rendered for tbe defendants.

      George H. Carpenter, for tbe appellants.

      James L. Stewart, for tbe respondent.-
   Per Curiam:

There were two issues of fact in this case, and as to both tbe evidence was in sharp conflict. If effect be given to tbe proof submitted on the part of the defendant, the note in suit was (1) void for usury, and (2) canceled by renewal, or rather superseded by being incorporated into another note given by the defendants to the plaintiff, which latter note remained outstanding. On the other hand, if effect should be given to the plaintiff’s proof, both defences were completely answered. Thus the case was a very proper one for determination by a jury ; and inasmuch as it cannot be shown that the conclusion is wrong, without rejecting the proof in its support, the verdict should not be disturbed.

It is insisted, however, first, that even admitting that the note in suit was usurious and void, still the recovery should have been allowed on the original untainted and valid indebtedness; and as to the second defence, that the note given hi renewal being also void for usury would not defeat the action. But neither of these points was raised on the trial, hence they cannot be now urged on the appeal. Notwithstanding this difficulty, let us examine the case in another view. The issues were, in fact, made upon the right of recovery upon the note of March 24, 1877. On this note, and on this only, the plaintiff counted in his complaint. So long as the pleading remained unchanged he could not recover on any other or different cause of action. A resort to the original indebtedness as a ground of action would necessitate a change in the pleading. This was not asked for at the trial, if indeed it could have been permitted, the issues having been formed in a justices’ court. The plaintiff’s counsel refers us to cases where recoveries have been allowed for original indebtedness, notwithstanding notes had been given therefor ; but in all these cases the original indebtedness was brought into the pleading as a ground of recovery. In the case of The Winsted Bank v. Webb (39 N. Y., 325), the plaintiff counted on the original notes as well as on those given in renewal, claiming, however, to recover the original indebtedness with interest. In the Farmers and Mechanics' Bank v. Joslyn (37 N. Y., 353), which was a case in equity, issues were settled for trial, and they were so settled as to bring into the record the original indebtedness as the basis of the claim sought to be enforced. This was equivalent to counting upon the original indebtedness. In Tifft v. Moor (59 Barb., 619), the case was tried without objection as if the action had been based on the original note, making it to stand as to the right of recovery like tbe Winsted Bank v. Webb, supra. The court here remarked that, had the objection been raised at the trial, it might have been obviated by an amendment of the pleading, thus recognizing the necessity of bringing into the pleading the ground of action when resort must be had to the original indebtedness in order to sustain a recovery. In fact, however, the question was not in Tifft v. Moor, because the jury found that the note given in renewal and counted on was free from the taint-of usury. In the case in hand the plaintiff neither counted on the original indebtedness, nor did he on the trial claim to recover on that, but fought out the case on his right to recover on the note given in renewal. On this note alone he planted himself in his pleading, and at no time in the progress of the trial did he claim to recover on any other or different cause of action. He can make no other claim now on this appeal in considering his motion for a new trial.

As to the position of the plaintiff’s counsel that the note given in renewal of the one in suit was usurious, hence offering no impediment to a recovery although yet outstanding, the plaintiff is not at liberty to maintain. The usurer cannot set up his own turpitude to his advantage. It is the victim, not the usurer, who may claim protection under the statute. (The Nat. Bank of Gloversville v. Place, 15 Hun, 564.)

The order appealed from must be reversed, and the motion for a new trial denied, with costs of the motion and of the appeal.

Present — LeabNed, P. J., Bocees and BoabdmaN, JJ.

Order reversed, and motion for new trial denied, with costs.


author:
Bockes, J. :
      Learned, P. J. :

text:
    THOMAS B. HOLCOMB as Administrator etc., of HOMER HOLCOMB, Deceased, Appellant, v. FRIEND H. HOLCOMB, Respondent.

      Code of Civil Procedme, §829 — when the next of kin may testify as to personal transactions and communications of the deceased — right of the appellate court in equity cases to disregard en'ors in excluding evidence.

    In an action by an administrator to set aside an assignment of a mortgage made » by his intestate, the next of kin, though interested in the event of the action, and claiming their rights through the plaintiff, are not prohibited, by section 829 of the Code of Civil Procedure, from testifying, in his behalf, as to what they had noticed and observed in the conduct and actions of the intestate, and as to persona,! transactions of his with which they had no connection, and also as to communications made by him to others in their presence without any inducement, suggestion or participation on their part.

      Quaere, as to the right of an appellate court to disregard, in equity cases, the erroneous exclusion of evidence offered by the appellant, on the ground that the result would not have been changed had such evidence been received.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.

      Griswold & Crowell, for the appellant.

      King & HallooJc, for the respondent.
   Bockes, J. :

This action was brought to set aside an assignment of a bond and mortgage, on the ground of the incapacity of the assignor to make it, and also of undue influence exercised upon him by the defendant, the assignee.

The action is by the administrator of the assignor, Homer Holcomb, who died at an advanced age at the residence of his son, the defendant, with whom he had lived for’ several years preceding. The deceased left him surviving eight children, including the plaintiff and defendant, and also five grand-children, the children of a deceased daughter. The bond and mortgage in controversy constituted all, or substantially all the property held by the deceased at the time of its transfer. The assignment bore date April 1, 1875, ten months prior to the intestate’s death, but was witnessed and its execution was acknowledged before an officer only a few hours before his decease. No money or other consideration passed at this time. On the question as to the intestate’s incapacity to make the assignment, and as to undue influence exercised over him by the defendant, much evidence was given by the respective parties ; and it is very obvious, even on the general facts as disclosed by the proof, that a serious question was presented for determination by the trial court. Now, even if it be admitted that the preponderance of the proof submitted was in favor of the assignor’s capacity, and supported the defendant’s position that the transfer of the bond and mortgage was his free, unbiased act and deed, still a question of law upon the rejection of evidence is here presented for our consideration which, if determined in favor of the appellant, will .require a new trial. Evidence offered by the latter was excluded against his exception. If that evidence bore upon the question of the assignor’s incapacity to do the act challenged by the appellant, or upon the question of alleged undue influence in that regard, he was entitled to have it considered. He may insist that it was by reason of the absence of the excluded evidence that his adversary was enabled to hold the preponderance of proof against him. Ifc will not be held in a case like this, where the decision rests upon proof, other than that which is absolutely conclusive against thé party, that he is not injured by its exclusion. If the evidence offered by him be competent he is entitled to the benefit of it; and its rejection becomes substantial error. The rule in this regard is the same in an equity case as in a case at law. The idea of a different rule, recognized in some cases, .has recently received rebuke. In Hobart v. Hobart (62 N. Y., 81), which was an equity case wherein the questions at issue were precisely the same as those hero presented on the pleadings, it is said : “ The case stands for review here in respect to exceptions to decisions upon such questions” (questions as to the admission or rejection of evidence), “ substantially the same as an action at law when tried in the same manner.” So it was held in Foote v. Beecher (8 Weekly Dig., 520), that there was no distinction • between legal and equitable actions in respect to tbe availability of exceptions to the admission or rejection of evidence. These cases have very much limited the eflect of some former decisions, if, indeed, not absolutely overruled them. (Forrest v. Forrest, 25 N. Y., 501; Clapp v. Fullerton, 34 id., 190 ; Church v. Kidd, 3 Hun, 254; Platt v. Platt, 2 Sup. Ct. Rep. [T. & C.], 25. See also MSS. opinion in Schoonmaker v. Wolford, decided at this term, wherein section 1003 of the Code of Civil Procedure is referred to and commented on.)

Now, on the trial of this case, with a view to show the intestate’s incapacity and inability to resist sinister influences, vaiious questions were put to witnesses interested in the event of the suit as his next of kin. The questions were objected to, and excluded under section 829 of the Code of Civil Procedure, because, as was held they called for personal transactions or communications between the witnesses and the deceased. The questions were of two classes — one as to what the witnesses had observed in the actions and conduct of the intestate bearing on his mental condition, with which actions and conduct the witness had no connection other than to notice or observe them — the other as to 'remarks and expressions of the intestate made by him when talking to himself, and in conversations with other persons in the presence of the witness, but in which conversations the latter took no part. In ruling upon these questions, the learned judge stated the ground of his decisions to be that, “as the witnesses must, in answering them, detail impressions made upon their minds by the action, conduct and appearance of the deceased, . # * * they must * * * be deemed personal communications between the deceased and the witnesses ; ” and, therefore, inadmissible under section 829 of the Code. He, therefore, excluded both classes of questions. Was this ruling sound in law ? Section 829 of the px-esent Code is a substitute for section 399 of the former Code; and while it has effected or introduced some change (Allis v. Stafford, 14 Hun, 418) noire was' intended or made as to what were to be deemed personal transactions and communications between witnesses and deceased pei’sons. As regards this point section 829 has the same meaning as had the former section. We may then turn to the decisions under section 399 of the former Code for the true exposition of section 829 of the present Code. The point of inquiry now before us is, whether the excluded questions called for personal transactions or communications between the witnesses and the deceased. The current of reasoning and authority is that they did not. In all the cases where this subject has been considered, a distinction has been noted between those instances where the transaction sought to be proved has existed independent of any action or interference of the witness, and without any inducement or participation on his part, and those with which he was in some way connected. If the transaction be one wholly independent' of the witness, neither induced by his solicitation or supported by his action, one with which he in no way interferes or joins, it cannot be one of a. personal character as regards him. So it cannot be a personal transaction between him and the actor. A transaction is said to be ‘ ‘ the act of performing,” and transactor is 11 one who transacts or, conducts any business or affairs.” A transaction necessitates a transactor ; and a personal transaction between two persons necessarily implies participation in it by both. So a personal communication between persons has been held, within the purview of section 399, to mean remarks and the imparting of ideas between persons who were addressing each other. It was held in Simmons v. Sisson (26 N. Y., 264, 277), that the prohibition declared by section 399 did not extend to conversations between the deceased and third persons, which were overheard by the witness, and it was there said that its “ language has reference only to business done or negotiations carried on in person between the deceased and such party.” It will be observed that this exposition of the section brings transactions and communications -within the same rule of construction ; that is, that the prohibition extended to such transactions and communications as were carried on in person between the deceased party and the witness, and to both transactions and communications alike. This decision received sanction in Cary v. White (59 N. Y., 336), where it is also said that the prohibition did not exclude matters not personal between the witnesses and the deceased. (See also Hildebrant v. Crawford, 65 N. Y., 107; Kraushaar v. Meyer, 72 id., 602 ; Head v. Teeter, 10 Hun, 548 ; Kale v. Elliott, 18 id., 198.) If it be competent to prove what a person heard, it must be competent (the surrounding circumstances being.the same) to prove what he saw. (Franklin v. Pinkney, 18 Abb., 186.) The rule of construction above suggested receives support in Lobdell v. Lobdell (36 N. Y., 333); S. C. (33 How., 347).

In conclusion then we are of the opinion that the next of kin of an intestate, although interested in the event of the suit, and also deriving their rights from him, through the plaintiff as administrator, may testify concerning the transactions of the deceased with which they had no personal connection ; and also as to his communications in which they did not personally participate or take part. They could speak in regard to all facts within their knowledge bearing upon the issues, except those excluded by section 829, and that section only disqualified them from testifying to such transactions and communications as were had personally between them and the deceased. What they noticed and observed in his conduct and action with which they had' no connection, and his communications by speech to others in their presence without inducement, suggestion or participation on their part, it was competent for them to state. It follows, therefore, that the questions above referred to were erroneously excluded.

It is suggested that the result must have been the same had the ruling here been the reverse of what it was. This suggestion has been already above answered ; but we may give our conclusion on this point confirmation by referring to the closing sentence in Hobart v. Hobart (supra). Judge Church, speaking for the court, says : “ It is urged that these decisions would not have changed the result. This may be so ; but we have no legal means of so determining. When the admission or rejection of evidence could not legitimately affect the result, the error will be disregarded ; but it cannot be seen what facts might have been proved, nor can we say what influence such facts might have had upon the court who tried the. cause.” The conclusions above reached mil necessitate a reversal of the judgment.

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

Learned, P. J. :

I concur, but do not admit that in an equity case evidence improperly admitted requires a new trial. (See New Code, § 1003.)

BoardMan, J., concurred with LearNed, P. J.

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

      Post p. 166.


author: Bockes, J:

text:
    WARREN L. SCOTT, Respondent, v. JAMES L. MEEKER, Appellant.

      Burned cheek— bond of indemnity need not be given to the d/rawer— 2 B. /S'., 406, §§ 75, 76, only appliable to lost checks — Presentment of check excused, when impossible — A subsequent promise to pay is a waiver of a failure to present a check — A drawer of a check is not discharged unless he is injured by a failure to present it.

    The defendant, being- indebted to the plaintiff on a promissory note, mailed to him his check on a bank for the amount thereof, on receipt of which the plaintiff returned and surrendered the said note to the defendant. On the morning of the day after the check was received it was accidentally burned and destroyed. The defendant on being informed of its destruction promised the plaintiff to pay him, but subsequently refused so to do.
    In this action brought by the plaintiff to recover the amount due to him, held, that he was not required to tender to the plaintiff a bond of indemnity, as the statute requiring such a bond (2 R. S., 4Ü6, §§ 75, 76) only applies where a check or note has been lost, and not where it has been destroyed.
    That as the destruction of the check rendered it impossible for the plaintiff to present it for payment, he was excused from so doing.
    That in any event the subsequent promise of the defendant to pay the check when informed of its destruction was a waiver of any defence that might arise from the failure of the plaintiff to present it for payment.
    That as the check did not operate to discharge the debt evidenced by the note until it was paid, laches of the plaintiff in presenting it for payment would not discharge the defendant from liability for the debt, unless it was shown that the defendant was injured by such laches.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      William J. Palmer and F. Jacobs, Jr., for the appellant.

      W. Foumans. for the respondent,
   Bockes, J:

The facts of this case material to be noted are as follows : The defendant was indebted to the plaintiff on a promissory note for $55.13, made by the former to the latter; for this indebtedness the defendant sent to the plaintiff his check on the Delaware National Bank at Delhi; N. Y., and the note was surrendered and delivered np to the defendant; the check was forwarded to the plaintiff by mail, and was received by the latter in the evening ; on the following morning it was inadvertently and by accident burned up and thus destroyed ; the plaintiff informed the defendant of the fact, and thereupon the latter, with knowledge of all the facts promised the plaintiff to pay him; after-wards he refused to do so, and this action was brought. Some other facts were averred in the pleadings and were proved or attempted to be proved, but they are wholly unimportant, and need not bo considered on this appeal.

The facts above detailed were all well proved on the trial, and came within the scope of the pleadings. The referee has in substance certified them as established; and they seem to be well established by the evidence. Let us examine the question of law applicable to them. The defendant contends, in the first place, that no recovery could be had without a tender to the plaintiff of a bond of indemnity against the destroyed check. This objection is not well taken. The statute which requires the giving of a bond of indemnity, in case of the non-production of a bill or note, is limited to cases of lost instruments, and has no application to the case of a destroyed check or note. (2 R. S., 406, §§ 75, 76; Des. Arts. v. Leggett, 16 N. Y., 584; Streever v. Bank of Fort Edw., 34 id., 415; Wright v. Wright, 54 id., 441.) If destroyed the instrument can never be produced or used to the injury of the drawer. The check in this case having been burned up, and thus destroyed before it passed from the hands of the payee, the giving of a bond of indemnity was unnecessary. It is next urged that there could be no recovery in this case without presentation and demand of payment of the check at the bank on which it was drawn. This was rendered impossible by its destruction, which was in fact without the plaintiff’s fault. He was not bound to perform an impossibility, hence was excused from this duty. (Schofield v. Bayard, 3 Wend., 488; Windham Bank v. Norton, 22 Conn., 214; Beale v. Parrish, 20 N. Y., 411.) In the last case cited the court says, in speaking upon this subject, that the law will go no further than necessity requires. In the Connecticut Case it was held that non-presentation was excused by any inevitable or unavoidable accident not attributable to the fault of the holder, provided he made a presentment as soon as he was able. So in the third Wend. Case, it was held that where there was an impossibility to present the bill on the day it fell due, owing to unavoidable accident, and the holder is not in fault for the delay, a subsequent presentment will be good. Here the impossibility has not been removed, even to the present time ; so the holder was guilty of no laches on account of the omission to make presentment. The delivery of the check to the plaintiff was subject to the condition that the latter should have the opportunity to make presentment. He had no opportunity to do so on the evening of its reception through the mail, and he was deprived of its possession on the following morning, before he could do so, by an accident occurring without his fault. In this view of the case the defendant did not, in fact, put it in the plaintiff’s power to make presentment, hence cannot urge laches against him for his omission.

But the decision of the case does not necessarily rest upon these considerations. The promise to pay subsequently made by the defendant to the plaintiff relieves the case from all difficulty. The plaintiff testified that he wrote to the defendant and informed him of the loss of the check, and asked for the amount of it; that in reply the defendant wrote him as follows : “ Your favor red’d. I will pay that in a few days. Please do not make any costs. Yours resp., J. L. Meeker.” Now it seems that the defendant made this promise to pay the check with knowledge of the facts attending its non-payment and non-presentment at the bank. It is well settled law that a promise to pay made by a drawer or indorser of a bill or note after due, with knowledge of its non-protest, will cure the laches. (Reynolds v. Douglass, 12 Peters, 505; Thornton v. Wynn, 12 Wheat., 183; Sigerson v. Mathews, 20 How. [U. S.], 496; Meyer v. Hibsher, 47 N. Y., 265; Tebbetts v. Dowd, 23 Wend., 379; Brooklyn Bank v. War ing, 2 Sandf. Chy., 4; Lake v. Artisans’ Bank, 3 Keyes, 278; Buckley v. Bentley, 42 Barb., 650; Edw. on Bills and Prom. Notes, 650; Ross v. Hurd, 71 N. Y., 14.)

The principle on which the promissor is held hi such cases is, that his promise is an admission that the holder has the right to resort to him, and that ho has suffered no loss for want of demand and notice of non-payment. It was said in the last case cited that a promise, made under these circumstances, affords the clearest evidence that the promissor does not intend to take advantage of the laches of the holder of the bill or note, and the law, without any new consideration moving between the parties, gives effect to the promise. It seems, therefore, that the defendant was bound by his subsequent promise to pay, even if it be admitted that the plaintiff was guilty of laches in omitting to make presentment and demaud of payment of the check.

There is still another ground ón which the decision in this case may stand. A check drawn on a bank by a depositor on his bank account has not all the attributes of an inland bill of exchange. These checks are employed under the usages of business as a matter of convenience to effect payment by the drawer of his debt to the payee. They do not effect the purpose of their delivery until paid, and are given, rather as an evidence of the drawers’ indebtedness than otherwise, without any intention of imposing upon the payee and holder many of the obligations which attach to ordinary commercial paper. Some of the distinctive features between a check drawn by a depositor upon his bank account, and a bill of exchange were noted in Merchants’ Bank v. State Bank (10 Wall., 647), one of which was that the drawer was not discharged by the laches of the holder in omitting presentment for payment, unless it be shown that he sustained some injury by the default. The distinction here alluded to is recognized in Espy v. Bank of Cincinnati (18 Wall., 620), and also in Morse on Banks and Banking, 257, ot al. (second edition). It is laid down in the latter book that .the drawer of a check is not discharged by any length of delay in presentment, unless ho can show actual loss or injury to himself by reason of such delay. Actual loss to the drawer of a check on a bank by reason of its non-presentment for payment seems to be the test, in determining the question of his discharge from liability growing out of the delay. (Morse on Banks and Banking, 281 [2d ed.].) It was said in Brust v. Barrett (16 Hun, 412), per Smith, J., that “ where no change of circumstances has occurred in the intermediate time, between the drawing and presentment of the check, materially affecting the rights or interests of the drawer in respect to the drawee, the drawer will, in general, remain liable.” Now, the check in tiffs case did not operate as a dischai-ge of the debt evidenced by the note, but was evidence of that indebtedness. It could only operate as payment of the debt when paid. The defendant was therefore liable for the debt evidenced by the note, not paid by the check, and a recovery might be sustained therefor on a surrender of the check, or what would be its equivalent, showing its destruction. Of course, had the plaintiff so used the check or so neglected to use it that damages had resulted to the defendant from his acts or negligence in that regard, the case would be different. But not only is there here no proof of such injury to the defendant, but it is made entirely clear by the evi dence that the defendant has suffered no loss from the omission to present the check for payment. He cannot, therefore, insist upon the plaintiff's laches as a defence. The debt remains unpaid. No reason exists in justice or equity for its non-payment.

The judgment should be affirmed, with costs.

Present — LeaeNed, P. J., Bockes and Bo arum AN, JJ.

Judgment affirmed, with costs.


author: Bockes, J. :

text:
    SARAH A. SCHOONMAKER AND ZADOC B. SCHOONMAKER, Appellants, v. GEORGE WOLFORD, ELISHA WOLFORD AND RALPH WOLFORD, Respondents.

      Probate of will— an heir cannot testify as to personal transaction with the deceased, as against an executor• propounding the will f or probate— Code of Civil Proce-dwre, § 829, applicable to surrogates’ courts — When an appellate court cannot disregard error’s, in acbmitting evidence in an equity case — when an error• will be considered though not argued by counsel.

    One Cornelia "Wolford died leaving' a will by which she devised all her property to Sarah A. Schoonmaker, and appointed the said Sarah and her husband executors thereof. An application made by the executors for the probate of the will was opposed by the three brothers of the deceased, her only heirs-at-law and next of kin, on the ground that she was of unsound mind and incapable of making a will. Up°n the hearing one of the brothers was allowed by the surrogate, against the objection and exception of the proponents of the will, to testify as to personal transactions had with the deceased. Subsequently the other brothers were allowed to give similar testimony, without any specific objection to it being made or exception to it taken by the said imoponents.
    Upon an appeal from a decree of the surrogate refusing to admit the said will to probate, held, that section 829 of the Code of Civil Procedure forbidding any person interested in the event of an action or special proceeding from testifying in his own behalf as to any personal transactions or communications with the deceased, as against his executor, or any person interested through or under him, was applicable to surrogates’ courts.
    That although technically the proponents were neither executors of or legatees under the will until it was admitted to probate, yet, as it was well executed as regarded all legal formalities, they held before the surrogate the position of executors and legatees, and were protected by the said section.
    That the evidence was inadmissible under the said section, and that it should have been rejected.
    That the surrogate having ruled, when the objection was made to the testimony of the brother first called, that such testimony was admissible, the proponents were not bound to renew the objection and exception each time that similar testimony was given by the other brothers.
    That the erroneous admission of the evidence could not be disregarded, as the court could not say that such evidence did not affect the result in this case.

      Quwre, as to whether the doctrine that the appellate court might, in its discretion in equity cases, disregard errors in the admission of evidence, if satisfied that the findings of fact were supported by other and sufficient proof, has not been overturned by the decision of the Court of Appeals in Foote v. Beecher\

    When the General Term will consider an error committed upon the trial, to which an exception was duly taken though not argued on appeal, considered.

      Appeal from a decree of the surrogate of the county of Schoharie, refusing to admit to probate an instrument purporting to be the last will and testament of one Cornelia Wolford, deceased, on the ground that she was not at the time of executing it competent to devise real and personal estate, and was under an insane mental delusion.
    The deceased died at the age of sixty-three years, never having been married, and leaving three brothers her only heirs-at-law and next of kin, who opposed the probate of the will.
    By the alleged will the deceased devised all her property, both real and personal, to Sarah A. Schoonmaker, one of the appellants herein, and appointed her executrix, and her husband, the other appellant herein, executor thereof.

      W. O. Lcrnont, for the appellants.

      Krum <& Grant, for the respondents.
   Bockes, J. :

We are met at the threshold in the examination of this case with a question of evidence which we think was erroneously disposed of in the court below. The heirs-at-law and next of kin of the testatrix, who claimed the property of the deceased in hostility to the appellants, the executor and executrix named in the will, the latter being also legatee and devisee thereunder, were allowed, against objection, to testify as to personal transactions and conversations between them and such deceased party. Such evidence was inadmissible under section 829 of the Code of Civil Procedure, which section takes the place of section 399 of the former Code. This section has application to sui’rogates’ courts and proceedings therein. (See Code ; also, Angevine v. Angevine, 48 Barb., 417.) It cannot be successfully claimed that the incompetent evidence was unmfiuential; for the respondents’ case,rests very much, if not entirely, upon the effect given it. Without the evidence of the brothers of the testatrix, the decree appealed from is without any substantial support. But it is urged that this exception covers only the testimony of one of the three witnesses, and that the respondents’ case is well established by the evidence of the other two, supplemented by the unquestioned proof from other persons. This is hardly a fair construction of the ruling of the surrogate. When the examination was first brought to personal transactions between the witness and the deceased, the objection was interposed to this class of evidence. The objection was overruled and an exception entered to the ruling. The decision was to the effect that such evidence was admissible. It was not necessary to a review of the question thus presented and determined to repeat the objection, after a ruling had been given upon it and an exception had been interposed. (Hoburt v. Hoburt, 62 N. Y., 83.) The principle right or wrong 'was settled by the ruling and that became then the test of error.

But even if the exception went only to the testimony of one of the brothers of the testatrix, the error could not be disregarded, although other witnesses testified substantially to the same facts as those to which he gave evidence. The objectionable testimony from him bore directly upon the subject-matter of the issue, and the court cannot say, with certainty, that it was without influence upon the result. Indeed, the presumption is quite the other way in this case, inasmuch as the other evidence was of no higher grade, nor was it entirely conclusive in its abundance or character.

It has been supposed that the court, in its discretion, might disregard errors in the admission of evidence, in equity cases, if the conclusion should be reached that the finding of fact was supported without considering the proof improperly admitted. (Forrest v. Forrest, 25 N. Y., 501; Clapp v. Fullerton, 34 id., 190; Church v. Kidd, 3 Hun, 254; Platt v. Platt, 2 S. C. R.. [T. & C.], 25.) But these cases are seriously shaken by the late decision in Foote v. Beecher (8 Weekly Dig., 520), in the Court of Appeals, where it was held that in case it could not be affirmed that the improper evidence was uninfluential upon the result, the error of its admission could not be overlooked ; and, further, that in this respect ther-e was no distinction between actions of a legal and those of an equitable nature. (See this case in Sup. Ct., 12 Hun, 374.) So, too, it was decided in Hobart v. Hobart (62 N. Y., 84), that where it could be seen that the error in the admission or rejection of evidence could not legitimately affect the result, it might be disregarded. The rule above alluded to, supposed to be applicable to equity cases, has been adopted into the Code of Civil Procedure (section 1003). This section relates only to equity cases, as appears from the text, and also from the codifier’s notes, and is but declaratory of a rule already laid down by the courts. Taeu comes the decision in Foote v. Beecher, holding the rule as to the admission of improper evidence to bo the same in equity cases as in actions at law. Foote v. Beecher was an equity action, yet the decision of the Supreme Court was reversed on this precise point, and that, too, since section 1003 was adopted, which, as is above suggested, was but declaratory of the previous rule in equity suits. But we are here relieved from the necessity of determining the application of the rule under consideration, now adopted into the Code, inasmuch as we do not deem this to be a case wherein it can be fairly said that the erroneous evidence admitted should not, in view of other unobjectionable proof, affect the result.

It is urged that section 829 of the Code of Civil Procedure has no application here, because the proponents, present appellants, were neither executors, administrators, legatees or devisees, until the will was established and admitted to probate. This suggestion is without force. They were named in the will as executor and executrix, and the executrix was a legatee and devisee thereunder. The will was well executed as regards all legal formalities. Their rights under the will were, prima facie, established when the objectionable evidence was offered. They held before the surrogate the position of executor and executrix;, legatee and devisee. The heirs-at-law and next of kin, who were excluded by the provisions of the will from all rights in the decendent’s property, were seeking to defeat the claims of the former under the instrument. In this view they were persons “ interested in the event ” of the proceeding. The proponents claimed under the provisions of the will ; the contestants in hostility to the instrument, hence they could not be examined in thexr own behalf in regard to personal transactions with the testatrix. They came both within the letter and spirit of the law. But if clearly within its reason and spirit it was sufficient. (Mattoon v. Young, 45 N. Y., 696; Van Trul v. Van Trul, 57 Barb., 235; Timon v. Claffy, 45 id., 438; Howell v. Taylor, 5 W’kly Dig., 234.) The evidence of the brothers of the deceased as to the personal transactions with the latter bearing on the issue was erroneously admitted.

In the examination of this question of evidence we have been ■somewhat embarrassed, by the fact that the subject is not even alluded to in the brief and printed points of the appellant’s counsel, save indirectly. As a general rule, we are disinclined to consider a question not urged upon our attention. It is true that on the oral argument the point was put forward, but with little apparent vigor. But there stands the exception in the record in full force. It has not been waived as we can find. If this court should see fit to ignore or disregard the exception, the question would still remain open in case of an appeal to the Court of Appeals, and might be there urged. A similar difficulty was considered in (Cohn v. Goldman (8 W’kly Dig., 493; 76 N. Y., 284) in the latter court, where it was held that if an exception presents clear error and one of materiality, which may have influenced the result of the trial, an appellant may bring it to notice on its final appeal, although not raised at General Term. Thus, it seems, we are bound to consider the error; and, as above suggested, it seems to be fatal to the decree brought before us for review.

It should also be further remarked that if the difficulty above considered were out of the way, we should feel that we were required to reverse the decree of the surrogate on the proof submitted, and send the case to a jury on issues to be settled for the purpose of trial in that form, under the binding force of the decision in Coit v. Patchen (9 W’kly Dig., 15), reported since this case was argued before us. That case, in most of its leading features, is quite like this in hand. Wherein it differs from this, the difference is iii favor of the' appellants here. (See also Wait v. Breeze, 18 Hun, 403.) But as we have concluded that the case should go to a jury on the facts, we deem it best to omit all discussion of it on the merits, to the end that the trial may not be prejudiced by observations which may not have pertinency on its possibly altered condition, as it may be made on a retrial.

The decree appealed from must be reversed, as well for the error in the admission of evidence, as also upon questions of fact; and issues must be awarded to be tried at the circuit, which issues may be settled by the Special' Term of this court on application by either party to this appeal. The costs of this appeal to abide the event of the proceeding. (Van Pelt v. Van Pelt, 16 How., 299.)

Decree reversed, issues to be settled at Special Term, costs of of appeal to abide the event.

BoaedmaN, J., concurred.

Present — LearNed, P. J., Bocees and BoardmaN, JJ.

Decree reversed, issue awarded to be settled at Special Term, costs of appeal to abide event. Order to be settled by Bocees, J.


author: Bockes, J.;

text:
    EDWARD A. GALLUP and others, Superintendents of the Poor of Delaware County, Appellants, v. E. S. BELL as Overseer of the Poor of the Town of Oneonta, Otsego County, Respondent.

      Swperintendents of the poor ■— can only furnish temporary relief to paupers at the poor-house — double costs, when allowed,.

    Appeal from a judgment of tbe County Court of Otsego county, affirming a judgment of a justice’s court, in favor of tbe defendant.
    Tbe action was brought by tbe plaintiffs,' as superintendents of tbe poor of tbe county of Delaware against tbe defendant, as overseer of tbe poor of the town of Oneonta, to recover for tbe support and maintenance of an alleged pauper, claimed to have been improperly removed from tbe town of Oneonta, Otsego county, to tbe town of Davenport, Delaware county, with tbe intent of making tbe county of Delaware chargeable with his support.
    Tbe court, at General Term, after bolding that tbe plaintiffs bad failed to prove that they were superintendents of tbe poor of Delaware county, proceeded.
    “ There was another difficulty in the way of a recovery in this action. The plaintiffs failed to show any legal expenditure of money for the support of the alleged pauper, or that be was legally supported as a pauper in the .county of Delaware. There was a poor-house in that county where paupers were by law required to be suppoiled. There is no question here, arising from the right of towns to afford, through their officers, temporary relief to paupers. Such relief was not afforded the pauper in this case. Besides, the superintendents of the poor of the county have no power to expend money for the temporary relief of. the poor. This right or duty devolves upon towns and their officers. Nor can the superintendents afford support to paupers elsewhere than at the poor-house, or place provided for that purpose under the direction of the board of supervisors. These questions were discussed at length, and were determined in The People ex rel. Burfee v. The Commissioners of Emigration (27 Barb., 562). The pauper in this case was not supported at the poor-house iu Delaware county, and the plaintiffs had no authority to provide support for him elsewhere.
    “ It is urged that the statute makes it the duty of the superintendents to give support to the pauper “ where he may be," and that here the latter was in the town and was there supported. The statute is that “ the pauper so removed, brought or enticed shall be maintained by the county superintendents of the county where he may be,” that is at the poor-house in such county, at which place only can these officers afford maintenance to the poor. The plaintiffs failed to establish a right of recovery. The judgment appealed from should be affirmed, with costs; and, as it seems, the respondent is entitled to double costs, inasmuch as the action was brought against a public officer.” (2 R. S., 617, § 24; Búrlele v. Luce, 1N. Y., 239; Bartley. Gilman, 18 id., 260.)

      A. Raymond Gibbs, for the appellants. Melville Keyes, for the respondent.
   Opinion by

Bockes, J.;

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with double costs to respondent.


text:
    HELEN CUYLER as Administratrix, etc., Respondent, v. NICHOLAS H. DECKER, Appellant.

      1'Negligence — when one placed in imminent peril is not liable for an error of judgment — Res gestee — what eeidem-ce admissible as part of.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action ivas tried.

      The action was brought by the plaintiff as administratrix to recover the damages given by the statute to the widow and next of Mn of her intestate, whose death was alleged to have been caused by the negligence of the defendant’s servant.
    The defelidant, at the time of the occurrence which caused the death of the plaintiff’s intestate, was managing and conducting, on his own account, a horse-railroad ; in which management and conduct he became and was a common-carrier of passengers for hire. This road crossed a railroad operated by steam power at a point near the village of Glovcrsville ; the tracks of both at this place being on the same grade. At the time of the accident the deceased was a passenger in one of the defendant’s cars, and when very near or upon the crossing, a locomotive, with a train attached, was heard and seen approaching on the railroad. A collision seemed to be inevitable, and was in fact imminent; whereupon the deceased sprang from the car in which he had been seated, and fell or was thrown between the lines of the road-track, where he was struck by the locomotive and killed.
    The court, at General Term, said : “The evidence was abundant to raise a question of fact for the jury, as to the negligence of the driver in charge of the defendant’s car. The jury were well authorized to find, from the proof submitted, that the driver carelessly, not to say recklessly, placed his passengers in a position of imminent peril. There was evidence tending to show that the railroad employees gave the usual signals of warning as the engine and train approached the crossing; notwithstanding which, and without exercising even ordinary caution in making observation himself, as he should have done, the driver of the horse-car continued on heedless of the 'danger he incurred.”
    “ It is not claimed in the brief and points of the defendant’s counsel that a proper case was not made for the jury on this branch of the case. But it is insisted that the deceased lost his life by reason of his own carelessness and improper action in springing from the car ; that had he remained seated he would not have been injured. It seemed that he erred in judgment and made a fatal mistake in jumping from the car. He was not, however, bound to the exercise of any better judgment or greater degree of caution than would be required of a prudent man when placed in a similar condition of peril, and it was held to be a sound rule of law, applicable to such cases, that an instinctive effort to escape a sudden impending danger, resulting from the negligence of another, will not relieve the latter from liability, and that delay in an effort to escape, until the exact nature and measure of danger was ascertained, would not be required. (Coulter v. The Am. M. U Ex. Co., 56 N. Y., 585.) This sound principle has been recognized and reiterated in many cases. (Duel v. N. Y. C. R. R. Co., 31 N. Y., 314; Twomley v. The C. P. 1V. and JE. R. R. R. Co., 69 id., 158; Dyer v. R. R. R. Co., 71 id., 228; Voak v. The IT. C. R. R. Co., 7 Wkly. Dig., 416.) That .the party makes a mistake, and would have escaped injury had he remained' quiet, will not bar his action. (See above cases.) The question is whether his action was in accordance with common prudence, considered with reference to the circumstances of peril with which he was surrounded, and, as was said in one of the cases cited, the danger being imminent, the law does not demand that accuracy of judgment which would be required under other circumstances. The case was, very properly, for the jury on the proof, and the rules of law, applicable to it, were clearly and correctly stated by the court in the charge. * *
    “ The plaintiff’ was allowed to show, against objection, that there was a good deal of conversation among the passengers in the horse-car at the time of the accident. The evidence was competent as a part of the history of the occurrence. So it was held in Twomley v. The C. P. JST. and P. R. R. R. Co. (69 N. Y., 158) that evidence of the action of the other passengers was competent as part of the res gestee, and as evidence of what was deemed prudent by others in the same situation. The evidence was competent and was properly •admitted.”

      Lamed, Warren & Ethridge, for the appellant. Dudley, Den-nison & Dudley, for the respondent.
   Opinion by

Bockes, J.;

Learned, P. J., and Boardman, J., concurred.

Order affirmed, with costs.


author: per Curiam.

text:
    RICHARD McMICHAEL, Respondent, v. CHAUNCEY KILMER, Appellant.

      A motion made for the purpose, simply, of obtaining the opinion of the court — will not be entertained.

    Appeal from an order made at Special Term, denying a motion made by the defendant.
    An affidavit, made by one of the attorneys for the defendant, showed “ that judgment dismissing the complaint, with costs, has been duly entered up in favor of the defendant, in the Saratoga comity clerk’s office, where the judgment-roll is filed; and the same was duly docketed in said “office on the 22d day of April, 1879, for $697.11; that afterwards an execution on said judgment against property was duly issued to the sheriff of Saratoga county, where the said McMichael then resided and still resides, and the same was afterwards returned wholly unsatisfied; that thereupon the defendant’s attorneys issued an execution against the person of the said McMichael on said judgment, for said costs, to the sheriff of Saratoga county, and that the time for its return expires on the twenty-third instant. Deponent further says, that as he is informed and believes, plaintiff’s attorney, J. R. Putnam, Esq., claims that an execution against the person of said McMichael cannot properly issue in said action, inasmuch as no order to arrest was ever made and served in said action ; and the defendant Kilmer therefore desires to have the question passed upon by the court before taking the responsibility of arresting the said McMichael and committing him to the county jail on said execution, and being liable for false imprisonment in case it shall be determined that an execution against the person is not properly issuable in said action, to collect said costs.”
    Upon this affidavit an order was made requiring the plaintiff to show cause why an order should not be made in said action declaring that said execution so issued against the person of said McMichael was properly issued, and directing the sheriff to execute the same, and why such further or other order should not be made as may be just.

      The Special Term denied the motion on the merits.
    The court, at General Term, said : “In affirming this order we express no opinion on the question whether or not an execution against the person was properly issued. It is enough to say that in such asi action as this a motion cannot be heard which does not ask the court to do anything, but only to express an opinion as counsel.”

      A. Pond, for the appellant. John JR. Putnam, for the respondent.
   Opinion

per Curiam.

Present — LearNed, P. J., and BoardmáN, J.; Bocees, J., taking no part.

Order affirmed, with ten dollars costs and printing disbursements.


author: Barnard, P. J. :

text:
    WILLIAM H. DUNNING and others, Surviving Trustees, Etc., under the will of JACOB A. ROBERTSON, Deceased, Appellants, v. NANCY FISHER and others, Respondents.

      Mireclosure —failure to serve the mortgagor — purchaser entitled to the rights of a mortgagee in possession — Covenant by a grantee, to assume a mortgage — what consideration is sufficient to sustain it.

    In 1856 one Howell purchased certain lands upon which there were then two mortgages, one for $5,500, and the other for $1,800. The payment of the first mortgage was assumed by Howell in his deed, but no reference was made therein to the second. In 1857 the second mortgage was foreclosed, the summons being served on Howell by publication. Upon the sale the owner of the second mortgage purchased and took possession of the land, paid taxes, and subsequently satisfied the first mortgage. Thereafter the premises were conveyed to various persons, and finally by a deed, with covenants of warranty, etc., to the defendant Clara B. Leavitt, a married woman, who bought them subject to a $15,000 mortgage given by one of her grantors, of which she ' assmned the payment.
    It appeared that Howell was dead at the time it was attempted to serve the summons on him by publication. In November, 1878, the heirs of Howell brought an action of ejectment against the defendant Leavitt, and recovered a judgment therein by default.
    In this action commenced in December, 1878, to foreclose the $15,000 mortgage and hold the said Clara B. Leavitt liable for any deficiency, she denied her liability therefor, on the ground that as no title passed to her from her grantor, there was no consideration for her covenant to assume the mortgage.

      Held, that she was in possession of the premises as a mortgagee in possession.
    That being so in possession, the heirs of the mortgagor could not maintain ejectment against her.

      That the evidence as to the action of ejectment was to be entirely disregarded in the pi-esent action.
    That her right to sue on the covenants of title, contained in the deed from her grantor, was sufficient to uphold her covenant to pay the mortgage.
    Appeal by the plaintiff from a judgment entered upon the trial of this action by the court without a jury.
    The action was brought for the foreclosure of a bond and mortgage made by Nancy Fisher and Charles J. Fisher to the plaintiffs, December 21,1869, to secure the payment of $15,000, with interest.
    On the 19 th of April, 1871, the Fishers conveyed the premises to Henry W. Fuller, subject to this mortgage, which Fuller assumed as part of the purchase money. The deed to Fuller contained covenants of seizin, of power to convey, against incum-brances, and of warranty.
    On the 11th of September, 1874, Fuller conveyed to Clara B. Leavitt, who is a married woman, by a deed containing covenants of seizin, against incumbrances and of warranty — excepting, however, the plaintiffs' mortgage, which Clara B. Leavitt assumed to pay as part of the purchase money.
    It is upon this covenant assuming the mortgage, contained in this deed, that the holders of the mortgage seek to hold Mrs. Leavitt personally liable.
    The claim was resisted on the ground that Fuller, the defendant’s grantor, and the Fishers his grantors, had no title to the mortgaged premises, that no estate passed by the deed to Mrs. Leavitt, and the consideration for her covenant failed.
    Fuller’s title was derived from one Roberts, who purchased March 13th, 1858, at a sale under a judgment for the foreclosure of a mortgage made by one William Tasker, then the owner of the premises, to him, Roberts, on the 15th day of May, 1856, to secure the payment of $1,800 and interest.
    Tasker conveyed the premises to Ephraim H. Howell October 1, 1856.
    Two mortgages, one for $5,500 and for $1,800, were then liens upon it. Howell assumed the payment of the $5,500 mortgage in his deed, but made no reference to the $1,800 one.
    Howell died in October, 1857, intestate, leaving a widow and five minor children. After the death of Howell, Roberts brought a suit to foreclose his $1,800 mortgage.
    Howell’s death being unknown to the parties they procured an order directing the summons to be served upon him by publication and judgment of foreclosure was entered thereon. At a sale under this judgment Roberts, the mortgagee, purchased and took a deed from the referee March 18, 1858. Roberts went into possession under the deed, as did his grantees down to Mrs. Leavitt.
    On the 22d April, 1878, the four surviving children of Ephraim H. Howell, commenced an action in this court against said Clara B. Leavitt, the plaintiffs and the said Roberts, claiming that the said Roberts and all of his grantees “ were only mortgagees in possession of said lands, and chargeable as such with all the rents, issues and profits of the said lands,” and claiming an accounting and the right to redeem from said Roberts’ mortgage. The defendant Clara B. Leavitt appeared and answered in said action, claiming to be rightfully in possession of the premises, and setting up the statutes of limitation against the rights of the plaintiffs in that actioir. The plaintiffs in this action and also Roberts appeared and defended that action.
    While the action to redeem was pending, and on the 7th November, 1878, the Howells commenced an action of ejectment against Mrs. Leavitt and her husband, no answer was put in, and on the 29th November, 1858, judgment was rendered in favor of the Howells by default. A writ of possession was issued and the Howells were put in possession by the sheriff, and James M. Leavitt became a tenant of the Howells.
    The plaintiffs commenced this action of foreclosure December 12, 1878, and sought therein to hold Clara B. Leavitt liable for any deficiency in the sale. The defendant, Clara B. Leavitt, appeared and answered, setting up her eviction by the Howells and demanding a dismissal of the complaint. Her husband answered, claiming that he holds as tenant of the Howells, and not subject to plaintiff’s-mortgage.
    The court held that the Leavitts were evicted by a paramount title of the Howells. And that by the conveyance of Fuller to Mrs. Leavitt she derived no estate, right, title, interest or claim in the premises, and that her agreement, to assume the mortgage was without consideration, and that the consideration for the conveyance by Fuller has wholly failed.

      D. P. Barnard, for the appellants.

      F. A. Ward and James JEmott, for the respondents.
   Barnard, P. J. :

The defendant, Clara B. Leavitt, took title to the premises covered by the mortgage in question from one Henry W. Fuller. Her conveyance was made subject to the plaintiffs’ mortgage, and she assumed to pay it as part of the purchase money. Fuller acquired title of a Mrs. Fisher. She gave the mortgage in question to the plaintiffs. The source of title, so far as the same is material for the consideration of this case, dates from a foreclosure action commenced in 1857. The then owner of the equity of redemption, one Ephriam H. Howell, was made a defendant and served by publication. He was in fact dead at the time of the service of the summons in this way. One Roberts bought at the foreclosure sale. There was a prior mortgage of $5,500 upon the premises at the time of the sale, and subject to which the sale was made. Howell was bound to pay both mortgages. Roberts, after ho took the deed, paid the prior mortgage of $5,500, and sold free and clear to Coe. Coe sold to Fisher. I think that the defendant Leavitt was a mortgagor in possession, and could n'ot be dispossessed by ejectment, and that she was bound to defend the action brought against her by the heirs of Howell. The effect of the various deeds from Roberts down to her was to place each of the grantees in privity with the mortgagee in the foreclosure action. Mrs. Leavitt’s defence as mortgagor in possession is averred in the very complaint in ejectment by means of which she claims to have been evicted. The eviction, if not collusive, was entirely illegal, and the case must be considered as if there were no eviction. Mrs. Howell, without the eviction, is in possession under a deed with full covenants of title, and those full covenants are contained in all the deeds since the foreclosure.

The case does not show whether the statute of limitation has run against the Howell heirs. The defendant Howell has her action against her grantor upon the covenants of title,- and this will be sufficient to uphold her covenant to pay the mortgage in question.

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

Present — BarNARd, P. J., and Pratt, J.; Gilbert, J., not sitting.

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


author: Barnard, P. J.:

text:
    ARNOLD ROSSNER, Respondent, v. THE NEW YORK MUSEUM ASSOCIATION, Appellant.

      Order far the inspection of books, as also an order to sham cause why an answer should not be stricken out because of a failure to comply with such ai-der for inspection, may be served on the attorney — Code of Civil Procedure, § 799.
    In this action, brought against a domestic corporation, which had appeared by an attorney and served an answer, an order requiring it to allow the plaintiff to inspect its books, or show cause at a time and place therein specified, was made and also served upon its attorney.
    The order having been made absolute on the return day against the opposition of the defendant, a copy thereof was served .on its attorney. Upon proof of such service, and of the defendant’s refusal to obey the order, an order to show cause why the defendant’s answer should not be stricken out was made and also served upon the said attorney.
    Upon an appeal from an order striking out the answer, held, that under section 799 of the Code of Civil Procedure, the orders to show cause were properly served upon the defendant’s attorney, and that it was not necessary to serve them upon any of its officers.
    Appeal from a judgment in favor of the plaintiff, entered upon an order striking out the defendant’s answer, and from such order and every part thereof.

      Franklin Bien, for the appellant.

      Barrett and Patterson, for the respondent.
   Barnard, P. J.:

By Code' of Civil Procedure, section 799, it is provided that where a party has appeared all notices or other papers must be served upon bis attorney. By section 802 tbe above mentioned section 799 is made inapplicable to tbe service of papers to bring a party into contempt. Tbe plaintiff brings this action to recover for services alleged to bave been rendered to tbe defendant. Tbe answer is a general denial. Tbe defendant is a New York corporation. The plaintiff presented bis petition under sections 803, 804 and 805, Code, for an inspection of defendant’s books of account, alleging, among other things, that the services were rendered under tbe employment of a person purporting to act as tbe agent of defendant, and that the books will show that such person was actually tbe agent of defendant. Upon this petition tbe court at Special Term made an order that defendant allow plaintiff or bis attorneys to inspect their books, or show cause at a time and place specified in tbe order. This time and place need not be eight days. (Code of Civil Procedure, 805.)

Tbe order was served upon the attorney for defendant, and not upon any other person representing tbe defendant. At tbe time and place specified; tbe defendant appeared and opposed tbe order for discovery upon an affidavit that tbe books were not under tbe control or custody of tbe attorney.

Tbe court then made an absolute order for tbe production of tbe books. This order was served upon tbe defendant’s attorney only, and was not obeyed. Tbe plaintiff then upon proof of such service and of such disobedience obtained an order to show cause why the answer of defendant should not be stricken out for failure to obey tbe order under section 808, Code of Civil Procedure.

The only objection made by defendant, which is to be considered, is tbe objection that the papers were not served on tbe defendant instead of the attorney. The other objections are to tbe impropriety of tbe first order. That order must stand until set aside. Tbe defendant might move to vacate it; but while it stands it must be obeyed.

It is quite unsettled what are tbe “ ordinary proceedings in tbe action.” It is well settled that in such proceedings all notices must be served upon tbe attorney.

It was decided in Becker v. Hotchkiss (8 How. Pr., 68), that application for an order of arrest was an ordinary proceeding and that service of an injunction was not. It was the old rule, that when the party proceeded by order to show cause service need not be made upon the party. (Stafford v. Brown, 4 Paige, 360; Brown v. Andrews, 1 Barb., 227; Albany City Bank v. Schermerhorn, 9 Paige, 372.)

In Pitt v. Davison (37 N. Y., 235), the Court of Appeals held that an order to enforce civil remedies was properly served upon the attorney. The application in this case seems to fall directly within the principle.

The court may direct a discovery and an inspection of books. If it is disobeyed, it may strike out the answer of defendant.

It is one of the ordinary proceedings in an action, and the order striking out the answer is simply an enforcement of a civil remedy. I think, therefore, that it was not necessary to serve the order upon defendant’s officers, and that the judgment and order should be affirmed, with costs.

Present — Barnard, P. J., and Beady, J.

Order striking out defendant’s answer and the other order appealed from and judgment, affirmed with costs.


text:
    In the Matter of the Appplication of THE PROSPECT PARK AND CONEY ISLAND RAILROAD COMPANY, Respondent, to acquire land of the WASHINGTON CEMETERY, Appellant.

      Railroad commissioners — second report of, as to damages to be awarded to owners, final and conclusive — only legal eiroi'S reviewable on appeal therefrom.

    By section 18 of chapter 140 of 1850, the second report of commissioners, appointed to appraise the damages to be paid by a railroad company to the owners of land to be taken by it, is made final and conclusive, and on an appeal therefrom only legal errors or irregularities in the proceedings of the commissioners can be considered.
    The judgment of the commissioners in deciding upon the amount of damages to be allowed cannot be reviewed.
    Appeal from an order confirming the report of commissioners, awarding a nominal compensation of one dollar to the appellant for its land, used by the railroad company for tbeir road.
    It appeared that Gravesend avenue was opened and constructed from the city of Brooklyn, through the towns of Gravesend and New Utrecht to Coney Island, the expense thereof being assessed upon the owners of adjoining lands.
    The appellants owned their lands for cemetery purposes since 1850. The avenue divided the cemetery so that two-thirds was on the west and one-third on the east. •
    After the law was passed for opening and constructing the avenue, the railroad company, by amendments to the law, was permitted to use the avenue for the transportation of freight and passengers by steam. And they claimed the right to so use it without making compensation to the appellants,, but the court decided otherwise. (Washington Qemetery v. P. P. and G. I B. B. Co., 7 Hun, 655; affirmed, 68 N. Y., 591.)
    , After those decisions the company applied for a commission, who awarded to the Cemetery $5,500 for their property taken, and, on appeal by the company, Justice Gilbert set aside the award and appointed a new commission, who awarded the Cemetery the nominal amount of one dollar, from the order confirming whose award this appeal is taken.

      D. P. Barnard, for the appellant.
    The commissioners’ award of nominal damages was erroneous. This has already been decided by this General Term, upon full consideration, in the case of this same jRailroad Company v. Moynalian et al., which report was confirmed by Judge Pratt at the same time that our report was. (See 13 Hun, 345; 16 id., 261.) Section 18 of chapter 140 of 1850 does not deprivo the appellant of the right to appeal from the report of the commissioners, though it is the second report that has been made. (Code of Civil Procedure, § 349; The People v. N. Y. O. B. B. Go., 29 N. Y., 418; Bank of Genevan. Beynolds, 33 id., 160; King v. Mayor, etc., of N. Y, 36 id., 182; In re Mayor, etc., of New York, 49 id., 150.)

      John II. Bergen, for the railroad company, respondent.
    This appeal should be dismissed. No appeal will he from the second report; the statute makes it filial and conclusive. (General R. R. Law, § 18; McAllister v. The Albion P. R. Co., 10 N. Y., 853; The People ex rel. 8. and AT. H. R. R. Co. v. Betts, 55 id., 600; Matter of AT. Y. C. R. R. Co., 64 id., 60; In re AT. Y. C. R. R. Co. v. Marvin, 1 Kern., 276.)
   Barnard, P. J.:

No point of fraud, mistake, irregularity or misconduct on tbe part of the commissioners is made in these proceedings. The commissioners decided, as matter of fact upon all the evidence before them, that the appellant’s damages were nominal.

It does not appear that the commissioners proceeded upon any erroneous rule, but it does appear that all the proceedings were regular.

This being a second report, it is not easy to see how any effect can be given to section 18 of the statute (chaj>. 140 of 1850) under which this matter falls, unless it is held that the amount fixed by the commissioners shall be held final and conclusive.

Undoubtedly the order of confirmation is appealable, and if any legal error could be pointed out, it would be competent for the court to reverse it, but this cannot be done as a matter of discretion, as in the case of a first report.

Suppose a statute provided that the verdict of a jury should be final and conclusive upon a certain question of damages, would it be claimed that the court could not set it aside for errors committed upon the trial or for misconduct of the jury ?'

So here, all errors are the proper subject of review upon appeal, but not the mere question of amount of damages. That question has been confided to the commissioners, and so long as they violate no rule of law their finding is conclusive.

The order should be affirmed, with costs.

Present — BarNARd, P. J., and Gilbert, J.; Pratt, J., not sitting.

Order affirmed, with costs and disbursements.