author: O’Brien, J. VAN Brunt, P. J. Follett, J.

text:
    Johannes H. Johannessen, App’lt, v. John Monroe et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    1. Letters of credit—Consideration.
    In order to charge with liability the maker or drawer of a special letter of credit, it is essential to prove that it, as it is neither negotiable nor assignable, was made for a consideration, unless such liability can he supported by an estoppel.
    3. Same—Estoppel.
    Where a person becomes a bona file holder for value on the strength of representations by the drawer of a special letter of credit that it had been duly issued and was available for the full amount thereof, in the manner provided by its terms, the latter is estopped from denying that it was issued for a valuable consideration.
    8. Same—Holder for value.
    One who acceptsoa letter of credit in payment of a debt due is a holder for value. °
    Motion for a new trial on exceptions, ordered to be heard at general' term in the first instance.

      Wilhelmus Mynderse, for pl’ff ; George A. Strong, for def’ts.
   O’Brien, J.

The complaint, in substance, alleges that on February 28, 1892, the defendants issued and delivered to one Boe a letter of credit, as follows:

“No. 5,687.
“ Office of John Monroe & Co., Bankers, No. 32 Nassau street.
“New York, February 26, 1892.
“Messrs. Munroe & Co., Paris—Gentlemen: We hereby open a credit with you in favor of Captain J. A. Johannessen, s. s. Baylton Dixon, for fifteen thousand franc (fcs. 15,000), available in bills at ninety days’ date. On acceptance of any bill or bills drawn under this credit, you are to draw on Carsten Boe, New York, at seventy-five days’ date, payable at the current rate-of exchange for first-class bankers’ bills on Paris oh day of maturity. Commission as arranged. Bills under this credit to be-drawn at any time prior to May 1st, 1892.
“ Truly yours, John Munroe & Co.
“ The above may be availed of in sterling, if desired; say, six-h.undred pounds sterling (£600). J. M. & Co.”

Boe, on March 10, 1892, being indebted to the plaintiff, gave and delivered to him the letter of credit, which the plaintiff accepted as payment by the said Boe at the full face value thereof. Prior to acceptance, the plaintiff was assured by statements and representations'of the defendants that it had been duly issued, and was available for the full amount thereof, in the manner provided by the terms thereof. The plaintiff, having accepted the letter of credit from Boe under such circumstances, thereupon caused notice to be sent to the defendants, and duly drew his bill of exchange or draft upon Munroe & Co. at ninety days, for £600-British sterling. The draft was presented for acceptance, and, upon acceptance being refused, was protested, and notice given to-the defendants ; and it is for the whole amount of £600, equivalent to $2,919.60, together with the cost of protest and interest, that the plaintiff demands judgment.

At the beginning of the trial, defendants moved to dismiss the complaint, upon the ground that it did not state any cause of action. After an intimation by the court- that the complaint should be dismissed, the counsel for the plaintiffs requested to be allowed to amend by adding an allegation which would show that the defendants were copartners, doing business “ under the firm name and style of Munroe & Co. in Paris, France, as well as under the firm name and style of John Munroe & Co. in New York.” The court denied the motion to amend, and thereupon granted the motion to dismiss the complaint, to which rulings exceptions were taken, which were directed by the court to be heard in the first instance at general term. The two questions therefore presented am (1) whether the complaint states a good cause of action, and (2) whether it was error in the court to refuse to permit the amendment as requested.

As stated in 13 Am. & Eng. Ene. Law, p. 237 :

“ A 'letter of credit ’ may be defined to. be a letter of request, whereby one person requests another to advance money or give credit to a third, and promises that he will repay or guaranty the same to the person making the advancement, or will accept bills drawn upon himself for the like amount. It is called a ' general letter of credit’ when it is addressed to all persons in general, and a ' special letter of credit ’ when addressed to a particular person by name."

The letter of credit here sued upon being, under all the definitions, a “ special letter of credit,” we shall confine ourselves to the rules relating to such an instrument. In the book already quoted, and under the subtitle of "Negotiability,” it is said (page 243):

“ There seems to be no doubt that a special letter of credit is not negotiable. Especially is this true when it is more in the nature of a guaranty than when it relates to bills of exchange.”

And again, at page 240 :

“ In order to render the writer of a letter of credit liable either upon an implied acceptance or agreement to accept drafts taken on the faith of such letter, the drafts must be taken for a valuable consideration."

In the well-considered case of Bank v. Kaufman, 93 N. Y. 277, we find certain principles and rules laid down for our guidance, which, though taken fromtheircontext, may, without introducing confusion, be grouped together. It is therein said :

“ The true distinction between general and special guaranties, as contained in letters of credit, is that, upon the faith of a general guaranty, any person is entitled to advance money or incur liability upon complying with its terms, and can recover thereon the same as though specially named therein. In the. case of a special guaranty, however, the liberty of accepting its terms is confined to the person to whom it is addressed, and no cause of action can arise thereon except by their action in complying with its conditions. * * * The common-law rule applies to contracts of guaranty as well as to other contracts, that a consideration is necessary to render them valid, and that, unless such consideration be acknowledged by the contract itself, it is still necessary to prove one in order to recover thereon. * * * In the case of a special guaranty the consideration necessary to support the promise may be either one furnished by the principal to the guarantor, or by the promisee to either the principal or some third person, according to the terms of the guaranty. * * * A general letter of credit is addressed to and invites people generally to advance money, give credit, or sell property, in reliance upon it;. and, when- this is done, the contract is complete, and the acceptor becomes a party to it, and may enforce it for his own benefit * * * pn op[ 0£ the caseg where guarantors have been held liable, even to third persons, upon such instruments, the letter embraces either an express or implied request to such persons-to advance value upon the faith of the paper therein described; and it is because they have parted with value upon such request that the liability of the promisor to them is predicated.”

Where it appears that the person sought to be charged, for a valuable consideration, issued a letter of credit, and that, upon the faith of it, the plaintiff gave value for the benefits thereunder, a cause of action is stated ; and we. think, in addition, that if the plaintiff, relying upon the faith of representations or statements of defendants that the letter was issued for a valuable consideration, parted with value, then a cause of action is stated. A right to recover in such case is based on an estoppel. The complaint does not allege that the letter of credit was issued for a valuable consideration ; the theory upon which a right to recover is based being that, having inquired and being assured by defendants that the letter of credit was duly issued and available according to its terms, the plaintiff then accepted it in payment of an indebtedness. Under the decisions this constituted the plaintiff a holder for value, the law being that one who accepts a letter of credit in payment of a debt due is a holder for value. This letter does not purport on its face to have been issued for value received; and the question remains, notwithstanding' the fact that the plaintiff is a holder for value, whether a good cause of action is stated without an allegation showing that it was issued by defendants for a consideration.

Were this a promissory note, or governed by similar rules, then it would not be necessary to allege that it was issued for a consideration; it having been held in Underhill v. Phillips, 10 Hun, 591, that in an action on a negotiable promissory note it was not necessary to allege or prove a consideration; and in Carnright v. Gray, 57 Hun, 518; 33 St. Rep. 98, affirmed 127 N. Y. 92; 38 St. Rep. 56, it was held that it was not necessary to prove value in an action on a negotiable promissory note. These decisions are based upon the statute in this state relating to promissory notes, and upon the privilege which promissory notes, like bills of exchange, enjoy (a privilege not conceded to other unsealed instruments) of being presumed to be founded upon a valuable consideration. Story, Prom. Notes (7th ed.) p. 234, § 181.

With respect to letters of credit, Daniel on Negotiable Instruments (3d ed., § 1790) says:

“While not possessed of the characteristics of negotiability which pertain to bills and notes, they partake of them to such an extent as to be necessarily classed as negotiable instruments.”

We find, however, no authority in this state which goes to the extent of holding that a special letter of credit, such as is here in question, is negotiable.

As to instruments other than promissory notes, therefore, particularly instruments in writing, such as special letters of credit, which are neither negotiable nor assignable, in order to charge the maker or drawer with liability it is essential to prove that such instruments were made for a consideration, unless such liability can be supported by an estoppel. Allegations which are essential to be proved should be alleged. Applying these principles to the case at bar, we think that, unless the plaintiff states a good cause of action upon the theory that, as the result of the representations made by the defendants, he accepted the letter in payment of Boe’s indebtedness, thus becoming a holder for value, and so entitled to avail himself of the terms of the letter of credit, then the dismissal of the complaint was right. See Bank v. Myles, 73 N. Y. 337; Birckhead v. Brown, 5 Hill, 634; Bank v. Kaufman, 93 N. Y. 273; Leslie v. Bassett, 129 id. 525; 42 St. Rep. 358.

This we regard as the sole theory upon which the complaint can be supported, as we do not think there is much force in the other grounds relied upon, one of which is that the refusal of Munroe & Go. of Paris to accept the draft created some liability as against the defendants. The defendants could not be held liable Tor the refusal of Munroe & Co. of Paris to accept, unless, for a consideration, they cqntracted that they would accept’, or unless, because of plaintiff’s being a holder for value, to whom representations were made, the defendants, as against him, are estopped. Practically, then, the question narrows down to the construction to be given to the language of the complaint. If it therein appears that the defendants contracted with the plaintiff, for a valuable consideration, that Munroe & Co. of Paris would accept plaintiff’s drafts, or if plaintiff parted with value upon the faith of the letter of credit in a way to create an estoppel, then the complaint is sufficient.

Upon the first branch, plaintiff insists that the words, in the letter of credit, “Commission as arranged," are a statement of a consideration to the defendants; while the defendants as strenuonsly°insist that they have no such meaning, but are a mere condensed method of saying to the Paris house, “Arrange your commission with plaintiff if you act on this letter." There is no statement in the complaint of a consideration having been paid to the defendants by anyone; and the attempt to resort to these words as an equivalent to such an allegation is clearly an afterthought, and, as an afterthought, we think it without force, and accept the construction contended for by the defendants.

It is further insisted, however, by the plaintiff that:

“There is another aspect to the relation of the parties. The defendants constituted Boe their agent to deliver the letter of credit, and are bound by his acts, and are chargeable in law with the receipt of the consideration paid to him by the plaintiff, and are liable to the plaintiff in this action for the amount or value of the letter of credit.”

If there is any strength in this argument, it arises not from the different aspect in which we may regard the relation of the parties, but from that portion which states that the defendants are chargeable in law with the receipt of the consideration paid to Boe by the plaintiff, which brings it back to the same position from which we have been considering it.

Our conclusion, therefore, is that unless the complaint shows that the defendants agreed, for a valuable consideration, that the draft would be accepted, or expressly in writing agreed so to accept it, or unless the plaintiff, upon the faith of such agreement to accept, parted with something of value to Boe, from whom he received the letter of credit, then no cause of action is stated. In the latter alternative the complaint is sustainable upon the theory of an estoppel, which from its nature requires the support of a consideration. In other words, unless there is a parting with value, it is difficult, if not impossible, in any given case, to create an estoppel. Here it is alleged that the defendants duly issued and delivered to Boe the letter of credit, and that the defendants informed the plaintiff, before he accepted it, that the same had been duly issued, and was available for the full amount thereof. This we do not regard as equivalent to a statement that a consideration had been given for the letter of credit. It was, however, equivalent to saying to the plaintiff that it was valid, and that the obligation created by it would be met according to its terms. This certainly would justify the plaintiff in acting upon the faith of such representations; and where, as here, he did so act, and received the letter of credit, giving therefor a valuable consideration by taking it in payment of a debt (which, upon all the authorities, would make him a bona fide holder for value), we do not see why, upon such facts, the defendants should not be held liable. In other words, the defendants having, upon the application of Boe, extended to the latter a credit .available in favor of the plaintiff, which the plaintiff received, but which, before taking, he inquired about from the defendants as to its availability according to its terms, and, after assurances such as were here given, it having been then received by the plaintiff for value, we think that, irrespective of the question whether or not the defendants received any consideration from Boe therefor, the plaintiff, as against the defendants, is entitled to recover.

With respect to the other question, as to the amendment, it was clearly a matter of discretion; nor by the refusal was the plaintiff injured. The action being against the drawer, it would add no strength to the cause of action to allege that the firm upon whom the letter was drawn was the same identical firm, but resident in another place. Its liability is predicated upon its refusal to secure to plaintiff the credit as provided in the letter; and whether, as proof of this, it is shown that the defendants themselves, or some house upon whom they drew the letter, refused, would not strengthen the plaintiff’s position. If, by reason of the issuance of such letter, the plaintiff secured rights as against the defendants, he can maintain this action as against them, whether they drew the letter of credit upon themselves in Paris or upon some other firm.

We think, therefore, that the exceptions are well taken, and that there should be a new trial,, with costs to plaintiff to abide the event.

VAN Brunt, P. J.

I concur in the conclusion arrived at by Mr. Justice O’Brien in the case at bar. But I do not concur in his definition of what is now understood in the commercial world as a “letter of credit.” In the disposition of the question involved in this case there seems to be no necessity for a discussion upon that point. It appears that the plaintiff took this letter of credit for value, accepting it as payment for a debt due by the person from whom he received it. Prior to its acceptance the plaintiff made inquiry of the defendants, and was assured by them that it had been duly issued, and was availiable for the full amount thereof, in the manner provided by the terms thereof. The defendants having made this representation, upon which the plaintiff accepted the letter of credit for value, are estopped from alleging that it was issued without value or because of fraudulent representation. The plaintiff, having taken it in good faith for value, after, the representations made, has an undoubted right to enforce it.

It is suggested by Mr. Justice Follett that the representation was simply that the letter was genuine and available according to its terms. If the letter was genuine and available according to its terms, it is difficult to see why the plaintiff has not a right to enforce it, and, if it turned out not to be available according to its terms, why he has not a right to recover the damages sustained.

The exception should be sustained, and a new trial ordered, with costs to the plaintiff to abide the event

Follett, J.

(dissenting).—This action is to recover on a special letter of credit, issued February 26,1892, by the defendants, bankers of New York, to Carsten Boe, and addressed to Monroe & Co., bankers of Paris, France, for £600 sterling. March 10,1892, this letter was delivered by Carsten Boe to the plaintiff, in payment of a debt for £600 sterling ; and on the same day the plaintiff drew his bill of exchange on Monroe & Go. of Paris, France, for £600, which that firm refused to honor, upon the ground, as it is alleged in the answer, that the latter was issued without consideration, and was obtained by fraud.

Aside from certain excepted cases, a plaintiff who seeks to recover on a contract must allege and prove a consideration for the promise. The excepted cases are contracts under 'seal, contracts executed pursuant to a statute, promissory notes, and inland bills of exchange. 1 Rev. St. p. 768; Carnwright v. Gray, 127 N. Y. 92 ; 38 St. Rep. 56; Moak, Van Santv. Pl. 164. If the contract sued on recites a consideration, and is set forth in the complaint, it is a sufficient allegation of a consideration. The case at bar does not fall within any of the exceptions. It is not alleged in the complaint that the defendants received a consideration for the letter of credit, or that they ever represented that they did, and a cause of action is not stated. It is urged that the defendants are estopped from denying that they received a consideration for the letter. This argument is founded on the allegation that defendants represented to the plaintiff “that said letter of credit had been duly issued by them, and was available for the full amount thereof in the manner provided by the terms of said letter of credit or advice.” This was but a representation that the letter was genuine and available according to its terms. By its term no action could be maintained thereon by Carsten Boe without alleging and proving a consideration therefor. It is not alleged that defendants knew, when said representation was made, that the plaintiff was about to take the letter from Carsten Boe in payment of a debt, or for any purpose, or in any manner. There is no estoppel in the case, and the plaintiff stands in the shoes of Carsten Boe. The plaintiff’s exceptions should be overruled, his motion for a new trial denied, and a judgment ordered for the defendants, with costs.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Jane Oakes et al., as Executors of the Estate of William Hutchison, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    1. Executors—Accounting—Counsel fees.
    To determine wliat are reasonable counsel fees to be paid by an executor, is not within his discretion ; that question is to be determined by the court which passes upon his accounts.
    2. Same.
    Where it is the right and the duty of the executor to use reasonable diligence to secure a proper construction of the will, he has authority to incur such expenses, including payment of counsel fees, as should be reasonable and necessary in the due performance of such duty.
    Appeal from a decree, disallowing certain charges and expenses for counsel fees paid in actions brought against the estate, in which the executors were parties defendant.

      Henry L. Sprague, for app’lts; Walter S. Logan, for resp’t Rosenthal; George C. Austin, for resp’t Austin.
   Parker, J.

A trustee’s duty .is not satisfied by merely defending suits which tend to diminish the trust estate. He is bound as well to use due diligence to carry out the intention of the creator of the trust, and, when an assault is made upon the trust instrument by means of a suit in equity, if there be a defense to it, he should make it. If the suit be one for the construction of the instrument, he is bound to present to the court the reasons, if any there may be, which call for such a construction of the will as accords with the intention of the trust maker. Were that rule otherwise, it might be possible for the beneficiaries of trust estates, in some instances, through forms of legal procedure, to obtain possession thereof upon such terms as they should mutually agree upon; and thus would the intention of the creator of the trust be thwarted. Such a result the law will not tolerate, and to prevent the possibility of its accomplishment it burdens the trustee with the responsibility of using reasonable care and diligence to protect and execute in all its integrity the provisions of the instrument creating the trust, and appointing him to attend to its execution. And this duty is none the less obligatory because he happens to be a beneficiary under the instrument, of which he is also the trustee, and may to some extent profit by a successful defense of a suit which assails one or more of its provisions. The necessary and reasonable expense incurred by the trustee, in the performance of any duty imposed upon him by law, constitutes a' charge upon the estate, and he is entitled to be reimbursed therefrom.

In Noyes v. Blakeman, 3 Sandf. 531, the court said:

“The object of the suits by plaintiffs was to charge the debts of the insolvent husband upon the trust estate; in other words, to set aside the trust deed. * ■* * The defense of these suits was, herefore, a duty which the law imposed upon the trustee, and for all reasonable expenses incurred by him in the discharge of this necessary duty he has entitled to reimburse himself from the funds in hand, and from such other as he might thereafter receive from the trust estate. The law is clearly settled, and it would be a reproach to its principles or its administration were it otherwise, that all necessary expenses of a trustee—that is, all expenses of every kind which are reasonable, and in good faith incurred by him for the defense, protection, or reparation of the estate—are to be treated in equity as a charge, in all cases upon the rents and profits; and, when incurred for the benefit of the whole estate, * * * upon the inheritance and fee. The doctrine in equity is so unquestionable and familiar that it may be regarded as elementary that all the necessary expenses of a trustee are to be reimbursed to him out of the estate, although no provision whatever in relation to such expenses is contained in the deed or other instrument by which the trust is created. In every such instrument there is an implied direction that all such expenses as the preservation or protection of the estate may require shall be incurred, and an implied'stipulation or promise that, when incurred, they shall be a charge upon the estate.”

Irving v. De Kay, 9 Paige 521, and Wetmore v. Parker, 52 N. Y. 451, were each actions brought by the executors for a construction of the will, and counsel fees .were allowed on the ground that they were necessarily and properly incurred in the faithful performance of the duties of the executors. Other cases might be .cited to the same effect, but the rule is deemed too well settled to required further amplification of authority. What constitutes reasonable counsel fees is not committed to the discretion of the trustee. The court which passes upon his accounts must determine that question. First it will inquire whether the trustee had the right to incur any expense, and, if that question be decided in the affirmative, it will next determine what amount it was reasonable and necessary for him to have expended for the purpose; and, if his actual expenditures exceed such sum, the excess must be borne by the trustee personally. In this case the learned surrogate has found that the executors have paid out, in various litigations, for counsel fees, the sums of money which they ask to be credited with on this accounting as executors of the last will and testament of William Hutchison, deceased. He has also found as a conclusion of law that such fees were " not paid for services or work rendered to this estate, but were improper and unnecessary payments, and should be disallowed.” That a part of the sums thus paid out were not properly chargeable against the estate seems to us very clear. The record retainer of some of the counsel was for the beneficiaries under the will, having no official connection with that instrument, and the number of counsel employed would seem to be far beyond the necessities of such a presentation of the trustee’s side of the case as the law enjoins. Their number suggests instead the practice of personal litigants, in a doubtful contest, reaching out for everything which gives promise of the slightest assistance. But, while all the claims of the executors for counsel fees paid should not have been allowed, we think the surrogate was wrong in deciding that the executors of the will of William Hutchison were not entitled to be reimbursed to any extent whatever for the expenses incurred by them in certain litigations intended to affect the disposition of the estate. There were, it seems to us, two suits in which the executors were parties in their official capacity, which it was their duty to defend. True, the interposition of a defense may have been agreeable to their inclinations, but that fact cannot add to or take from, the legal measure of their duty. An investigation of the record for the purpose of ascertaining whether it was their right and duty to defend in their official capacity the suits brought against them as such discloses that William Hutchison died in 1875, leaving a will, in which he disposed of an estate exceeding $1,000,000; the use for the entire estate being given to his wife for life, with power to appoint the same to five children and the issue of a deceased child. By a codicil he subsequently modified the power of appointment so as to direct that the share of two of the appointees should be held in trust during their lives, the interest to be applied to their use, and the principal to go to their issue, if any, at their respective deaths. The life tenant (testator’s widow,") died in 1883, leaving a will, in which she disposed of her property, and also attempted to exercise the power of appointment contained in the will of her husband. In what manner she made performance, under power of appointment it will not be useful to state. It is sufficient to say that it was not at all satisfactory to some of the appointees, and they objected to the probate of her will. Their contest was unsuccessful, although waged until the judgment of the court of last resort was rendered. The surrogate has found that in that contest the executors paid out for counsel fees the sum of $28,388.47, at the same time holding that no part of that sum «was properly chargeable against the estate of William Hutchison. It requires but the mere statement of the facts to make it clear that the surrogate’s decision, in such respect, was well founded.

The executors were accounting for the manner in which they had discharged their duties under the will of William Hutchison, and, because they also happened to be the executors of the will of Winifred Austin, gave them no right or authority to charge the estate of William Hutchison with the expenses incident' to the probate of her will. While the contest over the probate of the will of Winifred Austin was pending an action was brought by one of the contestants for the purpose of obtaining a judicial construction of the wills. The complaint, among other things, “demands judgment that the court shall adjudicate and determine the proper construction and effect of said wills and codicil of William Hutchison, and shall adjudicate and determine the rights of the parties hereto in and to his estate and the money and property left by him as aforesaid, and shall direct a distribution of the same according to their respective rights ; the costs of this action to be paid out of the said estate of William Hutchison.” The ex-ecu tors of the estate of William Hutchison were parties defendant to that suit in their official capacity, and the reference made to the prayer of the complaint suggests at once that it was not unlikely that they were calléd upon to advocate such a construction of the instrument as would conform to the intention of their, testator. But there is further and convincing evidence that such was-the fact. During the four years that this contest was waged in the several courts it so happened that of the three decisions made no two were alike. The court of appeals, speaking through Judge Finch, Austin v. Oakes, 117 N. Y. 577 ; 28 St. Rep. 834, said:

“ The primary question raised in this case is whether the will of the testator gave to his wife a single power of appointment only, or, in addition thereto, a second and broader power, although limited in its operation to the shares intended for the son James and the grandson Charles, and to the contingency of the death of either without issue during the lifetime of the widow.' Stated in more convenient form, the inquiry is whether the power of appointment recited in the testator’s codicil is anew and distinct and separate power, adequate to sustain the appointment made, or not so adequate, and merely a reference to the one already given in the will itself. Upon this question the trial court and the general term have differed with so much of sensible and pertinent reasoning as to make a final determination not altogether easy.”

In view of this determination by the court, it is clear that it cannot be denied that it was the right, and the duty as well, of the executors of the will of William Hutchison, to use reasonable diligence to secure such a construction of the will as should be agreeable to the intention of the testator. That being so, they had authority to incur such expenses, including payment of counsel fees, as should he reasonable and necessary in the due performance of suchfduties. The surrogate denied to them any rights of reimbursement whatever, but, if the views we have expressed are correct, it follows that- this was error.

Charles Austin, after the .death of Winifred Austin, also commenced a suit, the object of which was to obtain partition of certain premises of which William Hutchison died seized. The executors of his will, as such, were made parties defendant, and the same questions arose in the partition suit as were involved in the construction suit which we have considered ; and for precisely the same reasons we think that the executors were entitled to be reimbursed for the necessary and reasonable expenses incurred by them in its defense.

So much of the decree of the surrogate’s court as denies the right of the executors to any reimbursement whatever for legal expenses and disbursement in the suits of James Austin against Jane Oakes and others and Charles Austin against Jane Oakes and others should be reversed, and the matter remanded to the surrogate’s court for further adjudication.

All concur.


author: Pratt, J.

text:
    In the Matter of the Application of Patrick H. Gaffney for a Writ of Mandamus.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

    Municipal corporation—Employe—Discharge,
    An application by a discharged employe of a city to compel his reinstatement, on the ground that he was an honorably discharged soldier, not made until more than two years after his discharge, is barred by loches.
    Appeal from an order, denying an application for a writ of mandamus.

      Sidney Williams (G. B. Van Wart, of counsel), for app’lt; Albet G. McDonald, Corp. Counsel ( Howard O. Wood, of counsel), for resp’t.
   Pratt, J.

The relator herein slept upon his right too long to be entitled to the relief he seeks. This application is made two years and nine months after the alleged time of discharge. Relator must bear the result of his own carelessness. His loches prevents his reinstatement. In re Shay, 39 St. Rep. 856. The special term of this court, affirmed by the general term, held that the loches of one year and six months rendered reinstatement impossible. See, also, In re Wortman, 2 N. Y. Supp. 324; People v. Hayden, City Ct. Brooklyn, July 31, 1890. I recommend affirmance without an opinion.

All concur.


author: Ingraham, J.

text:
    Ladenburg, Pl'ff, v. Commercial Bank of Newfoundland, Def't.

      (Supreme Court, New York Special Term,

      Filed February, 1895.)

    Attachment—Foreign corporation.
    An attachment against a foreign corporation is not rendered void, merely because it was granted without showing the facts require by § 1780 of the Code, but the defect may be cured by an affidavit filed nunc pro tune.
    Motion to vacate an attachment.

      Mapes & Kelly, for pl’ff ; Steinhardt & Goldman, for def't.
   Ingraham, J.

The general term of this court has decided in a number of cases that, in order to justify the issuing of an attachment against a foreign corporation, it must affirmatively appear that the plaintiff is either a resident of this state, or, if a nonresident, that the action is brought to recover damages fora breach of a contract made within this state, or that the action related to property within this state, or that the cause of action arose within this state, to comply with section 1780 of the Code of Civil Procedure, and that, where any of the facts as required by section 1780 of the Code did not appear, the attachment was therefore irregular, and would be vacated upon motion. See Smith v. Milk Co., 70 Hun, 348; 53 St. Rep. 891; Talcott v. Indemnity Co., 81 Hun, 577; 63 St. Rep. 256. This rule having become thus set-tied in this department, whatever my individual opinion may be, I do not feel at liberty to disregard it. I am aware that a serious question has been presented as to the power of the legislature to restrict the jurisdiction of the supreme, court, and that doubt is well expressed by Mr. Justice Parker in his opinion delivered at the general term in Selser Bros. Co. v. Potter Produce Co., 77 Hun, 315; 59 St. Rep. 826. Subsequent to the decision of that case, however, Talcott v. Indemnity Co., supra, reaffirmed the rule before established. In Robinson v. Navigation Co., 112 N. Y. 322, 323; 20 St. Rep. 741, the court of appeals appears to have held that an action by a non-resident plaintiff against a foreign corporation can be maintained only in the cases specified. The attention of the court, however, was not called to the limitation of the power of the legislature to restrict the jurisdiction of the supreme court in cases over which it had jurisdiction prior to the adoption of the constitution. If the legislature had power thus to restrict the jurisdiction of the supreme court over actions against foreign corporations, I can see no reason why it would not have power to restrict such jurisdiction over domestic corporations, or any other actions against individual defendants, and thus seriously restrict the jurisdiction of the supreme court; while over actions in the superior city courts it has been expressly held that the legislature had no power to restrict their jurisdiction. Popfinger v. Yutte, 102 N. Y. 39 ; 1 St. Rep. 334. I should hardly feel at liberty, however, in view of the former decision of the general term of this court and of the court of appeals, to hold this provision of the Code unconstitutional.

The question was also presented on this motion as to the power of the court to allow a person obtaining an attachment, which the justice should not have granted because of a failure to allege the facts of the residence of the plaintiff, to file an affidavit nunc pro tune, setting up such fact. In the case of Adler v. Fraternal Circle, 19 N. Y. Supp. 885, on a motion to vacate an injunction, I expressed the opinion that this failure to state the facts was jurisdictional, and could not be cured by amendment. The question was not directly presented there as to whether the court would have power to allow an affidavit setting up a fact that existed, and which would give the court jurisdiction over the subject matter of the action to be filed nunc pro tune as of the date of the granting of the attachment. The claim of the moving party here is that, as it did not appear that the court had jurisdiction of the •cause or of the subject-matter of the action, the attachment was improperly granted; and that is because of the provision of section 1780 of the Code, which provides that the courts of this state ■shall have jurisdiction as against foreign corporations only in the •cases specified in the section. If the facts existed which brought the case within one of those mentioned in the section, then the •court has jurisdiction over the subject matter of the action, and therefore has jurisdiction to issue the attachment. No section, of the Code provides that to justify a judge in granting an attachment the facts showing jurisdiction should be presented to him, and the general rule of law applies that the jurisdiction of a superior court must always be presumed. Where, therefore, the facts existed which gave the court jurisdiction of the subject-matter of the action and where a cause of action was stated in the affidavits, but through inadvertence a fact was omitted which would show that the case was one of those mentioned in section 1780 of the Code, and when, as a fact, the court did have jurisdiction of the subject-matter of the action, I can see no reason why the court has not the power to allow an affidavit setting forth that fact to be filed nunc pro tune as of the date of the granting of the attachment. And if the plaintiff here presents such an affidavit, showing that such jurisdictional facts existed when the action was -commenced, I will allow it to be filed nunc pro tune as part of this motion. In case such an affidavit be filed, the motion will be denied; if no such affidavit be filed, then the motion will be granted. In either case I will grant a stay of all proceedings pending an appeal.


author: Beekman, J.

text:
    Chambers, Pl’ff, v. Chambers, Def’t.

      (Supreme Court, New York Special Term,

      Filed January, 1895.)

      1. Evidence—Church register.
    A church register, when not required to be kept by law, is not admissible as evidence of the facts therein recited.

      2. Marriage—Proof.
    In an action to annul a marriage on the ground of a previous marriage, the declaration of the defendant to such former marriage is not alone sufficient as proof thereof, but other satisfactory evidence of the facts must be produced. Such requirement is not satisfied by the production of a church register, purporting to contain an entry of such marriage.
    Motion to confirm the report of the referee.

      Samuel Tuttle, for pl’ff; Reuben Mapelsden, for def’t.
   Beekman, J.

In an action to annul a marriage on the ground of a previous marriage of the defendant, which is still in force, section 1753 of the Code of Civil Procedure prescribes, among other things, that a final judgment annulling the marriage shall not be rendered by default without proof of the facts upon which the allegation of nullity is founded, and also that “ the declaration or confession of either party to the marriage is not alone sufficient as proof, but other satisfactory evidence of the facts must be produced.” The proofs in this case, which were taken before the referee, do not seem to satisfy this requirement. Substantially the only proof of the previous marriage complained of consists of the declarations of the defendant, testified to by the plaintiff. A marriage register of the Reformed Church at Belleville, N. J., purporting to contain an entry of the marriage m question, was produced by the minister in charge, and the entry read in evidence. The witness who produced the book, however, did not himself solemnize the marriage, was not present when it took place, and could not do more than identify the book, and state that the entry was made during the incumbency of one of his predecessors. No reason appears why the clergyman who made it was not produced as a witness, and proof of the fact made through him. Books of this character do not prove themselves, nor are they prima facie evidence of the statements they contain. The rule here is the same as in England, that the keeping of the book must be required by law in order to give it credit as prima fade proof, and it is on this ground only that the English courts have admitted parish registers in evidence as proof of their contents. Of course, where the event recorded is old, and from the nature of the case better evidence cannot be obtained, it may be, in a certain class of cases, that the record would be admitted as a circumstance tending, with others, to satisfy a reasonable mind that the fact to be proved did exist; but this is not at all this case. The alleged previous marriage is stated to have taken place on March 12, 1887, and it should not be difficult to obtain competent proof of the fact. Nor is there satisfactory evidence, outside of her own declaration, of the identity of the defendant with the woman whose marriage is so recorded. It appears from the proofs that the person claimed to be her husband by the previous marriage is accessible, but he was not produced before the referee, and no reason appears for his not being examined. Without attempting further to discuss the evidence, some .of which strikes meas improbable, I am not willing to grant the relief asked for on the case as it has been submitted to me. The action is one of the gravest character, and the judgment asked for should not be granted unless the proofs are competent, clear and convincing, especially as there is a child by the marriage, whose status will be gravely affected by the action of the court. The fact that the defendant has made default in pleading does not relieve the plaintiff from the necessity of making such proof. The case should go-back to the referee for further proof. Let an order be submitted to me accordingly.


author: Per Curiam.

text:
    Samuel Branaugh, App’lt, v. Theodore B. Basselin, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Contract—Construction.
    A provision in a contract for the sale of hemlock hark for the reservation of a certain number of cords and for payment for the bark reserved in case the land should yield less than a certain quantity per acre, was-construed to mean that if, excluding the amount reserved, there should not he as much as three cords per acre, then the one dollar per cord for the amount reserved was to be paid only to the extent that the land failed to-produce three cords per acre.
    Appeal from an interlocutory judgment, sustaining a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      C. S. Mereness, for app’lt; Elon R. Brown, for resp’t.
   Per Curiam.

We are of tlie opinion that the twelfth clause-of the contract between the parties should be construed to mean that if, excluding the 1,000 cords therein reserved, there should not be as' much as three cords per acre, then the defendant agreed to pay to the plaintiff one dollar per cord for the said 1,000 cords-to the extent only that the said lands failed to produce the said three cords per acre, and that, therefore, the liability of the defendant under said clause would not, in any event, exceed the sum of $1,000.

We are also of the opinion that the complaint states a cause of action. The contract is a part of the complaint. It is alleged that, excluding the 1,000 cords that were reserved by defendant, the land embraced in the contract actually produced 992-J cords less than three cords per acre; that the plaintiff has made payments on the contract, and relying on its provisions, has overpaid the defendant, for all liability existing under the contract from the plaintiff to the defendant, the sum of $992.50 ; that in consequence of such overpayment the defendant is liable to repay the same to plaintiff, and the plaiñtiff has, before suit, demanded the same, and no part thereof has been paid; that the plaintiff has fully performed all of the provisions of the contract to be performed by him. It is suggested on the part of the defendant that he has already paid one dollar per cord for the 1,000 cords reserved, and that this action is to recover for a deficiency beyond that. This, however, does not appear from the complaint. It follows that the demurrer is not well taken, and that the judgment must be reversed.

Interlocutory judgment reversed, without costs of appeal to either party, and demurrer overruled, with costs, with leave to the defendant to answer on payment of the costs of the demurrer

The contract referred to in the opinion is as follows:

“(1) This agreement, made and entered into on the 5th day of May, 1888, by and between Theodore B. Basselin, of the town of Croghan, Lewis county, New York, of the first part, and Samuel Branaugh, of Carthage, New York, of the second part, witnesseth:

“(2) Whereas, the party of the first part hereto, by and in virtue of an agreement in writing, dated March 3, 1888, purchased of Mary L. Fisher all of the Hemlock bark on trees over one foot in diameter at a height from the ground as is customary for lumbermen to cut said tree for bark, standing and growing on the four west ranges of township four (4) Brown’s tract, Lewis county, New York, on all the lands in said township, all in Lewis'county, and owned by said Mary L. Fisher, and lying north of the village, lots (so called) as surveyed by N. J. Beach, excepting and reserving the lands adjoining Beaver Lake, Francis Lake, and Beaver Pond; the reserve line to be determined by actual survey, to be made by said Mary L. Fisher, at her expense, on or before the first day of August, 1888, for the purpose of preserving in a state of nature the lands surrounding the lakes and ponds aforesaid.

“(3) And whereas, by the terms of said contract, said Fisher is to cause said timber land to be surveyed into lots of about one hundred and sixty acres each, as near as may be, and cause the lots so surveyed to be numbered for designation:

“(4) Now, for value received, and in consideration of the mutual obligations and agreements herein set forth and contained, the party of the first part agrees to sell, and does hereby sell, to the party of the second part hereto, and the party of the second part doth hereby agree to and does purchase of tile party of the first part, all the hemlock bark purchased by the party of the first part hereto from Mary L. Fisher by and in virtue of the contract hereinbefore referred to, and to which contract reference is hereby made for greater particularity and for the following price, which the party of the second part agrees to pay to the party of the first part, as .follows:

“(5) Three dollars and sixty cents per acre for the hemlock bark on each and every acre of said land aforesaid', and, in case said lands yield more than an average of 6,000 pounds of hemlock bark per acre, then and in that case the party of the second part agrees to pay the party of the first part the additional sum of one dollar for each additional 2,00*0 pounds of hemlock bark.

“(6) The payments under this contract shall be made as follows, viz.: $5,000 at the date hereof; and balance, at the rate of $3.60 per acre for the entire acreage, shall be paid in four equal annual installments,—the first installment payable November 1, 1888; the second installment payable November 1,1889; the third installment payable November 1,1890, and the fourth installment payable November 1,1891,—with interest upon all sums unpaid with each installment. In case the said lands yield more than an average of 6,000' pounds of hemlock bark to the acre, as above referred to, the excess over said 6,000 pounds to the acre, at the said rate of one dollar for each additional 2,000 pounds of hemlock bark, shall be paid to said Basselin by said Branaugh, with interest from April 1, 1888, when each 500 cords are delivered at the tannery of party of the second part.

‘‘(7) The party of the second part shall peel and remove at least one thousand cords of bark during the first year, after April 1, 1888, and at least four thousand cords of bark each year .after that, until all the hemlock bark upon said lands as aforesaid is peeled and removed pursuant to this contract.

“(8) In case said Branaugh shall cut over or remove the hemlock bark from more than one thousand acres of said lots in any one year, then and in that event the party of the second part, shall, in addition to the annual payment, based upon acreage as. above provided, pay to said Basselin, on the first day of November of that year, $3.60 for each additional acre so cut in excess of the one thousand acres, with interest thereon from the date hereof.

“(9) It is further agreed that the bark shall be peeled and taken off by lots (lots to be surveyed as aforesaid), and the party of the second part is to cut over and peel the bark on said lots but once..

“(10) The party of the second part agrees to exercise great care not to injure or destroy any timber or bark, except as shall be absolutely necessary in peeling said bark and removing the-same, and, in case of failure, to pay all damages therefor.

“(11) It is further agreed that the party of the second part, shall remove the bark peeled to his tannery as soon as practicable-after it is peeled, having reference to seasons and conditions of roads; and it is further agreed that, when said bark is taken te said tannery, it shall be fairly and honestly weighed by the party of the second part, and an accurate detailed account of the net and gross weight of all of said bark delivered during the month be delivered by the said party of the second part to the party of the first part on the first day of each and every month.

“(12) It is further agreed that the party of the first part reserves from this sale 1,000 cords of bark, with the right to enter upon said land and take the same away. But it is agreed that if, excluding the said 1,000 cords, there shall not be as much as three cords per acre of bark upon said lands, then party of the first part is to pay to party of* the second part $1.00 per cord for the said 1,000 cords, or $1.00 per cord to the extent that the said lands fail to produce said three cords per acre.

“(13) And it is further agreed that, in the case of failure of the party of the second part to so remove, weigh, and account for said bark, then the party of the first part may measure the bark peeled, for the purpose of ascertaining amount of payments due as above provided, and the amount unpeeled or undelivered covered by this contract, if any, at the date of its expiration; it being expressly understood that each and every cord of bark herein referred to shall be accounted for at and for the rate of 2,000 pounds per cord of bark.

“(14) It is further agreed that no hemlock bark shall be taken, cut, or removed from said lands by the party of the second part, after 1st day of April, 1895, at which time the rights of the party of the second part, under this contract, shall cease and terminate; but the failure on the part of the party of the second part to remove said bark during the period aforesaid shall not relieve the-said party of the second part from this liability to pay therefor at the rates, time, and in the manner above provided by this contract.

“(15) It is further agreed that, until said bark is fully paid for as aforesaid, the title thereto shall be and remain in the vendor.

“(16) It is expressly agreed that in case said Basselin fails to make payments to said Fisher, under the contract aforesaid, at maturity, thereby impairing the rights of the party of the second part under this contract, said Branaugh may make said paj^ments in default, and hold said Basselin’s contract aforesaid as collateral security for the payment so made, until the amount thereof is realized, from bark or otherwise, by the party of the second part hereto.

“(17) It is further agreed that this contract shall not be assigned or transferred by the party of the second part without the written consent of the party of the first part.

“(18) It is further agreed that this agreement shall apply to and bind the representatives of the respective parties hereto. It is further agreed that, if party of second part fails to make payments as herein provided, party of the first part may declare this contract void and of no effect.

“In witness whereof the parties hereto have hereunto set their hands and affixed their seals this 5th day of May, 1888.”


author: Cullen, J.

text:
    Philip Wood, Resp't, v. Orlando M. Harper et al., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Pleadings—Complaint—Foreclosure.
    Allegations, in an action to' foreclose a mortgage, that the mortgagor conveyed part of the mortgaged premises to the defendant, who retained out of the purchase money a sum sufficient to discharge the mortgage and that then the mortgagor assigned to plaintiff his claim for the unpaid purchase money, do not state an independent cause of action.
    Appeal from an order, denying a motion to compel plaintiff to make His complaint more definite and certain by separately stating and numbering the several causes of action therein set forth.
    The complaint alleged that one Charles «McCaffrey gave the mortgage to Hewlett Scudder; that afterwards Scudder assigned it to Elizabeth H. Cook, who assigned it to plaintiff; that after the date of the mortgage, and before the assignment to Elizabeth Cook, Charles McCaffrey, who had in the meantime, become seized •of the premises as trustee, conveyed a part thereof to defendant Orlando M. Harper; that defendant deducted from the purchase money expressed in the deed the sum of $1,000, which was the amount due on plaintiff’s mortgage, and retained the same in his hands to meet the lien of the said mortgage; that afterwards Charles McCaffrey, as trustee, assigned to plaintiff the sum of $1,000, part of the unpaid purchase money retained by said defendant,on the sale to him; that all the property covered by the mortgage had been raised from the lien thereof, except the portion conveyed by the said Charles McCaffrey to said defendant. The prayer for judgment was that defendants, and all persons claiming under them, or either of them, subsequent to the commencement of this action may be barred and foreclosed of all right, claim, lien, and equity of redemption in such part or parts of said mortgage or premises as were so sold and conveyed by the said Charles McCaffrey, as trustee, to said Harper, and that the said premises may be decreed to be sold according to law, and that, the money arising from the sale be brought into court; that plaintiff may be paid the amount due on his mortgage, with interest, and for such other and further relief as shall be just and equitable.

      Stedman & Larkin, for app'lts; John H. Stoutenburgh, for resp’t.
   Cullen, J.

This is an appeal from an order of the special term denying defendants’ motion to direct the plaintiff to separately state and number the several causes of action stated in the complaint. We think that there is but one cause of action stated ; that is, for the foreclosure of a mortgage. The allegations of the complaint in reference to the conveyance,by an owner of the equity of redemption of a part of the premises mortgaged to the defend- . ant Harper, the retention by that defendant out of the purchase money of a sum to discharge the plaintiff’s mortgage, and the assignment by the grantor in such conveyance of his claim for the unpaid portion of the purchase money are averred only to show that the portion of the mortgaged land sought to be sold in this action is in equity primarily liable for the mortgage debt. The judgment prayed for asks only the sale of these premises, and out of the proceeds of sale the satisfaction of the plaintiff’s mortgage. The allegations above referred to, as to the conveyance to the defendant Harper, may have been unnecessary to support or establish the plaintiff’s cause of action. But nevertheless they are to be in no sense considered as stating an independent cause of action. The defendants’ motion was therefore properly denied. The order appealed from should be affirmed, with $10 costs and disbúrsements. All concur.


text:
    Jacob G. Bahr, Resp’t, v. Benjamin Boley, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Pleadings—Complaint—Misjoiner.
    A complaint, which alleges an eviction of plaintiff from his land and his malicious arrest, states only the continuation of a single trespass, and, therefore,but one cause of action.
    Appeal from an order overruling a demurrer to the complaint as frivolous.

      Louis Wertheimer, for app’lt; J. Stewart Boss, for resp’t.
   Cullen, J.

This is an appeal from an order of the special term overruling the defendant’s demurrer as frivolous. The action is for a trespass on the plaintiff’s land, ejecting him therefrom, and the conversion of plaintiff’s property. The complaint further related that:

“And on the said day, after forcibly assaulting and ejecting plaintiff, the defendant maliciously, and without cause, caused the plaintiff to be arrested and taken through the public streets of the city of Brooklyn to a station house, in charge of a policeman in uniform, and from said station house to a police magistrate, who discharged him.”

The defendant demurred, on the ground that several causes of action were improperly united. There is no doubt that in an action for trespass on lands the plaintiff could allege and prove all his injuries caused by the trespass, either to his person or to his personal property. In such case the cause of action would be the trespass, and the injury to person and property be not an independent cause of action, but an aggravation of the damage. We think that the allegation of the complaint quoted is to be construed as alleging the continuation of a single trespass. In this view there is but a single cause of action set forth in the complaint. It may be that the question presented by the demurrer was sufficiently debatable to have warranted the court in refusing the application, but, as we believe the demurrer untenable, it is not worth while to remit the parties to' another hearing.

The order appealed from should be modified by granting the defendant leave to withdraw his demurrer and answer, on payment of the motion costs, and, as modified, affirmed, without costs of appeal to either party. All concur.


text:
    Charles F. Britton, Resp’t, v. Angeline Bohde, Def't. New York Building Loan Banking Company, App’lt.
    (Supreme Court, General Term, Second Department,

      Filed March 5, 1895.)

    Parties—Intervention.
    In an action at law for the recovery of an indebtedness from defendant to plaintiff, the fact that another party claims such demand, does not entitle him to intervene.
    Appeal from an order denying an application to be made a party defendant.

      Booraem, Hamilton, Bickett & Ransom (William H. Hamilton and Henry R. Richards, of counsel), for app’lt New York Building Loan Banking Company ; Frank M. Buck, for resp’ts.
   Cullen, J.

This is an appeal from an order of the city court of Mount Vernon denying the application of the appellant to be made a defendant in the actioa The action is to recover the sum of $800, alleged to be due from the defendant on account of a, mortgage executed by the plaintiff to her. The appellant seeks to intervene on the ground that this sum of money really belongs to it. We think that this fact, if true, gave the appellant no right to intervene. If the plaintiff is not the owner of the claim, he will be defeated in this action. But, even if he should wrongly succeed therein, the appellant will nowise be injured. If it has a valid claim against the defendant, it may sue for it, and the recovery in this action will nowise bar its claim. This action is an action at law, and it is settled by authority that in such actions the plaintiff has the privilege of determining what parties he will proceed against, and that other parties cannot intrude themselves into the action against his will. Chapman v. Forbes, 123 N. Y. 532; 34 St. Rep. 353. The order appealed from should be affirmed, with $10 costs and disbursements.

All cuncur.


text:
    Adelbert G. Sergent, App’lt, v. London and Liverpool and Globe Insurance Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    Insurance—Proofs of loss.
    The failure to furnish of proofs of loss, as required by a policy of insurance, constitutes a complete defense to a recovery, unless such provision is waived by the company.
    Appeal from a judgment dismissing the complaint, and from an order denying a motion for a new trial.

      Andrew C. Washbon, for app’lt; C. D. Thomas, for resp’t.
   Per Curiam.

On the trial the plaintiff was nonsuited. The principal question involved upon this appeal is as to the validity of such nonsuit. The policy which formed a based for this action, among others, contained the following provisions :

“If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the-fire; the interest of the insured and all others in the property; the cash value of each item thereof, and the amount of loss thereon ; all incumbrances thereon; all other insurance, whether valid or not, covering any of said property, and a copy of the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described, and the several parts thereof, were occupied at the time of fire. * * * This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or proceeding on its part relating to the appraisal or to any examination herein provided for, and the loss shall not become payable until sixty days after the notice, ascertainment, estimate, and satisfactory proof of the loss herein required have been received by this company, including any award by appraisers when appraisal has been required * * * This policy is made and accepted subject to the foregoing stipulations and conditions; * * * and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto; and as to such provisions or conditions no officer, agent, or representative shall have such power or be deemed or held to waive any such provisions or conditions, unless such waiver, if any, shall be written upon or attached hereto; nor'shall any privilege, or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached."

That the property included in the policy in question was destroyed by fire on August 27, 1892, and that proofs of loss were not furnished until November 26th of that year, are undisputed facts in the case. Thus, it conclusively appears that the condition of the policy requiring the plaintiff to furnish proofs of loss within sixty days after the fire was not performed or complied with; nor is it pretended that the time was extended in writing by the defendant. The furnishing of proofs of loss as required by the policy was a condition precedent to the plaintiff’s right of recovery. Underwood v. Farmers’ Joint-stock Insurance Co., 57 N. Y. 500; Blossom v. Lycoming Fire Insurance Co., 64 id. 162; O'Brien v. Commercial Fire Insurance Co., 63 id. 111: McDermott v. Lycoming Fire Insurance Co., 44 Supr. Ct. 221; Bell v. Lycoming Fire Insurance Co., 19 Hun, 238. And the nonperformance of this condition constitutes a complete defense to a recovery upon such a policy. Quinlan v. Providence, etc., Insurance Co., 133 N. Y. 356, 362.45 St. Rep. 200. These authorities seem to be decisive of the question before us, unless this provision in the policy can be held to have been waived by the defendant. We have carefully examined the evidence bearing upon that question, and regard it as insufficient to raise any question of waiver of this condition in the policy. Without discussing the other questions upon which it is claimed that the nonsuit might be sustained, we regard the one already considered as sufficient, and hence do not examine the other questions presented for our -consideration. We have also examined the other-exceptions to which our attention has been called by the appellant, but find none that would authorize us to. disturb the judgment.

Judgment and order affirmed, with costs.


author: Martin, J.

text:
    Walter Walrath et al., App’lts, v. William H. Abbott, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    1. Appeal—Findings.
    Where the court, upon the trial of the whole issues of fact, states separately the facts found and the conclusions of law, and directs judgment to be entered thereon, the appellant is entitled to the benefit of all the facts found, whether included in the decision signed or in his requests found and filed.
    2. Same—Judgment eoll.
    Where the trial judge does not include in his decision all the findings, but delivers those not included to a party, who causes them to be filed, such party may procure an order requiring the clerk to annex the requests' and findings to the judgment roll.
    Appeal from an order, denying a motion to require the requests to find, together with the rulings of the trial court thereon, to be included in the judgment roll.

      C. J. Palmer, for app’lts; H. Clay Hall, for resp’t.
   Martin, J.

After a previous trial of this case, and after an appeal was taken from the judgment entered on the report of the referee therein, a motion before this court was made by the plaintiffs to compel the clerk of Herkimer county to annex to the judgment roll .the plaintiffs’ requests to find, and the rulings of the referee thereon. That motion was granted. We see no reason why we should not follow our decision at that time. While it may be that the better practice would require a court or referee to include in his decision or report all the facts found, and that, without an order of court, requests to find and rulings thereon may not form a part of the judgment roll, Nobis v. Pollock, 53 Hun, 441; 26 St. Rep. 155 ; Livingston v. Railway Co., 42 St. Rep. 4, yet, as that practice was not adopted in this case, the trial judge not having included in his decision all the facts found by him, but delivered those not included therein to the plaintiffs, who caused them to be filed, and as the appellants may desire_ to review the decision herein upon the findings of fact and conclusions of law made by the trial judge, including those contained in the plaintiffs’requests, we can see no good reason why an order should not have been granted requiring the clerk to annex such requests and rulings to the judgment roll. The suggestion that they were no part of the decision, but in the nature of an opinion by the court, ought not to obtain. It is manifest, from the papers contained in the appeal book,, that the plaintiffs were desirous that the court should pass upon the various facts proved and at issue upon the trial, and made their requests accordingly. Upon each request the trial judge noted that it was found or refused, as he then judicially determined the fact. It was then his purpose to find the facts as thus noted, as established facts in the case, and not to illustrate his views. I think, when the findings were thus made by the trial court and filed, the plaintiffs were entitled to the benefit of them, and, if the findings contained in the decision and those contained in the requests to find were inconsistent and irreconcilable, they were entitled to the benefit of the findings most favorable to them. Redfield v. Redfield, 110 N. Y. 671; 18 St. Rep. 560; Green v. Roworth, 113 N. Y. 462; 23 St. Rep. 149 ; Wahl v. Barnum, 116 N. Y. 87, 99; 26 St. Rep. 457 ; Traders’ Nat. Bank v. Parker, 130 N. Y. 415; 42 St. Rep. 506; City of Cohoes v. Delaware & H. Canal Co., 134 N. Y. 405 ; 47 St. Rep. 612. The respondent contends, and the special term seems to have adopted that view, that the repeal of section 1023 of the Code of Civil Procedure has changed the rule as to findings of fact and conclusions of law. That its repeal, and the amendment of section 1022, have wrought a change, there is no doubt. But a reference to the latter section discloses that the court upon the trial of the whole issues of fact may still state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon. Such was the course adopted in this case. When the trial judge adopted that course of procedure, we think the plaintiffs were entitled to the benefit of all the facts found by him, whether included m the decision signed or in the plaintiff’s requests found and filed. We find nothing in the repeal of section 1023 and the amendment of section 1022 which it any way deprives a party of the benefit of all the findings of fact made by the trial court, where it states the facts found and conclusions of law. It is true the amendment of the latter section gives the court the right, in deciding the issues in a case, to file a decision stating concisely the grounds upon which such issues have beén decided, and direct the judgment to be entered thereon. If, however, the court adopts the former course, and states the facts, we think the defeated party is entitled to the benefit of all the facts found by him; and where a party desires to review the decision of the special term, upon the facts and conclusions of law found, all the findings should be annexed to the judgment roll to enable the party to thus review them. Without deciding that requests to find and the rulings thereon necessarily form a' part of the judgment roll in an action, we are of the opinion that in this case an order should have been granted directing the clerk to annex them thereto. We think the order appealed from should be reversed, with $10 costs and disbursements, and that the plaintiffs' motion should be so far granted as to order the clerk of Herkimer county to annex the requests to find and the rulings of the court thereon to the judgment roll filed m this action. We are also of the opinion that the defendant’s motion to dismiss the plaintiffs’ appeal, and for judgment of affirmance, should be denied, without costs to either party. Order of special term reversed, with $10 costs and disbursements, and order directing the clerk of Herkimer county to annex to the judgment roll in this action the plaintiffs’ requested findings of fact and conclusions of law, with the rulings of the court thereon, granted, without costs to either party. The defendant’s motion to dismiss the appeal, and for affirmance of the judgment, denied, without costs to either party..

Hardin, P. J., concurs.

Merwin, J.—I think that the order of the special term should be affirmed. I concur in the denial of the motion to dismiss the appeal.


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

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    1. Negligence—Burden.
    In an action for death? of intestate through negligence, it is not to he presumed that the decedent was free from negligence, but the burden is upon the administrator to prove it, either by direct or circumstantial evidence.
    2. Same.
    The evidence, in this case, was held to render it at least probable that the injury was the result of the decedent’s own negligence.
    Appeal from a judgment in favor of defendant, entered on an order granting a nonsuit.

      Benedict & Thomson, for app’lt; Hiscock, Doheny & Hiscock, for resp’t.
   Martin, J.

This action was brought to recover damages sustained by the death of the plaintiff’s intestate, alleged to have been caused by the defendant’s negligence. On the evening of November 12, 1892, the decedent was killed by one of the defendant’s trains in its yard near the station in Syracuse, N. Y. He had been a passenger upon another train. When the injury occurred, he had alighted at the station, and started for his home, beyond West street, which is the westerly boundary of the defendant’s yard or station grounds. No witness was called who saw the accident. The circumstances, however, indicate that when struck by the train, the decedent was passing over one of the tracks in the defendant’s yard, for the purpose of reaching West street through an open gate which closes over two of the defendant’s tracks. Between the place where the plaintiff alighted and West street there were two passage ways, constructed for the accommodation of passengers leaving the station in that direction, which led directly to that street without crossing any of the defendant’s tracks, either one of which might have been taken by the decedent without the slightest danger of injury from a passing or approaching train. The only purpose that could have moved or have been accomplished by him in crossing the track was to save a few feet in distance. Ho necessity whatever was shown for his taking that course. There was no evidence that the defendant in any way invited or approved of the use of any pathway across its tracks as a way of exit for passengers leaving its station, although there was some proof which tended to show that persons passing on to West street, instead of using the pathway constructed and designed for that purpose, would sometimes pass across the defendant’s tracks near the street, to save a few feet in distance. It was also shown that the defendant’s employes tried to prevent people from thus crossing the track. The train by which the decedent was injured came to a full stop just west of West street, and then ran into the yard upon track Ho. 2, which lies immediately south of the defendant’s passenger station. It was running at the rate of only three or four miles an hour. The headlight upon the engine was lighted, and the bell was ringing. The train upon which the decedent arrived came into the yard upon track Ho. 3 which lies immediately north of the station. At the time of the accident he was familiar with the station, and the passageways leading to West street, and the entire situation of the defendant’s roads and tracks at that place. There was no evidence that the engineer or any of the persons employed upon the defendant’s engine or train were not competent men, vigilant and watchful in the performance of their duties, or that they did not stop the train as soon as possible after discovering that some one had been struck by the engine, or that the train or engine was improperly managed or in any way out of repair. At the conclusion of the evidence, upon the motion of the defendant, the plaintiff was nonsuited. The appellant contends that that was error, and that he should have been permitted to go to the jury, both upon the question of the defendant’s negligence and the question of the freedom of the plaintiff’s intestate from contributory negligence. After a careful and thorough examination of all the evidence in the case, and of the circumstances attending the decedent’s death, we are unable to find any sufficient ground upon which the court could have submitted the question of the defendant’s negligence to the' jury. That the defendant furnished ample facilities for the plaintiff to pass in safety from the station to West street is undenied, and hence there was no omission to discharge that duty towards the plaintiff’s intestate. But the appellant further contends that the fact that the defendant had allowed passengers to cross its tracks in going on to West street amounted to a license. If this were tobe assumed,—which it is not,—it would still be difficult to discover any duty that was imposed upon the defendant which it omitted .to perform. If there was such a license, there was imposed upon the defendant no other duty or greater care as to persons crossing its tracks in pursuance thereof than it would owe them if they were passing over its tracks upon the adjoining street That the defendant gave proper notice of the approach of the train by the ringing of the bell, that there was a headlight upon the engine, that it was running at a slow rate of speed, that the engine and train were in proper order and repair and properly managed, all show that there was no omission ot duty upon the part of the defendant that would render it liable, even if such a license had existed. Under these circumstances, we find no error in the court’s refusal to submit the question of the defendant’s negligence to the jury

Again, when we consider the question of the contributory negligence of the plaintiff’s intestate, we find an additional ground upon which to justify the court in granting the defendant’s motion for a nonsuit. The plaintiff was bound to prove that the injury to the decedent was not caused by his carelessness, and that )t was caused by the fault of the decedent. It is not to be presumed that the decedent was free from negligence, but the burden was upon the plaintiff to prove it, either by direct or circumstantial evidence. It was said by Andrews, C. J, in Weston v City of Troy, 139 N. Y. 281, 282 ; 54 St. Rep. 493 ;

“It is a fundamental principle in the law of this state that in an action for a personal injury, based on negligence of the defendant, the absence of negligence on the part of the plaintiff, contributing to the injury, must be affirmatively shown by the plaintiff, either by direct proof or by circumstances; and that no presumption arises, from the mere happening of an injury and proof of negligence on the part of the defendant, that the plaintiff was free from blame.”

This case was followed in Babcock v. Fitchburg Railroad Co., 140 N. Y. 308, 311; 55 St. Rep. 640, where Earl, J., said;

“ The plaintiff was bound to show that the explosion was not caused by the carelessness of Bennett [the plaintiff’s intestate, j and that it was caused solely by the fault of 'the defendant. It cannot be presumed that he was free from carelessness, and the burden was upon the plaintiff in some way to prove it Verdicts must stand upon evidence, and not upon mere conjecture, however plausible, and, if the situation be such that the plaintiff cannot furnish the requisite evidence, the misfortune is his.”

An examination of the evidence in this case renders it apparent that the plaintiff has not successfully borne the burden of proving, either by circumstances or direct evidence, that the decedent was free from any negligence which contributed to the injury resulting in his death. On the contrary, the evidence renders it at least probable that the injury was the result of the decedent's own negligence. Thus we are led to the conclusion that the court properly granted the defendant's motion for a nonsuit, and that the judgment herein should be affirmed.

Judgment and order affirmed, with costs.

All concur.


author: Van Wyck, J.

text:
    Carter Rice Company, App’lt, v. John Howard, Resp’t.

      (New York City Court, General Term,

      Filed March 19, 1895.)
    Bills and notes—Indorsement.
    Evidence that the payee indorsed the note at the request of the makers and for the purpose of facilitating its discount for Ike intended holder, is not sufficient to overcome the presumption that the indorsor of a note, payable to another, intends to become liable omy as a second indorser

      Appeal from a judgment, entered on a nonsuit.

      H. A. Sperry, for app’lt; D. A. Spellissy, for resp’t.
   Van Wyck, J.

The plaintiff, the payee of the note sued upon and made by Russell Bros., sues the defendant as indorser thereof, under the allegation that he indorsed the note before its delivery to plaintiff for the purpose of giving credit to the makers thereof with the plaintiff (payee), and this allegation was specifically denied by the answer. The court properly refused plaintiff’s request to have the defendant assume the affirmative. The only witness called by plaintiff to sustain this allegation was the defendant himself, the irregular indorser, who testified that he indorsed the note at the request of the makers, who said that they owed a bill to the Carter Rice Company, and that that company was short and wanted some discount, and, for the purpose of getting the note discounted for that company’s accommodation, “the makers asked me to sign it as an indorser for the purpose of facilitating its discount.” This is all of the evidence °as to the indorsement of defendant, and this proof certainly does not overcome the well-settled presumption of law that a person making such an irregular indorsement intended to become liable only as second indorser, and that on the face of the paper, without explanation, he is to be regarded as second indorser, and, of course, not liable upon the note to the payee, who is supposed to be the first indorser. Coulter v. Richmond, 59 N. Y. 481. The plaintiff was properly nonsuited and the judgment must be affirmed, with costs.

All concur.


text:
    Howard T. Marston et al., App’lts, v. Gustav A. Baerenklan, Resp’t.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Evidence—Pertinency.
    Iu an action for services alleged to have been rendered at an agreed price, evidence as to the fair and reasonable value thereof is properly excluded.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      J. A. Kent, for app’lts; J. P. Niemann, for resp’t.
   Van Wyck, J.

contract co perform certain professional services as lawyers at an agreed price of $250, and the plaintiff who alone conversed about the oral contract testified unqualifiedly that the express agreement as to the price was that it should be $250 for the designated services, and that defendant expressly agreed to pay that sum for such services. This plaintiff was then asked, on his direct examination, by his own counsel: “What, in your opinion, is a fair and reasonable price for the services you rendered?" and to which defendant objected, and his objection was properly sustained. This plaintiff’s unqualified testimony was that the price had been fixed by express agreement, and he had so declared in his complaint, and such inquiry was not made pertinent either by plaintiff’s pleading or proof, and, if such inquiry was pertinent under his pleading, it was precluded by his proof; defendant came unprepared to meet such an issue; the question was too general, for it permitted of an answer that the price was greater than the one agreed upon and fixed by plaintiff’s proof and pleading, and no preliminary proof had been given of the witness’ qualification to answer such an inquiry.

The plaintiffs’ other exceptions are to rulings upon questions asked by their adversary, and to which they objected, but failed to present the grounds of their objection, and are-unavailing for purposes of review, as shown by the record in this case. Kuhn v. American Automatic Knife and Novelty Co., 9 Misc. Rep. 54: 59 St. Rep. 665 ; Myers v. Cohn, 53 St. Rep. 223.

The case wg.s properly submitted to the jury, and no exception taken to the judge’s charge. The evidence is sufficient to justify the jury in finding, as they did, that the plaintiffs did not perform any services for the defendant.

The judgment and order appealed from are affirmed, with costs.


text:
    David M. Blaustein, Resp’t, v. William J. Warburton, App’lt.

      (New York City Court, General Term,

      Filed March 18, 1895.)

    Appeal—Error cured.
    Any error in excluding appellant's evidence as to the breach and non-fulfillment of the conditions of an alleged deposit is cured by his subsequent proof as to the non-performance of the conditions and by the charge that, if there were any conditions, they had not been performed.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Chas. F. Bostwick, for app’lt; David, Leventritt, for resp’t.
   Van Wyck, J.

The plaintiff herein, as the plaintiff in another action, had caused the arrest of one Foxall, the defendant therein, and, while in actual custody, his (Foxall’s) attorney secured his release by delivering a check for $415, made to the order of and indorsed by such attorney to the attorney of the plaintiff; whereupon both such attorneys signed a stipulation that, “ this action having been settled between the parties, it is hereby consented, that the same be discontinued, and that the order of arrest be vacated,” etc. This action is against Foxall’s said attorney, as such indorser of this unpaid check of $415 ; and the proof of the plaintiff herein is that, when the stipulation to settle the action and vacate the order of arrest was signed and delivered,' this check, so indorsed, was delivered, to his attorney, in absolute and unconditional settlement of that action. The defendant indorser herein, in. his own behalf, testifies that he was Foxall’s attorney in the other action, and signed and accepted the stipulation, and at the same time indorsed and delivered the check to plaintiff’s attorney therein, and then said to him: “ Of course, I won’t expect you to take a check from my client in jail. I have had him draw the check to my order, and I will indorse it. I am willing to take the responsibility. This is the amount I am placing in j-our hands in trust;” and that, to this, plaintiff’s attorney replied: “ If you will send for the other defendant, and induce him to come to New York to-morrow, we will then go over the items of plaintiff’s account, and find out how much of this $500 is due, and how many shares of stock I have to returnand that he (Foxall’s attorney) said that “ that would be satisfactory. I gave plaintiff’s attorney the check of $415, and the money, $85, and I received the release and stipulation. As I understand it, that ended our •conversation.” The'appellant, this defendant, indorser of the ■check sued upon, insists that, although he was permitted to prove by his foregoing testimony the conditions upon which he delivered the check, his evidence by which he sought to prove the breach or nonfulfillment of these conditions was improperly excluded, to which he excepted. The exclusion of some of this -evidence would have been fatal if the plaintiff had by proof contended that there conditions had been performed or fulfilled; but such was not his contention, for he insisted that no such conditions were imposed, but that the delivery of the check to his attorney was absolute and unconditional; and, moreover, this defendant himself testified, at folio 74, that the stock had never been delivered to him or his client, and his witnesses Zimmerman and Brauns both testify that none of the stock was delivered, and that no agreement had been reached as to how much of the $500 was due, while the plaintiff did not dispute the same, and made no proof whatever that the stock had been returned or the amount adjusted. Hence the evidence was absolute, overwhelming, and uncontradicted that, if the deposit was made upon the conditions insisted upon by defendant, there was a breach and nonfulfillment of these conditions by the plaintiff; and the judge ■charged the jury, without objection, request, or exception by the defendant, that:

“ The making and delivery of the check in suit is not disputed by the defendant. He claims, though, that the check was not to have life, or was not to become the absolute property of plaintiff’s attorney, until a certain condition was complied with ; that condition being the accounting for, or the delivery to the defendant of, the stock which there has been so much talk about Such ■a condition was a perfectly legal and binding one, if you find from the evidence that these were the terms or conditions on which the ■check was placed m the custody of plaintiff’s attorney. If you find such to be the fact, you will render a verdict for defendant. If you are satisfied that the defendant has established the contract under which he claims, that this check was placed in the possession of plaintiff's attorney, he is entitled to a verdict.”

Any error in excluding defendant's evidence as to the breach and nonfulfillment of the conditions of the alleged deposit was cured by defendant’s "proof that the conditions had not been performed, and fulfilled by the plaintiff, and by the judge’s acquiescence in this proof by substantially charging the jury, that, if there were any conditions attached to the delivery of the check, they had not been performed and fulfilled by the plaintiff, and that defendant was entitled to the verdict. Neil v. Thorn, 88 N. Y. 270.

Judgment affirmed, with costs.