text:
    In the Matter of the Judicial Settlement of the Accounts of Henry E. Nesmith, Trustee under the Will of James Nesmith, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Tbustee—Impbovement of tbust estate.
    By the will oí testator the trustees were empowered to improve the property, if they saw fit, and to buy adjoining property on the block, if they saw fit, raising money on mortgage for either or both purposes, if in their judgment necessary, to recover the earning of said property. The trustees erected a shed at a cost of $12,450, which was necessary to hold and increase the business formerly carried on by testator, and the rental was thereby increased $6,000. Held, that the power to raise money by mortgage was not imperative and did not subject the trustees to loss if it was not exercised, and that a direction to pay said sum out of the increased income was proper.
    2. Same—Allowance fob office bent.
    Where it appears that an office was necessary to the business, and the trustee gives substantially all his time thereto at said office, an allowance for the rent thereof is proper.
    3. Same—Intebest.
    The trustees had been partners with deceased and continued the business, and deposited the trust moneys in the firm name with the consent of all the beneficiaries. Some part thereof was used in the firm business, but notice was given when the deposit did not equal the trust funds. Held, that under these circumstances the trustees were only chargeable with interest on the sums so used by them and not on the entire deposit.
    Appeal from decree of the surrogate’s court of Kings county, settling the account of the trustee.

      J. Treadwell Richards, for Sarah F. Nesmith et al., app’lts; L. H. Arnold. Jr., for resp’t.
   Barnard, P. J.

The deceased was a warehouseman, doing business near the Fulton ferry, in Brooklyn, in connection with his two sons, James I. Nesmith and Henry E. Nesmith. He died in 1872, leaving a last will and testament, with two codicils thereto. The second codicil is as follows, so far .as needed to present the question raised: “I give to my sons, James I. and Henry E. Nesmith, the Empire street property, in trust for the benefit of themselves, one-quarter each; of my son, Benjamin, I give one-quarter, and of the children of my daughter Caroline one-quarter, subject to an annuity of my wife Caroline of five thousand per year during her life; said James I. and Henry E. Nesmith to have sole direction and management of said property, to improve the property if they see fit, and to buy the adjoining property on the same block (any such purposes to be included in this trust) if they see fit, raising money on mortgage for either or both purposes, if in their judgment necessary, to recover the earning of said property; and after deducting therefrom all charges, expenses and disbursements, including the aforesaid annuity, to-account to the heirs for their respective portions except as to the children of my daughter Caroline who may not be of age, to them, paying sufficient to support and educate them till they become of age if necessary; and it is my will that when either of said trustees shall die, the survivor shall hold the trust, and on his death the property shall be sold, and the proceeds divided in the manner directed in my will concerning my personal property. Under this power to improve the trustees erected a shed at a cost of $12,450, which was necessary to hold and increase the business, and the year’s rental thereby has increased six thousand a year. The surrogate decided that “they were to be paid out of this increased income. This was a favorable construction to the appellants. The clause taken together means to give very full power to the trustees. The power to raise the needed money by mortgage was not imperative and did not subject the trustees to loss if it was not exercised. That was one way of getting the money, and in view of the heavy mortgage on the property an uncertain way. If there had been a mortgage, the interest would be chargeable on the income. When payable out of the increased income, there is no reason why the appellants should object. There is no illegal accumulation of rents. The trustees had power to charge the $12,450 on the income wholly where a shed costing $12,450 would increase the rental so much as to pay it back in two-years. The decree only postpones the payment until the increased rents will pay it.

The referee has found that the office in New York is necessary to the business, both as canned on by the trustees and the present occupant and tenant, whose occupancy will terminate so soon, when the office will be liable to become again a necessity. The charge for rent was, therefore, proper. The trustee gave substantially his entire time to the management of the business at this office. The moneys of Nesmith were deposited in the firm name. The account was not changed in form after his death. There was notice when the deposit did not equal the trust funds, in other words, when the trustee had used the money for his private use. The decree appealed from charged him with the interest on such sums as were used by him. The appellants claim that he should be charged with interest on the whole deposit. The referee has found that it was used to carry on the business under the old name; that there was no intent to use the trust moneys for the trustee’s personal benefit or to strengthen his individual credit. The beneficiaries generally understood the way the business was managed. No harm was intended. None was done. The business was successfully carried on and the income divided yearly among those entitled thereto.

The decree of the surrogate should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    The Independent Ice Association, Resp’t, v. Wallace C. Andrews, Impl’d, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    COSTBACT—BbEACH.
    The complaint alleged that plaintiff and the defendants entered into an agreement in writing which recited that plaintiff held a lease of two wharves, used as ice bridges, and agreed that if defendants should furnish ice to be sold over these bridges until a specified time it would furnish free wharfage, hoist and do all business connected with selling the same; the plaintiff was to have ten per cent of the gross receipts each day; and provided that if either of the bridges became uncovered plaintiff would be expected to cover it from the bridge which might have ice and receive for the transfer fifty cents per ton, and that in case both bridges were out of ice atoone time they should be covered from such of plaintiff’s bridges as may be provided and in the same manner; that after a specified time defendants neglected and refused to furnish ice, and plaintiff was obliged to cover them from its other bridges, and that defendants had paid nothing therefor. Held, that the complaint stated a cause of action; that the written agreement constituted a contract to enter upon the business of selling ice; that defendants were under an obligation to furnish ice at the bridges every day and their failure to do so constituted a breach.
    Appeal from interlocutory judgment overruling demurrer to complaint.

      James H. Hawes, for app’lt; Potter & Potter, for resp’t.
   Dykman, J.

This is an appeal from an interlocutory judgment overruling a demurrer to the complaint on the ground that it failed to state a cause of action.

The complaint is based upon a written agreement, and alleges a breach thereof by the defendants to the damage of the plaintiff.

Although the agreement is somewhat obscure, we yet think it imposes mutual obligations upon the parties thereto.

It commences with a recitation that the plaintiff has a lease of two certain wharves occupied as ice bridges, it agrees that if the -defendants shall furnish ice to be sold over such bridges until the 1st day of April, 1891, the plaintiff will furnish free wharfage, hoist and do all business connected with the selling of such ice, and offered all the facilities in its .power to increase the trade that may be obtainable over those docks.

Then it is provided that the defendants shall have the privilege of putting a bridge boss to represent their interest, and that the weighing should be done by their weigh-master or under his supervision, as he shall elect, that the cash shall be taken by the defendants’ cashier, and that all credits authorized by Mr. H. 0. Eldridge, representing the plaintiff, shall be paid for daily by check of Eldridge.

The plaintiff was to receive ten per cent, of the gross receipts, including credits each day for ice sold over the bridges, and five dollars a day was to be deducted from the said ten per cent, to pay for the services of two men who are at each bridge to represent the Interest of the defendants.

Then it was stated to be further understood that the defendants should have the privilege of cancelling the agreement upon twenty days notice.

Further it was provided that if either of the bridges became uncovered, the plaintiff should be expected to cover said bridge from the bridge which might have, in such manner as they thought best and for such transfer it should receive in addition to the ten per cent, an additional allowance of fifty cents per ton, such transfer to be made in an economical manner.

The last clause was this: “In case both of said bridges are out of ice at one time, they shall be covered from such of our bridges as may be provided and in manner aforesaid.”

It was alleged in the complaint that the plaintiff performed all the obligations assumed by it under the agreement, but that the defendants neglected and refused to furnish ice to be sold over the wharf and bridges, excepting prior to about the 10th day of September, 1890, and that after such date they wholly neglected to furnish ice as required by the terms of the agreement.

That by reason of such neglect the plaintiff was compelled to and did cover the bridge mentioned from other bridges at which it had ice from time to time to the amount of about six thousand tons, and that the transfer was made in an economical manner.

That the defendants have paid nothing to the plaintiff either for the business carried on, or for furnishing ice to cover the bridges, and that the agreement has never been canceled.

Taken as a whole the written instrument constituted a contract between the parties to enter upon the business of selling ice.

The ice was to be furnished by the defendants and sold by the plaintiff at its wharves, and if they failed to furnish ice to cover the bridges, the plaintiff was to cover them and receive fifty cents a ton for so doing. We assume that the word cover is used in the agreement in the sense of furnish, and that the defendants were under obligation to furnish ice at the bridges every day to continue the business in operation.

Such being the contract, the failure of the defendants to furnish ice at the bridges constituted a breach, and the damage therefor is fixed at fifty cents a ton.

In this view the complaint states a cause of action, and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Ellen M. Cowhill, Adm’rx, App’lt, v. Percival Roberts, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Master and servant—Negligence.
    Plaintiff’s intestate was employed by defendant in the construction of an elevated railroad structure, and his work was upon the ground in advance of the traveler, and required him to climb up the columns. On a cold morning, when the structure was covered with ice, he arrived late, and attempted "to climb one of the columns in order to put his overcoat and lunch on top before commencing work, when his hand slipped on the ice-upon the brace of a temporary girder and he fell and received injuries from which he died. L.ekl, that defendant was not negligent in not providing a ladder nor in allowing the brace to be used under the circumstances, and that the risk of climbing the columns was apparent and was. one of the hazards of the employment which the deceased assumed.
    Appeal from judgment dismissing the complaint, and from an order denying a motion for a new trial.

      Hector M. Hitchings, for app’lt; George W. Wingate, for resp’t.
   Dykman, J.

This is an appeal from a judgment and order denying a motion for a new trial.

The action was for the recovery of damages resulting to the plaintiff by the death of her intestate, John W. Cowhill, deceased, which is claimed to have been caused by the negligence of the defendant.

The deceased was in the employment of the defendant, who-was engaged in the construction of an elevated railroad in Myrtle-avenue in the city of Brooklyn. The railroad was constructed by placing iron columns fifty feet apart on the curb line of the street, and the columns were connected by transverse girders upon which were placed four longitudinal girders, which supported the-track. These girders were hoisted into place by a moving derrick called a traveler, which was placed upon the top of-the structure, and was moved along as the work progressed. Upon the-sides of the column were lattice work, and each girder had a broad flange at its top and bottom. The girders at this point were five feet high. The deceased man had been working upon this road for the defendant for about two months. The work was of a dangerous character, and required active men. As there was to be a station at the point of the accident, one of the iron girders could not be put in until the traveler had passed, and its place was supplied by a temporary wooden girder which was braced by wooden braces six by three inches, and eight to ten feet long, extending to the ends of the .girder, where they were fastened into the flanges, and wedged by a wooden block. This-was the method which had been pursued at another station on which the plaintiff had worked and the bracing was the customary one, and was necessary.

To go upon the structure, the workmen climbed up the lattice work of the columns and then put one arm around the girder, and the other hand on top of it, and climbed up in that way. The woodwork had been up there for two or three days before the accident. The deceased was working upon the ground at this time, and the workmen who worked on the ground kept their coats in a box on the sidewalk.

The morning of the accident was a cold, frosty morning, and the structure was covered with ice.

The deceased was a little late, and climbed up one of the columns to leave his overcoat and lunch, and put on his overalls five minutes before seven, the time at which he was required to be at his work.

It is claimed by the plaintiff’s counsel that when the deceased reached around the girder to catch hold of the flange, he struck it against the block which held one of the braces, from which his finger slipped, and that the defendant is responsible for negligence, first, in allowing the brace to be used, and second, in not providing a ladder.

The testimony is that the ladder had not been used upon this work, that the bracing was such as had been used on the work before, and was customary and necessary to support the weight of the traveler.

The witnesses on the part of the plaintiff testified that the wooden brace, which it is claimed was the cause of the accident; was usual and necessary in the progress of the construction of the road; that they had been up for several days, during which the deceased worked around them, and had the same opportunity of knowing of their existence as the other workmen.

The brother of the deceased man testified that his brother had not commenced work on that morning previous to the accident, that he had his overcoat on, and that it was a cold, frosty morning ; that there was ice on the work, and that when water fell it was frozen, and being a few minutes late, he was going up with his overcoat on.

Michael Gordon, a witness on the part of the plaintiff, testified as follows: “Was with the rest of the gang. They had a traveler putting up the columns and cross girders. The work was on the ground. He was one of the gang who worked ahead of the traveler on the ground, and when a pillar or column was swung into position, the nearest man climbed up there and adjusted the cross-girder. He was engaged at this time around the traveler. He was working on the ground. When he went up there he went up for no other purpose than to leave his coat and lunch and put on his overalls. That was before he reported for duty, five minutes before seven. We were required to go to work at seven o’clock.”

It may be remarked here in passing that the testimony shows that the deceased did not climb this column for any purpose of the defendant; that he had not commenced work on that day, but went up the column for his own purpose and convenience to put his overcoat and lunch on the top of the structure and put on his overalls; that the prosecution of the work in which he was engaged at that time did not require him to climb the column.

The failure to provide a ladder cannot be assigned for negligence in this action, first, because the deceased was not at that time required to ascend the structure, and second, because the deceased had been climbing the structure by the lattice work on the columns as the other workmen did, and the risk of such climbing was entirely apparent, and was a hazard of his employment which he assumed and perfectly understood.

The fact that there was no ladder was apparent to the deceased, not only before he climbed this column, but during his term of employment for some time previous.

It is important to note that there was no imperfection in any of the appliances used ; that nothing gave way; and it seems a fair deduction from the facts and circumstances that the fall of the deceased was caused by his failure to grasp the girder in his attempt to ascend the structure.

“It has come to be settled in this state that where a servant enters upon an employment which from its nature is necessarily hazardous, he assumes the usual risks and perils of the service, and also those that are known to him, and which are apparent to-ordinary observation.” Stringham v. Hilton, 111 N. Y., 188; 19 St. Rep., 621.

In Kennedy v. Manhattan Elevated, 33 Hun, 457, it was held' that an elevated railroad was not liable for failure to provide a footwalk for watchmen on the structure, and that if one was struck by a train through the engineer’s carelessness the company was not liable.

In that case the court said: “ The defendant was not bound to secure protection of the person employed against such risk of injuries as is incident to the employment itself. Where the nature of the servant’s employment requires him to make use of the instruments as they had been located in that vicinity, and it was all clearly and evidently before his eyes, and within his comprehension, he must have understood that in the discharge of his duties he subjected himself to the risk of just such an accident as was encountered by him, and as that was clearly indicated by the situation and the circumstances under which he was obliged to-act, that was one of the risks incident to his employment.”

While this rule may not be applicable in all cases of casualties resulting from the use of complex machinery, it is applicable to this case, where the risk was as apparent to an ordinary workman as to an expert.

In the case of Gibbs v. Erie Railroad, 63 N. Y., 449, it was said by the court: “ When the deceased entered the employment of the defendant he assumed the usual risk and perils of the service, and also the risk and perils incident to the use of the machinery and property of the defendant as it then was so far as such risks were apparent.

“Accepting service with a knowledge of the character and position of the structure from which the employe might be liable to-receive injuries, he could not call upon the defendant to make alteration to secure greater safety, or in case of injury from risks which were apparent he could not call upon his employer for indemnity.”

“ If the defects in the machinery or other appliances areas well 'known to the servant as to the master, the servant must be regarded as voluntarily incurring the risk resulting from its use, unless the master, urging on the servant, contributes to-the injury.”

“A servant who has accepted service with knowledge of the character and position of structures from which he may be liable to injury, in case of injury resulting therefrom cannot maintain an action against his employer for indemnity. He assumes apparent risk, and cannot call upon his employer to make alterations to secure greater safety.” Deforest v. Jewett, 88 N. Y., 264.

“ The law also implies a contract on the part of the employe that he will assume the ordinary risks which are incident to the business in which he is employed.

“ One of these risks is that structures or appliances may turn out to be defective, noth withstanding the exercise of due care by the employer to provide such as are safe and proper for the purpose for which they are designed.’’

In this state the rule stated is well settled. Devlin v. Smith, 25 Hun, 208 ; S. C., 89 N. Y., 476.

It may now be assumed as settled that in an action by a servant against a master to recover damages occasioned from defective appliances or machinery, the plaintiff must establish first that the machine or appliance was defective, or that the master had knowledge or notice, or ought to have known it, and that the servant did not know, and had not equal means of knowing with the master. Hone of these conditions have been established in this case.

The usual and necessary method of erection clearly cannot be considered defective as a matter of law, in the absence of evidence that there was any other usual or even practical method of erection from which an accident like this might be avoided, or the risk of it diminished.

It is shown the deceased had the same means of knowing of the existence of the braces, and the exact condition of the affairs, as the employer; in fact, he had better means of knowledge, as he could see, on the morning of the accident, that the structure was covered with ice so as to make it .dangerous to climb up the column, where there was no time or opportunity for the employer to become aware of such state of facts.

The braces and the manner of their attachment bad been in position for days, during which the deceased had been working where they were, so that he could have seen them.

There is no foundation for the contention that the deceased should have been instructed in respect to their existence, as they were plainly visible to the eye.

We have, then, the case of a man working on and around this structure for about two months, and who was shown to have been a first class workman, entirely familiar with the method of erection, and accustomed to going up these columns, and to hold the defendant liable for injuries under such circumstances would be equivalent to making a master an insurer of the lives of his workmen. This view seems to be sufficient to show the absence of negligence on the part of the defendant and the presence of carelessness on the part of the deceased.

At the very least, it fails to make a case under which the settled rule of law in this state entitles the plaintiff to a recovery.

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

Barnard, P. J., and Pratt, J„ concur.


author: Pratt, J.

text:
    Susan Cassidy, Resp’t, v. The City of Poughkeepsie, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Municipal corporations—Negligence—Care of streets.
    It is the duty of a municipal corporation, in the exercise of care over its streets, to look after the effects of protracted use upon a structure, such as a cover of a sewer hasin, likely to become dangerous in the course of time; and such duty is equally incumbent where the foothold has been originally constructed by lawful authority, as if it had been the work of trespass or the elements.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $600, and from order denying motion for new trial.
    Action for injuries sustained by plaintiff by falling into the opening of a silt basin in the city of Poughkeepsie.

      C. B. Herrick, for app’lt; J. F. Ringwood (J. Morschauser, of counsel), for resp’t.
   Pratt, J.

The trial judge gave this case to the jury upon the simple question of whether the plaintiff had suffered her damages through the neglect of the defendant to discharge its duty to care for the safety of the public streets in respect to that portion of Duane street through an opening in which the plaintiff had fallen.

This was a plain issue upon a sound basis of law, from the determination of which by the jury the defendant is not relieved by the argument and authorities presented by its learned counsel.

The sewer-basin and its cover were constructed in 1876. Granting that the city was not responsible for the action of the water commissioners, either in the adoption of the plan or the actual building of the works, it by no means follows that it could wholly neglect, for a period of fifteen years, to look after the safety of the street so far as it was affected by the structure erected, and remain free from all responsibility. It would seem that the cover or bridge was fit and adequate for many years ; and evidence was given upon the trial to show that its instability had arisen from the ordinary incidents of protracted use. Common prudence dictated that the city, in the exercise of care over its streets, should look after the effects of such use upon a structure quite likely to become dangerous in the course of time; and this duty was equally incumbent where the foothold had been originally constructed by lawful authority as if it had been the work of trespass or the elements.

The trial judge appears to have concurred with the defendant’s counsel in tiis views of the limitations. -upon municipal liability applicable to the case. The case rested, and its trial was steadily conducted, upon the fundamental ground of the defendant’s liability for its own negligence. The jury, thus guided, found the facts sufficient to make out the plaintiff’s case, and we see. no reason why their verdict should be disturbed.

The judgment must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    In the Matter of the Judicial Settlement of the Accounts of James L. Truslow et al, Surviving Ex’rs of Gilbert Potter, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Will—Construction—“ Children."
    Testator left surviving a widow, a son and two daughters. By his will he gave certain real estate to his executors in trust for the widow for life, with a power of sale, the property or its proceeds to fall into the residue on her death, and the residue of the estate to sell and invest a portion of the proceeds for the benefit of the widow, and divide the balance and the widow’s fund at her death into three parts and pay tire income of one of such parts to each of his children for life. It then provided that if either of his children should dio leaving issue the capital of the share held in trust for the parent should be paid to such issue; and if either should die leaving no issue, the capital of the share held in trust for said child should be paid to the surviving children. Both the daughters died before the widow, one leaving issue, and the other none. Held, that the words “ capital of the share held for the use of the one so dying ” referred to the one third part of the entire estate; and the word “ children ” was used in its primary sense of offspring in the first degree; that the children of the daughter who left issue are entitled to their parent’s share, but take no part of the share of the other daughter.
    Appeal by Gilbert Potter, ex’r, from, decree of the surrogate of Kings county, construing the will of Gilbert Potter, deceased.

      Joseph A. Burr, Jr., for app’lt; Charles W. Truslow, for resp’ts.
   Dykman, J.

This is an appeal from the decree of the surrogate of Kings county, construing the last will and testament of Gilbert Potter, deceased, upon the judicial settlement of the accounts of the executors.

The testator died on the 18th of March, 1883, leaving a last will and testament, dated April 4, 1877, and a codicil thereto, dated July 8, 1881. The codicil requires no consideration upon this appeal.

When the will was made the testator had three children, Mary Elizabeth. Beard, Josephine Curtis and Gilbert Potter. Mrs. Beard then had two children, Josephine and Anna. Mrs. Curtis had no children, and never had any. The testator left surviving him his widow, Phoebe Potter, and his three children and two grandchildren named above.

He left a large estate, consisting of both real and personal property.

Mary Elizabeth Beard, the daughter of the testator, died September 22, 1884, leaving her two children surviving,

Mrs. Josephine Curtis died February 4, 1891, leaving no children. Phoebe Potter, the wife, died June 17, 1891. Gilbert Potter still lives.

The first and second clauses of the will give specific articles to the wife and son of the testator.

By the third clause of the will, the testator gave to the executors the real property on Bedford avenue and Morton street, in the city of Brooklyn, in trust to receive the rents and profits, and pay therefrom the expenses of the property, and pay the residue to the wife of the testator during her natural life, with a power of sale in the lifetime of the wife with her consent. In the event of a sale, the proceeds to be invested, and the income therefrom paid to the widow during her natural life, and at her decease the fund was to fall into the residue, subject to the trust created in relation thereto.

The fourth clause of the will gave to the executors all the residue of the testator’s property, in trust, to sell and convey the same in their discretion, collect the proceeds, and pay the debts and funeral and testamentary expenses, and upon the further trust to invest out of the proceeds $120,000, and apply the income to the use of the wife during her natural life.

Also upon the further trust to divide the remainder of such residue into three equal parts, and set apart and designate one of such shares for the use of each of the three children of the testator, and apply the income arising from each of such parts to the use of the children for whom it was designated during his or her natural life, with a proviso in relation to the entry into business of the son of Gilbert, which is unimportant here. Upon the yet further trust, to divide the sum of $120,000 into three equal parts at the death of the wife, and set apart one of such parts to each of the three children, and apply the income arising from each of such parts to the use of the child for whom it was designated, during his or her natural life.

Upon the death of either of the children of the testator leaving issue, the executors were authorized and directed to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying. But if either of the children of the testator should die leaving no surviving issue, then the executors were directed to pay the capital of the share held for the one so dying to the surviving children of the testator equally.

Thus far we have given a summary of the provisions of the will primarily applicable to the disposition of the estate of the testator.

Mrs. Beard is dead, but she left two children, and they took their mother’s share under the clause of the will which says: “ Upon the death of either of my children leaving issue I authorize, empower and direct my executors and trustees to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying.”

It is equally plain that the one-third of the estate which was set apart for the use of the son, Gilbert, must be retained by the executors for his use during his natural life.

The question, therefore, left for solution is whether the executors are to pay over to the son, Gilbert, the share of the estate held by them for Mrs. Curtis, or whether that one-third is to be divided between him and Josephine 0. B. Canfield and Anna H. Beard, the two children of Mrs. Beard, deceased.

The answer to that question is to be deducted by the following clause in the will: “ If either of my said children shall die, and leave no issue surviving them, I direct my said executors to pay, divide and distribute the capital of the share held for the use of the one so dying, to and among my surviving children, equally.”

If the word “ children ” is employed here in its primary sense, and is to be allowed its natural and ordinary significance, then the construction of this clause is simple, and its meaning and intention is plain. By the rule of construction in this state applicable here, the term children is to be deemed to signify offspring of the first degree of the ancestor, unless it appears there were no persons in existence who would answer the description of children in the primary sense of the word at the time of making the will, or that there might be none at the time or in the event contemplated by the testator, or where the testator has clearly shown by the use of the word, or in other portions of the will, that he employed the word children as synonymous with descendants or issue, or to designate another class of persons. Mowett v. Carrow, 7 Paige, 328; Palmer v. Horn, 84 N. Y., 516.

We have here a plain and unambiguous sentence constructed in language which suggests no intention to use any words in an alternative sense or to allow the term children a substitutional import.

The scheme of the will is easy of comprehension. It gives to the executors the real property in Bedford and Morton streets in trust for the use of the wife during her natural life ; upon her death it or its proceeds sink into the residue of the estate.

Out of the residue $120,000 was to be invested for the use of the wife, and that even was to be augmented by the proceeds of the residence property if it was sold. The remainder was to be divided into three parts or shares, one of which was to be set apart and designated for the use of each of the three children of the testator, and the income from each share was to be applied to the use of the child for whom it had been set apart, and who had been designated as its owner.

At the decease of the wife, the $120,000, with the proceeds of the sale of the residence property, was to be divided into three equal parts.

Thus was made a complete disposition of the property for the natural lives of all the beneficiaries under the will, and when the testator commenced the final disposition of his property, the first thing he did upon that subject was to give a direction to the executors upon the death of either of his children leaving issue to pay to such issue equally the capital of the share held by them in trust for the use of the parent so dying.

Then he made a provision that if either of his children died leaving any issue surviving, then his executors should divide and distribute the capital of the share so held for the use of the one so dying among the surviving children equally.

Events have now so transpired that the situation is thus : Mrs. Beard left children surviving her who take the third of the estate. At the time of the death of Mrs. Curtis the fund set apart for the use of the wife had not sunk into the residue, and, therefore, we may as well inquire here what fund the executors held in trust for Mrs. Curtis at that time. The answer to that inquiry depends upon the signification to be attached to the phrase, the capital of the share held for the use of the one so dying,” which is not free from obscurity. It must be borne in mind that the entire estate was given to the executors in trust with the direction to make two divisions of the same in the first instance. In the first place, the residence property or its proceeds and $120,000 was to be set apart for the use of the wife during her natural life, and the residue was to be divided into three equal parts for the use of the three children during their natural lives. Then at a subsequent time, upon the death of the wife, the portion of the trust fund which had been 'set apart for her use was to be divided into three equal parts, one of. which was to lie set apart for the use of each of the three children, and the income arising from each was to be applied to the use of the children for whom it was designated.

The one-third share of the entire estate had been held for the ultimate use of each child, at all times subject to the prior trust for the benefit of the wife in a portion thereof.

If this construction be not adopted, then the testator made no disposition of the fund set apart for the use of the wife after her death. The portion of the estate set apart for the use of the wife is undisposed of, unless it is included in the part of the estate which the testator had in mind when he used the words, “ capital of the share held for the use of the one so dying.”

Our conclusion is, therefore, that those words refer to the one-third part of the entire estate. In a broad sense the executors at all times held all the estate for the use of the three children, one-third for each child. This construction prevents intestacy as to any portion of the fund, and that result should be accomplislipd whenever it can reasonably be done.

Ecturning again to the meaning of the word “children,” as used by the testator, we have stated the exceptions to the general rule that the word is to be understood in its primary sense of offspring in the first degree.

It is now to be remarked that this case falls within neither of those exceptions. There were persons in -existence who would answer the description of children in the primary sense of the word when the will was made, and there could be and was such when all the events contemplated by the testator transpired. There is nothing in the use of the word by the testator in any other portion of the will to indicate his intention to use it in any but its primary sense. Throughout the entire will the testator has manifested the intention to give his surviving children the ultimate use of his property, and whenever he has indicated his grandchildren he has designated them as issue of his children.

In the last clause of the first paragraph of. the will the testator provided that if two of his children die before him, the executors were to hold all the residue upon the same trust to apply the income to the use of such surviving children during life, and divide the principal among his or her lawful issue equally, thus manifesting an intention in a certain contingency to permit one-third, or one child, to receive all the income. But in no part of the will is there any indication of an intention to allow the issue of one child to take anything more than the share held for the use of their parent

The will manifests a predominant intention of the testator to make liberal and equal provisions for his three children. The résidue of the egtate, after the property is set apart for the use of the wife, is divided into three parts, and a vested life estate is given to each child in one of the provisions. The same division is made of the $120,000 after the death of the widow. Then, if either of the children die without issue to take the parents’ share, the executors are to divide and pay the share for the use of the one so dying among the surviving children equally. We must assume that this language is employed with deliberation. It is precise and plain, and we are asked to decide that it should be construed to include grandchildren with the children in such division and distribution. We find no justification for any such interpretation. It is not so written, and there is no ground for any such inference. In the Matter of Robinson, 57 Hun, 395; 32 St. Eep., 720, we had this question presented to us under circumstances similar to this in this case, and we there reached the same conclusion, and gave our reasons at length therefor.

Without more elaboration we think the decree should be reversed, and the case remanded to the surrogate for disposition in accordance with this opinion, and the costs of the appeal to be paid out of the estate.

Barnard, P. J., and Pratt, J., concur.


text:
    Augustus Van Keuren et al., Resp’ts, v. William Starr Miller, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Contract—Architect’s certificate.
    Plaintiffs and their assignors performed work under building contracts with defendant, by terms of which the bills were to be paid on the fifteenth of each month, provided they were accompanied by the architect’s certificate. The certificate for the October work was obtained, but the architects refused, without a valid reason, and on the request of defendant, to give certificates for the November work. Defendant paid to plaintiffs less than the October bills, and the work was suspended. Held, that the bills became due the same as if a certificate had been issued, and that plaintiffs were entitled to recover the balance remaining after application of the payment upon the bills for the two months.
    Appeal from judgment in favor of plaintiffs, entered upon the decision of the court on a trial without a jury.

      Esselstyn & McCarty, for app’lt; A. Lee Wager, for resp’ts.
   Dykman, J.

This is an appeal from á judgment in favor of the plaintiffs against the defendant.

The action was for the recovery for work and labor furnished to the defendant in the construction of a large stone mansion at Ehinebeck, in Dutchess county, in pursuance of a written contract

The action was tried before a judge of this court and decided against the defendant, and from the judgment entered on such decision the defendant has appealed.

The trial judge found and decided the following facts: On the 8th day of July, 1892, Augustus Van Keuren, one of the plaintiffs in this action, and the defendant entered into a contract in writing, whereby Yan Keuren agreed to do all the labor in connection with the mason work and plastering upon the erection of the residence of the defendant, already mentioned.

According to the terms of the contract, the labor was to be done by the day. Oarrere & Hastings were the architects of the building, and were intrusted by the defendant with the full charge and supervision of the work.

Ackert & Brown did the carpenter work upon the mansion, and they supervised the progress of the mason work, according to the written agreement between Yan Keuren and the defendant.

The work was begun about the 1st of August, 1892, and continued uninterruptedly until the month of December, 1892.

On or before the 5th day of each month, all the bills for labor and .services rendered and expenses incurred during the preceding month were presented to the architects for certification and all such bills became due and payable on the fifteenth day of the month succeeding that in which they were incurred.

The defendant agreed to pay such bills on or before the fifteenth day of the month in which they were presented, provided the bills were accompanied by the certificate of the architect that the payment was due.

On the 8th day of September, 1892, with the written consent of the architect, the plaintiff, Augustus Yan Keuren, assigned an equal one-half interest in the work to be performed according to the terms of the agreement to Egbert M. Haines, one of the plaintiffs, who thereupon became an equal copartner with said Yan Keuren, and thereafter the work was conducted by the firm of Yan Keuren & Haines, the plaintiffs in this action.

During the month of October, 1892, the plaintiffs performed work and furnished labor for the defendant under the contract, and paid freight charges on material furnished to defendant, to the amount of $11,797.76. During the month of Hovember, 1892, the plaintiffs performed work and furnished labor for the defendant under the contract, and paid freight charges on material furnished to the defendant, to the amount of $5,129.50.

During the month of October, 1892, Rider & Haines performed work for the defendant at Rhinebeck in carting stone, lime, brick, cement and general materials used in the building of the mansion of the defendant as specified in the agreement, of the value of $1,957.35, which the defendant agreed to pay on or before the 15th day of Hovember, 1892.

During the month of Hovember,1 1892, Rider & Haines performed labor and services for the defendant at Rhinebeck, consisting of carting stone, lime, brick, cement and general materials used in the building of the mansion of the defendant, as specified in the agreement, of the value of $888.79, for which the defendant agreed to pay on or before the 15th day of December, 1892.

All bills for work, labor and services and freight, furnished by the plaintiffs and Rider & Haines during the month of October, 1892, were presented to the architects for their certification on or before the 5th day of Hovember, 1892, and the architects issued their certificate to the effect that the payment of the bills was due, and that all of such bills for October became due and payable on the 15th day of November.

All the bills for work, labor and services and freight, furnished to defendant by the plaintiffs and Eider & Haines during the month of November, 1892, were presented to the architects on or before the 5th day of December, 1892, and repeated demands were thereafter made upon the architects that they issue their certificate that the payment of the November bills was due.

The architects refused or neglected' to issue a certificate for the November bills, and they were requested and directed by the said defendant not to issue a certificate for November, 1892.

No legal or valid reason for the refusal to issue such certificate was shown upon the trial of this action, and the architects have failed to justify such refusal.

All of the bills of November, 1892, became due and payable on the 15th day of December, 1892, the same as if certificates thereof had been issued by the architects.

Prior to the commencement of this action Eider & Haines assigned and transferred to the plaintiffs herein their claim against the defendant for work and labor rendered during the months of October and November, 1892, amounting to $2,846.14, with interest from the time their claims became due, and the plaintiffs are now the owners and holders thereof.

All the work, labor and services furnished and performed by the plaintiffs and Eider & Haines was furnished and performed under the direction and supervision of the architects and Ackert & Brown, the carpenters doing the work, and such work, during its progress, was approved by the architects from week to week, and by the said architects inspected at least three times a week during the progress thereof.

The plaintiffs’ commissions for their general services in connection with the work as called for under the said written contract, viz.: ten per cent, on the cost of all labor and material furnished for the mason work, is not included in the plaintiffs’ claim in this action.

The plaintiffs and Eider & Haines faithfully kept and performed the covenants and agreements to be kept and performed pn their part, and the defendant failed to keep and perform the covenants and agreements to be kept and performed on his part, by neglecting and failing to pay the bills due for October and November, 1892.

On the 2d of December, 1892, the defendant paid to the plaintiffs, on account of such work, the sum of $10,000, and no other payments have been made thereon.

The judge found and decided, as conclusion of law, that the defendant is indebted to the plaintiffs in the sum of $9,773.40, with interest on $3,771.31, from November 15, 1892, and with interest ■on $6,002.09 from December 15, 1892, said interest amounting to $176.29, making together the sum of $9,949.69, for which last sum, with costs, the plaintiffs are entitled to recover judgment against the defendant, and judgment was directed accordingly.

The facts so found are fully justified by the evidence, and there were no questions of law involved.

There is no merit in this appeal, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Cullen, J. Pratt, J.

text:
    Henry H. Isham, Trustee, Resp’t, v. Mary E. Post, Adm’rx, App’lt. Mary E. Post, Adm’rx, App’lt, v. Henry H. Isham, Trustee, et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Trusts—Investment of assets—Notice to third persons.
    The word “ trustee ” added to the signature to a check is notice that the funds were not the property of the maker individually, hut not that the trust is of such a character that the trustee is limited solely to what are called “legal investments.”
    2. Same—Negligence of person making loan.
    Where a person who makes a loan for a trustee takes as security eer tificates of stock without verifying their genuineness by inquiry at the office of the company issuing or the trust company which registered them’ When both are accessible, but relying on the standing of the firm with which the loan was made, he is guilty of negligence, and responsible for the loss in case of their turning out to be forgeries.
    Appeal from judgment in favor of plaintiff in the first entitled action, and from judgment dismissing the complaint in the second.
    The first action was brought to recover the sum of $25,000 belonging to a trust estate, which defendant’s intestate had loaned for the plaintiff, the securities for which loan proved to be forgeries. The second action was brought against the trustee and the cestui que trusts to procure a determination that said sum was not chargeable in the hands of the intestate or the plaintiff, as administratrix, with any trust whatever, or that the investment was a proper one, or that if not, the loss should in equity be borne by the trustee, and for an injunction against the continuance of the first action.
    On the 13th day of November, 1890, Henry H. Isham, having in his hands the sum of $25,000 of moneys belonging to the Trumbull estate, of which he was the trustee, employed the defendant’s intestate, Augustus T. Post, a banker, to loan these moneys upon securities sufficient for its repayment.
    Upon this day Mr. Post received a check for $25,000 from Mr. Isham, signed Henry H. Isham, trustee, deposited it to his own credit in his bank, and loaned $25,000 by his own check and in his own name to Mills, Eobeson & Smith, stock brokers, upon stock collaterals, largely of a speculative character, some of which had been forged by Albert H. Smith, one of the borrowers, by altering or raising the number of shares which the certificates purported to represent, but such forgery was not discovered until after the failure of the firm.
    On the 15th day of November, two days after the loan, Mills, Eobeson & Smith, who were, in fact, insolvent when the loan was made, failed, and made an assignment, and on thl 19th of November, six days after the loan was made, Mr. Post first announced to Mr. Isham the fact of the forgery, and the consequent loss.
    Before that date Mr. Post had not reported to the plaintiff what disposition or investment he had made of the trust moneys in question, nor upon what security or terms he had loaned them, or to whom they had been loaned. Nor had the plaintiff any knowledge of or information respecting the loan.
   The following is the opinion of the court below:

Cullen, J.

Even though the plaintiff were a party to the wrong, if the defendant’s intestate was guilty of a spoliation of the trust estate, the plaintiff in his .representative character can maintain this action. But I do not think that the loan Mr. Post assumed to make was per se a misuse of trust funds, for which he would-be responsible. The word “trustee” in the check gave notice to the banker that the funds were not or might not be the property of the plaintiff individually. Jaudon v. Nat. City Bank, 8 Blatchford, 430 ; Shaw v. Spencer, 100 Mass., 382; Baker v. Bliss, 39 N. Y., 70.

Therefore, if the transaction was prima facie a waste or spoliation of the trust estate, or if the trustee apparently was using the trust funds for his personal benefit, the banker participating in the matter and receiving the funds would be liable. But I think that this transaction was not of that character. I find as a fact that Post had no knowledge or notice that that money belonged to the particular trust estate of which it now seems to be the property. The transaction was not dishonest or hazardous. The plaintiff himself had no thought that he was wrongdoing. Loans on collateral to brokers are made by banks, bankers and trust companies. To declare the defendant liable on the theory that the loan as it was intended to be made was illegal and a waste of trust funds, it is necessary to hold not only that the word “ trustee ” put the receiver of the check on notice not only that the plaintiff did not hold the moneys in his own right, but that the trust was of such a character that the trustee was limited solely to what are called “ legal investments.” I think that would be carrying the doctrine of implied notice too far. In this very case the trustee could, with the assent of the beneficiaries, invest in any class of securities. It is a matter of common knowledge that many of the bank accounts in the name of a person simply as trustee require no such strictness in investments. I am not disposed, therefore, to hold the defendant liable on this ground.

The question then arises as to the responsibility for receiving the forged or altered certificates of stock. I have searched in vain for precedent in this respect. Two cases arising from stock transactions are to be found in the reports which approach the case in hand, but still are to be distinguished from it. In Lambert v. Heath, 15 M. & W., 484, the stock broker was held not liable for the invalidity of certain Kentish Coast R R. scrip purchased by him for his principal, on the ground that he bought the thing-he was ordered to buy, that is, the scrip that was selling in the market. In Peckham, v. Ketchum, 5 Bosworth, 506, the stock-delivered by the broker to his principal was a genuine certificate, but was alleged to be invalid because of an over-issue of stock by the officers of the N. Y. & N. H. R. R Co. Here also the broker was held not liable. But here the loan was concededly to have been made on the faith of the collaterals and the securities on which it was made, spurious securities were not the securities contemplated by the parties nor did the banker take any precautions to verify the genuineness of the securities and guard against forgery. There were accessible to the banker both the office and the company issuing the stock and the office of the trust company which registered the certificates. An inquiry at either office would have disclosed the forgery and prevented the loss. It is true that the banker did not take this precaution in the case of his own loan. But this does not determine the question of care. He undoubtedly relied on the standing of the firm to whom he made the loan. But this confidence was his own; the plaintiff did not know the parties. This is a hard case for either party on whom ultimately the liability is adjudged.to rest. But where so simple a precaution as that already stated would have exposed the fraud, I think that the liability should rest on the party who neglected to avail himself of it. There will, therefore, be judgment for plaintiff, with costs.

Alfred Ely, for app’lt; Frederic A. Ward, for resp’t, Isham; Dixon, Williams & Ashley, for other resp’ts.

This decision disposes of the cross-suit of Post v. Isham, in which the complaint will be dismissed, without costs.

Pratt, J.

The opinion at special term sufficiently discusses the law and facts.

' Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Vann, J.

text:
    Eleanor D. Gaylord, Adm’rx, Resp’t, v. Nelson Beardsley, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Pleading—Irkelevant allegations.
    Where the matter alleged to he irrelevant is not obviously so, but requires elaborate argument to show its irrelevancy, it will not be stricken out on that ground.
    Appeal from order denying motion to strike out a portion of the amended complaint as irrelevant.
    The facts are as follows:
    On September 18. 1884, Nelson Beardsley, this defendant, purchased of Arthur M. Gaylord, the husband of this plaintiff, a mortgage on real estate in the county of Cayuga for $4,784, and agreed to pay the full face value of the same with interest on the date of said mortgage. At the time of said purchase over $5,000, including interest, was due upon the mortgage and unpaid. Beardsley agreed to pay the same in cash, but obtained some little time in which to do so. He, in fact, paid only between the 18th day of September, 1884, and the 29th day of October, 1884, inclusive at different times, the sum of §1,450 in cash. On the 29tTTday of October, 1884, he agreed to apply the sum of §1,035, which he was then owing on the purchase price of said mortgage,to pay and cancel a bond and mortgage which he then held against said Gay-lord and wife, upon which there was then due, principal and interest, the sum of §1,035. Defendant having refused afterwards to perform his agreement and cancel the mortgage, an action was brought against him in the supreme court by Eleanor D. Gaylord to compel the cancellation of said mortgage of §1,035, claiming that the same had been paid by the said application of part of the purchase price of the §1,784 mortgage, and in which action said mortgage was afterwards cancelled by the adjudication of the court. Previous to the adjudication of the court, compelling the cancellation of the $1,035 mortgage, the defendant, Beardsley, had brought an action in the supreme court on the bond accompanying said mortgage against Arthur M. Gaylord and Eleanor D. Gay-lord as defendants. They answered in said action, setting up that said bond and mortgage had been paid. That action was tried in the supreme court and a verdict and judgment was found and entered on the part of the defendants in said action against said Beardsley, adjudicating said bond and mortgage to have been paid by the purchase by Beardsley of the $4,784 mortgage and the agreement to apply §1,035 of the same to extinguish the mortgage and bond of §1,035, which judgment is unreversed. Arthur M. Gaylord assigned the claim for the balance of the moneys due on the sale to the defendant of the §4,784 mortgage to his mother-in-law, Ann C. Bradburn, who commenced an action against said Beardsley to recover the same. During the pendency of said action said Ann C. Brad-burn died, and Eleanor D. Gaylord was appointed her administratrix. The action so brought by Ann 0. Bradburn was revived and continued by an order of the court in the name of the present plaintiff. The complaint in said action was thereupon amended setting up the original cause of action, the death of said Ann G. Bradburn, revivor and continuance of said action in the name of Eleanor D. Gaylord as her administratrix, and also setting up in the eleventh paragraph the facts in regard to the adjudication in the case of Beardsley against Eleanor D. Gaylord and Arthur M. Gaylord. The defendant Beardsley moved to strike out the eleventh paragraph of the amended complaint upon the sole ground that the same is irrelevant.

      Jas. R. Cox, for app'lt; Frank D. Wright, for resp’t.
   The following is the memorandum at special term:

Vann, J.

Motion denied, with ten dollars costs to abide event, upon the ground that where the matter alleged to be irrelevant is not obviously so, but requires an elaborate argument to show its irrelevancy, it should be allowed to stand, so that the trial court can receive or reject the evidence as it deems best. A motion of this kind should not be allowed the function of a special demurrer to a part only of a single cause of action. Baer v. Seymour, 12 St. Rep., 166; Williams v. Folsom, 32 id., 455; Wilbur v. Fowler, 85 N. Y., 621. Ordered accordingly.

Order appealed from affirmed, with ten dollars costs and disbursements, on memorandum of Vann, J., at special term.

Dwight, P. J., Lewis and Haight, JJ., concur.


author: Coffin, S.

text:
    In the Matter of the Accounting of George H. Morgan et al., Ex’rs of George D. Morgan, Deceased.

      (Surrogate’s Court, Westchester County,

      Filed Sept., 1892.)

    Executors and administrators&emdash;Death of legatee.
    Where a legatee dies before the legacy is payable, and no administrator has been appointed for him, the case is not one within §§ 3747 or 3748 of the Code, and the court, on the accounting of the executors of the estate, will direct such legacy to be paid into court, to he delivered ultimately to any one who can establish a legal right to its possession.
    Judicial accounting of executors.
    Testator gave a legacy to his grandson, Geroge D. M. Fullerton, to be paid when he should become 21 years of age. The executors filed a petition for a settlement of their accounts, but the infant legatee died before service of the citation on him, and no administrator of his estate was appointed. He left as his next of kin his father, who claimed that the legacy should be paid to him.

      Eugene Smith, for ex’rs; M. M. Silliman, special guardian.
   Coffin, S.

There seems to be no provision of law precisely-covering the facts of this case, but it is provided by § 2729 of the Code that a petition of an executor or administrator may be pre-r sented, praying that the creditors and decedent’s husband or wife, next of kin, and legatees, “or, if either of those persons has died, his executor or administrator, if any, may be cited to attend the settlement.” Hence, had this minor died before filing the petition,, it would seem his administrator would have been the only proper party to the proceeding, if he had any. The statute does not au< thorize the citing of a next of kin of a deceased creditor, husband, wife, legatee, or next of kin, and they are, therefore, in no sense proper parties to the proceeding, and payment cannot be decreed to be made to them, simply, but it may decree such payment to the executor or administrator of any of them. Of course, the death of the minor does not cause the proceeding to abate, but his-administrator, if he had any, might intervene, and be made a party,, or he could be brought in and made a party, under the provisions-of § 2743. Simply as next of kin, the father cannot, under the authority of § 2731, appear upon the hearing, and make himself a party to the proceeding, because he is not a person interested in this estate. His interest is in the estate of his deceased son. If, instead of being a minor, the deceased legatee had been of full age, to whom the legacy had been directed to be paid when he reached the age of 40, it is very certain that a vested legacy could be paid only to his executor or administrator, to be administered as a part of his estate. It is not discovered that the fact of his being a minor can make any difference. It does not seem to me that this is a case for a direction in the decree, as contemplated by either §§ 2747 or 2748.

The first provides that, where the person entitled to a legacy is unknown, the decree must direct it to be paid into the state treasury. That, it would appear, contemplates a legacy to an individual or a class of persons, as to the child or children of A. B., who are unknown, and cannot be ascertained. Here the legatee is known. The next section, which enacts that the decree must direct the executor to pay to the county treasurer a legacy which is not paid to the person entitled thereto at the expiration of two years from the date of the decree, etc., contemplates a case where the decree directs payment to a legatee who is known, and is alive, and is, as Surrogate Bollins well says in the case of . Koch v. Woehr, 3 Dem., 282, “ of universal application,” but that the insertion of such a provision in the decree “ is. generally of no practical importance, and in most cases may with propriety be omitted.” There being found no statute directly applicable to the facts as presented here, resort must be had to subdivision 11 of § 2481 of the Code, in search of a power authorizing a solution of the difficulty. Legislative wisdom has there furnished the way to escape from it. This court is there clothed with power, “ with respect to any matter not expressly provided for in the foregoing subdivisions of this section, to proceed, in all matters subject to the cognizance of this court, according to the course and practice of a court having, by the common law, jurisdiction of such matters, except as otherwise prescribed by statute; and to exercise such incidental powers as are necessary to carry into effect the powers expressly conferred.” The court of chancery formerly, and not the supreme court, would undoubtedly have power, in a like case, to direct the legacy or fund to be paid into court, to be delivered over ultimately to any one who could establish a legal right to its possession. Therefore the decree herein should contain such a provision. Thus the difficulty supposed to have been encountered in Matter of Lane, 20 N.Y. Supp., 78, did not really exist.


author: McLaughlin, S.

text:
    In the Matter of the Probate of the Will of John Otis, Deceased.

      (Surrogate’s Court, Essex County,

      Filed November, 1892.)

    1. Will—Undue influence.
    Undue influence, when relied upon to annul a testamentary provision, must he proved; it cannot be presumed. It need not necessarily be proved by direct evidence but, if not, then such circumstances must be proved from which that conclusion logically and irresistibly follows.
    3. Same—Testamentaby capacity.
    Incapacity to make a will cannot be inferred, alone, from advanced years, poor health or a weak mind.
    Probate of will.

      A. K Dudley, for proponents; F. A. Smith, for contestants.
   McLaughlin, S.

John Otis died on the 10th of March, 1891, having on the 1st of April, the year previous, made and published his last will and testament, which is now offered for probate, and the validity of which is challenged by his son, John W. Otis, upon the ground, mainly, that it was obtained, and the execution thereof procured, by fraud, circumvention and undue influence brought to bear against and upon the testator by Sara D. Bruce, or some other person or persons unknown to the contestant, and also upon the further ground that the testator, at the time of the execution of the will, did not possess sufficient testamentary capacity to make a will. Other formal objections were made to its probate, but upon the hearing the evidence was directed mainly, if not entirely, to the question of undue influence and want of capacity, and upon the argument the same course was adopted by the learned counsel for the contestant. The will was drawn at the house of the deceased, in Elizabethtown, by Milo C. Perry, an attorney of high standing and character. Mr. Perry was also one of the witnesses to the will. The day previous to its execution the testator sent for Mr. Perry, with whom, as we may infer from the evidence, he was on very friendly terms. Mr. Perry, in answer to the summons, went to the house of the deceased. They were closeted together for some time, no other person being present, and the deceased then gave him “instructions as to how he wanted his will drawn.” Mr. Perry, after receiving such instructions, repaired to his office, and prepared a draft of the will, and on the following day returned to the house of the deceased, with whom he was again closeted for some time, during which time the will was read to the deceased by Mr. Perry, and the deceased read it himself. The will was then signed by the deceased, and witnessed by Mr. Perry and one Wilbur H. Brownson. All of the statutory requirements as to the execution and publication of the will were closely followed and carefully observed. Therefore, the questions presented are, whether undue influence was used in procuring the testator to make the will, and also whether the testator had sufficient testamentary capacity to make a will.

The contestant’s counsel very ingeniously and strenuously urged the argument that the testator, being aged and infirm, was unfairly, so far as the contestant was concerned, and improperly,, influenced in making the will; but the position of the learned counsel in this respect is not at all sustained by the proof. He utterly failed to call the attention of the surrogate to any evidence which would justify such a conclusion. The court of last resort in this state has declared that, to avoid a will on the ground of undue influence, “ it must be made to appear that it was obtained by means of influence amounting to moral coercion, destroying free agency, or by importunity which could not be resisted, so that the testator was constrained to do that which was against his actual will, but which he was unable to refuse, or too weak to resist.” Brick v. Brick, 66 N. Y., 144, 149. “It must not be the promptings of affection, the desire of gratifying the wishes of another, the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent, resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear.” Society v. Loveridge, 70 N. Y., 387, 394 ; Jarm. Wills, 36, 37 ; Gardner v. Gardner, 34 N. Y., 155. Undue influence, when relied upon to annul a testamentary disposition of property, is in one sense a fraud, and, as such, it must be proved. It cannot be presumed. It need not necessarily be proved by direct evidence, but, if not, then such circumstances, at least, mast be proved f om which that conclusion logically and irresistibly follows. Matter of Smith, 95 N. Y., 516; Seguine v. Seguine, 4 Abb. Ct. App. Dec., 191. Applying to this case the rule laid down in the authorities above referred to, there is, as it seems to me, a total failure of proof showing, or tending to show, undue influence upon the testator. The will, then, must be admitted to probate, unless the evidence shows that the testator did not at the time possess suilieient testamentary capacity to make a will. What evidence is there from which the conclusion could be reached that he did not possess that capacity ? After the most careful consideration, I have failed to discover any.

There is no standard of mental capacity which it is necessary for a person to possess to enable him to make a disposition of his property by will. All that is required is that the testator have sufficient intelligence and mental power to understand what he is doing, and the legal effect of the instrument he is making. If he possess such intelligence, he may bestow his bounty as he likes, even if the disposition he makes of his property may appear, and in fact be, unjust and inequitable. The law gives to every person in other respects competent to make a will the right to make whatever disposition of his property he chooses, however absurd or unjust It is true that the testator was at the time seventy-eight years of age, but there is no presumption against his capacity to make a will because at the time it was executed he was advanced in years. Indeed, incapacity to make a will cannot be inferred, alone, from advanced years, poor health or a weak mind. Horn v. Pullman, 72 N. Y., 269 ; In re Gray's Will, 5 N. Y. Supp., 464; 24 St. Rep., 345. But, notwithstanding the age of the deceased at the time of the execution of the will, he possessed his usual intelligence and mental powers. The evidence, including the will, shows that he comprehended fully the situation. He sought by his will to provide for the support of his aged wife, giving her for that purpose, if need be, his entire property, in value about $1,000, and if, after her death, anything was left, it passed to the unmarried daughters. The will does not seem to be unjust, unnatural, or, under the circumstances, even inequitable. Several motions were made by the proponents, at the close of the evidence, to strike out certain testimony, which motions were reserved by consent until the final disposition of the case, but the foregoing views render it unnecessary to pass upon the several motions reserved, for the reason that, admitting all of the testimony offered, I think the will should be admitted to probate, and an order can be entered to that effect.


text:
    In the Matter of the Probate of the Will of William Porter, Deceased.

      (Surrogate's Court, Essex County,

      Filed November, 1892.)

    "Will—Probate.
    A will signed by a cross-mark cannot be admitted to probate where only one witness, who did not see the mark made, is produced, the other having died, unless other evidence is produced showing that the deceased actually made the mark.
    Probate of will.
    The will in question was signed by a cross-mark. Only one attesting witness was produced at the hearing, the other having died.

      George W Watkins, for proponent.
   McLaughlin, S.

Following the decision in Re Reynolds, 4 Dem., 68, I think probate must be denied. “Before a written will is admitted to probate, two, at least, of the subscribing witnesses must be produced and examined, if so many are within the state, competent and able to testify.” Sec. 2618, Code Civ. Pro. Provision is made for the proof of a will where one of the witnesses is unable to testify, by reason of death or otherwise, by proving the handwriting of the absent witness and the handwriting of the testator. Section 2620, Code Civ. Pro., provides that, “ if a subscribing witness, whose testimony is required, is dead, the will may nevertheless be established upon proof of the handwriting of the testator and of the subscribing witnesses, and also of such other circumstances as will be sufficient to prove the will upon trial of the action." There is no proof of the handwriting of the deceased. Such proof must be given. It is a positive requirement of the statute'where a will is sought to be proved by the testimony of one of the subscribing witnesses. Proof of this character can only be furnished by some person possessing knowledge of the general form and characteristics of the writing of the deceased person which enables the witness to identify it and-distinguish it from the signature and writing of another. The only evidence produced is the testimony of one of the subscribing witnesses, and it falls far short of this requirement. Indeed, it is hard to see how any evidence could be furnished which would enable one to distinguish a cross mark from a similar mark made by another person. It is difficult to see how any will, under the provisions of the statute above quoted, could be admitted to probate where the deceased signed by a cross mark, and only one of the subscribing witnesses is produced, and that witness did not see the mark made. The difficulty would undoubtedly be obviated if other evidence could be produced, showing that the deceased actually made this mark. The provision of the statute, though seemingly working injustice in this case, is a wise one, and must be enforced. Probate refused.


author: Giegerich, J.

text:
    John W. Robinson, Resp’t, v. Henry H. Heimbecker, App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    1. False representations—Competency to teach trade.
    In an action for false representations as to the .competency of defendant to teach plaintiff the trade of photo-engraving, testimony as to defendant’s lack of ability can be of weight only if given by one well versed in the same trade.

      Í3. Same—Weight oe evidence.
    In such an action the plaintiff testified to defendant’s lack of ability; defendant’s former employer testified that defendant spoiled some plates, but it appeared that he discharged him because he was not a rapid worker, and another witness testified that some of his work was returned. On the other hand, defendant and his witnesses testified to his ability and to a long experience in the trade. Held, that the weight of evidence was with defendant, and plaintiff’s burden of proving the false representations was not sustained.
    Appeal from a judgment of the district court in the city of New York for the fourth judicial district, rendered by the court without a jury in favor of the plaintiff.
    Action for damages for false representations. The opinion states-" the material facts.

      L. C. Whiton, for app’lt; Samuel Strasbourger, for resp’t.
   Giegerich, J.

This action was brought to recover the sum of seventy-five dollars damages for false and fraudulent misrepresentations alleged to have been made by the defendant to the plaintiff, whereby the latter was induced to pay such aforesaid sum as consideration under the following agreement:

“In consideration of the sum of seventy-five dollars paid tome, for which this is the receipt, I agree to teach John Robinson all the trade secrets of photo engraving of which I am possessed, as well as the practical teaching and all the formulas connected with it. (Signed) H. H. Heimbecker.”

The manner in which the complaint is framed favors the view that the action is in tort, but, assuming that it may possibly have been intended to be brought upon the contract, the plaintiff’s testimony to the effect that he himself failed to continue performance in the first instance, and defendant’s uncontradicted testimony that he was ready to perform at any time, would preclude a recovery upon any such theory. We take the view then that recovery is sought by reason of the alleged misrepresentations by defendant as to his competency to teach the plaintiff the trade of photo engraving; and, upon this assumption, it seems obvious to us that the plaintiff has wholly failed to sustain the burden of proving such misrepresentations.

The only positive testimony with regard to defendant’s lack of ability is given by the plaintiff himself, who, by his own assertion, is not instructed in the trade. This testimony could be of weight only if given by one well versed in the same trade as that with regard to which another’s competency is sought to be questioned. The plaintiff was confessedly not versed at all in the trade of photo engraving, and defendant is uncontradicted in his testimony as to his long experience. There was no objection to this testimony of the plaintiff upon the trial, but its inherent incompetency, is to be considered in determining the weight of the evidence.

Plaintiff’s witness, Davis, defendant’s former employer, testified that defendant spoiled some plates, but, considering all of his testimony, we find that his real reason for discharging the defendant was that he was not a rapid worker. This would not affect his ability to impart his knowledge of the trade to the plaintiff, nor does it tend to show any lack of such knowledge. The testitimony of the witness, Smith, does not add sufficient weight to the plaintiff's case. The mere fact that the work he mentions was returned receives little additional importance from his non-expert opinion as to the manner in which such work was done. The testimony of the defendant and his witnesses clearly outweighs the slight evidence given in support of plaintiff’s cause of action. We conclude from the whole testimony that the weight of evidence is with the defendant to such a degree that plaintiff’s burden of proving the false representations has in no way been sustained. °

As to the note, of which mention was made on the trial, we can only say that if it had any probative force it woujd be as evidence of an accord and satisfaction ; but it not having been paid at maturity, and the same having been returned to the defendant, the plaintiff was restored to his original rights and his remedy lay either in tort or upon the contract as before.

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

Bischoff, J., concurs.


author: Bischoff, J.

text:
    William Wilson, Jr., Resp’t, v. The Wyandance Springs Improvement Co., App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    1. Principal and agent—Proof of agency.
    To entitle a vendor to recover for goods sold through an alleged agent it is not indispensable that express authority to such agent to purchase on defendant’s credit should he shown; it is sufficient that there has been a course of dealing between the parties from which such authority could he inferred, such as purchases by the assumed agent of similar merchandise on defendant’s credit and payments therefor by the latter.
    3 Same.
    Denials of such agency by defendant’s president and the assumed agent; and their assertions that he was the agent of. a corporation of a similar name, having the same officers as defendant and occupying the same office, are not conclusive, because those of parties in interest.
    . Appeal from a judgment for plaintiff rendered by the district court in the city of New York for the eighth judicial district.
    Action to recover the agreed price for merchandise sold and delivered to defendant at the instance of its agent.

      Douglass Minton, for resp’t; H. H. Walker, for app’lt.
   Bischoff, J.

Attentive consideration of the evidence renders it irrefragably apparent that the only defense was an attempt to shift responsibility for plaintiff’s demand from a solvent to an insolvent corporation. Express authority to Rosenfeld to purchase merchandise upon defendant’s credit was not indispensable to plaintiff’s right to recover. It was sufficient that there had been a course of dealing between plaintiff and defendant from which Rosenfeld’s authority could be inferred. Lamb v. Hirschberg, 48 St. Rep., 658. Such a course of dealing appeared in evidence from the testimony of plaintiffs witnesses, which was to the effect that the assumed agent had on former occasions purchased merchandise of like kind on defendant’s credit, and that these purchases were in each instance ratified by defendant by acknowledgment of its indebtedness and payment thereof.

The evidence as to such course of dealing may be slight, if considered without reference to other facts which appear, but its effect is intensified when it is kept in mind that defendant and another corporation of nearly the same name had the same officers and occupied the same office, to which the bills for merchandise were directed to be sent, and that this office bore the sign only of the defendant.

The denials of defendant’s president and of Eosenfeld, the assumed agent, that the latter was the agent of the defendant, and the assertions that he was the agent of the Wyandance Mineral Water Company, were not conclusive, because they were those of persons in interest. See cases cited in Lamb v. Hirschberg, supra.

The judgment should be affirmed, with costs.

Gtegerich, J., concurs.


author: Bischoff, J,

text:
    Tekla Poen, App’lt, v. George Scott, Resp’t.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Dismissal of complaint—Former judgment against defendant’s wife.
    A dismissal of the complaint in an action for services, on the ground that plaintiff was precluded from recovering by a judgment in her favor on the same claim against defendant’s wife, is erroneous where no record of such judgment was offered in evidence and there was no admission of the recovery of such judgment made.
    Appeal from a. judgment for defendant rendered by the district court in the city of New York for the eleventh judicial district. Action to recover wages of a domestic servant.

      Robert Goeller, for app’lt; George W. Galinger, for resp’t.
   Bischoff, J,

Upon conflicting evidence the jury returned a, verdict for plaintiff, yet acting under a motion made by defendant’s counsel at the beginning of the trial, and before any evidence whatever was offered, that the complaint be dismissed on the ground that plaintiff was precluded from recovery in this action by a judgment in her favor upon the same claim against defendant’s alleged wife, the justice below ignored the verdict and rendered judgment for defendant, from which an appeal was taken to this court. This action of the trial justice is sought to be justified by a stipulation upon the trial, which appears in the minutes as having been entered into by counsel for the respective parties, and which was to the effect that the verdict be taken subject to the decision of the justice of the motion to dismiss the complaint, which was reserved, and that if the verdict be for plaintiff and the motion be determined adversely to her, judgment should be rendered for defendant without prejudice to plaintiff’s right to appeal.

It is unnecessary in the present instance to inquire into the authority for the method of procedure adopted in the court below, for though we assume it to have been proper, the dismissal of the complaint and the award of judgment for defendant proceeded without the slightest evidence to warrant such a course. No record of any prior judgment in favor of plaintiff appears in the return of the justice on this appeal. Neither does the return show that any such record was offered in evidence, or that upon the trial of this action any concession whatever of the recovery of such a judgment was made by plaintiff or in her behalf.

The judgment appealed from should be reversed and a new trial ordered, with the costs of this appeal to the appellant to abide the event.

Gtegerich, J., concurs.


text:
    Francis G. Boyd et al., Resp’ts, v. Louis A. Fumonte, App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Sale—Weight of evidence.
    In an action for goods sold plaintiffs’ evidence tended to show that their . salesman was ignorant of any partnership existing between defendant and one 0., and that the sale was to defendant, and that the check of 0. was ■ accepted on condition that it was "to be credited if paid. Defendant testified to the partnership, and that the salesman was informed thereof, and that the check was accepted generally. The check was not paid. Held, that it was competent on this evidence to find in favor of plaintiffs for the purchase price, and such finding would not he disturbed.
    Appeal from the judgment of the district court in the city of New York for the second judicial district, rendered in favor of the plaintiff.

      John F. Foley, for resp’t; Harris Wilson, for app’lt.
   Bischoff, J.

The action was brought to recover for wines sold and delivered by plaintiff to defendant. Upon the trial plaintiffs’ salesman testified that he was ignorant of any copartnership existing between defendant and Coari, and that the wines were sold to defendant upon the latter’s credit. Defendant testified that he and Coari were partners, and that plaintiffs’ salesman was so informed at the time of the sale. Next plaintiffs introduced evidence to show that Coari’s check was accepted in payment conditionally only, to wit: that it was to be credited in payment if paid on presentation. This also defendant attempted to refute. It was conceded that the check was not paid.

Upon the conflict of evidence the court below decided in favor of plaintiffs for the agreed purchase price, as it was quite competent for it to do.

Defendant has therefore not sustained the burden of showing error, and the judgment appealed from must be affirmed, with costs.

Judgment affirmed, with costs.

GrlEGERiOH, J., concurs.


text:
    George Liman, Resp’t, v. The Pennsylvania Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed Aug. 9, 1893.)

    1. Contract—Breach—Consequential damages.
    To authorize a recovery of consequential damages resulting from a breach of contract by force of special circumstances, all that is required is that sufficient information of such special circumstances be. given by one of the contracting parties to the other, so that the latter may be put upon reasonable inquiry concerning them.

      2. Same.
    Plaintiff delivered to defendant at New York a sum of money for a passage ticket from Johnstown, Pa., to Chicago, to be delivered that day to one R, a museum;! reak, at Johnstown; and stated at the time that it was essential that it be delivered that day to enable R to proceed to Chicago, where he was required to appear four days later for the purpose of exhibition pursuant to an engagement made by plaintiff. The ticket was not delivered and R failed to appear at Chicago, whereby plaintiff lost the profits on his contract for his exhibition. Held, that plaintiff’s statement was sufficient to put the defendant on inquiry, and that defendant not having made such inquiry, must be deemed to have intended to assume responsibility for such damage as plaintiff would sustain from the breach of the engagement for R.’s exhibition so far as it was occasioned by its own breach of contract.
    Appeal from a judgment for plaintiff recovered in the district court in the city of Hew York for the sixth judicial district.
    Action to recover damages which had accrued to plaintiff from defendant’s neglect to transmit and deliver, as agreed, a railroad passage ticket to plaintiff’s employe to enable the latter to proceed in the performance of plaintiff’s business.

      Herbert J. Hindes, for resp’t; Henry A. Robinson, for app’lt.
   Bischoff, J.

On the trial it appeared that one John Eauth, a museum freak, known as the “ Longest Headed Man in the World,” was under contract with plaintiff to exhibit himself under plaintiff’s direction for the agreed compensation of forty-five dollars per week besides traveling expenses, and that plaintiff was under a further contract with Kohl & Middleton to exhibit Eauth at their museum in Chicago for the two weeks commencing January 9, 1898, in consideration of the sum of seventy-five dollars for each week, which Kohl & Middleton had promised to pay.

It further appeared that, on January 5, 1898, Eauth was in Johnstown, Pennsylvania, and that on that day plaintiff paid defendant, at its Hew York office, eighteen dollars, in consideration of which defendant undertook to deliver forthwith to Eauth, at his address in Johnstown, which was at the time imparted to defendant, a railroad passage ticket to enable Eauth to proceed by rail from Johnstown to Chicago. It still further appeared that plaintiff's contract with defendant was oral, and that at the time of making it defendant was informed by plaintiff’s representative that delivery of the ticket to Eauth on the same day was essential to enable Eauth to proceed to Chicago, where he was required to appear on the succeeding ninth day of the month for the purpose of exhibition, pursuant to an engagement to that effect. It did not appear that further particulars of plaintiff’s contract with Kohl & Middleton were imparted to defendant, or that defendant ever attempted to make delivery of the ticket to Rauth, though plaintiff caused urgent inquiry to ascertain the fact of such delivery to be made of defendant on each of the two days next sncceeding the day of his agreement with it. It was conceded that the ticket was not delivered. The evidence also sufficiently supports a finding that Rauth, who had been advised by plaintiff to await the delivery of the ticket, did not proceed to Chicago, in consequence of which plaintiff lost the benefits which would otherwise have inured to him from his contract with Kohl & Middleton. Upon the above state of facts plaintiff recovered judgment against defendant for seventy-eight dollars, being the eighteen dollars paid defendant for the railroad ticket and thirty dollars profit for each of the two weeks engagement with Kohl & Middleton.

Defendant now, while conceding the rule to be that consequential damages resulting from a breach of contract by force of special circumstances are recoverable provided they may be said to have been within the reasonable contemplation of the contracting parties at the time of making the contract, Hadley v. Baxendale, 9 Exch., 353; Booth v. Spuyten Duyvil Rolling Mill Co., 60 N. Y, 487; Eagle Tube Co. v. Edward Barr Co., 16 Daly, 212 ; 32 St. Rep., 299 ; Sutherland on Damages, vol. 1, § 50, etc., yet assails the recovery as unwarranted, upon the ground that the rule is inapplicable to the case at bar because sufficient information of the special circumstances from which the damages arose was not imparted to it In this view we do not concur. All that seems to be required is that sufficient information of such special circumstances be given by the one to the other of the contracting parties so that the latter may be put upon reasonable inquiry concerning them.

It was so held in Rittenhouse v. Independent Line of Telegraph, 44 N. Y., 263,265, wherein the court of appeals say with reference to defendant’s negligence in the transmission of a telegraphic message : “ If defendant’s agents did not understand the importance or import of the message, they could have inquired of the plaintiff, and hence, for all the purposes of this action, it must be treated as fully understanding the message and the consequences which would result from its erroneous transmission.” See also Sprague v. Western Union Telegraph Co., 6 Daly, 200; aff’d, 67 N. Y., 590. We do not interpret the opinion of the court in Booth v. Spuyten Duyvil Rolling Mill Co., supra, as intending that a contracting party may, notwithstanding that he has been sufficiently informed of the existence of a certain other contract, the performance of which is dependent upon performance of the proposed contract with him, to put him upon reasonable inquiry in respect thereto, shield himself "against consequential damages by wilfully or deliberately abstaining from the inquiry. With respect, therefore, to plaintiff’s right to recover the profits of his contract with Kohl & Middleton, plaintiff had adequately discharged the duty incumbent upon him when he informed defendant that the ticket purchased for delivery to Rauth was required to enable the latter to proceed to Chicago in fulfillment of an engagement for his exhibition there on the 9 th of January. It was then that defendant, by reasonable inquiry, could have ascertained, if it cared to know, what the probable extent of its responsibility for a breach of the proposed contract would be. Having refrained from the inquiry and made the contract notwithstanding, defendant must be deemed to have intended to assume responsibility for such damage as plaintiff would sustain from the breach of the engagement for Rauth’s exhibition in Chicago, in so far as that breach was occasioned by defendant’s breach of its contract with him.

It does not appear that plaintiff could reasonably have transmitted the means of enabling Rauth to proceed from Johnstown to Chicago in sufficient time to have prevented the non-fulfillment of his contract with Kohl & Middleton, and thus to have avoided the damage resulting from the loss of that contract, by others than defendant. Hence, plaintiff cannot be said to have contributed to the damage accruing from defendant’s breach of contract; and the burden of proof that the damage was increased by plaintiff’s neglect was upon defendant. Colrick v. Swinburne, 105 N. Y., 503; 8 St. Rep., 172. At any rate, if other means were available to plaintiff in the respect stated, he was sufficiently excused from pursuing them by the assurances of defendant’s agent that the ticket had been transmitted and delivered to Rauth.

The judgment is affirmed, with costs.

G-iegerioh, J., concurs.