author: Giegerich, J.

text:
    Sarah J. Burby, Resp’t, v. William J. Roome, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Pbincipal and Agent—Rb-imbubsembnts.
    An agent who, in direct disobedience of his principal’s instructions, incurs expenses in repairing the latter’s premises, is not entitled to re-inbursement.
    Appeal by defendant from a judgment of the district court in the City of Slew York for the first judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      W. Arrowsmith, for app’lt.

      Abraham I. Ellens, for resp’t
   Giegerich, J.

The plaintiff’s assignor, one Schell, was the owner of certain premises in this city and the defendant Boome was his agent to collect the rents of, and to care for such property. Schell had sent the following letter of instructions to the defendant, who does not deny having received it:

“ Mew York, June 7, 1892.
Mr. Boome, Dear Sir: Concerning my house 131 West 25th Street. I have made arrangements with Mantel, 32 Carmine St. to keép the roof in repair for one year, and with O’Brien & Byder, plumbers, 154 Spring Street, to attend to the plumbing work, tank and engine for one year. * * * In case you need the services of any of these people at any time to do any of the above work, please send for them and they will do the work.
Edward P. Schell.”

In January, 1893, the pipes, water closets, etc., upon the premises were frozen up and the services of a plumber were required. One Young was called in by the defendant’s brother-in-law (who is admitted to have had authority to act for him in the matter) to do the work of repairing. Young’s bill for his services amounted to $119.99, which defendant, after some delay, paid. Upon accounting to Schell for rents received, he retained this amount for the recovery of which this action was brought. The answer was a general denial and set up a counterclaim for said last mentioned sum paid by him to Young for such services. The justice rendered judgment in favor of the plaintiff for the full amount claimed, and the defendant has brought on this appeal.

In speaking of an agent’s right to recover his disbursements, made for the benefit of his principal, Story in his work on Agency (Sec. 336, p. 412, 7th Ed.) says:—“But this liabilty of the plaintiff proceeds upon the ground, that the advances, expenses and disbursements have been properly incurred, and reasonably and in good faith paid, without any default on the part of the agent. * * * However-, if the agent has voluntarily and officiously and without authority made advances or payments, the principal will not be bound to any reimbursement thereof; for it will be imputed to the fault, or negligence or unskillfulness of the agent.’’

As laid down in Fowler v. N. Y. Gold Exchange Bank, (67 N. Y. 138, 145-6) the rule is that “ An agent is entitled to be indemnified against all damages and losses which are incurred by him and all cost to which he may be subjected in the course of his agency, without fault on his part.” See also Monnett v. Heller, 5 N. Y. Supp. 913 ; 25 St. Rep. 609. Under these rules the agent in the present case is not entitled to recover. Having acted in direct disobedience of his principal’s instructions, he incurred the clearly “ without authority.”

The judgment should be affirmed with costs.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Max Abrahamson Resp’t, v. John W. U. Koch, Appl’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Appeal—Waiver.
    A defendant, by appearing, answering and defending an action without objection, is precluded, on appeal, from urging that the court below did not acquire jurisdiction of him by service of the summons.
    2. Same—New Trial.
    § 3068 of the Code does not apply to appeals from the District Court of the city of New York.
    Appeal from a judgment of the district court in the city of New York for the fourth judicial district, rendered by the justice, without a jury, in favor of the plaintiff.
    Action to recover damages for injury to plaintiff’s wagon, and its contents, alleged to have been occasioned by defendant’s carelessness, whereby a collision resulted between the wagons of the respective parties.

      Hoffman & Hoffman (of counsel), for resp’t, Fred. Dieffenbach, Jr., for appl’t.
   Bischoff, J.

Having appeared, answered and defended the action, without objection, defendant is now precluded from urging that the court below' did not acquire jurisdiction of him by service of the summons. Cushingham v. Phillips, 1 E. D. Smith, 417; Sperry v. Moore, id. 361; Andrews v. Thorp, id. 615 ; Hogan v. Baker, 2 id. 22 ; Ingersoll v. Gillies, 3 id. 119; Miln v. Russell, id. 803; Dempsey v. Paige, 4 id. 218.

Upon all the evidence adduced on the trial there appears but a fair conflict as to the manner in which the accident occurred, and as to the effect of the collision upon plaintiff’s wagon, and its contents; also as to the value of the necessary repairs. The determination of these questions of fact was properly for the justice below and his findings that the accident was caused by defendant’s carelessness, and without contributory negligence on plaintiff’s part, and that the proper amount of damages was in the sum for which judgment was rendered, must be conclusive in view of the record submitted. Weiss v. Strauss, 39 St. Rep., 78. Appellant does not rely upon exceptions taken to rulings on the trial, and an examination of them discloses no error.

§ 3068 of the Code of Civil Procedure which provides for a new trial in the appellate court applied to appeals from the justice’s court only. § 8213 requires the new trial, if one is directed upon appeal from the district court in the city of Hew York, to be had in the district court.

Judgment affirmed, with costs.


author: Bookstaver, P. J.

text:
    Thomas J. Canavan, an Infant, by Michael Canavan, his Guardian, etc., App’lt, v. Robert Van R. Stuyvesant et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Evidence—Judicial Notice.
    The court is justified in taking judicial notice of the fact that the streets in New York city are numbered east and west from Fifth avenue, and that the odd numbers are uniformly on the north side of the street.
    8. Negligence—Child.
    A child of the age of two and one-half years is not sui juris, and not of sufficient age or discretion to be permitted to wander out of the house alone.
    •8. Landlord and tenant.
    A landlord of a tenement house is bound to keep the yards, etc., in proper repair and reasonably safe condition, and is chargeable in damages to any one injured by reason of his failure to do so.
    4. Appeal—Common pleas.
    The general term of the common pleas cannot affirm a judgment as to one, and reverse as to another, cause of action, but must affirm or reverse a judgment in its entirety.
    Appeal from a judgment entered in favor of defendants dismissing the complaint.

      Jerdoman & Arrowsmith, for app’lt; J Langdon Ward, for resp’ts.
   Bookstaver, P. J.

This action is unique among negligence cases in that it was brought to recover damages for injuries alleged to have been sustained by the plaintiff on two entirely different occasions, and both within six months of each other. The first occurred on the 1st day of July, 1891, by falling down the cellarway of the premises known as 341 East 13th street, Hew York city, and the second on the 4th day of November, 1891, by falling down an air-shaft in the rear of said premises. On the trial the complaint was dismissed at the close of the plaintiff’s case. Hence this appeal.- As the circumstances of each accident were different, they must be separately considered.

The defendants together with one Rosalie S. Pillot, who died before the commencement of this action, were the owners of the premises in question. The parents of the plaintiff at the time of the alleged injuries, and for nine years prior thereto, lived in the house where the accident occurred, occupying six rooms on the ground floor. In front of the house there was a courtyard the whole width of the lot and about 17 feet in depth. Between the yards of Nos. 339 and 341, there was an iron fence or railing, two or three bars of which were out at the time. There was an iron railing in front of the yard along 13th Street, in which there was a gate opposite the door of the house which was on the east side of the premises. There was an entrance or cellarway to the basement toward the west side of the courtyard. To this cellarway was a double door, or two half doors opening in the centre, the one hinging so that it turned toward the west, and the other toward the east. About 18 inches were broken off from the front end of three of the boards composing the west half of the door, leaving a hole when the door was closed about 16 inches by 12. This door had been in that condition five or six weeks prior to the 1st July. One or the other of the halves of the door was generally open in the day time for ventilation and closed at night. On the 1st July, the plaintiff who was at that time about two and a half years old, came unattended from the yard of 339 through the fence between the two houses where the bars were missing. At that time the half of the. cellar door nearest 339, which was the west' half, was open. The plaintiff stepped on that door and fell • down into the cellar; he was picked up by one Thomas Kelly, and on examination it was found that his right wrist was broken. Upon the trial and the argument of this appeal, the appellant contended that the broken door was the cause of this,injury, and that it was negligence for the defendants to have left it in that condition for the length of time they did, when they must have ' known of its defect or by proper supervision could have known of it. But it is clear from the evidence in this case that the broken door had nothing to do with the accident. Plaintiff’s father definitely testified that the boards were broken off the front part of the west door, while Kelly the only witness of the accident, distinctly testifies that the half of the cellar door near 339 was open. This must have been the westerly half-door, for the court is justified in taking judicial notice of the fact that the streets are numbered east and west from Fifth Avenue, and that the odd numbers are uniformly on the north side of the street; Kelly also testifies that no one was with this very young.child. The mother testified that she was in the house at the time, and there is no evidence whatever of any person being appointed to look after him, or that anyone did look after him while out of the house, on this occasion, although the parents well knew that one or both of the cellar doors were left open at the time.

He certainly was not sui juris, and not of sufficient age or discretion to permit him to wander out of the house alone. It was not shown who opened the half of the cellar door that was open. The father testified that one or both of the doors were generally open in the day time and closed at night. Therefore" there was nothing from which the jury could rationally draw an inference of negligence on the part of the defendants in respect to the open door; while the plaintiff was far from establishing the burden which was upon him of showing that he or his natural guardians were free from negligence.. We think neither chap. 566, Laws 1887, nor Sec. 69 of the Sanitary Code of the Health Department, applies to a cellar-way like the one in question. Therefore as to this cause of action, the Court properly dismissed the complaint

It is different, however, as to the second cause of action. While it is true that the parents of the child hired only the six rooms on the ground floor and did not in terms hire either the front or rear yard, yet for the nine years they had been on the premises they were in the habit of drying their clothes there, and all the children in the house, including plaintiff, had been in the habit of playing in that yard, and these uses of it had never been forbidden by the defendants or any one in their employ. Respondents contend that neither the hiring nor the uses stated made the rear yard appurtenant to the rooms hired by plaintiff’s father, arid in this we think they are correct. But it it is conceded that the house contained or was calculated to contain six other families, thus making it a tenement house within the meaning of chap. 84, Laws 1887, as it contained more than three families ; and the defendants had the right at all times to enter and make repairs, and were in duty bound to keep the premises in reasonably tenantable order and condition and free from nuisances; Henkel v. Murr, 31 Hun, 28; 2 McAdam L. & T. 185, 191, 193, and cases cited. Although the use of the yard permitted by the defendants did not make it appurtenant to the premises occupied by plaintiff’s father, yet the free access to it through the hallway on the first floor provided by the defendants, and its use by all the families in the building did create an easement in the yard, and such we think in the absence of restrictive words in the lease of plaintiff’s father, was the manifest intention of the parties. There were no other apparent purposes to which it could be subjected than the uses made of it; Doyle v. Lord, 64 N. Y., 436. The air shaft was built against the wall of the house and extended out from the rear wall, three feet into the yard, and was about six feet deep; it was surmounted by a stone coping, and an iron grating, weighing somewhere between thirty and fifty pounds had been provided to cover it. At the time of the second accident, on the 4th November, 1891, this was not in place, and had not been for two months, but was lying in the cellar; the plaintiff’s mother was hanging out clothes in the yard ; the plaintiff, then about three years old, was playing ball with his sister, who at the time was about four or four and a half old; while running after the ball, plaintiff accidently fell into the air-shaft. It cannot be denied that under the circumstances this rear yard was a proper place for the children to play in, and they' were playing under the immediate supervision of the mother, it was impossible for her to do her work and keep her eye upon the children at all times. We think it was the clear duty of the defendants to have kept the grating over the air-shaft in place, or so secured it that it could not easily have been moved. It had been off so long that a jury could reasonably have inferred from that fact that the defendants were guilty of negligence in that they either allowed it to be off after actual knowledge of it, or could have ascertained that fact by reasonable diligence. Driscoll v. Mayor, etc., 11 Hun, 101; Timlin v. Standard Oil Co., 126 N. Y., 514; 37 St. Rep., 906; Embler v. Town of Wallkill, 132 N. Y., 222; 43 St. Rep., 631. Besides, it appears from the evidence that both the defendants’ janitor and collector had actual notice or knowledge of its dangerous condition. A landlord of a tenement house is bound to keep the yards, hall-ways, coal-holes, etc., in proper repair and reasonably safe condition, and is chargeable in damages to any one injured for a failure to do so. Dollard v. Roberts, 28 St. Rep., 569; S. C., 130 N. Y., 269; 41 St. Rep., 253; Henkel v. Murr, supra; Palmer v. Dearing, 93 N. Y., 7; Jennings v. Van Schaick, 108 N. Y., 530; 13 St. Rep., 686; Peil v. Reinhart, 127 N. Y., 381; 38 St. Rep., 913; Ahern v. Steele, 115 N. Y., 203; 26 St. Rep., 295. We think the court erred in dismissing this cause of action, but should have submitted it to the jury. Had we the power we would affirm the judgment' as to the first cause of action, and reverse as to the second, but under Goodsell v. W. U. Tel. Co., 109 N. Y., 147; 15 St. Rep., 73, followed by us in .MtveZZ Pobre, 37 St. Rep., 352, we feel constrained to reverse the judgment in its entirety and to order a new trial, with costs to the appellant to abide the event.


author: Ward J.

text:
    Peter A. Porter, as Receiver of the Cataract Bank, Pl’ff, v. Washington A. Frazer et al., Def’ts.

      (Supreme Court, Niagara Equity Term,

      Filed February 5, 1894.)

    1. Pledge—Bond and mortgage.
    A pledgee of a bond and mortgage, which are not to mature until long after the principal debt, has implied authority on default to sell, and need not wait to collect them.
    2. Same—Equity suit.
    Such pledgee may properly enforce his lien by a bill in equity, especially when the contract of pledge neither provides for the time or redemption nor the manner and time of sale.
    3. Court oe equity—Receiver.
    A court of equity, appointing a receiver pendente lite, can sell the property in the receiver's hands whenever such course becomes necessary to preserve the interests of all the parties.
    Action to foreclose a lien and obtain the sale of a bond and mortgage that had been assigned to the bank as collateral security for the payment of a note.

      Ply & Dudley for the pl’ffs; Plsworth, Potter & Sto7'rs for the def’ts.
   Ward J.

Prior to July 3d, 1893, the Cataract bank was a state bank located at Niagara Falls, New York. On that day the plaintiff was appointed receiver of this bank by a judgment of this court in an action brought by the people to dissolve the corporation, and he is still such. On the 29th of March, 1893, the defendant, Washington A. Frazer, made his promissory note payable at the bank for the sum of eight thousand dollars due in three months, and the defendant, Jennie E. Frazar, endorsed this note for the purpose of obtaining a loan from the bank of the amount of the note to Washington A. Frazer.

' At the time of the execution of this note Washington A, Frazer was the owner of a bond and mortgage executed by the defendant, John J. Frazer, to him, bearing the date of the sixth day of January, 1891. The bond was in the penal sum of sixteen thousand dollars, and was conditioned for the payment of eight thousand dollars in five years from its date together with annual interest, and contained a provision that if default was made in the payment of principal or interest, taxes, assessments or insurance for the space of thirty days the whole sum thereby secured would become due and the obligor was required to pay the taxes and to insure against loss or damage by fire, etc. The mortgage was in the usual form, given to secure the”payments provided in the bond and covering and describing two parcels of real estate in the city of Lockport and was recorded in Niagara county. The bank in addition to the endorsment of Jennie E. Frazer required collateral security for the payment of this note of Washington A. Frazer, who, thereupon, and for the purpose of giving such security, by an instrument in writing under his hand and seal duly acknowledged “ sold, assigned, transferred and conveyed ” to the bank the said bond and mortgage, describing them and covenanted that there was unpaid and to become due from the same the sum of eight thousand dollars with interest thereon on the sixth day of January 1893, and concluded with this provision : “ This assignment is made as a continuing and collateral security for the payment at maturity of a certain note of $8,000 given by the party of the first part (Washington A. Frazer) to Jennie E. Frazer and endorsed by the said Jennie E. Frazer to the Cataract bank, which note is dated March 29th, 1893, and payable three months after date at the Cataract bank, Niagara Falls, New York, and for any and all renewals of said pote.”

The date of this assignment and its acknowledgment was March 29th, 1893. This assignment and the bond and mortgage were delivered to the bank and are now held by the receiver.

John J. Frazer at this time was the owner and occupant of the premises described in the mortgage and has continued to be and there is no difficulty in locating the property mortgaged nor ascertaining its value.

When the eight thousand dollar note became due it was not paid but was protested for non-payment and has not been paid, nor any part thereof. All of the defendants were served in this action and therefore had notice of the relief sought therein.

The complaint in this action sets forth, the facts and demands judgment that the bond and mortgage be sold upon such terms as the court may deem just and the proceeds of the sale applied in payment of the note after deducting the costs and expenses of the action and the sale, and that Washington A. Frazer, be barred and foreclosed of all title or interest in the bond and mortgage, and that the plaintiff have judgment against Washington and Jennie for any deficiency that there may be after applying the proceeds of the sale as aforesaid.

The learned counsel for the defendant contends that the transaction of the assignment of this bond and mortgage as collateral security was" a pledge. This position seems to be conceded by the counsel for the plaintiff. Whether it be a pledge or not is perhaps not very important to determine here for the reason that in equity the substance of things is sought in administering relief and names are unimportant. The question is whether upon the facts stated the plaintiff is entitled to any relief, and if so, what?

The defendants further contend that as there was no express authority given by the agreement to assign the bond and mortgage as collateral security for the bank to sell the bond and mortgage, it cannot do so nor has the court the power to direct that this be done, but the plaintiff must await the maturity of the securities or their becoming due by reason of failure to perform a condition embraced therein, and then the plaintiff’s remedy is to collect on the securities themselves and that is his only remedy; and the defendants cite in support of that contention: Wheeler v. Newbould, 16 N. Y., 392; Miller v. Magee, 2 N. Y. Supp., 156; 17 St. Rep., 547; Haskins v. Kelly, 1 Robt., 160; Lary v. National Trust Co., 4 Wk. Dig., 56.

The facts in the first case cited (Wheeler v. Newbould) were' these. On November 6, 1848, the defendant loaned to the plaintiff $2,000 for the space of 44 days. The plaintiff as collateral security for the payment thereof and four dollars a day interest deposited with him promissory notes and drafts for the payment of money given by various persons and becoming due in about six months to the amount of $2,614.75. At the expiration of the 44 days the loan not being paid, the defendant gave the plaintiffs notice that unless they paid the loan he should sell the collaterals for the best price he could obtain, according to the usual custom and course of business in New York city, and reimburse himself. The loan not being paid the defendant on the 28th day of Decem- . her, 1848, sold the notes and drafts at private sale for the sum of > $2,020. The action was to have this sale declared void and for the defendant to account for the value of the securities received. It will be observed that there was no notice given of the time or place of the sale; no sufficient opportunity given to redeem the pledge by the pledgor; the sale was not public, but the whole proceeding was most unjust and arbitrary and was substantially a conversion of the property by the pledgee. The plaintiff succeeded in the trial court and also upon appeal to the general term and the court of appeals, and the question before the court was simply whether this sale could be sustained in equity, it is surprising that any one should have contended that it could.

The court of appeals, Wheaton v. Gates, 16 FT. Y., at page 396, say: “ The primary, and indeed, the only purpose of the pledge is to put it in the power of the pledgee to reimburse himself for the money advanced when it becomes due and remains unpaid. The contract carries with it no implication that the securities shall become effectual to discharge the obligation.” “It has been supposed by some writers that to justify such a sale it was indispensable that it should be under the decreetal order of some court, upon the application of the creditor, but, although the creditor was at liberty to make such an application, it does not appear that he might not act in ordinary cases without any such judicial sanction after giving proper notice of the intended sale ” etc. “ It is not a fixed and inflexible condition annexed to every pledge that the creditor may resort to a sale in all cases where there is a pledge, because the manner in which he is to reimburse himself may depend upon the terms of the contract or be inferred from the character and condition of the property pledged.” Page 397.

After laying down these sound and sensible propositions the court proceeds to show that the sale of goods, merchandise and personal chattels after notice, by the act of the pledgee, is proper, and adds: “ But where choses in actions for the payment of money notes, bills, bonds and mortgages, .are the subject of the sale the case is widely different, and the reason given is that this species of property has no intrinsic value of which one person may judge as well as another,” and the court concludes that the sale of these notes and drafts were invalid and takes the position in effect that tie proper course for the -pledgee to have taken was to have waited until the notes and drafts were due and collected them in the usual manner and applied the proceeds in payment of the debt secured. The last position seems to have been advisory and obiter. It was not necessary for the determination of the case before the court, and if the court intended to state that in all cases this was the exclusive remedy of the creditor, it was not consistent with the position plainly intimated, before quoted, that the creditor might go into a court of equity and have a sale of the pledge decreed.

The position, also, that bonds secured by mortgages put up as collateral, must be treated the same as commercial paper, that has only the responsibility of the maker behind it, was also obiter. It cannot be said that a bond, secured by a mortgage upon real property has no intrinsic value and that the only value of such instrument is the responsibility of the persons executing it. On the contrary their value can be ascertained as certainly as that of a cow or a horse. When the value of the real estate upon which the mortgage is a lien is known, the value of the security is known, and in making a sale of it, the purchaser can buy this security as intelligently as if he were buying any other chattel, and there is no more danger of sacrifice at the sale of this kind of property than any other, and, where the sale is by judicial decree and full opportunity is given the purchaser to redeem and full notice of the. sale, all the objections raised to the sale of commercial paper in this and kindred cases of the collateral securities before it has matured, disappears.

In many cases which appear in tfie books, this case of Wheeler v. Newbould has been cited, as authority for the position that the same rule is to be applied to bonds and mortgages as to commercial paper, and thence the doctrine has crept into the books as the authorative decision of the court of appeals without due consideration. In none, of the cases cited by the counsel did the pledgeeattempt to foreclose his pledge by action, but they were all cases where by the act of the party, alone, the salé was accomplished, or attempted.

In Miller v. Magee, supra, the collateral was a life insurance policy assigned as security for the payment of a note which was simply an obligation to pay money at the death of the insured.

The case of Haskins v. Kelly, 1 Robt., supra, does not aid us. That went off on the question as to whether the property wad a pledge and was satisfied by a tender mainly.

The case of Lary v. National Trust Co., supra, was where an injunction was obtained restraining the pledges from selling a $100,000 of bonds of a railroad. The court held they were mere choses in action and that their sale by the mere act of the pledgeewould be restrained.

It is conceded by the defendant that if there had been an express authority to sell this bond and mortgage, they could be sold by the act of the bank upon due notice without a resort to-equity, an authority to sell may be implied from the transaction, itself and the presumed intent of the parties. Merchants Bank v. Thompson, 133 Mass. 482; Wheeler v. Newbould, 16 N. Y., supra.

It was held in King v. Texas Banking and Industrial Co., 58 Tex. 69, that in the absence of an agreement to the contrary, a pledgee may sell the pledge at public auction after default and reasonable notice and if the pledgor asserts the existence of an agreement he must show it- See also Alexandria etc. R. R. Co. v. Burke, 22 Gratt (Va.) 254.

At the time this collateral was assigned the bond and mortgage had about two years and nine months to run before maturity. The debt for which it was given as collateral matured in three months, so that if the Bank had to wait, before it realized on its collaterals, until they were due, the security could not be made available until the expiration' of two years- and a half.

Was it within the contemplation of the parties that this large-sum of eight thousand dollars was to remain unpaid two years and six months after it became due in case it was necessary to resort to the collaterals for its payment. Such a conclusion is not consistent with business affairs or the natural and known conduct of business men. To my mind the inference is irresistible that it was within the intention of the parties that this security was to be made available through the proper methods, upon default in the payment of the eight thousand dollar note, and as no action could then be maintained to foreclose the said bond and mortgage the only remaining remedy was to sell the bond and mortgage and realize upon them; and that is the purpose of this action.

A distinction may well be drawn even in the case of commercial paper between collateral securities shortly to mature and those having a long time to run. In the first case, it may be assumed that the parties intended that the holder should realize upon the collaterals themselves by their collection of those collaterals when due. In the other case that the holder should realize by a sale of the collaterals; and it was expressly held in Richards v. Davis, reported in Fifth Penn. Law Journal Rep. at 471 that a pledgee of a note which is not to mature until long after the principal debt has implied authority on default to sell the note and that he need not wait to collect it. And see also on this subject Brightman v. Reeves, 21 Tex. 70. And see Potter v. Thompson, 10 R. I. 8. And in Donahua v. Gemble, 38 Cal. 340, an action of foreclosure and sale of a past due negotiable note pledged was sustained, the maker being a non-resident and having no property in the state.

The power of a court of equity to decree a sale of the pledge under proper circumstances does not seem to be seriously questioned in any of the cases, indeed the jurisdiction is asserted in many.

Jones on Pledges at § 640 lays down the principle that “ a pledgee may properly enforce his lien by a bill in equity, especially when the contract of pledge neither provides for the time of redemption nor the manner and time of sale, and his rights or power are in any manner questioned or denied. The remedy is more complete than the common law right to sell the pledge after notice. The pledgee thereby, relieves himself from ulterior questions as to the propriety of his course, and the court can act with due regard to the rights of all parties concerned.”

Merchants' National Bank of Whitehall v. Hall, 18 Hun, 176, which was an action to foreclose a lien upon shares of stock; affirmed, 83 N. Y. 338; Story’s Equity Jurisprudence 1008; 2 Kents Commentaries 582.

A conrt of equity appointing a receiver to take possession of property pending a litigation concerning the rights of the parties thereto is vested with the power of selling the property in the receiver’s hands whenever such course becomes necessary to pursue in the interests of all parties.

High on Receivers § 192 ; and see Crane v. Ford, Hopk. 114; Smith v. Danzig, 3 Civ. Pro. 127.

And among the powers given to a temporary receiver by § 1788 of the Code of Civil Procedure, to sell or otherwise dispose of property of which he is the receiver as directed by the court. Certainly the powers of a permanent receiver and the power of a court to direct a sale as to him cannot be less than in in case of a temporary receiver.

It is the duty of the plaintiff to close up his receivership and distribute the property under the judgment annulling the corporation without any delay further than that which is absolutely necessary and in order that he may do so the court should assist him by all proper orders. If the contention of the defendant is sustained, there is no method of closing up this receivership so far as this large claim is concerned under two years and a half or three years. Such a result (if possibly consistent with the rights of the parties) should be avoided.

I think the plaintiff must have the judgment demanded, under such conditions and restrictions as will fully protect the rights of the pledgor.

Let the judgment be entered for the plaintiff for a sale of the bond and mortgage in the same manner and upon the same notice that real estate is required to be sold upon execution by the sheriff of the county of Niagara, which sale shall not be less than sixty days after service of a copy of the judgment herein upon the defendant, Washington A. Frazer, and he shall be permitted to redeem said bond and mortgage at any time prior to such sale upon the payment of the sum for which it was pledged and the costs and disbursements of this action.

The plaintiff should recover costs in this action against the defendants Washington A. Frazer and Jennie Frazer.

And should there be a sale and any deficiency thereon, judgment to go against said Washington A. Frazer and Jennie Frazer for such deficiency.


author: Bischoff J.

text:
    Albert P. Wennerstrom, Resp’t, v. Eugene Kelly, Jr., App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Witness—Credibility.
    The testimony of a witness, interested in the event of the action, is by no means conclusive.
    3. Same—Presumption.
    If a party has it peculiarly in his power to produce a witness whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.
    3. Principal and Agent.
    In an action for services and materials, an implied authority on the part of the wife to bind her husband is inferable from her knowledge and approval of some of the repairs, and from her occupation, with her husband, of the premises upon which the repairs were made.
    Appeal from a judgment for plaintiff rendered by the district court in the city of New York for the third judicial district. Action to recover for work, labor and services performed, and materials furnished in and about the making of necessary household repairs at defendant’s residence and upon the immediate instructions of defendant’s household servant.

      Charles J. Hardy for app’lt; A. A. Michell for resp’t.
   Bischoff J.

As regards the disputed items of plaintiff’s claim it was conceded by him that the repairs were made upon the immediate instructions, and under the direction of defendant’s household servant, and the only ground upon which defendant assails the judgment is that there was no evidence of the servant’s authority.

It appears, however, that the premises wherein the repairs were made were occupied by defendant as the common residence of himself and wife; that as to some of the disputed items at least defendant's wife was aware at the time that the repairs were in progress, and that not only did she not protest, but that she approved thereof. Her employment of plaintiff, and assent to the servant’s instructions to him as to those repairs, are therefore justly inferable from the facts.

With reference to the remainder of the disputed items it is to be observed that defendant’s denial of authority to his servant to cause them to be made, being that of a witness interested in the event of the trial, was by no means conclusive, Elwood v. Western U. Tel. Co., 45 N. Y. 549; Gildersleeve v. Landon, 73 N. Y. 609; Honegger v. Wettstein, 94 N. Y. 252; Kavanagh v. Wilson, 70 N. Y. 177; Wohlfahrt v. Beckert, 92 N. Y. 490; Canajoharie Nat'l Bank v. Diefendorf 123 N. Y. 191, 200; 33 St. Rep. 389. Authority to the servant to cause these repairs to be made was, therefore, also inferable from the fact that they were made upon and within defendant’s premises where he was at the time residing and which were subject to his control.

Again, a wife residing with her husband has implied authority to pledge his credit for the payment of ordinary and necessary household expenses. “The simple circumstance that husband and wife are living together has been generally held sufficient, when nothing to the contrary intervenes, to raise a presumption that the wife is rightfully making such purchase of necessaries as she may deem proper. Whoever then supplies her in good faith, as the law has been usually understood, need inquire no further, but may send his bill to her husband. This rule is a fair one; for it is not to be supposed that a husband will go in person to buy every little article of dress or household provision which may be needful for his family. As Lord Abinger observed, a wife would be of little use to her husband in their domestic arrangements, if his interference was always to be deemed necessary. Accordingly, if an action be brought against the husband for the price of goods furnished under such circumstances, it must be taken prima facie that these goods were supplied by his authority, and he must show that he is not responsible ” (Schouler’s Husband and Wife sec: 106; see also Lugar v. Swayze, 1 Misc. R. 209 ; 49 St. Rep. 38; 21 N. Y. Supp. 1101; Church v. Landers, 10 Wend. 79 ; Am. and Eng. Ency. of Law, vol. 9, p. 839 ; Lawson’s Rights, Remedies and Practice, vol. 2, p. 1317 sec. 719). The exercise of this implied authority on the part of defendant’s wife is inferable as before stated from the facts that she knew that some of the repairs were being made, and approved thereof, and that the remainder of the repairs were made upon and within premises at the time actually occupied by her and her husband for the purposes of their common household, and which, as such, were subject to her control and that of her husband.

One further circumstance supports the inference of the exercise of her implied authority on the part of defendant’s wife to pledge her husband’s credit for the payment of plaintiff’s demand. She was not called as a witness upon the trial'to disprove knowledge of the progress of the repairs at the time they were béing made, nor the facts that they were made with her sanction or upon her instructions; and her absence upon the trial remained without explanation. From this circumstance the justice below was justified in drawing the conclusion that if defendant’s wife had been produced as a witness her testimony would have tended to support plaintiff’s right of recovery. As the rule has been very recently stated in Graves v. U S, 14 U. S. Sup. Ct. Rep. 40, Nov. 1893 “ if a party has it peculiarly within his power to produce witnesses whose testimony would eludiente the transaction, the fact that he does not do it creates the presumption that the testimony if produced, would be unfavorable ” See also 1 Starkie Ev. 54; People v. Hovey, 92 N. Y. 544, 549: Gordon v. People 33 N. Y. 508 .

Judgment affirmed, with costs.


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    Lyman G. Bloomingdale et al., Resp’ts, v. John M. Adler, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. District court—Power.
    It is beyond the province of a district court justice to entertain a motion to set aside the verdict and for a new trial.
    2. Jury—Drawing.
    The jury should not be drawn from a new venire, because possibly those chosen may be prejudiced against the party on account of his counsel’s technical objections.
    3. Same—Challenge.
    An omission to challenge is a waiver of all objections to a juror.
    4; Witness—Credibility.
    The credibility of a witness is always in issue, and evidence, which tends to impeach it or to demonstrate the improbability of the truth of his testimony, is relevant.
    6. Appeal—First instance.
    Omission' to make an objection upon the trial precludes it from being raised on appeal.
    6. Appeal—Charge.
    Where counsel desire^ to have the effect of evidence limited, he must apply to the court for instructions to the jury.
    Appeal taken by the tenant from a final order of the district court in the city of New York for the seventh judicial district, awarding possession of premises to the landlord upon expiration of the tenant’s lease, in summary proceedings instituted pursuant to §§ 2231, etc., of the Code of Civil Procedure.

      D. Solis Bitterband, for resp’ts ; David G. Myers, for app’lt.
   Bischoff, J.

The tenant sought to justify his possession of the premises under an alleged parol lease made to him by one Hamburger, the landlords’ grantor, before Hamburger’s transfer of ownership to the landlords. The premises had been held by the tenant under a written lease from Hamburger which expired of its own limitation on May 1, 1893, and it was claimed by the tenant that such lease was orally extended by Hamburger for one year before the latter conveyed the premises to the landlords and petitioners in the summary proceedings to recover possession. The landlords’ succession to Hamburger’s rights was shown by the production and admission in evidence of the contract of sale and the deed of the latter' to the former. Considerable testimony of a decidedly conflicting and contradictory nature was given upon the question whether or not the parol lease which the tenant contended for was in fact made and the case was submitted to the jnry upon a fair charge to which no exception was taken. This question of fact was eminently for the jury’s determination and, in view of the character of the evidence, their finding in favor of the landlord is not to be disturbed. Hayward v. Barron, 46 St. Rep., 667; Dreher v. Connolly, 16 Daly, 106; 30 St. Rep., 674.

The tenant’s motion to set aside the verdict, and for a new trial, was beyond the province of the justice to entertain, Schwartz v. Wechler, 49 St. Rep., 145; Hecht v. Mothner, 54 St. Rep., 121, and hence was necessarily denied.

An examination of the exceptions for the tenant to rulings on the trial does not disclose material error. For the trial of the issues a jury was summoned "by the justice as required by § 2247 of the Code of Civil Procedure. Six of the persons so summoned were called and took their seats in the box, but were directed to file out, and a new jury was drawn pursuant to the provisions of § 2994, .upon objection by counsel for the tenant that the last mentioned provisions had not been complied with. The justice thus promptly cured any defect as to the array, when his attention was called thereto. There is no force in the contention that the jury should have been drawn from a new venire, because possibly the jurors chosen might be prejudiced against the tenant because of his counsel’s technical objections. The jurors accepted were examined, and stated their readiness and ability to fairly decide upon the evidence, and no one of them was retained under objection. The tenant’s only available objection under the circumstances stated was to the jurors individually, the statutory requirements with regard to the venire, and array having been strictly complied with. The objection “Jo the venire''1 was therefore not well taken.

The tenant contends further, but raises the question for the first time on this appeal, that Adler, a juror accepted by consent, was a talesman, and therefore improperly received upon the jury. Such a contention cannot avail. An omission to challenge is a waiver of all objections to a juror. Clark v. Van Vrancken, 20 Barb., 278; Eggleston v. Smiley, 17 Johns., 133.

Exception was taken to the remarks of counsel for the landlords and petitioners in the opening of the case to the jury, these remarks being with reference to the tenant’s having “ taken to himself another store ” in the immediate vicinity of the premises in question and at the time when the oral agreement relied upon was alleged to have been made. Evidence directly to this effect was given upon the trial and there is therefore no force in the objection. Moreover, the jury were instructed to find upon the evidence only and not upon the statements of counsel. The evidence as to the taking of this other store was received under objection by the tenant’s counsel, but it was certainly relevant and material in determining upon the probabilities of the case, and as a circumstance tending to throw light upon the transaction, in view of the conflicting character of the evidence. The credibility of a witness is always in issue, and evidence which tends to impeach it, or to demonstrate the improbability of the truth of his testimony, is relevant. Pharo v. Beadleston, 2 Misc. R., 424 ; 50 St. Rep., 609. There can be no question in the present case as to the competency of the source of the testimony, it being that of the tenant himself on cross-examination. Goldberg v. Lavinski, 22 N. Y. Supp., 552; 51 St. Rep., 605, is not in point. There it was sought to prove the party’s own act as evidence against his adversary and the offer of the proof was held to have been properly rejected; a materially different question from the one before us.

With regard to the transcript of the testimony of Hamburger, taken on a former trial, and which was read in evidence upon this trial, Hamburger having died meanwhile, no question as to its value as evidence can be properly raised upon'this appeal, while upon a proper objection, proof that the transcript contained all the testimony, and that it was properly transcribed, might have been required, the omission to make the objection upon the trial precludes the tenant from making it now. So, too, the affidavit referred to in the transcript as having been read to the witness was not a part of the record, and manifestly was not testimony taken upon the former trial so as to authorize its receipt in evidence upon this. It was excluded under general objection, and we think properly so since it was not competent as part of the record and as no foundation by proof of its identity was laid.

Neither do we appreciate the force of the objection by the tenant’s counsel on the trial to the reading of .the landlords’ deed from Hamburger to the jury, on the ground that the deed was in evidence only for the purpose of showing title and dates. The deed was offered and admitted in evidence generally, and its contents were therefore to be considered by the jury. The same is to be said of the contract of sale. If counsel desired to have the effect of these.documents limited, he should have applied to the court for instructions to the jury.

The tenant was in no sense prejudiced by the evidence respecting the due execution of the contract and the date of the landlords’ negotiations for the purchase of the premises.

The order appealed from should be affirmed, with costs.


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    David Seligman, Resp’t, v. Isaac Hahn, Appl’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Appeal—Pleading.
    Where the defendant has omitted to object to the sufficiency of the complaint on the trial, and the defect is one capable of amendment, it is too late to urge the objection on appeal.

      2. Same—Objection.
    The power of the appellate court to reverse without an objection or exception in the record, refers only to appeals to the general term of the trial court.
    3. Same.
    Objections to admission of evidence are valueless, if not made until after the witness has answered and no motion is made to strike out such answers, or if no grounds are stated.
    4. Co-pabtnebship—Action.
    One partner may sue his co-partner at law upon his express promise, or when the cause of action is distinct from the partnership accounts and does not involve their consideration.
    Appeal from a judgment of the general term of the city court of New York which affirms a judgment for plaintiff at trial term on a verdict in his favor; and from an order of the general term which affirms an order denying defendant’s motion for a new trial based on the minutes. :
    Action by one of two former co-partners to recover against the other upon his promise to indemnify the former to the extent of one-half of the loss of particular demands in favor of the co-partnership firm, and which demands, pursuant to the terms of an agreement dissolving the co-partnership, plaintiff had consented to accept as part of his share of the assets in consideration of the aforesaid promise.

      Epstein Bros., for resp’t; H. M. Whitehead, for appl’t.
   Bischoff, J.

Where the defendant has omitted to object to the sufficiency of the complaint on the trial, and the defect was one capable of amendment, it is too late to urge the objection on appeal. In such a case, the plaintiff is entitled to the benefit of the cause of action as established by the evidence. Knapp v. Simon, 96 N. Y., 284. The cases cited for appellant to the effect that the appellate court may reverse without an objection and exception in the record have reference only to appeals to the general term of the trial court. Baylies’ New Trials and Appeals, 301, 333; Schwinger v. Raymond et al., 105 N. Y., 648; 7 St. Rep. 544. The position of this court towards the city court of New York is in this respect the same as that of the court of appeals towards the supreme and superior city courts. Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep. 553.

Defendant’s promise was not one to answer for the debt, default or miscarriage of another, but one to indemnify the plaintiff for a total or partial failure of consideration. Hence the law governing the enforcement of a guaranty cannot be applied. Ralph v. Eldridge et al., 137 N. Y., 525 ; 51 St. Rep., 168 ; Milks v. Rich, 80 N. Y., 269. The motion for dismissal of the complaint, therefore, which was made when plaintiff rested, and based upon the ground that plaintiff had not exhausted his remedy against the debtors of the firm, was properly denied.

We are precluded from inquiry into the sufficiency of the evidence in support of the recovery by the absence of a valid exception to the denial of a motion for dismissal of the complaint, or the direction of a verdict for defendant, when the introduction of evidence was concluded for both parties, and the cause was about to be submitted to the jury, Schwinger v. Raymond et al., supra. A motion for dismissal of the complaint was made upon the ground that an action at law was not maintainable by one co- ■ partner against another concerning any matter growing out of their co-partnership relations. No exception to the denial of the motion was taken, nor is the denial urged as error on this appeal. The ground stated for the motion was clearly untenable One partner may sue another at law upon his express promise. Casey v. Brush, 2 Caines R. 293 ; Arnold v. Arnold, 90 N. Y., 580 ; or when the cause of action is distinct from the'partnership accounts and does not involve their consideration. Ferguson v. Baker, 116 N. Y. 257; 29 St. Rep., 626.

The objections to rulings on the trial are valueless upon two grounds. They relate exclusively to the admission of testimony, but it appears that they were not made until after the witness had answered the questions, and that no motion was made to strike the answers out. Platner v. Platner et al., 78 N. Y. 90. No ground for the objection was given in either instance; Cruikshank v. Gordon, 118 N. Y. 178; 28 St. Rep., 784; Crawford v. Met. Elev. R. R. Co., 120 N. Y. 624 ; 30 St. Rep. 866; Stouter v. Manhattan R’way Co., 3 Silvernail, Court of App. R. 472; 38 St. Rep. 162.

The judgment and order should be affirmed with costs.


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    Gertrude Heusner, as Administratrix, etc., Resp’t. v. Houston, West Street and Pavonia Ferry Company, App’lt.

      (New York Common Pleas, General Term,

      Filed Feruary 5, 1894.)

    1. Appeal—General Term.
    On an appeal from an order denying a motion for a new trial, it is the right and dirty of the general term to review the evidence and to set aside the verdict, if believed to be unsupported by credible proof and contrary to the justice of the case.
    2. Damages—Child.
    In estimating damages for the death of a young- child, its mental and physical characteristics must be taken into consideration as well as its probabilities of life and present or prospective ability.
    Appeal from a judgment entered upon the verdict of a jury in favor of plaintiff, and from an order denying a new trial.

      Coudert Brothers & David Keane for appl’t; A. G. Vanderpool, for resp’t.
   Bookstaver, P. J.

This action was brought by the plaintiff as administratrix of Joseph Heusner deceased, for the death of her intestate, a youth a little more than ten years of age, caused by the alleged negligence of defendant’s servants. After a trial, the jury gave the plaintiff a verdict for $1,500.

The only exceptions in the case were those taken to the refusal •of the court to dismiss the complaint on motions made by the defendant, both at the close of plaintiff’s case, and when all the evidence had been received. On the coming in of the verdict the defendant moved for a new trial on the ground that the verdict was against the evidence, against the weight of the evidence, against the law, and that it was excessive, no pecuniary damage having been shown. But two witnesses to the accident were called on plaintiff’s behalf, a girl of about thirteen, who as it was shown, had paid repeated visits with the plaintiff and her daughter to the office of plaintiff’s attorney. During the course ■of the trial she testified “ we three used to go down together to Mr. Vanderpool’s office.” As before shown, she was a child of tender years, whose mind could easily be acted upon by grown persons, and the conversations which she heard between them and without imputing to her any moral guilt or intention to misrepresent the facts, her testimony under the circumstances even if it had been consistently related and was devoid of contradictions, should have been closely scrutinized. She testified that she was coming home from school and was on the street, when she saw deceased pushed off the rear of defendant’s car by the conductor, whereby he was thrown down on the street, and a cart ran over him. In giving her testimony she became much confused, at one time testifying that deceased was pushed off the car on the side furtherest from her, and again on the side nearest to her. This she changed two or three times. She also testified that the vehicle which ran over the deceased was a cart filled with brick, while it is clear from the testimony of other witnesses that it was a truck loaded with barrels of cement. The other witness on plaintiff’s behalf also testified that the conductor shoved the deceased off the rear of the car; but she also was confused as to which side of the street she was on when she saw the accident, first stating that she was standing on the east side and then on the west side of the street, and then again that she was crossing the street at the time. The course of the examination as it appears in cold type was not calculated to create this confusion. Her sympathies were evidently excited by the misfortune of the plaintiff in the loss of her son, about which, as she testified, “ she felt very bad.” She may have intended to be honest, but her testimony was not of that convincing character that should in our judgment have outweighed the testimony offered on behalf of the defendant who produced the conductor and three apparently disinterested and honest witnesses, whose testimony was in no way shaken by cross-examination, was consistent with itself, and with the version of the affair as given by the other witnesses, although there were such differences in the minor details as are usually received as indications of the truthfulness of the testimony given, as each saw the occurrence from a different standpoint. Both the conductor and all of defendant’s witnesses swear that he did not push the deceased off the car, and that he was not in a position to do so. One of the witnesses, a passenger on the car sat at the rear end of it on the left hand side of the car going up, which was the west side and the one on which the boy was immediately before the accident. She testified there was a window on her right, that the conductor was taking fare, going first up on her side of the car and coming back on the other side; that when the accident occurred he was still inside of the car collecting fare, and when the boy saw the conductor coming in his direction he let himself drop off, and that.the conductor did not in any way touch him and could not have done so. The conductor himself swears' to substantially the same state of facts, and that the nearest the deceased ever was to him was at least six feet. Neither of the other witnesses were on the car at the time of the accident; one of them was standing two doors north of Second Street in Avenue 0 on the east side of the avenue where he could see all that took place, and he testified that while the conductor was still inside the car but moving toward the platform, he saw deceased jump or throw himself of the car and that the conductor did not touch him. He further testified that after the accident he went to the station-house and summoned an ambulance and then came back with the officer who carried the boy to the station-house; that the boy commenced to cry and said he would not do it any more, that there was nothing the matter with him and that it was his own fault. The other witness was going through Avenue C to Houston Street, and was near the corner of Second Street and Avenue C, at the time when he saw the boy hanging on the back of the car holding on with one hand to the handle of the brake and the other on the rear of the car; that the conductor was inside at the time ; that as the conductor was going towards the door and before he reached the boy, the latter jumped off ; that he did so when the conductor had about reached the door but had not yet gone on the platform, and that the conductor did not touch him at all.

Under these circumstances while we do not think the court erred in refusing to take away the consideration of the question of negligence from the jury, we think that evidence was not properly weighed by the jury and the verdict should be set aside.

In Clark v. Mechanics N. Bank, 8 Daly, 504, Hon. Charles P. Daly, then Chief Justice, observed, “Juries are not infallible; they are individually and collectively subject to the ordinary infirmities of human nature, and cases do occur where if the court did not interpose and set aside the verdict, it would amount to a denial of justice.. By doing so _no_ right is taken away. The effect of setting aside the verdict is simply to subject the case to further consideration by another jury, and even this has its limits.” Quoting Fowler v. Aetna F. Ins. Co. 7 Wend. 270; Talcot v. Commercial Ins. Co. 2 Johns 124. “ This supervisory authority over the verdict of a jury even upon a question of fact, is a most salutary one, and in the language of Graham no lover of justice would wish to see it crippled or narrowed, as it might otherwise be in the power of .juries-to trample upon justice.” See also Baxter v. McDonald, 5 Daly, 508; Molloy v. N. Y. C. & H. R. R. R. Co., 10 Daly, 454; McCarthy v. Christopher & T. St. R. R. Co., 10 Daly 540; Macy v. Wheeler, 30 N. Y. 237; Thompson v. Menck, 22 How. 435 ; Kelly v. Frazier, 27 Hun, 315 ; Hamilton v. Third Ave. R. R. Co., 53 N. Y. 27; Smith v. Aetna Life Ins. Co. 49 N. Y. 211; Engel v. Schoolherr, 12 Daly, 417; Kummer v. Christopher & T. St. R. R. Co., 50 St. Rep. 332. In the latter case the learned judge who delivered the opinion of the court said “On an appeal from an order denying a motion for a new trial, it is the right, and for that matter the duty too of the court at general term to review the evidence and to set aside the verdict if believed to be unsupported by credible proof and contrary to the justice of the case. Otherwise there would be no relief from a judgment unaffected by legal error though resting upon a verdict in itself infirm from a defect in evidence satisfactory to the reason and conscience of the court; and in view of the prevalent disposition of juries in cases of personal injury to award damages against corporations upon slight or equivocal evidence, we conceive it an imperative duty not to relax that supervision of their determinations which the law exacts of us in the interests of public justice.”

The only proof in regard to any pecuniary damage resulting to the next of kin is of the slightest character and amounts to no-more than that the boy, although attending school, at times did errands for his mother. Indeed it has been said by the court in a recent case that there is no rule of estimating damages for the death of a young child; Chic., M. & St. P. R. R. Co. v. Wilson, 35 Ill. App. 346 ; it is largely a matter of conjecture. In arriving at a conclusion the mental and physical characteristics of the intestate must be taken into consideration as well as his probabilities of life and his present or prospective ability. Under the proof in this case we think the mere pecuniary loss which is the only thing that can be considered by the jury, was estimated by them at a very large sum.

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


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    John Owens, Appl’t, v. Richard Flynn, one of the Marshals of the City of New York, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Appeal—Reversal.
    A judgment, which is not secundum allegata et probata, cannot stand.
    Appeal by the plaintiff from a judgment of the district court in the city of Flew York, for the eleventh judicial district, rendered by the justice thereof, without a jury, in favor of such plaintiff for the sum of forty dollars damages, besides five dollars and fifty cents costs.
    Action to recover damages for the conversion of property alleged to have been held by the plaintiff as lienor and pledgee, by reason of which conversion, his lien was destroyed. The facts are stated in the opinion.

      W. Arrowsmith, for the app’lt; Clarence A. Sears, for the resp't.
   Giegerich, J.

The plaintiff’s lien as stable-man for the sum of $160 was perfected in accordance with the requirements of the statute, Laws of 1892, chap. 91; Eckhard v. Donohue, 9 Daly, 214; Lessels v. Farnsworth, 13 id., 473, and no evidence upon which a reduction of the damages by $120 can be based, appears from the record. It is unnecessary to consider whether the liens claimed by the plaintiff as warehouseman and pledgee were sufficiently established, as the judgment cannot stand in any event, not being secum'dum allegata et probata. Fuld v. Kahn, 4 Misc. Rep., 600; 24 N. Y. Supp. 558; 54 St. Rep., 134.

The judgment should be reversed, and a new trial ordered, with costs to the party there prevailing.


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    Alfred C. Garsia, App’lt, v. T. Hamilton Burch, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Co-partnership—Individual Debts.
    Where one partner uses or disposes of firm assets in payment of his indi, vidual debts, with the assent of the co-partner or his duly authorized agent, the co-partner is bound by such arrangement.
    2. Same.
    A party who, at the time of his transactions, was not aware that the wives, and not the hnsbands, compose the firm, but to whom the latter were held out as the partners, has the right to treat them as members of the firm.
    3. Principal and Agent—Declarations.
    The acts and declarations of a general agent, in the transaction of his principal’s business, though in his absence, bind him.
    Appeal from a judgment entered in the district court of the city of New York for the sixth judicial district in favor of the defendant, dismissing the complaint.

      James W. Hawes, for appl’f; Fromme Brothers, for resp’t.
   Bookstaver, P. J.

The plaintiff sues as purchaser of claims at a sale by the assignee of the firm of Brown & Plympton, which firm was composed of Martha A. Brown and Emma C. Plympton, but the business was carried on by their respective husbands. It is established beyond any question that the defendant performed professional services as a physician for Mr. Plympton for more than the amount of the claim sued for. It also appeared from the evidence that there was a continuing arrangement by which the claim against him was from" time to time offset against his claim for services; that this arrangement was known to and acquiesced in if not suggested by Mr. Brown, the husband of Martha A. Brown, who acted as her general attorney in conducting the business of the firm. It is, of course, true as contended by appellant’s counsel that one partner has no right to use or dispose of co-partnership assets in payment of his individual debts, but if this is done with the assent of the co-partner or one authorized to .carry on the business on behalf of the co-partner, that partner cannot subsequently take advantage of this rule. It is manifest if Mrs. Brown herself had consented to this arrangement, she could not afterwards have questioned it, and we think that her husband carrying on the business for her and having general authority as he had, to sell, dispose of, collect and discharge liabilities, had as much right as she to agree to such an arrangement. It is only where an agreement of the kind between Plympton and the defendant was made without the knowledge or assent of the other party, that it would not be binding upon the firm ; whether or not such assent was given must depend upon the facts and circumstances of each case. Gates et al. v. Vincent, 12 N. Y. Supp. 704; 34 St. Rep., 800. Besides this, the defendant at the time he rendered the services to Plympton and purchased the goods in question, was not aware that the wives and not the husbands composed the firm, but the latter were held out to him as composing that firm. Under such circumstances he had a right to treat with them as principals; Mullen v. Lamphear, 15 St. Rep., 647, and cases cited. Or at least to believe that they were acting within the scope of their authority, as there was nothing to indicate to the public at large that any but the husbands were the actual co-partners in the business. Ruggles v. Am. Ins. Co., 114 N. Y., 415; 23 St. Rep., 847; Wait v. Borne, 123 N. Y., 592 ; 34 St. Rep., 344.

The objection to the introduction of what took place between Mr. and Mrs. Plympton and Mr. Brown when Mrs. Brown was not present, is not well taken. Mr. Brown y^as there as her general agent and representative, and had a right to act and speak for her.

It may be that some of the interrogatories propounded to the witnesses examined on commission, did call for conclusions, and would have been stricken out by the court if there had been a settlement of interrogatories before the commission issued. We do not think, however, that the answers to these interrogatories could have in any way affected the result, and that the judgment should be reversed on these grounds.

The judgment is, therefore, affirmed, with costs to the respondent.

This conclusion is reached with less hesitation because it appears from the bill of sale to plaintiff that he purchased this claim with others aggregating a considerable sum, for seven dollars and with a distinct notice in the bill of sale itself that the assignee did not represent such claims to be uncollected, and that all of them “were sold subject to any and all defenses which might be interposed or set up,” which was quite sufficient to put him on inquiry before making the purchase.


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    Grace D. Ives, Resp’t v. Peter Quinn, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Evidence—Landlord and Tenant.
    In an action by an alleged sub-tenant against another alleged sub-tenant, of the same premises to recover rent, the agreement between each of them and the superior landlord is competent, in order to determine their respective rights to the premises.
    2. Evidence—Expert.
    Witnesses, who are not shown to he experts as to the value, or to have had any experience in regard to the renting, oí premises, are incompetent to testify as to rental value.
    Appeal from a judgment of the district court of the city of New York for the first judicial district.

      Phillip Carpenter for app’lt; Wakeman & Campbell for resp’t.
   Bookstaver, P. J.

This action for rent was brought simultaneously with four, actions for trespass, one of which was against the defendant in this action. All of the actions except this one were tried together, and resulted in judgment in favor of the present respondent This action also resulted in a judgment in her favor. Appeals from all these judgments were taken to this court, the trespass actions being heard immediately before the appeal in this action. From the evidence it appears that the plaintiff had been in possession of a part of the top loft of No. 12 Yesey street for some time prior to May 1st, 1893, at which time her superior landlord claimed her lease expired, and let the premises in question to the defendant. The plaintiff, however, claimed that her lease did not expire at that time and refused to go out. Defendant moved into a part of the premises and thereupon a controversy arose between the plaintiff, the superior landlord, and the defendant, Quinn, as to the possession. On or about the 15th May an agreement of some kind was entered into between the superior landlord and the plaintiff, whereby she continued in possession of the premises, or that part occupied by'her, until the 1st of June of that year. The gist of this action against defendant is for the rent of those premises for the month of May. No agreement is shown by the evidence to have been entered into between the plaintiff and the defendant. The only evidence on that point on plaintiff’s behalf was the testimony of Mr. Abercrombie, which is as follows: “ Mr. Stewart, in the presence of Mr. Quinn, wanted me to talk to Mr. Quinn about Miss Ives occupying a certain portion of the premises and getting Mr. Quinn’s consent that she should occupy the premises and that he, Mr. Quinn, would let her have them is she would pay $10 or $15. I said no, that we had nothing to do with Mr. Quinn, and that she was the rightful possessor of the premises and would have nothing to do with him, but if he wanted to occupy part of the premises Miss Ives would let him in. Mr. Stewart said, Let us fix up an agreement. As near as I can recollect he said that. We then went up to Miss Ives’ office in the front part of the room * * Before going into the office, there at the door, Mr. Stewart told me what part of the premises Mr. Quinn wanted to occupy. * * * Mr. Quinn wants the centre portion ; if you let him have the centre room and take away your cutter and two or three other machines called stitchers, he wants to occupy that and to bring in another ruling machine. * * * I told him that, if necessary, we would give Mr. Quinn two-thirds of the left side of the room and move the stitchers and cutting machines up towards the front.” The case does not show that Mr. Stewart had any authority to bind Mr. Quinn ; he positively denies that he made any arrangement with Mr. Abercrombie about rent, and Mr. Quinn positively denies that he made any such agreement or authorized anybody to make any such arrangement for him. This being all the evidence touching any agreement, we do not think the court was justified in finding there was any agreement of any kind to pay rent. The utmost that could be inferred from this was that Mr. Quinn occupied a portion of the premises, and if Miss Ives was lawfully in possession of the same the court might have been justified in finding that he should pay her something for such use and occupation. But even that depended upon whether Miss Ives was a tenant, and there was an agreement, express or implied that Quinn should come in as a tenant under her. Probably this could be determined by referring to the agreement made between the superior landlord and Miss Ives, and ordinarily we would have a right to refer to it as the same is now on file in this court; but under the circumstances of this case, we cannot, as it was offered in evidence by the defendant and excluded, thus showing conclusively that the court did not consider it at all in rendering its judgment From what has been said, it is manifest that this paper was an exceedingly important one to determine the rights of the parties, and its exclusion on the trial was error.

The lease from the superior landlord to the defendant Quinn was also offered in evidence and excluded, which, under the evidence in this case, we think was error, as it is claimed the agreement first excluded has reference to the tenants of the superior landlord, and it was necessary to have both papers before the court in order to determine the plaintiff’s and defendant’s respective rights to the premises.

Mr. Abercrombie and the plaintiff were allowed by the court to testify as to the value of the premises occupied by' the defendants. Neither of them were shown to be experts as to such value or to have had any experience in regard to the renting of premises, and we think the admission of this evidence was error under defendant’s objection.

We also think the damages allowed by the court for the use and occupation of these premises excessive. Defendant testifies the entire loft was about 115 by 25 feet, and that he had a space about 5 feet by 12, in which he had only two girls working; he did not occupy it under this agreement for more than half a month. $27 is three or four times more than the ratable proportion of the loft occupied by the defendant was worth, according to this testimony.

The judgment should therefore be reversed with costs to the appellant.


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    James Mead, Resp’t, v. William B. Pope, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Appeal—Conflicting Evidence.
    Where the evidence creates a conflict upon a question of fact, the determination of the district court justice is not the subject of review in the general term, of the common pleas, in the absence of the elements which justify such review.
    Appeal by the defendant from a judgment of the district-court in the city of New York for the first judicial district, rendered. upon a trial before the justice thereof, without a jury.
    Action for goods sold and delivered.
    The opinion states the material facts.

      James Forrest, for app’lt; W Arrowsmith, for resp’t.
   Giegerich, J.

The appellant’s sole exception, as appears-from the record, was taken to the denial of his motion to dismiss-the complaint, made upon the close of the plaintiff’s case. Evidense was adduced upon the part of the plaintiff showing that the coke in question had been continuously delivered at the premises owned since July, 1891, by the defendant; that the bills-for the same, made out in defendant’s name, were paid partly in cash and partly by defendant’s check, during the period from July 11, 1891, to March 10th, 1892, and that these bills were founded upon receipts for the material signed with defendant’s-name by the engineer upon the premises. There, unquestionably, was sufficient evidence to support a cause of action for the price of the material which was shown to have been furnished in the usual manner, upon similar receipts by the engineer for a period subsequent to March 10th, 1892, no notice of revocation of the engineer’s ostensible authority, as implied from this course of dealing, having been given. The exception does not present error. The evidence given on behalf of the defendant created a conflict upon a question of fact, the determination of which was-peculiarly within the province of the justice below and is not the subject of review here, the elements justifying such review not appearing in this case. Lynes v. Hickey, 4 Misc. Rep., 522 ; 54 St. Rep., 120; 24 N. Y. Supp. 731; Weiss v. Strauss, 39 St. Rep. 78; 14 N. Y. Supp. 776; Dempsey v. Paige, 4 E. D. Smith, 219.

The question of change of title in the premises cannot be considered upon the record submitted. For all that appears, the deed mentioned as offered in evidence by the defendant was not received, but no exception appears. The deed is not found with the return and evidence is absent upon the point.

The judgment should be affirmed with costs.


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    Eugene Frankel, Resp t, v. Lucian Wolf, Appl’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Witness—Credibility.
    The testimony of an interested party is not controlling.
    2. Same—Exceptions.
    Exceptions, which do not present the grounds of the objection, are unavailing on appeal.
    3. Same—Objection.
    The technical objection of incompetency, etc., does not raise the question of the proper foundation for contradiction, where such objection could have been obviated by proof upon the trial.

      Appeal from a judgment in favor of plaintiff rendered by the district court in the city of New York for the fourth judicial district after trial before the justice without a jury.
    Action to recover upon defendant’s alleged promise to pay plaintiff a commission for the sale of chattels.

      Hoffman <6 Hoffman, for resp’t; Maurice B. Blumenthal, for app’lt
   Bischoff, J.

This is an action for commissions. No express employment of the plaintiff by the defendant, with regard to this transaction, is shown by the evidence and the cause of action rests upon a promise claimed to have been made to the plaintiff by the defendant, at the time when the purchaser was brought to him by such plaintiff, to pay the commission in question. There was no dispute that the sale took place and it .was not contradicted that the value of the goods sold was §1,800. Conflict appears upon the questions whether plaintiff was the procuring cause of the sale and whether any promise was made by the defendant to pay the compensation to plaintiff as claimed. Upon the evidence adduced on behalf of the plaintiff the justice could well find that the plaintiff was the procuring cause and that the promise in question was made. The plaintiff testified that five per cent had been promised him as commissions, and, while he also testified, upon cross-examination, that the defendant promised “ to do what is right,” it was not incumbent upon the court below to disregard the other parts of his testimony and to base the judgment upon this statement alone. Nor was the defendant’s denial that he made any promise and plaintiff was the procuring cause of the sale, controlling, being also the testimony of an interested party. Wennerstrom v. Kelly, handed down herewith. The determination of these conflicting questions upon all the evidence submitted was peculiarly within the province of the justice below, and that determination must be conclusive in such a case as the present. Weiss v. Strauss, 39 St. Rep. 78. Upon the apellant is the burden of showing that error was made by the justice in determining upon the facts and we cannot hold that this burden has been successfully sustained.

As appears from the record the majority of the exceptions relied upon do not present the grounds of the objection and are therefore unavailing on appeal. Malcolm v. Lyon, 46 St. Rep. 921; Myers v. Cohen, 53 id. 223. The exceptions to the exclusion of evidence-are not pressed and do not present error, most of this evidence having been excluded under general objection and not being material to the issue. No proper foundation was laid for the admission of entries in defendant’s books. In excluding the question asked plaintiff upon cross-examination, “ When you said before that he said he would give you five per cent commission you told something that was not true? ” no error was made. Whether the witness’ testimony was true or not was properly for the determination of the court. Exception was taken to the admission of the evidence of the witness Kean with reference to the state* ment made by defendant’s witness Rosenthal, the purchaser in the transaction, out of court. The statement proven was in rebuttal and was inconsistent with the testimony given by Rosenthal to the effect that the plaintiff was not the procuring cause of the sale. The objection was made upon the general grounds of incompetency, irrelevancy, and immateriality, the specific ground stated being that it “ was not in the presence of defendant.” This latter ground presented no proper objection, Briggs v. Wheeler, 16 Hun, 583, and the general grounds advanced did not call for the exclusion of the evidence. It was properly admitted for the purpose of contradiction and the technical objection of incompetency, etc., cannot be considered as raising the question of its proper foundation where such objection could have been obviated by proof upon the trial. Mead v. Shea, 92 N. Y., 127; Tooley v. Bacon, 70 N. Y., 37. The motion by defendant to strike out the testimony of the plaintiff, brought out on cross-examination, with reference to his conversation with the purchaser of the chattels in defendant’s absence was also properly denied upon the ground advanced. It had a material bearing upon the transaction as to plaintiff’s services. Esmond v. Tuttle, 20 Week. Dig. 156. Defendant’s motion to dismiss the complaint should have been renewed at the end of the case in order to present the question, Carroll v. O'Shea, 51 St. Rep. 579, but when made was properly denied, sufficient facts being shown to justify such denial. We find no grounds for disturbing the judgment, which is, therefore, affirmed with costs.


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    Hugh McLiney, Resp’t, v. Philip Gombrecht, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Contract—Implied .
    A promise to pay for services may only be implied, when they were rendered under such circumstances as authorized the party performing; to entertain a reasonable expectation of payment by the party soliciting performance.
    Appeal by the defendant from a judgment of the district court in the city of New York for the second judicial district rendered by the justice thereof, without a jury, in favor of the plaintiff.
    Action to recover broker’s commissions. •
    The opinion states the material facts.

      Way land E. Benjamin, for app’lt-; J. Cochrane, for resp’t.
   Giegerich, J.

The judgment in this case must find its support upon some promise by the defendant, express or implied, to pay plaintiff’s assignor, Stacom, the commissions sued for, upon the renting of the premises in question. A perusal of the record fails to show any express promise upon the part of the defendant to pay such commissions. Is one to be implied ? The premises in question were held by Stacom and his brother under a lease from the defendant for a term of five years. It appears without dispute that after the premises had been so held for one year, Stacom became desirous of surrendering his lease, by reason of the condition of business, and that he had an interview with the defendant in that regard.'

Conflict appears upon the question of what was said during that interview ; but, according to the plaintiff, the defendant told him to “ get him a tenant ” and he would do “ what was right.” It will be observed that the questions in the minds of the parties was the surrendering of the existing lease, and no fair inference of a hiring as broker is to be drawn. The defendant consented, at Stacom’s instance, to give a ten year’s lease of the premises; this was not for defendant’s benefit, as appears, but was entirely a concession. The plaintiff’s version of what thus occurred is the only evidence in support of the contract contended for and is not sufficient for that purpose in view of all the circumstances of the case. A promise to pay for services may only be implied when they were rendered under such circumstances as authorized the party performing to entertain a reasonable expectation of payment by the party soliciting performance. Davidson v. Westchester Gas Light Co., 99 N. Y., 558. Such an expectation was not authorized in this case, according to all the evidence adduced.

The judgment, in our opinion, is clearly against the weight of the evidence, Brown v. Sullivan, 1 Misc. R. 161; 20 N. Y. Supp. 634; 48 St. Rep. 685, and for that reason it should be reversed and a new trial ordered with costs to the party there prevailing.


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    Henry Schumacher et al., App’lts, v. Milton V. Waring, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Appead—Evidence.
    On appeal from the district courts, the common pleas may reverse the judgment if it is against the weight of evidence.
    2. Witness—Cbedebilitv.
    The testimony of interested or biased witnesses is not conclusive.
    Appeal from a judgment for defendant rendered by the district court in the city of New York for the first judicial district.
    Action to recover monthly installments of rent alleged to have accrued under a lease for one year.

      Robe & Keller, for app’lts; Charles S. Williams, for resp’t.
   Bischoff, J.

On appeal from the district courts it is within our province to reverse the judgment if it is against the weight of the evidence, Curley v. Tomlinson, 5 Daly, 283; Macniffe v. Ludington, 13 Abb. N. C. 407; Fixam v. Brown, 3 St. Rep. 608; and in determining the weight it is proper to consider the quality of the evidence, the interest of the witnesses in the issue of the trial and the compatibility and consistency of their several statements with the truth as it may appear from attendant circumstances. Brown v. Sullivan, 48 St. Rep. 685; Siejke v. Siejke, 55 St. Rep. 388.

Plaintiffs sued defendant for the monthly installment of the rent of a flat which they conceded had accrued subsequent to defendant’s abandonment of the demised premises, and the only issue litigated was whether the lease was for a year as plaintiffs maintained, or from month to month as defendant said it was. The lease was oral, and plaintiff, Henry Schumacher, his wife and daughter, and the agent, througli whose means defendant w.as secured as a tenant, testified, each in positive manner, that at the time of the letting, it was stated to be for one year. Defendant and his brother, on the other hand, were equally emphatic that it was for one month, or from month to month. Which of these irreconcilable statements was probably true? Each of the witnesses who was a party to the action, was a witness interested in the issue ,of the trial, and his .testimony was therefore to be considered in the light of that interest. Elwood v. W. U. Tel. Co., 45 N. Y. 549; Wohlfahrt v. Beckert, 92 N. Y. 490. And the remaining witnesses may be suspected of partiality for the parties on whose behalf they were respectively called ,to testify. Two circumstances, however, the first appearing from testimony wholly unchallenged, the other conceded, determine the test of probability in plaintiffs favor and make their contention transparent with verity. At the time of the letting, and when neither party could reasonably have contemplated a controversy concerning ¡the terms of the lease, plaintiffs paid the agent’s commission on a year’s rental of the premises demised to defendant. Ho rent was to be charged or paid for the first month of defendant’s occupancy of the demised premises; and it is not a plausible story in view of that fact, that at the end of that month defendant was to be at liberty to vacate the premises without liability for future rent.

The judgment should be reversed and a new trial ordered with costs to .the party there prevailing.


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    Samuel W. Ehrich et al., Resp’ts, v. Charles L. Bucki, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Husband and Wife—Liability.
    To entitle a tradesman to recover against the husband for necessaries supplied to the wife, it must appear that the goods were supplied to her upon his cre.dit.
    1 Appeal from a judgment for plaintiffs, rendered by the district court in the city of Hew York for the seventh judicial district.
    Action by a firm of tradesmen to recover for necessaries alleged to have been supplied to the wife upon her husband’s credit.

      Julius Lehman, for resp’ts ; John T. Walker, for app’lt.
   Bischoff, J.

Unquestionably a wife who resid.es ¡with her husband has implied authority to pledge his credit for the payment of .necessaries supplied for her use and that of her family ; and the same authority arises, whether the wife be living with her husband, or not, if it appears that he has inadequately provided for her support, or not at all; and let it be conceded that the several articles supplied to the wife, and for which plaintiffs’ seek to recover, were necessaries in the sense in which that word has been defined. Bloomingdale v. Brinckerhoff, 2 Misc. R. 49 ; 49 St. Rep. 142. Still it does not follow that plaintiff's were entitled to recover.

To entitle the tradesman to recover as against the husband it must appear that the goods were supplied to the wife upon the husband’s credit. The presumption that the wife was acting as her husband’s agent is overcome by the fact that credit was given to her. Stammers v. Macomb, 2 Wend. 454; Mitchell v. Treanor, 56 Am. Dec. 421; Schoulder's Husband and Wife, § 109 and cases cited in notes 5, 6, 7 and 8. The record from which we are to determine this appeal not only fails to disclose even a scintilla of evidence to the effect that the goods sued for were supplied upon the husband’s credit but affirmatively shows that credit was given therefor to the wife. Accordingly the recovery was without adequate support by facts in evidence and the judgment should be reversed.

Judgment reversed and new trial ordered with costs to defendant to abide the event.


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    Emil Krakowski, Resp’t, v. The North New York Building and Loan Association, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Association—Articles.
    Where no provision is made in the articles of association for their amendment, an amended article is not binding upon a member by the force of its adoption alone.
    2. Appeal—Finding.
    A finding of the court, upon conflicting evidence, will not be disturbed on appeal.
    3. Same—General objection.
    An objection, which fails to set forth the grounds, is insufficient.
    4. Same.
    A general objection to the reception of evidence to be given by a witness is unavailing, in that it is anticipatory.
    Appeal by the defendant from a judgment of the district court in the city of New York for the tenth judicial district, rendered by the justice thereof without a jury in favor of the plaintiff.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      James G. DeLaMare, for appl’t; Fred G. Leubuscher, for resp’t.
   Giegerich, J.

This action was brought to recover the sum of ninety-nine dollars and ninety-nine cents alleged to have been unlawfully retained by the defendant as against the plaintiff at the time when the latter withdrew from such defendant association. The defendant sought to justify its retention of the sum in suit, as a forfeiture, under the provisions of certain amended articles of association.” The articles of association contained in the plaintiff’s pass-book, and to the terms of which he had assented, did not embody the rule under which such forfeiture is claimed, except in part and in that regard qualified by a provision as to the defendant’s having the funds for the loan pre-empted “ in bank.” It appears from the evidence that the defendant did not have such funds in bank during the period in question. In these “Articles of Association ” appears no provision for their amendment and therefore the “ amended articles ” could not be considered as binding upon the plaintiff by the force of their adoption alone. There was evidence sufficient to justify a finding on the part of a justice that the plaintiff was not made aware of the terms of the “ amended articles ” with reference to forfeitures, and this finding is not to be disturbed because of a conflict of evidence, in such a case as that before us. Weiss v. Strauss, 89 St. Rep., 78; Lynes v. Hickey, 4 Misc. Rep., 522; 54 St. Rep., 120; 24 N. Y. Supp., 731. But two exceptions were taken by the appellant. They are not relied upon on this appeal, nor are they properly the subject of consideration. That appearing on page 7 of the record fails to set forth the grounds of the objection and is therefore insufficient. Malcolm v. Lyon, 46 St. Rep., 921; Riche v. Martin, 48 id., 751; Carroll v. O'Shea, 51 id., 579; Myers v. Cohen, 53 id., 223. The general objection to the reception of evidence to be given by the witness Brady, as an expert, is unavailing in that it was anticipatory, no offer of proof having been made. Re Morgan, 104 N. Y., 74; 5 St. Rep., 511.

The judgment should be affirmed with costs.


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    Donald Nicoll, Resp’t, v. Fanny Hyman, Appl’t.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Lease—Guaranty.
    A renewal agreement, endorsed upon the lease and signed by the guarantor, is sufficient to constitute a guaranty for the renewed term.
    2. Appeal—Discretion.
    A motion to amend an answer upon the trial is addressed to the discretion of the court and not reviewable.
    Appeal from a judgment of the district court in the city of New York for the eighth judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff.
    Action by landlord against guarantee of payment under lease, to recover rent due upon renewed lease, such renewal being endorsed upon the original instrument in the following terms: “ The within lease is hereby continued in force for one year to commence on the first day of February, 1892, at noon and'to end on the first day of February, 1893, at noon, at the yearly rental of seven hundred and twenty ($720) dollars, payable monthly in advance as within specified and otherwise upon the same terms, provisions, covenants and conditions continued in the within lease.
    Dated January 22, 1892. Fanny Hyman,
    Witness: O. T. Higgins. S. Hyman.
    In the original lease Isadore.Hyman is described as tenant and the defendant as surety, the guaranty being as follows: “ The premises being rented at the request of Mrs. Fanny Hyman as surety the latter agrees in consideration oí the said letting, that the tenant shall pay the rent and perform the agreement, on his part above written.” The lease is signed by said Isadore Hyman, the plaintiff and the defendant.

      S. F. Hyman, for appl’t; Theall & Beam, for resp’t.
   Bischoff, J.

The evidence shows that possession was had under the lease during the period for which the rent is demanded. Ro express surrender is proven and we are concluded, in this case, by the finding of the justice that there was no constructive eviction. Weiss v. Strauss, 39 St. Rep., 78. The principal ground urged by the appellant for reversal relates to the insufficiency of the renewal agreement, endorsed upon the lease, to constitute a guaranty by the defendant for the renewed term. The proposition is not to be supported. Apart from the statute of frauds by pleading, the guaranty is sufficient, as to subject, parties and consideration, by intrinsic reference to the lease renewed. Marston v. French, 17 N. Y. Supp., 509; 43 St. Rep., 538. It is signed by the party to be charged. Ro reduction of the rent was properly to be allowed by reason of the fire which occurred ; this was pleaded as matter of defense merely, and, as above shown, the determination adverse to such defense must stand. The motion to amend the answer upon the trial, for the purpose of demanding damages in that regard, was of a nature which addressed itself to the justice’s discretion in this instance, Tattersall v. Hass, 1 Hilt., 56, and, therefore, is not to be reviewed. Rosenwald v. Hammerstein, 12 Daly, 379.

The right to relet under the sixth clause of the lease, with respect to defaults, was optional with the landlord and did not involve a duty to the tenant. In view of the evidence, the fact that the rent for the latter part of the month of Rovember, after the fire, was remitted, did not necessitate a finding that the lease was thereby terminated. An examination of the exceptions appearing upon the record discloses no error prejudicial to the appellant.

Judgment affirmed, with costs.