author: Per Curiam.

text:
    John Thurfjell, Resp’t, v. Frank S. Witherbee et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Venue—Change of fob convenience of witnesses—Affidavit.
    It is not sufficient that the papers on motion to change the place of trial for the convenience of witnesses state the facts which the moving-party expects to prove by the witnesses; hut it should he shown, either by the affidavits of the witnesses or otherwise, that the witnesses will testify to such facts, or have stated to the affiant that they will so testify, or that they were in a situation to have personal knowledge of such facts.
    Appeal from an order denying defendant’s motion to remove cause from the court of common pleas to the supreme court, and to change the place of trial on the ground of convenience of witnesses.

      Butler, Stillman & Hubbard (Henry H. Whitman, of counsel), for app’lts; J. Edward Swanstrom, for resp’t.
   Per Curiam.

This motion is founded and resisted on great expectations. Fifteen persons are named in the moving papers as necessary and material witnesses for the defendants on the trial of this action. Then follow statements of facts which defendants expect to prove by thirteen of the persons named, but there is no statement that defendants can prove any of the facts by any of the persons mentioned. The statement in respect to all of the witnesses is:

“ That your petitioners expect to prove the following facts by said witnesses, to wit ;*•>■* By Gilbert Barnaby and Peter Carlson, and each of them, that they were at work in said mine on the day in question, and saw said accident, and how the same occurred ; the size and character of the rock that fell, and the exact place in the roof from which it came; that, at the time said plaintiff was injured, each of them were standing within a few feet of said plaintiff.”

It is not stated that these witnesses will testify to those facts, nor is it affirmatively stated that they were at work in the mine at the time of the accident. The statement is that the defendants expect to prove that they were. Had it been stated that these persons were at work in the mine, and saw the accident, or that they were in a situation to have personal knowledge of the facts, or that they had stated to the affiant that they would testify to such facts, a better ground for the motion would have been disclosed. The same criticism is applicable to the statements made, respectively, as to the necessity of calling as witnesses the other persons named. Affidavits to change the place of trial, which state that the moving party can prove material facts by the persons named, are held to be sufficient; but affidavits stating that the moving party expects to prove such facts are insufficient, unless the affidavits disclose grounds showing that the facts can probably be established by the persons designated. This may be done by positive averments made by the party, or by affidavits of the proposed witnesses. The plaintiff’s opposing affidavits are subject to the same criticism. He expects to prove divers relevant facts by twenty persons who are named, but fails to state that he can prove such facts by any one of them. It would be almost impossible to convict an affiant of perjury upon such an affidavit, though false. It is important for the litigants and the witnesses that this action should be tried in the proper county, which, presumptively, is the county in which the cause of action arose. The statement that, within a year from the time of the accident, twenty persons, who are material witnesses, are residents of a county 300 miles from the scene of the accident, without an explanation as to how it happened, taxes the credulity of the court. The order should be modified by granting the defendants leave to make a new motion, on fresh papers, on the payment of ten dollars costs of the motion, and ten dollars costs and printing disbursements on this appeal. The costs to be paid, and the motion made, within thirty days after the entry and service of the order on this decision.

Van Brunt, P. J., Follett and Barrett, JJ., concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Dennis Maloney, Resp’t, v. Samuel Nelson, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Foreclosure—Mortgage tcJ indemnify surety on bail bond—Premature action:
    An action to foreclose a mortgage given by one surety on a bail bond to another to indemnify the latter for whatever he may be required to pay by reason of becoming bail, cannot be maintained before the mortgagee has paid anything upon the bond, although it has been forfeited.
    Appeal from decree of foreclosure of a mortgage.

      James M. Smith, for app’lt; Kellogg, Rose & Smith (A. J. Rose, of counsel), for resp’t.
   Van Brunt, P. J.

It appears that prior to the 16th of October, 1891. one Thomas O’Brien had been indicted by the grand jury of Albany county, and on his arrest had been held to bail, to-answer such indictment, in the sum of $10,000. Various efforts were made to procure bail for said O’Brien, in which benevolent enterprise the defendant seems to have interested himself; and on the 16th of October, 1891, he went to Albany, and thence to the office of the counsel of O’Brien, and was there told that such counsel would get some one to go on the bond with him, and that, it was necessary that the gentleman he was to get to sign the bond should be indemnified in such a way as to guaranty the presence of O’Brien, and in case of default the bond should mature. The defendant at first refused to give such guaranty, but later in the day he appeared and said it was all right, and for the counsel to go ahead. Subsequently the plaintiff. and the defendant became bail for O’Brien, and he was discharged. After such discharge the parties went to the office of O’Brien’s counsel, and there the bond and mortgage in suit were drawn up by the defendant Nelson, and delivered to the plaintiff. The condition of this bond was that:

“ Whereas, the said Maloney has signed as one surety a bond or recognizance, in the penal sum of ten thousand dollars, that-Thomas O’Brien shall appear to answer against him in whatever court it may he prosecuted, and shall at all times render himself amenable to the orders and process of the court, and if convicted shall appear for judgment, and render himself in execution thereof, and which bond or recognizance was entered into this day before Hon. Jacob H. Clute, Albany county judge: Now, therefore, if there shall be no default in the said bond or recognizance so-signed by said Maloney, then this obligation to be void; otherwise, to remain in full force and virtue.”

When the case of People v. O'Brien was called at the court for trial, O’Brien did not appear, and the bail bond given for his appearance, on which Nelson and Maloney, the parties to this action, were sureties, was forfeited, and this action was commenced. After the commencement of the action a suit was brought on the-bail bond, and judgment recovered against Nelson and Maloney, which judgment is yet unpaid; the execution thereon having been returned unsatisfied as to the defendant Nelson, and property of Maloney being under levy and advertisement for sale. Upon these facts the court directed judgment in favor of the plaintiff, and from the judgment entered thereon this appeal is taken.

Various grounds are urged in support of this appeal. That the contract was one to indemnify the plaintiff, and against public policy; that there was no consideration for the obligation; and. also that it was error to refuse certain requests. It seems to us that it is not necessary to consider the question as to whether a contract of indemnity is against public policy in a criminal action or not. It is perfectly apparent that the giving of this bond and mortgage was intended to indemnify Maloney for whatever he should be required to pay by reason of his having become hail for O’Brien. If such was not the contract, then the bond is utterly without consideration, because it is conceded that the plaintiff paid nothing at the time of the execution of the bond. On the contrary, the only person who got any money appears to have been the plaintiff, who got $1,000 for becoming the bail of O’Brien. The plaintiff, therefore, certainly has no right to recover, as he has paid nothing upon his hail bond, has suffered no damage as yet, and there is nothing in respect to which he is to be indemnified. If, as already stated, this bond and mortgage were not given as an indemnity, then they were absolutely without consideration. The result of the decree of foreclosure in this action, as against Kelson, shows at a glance that the plaintiff, in the present condition of affairs, can have no right to recover. Suppose that Maloney receives $10,000 upon the foreclosure of this property, and never pays any part of the bail bond, is never required to pay any part of the hail bond, and Kelson is required to pay the whole of it. The result would be that Kelson would be paying $20,000 upon an obligation of $10,0Q,0, and Maloney would be $10,000 in pocket. The mere statement of this proposition shows that the claim advanced upon the part of the plaintiff cannot be maintained. It is perfectly clear that, at the time of the commencement of this action, Maloney had no claim whatever. His contract of indemnity had not then been violated; and if there was no contract of indemnity he had no claim, even if he had such claim if contract of indemnity existed and had been violated. It seems to be clear, therefore, that the judgment was erroneous, and must be reversed, with costs to appellant to abide event.

Follett and Barrett, JJ., concur.


author: Van Brunt, P. J. Barrett, J. (dissenting).

text:
    John P. Kelly, App’lt, v. The Mayor, etc., of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Hew York City—Suspension op officer, when equivalent to dismissal.
    Plaintiff, an inspector of masonry, received notice from the aqueduct commissioners that, owing to lack of work, he was suspended, without pay, until his services might be required. Three months later the commissioners passed a resolution dismissing plaintiff, among others. Held,
      that the notice showed an intention to dismiss, and not merely to suspend, and that it was not qualified by the subsequent action taken.
    (Barrett, J., dissents.)
    Appeal from a judgment dismissing complaint, and from an order denying a motion for a new trial.

      Edward G. Delaney (Lyman E. Warren, of counsel), for app’lt ; William. H. Clark (Sidney J. Cowen, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover salary-alleged to be due to the plaintiff. On the 24th of August, 1888, 'the plaintiff was appointed by the aqueduct commissioners an inspector of masonry, to supervise and inspect the work of the construction of the new aqueduct, on a salary of $120 per month. Plaintiff entered upon his employment, and continued to discharge the duties of his office from that date to the 16th of November, 1888, when he received the following notice: “ Owing to lack of work, as reported by Division Engineer Growan, you are hereby suspended from November 16th, without pay, until such time as your services may be required.” On the 6th of February, 1889, about three months afterwards, the commissioners passed a resolution that, owing to the near completion of the work, the services of “ the following inspectors ” would be no longer required, and they were, therefore, dismissed from the employment of the aqueduct commissioners. The list included the name of the plaintiff.

This action was brought to recover salary from November 16, 1888, the time of the alleged suspension, to February 12, 1889, and is based upon the authorities of Gregory v. Mayor, 113 N. Y., 416; 22 St. Rep., 703, and Emmitt v. Mayor, 128 N. Y., 117; 38 St. Rep., 907, in which it was held that parties holding offices in the various departments could not be suspended without pay, but, in order that their right to salary should be terminated, they should be dismissed. The full force of these decisions, however, seems to have been modified by subsequent cases in which the intent of the parties, and their understanding, seem to control the language of the alleged suspension. For example, in the case of Lethbridge v. Mayor, 133 N. Y., 233; 44 St. Rep., 669, it was held that a suspension in consequence of insufficient appropriation, and a necessary reduction of force, was equivalent to a dismissal. So, in the case at bar, it seems to us that a suspension upon the ground of lack of work shows an intention to dismiss, and not merely to suspend; and the action of February 6, 1889, does not, in our judgment, in any way qualify this construction. Such action was undoubtedly caused by the fact of the condition of the decision in Gregory v. Mayor, etc., which had been decided by the general term in October, 1887, and was pending in the court of appeals, and actually argued on the 28th of March, 1889; the resolution in question being passed in order to prevent any possible continuance of liability upon the part of the city if a mistake had been previously made. We think a reasonable construction of the suspension was that the plaintiff’s services were no longer required, and that has been held equivalent to a dismissal. The claim made upon the part of the counsel for the respondent, that there was no proof of the proper appointment of the plaintiff to his position as inspector, comes with rather ill grace, in view of the fact that such appointment is admitted in the pleadings.

The judgment should be affirmed, with costs.

Follett, J., concurs.

Barrett, J. (dissenting).

I cannot distinguish this case from (Gregory v. Mayor, 113 N. Y., 416; 22 St. Rep., 703, and Emmitt v. Mayor, 128 N. Y., 117; 38 St. Rep., 907, while I think it is painly distinguishable from Lethbridge v. Mayor, 133 N. Y., 232; 44 St. Rep., 669, and Wardlaw v. Mayor, 50 St. Rep., 410. The intention was not to dismiss, but to suspend. This is clearly evidenced by the tenor of the notice. “ You are hereby suspended," it reads, “ without pay, until such time as your services may be required.” This meant that meanwhile he remained an inspector under his appointment, but an inspector without pay. When his services were required he was not to be reappointed, but was to recommence work under his original and existing appointment. But that was just what the court of appeals held, in the cases cited, could not be done, without paying the officer his current salary. That this was the construction placed upon the notice by the commissioners themselves, is evidenced by the subsequent dismissal. This latter was clear and unequivocal. FTor did the plaintiff consider himself dismissed by the suspension. He knew he was deprived of work and pay. But how? By a notice which plainly told him that his official relations with the commissioners were not finally severed. He never asked to be reappointed. What he asked Was to be sent back to work, or reinstated in active duty, not in office. The reason assigned for the suspension is immaterial, as it does not affect the real intention, as clearly evidenced by the rest of the notice and the subsequent dismissal. That real intention was, because of the lack of work, to- do something which was not authorized, namely, to suspend, instead of something which was authorized, namely, to dismiss. I think the judgment should be reversed, and a new trial ordered.

Judgment affirmed, with costs.


text:
    Robert H. Weems, Resp’t, v. Michael Shaughnessy impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Bills and notes—Bona fide holder.
    One who, upon indorsement, and transfer to him of a promissory note, surrenders an old note and pays the difference in cash is a bona fide holder of said note.
    2. Same.
    A transferee of a note, who took the same after maturity and without consideration, can recover thereon, if the person from whom he received it was a bona fide holder.
    3. Pleading—Will not be conformed to proof to reverse judgment.
    Although pleadings are sometimes made to conform to the proof in order to support, this cannot he done to reverse a judgment.

      Appeal from a judgment rendered at circuit in. favor of the plaintiff against the defendant- Michael Shaughnessy.

      Christopher Fine, for app’lt; Peckham, & Tyler (C. A. B. Pratt, Jr., of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought .to recover upon a promissory note made by the defendant Shaughnessy to the defendant Moore, and which note was indorsed by the defendant Moore to the firm of Donnell, Lawson & Simpson, for value, and before maturity, and was subsequently assigned and delivered by Donnell, Lawson & Simpson to the plaintiff.

The answer of the defendant and appellant Shaughnessy admitted the making of the note, denied that it was delivered for a valuable consideration, denied any knowledge or information sufficient to form a belief as to whether the defendant Moore delivered the note to the firm of Donnell, Lawson & Simpson, and, upon a similar averment, denied that the note was duly assigned and delivered by Donnell, Lawson & Simpson to the plaintiff. The answer further alleged that the note was made and delivered without any consideration whatever, and solely for the accommodation of the defendant Moore, and that the plaintiff had knowledge of that fact at the time mentioned in his complaint. Then follows an allegation that the plaintiff is not the real party in interest in said action.

Upon the trial it was shown that the firm of Donnell, Lawson & Simpson received the note in question from Moore before maturity, and at the time surrendered to him an old note of Moore for $8,000 and interest, and paid to him the balance in cash, and that subsequently, and after maturity, they transferred the note to the plaintiff. Some evidence was introduced, tending to show that the defendant had given the note to Moore, to be used by him in releasing a mortgage on his home, in Orange, R. J., he having stated that he wanted it for that purpose, and that the defendant had received nothing from Moore at the time of the giving of the note. Upon the close of the evidence the defendant moved for the direction of a verdict upon the ground that the evidence showed that the plaintiff had parted with no value. The court having announced its determination to direct a verdict for plaintiff, the counsel for the defendant asked to go to the jury upon the question whether the plaintiff parted with any value at all for this note, and whether Donnell, Lav'son & Simpson were not, in law and in fact, the real owners of the note. This motion was denied, and the defendant excepted, and the court directed a verdict in favor of the plaintiff, to which an exception was taken.

It is claimed upon the part of the appellant that the court erred in directing a verdict for the plaintiff, because he was not a bona fide holder, lie having received the note after it had matured, and not having parted with any valuable consideration, and that, in any event-, lie should not have recovered more than the amount of cash paid by Donnell, Lawson & Simpson at the time they took the note, they having taken it in part payment of an old debt; and that the question as to whether Donnell, Lawson Simpson were bona fide holders, by the surrender of tiie precedent note to Moore, should have been left to the jury, for their determination ; and, furthermore, that the note was diverted, and, although the answer did not claim any diversion, there was evidence to that effect, and the court should, upon appeal, make the answer conform to the proof.

It seems to us that in all these objections the defendant has lost sight of the proposition that it is entirely immaterial what the plaintiff paid for the note in question. Donnell, Lawson & Simpson might have given it to him, and he would have a right to recover, if they had a right to recover. And the evidence is uncontradicted that, upon the receipt of the note in suit, Donnell, Lawson & Simpson paid $1,900 in cash, and gave up to Moore his note, which constituted them bona fide holders.

The allegation in the answer is that the note was given for the accommodation of Moore. If he could not use it, and confer a good title upon the persons to whom he transferred it, the making of the note was no accommodation whatever. It has been endeavored to twist this defense into an allegation of diversion ; but, although pleadings are sometimes made to conform to the proof in order to support a judgment, we have not yet heard of a case where such a practice was resorted to for the purpose of reversing a judgment. The court was right in holding that, if Donnell, Lawson & Simpson could recover, the plaintiff could recover, no matter w'hether he was a holder for value after maturit)r or not. There are no other exceptions to which it is necessary to call attention.

The judgment must be affirmed, with costs.

Follett and Barrett, JJ., concur.


author: Barrett, J.

text:
    Elizabeth Grafton, App’lt, v. William T. Brigham et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Summary proceedings—Service—Waiver op defects in.
    An irregularity in the service of the precept in summary proceedings is cured by a general appearance on the return day.
    2. Same—Res adjudicata.
    A judgment in summary proceedings, dispossessing the assignees of a lease for non-payment of rent, is conclusive, in a subsequent action for the rent, as to the liability of the assigne s for (he, rent, and as to every fact alleged in the landlord’s petition, except as to the amount of rent.
    Appeal from a judgment entered upon the verdict of a jury by direction of the court.

      Byram L. Winters (Jomes A. O'Gorman, of counsel), for app’lt; Henry L. Sprague, for resp’ts.
   Barrett, J.

This action was for rent, against the assignees of the original tenant. The complaint sets out the lease, and the-assignment thereof to the defendants subject to the covenants therein contained.” It is then averred as follows:

“ That thereupon and thereunder the defendants entered into occupation and possession of the premises under the terms and conditions of said agreement, and did attorn to pay rent, under and as provided by said agreement, for the premises aforesaid, to this plaintiff, as their landlord.”

The defendants admitted the facts thus averred, and their sole defense was that before the rent here claimed became due they, in their turn, assigned the lease to one Chapin, and vacated the premises; Chapin thereupon entering into possession, and attorning to the plaintiff. Upon the trial the defendants gave evidence tending to establish the facts thus affirmatively pleaded, and the plaintiff, in rebuttal, put in evidence the judgment of a district court, dispossessing these defendants for the non-payment of the rent for the recovery of which the present action was brought. The defendants objected to this judgment, claiming, first, that it was void for want of jurisdiction; and, second, that it was not res adjudícala as to the relation of landlord and tenant, or as to their liability as assignees.

The first objection was based upon an irregularity in the service of the precept in the summary proceeding. It must be conceded that the precept was not served according to law, but the irregularity in that respect was cured. The record shows that the tenants appeared general^ upon the return day, and that the justice thereupon wrote upon the back of the precept: “ Answer to be filed by 11 A. M. If not filed, judgment to be signed. If filed, to be adjourned to 13th.” The city marshal, who had charge of the proceedings, also testified that there was an attorney who appeared for the tenants. There was thus a waiver of any defect in the service of process, and jurisdiction to proceed was conferred upon the justice. A magistrate, in these proceedings, can acquire jurisdiction of the person by consent, though not, of course, of the subject-matter. McCarthy v. Noble, 5 N. Y. Leg. Obs., 380; Campbell v. Mallory, 22 How. Pr., 189. And see Sims v. Humphrey, 4 Denio, 185; Nemetty v. Naylor, 100 N. Y., 569. Ho attempt was here made to dispute this appearance, or to show that it was unauthorized. The judgment was, therefore, jurisdictionally valid.

Tire other point is equally untenable. It, was distinctly held in Brown v. Mayor, 66 N. Y, 385, that a judgment taken by default in these summary proceedings, until reversed, set aside, or vacated, is conclusive (in an action by the landlord against the tenant to recover the rent) of the facts alleged in the affidavit, and which are required by the statute to be alleged as the basis of the proceedings. In the proceedings under consideration the essential facts alleged in the landlord's petition and affidavit were the original lease, the assignment thereof to the defendants, their entry and attornment thereunder, the amount of rent due, and the holding over without permission after default. As to all these facts, except the amount of rent due, the judgment was conclusive. Even as to the amount due, Brown v. Mayor would seem to be in point. It was held, however, in Jarvis v. Driggs,, 69 N. Y., 147, that this particular question was not decided in Brown v. Mayor, and that the tenant was not concluded by the landlord's affidavit as to the amount of rent. It is said in the latter case that the amount of rent is nonessential, as the landlord is entitled to a warrant if any rent whatever is due and the tenant holds over without permission after demand. The reason of the distinction is not apparent, as the landlord must fail unless he establishes a demand for the amount due as averred. This is as essential to obtain judgment of dispossession as the existence of the tenancy, or other jurisdictional facts. Be that as it may, however, the judgment is clearly binding upon the question of the defendants’ liability as assignees in possession; in other words, upon every fact alleged in the landlord’s affidavit, except as to the amount of rent. The general doctrine enunciated in Brown v. Mayor, etc., is not questioned in Jarvis v. Briggs, and it has since been reaffirmed in many cases. Leavitt v. Wolcott, 95 N. Y., 212; Blair v. Bartlett, 75 N. Y., 153 ; Nemetty v. Naylor, 100 N. Y, 570.

The judgment under consideration certainly depended upon the original lease, the assignment thereof to the defendants, and the fact that they held over, and continued in possession of the demised premises, without the permission of the landlord. As to these facts they are estopped from questioning the judgment, and such facts are conclusive in favor of the plaintiff’s right to recover the rent reserved in the lease prior to the dispossession. The defendants had an opportunity of showing before the justice that they were not assignees in possession ; that in fact they had assigned the lease, and vacated the premises; and that their assignees were in possession. But they did not choose to avail themselves of this defense. As was said in Brown v. Mayor, they were “informed of the claim made” against them, and they were “ called upon to contest it.” They could have absented themselves, if they desired to question the service of the precept, or they could have appeared, and objected to such service. But they did neither. They simply appeared, without making any objection or interposing any defense upon the merits. Ilnder such circumstances the judgment is conclusive upon their liabilitjr as assignees in possession. Being so concluded, they are liable on all covenants that run with the land. Thus, they are liable for the taxes, as well as for the rent proper, for such was the obligation of the original lessee. Tayl. Landl. & Ten., §437.

It was not necessary to put the original lease in evidence, as it was admitted by the pleadings. The assignment to, and attornment by, the defendants, were also admitted. That being so, the unpaid rent and taxes were prima facie due and payable by the defendants, and the plaintiff was not called upon to furnish any other proof upon that head. To absolve themselves from the liability arising upon this state of facts, the defendants were bound to show that at the time when the rent and taxes became due, under the terms of the lease, there was no longer any privity of estate between themselves and the plaintiff; in other words, that they had then assigned the lease, and vacated the demised premises. This, however, it was impossible for them to show, because the very reverse was conclusively established by the judgment in the summary proceeding. It follows that the verdict should have been for the plaintiff, and not for the defendants. The judgment should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., and Follett, J., concur.


author: Parker, J.

text:
    Mary McBride, Adm’rx, App’lt, v. The American Surety Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Pleading—'Answeii—Demubeer.
    The answer denied material allegations of the complaint and also set up a defense of new matter arising subsequent to the commencement of the action. Plaintiff demurred on the ground that the answer did not sot up a defense to the complaint. Held, that such demurrer was unauthorized ; that to attack the new matter for insufflc’ency, it should be specifically demurred to.
    Appeal from interlocutory judgment overruling demurrer to answer.

      H. G. Harris, for app’lt; Henry C. Willcox, for resp’t.
   Parker, J.

Plaintiff’s predecessor in administration was, by decree of the surrogate’s court, directed to pay to the plaintiff $204.18, and to deliver to her all other property in her hands as administratrix. She failed to comply with the decree, and the plaintiff, by this action, sought to recover the money adjudged to be in her hands from the surety on her official bond, this defendant. Subsequent to the granting of the decree, which lies at the foundation of tills action, the surrogate’s court, on notice to plaintiff, so amended it as to direct the deposed administratrix or her surety, this defendant, to deposit said sum with the chamberlain of the city of New York, instead of paying it to the plaintiff, as was originally provided, and providing that upon such deposit the administratrix and her surety should be released from all liability on the bond. Thereafter, defendant answered the complaint, denying certain material allegations, alleging an amendment of the decree in the respects already briefly alluded to, averring a deposit with the city chamberlain, in compliance therewith, and demanding a dismissal of the complaint, with costs. At the time of the service of the answer, therefore, the only subject of controversy remaining was whether the plaintiff or the defendant should recover costs of the action. That controversy must necessarily have resulted in favor of the plaintiff had her attorney declined to receive the answer on the ground that in it was alleged a defense which had arisen subsequent to the commencement of the action, thus putting the. defendant to its motion for leave to serve what it described in its answer as “an amended and supplemental pleading.’’ On that motion the court could, and doubtless would, have imposed,'as a condition of its service, the payment of plaintiff’s costs of the action up to that time. Instead, the plaintiff pleaded, by way of demurrer, as follows: “ The plaintiff in the above action demurs to the answer of the defendant therein upon the ground that the said answer does not set up a defense to the complaint.” The demurrer was, therefore, to the entire answer, which contained denials of material allegations in the complaint, as well as averments of new matter, and was unauthorized. Nichols v. Lumpkin, 52 N. Y. Supr. Ct., 88. The Code authorizes a demurrer “ to a counterclaim or a defense consisting of new matter contained in the answer,-on the ground that it is insufficient in law, upon the face thereof.” Code Civ. Pro., § 494. And had the plaintiff demurred specifically to the new matter, the question would have been presented whether it was sufficient, in law, to constitute an affirmative defense. As she did not, we need not inquire further. The interlocutory judgment should be affirmed.

Vah Brunt, P. J., and Follett, J., concur.


author: Ingraham, J. Per Curiam.

text:
    The People ex rel. Louis L. Lorillard, Resp’t, v. Edward T. Barker et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Taxes—Personae property—Residence.
    A person ivho resides the greater part of the year in a house owned by him in another state, where lie votes and is taxed; who lias no money invested in business in this state, and only spends a few of the winter months here in a hired house, is not a resident of this state within the meaning of chapter 302, Laws 1888, and cannot he taxed for personal property here.
    Appeal from order of special term setting aside assessment for personal taxation for the year 1891.
    The relator was bom in the city of New York, where he resided until 1887. lie then moved to Newport, 11 I., where he has since lived from April to December of each year, in a house owned by him. The balance of the year, i. <?., from December to April, he spends with his family in Now York city, in a house hired for the purpose, and where he was at the time of the assessment in question.
   The following is the opinion at special term :

Ingraham, J.

To justify the respondents in imposing a tax it must appear that on the Tuesday after the first Monday of January, in the year 1891, the relator was a resident of this state. If he was not sucli a resident at that time the action of the respondents in taxing his personal property was unauthorized. The more fact that the relator was in the city of New York at the time mentioned would not justify the respondents in their action, unless he was then a resident of the state. It is the policy of the law to tax personal property at the place of the owner’s residence; and by chapter 892 of the Laws of 1888 it is provided that all debts and obligations for the payment of money due or owing to persons residing in this state, however secured or wherever secured, shall be deemed, for the purposes of taxation, personal estate within this state. This provision, however, applies only to persons residing in this state; and by the Be vised Statutes in relation to the taxation upon property it is provided “that every person shall be assessed in the town or ward where he resides when the assessment is made for all personal estate owned by him.” 1 R. S., 389, § 5. The only provision for the taxation of personal property in this state, owned by non-residents, is that taxing property employed in business within this state, and the relator has no money invested in business in this state.

William H. Clark (G. S. Coleman, of counsel), for app’lts : Platt & Bowers (J. M. Bowers and L. G. Reed, of counsel), for resp’t.

The simple question is whether this relator is a resident within this state, within the meaning of the provisions of the statute, before referred to. The testimony taken in this proceeding, I think, clearly shows that the relator was not a resident =of this state at the time this taxation was imposed. The relator is taxed upon his personal estate in Rhode Island, and has been so taxed for six years. He votes in the city of Newport, state of Rhode Island, and he spends a part of the winter in New York, but that cannot be said to be his residence. To hold this relator liable for taxation in New York would be to tax his personal estate both in New York and Rhode Island, which would be double taxation, and is opposed to the principle established in the case of People ex rel. Darrow v. Coleman, 119 N. Y., 137; 28 St. Rep., 937. I do not think the case of People v. Tax Commissioners, 42 St. Rep., 449, applies, for the question there determined was not whether Mr. Day was a resident of this state, or not, and it was-not there decided that a person residing in the state of Rhode Island can be taxed upon personal property merely because he spends a few months of the winter in New York; and the appeal in that case was by the tax commissioners, and not by the relator, and consequently the affirmance of that order does not require me to hold that the taxation of personal property belonging to a resident of Rhode Island can be imposed in this state. I think, therefore, the action of the respondents must be reversed, and the tax canceled, with costs.

Per Curiam.

The order aj)pealed from should be affirmed, with ten dollars costs and disbursements, upon the opinion of the court below.

Yan Brunt, P. J., Follett and Parker, JJ., concur.


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    Sarah L. Myers et al., App’lts, v. Thomas Bolton et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Partition—Proceeds op sale by executors under power.
    Where, subsequent to the commencement of an action of partition among devisees, the executors sell the land under a general power of sale in the will, and the devisees other than the plaintiffs join in a conveyance to the purchaser, a denial of a motion to compel the executors to bring the proceeds of sale into court is proper, as in case the sale was authorized by the will, the surrogate’s court had jurisdiction, on settlement of the executor’s accounts, to decree distribution; while, if power of sale was not conferred by the will, the lands were vested in the devisees, and plaintiffs had no right to insist that defendants should pay into court the consideration which they received from the purchaser for their several undivided interests.

      Appeal from order denying motion to compel the payment of moneys into court.

      James R. Marvin, for app’lts; Alex. Thain, for resp’ts.
   Parker, J.

The plaintiffs and six of the defendants are residuary legatees and devisees under the will of Ann Bolton, deceased. The action in which the order appealed from was made was brought to partition the lands so devised. Thereafter the executors, Thomas and Ilenry B. Bolton, under a general power of sale given by the will, assumed to sell and convey a portion of the premises for the sum of $30,000. The plaintiffs challenging the validity of the power of sale, all of the devisees except the plaintiffs, who refused to do so, united in a conveyance to the purchaser. The executors offered to bring the proceeds of the sale into the surrogate’s court, where their accounting was pending, but objection was made by these plaintiffs that there was no authority vested in them as executors to make the sale, and hence the proceeds could not form a part of their account. Subsequently the executors sold the residue of the real estate which passed by the residuary devise, from which was realized the sum of $8,161.97. The latter sum was applied in payment of the debts of the deceased. Since then proceedings have been taken for a final judicial settlement of their accounts as executors before the surrogate of Westchester county; an account has been filed, reciting the receipt of the proceeds of the last sale, and the disposition thereof; plaintiffs have appeared therein, and requested and secured adjournments from time to time, but at the date of making this motion had not filed any objections to such account. Upon these facts the court denied the plaintiffs’ motion to compel the executors to pay the sum of $38,161.97 into court.

Aside from the fact that the executors, as such, are not parties to the action in which this motion is made, the decision of the court was right, for the following reasons:

1. If the sale of the lands attempted to be made by the executors was authorized by the will, then the surrogate’s court in which proceedings are pending for a judicial settlement of their accounts has jurisdiction to decree distribution, whether the proceeds are to be regarded as realty or personalty. Code Oiv. Pro., § 2724, subd. 4. Such has been the law of this state at least since 1837. Chapter 460, Laws 1837.

2. If power of sale was not conferred on the executors by the will, as the plaintiffs have hitherto contended, then the undivided part of the real estate devised to each of them by the residuary clause is now vested in them, and may be partitioned in the pending action; but they have no right to insist that the other devisees shall pay into court the consideration which they may have received from a purchaser for their several undivided interests.

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

Van Brunt, P. J., and Follett, J., concur.


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    James Brand et al., Pl’ffs, v. Adolph Ladenberg et al., Resp’ts, and John Crosby Brown et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Attachment—Shebiff’s fees.
    A sheriff who attaches the property of a third person under a belief that it belongs to the attachment debtor, is not entitled to collect his fees, and expenses out of the property so wrongfully taken, but must look for his compensation to those who employed him; and if there is a prior lien upon the property, no part of the sheriff's fees can be deducted from the fund realized before payment of the lien. Hence, it is error, in an order-directing him to pay over the fund to a receiver appointed in an action to-determine the rights of the parties to such property, to allow him to deduct his fees.
    Appeal from so much of an order entered herein on the 22d day of May, 1893, as permits the defendant, John J. Gorman, as sheriff of the city and county of New York, to retain from the moneys heretofore collected or received by him under any warrants of attachment or executions heretofore issued to him against the property of the defendants, Ernest Lipman and others, composing the firm of Lipman & Co., the amount of the said sheriff’s fees or poundage under said several attachments.

      Smith & Perkins (Edward C. Perkins, of counsel), for app’lt, rec’r; Cary & Whitridge (Willard Parker Butler, of counsel), for app’lts Brown et al.; Blumenstiel & Hirsch, for resp’ts Ladenberg et al; W. E. Stillings, for resp’t Gorman.
   Per Curiam.

The defendants Ernest Lipman, Edward Fried-lander, Herman Hildersheim and another person, sued as John Doe, were partners under the name of Lipman & Co., and engaged in business at Dundee, Scotland. All of the members of the firm are subjects of Great Britain, none of them residing in this state. Ludwig A. Gutman, defendant, was the agent of the firm in the-city of New York. On divers dates, between April 1, 1892, and December 14, 1892, the firm shipped from Dundee a large number of bales of burlaps, consigned to themselves at .New York. Some of the bills of lading under which the goods were shipped were assigned by Lipman & Co. to the plaintiffs as security for bills of exchange drawn by Lipman & Co. on and accepted by plaintiffs. Bills of lading for other bales of burlaps so shipped were assigned to other banking firms and corporations as security for like acceptances. The New York agent of Lipman & Co. was directed to turn over the avails of the various shipments so made to the bankers holding assignments of the bills of lading so assigned to them as security for the sums loaned through their acceptances.

On December Í4, 1892, Lipman & Co. became insolvent, and suspended payment. Gutman, their New York agent, collected after that date various sums from purchasers of the bales so shipped and pledged, and deposited the amounts collected to the credit of Lipman & Co. in the Western National Bank of this city. Immediately after the failure of Lipman & Co., nine banking firms and corporations began actions in this state, in which attachments were issued and delivered to the sheriff of the city and county of New York, who attached the money standing to the credit of the firm with said bank, and also certain other property. On or about February 24, 1893, this action was begun, all of the banking corporations, the partners of the banking firms, and the members of Lipman & Co. being made parties. The action was brought for the purpose of determining the rights of all the parties in the fund held by the bank, and, among other relief, a receiver was prayed for. April 6, 1893, Samuel W. Milbank was appointed receiver by an order containing the following provision :

“ Ordered, that the sheriff of the city and county of New York be, and is hereby, directed to transfer to such receiver all property formerly belonging to said defendants composing the firm of Lip-man & Co., levied upon or taken into his possession by virtue of attachments issued at the suit of any of the parties to this action, without prejudice, however, and subject to the liens of the respective attachments referred to in the complaint herein, according to the dates of the levies thereof, respectively, and without prejudice to any and all rights of said sheriff to fees or poundage by virtue of said several attachments.”

A copy of the order appointing the receiver was served on the sheriff, and a demand made that he pay over all moneys taken by him under the attachments. On May 22, 1893, an order was granted and entered which contained the following provision :

“ Ordered, that the defendant John J. Gorman, as sheriff of the city and county of New York, do forthwith pay over to Samuel W. Milbank, the receiver heretofore appointed herein, any and all moneys heretofore collected or received by him under any warrants of attachments or executions heretofore issued to him against the property of the defendants Ernst Lipman and others, composing the firm of Lipman & Oo., after deducting the said sheriff’s fees or poundage under the said several attachments; without "prejudice to liens, if any, under the said attachments.”

The receiver and certain of the defendants appeal from that part of the order which permits the sheriff to retain the amount of his fees and poundage.

The title to these moneys is in dispute. Every one of these banking firms and corporations asserts that a definite amount of the whole sum deposited in the Western National Bank arose from the sale of goods owned by it, and to which Lipman & Co. had no title. If a sheriff levies on or attaches the property of A., on a process against B., under the belief that the property belongs to the latter, he is not entitled to collect his fees and expenses out of the property so wrongfully taken, but he must look for his compensation to those who employed him ; or, if property of a debtor is attached or taken in execution on which there is a prior lien, it must be first satisfied, and no part of the sheriff’s fees can be deducted from the fund realized before payment of the lien. If the remainder of the sum realized is insufficient to pay the sheriff, he must look to the plaintiffs in the writs under which he proceeds. In the case at bar, if these various banking concerns hold the legal title to these goods, or establish liens thereon, their claims must be first satisfied before any part of the same can be applied to the payment of charges of the sheriff; and it was error to permit him to withhold his fees from the fund before it was determined that any part of it was subject to be taken by virtue of the writs held by him. That part of the order which is appealed from must be reversed, with ten dollars costs and printing disbursements.

Yan Brunt, P. J., Follett and Parker, JJ., concur.


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    Alexander T. Compton, Resp’t, v. The Chelsea, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    2fow trial—Code Civ. Pro., § 1525.
    A new trial under § 1525 of the Code should not be granted where the complaint contains allegations appropriate to an action for forcible entry and detainer and was apparently framed upon that theory.
    Appeal from order granting plaintiff a new trial under § 1525 of the Code.
    Action to recover possession of a suite of sooms in an apartment house. A judgment in favor of defendant on a former trial having been affirmed by the court of appeals, the motion for a new trial was made, upon which the order appealed from. was granted.

      Shepard & Prentiss (W. H. Shepard, of counsel), for app’lt; A. T. Compton, resp’t in person.
   Van Brunt, P. J.

It is undoubtedly true that upon the previous appeals this action has been characterized as an action of ejectment, and this probably arose, not from an examination of the pleadings, but because of the manner in which it was treated by counsel in their presentation of the questions involved to the court; it being of little moment, in respect to the result desired, as to whether it was an action of ejectment, or an action for forcible entry and detainer. Upon this motion, however, it becomes important to consider the question whether the action is really simply one of ejectment. If it is an action which may be an action in ejectment or an action for forcible entry and detainer, it seems to be manifest that the extraordinary privileges which pertain to the action of ejectment, and which do not belong to the action of forcible entry and detainer, cannot be availed of by the plaintiff in case of defeat; the familiar rule being that where two causes of action are united, to one of which, only, peculiar remedies belong, the right to such remedies in such action is lost. Upon examining the complaint in the case at bar, it would seem that it is exceedingly doubtful whether the complaint contains such allegations as are proper to an action of ejectment; and it seems, also, to be certain that the pleader, in framing the complaint, did so upon the theory that he was bringing an action for forcible entry and detainer, and for that only, because he alleges that the defendant holds forcible possession of the premises of which the plaintiff had been in possession, and he also demands treble damages, to which he had a right if he established his action of forcible entry and detainer, and to which he would have no right if his action were one of ejectment We think that the plaintiff should be bound by this plain characterization of his action, and that it must be considered to have been an action for forcible entry and detainer, and that, therefore, the plaintiff was not entitled, as matter of right, to a new trial. It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Follett and Parker, JJ., concur.


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    John B. Manning, App’lt, v. Isaac C. Ogden et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Fixtures—Mortgagee and chattel mobtgagee.
    As between the mortgagee of real estate and a chattel mortgagee, carpets, curtain poles and gas fixtures, with their attachments, are movables and not fixtures.
    2. Same.
    Whether ranges, hot-water boilers, sinks and washtubs are fixtures or movables, as between such parties, depends upon when and how they were-attached to the house.
    Appeal from order denying plaintiff’s motion to restrain the defendant Ogden from removing certain property from the premises Nos. 252 and 254 West Eighty-fifth street.

      Rabe & Kellar, for app’lt; Charles De Hart Brower, for resp’ts.
   Per Curiam.

August 2, 1892, Eliza Beaudet and Homer I. Beaudet executed a bond to the plaintiff whereby they bound themselves to pay $28,000, and as collateral thereto they executed on the same day a mortgage to the plaintiff on two apartment houses, which mortgage was duly recorded on the day of its date. Afterwards the mortgagor conveyed the premises, subject to the mortgage, to William D. Hotchkiss, by a deed which was duly recorded November 2, 1892. On the 1st day of September, 1892, Hotchkiss conveyed the premises, subject to said mortgage, to James H. Marr, by a deed dated that day, which was recorded November 2, 1892. January 23, 1893, James H. Marr, to secure payment of $1,830, executed to Isaac C. Ogden, defendant, a chattel mortgage on the gas fixtures, ranges, carpets, hot-water boilers, sinks, washtubs, radiators and curtain poles contained in the apartment houses. This action was begun April 1, 1893, for the collection of the $28,000 secured by the bond, and for the foreclosure of the collateral mortgage. The grantors and grantees in the conveyances mentioned are parties to this action, except James H. Marr, who was made a defendant, but has since died.

The question involved in this appeal is whether the articles included in the chattel mortgage are fixtures or movables. Beyond question the carpets and curtain poles are movables, and so are the gas fixtures, with their attachments. McKeage v. Hanover Fire Ins. Co., 81 N. Y., 38 ; Shaw v. Lenke, 1 Daly, 487. The rule declared in the cases cited has not received the sanction of courts in some jurisdictions. Fratt v. Whittier, 58 Cal., 126; Sewell v. Angerstein, 18 L. T., N. S., 300 ; Johnson v. Wiseman, 4 Metc. (Ky.), 357 ; Hays v. Doane, 11 N. J. Eq., 84. Whether the ranges, hot-water boilers, sinks and washtubs are fixtures or movables, as between the holder of the real estate mortgage and the chattel mortgagee, depends upon when and how the articles were attached to the houses. Often a particular article may be so attached to and used in connection with the realty as to become a fixture, and pass with the realty, as between vendor and vendee, or as between mortgagor and mortgagee, but in other cases they may be so used as not to pass with the realty. Each case must depend on its own peculiar facts. We regard the question involved an important one, and it should not be determined upon affidavits, but left to be disposed of after the trial of the issue. Should the evidence justify the holding that these articles are a part of the realty, the damage to it by their removal would be great, and we think the special term erred in refusing to restrain, during the litigation, the removal of these articles, and that part of the order should be reversed, and a temporary injunction granted, restraining the defendant, Ogden, from removing from the premises the hot-water boilers, sinks, washtubs and radiators, and, as modified, the order should be affirmed, without costs to either party.

Van Brunt, P. J., Eollett and Parker, JJ., concur.


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    James P. Foster, App’lt, v. Morris Mayer, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Mortgage—Cancellation—Tender.
    An action to cancel a mortgage, after refusal of a tender of the amount due, cannot be maintained unless the plaintiff, at. the time of the commencement of the action, brings the money into court.
    2. Same—Acceptance.
    Where, however, the plaintiff subsequently brings the money into ' court, and the defendant insists upon, and is allowed to take it, this constitutes an acceptance of the tender, and gives the plaintiff the right to have the bond and mortgage canceled upon terms.
    Appeal from a judgment of the special term of this court dismissing the plaintiff’s complaint, with costs of action.

      E. Schenck, for app’lt; Wolf, Kohn & Ullman (Sol Kohn, of counsel), for resp’t.
   Van Brunt, P. J.

This action, undoubtedly, was brought upon an erroneous theory; it being supposed that under the rules laid down in Kortright v. Cady, 21 N. Y., 343, and subsequent cases in the same line, where a tender had been made of the amount due upon a bond and mortgage, which tender had not been accepted, the lien of the mortgage being lost, the mortgagor had a right to come into a court of equity, and have .the lien discharged of record. This position upon the part of the plaintiff, unless, at the time of commencing the action, he brought the money into court, was entirely untenable, as a court of equity will not, by its decree, grant equitable relief, unless the plaintiff does equity. But it appears that subsequently, in order to obtain equitable relief in this action, the plaintiff brought the money into court, being the amount of principal and interest upon the bond and mortgage, and the defendant insisted upon taking it, and, under the decision of this general term, was permitted to receive it. 48 St. Rep., 295. By such action the defendant accepted the tender, and consequently the plaintiff was entitled to have the bond and mortgage canceled. If the defendant had desired to insist upon the invalidity of the tender, and that the money was not brought into court in time, and that, therefore, he should be permitted to go on with the foreclosure of the mortgage, he certainly should not have insisted upon the receipt of the money deposited in this action pursuant to the order of the court. As has already been stated, the acceptance of such money after it had been paid into court was an acceptance of the tender, and then the only question which remained was upon what terms the plaintiff was entitled to the relief of having the bond and mortgage canceled. If any other rule obtained, the result of these proceedings would be that the defendant would have the money represented by the bond and mortgage in his pocket, and still hold the lien represented by the mortgage against the property of the plaintiff, which is certainly not equitable or proper. The court, therefore, erred in dismissing the complaint, although at the time of the commencement of the action the plaintiff, probably, was not entitled to any relief. The subsequent proceedings, however, acquiesced in by the defendant, gave him the right to have this bond and mortgage canceled upon terms to be fixed. We think, therefore, that the judgment should he reversed, and a new trial ordered, with costs to appellant to abide the final event.

Pollett and Parker, JJ., concur.


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    Victoria A. Romaine, Resp’t, v. George S. Bowdoin et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    1. Calendar—Change oe issue.
    Where the issue represented on the calendar has been superseded by a new issue, created by the service of an amended complaint and answer, a. motion to strike the cause from the calendar should he granted. In. such case a new note of issue and new notice of trial are necessary to bring-the new issue to trial.
    8. Same—Stipulation as to date op issue.
    A stipulation as to date of issue made upon granting extension of time to plead to the complaint refers to the issue to be joined by service of the pleading which defendants were obtaining time to prepare, and not to a subsequent issue joined on amended pleadings.
    Appeal from an order denying defendant’s motion to strike this cause from the calendar.

      Butler, Stillman & Hubbard (Arthur H. Van Brunt, of counsel), for app’lts; Redfield & Redfield (Robert L. Redfield, of counsel), for resp’t.
   Parker, J.

This action being regularly reached on a call of the calendar in circuit court, the defendants moved that it be stricken therefrom, on'the ground that the issue represented on the calendar had been superseded by a new issue, created by the service of an amended complaint and answer. Such was the fact, and a new note of issue and a new notice of trial were necessary to bring on for trial the issue presented by the amended pleadings. Ostrander v. Conkey, 20 Hun, 421. But the point was made on the motion; and is renewed here, that the usual practice had been waived, by stipulating that the date of issue should be December 29, 1891. We do not so understand the stipulation. At the time it was made the complaint had been served, and in extending defendants’ time to plead plaintiff’s attorneys inserted therein, “ Date of issue to be of this date.” The issue referred to was, of course, the issue to be joined by the service of the pleading which the defendants were obtaining time to prepare. Subsequently the issue was joined -by the service of a demurrer. It was afterwards tried, and the trial resulted in favor of the defendants. That issue, which was the one appearing on the calendar, was therefore at an end. It was with reference to it, and not to the issue subsequently created, that the parties stipulated.

The order should be reversed, with ten dollar's costs and disbursements.

Pollett, J., concurs.


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    Jeanie Mitchell, Resp’t, v. The Broadway & Seventh Avenue Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Negligence—Damages .
    Plaintiff, an unmarried woman, 27 years of age, was run over by one of defendant’s cars," sustaining a multiple fracture of the bones of the left leg, which resulted in its shortening and a stiffening of the ankle. She suffered great pain, which was shown to be probably continuous, and paid out $1,000 to surgeons. There was nothing to show that the trial was conducted so as to arouse the sympathy or prejudices of the jury, and they were instructed to return such a sum as would simply compensate plaintiff. Held, that, under these circumstances, a verdict for $15,000 would not be set aside as excessive.
    Appeal from judgment in favor of plaintiff, entered upon a ' verdict for $15,000.
    Plaintiff, an unmarried woman, 27 years of ’age, was knocked down and run over by one of defendant's cars, and sustained a multiple fracture of the lower third of both bones of the left leg, resulting in a shortening of the limb and a stiffening of the ankle.

      E. Root, for app’lt; W. Fullerton and S. C. Baldwin, for resp’t.
   Per Curiam.

The defendant concedes its liability for the injuries sustained by the plaintiff, and argues no exception but the one taken to the refusal of the trial court to set aside the verdict as excessive. The evidence shows that the plaintiff was severely and permanently injured, has suffered great pain in the past, and that she will probably continue to suffer during life. The testimony of the plaintiff, and of her physicians, as to the extent of her injuries and suffering, was not contradicted on the trial. There is no evidence in the record which tends to show that the trial was conducted in a manner likely to arouse the sympathy, prejudices or passion of the jurors. The charge was temperate, and the-jury was instructed to return such a sum as would simply compensate the plaintiff for the injuries sustained. It appears that she necessarily .expended about $1,000 in the employment of physicians and surgeons by reason of her injuries. While we regard the verdict as large, and should have been better satisfied had a less sum been awarded, we do not, under the circumstances, feel justified in setting it aside. Had the trial been so conducted as to arouse prejudice or passion against the defendant, we would be justified in ordering the damages to be reassessed, in case a reduction should not be assented to. But upon the whole record we think the power should not be exercised in this case, and that the judgment and order should be affirmed, with costs.

O’Brien, Follett and Parker, JJ.. concur.


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    Charlotte E. Patten, Resp’t, v. The United Life Insurance Association, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Insurance (Life)—Reinstatement—Fraud.
    In an action upon a policy of life insurance, where the defense is that after a forfeiture the company was induced to reinstate the policy upon representations by the insured that he was in good health; that such statements were in fact false and known by the insured to be so at the time of making them, and that the policy had, therefore, been rescinded, the court charged that, to sustain the defense, it was necessary for defendant to prove that the insured knew the statements made by him were untrue. Held, no error ; that there was no guaranty of the truth of the statements in the application for reinstatement, and that the company could only avoid its action by showing the existence of fraud.
    Appeal from judgment, entered upon verdict of a jury, and from order denying motion for a new trial.

      Harry Wilber (E. Oldham, of counsel), for app’lt; Wing, Shoudy & Putnam (J. A. Shoudy, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover $1,000 upon a policy of insurance issued by the defendant upon the life of Jarvis Patten for the benefit of his widow, the plaintiff. The defense set up by the answer was that, by the express provisions of the policy, Jarvis Patten was obliged to pay to the defendant, within certain times, sums of four dollars,and that, upon default in payment of any of said sums within the times mentioned in the contract, the policy should lapse and be void, and that he did in fact default in the payment of one of these instalments, which became due and payable to the defendant under the terms of the contract of insurance, and that on or about April 23, 1888, Patten induced the defendant to reinstate him as a member, and to reinstate "his policy, by stating and representing to the defendant, in writing, that he was in good health, and that no material facts regarding his past health or present condition had been omitted. The answer then alleged that the defendant, relying upon the truth of said statements, and induced thereby, received and accepted from said Patten a payment theretofore due, and reinstated him as a member upon the terms and conditions previously existing; and, further, that, since the death of Patten, defendant had been informed, and verily believed, that the statements and representations of Patten were false and untrue, and were known by him, at the time he made them, to he false and untrue, and that, in truth and fact, said Patten then well knew that his health was bad; and that defendant had rescinded said contract or policy, and had duly tendered, and in said answer offered to return, the sum of four dollars so paid, received and accepted on the false statements and representations of Patten, as before alleged. Upon the trial evidence was given upon the part of the plaintiff and defendant, and the case was submitted to the jury, and the only questions raised are those of exceptions to the charge.

It is urged that the court erred in charging that, to sustain the defense, it was necessary for the defendant to prove that Patten knew the statements made by him touching his health on the 19th of April, 1888, were untrue. We think that the court committed no error in thus holding. This was the issue tendered by the answer. The agreement to reinstate the policy was sought to be rescinded upon the ground of fraud; and unless Patten, at the time he made the representations in question for the purpose of procuring the reinstatement of the policy, knew, or had cause to know, or was necessarily presumed to know, that his statements were false, then he certainly was not gulity of fraud. The whole ground upon which this claim of rescission rests, as already stated, is that of fraud ; and it is difficult to see how a party can be guilty of fraud when he does not know, has no reason to believe, and cannot be presumed to know, that his representations are false. The question as to misstatements in the application to reinstate the policy in the case at bar is entirely different from that which would have arisen had there been misstatements in the application for the policy itself. In such case, if the truth of the statements is guarantied by the provisions of the contract itself, they enter into the essence of the contract, and form a part thereof. But upon the application to reinstate, in the case at bar, there being no such guaranty, the company can only avoid its action by showing the existence of fraud. And the authorities cited by the learned counsel for the appellant all relate to false representation of material facts in the application for a policy, which policy contained a guaranty, and not for a reinstatement thereof, in which such guaranty was absent. The court did charge that if the jury found that Patten was not in good health on the 23d of April, 1888, the date at which the policy was reinstated, their verdict must be for the defendant. This, we think, was giving to the defendant a greater chance than legal rules required.

The judgment should be affirmed, with costs.

Follett and Barrett, JJ., concur.


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

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Appeal—District courts—Return.
    Both parties based their claims on certain provisions of defendant’s artv cles of association, which appeared to be contained in a certain exhibit which was not included in the justice’s return, and the corresponding articles contained in an exhibit offered by respondent differed from those set out in appellant’s brief. Held, that a reargument should be ordered to allow the parties to have the return perfected.
    Appeal from a judgment for plaintiff, rendered in the district court in the city of New York for the tenth judicial district.
    Action to recover by a withdrawing shareholder of the defendant association, pursuant to the provisions of its alleged articles of association, which entitle such a shareholder to return of the amount' paid on the shares issued to him, less all fines and a ratable proportion of losses.

      Fred. C. Leubuscher, for resp’t; James C. De La Mare, for app’lt.
   Per Curiam.

Both parties to this appeal base their claims upon certain provisions of defendant’s alleged articles of association, of which the justice’s return in its present condition presents no evidence. The trial minutes show that certain so called by laws were offered and received in evidence and marked “ Def’ts Exh. A; ” but this exhibit does not accompany the return, and we are thus left to conjecture respecting its contents. Plaintiff,s Exhibit 10 seems to be confined to certain pages bearing written entries, and contained in a book entitled “Articles of Association of the North New York Building & Loan Association; ” and we cannot, therefore, consider the book for other purposes. Again, the corresponding provisions of the so called articles of association, as they appear in the book referred to, are essentially different from those which are set out at length in appellant’s counsel’s brief, yet the latter may be in harmony with Def’ts Exh. A, now omitted, and to which counsel refers.

We think that, for the matter above alluded to, justice requires that the parties have opportunity to perfect the return, and we direct that this appeal be reheard at the next November general term; any amendment of the return on this appeal to be made meanwhile.

Appeal to be reheard at the November general term. The justice’s return to be amended meanwhile.

Bischoff and Gtegerich, JJ., concur.


author: Bischoff, J.

text:
    The Patterson Gas Governor Co., Resp’t, v. Saul Glenby, App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    1. Sale—Conditional—Burden of proof.
    In an action to recover the purchase price of a gas governor sold upon express condition that it would demonstrate a saving of a certain percentage of gas, the burden of proving performance of the condition rests upon the plaintiff.
    3. Same—Evidence.
    In such an action a witness testified that the governor effected a saving of over thirty per cent., and the court refused to strike out such testimony. Held, error; that the answer was objectionable in that it substituted the witness’ conclusion for the facts on which it was founded.
    3. Evidence—Objections.
    Where the objectionable answer could not be reasonably apprehended from the question addressed to the witness, a failure to object to the question does not render the answer competent. .
    Appeal from, a judgment for plaintiff recovered in the district court in the city of New York for the eighth judicial district.
    Action to recover the purchase sum which defendant had agreed to pay for the sale to him of one of plaintiff’s gas governors.

      P. C. Tallman, for resp’t; A. H. Sarasohn, for app’lt.
   Bischoff, J.

Defendant’s promise to pay was made upon the express condition that the gas governor would demonstrate, after sixty days fair trial, a saving of from fifteen to forty per cent in the consumption of gas. The burden of proving performance of the condition rested upon plaintiff and, failing to sustain it by sufficient evidence, no cause of action against defendant was established. Attentive consideration, of the evidence as it was finally submitted to the justice below fails to justify the conclusion that plaintiff did sustain the burden by fair preponderance of the evidence.

So, also, Patterson, a witness for plaintiff, was asked upon his direct examination to state from his examination of the meter what saving was made by the use of plaintiff’s apparatus, to which he replied that it effected a saving of over thirty per cent. On motion of defendant’s counsel the court refused to strike the answer out, and the exception to this ruling presents error, for which the judgment must be reversed. The answer was objectionable, in that it substituted the witness’ conclusion for the facts upon which it was founded. Whether or not a saving of gas was effected by the use of plaintiff’s apparatus was the question at issue, and this could only be properly determined by the court. Nor could the objectionable answer have been reasonably apprehended from the question addressed to the witness. Hence the failure to object to the question did not render the answer competent. Platner v. Platner, 78 N. Y., 90, 102; Farmers' Bank of Washington Co. v. Cowan, 2 Abb. Ct. App. Dec., 88.

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

Gtegerich, J., concurs.


author: Giegerich, J.

text:
    Isabella B. Lynes, Resp’t, v. William Hickey, App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    Appeal—Decision rbndebed on conflicting evidence.
    Where the evidence was conflicting, the appellate court will not interfere with the judgment of the justice unless the evidence was of such convincing character as to clearly indicate that there was a mistake on the part of the justice, or that he was influenced by bias, passion, prejudice or corruption, or manifestly neglected to deliberate upon the whole testimony.
    Appeal by the defendant from a judgment of the district court in the city of Hew York for the eighth judicial district., rendered upon a trial before the justice thereof, without a jury. The nature of the action and the facts are sufficiently stated in the opinion.

      James P. Campbell, for app’lt; James F. Higgins, for resp’t.
   Giegerich, J.

This action was brought to recover rent, under a written lease, of a portion of the premises known as Ho. 381 Sixth avenue, in this city. The defendant claims to have been evicted therefrom by the act of the plaintiff, but, as there is a conflict of evidence in respect of the matters which are claimed to constitute the eviction, we will not interfere with the judgment-of the justice unless the evidence is of such a convincing character as to clearly indicate that there was a mistake on the part of the justice, or that he had been influenced by bias, passion, prejudice or corruption, or that he had manifestly neglected to deliberate upon the whole testimony. Schwartz v. Wechler, 2 Misc., 67; 23 Civ. Pro., 21; 20 N. Y. Supp., 861; 49 St. Rep., 145, and cases cited.

We are satisfied, after a most careful examination of the record,, that the evidence in this cause does not lead to such a conclusion. The reversal of the judgment is sought solely upon the facts, and as we cannot discover any ground for disturbing the justice’s determination thereof, the judgment should be affirmed, with costs.

Bischoff, J., concurs.


text:
    William Hecht, Resp’t, v. Minnie Mothner, App’lt.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    I. Former adjudication—Proof as to issues.
    Matter dehors the record is not competent to show that the record is a judgment for or against a particular person. The fact must be ascertainable from the record itself.
    2. District courts—Entry of judgment.
    On the rendition of a verdict in district court the justice undertook to set aside the verdict and refused to enter judgment; but three'days later, on learning that he had no power to set aside the verdict, he entered judgment on the verdict. Held, no error; that the provision of the Consolidation act requiring judgment to be entered immediately on rendition of the verdict is directory only.
    3. Parties—Assignee of claim.
    The transfer of the legal title to a claim gives the assignee the right to maintain an action thereon, although the assignor expects to share in the' recovery.
    Appeal from a j udgment of the district court in the city of Hew York for the fourth judicial district, which was entered on a verdict in plaintiff’s favor.

      Action to recover the agreed value of work, labor and services performed by plaintiff’s assignor at defendant’s request.
    A. H. Sarasohn, for resp’t; A. H. Berrick, for app’lt.
   Bischoff, J.

Plaintiff sued as assignee of one Wolf Greenberg to recover the sum of eighty dollars and thirty cents, the agreed value of certain work, labor and services performed by the latter upon a number of coats at defendant’s request, and sufficient evidence was adduced on the trial to support the cause of action. Among the defenses was that by former adjudication between Greenberg, plaintiff’s assignor, and defendant, in an action for the claim and delivery of the same coats, it was determined that Greenberg was entitled to no more than $45.50 for such services, which sum, it was claimed, had been tendered him before the commencement of this action.

It was also contended for defendant that in the replevin action she recovered judgment against Greenberg for $22.50 costs and that amount she sought to have allowed her out of any recovery by the plaintiff in this action. Iri support of the defense •of former adjudication, and of the counterclaim, defendant introduced in evidence what purported to be a judgment roll of the ninth district court in the city of Mew York in an action wherein Minnie Mothner, the defendant herein, was plaintiff, and said Wolf Greenberg and one Abraham Petzkey were named as defendants. That record, however, did not in terms purport to be more than a “judgment for the plaintiff ” named therein “for return of the coats and $22.50 costs.” It did not state, specifically, that it is a judgment against the persons named as defendants, or either of them, nor did it appear therefrom that Greenberg either appeared or was served with the summons in the action. It is impossible, therefore, to ascertain from an inspection of the record that judgment was awarded against Greenberg, plaintiff’s assignor, or that Greenberg was concluded by it. Defendant’s attorney, who was also plaintiff’s attorney in the replevin action, testified as a witness for the defendant herein that Greenberg had appeared by attorney and as a witness in the replevin action, and had contested the right of the plaintiff therein to recover; he also testified to the substance of the issues litigated in the replevin action. Assuming now that the facts are as testified to by defendant’s attorney, they show at most that the justice at the time of the trial of the replevin action could have rendered an effectual judgment against Greenberg; not, however, that he did render judgment against him. Hence, the record remained ineffectual for the purposes for which it was offered. Matter dehors the record is not competent to show that the record is a judgment for or against a particular person. Black on Judgments, Vol. 1, §116, etc.; Collins v. Ilyslop, 11 Ala., 508; Finnagan v. Manchester, 12 Iowa, 521; McCartey v. Kittrell, 55 Miss., 253 ; Smith v. Chenault, 48 Tex., 455; Hays v. Yarborough, 21 id., 487; Little v. Birdwell, 27 id., 688; Wilson v. Nance, 11 Humph. (Tenn.), 189. The fact must be ascertainable from the record itself.

This action was tried May 12, 1893, and on the same day the jury returned a verdict for plaintiff, and the justice, mistaking his authority, undertook to set the verdict aside and refused to enter judgment for the plaintiff thereon. That he had no authority to set the verdict aside was lately determined in Schwartz v. Wechler, 49 St. Rep., 147, and upon discovery of the error the justice three days later entered judgment for plaintiff on the verdict. Nor do we perceive that the justice was wrong in so doing. With the rendition of the verdict the justice’s judicial discretion, so far as the particular case was concerned, ceased and was at an end. The entry of judgment on the verdict did not rest in his discretion. It was wholly a ministerial act, to the performance of which plaintiff had an absolute right enforceable by mandamus against the justice. Section 1380 of the Consolidation Act (chap. 410, Laws 1882), provides, concerning district courts in the city of New York, that judgment must be entered on the verdict immediately after its rendition. This provison is, however, directory only, Sutherland on Statutory Construction, § 446, &c.; and the justice’s refusal or delay to enter judgment in plaintiff’s favor on the verdict could not have the effect of depriving plaintiff of the benefit of the verdict nor of his right to the entry of such judgment.

The transfer of the legal title to Greenberg’s claim against defendant was sufficient to enable the plaintiff to maintain the action and to recover thereon, though the assignor expected to share in the recovery. Sheridan v. Mayor, 68 N. Y., 30.

The judgment should be affirmed, with costs.

Giegerioh, J., concurs.


text:
    Julius Kugelman, Resp’t, v. David Levy et al., App’lts.

      (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    1. Evidence—Usage—Witness engaged in different trade.
    The admission of testimony as to a trade custom of a witness who is engaged in a different trade, and who is not shown to have knowledge of the customs of the trade in question, is error.

      % Sale—Liability for storage of goods after sale.
    In the absence of clear proof of a contrary usage of trade, the vendor of goods not immediately delivered is liable for the subsequent storage charges, and cannot recover them from the vendee.
    S. Same—Insurance.
    Where the vendor insures the goods he is liable for the premiums and cannot claim reimbursement therefor from the vendee.
    Appeal by the defendants 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 for reimbursement of moneys paid by plaintiff for storage and insurance charges upon goods sold by him to defendants, delivery of which was postponed until payment of the purchase price thereof. The opinion states the material facts.

      Felix H. Levy, for app’lts; Campbell Murphy, for resp’t.
   Giegerich, J.

The plaintiff, sold to the defendants a quantity of tobacco then on storage in plaintiff’s name. Defendants gave to the plaintiff broker’s notes for the amount agreed upon for the purchase price, but, as plaintiff was in need of funds with which to pay the banker’s credit upon the goods, which payment was prerequisite to the delivery, it was agreed that the goods should remain on storage until the maturity of the notes or until actual cash payment was made by the defendants either for the whole amount of the tobacco or for portions thereof as they might require it.

The goods were subsequently delivered at maturity of the notes, and plaintiff now sues for the amount expended by him for the storage and insurance of the same during the period between the sale and delivery.

Evidence as to the custom of the trade, with regard to the payment of storage and insurance charges where goods remain on storage after the sale in such a case as the one at bar, was given by defendants’ expert witnesses to the effect that the vendor was responsible for such charges. To contradict tiffs evidence plaintiff called one King, who testified that he was engaged in the East India importing trade. His testimony was, in effect, directly opposed to that of defendants’ witnesses, who were engaged in the tobacco trade, and was objected to as incompetent upon the ground that said King was not an expert with reference to the question.

The evidence was admitted under defendants’ exception, and' our conclusion is that this exception points to reversible error. There was no proof that the witness, King, was competent to testify to the particular usage in dispute; he was not engaged in the tobacco trade, and the admission of his testimony upon the question was in contravention of the rule that a witness, by whose testimony a usage is sought to be shown, must know the usage. Griffin v. Rice, 1 Hilt., 184; Marine National Bank v. National City Bank, 59 N. Y., 67; Gallup v. Lederer, 1 Hun, 282. Tffat this witness knew the custom of tobacco traders with reference to the storage of goods sold but not delivered does not appear by the slightest proof.

But for this incompetent evidence, the usage as shown by defendants’ witnesses would have been unquestioned and a contrary decision from that arrived at should have resulted, the evidence adduced being of that character which the court could not justly have disregarded. Jacks v. Darrin, 8 E. D. Smith, 558.

Aside from the question of usage, the item for insurance should have been disallowed. By the contract in evidence, it appears that the goods are stated to be fully insured by plaintiff. Ho reasonable interpretation of this contract could support the view that any one other than the plaintiff was chargeable with the payment of the premiums of such insurance. Moreover, in -the absence of clear proof of a contrary usage of trade, the liability of the seller for the storage charges, in such a case as that before us, rests upon sound legal principle.

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

Bischoff, J., concurs.


text:
    Richard Siegman, Resp’t, v. Sarah W. Keeler, App’lt.
    (New York Common Pleas, General Term,

      Filed August 9, 1893.)

    1. Appeal—Theory adopted in trial court governs on appeal.
    A recovery in every case must be secundum allegata et probata, and the theory of the action adopted by the trial court with the acquiescence of the parties will govern in the appellate court for the purpose of review.

      2. Boarding house keepers—Liability eor loss of boarder’s goods.
    A boarding house keeper is answerable for a loss of a boarder’s goods only if he has omitted to exercise ordinary care to prevent it, and the burden of proof in such ease is upon him who asserts a want of due care.
    3. Same—Negligence.
    Where a boarding house keeper has exercised ordinary care in the admission of persons, as patrons of his house or otherwise, refusing admission to such as were known to be of bad character or habits, he is not to be considered as an insurer against acts of imprudence and dishonesty on the part of the persons so admitted, and negligent because the boarder’s rooms are not kept locked during their absence, against possible marauders from within.
    4. Same.
    Nor is it negligence to omit to at once rid the house of a patron who, on one or two occasions, on returning home late, failed to securely close the street door.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the seventh judicial district.
    Action to recover damages for the loss of personal property which was stolen from plaintiff’s room in defendant’s boarding house.

      Sol. Kohn, for resp’t; Albert F. Hagar, for app’lt.
   Bischoff, J.

Plaintiff sued to recover damages which he claimed had resulted to him and his assignor from the loss of certain wearing apparel while they were patrons of defendant’s boarding house. It was conceded that the property had been purloined, from plaintiff’s room, but it was contended that defendant could have prevented loss by the exercise, of due care which she had omitted. The action was tried by the justice without a jury and resulted in a judgment for plaintiff.

The complaint was oral, but it appears from the justice’s return and the proceedings on the trial that it was founded upon an alleged cause of action for damages arising from defendant’s negligence ; and such was the theory acquiesced in by both litigants. Seemingly apprehensive, however, that his claim of negligence is not sustained by the evidence, respondent’s counsel contends that the judgment should be affirmed notwithstanding, because the evidence is sufficient to authorize a recovery against defendant in conversion, it appearing that defendant had assumed possession of plaintiff’s room during his . temporary absence therefrom. That contention should not be permitted to prevail. The recovery must in every case be secundum allegata et probata. Romeyn v. Sickles, 108 N. Y, 650; 1 Silv. Ct. App., 594; 13 St. Rep., 864, and the theory of the action which was adopted by the trial court with the acquiescence of the parties will govern in the appellate court for the purpose of review. Home Ins. Co. v. The Western Trans. Co., 51 N. Y., 93, 96; Stapenhorst v. Wolff, 65 id., 596. In part, at least, plaintiff’s right to the damages awarded is dependent upon an assignment to him of his brother’s alleged claim against defendant for damages arising from the latter’s negligence, and were we now to affirm the judgment because the facts developed on the trial may show a conversion by defendant of the property subsequently stolen from her custody, it would imply our sanction of the recovery in part without proof of plaintiff’s right to demand the damages awarded. The rules above referred to are, therefore, peculiarly applicable to the case at bar.

A boarder is not a guest in the sense in which it is applied with reference to an inkeeper’s liability, Hancock v. Rand, 94 N. Y., 1; and unlike the latter, who is liable as an insurer of his patron’s goods, Hulett v. Swift, 33 N. Y., 571, a boarding-house keeper is answerable for a loss of the goods only if he has omitted to exercise ordinary care to prevent it. Barber v. Harrison, 6 City Hall Recorder, 89; Smith v. Read, 6 Daly, 33 ; Cooley on Torts, 761. Ordinary care is that degree of care which constitutes the-average of common prudence, and would have been employed by most persons under the same circumstances, Ernst v. Hudson R. R. R. Co., 35 N. Y, 9, 26; and in the case of a boarding-house keeper may properly include the exercise of a reasonable degree of discrimination in the admission and maintenance of persons as patrons of his establishment. A boarding-house keeper furthermore is, in the absence of an agreement to the contrary, in contemplation of law, a custodian of his patron’s goods. Ingalsbee v. Wood, 36 Barb., 452; Smith v. Read, supra. The former thus becomes a bailee of the latter’s goods. The relation of the parties creates a bailment for mutual benefit, which imposes upon the bailee a duty to exercise ordinary care to protect the goods entrusted to him against loss by theft or otherwise, and subjects him to responsibility for ordinary negligence ■—that is to sajq for the omission to exercise ordinary care. Story on Bailments, 9th ed., § 23; Coggs v. Bernard, 1 Smith’s Leading Cases, Am. ed., Hare & Wallace’s Notes, 82; Lawson’s Rights, Remedies & Practice, Vol. 4, §§ 1698, etc. If upon proper demand by the bailor the goods are not restored by the bailee, and no sufficient excuse therefor is offered by the latter, he may be deemed to have converted the same to his own use, and mulcted in damages accordingly; but if'it be shown that the goods have been lost, destroyed or stolen, he is not answerable for their value unless it further appears that with due care on the part of the bailee the loss, destruction or theft would have been averted. Claflin v. Meyer, 75 N. Y, 260 ; Leoncini v. Post, 37 St. Rep., 255. The burden of proof in such a case is, as in other instances of imputed negligence, upon him who asserts the want of due care, Claflin v. Meyer; Leoncini v. Post, supra; the presumption always being that a person has performed a duty required of him. Bailey on Onus Probandi, 216;. Cosulich v. Standard Oil Co., 122 N. Y., 118; 33 St. Rep., 287 ; Turner v. Kouwenhoven, 100 N. Y., 115, 121.

Three circumstances are urged in plaintiff’s behalf as sustaining the burden of proof respecting defendant’s omission to exercise ordinary care in the preservation of her patron’s goods, namely, that the door of defendant’s house which communicated directly with the street was maintained by her in insecure condition against the ingress of unbidden visitors; that she did not keep the particular room which was occupied by plaintiff and his brother securely locked during their absence therefrom; and that she did not eo instanti eject a fellow boarder whose excessive conviviality on one or two occasions had caused him to leave the front door ajar on his return home late at night. Prom these alleged facts we are asked to conclude that defendant failed to exercise ordinary care. Concerning the first we are of the opinion that the evidence is directly to the contrary. True, plaintiff did testify that he believed the front door to be insecure, but he also admitted that he never subjected his belief to a practical test, while a number of other witnesses, including plaintiff’s brother, deposed that the door was as secure as such doors generally are and could be opened from outside only by means of a key. Next, in the absence of proof to the contrary, we must assume that defendant exercised at least ordinary care in the admission of persons as patrons of her house or otherwise, refusing admission to such as were known to be of ill-repute, vicious inclinations or habits by which the persons or goods of others were endangered. Having done so, she was not to be considered as an insurer against acts of imprudence or dishonesty on the part of persons admitted, and it most certainly would have been an exhibition of extraordinary vigilance if under such circumstances defendant had kept every room, nook and cranny of her house securely locked and bolted against possible marauders from within. Lastly, we are unable to persuade ourselves that with like care in the choice of her patrons it was even slight negligence on the part of defendant that she did not rid her house of a patron who had once, or even twice relaxed the exercise of ordinary caution to securely close the front door after his ingress late at night. It would involve the severest strain to construe this circumstance into omission by defendant to use ordinary care to protect her patron’s effects.

Occasional omissions of precaution of merely prudential suggestion, however induced, are not of infrequent occurrence. We do not believe ourselves at fault if we assume that they have happened to most, if not to all persons, and that they will happen again and again, and because of that fact the frailty of human foresight in that respect may be said to fairly enter into the consideration of our daily affairs, and so that plaintiff and his brother may be deemed to have entered defendant’s house subject to the risk of such occurrences. If it was negligence for defendant to continue to harbor an offender upon discovery of his transgressions, it would have been equally so for another to have afforded him shelter with knowledge of his fault, and the logical sequence of respondent’s contention would be that the occasional lapses of defendant’s convivial boarder should have been visited with punishment so severe that he would be from thenceforth and forever compelled to be “ a wanderer on the face of the earth.” Of course a vastly different aspect of the matter would have been presented had it appeared in evidence that defendant continued to harbor a patron who was habitually remiss in his attention to matters of common prudence, and whose conduct thus tended to expose the persons and goods of other patrons to needless risk.

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

Gtegerich, J., concurs.