author: Follett, J.

text:
    William S. Williams, App’lt, v. Robert Lindblom et al., Res’pts.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Appeal—Record.
    A judgment on the report of a referee, appointed to state accounts, cannot be reviewed unless all the evidence, or the substance thereof, appears in the record.
    2. Evidence—Foreign judgment.
    A judgment of a foreign state, in an equitable action, is admissible in evidence, though the testimony referred in the report of the master does not accompany the record, where it is certified as a complete transcript of' the record, and it is not shown that in such state evidence taken by the master forms part of the judgment record.
    Appeal from an order, on confirming the report o£ a referee appointed to assess damages and from a judgment enter on said report an order.
    This action was begun June 17, 1890, for an accounting between partners, and was referred to a referee to hear and determine. Upon his report a judgment was recovered September 2, 1892, in favor of the plaintiff and against the defendant Robert Lindblom and Nathan Gf. Miller for $63,705.16, from which judgment Lindblom appealed to this court, where March 27, 1893, the judgment was reversed, a new trial granted, and Adrian H. Joline appointed a referee to hear and determine the action. 68 Hun, 173; 22 N. Y. Supp. 678. May 5, 1893, the plaintiff appealed to the court of appeals from the order granting a new trial, giving the stipulation required by the subdivision. 1 of section 191 of the Code of Civil Procedure. June 5, 1894, the order was affirmed by the court of appeals, and a judgment absolute rendered against the plaintiff, with costs. 142 N. Y. 682; 60 St. Rep. 872. June 8, 1894, the judgment of the court of appeals was made the judgof the supreme court. June 18, 1894, Adrian H. Joline was appointed a referee “to take and state an account.upon the affirmative claim of said defendant against plaintiff as upon plain tiff’s default, and to take such evidence and such proceedings herein as may be requisite to render effectual said judgment, and report same to this court.” November 2,1894, the plaintiff moved in the court of appeals to be allowed to withdraw his appeal, or for a re-argument of the case, which was denied. 143 N. Y. 675; 63 St. Rep. 93. The partnership out of which this litigation arose was formed June 21, 1883, by Robert Lindblom, Nelson Van Kirk, Nelson Gr. Miller, and William S. Williams, who entered into a written contract by which they formed a limited partnership, under the laws of the‘state of Illinois, under the firm name of Robert Lindblom & Co. The partnership was to begin July 1, 1883, and end June 30, 1885. It 'was provided that the principal office and place of business of the firm should be in Chicago, III, and that there should be a branch office in the city of New York. After the termination of the partnership, and on the 12th of March, 1886, Robert Lindblom began an equitable action in the superior court of Cook county, 111., in which- action all of the partners appeared and answered. In this action a trial was had, which resulted in a judgment, entered October 24, 1894, which -adjudged and decreed, among other things, the following: “It is therefore ordered, adjudged, and decreed that the defendants Nathan Gf. Miller and William S. Williams pay to the complainant, Robert Lindblom, the sum of $12,410.49 within three days from this date ; that the said defendants Nathan Gf. Miller and William S. Williams pay to Robert Lindblom, as administator of the estate of Nelson Van Kirk, deceased, the sum of $4,180.99 within three days from this date; that the defendant -Nathan Gf. Miller pay to the said William S. Williams the sum of $17,909.10 within three days from this date ; that all such sums so decreed .to be paid as aforesaid shall bear lawful interest thereon from this day until paid ; that the costs of this suit, to be taxed by the clerk of this'court, be paid by the said Nathan Gf. Miller and William S. Williams jointly, and in default of the said payments, as herein provided, that execution issue therefor.” On the assessment of the damages before the referee in the action at bar this judgment was offered and received in evidence. January 22, 1895, the referee reported that Robert Lindblomwas entitled to recover against the plaintiff $12,582.72. To this report the plaintiff filed exceptions, which were, March 11, 1895, overruled, the report confirmed, and on the next day a judgment-was entered pursuant to said order. From this judgment and this order this appeal is taken.

      John Murray Mitchell, for app’lt; Linus A. Gould, for resp’ts.
   Follett, J.

The record is very defective on which we are asked to reverse the order of the special term confirming the referee’s report and the judgment entered thereon. If, as the appellant insists, we are to review the judgment entered on a report of a referee appointed to hear and determine an action, the answer is that a case has not been made and settled by the referee, as provided by section 997 of the Code of Civil Procedure. “In reference other than for the trial of the issues in action. * * * the testimony of the witnesses shall be signed by them and the report of the referee shall be filed with the testimony.” Gen. Rule 30. The testimony contained in the record does not purport to have been signed by the witnesses, and, besides, the order confirming the referee’s report and overruling the exceptions thereto recites that it was made on the “testimony taken,” and other papers not necessary to be referred to here. At pages 190 and 191 of the record it appears that both parties read from the former appeal book a mass of testimony given by witnesses on the trial of the action. None of this evidence is contained in the present record, the substance thereof is not stated, nor is any reason given why it is not contained in the record. An assessment of damages is reviewable on the merits only, and not on technical exceptions ; and on a record like the one before us the merits cannot be reviewed. Besides, on appeal from one order the record on which the order was made should, be presented to this court, unless some part of it is omitted by the sanction of the special term. It we could overlook all of these defects, and consider this case on the merits, we should find no ground for reversing the order and the judgment. We agree with the learned referee that the Illinois judgment was binding on the parties as to the state of the partnership accounts and as to the amount due by and to each partner. When this foreign judgment record was offered in evidence it was objected to by the plaintiff on the grounds : “(1) Not alleged in the pleadings ; (2) not complete record.” The answer of defendantLindblom in this action was verified April 2, 1890, more than two years before the recovery of the Illinois judgment, and he was not bound to plead it by a supplemental answer as a bar to this action, but had the right to use it as evidence of the amount due him, so as to recover a judgment in this state for that amount. There is no evidence before us that the exemplified copy is not a true copy of the whole of the judgment record. The clerk of the court in which the judgment was recovered certifies “the above and foregoing to be a true, perfect, and complete transcript of the record.” In the master’s report to the court it is recited that the testimony of certain witnesses and certain documentary evidence are herewith returned as a part of this record. This is the omission of which the plaintiff complains. There is nothing to show that the evidence taken by the master in chancery in an equitable action in Illinois forms part of a judgment record in the action. Under the practice in the court of chancery in this state, the evidence returned by the master and referred to in his report did not form part of the judgment record, and such is the rule, in England, and so we think the plaintiff’s exceptions to the admission of the judgment roll untenable.

It was proper to grant an additional allowance in the action. There had been a trial of the issues of fact, and when the judgment entered upon that trial was reversed the question of costs was expressly reserved to abide the final award of costs. The orders of June 8 and June 18,1895, are not appealed from. An examination of all the plaintiff’s exceptions leads us to the conclusion that they would be found to be without merit if they had been presented to us on a proper case, and that the result would have been the same as now.

The judgment and order should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Francis Higgins, as Receiver, etc., Resp’t, v. Charles C. Worthington, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    1. Banks—Set—Off.
    A person, liable to an insolvent bank as indorser of a note held by it, may set off deposit accounts assigned to him between the suspension by the bank and the commencement of an action for, and resulting in, its dissolution and appointment of a receiver.
    2. Same—Insolvency—Proof.
    The insolvency of the bank at the time of the assignment is not shown by the recital, in an agreed statement of facts, that, at the commencement of the action to dissolve, the bank was insolvent, having suspended its business on a certain day.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      JDurnin & Yates, for pl’ff ; Paul B. Towne, for deft.
   Parker, J.

November 12, 1890, the North River Bank suspended its banking business. Six days later, and on the 18th day. of November, an action was commenced in the supreme court by the people of the state of New York, as plaintiff, against the North River Bank, as defendant, to procure the dissolution of such corporation. Such proceedings were thereafter had as resulted in a judgment of dissolution on the 25thx day of March, 1891, the plaintiff, Higgins, being appointed permanent receiver. Subsequently he duly qualified as such, and entered upon the discharge of his duties. The North River Bank, on the day it suspended its banking business, held certain notes upon which this defendant was liable as indorser, and he had a small deposit to his credit in the bank, which, concededly, he is entitled to have offset against the claim which the bank has against him on the notes. On the 17th of November, the day preceding the commencement of the action by the attorney general for a dissolution of the corporation, he became the assignee, for value, of certain deposit accounts standing on the boobs of said bank to the credit of the respective owners, amounting to $5,115.26. This sum he also claimed the right to have offset in full against his indebtedness to the bank on the notes, and he made demand of the receiver accordingly-

It is conceded that, if the defendant had taken the assignment of the" accounts on or subsequent to the date of the commencement of the action, he would not be entitled to the offset, for not only does the title of the receiver to the assets of the corporation relate back to the date 'of tl>e commencement of the action, but the effect of the judgment of dissolution is to determine that the North River Bank was insolvent when the suit was began. In Re Berry, 26 Barb. 55, was held that the effect of the statute, authorizing proceedings against insolvent corporations, is to take away the franchise of the corporation, and its powers of action, immediately 'upon the petition for a receiver being filed, if the prayer of the petition be finally granted; and it would seem that, if the bank was insolvent in fact when it closed its doors and suspended payment, after which defendant obtained an assignment of the accounts, they cannot be set off by him against the demand of the bank. Diven v. Phelps, 34 Barb. 224. But it was necessary for the plaintiff to prove that it was insolvent at the time of the assignment of the accounts. This was not accomplished by the judgment of dissolution, for that only related back to the 18th of November.

The only other evidence in the record bearing upon the question of insolvency is to be found in the third clause of the agreed statement of facts, and it reads as follows: “That at the time of the commencement of said action the said North River Bank was insolvent, having suspended its banking business on or about the 12th day of November, 1890.” This statement of insolvency it will be observed, is carefully confined to the date of the commencement of the action,—a date subsequent to the assignment of the accounts to the defendant. We may conjecture that the bank was insolvent bn the day that it suspended its banking business, and that the plaintiff purchased these accounts with knowledge that such was the fact; but we. are certainly not at liberty to treat this as a fact, in view of the stipulation.

The exceptions should be sustained, and a new trial granted, with costs to the defendant to abide the event

All concur.


author: , Beekman, J.

text:
    Isaac L. Seymour, Pl’ff v. Mutual Reserve Fund Life Association, Def’t.

      (Supreme Court, General Term, First Department,

      Filed October, 1895.)

    1. Insurance—Contract with member.
    The certificate of membership in a co-operative life insurance association, which prescribes the amount in which the members may be assessed on notice, must be read in connection with the constitutional provision, which authorizes its board of directors to fix and determine rates of assessment.
    2. Same—Injunction.
    Section 56, chapter 690 of 1893 prohibits an injunction against a cooperative ipsurance corporation, on the application of a member to enjoin it from enforcing certain assessments against him.
    3. Injunction—Preliminary—When granted.
    Where the granting of a preliminary injunction in effect decides the cause in advance of its trial, the court will proceed with great caution.
    Action to enjoin defendant from enforcing certain costs or assessments against plaintiff, on the ground that the .certificate of membership constituted the contract between himself and defendant, limiting the amount of costs.

      William, Phlippeau and Max Myers, for pl’ff; George Burnham, Jr., and William D. Guthrie, for def’t.
   , Beekman, J.

— The defendant is a life insurance corporation upon the co-operative or assessment plan, duly incorporated under the laws of this state. The plaintiff is a member of said corporation, claiming the benefits of an insurance to the extent of $10,000. He holds what is known as a “ certificate of membership,” issued on the 10th day of October, 1881, in which it is stated that in consideration of the statements and representations contained in his application, and of the sum of thirty dollars paid by him to the defendant, and of the annual payment of twenty dollars, and also of twenty-eight. dollars, being tBe amount of assessment payable, thirty days from the date of each notice, the defendant thereby -receives Isaac L. Seymour, the plaintiff, as a member of the association, and the defendant thereby further promises and agrees, in the event of the decease of said member, to make an assessment upon the entire membership for such a sum as has been established -by the board of trustees at the date of entry; that is, the date upon which the plaintiff became a member of the association. From the sum received from such assessment the defendant agrees to set aside as a reserve fund twenty-five cents, and that the balance shall be paid at the office of the association in the city of Hew York to the wife of the plaintiff, or to his legal representatives, within sixty days after the receipt or satisfactory evidence to the defendant of plaintiff’s death during the-continuance of his certificate of membership; the sum so paid, however, not to exceed $10,000. Various other provisions are contained in the certificate, in regard to the maintenance of a reserve fund and death fund, not material to the disposition of this-motion. The certificate states that it is issued and accepted by the member subject to certain conditions and agreements therein specified, all of which in some form affect the conduct of the plaintiff in regard to the risk assumed. It is also provided that:

“ Ho alteration of the terms of this contract shall be valid, and no forfeiture thereunder shall be waived, unless such alterations or waiver shall be in writing, and signed by the president or secretary of the association. - 'Ho agent of the association has authority to make, alter, or discharge contracts, waive forfeitures, extend credits, grant permits, or name an extra rate for special risks.”

The plaintiff continued to pay the assessments prescribed by the-certificate, at the rate of twenty-eight dollars upon each mortuary call, until 1885, when the amount was raised to fifty-six dollars, which the plaintiff paid. Again, from December 22, 1885, to February 28, 1889, .with two exceptions, the mortuary calls for assessments upon the plaintiff amounted to the sum of forty-two dollars each, all of which were paid by him. Between April 29, 1889, and June, 1895, each mortuary call or assessment was raised to the sum of fifty-three dollars and ten cents, which was also paid ■by the plaintiff. All of these calls, although in some instances-. greatly in excess of the amount apparently fixed by the certificate of membership, were paid by the plaintiff without protest or objection. In August, 1895, a further mortuary call or assessment was imposed upon the plaintiff, requiring him to pay the sum of $112.80, and at the same time lie was advised that further calls or assessments, payable in November, 1895, and January, 1896, would be at the least of the same amount. To this plaintiff has objected,' and brings this action, in which, among other things, he seeks injunctive relief, prohibiting the defendant from enforcing said calls or assessments, on the ground that the certificate of membership constitutes a contract between himself and the defendant, by the terms of which no mortuary call can exceed the sum of twenty-eight dollars. The defendant contends that the certificate of membership, standing by itself, does not completely measure the rights and duties of the parties, but is to be read in connection with the constitution of the defendant corporation, which was framed by its members, and in the adoption of which the plaintiff, therefore, had a voice.

This states with sufficient accuracy the question upon which the plaintiff’s right to the injunctive relief for which he asks depends. By the terms of the constitution of the defendant, the board of directors is authorized to fix and determine rates of assessment, admission fees, and annual dues, and to adopt such other rules and regulations as they may deem best for the interests of the association. The increase of assessment complained of is the result of a change of policy on the part of the defendant, pursuant to a request or suggestion on the part of the superintendent of the insurance department, which was put on the ground that it was inequitable that the assessment should be based upon the age of the member at the time he entered the association, and that the safer and more equitable rule would be to predicate the amount of each assessment upon the age of the member-at the time the call is made. The change of plan is made with the warm approval of the insurance department of this state, and of similar departments in other' states where the defendant transacts its business, so that no question can arise as to the reasonableness of the action of the defendant. As has already been said, this whole question is, what was the -contract between the parties ? It was said by Judge Peckham in the case of In re Equitable Reserve Fund Life Ass'n, 131 N. Y. 354; 43 St. Rep. 204, "that co-operative or assessment companies are “ neither stock nor exactly mutual insurance . companies. While partaking of. the general features of a mutual company, they could not be exactly described as such in all respects.” And he expresses the view that “ the liability of the company and the rights of its members must be measured and construed by the constitution and bylaws of the company and the certificates which it issues.” It cannot, therefore, be said that the contention of the plaintiff is at all clear, or that it is free from reasonable doubt. Indeed, his own conduct for years in assenting to the changes in the amount of the calls suggests a practical construction by both parties of their mutual rights and obligations more in harmony with the claim of the defendant corporation than that which the plaintiff now advances. However this may be, it is sufficient to say that the rule is well recognized that the right of the plaintiff should be quite clear to justify a preliminary injunction, and that the case which he has made on this motion is not of such a character. In view of the fact that in actions where the object of the suit is to obtain injunctive relief the granting of a preliminary injunction in effect decides the cause in advance of its trial, it is therefore a wise rule which admonishes the court to proceed in such cases with great caution. I have already, in a somewhat similar case, refused to grant similar relief, and reiterate what I said upon that subject on that occasion. Greanelle v. Association, 35 N. Y. Supp. 796.

But there is another ground or aspect of the case on which it is claimed that no injunction should issue. Section 56 of chapter 690, Laws 1892, provides as follows :

“No order, judgment or decree providing for an accounting, or enjoining, restraining or interfering with the prosecution of the business of any domestic insurance corporation, or appointing a temporary or permanent receiver thereof, shall be made or granted otherwise than upon the application of the attorney-general on his own motion, or after his approval of a request in writing there-, for of the superintendent of insurance, except in an action by a‘ judgment creditor, or in proceedings supplementary to execution.”

The injunction asked for, if granted, would involve an adjudication which in effect would compel the defendant to abandon a fundamental principle, upon which it now tionducts its enormous business. The company could not discriminate in favor of the plaintiff against his fellow members similarly situated; and, further," it may not be doubted that, if an injunction should be issued, in this case, a large number of the other members of the 'corporation would apply for and be entitled to have similar restraining orders, which would result in a most serious interference with its entire business. The contention, therefore, of the counsel for the defendant, that this case comes within the statutory prohibition above referred to, has great force, and is of sufficient weight in itself to justify the court in refusing to grant a preliminary injunction.

Upon the whole case, therefore, I am quite satisfied that it would be improper for me to grant this motion. It should be left to the court, on the trial of the action, to determine the right of the plaintiff to injunctive relief. In the meantime.he may continue to pay the assessments of which he complains under protest, and, if it should be decided that 'he has been the victim of an unlawful exaction, he is not without his remedy. The balance of inconvenience inclines immeasurably towards the defendant, in weighing the immediate effect of granting or denying the plaintiff’s motion, and this isa circumstance which deservedly has great weight with.the court in exercising its discretion upon such applications. The case is not one, at least, in which irreparable injury will result to the plaintiff from a refusal to grant the injunction asked for; nor is the situation such that, if the defendant is not in the meantime restrained, a judgment for the plaintiff would be but a barren victory. It results from what I have said that the motion for an injunction pendente lite should be denied.

Motion denied, with $10 costs, to abide the event.


author: Beekman, J.

text:
    Greanelle, Pl’ff, v. Mercantile Benefit Association, Def't.

      (Supreme Court, New York Special Term,

      Filed April 22, 1895.)

    Motion by plaintiff for a preliminary injunction.
   Beekman, J.

The preliminary injunction asked for would, in a measure, immediately afford to the plaintiff the greater part of the relief for which he prays judgment. The defendant has answered, and there are therefore issues in the case to be tried. Under such circumstances the right of the plaintiff should he quite clear to justify a preliminary injunction, and it should also appear that a failure to enjoin pendente lite would probably result in a barrren judgment, should the plaintiff prevail on the trial. In the present case I do not consider that the alleged invasion of the plaintiff’s rights is so clear, or that the consequences of a failure to grant him present injunctive relief will be so-serious, as to justify favorable action upon his application. The inconvenience to which the plaintiff may be subjected before the trial of the action is an increase, moderate in amount, in the mortuary assessments he may be called upon to pay, while the defendant corporation would be exposed to most serious embarrassment in the conduct of its business should the court undertake to suspend the operation of the by-laws complained of. There are 2,000 members of the defendant, of whom about thirty seem to have obiected to these by-laws, and only five of the latter are taking any active part in this litigation. Under such circumstances the exercise of a sound discretion suggests the refusal of so drastic a remedy. In disposing of this motion I have purposely refrained from discussing the merits of the controversy, in order that the parties may not be embarrassed on the trial, where such discussion fitly belongs, by any previous judicial determination.

Motion denied, without costs.


text:
    Otto Volkening, Pl’ff, v. William H. Brandt el al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed October, 1895.)

    Receivers—Injunction—Application op rents.
    Where an injunction granted in an action to foreclose a mortgage restraining a receiver of the mortgaged premises appointed in another action from collecting rents pending the application of plaintiff therein for a receiver of the same premises, is, in order to prevent loss of the rents, by reason of there being no one authorized to collect them, vacated on condition_ that no disposition shall be made of the rents without notice to the plaintiff, the receiver holds the rents thereafter collected, subject to the equitable rights of plaintiff to have them applied for his benefit, should his application for the appointment of a receiver be granted.
    A receiver, appointed to receive the rents of the mortgaged premises, has presented his account for settlement.

      ■Albert J. Wise, for pl’ff; Otis & Pressinger, for def't; Louis E. Bcmdsler, for receiver.
   Beekman, J.

The injunction which accompanied the order • to show cause, dated March 14, 1895, was intended to arrest the collection of the March and April rents by the receiver in the superior court action, in order to subject them to appropriation for the benefit of the plaintiff herein in case receiver of the rents of the mortgaged premises should be appointed in this action pursuant to said order to show cause. Upon the return of said order it appeared that the above-mentioned receiver had not been served therewith, and an adjournment was accordingly taken for the purpose of bringing him in. Upon the adjourned day the motion was argued and submitted for decision.- " At the same time the counsel for the plaintiff in the superior court action called the attention of the court to the fact that, if the injunction restraining the receiver from collecting the rents should continue, loss would re-, suit to all parties, by reason of there being no one authorized to collect the same. Thereupon the injunction was vacated, upon the condition that no application for the disposition of the moneys so collected by the receiver should be made without notice to the plaintiff in this action. The motion herein was subsequently decided in favor of the plaintiff, and the receiver in the other action was.appointed as such in this. The March and April rents, however, were collected by him after the vacating of the injunction, but before his actual appointment in this action; and both he and the attorney for the plaintiff in the other action contend that by reason of that fact such rents are not applicable to plaintiff’s claim, but are to be disposed of for the benefit of the plaintiff in the superior court action. I do not agree with this view. While, perhaps, the order vacating the injunction should have been more explicit, and should have declared that the rents thereafter collected should be held by said receiver subject to the further order of this court, it was undoubtedly understood that they were to be collected by the receiver in order to prevent their loss, and that they should be subject to the equitable right of the plaintiff to have them applied for his benefit should his application for the appointment of a receiver be granted. He is not to lose the benefits which he would have enjoyed had the injunction been continued by reason of the fact that under the circumstances which appear in this case, and solely for the protection from loss of all who had any interest in or claim to them. It would be inequitable to permit the plaintiff in the superior court action to take an advantage from what was done, in permitting him to collect the rents, which was not intended to be conferred. The receiver is, therefore, to be regarded as the recipient and custodian for the time being of such rents until this court shall take action in the appointment of a receiver, and the equitable lien of the plaintiff be perfected. The case, therefore, is not analogous to those cited by counsel, which held that the receiver of rents in a foreclosure action is entitled to claim only such rents as had not actually been paid at' the date of his appointment. In the present case the rents in question have been arrested before collection by the receiver through the interposition of this court, pending proceedings for their sequestration in this action; and while it is so that the receiver was permitted by this court, before his actual appointment herein, to collect such rents, he received and continued to hold them for the reasons above stated, subject to their appropriation in this action upon the appointment of the receiver which was subsequently made. The plaintiff claims only the April rents. I am, therefore, of the opinion that the receiver should account in this action for such rents.

I understand that the only other objection to the receiver’s accounts is to the item of seventy-five dollars expended by him for the services of counsel. I have nothing before me upon which to form an opinion as to the propriety of this item, and as the amount is so small as hardly to justify the expense of a reference, I will pass upon the propriety of the charge if an affidavit be submitted setting forth in itemized' form the nature of the services rendered for which the charge is made. A copy of the affidavit should be served upon the attorney for the plaintiff, who may answer the same if he sees fit to do so; all papers, including the receiver’s accounts and vouchers, to be submitted to me not later than October 17, 1895. Proposed orders should also be served and submitted with the other papers.

Ordered accordingly.


author: O’Brien, J.

text:
    Caroline B. Van Bokkelen, Resp’t, v. Massachusetts Benefit Life Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed November 15, 1895.)

    1. Insurance—Benefit life—Forfeiture—Nonpayment.
    Any agreement, declaration or course of action on the part of an insurance company, which leads the insured to honestly believe that, by conforming thereto, a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract, where there has been brought to the insured no knowledge of any change in the company’s rule as to the method of payment.
    2. Same—Assignee of policy—Party.
    An assignee for life of the absolute title to policies may sue thereon in his own name.
    Appeal from a judgment in favor of the plaintiff.

      J. K. Hayward, for app’lt; Alexander S. Bacon, for resp’t.
   O’Brien, J.

The defendant in 1881 issued two policies of insurance on the life of Spencer D. 0. Yan Bokkelen. For thirteen years he continued to pay the premiums every two months on these policies. About the 1st of January, 1894, the defendant sent him a notice of mortuary call to be paid on or before February 1, 1894. Although there is a dispute as to whether the mailing of a check in payment thereof was on the 1st or 2d day of February, the learned trial judge, on conflicting evidence, concluded (and with such conclusion we see no reason to interfere) that on the 1st day of February a check for the assessment was mailed by depositing such check in a New York post-office letter box, inclosed in a postpaid envelope directed to the defendant in Boston. From time to time during the thirteen years payments had been thus made, although the contract required that they should be made at the home office in Boston. It further appeared that at some time prior, but how long before does not appear, the form of notice was changed, and a statement- was placed in fine print in the coupon which was part of the mortuary notice, and which coupon is returned to and retained by the defendant, that the remittances must reach the home office in Boston on or before the expiration of the time limit named in the notice. Such statement was not contained in the body of the notice, which is retained by the insured as a receipt for his premium, and Mr. Van Bokkelen swears that he never knew of this change in the form of notice until he heard of it in court on the day of the trial. In disposing of this question' the learned trial judge said:

“ The notice said that the call must be paid on or before February 1st, and the express notice is that it may be made by check. The course of dealing between the parties would settle what was meant by this notice, and when it appears that the company was in the habit of accepting, as a payment, checks mailed upon the day that the amount was required to be paid, I think there, must be some express and explicit notice to the assured that it required a different method of payment, before they could insist upon a forfeiture where the usual method had been adopted. And the mere fact that on a coupon annexed to the notice was printed, in small letters, a statement that the company would require that the remittances must reach the home office on or before the expiration of the time limit in the notice, was not sufficient notice to the assured to justify the company in changing its method that had been adopted for making the payments. Good faith to the assured required that he should be distinctly informed that his policy would be forfeited unless he changed the method by which, with the assent of the company, he had been in the habit of making his payments. It appears in this case that the assured had paid promptly the calls under these policies for many years, and it is a harsh enforcement of a technical provision that would forfeit these policies after such payments because of the difference of one day in the receipt of the premium, and. I think there is presented a fair case for the interposition of a court of equity.”

We might well have affirmed this judgment upon the opinion of the court'at special term, but it has been forcibly insisted that there is no legal warrant for the conclusion thus reached, and to show that in this the appellant is mistaken it is only necessary for us to refer to one or two decisions. In Insurance Co. v. Eggleston, 96 U. S. 372, Judge Bradley said:

“We have recently, in the case of Insurance Co. v. Norton, 96 U. S. 234, shown that forfeitures are not favored in the law, and that courts are always prompt to seize hold of any circumstance that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads the party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture.”

The rule thus stated was not only applied in the cases cited, but in our own state we have many similar instances of its application, from but one of which it will be necessary to quote, and that only because it is, in many of its features, analogous to the case at bar. We refer to the case of Kenyon v. Association, 122 N. Y. 247; 33 St. Rep. 467. The certificate of insurance there provided that if any assessment was not paid within ten days after proper notice the certificate should cease and determine. There was indorsed upon it a by-law that any member failing to pay his assessment within ten days after notice would forfeit the certificate of membership and all benefits therefrom, but that he might be reinstated within thirty days after notice, if allowed," by paying all arrearages. On March 27, 1885, defendant’s secretary mailed to the assured a notice that an assessment was due and payable on or before April 6th. It also stated that assessments were payable at defendant’s office in cash, by sight draft, or money order payable to defendant’s secretary. Plaintiffs proved that:

“ On April 4, 1885, he (the assured) sent by mail from Water-town his check, drawn upon a bank there, for the amount, to the defendant’s secretary at Cincinnati, payable to the order of the latter. It was sent sufficiently early to reach by due course its place of 'destination within the ten days mentioned in the notice, but it was not received by defendant’s secretary. If it had reached him within that time he would not have been required to accept 'it in performance of the contract, as represented by its terms before mentioned, but the course of dealing between the parties had been such that the member was at liberty to assume that his check upon the bank was receivable by defendant, because it had uniformly and without objection received his checks in payment for assessments upon the certificate. So far the defendant had waived strict performance, and permitted the member to pay in his checks as a substitute for the method of payment mentioned in the notice. It appeared that, within a little more than a year and a half preceding this assessment, Kenyon had sent to the secretary fifteen checks drawn by him, as this was, upon the same bank at Water-town, in payment of assessments, and that they were so received. But it is contended that the receipt at the home office of the defendant of that which the assured was permitted to deliver in payment was essential to accomplish it; that this is the rule where nothing appeared to the contrary. Insurance Co. v. Davis, 95 U. S. 435; and such was the effect of the contract in question, and, as we have seen, not modified by the terms of the notice of assessment.”

Upon these facts it was held that, from the course of dealing adopted by the defendant in respect to the payments, the assured might fáirly and in good faith have been led to suppose that defendant’s requirements as to payments were satisfied by mailing the check. See, also, Titus v. Insurance Co., 81 N. Y. 410; Roby v. Insurance Co., 120 N. Y. 510; 31 St. Rep. 560; Miesell v. Insurance Co., 76 N. Y. 115; Palmer v. Insurance Co., 84 id. 71. It appearing then that Mr. Yan Bokkelen mailed his check on the 1st day of February, 1894, the last day called for in the notice,— a thing that he had frequently done before,—and notice not having been properly given, and therefore no knowledge having been brought to the assured of any change in its rule as to the method of payment, it would be inequitabe to permit the defendant to forfeit the policies.

The only other question is as to the right of plaintiff to maintain this action. It was shown that by the assignment the absolute title to the policies was vested in the plaintiff while she lives, and during that time no other person has any interest therein; and even if we assume what does not appear, that there were other parties who, in the event of -her death, might have an interest in the policies, this would not require that they should be brought in. We think, therefore, that, without joining either them or Mr. Yan Bokkelen, the plaintiff could maintain this action. Judgment affirmed, with costs.

All concur.


author: Yan Brunt, P. J. O’Brien, J.

text:
    Andrew L. Fennessy, Resp’t, v. William F. Ross, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Corporations—Directors—Contracts—Public policy.
    Contracts, where the directors and officers of a corporation have been, trading upon its interests for their own private advantage are void as against public policy; so held as to a contract for the sale of stocks in several corporations, which provides that the purchaser shall have the management of the corporations for one year at a stated salary, have an equal representation in the board of directors with the vendor, and to be made vice-president and general manager, where it does not appear that the vendor is the sole stockholder.
    Appeal from a judgment, overruling a demurrer to the complaint.

      J. A. Barhite, for app’lt; R. D. Woodward, for respondent.
   Yan Brunt, P. J.

The complaint in this action alleged that on the 12th of October, 1894, the plaintiff and defendant entered into an agreement in writing, a copy of which was annexed to the complaint, whereby the plaintiff agreed to deliver io the said defendant 899 shares, of the par value of $100 each, of the capital stock of the Greenbush Waterworks Company, of Greenbush, Nv Y., and 865 shares, of the par value of fifty dollars each, of th'e capital stock of the West Troy Waterworks Company, of West Troy, N. Y., and 287 shares, of the par value of $100 each, of the capital stock of the Green Island Water Company, of Green Island, N. Y.. on or before the 20th day of December, 1894, for and in consideration of the sum of $6,695, which the defendant agreed to pay. Complaint further alleged that the defendant failed to fulfill his agreement, and failed to pay said sum to the plaintiff, although the plaintiff was able, willing, and ready to deliver to said defendant the stock mentioned, and to carry out the provisions of said agreement by him to be performed, and that thereafter the plaintiff sold the.stock at public auction, for the account, and at the risk, of the defendant, after due notice to the defendant, for the sum of $2,025, after deducting expenses; and that by reason of the failure of the defendant to buy said stock at the time designated, and to carry out said agreement, the plaintiff had been damaged in the sum of $4,670, which said defendant had failed to pay, and judgment was then demanded for that sum. The defendant demurred to this complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. This demurrer being overruled, from the interlocutory judgment thereupon entered this appeal is taken.

Upon an inspection of the agreement annexed to the complaint, it appears that, in addition to the delivery of the stock above mentioned, upon payment by the defendant of the sum stated, the plaintiff had further agreed that the defendant should have the management of the three companies in said agreement referred to, and should receive, as compensation for such management for the period of one year, the sum of $1,500 per annum, payable monthly; and that the purpose and intent of this clause was that at the expiration of one year a new contract would be made, at a greater sum than $1,500 a year, and that the defendant should have an equal representation in the board of directors of the three companies above referred to with the plaintiff, and should be made vice-president and general manager of the three companies ; and the defendant agreed to accept the said equal representation in the board of direct'ors, and the said office of vice-president and general manager of the three companies, and to accept for the first year $1,500 per annum, payable monthly, as compensation for his services as such general manager. The agreement contained the further provision that, in case either party should desire to sell his holdings of stock in the three companies, he should give the first opportunity to purchase said holdings to the other party, at a price not to exceed $10,000. It is urged upon the part of the defendant that this agreement in respect to employment, and to representation in the board of directors and officership in these corporations, was against public policy, and therefore rendered the contract void. It is urged ón the part of the plaintiff, however, that the contract does not fall within the rule, but is sustained by the reasoning of the court in Barnes v. Brown, 80 N. Y. 537. Upon an examination of this case, however, it seems1 to us that it fails to support the contention upon the part of the plaintiff. As a part and parcel of the bargain for the sale of the stock referred to in the complaint in this action, there was a bartering away of the offices and management of the corporation and representation in its board of directors. The case at bar differs radically from that of Barnes v. Brown, supra, in that in Barnes v. Brown the plaintiff sold his stock, and thereafter, ceasing to have any interest in the corporation, was naturally called upon to resign, and to give-the purchaser the representation to which his ownership in the company entitled him. In the case at bar it nowhere appears as-to what the interest of the plaintiff was, or whether he was enhancing his own private interests, at the expense of the corporation, or not, But it does appear that for a money consideration he was selling representation in the company and positions in its management. We do not think that a contract of this description can be upheld. It does not appear that the plaintiff in this' action was the sole stockholder, or that he owned a majority of the stock, and, even if this latter fact appeared, it might not be-sufficient to justify a director or an officer of the corporation in selling his offices and management for money which he places in his own private pocket. As already stated, in the case at bar it. does not appear but that the plaintiff was sacrificing the interest of the other stockholders in this corporation for a money benefit to be derived by himself alone. It seems to us, therefore, that the attempted sale of stock connected with such conditions is-necessarily against public policy, and cannot be enforced. Our attention has been called to no case where any such principle has been upheld; and, far from it, wherever there has been an attempt at bartering away the interests of the corporation by one of its stockholders or directors, contracts tending to that result have always been held as against public policy. The case of Barr v. Railroad Co., 125 N. Y. 263; 34 St. Rep. 743, is no authority for the contrary proposition. Nor is the case of Barnes v. Brown, already cited. The courts have always held contracts, where-directors and officers have been trading upon the interests of corporations for their" own private advantage to be void where they have been attempted to be enforced. In the case at bar, as already stated, the plaintiff was selling out representation in these companies, and in their offices and management, for a consideration which he was placing in his own pocket.

The judgment should be reversed, with costs, and the demurrer-sustained, with costs, and with leave to the plaintiff to amend, upon the payment of costs in this court and in the court below.

Follett, J., concurs.

O’Brien, J.

(dissenting).—The vice claimed to be inherent in the contract sued upon is the agreement by the plaintiff that the defendant should have the management of the three companies, and receive compensation for such management, and an equal representation in the board of director of the three companies, a portion of the stock in which, the agreement provided, should be-sold to the defendant; this action being brought to recover damages for defendant’s failure to pay the purchase price of such stock. If it had been 'made to appear that 'this was an attempt to barter away the interests of the corporation, by one of its stockholders or directors, for a money benefit to be derived by the plaintiff, then, undoubtedly, it would be against public policy, and the contract could not be enforced. In this case, however, I fail to see how- any such inference can be drawn, or presumption indulged in. It has always been held that a stockholder had the right to sell his stock, and if in the sale it was coupled with an agreement by which the person buying wasjto take an active interest in the affairs of the corporation, I do not see why, in the-absence of anything to show that this was done in bad faith, or contrary to the real interests of the corporation itself, it should not be upheld. The difference between my views and that presented in the prevailing opinion is in respect to the presumptions to be drawn from the contract, which is entirely silent upon the question as to whether the transaction would or would not inure to the benefit of the corporation. If, under- such conditions, the presumption is to be indulged in, in the absence of any evidence to support it, or facts appearing to warrant it, that such an arrangement is inimical to the interests of the corporation, then the conclusion reached, would be right. But, as presumption should favor good faith and honesty, rather than the reverse, I do not see why the contract is not susceptible of the-view that it was made in good faith, without design to injure the company, but, .on the contrary, to bring in as a stockholder, and as an equal representative in the workings of the companies, a new man, who was to take an active interest in its affairs, and who, for the work, was to receive a compensation agreed upon for the first year, and which was thereafter to be fixed. Upon the ground, therefore, that there is -nothing to show that in the contract made the plaintiff was trading upon tne interests of the corporation for his own private-advantage, and for the further reason that the presumption that he was so trading seems to me to be entirely gratuitous, I dissent from the conclusion reached, and think that the judgment should be affirmed.


author: Van Brunt, P. J.

text:
    Union Square Bank of City of New York, Resp’t, v. Charles Hellerson, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15, 1895.)

    Principal and agent—Imputed knowledge.
    The knowledge, acquired by an attorney, as to the origin of a note cannot be imputed to a party, for whom such attorney is not acting in the transaction, though the attorney represented such party in a claim against the payee of said note.
    Appeal from a judgment entered" on -a verdict in favor of plaintiff, rendered by direction of the court.

      M K. Sackett, for app’lt; A. L. Fromme, for resp’t.
   Van Brunt, P. J.

This action is brought by the plaintiff as holder of a note made by the defendant Hammersen, indorsed by the defendants Hellerson and Manning, and transferred to the plaintiff before maturity and for value. The defendant Hellerson alone answered, and, after some denials, set up for a seperate defense that he indorsed the note at the request of the defendant Hammersen, for his accommodation, and solely for the purpose of depositing the same with Fromme Bros., lawyers, of the city of New York, and that it was expressly agreed that said note should never be used as legal obligation of the defendant Hellerson, and that said Hellerson should ip no case be required to pay the same; and the note was indorsed and delivered to Hammersen without any consideration, and upon the condition above mentioned. The answer further alleged that Fromme Bros, and the defendant Manning and the plaintiff had notice of these facts, and that the transfer of' the note by Manning to the plaintiff was without valuable consideration, and with notice of the diversion of the same from the purpose for which it was indorsed by Hellerson. The evidence in the action showed that Fromme Bros, were pros-' ecuting a claim as attorneys of the plaintiff against John B. Manning ; that Hammersen and Manning had a trade in respct to a brewery, and Hammersen was in arrears in his payments to Manning, and that Fromme Bros, were the attorneys for Hammersen in the transaction. It appears that Hammersen was desirous of getting a deed of the brewery property which-had not been delivered by Manning, and Hammersen testified that one of the Frommes said to him: “If you-have a good friend to indorse one or two notes of about $5,000, I have a claim against Manning from the Union Square Bank, and I can please the Union Square Bank, and upon the other side please Manning;” and that he went to Hellerson, and said: “ My lawyer said if I get the indorsement on this note, he is willing to hold this note in his hand, so I could get a clear deed, and a quick business dealing with Mr. Manning.” He further testified that Fromme said he would hold the note, and that it would not be used upon any payment. He further testified that he did not give this note in part payment of the brewery, but that he did give a $2,000 note (indorsed by the same party), which was paid, and that this note of $2,000 was not any part of the price of the brewery. After the giving of these notes, however, Hammersen received a deed of the brewery. He further testified that at the time he gave the note to Fromme he told all about Hellerson’s indorsement. In answer to the question, “What did you tell him?” he answered: “I told him that Mr. Hellerson was a good friend of mine, and he indorsed this note, and the way he told me. Q. Did you tell him whether or not Mr. Hellerson had any consideration for indorsing it? A. No. Q. Did you tell him whether or not it was an accommodation indorsement for you? A. I told him what I said before; it was only given to be in the hands of Mr. Fromme to make business quicker. Q. Did you express to Mr. Fromme whether or not Mr. Hellerson was paid anything for indorsing it? A. No, sir. Q. Did you tell Mr.. Fromme in any way that Hellerson only indorsed this note out of friendship for you? A. Yes, sir; I did." It further appears in the evidence that both of these notes were brought by Manning to the plaintiff, to which he was indebted, and that the plaintiff, having inquired in regard to the responsibility of Hellerson, took the same in payment for a note of Manning for $5,000, which they held, and surrendered 500 ■shares of the Standard Brewing Company of Baltimore, which were held as collateral. Upon this state of facts the court directed a verdict in favor of the plaintiff.

It is urged that Mr. Fromme was the attorney of the bank, and that he was told that this notes was indorsed by Hellerson for no purpose whatever, as an accommodation to Hammersen. The parties have refrained from explaining what accommodation the indorsement of a note not to be used, and upon which no liability was to be incurred, could be to any party. It is entirely ■clear from the evidence in this case that Hammersen told nothing to Fromme except the fact that in this case that Hellerson was an •accommodation indorser. He does not say to Fromme that the note was not to be used, and that no liability was ever to be incurred upon it. But, assuming that he did, Fromme was certainly, in this transaction, not acting for the bank, but for Hammers.en, endeavoring to further Hammersen’s desire to get a deed -of the brewery, which he did receive upon the giving of these notes. They were handed over to Manning, and by Manning were taken to the bank, and given to it in exchange for certain shares of stock pledged by Manning as collateral. It is clear that in this part of the transaction Fromme was acting, not as the attorney for the bank, but for Hammersen. He was attending to Hammersen’s business, and not that of the bank; and whatever knowledge he had in regard to the origin of the note could not be imputed to the bank, because he was not acting for the bank. He did not receive the notes upon,the part of the bank, but, on the contrary, received them for the purposes of the transaction with Manning, handed them over to Manning, and Manning took them to the bank, which received them without any notice of this remarkable agreement that these indorsements were made simply for child’s play. We think, under these circumstances, there was no foundation for the claim that Fromme’s knowledge, if he had any, as to this remarkable contract, in regard to these indorsements, was to be imputed to the bank.

The judgment should be affirmed, with costs. •

All concur.


text:
    Stevens Voisin, App’lt, v. Commercial Mutual Insurance Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 5, 1895.)

    1. Evidence—Opinion.
    Where the testimony of a witness discloses that he is not sufficiently acquainted with the condition of a vessel, where she is liable to have been injured by worms, to express his opinion or judgment, all that it is competent for him to do is to state what he has seen in the course of the observations made by him.
    2. Same.
    The reception of an opinion §f a witness as to seaworthiness of a vessel was held, in this case, to be error on the grounds that the witness had not sufficient knowledge of the.condition of the vessel to justify the reception of his opinion.

      Appeal from a judgment, dismissing the complaint, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.

      Frederic B. Coudert, for ápp’lt; Treadwell Cleveland, for resp’t.
   Follett, J.

This action was begun August 28, 1882, to recover the sum of $3,500, with interest thereon from July 21,1882, damages alleged to have been sustained under a valued, voyage, marine insurance policy, issued by the defendant March 10,1882, whereby it insured “ Stevens Yoisin, on account of whom it may concern,” on merchandise valued at $29,500, laden on board the bark L. E. Gann, “at and from Tecolutla, Mexico, to New York.” The bark left Tecolutla March 30, 1882, and was abandoned off the coast of South Carolina, Aprd 27, 1882, and the plaintiff’s goods were lost. The defendant interposed four defenses: (!)■ That the vessel was unseaworthy; (2) that plaintiff had not'merchandise of the value or of the description stated and represented on board, and that it was shipped with the intent that the vessel should* never reach New York; (3) that the voyage was not prosecuted in good faith, and was not abandoned by reason of the perils insured against; (4) deviation, in unnecessarily and unreasonably delaying the bark at Tecolutla. This case has been twice before this court. 62 Hun, 4; 41 St. Rep. 884, and 67 Hun, 365; 51 St. Rep. 635, and the trial under review is the third one. On the first trial, as on the present, the issue was presented whether the bark was seaworthy when it sailed from Tecolutla. It. was asserted then, as now, that the hull was in an unseaworthy condition, but no complaint was made of any other part. The defects alleged to exist in the hull were below the water line, and caused by worms. On the first trial the plaintiff, to prove that the vessel was seaworthy, introduced the testimony, taken de bene esse, of A. Eandolph Tedford, the second mate of the vessel. He testified that he shipped as second mate at Cardiff, Wales, in September, 1881, made the voyage from that port to Yera Cruz, and served in that capacity until April 27, 1882, when the vessel was abandoned. The witness testified that at Yera Cruz he and the first mate went around the vessel in a boat several times, and examined the hull, finding two places that looked as though they might leak — one where two planks came together, and another by the side of a treenail; that they calked and plugged these places, and did not discover any other defect in the boat. On the first trial this witness was asked : “ Q. What was the condition of the ship* with respect to the staunchness of her hull and manning and general equipment ? ” This was objected to by the defendant’s counsel on the ground, among others, that the witness did not examine below the water line, and never examined her inside and out; that his statement as to the condition of the vessel was hearsay, and that he had no personal knowledge that would justify a conclusion. This objection was overruled, and the testimony of the witness received. The further question was asked: “ Q. Now, what was the condition of the L. E. Gann with respect to seaworthiness at the time you left Tecolutla?” This question was objected to on the same grounds, and the answer of the witness taken. Upon a review of that trial it was held, 62 Hun, 4; 41 St. Rep. 884, that the reception of this evidence was error, on the ground that the witness had not sufficient knowledge of the condition of the vessel to justify the reception of his opinion. It was held that the testimony of the witness disclosed that “ he was not sufficiently acquainted with the condition of the ship, where she was liable to have been injured by the worms, to express his opinion or judgment. All that it was competent for him to do was to state what he had seen in the course of the observations made by him.” On the present trial George W. Brown, called by the plaintiff, testified that he was an agent of the underwriters ; that he never saw the vessel until after the 1st of June, 1882, when she was lying at Norfolk, Ya. On his direct examination he testified to the condition in which he found the vessel and its cargo. Upon his cross-examination by the defendant’s counsel the following occurred:

“ Q. This vessel is stated to have left Cardiff in the fall of 1881, and to have arrived at Yera Cruz in the latter part of November, 1881, and to have laid there and at Tecolutla until the middle of March, 1882. You have stated that you found no copper or copper paint upon the vessel. State if, in your judgment, and from your observation of her at Norfolk, she was or was not seaworthy at the time she left Tecolutla. Mr. Goodrich: I object to that on the same grounds as heretofore, and as incompetent, irrelevant, and immaterial, and as calling for the opinion of the witness. Q. I don’t mean seaworthy as to her chronometer or provisions, nor spars, nor rigging, but as to her hull. (Same objection.) Mr. Cleveland: I will ask the question as to Tecolutla. A. The water at Tecolutla is bad; worms are so thick. What makes the worms thick in Tecolula is that it is at the confluence or mouth of the river, in what we call brackish water. That is one of the worst conditions for worms,—water mixed, or brackish water. I have had experience in the action of worms on wood at or near Tecolutla. I observed in logs that have broken away from rafts —logs of mahogany and cedar that have broken away from rafts —they have been wormed, and very bad after a short time, after drifting up on the bank, up on the beach. Q. This vessel lay at or near Tecolutla from, say, the 30th of January until the middle of March. What effect would the worms have on her bottom? A. They most decidedly would have eaten it. Q. Judging now from your experience with worms in tropical waters generally and at Yera Cruz and Tecolutla, and, judging from the facts that you saw at Norfolk, was this vessel, and the examination you made of her hull then,—was she, in your judgment, seaworthy or unseaworthy as to her hull when she left Tecolutla? (Objected to as incompetent, and calling for an opinion of the witness.) Q. Have you also had experience at Yera Cruz? A. Yes, sir. Q. This vessel is stated to have arrived in Yera Cruz in the latter part of November, 1881, to have there remained until about January 28, 1882, when she sailed for Tecolutla. She arrived at Tecolutla on or about January 30, 1882, and left Tecolutla on or about the ■21st day oí March, 1882. Judging from your experience generally— The Court: And assuming those facts to be true. Mr. Cleveland : Assuming those facts to be true, and judging from your experience generally of the action of worms on wood, in tropical waters, unprotected by copper or copper paint,—wood such as you found the bottom of the Cann to be composed of, mainly spruce,—and judging also from the facts which you observed from your examination of the hull of the vessel at Norfolk, and what you saw there concerning the condition of the hull, was or. was not the vessel, in your judgment, seaworthy as to her hull when she sailed from Tecolutla ? (Objected to as incompetent, and calling for the opinion of the witness.) Mr. Goodrich : I made the same objection as before, and the further objection that the hypothesis of that question is not sustained by the evidence. I also object to that question that they must confine their attention, so far as seaworthiness is concerned, to. the 10th of March, when that policy had its inception; and, unless this witness is enabled to give his opinion, founded upon the condition of the vessel at that time,—which he clearly cannot do,—his testimony is incompetent, and we object to any evidence of her unseaworthiness, except at Tecolutla. Her condition when she sailed from Tecolutla doesn’t affect this case, except when it relates back. I read the answer that 1 the vessel, at the time of so leaving Tecolutla, was not seaworthy, nor duly manned or equipped.’ The Court I think I will allow that to be answered. (Exception.) A. I don’t think that she was. The Court: Assuming these facts to be true, and judging from your experience generally of the action of worms on wood, in tropical waters, unprotected by copper or copper paint,—wood such as you found the bottom of the Cann to be composed of, mainly spruce,—and judging also from the facts which you observed from your examination of the hull of the vessel at Norfolk, and what you saw there concerning the condition of the hull, was or was not the vessel seaworthy as to her hull on the 10th of March, 1882 7 (Same objection. Objection overruled. Exception.) A. No, sir. Mr. Goodrich: We have the same objection. The Court: Yes.”

The second mate and George W. Brown were asked for an opinion, based on the same undisputed facts, with a single exception, about to be stated. In the case of the mate, who had personal knowledge of the facts, it was held that they were insufficient to justify an opinion as to the seaworthiness of the vessel at Tecolutla. In the case of Brooks it was held that his opinion as to the condition of the hull of the vessel at Tecolutla was competent. The only additional fact relating to the condition of the hull testified to by the last witness was that he found worm holes in it at Norfolk, in June, 1882. Whether these holes were eaten before or after the vessel left that port the witness did not assume to know. Undisputed facts, which are insufficient upon which to found an opinion, do not become sufficient by being incorporated into a hypothetical question.

The defendant called William W. Brooks, the captain of the L. E. Cann, who testified that he received $6,500 for wrecking her, and it was sought to connect the plaintiff and the consignors of his goods with a conspiracy to have her cast away. The captain testified without apparent shame to his own infamy, stating the details of the corrupt bargain, the sums paid to him, and when and how paid. On the present trial he was asked:

“Q. In your judgment, was she seaworthy when she left Tecolutla?”

He had testified that he had made no examination of her at Tecolutla or at Vera Cruz. The question was objected to as incompetent, irrelevant, and immaterial, and also that it appeared that he had not examined the vessel. These objections were overruled, and the witness answered :

“ I can only speak of the condition of her hull from what I suppose it would be from being down in the hot weather five months, with no copper on her, considering her wormy condition at Cardiff. She was slightly touched with worms at Cardiff. The Court: I think I will let this stand. I will let the answer be read. (Exception.) A. As far as her bottom was concerned, no, sir.”

Thus this witness was allowed to give his opinion of the seaworthiness of the vessel in respect to its bottom,—the only defect claimed,—founded on less knowledge than the excluded opinion of the mate, except he saw her bottom at Cardiff, after which he sailed for Vera Cruz, without, so far as it appears, making any re-' pairs to the bottom, or even painting it. He testified that when at Cardiff she was on the ways about eight hours, that he examined her bottom, that it was bare of pajnt, that she bad no metal, and along the edge of the seams and along the bottom it was touched with worms. So far as it appears, this vessel had never been in southern waters before her voyage from Cardiff- to Vera Cruz. The answer of this witness was not based upon a hypothetical question, and under the rule laid down in 62 Hun, 4; 48 St. Rep. 884, which is the law of this case, his opinion was clearly founded on insufficient knowledge of the condition of the bottom of this vessel when she lay at Tecolutla. Following the decision of this court before cited, we are compelled to hold that the court erred in receiving the opinions of these witnesses as to the seaworthiness of the vessel at the part of Tecolutla. In view of the conclusion to which we have already come on the questions,hereinbefore discussed, it is not necessary to consider the other questions'raised.

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

All concur.


text:
    Agnes Jones, Resp’t, v. John Jones, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 15 1895.)

    Separation—Revocation.
    The fact that parties to a decree of separation have lived together as husband and wife after the entry of such decree, does not operate to revoke it. In such case, there must he an order of revocation from the court which rendered it.

      Plaintiff appeals from so much- of an order as denied a motion to punish defendant for contempt for failure to pay alimony, and defendant appeals from so much of said order as awarded plaintiff alimony from August 1, 1895.

      Albert Day, for pl’ff; Ralph II. Raphael, for deft.
   Parker, J.

Both parties appeal from the order under review, which is the outcome of a motion on the part of the plaintiff to punish the defendant for contempt of court in refusing to pay alimony awarded by a judgment adjudging that the plaintiff and defendant be separated from bed and board forever. The judgment was granted, and entered in this county on the 6th day of June, 1890, and the defendant never made any payment thereunder to the plaintiff. From the affidavits submitted on the motion it appeared that the plaintiff, shortly after its entry, went to the defendant’s home in New Jersey, and lived there for a considerable length of time. The defendant claims that his wife freely returned to him, and asked to be taken back ; while she asserts that she was induced to go to his home in New Jersey by a letter received from the defendant, in which he asked her to call, and receive payment of the alimony due to her under the decree; that, upon her calling, he kneeled down, and begged her to return to him. After a time, it seems, they found themselves unable to get on together, and the husband then instituted proceedings in New Jersey for a separation, which resulted in the dismissal of his petition. The learned judge at special term was of the opinion that, inasmuch as the husband actually provided for his wife and children during some considerable portion of the time, and was compelled to her costs and alimony in the proceeding instituted by him in the courts of New Jersey, considered in connection with the fact that he is a man without means, ought to be accepted by the court as a sufficient reason for refusing to punish him for contempt because of his failure to pay, in addition, the sum awarded by the decree.

On examination of the affidavits induces us to approve of the manner hi which the special term exercised its discretion. The defendant, however, insisted that the legal effect of the return of the plaintiff to the defendant’s home, followed as it was by their living together for quite a period of time, was to annul the decree of separation, and hence plaintiff’s motion should be denied, on the ground that there was no decree in existence upon which to base the motion. The court held the decree to be still in force, and that plaintiff should be paid alimony after August 1, 1895, in accordance with its provisions. From so much of the order as recognizes the judgment of separation to be in full force and effect, the defendant appeals. The question presented by such appeal, therefore, is whether the fact that the parties lived together as husband and wife after the entry of the decree operated to revoke it. Section 1767 of the Code of Civil Procedure provides that:

“Upon the joint application of the parties accompanied with satisfactory evidence of their reconciliation, a judgment for a separation forever, or for a limited period, rendered as prescribed in this article may be revoked at any time, by the court which rendered it, subject to such regulations and restrictions as the court thinks fit to impose.”

This provisions was taken from the Revised Statutes, and was that enacted in 1828. 2 Rev. St. p. 147, § 56. Prior to that time there was no statute in this state on that subject. The defendant's contention is that the ecclesiastical law of England, so far as it related to the subject of divorce, became a part of it of common law, and therefore was, by the constitution of 1777, made a part of the law of this state, subject, nevertheless, to such alterations as, the legislature should make. Hence, at the time of the enactment of the statute to which we have referred, 'it was the law of this state that subsequent cohabitation and reconciliation avoided and rendered of no effect a decree of separation, as the statute in terms was not exclusive. His further contention is that the remedy provided by the statute was cumulative with the one already existing at common law. This general question came before Chancellor Sanford in 1825 in the case of Burtis v. Burtis, Hopk. Ch. 557, which was an action to annul a marriage contract on the ground of the impotency of the husband, which was not at that time authorized by the statutes of the state. The plaintiff’s contention was, as is the defendant’s here, the law of this state. The learned chancellor reached the conclusion that the law of England concerning divorce was never adopted in this state; that our statutes concerning divorce are original regulations, which do not adopt or introduce the ecclesiastical law of England. In the course of his argument he asserted that from the time when New York became a province of England down to the time of its becoming a state there were but four divorces, and these were granted by Gfov. Lovelace,—one in 1670, and the other three in 1672; that the colony never had a court possessing jurisdiction of matrimonal causes, or power to grant divorces; and that its legislature never enacted a statute defining the causes of divorce, or authorizing divorce. And, reasoning from these and other facts considered, he reached the conclusion that the law of England concerning divorce and matrimonial causes was never adopted in fact or in practice, and never became the law of the colony. As the constitution of 1777 provided that “ such parts of the common law and of the acts of the legislature of the colony of New York as together did form the law of the colony * * * shall be and continue the law of this state subject to such alterations as the legislature shall make concerning the same,” his conclusion necessarily followed that the law of England concerning divorce and matrimonial actions does not form a part of the law of this state. This case, so far as we have been able to ascertain, has never been criticised by the courts, and it was followed in Campbell v. Crampton, 18 Blatchf. 150, 160. In Barrere v. Barrere, 4 Johns. Ch. 187, Chancellor Kent, in an action for a separation, carefully considered what period, and upon what terms and conditions, a separation should be decreed. The necessity for its consideration was predicated upon the provisions of the statute which authorized the chancellor to decree a separation forever “ or for a limited time,” or “ to make such other decree ” as the case may require. And the importance of a right disposition of it, not only from the-standpoint of the parties directly involved, but also from that of the public, which is always treated as a third party in matrimonial actions, was carefully considered as aids to that wisest possible conclusion at which he aimed. He referred to the practice in such cases in England, France, and Holland, making special note of the fact that while the decree of divorce a mensa et thora, in England, is said to be either for a time or without limitation of time, yet by the form of the decree the separation is only until a reconciliation. He followed the discussion of the authorities upon the practice in such cases in the several countries to which we had referred, with the following observations:

“ My inference from this review is that by the canon law of England, and of the nations on the continent where the canon law prevails, a time for reconciliation is left open to the parties-upon these qualified divorces from bed' and board; and the indulgence is found in sound policy, and dictated by benevolence. The question, then, arises whether the decree ought not to pursue the formula given in 0 ugh ton (Ought. Ordo Judi. tit. 215, § 4), and declare a separation until the parties should be reconciled to> each other. I assume that I have competent power to make such a decree 1 under the statute. * * * ’ But such general decree seems to be of too loose a texture, and to be destitute of the requisite sanction. It separates the parties until they are reconciled, and leaves that event open to dispute. * * * I prefer that the sentence. shall be binding and effectual until the parties-shall have applied to the court, and received upon 'just grounds a. judicial recognition of the certainty and surety of their reconciliation.”

He directed that the decree to be entered should provide:

“ That the plaintiff and defendant should be separated from bed and board forever; provided, however, that the parties may, at-any time hereafter, by their joint and mutually free and voluntary act, apply to the court for leave to be discharged from this decretal order.”

This decree, which the learned chancellor made as a just exercise of the power conferred upon him by the statute, seems to have so favorably impressed the legislature that nine years thereafter they incorporated the practice adopted by him into a statute, and it has continued to be a law of this state ever since.

We think that costs should not have been allowed to the plaintiff, nor should the concluding paragraph of the order have been inserted, which reads as follows:

“And without prejudice to proceedings to collect or secure the back alimony, by proceeding other that with the contempt proceeding.”

That question was not before the court, and it was powerless, therefore, to make any order affecting the rights of the parties in that respect.

The order should be accordingly modified, and, as so modified, affirmed.


author: Per Curiam.

text:
    Anna S. Seguine, App’lt, v. George Spaeth, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Evidence—Pakol.
    Where a written contract purports to contain the obligation of one party only, paroi evidence is admissible to show the undertaking of the other party.
    2. CONTRACTS—CONSIDEBATION.
    Where the work on the construction of a building has been suspended for want of funds, and in consequence of liens, judgments, etc., on the building, the making, by a third person, of such arrangements as will allow the work to proceed, is a sufficient consideration for a promise to pay therefor.
    Appeal from a judgment for defendant, rendered by the justice without a jury.
    ■ Quincy, Wendel & Robeson, for app’lt; Arthur J. Westermayer, for resp’t.
   Per Curiam.

The plaintiff sued to recover for certain commissions or payments claimed to have been earned by her assignor, John L. Douglas. The first cause of action was for five per cent, on $625 ; the second cause of action was for five per cent, on $400; and the third cause of action for five per cent, on $650.

With respect to the second and third causes of action there appears to have been a conflict of fact, upon which we will not pass ; but with regard to the first cause of action there was no such dispute. The agreement of the defendant to pay the plaintiff’s assignor was embodied in a written contract, signed by the defendant. The writing was not signed by plaintiff’s assignor, and does not purport to contain his obligation. It was therefore proper to show upon the trial, by paroi, what his undertaking was. Curtis v. Soltau, 34 St. Rep. 767; Tocci v. Arata, 36 id. 42 ; Wise v. Rosenblatt, 12 Supp. 288. He testifies : “All I had to do under my contract was to make such arrangements as would allow the work to proceed thereon.” And this he reiterated afterwards. The testimony disposes of any contention that there was no valid contract proved under the first cause of action because of any lack of consideration on the part of Douglas. The ground upon which the claim of the plaintiff upon this contract was disallowed does not appear from the record. If the plaintiff was not bound to do more than make arrangements as to allow the work to proceed, and he did so, he had performed the contract upon his part, and was entitled to recover. If his obligation was to do more, the defendant should have been permitted to show it. But he was not permitted to contradict plaintiff’s evidence on that point; for, when he attempted to show what Douglas’ statements or promises were at the time the writing was signed, such evidence was excluded. Upon a new trial any defense based upon the evidence can be considered. There was evidently a mistrial upon this cause of action,- at least ; and the whole judgment must be reversed, and a new trial ordered, with costs to abide the event.


author: Bischoff, J.

text:
    Western National Bank of the City of New York, Resp’t, v. William W. Flannagan, App’lt.

      (New York Common Pleas, General Term,

      Filed November 4, 1895.)

    1. Bills and Notes—Holder for value.
    The pledgee’s surrender of a matured note with the collaterals therefor and the extension of the time of payment of the debt, in consideration for the pledge of a new note as security for the debt, are a sufficient consideration to constitute the pledgee a holder of the last-mentioned note for value.

      2. Evidence—Presumption—Note.
    In an action on a note by the pledgee thereof for value against an accommodation maker, the presumption is that the pledgee acquired the note in the regular course of business, for value and in good faith; but the testimony of the payee that, at the time of the delivery of the note in suit to the pledgee as collateral security for the payment of his own note, he apprised the officers of the pledgee of the facts that it was accommodation paper and its uses restricted by the maker to a discount, taken with the testimony of the defendant’s witness to the contrary, is sufficient to raise an issue of fact with regard to these matters, and the decision of the trial court thereon cannot be disturbed on appeal.
    3. Appeal—Direction of verdict.
    Where both parties ask for a direction of a verdict, they authorize the court, in the place of the jury, to determine all disputed questions of fact.
    4. Same—Harmless error.
    Error cannot be predicated on the denial of a motion to direct a verdict for defendant, coupled with the inconsistent request that the question be submitted to the jury.
    5. Evidence—Notes. '
    In an action on a note against an accommodation maker, where the materiality of the restrictions on the use of the note imposed by the maker cannot be controverted by the plaintiff, evidence offered by the maker as to their materiality is inadmissible.
    6. Trial—Offer of evidence.
    The rejection of an offer to prove everything set forth in the answer is proper, where the offer includes matter which is inadmissible.

      7. Evidence—Opinion.
    In an action on a note against the accommodation maker by the pledgee, who takes it in the regular course of business, for value and in good faith, the testimony of defendant that the note was given to the payee for the purpose of having it discounted, is properly excluded, as a conclusion.
    ,8. Same.
    In such case, defendant cannot be asked whether the payee had authority to use the note for any other purpose than to have it discounted, nor can the . payee be asked for what purpose the note was delivered to him, as both questions call for a conclusion.'
    9. Evidence—Declarations.
    In an action by a pledgee of a note against the maker, a conversation between the maker and payee thereof, not limited to one had before the note was transferred to the plaintiff, is incompetent.
    Appeal from a judgment of the general term of the city court, affirming a judgment'for plaintiff rendered on a verdict directed by the court. "

      Dallas Flannagan, for app’ltCharles F. Hughes, for resp’t.
   Bischoff, J.

— The appeal being from a judgment of the city court of New York, we can reverse only for an error of law which is presented by due exception. Paige v. Chedsey, 4 Misc. Rep. 183; 23 N. Y. Supp. 879; Meyers v. Cohn, 4 Misc. Rep. 185; 23 N. Y. Supp. 996. The note in suit was made by the defendant, FJannagan, to the order of one Pinkharn, payable twelve months after date ; and upon the trial it was conceded that before the maturity thereof the note was indorsed by the payee, and by him delivered to the plaintiff as collateral security for the payment of his own note to the order of the plaintiff, and payable sixty days after date; the last-mentioned note having been given and accepted on the day of its date in exchange for the one first mentioned and Pink-ham’s matured note, which latter, with the notes of certain other persons, held by the plaintiff as collateral security for the payment thereof, were surrendered to him at the time. Viewing the transaction, therefore, as no more than a pledge of the note in suit to secure the pledgor’s antecedent indebtedness to the pledgee, it remains that the latter’s surrender of the, matured note with the collaterals therefor, and the extension of the time for the payment of the debt, were sufficient consideration to constitute the pledgee a holder of the first-mentioned note for value. Justh v Bank, 56 N. Y. 478; Bank v. Penfield, 69 id. 502; Phoenix Insurance Co. v. Church, 81 id. 218; Mayer v. Heidelbach, 123 id. 332; 24 St. Rep. 276; Traders' National Bank v. Parker, 130 N. Y. 415 ; 29 St. Rep. 373.

For the defendant, Flannagan, it was asserted by answer that the note in suit was given solely for the accommodation of the payee, and its use by the latter restricted by mutual understanding to the purposes of discount, the avails to be turned over to the payee, and to be by him applied towards the payment of his debts generally, and the demand of the Bank of Alleghany, of Clifton Forge, Va., against him, in particular ; and that the plaintiff was aware of 'the character of the note, and the restrictions which were iniposed by the maker upon its use by the payee, when the latter delivered it to the plaintiff for the purposes hereinbefore stated. It cannot be plausibly urged that the pledge of a note having twelve months to mature, as collateral security for the payment of another note maturing in one-sixth of the time, is in any sense a discount of the former, or an advance of the amount, less an agreed compensation, for the specified time. Hence, if the facts pleaded as a defense had been established upon the trial, they would, beyond all doubt, have defeated the plaintiff’s right of recovery, however immaterial the diversion of the note from the use intended by the maker might seem to others. Benjamin v. Rogers, 126 N. Y. 70; 36 St. Rep. 393; U. S. Nat. Bank v. Ewing, 131 N. Y. 506; 38 St. Rep. 777. To substantiate the defense, and thus to impugn the good faith of the plaintiff as the holder of the note in suit, the defendant, called as a witness in his own behalf, deposed that the note was given by him to the payee for the latter's accommodation, and upon the express condition that it should be discounted by the plaintiff, and the avails used by the payee to obtain relief from financial distress, upon making gradual payments of his debts. Pinkharn, the payee, as a witness for the defendant, testified that, at the time of his delivery of the note in suit to the plaintiff as collateral security for the payment of his own note, he apprised. Shyder and Ives, two of the plaintiff’s officers, of the facts that it was accommodation paper, and its use restricted by the maker to discount. This comprised all the evidence for the defendant, and the same was not directly challenged by the plaintiff. Nevertheless, the presumption that the plaintiff acquired the note in the regular course of its business, for value and in good faith, Underh. Ev. p. 346, § 280; Ocean Nat. Bank, v. Carll, 55 N. Y. 441; Canajoharie Nat. Bank v. Diefendorf, 123 id. 191; 33 St. Rep. 389, taken with the testimony of the defendant’s witnesses to the contrary, was sufficient to raise an issue of fact with regard to those matters. Kahn v. Lessee, 43 St. Rep. 149; and with the weight of the evidence we have no concern, our province upon this appeal being limited to the inquiry whether there was any evidence sufficient to support the recovery. Paige v. Chedsey and Meyers v. Cohn. Besides both witnesses for the defense were interested in the event of the action—the defendant, as the maker of the note, directly so, and Pinkham indirectly, for upon defendant’s escape from liability to the plaintiff his own release from liability to the defendant was assured; so, also, Pinkham, from a sense of his obligation to the defendant, might be suspected of bias in favor of the latter; and, lastly, the defense, and Pinkham’s testimony in particular, were affected with some degree of intrinsic improbability of truthfulness. Was it likely that the plaintiff would part with value upon the faith of the defendant’s note, with knowledge that the note was not available for the purpose for which it was accepted ? The testimony of both witnesses, therefoz’e, was open to discredit, though such testimony was not directly contradicted, or the witnesses’ characters impeached, and the evidence inconclusive. Pelly v. Onderdonk. 61 Hun, 314; 40 St. Rep. 648; Carbon Works v. Schad, 38 Hun, 71; Underh. Ev. p. 552, § 354; and authorities collatedin note to Effray v. Masson, 28 Abb. N. C. 210 ; 45 St. Rep. 296_

_ Both parties, having asked for the direction of a verdict, thereby authorized the court, in place of the jury, to determine all disputed questions of fact. Provost v. McEncroe, 102 N. Y. 650; Kirtz v. Peck, 133 id. 222; 22 St. Rep. 733. And in support of the verdict which was directed for the plaintiff, we must assume that all such questions were determined in the plaintiff’s favor. Sutter v. Vanderveer, 122 N. Y. 652; 34 St. Rep. 211. Rejecting the testimony of the defendant’s witnesses, there was no evidence to taint the validity of the nqte in the hands of the payee, and, agreeably to the presumption that the note was acquired by it in good faith, the plaintiff was entitled to recover. Mechanics' and Traders' Bank v. Livingston, 6 Misc. Rep. 81; 55 St. Rep. 394. For the reasons stated, therefore, error is not apparent from the exceptions which were taken to the denial of the defendant’s motion for a verdict in his favor and the direction of a verdict for the plaintiff.

After the verdict was directed, counsel renewed his motion for the direction of a verdict for the defendant,' coupling with it the inconsistent request that the question of the plaintiff’s good faith be submitted to the jury; but, as one of the requests (the direction o£ a verdict for the defendant) was denied upon sufficient grounds, the exception taken to the denial of both requests is unavailable for the predicament of error. Bosley v. Machine Co., 123 N. Y. 550; 34 St. Rep. 277.

No error appears from the exceptions taken to the trial court’s exclusion of evidence. The answer set forth certain matter which tended to show that the alleged restrictions upon the use of the note by the payee were material to the defendant. The materiality of the restrictions, however,'was not open to controversy on the part of the plaintiff. Benjamin v. Rogers; Bank v. Ewing, supra. Hence evidence of the matter alluded to was inadmissible.

The rejection of the offer of the defendant’s counsel to prove “ everything ” set forth in the answer was proper, because the offer included matter which was inadmissible. Bosley v. Machine Co., supra.

Defendant’s testimony, “ This note was given to Mr. Pinkham for the purpose of having it discounted,” was clearly a conclusion; and the following question addressed by the defendant’s counsel to the same witness called for the like objectionable testimony: “ State whether Mr. Pinkham had authority to use that note for any other purpose than to have it discounted.” The same is to-be said of the questions asded of the defendant’s witness Pinkham as part of the latter’s direct examination: “When that note was made and delivered to you, will you state for what purpose it was delivered ? ” “ State whether Mr. Ives knew or was informed that that was -an accommodation note.” With regard to the last question, the witness was permitted to and did state what he said to Mr. Ives touching the character of the note. Another question asked of Mr. Pinkham by the defendant’s counsel, “Will you state the conversation you had with Mr. Flannagan touching the use to which it (the note) was to be put? ” was objectionable be•eause the conversation was not limited to one had before the note was transferred to the plaintiff. And two further questions upon the defendant’s direct examination, “ Will you state all of the facts and circumstances which occurred at the time you delivered the note ? ” “ State all the facts and circumstances under which the note was given,”—were properly excluded, because, if allowed, the witness would have been permitted to testify to wholly irrelevant and immaterial matter, he having previously testified to the conversation between him and the payee at the time of the delivery of the note in suit.

The judgment should be affirmed, with costs.

All concur.