text:
    Donald Mackay, as Executor, etc., Resp’t, v. Rowland B. Dennington, as Administrator, etc., Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    ■Judgment—Correction.
    A motion to correct the final judgment will not lie, when there is no inconsistency between it and the interlocutory judgment and no mistake therein. •
    Appeal from an order, denying a motion to correct the final judgment.
    Gilbert W. Bowne died November 27, 1853, leaving a will, which was duly probated, by which certain trustees, therein .appointed, were directed to pay the gross income on $20,000 to JaneE. Jessup during her life ; but instead of obeying such direction they deducted the taxes assessed on the sum invested, and ■paid to her the gross income, less such taxes. An action was brought, in which it was, by an interlocutory judgment entered Eebruary 16, 1872, adjudged, among other things: “(3) That the ■defendant Jane E. Jessup was and is entitled to the gross income ■of the $20,000 directed by the will of Gilbert W. Bowne to be invested for her, free and clear of any and all deductions or charges for taxes paid or to be paid on the principal sum invested or tobe invested. * * * (8) And it is further ordered, adjudged, and •decreed that the said Rhilo T. Ruggles ascertain and report how much or what amount is due and owing to the said Jane E. •Jessup, and ought to be paid to her by the said trustees, for or on account of taxes on the principal sum or investment which has produced or is producing such annuity.” July 23, 1881, Philo 'T. Ruggles, the referee appointed by the interlocutory judgment, filed his report, of which, so far as it relates to the rights of Jane E. Jessup, the following is a copy: “ Twenty-Eighth. I further report that, pursuant to the directions contained in said interlocutory decree, I have taken an account of the amount due and ■owing to the defendant Jane E. Jessup, and which ought to be paid to her by the said trustees for or on account of deductions they have made from her annuity for or on account of taxes on the principal sum or investment which was produced or is producing such annuity, and final and report that the aggregate sum so deducted from her annuity for or on account of taxes on the principal sum or investment is the sum of $6,265.20. Such.account, showing the particulars of such deductions, is hereto annexed, and marked ‘Schedule K.’ Such schedule shows also the amount of interest accrued on the several sums so deducted from said annuity for taxes to June 2, 1881, amounting to $7,298.15.”
    Statement showing payments for taxes (exclusive of income tax) charged to account of Jane E. Jessup (and the $20,000 trust fund), with interest computed from date of payment to January 1, 1880, at 7 per cent., and from January 1, 1880, to June 2, 1881, at 6 per cent.

    Afterwards an application was made on the interlocutory judgment, the report of the referee, and the exception thereto, for a final judgment, and, after hearing counsel for all of the litigants, it was, by a final judgment entered July 3, 1894, among other things, adjudged as follows: “It is ordered, adjudged, and decreed that the said report of Philo. T. Ruggles be, and the same is hereby, ratified and confirmed, and that all the exceptions to said report by any of the defendants be, and the same are hereby, overruled. * * * And it having been ordered, adjudged, and decreed by the interlocutory judgment herein entered on the 16th day of February, 1872, that the said Philo. T. Buggies,'the referee, ascertain and report how much or What amount is due and owing-to the said Jane E. Jessup, and ought to be paid to her by the said trustees, for or on account of deductions they had made from her annuity for or on account of taxes on the principal sum or investment which has produced or was producing such annuity ; and it appearing by the said report of the referee, bearing date the 1st day of July, 1881, that the amount due and owing to the defendant Jane E. Jessup, and which ought to be paid to her by the said: trustees, for or on account of deductions they had made from her annuity for or on accountof taxes on theprincipal sum or investment which has produced or was producing said annuity, that the said aggregate sum so deducted from the annuity was six thousand two hundred and sixty-five dollars and twenty cents: It is ordered, adjudged, and decreed that the defendant Rowland B. Dennington, as administrator with the will annexed of JaneE. Jessup, is entitled to recover, and that be do recover, from the estate of Gilbert W. Bowne the said sums so deducted for taxes without interest,, and that the same be paid to him by the United States, Trust Company of Hew York, the substituted trustee, out of the-principal of said trust fund of twenty thousand dollars, or out of any accumulated interest thereon, held or received by said company. * * * And it also further appearing that the said Jane E. Jessup died in the city of Brooklyn on the 13th day of December, 1886, without issue, leaving a last will, which was duly admitted to probate by the surrogate of the county of Kings, and the executor therein named died, after having qualified as such, and Rowland B. Dennington was appointed administrator with the will annexed of the said Jane E. Jessup ; arid it also further appearing that during the lifetime of the said Jane E. Jessup, by an order made by the supreme court, at a special term thereof, on the 23d day of November, 1886, the United States Trust Company of Hew York was appointed trustee in the place and stead of Harm an us B. Durvea and John Beveridge, deceased, the latter the surviving trustee of and under the will of Gilbert W. Bowne, deceased, of the said trust fund of twenty thousand dollars for the said Jane E. Jessup.” In June, 1894, the administrator of Jane E. Jessup moved on the interlocutory judgment, the report of the referee, and the final judgment at special term for an order that the final judgment be corrected so that the representative of Jane E. Jessup should be adjudged entitled to recover, in addition to the $6,265.20, the amount deducted for taxes, the amount ($7,298.15) of the interest on the sums paid for taxes, as shown by the report of the referee. This motion was denied, and the administrator of Jane E. Jessup appeals.

      E. T. Rice, for app’lt; Joshua M. Van Cott, for resp’ts.
   Follett, J.

It is not adjudged by the interlocutory judgment that Jane E. Jessup was entitled to recover interest on the amounts paid by the trustees for taxes on the trust fund and deducted from the annual payments made to her. That question was left for determination on the coming in .of the report. The referee had no authority to determine any question of law, and he did not assume to decide that Miss Jessup was entitled to interest on the sums paid for taxes. He simply reported the sums paid, the dates when paid, the interest on these sums, and left it with the court to determine by the final judgment whether interest should or should not be allowed. By the final j udgment it is determined that the representative of Miss Jessup is not entitled to interest on these sums. There is no inconsistency between the' interlocutory and final judgments, and there is no mistake which can be corrected on motion. The only way that the decision of the special term, embodied in the final judgment, can be reviewed, is by an appeal from that judgment. The order should be affirmed, with $10 costs-and disbursements. All concur.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Evelena Dunning, Resp’t, v. Edgar F. Dunning et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Dower—Pledge—Redemption.
    Pledged property, bequeathed in lieu of dower, with direction to be redeemed from the pledge, will not be required to bear its proportional part of the cost of redemption or debts of testator.
    2. Legacy—Pecuniary.
    A bequest, which provides for the payment of the amount represented by certain bonds and mortgages, rather than the transfer of the bonds and mortgages themselves to the legatee, is not a specific, but a pecuniary, legacy.
    3. Same—Charge—Enforcement.
    An action in equity, to declare and enforce the lien of a legacy charged on land, will lie.
    4. Same—Debts.
    In such action, payment of the testator’s debts out of the proceeds of such lands cannot be directed.
    Appeal from a judgment in favor of plaintiff, and from an -order granting an extra allowance.

      A. Britton Havens and H. A. Brann, for app’lts; William G. Bussey, for resp’t.
   Parker, J.

William Dunning died July 6, 1891, leaving, him surviving, his widow, this plaintiff, and three children, all of •full age—Lillie E. Henderson, Edgar F. Dunning, and Hattie 0. Chase. By his last will and testament, which has been duly probated, he devised and bequeathed to his wife, in lieu of dower, -certain property, including 114 shares of the Consolidated Gras Company’s stock, which is specially referred to in the eighth -clause of his will, which is hereinafter quoted in full. Prior to his death he conveyed to his wife real estate referred to in the devjse to her, and transferred to her the personal property referred in the bequest, with the exception of the furniture in the house in which they resided, the gas company stock, and $5,000 in cash. The latter constituted the only property she received under the bequest in lieu of dower. To his daughter Hattie O. Chase he devised three houses and lots; to his son, Edgar F. Dunning, two houses and lots; and to his daughter ¡Lillie E. Henderson, three houses and lots; and to his three children jointly a block of ground bounded by 130th street, 131st street, 12th avenue, and the Hudson Eiver Eailroad. By the second clause of the will he charged the payment of the $5,000 legacy left to his widow upon each of the devises and bequests made to his three children, and upon them as his legatees and deviseds, and upon the share of each of them in the estate. Shortly after the will was probated, the devisees upon whose devises this sum was charged paid to her the amount of this legacy with interest. The seventh and eighth clauses of the will, which are mainly the cause of this litigation, read as follows:

“ The. three thousand and five hundred dollars of bonds and mortgages made tome by my daughter LillieE. Henderson, and now due and owing to me, I give and bequeath to my wife, Evelena, together with all interest now due orto become due thereon; and I hereby charge the payment thereof by my daughter Lillie E. Henderson upon the devises and bequests therein made by me to her, and declare the same to be subject thereto.

“ As to the time of the executipn of this, my will, the 114 shares of the Consolidated Gras Company’s stock hereinbefore bequeathed to my wife is pledged with C. A. Harned & Co., brokers, as margin on account of the stocks they are carrying for me. It is my will, and I hereby direct, that in case the said 114 shares of the stock so pledged shall become in any way involved ' or incumbered, or shall so remain, or shall have been disposed of upon such pledge or otherwise before or after I die, that then the same shall be redeemed and delivered to my wife; and, in case the said 114 shares aforesaid shall have been sold upon pledge, I hereby direct that 114 shares of the same stock shall be procured in place thereof; and, in either event, the said 114 shares of stock so redeemed or procured shall be delivered to my said wife, for her sole use and benefit. And that all the costs of such redemption or of the purchase of new shares for the substitution shall be a charge upon and against my three aforementioned children and their shares in the devises and bequests in my real and personal estate under this my will, one-third thereof to each of my three children.”

The executors filed an inventory ón December 16, 1891. This-inventory showed a balance of cash belonging to the testator of $342.53. Also of furniture, etc. (devised to the widow under the second clause in the will in lieu of dower), appraised at $3,-500. The mortgages (the amount due on which, and interest, was devised to the widow, and charged upon real estate, by the seventh clause of the, will) were appraised at $4,207.74, and a large quantity of stocks and bonds, amounting to abtiut $32,000-(including the gas stock devised to the widow under the second and eighth clauses of the will). All of the stocks and bonds were pledged by the testator for money advanced, amounting to $28,-327.70. All of these stocks and bonds were sold except the gas. stock, and $23,118.75 was realized from the sale and paid to the brokers, leaving the gas stock pledged for a balance of $5,213.95. By mutual consent of all parties the firm of Randolph & Randolph paid the balance due on the pledge, and substituted themselves in the place of Harned & Co., as pledgees. This gas stock still remained, at the time of the commencement of this action, in the hands of Randolph & Randolph, subject to the payment of,,$5,213.95. with interest. The $3,500, with the interest thereon, left to the plaintiff by the seventh clause of the will, was collected by the executors from Lillie E. Henderson, the executors and the plaintiff signing a certificate that the amount had been paid, and the mortgage satisfied, the plaintiff understanding at the time that the money was being collected for her. She demanded the money of the executors, but they did not pay it over to her. The executors, have advertised for claims against the estate, and the total amount of claims presented and accepted amount to $2,957.03, which consist chiefly of charges for funeral expenses and medical services, outside of a note for $1,500. They have no moneys in their hands whatever except the moneys received by them from Lillie E. Henderson in payment of the legacy given to the plaintiff, and charged upon the devise to her. The executors have therefore been unable to redeem and deliver to the plaintiff the Consolidated Gas Stock, as by the will they were directed; hence this suit, the principal object of which is to compel redemption of the gas stock by the defendants Dunning, Chase, and Henderson, upon whose devises such redemption is sought to be charged by the will; and to compel the executors to pay over to the plaintiff the amount of her legacies under the seventh clause of the will, which they received from Lillie E. Henderson, and to have the furniture declared exonerated from liability for the debts.

Bearing in mind the eighth clause of the will, it will be readily observed that the contingency contemplated by it which should charge upon the devises and bequests to his children of all the cost of redemption of the 114 shares of Consolidated Gas stock, or, in the event of redemption being impossible, the purchase of new shares for the plaintiff, has happened. The stock was pledged with C. A. Harned & Co., brokers, at the time of testator’s death, as margin for him, and was incumbered to the extent of over $5,000, and it still continues to be incumbered to that extent. The executors have had at no time in their possession funds applicable to the redemption of such stock, and they have failed to provide the necessary funds not through any neglect of duty on their part, but because of their inability to do so. In view of the-positive language of the will charging the costs of the redemption of this stock upon the devises to the three children, the acceptance-of the devises by them, and the further fact that there is no other fund or estate to bear such burden, the conclusion seems inevitable that it is the plaintiff's right to have the cost of such redemptian adjudged to be a charge upon property devised to the children, and it decreed to be sold for the purpose of securing the necessary funds with which to effectuate such redemption. The contention that this stock, when redeemed, should bear its proportion of the debts of the testator, is not well taken, for the reason, if there were no other, that, the bequest having been made and accepted by the plaintiff in lieu of dower, she holds the same by right of purchase. Nor do we see any reason for differing with the learned trial court in its conclusion that it was the intention of the testator that his widow should receive the legacy of $3,500 bequeathed to her by the seventh clause of the will at all events, and that Lillie E. Henderson should not receive the real estate devised to her unless it was paid to his widow in accordance with his request. The clause admits, and, indeed, we think requires, the construction that this legacy was not a specific legacy, but a pecuniary one, charged upon land. The face value of the mortgage was $3,500, and covered lands of Lillie E. Henderson ■other than those devised to her by the will. Neither at the time of making the will nor at testator’s death had these mortgages been recorded, or any of the interest due thereon been paid to the testator. If the testator had simply bequeathed these mortgages to the plaintiff, the legacy would be a specific one; but the clause further charged the payment upon the devises and bequests in the will to Lillie E. Henderson, which devises and bequests are declared to be subject thereto. Its language clearly manifests the intention of the testator to have been to provide for the payment to his widow of the amount represented by the bonds and mortgages, rather than that the bonds and mortgages should be transferred to her. By its terms, if the bonds and mortgages cannot be ■enforced against Lillie E. Henderson, or for any reason should not be, or the security should prove insufficient to realize the sum represented by them, nevertheless it was provided that such sum should be realized for the benefit of his widow by charging the same upon the devises and bequests to Lillie E. Henderson. This was a bequest of money, and not of the specific bonds and mortgages. If this construction may be said to need the support of authority, it would seem to be furnished by Giddings v. Seward, 16 N. Y. 365, where the bequest was the sum of $1,200 and interest on the same, contained in a bond and mortgage. 'The court held that the leading subject of the gift was not the bond and mortgage, but the sum of money mentioned. “ It belongs,” said the court, “ to a peculiar class of legacies usually termed demonstrative,’ which partakes so far of the nature of specific legacies that the security referred to in the bequest, if in existence and belonging to the testator at the time of his death, is set apart as a primary fund for the payment of the legacy.” It is admitted that the defendant Lillie E. Henderson accepted and took possession of the property devised to her, and afterwards paid to the executors the sum of money charged upon the devises and bequests to her by the seventh clause of the will. This sum the court properly held belonged to the widow. If the position be well taken that it was the intention of the testator by his will to charge the legacies to which we have referred upon the lands devised, it would seem to follow, under the authority of Hogan v. Kavanaugh, 138 N. Y. 417; 52 St. Rep. 884, that it was the right of the plaintiff to resort to equity to have the legacies declared to be a charge upon the lands devised, and to enforce her lien as legatee. In that case the action was brought to have the legacy bequeathed / by the will of Edward Hogan made a specific lien on certain real estate; that the lien be enforced by a sale, and the legacy paid out of the proceeds. The judgment, which went in favor of the plaintiff, further provided that the debts of the testator should be first paid out of the proceeds of the sale, although it then appeared that no proceedings had been taken in surrogate’s court under the statute for the purpose of selling the lands of testator to provide for their payment, nor had the claims been proved in the manner provided by the statute. This part of the judgment the cohrt so modified as to provide for the payment of the debts before the legacy, but only after the debts should have been duly established in the surrogate’s court, and such proceedings had as would authorize a sale of the real estate of testator for such purpose, and .affirmed the judgment in other respects. The court said:

“That part of the judgment, therefore, which declares the legacies to be a charge upon the lands, is correct. Nor can there be any objection to the maintenance of an action in a court of equity to procure a judgment for that purpose, though it might not be proper in all cases, and under all circumstances, to direct a sale of the land for their payment. The primary fund for the payment of debts and legacies is the personal estate, and the land cannot be resorted to for that purpose until the personal is exhausted in the -ordinary course of administration, under the authority of the statute.”

In this case the executors and all parties in interest save the creditors were parties to the action, and it appears from the stipulation made by the parties and the evidence adduced that the executors had advertised for claims and proceeded in the regular course of administration to a point which disclosed that there was no personal estate whatever applicable to the payment of the legacies. Indeed, there was not personal estate sufficient to defray the expense of administration, let alone pay the claims against the deceased, which had been presented and accepted by the executors, and which it is conceded by the stipulation were due the claimants. This being so, the right of the plaintiff to maintain this suit for the purpose of enforcing the legatees’ lien upon the lands devised is fully established by Hogan's Case. The trial court, proceeding upon the theory that when a court of equity has obtained jurisdiction of a case for one purpose it may retain it for all purposes, and appreciating the legal right of the creditors of the testator to be paid out of the proceeds of the sale of his real estate before the legacies charged therein can be paid, provided in the judgment, decreeing a sale of the property, that next after the payment of the expenses of the sale the proceeds should be applied “to the payment of such debts of said decedent as may have been proved upon an accounting, together with the expense of administration.” This provision of the decree seems to he condemned by Hogan's Case, supra, which proceeds upon the view that the lands of a decedent can only be sold for the payment of his debts in the manner provided by statute, which requires that the creditor shall establish his claim in proceedings had in surrogate’s court for the purpose of selling land to pay debts. Counsel relies upon an expression contained in the opinion of the court to distinguish this case from that one. The court, in considering whether a creditor who happens to be a party to an action of this kind can in any case assert his claim to the real estate of the deceased in a court of equity, said:

“Possibly it might be done in a case where the regular process of administration had reached the stage where real estate could be sold for the payment of debts, and the executor or administrator who could represent creditors and the personal estate was a party.”

Because the executors were parties to this suit, and that point had been reached in the regular course of administration, where the executors could have instituted proceedings for the sale of testator’s real estate for the payment of debts, appellant contends that this case comes within the exception which the court suggested might possibly exist. In the first place, it should be said that the court did not decide that the case which it put would constitute an exception to the general rule; but a further and conclusive answer is that this case does not come within the supposed case suggested as a possible exception, in that the creditors whose claims the decree undertakes to provide for are not parties to the action. The case suggested by the court was one where the creditor was made a party to the action for some purpose. The creditors of the testator, Dunning, are not parties to this action. Their claims have been admitted by the executors, it is true, but that fact does not entitle them to payment from the proceeds of the real estate. Under the statute it is necessary that they shall still establish their claims by competent evidence before a proper tribunal, before they can receive any part of the proceeds of the real estate in payment of their claims. The modification of the judgment in Hogans Case suggests the necessary modification to be made in this one.

The judgment should be modified by striking out the provision-numbered 2, and by substituting in place thereof the following:

“To the payment of such debts of said testator as may hereafter be duly established in the surrogate’s court, in proceedings taken to procure a sale of real estate for the payment of such debts. The sale and execution under this judgment to be stayed until such proceedings are had.”

As thus modified, the judgment should be affirmed, without costs.

The discretion of the court was not improperly exercised in granting an extra allowance to the plaintiff, and the order relating thereto should be affirmed, with $10 costs.

All concur.


text:
    Edward S. Stokes, Resp’t, v. John W. Mackay et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Contract—Performance —tender.
    Where a party refuses to perform a contract and distinctly waives a tender of performance by the other party, the latter need not go through with the form of making a tender, in order to entitle him to recover either the purchase price of the thing agreed to be sold, or damages for breach of the contract.
    2. Same—Production on trial.
    A waiver by the vendee of a tender of bonds, before an action is brought for their price by the vendor, does not dispense with the necessity of the latter’s producing them on the trial as a condition precedent to recovery.
    3. Appeal—First instance.
    The objection that bonds, agreed to be sold, were not produced on the trial, in such case, cannot be raised for the first time on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Joseph Larocque, for app’lts ; Esek Cowen, for resp’t.
   Parker, J.

The merits of this controversy were fully discussed in this court on a former appeal, resulting in a holding that the trial court properly directed a verdict in fhvor of the plaintiff. 46 St. Rep. 940. With this decision the court of appeals differed, deciding that there were certain questions of fact which should have been submitted to the jury for their determination. 140 1ST. Y. 640 ; 55 St. Rep. 815. On the retrial these questions of facts were submitted to the jury, resulting in a verdict in favor of the plaintiff. As the testimony relating to the main features of the controversy was substantially alike on both trials, there would seem to be open for consideration in this court only such questions as are presented by exceptions taken to the rulings of the court in admitting or rejecting evidence, and to exceptions taken to the charge of the court, or of refusals to charge as requested. Upon the argument, we were strongly impressed with the contention of appellants’ counsel in respect to the alleged failure of the plaintiff to make a proper tender of a portion of the bonds which were the subject of the contract, having a face value of $165,000, coupled with the fact that a portion of such bonds were at the time of the trial, according to plaintiff’s admission, pledged as collateral for certain loans made to him. Our examination of the subject, however, persuades us that the appellants’ position is not well taken ; and, notwithstanding the fact that the question seems to have been passed upon on the former appeal, it may not be out of place to briefly state the reasons for our conclusion that the trial court did not err in refusing to direct a verdict upon the grounds assigned by defendants’ counsel.

It is not pretended that the plaintiff ever made a formal tender of $115-,000 of bonds which were at the time of the making of the contract, and for some time thereafter, pledged with the Western National Bank as security for a loan to plaintiff. Of the remaining $50,000 of bonds, he did everything by way of delivery that was possible. It appears that these bonds were loaned by the plaintiff to the defendant De Castro prior to the making of the contract, and by him pledged to the Madison Square Bank as collateral to a loan to De Castro; and, as he was one of the vendees in the contract, plaintiff, for the purpose of effectuating a delivery of the bonds, gave to him an order upon that bank to deliver to him the bonds when his debt should be paid. As to the $115,000 of bonds, there is evidence that plaintiff, in pursuance of instructions given him by his counsel, offered to turn over the bonds, at the same time demanding that the balance of the purchase price, to wit, $75,000, be paid him that he informed defendant De Castro that he had been instructed to make a formal tender of the bonds, to which De Castro replied that he would waive the tender, that Mr. Mackay had told him that these bonds belonged to him (Mackay), and repudiated plaintiff’s having any interest in them whatever, and that there was no use in his taking the trouble to make a formal tender. According to the testimony of the plaintiff, then, it appears that the defendants not only refused performance of their contract, but, in language as forcible as could be employed for the purpose, attempted to waive anything like a formal tender of the bonds. It is too well settled to admit of further questioning that where a party refuses to perform, and distinctly waives a tender of performance by the other party to the contract, it is unnecessary for him to go through with the form of making a tender, in order to entitle him to recover either the purchase price of the thing agreed to be sold, or damages for a breach of the contract. Baumann v. Pinckney, 118 N. Y. 604; 30 St. Rep. 60; Lawrence v. Miller, 86 N. Y. 131 ; Slewed v. Baker, 58 N. Y. 611 ; Nelson v. P. F. Elevating Co., 55 N. Y. 480 ; Bunge v. Koop, 48 N. Y. 225; Moses v. Bierling, 31 N. Y. 462 ; Cornwell v. Haight, 21 N. Y. 462; Stone v. Sprague, 20 Barb. 509; Clark v. Crandall, 27 Barb. 73; 3 Barb. 612.

This brings us to appellants’ further contention,—that, assuming what the defendants did amounted to a waiver of a formal tender, still it cannot avail plaintiff, unless he was in such a position that he could have made a tender of the bonds ; that a tender imports, not only readiness and ability to perform, but actual production of the thing to be delivered, and, while the formal requisite of a tender may be waived, to establish a waiver there must exist capacity to perform. Eddy v. Davis, 116 N. Y. 247 ; 26 St. Rep. 701. If, in this case, the plaintiff had sold and delivered the bonds to a third party, so that performance on his part, was no longer possible, he would be within the rule of Eddy's Case. But he had not sold the bonds. Instead, he had, prior to the making of the contract, pledged them as collateral for a loan much less in amount than was due him on account of the purchase price at the time he offered to make tender. All that was needful for him to do, in order to obtain possession of the bonds for delivery to the defendants, was to pay the amount of the loan; Had the defendants been willing to have paid the purchase price, as per their contract, and fixed a time and place for making payment, an arrangement could doubtless have been made to have had a representative of the bank produce the bonds for delivery to the defendants, upon receipt of so much of the purchase price as was due them. But, assuming appellants’ position to be well taken,—that it was necessary that the plaintiff should have been in a position to make a formal tender of the bonds at the time of the waiver, without reference to the moneys due him from the defendants under the contract,—we are of the opinion that it cannot be held, as a matter of law, that he did not have capacity to perform. As we have observed, all that it was necessary for him to do, to get possession of the bonds, was to pay the sum for which they were pledged as collateral. If he was in a position to do that, or by any other method to obtain possession of the bonds, then he had capacity to perform, and defendants’ waiver was affectual. The affirmative of this proposition doubtless rested with the plaintiff, and he offered in support of it, so far as we have observed, only his own assertion of ability to obtain the bonds from the.pledgees, and deliver them to the defendants. This was certainly some evidence of the fact;—enough at least to have authorized a jury to find that he had capacity to perform at the time the tender was waived. Appellants insist that the record contains evidence that he was largely indebted at the time of the alleged tender. More than that, they urge that from this evidence it should be found that he was insolvent. While the facts and circumstances brought out on the trial, if considered independently of plaintiff’s evidence, might have required a finding of inability to take up the loans, it must be borne in mind that they stand opposed by plaintiff’s testimony, and thus was presented a question of fact for the jury, not one of law for the court. The court therefore rightly refused to take that question from them.

It is said that the motion to direct a verdict presents the further point whether, in order tq recover, the plaintiff was not bound to produce the bonds upon the trial for delivery to the defendants. If it does present that question, we think error was committed. There was such evidence of waiver of tender, as we have already shown, as would authorize a finding of waiver. In considering the present questions, therefore, it must be assumed that tender was effectually waived. The tender having been waived, there was, of course, no tender to keep good, and the position taken in that respect is inaccurate. But while the plaintiff, because of the waiver, was not bound to prove the making of a formal tender, and that thereafter lie had kept the tender good, we do think the defendants, upon the trial, had the right to insist that the plaintiff should produce $115,000 of the bonds in court as a condition precedent to recovery. Plaintiff’s testimony in relation to the $50,000 of bonds, if accepted, would have excused their nonproduction in court. He said that those bonds had been converted by a third party. We have not the details of the transaction, but, so far as the testimony goes, it is to the effect that they were wrongfully taken from the possession of the plaintiff. If that be true, it would follow that the plaintiff could not be denied the .right of recovery because of his inability to produce them. Having offered to defendants a delivery of possession of the bonds, which they refused to accept, he could not be made answerable thereafter to the defendants for consequences resulting wholly from the acts of wrongdoers respecting them. But, as to the $115,000 of bonds which bad been pledged by the plaintiff as collateral for loans, we think the defendants had the right to insist upon their production in court, to the end that they should come to the possession of the defendants in the event of a recovery by the plaintiff. The plaintiff was the last witness sworn on the trial, and he told when these bonds were pledged as collateral, and the amount of the loans, and asserted that they were ready for the defendants. We quote a portion of his testimony:

“ I had them on several loans, and transferred them, but they were all ready at any time. W. E. D. Stokes has that $50,000 or $30,000 of bonds still. I think he has converted them. That is what I am charging him with,—conversion. Q. Then why do you say they are ready for me? A. I might have some difficulty with him, but I can make it all satisfactory to you."

This statement the defendants, of course, could accept as affording to them sufficient protection in the event of recovery by the plaintiff. They were not bound to accept it, and could have demanded their production in court, or that a dismissal of the complaint should follow. Now we have read carefully the grounds upon which the defendants based their motion for a direction of a verdict in their favor, and we do not find anything in them which could have suggested, even to the court, that the defendants were relying upon the failure of the plaintiff to produce the bonds in court-to secure the direction of a verdict in their favor. The propositions which the defendants’ counsel pressed upon the attention of the court as the grounds for granting their motion were that the plaintiff had never delivered the bonds to the defendants, nor presented an excuse for nondelivery; that he had not' made a formal tender of the bonds, nor had the tender been waived, and, if made, it had not been kept good as required by law. We quote the grounds upon which the defendants rested their motion:

“First. That the plaintiff had not established the existence of the contract upon which the action was brought. Second. Upon the ground that there had been no delivery and no tender, and no sufficient waiver of a tender, of the $115,000 of United Lines Telegraph bonds which were shown to have been pledged with the Chemical Bank ; that those bonds, as appeared by the evidence, had, to a considerable amount, been subjected by the plaintiff to further and different liabilities, and by the plaintiff’s voluntary act passed from his control. Third. Upon the ground that there had been no delivery and no tender, and no excuse for nondelivery, of the bonds which had been, according to the testimony, in the Madison Square Bank. On the contrary, it appeared from the evidence that after the time it is alleged that the contract sued upon was made the plaintiff himself was borrowing money and creating a burden upon those bonds for the payment of his own obligations, and that if any tender had been, in point of fact, made or proposed, the same had not been kept good as required by law.”

The point not having been made in the motion for the direction •of a verdict, or at any stage of the trial, when, perhaps, it might have been overcome by the payment of the loans and the production of the bonds, it cannot be made available for reversal in this court. If we are right in the views expressed, it follows that the court did not err in denying defendants’ request for a direction of a verdict in their favor.

The appellants urge that error was committed by the refusal of the court to receive in evidence a memorandum alleged to have been written by Ingersoll, the stakeholder, as a basis for a tele-" :gram to be sent to Mr. Mackay by his representative at the meeting of December 24, 1888, when the preliminary arrangements .were being made which ripened into the contract found by the jury to have been entered into. There - were present, as appears by the testimony of the witness Platt, himself, Col. Ingersoll, the defendant De Castro, and the plaintiff, Stokes. It was first offered and excluded after defendants’ counsel had examined the plaintiff in reference to it, with the following result:

“Q. (Paper handed witness.) Do you know the handwriting of the paper I now show you ? A. Yes ; it is signed by Ingersoll. It is his signature and writing. Q. Did you see that paper written ? A. I did not; never saw it until to-day, that I remember. Q. Didn’t you see Mr. Ingersoll, at the time of that interview, write a paper, and hand it to Mr. Platt? A. I have no recollection of any such thing. Q. Did you say you did not? A. lean simply say I have got no recollection of it. Q. That is all you can say? A. That’s enough, isn’t it?”

The ruling of the court was proper, for, so far as it then appeared, it was a private communication between Col. Ingersoll and Mr. Platt, not brought to the attention of any of the parties to this action.

After the defendant De Castro had testified in relation to the ■circumstances under which the memorandum was written, it was again offered in evidence, and excluded by the court. De Castro testified as follows: o

“I recall the circumstance of the meeting of the 24th of December, 1888, when Mr. Stokes and Mr. Ingersoll sat around this table in Mr. Stokes’ room in the Hoffman House. There was pen, ink, and paper on the table at that time. I have said that I had no discussion with Mr. Stokes as to what should be telegraphed to Mr. Mackay. Mr. Ingersoll said that he would prepare a telegram to Mr. Mackay, stating what had been done, and wrote it out then -and there. The subject of what was to be telegraphed to Mr. Mackay was spoken of then and there.” Mr. Ingersoll said he would telegraph to Mr. Mackay,—would prepare a telegram to Mr. Mackay. Mr. Ingersoll said be would prepare a telegram to be sent by Mr. Platt and myself, and sat down and wrote it down then and there. He said he would say in the telegrani that the securities had been turned over to him for custody, and that a certain agreement would be sent to Mr. Mackay for his signature, and he wrote a memorandum. (Paper marked ‘Exhibit Ho. 8,’ for identification, handed witness.) That is the paper which Mr. Ingersoll wrote. We were all sitting at the table, there, talking together, as it was written; and Mr. Ingersoll, I think, read it and talked as he was writing it. I think the whole of what was in that telegram was spoken aloud at the time. The substance of the telegram was spoken in every part.”

It will be observed that the witness did not testify that Stokes read the memorandum, or that it was read in his presence. His-strongest expression in that direction was, “I think the whole of the telegram was spoken aloud at that time.” But what was spoken did not make the memorandum evidence, so long as it did. not purport to be either a reading of it, or a statement of its contents. What was said was undoubtedly, of itself, competent evidence,, and that the witness was permitted to state. He gave his recollection of what was spoken aloud, and it differed materially from the-memorandum ; but, had it conformed to it, the effect would not. have been to make the memorandum evidence, in the absence of evidence that, when spoken, it was stated to be the contents of the-memorandum.

The memorandum was again excluded by the court after the defendant Mackay’s representative, Platt, had testified as follows:

“Col. Ingersoll wrote out 'the text of what he said I was to communicate in a message to be sent to Mr. Mackay. Mr. Stokes was present. Q. Did he write out anything .in the- presence of these gentlemen? A. Yes; he did. Q. (Paper handed witness.) I show you a paper marked ‘Exhibit 8,’ for identification, and ask you if that is the paper he then wrote ? A. Yes, that is the paper. It was written in the upstairs room of the Hoffman House, at a table in the room. At the time it was written, there were at. this table Mr. De Castro, Mr. Stokes, and I, and it was handed to me in Mr. Stokes’ presence.”

Platt’s evidence added nothing to the force of the evidence already given. He testified that it was written in the presence of Stokes, but neither he nor any other witness testified to the only fact which would make it competent evidence, in view of Stokes' denial of knowledge of it, to wit,—that Stokes either read it, heard it read, or knew its contents.

Complaint is made because of the exclusion of certain testimony offered by the defendants touching the value of the poles, wires, and physical property generally, of the Bankers’ & Merchants’ Company in December, 1888, which went into the United Lines System. The-theory upon which this evidence was offered was that, inasmuch as it is not pretended that the defendant Mackay, in terms, agreed to be bound by the proposed agreement sent him for consideration, but became chargeable, if at all, as a party, because of acts of ratification and adoption on his part, and as upon this subject there was a conflict of testimony, evidence touching the advantages and disadvantages which would result to the defendent Mackay under the contract,,would have a bearing on the probabilities of the case. The view which the trial court apparently took of the proposed evidence as to the value of poles and lines was that it could only result in misleading the jury, because it permitted the same witness to testify in relation to the revenues which came to the Postal Telegraph Company through the United Lines Telegraph Company. It seems to us that this view was the correct one, for the franchises of a corporation of this character constitute a very important 'element of value; and whether such a property, including both the franchises and physical property, has small or great value, depends upon its earning capacity. The true test is whether it has capacity to pay expenses and earn profits. But, if it be assumed that the evidence offered was competent upon the subject of value, we think the judgment should not be reversed for its exclusion, because it could not in any way have affected the result. The purpose of its offer was, as we have already observed, to enable the jury to infer from the comparatively small value of the property that Mackay’s assertion that, he not only did not make the contract, but that he never intended to ratify or adopt it, was truthful. It can have no material bearing upon what took place prior to the telegram from Mackay to Platt, because it is conceded that at that time Mackay was entirely ignorant of the price that defendant De Castro had agreed should be paid for the property. As he knew - nothing about the price, the question of the value of the property was necessarily not presented to him. It could have had no- effect upon his action in writing the letter of January 3, 1889, to Ingersoll, in which he instructed him. to hold the bonds and stock then in his possession, which he had received from Stokes for Mackay, because he testified that at the time of such writing he had no intention of signing the contract, or paying the consideration mentioned in it. Necessarily, therefore, the value of the property had no hearing upon his actual intent. The judgment necessarily proceeds upon the theory that as soon as Mackay discovered that by the terms of the contract he was to cancel the C. H. Read Company note, and to pay to the plaintiff $100,000, he never really intended to execute the contract, or adopt it; but that, notwithstanding his secret intent not to become a party to the contract, he did in fact'adopt it, by acts which led the plaintiff to think otherwise, and to act accordingly, resulting in the possession of the greater part of the securities mentioned in the contract coming to Mackay, who has ever since retained them» In other words, while he did not intend to make the contract upon which plaintiff has recovered, he has been held to have intended, not that which he secretly intended, but which the other party to the. contract had a right to assume, from his words and acts, was his real intent. o

Many other exceptions have been pressed upon our attention, but we do not think they require a reversal of the judgment. The judgment should be affirmed, with costs'

All concur.


author: O’Brien, J.

text:
    Moffett, Hodgkins and Clarke Company, Resp’t, v. Peoria Water Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Appeal—Discretion.
    Upon a motion to dismiss based on loches, which the party attempts to-explain, it is within the discretion of the court to determine whether the explanation was sufficient.
    2. Trial—Motion to dismiss.
    The jurisdiction of the court, on the ground that both parties were foreign corporations, will not be considered on a motion to dismiss for lachea of plaintiff.
    Appeal from an order dismissing the action in default of compliance of conditions.

      John M. Shedd, for app’lt; Joseph A. Arnold, for resp’t.
   O’Brien, J.

The motion was made by "defendant to dismiss the action and the summons herein, which was granted, “ unless plaintiff serve upon the attorney for defendant a copy of his -complaint substituting the receivers of the plaintiff as parties,” and upon payment of costs, and granting leave to the receivers to be substituted in the place and stead of the above-named plaintiff. The appellant insists that the motion should have been granted -absolutely and unconditionally because of the loches of the receivers of the plaintiff in the prosecution of the action. It appears that the summons was served on April 6, 1893, and that thereafter the defendant duly served its notice of appearance. By failing properly to serve an order extending the" time to serve a complaint, the plaintiff was in default, and, notwithstanding such default, served a complaint, which was promptly returned. Between the service of the summons and the time of the default, receivers cf the plaintiff were appointed in this "state, and a receiver of the «defendant corporation appointed in the state of Illinois. On the motion the plaintiff presented an affidavit explaining the loches, .and asking that if in default such default should be opened, and that the complaint already served, but returned by the defendant, be permitted to stand, or that it should be allowed to serve a new •complaint. The motion to dismiss having been predicated upon the loches of the plaintiff, which it endeavored to explain, it was a matter within the discretion of the court to determine whether such explanation was sufficient, and we do not think that the con■clusion reached should be disturbed. This would dispose of the appeal were it not for the appellant, whose principal grievance is that, inasmuch as by the affidavit used on this motion it is alleged that at the time of the commencement of the action both plaintiff .and defendant were foreign corporations, and that the action itself was not one which, under section 1780 of the Code, is allowable, this consideration, going to the jurisdiction of the court to entertain the action, should have been controlling upon the judge at special term in having him dismiss the action absolutely and without conditions. As the "case stood, no complaint was duly served, and all that was properly done in the action was the service of a summons; and upon a motion of this kind, until the court is in a position to know just what the action is about, and what objections there may be thereto, it is under no obligation, in the absence of the pleadings, to determine questions which properly arise thereon. By permitting the substitution of the proper parties plaintiff and the service of a complaint by the receivers, the defendant has lost no rights or defenses. What the court did was to dispose of the question of whether or not the action should be dismissed for loches in bringing in the proper parties plaintiff, and directing them to serve their complaint, reserving to the defendant all its rights and defenses, which in a proper way can be presented, when, with the complaint or pleadings before the court, it can dispose in an orderly manner of any questions then raised. The order should be affirmed, with $10 costs and disbursements. All concur.


text:
    Chu Pawn et al., Resp’ts, v. Robert J. Irwin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Pleadings—Proof.
    Evidence that an alleged contract was procured by fraud, is not admissible upon an issue as to ils existence.
    3. Contract—Execution.
    Parties, who sign a contract, are bound, though not knowing, or intending to agree to, its terms.
    Appeal from a judgment, entered on a verdict in favor of plaintiffs.

      George A. Strong, for app’lt; Franklin Bion, for resp’ts.
   O’Brien, J.

This action was brought to recover certain moneys obtained by the defendant from the plaintiffs, in a fiduciary capacity, upon statements that the money was to be used to pay customhouse duties, etc. The answer admitted the receipt of the various sums, except one small item, but claimed that the defendant had disbursed more than the amount credited in the complaint, and. also set up affirmatively a cause of action against the plaintiffs upon a written contract, by the terms of which, among others, the defendant was to receive SO per cent, upon all reductions in duties and money saved on duties through any compromise with the government, and that such sums so earned under the written contract, after deducting what had been paid him, would leave the plaintiffs indebted to the defendant. In their reply the plaintiffs denied “ that they ever signed the document or contract,” and alleged “ that they never knowingly signed said contract, knowing or agreeing to the matters therein stated.” At the trial the parties entered into a stipulation, as follows :

“ It is agreed that the only question to be tried in this case is the question as to whether there is a contract between the plaintiffs and the defendant, as alleged by the defendant, and that, in case the jury shall find there was no such contract, the court can direct a verdict for such amount as is proper. The court is to submit the one special fact to the jury; and, in case the jury find there was such a contract, then counsel consent that the amount to be allowed to the defendant under the contract can be ascertained either by a reference, or in such other way as the court may direct.”

The contract signed by the plaintiffs was admitted in evidence,, and the whole force of the plaintiffs’ testimony was directed to' showing that, through misrepresentation and fraud, plaintiffs’ signatures were obtained thereto: And the trial judge, in submitting the question to the jury, thus represented it: “Did the plaintiff Chu Pawn sign the name of Yoe Long & Co. to this contract, knowing what was in it, and understanding that it was a contract between the plaintiffs and the defendant? ” From this it will be seen that whether a contract did or did not exist was not the issue as finally presented, but whether a contract concededly in existence had or had not been obtained by fraud. Upon the pleadings, the issue of fraud was not tendered, nor did the stipulation embrace such issue of fraud, or include any inquiry beyond the simple one as to whether there was or was not a contract between the parties. The reply, after denying that the plaintiffs signed such contract, alleges that they never knowingly‘did so, knowing or agreeing to it. This letter is equivalent to a statement that they did not know what the paper signed by them contained, and that they did not sign it intending to agree to it. This, under the decisions, is no defense; the law holding that parties are bound, although not knowing or intending to agree to the terms, or, as stated in Upton v. Tribilcock, 91 U. S. 45-50:

“ It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract, and, if he will not read what he signs, he alone is responsible for his omission.’" ‘ .

And the condition entitling one to relief from a written contract are thus stated in Bryce v. Lorillard Insurance Co., 55 N, Y. 240:

“ It must be the mistake of one party, by which his intentions: have failed of correct expression, and there must be fraud in the other party.”

It will thus be seen that the real issue upon the contract was as to whether it had an existence or not. Though the defendant endeavored to hold the proof down to this issue, the plaintiffs were permitted to introduce evidence tending to show that the contract was procured by fraudulent representations or acts : and it was as-the result of such testimony that the jury found upon the question submitted to them by the court, not against the existence of the contract, which was conceded, but against its validity. It is for errors committed in permitting evidence of fraud to be introduced over defendant’s objections and exceptions, and to the refusals to confine the evidence and the charge of the court to the only issue made by the pleadings and the stipulation of the parties, that the defendant asks for a reversal of the judgment. Such exceptions, we think, for the reasons stated, are good. The judgment must be reversed, and a new trial ordered, with costs to appellant to abide event.

All concur.


author: Bradley, J.

text:
    Nelson Duntz, Resp’t, v. William L. Horton et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 26, 1894 )
    Guaranty—Compromise.
    Where a party, who is beneficially interested in the execution of the guaranty of a bond and mortgage, and the ultimate benefit of which is intended for him, places such guaranty and the bond and mortgage with his creditor as security, with the right reserved to pay the latter the amount of his debt and take an assignment of them, he is prejudiced by his creditor’s discharging the guarantor from liability to pay the amount which represents his interest in the bond and mortgage.
    Appeal from a judgment in favor of plaintiff.
    The facts Out of which the alleged claim arose are that Arthur M. Gaylord, being indebted to the testator in the sum of $4,784, gave him his bond, secured by a mortgage upon certain premises; • that on September 18,1884, pursuant to an arrangement to that effect, the testator, at the request .of Gaylord, assigned the bond and mortgage to Nelson Beardsley, and in lieu thereof received from Gaylord $800 on his debt, and the assignment of a bond with a second mortgage on the premises, made by William and Hezekiah Howe, together with a guaranty of collection made by one Chamberlain, of which the following is a copy: “For value received of Henry H. Lewis, of Auburn, I hereby guaranty to him, his heirs and assigns, the collection of the moneys secured to be .paid by the said bond and mortgage, according to the terms thereof. Dated Auburn, N. Y., Aug. 28, 1884.” The testator then, and as part of the transaction, made and delivered to Gay-lord an instrument as follows:
    “William Howe and Hezekiah Howe to Arthur M. Gaylord : Bond and mortgage dated July 21, 1884, to secure the payment of the sum of $5,000, and interest thereon from the date thereof. Amount owing me from Arthur M. Gaylord is $4,784, with interest thereon from April 1, 1884, less the sum of $800 cash paid this day; and he has assigned the above bond and mortgage to me, and has paid me such sum of $800. I do hereby covenant and agree that upon ray receiving the balance owing me, either by payment from said Gaylord, or collecting the same from said Howe bond and mortgage, or the guaranty of Chamberlain accompanying the same, that after such full payment I will transfer and assign such Howe bond and mortgage and guaranty to said Gay-lord, or to such person as may be entitled to receive the same,— such bond and mortgage and guaranty having been assigned and transferred to me for the purpose of securing to me the payment of such amount owing to me,—and, in case I shall receive the amount of such Howe bond and mortgage, I covenant and agree to pay whatever sum I may receive in excess of the amount so owing me, with interest to the time I shall receive the same. Wit- ' ness my hand and seal the 18th day of September, 1884.
    ' “Henry H. Lewis. [L. S.]”
    The subsequent foreclosure of the Howe mortgage by Lewis was productive of nothing to apply upon the debt. Thereupon a movement made to obtain payment from Chamberlain upon the guaranty resulted in a compromise with him, and the surrender of the instrument containing it, on payment of a sum less than the amount of the debt due to Lewis. His agreement above set forth was afterwards transferred by Gaylord to the plaintiff.

      E. C. Aiken, for app’lts ; F. D. Wright, for resp’t.
   Bradley, J.

The action, as it must be termed (Code, § 2718),

is founded upon an asserted claim arising out of an alleged breach of covenant contained in the agreement above mentioned, of the defendant’s testator, of date September 18, 1884, and in consequence of the satisfaction of Chamberlain’s guaranty of collection of the Howe bond and mortgage without payment in full. The plaintiff seeks to recover the nominal amount of the bond and mortgage in excess of that due to Lewis, which excess at the datof his agreement was $929. By the agreement, Lewis undertook that upon receiving the balance owing to him, either by payment from Gaylord, or by collection of the Howe bond and mortgage, or from the guaranty of Chamberlain, he would transfer such bond and mortgage and guaranty to Gaylord, and that if he should receive the amount of the bond and mortgage he would pay the amount in excess of the money due him over to Gaylord. Having failed to realize anything upon the foreclosure of that mortgage, and having been led to suppose that Chamberlain was not responsible, the defendants’ testator, by his attorney, made a compromise with him, and received in satisfaction of the guaranty a sum less than the amount due him from Gaylord. It turns out, and the referee found, that at the time of such compromise Chamberlain was responsible, and worth from $20,000 to $25,000: The attorney who consummated it acted in good faith, but was misled by Chamberlain into the belief that the compromise was an advantageous one for his client and for Gaylord. But, as it was made without the knowledge or consent of the latter, he was not concluded by it, if it was made to his prejudice.. He was not prejudiced by the compromise, if Chamberlain was his accommodation guarantor. It is now urged on the part of the defendants that such was his relation to Gaylord, and there are some circumstances which tend in that direction. The instrument of guaranty was delivered by Gaylord to Lewis in a transaction between them, whereby it and the Howe bond, with the mortgage, which was a second mortgage on the premises, were taken by him as security for most of the amount secured by the first mortgage, which was transferred by'Lewis to Beardsley at the request of Gaylord. The guaranty ran directly to Lewis. It, however, was not in terms limited to the security of the debt due to him, but went further, and guaranteed the collection of. the Howe bond and mortgage, in the amount of which Gaylord nominally had an interest in excess of the amount due to Lewis. The question whether the guaranty was made for the accommodation of Gaylord was not, as it could not well be, treated at the trial as one of law, upon the evidence, and therefore was not specifically raised there. And the referee found that, in consideration of the guaranty by Chamberlain, a sum of. money was paid to the firm of which he was a member, “and an agreement made for the payment of an additional amount.” As it was not deemed advisable to specifically except to such finding, it is unnecessary to refer to the evidence upon which it was made by the referee.

It cannot, in view of the terms of the instrument and the findings of the referee, be held here that the guaranty was intended to-cover the amount only of the debt which Gaylord owed Lewis. And the fact that the promise was to the latter does not necessarily require the conclusion that such relation was intended. It. could be effectually transferred to Gaylord, if it was made upon a consideration to guaranty the collection of the Howe bond and mortgage. Whatever suspicion to the contrary arises out of the appearance of the transaction, and from which it may not be entirely free, the findings of the referee are such as to show that Gaylord was beneficially interested in the execution of the guaranty, and that its ultimate benefit was intended for him. In that view, Chamberlain cannot be treated as his surety. And having placed that instrument and the bond and mortgage with Lewis as security, with the right reserved to pay him the amount of his debt, and take assignment of them, Gaylord was prejudiced by the discharge of the guarantor from liability to pay the amount which represented his interest in the bond and mortgage.

It is contended that, in view of the circumstances by which the compromise was influenced, it was reasonable, and that no damage can be deemed to have been suffered by Gaylord. The fact that it was made without his knowledge or authority, and as Chamberlain was amply able to pay the full amount, and its collection could have been enforced from him. affords no fair opportunity to conclude that Gaylord may not have been deprived of an effectual remedy upon the guaranty, to obtain the amount remaining of the bond and mortgage after satisfying the debt due to Lewis. This seems to have been the value of the guaranty, and its availability to Gaylord to realize such amount. And when Lewis disabled himself from performing his agreement his liability arose to respond in damages to the party entitled to such performance. Woolner v. Hill, 93 N. Y. 576.

The question whether Lewis could, or the defendants can, rescind the contract of compromise, for fraud or deceit on the part of Chamberlain, is not here for consideration. The transaction was rendered apparently effectual as to him by the fact that he furnished something more than his promise as security for the payment of a stipulated sum agreed upon, and he is a necessary party to an action for such relief.

These views lead to the conclusion that the judgment should be affirmed. All concur.


text:
    Hornellsville Electric Railway Company, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 26, 1894.)

    1, Railroads—Intersection—Notice.
    A statement in a notice, attached to a petition for the intersection of railroad tracks, that such petition will be presented to the court at a certain time, is sufficient.
    3. Same—Right to crossing.
    The right of a company to cross another’s tracks is not subject to the objection that it is taking land already appropriated to a public use.
    3. Same—Interference with use.
    The question whether such proposed intersection interferes with the use of the track crossed, is one for the consideration of the commissioners.
    4. Same—Costs.
    Costs in such proceeding are in the discretion of the court.
    Appeal from a judgment, determining the issues arising on plaintiff’s petition and the answer of defendant, and directing the appointment of commissioners, and from orders confirming their report, declaring plaintiff’s right to such intersection, and denying •costs.

      James H. Stevens, for app’lt; DeMerville Page, for resp’t.
   Bradley, J.

The plaintiff was duly incorporated December 17, 1891. At that time, and until June 7, 1892, the statute provided that before constructing any part of its road, or instituting any proceedings for the condemnation of real property, a railroad company should make a map and profile of the route, and file it in, the office of the clerk of the county in which the road is to be made, and give written notice of the time and place they were filed to the occupants of the lands over which the proposed route passed; that they, within fifteen days after such notice, might, upon ten days’ notice, make application to the court for the appointment of commissioners to examine the route, etc.; and that the corporation , should not in the meantime, nor until the determination of such application (if made), institute any proceedings for the condemnation of real property. Laws 1890, chap. 565, § 6. This statute, by amendment taking effect Juno 7, 1892, relieved surface street-railroad corporations from the operation of the provisions before mentioned. Laws 1892, chap. 676, § 6. The plaintiff, being such a corporation, gave no written notice of any such map and profile, and no profile was filed. ¡Nor was it required, by the statute existing at the time the proceedings were instituted by the plaintiff, to establish and acquire the right to construct its road. But by section 90 of chapter 676, Laws 1892, it was provided that “a street surface railroad corporation may file in each of the offices in which its certificates of incorporation are filed, a statement of tins, names and descriptions of the streets, roads and highways in which it proposes to extend its road. Upon filing such statement such corporation shall except as otherwise provided by law have the same power and privileges to extend, construct, operate and maintain its road in such streets, roads and highways as it acquires by its incorporation to construct, operate and maintain its road in the .streets, roads and highways named in its certificate of incorporation.” After the statutory provision requiring the filing of a map -and profile, and the giving of a written notice thereof, ceased to exist, and in August, 1892, this proceeding was instituted by petition made in conformity with the statute, and, with notice, was •duly served upon the defendant; and the latter, after making preliminary objections, and excepting to the overruling of them, answered the .petition. Thereupon further proceedings were in due form had, to their conclusion.

While such provisions of § 6, c. 565, Laws 1890, were in force in their application to street surface railroad corporations, the filing of the map and profile and such a written notice was essential to the support of a proceeding of this character, to acquire the rights which the plaintiff seeks to obtain. In re Rochester Electric Ry. Co., 123 N. Y. 351; 33 St. Rep. 695. But as there was no such statutory provision applicable to the plaintiff’s proceeding at the time it was commenced, or thereafter, that question does not arise for consideration. By the act of 1892 (section 2) it was provided that in the certificate of incorporation of a street surface railroad should be stated “the names and description of the streets, avenues and highways in which the road is to be constructed.” This was not made requisite by the provisions of the statute under which the plaintiff was incorporated (Laws 1890, c. 565, §2); and it may be that the certificate contained no such statement, nor is such amended provision applicable to the plaintiff. Its corporate existence is not questioned, and its proceedings to acquire such rights as are necessary for the construction and operation of its road must be governed by the statutes in force at the time they are taken and conducted. On April 27, 1892, the plaintiff filed in the office of the clerk of Steuben county (that being the county in which the plaintiff’s office is located, and in which is included the entire route of its road) a map showing the route upon Canisteo street and other streets. The map so filed was, in its contents, ■a substantial compliance with'the statute, as it contained all that was made requisite by the provisions. Section 90 of the act of 1892. It may be assumed that the plaintiff’s certificate of incorporation was filed in the office of the clerk of the county of Steuben as well as in the office of the secretary of state. Laws 1892, c. 6d7, § 5. It does not appear in the record here that such map or statement was, or was not, filed in the office of the secretary of state. Whether or not that was necessary requires no consideration, as the question was not specifically raised in the proceeding. The defendant’s counsel insisted that it was essential to the legal ■ ity of the proceeding that a map and profile of the proposed route be filed in the office of the county clerk, and notice given, as required by the act of 1890. As has been observed, the change in the statute rendered that unnecessary. The defendant’s first proposition is not sustained.

In the petition by which this proceeding was instituted was. stated the purpose of the plaintiff to extend its road along Canisteo street, and to intersect with it the defendant’s railroad tracks' where they pass over that street, and the land which the plaintiff proposed to use there for its road was definitely described. By the petition the defendant was advised of the purpose of the proceeding, and of the land sought for use in the intersection of its tracks; and by the service of the petition, with the requisite notice, jurisdiction was given to the proceeding. Code Civ. Proc. §3360; Rochester Railway Co. v. Robinson, 133 N. Y. 242; 44 St. Rep. 872. While the legislature cannot dispense with all notice, it may, by statute, prescribe the kind of notice and the mode of giving it. Stuart v. Palmer, 74 N. Y. 183. And thus is provided what is requisite to due process of law, which merely requires that a party shall be brought into court, or have the opportunity afforded him to be duly heard there; and it is no objection that the legislature has taken away one form of remedy or notice, and provided another. People ex rel. Witherbee v. Supervisors of Essex Co., 70 N. Y. 228; In re Union El. R. Co. of Brooklyn, 112 N. Y. 61; 20 St. Rep. 498. In the present case, notice annexed to the petition was, pursuant to the statute, duly given to the defendant of the time and place the petitition would be and was presented to a special term of the supreme ctiurt held in the judicial district where the premises are situated. Code Civ. Proc. § 3361. The defendant therefore had its day in court; and it was within the jurisdiction and power of the court to grant the relief sought and obtained in the proceeding.

The defendant’s counsel also insists that the plaintiff could not . condemn lands of the defendant acquired by it for, and already appropriated to, public use, and therefore could obtain no eight to cross its tracks. It is true that land already dedicated by law to-a public use cannot, without power expressly conferred by statute, be appropriated to another public use. In re City of Buffalo, 68 N. Y. 167. But the statute provides for the intersection of the railroad of one company by that of another. Laws 1892, c. 676, § 4, subd. 5. And it may be added that the right of crossing sought by this proceeding is not necessarily inconsistent with the purpose to which the land is already appropriated and used by the defendant; and the objection to the proposed crossing by the plaintiff’s road on the alleged ground that it will interfere with the-use by the defendant of its road was for the consideration of the commissioners. In re Boston & H. T. & W. R. Co., 79 N. Y. 64. The fact that the defendant had title in fee to the land at that place in the street, subject to the easement of the public, does not, for the purposes of the question here, modify the practical effect of the proposition.

The determination of the commissioners of the question of damages is not satisfactory to the defendant. There was much evidence on the subject; and that given on the part of the defendant, in view of the number of tracks, the number and frequency of trains passing over its road at that place, and the delay and hazards which it was assumed might be encountered and their consequences, tended to prove damages largely in excess of the amount awarded by the report of the commission. This evidently was based somewhat upon speculative considerations; and while, upon the evidence, the matter of damages was a subject susceptible of opinion widely differing as to the amount, the conclusion is not fairly required that the commissioners erred in their award in that respect. It does not appear that they adopted any erroneous principle in the method of estimating them. Ho occasion, therefore, appears for overruling their disposition of the question of damages.

The defendant contends that the denial of its motion for costs was error. The general rule applicable to special proceedings is that the allowance of costs is dependent upon the discretion of the court. Code Civ. Proc. § 3240; In re Cortland & H. H. R. Co., 98 N. Y. 336. A proceeding under the statute by a railroad company to acquire the right to cross the tracks of another railroad company is not, in the strict sense of the term, a condemnation proceeding to acquire title to land, and the rule of discretion before mentioned as to costs is applicable. In re Lima & Honeoye Falls Ry. Co., 68 Hun, 252; 52 St. Rep. 186. This may, I think, be treated as such a proceeding. In re Lockport & B. R. Co. 77 N. Y. 557; Buffalo, B. & L. R. Co. v. New York, L. F. & W. R. Co., 72 Hun, 583; 54 St. Rep. 872. In that view no substantial reason appears to require the court, on this review, to disagree with the special term on the subject of costs. But, if it be assumed that this case comes within the meaning of a proceeding to condemn real property, it is not seen that the defendant was, as matter of right, entitled to costs. The statute in such case provides that the moving party, before service of petition may make a written offer to purchase the property at a specified price, that the owner may accept the offer, and thereupon an order may be entered to accomplish the purpose of the proceeding. If, however, the petitioner makes no offer, or the defendant does not accept that made, and the amount awarded exceeds that of the offer, the defendant is entitled to costs; but if a trial is had, and all the issues are determined in favor of the plaintiff, the defendant is not entitled to costs. Code Civ. Proc. § 3372. In the present case the plaintiff made no offer, the defendant answered the petition, and all the material issues were determined in favor of the plaintiff. The trial mentioned in that section has reference to issues raised by the petition and answer, and referred to in section 3367. In Re Lake Shore & M. S. Ry. Co., 65 Hun, 538 ; 48 St. Rep. 360, all the costs awarded may be deemed to have been allowed by the exercise of the discretion of the court. Ho other question requires the expression of consideration. The judgment and orders should be affirmed. All concur.


text:
    The People ex rel. John Slater, Resp’t, v. Jacob Smith et al., as Town Board, etc., App’lts.

      Supreme Court, General Term, Fifth Department,

      Filed December 26, 1894.)

    1. Bridges—Authority to re-build.
    A resolution of a town hoard that the commissioner of highways “is

      hereby authorized to repair the bridges that may have gone down since the annual town meeting, to the best of his judgment,” authorizes such commissioner to rebuild a bridge which had fallen by reason of the decay of its timbers.
    2. Mandamus—Auditing claim.
    Where, in such case, the town board erroneously rejects the claim of such commissioner for moneys expended in rebuilding a bridge, on the ground that the resolution did not authoriz; such expenditure, mandamus will lie to compel the audit of such claim on the merits.
    Appeal from a final order, directing a peremptory writ of mandamus to issue.

      Roy C. Webster and John Desmond for app’lts; John Van Voorhis, for resp’t.
   Bradley, J.

The relator was commissioner of highways of the town of Greece, county of Monroe, in the year 1891 and until March, 1893. On April 25, 1891, he appeared before the board of town auditors, and called its attention to the condition of what was known as the “ Little Pond Bridge ” and another bridge in the town; and thereupon the board passed the following resolutions:

“ Resolved, that the commissioner of highways (John Slater) of the town of Greece is hereby authorized to repair the bridges that may have gone down since the annual, town meeting, to the best of his judgment.”
Resolved, that it is the sense of this board that John Slater, commissioner of highways, should be reimbursed for moneys expended by him for the benefit of the town of Greece.”

■ The relator thereafter, in that year, constructed a new Little Pond bridge, at the expense of $291 for the abutments, and $800 for the iron superstructure. The board audited and allowed to the commissioner the amount of such expense for abutments, and rejected- his claim for the superstructure: Upon' his petition, an alternative writ was issued, requiring the defendants, as such board, to audit the claim or account for such amount, with interest, or show cause why the command of the writ ought not to be obeyed. By their return to the writ, the defendants admit the adoption of the resolutions before mentioned, and deny that the relator had, by such resolutions or otherwise, any authority to build the bridge so constructed, or that they, by any action on their part, ever accepted the bridge. They admit that the relator presented such claim to the board, and that the audit of it was refused, but deny that the refusal to audit the claim was arbitrary, illegal, and in violation of their duty. The trial of the issues resulted in a verdict for the plaintiff, followed by a final order of the court that a peremptory writ of mandamus issue, commanding the members of the board of town auditors to assemble as such, and audit and allow such claim of the relator. The old bridge was a wooden one, constructed on log abutments and pier, and was about 45 feet in length. The logs had become somewhat decayed, as had also some of the stringers. After the town meeting in that year, and on April 24th, one end of the bridge fell down, and it was thus rendered impassable. The next day the resolutions above set forth were adopted by the town board.

The leading question is whether,-by those, resolutions, the board consented to the construction of the bridge as it was constructed, within the meaning of the statute which provides that:

“ If any highway or bridge shall at any time be damaged or destroyed by the elements, or otherwise, the commissioner of highways of the town in which such highway or bridge may be situated, may, with the consent of the town board, cause the same to be repaired or rebuilt, although the expenditure of money required may exceed the sums raised, or authorized to be raised, for such purpose as hereinbefore provided; and the commissioners of highways shall present the proper- vouchers for the expenses thereof, to the town board at their next annual meeting and the same shall be audited by them and collected in the same manner as amounts voted at town meetings.” Laws 1890 c. 568, § 10.

The statute also provides for calling special meetings of the board to audit commissioners’ accounts for such expenses (Id. § 11), and for verification of such accounts (Id. § 12). There was in the consent given by the resolution no restriction as to the manner in which the commissioner should proceed to provide a bridge at the place in question, unless it is found in the use of the word “repair, and what was reasonably essential to the purpose was expressly left “to the best of his judgment.” It would therefore seem .that if, in his judgment, it was deemed best or necessary to its reparation to remodel or reconstruct the bridge, to do so would apparently come within such consent. Mather v. Crawford, 86 Barb. 564; Huggans v. Riley, 125 N. Y. 88; 34 St. Rep. 458. And inasmuch as the commissioner was the officer having the care and superintendence of the highways and bridges in the town, and was charged with the duty of keeping them in repair (Laws 1890. c. 568 § 4), the board were lawfully permitted to make his judgment the measure of their consent. He had been placed, pursuant to the statute, in that relation to the public, and in that view the board were at liberty to assume that he would faithfully ex: ercise his judgment and perform his duty in that behalf. If,the reparation in material and structure of the passageway made by him over the stream or waterway was the product of his judgment, it is not seen that the commissioner of highways exceeded the consent granted to him by the town board. It may be assumed that, in the exercise of his official functions, the commissioner acted in good faith, and therefore according to the best of his judgment, in the matter, unless the contrary appears. This is the rule applicable to the action of officers clothed with discretionary or judicial powers. The old bridge had been supported by log abutments at the ends and a wooden pier in the center, consisting of posts supporting a crib of logs. The floor of the bridge rested upon wooden stringers. The logs of the southerly abutment had gone out, and that end of the bridge dropped down. It appears that the other abutment was in a bad condition, and that the pier and substantially all the timbers of the bridge had become somewhat decayed. It cannot well be said that the commissioner was not justified in his conclusion that the repair of the bridge required its reconstruction. He accordingly let the work of putting in stone abutments to the lowest bidder, and in like manner contracted for the iron superstructure. Before that was supplied, he put plank upon stringers temporarily for the use of the bridge. It is urged that, as in that condition it could have been used by the public, the expense of the iron superstructure was unnecessary and unauthorized. It appears that the highway embracing the bridge is a throughfare upon which there is much travel and transporation, with teams and vehicles heavy as well as light; and the relator may, having in view the safety and durability of the bridge, have deemed the reconstruction of it as it was accomplished more economical for his town than the restoration of the wooden bridge would have been. This, within the meaning of the consent of the town board, given as before mentioned, was a matter to be determined by the exercise of the relator’s judgment.

The contention on the part of the defense is that the controversy has relation only to the exercise of power judicial or discretionary in character of the town board, and that, as the board has acted in rejection of the claim, there is no support for the remedy of mandamus. The legal proposition so stated is substantially correct. It is not the province of the writ to review the exercise of such power, or to direct what the result of its exercise shall be; and, if that is the only purpose it can serve in the present case, the relator is not entitled to it. People ex rel. Hammond v. Leonard, 74 N. Y. 443 ; People ex rel. Francis v. Common Council of Troy, 78 N. Y. 33 ; People ex rel. Millard v. Chapin, 104 N. Y. 96f5. St. Rep. 588; People ex rel. Myers v. Barnes, 114 N. Y. 317; 22 St. Rep. 164. But that is not the situation. The town board did not audit the relator’s account, and the main ground of its rejection was that no consent or authority had been given to him to build the iron bridge. In this, as viewed here, the board did not give the effect to the resolutions to which they were entitled; and, as he had such consent, it became the duty of the board to aud it his bill on the merits, when duly presented for the purpose.

The question whether the consent expressed in the resolution of the board was broad enough to authorize the relator to proceed in the manner he did to provide the bridge was one of construction, in view of the circumstances as they then existed. Its interpretation or effect was not necessarily a matter to be controlled by the judgment of the board when the relator’s claim was presented, and, so far as there was any facts legitimately bearing upon that question, they properly were the subject of consideration upon the trial of the issues made by the return of the alternative writ

The position urged that the purpose or measure of the consent was a matter necessarily to be determined by the judgment of the board is not sustained, and therefore the construction and effect given to the consent is the subject of review in this proceeding. As the board erred in that respect, the rejection of the account on that ground did not conclude the relator in seeking to require that his account be audited. People ex rel. Bliss v. Board of Sup'rs of Cortland Co., 39 St. Rep. 313.

The relator incurred some expense in providing and erecting "the iron superstructure of the bridge, and, by reason of the consent so given him, is entitled to payment of the amount reasonably, incurred by him in that behalf. His bill for it is $800, exclusive of interest; and, so far as it appears here, that sum was the amount of the expense actually incurred by him. But that question is not here for consideration. It is properly the subject of inquiry by the town board, in the determination of which its action will be judicial in character; and, as before stated, the result of its audit of the claim upon the merits is not the subject of direction by the peremptory writ.

The suggestion that the matter of the account had passed from the jurisdiction of the town board when this proceeding was commenced, and therefore it was instituted too late for the purpose of any relief, requires no consideration. It does not necessarily so appear in respect to the account which the relator seeks to have audited; and no such question seems to have been specifically raised at the trial or pointed to by any exception. The purpose of the writ is to require the officers constituting the town board, as such, to act, and any change in the personnel may be disregarded. People ex rel. Case v. Collins, 19 Wend. 56.

There was no error in any rulings on the trial bearing upon questions essentially pertinent to those before the court for consideration, and none to the prejudice of the defendants. The order appealed from, among other provisions, directed that the peremptory writ command the town board to “ audit and allow the claim of the relator,” etc. ■ This may be susceptible of a construction which would give to it an import broader than that intended by the court. The order should therefore be modified by striking •out the words “ and allow,” and by inserting in the place thereof the words “ on the merits; ” and, as so modified, the order should be affirmed, with costs to the relator.

All concur.