author: Barnard, P. J. Pratt, J.

text:
    Augustus N. Lindsley, Resp’t, v. Henry W. Van Cortlandt et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    1. Judgment — Entry on offer — Proof of service not necessary.
    The judgment roll entered upon an acceptance of an offer of judgment need not contain proof- of service of the summons.
    2. Fraud — Preference.
    There is nothing illegal and fraudulent in the fact that a debtor facilitates the proceedings of his creditor, unless there is a fraudulent intent.

      3. Same — Transfer.
    A son being honestly indebted to his father gave him a bill of sale of certain personal property, the sum mentioned as the consideration being a fair price for the goods, which was credited on the debt. Meld, that a finding that the bill of sale was fraudulent was erroneous.
    4. Same.
    The mere fact that the son intended to prefer the father and the father wished to be preferred, and they were co-operating to that end, is not suffi-" cient without proof to connect the father with the fraudulent intent of the son, if that existed, to prove fraud in a judgment recovered by the father.
    Appeal from judgment in favor of plaintiff, setting aside a judgment recovered by defendant, Augustus Yan Cortlandt, against his son, Henry W. Yan Cortlandt, and the subsequent proceedings thereon, as irregular and fraudulent.

      John H. Ferguson, for app’lts, Henry W. Van Cortlandt et al.; W. W. Schrugham, for app’lt, Augustus Van Cortlandt; James M. Hunt, for resp’t.
   Barnard, P. J.

The finding that the judgment obtained by Augustus Van Cortlandt against Henry Van Cortlandt on the 21st of July, 1891, was irregular, illegal and void, is not supported by the evidence. The debt upon which it was founded was good and it is so found by the trial court. The claim was put into the hands of Reevs & Scrugham for the purpose of obtaining a judgment upon it. Wm. H. Scrugham served a summons-personally upon the defendant and he made an offer of judgment which was accepted. In filing the papers for judgment no proof of the service of the summons was annexed; but the summons and complaint, and offer and acceptance, both acknowledged by the respective parties. The omission was subsequently corrected and the plaintiff, Augustus Lindsley, was permitted to file proof of service. The judgment lacks nothing in form. Was it given to defraud creditors? There is nothing to prove such an intent, assuming the judgment to be valid. The plaintiff immediately issued execution upon it and obtained a receiver. The bill of sale of the personal property given by Henry Yan Cortlandt was valid. The debt to his father was reduced by this sale $728. Augustus Yan Cortlandt took immediate possession and has ever since retained it. The receiver took possession of the remaining personal assets as receiver and under the order of the county judge proceeded to advertise the same at public auction, when he was arrested by the injunction herein. Augustus Yan Cortlandt was diligent and did not suffer his execution to become dormant, and if he bad a good debt he had the same rights as a stranger. Hpon the merits the defendants are entitled to have a reversal of this judgment. It seems to be established by a long line of authorities that the plaintiff in this action, not being a judgment creditor, cannot maintain it. Sullivan v. Miller, 106 N. Y., 635; 11 St. Rep., 312; Briggs v. Austin, 129 N.Y., 208; 41 St. Rep., 378; Frothingham v. Hodenpyl, 48 id., 449.

The granting of the order to file the proof of the service of the summons and complaint was clearly within the power of the court, if it was necessary. The service was made and the order merely permitted the filing of the proof as if it had been filed in due time. I think the judgment was good without it. The granting of the motion made by plaintiff to insert allegations in the complaint that the bill of sale was fraudulent, was also proper. It could have been proven without the insertion of § 4 of the complaint under the general allegations of fraud. An act done in fraud of creditors at about the same time will be received to show fraudulent intent.

The order should be affirmed, without costs.

The judgment should be reversed and the complaint dismissed, with costs.

Pratt, J.

I am unable to concur in the conclusions reached by the learned trial judge in this cause. The action was brought to set aside a bill of sale and certain judicial proceedings on the theory that they were fraudulent as against creditors. The controlling facts have been found or appear by evidence substantially undisputed.

Young Van Cortlandt owed his father $7,988.50 on July 20, 1891. He also owed the plaintiff quite a sum, the precise amount not being important in my view of the questions here involved. Hé on that day sold certain property to his father by a bill of sale, apparently regular on its face, in consideration therein expressed of $728.35, which sum was immediately credited by the father in reduction of this debt, thus" leaving the debt $7,260.15. The father immediately entered into possession of these goods, and there is no evidence that he did not maintain it. The sum mentioned as a consideration in the bill of sale was a fair price for the goods covered thereby. So much appears by the findings. The defendants each requested the court to find that on the same day the father commenced an action in this court against the son to recover $7,060.15. The court refused so to find on the request of the father and omitted to pass on a like request by the other defendant. The request was undoubtedly material, as will presently appear. There can be no question but that the action was commenced on that day. The son swore that the summons was served, but did not state the date. But the findings show that on the 20th day of July, 1891, the son appeared in person in the action and offered judgment for $7,060.15 with costs, and that this offer was accepted on the same day. These facts appeared without contradiction by the affidavit of the father’s attorney and also by due acknowledgment of both the offer and acceptance, all attached to the judgment roll.

Judgment was entered July 21,1891, on these papers and upon the summons and complaint, which was verified on the 20th. But no proof of service of the summons was originally filed with the judgment roll. The letter of the Code did not require such proof of service. It provides that plaintiff may file the summons, complaint and offer with proof of acceptance, and thereupon the clerk must “enter judgment accordingly.” It is thus plain that the judgment roll included everything required by the statute, and showed that the action was actually commenced on July 20, 1891.

It is suggested that the practice required that the summons must have been actually served before the offer could have been properly made, on the authority of Trier v. Hermann, 115 N. Y., 163; 24 St. Rep., 552. The answer is three-fold :

First. This case decides no such point. That precise question was not involved in that case. The learned court simply and incidentally remarked obiter that the plaintiff “must pursue the practice prescribed.”

Second. The Code, § 738, does not require filing of the proof of service of the summons. Hence, this judgment was regular on its face without that proof.

Third. At most, the plaintiff in such a judgment must prove the service, if required, but not necessarily by the judgment roll. And he did prove it by the son’s oath as a witness on this trial. Of course, his statement raised the question of his credibility; but the circumstances satisfy my mind that the statement was true. And, again: pending the trial of this action, the court, on special motion in the father’s action, allowed him to file the affidavit of service in that summons, and directed the clerk to attach it to the judgment roll nunc pro tunc. See White v. Bogart, 73 N. Y., 256.

I think this supposed irregularity had some influence upon the decision. Its twenty-eighth paragraph states, without limitation or qualification, that this judgment was irregular, illegal and void. The defendants excepted to this finding. What the irregularity was,-in what respect it was illegal, and how it was void, are matters which are difficult to understand. Here was an honest debt, covered by what seems to me a perfectly regular judgment. Possibly the purpose of the parties may have been to obtain a preference ; but that was not a wrong per se. Beards v. Wheeler, 76 N. Y., 213. Soo, too, circumstances might exist which would satisfy the court that it was entered in pursuance of a scheme to defraud creditors ; but such an inference wonld require most convincing proof of fraudulent intent on the part of both parties in a case where the judgment was entered upon an honest debt justly and wholly due.

An execution was issued on this judgment July 21, 1891, to the sheriff of the county where the judgment debtor resided, which was returned on or before August 1, 1891; and on that day an order was obtained against him in supplemental proceedings granted by the county judge of that county, under which he was examined before that judge on the same day; and on the same day, at the close of the examination, an order was made by the same county judge appointing Mr. Hall a receiver of the judgment debtor’s property, and the receiver duly qualified August 8, 1891. These dates unquestionably show that the judgment debtor was facilitating these proceedings, but there was nothing illegal or fraudulent in that unless there was a fraudulent intent. The county judge had jurisdiction to make this order for this examination, Code, § 2434; and because the application was made “ at the close of the examination," he unquestionably had jurisdiction to make the order appointing the receiver. Sec. 2464. The case does not affirmatively show that this order was filed, but we cannot presume such an omission in view of the receiver’s subsequent qualification and proceedings. The title of the judgment debtor’s property, therefore, vested in the receiver. Sec. 2468. Subsequently, August 15, 1891, the receiver applied to the county court of that county by petition, and that court assumed to make an order instructing him to sell the property in his hands. This may have been wrong. Sec. 2471. But this action did not hinge upon that point, as will presently appear.

In the meantime the plaintiff sued on his debt; and on August 31, 1891, obtained an attachment, which was delivered, based on allegations that the son had fraudulently disposed of his property. That attachment was delivered to the sheriff of the same county and was served on the receiver, who was then in possession of the property formerly owned by the son The plaintiff then commenced this action, the object of which was to attack the bona fides of the bill of sale to the father and these judicial proceedings in bis favor, and to have them adjudged irregular, illegal and void. And the court has, in substance, held them not only fraudulent, but irregular and illegal.

For reasons already stated- they were not irregular, and it was error, as it seems to me, that they should have been thus adjudged. Nor were they void, except on the theory that they were fraudulent as against the plaintiff. This remark, of course, does not apply to the order of the county court instructing the receiver, who was doubtless subject to the direction of this court. Code, § 2471. But no harm has been done in that regard because the plaintiff applied to this court in this action for and obtained an injunction; and the court, on heaving the parties, permitted the receiver to collect the assets, and directed that when he realized $1,890, that sum should be paid into this court, and the injunction was dissolved on the subsequent payment of that sum.

Now I fail to detect any evidence upon which to adjudge any bad faith on the part of the receiver, and since the judgment holds all these proceedings void there was an error committed against him which calls for reversal and a new trial. Perhaps the direction by the county court was invalid, but his appointment was undoubtedly valid ; and since he has acted in good faith, he was entitled to the protection of the court. There was, therefore, no reason why he should have been ignored, or for the appointment of a new receiver.

In the next place I think the decision proceeds upon the theory of the illegality and irregularity of the bill of sale to and proceedings in favor of the father. The findings in that particular are erroneous, and there should be a reversal and new trial in favor of all parties on that ground.

In the next place the finding of fraud seems so interwoven with this theory of irregularity and illegality that I am satisfied that a new trial should be ordered on that ground.

In the next place, when we consider the evidence of fraud itself, it seems limited to the son. There was evidence that he declared to one witness that he intended to “beat-Gus,” evidently referring to plaintiff; but the father was not present and, for aught that •appears, knew nothing about that statement. Hor can I see any evidence which, in my judgment, justifies the finding of fraud against the father. Here was a perfectly valid claim by the father against the son which was paid to the extent of $728.35 by this bill of sale, a transaction which both of them had a right to make. So, too, the judgment and subsequent proceedings were based upon indebtedness actually found. If these proceedings had not been thus supported by truth, equity and justice, there might be ground for imputation of fraud against the father as well as the son. But the fact is the other way; and the utmost-that can be said is that the son intended to prefer the father and the father wanted to be preferred, and they were co-operating to that end. Of course I do not mean to say that there may not be fraud in such a case. But I simply hold that there must be some other evidence of it, something more than here happens to connect the father with a fraudulent intent on the part of the son, if even that exist. True enough their relations require us carefully to scrutinize their dealings ; and perhaps to treat them with suspicion ; but suspicion is not proof of fraud. It must be proved, not by surmise, but by evidence which rises above the realm of mere suspicion, and to the dignity of proof. Otherwise it would be next to impossible to sustain transactions between near relations upon any other theory. The mere relationship would justify an inference of fraud, and that is going much too far.

It is in this view that I am unable to approve the disposition •of some of the requests for findings. The refusal to find that the action was commenced July 20, 1891, in face of this proof, was -certainly a technical error, and in view of the other findings seems to have affected the decision. So, too, the finding in the decision that this bill of sale “was without adequate consideration,” seems to me entirely at variance with the finding on the joint request of the son and the receiver “that the sum mentioned as a consideration in said bill of sale was a fair price for the goods.”

Finally, I am afraid that the weight of authority is against the maintenance of this action in any view. The plaintiff is a mere attaching creditor and bad recoved no judgment in his attach-' ment suit when this action was commenced. He may, therefore, wisely consider the question whether or not he will gain any advantage by a retrial of the action. See Galle v. Tode, 38 St. Rep., 862.

In any view, I think the present decision proceeds on erroneous theories, -and, therefore, conclude that there should be a new trial, with costs of this appeal in favor of the father to abide the -event of the action.

Judgment and order denying new trial reversed, and new trial granted, costs to abide event.

Dykmait, J., not sitting.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Barclay Haviland, Resp’t, v. Martha T. Willets et al., Adm’rs, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Release — Fraud.
    Plaintiff’s brother executed a will by which he left the larger part of his estate to two nephews of his wife, but one of said nephews died before the testator, and his share lapsed aud went to plaintiff, who was the sole heir-at law. Plaintiff was a farmer, seventy-four years old, and before he was informed of his rights in 1lie matter, the other nephew, who was the executor, induced him to go before an attorney and sign a release and agreement to a division of the estate in accordance with the terms of the will. At such meeting the attorney mentioned to the executor, in technical language, that the legacy to the nephew had lapsed, and that plaintiff was entitled to half the property, but plaintiff testifies that he did not hear him. ' Seld, a proper case for cancellation of the release.
    Motion for new trial and to set aside an interlocutory judgment in plaintiff’s favor.
    The action is brought to have set aside a certain agreement in the complaint set forth, on the ground that it was executed by the plaintiff in ignorance of his rights, and in ignorance of the facts upon which such rights depended; and that its execution was procured by the other party thereto, who had full knowledge of all the facts in question.
    Isaac E. Haviland, then a resident of the county of Dutchess, made his will in the year 1855. A copy of the will is annexed to the complaint. By its terms, after giving $2,000 to the plaintiff, his brother, and $2,000 to his father, Eleazer Haviland, and some small legacies of inconsiderable amount, he devised all of his estate to Stephen Taber and Samuel T. Taber, share and share alike, they being the nephews of testator’s deceased wife.
    At the time of making the said will the testator was worth about $40,000, a considerable portion of which had come to him from his deceased wife.
    Shortly after making the will, the testator became insane, and so remained until his death, about Thanksgiving Day, in the year 1885. A committee was appointed of his estate in 1860, and at the time of his death the estate had increased to a value of $177,223.71.
    The testator left him surviving no descendants, and no widow, father, mother, or sister, and left the plaintiff herein as sole heir at law and next of kin.
    Samuel T. Taber, one of the nephews and residuary legatees named in the will, died before the testator, and as to the share devised and bequeathed to said nephew the testator died intestate.
    Immediately after the funeral of the testator, and on the same day (about December 1, 1885), Stephen Taber, the surviving executor and residuary legatee, suggested going to examine the will.
    The plaintiff, in response to such suggestion, and in company with a married daughter, Mrs. Otis, went to the Brooklyn Trust Co., where the will was got out and read by Stephen Taber. Martha Willetts and Phebe Willetts, defendants herein, and being the two daughters of the deceased nephew, were also present.
    The question of the validity of the will, or any of its presents,, does not seem to have been discussed, but a proposition was at once made by Stephen Taber, that the increase of the estate over and above the $40,000 the testator possessed when he made the will should be divided pro rata among the beneficiaries named in the will, according to the amount of their respective legacies or devises. For the purpose of such division, the $2,000 given the deceased father of the testator and the plaintiff was to be treated as if given direct to the plaintiff, making his legacy $4,000. To this there was to be added $15,000 (being the one-tenth of the increase of $150,000), making a total of $19,000 for the plaintiff.
    Some time afterwards Stephen Taber drew up in his own handwriting a memorandum of agreement of the way in which the estate was to be divided. It provides for division upon the basis of the sources from which were derived the $40,000 assumed to have been owned by the testator at the date of his will, the result being precisely the same as the division proposed to be made on the day of the funeral.
    This agreement w'as signed by the plaintiff, by Stephen Taber and by Martha T. Willetts.
    On March 18, 1886, the plaintiff accompanied Stephen Taber to the office of Garrettson & Eastman, the attorneys for the latter, and the' agreement, to set aside which this action was brought, was executed by the plaintiff and by Stephen Taber, individually and as executor.
    Under its terms the plaintiff received $18,000. the remaining $1,000 being held in abeyance to await the final settlement of the estate. The plaintiff was at the time an aged man, seventy-three years of age, had no attorney to represent him, and was unaccompanied by his wife or any of his children.
    He was ignorant of the fact that his brother had died intestate as to that share of the estate bequeathed to Samuel Taber, the deceased nephew, and was ignorant of the fact that he, as the sole heir at law and next of kin of his brother, was entitled to such lapsed share.
    Stephen Taber, the surviving executor and residuary legatee, had been apprised by his counsel that the provisions of the wall in favor of the dead nephew had lapsed, and that Barclay Haviland took such share.
    In April, 1886, Stephen Taber died. Subsequently the defendants, Martha T. Willetts and Thomas T. Taber, were appointed as administrators, with the will annexed of Isaac E. Haviland.
    Subsequent to the death of Stephen Taber, the plaintiff was advised of his rights, of which he had before been ignorant, and brought this action.

      Wm. H. Arnoux and John R. McArthur, for app’lts; Frank B. Lown, for resp’t.
   Pratt, J.

We concur in the conclusions of the learned trial judge in this case. The agreement in question was made between Taber, who was the surviving executor of a will, and plaintiff, who was a legatee and sole heir at law of the testator. It is, therefore, apparent that the executor sustained a relation of trust and confidence to the plaintiff, and that, if the writing shall stand, the trustee and his friends thereby became substantially the donees of that which must have been regarded as quite a fortune by each of them, a fortune which belonged to plaintiff and which it was this trustee’s duty to preserve for and deliver over to him. in due course of administration. The case, therefore, falls within a class which courts always regard with just suspicion. This one presents features which offend the moral sense. An aged man, living on and working a farm, unused to the ways of business, suddenly became entitled to a fortune through events dependent somewhat upon questions of law which, although familiar to lawyers and perhaps to shrewd business men, were, nevertheless, quite abstruse, not to say intricate to an old farmer like the plaintiff. It is conceded that the executor was a remarkably shrewd, experienced, and, as we judge by the result, very thrifty person.

Plaintiff was somehow induced to give an apparent assent to a division of the- testator’s estate, including his share therein, upon a basis totally at variance with his legal rights. He was subsequently taken to the office of a lawyer, not of his own choice, but selected by the trustee. He was utterly without professional advice or assistance of his own selection. The only remark made in his presence, which would even tend to suggest his legal rights, although intended as it is said for his benefit, was not even addressed to him, but to the trustee. It was couched in technical language, which could have had but little meaning to this old farmer then about seventy-four years of age. It is by no means clear that he even heard the remark or felt at liberty to inquire about its meaning since it was not addressed to him. The result was a long, carefully drawn and somewhat involved paper covering five pages of the printed case, three and a half of which are occupied with recitals which become conspicuous chiefly because they fail to disclose the point upon which this old man’s rights depended, and which was the subject of the lawyer’s remark above referred to.

The paper, though in form of an assignment and release, in reality attests an act of simple bounty towards this trustee and his relatives. There was nothing in the relations between these donees and this old man which would naturally suggest such a disposition on his part. He gave none of the instructions which led to the preparation of these carefully drawn recitals. Indeed, these recitals strike us rather as an apology than as the true reason or consideration for the operative clause which follows.

A case so striking could scarcely have failed to impress its details, or, at least, leading incidents upon the memory of the person who prepared this paper. And yet the significant fact appears that the draughtsman was unable to recall but little of anything important save the single remark above alluded to.

We cannot detect with exactness the influences whicli led this old man to do this thing; nor is it necessary that we should do so. The rule to which we allude rests in a great measure upon the improbability that one thus situated should ever be able to prove to a court, or even explain to himself, just what did induce the act in question. The court looks upon the relations and their results. Story Eq. Jur., § 319; Fulton v. Whitney, 66 N. Y., 548.

We fully agree with the trial judge that this old man executed this paper under a mistaken notión of bis rights. But it is said that there is no evidence of mutual mistake. The answer is that mistake on the one hand and fraud on the other is quite sufficient to justify the conclusion reached in this case.

It is unnecessary to consume time in an effort to show the application of this observation ; and we, therefore, without farther-discussion, affirm the judgment, with costs.

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


text:
    William H. Miller et al., Resp’ts, v. Edward Benjamin et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Contract — Errors in delivery — Rescission:
    Under a contract for the delivery of lar ;e quantity of goods at different times occasional or casual failures to deli- er goods of the proper size or weight as called for, which the vendor is v ’tiling to rectify, do not entitle the vendee to terminate the contract; but i ’ the instances are so numerous-as to subject the vendee to serious trouble, he is justified in terminating it.
    Appeal from judgment in favor of plaintiffs entered upon verdict, and from order denying motion for a new trial. Action upon a contract for the sale and delivery to defendants of slit steel, Mo. 27 and 29 gauge. After several deliveries defendants refused to accept any more, claiming a failure of plaintiffs to comply with the contract, in that they sent the wrong gauge, and rescinded the contract
    The following is the charge of the court:
    “ There is no dispute as to the contract here, it was that this plaintiff should furnish, and these defendants should take a hundred thousand pounds of this steel at seven cents a pound, to-be delivered in quantities of about twelve thousand pounds a montn.
    “Mow it is not disputed here that at some time in July, or the 1st of August, these defendants refused absolutely to accept any other deliveries under this contract. Therefore, the first question for you to determine is whether they were justified in so refusing or not. The defendants were bound to receive, and the plaintiff was bound to offer to deliver. The gauges were 27 and 29, which left the defendants the election of picking out which they chose. The defendants say that they refused to go along further under this contract because this plaintiff, instead of delivering to them 29 gauge steel, was delivering to them constantly 27 gauge steel, which is heavier than they wanted for their purpose, besides costing them more for the extra weight, and that it took their time and that of their employes and servants to reject it and send it back. The plaintiff says that he did, in one or two cases, make a mistake in a small lot, sending No. 27 instead of No. 29, but that he received it back, and gave the other in place of it.
    “ Now where there is contract that calls for a great many acts, it is not necessary that a person should perform every part of it literally. It would be a hard rule to hold, and it is not the law, that a person making deliveries of goods under a contract involving a large number of articles, or extending over a long period of time, for a blunder or error made in some deliveries which could be rectified and remedied as long as he was willing to do that, that that should give the other party the right to rescind and terminate the contract. On the other hand, it is apparent that these blunders might be so persistent as to amount to a breach of contract. Now, was there such failure on the part of the plaintiff to furnish the particular sizes or weights of steel called for by these defendants as justified them in terminating the contract ? If there was, and the instances were so numerous as to subject them to serious trouble, and was not in fact a carrying out of their contract, the defendants were justified in terminating it. But if it existed only in isolated cases, or reparation was made for the error, and that did not occasion any severe or substantial loss to the defendants, they would not be entitled to terminate the contract. That is the first thing for you to determine. If you find that the delivery of No. 27 instead of No. 29 gauge was so often as to affect the defendants to their injury, they had the right to terminate the contract; but if there were only an occasional or casual instance, which did not occasion them injury, then they had not the right to terminate it.
    If you find that there was a substantial violation of the contract your verdict should be for the defendants. If you find out, however, that there was not such substantial violation of the contract, or that there were no such deliveries of mistaken sizes or weights, then the plaintiff would be entitled to recover all he has lost by failing to deliver the remainder of this steel, some seventy odd thousand pounds, at the contract price of seven cents a pound, two per cent off.
    Now there is a second cause of action here, for five hundred and odd pounds. The plaintiffs say that the defendants did not pay for it. The defendants say that they did, by a credit which they were entitled to from the plaintiffs on account of having asked them to make up some of this oily steel which they had taken upon the plaintiffs’ promise, if it turned out unfit for use, to stand the expense. If such a contract was made by the plaintiffs it is paid for. But unless you are satisfied of that fact, then it is not paid for.
    On the first cause of action the burden of proof is upon the plaintiffs. On the second cause of action the burden of proof is upon the defendants' to show you that the agreement which they claim was made with the plaintiffs, by which he was to go on and cover this steel at the plaintiffs’ expense if it turned out unfavorably.

      Albridge C. Smith, for app’lts; Gwillim & Meyers, for resp’ts.
   Pratt, J.

The testimony would warrant the jury in believing that the mistakes alleged in delivery of goods, if they existed, were trifling in number and amount; that the plaintiffs stood ready to correct them, and that defendants seized upon them as pretexts to avoid a contract whose execution would result in loss.

The charge of the court correctly stated the law. The verdict was justified by the evidence.

Judgment affirmed, with costs.

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


author: Barnard, P. J.

text:
    Daniel Hunt, Ex’r, App’lt, v. Ellen Gleason et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 13, 1893.)

    Mortgage — Payment—Receipt.
    In an action to foreclose a mortgage held by plaintiff’s testator the defense was payment, and defendants produced a receipt drawn by the mortgagor’s husband, and signed by testator. It was apparently drawn for a payment of interest, but the words "and principle $1,000 paid” were inserted just before the statement of the amount of interest in a cramped and different handwriting. There was testimony that after that date testator had conversations with others showing that the principal had not then been paid, and the mortgage remained in testator’s possession and came into that of plaintiff. Held, that the receipt was not sufficient to sustain a finding that the principal sum had been paid.
    Appeal from judgment dismissing the complaint and directing that plaintiff deliver to defendant Ellen Gleason a satisfaction piece of the mortgage in question.
    This action was commenced for the foreclosure of a mortgage made by Ellen Gleason and Charles A. Gleason, the defendants, to Harrison Hunt, dated December 1, 1886, given to secure one thousand dollars and interest at six per cent, per annum, and due on the 1st day of January, Í890, covering premises in the town of Rye, county of Westchester, New York. Harrison Hunt, the mortgagee, died April 6, 1888, leaving a last will and testament, and Daniel Hunt, the plaintiff herein, was made his executor and duly qualified as such. He found' among the papers of Harrison Hunt, after his death, the bond and mortgage sought to be foreclosed in this action. In March, 1890, the plaintiff commenced a foreclosure of said mortgage, and the defendants, Ellen Gleason and Charles A. Gleason, answered, claiming that on the 1st day of January, 1888, the defendant, Ellen Gleason, paid the principal and interest of said mortgage in full to Harrison Hunt. The court found that the bond and mortgage referred to in the complaint were in the possession of the deceased at the time of his death, and came into the possession of plaintiff as executor subsequent to the death of decedent. The court found that Ellen Gleason and Charles A. Gleason in the mortgage agreed to pay unto Harrison Hunt, or his executors, etc., the sum of money and interest as mentioned in said mortgage. That the defendants paid the interest upon the said bond and mortgage up to and until the 1st day of January, 1888, and no more. The court also found that the defendant, Ellen Gleason, on the 1st day of January, 1888, paid to Harrison Hunt sixty dollars as interest and one thousand dollars as principal, in full of all claims and demands upon the said bond and mortgage.
    The court found, as a conclusion of law, that the complaint should be dismissed and the mortgage satisfied.

      Arthur T. Hoffman (John H. Clapp, of counsel), for app’lt; L. C. & W. P. Platt, for resp’ts.
   Barnard, P. J.

Ellen Gleason, on the 1st of December, 1886, executed and delivered to Harrison Hunt, now deceased, a mortgage for $1,000 on real estate owned by her in Westchester county. The plaintiff, as the executor of Hunt, brings this action to foreclose the mortgage. He claims the entire principal with interest thereon from January 1, 1888. The defendants aver payment of the bond and mortgage, principal and interest, to Harrison Hunt in his lifetime. They produce a receipt given January mortgage, principal and interest. j.ug ijubhuu as to the reality and genuineness of this receipt. It purports to be signed by the deceased owner of the mortgage, and he died in April, 1888, The bond and mortgage remained in his hands until his death, and passed into the possession of the plaintiff as his executor. The mortgage was not, by its terms, due as to the principal until January 1, 1890, but it was proven that the mortgagee promised to take the money at any time. The receipt is drawn by the husband of the mortgagor, and there is sufficient proof as to the genuineness of the signature of the deceased Mr. Hunt. The receipt is unusually drawn, and cannot be explained with the other evidence in the case. On that day the interest was credited by the parties upon a blacksmith bill held by the mortgagor’s husband. The receipt is drawn as if to express a payment of interest only. It is particular and precise as to the payment of interest from January 1, 1887, to January 1, 1888. At the end in a cramped hand is added, “ and principle of $1,000 paid.” This addition is made by inserting it before the conclusion of the receipt for interest; “ $60 interest ” follows it. On the 8th of February, a witness, Crothun, states that the deceased said : “ We have just been settling up a mortgage.” The mortgage had then been paid over a month if the receipt is true. Another witness, Myers, heard the deceased say two weeks before his death that Gleason had paid him a lot of money, and he had gone on a two weeks spree in Hew York. This brings the payment near the middle of March, 1888. Another witness, Hennessy, proves an admission as to the payment made by Hunt on the 8th of April, 1888, and his evidence tends to show it was paid on that day, and was in Hunt’s pocket in bills at the time. Another witness, Verder, says little more than that the Hennessy incident was on the 8th of February, 1888. 1, 1888, purporting to evidence

The receipt is adapted to an admitted payment of sixty dollars interest, and to nothing else. The addition of words, “ and principle $1,000 paid,” is out of place; it is cramped in a receipt made for a payment of interest only, and is, although written by Mr. Gleason, written in a different and finer handwriting from the other part of the receipt. The receipt, if given on the 1st of January, 1888, is at variance with the several conversations showing the non-payment of the principal as late as February 8, 1888, and near the middle of March, 1888. The continued possession of the mortgage by Hunt, deceased, is' a very strong cii’cumstance against the payment of the principal, $1,000. The defendants knew how to do the business ai'ight, for they had paid a previous mortgage, and had taken a satisfaction piece for the cancellation of the mortgage.

There should be a new trial, with costs to abide the event

Pratt, J., concurs; Dykman, J., not sitting.


author: Daly, Ch. J.

text:
    Eugene Staubsandt et al., Resp’ts, v. William F. Lennon, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    Mechanic’s lien — Evidence.
    In an action to foreclose a mechanic’s lien, where the complaint alleged performance, evidence was admitted to show that defendant consented to an extension of the time of performance and to the substitution of a different paint from that called for by the contract. Held, that in the absence of timely and specific objection and proper exception, an objection that such evidence was improper under the pleading could not be first raised on appeal.
    3., Same.
    Such evidence is competent on the question of substantial performance.
    3. Same — 'Verification.
    A verification of a mechanic’s lien, which states that “the statements therein contained are true to his knowledge, or information or belief,” is sufficient.
    Appeal by defendant Lennon from a judgment of foreclosure of a mechanic’s lien entered upon the report of a referee.

      James Kearney, for app’lt; John C. Coleman, for resp’ts.
   Daly, Ch. J.

The action was brought to foreclose a mechanic’s lien for a balance of $800 claimed to be due under a certain contract between plaintiffs and defendant Lennon for painting and other work upon five houses on West Ninety-ninth street in this city. The complaint alleged performance, which was denied by the answer.

The referee found that the contract was substantially performed, and after allowing $100 for some short comings found that the plaintiffs were entitled to $700 and interest and that they had a valid lien for that amount.

The defendant contends that the findings show a failure of plaintiffs to perform the contract in two substantial particulars, viz'.: to complete the work on or before April 15, 1890, and to use Atlantic lead paint on all the outside iron and work according to agreement Proof was admitted to show that the time of performance was extended' by defendant and that other paint equally as good as Atlantic white lead was substituted for the latter with his consent. It is objected, however, that this proof was improper under an averment of performance, as it was in effect evidence of waiver, or an excuse for non-performance, which should have been specially pleaded. Ho such objection was taken to the evidence when offered, and this was essential to raise the point upon appeal as in the case cited by appellant. E lting v. Dayton, 43 St. Rep., 363. The evidence of the extension of the time of completion was admitted without any objection whatever by defendants and the consent of the latter to the use of other white lead paint was objected to solely on the ground that it was not in rebuttal. In the absence of timely and specific objection and proper exception, defendants should not be permitted to raise this question for the first time on appeal.

The evidence was competent on the question of substantial performance. It showed that time was not essential and that completion was allowed and accepted after the date fixed. It also showed that defendant consented to the use by the plaintiffs of one paint for another, they being of equal quality and price.

On the general question of the performance of work in other respects by the plaintiffs the evidence was conflicting, and there seems to be no reason for disturbing the findings of the referee.

The allowance of $100 for omissions is complained of on the ground that there was no evidence that that sum was fair and reasonable. The defendant produced bills for work done to supply alleged deficiencies amounting to a little over $100. Other testimony showed the expense to be greater. Plaintiffs gave no testimony and the referee was justified in fixing the allowance as stated.

The validity of the lien is questioned on account of the verification, which states that “the statements therein contained are true to his knowledge or information or belief.” This form of verification is in the precise language of the statute and has been held to be proper. Schwartz v. Allen, 24 St. Rep., 912. The opinion in that case was carefully considered and it was held,,citing the authorities, that a verification in the exact language of the statute is sufficient, 2 Wait’s Pr., 339, and that it was not necessary to designate in the verification what particular statements in the lien notice are sworn to upon knowledge, and what upon information and belief. We have decided the same way in this court. Conover v. Lennon, 45 St. Rep., 942.

The judgment should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    Jacob B. Tallman, Resp’t, v. Ferdinand P. Earle, App’lt.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    1. Landlord and tenant — Eviction—Apartment house.
    If during the term of the lease of apartments in an apartment house the portions of which the owner retains control are so mismanaged by Ms agent as to cause the premises to become untenantable, the tenant is justified in abandoning them. A smell as of burning wood, so continuous anu marked as to cause apprehensions of fire, will justify an abandonment, where the owner on notice thereof fails to lemedy the defects.
    2. Same — Evidence.
    Where an answer in an actionfor rent setting up an agreement for surrender in consequence of untenantable condition of the premises is amended on. the trial by alleging a constructive eviction by reason of such condition, evidence as to the untenantable condition of the premises and a failure to remedy the defects on notice is admissible.
    Appeal by defendant from the judgment of the trial term of this court, entered upon the verdict of a jury. The action was to recover the rent of rooms in 'an apartment house, No. 57 West 53rd Street, from October, 1879, to April, 1880, inclusive. The lease was under seal, and the term commenced May 1, 1879. The tenant vacated the premises in September of the same year.

      Robert Davidson, (Isaac L. Miller, of counsel), for appl’t; James M. Smith, for resp’t.
   Daly, Ch. J.

The defense to the action for rent of the apartments occupied was, that the premises being untenantable for certain reasons set out in the answer, it was agreed between him and the plaintiff that he should surrender possession, and indemnify'for any commissions for reletting, and that the plaintiff would receive the said agreement in full satisfaction and discharge of the lease, and that thereupon the defendant, on or before October 1, 1879, surrendered possession, delivered the key, indemnified the plaintiff and kept all the conditions of the agreement on his part, and that said plaintiff accepted the same and over since then has been in possession of the premises. This defen se was duly submitted to the jury upon the evidence offered on both sides and a verdict was rendered in favor of the plaintiff, and no error is alleged in respect of the submission of that defense to the jury.

The defendant was permitted, however, to amend his answer upon the trial by alleging, after the allegations respecting the untenantable condition of the premises, that by reason thereof he was constructively evicted from the said premises. Upon this defense testimony was taken as to the untenantable condition of the premises, but such testimony was afterwards excluded from the consideration of the jury, and the defendant's exceptions to the ruling of the court in that regard present the only question to be determined upon this pleading. The learned judge at the trial ruled in accordance with the views expressed in a former opinion delivered at this general term upon the prior appeal in this action ■ but it becomes necessary under a late decision of the court of appeals to observe a different rule with respect to the defense set up in the answer.

The defense was that the flue of the steam boiler under the apartment occupied by the defendant was so placed as to render the place untenantable and to cause the wall of defendant’s rooms to be uncomfortably hot, and so near to a beam as to cause an unwholesome smell of burning wood, which, shortly after the defendant left, occasioned a fire, to the great damage of persons in the occupation of the rooms which the defendant hired; that the machinery for the elevator was operated by the plaintiff and his servants in such an unskillful manner as to occasion a great deal of unnecessary noise and confusion ; that one of the rooms rented to the defendant was unwholesome and untenantable by reason of its dampness, and unwholesome by reason of the effluvia and offensive air arising from the use and occupation of other portions of said premises in dumping coal ashes and garbage in the hall by persons occupying rooms above defendant under a license subsequently granted by the plaintiff.

The defendant testified that during the months of August and September, 1879, there was a strong smell of smoke and burning wood in the back room of the apartment used as a bedroom; that this odor was continuous and made him and his family apprehensive of fire, deprived them of sleep, caused them to get up at night to go through the apartments, and they considered themselves in danger and finally left the premises; that the janitor was notified that there was a smell of something burning under the apartments and that it ought to be rectified or looked into, but nothing was ever done towards rectifying it; that the smoke came from a defective flue and the janitor was notified of the fact, but nothing was done, and it continued to annoy the defendant until he vacated.

Evidence was given as to an unusual noise from the running of the elevator which was annoying and offensive. Evidence of the origin of the fire was excluded, except that there was no defect in the construction of any furnace or smoke pipe in the building, and all the evidence as to the matters in question finally stricken out by the court, on the ground that the plaintiff, the landlord, was not connected with any of the matters claimed.

In Tallman v. Murphy, 120 N. Y., 345; 31 St. Rep., 483, which was an action to recover rent of an-apartment suchas the defendant here occupied, it appeared that there was an odor of coal gas in the apartment, which made the tenant sick; that the gas, with smoke, came through the flues from rooms occupied by other tenants; that there were loud explosions day and night which alarmed the tenants so that they left the premises, and that the explosions came from the water tank on the roof. It was held that the evidence sustained the claim of an eviction and justified the abandonment of the premises under the act of 1860, chap. 345, which authorizes the lessee of a building which shall without fault or negligence on his part be so injured by the elements or other causes as to be untenantable to quit and surrender possession, and discharge him from the rent.

The decision was placed upon the ground that the landlord in the apartment house in question retained charge and control of the heating of the premises, sanitary arrangements, supplied the water, etc., and that it was his duty to the tenant to see that all such matters and appliances were kept in proper order, and that any discomfort or apparent peril arising from a breach of such duty was a nuisance of his creation.

The building in which this defendant was a tenant was an apartment house so arranged that several rooms on one floor should constitute an apartment and intended to furnish therein • complete arrangements for the occupation of one family. The plaintiff occupied the apartment nearest Fifth avenue on the first floor. The owner retained charge of and control over everything that was common to the whole building of which each person had the use of the beneficial enjoyment, such as the hallways, elevators, heating apparatus, etc.

If during the term of the defendant’s lease any of these matters were mismanaged by the agent of the'plaintiff so as to cause the premises to become untenantable, the tenant would be justified in abandoning them. A smell as of burning wood, so continuous and marked as to cause apprehensions of fire, would justify pi abandonment. The apparent peril was not greater than that caused by loud explosions, the source of which could not be ascertained. .

In neither case was the tenant bound to remain in the premises at the risk, possibly, of his life and the lives of those under his care. He had no right or authority to alter the construction of the premises, or make repairs, as he would have in the case of the demise of an entire dwelling house. He could not remedy any defects in the elevator, or control the management, or prevent the use by other tenants of the premises under a license granted by the landlord. It was the duty of the latter, so far as the matters which he had retained under his exclusive control were concerned, to see that the beneficial enjoyment of the premises by the tenant was not interfered with. If he failed to perform that duty, and the premises became untenantable, the tenant was justified in leaving. Duff v. Hart, 40 St. Rep., 676.

Whatever may have been said to the contrary of these views at a prior general term was' the opinion only of the learned judge who wrote exhaustively upon the subject; but the majority of the court were not committed to all of the views expressed, in that opinion, because the state of the pleadings then before the court made it a grave question whether any defense was set up except that of surrender and acceptance.

The soundness of the doctrine now expounded by the court of last resort, with respect to the obligation of a landlord of a house divided into apartments to' be let separately and the rights of a tenant of such an apartment, cannot be questioned, and under the* pleadings in this case, as amended at the trial, we think that the proof offered should have been received and the defense submitted to the jury.

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

Bischoff and Pryor, JJ, concur.


text:
    William H. Jackson et al., Resp’ts, v. Lorenz Reich, App’lt.

      (New York Common Pleas, General Term,

      Filed March 6, 1893)

    1. Variance — Bill of particulars.
    A variance between the proof and a bill of particulars which is not calculated to mislead the defendant should be disregarded.

      2. Same.
    The action was brought for a certain number of gas logs, tiles, etc., and for placing the same in defendant’s hotel, and the principal dispute was as to whether they had been included in previous bills. The bill of particulars specified work done at certain dates and in certain rooms of said hotel. Meld, that as the work was all done in one building, and defendant had it in his power to ascertain with exactness in which rooms logs had been placed and work done, it was not error, on defendant showing that the rooms specified had no gas logs or fire-places where they could be set, to allow a recovery for logs set in other rooms and at different dates than specified in the bill of particulars.
    Appeal by defendant from a judgment of this court, entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      Abram Kling, for app’lt; H. P. K. Peck (John Brooks Leavitt, of counsel), for resp’ts.
   Daly, Ch. J.

The complaint was for goods sold and delivered, including thirteen lava gas logs, iron bottoms for coal grate baskets, and tiles for facings, and for work, labor and services in attaching the gas logs, etc., an itemized account of which articles and" labor is set forth in detail in the bill of particulars annexed to the complaint, all which were alleged to be reasonably worth $322.15. The answer admitted the doing of certain work by plaintiff's for defendant upon the Hotel Cambridge, but denied knowledge or information sufficient to form a belief as to the furnishing of the materials and doing of the work claimed for, and alleged payment for all goods, merchandise and materials furnished and all work performed for him by plaintiffs. The jury found a verdict in plaintiffs’ favor for $100.

The bill of particulars annexed to the complaint specified work done at certain dates and in certain rooms of defendant’s hotel in the setting of lava gas logs, etc. The plaintiffs were permitted, under defendant’s objection, to prove the setting of gas logs in those rooms at dates other than those specified in the bill of particulars; and the defendant having given evidence to show that the rooms specified had no gas logs, nor fire-places or flues at which gas logs could be set, the plaintiffs were allowed to recover for gas logs actually set in other rooms in the hotel, and not paid for.

The defendant excepted to the allowance of evidence of work done upon dates not specified in the bill of particulars, and excepted to the refusal of the court to charge that the plaintiffs could only recover for the rooms actually charged for in the bill of particulars. These exceptions present the question whether the variance between the proof and the bill of particulars could be disregarded. If such variance was not calculated to mislead the defendant it might be disregarded. 2 Am. & Eng. Enc. of Law, 251.

It appears that the plaintiffs had done a large amount of work in defendant’s hotel, in the year 1887, in furnishing and setting fireplaces, fenders, gas logs, grates and tiles amounting to $7,510.60, for which they had been paid, and the items sued for were said to have been furnished in the years 1888 and 1889. The principal dispute was whether the thirteen gas logs sued for had not been included in the previous bills. The total number charged for, including those in suit, was about thirty-seven, and there were fifty-five drawing rooms or parlors in which there were mantelpieces, without reckoning the bedrooms with flues. The defendant could not be misled as to the quantity of gas logs, fenders, grates, tiling, etc., which had been set up in those rooms, and the room numbers given in the bill of particulars would not impede in the least any verification of the plaintiffs’ charges which he might desire to make.-

_ It appeared that there were in the hotel fifty-five suites consisting of more than one room, and each room was numbered separately, and those rooms connected, so that mistakes and confusion might easily arise in the minds of mechanics as to the number of the particular room in which certain work was done. This would account for any mistakes in the plaintiffs’ bill of particulars. But the defendant had it in his power to ascertain with exactness in which room logs had been placed and other work done, and to show by the bills he bad paid whether all the work had been paid for, and so the variance between the bill of particulars and the proof could do him no harm. For the same reason variance as to dates was immaterial. The work was done in one building, and all that was needed was for defendant to compare the items of work actually done with items charged in the various bills rendered. In fact, the demonstration of the correctness or incorrectness of plaintiffs’ demand was in his power without the aid of any bill of particulars.

Judicious liberality has been shown by the courts in disregarding variances between bills of particulars and proof. Thus, in Brown v. Williams, 4 Wend., 360-368, which was an action to recover back money paid, and the bill of particulars alleged that it had been paid by a certain person named, proof of payment by a different person was allowed. In Dubois v. D. & H. C. Co., 12 Wend., 334, the plaintiff was allowed to recover a greater price than that alleged in his bill of particulars. In Duncan v. Bay, 19 Wend., 530, a variance of a year as to the time of sale of ahorse, between the bill of particulars and the evidence given on the trial, was not regarded. In McNair v. Gilbert, 3 Wend., 344, the notes sued upon were described as bearing interest, while the notes proved did not bear interest, and the variance was held immaterial. In Bonney v. Seely, 2 Wend., 481, plaintiff claimed in the bill of particulars to recover for money paid, and his proof showed a payment in land instead of money. This was held admissible. In Newstadt v. Adams, 5 Duer, 43, the complaint alleged the delivery of a box to the defendants, as common carriers, at their office, 59 Broadway, while the proof showed a delivery at their office in Canal street. It was held a variance which the court, by the Code, was required to disregard. The variance between the bill of particulars and the proof in the case before us was not more serious than the variance disregarded in any of the authorities cited, and the defendant hasl nothing to complain of in the ruling of the court in that regard.

Error is claimed for instructions to the jury; but the appellant’s brief misapprehends the charge of the court. Thus, the court did not charge that if the jury believed the evidence of Hankinson (one of the plaintiffs), that he delivered forty or fifty gas logs, they must find that there was no contradiction thereto ; but charged that if they found that such evidence had been adduced upon the trial in this case, then they might find there was no contradiction thereof. Nor did the court charge that plaintiffs were entitled to a verdict if the jury believed Hankinson’s evidence; but, on the contrary, told the jury that Mr. Hankinson being a party to the suit, they had a right, after weighing" the testimony, to entirely disregard his testimony ; and in no part of the charge did the court intimate that his evidence was conclusive.

It is objected that Hankinson gave no such testimony as is embraced in the charge of the judge. This is not correct. Hankinson swore that it was forty to fifty-five logs altogether which he furnished, and which went into the rooms of the hotel; that this was his recollection from having seen them in the rooms. It is objected that there was contradiction of this tes timón v. The defendant made the following statement; I told him (Hankinson), I don’t believe there has been twenty logs put in the Cambridge where he claims forty-five, and I will prove it that there is not twenty-five logs in the Cambridge to-day and never was.” This was no contradiction of the testimony of Hankinson. The other evidence of the defendant related to the specific rooms charged for in the bill of particulars and not to the whole number of logs furnished.

None of'the exceptions were well taken and the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs.

Bischoff and Pryor, JJ, concur.


author: Daly, Ch. J. Pryor, J. (dissenting.)

text:
    Frederick Siefke, App’lt, v. Henry Siefke, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 6, 1893.)

    1. Bills and notes — Alteration—Burden of proof.
    Where the complaint upon a promissory note, under seal, alleges the-malting and delivery thereof by defendant, and that it is under his hand and seal; while the answer is a general denial, no consideration and material alteration by affixing a seal without defendant’s consent, the latter allegation is merely redundant and does not amount to an affirmative defense, and the burden of proving that the seal was upon the note at the time of execution and was not attached afterwards is upon the plaintiff.
    (Pryor, J., dissents.)
    8. Appeal — Charge.
    An objection to the charge not brought to the attention of the trial court is not available on appeal.
    3. Release — Consideration.
    There was evidence that plaintiff had promised to pay defendant’s brother’s $5,000 if defendant would release to his brother his interest in certain mortgages. Held, that the court properly instructed the jury that if they believed the promise was made, such promise and payment was the consideration for the release.

      4. Bills and notes — Evidence.
    Where the question in controversy over a note was whether it was given to plaintiff to secure the repayment of an advance of money to defendant’s brother in settlement of a litigation between the brothers, or whether the money was given the brother as a gift and the note was a mere matter of f orm,_ testimony of defendant that he had never asked the plaintiff for a dollar in his life, and that his brother had received large sums of money from plaintiff, has a bearing on the question in issue, and cannot be held immaterial.
    Appeal by plaintiff from a judgment entered upon the verdict of a jury in favor of defendant at a trial term of this court, and from an order denying a motion for a new trial.

      Ira B. Wheeler, for app’lt; G. W. McAdam (Albert Mathews, of counsel), for resp’t.
   Daly, Ch. J.

The action was brought upon a promissory note, under seal, for §5,000, signed by defendant, dated December 11, 1884, payable to the order of plaintiff six months after date. The complaint alleged the malting and delivery of the note by defendant, and that the said note was under his hand and seal. The answer was a general denial, no consideration, and material alteration by affixing a seal without the consent of the defendant.

The testimony was conflicting upon all the issues, and the jury found for the defendant. Their verdict should not be disturbed upon the facts. It is claimed, however, by appellant that there was an error in the charge of the court and in rulings upon evidence ; but upon examination of the record that does not appear to be the case.

The principal error alleged is the instruction to the jury that the plaintiff was bound to establish by a preponderance of evidence that the seal was not attached after the signature to the note, and it is claimed that this was an instruction that the burden lay upon plaintiff to disprove an affirmative defense, viz., the alteration of the note. The contention is entirely baseless. The complaint averred that the defendant made the note under his hand and seal, and the burden -was upon, the plaintiff to sustain his allegation, and the answer denied that averment.

The .burden is upon the plaintiff to prove his complaint where the answer is a general denial. In Chappell v. Spencer, 23 Barb., 584, the action was upon a promissory note, and the answer was a general denial. It was shown that after the delivery of the note a holder thereof subscribed his name thereto under that of the makers. It was held that there was a failure to prove the complaint.”

The only ground of contention in this case arises from the fact of an additional allegation of the answer that' the note was altered by fixing a seal. But this was mere redundancy and was no more an affirmative defense than would be an allegation that a note was forged, following a denial of the making and delivery. Such an allegation would not cast upon defendant the burden of proving that the note was not signed by him. Execution under defendant’s hand and seal was set up by plaintiff, and as he alleged the facts constituting the issue he was bound to prove them. Heinemann v. Heard, 62 N. Y., 448.

The case of U. S. v. Linn, 1 How., U. S., 104, is cited as authority for the proposition that the burden is upon the defendant of proving that the instrument upon which he is sued has been altered by affixing a seal thereto. Upon examination it appears that the declaration in that case contained three counts, the first upon a bond under seal, and the second and third upon the same bond, but describing it as an “instrument in writing” without any averment that it was under seal, 15 Peters, 290-6 ; and the defendant’s plea to the second and third counts was, that after “ the supposed written instrument ” had been signed, scrawls by way of seals were affixed to it without his consent. The complainants demurred to that plea, and in sustaining the demurrer the court observed that upon the plea the defendant held the affirmative. The question before us was not presented in that case, i. e., where the burden of proof lies upon a general denial to a complaint averring the making of an instrument by the defendant under his hand and seal. Had the complaint in this case simply averred the making of the note, and had the defendant sought to avoid his liability by alleging an alteration by the subsequent addition of a seal, the case cited would have been directly in point; but under the pleadings it is not decisive of the question presented by this appeal.

Ñext in importance is the exception which brings up the alleged error in charging the jury that the testimony of the plaintiff might have been taken at his house. There was evidence to show that, owing to the plaintiff’s age and state of health, the excitement of a trial would be very prejudicial to him, and it is contended that the jury, and not the court, were the judges as to whether or not his testimony could be taken at his house. It is sufficient to say of this exception that the point now raised was not suggested by the exception, nor in any way brought to the notice of the court. The testimony of the physician was solely as to the effect of the plaintiff’s attendance upon the trial, he being called “ for the purpose of accounting for the absence of the plaintiff from the court,” and nothing was said as to the failure to procure his deposition.

The remaining exception to the charge presents no error. There was evidence that the plaintiff promised to pay defendant’s brother $5,000 if defendant would release to his brother his interest in certain mortgages. The court properly instructed the jury at defendant’s request that, if they believed the promise was, made, such promise and payment was the consideration for the release. There was no question but that the testimony warranted that conclusion, if the jury so believed; and so, whether that request for instruction be taken in connection with any other part of the charge, or not, it remains unassailable as a correct proposition. It did not exclude from the jury any of the evidence in the case bearing upon the consideration of the note in suit

The rulings as to the admission of testimony were correct. The question upon defendant’s defense of want -of consideration was whether the note in suit was or was not given to defendant’s uncle, the plaintiff, to secure the repayment to him of an advance of $5,000 made to defendant’s brother in séttlement of a litigation between the brothers. It was not immaterial for defendant to testify that he had never asked the plaintiff for a dollar in his life, and to show on the other hand that his brother had received altogether from the plaintiff large sums of money. This had a bearing upon the question whether plaintiff’s advance of $5,000 to the brother was a gift, or a payment at defendant’s request. Had defendant, instead of his brother, been previously the regular recipient of bounty from the plaintiff, it would have had weight in determining whether he was now to be credited with the assertion that the sum of $5,000 was a gift to the brother, and not advanced on his account. The previous relation of all the parties to each other had a material bearing upon a controversy that arose out of family disputes and arrangements.

The judgment and order should be affirmed, with costs.

Bischoff, J., concurs.

Pryor, J. (dissenting.)

An accepted definition of the burden of proof propounded by our own court of highest authority, is “ The obligation imposed upon a party who alleges the existence of a fact or thing, necessary in the prosecution or defense of an action, to establish it by proof.” People v. McCann, 16 N. Y., 58, 66.

By the law of this state, the defense that a note has been altered since execution is inadmissible under a general denial, and is available only by special plea. Boomer v. Koon, 6 Thomp. & C., 645. Conforming to the rule, the respondent advanced the defense affirmatively in his answer.

If there be erasure, interlineation, or other blemish, obvious on the face of the instrument when produced in evidence by the plaintiff; in other words, if there be no apparent alteration, the burden is upon the defendant to prove the alteration. Meikel v. Savings Inst., 36 Ind., 355; Pullen v. Hutchinson, 12 Shep., 254; Muckleroy v. Bethany, 27 Tex., 551; Brown v. Phelon, 2 Swan, 629; 1 Whart. on Ev., § 629; 1 Greenl. on Ev., 654; 2 Daniel on Neg. Insts., § 1421; Harris v. Bank, 22 Fla., 501; Herrick v. Malin, 22 Wend., 388.

The plaintiff alleged the sealing as well as the signature of the note in question; so sealed, it was introduced in evidence, without objection; and thus the proof made good the averment of the complaint. Boomer v. Koop, supra. Moreover, the note, as produced, revealed no alteration; for nothing about it indicated that the seal had been affixed since execution.

The argument of the prevailing opinion is that, against the general denial, it was incumbent on the plaintiff to prove the execution of the note in suit by the defendant. The proposition is undenied and undeniable; and still the question in dispute.is untouched ; which is, upon whom was the burden of proof as to the fact of the alteration ?

Hence, Chappell v. Spencer, 23 Barb., 584, relied on to support the prevailing opinion, is irrelevant to the point in controversy; for the court ruled only that because of the alteration the plaintiff could not succeed ; and, as the alteration was a conceded fact, forebore all allusion to the burden of proof. The conclusion that an unauthorized alteration avoids an instrument is wholly aside from the question upon whom is the onus of proving the altertion.

If the obligation of the plaintiff to show the note the act of the defendant involves the further obligation of disproving the alteration, then in every case of alleged alteration the burden is upon the plaintiff, a conclusion in contradiction of all authorities. As may well be inferred from the obligation to prove the note that it was incumbent upon the plaintiff to disprove its invalidity, e. g., that it was not obnoxious to the statute of frauds.

It results, therefore, equally from the rule of pleading, the nature of the defense, and the issues tendered by the parties, that the burden was upon the defendant to establish the alleged alteration ; and, as the court charged the contrary proposition, the judgment should be reversed for misdirection of the jury. Heineman v. Heard, 62 N. Y., 448, 455-6.

Judgment and order affirmed, with costs.


author: Bischoff, J. (orally.) Pryor, J. (orally.)

text:
    Helen Sweezey, Adm’rx, Resp’t, v. The Prudential Life Insurance Co., App’lt.

      (New York Common Pleas, General Term,

      Filed March 8, 1893.)

    Insurance (Live) — Suicide.
    In an action upon a life insurance policy, where the i-sue isas to whether the deceased committed suicide, and it is conceded that he was not killed by another and was found with his throat completely cut, and there is no proof as to an accident, a verdict for the plaintiff will be set aside.
    Appeal from judgment of this court,

      W. H. Knox, for resp’t; W. O. Campbell, for app’lt.
   Bischoff, J. (orally.)

It is conceded here that the circumstances excluded an inference that the wound of which the insured died was inflicted by a person other than himself, or that it was the result of accident, and that permits of no inference other than that his death was due to suicide. On the trial counsel for the defendant said, “ I ask the court to charge that there is no proof of any accident happening.” The court said, “Yes, there is no evidence how the man fell.” Now, if the wound was not inflicted by a person other than the insured, and if it was not the result of accident, to what was the death of the intestate attributable, if not to suicide? All other inferences as to the cause of death being removed, suicide was no longer left to presumption or inference, but stood established.

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

Pryor, J. (orally.)

I place my concurrence with the learned presiding judge upon another and independent ground, namely, that the verdict is contrary to the clear and conclusive evidence.

The issue was whether the decedent committed suicide. That he did so; that he intentionally destroyed himself, is the only possible inference from the evidence. It is conceded that he was not killed by another, but by himself. Then, was the death by design or by accident ? Who can doubt that it was by design ? He was found with his throat completely cut; and the very nature of the wound excluded the possibility of accident and established to demonstration that it was the effect of contrivance. Then we have as part of the res gestae the instant declaration of the wife that the deceased had committed suicide. We have further the report to the insurance company that the cause of his death was suicide.

It is not the right only, but the duty of the general term, to set aside a verdict palpably against the evidence and the justice of the case. Such is the present case.

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


author: Pryor, J. (Orally).

text:
    Elvira Purdy, App’lt, v. The Manhattan Elevated Railway Co. et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed March 9, 1893.)

    1, Railboad — Elevated—Damages—Future eunning of trains.
    In computing the amount to be paid to obviate an injunction against an elevated railroad, it is error to exclude the damages caused orto be caused by the running of trains on the defendants’ structure.
    3. Same — Evidence of benefits.
    Direct evidence to the fact that benefits were conferred by the proximity of the railroad to plaintiff’s property is incompetent. The witness should be confined to proof of circumstances showing a benefit
    Appeal from judgment of this court.

      S. G. Adams, for app’lt; Davies, Short & Townsend (A. O. Townsend, of counsel), for resp’t.
   Pryor, J. (Orally).

We are both of opinion, without hesitation, that we are constrained to reverse this judgment. We see among the conclusions of law that the learned trial judge found: “ Sixth. The sum fixed which the defendants may pay in order to obviate the injunction herein should not be greater than a sum necessary to compensate plaintiff for the perpetual maintenance of the defendants’ elevated railroad structure, and exclusive of the damages caused or to be caused by the running of ihe trains thereon.

During the recess I have procured the report of the Sperb case, as it appears on page 204 of vol. 50 of the N. Y. State Eeporter. The decision is in these words : “ The passage of numerous trains at short intervals over the elevated structure constitutes an inconsistent and excessive street use, and to that extent defendants have taken and will hereafter occupy part of plaintiff’s easement of light and air, and this should be taken into account in fixing the amount of damages to be paid by the defendants in order to obviate an injunction.”

Now, the learned trial judge here was computing the amount to be fixed as the condition of staying or obviating an injunction, and he says distinctly; we are bound to take his word; we are bound to assume that his judgment was swayed and controlled by it; he says that in estimating that sum he made no account whatever of the future operation of the road.

That question was the very question and the sole question before the court of appeals in the Sperb case. That case was tried before a referee; and he was requested to make the following finding, which he refused; “ The sum fixed which the defendant may pay in order to obviate the injunction herein should not be greater than a sum necessary to compensate the plaintiff for the perpetual maintenance of the defendants’ elevated railroad structure, and exclusive of the damages caused or to be caused by the running of the trains thereon.” In that case the referee refused to find it. In this case the court did find it in totidem verbis. The referee having refused to find it in the Sperb case, the defendants appealed to the general term, and they reversed the referee because he refused to so find. The court of appeals said he did right to refuse it, and upon that ground they reversed the order of the general term, and affirmed the judgment on the report of the referee. Thus the very point was adjudicated.

But there is another ruling here that we conclude to be fatal error, and that is the admission of testimony directly to the fact that benefits were conferred by the proximity of this railroad to thb plaintiff’s property. Now, the Roberts case does, if not expressly, yet virtually, adjudicate that such evidence is incompetent. What the witness should have done in this case was to have testified to circumstances showing a benefit; but not directly to the fact of benefit.

We are of opinion that the judgment must be reversed and a new trial ordered, costs to abide the event.

Gtegerich, J., concurs.


author: Pryor, J. (orally.)

text:
    George W. Van Allen, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 13, 1893.)

    1. Equity — When action will be retained for legal relief.
    Where it appears that when the action was instituted the plaintiff had a valid claim for equitable relief, but by reason of matters pendente lite th% same has become lost, the court may properly retain jurisdiction and award pecuniary damages.
    2. Railroad — Elevated—Transfer of property.
    Where, subsequent to the joinder of issue in an action for an injunction and damages against an elevated railroad,-the plaintiff sells his property, the court may retain the action and award such relief as is open to the party.
    Appeal from judgment in favor of plaintiff for $2,500 damages and costs for loss of rentals.
    Action to obtain an injunction to restrain the maintenance and operation of defendants’ road, and for damages. Issue was joined November 20, 1889. On the 15th of December, 1890, plaintiff sold his property to one Ebel. On the trial before the referee, defendants moved to dismiss the complaint on the ground that the action was purely equitable ; that by said sale plaintiff had lost his right to injunctive relief, and that he had a sufficient remedy at law. The motion was denied, and judgment rendered as above stated.

      Julien T. Davies, Brainard Tolles and R. L. Maynard, for app’lts; Wolff & Hodge (J. Aspinwall Hodge, Jr., and Robert Sewell, of counsel), for resp’t.
   Pryor, J. (orally.)

The precise point now presented has not appeared in any other case. Hitherto, the question was whether, when a party sues in equity, upon equitable grounds alone, claiming equitable relief only, and failing to establish that he ever had any title to equitable relief, he might still proceed as in an action at law, and recover a money judgment for damages. The decision, both of this court and the court of appeals, was against such a contention. Here it appears that when the action was instituted the plaintiff had a valid claim to equitable relief; the referee so finds; and the question is, shall he be turned out of court for matter happening pendente lite, or will the court, its jurisdiction having attached, go on to award compensation in damages, the only relief now available ? We understand the rule to be that jurisdiction once acquired by a court of equity is not afterwards lost; but the court will proceed to administer whatever relief is open to the party. The analogy of this case to a suit for specific performance is perfect, and controls our decision.

It is the unanimous opinion of the court that the judgment should be affirmed.

Daly, Oh. J., and Bischoff, J., concur.


author: Per Curiam.

text:
    Antonio Guliano, App’lt, v. John H. Whitenack, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 13, 1893.)

    Pleading — Supplemental answer — Terms.
    After an action for negligence had been upon the calendar and marked off the term, the plaintiff, after a delay of eighteen months, made a motion to restore it, which was granted on condition that he accept service of a supplemental answer setting up that, on a discovery of an erroneous admission in the original answer, plaintiff, not caring to prosecute the action, executed a general release and re-entered defendant’s employment. Held, that the allowance of the supplemental answer was a proper exercise of discretion, but that it should have been on condition of payment by defendant of all costs and disbursements to date.
    Appeal by plaintiff from order made by Judge Bischoff on December 24,1892, restoring this action to the calendar, the same having been previously reserved generally, upon plaintiff’s stipulating to accept service of a supplemental and amended answer.
    This action was commenced prior to October 10, 1889. It is an action to recover $3,000 damages for personal injuries which the plaintiff alleges he sustained from defendant’s negligence.
    The complaint alleges that on August 31, 1889, the defendant, a contractor and builder, was. engaged in constructing an oven; that the plaintiff was a laborer in his employment, who, upon that day, entered the oven under his master’s direction and was injured, owing to the negligent manner in which the oven had been constructed.
    The defendant answered the complaint on November 21, 1889. The action first appeared upon the day calendar on December 17, 1890 ; it was then marked “ off term,” owing to the absence and inattention to the calendar of the plaintiff’s attorney.
    The plaintiff's attorney made no effort to restore it to the calendar until April 15, 1891. It reappeared upon the day calendar on May 4th, was passed several days in May and reappeared in June. On June 11th it was marked “ off term " by the presiding judge.
    No application to restore the case to the calendar, after this disposition of it on June 11, 1891, was made until December 17, 1892, a period of upwards of eighteen months.

    When the action was nearing trial in May, 1891, the defendant’s counsel discovered that an erroneous admission had .crept into the answer. The original answer had inadvertently admitted that the plaintiff had been directed by the defendant to enter the oven; the amendment sought was the substitution of a denial in place of the admission. At the time of this discovery the plaintiff, not caring to prosecute the suit, executed a general release to the defendant and again entered the latter’s employment.
    These facts the defendant sought to set up by supplemental and amended answer.

      J. Hampden Dougherty, for resp’t; Joseph Wamsley, for app’lt.
   Per Curiam.

We are clear that the learned trial judge at special term well exercised his discretion in allowing the supplemental answer. But, we are of opinion that the order should have been granted on the condition of a stipulation by defendant to pay the taxable costs and disbursements to the date of the order. If the defendant will so stipulate, the order is affirmed; otherwise it is reversed; no costs.

Pryor and Gieg-erich, JJ., concur.


author: Bischoff, J.

text:
    Charles Kummer, Resp’t, v. The Christopher & East Tenth Street Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed March 14, 1893.)

    1. Appeal — Grounds of reversal not to be stated in order.
    There is no authority for inserting in an order entered upon a decision reversing a judgment and granting a new trial the grounds of reversal.
    2. Same — Costs.
    Where the appellant did not protest against the submission of the case to the jury, the costs of the former trial will be imposed upon him as a condition of granting a new trial on the ground that the verdict is against the evidence or the weight of evidence.
    Respondent’s motion for resettlement of the order dated February 6, 1893, which reversed a judgment for plaintiff entered upon a verdict and an order denying defendant’s motion for a . new trial on the minutes, and grants a new trial.'

      Herbert T. Ketcham, for resp’t; Jason Hinman, for app’lt.

       See 50 St. Rep., 332.

   Bischoff, J.

Our reversal of the judgment and order appealed from proceeded upon the ground that the verdict was contrary to the evidence, see opinion, 50 St. Rep., 332, and the purport of respondent’s present motion is to have the ground of reversal recited in the order entered upon our decision of the appeal. Such a recital is, however, not only unnecessary, Goodwin v. Conklin, 85 N. Y., 21, but also without authority, Harris v. Burdett, 73 id., 136, and respondent’s motion in this respect is denied.

The order of reversal should, however, be resettled by striking out the words “ with costs to abide the event ” at the conclusion of the order, and inserting in lieu thereof the words “ upon condition that appellant shall within twenty days after service of this-order, with notice of entry thereof, pay to the respondent, or his attorney of record, the costs and disbursements of the last trial, to be taxed on notice, and if such costs and disbursements be not so paid, then respondent may apply, on proof by affidavit that the costs and disbursements remain unpaid, for an order affirming the judgment and order appealed from, with costs.”

It does not appear from the record of this appeal that appellant protested in any manner against the submission of the case to the jury, and for the omission so to do it has been the invariable, and is the settled practice of the courts at general term, to impose payment of the costs of the former trial upon the party against whom the verdict was rendered as a condition of granting a new trial on the ground that the verdict is against the evidence or the weight of the evidence, Jackson v. Thurston, 3 Cowen, 342; Bank of Utica v. Ives, 17 Wend., 501; Brown v. Bradshaw, 1 Duer, 199; Overing v. Russell, 28 How. Pr., 151; East River Bank v. Hoyt, 22 id., 478; North v. Sargeant, 20 id., 519; Kelly v. Frazier, 27 Hun, 314; Bailey v. Park, 5 id., 41; Murphy v. Haswell, 65 Barb., 380; Wilson v. Lester, 64 id., 431; Weed v. Woodburn, 27 id., 346, and there does not appear to be any sufficient reason for departure from that practice in the present instance.

Order to be resettled as directed.

Bookstaver and Pryor, JJ., concur.


author: Pryor, J.

text:
    The Dry Dock, East Broadway & Battery Railroad Co., Resp’t, v. The North & East River Railway Co., App’lt.

      (New York Common Pleas, General Term,

      Filed March 14, 1893.)

    1. Lease — Estoppel by judgment.
    In an action on a lease for an instalment of rent,payable quarterly in advance, a former judgment between the same parties on the same instrument, in an action for rent, which determined that an instalment fell due on the first of March, establishes the fact that another instalment was payable on the first of December.
    2. Corporations — Proof of incorporation.
    Proof of corporate capacity is not necessary unless it be challenged by an affirmative allegation of no corporation.
    3. Contract — Pleading—Payment.
    In an action for money on contract/, when the complaint alleges nonpayment, a mere denial raises no issue as to the fact of non-payment.
    Appeal from judgment on verdict by direction of the court.

      L. Laflin Kellogg, for app’lt; James & Thomas H. Troy, for resp’t.
   Pryor, J.

On the 15th February, 1890, the plaintiff, for a stipulated rental of $1,500 a year, payable quarterly in advance, let to the defendant the privilege of running its cars on plaintiff’s railroad tracks, “ payments commencing from the time the said party of the second part shall exercise or avail itself of the consent and privilege hereby given.” On an allegation of a default by defendant to pay an instalment of rent due 1st of December, 1891, plaintiff brought this action to recover $375. Putting in evidence the agreement called a “ lease,” and a former judgment between the parties, plaintiff rested; and, thereupon, defendant moved to dismiss the complaint for defect of proof of liability under the lease and of rent due on the 1st of December. Upon denial of the motion the defendant offered no evidence, and the court directed a verdict for the plaintiff.

Appellant’s contention that no right of recovery was shown is clearly untenable.

In a former action between the same parties upon the same instrument, plaintiff recovered an instalment of rent which became due on the first day of March, 1891, in advance for the quarter then commencing.” This judgment conclusively established defendant’s liability under the lease, and that an instalment of rent fell due on the first of March.

As by the terms of the lease the rent was payable quarterly in advance; and by the judgment a quarter’s rent became due on the first of March, the inevitable result was that another instalment was payable on the first of December. “ The estoppel of a former judgment extends to every material matter within the issues which' was expressly litigated and determined ; and also to those matters which, although not expressly determined, were comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. It is not necessary that issue should have been taken upon the precise point controverted in the second action.” Campbell, etc., v. Walker, 114 N. Y., 7; 22 St. Rep., 173; Lorillard v. Clyde, 122 N. Y., 41; 33 St. Rep., 303. The efficacy of the former judgment was not impaired' by the fact that it was taken by default. Brown v. Mayor, 66 N. Y., 385; Bullard v. Sherwood, 85 id., 253; Gates v. Preston, 41 id., 113; Newton v. Hook, 48 id., 676.

Appellant contends, nevertheless, that the corporate capacity of the plaintiff was not proved on the trial. Assuming this fact not adjudicated by the former judgment, still the objection is unavailing, since the answer contains no affirmative allegation that the plaintiff is not a corporation. Code, § 1776.

Again, appellant insists that there was no evidence of default in the rent; but the complaint alleges its nonpayment, and the answer, simply a denial, raises no issue as to the fact. Lent v. R. Co., 130 N. Y., 504; 42 St. Rep., 592.

Judgment affirmed, with costs.

Bischoff and G-iegerich, JJ., concur.