text:
    Emanuel Manheimer, Resp’t, v. Solomon Stern et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Evidence—Memoranda.
    Upon the trial of an action to recover a balance for commissions alleged to have accrued to plaintiff upon sales of merchandise effected by him under a contract of employment with the defendants, plaintiff testified that he effected sales to upwards of sixty persons, and that at the time of each sale he made a record of the purchaser’s name, with the amount of his purchase, in a book kept for that purpose, and that he was unable to state without the book such names and amounts, whereupon the book was-produced and the entries received in evidence. Held, that the entries were properly received in evidence.
    Appeal from a judgment of the general term of the city court affirming a judgment for plaintiff entered upon the verdict of a jury and an order denying defendants’ motion for a new trial.
    Action to recover a balance alleged to be due for commissions earned in the sale of merchandise.

      Max Altmeyer {David Leventrilt, of counsel), for resp’t; A. S. Derrick, for app’lts.
   Bischoff, J.

As the case does not purport to contain all the evidence taken upon the trial its sufficiency to sustain the verdict must be presumed and is not now before us for review. Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep., 297; Aldridge v. Aldridge, 120 N. Y., 614, 616; 31 St. Rep., 948.

It remains, therefore, for us to notice the only exception urged for reversal. The action was brought to recover a balance for commissions alleged to have accrued to plaintiff upon sales of merchandise effected by him under a contract of employment with the defendants, and under the issues created by the pleadings it was incumbent upon plaintiff to prove the several sales alleged to have been effected by him. On the trial he testified that between June 22, 1888, and September 15, 1889, he effected sales to ’ upwards of sixty different persons, that at the time of each sale he made a record of the name of the purchaser, with the amount of his purchase, in a book kept for that purpose, and that he was unable without the book to state the names of the several purchasers and the amounts of their respective purchases. The book was produced and the entries therein were offered and received in evidence, under objection of defendant’s counsel respecting their competency as an auxiliary to the witness’ testimony, and for the purpose of ascertaining the names of the several alleged purchasers and the amounts of their respective purchases, and not to establish the fact of the several sales claimed to have been effected, or that the witness effected such sales.

That under the circumstances mentioned a memorandum made by the witness may be admitted in evidence is well settled by authority, Halsey v. Sinsebaugh, 15 N. Y., 485 ; Russell v. H. R. R. R. Co., 17 id., 135, 139; Guy v. Mead, 22 id., 462 ; Howard v. McDonough, 77 id., 592 ; Peck v. Valentine, 94 id., 569, 571; Wilson v. Kings Co. E. R. R. Co., 114 id., 487, 498; 24 St. Rep., 81; but were that not so we should incline to the view that for the purposes mentioned it is not error to admit the memorandum, as a contrary rule, unless in the case of a person possessed of an abnormally acute memory, justice might be defeated where the demand for which recovery is sought covers, as in the present case, a multiplicity of transactions with as many different persons, the recollection of the particulars of which is beyond the ordinary bounds of human possibility.

Judgment affirmed, with costs.

Daly, Oh. J., concurs.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Samuel Fuld et al, App’lts, v. The Burr Brewing Company, Resp’t

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Corporations—Authority of officer to execute guaranty—Question for JURY.
    In an action on a guaranty, executed by the vice president of defendant corporation, the defense was want of authority in the officer to execute the guaranty. It appeared that the board of trustees of defendant, by resolution, had conferred on “ the officers authority to perform such acts and incur such obligations, and make such agreements as may be proper and necessary for the conduct of its businessthat the vice-president attended to the regular business of the company; that when plaintiff called to get the guaranty the vice-president said, “ the board meets just now; I will go up stairs and have it signedthat he went up stairs and returned with it signed; that the vice-president had previously executed a guaranty to plaintiff for rent of the same premises, and that the company had sent its checks for the money so secured ; and that defendant had sent its checks for the rent secured by the guaranty in question. Held, that the complaint was improperly dismissed; that the guaranty was not beyond the corporation’s powers, and that the question of the vice-president’s authority to execute it was one for the jury.
    Appeal from judgment of the general term of the city court of Kew York, entered on a dismissal of the complaint
    Action on a guaranty, executed by the vice-president of defendant company.

      B. W. Traitel, for resp’t; Ferdinand Kurzman, (John Frankenheimer, of counsel,) for appl’ts.
   Pryor, J.

The appeal being frorp the judgment only, we have no authority to review the facts or to determine the preponderance of conflicting evidence; but our jurisdiction is limited to a consideration of questions of law duly presented by the record. The Third Avenue R. R Co. v. Ebling, 100 N. Y., 98. A question of law, however, is presented by the exception to the dismissal of the complaint; and as the appellant, made no motion for a direction in his favor, the contention is available to them that the evidence required the submission of issues of fact to the jury. Clomence v. City of Auburn, 66 N. Y., 334; The Trustees v. Kirh, 68 id., 459.

To justify the court in withdrawing a case from the jury “ the evidence must be undisputed, or so certain and convincing that no reasonable mind can come to any but one conclusion. If there is ground for opposite inferences, and a conclusion either way would not shock the sense of a reasonable man, then the case is for the jury, although the judge may entertain a clear and decided conviction that the truth is on this or that side of the controversy.” Bagley v. Bowe, 105 N. Y., 171, 179; 6 St. Rep., 842. ;

In reviewing a decision dismissing a complaint, the court must ' accord to the appellant the benefit of every fact which the jury were authorized to infer from the evidence. Harris v. Perry, 89 N. Y., 308, 311; Hart v. Ryer, 43 St. Eep., 139, 140 (Common Pleas).

An issue strenuously contested on the trial was, whether the guaranty in controversy was executed by authority of the defendant corporation. Indeed insufficient evidence of such authority was a specific ground of the motion to dismiss.

In proof that the guaranty, if otherwise valid, was obligatory on the defendant, appellants advance four propositions, which they contend are supported by the evidence: First, that authority to give the guaranty attached to the vice-president vi?'tute officio; secondly, that the board of trustees expressly communicated the authority to him; thirdly, that in any event the defendant, by acquiescing in his exercise of the authority, represented to the plaintiffs that he rightfully exercised it; fowthly, that by paying the rent guarantied defendant ratified the guaranty.

We are of opinion that, as to each of these positions, the evidence adduced by the plaintiffs was sufficient.

As to the first, a resolution of the board of trustees had conferred on “ the officers of this company authority to perform such acts and incur such obligations and make such payments as may be proper and necessary for the conduct of its business.” The treasurer testified that such papers were signed by the officers without express authority from the board, and that the vice-president attended to the regular business of the company. Upon all the circumstances of the case, our conclusion is that the guaranty was given in the legitimate business of the company, and that so, on the plaintiffs' proof, the vice-president, as such, had authority to execute it. Lee v. The Pittsburg, etc., Company, 56 How., 373 ; Ellis v. Howe Machine Company, 9 Daly, 79.

As to the second, the evidence is, that when plaintiff called to get the guaranty the vice-president said: “ The board meets just now; I will go upstairs and have it signed ”; that he went upstairs and returned with the paper signed. True, the trustees denied that he had their authority to give the guaranty; but their relation to the defendant required the submission of the issue to the jury. Kahn v. Lesser, 43 St. Rep., 149 ; Manhattan Co. v. Phillips, 109 N. Y., 383 ; 16 St. Rep., 199 ; Becker v. Koch, 104 N. Y, 394; 5 St. Rep., 688; Keller v. West, etc., Company, 39 Hun, 348.

As to the third, the fact that the vice-president had previously executed a guaranty to this same plaintiff for the rent of the same premises, and that the company had sent its checks for the money so scoured, was enough to justify the plaintiffs in relying on his authority to give the guaranty in question.

As to the fourth, by sending its check for the very rent secured by this very guaranty, the defendant appeared to ratify the guaranty.

Our conclusion, therefore, is that the plaintiffs’ proof was sufficient to authorize the inference that the defendant was bound by the guaranty; and that so the court erred in withdrawing the question from the jury.

We are further of opinion that, upon all the facts in evidence, the guaranty was not beyond the scope of defendant’s corporate powers, Ellis v. Howe Machine Company, 9 Daly, 79, and that even if ultra vires, the defense is not available to defendant. Whitney Arms Co. v. Barlow, 63 N. Y., 70. The case is essentially distinguishable from Schurr v. N. Y. & B. Trust Co., ante, 645.

Thé point now urged, that the guaranty is a nude act, was not presented on the motion for dismissal, and hence is not open to consideration by us.

The learned-court below suggest that we propound a rule as to corporate liability upon guaranties similar to the present; but whether a given contract be ultra vires depends so essentially on the peculiar provisions of charters and the particular facts of the case that a formula cannot be framed to fit every conceivable set of circumstances, and, if attempted, would be futile for the solution of questions likely to arise.

Judgment reversed, and new trial granted, costs to abide event,

Daly, Oh. J., and Bisciioff, J., concur.


author: Daly, Oh. J.

text:
    Henry J. Bicknell, Resp’t, v. Gilbert M. Speir, Jr., as Receiver of the Vertical Tube Boiler Company, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Attachment—Domestic corporation—Proof of intent to defraud.
    The fact that a domestic corporation conveyed all its property to an individual, claiming that ho was to act as trustee for the benefit of its creditors, is of itself sufficient proof of an intent to defraud its creditors, and an attachment obtained on that ground will be sustained.
    Appeal by defendant from an order of the general term of the city court, affirming the denial by the special term of defendant’s motion to vacate an attachment. The action was originally commenced against the Vertical Tube Boiler Company, a domestic corporation, to recover $1,500 and interest from ¡November, 1890, money loaned to the company by the plaintiffs’ assignor, Clinton E. Jackson, who was then the manager of the company. Upon the affidavits of the plaintiff and George E. Woodworth, an attachment was granted on December 23, 1890, against the property of the company on the ground that it had disposed of its property with intent to defraud its creditors.
    After the attachment was granted, and on December 31, 1890, proceedings were begun in the superior court of the city of New York for the voluntary dissolution of the company, resulting in the appointment of Gilbert M. Speir, Jr., as receiver of the company. The receiver was substituted as defendant, and in October, 1891, moved to vacate the attachment upon the affidavits of J. C. O’Conor, Jr., Edward P. Steers, Thomas W. Crawford and Frank L. Froment. The motion was denied, and such denial was affirmed by the general term of the city court.

      Bullard & Shannon, for resp’t; John C. O'Conor, Jr., for app’lt.
   Daly, Oh. J.

Upon an appeal from an order of the general term of the city court denying a motion to vacate an attachment, we are limited to the inquiry whether there is an entire absence of facts justifying the issuing of the warrant. If the decision of the court below is dependent upon inferences to be drawn from the facts stated, we cannot disturb it. Stringfield v. Fields, 13 Daly, 171; Allen v. Meyer, 73 N. Y., 1.

The attachment here was granted on the ground that the Vertical Tube Boiler Company had disposed of its property with intent to defraud its creditors. That the company had actually conveyed all its property to one Froment is not denied. The question is whether the affidavits contained facts from which the alleged fraudulent intent was to be inferred. “ It is not always practicable to establish by proof the existence of a fraudulent intent on the part of the debtor. Direct proof of the fact can rarely be obtained, and when it is established it must ordinarily be inferred from circumstances.” Stevens v. Middleton, 26 Hun, 470. We cannot reverse this order unless there is no evidence legitimately tending to establish intent, or the natural inferences to be drawn from the facts do not necessarily lead to the presumption of such intent. Morris v. Talcott, 96 N. Y., 100.

It is to be observed in the first place that the motion to vacate the attachment was not made upon the affidavits upon which it was granted, but upon proof by affidavit on the part of the defendant, and that this allowed the plaintiff to oppose new proof to sustain the attachment upon the ground stateddn the warrant, Code, § 683; and that the plaintiff availed himself of this right and introduced new affidavits in support of his case.

Without reciting in full all the facts set forth in the plaintiff’s proofs and the answers and explanations contained in the defendant’s affidavits, it is sufficient to say that the decision of the city court was based upon proofs of facts legitimately tending to establish an intent on the part of the defendant corporation in making the transfer of its property to F. L. Froment to put its property out of the reach of its creditors, and this was a fraudulent intent.

The explanation given by the directors is that they were dissatisfied with their manager, and believed that if the works were properly carried on the company would be entirely solvent; that Mr. Froment was a man of experience in the business, and the whole property of the company was turned over to him to manage upon the understanding that he was to pay the creditors ratably and in full and turn over the surplus to the company. The facts before the court were: That no such agreement on Mr. Froment’s part was evidenced by any writing, and the conveyance to him was absolute on its face; that he was a large creditor of the company to the amount of $13,000 ; that there was a conflict of testimony between the book-keeper of the company and Mr. Froment as to whether the latter had declared his intention of satisfying his own claim first and then dividing any balance among the creditors; that Mr. Jackson, the plaintiff’s assignor, testified to a similar declaration of Mr. Froment to him, with other facts showing knowledge on the part of the trustees of the illegality of the proposed transfer; that the condition of the company at the time of the transfer was this: There was an outstanding mortgage upon its real estate upon which $15,000 was due; it owed $29,000, floating debt; it had just made a second mortgage for $75,000 to the Holland Trust Company and transferred $35,000 of the bonds thereof to one of its trustees, Steers, to secure him for advances. It had been sued upon a demand for $146.25 upon which judgment was entered a few days after the transfer; ten other judgments were entered against the company the month succeeding the transfer, and that shortly after the transfer Mr. Froment took possession of all the property and business of the company and began to ship some of the property out of the state, and that the property so shipped out of the state was needed to complete contracts for work then in progress. It was also manifest to the court that the transfer by the company to its director, Mr. Steers, of $35,000 of its bonds to secure or pay its indebtedness to him, and the transfer by the company to Mr. Froment of all that was left, of its assets, were both prohibited by the statute forbidding transfers by corporations in contemplation of 1 insolvency and were utterly void. 1 E. S., 603, § 4; Throop v. The Hatch L. Co., 125 N. Y., 530; 35 St. Rep., 816.

An attempted assignment by an insolvent individual of all his property for the benefit of his creditors, which assignment was void in law, would not, by itself, justify an inference of intent to dispose of property with intent to defraud creditors, MiTliken v. Hart, 26 Hun, 24; but this is because the debtor had a right to make an insolvent assignment in order to secure an equitable division of his property, or even to give preferences, and his creditors may be necessarily hindered or delayed thereby; and the fact that the assignment fails through the incorporation of an invalid provision in the instrument, will not authorize the conclusion that his intent was fraudulent. But a corporation can make no valid assignment for the purpose of securing equitable division of assets among its creditors or to prevent one creditor by diligence gaining advantage over another, Nat. Broadway Bank v. Wessel Metal Company, 59 Hun, 470; 37 St. Rep., 102, and the attempt of the corporation to make such a transfer must be manifestly of itself proof of an intent to deprive its creditors of the fruits of their diligence, of their remedies, and of satisfaction of their debts out of the property which the law subjects to payment. How is such an intent to be distinguished from an intent to defraud the creditors who may lose all or some part of their debt if the unlawful purpose of the corporation could have been carried into effect?

It is urged that the claim sued upon, which accrued to the plaintiff’s assignor Jackson, is the claim of an officer of the company, and that no attachment will lie for such a claim because it would, in effect, give such officer a preferential lien on the corporate assets in contravention of the statute already cited. Throop v. Hatch L. Co., supra.

The only evidence as to the position held by Jackson is that he “took charge of the company as manager of the business” from April to November, 1890. We are not referred to any evidence, that he was an officer. The presumption from the papers is that lie was an employee only.

The order should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Maynard, J.

text:
    George Penniman, Resp’t, v. The Fuller & Warren, Co., App’lt.

      (Court of Appeals,

      Filed June 7, 1892.)

    Venue—Chanse of—When demand must be served.
    A demand for a change of the place of trial may be served with an amended answer.
    Appeal from judgment of the supreme court, general term, first department, affirming an order denying motion to change place of trial.

      A ibert Smith, for app’lt; Charles H. Mahony, for resp’t.

       Reversing 43 St. Rep., 796.

   Maynard, J.

The place of trial of this action was not laid in the proper county. The plaintiff was a resident of Kings and the defendant of Bensselaer county. The summons and complaint both state that the trial is desired in New York county. With an amended answer the defendant demanded that the trial be had in the county of Bensselaer, naming it as the proper county. The demand was not complied with, and the defendant then moved to change the place of trial to Bensselaer, which was denied, upon the ground that the demand was not served in time; that it should have been served before the original answer was served, or at the time of serving it.

In so balding we think the court below erred. The defendant had a right to serve an amended answer, as of course, and when so served it became the answer in the action and superseded all his former pleadings. Seneca Co. Bk. v. Garlinghouse, 4 How., 174; Fry v. Bennett, 3 Bosw., 200; Dann v. Baker, 12 How., 521; Sands v. Calkins, 30 id., 1; Elizabethport Man'fg. Co. v. Campbell, 13 Abb. Pr., 86; Figg v. Edwards, 20 Hun, 90.

It was not an amendment of the original answer. It was a new pleading. The defendant had an absolute right to interpose it, and the service, with it, of a demand to change the place of trial would seem to be a substantial compliance with the requirement of the Code. The mode of procedure to be observed, as a condition precedent to the exercise by the defendant of bis right to have the place of trial changed, evidently had in view the date of joining issue by the service of the answer in the usual and orderly manner of pleading, as the limit of time beyond which a demand would be ineffectual. So long as the defendant has within his control the shaping of the issues upon which the trial of the action is to be had, he may avail himself of the privilege of the statute and elect whether he will go to trial in the county where the venue is laid, or compel his adversary to transfer the cause to the proper county to be selected by him. We agree with the general term that the demand should be made at, or before, the time of joining issue; but where an amended answer is served in due season, that time is fixed by such service. Until then the issues are transitory and not definitely known or determined. It might be that upon the issues framed by the original answer it would be a matter of indifference to the defendant in what county the action should be tried; but with the service of an amended answer an entirely new case might be presented for trial, which he might deem important to have tried in the proper county. The case of Veeder v. Baker, 83 N. Y., 156, is authority for the position that the service of an answer does not necessarily limit the time in which a demand may be made, if another answer is served under the provisions of the Code authorizing the service of pleadings as of course. There the defendant had, with his original answer, served a demand and made a motion to change the place of trial, which had been denied. The plaintiff served an amended complaint, to which the defendant interposed an answer and made another demand and a second motion to change the place of trial, in accordance with it, which was granted.

The just rule would seem to be that the defendant may retain the right to insist that the trial shall be had in the proper county until he has, by his own act, defined the issues to be tiled, when, the right is gone, unless he has put the plaintiff in default by the service of the prescribed demand. While it will not be presumed that the defendant intends to serve an amended answer, yet the. right exists, and, if availed of, it becomes the answer of the defendant in the action; and it would be contrary to the liberal rule of construction, which the Code requires to be adopted in applying its provisions, to de¡Drive him of a privilege which it is expressly stated may be exercised at the time of the service “ of the answer.”

The plaintiff cannot be seriously prejudiced. If the amended answer has been served for the purpose of delay it may be stricken out on motion, and with it would fall whatever incidents and privileges the defendant would otherwise have derived from it. Section 984 of the Code provides that an action of this character must be tried in the county in which one of the parties resided at the commencement thereof. The plaintiff has deliberately disregarded this requirement It is true that a subsequent section permits the action to be tried in the wrong county, unless the defendant makes the demand and follows it with a motion, if not promptly complied with ; but a technical construction should not be invoked to aid the plaintiff in his effort to avoid the applica. tian of the statute.

The orders of the general and special terms should be reversed, with costs, and the motion to change the place of trial granted, with costs.

All concur.


author: Gray, J.

text:
    Frederick H. Schild, Resp’t, v. The Central Park, North & East River Railroad Co., App’lt.

      (Court of Appeals,

      Filed June 7, 1892.)

    1. Negligence—Street railroads—Rails in streets.
    A railroad corporation having its fails in a public highway, must lay and keep them so as to cause as little injury as possible. Whether the rails are so laid as to constitute on its part a neglect of proper conditions for the public safety is a question of fact for the jury, and not one of law for the court to pass upon.
    2. Same.
    That the evidence showed that no complaint had ever been made, lodged or recorded to the knowledge of the defendant or with the public authorities, does not affect the question of liability.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.
    The plaintiff in crossing over the defendant’s track, at the intersection of Wall and Front streets in New York city, fell and broke his knee cap. The complaint charged the defendant with negligence in maintaining its rail at a dangerous elevation above the surface of the street, and alleged that the fall and consequent injury were caused by tripping over the rail. The evidence of the plaintiff and of the one witness of the occurrence, a bystander, was that the plaintiff’s fall was occasioned by his striking against the westerly rail of the track. It appeared that there was a break or depression in the flag stone of the crossing on the inside of the rail, and the defendant claimed that the evidence shows that the plaintiff fell from stumbling into the hole. With respect to the cause of the fall the trial judge charged the jury to the effect that if the fall was solely attributable to the presence of the hole in the pavement, then the defendant was not responsible. He instructed them that the defendant was rightly there, and the duty rested upon the city, primarily, to see that the streets were kept safe and secure. He confined the defendant’s liability solely to the condition of its tracks. In so far as the hole may have contributed to produce the result, he instructed the jury in effect, that if, nevertheless, they found that the condition of the rail was an active cause of the plaintiff’s fall, and that the rail was improperly maintained, they would be justified in finding negligence in the defendant. The judgment recovered by the plaintiff, upon the verdict of a jury, was affirmed at the general term, and the defendant has .again appealed to this court.

      Henry Thompson, for appl’t; Chas. J. Patterson, for resp’t.

       Affirming 41 St. Rep., 795.

   Gray, J.

I think the instructions given by the trial judge were correct and fairly left it to the jury to pronounce, upon the evidence, what they believed to have been the obstruction to plaintiff’s passage over the track. Their verdict must be taken as establishing, conclusively for us, that the plaintiff stumbled over the rail and not because of the hole in the flagging. The question, therefore, becomes one which relates to the rights of the defendant, and to the duty resting upon it, with respect to the laying and maintenance of its rails upon the street surface. The evidence for the plaintiff and for the defendant conflicts as to the height of the rail above the surface of the street. It was either one inch and an eighth of an inch, or upwards of two inches. There was evidence for the defendant that the track, when laid some ten years previously, was level with the street; but the rails certainly were, at the time of this occurrence, at some height above the street surface and to some extent constituted an obstruction in the highway. The defendant was authorized and had the right to put down its rails in and upon the street and was under no liability, by reason of anything in the grant from the common council, to keep the street pavement between its tracks in repair. But it was under an obligation, which is necessarily implied, as to every use of a public highway, so to construct and to maintain its tracks as that, by the exerqise of a reasonable care and supervision with respect to them, no danger might be occasioned to the public in its use of the highway.

From the case of King v. Kerrison, 3 M. & S., 526, upon which the decision in Oliver v. North Eastern Railway Co., L. R., 9 Q. B., 409, was rested, the principle may be deemed to have been established that a railroad corporation, having its rails in a public highway, must lay and keep them so as to cause as little injury <as possible. The highway, or street, used for the rails must be maintained as nearly as possible as fit for the use of the public, who travel on foot or in vehicles, as it was before; having due regard to the necessity for the rails being there. Whether the rails are so laid as to constitute on its part a neglect of proper conditions for the public safety is a question of fact for the jury, and not one of law for the court to pass upon. It was the province of the jury to decide, in such a case, whether the defendant was negligent. It is not a question of the right of the defendant to be there with its rails in the street; there was only the question whether, in the way, or in the condition, in which it suffered its rails to remain, it was not neglectful of the rights of the public to as safe and unobstructed a use of the street as was reasonably possible under the circumstances.

That the evidence showed that no complaint had ever been made, lodged, or recorded, to the knowledge of the defendant, or with the public authorities, does not affect the question of liability. It was something for the jury to consider, in rendering a verdict. It may, or may not have seemed singular. Many may have fallen from the same cause without injury ensuing; or, if injured, without complaining or suing.

This discussion sufficiently covers the points presented for the appellant, and there being no errors calling for a reversal, the-judgment should be affirmed, with costs.

All concur.


author: Peckham, J.

text:
    In the Matter of Application of The Board of Street Opening, etc., of the City of New York.

      (Court of Appeals,

      Filed June 7, 1892.)

    Appeal—Municipal cobfobations—Stbeet opening—Consolidation act,. §990.
    Section 990 of the consolidation act, giving the right to demand a discontinuance of further proceedings to open a. street upon request of a certain proportion of the owners of the frontage, does not apply in the case of a street opening of the first class in upper New York in the name of the park commissioners, and an order confirming a report in such a case is. final and conclusive and not appealable.
    Appeal from a judgment of the supreme court, general term’ first department, affirming an order confirming report of commissioners.
    ' This proceeding was commenced by the board of street opening and improvement of the city of New York, for and on behalf of the mayor, aldermen and commonalty of the city of New York, for the purpose of opening that part of Alexander avenue extending from Harlem river to Third avenue, in the twenty-third ward of the cit.y of New York, as a first class-street, pursuant to several acts of the legislature of the state. It was necessary for the purpose ©f opening such avenue to take-certain lands with the buildings and improvements thereon, mentioned in the petition of the above named board and particularly described therein. That petition was presented to the-supreme court sitting in New York city, and three commissioners of estimate and assessment were appointed for the purpose-of performing the duties relating to the premises as required, by law.
    Various hearings were had before this commission in regard to the value of the property to be taken and the assessment to be made. The Harlem River & Port Chester Railroad Company, whose rights were affected by the proposed taking of the land for-the avenue above mentioned, appeared before the commission and made various objections and gave proof of various facts upon the subject matter of the investigation. The commissioners duly made their report to the supreme court, and the above mentioned company thereupon specified in writing its objections to the confirmation of the report, and upon the hearing.of the motion to confirm the same, such written objections were presented to the court, and it also appeared by affidavit and in due form, that the railroad company objected to the further proceedings upon the report of the commissioners, and upon its presentation to the court then and there prayed that they should be discontinued; aild in that affidavit it alleged facts which the company claimed brought it within. § 990 of the consolidation act in relation to the city of New York„ and which gave it a right to demand a discontinuance of further proceedings to open the avenue. The order made upon the motion to confirm the report recited that the railroad company did upon the hearing of that motion interpose an objection to further proceedings upon the said report and prayed that they might be discontinued, and the order contained the following language: “Now upon reading and filing the written objection of the Harlem River & Port Chester Railroad Company to further proceedings upon the said report, dated —, 1891, and the said affidavit of Henry W. Taft in support of said objection, it is ordered that the objections interposed by the said objectors be overruled, that the said motion be and the same is hereby granted, and that the said report of said commissioners be, and the same is hereby, in all respects confirmed.”
    The railroad company made various other objections to the confirmation of the report in addition to the above objection, all of which were overruled, and the report as above mentioned was confirmed by the special term of the supreme court. Upon appeal to the general term, first department, that court affirmed the order, with costs, and from the order of affirmance the railroad company has appealed to this court.

      Henry H. Anderson, for app’lt; D. J. Dean, for resp’t.

       See 44 St. Rep., 546.

   Peckham, J.

It is urged by the counsel for the city that the order in this proceeding is not appealable to this court.

The general rule is as claimed by the counsel, and so we have decided many times. Matter of B'd Street Opening, etc., 111 N. Y., 581; 20 St. Rep., 133, and cases cited. ,

It is contended, however, that this is somewhat of a different case, inasmuch as it appears in the order that a request to discontinue was made and denied. The order does recite that objection was set up to the confirmation, and a request made for the discontinuance of the proceedings upon the coming in of the report, and the request and objections were overruled and the report was confirmed. If the provision for discontinuance was inapplicable to a proceeding to open a street of the first class, the objection is without force, and the statute making the order of confirmation final and conclusive applies to such a case as this. A brief glance at the legislation on this subject will enable us to judge clearly of the merits of this objection.

_ The act of 1813, in regard to the procedure for opening streets, did not contain any provision for discontinuing proceedings upon the application of a certain proportion in amount of those interested in the assessments for benefits or award for damages. It did provide that the order of confirmation should be final and conclusive. In 1839 (chap. 209) a provision was, for the first time, inserted regarding discontinuance. In 1874 (chap. 604, § 2), and again in 1876 (chap. 436, § 1), it was provided for opening streets in the northern part of New York under a new body, the park commissioners, and then by a later statute they were superseded by the present board of street opening. In the last named acts provision was made for opening in the new district streets and avenues of three classes, called respectively _ streets of the first, second and third class. In regard to streets of the first class, it was provided they should be opened whenever the board should . think the public interests required it, while as to streets of the second and third classes, they were only to be opened upon request, of a certain proportion of the owners of the frontage, being one-third in regard to the second class, and three-fourths in regard to the third class.

The proceedings to open the streets were to be those in force-when the application should be made. The statutes thus stood down to the time of the passage of the Consolidation Act.

In regard to streets not opened under the jurisdiction of the park commissioners, as provided for under the acts of 1874 and 1876, the proceedings took place under the title of the mayor, etc., and pursuant to the acts of 1813 and 1839. Under proceedings by the park commissioners to open streets, the question is whether in case of the opening of a street of the first class (which the avenue in question is) under the acts of 1874 and 1876, that, part of the act of 1839 providing for a discontinuance on request of the owners or persons interested applies. If it do, it might work the destruction of the purpose of the acts of 1874 and 1876, for under those acts and in that portion of the city covered by them a street of the first class could be opened whenever the board thought the public interests demanded it And yet, if the provisions relating to discontinuing the proceedings upon objection of a certain proportion of the persons were to apply, the commissioners would be subject to the control of the persons interested while in the discharge of their duties in opening streets-which in their judgment the public interests demanded should be opened. This we do not think was the intention of the act of 1874, as amended by the act of 1876.

By those acts the power and the responsibility were given to and reposed in the commissioners, and to them was confided the right to decide to open streets of the first class without reference to the wishes of those immediately interested as owners of lands-to be taken, or of lands to be assessed for such taking. The convenience of the general public in the opening of such a street, either a main route of travel or for drainage, as provided in the-statute, might be at war with the interest of the owners of the lands. The commissioners were to judge, and their decision to open should not in the nature of the case be reviewable by owners who might be opposed in interest to the interest of the public. Hence, when in the judgment of the commissioners the public interests demanded an opening of a street of the first class, the provision for discontinuance plainly does not apply to such a case. There is room enough for its application to other proceedings not involving the opening of a street of the first class in that portion of the city.

It is urged, however, that the enactment of the consolidation act rendered the provisions of the act of 1839 applicable to all cases, and therefore applicable to the case of a street opening of the first class by the park commissioners. We do not think the claim rests on solid foundations. All parts of the act must receive full consideration and each must have force as far as possible. The two provisions as to opening streets of the first class and as to discontinuing proceedings to open streets, must each have effect if it is possible to give it Taking into consideration the history of the legislation leading up to the re-enactment of these measures in the consolidation act, I think it entirely plain that the provision for discontinuing refers only to those cases where other and inconsistent provisions are not made, and that in case of a street opening of the first class in upper Úew York in the name of the park commissioners (or now in the name of the board of street opening), the right to demand a discontinuance does not exist by virtue of § 990 of the consolidation act. As the provision for such discontinuance does not apply to a street opening of the first class, the order made confirming the report was final and conclusive under the statute, and is not therefore appealable here.

We cb not say that in any case the order confirming the report of the commissioners is appealable here, even if we should be of the opinion that it erroneously denied the application to discontinue and confirmed the report. So long as the report is confirmed, it might be alleged that no appeal lies here, because the statute so declares, no matter what ground was set up as a reason for not confirming it. We do not decide that question. We hold on this appeal that the portion of the statute providing for discontinuing does not apply to this case and hence nothing prevented the full application of the provision of the section that the order entered confirming the report should be final and conclusive.

The appeal should be dismissed, with costs.

All concur.


author: Earl, Ch. J.

text:
    Charlotte E. Patten, Resp’t, v. The United Life & Accident Association, App’lt.

      (Court of Appeals,

      Filed June 7, 1892.)

    1. Insurance (Life)—Evidence—Visits of physician to insured—Code Civ. Pro., § 834.
    In an action on a policy of life insurance, where the defense is that the insured was reinstated as a member upon a certificate that he was in good health while in fact he was then under the care of a physician, and died shortly after, testimony of the latter as to the number and dates of liis calls upon insured during his last illness are admissible unless his evidence was objected to and excluded under § 834 of the Code, and even then it would be error to exclude it unless it was shown that the information sought to be obtained was acquired by the witness while attending the insured as a patient, or that the information sought to be obtained from him was necessary in order to enable him to act in his professional capacity.
    2. Same.
    There is nothing in § 834 which prohibits the insurer from showing that insured was a patient of the doctor, that he attended him and that he was sick, nor which prohibits the doctor from testifying whether he was called upon to attend insured professionally before or after the date of the certificate as to health, or to tell how many times he attended him from the time of his reinstatement to the time of his death.
    3. Same.
    The doctor’s evidence was taken in Washington, D. C., hy interrogatories. The court would not allow the defendant to read several of the direct interrogatories, among others the fifth, but plaintiff was allowed to read a cross interrogatory as follows: “ If you shall have stated in answer to the fifth direct interrogatory the cause of death o'f Jarvis Patten, state now further whether you did not acquire such information in attending said P/atten as a patient in a professional capacity and whether such information was not necessary to enable you to act in that capacity? ” Held, error, as the cross interrogatory and answer were immaterial.
    4. Same—Hostile witness.
    After the exclusion of the doctor’s evidence as to the extent of the last illness, defendant called a daughter of plaintiff and attempted to show by her when her father’s illness commenced and that it existed when the certificate of health- was made, and the extent of the attendance of the physician, but failed to do so. Held, that defendant was not bound by her evidence, as she was a hostile witness largely interested in the success of her mother.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff.

      Harry Wilber, for app’lt; J. A. 8hotidy, for resp’t.

       Reversing 41 St. Rep., 434.

   Earl, Ch. J.

This action was brought on a policy of insurance upon the life of Jarvis Patten. The defendant is an assessment insurance company and the policy by its terms was made payable to the plaintiff. It was provided in the policy that a failure to comply with the rules of the association as to the payment of assessments should render the policy void. Patten had failed to pay an assessment as required by the rules of the association, and for such failure his policy had lapsed and become void prior to the 19th day of April, 1888. On that day for the purpose of being reinstated as a member of the association he executed a certificate certifying that he was in good health, and that certificate was sent to and reached the defendant on the 23d day of April, 1888. Patten died on the 16th day of May thereafter; and the sole defense to this action which is now relied upon is that the certificate as to his health on the 19th day of April was untrue.

To defeat the action it was incumbent upon the defendant to show that at the date of the certificate Patten was not in good health'.'

Prior to the trial the evidence of Dr. Perrin, of Washington, D. 0., was taken, at the instance of the defendant, under a commis'sion issued for that purpose, and upon the trial it attempted to read i n evidence the doctor’s examination taken under the commission. The court, upon the plaintiff’s objection, refused to permit the answers to certain of the interrogatories to be read in evidence, and such refusals are now the defendant’s chief cause of complaint. In answer to the first, second, third and fourth interrogatories, Dr. Perrin stated that he was a physician, and that Ms place of residence was in Washington; that he knew Patten, and that his acquaintance with him continued until his death on May 16, 1888. The interrogatories overruled by the court and the objections made to them are as follows: “Did you attend Jarvis Patten professionally in his last illness?” “Did you continue in attendance upon Jarvis Patten until his death?” “When were you first applied to in reference to the last illness of Jarvis Patten; please give the exact date and time, whether day or night ?” “ Where did you first see Jarvis Patten concerning his last illness; at your office, or at his residence, or elsewhere?” These interrogatories were objected to by plaintiff’s counsel as" calling for a conclusion, and as incompetent and irrelevant.

The following interrogatories were objected to generally, no ground being stated : “ How many times did you attend him professionally intermediate the occasion you first saw him in relation to his health, as you have testified, and the death of Jarvis Patten ? Please give the dates and hours of your attendance as far as you are able ?” “ How many of these attendances were at your office, and how many at the house of Jarvis Patten ?” “ Please give the dates of such attendances at your office ?” “ Please give the dates of such attendances at the house of Jarvis Patten ?” These interrogatories do not appear to have been objected to under § 834 of the Code, and it was not objected that the doctor was not competent to answer the questions. ■ The defendant certainly had the right to show, if it could, by some witness that Patten was not in good health at the time he signed the certificate ; and if it could have shown by any witness that at or about that time he was in charge of a physician, it would have gone a great way to show the untruthfulness of the certificate and to> establish its defense. Patten died in less than a month after executing the certificate certifying that he was in good health, and his health during the whole of that time was a pertinent matter of inquiry and investigation, and the defendant had the right to show its condition by the doctor, unless his evidence was objected to and excluded under § 834 of the Code. But if we assume that the trial judge in excluding the evidence had in mind § 834 and intended to exclude it on account of the prohibition therein contained, the rulings were, nevertheless, erroneous. At the time the rulings were made it did not appear that the information sought to be obtained from the doctor was acquired by him while attending Patten as a patient, or that the information' sought to be obtained 'from him was necessary in order to enable him to act in his professional capacity.

There is nothing in § 834 which prohibited the defendant from showing that Patten was the patient of the doctor, that he attended him' as a patient, and that he was sick. Hor is there anything in that section which prohibited the doctor from testifying whether he was called upon to attend Patten professionally before or after the date of the certificate, or to tell how many time's he attended him, whether daily or hourly, from the 19th day of April to the 16th day of May. If the defendant had been permitted to read the answers to these pertinent interrogatories, it is possible that it could have proved facts enough, for submission to the jury as to the bad health of Patten at the time he made the certificate. It is no answer to the defendant’s claim of error in these rulings that it does not appear what the answers to the interrogatories were. It was not bound to insert in the record answers which it was not permitted to read, and the interrogatories being competent we cannot assume that material and relevant answers were not given by the witness in response to them. We are bound to assume that the excluded answers were harmful to the plaintiff, as her counsel would not, otherwise, have objected to them.

After the trial judge had refused to allow the defendant’s counsel to read the answers to the interrogatories specified, plaintiff’s counsel read the first cross interrogatory and the answer thereto, as follows: “ State whether or not you are a person duly authorized to practice physic or surgery? " And the witness answered: “I am duly authorized to practice physic and surgery.” ' And he read the second cross interrogatory and the answer thereto, as follows: “If you shall have stated in answer to the fifth direct .interrogatory the cause of death of Jarvis Patten, state now further whether you did not acquire ksuch information in attending said Patten as a patient in a professional capacity, and whether such information was not necessary to enable you to act in that capacity ? ” And the witness answered: “I did acquire such information in attending said Jarvis Patten in a professional capacity and such information was necessary to enable me to act in such capacity.”

Defendant’s counsel had not read the fifth direct interrogatory, nor the answer thereto, and had given no evidence by the doctor as to the cause of Patten’s death, and therefore the second cross interrogatory and the answer thereto were wholly immaterial. There was no necessity whatever for the plaintiff to show that the doctor acquired bis information as to the cause of Patten’s death while attending him in a professional capacity, and that such information was necessary to enable him to act in such capacity, as he had not previously given any evidence as to the cause of Patten’s death so far as this record discloses. If we should assume that the doctor obtained information of the nature of Patten’s sickness while attending him professionally, and that such information was necessary to enable him to act in his professional capacity, such assumption would not justify the exclusion ■of the1 evidence called for by the direct interrogatories above ’specified, because none of them called for the nature of the disease with which he was afflicted.

After the exclusion of the defendant’s interrogatories put to the doctor, it called as a witness a daughter of the plaintiff, and attempted to show by her. when the illness of her father commenced, ■ and that it existed at the time the certificate was made. It also attempted to show by her when the physician was first called to attend her father, and it was unable to show by her that her father’s illness commenced prior to the date of the certificate, or that the doctor had attended him prior to the 5th day of May. But the defendant was not bound by her evidence. We may assume that she was a hostile witness, largely interested in the suecess of this action brought by her mother. We may also assume that the defendant was forced to call her because of the exclusion of the evidence taken under the commission, and hence that the exclusion of that evidence was damaging to it. Rules of evidence play an important part in the administration of justice. They should be reasonably and consistently enforced so as to give certainty to the law which protects the rights of parties. We cannot, without doing injustice to the defendant, ignore its exceptions now brought to our attention, and for the errors which they point out the judgment should be reversed, and a new trial granted, costs to abide the event.

All concur.


author: Pinch, J.

text:
    William H. Tolhurst et al., App’lts, v. Joseph A. Powers, Resp’t.

      (Court of Appeals,

      Filed June 7, 1892.)

    1. Lien—Waives.
    Plaintiffs constructed a dynamo for which one Ball was to pay, and after all payments he remained indebted to them when the machine was ready for delivery. They delivered it to him, and he sold it to 0. on a contract that it should work successfully. It did not, and was sent back to plaintiffs to be altered. This they declined to do until defendant agreed to pay for the work, and he did so. Thereafter Balland defendant requiring a delivery oí the dynamo, plaintiffs undertook to retain possession till the original debt was paid. Held, that the primary lien of plaintiffs was lost by the first delivery, and they acquired no new one by reason of the repairs which were paid for.
    3. Same.
    The fact that Ball made no demand for the dynamo was no defense so long as there was a request to ship the machine and a shipment, Ball standing by and making no objection.
    Appeal from a judgment of the supreme court, general term, third department, affirming judgment on report of referee dismissing complaint.

      Davenport cb Hollister, for appl’ts; Drank S. Black, for resp’i

       Affirming 39 St. Rep., 581.

   Pinch, J.

We agree with the prevailing opinion of the general term that there was no consideration to support the promise of Powers to pay Ball’s debt to the plaintiffs. The latter originally constructed a dynamo for which Ball became indebted to them, and after all payments he remained so indebted when the machine was ready for delivery. The builders of course had a lien upon it for the unpaid balance, but waived and lost their lien by a delivery to Ball without payment. He, being then the owner, and holding the title free from any incumbrance, sold the dynamo to Crane on a contract apparently contingent upon the successful working of the machine. It did not work successfully, and was sent back to plaintiffs to be altered, with a view of correcting its imperfections. At this point occurred the first intervention of the defendant, Powers. He had not then obtained, so far as the case shows, any interest in the machine, and the complete title was either in Crane or Ball, or in both; but when the plaintiffs hesitated about entering upon the new work until their charges for it should be made secure, Powers agreed to pay them.

The true character of that promise is immaterial, for, when the work was done, Powers did pay according to his contract. Thereafter, Ball and Powers requiring a delivery of the dynamo, the plaintiffs undertook or threatened to retain the possession till the original debt should be paid. .That they had no right to do. Their primary lien was lost by the delivery, and they acquired no new one by reason of the repairs which were paid for. Such refusal to surrender the possession was an absolute wrong without any color of right about it. After demand, their refusal was a pure trespass, and according to their own evidence the sole consideration for the promise which they claim that Powers made to pay the old debt of Ball was their surrender of possession. To that they were already bound, and parted with nothing by the surrender. They gave up no right which they had against any one, but extorted the promise by a threat of what would have been, if executed, a wrongful conversion. Doing what they were already bound to do, furnished no consideration for the promise.

It is said, however, that Ball made no demand, and until he did the plaintiffs were not bound to deliver the possession, and that the delivery was to Powers and not to Ball. But there was certainly a request to ship the machine and so part with the possession, and both the request and the shipment were with the concurrence of Ball. It was that very request that brought up the subject of the old debt, and Ball stood by plainly assenting, at least, by omitting any dissent or objection. The shipment to Powers by name made it none the less a delivery to Ball, whose concurrence is explicitly found. Surely after what happened the latter could not have maintained an action for conversion on the ground that there had been no delivery to him. The undisputed fact is that the plaintiffs were seeking to withhold a delivery to the owner without the least right of refusal. There was no harm to plaint-.’ iffs and no benefit conferred on Powers. The former parted with nothing of their own, and the latter gained nothing, for the shipment to him was a delivery to Ball, the owner, since made with his concurrence, and Powers obtained no right or interest in the property as the result of the delivery. He simpty took it, if he took at all, which is doubtful, as the agent or bailee of the owner, and acquired no right in it until a later period. Until the mortgage made subsequently, his advances for repairs constituted only an unsecured debt against Ball. The turning point of the appellants’ argument is the unwarranted assumption that the plaintiffs agreed to deliver and did deliver the dynamo to one whom they knew not to be the owner without the assent of Ball, who was the owner, but who nevertheless stood by and made no objection. Ho fair construction of the evidence will sustain the appellants’ theory.

The judgment should be affirmed, with costs.

All concur.


author: Bischoff, J.

text:
    Augusta L. Jones, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    Eailroad—Elevated—Damages.
    In determining the sum representing the depreciation of the premises in fee value to be paid as an alternative for avoiding an injunction, it is proper to consider the effect upon the premises, as regards the diminution of light and air, resulting from the continued operation of the elevated railroad in the future.
    Action to restrain defendants from' maintaining their elevated Tailway in front of plaintiff’s premises and for past damages.

      Charles Qibson Bennett, for resp’t; Julien T. Davies and John C. Thomson, for app’lts.
   Bischoff, J.

Two grounds only are assigned for reversal of judgment, viz.: That the referee erred in his conclusion that the diminution of light and air caused by passing trains on defendants’ elevated railroad structure in front of plaintiff’s premises constituted a taking of the easements of light and air appurtenant thereto, and that in determining the sum representing the depreciation of the premises in fee value and to be paid as an alternative for avoiding the injunction, the referee erroneously included the effect upon the premises, as regards the diminution of light and air, resulting from the continued operation of the railroad in the future.

Both questions were determined adversely to the appellant in Smith v. New York Elevated R. R. Co. et al, 44 St. Rep., 875, decided by the general term of this court in March last, and the present does not appear to be distinguishable from that case. The judgment should, therefore, be affirmed, with costs.

Judgment affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


text:
    Emily Guion, Resp’t, v. William H. Mundy, App’lt.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Appeal—Case.
    A statement in a case on appeal that it “does not contain all the evidence taken on the trial. There was additional evidence for the defendant which was cumulative.” does not exclude a presumption that evidence for plaintiff which does not appear in the case sustained the facts found; and does not permit the appellate court to inquire as to the sufficiency of the evidence to support those facts.
    2. Trial—Affirmative defense—Dismissal.
    Defendant set up as an affirmative defense an alleged agreement that no accounting for the moneys in question should be had until the termination of a litigation which was still pending. The evidence to establish such agreement consisted of defendant’s testimony and that of witnesses as to admissions of plaintiff, and her silence when such arrangement was mentioned in her presence. Plaintiff denied making the agreement. Held, that a refusal to dismiss was proper, and that this court should not disturb the finding of the referee.

      Action to recover money loaned by plaintiff to the defendant, her attorney, the defenses being that by the terms of an alleged agreement no accounting was to be had between the parties until the determination of a certain litigation pending at the time of the commencement of this action and of the trial, and that the sum loaned was pursuant to plaintiff’s directions applied to the payment of expenses incurred by the defendant, and services rendered by him at the request of the plaintiff. The answer also contained á counterclaim for the value of such services and the amount of such expenses.

      Richard W. Newhall, for resp’t; William H. Mundy, for app’lt.
   Bischoff, J.

At the end of the case on appeal there appears

the following: “ This case does not contain all the evidence taken at the trial. There was additional evidence for the defendant which was cumulative.” Obviously this does not exclude a presumption that evidence for the plaintiff, which does not appear in the case, abundantly sustained the facts found by the referee, and the absence of a statement that the case contains all the evidence precludes us from all inquiry as regards the sufficiency of the evidence to support those facts. Aldridge v. Aldridge, 120 N. Y., 614, 616; 31 St. Rep., 948.

The facts found being conclusive upon us and amply sustaining the referee’s conclusions of law, we are left to examine the exceptions taken by defendant upon the trial for ground for reversal of the judgment appealed from.

At the close of the testimony defendant moved to dismiss the complaint on the sole ground that it then appeared that plaintiff was precluded from maintaining this action because of her alleged agreement to forbear the collection of the sum loaned to the defendant until after the determination of the pending appeal in the Wellman litigation, and that it should be first applied by the defendant in discharge of the obligation of one of the sureties on said appeal as such. This motion was denied, and properly.

The making of this alleged agreement constituted an affirmative defense and was pleaded as such; and to have authorized a nonsuit or dismissal of the complaint, it was incumbent upon defendant to have established it by undisputed and unimpeached evidence, or by a clear preponderance of the evidence. The contrary, however, appears. No written assent on the part of the plaintiff to such an agreement was produced, and she denied emphatically that she ever made or authorized it, or that she knew at any time that it was entered into on her behalf. For the defendant the evidence relied upon to establish the alleged agreement consisted of his own testimony, which.in itself was liable to discredit because that of an interested party, and the testimony of several witnesses to admissions alleged to have been made by her and her silence when such an arrangement was mentioned in her presence. Taken as a whole, the testimony of these witnesses is of such an unsatisfactory character that within the rule laid down in Baird v. Mayor, etc., 96 N. Y., 567, the conclusion of the referee respecting its credibility ought not to be disturbed.

Of the four remaining exceptions none are discussed upon, appellant’s belief, nor were they referred to on the argument of the appeal, and upon examination they appear to be too frivolous to merit discussion.

The judgment appealed from should be affirmed, with costs.

Pryor, J., concurs.


text:
    Arthur W. Andrews, Resp’t, v. James T. White et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    ■Contract—Rescission—Restitution.
    Plaintiff's assignor subscribed for a set of books, and in consideration of the delivery to him of certain artist proofs agreed to pay one-half of the contract price on delivery thereof and the balance on delivery of the complete set. Held, that such artist proofs were received “ by virtue of the contract,” and that the contract could not be rescinded and the money-paid recovered without a return of said proofs.
    Appeal from judgment of seventh district court.
    Action on a contract of which the material provisions are as follows:
    John Lucas stipulated to take of defendants at the price of ten dollars a volume, one set (twelve volumes) of “ The National Cycloposdia of American Biography, edited by James R. Gilmore,” which is to contain biographical sketch and vignette porrait of Lucas.
    In consideration of the delivery for me of ten artist proofs of the above portrait, with a duplicate plate, “I agree to pay one-half of the above amount upon such delivery, and the other one-half upon delivery of the complete set." Plaintiff sued as assignee of Lucas, and had judgment below.

      Strong & Cadwalader, for resp’t; Frederic G. Dow, for app’ts.
   Pryor, J.

Assuming for argument that, on the retirement of Gilmore from the editorship of the cyclopaedia, the plaintiff had a right of action against the defendants, the question confronts us at the threshold : What were the cause and object of the action litigated between the parties ?

On the one hand the defendants contend that the action is a ■suit in equity for rescission of the contract; and that, being such, it could not, of course, be entertained by a district court. But, that the action is in no sense such a suit is apparent beyond controversy. Gould v. Cayuga County Bank, 86 N. Y., 75.

On the other hand, the plaintiff contends that the action is for damages for a breach of contract. But it is equally evident -that the action is not to recover an indefinite amount as damages for breach of contract; but is, instead, a demand for a certain, determinate sum received by defendants in pursuance of the contract, .and which, by rescission of the contract, they are bound to return to the plaintiff. In a word, the action is for money had and received by the defendants to the use of the plaintiff.

By the summons the defendants are warned that in case they ■fail to appear and answer, the plaintiff will take judgment against them “ for the sum of sixty dollars with interest,” etc. ■ The complaint alleges the contract between the parties; the payment of sixty dollars by the plaintiff to the defendants in conformity with the contract; the breach of the contract by the defendants; that because of the breach the plaintiff’s assignor “ elected to rescind said contract,” offered to return all he received under it, and demanded “repayment of the sixty dollars.” The relief prayed is “judgment in the sum of sixty dollars with interest from April 29, 1891; ” the date of the receipt of the money by the defendants.

Ro ai’gument is necessary to show that the action is not for damages from breach of the contract, but is for recovery of the specific sum paid by plaintiff, and reclaimable by him on rescission of the contract

This being the nature of the action, in form and in substance, defendants contend that it cannot be maintained, because the plaintiff has not restored all he received under the contract. That such restitution is a condition precedent to the right of recovery in an action proceeding upon a rescission of the contract and seeking to reclaim the money paid under it is so elementary a proposition that it were quite idle to adduce authority in it support. “ To maintain such action he must first restore, or offer to restore, to the other party whatever may have been received by him by virtue of the contract.” Vail v. Reynolds, 118 N. Y, 297, 302; 28 St. Rep., 707. Indeed, plaintiff himself recognizes the necessity of such restitution or offer; for, in his complaint he alleges that his assignor “has tendered back to defendants the said artist proofs.”

Unfortunately for the plaintiff he gave no evidence to substantiate his allegátion of an offer to return the artist proofs to the defendants.

But the plaintiff contends, if we understand the argument, that the contract was severable; that the agreement for the sale of the book, was separate and independent of the provisions for the supply of the artist proofs; that these “ were given in consideration solely of advancing the time of payment of sixty' dollars, one-half of the purchase price of the book, and were not given in consideration of any portion of said sixty dollars.” The distinction drawn by the plaintiff is so subtle as possibly to elude apprehension ; but nevertheless, supposing it to be substantial, still the concession-is that the artist proofs were received “in consideration of advancing the time of payment of one-half of the purchase price of the book,” and so were received by virtue of the contract.” Vail v. Reynolds, supra.

Reciting that the book sold was to be in twelve volumes, and for the price of ten dollars a volume, the contract stipulates that “in consideration of the delivery of ten artist proofs” the purchaser agrees then “ to pay one-half of the above amount;” that is, one-half of the total price of the book. Thus, by the express terms of the contract, the sixty dollars was not payable solely and separately as the price of the artist proofs, but as “ one-half " of the purchase price of the book; “ the other one-half ” being payable “ upon delivery of the complete set,” And that plaintiff himself regarded the contract as entire and indivisible, is evidenced by his allegation in the complaint that he had tendered back the artist proofs. The contract being thus entire and indivisible plaintiff could not repudiate as to part and ratify as to part; the rule being fundamental that a contract, if rescinded at all, must be rescinded in toto.

If then the sixty dollars now sought to be reclaimed were paid as part consideration of an entire contract, that contract cannot be rescinded except on condition of the return of the artist proofs. Masson v. Bovet, 1 Denio, 69.

But, upon the alternative construction, namely, that the sixty dollars were paid as the separate and specific price of the artist proofs, the case is quite as clear for the defendants. The plaintiff cannot have the thing bought and the price too.

The decision of the point discussed obviates the necessity of considering the other interesting questions presented and ingeniously debated by the respective counsel.

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

Bischoff, J., concurs.


text:
    Gerald R. Brown et al., App’lts, v. Abram Wakeman, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

      t. Appeal—Common pleas.
    The court of common pleas has no jurisdiction to review a decision of the city court of New York upon questions of fact.
    8. Same—Case.
    A verdict in favor of the defendant in an action for rent where the defense was eviction by the landlord, is conclusive upon this court where the case does not purport to contain all the evidence.
    3. Same—Questions not raised below.
    A point not taken on the trial and as to which no request for instructions was made or exception taken cannot be considered on appeal.
    4. Trial—Objections to testimony.
    Error cannot be predicated upon the admission of evidence which is material though perhaps incompetent, where the only ground of objection was that it was immaterial.
    5. Same.
    A general objection to a question calling for declarations of a party to the action as well as of a stranger, which does not discriminate between the admissible and inadmissible evidence, is insufficient.
    Action for rent; defense eviction, and counterclaim for damages.
    The defendant had a verdict, and the appeal is from the judgment of the general term of the city court, affirming judgment dismissing the complaint, and order denying a new trial.

      T. B. Wakeman, for resp’t; McCall & Arnold, for app’lts.

       Affirming 43 St. Rep., 677.

   Pryor, J.

Appellants' main contention is, that the verdict was contrary to the evidence; bat on this appeal we have no-jurisdiction to review the decision of the court below upon questions of fact. Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep., 297.

And, as the case does not purport to contain all the evidence, we are bound to assume that sufficient proof was adduced to support the verdict. Arnstein v. Haulenbeek, supra; Howland v. Howland, 20 Hun, 472; Davis S. M. Co. v. Best, 50 id., 76, 79; 23 St. Rep., 876; Cheney v. R. R. Co., 16 Hun, 415, 419 ; Murphy v. Board, 53 id., 171; 25 St. Rep., 154; Spence v. Chambers, 39 Hun, 193, 195.

These peremptory rules of appeal leave for consideration only such questions of law as are apparent on the record by appropriate exceptions.

The point that the disturbance of defendant’s possession was not by the plaintiff, but by the department of buildings, is not available to appellants, for the reason that whether the defendant was so molested in his occupancy is concluded by the verdict on conflicting evidence, and by the presumption that the actual proof was adequate to sustain a finding that defendant’s injury was the consequence of plaintiff’s trespass.

Clearly and explicitly the court charged the jury that the defendant “ cannot maintain an eviction for the time he may claim he has been denied the use and occupation of the premises if he retains them and uses them;’’ and again that “ a tenant cannot remain in possession, and because circumstances exist which would authorize him to leave, treat the matter as though in reality he had vacated.” Still, appellants impute error to the refusal of" the court to direct a verdict in their favor “ upon the ground that a tenant cannot remain in possession and then claim an eviction ;” and in support of their contention they allege that the evidence of defendant’s continued possession was entirely without contradiction. We do not so read the evidence as returned; and since the record is not certified to contain all the evidence, the-presumption prevails that the verdict was justified by proof produced but not reported.

To the proposition that the jury erred in “refusing to allow the plaintiff the rent for the months of February, March and April, notwithstanding that the repairs were completed before February 1st,” it is an all-sufficient answer, that the point was not taken on the trial, and that no request for instructions or exception presents the question for review.

The point that the judge erred in allowing “hearsay-testimany ” as to the ownership of the premises is untenable for two reasons: First, the ground of the objection was that the testimony was immaterial, whereas it was material though perhaps incompetent ; and secondly, the question challenged called for declarations-of a party to the action as well of a stranger; while the objection was general and without discrimination between the admissible and the inadmissible evidence.

The fact, if so it be, that the general term of the court below erred “ in assuming that the repairs were made by the plaintiffs and not by the department of buildings,” is of no consequence; since a wrong reason for a right decision is ineffectual for its reversal. The trial court, at all events, did not commit a like error.

And so of the alleged error by the general term in “ holding that the repairs were not completed until May, 1890.”

Appellants’ other exceptions are necessarily involved in the determination of those already discussed.

Upon a careful examination of the case we find that the learned trial judge submitted the issues to the jury in a charge of unusual clearness and correctness; and our conclusion is, that no available error was committed to the prejudice of the appellants.

Judgment and order affirmed, with costs.

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


text:
    Diedrich Tragman et al., Resp’ts, v. Frederick M. Littlefield et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Attorneys—Contract with client.
    Because of the fiduciary relation between the parties and the commanding position of the attorney, any dealing between him and his client in which the interest of the client may have been betrayed is prima facie fraudulent and void; but the presumption is provisional only and may be overcome by proof of good faith and fair conduct on the part of the attorney and free volition and intelligent action on the part of the client.
    3. Same—Deed.
    In an action to set aside a conveyance made by a client to his attorney the court found that the conveyance was an absolute transfer without any condition whatever; that its consideration was professional services rendered by defendant; that no fraud was intended by either plaintiff or defendant,; that defendant used no threats or coercion or misrepresentations to plaintiffs; that he explained the deed and situation to plaintiff; that the sale was made by plaintiff with full knowledge of the situation of the property and its value,and in the conveyance acted freely and voluntarily, and that a subsequent release executed by plaintiff was given voluntarily and without fear or compulsion with full knowledge of defendant’s dealings, and that defendant practiced no deceit or fraud to obtain it. Held, that from these findings it must result that the conveyance to defendant is unimpeachable, and that a judgment for plaintiff could not be sustained.
    Appeal by defendants from a judgment in equity.
    The necessary facts appear in the opinion.

      W J. Leitch, for resp’ts ; Wm. B. Hornbbwer, for app’lts.
   Pryor, J.

A detail of the complex circumstances recited in the pleadings and developed by the findings is unnecessary to exhibit the reasons of our decision; but for that purpose it suffices to state that, in substance and effect, the action is by a client against an attorney, on the ground of fraud and undue influence, to set aside a conveyance by the former to the latter pending the relation between them.

The appeal is before us on the judgment roll alone, and hence the only inquiry is whether the judgment can stand consistently with the facts found. If the contention of the appellant were merely that the findings of fact are insufficient to sustain the conclusions of law, then in the absence of the evidence we should presume that it was adequate to authorize inferences of fact necessary to support the judgment. But the position of the appellants being that the facts as found negative the conclusions of law, it follows inevitably that, in the event of such repugnancy, we have no alternative but to reverse the judgment.

The test propounded by the law of this state for determining "the validity of a transaction between client and attorney involving adverse interests is as well established as it is easy of application. Because of the fiduciary relation between the parties and the commanding position of the attorney, any dealing between them in which the interest of the client may have been betrayed, is prima facie fraudulent and void ; but the presumption is provisional only, and may be overcome by contrary proof. The burden is upon the attorney to adduce such evidence. But, what is the evidence that will thus avail to repel the presumption against the transaction and re-establish its validity? We answer, such proof as demonstrates good faith and fair conduct on the part of the attorney, and free volition and intelligent action on the part ■of the client If the attorney be guilty of no fraud or ,undue influence, and if the client, comprehending clearly the circumstances ■of the situation, be moved only by the impulses of his own will, the transaction, though in the event favorable to the attorney and unfavorable to the client, cannot be impugned even in a court of equity.

The principle is abundantly sustained by authority and illustrated in adjudged cases. Whitehead v. Kennedy, 69 N. Y., 462 ; Haight v. Moore, 5 J. & S., 161; Mason v. Ring, 3 Abb. Ct. App. Dec., 210 ; Post v. Mason, 26 Hun, 187 ; Hitchings v. Van Brunt, 38 N. Y., 335, 342; Taylor v. Bemiss, 110 U. S., 42, 45; Brock v. Barnes, 40 Barb., 521; Jennings v. McConnel, 17 Ill., 148; Wharton v. Hammond, 20 Fla., 934; Nesbit v. Lockman, 34 N. Y., 167; Cowee v. Cornell, 75 id., 91, 100.

In Brock v. Barnes, supra, an annuity by a client to an attorney was sustained upon proof that “ all was fair, and that the -client acted freely and understandingly.” (Note,- p. 536). In Post v. Mason, supra, a legacy to a lawyer was upheld upon proof that “the testator acted with full knowledge of all the surrounding circumstances, and that the transaction was free from all fraud and undue influence” on the part of the attorney. In Nesbit v. Lockman, supra, the action was to set aside a gratuitous conveyance from a client to an attorney. The trial court found as a fact “ that the assignment was a gift, freely and voluntarily made, without any fraud, deceit or undue influence on the part of the donee, or advantage taken by reason of his business relations, and without suggestion or inducement on his part, but of the ■donor’s own free will and purpose.” On review, the court of appeals said: “the presumption is against the propriet}'- of the ■transaction, and the onus of establishing the gift or bargain to have been fair, voluntary and well understood, rests upon the party dealing; ” but, the exigency being answered by the proof, the judgment for the defendant was affirmed, as a necessary legal corollary from the facts found. The court added: “ The English cases hold substantially the same doctrine, viz: that while a bargain between attorney and client is viewed with great jealously and suspicion, and its entire fairness must be shown by the party claiming the benefit of it, there is no inexorable rule pronouncing its illegality.” In a more recent case Cowee v. Cornell, supra, the court of appeals lay down the rule, thus: “ Whenever the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from overmastering influence; or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, then the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood.”

As in Nesbit v. Lockman, supra, the single and the decisive question is: Do the facts found, by necessary inference of law,, displace the presumption of invalidity attached to the transaction from the relation of the parties ?

In determining the effect of findings of fact, the defeated party is entitled, if they be conflicting, “ to the benefit of those most favorable to him, in aid of his exceptions to the conclusions of law.” Bonnell v. Griswold, 89 N. Y., 122 ; Schwinger v. Raymond. 83 id:, 193.

The learned trial judge found as facts : That the conveyance to the defendant by the plaintiffs “ was an absolute transfer made without any condition whatsoeverthat its consideration “ was for professional services rendered by the defendant of the value of five hundred dollars that the defendant “ had no notice of any fraudulent- intent of the plaintiffs to defraud their creditors “ that no fraud was intended at the time of the deed by either the plaintiff or the defendantsthat “ the deed to defendant was not made to hinder, delay or defraud creditorsthat the defendant “ did not participate in any fraud, if any, of the plaintiffsthat the defendant “ did not intend when he took the deed of the Tragmans to hinder or delay their creditorsthat “no secret trust was intended to be created by the defendant in favor of the plaintiffsthat “ the defendant at the time of his purchase used no threats or coercion or misrepresentations to the plaintiffsthat the sale by the plaintiffs to the defendant “ was made with full knowledge of the situation of the properties and their value that at the time of the conveyance “ the defendant explained fully to the plaintiff the situation of the properties, and his inability to secure any consideration from his creditors, and also the nature of his services and their value “ that the plaintiff knew that the deed gave defendant the absolute titlethat the deed was explained by defendant to plaintiff in Wiley’s presencethat in the conveyance to defendant plaintiff “ acted freely and voluntarily. ”

While there is no specific finding that the consideration of the ■conveyance was adequate, that is the necessary deduction from all the facts.

Among the conclusions of law the learned trial judge found that “the transactions between plaintiffs and defendant were honest and in good faith, and free from actual fraud or imposition or undue influence on the part of the defendant;” that “ the deed was founded upon a good and valuable consideration,” and that it was not made with intent to hinder, delay or defraud the creditors of the plaintiffs.”

From these findings it results as an irresistible inference of law that the conveyance to the defendant is unimpeachable, and his title to the property absolute and indefeasible.

Another and an independent defense interposed by the answer and established by the findings, of itself makes a recovery by plaintiff a legal impossibility. Subsequently to the transaction of the sale and conveyance, the defendant, out of abundant caution, took from the plaintiff a general and absolute release; as to which the learned trial judge found that it “ was given to the defendant voluntarily, and without fear or compulsion,” and that the defendant “practiced no deceit or fraud, or used any force to obtain it;” that it “ was sufficiently explained,” and executed in the presence of a third person; and that at the time of its execution the plaintiffs “ had full knowledge of all defendant’s dealings with the properties.”

Surely, further argument is not needful to show that, in view of the findings, the judgment cannot stand.

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

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


author: Daly, Gh. J.

text:
    Margaret A. Meislahn, App’lt, v. Richard Hanken, Adm’r, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 4, 1892.)

    1. Trial—Notice—Irregularity.
    The service by defendant of a notice of trial before plaintiff’s time to reply has expired is irregular, but such irregularity is waived by the retention of the notice without objection, or by delay in objecting or acquiescence.
    2. Default—Terms on opening.
    Plaintiff served notice of trial, but failed to file a noté of issue. Defendant then served an amended answer, setting up a counterclaim and a notice of trial for the following term, with a demand for preference. When the cause was reached plaintiff did not appear, and defendant took a dismissal. Negotiations were opened looking to an opening of the default, which culminated in a consent to vacating the judgment if plaintiff served a proposed order with notice of settlement for June 16, which was done, but plaintiff’s attorney failed to appear on that day, and he took no further steps until October. Held, that as defendant’s proceedings were regular and plaintiff’s loches unquestionable, it was proper to require the payment of all the costs as a condition of opening the default.

      Appeal by plaintiff from so much of the order of the special term of this court, granting her motion to set aside the judgment .and restore the cause to the calendar, as requires her to pay all the costs of the action as a condition of granting the motion, and denies her motion unless such costs are paid.

      F. De Lysle Smith, for app’lt; Weelces Bros., for resp’t.
   Daly, Gh. J.

The service by defendant of notice of trial before the plaintiff’s time to reply had expired would be irregular; but such irregularity could be waived, and the retaining by plaintiff of the notice without objection, or delay in objecting of acquiescence, would waive the irregularity. Silliman v. Clark, 2 How. Pr., 160; N. Y. Central Ins. Co. v. Kelsey, 13 id., 535; Johnston v. Bloomer, 3 Edw., 328; Farmers' L. & T. Co. v. Reid, id., 414.

The evidence of acquiescence in the premature notice is conclusive. When the cause was first at issue upon the original pleadings the plaintiff’s attorney served and defendant’s attorney accepted a short notice of trial for the April term, in order to hasten the trial of the action which delayed the distribution of the estate, but the plaintiff’s attorney neglected to file a note of issue for the April term and it was to remedy this neglect that defendant’s attorney served the notice in question and filed a note of issue for the May term, immediately after serving an amended answer containing a counterclaim. This notice of trial contained a demand for a preference in the calendar, the action being against an administrator. Plaintiff’s attorney retained it without any objection and subsequently served a demand for a bill of particulars of the counterclaim, but without waiting for the bill of particulars served his reply on May 7th. The cause was reached May 14. All the circumstances show that both parties intended the notice of trial and of preference to effectuate their joint purpose, viz.: an early trial, the issue upon the counterclaim to be joined in the meantime. Such an arrangement was valid and the ■cause was, therefore, regularly on the calendar for the May term.

The cause was reached on May 14 as a preferred cause, pursuant to an order setting it down for trial for the first Monday of May. The regularity of this order is attacked because (1) it was made before the first Monday, and (2) because it was granted ex parte ; but the court at trial term on the first Monday could have set the cause down on that day, pursuant to the preference claimed in the notice of trial and without other notice to plaintiff, Code, § 793, and as it virtually did so by taking up the case when it was regularly reached upon the day calendar under the order in question; so that plaintiff was not prejudiced thereby. On May 14, when the cause was regularly reached in its order, as a preferred cause, upon the day calendar of the trial term, the defendant appeared but the plaintiff did not, and the defendant, waiving his counterclaim, took a dismissal of the complaint. On the same day the defendant served a bill of particulars of his counterclaim, evidently anticipating that- the plaintiff would seek to have the default opened and the cause restored; and, in fact, negotiations were commenced by plaintiff’s attorney for that purpose. These culminated in a consent by defendant to the vacating of the judgment, provided plaintiff served at once a proposed order with notice of settlement not later than June 16th, and provided the judge sitting at trial term would restore the case to the day calendar, to-be tried forthwith. A proposed order, with notice of settlement, for the 16th, was served by plaintiff’s attorney, but he failed to-appear on that day, and his default was taken, of which he received notice in writing the next'day. He took no further steps in the matter until the latter part of October, when this motion was made to set aside the judgment. The estate, in the meantime, had been distributed by decree of the surrogate. The motion was denied unless the plaintiff paid all the costs of the action, but in case of such payment the judgment was vacated and the-cause restored to the calendar for trial.

As the defendant’s proceedings were regular, and this motion was in effect to open a default, the court had the power to impose terms. Those inflicted were not too severe, as the loches of plaintiff in moving was unquestioned, the defendant being an administrator, and it having been conceded that he was entitled to a speedy trial in order to close the estate, and that that trial was. to have been had in June previous. It was also proper for the court to consider the peculiar character of the action, viz.: that it. was brought by the lady with whom the intestate had boarded for several years preceding his death to recover for washing his-clothes for six years, at.$3 per week; mending and repairing them for the same period at $1 per week; cleaning, pressing and packing and preserving his outer garments from moth, etc., for the same period at a cost of $300 ; attending and caring for him during his illness, for which $250 was charged; and after his-death for use of her .house and the personal services of her son (whose claim was assigned to her), for which $275 was charged. It was not denied that deceased had regularly paid his board every month during the whole of this period.

Upon a careful examination of the appeal papers and points, urged by the appellant, the conclusion is easily reached that the-order is correct and should be affirmed.

Order affirmed, with costs.

Bischoff and Pryor, JJ., concur.