text:
    Thomas B. Van Allen, Resp’t, v. John H. Gordon, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    1. Witness—Physician—Waiver.
    The interposing of a general denial in an action brought by a physician against his patient for medical services, does not amount to a waiver of the provisions of § 834 of the Code.
    3. Same.
    In such case, it is error to permit the physician to testify to what the patient said to him about his physical affliction.
    Appeal from a judgment of the county court, entered on the report of a referee in favor of plaintiff.

      Foot & Havens, for app’lt; Fred. H. Baker, for resp’t.
   Haight, J.

This action was brought to recover the value of professional services rendered by Robert A. Van Allen, as physician and surgeon, for the defendant. The claim was assigned to the plaintiff. Upon the trial, Robert A. Van Allen was sworn as a witness for the plaintiff, and after testifying that he was a physician and surgeon, and as such was called upon by the defendant to treat him, was asked to state what the defendant said to him about his physical affliction. This was objected to as incompetent and immaterial, upon the ground that the defendant, in making the statements to the witness, made them to a practicing physician in his professional capacity, and that they were necessary to enable the physician to act in that capacity, etc. The objection was overruled, and the witness was permitted to answer, giving an account of a secret dicease disclosed by the defendant to him, which he subsequently treated. Section 834 of the Code of Civil Procedure provides that “ a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity and which was necessary to enable him to act in the capacity.” We see no escape from the provisions of this section. We do not understand that the defendant had in any manner waived its provisions. He was sued, and was brought into court without his consent, and compelled to litigate a claim against him for services rendered. It may be claimed that he was guilty of a breach of -contract in refusing to pay the physician for his services, but that question can only be determined by a-trial. If the physician made exorbitant charges, the defendant was not obliged to, pay. And the same may be said with reference to the defendant’s answer putting in issue the allegations of the complaint. Whether or not he properly interposed his defense can only be determined by the trial. It is not apparent to us that either of these acts amounted to a waiver of the statute. Had the defendant himself brought an action against the physician, alleging misconduct or malpractice, he doubtless would be deemed to have waived the statute. But we think the interposing of a general denial in an action brought against him cannot be so treated. Our attention has been called to a statement in 18 Am. & Eng. Enc. Law, 438, which is in apparent conflict with the views herein expressed. We have carefully examined the citation of authorities made thereunder, but have been unable to find any that supports the statement. It is urged that if the physician is not permitted to describe the disease with which his patient was afflicted he cannot show the value of his services, and that consequently it could not have been the intention to have the statute apply to a case like this. But we think such a result does not necessarily follow. The physician can still testify to his employment, to the number of visits made, to the examinations, prescriptions, and operations, and, if the defendant objects to his describing ‘ them, the physician may then testify as to their value. It may be that the plaintiff would be unable to corroborate the physician’s testimony as to the value of the services, for the reason that he would not be permitted to disclose to other physicians the character of the services rendered, but the defendant would meet the same embarrassment when he undertook to dispute the value of such services.

The judgment should be reversed, and a new trial ordered in the county court of Monroe county, with costs to abide the event

All concur.


source: Caselaw Access Project

author: Titus, C. J.

license: Public Domain

text:
    Charles A. Ahrhart et al., Pl’ffs, v. Hannah Stark, Def’t.

      (Buffalo Superior Court, General Term,

      Filed December, 1894.)

    Trial—Setting aside of verdict.
    A verdict will not be set aside for the misconduct of the jurors, where the moving party, with full knowledge of the facts, remained silent until the verdict was rendered against him.
    Motion to set aside a verdict on the ground of the misconduct of the jurors.

      George L. Kingston, for pl’ffs; H. D. Williams, for def’t.
   Titus, C. J.

This action was tried at the September trial term, before me with a jury, and a verdict was rendered in favor of the defendant. The jury was impaneled just before the adjournment of court, at night, but no testimony was taken until the following morning. The plaintiff moved to set aside the verdict on the ground of the misconduct and bias of two of the jurors. It appears from the moving affidavits that after the court adjourned the defendant’s counsel, in company with the plaintiff’s counsel, were passing out of the east vestibule of the city building, when one of the jurors in the case called the defendant’s attorney one side, and told him that another juror on the panel had said that “he knew the defendant, and had no use for her,” and that they thought the defendant’s counsel ought to know of that fact. Ho-thing further was said by them, but the defendant’s counsel replied that he would lay the matter before the judge. He saw the judge as he was leaving, and presented the matter to him, and was advised to see the plaintiff’s counsel, and tell him the situation, and he probably would consent to the juror being excused, It appears that this was done, and when the court convened on the following morning the objectionable juror was excused, and another drawn in his place. The trial of the case then proceeded, and resulted in a.verdict in favor of the defendant. It is not claimed that the plaintiff’s counsel was not put in possession of all the facts, as here related, before the trial, or that any new fact has come to his knowledge since. The court was not asked to set aside either juror, Ward or Rotong, for bias or-prejudice, before the trial; and the plaintiff, without objection, proceeded with the trial, with a full'knowledge of all that had occurred.

It docs not seem to me that the verdict can be set aside on the ground that there has been any misconduct on the part of a juror, or that he has in any way been influenced in his verdict by what occurred. And, if I am correct in that conclusion, I would not' be justified in interfering by setting aside the verdict. Hager v. Hager, 38 Barb. 100.

Another sufficient reason why this motion should not prevail is that the plaintiff, having full knowledge of all the facts and circumstances connected with the transaction, remains silent until after the verdict is rendered against him; and it is now too late to ask that it be set aside for a cause which existed at the time the jury was impaneled, and which was well known to the plaintiff. If a party intends to ask the court to interfere with the verdict of the jury, he must act at once, upon the information he has, and not wait until the case has been decided against him. Ayres v. Village of Hammondsport, 11 St. Rep. 706 ; Gale v. N. Y. C. & H. R. R. R. Co., 13 Hun, 1. The motion to set aside the verdict must therefore be denied. Motion denied.


author: Hatch, J.

text:
    Edward S. Parmele, Plt’ff, v. Emanuel Rosenthal, Def’t.

      (Buffalo Superior Court, Special Term,

      Filed December, 1894.)

    Judgment—Default—Opening.
    The superior court of Buffalo, upon an appeal from the municipal court, is not affected by the limitation imposed on the latter court in regard to opening defaults. ,
    Motion to open a default, taken in the municipal court.

      H. H. Bacon, for pl’ff; Joseph P. Schattner, for def’t.
   Hatch, J.

The claim is made that this court is limited in imposing terms, as a condition of opening defaults, to the provisions applicable where the motion is made in the municipal court. This contention cannot prevail; for the language of the statute excludes it. The provision relative to the municipal court is that it “ shall have power to open defaults and set aside judgments * •* * upon such terms as may be just, * * * but no greater terms shall be imposed than the payment of the costs included in the judgment and the sum of three dollars for opposing the motion.” Where the application is made to the superior court, that court is to exercise the power, and grant a new trial upon such terms as may be just. There is no limitation upon the imposition of terms, only that they may be just. If there was not the express limitation upon the municipal court, it could doubtless impose greater terms as a condition of opening defaults, and have them j nst within the facts of a particular case; and it is quite clear that, by leaving out the words of limitation when speaking of the superior court, the legislature intended to leave it to the discretion of the court making the order. The terms which may be imposed are no part of the practice by which the motion is brought to a hearing. A course of procedure is incorporated into the statute which corresponds in all essential particulars to the practice obtaining in courts of record for bringing similar motions to a hearing; and, as such practice answers all necessary requisities in bringing about a determination of the question, it is continued uniform in both courts, while the terms to be imposed as a condition of granting the order are in one case limited and in the other not. The terms which may be imposed in either court are the costs included in the judgment; and' in the municipal court not exceeding three dollars costs of opposing the motion, and in the superior court such sum as may be just. Section 462 of the charter provides for the costs which shall be included in the judgment. These are divided between such as are to be paid to the clerk, and by him paid into the treasury of the city, and such as are allowed to the prevailing party for the purpose of indemnity. But they each become a part of the judgment rendered, and are included therein. They, therefore, become, by the language of the statute, a part of the terms to be imposed. Charter, § 470.

Default opened, and new trial ordered in the municipal court of Buffalo for Movember 20, 1894, 10 A. M. Costs allowed, $12.

Ordered accordingly.


author: Fitzsimons, J.

text:
    John R. Anderson, Resp’t, v. William H. Hoople et al. App’lts.

      (New York City Court, General Term,

      Filed December 17, 1894.)

    Evidence—Conclusions.
    Where the issue is as to whether an order naming a corporation as the payee was in fact made to the witness, who was its manager, it is error to permit him to be asked if he transacted business individually.
    Appeal from a judgment in favor of plaintiffs.

      George Murray Brook, for app’lts; Menken Bros., for resp’t.
   Fitzsimons, J.

The complaint álleged that the $500 order upon which this action is based was made to plaintiff. This fact was expressly denied by the answer of defendant Hoople. It was therefore the duty of plaintiff to establish this issue in his favor by a preponderance of proof. This he failed to do ; in fact, his testimony showed that said order was made to the John R. Anderson Company, a Mew Jersey corporation, doing business in this city. The check given to secure the assignment of said order was also the check of said corporation. The attempt of Anderson to show, at folio 73 of the case, that, notwithstanding the statement in the order and check, the assignment was to him, and not to the Anderson corporation, must be considered futile by us, because it was error for the trial justice to permit the witness to ■answer the question at folio 73, as follows: “Q. The transactions with the trustees and with everybody were with yourself individually ?”—which was objected to, upon the ground that it called for a conclusion, and was incompetent. It was error for the trial justice to have overruled the objection. .It should have been sustained, and the answer not allowed. With the answer to said question out of the record, it shows, as before stated, that the order in question was made to the Anderson Company, and its check accepted for the same. Therefore, in our judgment, the motion made by defendants’ attorney at the close of testimony for a dismissal of the complaint, upon the grounds: First, that the evidence failed to show any cause of action in favor of the plaintiff against the defendant Hoople; and, second, that no title in the plaintiff to the order set up in the complaint had been shown,— should have been granted, and the complaint dismissed. It was error to direct a verdict upon the evidence in plaintiff’s favor. Judgment must be reversed, and a new trial ordered. All concur.


author: Bradley, J.

text:
    Hannah M. Lawler, as Administratrix, etc., Resp’t, v. National Life Association of Hartford, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 26, 1894.)

    1. Insurance—Mutual benefit—Assignability.
    Though the insured has power to change the beneficiary in a certificate issued by a life association, the latter has an assignable interest therein.
    3. Parties—Assignor.
    In an action by the assignee of a mutual benefit certificate against the association, the assignor, though the assignment was made to secure a loan of a less sum than the amount of the policy, is not a necessary party.
    Appeal from a judgment entered on a verdict for plaintiff, subject to the opinion of the court, and from an order denying a motion to set aside the verdict.

      W. A. Sutherland, for app’lt; P. McLaughlin, for resp’t.
   Bradley, J.

The recovery was had on a policy issued by the defendant upon the life of Edward J. Reiley, and in which Lillie Gr. Reiley, his sister, was the designated beneficiary. Afterwards, on March 23, 1892, she made a written assignment of “all her right, title, and interest in said policy due or to become due to John Lawler,” and authorized him “to collect the same in the case of the death of the insured.” At the same time, Edward J. Reiley, by written instrument by him subscribed to that effect, for value received, waived all claim, right, or title in and to the pol- ' icy, and authorized and empowered John Lawler to collect the same in case of his death. He died in May, 1892. In July following, Lawler died, and letters testamentary were issued to the plaintiff. The liability of the defendant, at the time the action was commenced, to pay the amount due by its terms upon the policy, is not questioned. But it is insisted (1) that the plaintiff had no right of action ; (2) that there is a defect of parties plaintiff.

The first proposition is founded upon the objection that the plaintiff’s intestate, by the transfer before mentioned, took to the policy or to the defendant no relation which enabled him to maintain the action. The defendant is a co-operative or assessment company; and the policy provides for payment to Lillie G. Reiley, or to such other persons as the insured might appoint in writing, on notice thereof to the defendant. This is in accordance with the statute which provides that such insurance “shall give to any member thereof the right at any time, with the consent of such corporation, * * *. to make a change in his payee or payees, beneficiary or beneficiaries, without requiring the consent of such payee or beneficiary.” Laws 1883, c. 175, § 18. And one of the conditions-annexed to the policy is that “it shall not be assigned or transferred, unless notice and a copy of the assignment be given to the said association.” The defendant was furnished with a copy of the assignment made by the beneficiary, and not with a copy of such instrument made by the insured; but the defendant had notice of the latter, and raised no question or objection during the life of the insured about the omission to furnish a copy of it. And, while the manner of making the.transfer may not have been strictly within the requirement of the contract, it was in the power of the defendant to waive such strict observance, and it may be treated as having dono so in so far as the transfer could be made by the two instruments before mentioned. It is, however, urged on the part of the defendant that they, by their terms, were ineffectual to make the liability of the defendant to pay available to the plaintiff, for the reason that the beneficiary could not and the insured did not make any assignment to him. It is true that it was in the power of the insured to revoke the relation given to the beneficiary as such, and substitute another, and therefore there was no vested interest in her during his life. Smith v. National Ben. Society, 123 N. Y. 85 ; 33 St. Rep. 67 ; Sabin v. Phinney, 134 N. Y. 423 ; 47 St. Rep. 903. The beneficiary, nevertheless, had an interest in a sense inchoate or inceptive in character, to become vested in the event that it should not be revoked during the life of the insured by him. It was something more than a mere possibility. She had the relation of beneficiary. Nothing to be done was requisite to the perfection of her right to the fund on his death except payment of the dues and assessments; but some action on the part of the insured was required to defeat it. The effect of the contract was that the defendant should then pay to her the stipulated sum, unless he in the meantime should terminate her relation as beneficiary by the appointment of another. It would therefore seem that hers was a possibility, coupled with-an interest; and that her interest had such potential existence as to enable her by assignment to transfer, and the assignee to take, it, subject to the condition applicable to her relation as such beneficiary. This would clearly be so in equity. Field v. Mayor, etc., 6 N. Y. 187; Jones v. Mayor, etc., 90 id. 387; Reynolds v. Ellis, 103 id. 187; 1 St. Rep. 786. There is no apparent reason why upon such facts it is not so at law. Van Hoozer v. Corey, 34 Barb. 9 ; Conderman v. Smith, 41 id. 404; Smith v. Taber, 46 Hun, 313; 14 St. Rep. 644. But in the present case the insured also joined in the assignment so far that he waived all claim which he had in the policy, and empowered Lawler to collect the money which might become due upon it by his death, and the policy was delivered to him. By this method, adopted by the insured and the beneficiary, transfer was made to Lawler of the right to the fund secured by the policy, with such power as they could confer upon him to collect it when payable. Whether, in view of the manner prescribed by the policy for doing it, this may be treated as the appointment of him as beneficiary, it is unnecessary to-inquire. As appears by the condition before mentioned, it was within the contemplation of the contract that an assignment of the policy could be made; and there seems to be nothing in the contract, in its nature, or in the statute, which denies or defeats such right. And, as the insured has no interest in. the policy except that existing in his power of appointment, he may treat the expectant fund as subject to the control of the beneficiary, and join with the latter in making a transfer of it, or, what may be substantially the same thing, confirm an assignment to the assignee made by the beneficiary; and then, as between them, such assignee, when the liability of the company arises to pay, is entitled to payment. In such case the only question of any essential importance to the company is as to who is entitled to the money. That was the only question in Ireland v. Ireland, 42 Hun, 212; 5 St. Rep. 89, and Sabin v. Phinney, 134 N. Y. 423 ; 47 St. Rep. 903. cited by the defendant’s counsel. In the former case no transfer was made to the defendant, nor any appointment of her as beneficiary accomplished, although the insured had expressed his desire and purpose to have her put in such relation to the policy, and in the latter case the defendant had been appointed as and was the beneficiary.

But it is urged that Elizabeth G. Plunkett, nee Reiley, was a necessary party to the action, because the transfer to Lawler was made as collateral security for a loan by him to the insured, and the amount loaned was less than that which defendant was liable to pay. It is a rule in equity that all persons whose presence is necessary to the determination of the interests involved in the controversy must be made parties, and the plaintiff may be required to bring all of them in. But in an action at law the defect of parties is available as a defense. Chapman v. Forbes, 123 N. Y. 532 ; 34 St. Rep. 351. If this were an action in equity, it may be assumed that the plaintiff would be required to bring in Mrs. Plunkett, the beneficiary named in the policy. Kittle v. Van Dyck, 1 Sandf. Ch. 76; Sherman v. Parish, 53 N. Y. 483. But the view taken is that, while she may have had the right of redemption, the plaintiff’s intestate took such legal title by the assignment as to enable him to maintain the action at law. Ennis v. Harmony F. Insurance Co., 3 Bosw. 516; Roussel v. St. Nicholas Insurance Co., 41 Supr. Ct. 279 ; Pitney v. Glens Falls Insurance Co., 65 N. Y. 6. At all events, the plaintiff, as such, is a proper party; and the defendant cannot be prejudiced by the absence of Mrs. Plunkett as a party. It is evident that she is content with the prosecution of the action by him to judgment. She was a witness for the plaintiff on the trial, and testified in support of the action, and it may be assumed that she was advised of its nature and purpose. If she had deemed it desirable, she may have been allowed to become a party. Rosenberg v. Salomon, 144 N. Y. 92; 63 St. Rep. 62. And by the contract of insurance it is expressly provided that no action shall be maintained for any claim upon or by virtue of the policy after the lapse of one year from the death of the member. Wilkinson v. First Nat. F. Insurance Co., 72 N. Y. 500. If Mrs. Plunkett is entitled to any portion of the proceeds of the policy, the plaintiff, in the event of its collection by him, may, as between them, be treated as trustee to that extent, and required to account to her. The trial court was not required by the facts to determine that the defendant was entitled to the benefit of forfeiture of all claim founded upon the policy.

The judgment and order should be affirmed.

All concur.


author: Dwight, P. J.

text:
    Richard Degnan, Resp’t, v. Walter Ransom, App’lt.

      Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Evidence—Malpract.ce.
    Where, in an action for malpractice, the plaintiff has not alleged or offered to prove want of skill on the part of the defendant, the latter cannot prove a reputation for a high degree of skill in his profession.
    Appeal from an order granting plaintiff’s motion for a new trial, after a verdict in favor of defendant at the circuit

      D. E. Brong, for app’lt; Wheldon & Ryan, for resp’t.
   Dwight, P. J.

The action was for malpractice of a surgeon. The complainant alleged negligence and unskillfulness on the part of the defendant in the treatment of the case. There was no allegation nor was evidence offered by the plaintiff to show, by general reputation or otherwise, that the defendant lacked the ordinary and competent skill which belongs to his profession. The allegations' and proofs on the part of the plaintiff, so far as skill of the defendant was concerned, were confined to the question of the degree of skill employed in the actual treatment of the plaintiff's case. But, when the defendant had the case, he was permitted to introduce the evidence of witnesses to the effect that he was generally reputed and considered to possess a high degree of skill in his profession. The evidence was- received under the objection and exception of the plaintiff, and, a verdict having been rendered for the defendant, that exception was the ground on which the motion for a new trial was granted.

We think that the admission of the evidence was error, and that the motion for a new trial was properly granted on that ground. In opposing this conclusion the appellant relies upon the authority of Carpenter v. Blake, 50 N. Y. 696, where judgment for the plaintiff was recovered because the judge at the circuit said in his charge to the jury :

“I suppose it is entirely immaterial to the inquiry before you whether the defendant, when he undertook the reduction of this dislocation, was or was not reputed to be, or was not, a skillful surgeon. The question is, did he bring to the treatment of this particular case the degree of skill to which I have referred ?”

The language here quoted is found in the report of the case at general term (60 Barb. 490, 516), where the charge was unanimously upheld. There is only a brief memorandum of the decision of the case in the court of appeals [supra), and from the memorandum it appears that the objection to the charge, above mentioned, was sustained by only a majority of one in that court. The authority of that decision is therefore not to be extended beyond the limits fixed by the particular case, and that was a case where, as appears from tbe report in 60 Barb, supra, the. complaint alleged that the defendant “represented himself to be * * * a scientific, skillful, and competent physician and surgeon,” and that the plaintiff, “by the ignorant, unskillful, careless, and negligent treatment by the defendant, was greatly damaged,” etc. This allegation seems to have been regarded as putting in issue the general skill and intelligence of the defendant, and to have justified the introduction of evidence of his general character in that respect. But by that particular allegation the case of Carpenter v. Blake is distinguished from the case at bar. Here is no such allegation. How ignorance is.not charged, and unskillfulness only in the treatment of the particular case. It is a little difficult to see, on principle, how the general character of the surgeon can ever be material to the inquiry whether he has been guilty of malpractice in a particular case, because it is certain that, though he be the merest pretender to surgical skill,—the veriest quack,—yet if, by chance, he treats the particular case correctly, he is not guilty of malpractice: and, equally, though he be a master in his profession, yet if, through neglect to apply his skill in the partir ’or case, he treats it improperly, the patient may have his action. However, we concede the authority of Carpenter v. Blake within its limitations, but do not find it, necessarily, to include the case in hand. Upon the pleadings and proof in this case, we think the motion for a new trial was properly granted, and the order should be affirmed.

All concur.

Order for new trial, appealed from, affirmed, with costs to abide the event.


author: Herrick, J. Mayham, P. J.

text:
    Edward H. Hawke, App’lt, v. Madison G. Hawke et al., Resp’ts. Elizabeth H. Wilson, Resp’t, v. Madison G. Hawke et al., Resp’ts ; Edward H. Hawke, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 19, 1894.)

    Trial—Directing verdict.
    In an action under § 3653a of the Code, the court has power to direct a verdict as in other actions.

      Plaintiff in the first-entitled action was a son of Edward H. Hawke, deceased, and sued to have the validity of the probate of his father’s will determined, and the probate thereof revoked, pursuant to section 2653a of the Code of Civil Procedure. Plaintiff in the second-entitled action was a daughter of said decedent and sued to have the validity of said will determined, and the will declared valid. The actions were tried together as one action. The court directed a verdict, and judgment was entered thereon, as follows: “Adjudged, that the writings produced, to wit, said will bearing date January 15, 1892, "and the codicil bearing date January 16, 1892, and admitted to probate by the surrogate of the county of Saratoga on the fourteenth day of September, 1893, are respectively the last will and testament, and codicil thereto, of Edward H. Hawke, deceased, and are in all respects legal and valid. It is further adjudged that Elizabeth H. Wilson, Madison Gr. Hawke, individually and as executor and trustee of said will, Alice H. Reimer, individually and as executrix of said will, and Susie B. Skelding, recover of Edward H. Hawke, Jr., the sum of $418.70, as and for the costs and disbursements in this action.” Edward H. Hawke appeals in each case.

      Foley & Wing (John Foley, J. W. Houghton, and J. S. L’Amoreaux, of counsel), for app’lt; Henning & McCall (John L. Henning and Charles E. Patterson, of counsel), for resp’ts Edgar T. Brackett, for Elizabeth H. Wilson; Patterson, Buel, Toucey & Whiting, for Susie B. Skelding.
   Herrick, J.

At the close of the evidence upon -the trial of this action, the connsel for the proponents requested the court to instruct the jury to find a verdict “that the will and codicil of Edward H. Hawke in evidence are his last will and codicil, upon the ground that the record given in evidence establishes the validity of the probate of said will and codicil, and there is not any evidence sufficient to submit to the jury any question as to the due attestation and execution or validity of such will or codicil.” The court granted the motion. The most serious question involved in this appeal is as to the power of the court, in cases of this kind, to direct a verdict by the jury. The action is one brought to determine the validity of the will of Edward H. Hawke, deceased, and is brought under the provisions of § 1653a of the Code of Civil Procedure, as amended by chapter 591 of the Laws of 1892. That section provides for the determination of the validity of a will by an action in the supreme court, and a trial by jury, and, among other things, provided as follows :

“ The issue of the pleadings in such action shall be confined to the question of whether the writing produced is, or is not, the last will or codicil of the testator, or either. It shall be tried by a jury, and the verdict thereon shall be conclusive as to the real or personal property, unless a new trial be granted, or the judgment thereon be reversed or vacated."

For the purposes of this discussion, it is unnecessary to quote any other portion of the section. It is contended that under this section the court has no power to direct a verdict; that the words “ it shall be tried by a jury, and the verdict thereon shall be conclusive,” excludes the court from exercising such power; that it makes the jury absolute, except where a new trial is granted, or the judgment entered upon their verdict is reversed or vacated. I think this a misconstruction of the law, and comes from a too literal reading of its provisions. Such a construction, followed to its legitimate and logical results, would leave the court with no power upon the trial except to preserve order. The section must be read in connection with other sections of the Code, and also in connection with what existing laws have determined a trial by jury to be ; for it seems to me that the legislature intended to do no more than provide a common-law jury trial, to be governed by the same rules that are applicable to all jury trials at common law. “Shall be tried by a jury” does not mean that a jury of 12 men shall determine all the questions involved, but it means a trial by a jury pursuant to. existing laws; thatmenns a jury presided over, advised and directed by, a court, the court being the judge of the law, and the jury of the facts. “The purpose of a jury trial, is that the experience, intelligence, and judgment of twelve men may be availed of to settle disputed questions of fact. The duty of the judge presiding at the trial is * * * to determine whether a case is presented fit for the deliberation of the jury." Johnson v. Hudson River Railroad (7a, 20 N. Y. 65-70. And the preliminary question that arises in all cases tried by jury is whether the evidence is sufficient for the jury to find a verdict thereon in favor of the party producing it; and that question is a question of law for the court. The verdict that is to be found by the jury is to be. arrived at pursuant to existing laws, and in arriving at their decision the jurors must be governed by the law of the land; and what that law is must be determined for them by the court. It cannot be presumed that the legislature intended anything but a trial by jury according to existing laws governing trials by jury in common-law actions. The provision in the statute that the verdict shall be conclusive is the same, as is found in section 970 of the Code of Civil Procedure, and is in fact but a statutory enactment of what has long been the law relating to all trials by jury at common law. The use of these words in the statute, it seems to me, was intended, not to exclude the court from any o£ the powers and functions that it exercises in the trial of jury cases, but rather to emphasize the fact that these actions are to be tried in the same manner that other actions are triable, where, under the constitution, they must be tried by a jury, and to draw the distinction between cases of this kind and cases in equity that are tried by a jury, where the findings of the jury are simply advisory to the court, to be followed or disregarded as to the court seems best, and which are conclusive upon no one. They are also undoubtedly used to distinguish the decision arrived at upon such a trial from the decision of the surrogate upon the probate of a will, which is not conclusive; the probate of a will by a surrogate being revocable, upon the petition of a party interested, at any time within a year after such probate, and, as to real estate, the probate of a will being only presumptive evidence of the matters determined by the surrogate, any party interested having the right to raise the question of the validity of the will in a subsequent action tried before-a jury, where real estate is involved, notwithstanding such probate. For these reasons I think that in an action brought under-section 2653a of the Code of Civil Procedure, the court may, in a proper case, direct a verdict, the same as in an action on a promissory note, or any other action specified in sections 968 and 970 of the Code of Civil Procedure.

Upon the question as to whether there was sufficient evidence produced to warrant the jury in finding a verdict thereon adverse to the validity of the will a somewhat careful consideration of such evidence satisfies me that the trial court was right in its determination, and 1 see no occasion for attempting to add anything to the very careful review of the evidence made by such court in directing a verdict.

For these reasons the judgment must be affirmed, with costs.

Putnam, J., concurs.

Mayham, P. J.

(dissenting).—Two grounds of error are urged, on this appeal, for which it is claimed by the appellants that this-judgment should be reversed : (1) That the court erred in taking the case from the consideration of the jury, and directing a verdict; (2) that the trial judge erred in excluding certain evidence-offered by the plaintiff on the trial.

Edward H. Hawke died in the city of New York at the residence of his daughter, Elizabeth H. Wilson, leaving, him surviving, his children, Edward H. Hawke, Jr., aged about 35 years, Bessie Wilson, aged about 32 years, Alice Hawke, aged about 25, and Madison Genn Hawke, aged about 23 years, being all of the children of the deceased, who was, at the time of his death, a widower. He left an estate, consisting of real and personal property, valued at about the sum of $225,000. The testator left, two instruments in writing purporting to be a will and codicil, the former dated January 15, 1892, and the latter dated January-16, 1892. In and by the will he bequeathed to his son, Edward H. Hawke $5,000, to be paid to him by the executor, with a condition that if he disputed the will, or the validity of the same, such legacy should not be paid to him, but the same, in that, event, should be paid to Elizabeth H. Wilson, daughter of deceased. To the respondent Susan Bristo Skelding, the testator,, by this will, gave a legacy of $10,000, and all the rest of his property was, by specific, demonstrative and general devises and bequests under this will, left to the three children of the testator,. Genn, Bessie, and Alice. The respondents Alice Hawke and Madison G. Hawke were named as executors, and by the codicil he appointed Bessie Wilson as executrix, to act as such only in the event of the death of one of the first-named executors, and without being required to give a bond. The will and codicil were presented to the surrogate of Saratoga county for pi'obate, and on the return day of citations thereof the appellant, Edward H. Hawke, Jr.-, appeared, and filed contesting allegations. After the examination of the subscribing witnesses, the contestant withdrew his objections, and the will and codicil were admitted to-probate. Immediately thereafter the two actions in which this appeal had been taken were commenced. Issue being duly joined in such actions under the provisions of section 2653a of the Code of Civil Procedure, as amended in 1892, the cases came on for trial at a circuit court held in Saratoga county on the 15th day of April, 1894, before a justice of this court and a jury. A verdict against the plaintiff in the first-named action, and in favor of the plaintiff in the second above-entitled action, was directed by the trial judge, upon which judgments were entered, and from which the appellants appeal to this court.

The provisions of section 2653a furuish a method of reviewing the probate of a will, which did not exist prior to the amendment, of the Code of Civil Procedure in 1892. By the terms of that added section the questions to be heard and considered are specifically defined as follows:

“ The issues" of the pleadings in such action shall be confined to the question of whether the writing produced is, or it not, the last will or codicil of the testator, or either. It shall be tried by a jury, and the verdict thereon shall be conclusive as to real or personal property, unless a new trial .be granted, or the judgment thereon be reversed or vacated.”

Before the enactment of this provision of the statute there were three methods of reviewing the probate of a will—one by the presentation of a petition, within one year after the decree admitting the same to probate, by any person interested in the estate of the deceased, containing allegations against the validity of the will, and praying for a revocation of the probate (Code Civ. Proc. §§ 2647, 2648); another by an appeal to the general term of the supreme court from a decree admitting a will to probate (Code, § 2570), and “if the appeal is taken upon a petition to admit a will to probate, or to revoke the probate of a will, this court may make an order directing the trial by jury, of the material questions of fact arising upon the issues between the parties.” Section 2588 of the Code, while it directs that the issues of fact must be tried by a jury, does not provide, as is provided by section 2653a, that the verdict shall be conclusive; yet in Re Booth, 13 St. Rep. 348, which arose under section 2588, Daniels, J., in discussing the provisions of that section, says :

“ The statute has required that the contested facts in the case where the decree of the surrogate has been set aside in this manner shall be tried by a jury. By that requirement an effectual trial has been intended; and when, for any reason,- the verdict of a jury has been set aside, the cases must be submitted to another jury for the hearing and decision of the issue. They are the tribunal selected by the statute for this purpose.”

A will of real estate may also be attacked when the title comes in question, although the will may have been admitted to probate in surrogate’s court The provisions of section 2653a furnish a new and distinct method by this action, of either attacking a will and the probate of the same, or of confirming the validity of a will, as well of real as of personal estate, or the probate thereof, which is quite unlike either of the original methods of review, above referred to. We are therefore compelled to construe this statute largely upon the language of the section itself." The language of this statute, as we have seen from the above quotation, is peculiar, and gives the verdict of a jury in such a case a conclusiveness and effect which does not follow from a verdict m -any other case to which our attention has been directed, and while ordinarily, in a common-law action, questions of fact must be tried by a jury, and their verdict upon disputed questions of fact will not be interfered with on appeal, yet in cases where the verdict is so manifestly against the weight of evidence as to show, on the part of the jury, passion, prejudice, or gross misapprehension, amounting to evidence of fraud, the court may and ought to set it aside for that reason. But in that class of cases there is no mandate of the statute that the verdict sjiall be conclusive. The statute under consideration in this case sharply defines the issue, by whom it shall be tried, and what effect is to be given to the verdict. The question to be heard is “ whether the writing produced is, or is not, the last will and codicil of the testator, or either.” That question “shall be heard by a jury, and the verdict thereon shall be conclusive as to the real and personal property. We are referred to a line of cases, by the learned counsel for the respondents, which hold that it is the duty of the trial judge to direct a verdict for the defendant in cases where the court would be required to set aside the verdict for the plaintiff for want of evidence to uphold it, or when there is such an overwhelming preponderance of evidence against the plaintiff’s theory as to evince fraud, passion, or prejudice on the part of the jury The soundness of the doctrine of those cases cannot be gainsaid, or their au - thority questioned. But it by no means follows, as a corollary from these cases, that the legislature has not, by the enactment of this added section, taken this class of cases out of the operation of the rule above referred to. As bearing upon that question, the learned counsel for the respondents propounds the very pertinent inquiry : “Suppose the contestant had offered no evidence whatever, could it reasonably be contended, then, that the court had no power to direct a verdict?” While this question sharply presents the argument of the learned counsel, it is not necessary that it should be answered in this case, because the plaintiff did in fact produce a mass of testimony, some of which amounted to some evidence bearing upon the factum of this will, and competent to be considered by the jury, as it was considered by the court, upon the question of mental soundness of the testator, and also the question of undue influence. These questions were both raised by the issue in the case, and, as the proponent’s side of the issue was prima facie established by probate of the will before the surrogate under the statute, the burden rested with the contestant to overcome such prima facie case by evidence. Within well-settled rules of law, the contestant is entitled to every legitimate inference deducible from the evidence offered by the plaintiff before he can be nonsuited, or a verdict can be directed against him. The plaintiff is therefore entitled, upon this appeal, to the benefit of all the facts which his evidence tends to establish. Wylie v. Marine Nat. Bank, 61 N. Y. 415-417.

“If the result of facts to be found from all the evidence in the case, uncontradicted though that evidence may be, were of so doubtful a nature that different and. equally intelligent and unbiased men might fairly differ in opinion as to its character, then the jury, under proper instructions from the court, should examine the evidence, and find the facts which are properly to be inferred therefrom.” Salt Springs Nat. Bank v. Sloan, 135 N. Y. 371-383; 48 St. Rep. 470.

In Hastings v. Brooklyn Life Insurance Co., 138 N. Y. 479; 53 St. Rep. 63, O’Brien, J., in discussing the propriety of submitting disputed questions of fact to a jury, uses this language:

“ However improbable the testimony of a witness may appear, who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force, and effect of such testimony is for the jury.”

In Hart v. Hudson River Bridge Co., 80 N. Y. 622, it was held that where, from the circumstances shown from the evidence, inferences are to be drawn which are not certain and incontrovertible, and as to which persons might differ, it is for the jury to decide. In Powell v. Powell, 71 N. Y. 73, the court say:

It is the province of the jury not only to pass upon conflicting evidence, but, when different inferences may be drawn from evidence or the conduct of parties, to draw the inference.”

Without undertaking to repeat here the mass of evidence offered by the contestant in this action, which was received by the court at the trial, from which it is claimed by him that inferences might be legitimately drawn that the testator’s mind was impaired, and also that he was the subject of undue influence, we think there was enough on those subjects to make them questions of fact for the jury. The evidence from which it is claimed the testator’s intellect was impaired consisted mainly of changes, noticed, and sworn to by witnesses, in his conduct, his occasional fits of anger, shown in the management of his farm and stock, and other acts of emotional conduct related by the witnesses, upon which was predicated the hypothetical question propounded to the experts, from which they formed and expressed their opinions that he was of unsound mind, to which may also be added the testimony of his failing physical health. All these, and others to which I need not advert, furnished, as we think, some evidence on which, within the rules established in the well-settled law of evidence, and within the decisions from which we have quoted, questions arose upon which the jury might, under proper instructions from the court, properly have passed under the ordinary rules governing trials by a jury. So, also, upon, the other question, as to whether or not this will was his free and voluntary act, or the product of undue influence. Upon that branch of the case the contestant urges that the high regard which the testator always, manifested for the character of the plaintiff, not only for his character, but the just pride which he entertained and expressed for his intellectual ability, up to about the time he went to Europe with the proponents and beneficiaries under this will, raised a question of fact. This evidence is supplemented by evidence of estrangement on the part of the brother and sister towards the contestant at the same time that they enjoyed relations with the testator, both while making the tour of Europe and after their return to New York, while the contestant was virtually deprived óf familiar intercourse with, if not of access to, the testator; and all of this, followed by the practical disinheritance of the contestant, and the imposition of conditions upon his right to the enjoyment of the pittance bequeathed to him, furnishes some evidence, at least, upon which different minds might honestly reach different conclusions as to the question of undue influence, which, within the authorities, made it a proper question for the jury, even if we concede it only in the light of the rules of law established for the ordinary trial of questions of fact. But when we consider that this case was tried under the provisions of this special statute, which makes the verdict of the jury conclusive, and makes trial by the jury imperative, we are clearly of the opinion that the very able and experienced judge who tried this case fell into error in taking this case from the jury, and directing a verdict. Tested by the ordinary rules governing cases triable hy a jury, we think there was sufficient evidence to justify, not only a submission to-them, but to call for such submission. But, when we consider the imperative nature of the special statute under which this action is brought,' to take the case from the jury is little less than a judicial repeal of the provisions of that statute. From the view we have taken of this ease, an examination of the exceptions taken to the rulings of the trial judge upon the question of the admission and rejection of evidence is unnecessary. We think there must, be a new trial of this action; costs to abide the event.


author: Hardin, P. J.

text:
    Ralph S. Scobell, Resp’t, v. Sidney S. Block et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    Trial—Submission to jury.
    The question whether certain articles were fixtures, was held, under the facts of the case, to have been properly submitted to the jury for their determination, after full instruction on the law.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    N. F. Breen and W. F. Porter, for app’lts; John N. Carlisle, for resp’t.
   Hardin, P. J.

When the sheriff exposed the premises for sale in the foreclosure proceedings, the defendants' and the plaintiff were present, and a question arose as to what passed under the foreclosure sale; and it was claimed on the trial that the plaintiff assented to or acquiesced in the understanding that the personal property described in the complaint in this action should pass to the defendants, who then became the purchasers. A question of fact was raised at the trial as to what took place on that occasion, as well as to the understanding that had been reached by the plaintiff and defendants prior to the time the bids were made. The questions of fact in that regard were submitted to the jury, there being a conflict in the evidence in regard thereto. Instructions given by the trial judge in respect to whether an estoppel existed were in accordance with the authorities. Thompson v. Blanchard, 4 N. Y. 303; Hibbard v. Stewart, 1 Hilt. 207 ; McKeage v. Hanover Fire Insurance Co., 81 N. Y. 38; More v. N. Y. Bowery F. Insurance Co., 130 N. Y. 545; 42 St. Rep. 543. Inasmuch as there was evidence given tending to support the contention of the appellants in that regard, although it was' contradicted, and other evidence was given by the defendants tending to show that no estoppel existed, we think the verdict of the jury in that regard should be accepted.

2. On the trial, certain articles of personal property were held as matter of law not to be fixtures, and no exception presents any question of error in that regard, nor was there any request to submit any question of fact in regard to those articles to the jury. We must therefore accept the conclusion reached at the circuit. Kirtz v. Peck, 113 N. Y. 222 ; 22 St. Rep. 733; Reynolds v. Miller, 79 Hun, 113; 61 St. Rep. 10.

3. The trial judge refused to rule, as matter of law, that the 30 store casks and 40 puncheons or hogsheads were fixture, and he left the questions relating thereto to the jury to determine, on all the facts of the case, after a careful statement of the "law relating to the questions involved, and in so doing committed no error. In the course of his change, he stated that three things were necessary to be united to constitute property a fixture: First, actual annexation to the realty, or something appertaining to it; second, application to the use or purpose to which the part of the real estate with which it is connected is appropriate; third, the intention of the party making the annexation to make a permanent accession to the freehold. And he fully and properly explained the principles of law applicable to the facts presented in regard to this branch of the case, McRea v. Central Nat. Bank, 66 N. Y. 489; Potter v. Cromwell, 40 N. Y. 287; McFadden v. Allen, 134 N. Y. 490; 48 St. Rep. 324, and took the verdict of the jury upon the questions of fact involved in the controversy in regard to whether the articles in question, under the circumstances, were fixtures or not. The rulings and the charge upon that subject were as favorable to the defendants as they were entitled. Hart v. Sheldon, 34 Hun, 38.

Appellants call our attention to Watts-Campbell Co. v. Yuengling, 51 Hun, 302; 21 St. Rep. 186; affirmed 125 N. Y. 1; 34 St. St. Rep. 255. By an examination of the opinion delivered by the court in general term, and also the opinion in the court of appeals, it will be found that it was assumed, as a matter of fact that the “machinery forming the subject-matter of the action was intended by the owner of the fee, at the time of making the contract, to become part and parcel of the freehold.’’ In the opinion delivered in the court of appeals it is said:

“The articles furnished by the plaintiff were, in fact and in in- ' tention, annexed to the freehold, so as to become a part of it, and would, as between vendor and vendee, pass by deed of the premises, without special enumeration.”

The cases are in harmony with the rule laid down by the trial •judge in the case in hand.

Appellants call our attention to Bigler v. National Bank of Newburgh, 26 Hun, 520. In that case the real estate mortgaged by its terms covered “all buildings and improvements thereon situate and being.” The case is therefore distinguishable from the one before us.

In Hart v. Miller, 32 Hun, 639, it was held that the words “all appendages now used in and about said mill” were “used to indicate articles used in the mill, but not attached to and forming part of the same.” The case does not support the contention of the appellants.

The case of Bank v. Rober, 19 Wkly. Dig. 477, turned largely upon “the fact that the owner of the land so intended, the fixtures in question all go with the land,” and some of them were so bulky that they could not be removed from the building without taking down a part of it. The case, therefore, differs from the one before us. Here there is some evidence tending to indicate that the defendants had agreed with the plaintiff, before and at the time of sale, that an arrangement should be entered into between them, after they purchased the real estate, by which the property in question and the real estate should be put hito a joint venture, and operated by them jointly. There was a contradiction of the evidence, however, and the question in that regard was proper for the jury.

4. Attention has been given to the several exceptions taken upon the trial, and we find none of them present judicial error requiring an interference with the verdict of the jury. After a careful charge, which both sides conceded was full and fair, and to which no exceptions were taken, the jury have, upon the vital questions of fact, pronounced their verdict upon evidence conflicting to some extent as to all the important questions involved. We think the verdict should not be disturbed.

Merwin, J., concurs; Martin, J., dissents.

Judgment and order affirmed, with costs.


text:
    Mary G. Atherton, Resp’t, v. Peter Lee Atherton, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    1. Divorce—Cruel and inhuman treatment.
    Acts and words may constitute cruel and inhuman treatment, though they cause no physical pain.
    2. Same—Condonation.
    Acts of cruelty, which have been condoned, may he revived by subsequent acts.

      3. .Same—Foreign decree.
    A decree of divorce, rendered by a court of another state, against a resident of this state, is not binding upon her here, where she was not personally served with process and did not appear in the action, though binding in the state where it wss rendered.
    4. Same—Costs.
    The court cannot allow the wife counsel fees, except so far as they are necessary to enable her to caryry on or defend the action.
    5. Same—Contract for support.
    After parties have separated, a contract may be made, through the intervention of a trustee, which is effective to bind the husband to contribute the sum therein provided for the future support of the wife.
    6. Trial—Remarks by court.
    It is not error for the court, in the presence of the parties and counsel, to suggest a settlement.
    Appeal from a judgment granting a separation.

      Alex. P. Humphrey, Seth C. Adams, and A. M. Beardsley, for app’lt; W. & N. E. Kernan and A. M. Mills, for resp’t.
   Hardin, P. J.

October 17, 1888, at Clinton, the parties to the action intermarried, and, after spending a portion of their wedding trip at Utica and Old Point Comfort, they repaired to the city of Louisville, Ky., to make their residence with the parents of the defendant in that city, and they continued to live and cohabit together until the 3d day of October, 1891, when, after a distressful scene, in which violent language ,and excited and severe words were used between the parties, and the defendant had made a threat to take the infant child, which was born to them on the 8th of January, 1890, away from the plaintiff, and to remove it from her care and supervision, and after she had remonstrated and sought to induce him by persuasion and by putting her arms around his neck and begging him to change his avowed purpose, and after he had resolutely, angrily, and forcibly thrust her away from him, in the presence of his mother, she repaired to her room, and, taking the child, went out of the residence of the defendant to Mrs. Belknap’s (a neighbor), and remained there for two or three days and subsequently went therefrom to the Galt House Hotel, and remained for a period of about a week, when her friends and counsel came to her; and, during the period she was there at the Galt House, an agreement was entered into, reciting that an actual separation had taken place; also reciting therein, viz.:

“The undersigned, Peter Lee Atherton, and his wife, Mary G. Atherton, having ceased to live together as man and wife, without in any way acknowledging upon whom is the fault, or condoning the conduct of the one or the other which has led to the existing state of affairs, or preventing any consequence which may follow or right which may arise to either party if such status shall continue, desire to provide for the best interest of their child, Mary Valeria Atherton.”

Upon the consummation of the agreement, the plaintiff, with the child, left the city of Louisville, with the intent and purpose of ceasing to be á resident of the state of Kentucky, and returned to the home of her mother, in the village of Clinton, N. Y., and acquired a residence in Clinton, where she has continued tc reside down to the time of the arrival of this action.

Article 3 of chapter 15 of the Code of Civil Procedure contains several sections providing for “action for a separation.” In section 1763 it is provided that such an action may be maintained “(2) where the parties were married within the state and the plaintiff iá a resident thereof when the action is commenced.” In section 1768 of the Code it is provided, viz.: “If a married woman dwells within the state when she commences an action against her husband, as prescribed in either of the last two articles, she is deemed a resident thereof, although her husband resides elsewhere.” The provisions of the statute to which reference has just been made seem to recognize the exception stated in Hunt v. Hunt, 72 N. Y. 242, to the effect that a married woman may have a domicile in another jurisdiction than that of the husband “ when the conduct of the husband has been such as to entitle the wife to an absolute divorce or limited divorce. She may acquire a separate domicile whenever it is necessary for her to do so. But the right to do so springs from the nedessity of its exercise.” Upon the evidence disclosed in the.appeal book, as well as upon the law, it must be assumed that the plaintiff was domiciled in the village of Clinton at the time of the commencement of this action (January, 1893), and had been so domiciled since her separation from her husband, which occurred in October, 1891. It was undoubtedly understood by the parties at the time of the execution of the agreement as to the separation that she should remove from the state of Kentucky to the state of New York, and join her mother at the home in Clinton. And the evidence seems to indicate that the defendant not only had knowledge thereof, but acquiesced in such removal from the state of Kentucky to the state of New York by the wife. Extensive findings of fact have been made by the trial judge, and he reaches the conclusion that a case is made out within the provisions of § 1762 of the Code, and that the plaintiff is entitled to maintain the action because of the acts and circumstances disclosed in the evidence by reason of the “ cruel and inhuman treatment of the plaintiff by the defendant,” and “ such conduct on the part of the defendant towards the plaintiff as may render it unsafe and improper for the former to cohabit with the latter.” When making the findings of fact, the trial judge was called upon to review, consider and determine the force and effect of evidence relating to the acts, doings, and conduct of the respective parties to and with reference to each other from the period of their marriage, on the 17th of October, 1888, to the period of their separation, October 3, 1891, as well as some acts and circumstances thereafter, and to reach liis conclusion after weighing the evidence, in which there was very sharp and severe contradictions by the principal parties examined therein. Witnesses were called in behalf of the plaintiff tending to support much of her testimony, and witnesses were called i.n behalf of the defendant tending to support his version and narration of several of the important transactions that are disclosed in the evidence given by her, and tending to sustain' the versions, acts, and doings of the defendant as related by him. Although a very extensive argument has been" addressed to this court upon the subject of the credibility of the plaintiff as a witness in her narration of the scenes and events and misfortunes which attended her in her married life, •and we are pressed to say that her statements thereof are “ most uncandid,” and that “ strong sidelight ” is thrown against her by letters written, and her testimony somewhat shaken by witnesses who speak in behalf of the defendant as to some of the important transactions that she relates, and in some of her statements we can see that she has been mistaken, and in others she has to some extent colored and magnified them, still, considering the evidence which tends to corroborate her, and to some extent tending to establish important facts involved in the numerous inquiries that were opened at the trial, we are inclined to accept the conclusions ■of fact upon the essential features of the case as found by the trial court.

In Lutz v. Lutz, 31 St. Rep. 718, which was an action for cruel and inhuman treatment, Van Brunt, P. J., said:

“The judgment of the referee in respect to the credibility of witnesses who have been examined personally before him should not be lightly disturbed, in view of the fact that he has the advantage of the personal attendance of the witnesses, and has been enabled to judge by their demeanor and manner of testifying, much in respect to their credibility. * * * Cruel and inhuman treatment does not necessarily imply such treatment as places a wife in physical fear of her husband. The conduct of the husband may produce such mental agony in the wife as to be even more cruel and inhuman than if mere physical pain had been inflicted ; and, where the conduct of the husband towards the wife is of this character, it is certainly cruel and inhuman, and justifies the court in freeing her from the necessity of submission to such treatment.”

Humero us cases are found in this state which construe the words “cruel and inhuman treatment,” and which declare that “great cruelty and as much inhumanity may be manifested,” and that acts and words may be construed as cruel and inhuman, although they cause no physical pain. Bihin v. Bihin, 17 Abb. Pr. 26; Whispell v. Whispell, 4 Barb. 217 ; De Meli v. De Meli, 67 How. Pr. 32; affirmed 120 N. Y. 485; 31 St. Rep. 704; Fowler v. Fowler, 33 St. Rep. 746 ; Waltermire v. Waltermire, 110 N. Y. 183; 17 St. St. Rep. 175.

Upon the case as presented at the special term, it rested upon a review of all his conduct towards her, and not upon any single act. Davies v. Davies, 55 Barb. 130; 1 Bish. Mar., Div. & Sep. §§ 1561, 1562. While some of the early acts relied upon were apparently condoned, yet they were revived by subsequent acts of the defendant. In Burr v. Burr, 10 Paige, 20, it was held that condoned cruelty will be revived by subsequent acts of cruelty which of themselves would not be sufficient to justify a separation. And in Whispell v. Whispell, supra, it was said: “ Even where there is a condonation, it is always subject to the condition that the husband shall afterwards treat his wife with conjugal kindness.’’

After a careful consideration of the conflicting evidence, and all the facts and circumstances disclosed by the record, we are of the opinion that the learned judge was correct in his conclusion upon the whole case, when he said “that the acts and conduct and treatment of the defendant of and towards the plaintiff during their married life were cruel and inhuman, and rendered it unsafe and improper for her to cohabit with him, and justified her in leaving the defendant as she did, and seeking a residence separate and apart from him ; ” and'the autkorties to which we have referred sustain this conclusion of lawT reached upon the findings of fact in respect to the propriety of a separation.

2. It is insisted by the learned counsel for the appellant that the Kentucky judgment was a bar to this action. Defendant was a native citizen of Kentucky, and has resided there all his life, and on the 17th of October, 1888, he was married to the plaintiff, a native of this state. At the time of the marriage, the parties intended to make their home in and to reside in the city of Louisville, Ky. In pursuance of that intention they continued to reside there until October, 1891, when the plaintiff “left the family abode.” Under the statutes of Kentucky in force at that time, either husband or wife could procure a divorce from the other if, without the fault of the complaining party, the other party should abandon the complaining party, and such abandonment should continue for one year; and it was provided in the statute law of that state that an action for divorce might be commenced against a person whose absence from the state was continuous for four months, by means of “ constructive process.” Such an action was commenced and such proceedings were had, in virtue of the law of the state of Kentucky, which resulted in a judgment pronounced by the circuit court of Jefferson county, Ky., awarding the defendant a divorce from the plaintiff on the ground of her alleged abandoment. A warning order was issued in that action, and there was an appointment of a “ representative attorney.” Doubtless, according to the proceedings had in that action in the territorial jurisdiction of Kentucky, the judgment would be efficient. Rhyms v. Rhyms, 7 Bush, 816; Hawkins v. Ragsdale, 80 Ky. 353. However, as no process was personally served on her in the state of Kentucky, and she made no appearance in that suit, and in no way has consented thereto, and did no act which gave the judgment binding force upon her in this state, we think, according to the well-settled rule laid down in numerous cases in this state, that the judgment is wholly inoperative in this state, and was not binding upon the plaintiff at the time of the commencement of this action, and that it forms no bar to her right to maintain this action against the defendant, who has personally appeared in the action. Borden v. Fitch, 15 Johns. 122; Beckwith v. Beckwith, 24 Wkly. Dig. 5; Kerr v. Kerr, 41 N. Y. 272 ; Hoffman v. Hoffman, 46 N. Y. 30; People v. Baker, 76 N. Y. 78 ; O'Dea v. O' Dea, 101 N. Y. 23; Jones v. Jones, 108 N. Y. 415; 13 St. Rep. 838; Cross v. Cross, 22 Wkly. Dig. 309; affirmed 108 N. Y. 628; 13 St. Rep. 470 ; De Meli v. De Meli, 120 N. Y. 485; 31 St. Rep. 704; Rigney v. Rigney. 127 N. Y. 408; 40 St. Rep. 210; Williams v. Williams, 130 N. Y. 193; 41 St. Rep. 280; Davis v. Davis, 51 St. Rep. 509; 2 Bish. Mar., Div. & Sep. (Ed. 1891) § 155. Most of the authorities are quite satisfactorily reviewed in the opinion delivered at special term.

Inasmuch as the plaintiff was dwelling within this state at the time of the commencement of this action, according to § 1768 of the Code, as already stated, “ she is deemed a resident thereof, although her husband resides elsewhere.” Although the husband, in his action pending in the state of Kentucky, was not allowed to obtain a divorce for the abandonment of him by his wife without proof that such abandonment was without fault upon his side, and although it may be true that that judgment adjudged that his abandonment was without his fault, such adjudication is not binding or conclusive upon the defendant here, inasmuch as the court had no jurisdiction of her at the time it rendered such judgment, and we cannot assent to the ingenious argument made by the learned counsel for the appellant, based upon a supposed force of that judgment, as the assumption of the argument is that both “ were domiciled, during their whole married life,” in the state of Kentucky, which assumption, we think, is not well founded. Rigney v. Rigney, supra ; Williams v. Williams, supra; Davis v. Davis, supra.

3. It is now well settled that after parties have separated, a contract may be made through the intervention of a trustee which is effective to bind the husband to contribute the sum therein provided for the futher support of his wife.” Galusha v. Galusha, 116 N. Y. 642 ; 27 St. Rep. 738. In that case, as well as in the case in hand, the contract was made after actual separation, through the intervention of a trustee; and the defendant made several advances and payments, according to the tenor of the contract thus entered into. The court in Galusha v. Galusha, in speaking of the contract, said :

“ After its making, it was not in the power of either party, acting along and against the will of the other, to do an act "which would- destroy or affect that contract. * * * The law looks favorably upon and encourages settlements made outside of courts between parties to a controversy. If, as in this case, the parties have legal capacity to contract, the subject of settlement is lawful, and the contract, without fraud or duress, is properly and voluntarily executed, the court will not interfere.”

And in Galusha v. Galusha, 138 N. Y. 283; 52 St. Rep. 359, after approving of the case from which we have already quoted, the court observed:

“ As the parties had, by an agreement lawful in form and apparently valid, stipulated as to the amount which the husband should pay for the support of the wife, that agreement, it was held, so long as it remained unrevoked, was the proper measure of compensation which the defendant should render for her maintenance after the dissolution of the marriage tie. * * * The effect of the former decision is to render the separation agreement conclusive upon the plaintiff as to the amount of her allowance out of her husband’s estate, until she becomes the actor in some action or proceeding to terminate it.”

In the case in hand there are no allegations in the complaint attacking the validity of the separation agreement, and no specific prayer in the plaintiff’s complaint that the agreement be canceled or set aside, nor is the trustee made a party to this action. Under such circumstances, we think, the separation agreement was binding upon the parties to this action. In the agreement of October 10th, executed by the parties and by Groodenow, the trustee for the plaintiff, is found the following provision :

“ If a divorce shall be granted, this agreement so far as it concerns provision for Mary Gr. Atherton, shall be carried into the decree as in full satisfaction of all claims for alimony, and so far as concerns provision for and custody of the child, reserving to the court the usual power to provide against events and contingencies not covered by this agreement”

The agreement stipulates that the defendant shall pay to the plaintiff, “ for her support, $125 at the beginning of each month, until this agreement does, by its own terms, end.” The provision directed by the decision at the special term for the plaintiff is for the same amount, and no satisfactory reason appears for disturbing the judgment in that regard entered upon the decision. The trial court properly exercised its equitable jurisdiction and discretion in the premises in awarding the custody of the child to the plaintiff, and in doing so, followed well-recognized precedents. Ex parte Waldron, 13 Johns. 418 ; People ex rel. Olmstead v. Olmstead, 27 Barb. 9 ; Mercein People, 25 Wend. 64, 106.

■The provision awarding an opportunity to the defendant to visit the child seems to be reasonable. Certain provisions are found in the agreement as to the amount the defendent, under the circumstances mentioned in the agreement, should pay annually “for the comfortable maintenance of the child and, according to the provision of the agreement, it seems that the allowance was to vary to meet changing circumstances that might arise in respect to the care and custody of the child, if the circumstances should not remain as mentioned in the agreement. Manifestly, the circumstances have changed, and it is quite apparent that the child, as such, was not bound by the terms of the agreement. It has been suggested in some cases that a provision as to the child is void as against public policy. See Allen v. Affleck, 64 How. Pr. 380 ; People ex rel. Barry v. Mercein, 8 Paige, 67 ; In re Maurer, 18 Wkly. Dig. 568. Section 1766 of the Code provides that, where an action brought by the wife for separation, “the court may, in the final judgment of separation, give such directions as the nature and circumstances of the case require. In particular, it may compel the defendant to provide suitably for the education and maintenance of the children of the marriage, and for the support of, the plaintiff, as justice requires, having regard to the circumstances of the respective parties.” It may be fairly assumed that the court exercised proper discretion in awarding the sum mentioned in its decisión, to wit, $100 a month, to be paid for the support, education, and maintenance of the child. The child has now become upward of four years of age, and its wants and needs and expenses are necessarily greater than they were in October, 1891, when the parties separated, and we think the provision in respect to the child should be sustained.

4. Complaint is made by the learned counsel for the appellant of an incident that transpired during the progress of the trial in the presence of the parties and of their respective counsel. It seems the learned judge addressed himself to them in language of expostulation and admonition. In the course of his remarks he said:

‘T am satisfied that neither of these parties are bad people. They intend to be good people,—Christian people,—and considering the infant, dear to both, they ought to contrive to get together and be man and wife, and especially father and mother. * *. * It seems to the court that whatever humiliation it may bring for the time, or whatever sinking of self may be required, it is their duty to join hands over the cradle of the little baby.”

These remarks were followed by others evidently emanating from a tender solicitude the trial judge entertained towards the child, after hearing considerable evidence offered by either side relating to the controversy arising between the wife and husband.

Counsel has called our attention to Livermore v. Bainbridge, 44 How. Pr. 357, affirmed 14 Abb. Pr. (N. S.) 227. In that case the referee, before making his report, called on one of the plaintiffs personally, and suggested to him whether it would not be better for the plaintiff to settle the matter with the defendant by paying him $35,000, which defendant would probably accept, as there were matters in evidence in the case which led him to believe.that, if he did give judgment for the defendant, it would necessarily be for a very large amount; and in that case, upon the opinion of Fancher, J., delivered at special term, the report of the referee was set aside, and the order made by him was affirmed in the general term, the opinion at the general" term was delivered by Davis, P. J., in the course of which he observed:

“It may be commendable in referee or court, in presence of both parties, to recommend and urge a settlement between themselves of their litigation.”

We find nothing in the case which aids the contention of the appellant that the learned trial judge, in the case now in hand, committed any indiscretion or violated any rule of law. His observations were in the presence of the parties and of their respective counsel. If we were of the opinion that a more experienced trial judge, with less humane impulses, would have omitted the admonition and expostulation and entreaty to the parties, somewhat warmly pronounced, still we should be constrained to hold that no legal error was committed, and hence no sufficient ground is made manifest for interfering with the final results reached by the trial court upon the questions of fact.

5. It is insisted by the appellant that the trial court erred in its sixth conclusion of law, which was as follows:

“That the said defendant pay to the said plaintiff or her attorneys, and that the said plaintiff recover of him, the sum of $1,000, counsel fee allowed in this action, and that she have execution therefor.”

A similar provision is inserted in the judgment. In section 1769 of the Code of Civil Procedure it is provided that, in an action like the one before us “the final judgment in such an action may award costs in favor of or against either party.” The authority of the court is such as is conferred by statute. Erkenbrach v. Erkenbrach, 96 N. Y. 456; McBride v. McBride, 119 N. Y. 519 ; 30 St. Rep. 78. In Beadleston v. Beadleston, 103 N. Y. 403 ; 3 St. Rep. 634, it was held that the power of the court to make an allowance to the wife for counsel fees and expenses is limited to such sums as may be necessary to enable her to carry on or defend the action. In that case it also appeared that after a trial an application was made for counsel fees and other expenses, “without showing in her moving papers that it was needed further to defend the action ;" and it was held that the allowance was unauthorized.

In McCarthy v. McCarthy a similar motion was made for extra allowance for costs, in addition to the plaintiff’s taxable costs and disbursements; and we upheld an order denying the application, and our decision was affirmed by the court of appeals, as appears by the record thereof in 137 N. Y. 500; 51 St. Rep. 276. In that case it was intimated that if an appeal was taken upon the merits, and an application was made for expenses to maintain or prosecute her rights under the judgment, the court would be authorized to make an allowance, including therein such expenses. We think the decision and judgment should be modified by striking therefrom the allowance of $1,000 counsel fees, and that it should remain so far as it awards the plaintiff taxable costs and disbursements.

Martin and Merwin, JJ., concur.

Judgment modified by striking therefrom “the sum of $1,000, counsel fee allowed,” and, so far as modified, affirmed, with costs to the respondent against the appellant.


author: Bartlett, J.

text:
    Thomas Jones, as Receiver, etc., Resp’t, v. Ferdinand S. M. Blun et al., App’lts.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Judgment—Sequestration
    A judgment of sequestration cannot be collaterally attacked for error in the proofs on which it rested.
    3. Same.
    When a receiver, appointed under such valid judgment of sequestration, sues to recover the assets of the corportion .and the defendants seek to assail the judgment, it is a collateral attack which the law will not tolerate.
    3. Same—Bond.
    When the court continues in office its receiver, already in possession of the assets, with his bond duly executed and on file, it is fair to assume that the security is deemed satisfactory if a further bond is not required.

      4. Corporation—Insolvency—Transfer.
    A copartnership will not shield a member, who is a stockholder in a corporation, from the effect of a statute forbidding a preference to a stockholder, or enable him to do as a partner what the law prohibits him from doing as an individual.
    Appeal from judgment of the general term of the supreme •court in the fifth judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at special term.

      B. T. Wright, for app’lts; E. C. Aiken, for resp’t.

       Affirming 59 St. Rep. 889.

   Bartlett, J.

This action is brought to set aside certain transfers made by the Rheubottom & Teall Manufacturing Company to the firm of F. S. M. Blun & Co., on the ground that defendant Blun was a stockholder of said corporation and that the transactions attacked were after the corporation had refused the payment of its notes or other evidences of debt, and were therefore, prohibited by statute. (1 R S. 603, § 4; Banks & Bros. 8th edition, vol. 3, p. 1729.)

The plaintiff recovered at special term and the general term affirmed the judgment.

A preliminary point is raised by the appellants to the effect that the judgment of the supreme court sequestrating the property of the Rheubottom & Teall Manufacturing Company and appointing the plaintiff receiver of its property is void.

This contention rests on the allegation that the supreme court suit is based upon a judgment recovered against the corporation in the city court of Auburn, and that, as matter of fact, the latter •court had no jurisdiction of the corporation, as it did not do business and was not located in the city of Auburn.

The defendant Ferdinand S. M. Blun was sued by Frank M. Hunting, as assignee of certain employees of this corporation, and in that action Blun sought to attack the validity of the judgment of the supreme court in the sequestration suit on the same ground .as above stated.

This court, held, Hunting v. Blun, 143 N. Y. 511; 62 St. Rep. 804, that the complaint in the sequestration action fairly alleged all that was needed to authorize the judgment of the court. Judge Finch says:

It avers the recovery of a judgment against the corporation in the Auburn city court, the docket of that judgment in the Cayuga county clerk’s office, the issue of an execution and the return of the same unsatisfied.

“ Those allegations presented a case over which the jurisdiction •of the court was unquestionable.

“ They were sufficient to invoke and require a judicial determination whether they were true or not and whether sequestration should follow. It may be that the court erred in regarding the •city court judgment as valid.

“ That was a question of law for the court to decide, and its error, if it made one, was a judicial error to be corrected by an appeal.”

Judge Finch then goes on to point out that this court held in Whittlesey v. Frantz, 74 N. Y. 457, that the judgment of sequestration could not be collaterally attacked for error in the proofs on which it rested.

In the case at bar the learned counsel for the defendants seeks to avoid the effect of our decision in the Hunting case by claiming that the attack here made upon the judgment of sequestration is not collateral and that the question of its validity is directly in issue.

We regard this view of the situation as unsound this court having decided that the judgment of sequestration is valid until reversed on appeal.

When the receiver, appointed under this valid judgment, sues to recover the assets of the corporation and the defendants seek to assail the judgment it is a collateral attack and one the law will not tolerate.

A further objection is made to the receiver’s power to sue on the ground that he was, before judgment, appointed temporary receiver and as such duly executed his bond, but failed to furnish a new bond when by the judgment of the court he was continued as permanent receiver.

It is undoubtedly true, as a general rule, that a receiver before interfering with the assets must furnish his bond. In the case at bar no such question is presented.

The judgment recites that Thomas Jones, heretofore appointed the receiver of the corporation, is hereby continued as the permanent receiver.

The court is thus dealing with its own officer in charge of assets and with his bond on file.

If a further bond were deemed proper the court had ample power to direct it to be given.

Section 1788 of the Code of Civil Procedure provides that where a temporary receiver is continued by final judgment he is a permanent receiver and has the powers and authority and is subject to the duties and liabilities imposed upon a receiver appointed in proceedings for the voluntary dissolution of. a corporation.

The appointment of a receiver in proceedings for the voluntary dissolution of a corporation is provided for by § 2429 of the Code of Civil Procedure, and the matter of the receiver’s bond is regulated by the Revised Statutes (2 R. S. 468, § 66).

That section provides that the receiver, shall give such security to the people of this state as the court shall direct.

When the court continues in office its receiver already in possession of the assets, with his bond duly executed and on files, it is fair to assume that the security is deemed satisfactory if a further bond is not required.

In the case before us, the temporary receiver was authorized to sue by order of the court, and the final judgment re-affirmed the order.

We, therefore, hold the reciver entitled to sue, and that, while a-further bond may be exacted in the discretion of the court appoint. ing him, he is under no obligations to furnish additional security until required to do so. ''

This brings us to the merits of the controversy. Among a large number of facts found by the special term, the following are material to the case as presented on this appeal:

The Rheubottom & Teall Manufacturing Company was incorporated under the act of 1848, and the defendant 'Ferdinand S. M. Blun was a stockholder.

The plaintiff was appointed by the supreme court, in sequestration proceedings, the receiver of this corporation.

The defendants were co-partners doing business in the city of New York, under the firm name, ‘‘ F. S. M. Blun & Co.” Blun was entitled to seventy per cent of the profits of his firm.

The defendant Sigmund Bendit was not a stockholder in the corporation, nor was the firm as such.

The-corporation refused the payment of its notes or other evidences of debt on or about October 10th, 1890, and continued so to do until judgment was entered against it.

A corporation known as the American Clasp & Steel Company was indebted to the Rheubottom & Teall Manufacturing Company for goods sold. The defendant Blun was the treasurer of the American Clasp & Steel Company.

After the Rheubottom & Teall Manufacturing Company had refused the payment of its notes or other evidences of debt, it transferred to the defendants on several occasions money due it from the American Clasp & Steel Company for the payment of its indebtedness to the defendants.

The receiver seeks'to recover the money so received by the defendants on the ground that it is in violation of the statute. (1 R. S. 603, § 5 ; Banks’ 8th ed. vol. 3, p. 1729). The statute reads as follows:

§ 5. Whenever any incorporated company shall have refused the payment of any of its. notes, or ■ other evidences of debt, in specie, or lawful money of the United States, it shall not be lawful for such company, or any of its officers, to assign or transfer any of its property or choses in action of such company, to any officer or stockholder of such company, directly or indirectly, fdr the payment of any debt; and it shall not be lawful to make any transfer or assignment in contemplation of insolvency of such company, to any person or persons whatever; and every such transfer and assignment to such officer, stockholder or other person, or in trust for them or their benefit, shall be utterly void.”

The learned trial court refused to find that these transfers were made in contemplation of insolvency under the latter part of the section quoted, but held it to be a transfer by the company to a stockholder for the payment of a debt. The question of whether the transfer was made in contemplation of insolvency, which the appellants’ counsel has argued with much earnestness, is wholly immaterial as the case is now presented.

The court below has decided that the Rheubottom & Teall Manuafter it had refused the of certain of its notes or other evidences of debt, transferred to defendant Blun, one of its stockholders, money of the company for the payment of a debt. This transfer the statute declares to be void whether made directly or indirectly to the stockholder or other person in trust for him or for his benefit.

The appellants insist that the statute has no application for the • reason that the money was paid by the corporation through the American Clasp & Steel Company to the defendants to pay debts due the defendants’ firm and that the firm and defendant Bendit are not stockholders.

It is found, as already stated, that defendant Blun, who is a stockholder, is interested to the extent of seventy per cent, in the profits of the firm.

This defense cannot be maintained, as the payment of the money to the firm was indirectly for the benefit of Blun and void under the statute.

The.object of the statute is clear. It is intended to protect the general creditors and prevent officers and stockholders of corporations, who happen to be creditors of the company, securing to themselves a preference after the company has refused the payment of its notes or other evidences of debt.

There is no such potency in the entity known as' a co-partnership as to shield a stockholder of a corporation from the penalty denounced by this statute because he happens to be a member of a -firm and thus allow him to secure to himself a preference of his claim against a corporation.

If his co-partnér, who is not a stockholder, is injured by the enforcement of the statute, it may be a matter for adjustment between themselves, but offers no reason for suspending the operations of the statute.

If the contrary doctrine were to prevail it would result in the officers and stockholders of corporations securing to themselves indefinite preferences by forming partnership relations in which the interest in the firm profits of the partner not a stockholder would be only nominal.

The statute is carefully drawn, so as to prevent all indirect as well as direct assignments or transfers of property of a corporation to its officers or stockholders.

This court held, Knox v. Baldwin, 80 N. Y. 610, that where a manufacturing corporation is indebted to a firm, one member of which is a trustee of the corporation, neither the members of the firm jointly, nor the other members to whom the trustee has transferred his interest, can maintain an action against another trustee for failure to file the annual report, nor hold him.as a stockholder •until stock is paid up and certificate filed.

This was the reason that the creditor trustee being equally with the other trustees charged with the duty of seeing to it that the annual report is made and the certificate of paid-up stock is filed, and so being chargeable with default, he cannot alone, or in connection with his associates, nor can his assignees pursue a remedy which, if enforced, would enable him to profit by his own wrong or negligence.

So in the case at bar the defendant Blun cannot, being a stockholder of the Rheubottom & Teall Manufacturing Company, secure through his rirrn a preference in which he would enjoy a share of seventy per cent, which the statute would not permit to him individually.

It has been often pointed out that a partnership cannot properly be regarded as a legal entity separate and distinct from the several partners therein.

Per certain purposes this fiction may be very properly indulged. In keeping partnership accounts and in marshaling the assets of an insolvent or liquidating firm this is constantly done.

It cannot be invoked, however, to shield the individual partner, in a case like the one at bar, from the effect of a statute forbidding a preference, or to enable him to do as a partner that which the law prohibits him from doing as an individual.

The judgment appealed from should be affirmed, with costs.

All concur, except Haight, J., not sitting.

Judgment affirmed.