author: Macomber, J.

text:
    In the Matter of the General Assignment of Charles O. Willis, for the benefit of creditors, made to Henry L. Schwartz, Resp’t. In the Matter of the Claim of Edward W. Eames and Harriet E. Potter, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Assignment for creditors—Claim for rent.
    An indebtedness for rent under a lease, after the voluntary retaking of possession by the landlord, is not a debt “due and owing" by the-tenant to the landlord, within the meaning of those words as used in a general assignment for the benefit of creditors, and the tenant’s assignee is. without authority to pay the same.
    Appeal by Edward W. Barnes and Harriet E. Potter, alleged creditors of Charles 0. Willis, assignor, from a decree of the-county court of Erie county, entered on the 19th day of October, 1891, confirming the^ report of a referee, adjudging that the appellants, Eames and Potter, were not entitled to share in the distribution of the estate assigned by Charles 0. Willis to Henry L. Schwartz, and dismissing their claim, with costs against them in favor of the assignee.

      Seward A. Simons, for app’lts; B. Franlc DaJce, for resp’t.
   Macomber, J.

The claim made by the appellants, Edward W. Eames and Harriet E. Potter, arises upon a lease executed by them of certain premises in the city of Buffalo to Charles O. Willis, and which ran from January 1, 1888, to May 1, 1891, at the rate of $2,200 per year, up to May 1, 1888, and $2,900 per year from May 1, 1888, payable in monthly instalments. The usual provision was inserted in the lease empowering the lessors to re-enter and re-rent the premises in case of nonpayment of rent, and to apply the proceeds to the payment of the rent accruing during the balance of the term, with liability upon the lessee to pay the residue.

The assignment of Willis was made on the 11th day of April, 1890. The assignee, Schwartz, immediately took possession of the assigned property, and occupied the demised premises from the 11th day of April, 1890, to the 1st day of May of that year, when the stock was sold out by him, the purchaser, through Mr. Schwartz, however, having paid the rent for the month. But no claim is made in behalf of these creditors that the assignee by virtue of his occupancy of the premises during the residue of the month of April, or by paying the rent for the month of May, accepted the leasehold property for the unexpired term, or agreed to pay the rent reserved. The landlords’ claim is the difference between the amount of the rent agreed to be paid for the unexpired term and the amount which the lessors were actually able to re-.rent the demised premises for in the exercise of due diligence.

Our decision, therefore, turns upon the question, whether the •claim for rent made by the landlords was a debt due and owing to them by the assignor at the time of the making of the assignment. The assignment contained provisions to the effect that after the payment of the expenses of the trust and the claims of •certain preferred creditors, among whom were not the claimants, the assignee should pay in lull “ all other indebtedness due and •owing by the said party of the first part to any person or persons whomsoever ” ; and that after payment of “ lawful debts due and •owing by the said party o.f the first part,' the assignee should return the surplus, if any,” to the assignor.

We think, within the adjudged cases, that the claim of the appellants cannot be upheld. This is a proceeding not in bankruptcy nor under any law for the distribution of decedents’ estates. 1 The assignee derives all his powers from the assignment. He is bound to carry out its terms, and is not governed by the provisions of law relating to the distribution of a bankrupt’s estate under the general bankruptcy act, nor of the distribution of a decedent’s estate under the direction of our surrogates’ courts. As the assignor, in his lifetime, might have personally applied his property in the manner now sought by him to be applied through the means of an- assignee, so the assignee in turn, being bound bv the direction contained in the assignment, can do the same thing, and no other, in the absence of proof of fraud in making the assignment. Matter of Lewis, 81 N. Y., 421; Citizens’ Bank v. Williams, 38 St. Rep., 834. While, therefore, it may be said that the term “due and owing ” used in the assignment, although in the conjunctive, may, and probably does, in many instances, include money coining to creditors, although not yet payable, still under the terms of this lease by which the landlord had power at any time to re-enter for the non-payment of rent, thus rendering the claim for unpaid rent an uncertainty and an unliquidated amount, the contention made in behalf of the appellants in this-proceeding cannot be maintained. The following cases seem to hold this doctrine. Matter of Adams, 15 Abb. N. C., 61; Matter of Link, 6 St. Rep., 211. On the whole we think the claim for the indebtedness made was not, under the voluntary act of the landlords in retaking possession of the premises, and thus rendering unliquidated the amount of rent which might accrue, a debt due and owing by the tenant to the landlords within the meaning, of the assignment.

It follows, therefore, that the decree appealed from should be-affirmed.

Decree of county court of Brie county appealed from affirmed,, with costs.

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Catherine S. Seifert, App’lt, v. Richard Caverly, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Trial—Notice of—Service by mail—Proof.
    Defendant, on an affidavit showing service of notice of trial by mail on - plaintiff’s attorney, was allowed a dismissal of the complaint by default. On motion to open the default, plaintiff’s attorney and his clerk made affidavit that no such notice of trial had been received, and it appeared by defendant’s proof of service that the wrapper inclosing the notice of trial omitted the street number given by plaintiff’s attorney on the papers served by him in the case. Feld, that such omission was fatally defective to plaintiff’s proof of service, and that the default should be opened without, conditions.
    Appeal by the plaintiff from that part of an order made by the county court of Brie county, entered March 10, "J891, which imposed terms and conditions upon which the plaintiff’s default,, taken at the trial term of the court in January, 1891, was opened.

      O. C. Be Witt, for app’lt; Charles M Forsythe, for resp’t.
   Macomber, J.

At a term of the county court of Erie county,, held on the 19th day of January, 1891, this cause, it is claimed by the defendant, was duly noticed for trial. The plaintiff’s-counsel happening to be in court on that day, discovered the cause-on the day calendar, and objected to its continuance there upon the ground that no notice of trial had been served upon him. Thereupon the court, without the consent of the plaintiff’s attorney, set the case down for the following day. On that day, namely, the 20th of January, 1891, the cause was reached, the plaintiff did not appear, and under an affidavit showing the deposit of a proper notice of trial in the post office, directed to the plaintiff's attorney, the defendant was allowed to move the case and to-obtain an order by default dismissing the complaint with costs.

The motion to open such default was made upon the ground,,, mainly, that tne proof of the service of the notice of trial adduced by the defendant’s attorney did not show that it was served upon the plaintiff’s attorney by being mailed to his office, addressed as designated by him upon the preceding papers served by him in this cause. The true address of the plaintiff’s attorney was 199 Pearl street, Buffalo, N. Y., and this appears upon the papers signed by him in the case, such as the summons and complaint, etc. The notice of trial was addressed to the plaintiff’s attorney by his correct name, “ ISTo.-Pearl street, Buffalo, U. Y.” The •offices of the attorneys of the respective parties are not only in the same city, but are located on the same street. Section 797 of the Code of Civ. Pro. permits the service of a notice of trial by depositing it, properly enclosed in a post-paid wrapper, in the post-office of the party or attorney serving it, directing it to the person to be served “ at the address, within the state, designated by him for that purpose upon the preceding papers in the action.” Undoubtedly, under it, the service of papers by mail may be made in an action, after the beginning thereof, though the attorneys live in the same city or town. But to make such service complete it is necessary that the correct address, by a street number, be given upon a post-paid wrapper where such address appears upon papers which have been served in the case. In this respect the address of the envelope was fatally defective. The affidavit of the plaintiff's attorney, that he did not receive the notice of trial, is made positively, and is corroborated by that of his managing cleric. While it is true that the failure of the mails is not to be ascribed to the parties depositing mail matter when it is post-paid and properly addressed, yet, when the question depends upon the regularity of such service, in the absence of proof of the actual receipt of that paper, the party claiming to be regular under this provision of the Code must show affirmatively that the envelope was addressed to the party at the place designated by him for the purpose of serving papers. In this respect the defendant’s proofs, on taking a dismissal of the complaint, were fatally defective.

The question, therefore, before the county court was not one of •discretion. On the contrary, it was one of absolute right on the part of the plaintiff to have the default, which had been taken against him, opened upon showing the fact that he had not received a notice of trial, and that the pretented notice of trial claimed to have been sent by the defendant’s attorney did not conform to the Code of Civ. Pro., in respect to the service of the papers. Yates v. Guthrie, 119 N. Y., 420; 29 St. Rep., 566. We think the court erred in imposing any condition upon the plaintiff in granting the motion, and, for this reason, that part of the •order appealed from should be reversed.

Counsel for the plaintiff claims that this court should now order a restitution of the moneys which were paid in pursuance of the terms of the order. While it is true that restitution should be made, in case the payment of the money was obtained as a condition of releasing the levy by execution upon the plaintiff’s property, yet we do not think that there were sufficient facts laid before us in these appeal papers to enable us to make such an order at the present time. The defendant has not been heard on that question. The plaintiff should make such application to the county court, in the premises, as she may be advised.

So much of the order as is appealed from reversed, with ten dollars costs and disbursements of this appeal.

Dwight, P. J., and Lewis, J., concur.


author: Clement, Ch. J.

text:
    Philip Englehardt et al., Pl’ffs, v. The City of Brooklyn, Def't. Frank L. Schafer, Pl’ff, v. The City of Brooklyn, Def't.

      (City Court of Brooklyn, Special Term,

      Filed January 28, 1892.)

    Eminent domain—Award—When it passes to grantee or mortgagee of-OWNER.
    An award was made in street opening proceedings under chap. 559, Laws 1871, to the owner of land, but for many years it was uncertain whether the improvement would be carried out. In the meantime the property was mortgaged, the mortgage foreclosed and the premises sold thereunder. Held, that the transfer of the title to the land conveyed the claim for damages against the city.
    Actions to recover an award made to the owner of certain land taken for the widening of North Second street in the city of Brooklyn.

      Michael 0. Gross, for Engelhardt et al; Lyon & Nemirs, for Schafer; Alrnel F. Jenks, for def’t.
   Clement, Ch. J.

These actions were brought to recover an award for the sum of $7,500 for land taken for the widening of North Second street under chap. 559 of the Laws of 1871. At. the date of the passage of the act, April 19, 1871, one Daniel Schafer was the owner of lot No. 39, for which the award was-made, and on or about January 25, 1889, he assigned his claim, thereto to Frank L. Schafer, tie plaintiff. After April 19, 1871, the said Daniel Schafer made two mortgages covering the premises in question. The first mortgage was subsequently foreclosed- and a deed given, and by a chain of title running from said deed, the plaintiffs, Philip Engelhardt and Elizabeth Engelhardt, claim the award. There is no question as to the liability of the city,, and the point to be decided is whether the plaintiffs Engelhardt are entitled to recover, or the plaintiff Schafer..

I shall assume in deciding this case that the land represented by the award was constructively taken from the owner at the date of the act of 1871. “ The effect of the statute to widen and improve North Second street in the city of Brooklyn, Laws of 1871,. chap. 559, was to deprive the assignor of the plaintiff of his land, and commit the same to the city, burdened with the duty of providing compensation.” McCormack v. City, 108 N. Y., 49; 12 St. Rep. 817. I shall also assume that the claim for damages for land taken for a street improvement is personal and vests in the-person who is the owner at the time of the taking. King v. Mayor, 102 N. Y., 171; 1 St. Rep., 401. If Daniel Schafer, who was the owner at the time of the taking, did not assign his claim, or did not execute papers which in effect amounted to an equitable assignment, before he made the assignment to his son, Frank L. Schafer, then the son is entitled to the award.

Suppose Daniel Schafer had executed a warranty deed of lot No. 89 after the passage of the act, or even after the confirmation of the report of the commissioners, November 9, 1876, 1 think that the purchaser could, beyond any question, claim that the conveyance of the land was an equitable assignment of the award. King v. Mayor holds nothing to the contrary of the above view. A close examination of the case shows that the court decided that the land taken was not included in the conveyance, and therefore that the award did not pass to the grantee under such conveyance. In this case, the entire plot was taken, and such plot was the only parcel included in the deed. The Pennsylvania cases have no application, as railroads can there be built before payment of land damages. In the cases cited, there had been an actual taking before the conveyance. Porter v. M. E. R. Co., 120 N. Y., 284, 289; 30 St. Rep., 938.

It is true that Daniel Schafer did not execute a conveyance of the land for which the award was made, but he did, after the act ■of 1871, execute two mortgages amounting to the sum of $7,250, and received the money therefor. At that time he seemed to have thought that his land' had not been taken. The first mortgage was foreclosed, and the subsequent chain of title is as follows:

Foreclosure Butler mortgage, May 17, 1877.
Deeds, Miller to Engel, August 1, 1879.
Engel to Bindrim, October 2, 1880.
Bindrim to Grassman, August 19, 1881.
Grassman to Kottman, January 25, 1882.
Kottman to Lehman, March 1, 1882.
Lehman to Engelhardt, March 15, 1884.

Daniel Schafer received $7,250 for the land, and now, by his assignee, asks for $7,500 more. On the other hand, the Engelhard ts paid a consideration of $6,000 and are the successors of the mortgagees, who advanced to Daniel Schafer the sum of $7,250.

It may be that, on a sale under foreclosure, where a portion of the land has been taken for a public improvement, the purchaser would not be entitled to the award. That may be so in an ordinary case, but the facts in relation to North Second street are extraordinary. For many years it was uncertain whether thfi, improvement would be carried out Judge Ruger said, Donnelly v. City of Brooklyn, 121 N. Y., 20; 30 St. Rep, 501, 506, “Undoubtedly the parties interested could, by mutual consent, discon•continue the prosecution of the improvement, and there is much in the case to authorize the inference that this was contemplated by them.” The court of appeals held in that case that the city delayed the improvement for twelve years, and that the property owners acquiesced in such delay, and therefore that the owners were not entitled to interest on the awards, except from the date of a demand. It is conceded that the taking in 1871 was con_ structive only, and that the owners were never disturbed in their possession [for the Engelhardts were living on the premises in. question on the day of trial], and that the city levied taxes on the-property as late as 1890. 1 therefore hold that daring the time-when the improvement was in suspense, the land could be conveyed or mortgaged, and that thé mortgages could he foreclosed, and that the transfer of the title to the land conveyed the claim for damages against the city.

If the city had paid without notice of the claim of the Engelhardts, perhaps a different question would be presented. The award by the commissioners was made to Francis Lehnert, assignee, who appears to have had no interest in the property. The damages can be recovered by the party entitled thereto, irrespective of the name mentioned in the report. Spears v. Mayor, 87 N. Y., 373.

The plaintiffs Engelhardt cannot recover the money paid for taxes, as such payments "were voluntary. It also appears that-they have had possession of the property during the time for which they paid taxes, and if they were willing to be taxed, the-court cannot now aid them.

Judgment for plaintiffs Engelhardt for the sum of $7,500, with interest from the date of demand, less the sum of $800 and accrued interest due on the mortgage, now a lien on the property.

Judgment for the defendant on the claim for taxes. Judgment, for defendant in case of Frank L. Schafer v. City.

Findings and requests to find may be presented on two days-notice.


text:
    Michael McGoldrick, App’lt, v. Samuel Metcalf, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed February 23, 1892.)

    Master and servant—Negligence.
    Plaintiff was directed by defendant to chip off the rough places from an iron casting weighing 1,250 pounds, which lay on a truck. In doing; so he moved the casting with a stick and let it roll back, when it struck, the rung which had held it in position and broke it, and the casting fell-on plaintiff. An expert testified that he would not trust the rung to hold 100 pounds; but it appeared that it was used temporarily until other castings were put on the truck, and was conceded to be sufficient for that purpose if the casting was not moved. Held, that a dismissal of the complaint-was properly granted.
    Appeal from judgment dismissing the complaint.

      Fdmund R. Terry, for app’lt; Chas. G. Nadal, for resp’t.
   Clement, Ch. J.

The plaintiff was directed by the defendant, his employer, to chip off the rough places on an iron cylinder,, which was at the time on a truck, in front of the defendant’s-foundry. The cylinder had just been placed on the truck, and was blocked only by a piece'of wood called a rung. The plaintiff had been directed, on the prior day, to do the same work in the foundry and before the cylinder was loaded, and says that he did a portion, and, on, his return on the day that he was injured, forgot to go on with the work until he was directed so to do by the defendant McGoldrick had done similar work before and had been working in the foundry for several years. Other castings were to be placed on the truck, and we understand, from, the testimony, that the rung was placed behind the cylinder simply as a temporary block, until the truck was loaded. The plaintiff commenced to work, and, finding the cylinder in an inconvenient position, moved it He stood on the truck behind the cylinder, and rolled it up about ten inches with the aid of a long stick, then turned the cylinder slightly, and allowed it to come back against, the rang with such force as to break it The cylinder then rolled upon plaintiff, who thereby sustained severe injuries. The plaintiff could have called upon fellow workmen to assist him, and there-were other rungs and sticks of wood at hand.

On the former appeal, 37 St. Rep., 611, we held that the plaintiff should have been nonsuited. The only substantial difference in the record now before us is in the expert testimony. An expert called by plaintiff on the trial testified that he would not trust, the rung in question to hold a weight of 100 pounds. On the former trial, it was conceded that the rung would hold a weight, of three tons, provided the cylinder had not been moved. It is undisputed that the rung was only placed behind the cylinder temporarily until other castings were put on the truck, that rungs-of the same kind were ordinarily used for such a purpose, that the plaintiff knew the use of the rung, and that it held the cylinder until moved by the plaintiff. The fact that the rung was cross-grained is the only claim of negligence made by the plaintiff. We hold that the rung was sufficient for the purpose for which it was used, simply as a wedge to hold the cylinder temporarily. “ When he attempted to roll a weight of 1,250 pounds with a stick up an incline, we think that he took the risk in case any appliance broke, which, if the casting had not been moved.,, was reasonably safe for the purpose.” (See former opinion).

Judgment affirmed, with costs.

Van Wyck, J., concurs.


author: Dykman, J.

text:
    In the Matter of the Probate of the Will of Mary Snelling, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Will—Probate.
    ■ The will in question was drawn by it lawyer of respectability from directions received from testatrix a few days before its execution, and on that day it was read twice in her hearing and she said it was as she desired it to be. There was no proof of unduelnfluence. Held, that it was properly admitted to probate.
    Appeal from decree of surrogate admitting will to probate.

      L. B. Bechley, for app’lts and contestants; Thomas Young, for resp’ts and proponents.
   Dykman, J.

This is an appeal from a decree of the surrogate of Suffolk county, admitting to probate the last will and testament of Mary Snelling, deceased, and from the order denying a, motion for a new trial.

The proof of the will was resisted and much testimony was taken during the contest, but the surrogate has found all the facts .against the contestants, and we think his findings and conclusions are fully justified by the evidence.

The will was drawn by a lawyer of respectability from directions received from the testatrix; it was executed with due regard to the formalities prescribed by the statute, and all the requirements of the law received full compliance.

There was no proof or appearance of any influence, due or undue, and it is entirely plain that the testatrix knew full well the disposition she was making of her property. She gave the ■directions to her lawyer a few days before it was presented to her for execution, and on that day it was read twice in her hearing, and she said it was as she desired it to be.

The testimony on the part of the proponents answered all the requirements of the law to validate the will, and the evidence in opposition was quite insufficient for its overthrow. The decree should be affirmed, with costs to be paid by the contestants.

Barnard, P. J., and Pratt, J., concur.


author: Barnard, P. J.

text:
    Isidore J. Beaudrias, App’lt, v. Frank M. Curtiss, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Bills and notes—Time of payment.
    Defendant purchased the interest of. plaintiff’s assignor in a business, and paid therefor in notes payable on demand; but in the letter enclosing such notes stated that they were payable “as soon as I get a partner who has sufficient means to place the business on a sound footing.” It appeared that prior to sending the notes defendant had sold the business. Held, that the statement in the letter did not change the time of payment as stated in the notes, and that they were payable on demand.
    (Dykman, J., dissents.)
    Appeal from judgment dismissing the complaint on the merits.
    Action upon ten promissory notes made by defendant to the ■order of E. M. Bént, plaintiff’s assignor.

      John F. Brennan, for app’lt; Palmer & Boothby, for resp’t.
   Barnard, P. J.

The exact interest which Bent, plaintiff’s assignor, had in the business of the aluminum plating is not decisive or even material. Assuming a partnership, Curtiss had sold the business to his mother before the notes in question, except the $100, were given. The notes were given ostensibly to buy out Bent’s share in the business, and while the defendant inserted in the letter inclosing the notes that they were to be payable “ as soon as I get a partner who has sufficient means to place the business on a sound footing,” the words were idle. The business had been sold before the letter was written, and by means of the letter and the notes a good title was made to the "business in the defendant’s .mother. Defendant alone signed the bill of sale to her. It would be a very inequitable result if by this clause in the letter the defendant could get a title to the property which he had wrongfully sold, and pay Bent nothing.

The judgment should be reversed, and a new trial granted, costs to abide event.

Pbatt, J., concurs; Dykman, J., dissents.


text:
    Anne A. Morss, App’lt, v. Edward Burns et al., Impl’d, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Mortgage—Foreclosure—Tax title.
    On the tiial of an action to foreclose a senior mortgage the complaint-was dismissed as to a junior mortgagee on the ground that the premises covered by her mortgage had been released from the prior mortgage, but on the sale the whole property was sold by the referee. The back taxes-were paid by the purchasers from the proceeds of the sale, and they took, an assignment of the tax title in aid of their own. Held, that such assignment did not make their title paramount to that of the junior mortgagee..
    Appeal from judgment dismissing the complaint as to two of the defendants.
    Action to foreclose, a mortgage.

      William, II. Arnoux and O. M. Bovee, Jr., for app’lt; Wilson. Brown, Jr., and Michael II. Owrdozo, for resp’ts.
   Barnard, P. J.

On the 24th of September, 1870, Thomas B„ Hawley was the owner in fee of a considerable tract of land in Westchester county. On that day Hawley and wife executed, and delivered to one Hawley D. Clapp a mortgage for $150,000.. The premises described in the complaint were part of the premises; described in the Clapp mortgage. Accompanying the mortgage there was an agreement between Clapp and Hawley and Mrs. Hawley in respect to the division of the proceeds of the sales-moneys for the premises described in the mortgage. In 1874 Clapp began a foreclosure of the $150,000 mortgage. The court, of appeals gave a new trial and the final judgment in May, 1881, resulted in dismissing the complaint as to the plaintiff. She took her mortgage in June, 1879, and at the time she took them Hawley and wife had the right to give their’s. When the sale was-made under the judgment, in accordance with the remittitur of the court of appeals; there were taxes on certain of the property and the property described in the plaintiff’s mortgage was subject to back taxes. The defendants Burns and Parker bought at the-sale. The back taxes were- paid in cash by them from the proceeds of the sales and they took the tax title in aid of their own. This did not make their title paramount to plaintiff. The purchasers paid nothing but what they agreed to pay for the land and the court paid the taxes out of the moneys belonging to those persons who should have paid the taxes before. The referee, by the decree, was directed to pay the back taxes first. Their tax certificates did not displace the plaintiff from her lien and the taxes since the sale should have been paid by the purchasers. They cannot pay a mortgage in that way.

The judgment should be reversed and a new trial granted, with costs to abide event

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


text:
    Maria Arnott, Resp’t, v. The Prudential Insurance Company of America, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

      1. Insurance (Life)—Fobfeitube.
    The premiums on a policy were all paid at the time of the death of the insured. Two days before Tds death there were ten weeks payments in arrears, which were paid by the beneficiary on that day. Held, that there was "no lapse.
    '£. Same—Designation of beneficiary.
    The deceased delivered to plaintiff, with whom he boarded, a paper furnished by the defendant company, requesting it to pay the loss to her, and she subsequently paid the premiums to the agent. Such paper was not required to be sent to the home office. Held, that this was a sufficient designation of plaintiff as beneficiary, and entitled her to the money.
    Appeal from judgment of the county court of Kings, affirming Justice’s judgment in favor of plaintiff.
    Action upon a policy of life insurance.

      Thos. F. Magner, for app’lt; Louis H. Diclcerson {Daniel B. Thompson, of counsel), for resp’t
   Barnard, P. J.

On the 22d of August, 1887, one Alexander Robertson took out a policy of insurance upon his life for the sum of eighty-six dollars. The policy provided that if the assured died after six months, and before one year from the date of the (policy, only half the amount was to be paid. The assured did die on the 11th of August, 1888, so that forty-three dollars only was (payable upon the policy to those entitled to receive that amount. 'The premiums were all paid up to the time of the death of Robertson. On the 9th of August, 1888, the weekly payments of ten cents a week for ten weeks was in arrears, but on that day the company received the back payments from the plaintiff. There was no lapse, therefore. No issue was taken as to the death of Robertson, or of the proof of the same. The complaint averred the death of Robertson and the fulfilment of all the conditions of the policy whereby the loss became payable. The defendant pleaded only lapse and that the plaintiff could not sue. The death was proven on the trial as alleged. The only question remaining, therefore, is as to the plaintiff’s capacity to sue. The deceased boarded with the plaintiff. The case does not show the charter or by-laws of the company. The plaintiff insured the life of Robertson, and he gave her a paper addressed to the company, defendant, to pay her the loss. This request and designation of beneficiary was written evidently on a paper furnished by the company. This form provided that the designation of beneficiary should not be‘ returned to the home office in Newark, N. J., but sent by the agent who received it to the person who held the policy. The agent collected the premiums of the plaintiff under the policy and designation of beneficiary, and it .is satisfactory evidence that all things were complied with to permit the beneficiary (plaintiff) to reap the fruits of her payments to the defendant.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Albert F. Gescheidt, Ex’r, App’lt, v. Frederika Drier et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    -Contract—Mortgage—Services.
    Plaintiffs testatrix, who was the aunt of defendant and held mortgages made by her, agreed that if defendant would take care of her in future sicknesses and pay the interest on one mortgage, both of them should belong to defendant at her death. The services were performed and interest paid as agreed. Held, that the contract was good.
    Appeal from judgment dismissing the complaint and directing the cancellation of record of two mortgages.

      L. G. & W. P. Platt, for app’lt; Wilson Brown, Jr., for resp’ts.
   Barnard, P. J.

The plaintiff is the executor of Eva Schmitt. The defendant Frederika Drier on the 81st of May, 1887, executed and delivered to the deceased testatrix a bond and mortgage for $2,000. Subsequently on the 13th of August in the same year .she executed and delivered to her. another mortgage for $160. Eva Schmitt died the 4th of August, 1890, having in her possession at the time of her death both bonds and mortgages. The plaintiff seeks to collect these by foreclosure and sale of the mortgaged property. The evidence shows that Frederika Drier was a niece of the deceased. This niece had been on friendly terms with the deceased and had rendered services to her in sickness. The answer avers that after the making of the bonds and mortgages the parties made an agreement that if the mortgagor should -attend to and take care of the mortgagee when she was sick in the future and pay the interest on the $2,000 as long as the mortgagee lived, the mortgages, both of them, when she died should belong to the mortgagor. That no interest was to be paid on the $160 bond and mortgage. This agreement is proven in part by Adelaide Herman, a witness for plaintiff, with whom the testatrix lived on two separate occasions. The agreement is fully proven by Katy Mathsson. It seems that there was an agreement that the testatrix should live in the house built with the money borrowed of her, $2,000 and $160; that after it was finished she -did not move in because she did not like Mr. Drier, but that that fact would make no difference ; that the niece must attend to her .and nurse her when sick, and after her death the house would be iree. This is fully proven by the witness Drier and Henry .Schmitt, by the witnesses Gibbard, Engle, Mr. and Mrs. Crowley .and Morris Burnstein. These several witnesses generally establish "that the niece either did or that the testatrix admitted a performance of the agreement on the part of Mrs. Drier.

The contract is good within the cases of Rhodes v. Rhodes, 3 Sand. Ch., 279; Hamer v. Sidway, 124 N. Y., 538; 36 St. Rep., 388; Smith v. Smith, 125 N. Y., 224; 34 St. Rep., 857.

The judgment should, therefore, be affirmed, with costs.

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


text:
    James H. Mullarky, Trustee, Resp’t, v. James Sullivan et al., App’lts, and Mary Ann Mullarky et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Will—Construction—Children of deceased child.
    By a testator’s will he directed that the remainder of his estate he divided and the income applied to each of six childreu during each of their lives; upon the death of any child leaving descendants the descendants were to take his share, and it any child should die without leaving descendants the capital of his share should he paid to the surviving brothers and sisters. Held, the estate vested at testator’s death; that the surviving children all take a life use in the sixth with the right to take a share of a child who should die without children, and the estate would then become absolute in the survivors, including the children of a dead child.
    Appeal from judgment construing the will of James Sullivan.

      William J. Gaynor, for app’lts ; William N. Dylcman, for pl’£f„ resp’t; A. M Lamb, for def'ts, resp’ts.
   Barnard, P. J.

The testator, James Sullivan, directed a remainder of his estate to be divided in six equal parts and the income applied to each of six children during each of their lives. Upon the death of a child leaving descendants the descendants were to take the share set apart for their parent. If any child should die without leaving descendants “ then to pay over the capital of such child’s share to his or her surviving brothers and sisters.” One of the children of testator has died since his death leaving children. Two have died without leaving descendants. The question presented is, whether the capital set apart for the use of Frances Sullivan, one of the daughters of the deceased, for life, shall go to her surviving brothers and sisters, excluding the children of Mary Ann Mullarky, deceased, or whether her children shall participate in the distribution of the same as their mother would if living at the death of Frances Sullivan. The intent of the testator was manifestly that the children of a deceased child should take under the words “surviving brothers and sisters.”' The will provides for the contingency of a child dying before the testator and the children of a deceased child were to take the dead parent’s share.

In the fifth, sixth and seventh articles of the second codicil the rights of the children of a deceased child are preserved to property therein mentioned. While the testator so carefully provided for the deceased child’s right to take in other clauses of the will, it may be fairly deemed his intent to put them on an equality with the deceased parent in considering the clause in question. If a child had died leaving children before the testator, he or his children would take the place of the parent. The deaths subsequently referred to are not those to happen before testator’s death, but afterwards. The estate vested, however, at his death. It is quite immaterial whether it was an estate in expectancy or one which was vested. The surviving children all take a life use in the sixth, with right to take a share of a child who should die without children. The estate would then become absolute in the survivors, including the children of a dead child. Griffin v. Shepard, 124 N. Y., 70; 35 St. Rep., 210; Ham v. Van Orden, 84 N. Y., 257.

A construction should be followed which will not exclude the issue of a deceased child. Matter of Brown, 93 N. Y., 295; Matter of Mahan, 98 id., 372.

In the case of Patchen v. Patchen, 121 N. Y., 432 31 St. Rep., 297, the distribution was to persons who were living at the end of the life estate. Ho such words are contained in this will. Surviving children include the child of a dead child.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Henry Bedell, Resp’t, v. Benjamin C. Kirk, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    JETegligen ce—Removal op anchor op vessel.
    Defendant moved the anchor of a sloop to enable his vessel to pass, and the sloop was cast ashore and injured. In an action for such injuries the evidence as to whether such removal was necessary to enable defendant’s vessel to pass, or whether it was a useless interference, was conflicting, and the court charged that defendant had the right to remove the anchor if it interfered with navigation. Held, that a verdict in plaintiff’s favor would not be disturbed.
    Appeal from judgment entered upon verdict in favor of plaintiff, and from order denying motion for a new trial.
    The complaint alleges plaintiff was the owner and in possession -of an oyster sloop known as the “ Hadley," which he safely and securely moored and anchored in the waters of Hempstead harbor. That on or about the 15th day of October, 1890, the defendant personally and with his agents, etc., unlawfully and without. plaintiff’s knowledge or consent, entered upon the sloop and •shifted its anchor and moorings, and having so shifted the same, failed and neglected to place the same in their original position that would make said sloop safe and secure, but on the contrary so placed said anchor and moorings in an unsafe and insecure position, so that in a storm, which followed shortly after, the anchor and moorings were so shifted on the sloop that it was thrown or -drifted on the beach and was injured, to the - plaintiff’s damage $1,000.
    The answer denies the ownership of plaintiff in the sloop. The answer further alleges that the anchor of the sloop was in a narrow channel way in the waters of Hempstead harbor, and obstructed the free passage of defendant’s boat through said channel way, and for the purpose of preventing injury and damage to his boat, defendant moved the said anchor to another safe and secure position so as to allow safe and secure passage to his boat through the channel aforesaid. That after so placing the anchor defendant went upon the said sloop and hauled in the slack of the rope attached to the anchor, and fastened said rope in a safe and secure manner. Further, expressly denies that at the time of shifting anchor that the sloop was safely and securely moored and anchored, as alleged in the complaint. Further, expressly denies Shat he unlawfully entered upon said sloop, and denies that he neglected to place said anchor in a place or position that would make said sloop safe and secure, and denies that he so placed said anchor moorings in an unsafe and insecure position, so that in a storm which followed said anchor and moorings were so shifted that the sloop was thrown or drifted upon the beach, and denies that plaintiff sustained damage.

      Henry Hoyt, for app’lt; George B. Stoddart, for resp’t
   Dykman, J.

This is an action for the recovery of damages for injuries to a sloop caused by the improper interference of the defendant.

The vessel was laid up in a slip in Hempstead Harbor and there was an anchor out to hold her in position, and the defendant raised the anchor and moved it in towards the vessel, and the claim of the plaintiff is that he changed the anchor in a careless- and improper manner so as to leave the vessel less secure and in consequence of such negligence she was affected and injured and damaged.

The testimony on the part of the plaintiff tended to show a useless and careless interference with the vessel, which resulted in her injury, while the testimony on the part of the defendant, tended to show that he desired to pass through the narrow channel where the anchor lay, with his vessel, that the anchor rendered the navigation dangerous, and he removed the same to enable his-vessel to pass through in safety and that he removed the same to enable him to take his vessel through without injury and made-the removal in a careful manner.

The trial judge charged that the defendant had the right to remove the anchor if it interfered with navigation, and submitted the question of negligence to the jury.

There was some question about the interest of the plaintiff im the vessel, and that was also left to the jury.

So it was, therefore, that sharp questions of fact were presented, to be determined only by the jury.

The verdict was in favor of the plaintiff which signifies that all the facts were found in his favor and so ends the case.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    Athenais Von Hoffman, Resp’t, v. George H. Kendall, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)
    1. Trespass—Pleading—Treble damages.
    A complaint alleging that defendant unlawfully and wilfully entered upon plaintiff’s land and unlawfully and wilfully cut down trees growing-thereon, to plaintiff’s damage, and which claims treble damages under § 654 of the Penal Code, states facts sufficient to constitute a cause of' action; as, if treble damages were improperly claimed, plaintiff would be-entitled to single" damages if the facts proven showed it.
    & Same—Acquittal oe criminal charge no defense.
    An acquittal upon criminal charge under Penal Code, § 654, is no defense to such an action.

      Appeal from judgment sustaining demurrer to the second defense set up by defendant’s answer.
    The action was brought for wilfully and unlawfully entering upon plaintiff’s lands at Gryines Hill, Eichmond county, and cutting down twelve growing trees, to plaintiff’s damage $500, and the complaint demanded judgment for treble damages. -
    The answer, after denying every allegation of the complaint, sets up for a further answer, and as a bar to the action, the adjudication by a justice of the peace upon a complaint m a criminal action for the same alleged injury, whereby the defendant was alleged to have been acquitted of the offense charged'.’
    Plaintiff demurred to. that defense on the ground that it was insufficient in law upon the face thereof.

      William B. Wilder and Sidney F. Bawson, for app’lt; George J„ Greenfield (James W. Monk, of counsel), for resp’t.
   Barnard, P. J.

The facts set forth in the complaint make a good cause of action for trespass upon the lands of plaintiff. The averment is that the defendant unlawfully and wilfully entered upon the lands of the plaintiff and unlawfully and wilfully cut down trees growing upon the land, thereby lessening the land $500.

Even if the demand for judgment improperly claimed treble damages the plaintiff would, be entitled to recover single damages, if the facts proven on the trial were sufficient to call for single damages and no more. Emery v. Pease, 20 N. Y., 62.

The statute which gave the right to treble damages expressly provided that under certain proof only single damages should be recovered. 1 Revised Laws, 525, § 29; 2 R. S., 2d ed., 261, §§ 1 and 2; Code Civil Procedure, §§ 1667, 1668.

It may be questioned whether § 654, Penal Code, applies to the case.

Section 640 makes the offense and fixes the punishment; and § 654 applies to offenses where punishment is not fixed by statute. The discussion of the question is wholly unnecessary. Wright v. Wright, 54 N. Y., 437: Williams v. Slote, 70 id., 601; Wetmore v. Porter, 92 id., 76.

The acquittal upon the criminal charge is neither a defense to the single or treble damages. The people were the party, and the verdict only bound the People as final.'

It follows that even if the criminal prosecution under § 654, Penal Code, had failed, the right to damages remained. The demurrer of plaintiff to the second defense alleging such an acquittal was properly sustained.

Judgment sustaining demurrer to part of answer affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    In the Matter of the Opening and Extension of Brownell Street, in the Village of Edgewater.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    3. Eminent domain—Opening default—Terms.
    Where the court, as matter of favor, opens the default of a property owner who failed to appear before the commissioners- and sends back the report for further hearing, it may properly impose as a condition of granting the order that the costs of the former hearing shall ue paid by the-party in default.
    2 Same—Commissioners.
    Where it is shown that the original commissioners were appointed on the application of the persons liable to assessment, the selection of new commissioners on sending back the report for rehearing is a wise exercise-of discretion.
    Appeal by the Marine Society of the city of New York from: so much of an order at special term as provides that said society shall pay the costs and disbursements of the former hearing as a condition of granting its motion to set aside and vacate the report. of the commissioners and open its default, and so much as provides that the report shall be referred back to new commissioners ; also from so much as provides that- if default be made: in the payment of said costs and disbursements, the motion shalli be denied and the report confirmed.

      Geo. J. Greenfield, for app’lt; Wm. M. Mullen, for resp’t.
   Barnard, P. J.

Brownell street extended, as proposed by the-village of Edgewater, goes through the lands of the Marine Society of the city of New York.

The proceedings were entirely regular. The Marine Society did not*appear before the commissioners of estimate and assessment. After the commissioners had reported, the Marine Society applied to the court at special term to open the default of the-Marine Society and to send back the report of the commissioners with directions to review the assessment made against the society for benefits resulting from opening of the street. The court granted the motion to send back the. report upon condition that the Marine Society pay the costs of the former hearing. The default is wholly unexplained. The owner is silent while expensive proceedings are progressing, and when the assessment for benefits is deemed too large a motion is made that the report be sent back to review the assessment The imposition of the costs of the former hearing and report is in accordance with the usual rule in cases of default. The party applying to set aside an adjudication must pay the expenses incurred in obtaining it. It is apparent that the whole proceedings must be gone over anew.

The commissioners were appointed on the application of those persons who are liable to assessment. This was in accordance with the village charter; whether the award made by a commissioner so appointed is held invalid by the court of appeals, Menges v. City of Albany, 56 N. Y., 374, the selection' of three new commissioners by the court was wise and should be upheld. The moving party will get a review of the case and a good award in law thereby.

The order should therefore be affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


author: Babnard, P. J.

text:
    William H. Vanderhoof, Ex’r, Resp’t, v. William B. Lane et al., App’lts.

      (Supreme Court, General Term, Second, Department,

      Filed February 8, 1892.)

    Legacy—Charge on real estate.
    By the will of plaintiff’s testatrix she gave the sum of $1,800 to her four brothers share and share alike, and the residue of her estate to her husband’s children. At the time of executing the will she had sufficient personal property to pay the legacy. By a codicil subsequently executed she cut down the legacy so as to give $300 to each of her brothers and the balance to the residuary legatees. Held, that the legacies to the brothers were not charged on the real estate by the blending of real and personal property in the residuary clause.
    Appeal from judgment of special term construing the will and codicil of Emeline B. Vanderhoof, deceased.
    Action for construction of a will and codicil for the purpose of determining whether certain legacies given to appellants should be paid out of the proceeds of a sale of real estate, the personalty being insufficient.

      William J. Gaynor, for app’lts; Morris & WMtehouse, for resp’t
   Babnard, P. J.

The testatrix by her wiK in 1872 gave the sum of $1,800 held by her in her own and separate right, prior to the death of her husband, to her four brothers, equally. By this will the residue of the property of testatrix was given to her deceased husband’s children. The words of this will did not charge the legacy on the land owned by testatrix. Brill v. Wright, 112 N. Y., 129; 20 St. Rep., 305; McCorn v. McCorn, 100 N. Y., 511.

At the time of the execution of the will' the testatrix had deposits in savings banks and the- personal estate would presumably have then been sufficient to pay the legacies out of the personal property; her deposits then were much larger than the legacy. By the codicil made in 1884 the legacy of $1,800 is cut down to $300 each for her four brothers. The $600 deducted from her brothers’ legacies was given to the residuary legatees as specified in the will. A power of sale was given the executor to sell the land and an executor was changed; otherwise the will was ratified and confirmed. The blending of the real and personal property-in the residuary clause does not produce a charge upon the realty for the payment of legacies whenever the personal estate is insufficient. Briggs v. Carroll, 117 N. Y., 288; 27 St. Rep., 468.

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur. •


author: Pratt, J.

text:
    David G. Burton, Resp’t., v. Harriet R. Rockwell, Impl’d., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 8, 1892.)

    Mechanic’s lien—Discharge—Payment into court.
    A failure of an offer to pay money into court under § 19 of the Mechanic’s Lien Law of 1885 to state that it is made “in discharge of the lien’” renders the offer insufficient.

      (Hall v. Denncrlein, 39 St. Rep., 67, followed.)

      Appeal from order awarding plaintiff costs and an allowance and from so much of the judgment as awards judgment to plaintiff against the defendant Rockwell for costs and disbursements.
    Action to foreclose a mechanic’s lien filed against the property of defendant Rockwell. The builder, Ringrose, did not answer.

      Charles A. Decker, for app’lt; Norman A. Lawlor, fór resp’t.
   Pratt, J.

The only question raised in this case is one of law, to wit, whether under the offer of the defendant made in the course of the trial the plaintiff or defendant was entitled to costs which accrued subsequent to the making of the offer.

The offer is as follows after the caption of the suit: “ I, Harriet R. Rockwell, one of the defendants above named, do hereby offer to allow the above named plaintiff to take judgment against me in the above entitled action for the sum of two hundred dollars with interest from January 1, 1890, together with costs of this action, or pay the same into court.”

The statute, § 19 of chap. 342 of Laws of 1885, authorizing an offer to be made in a suit under the “Mechanic’s lien ” law, provides that “ At any time after an action has been commenced the owner or owners of property affected may in writing offer to pay into court any amount stated in the offer or to execute and deposit any securities or papers which he may describe in discharge of the lien or liens.”

It is objected that the offer as made was insufficient because the words “in discharge of the lien” were not contained in the notice.

The statute authorizing the offer is in the subjunctive, and the offer here contained more than the statute requires, as it offered to permit the plaintiff to take judgment for $200 in addition to offering to pay $200 into court.

It is clear that the offer was a nullity under § 738 of the Code, as it was not made ten days prior to the trial of the action. Sares v. Matthews, 39 St. Rep., 920. So that the only point is whether it was necessary that the offer should contain the exact words of the statute, i e., “ in discharge of the lien.”

That such a form of offer iá requisite was held in the case of Hall v. Dennerlein, 39 State Rep., 67.

I cannot well see how the omission of the words “ in discharge of the lien ” "could work any injustice or surprise to the plaintiff.

The words are a mere statement of the legal effect of the offer, and if this question was now raised for the first time, I should be strongly inclined to hold that the offer was sufficient to put the plaintiff to an election.

In substance the defendant offers to pay the money into court, with costs, and it could be for no other purpose under the statute except to discharge the lien.

The offer did more; it anticipated that there was no valid lien, as afterwards turned out to be the fact, and it offered to permit plaintiff to take judgment for $200, etc., as in a common law action. I cannot see why the plaintiff should be allowed to go on piling up the costs, and, when it was found that his claim was less than the offer, be rewarded with full costs and extra allowance.

To avoid the confusion of one court holding one way, and another court the opposite, I think this order better be affirmed, but without costs.

Order affirmed, but without costs.

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


author: Daly, Ch. J.

text:
    No. 121 Madison Avenue, App’lt, v. John C. Osgood, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Landlord and Tenant—Evidence of release of tenant.
    Defendant was lessee of premises for a term which expired September 15, 1889, with a privilege of renewal. Desiring to surrender his lease for the summer months, he so wrote the landlord’s agent, who replied that he had an opportunity to rent the flat for the summer, and several years longer, if he would surrender his privilege of renewal, and asking for a reply by telegraph, to which defendant answered in the affirmative. The agent thereupon leased the premises from September 15, 1889, failing to include the summer months as agreed. Mela, that defendant was relieved from his obligation to pay rent for the summer months.
    2. Same—Agreement to terminate.
    The second lease executed by the landlord, in pursuance of the agreement between his agent and defendant, operated as an express termination of the latter’s lease.
    3. Same—Ratification of agent’s act.
    The landlord was bound by the acts of his agent, through subsequent ratification, in accepting the waiver he procured from defendant and acting upon it.
    Appeal from a judgment of the general term of the city court, affirming a judgment of the trial term, entered upon the verdict of a jury in favor of defendant.
    The action was for rent of apartments in the house 121 Madison avenue, owned and managed by the plaintiff corporation, and claimed to be due for the months of May, June,” July and August, 1889, at §225 per month, and for the first half of the month of September, 1889, at the same rate, under a written lease of said apartments for the term of eighteen months, commencing March 15, 1888, and ending September 15, 1889. The lease contained a covenant that the lessee should have a renewal thereof for a year from the last named date on the same terms, provided he gave notice of election to take such renewal on or before July 15, 1889.

      Lowery, Stone & Auerbach (Joseph M. Keating, of counsel), for app’lt; James StUceman, for resp’t.
   Daly, Ch. J.

The defendant was lessee of the premises for a term of eighteen months, which expired September 15, 1889, with a privilege of renewal, at his option, for one year from the latter date. Mr. Oleary was the manager of the house for the plaintiff, and in January, 1889, defendant told him that he expected to go abroad with his family about the last of April or 1st of May, and wished to get a tenant for his apartments for the summer months, and would be glad to give them up entirely if he could be relieved of the rent for the summer months. Cleary said there would be no difficulty; he was satisfied he could get a tenant. Shortly after defendant went to Colorado, and while there received a letter from Cleary, dated January 25, 1889, saying that he had an excellent opportunity of renting the apartment to a lady to whom he had explained that defendant had a right to the renewal of a year from September 15, 1889; that this did not suit her at all, for, as she very correctly said, if between May 1st and September 15th, defendant should change his mind about vacating, he would have the right to resume possession at a time when, to use her own expression, she would be very • nicely settled; and as she w'ished to stay settled for a number of years, she did not wish to take any such risk; so, to settle any doubts of that nature, Mr. Cleary suggested that defendant write to him as manager, saying that he did not wish to exercise his right of renewal from September 15, 1889, or a private notice that he desired to give the corporation possession of his apartments on September 15, 1889.

Defendant answered by a letter of January 29, 1889, asking which way the matter was to be arranged, stating he supposed the person taking his apartment would take an assignment of his lease, or that his lease could be surrendered to the owners and a new lease executed direct to the tenant; that the question as to his exercising his option need not stand in the way for, if necessary, he would remove it as Mr. Cleary suggested. In reply he received á telegraphic message from Cleary dated February 2, 1889, acknowledging his letter and requesting him to telegraph that he did not wish to avail himself of option. To this, defendant, on February 5, 1889, telegraphed Cleary, “I do not wish to avail myself of option to extend lease." The plaintiff thereupon, about February 11, 1889, executed to-Mrs. Farrington, the lady referred to by Mr. Cleary, a lease of the apartments, not from May 1,1889, but from September 15, 1889, leaving them unlet for the period for which defendant had desired to be relieved from rental. This action is brought to recover rent for that period from defendant, who claims that the effect of the transaction is to relieve him from the obligation to pay it. I think that his contention can be sustained.

The defendant surrendered his rights to a renewal upon the understanding conveyed by the letter and telegram of Cleary that there was a tenant ready to lease the apartment from May 1st, if she could also have it for the renewal period, and that defendant's waiver was required to effectuate that transaction. An agreement, therefore, on plaintiff’s part to make such a lease, and consequently to terminate defendant's lease on May 1st, might be inferred from the circumstances, and is, in fact, the only possible inference from the facts. The defendant’s lease could be terminated at any time by agreement "between him and the landlord ; it was not necessary that such agreement should be express; it might be inferred from the conduct of the parties. Bedford v. Terhune, 30 N. Y., 453.

The point taken by appellant, therefore, that defendant could ■only be released from the rent by the agreement of the plaintiff, ¡and that there was no evidence of such agreement is fully met by ■the proof which authorizes, if it does not require, the inference ■of such an agreement, founded upon good consideration, and subsequently executed by the lease to a third party of the premises for the period covered by the renewal covenant. Tallman v. Earle, 37 St. Rep., 271. Much stress is laid upon the fact that the defendant admitted that no contract was made by Cleary in the interview with him in January, and that this negatives the defense of agreement pleaded. But the answer sets out an agreement with plaintiff and the proof warrants such inference from the transactions at and about the time specified in the pleadings. The claim subsequently made by defendant, when he discovered what he characterized as the deceit practiced by Cleary, that he was still entitled to exercise his option for a renewal and claimed such renewal, does not in any respect estop him. The agreement had then been made and executed and he could not rescind. TTia conduct might be proper for consideration by the jury if there was a question as to whether an agreement had been made ; but the facts are undisputed, and the inference from them inevitable.

There can be no question that plaintiffs are bound by the acts of Cleary, through subsequent ratification in accepting the waiver he procured from defendant, and acting upon it. It was the duty of Cleary to communicate to his principals under what arrangement it was procured. In the absence of evidence to the contrary the presumption is that duty was performed. Meehan v. Forrester, 52 N. Y., 277; Bank v. Davis, 2 Hill, 464.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.


text:
    Jennie Cornelius, Resp’t, v. Jacob Rieser, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Principal and agent—Implied authority op agent—Evidence.
    In an action brought by the wife of a bar-keeper against the proprietor to recover the value of her services in washing towels for the bar for three years, having been employed by her husband, it appeared that the barkeeper was not authorized to contract debts for the saloon, but that eighteen months after his wife had begun to do the washing he had demanded money from defendant to pay for the same; that the latter put him off, but raised no objection to the demand, Held, that a verdict in favor of plaintiff for her services for the last eighteen months would not be disturbed.
    2. Contract—Husband and wipe—Wife’s services.
    In such case there was no force in the objection that the wife’s services belonged to her husband and formed no basis of claim against a third party, nor that the contract for such services was made between husband and wife, and therefore invalid.
    3. Same—Sunday laws—Violation—Evidence.
    The statement made by plaintiff that she washed the towels for the saloon in lots enough to have five clean every day, including Sunday, was not evidence sufficient to show that plaintiff was aiding defendant in violation of the Sunday laws, and to preclude her from recovery.

      Appeal from the affirmance by the general term of the city court of a judgment, entered on the verdict of a jury in favor of the plaintiff for $72.80, and of an order denying the defendant’s motion for a new trial.

      Johnston & Johnston, for app’lt; M F, Stern (G. Arthur Goan, of counsel), for resp’t.
   Daly, Ch. J.

The plaintiff’s husband was employed as barkeeper and to take general charge of a saloon conducted by the defendant, and was authorized to pay the daily expenses out of the receipts, but it is claimed had no authority to incur debts. After three years of service he left the defendant’s employment, and subsequently this action was brought by the wife to recover $141.18 for washing towels and napkins used in the saloon for the whole period of her husband’s employment.

The jury allowed the plaintiff about one-half of the sum claimed, namely, $72.80, which was in effect a finding that she was entitled to recover for one-half of the period sued for. It is easy to see how the jury reached this conclusion. There was no evidence that the defendant knew that this item of expense was incurred by the barkeeper until eighteen months after the employment of the latter, and the jury considered that the evidence of authority in the barkeeper to incur the expense- before that time was insufficient to charge the defendant. The plaintiff does not complain that her claim has been cut down one-lialf, and this appeal is taken by the defendant, who insists that a recovery even to the amount allowed is not supported by the evidence.

It is undisputed that the washing of towels and napkins for use in the saloon was indispensable. The defendant is chargeable with notice of the fact from his knowledge of the business in which lie was engaged, i. e., conducting this and other saloons, and he must have known that it was not included in the expenses for which he settled with the barkeeper every week. The failure of the latter to make any charge for the services of his wife in this regard during the first eighteen months furnishes some ground for the contention that such services were, in his view, to be included in those for which he received compensation from the defendant. But any agreement implied from failure to make such charge was terminated by the subsequent express notice from the barkeeper to the defendant that he would have to get the washing done.

This notice was given defendant when he came to the saloon as usual on a Friday to get the receipts and examine the book entry of expenses, and his reply was that he would see the bar-keeper the following Friday about it Nothing occurred the following Friday on the subject, nor for eighteen months afterwards and not until two or three weeks before the bar-keeper left, when he asked defendant for money to pay for washing the towels and was again put off, defendant telling him to wait until Friday. The jury believed the evidence as to this notice and concluded, as they reasonably might, that from the time defendant received it his .silence indicated assent to the incurring of the necessary expense and conferred authority to that end upon the bar-keeper. The main question in the case was, therefore, one of fact for the jury, and their finding upon the evidence cannot be disturbed.

There are no exceptions which require reversal of the judgment. There was evidence, as I have said, of implied, if not express authority for the employment of plaintiff during the period for which the recovery has been had. The case does not depend upon ratification after the act There is no force in the objection that the wife’s services belonged to her husband and formed no basis of claim against a third party, nor that the contract for such .services is invalid because made between husband-and wife. This was a contract between the defendant and the plaintiff, made '.through the husband, and not a contract of the plaintiff with the latter. If the plaintiff had done this work for her husband she would not be entitled to compensation from him for it, but there is a distinction between working for him and working with him for a third person, between helping her husband in his business .and helping in the business of a third person, and where the work is done for a third person the earnings belong to the wife. Blaechinska v. Howard Mission, 42 St. Rep., 387.

The appellant is mistaken in the claim that the plaintiff testified that she did not commence to wash for defendant until August 20, 1887. The case shows her testimony to be that she commenced August 20, 1886. As to the claim that the verdict is excessive because plaintiff was allowed to recover for washing towels to be ■used on Sundays on the ground that it was work done to be used in an unlawful business, there is no evidence that the plaintiff knew that the towels were to be so unlawfully used. The only statement made by her was that she washed them m lots -enough to have five clean every day, including Sunday, but this may have been a mere method of computation or reckoning of the weekly quantity. The instruction to the jury fhat the plaintiff might recover for work used on Sunday although not done on ■Sunday is not necessarily erroneous. The charge does not say nor imply that recovery can be had for work used in an unlawful business on Sunday, and that is the point of appellant's claim of error.

Judgment and order affirmed, with costs.

Bischoff, J., concurs.


author: Daly, Ch. J

text:
    Simon Auerbach et al., Resp’ts, v. Henry C. L. Peetsch, Impl'd, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Sills ahd xotes—Aeeir^itive oe issue.
    In an action against the maker and payee of a promissory note the former answered separately and alleged non-delivery of the note and want of consideration, but did not deny any of the allegations of the complaint. On the trial defendant’s counsel asked for the affirmative of the issue, which the court denied. Held, error.

      Appeal from a judgment of the general term of the city court affirming a judgment of the trial term in favor of the plaintiffs, entered upon the verdict of a jury for $1,489.66 damages and costs.

      Johnson & Johnson, for app’lt; Meyer Auerbach, for resp’ts.

       Reversing 39 St. Rep., 211.

   Daly, Ch. J

The complaint set forth that the defendant Peetsch at New York city made his promissory note in writing dated December 3, 1890, for $1,351.20, payable to the order of the defendant Moonelis four months after date at the Lenox National Bank, for value received, and that Moonelis thereafter and before maturity endorsed and transferred said note for value to the plaintiffs, who are now the lawful owners and holders of said note , that the note was duly presented for payment at the-place where the same was payable and payment thereof demanded and refused, whereupon said note was duly protested for non-payment, of all of which defendants had due notice, and that the-whole of the principal sum is due and unpaid.

The defendant Peetsch answered separately and alleged, first, that the note described in the complaint was. not delivered by him to the defendant Moonelis nor to any other person or persons, nor did he ever receive any value therefor from Moonelis or any other person, of all which the plaintiffs had notice; second,, that the plaintiffs did not purchase said note for value in good faith from Moonelis, .nor did they part with any value therefor,, and that they are not the lawful owners or holders thereof as against the defendant Peetsch.

The issues came on for trial before the court and jury, and the-counsel for defendant asked the court for the affirmative of the issue. The motion was denied and exception taken. It would seem that the affirmative was with the defendant. None of the-allegations of the complaint were denied, and under the Code they were, therefore, to be taken as true, and plaintiffs were entitled to recover without any proof. Code, § 522. The complaint set forth a cause of action. It is true that it did not aver that the maker delivered the note after he made it, but it was not necessary to allege delivery by the maker. 2 Wait’s Pr., 327; Peets v. Bratt, 6 Barb., 662. Delivery to the plaintiff was alleged and not denied. There was, therefore, no delivery to-be proved by plaintiffs, as they claimed upon this appeal, and they were not entitled to the affirmative, not being required to offer' any evidence in support of their cause of action. Fleischmann v. Stern, 90 N. Y., 110.

The right of the affirmative belonged to the defendant, who had affirmatively pleaded non-delivery of the note by him and want of consideration. It was, therefore,fifis right to establish this defense, and as he has thus held the affirmative, “ he had the right to open and close the evidence, and the learned judge erred in ruling to the contrary." Conselyea v. Swift, 103 N. Y., 604; 4 St. Rep;, 278.

The judgment will have to be reversed for this error, but it is; proper to say in respect of certain other exceptions taken by the: defendant to the exclusion of evidence offered under his defense that he ought to have been permitted to prove the facts regarding the making of the note in order to substantiate his defense of want of consideration as well as of non-delivery. That defense rested upon his own oath, and as his credibility had to be submitted to the jury, he had the right to show all the circumstances attending the execution and delivery of the paper; and in all cases where the right of recovery depends upon the plaintiff being a bona fide holder, the burden is cast upon the plaintiff of proving that he took the note before maturity for value and without notice of the matters set up as. a defense, and this he is to show after the defense has been made out. Nickerson v. Ruger, 76 N. Y., 279.

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

Bischoff, J., concurs.


text:
    Henry G. Harris, App’lt, v. S. Morris Pryor et al., Resp'ts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Stocks—Contract—Evidence.
    Brokers, in Philadelphia, sold short for plaintiff, in New York, certain stocks, and wrote him, “We have made an exception of your account and not required our usual five per cent, margin; consequently we look to you to keep your account in proper shape without waiting for us to call upon you.” The letter went on to state that he had then less than one per cent, margin, and closed with ‘ if we do not receive a check for at least one per cent., further margin by to-morrow (Saturday) morning’s mail, we shall be obliged to figure your account to put stop orders to the best of our ability.” By a letter of the same date, which crossed the brokers’, plaintiff stated that he would come over on Monday, and would know then or Tuesday what he could do, and authorized the brokers to put stop orders on certain specified stocks at one per cent, above the market. On receipt of this letter the brokers telegraphed (Saturday. 11-30 a. m.) “ Have put stay orders on all your stocks about one-half point from market;” and a little later that they had closed out all his stocks but one. Held, sufficient to support the jury’s finding that defendants had not waived their demand for margin, or made any agreement to hold the stocks until the stop orders authorized by plaintiff were reached.
    3. Same—Letters—Evidence.
    A letter of the brokers in regard to the transaction, written on Sunday, was admissible in evidence, it being a reply to the plaintiff’s letter, written on Saturday, which had been put in evidence.
    3. Same.
    As the correspondence between the parties failed to establish any special contract, it was proper to prove the original agreement.
    4. Same—Theory oe action—Repudiation.
    After suing upon the theory of a repudiation of the transaction, the plaintiff could not affirm it and recover the balance due him under it.
    Appeal from a judgment of the general term of the city court affirming a judgment in favor of defendants entered upon the verdict of a jury.

      Wm. W. Hewitt, for app’lt; Wm. Pennington Toler, for resp’ts.
   Daly, Ch. J.

The appellant may justly claim that the terms of the contract between him and the defendants, as brokers, appear from their correspondence. In their letter of April 5, 1889, .he defendants say : “ As we have written you before, we have made an exception of your account and not required our usual five per cent margin. Consequently we look to you to keep your account in proper shape without waiting for us to call upon you.” Unless by the subsequent correspondence between the parties-Some other arrangement was entered into, the brokers had the-right to demand such margin as would secure them from loss, and if their customer failed to respond within a reasonable time, to close the transaction. They had in effect extended a credit to-plaintiff which they had a right to terminate upon due notice. They could then purchase stocks to cover the sales they had made-for him upon their own responsibility. White v. Smith, 54 N.Y.,526.

The brokers resided in Philadelphia and the plaintiff in New York. Prior to April, 1889, they had sold short by his direction over 350 shares of ten different stocks and at the time of writing" the above letter he had only about $240 margin of credit to his-account on those 350 shares. Their letter went on to state this-fact and. closed with the following notice: “ If we do .not receive a check for at least one per cent further margin by to-morrow morning’s mail, we shall be obliged to figure your account to put stop orders to the best of our ability.”

A letter from plaintiff to them written on the same day (Friday) crossed this notice. In it plaintiff stated that he would, come over on Monday and would know then or by Tuesday what he could do. that he was expecting considerable money early the following week and would know bv Tuesday night whether he would receive it or not; and authorized defendants to put stops-on three specified stocks at one per cent above the close that, night (Friday).

On receipt of this letter, defendants telegraphed (Saturday,. 11:30 A. M.). “ Have put stop orders on all your stocks about one-half point from market,” and subsequently, on the same day,. 11:40 A. M. : <l Impossible for us to carry your stocks over on such slim margin. Have closed out everything but oil. Prices-later.” To this plaintiff telegraphed and wrote refusing to accept, the reported purchases. The purchases actually made on April 6th by defendants on plaintiff’s account - left a balance to his credit of $100.

The claim of plaintiff upon this correspondence is: first, that defendants waived their demands for margin; and second, that the minds of the parties met upon a new agreement that the stocks were to be held until the stop orders placed by plaintiff were reached. If there were a waiver of the first demand and notice, a further notice would be necessary; and a waiver might, be inferred from any further negotiation or proposition on the part of the brokers after the notice. McGinnis v. Smythe, 23 W.Dig., 203; affirmed 101 N. Y., 646; 1 St. Rep., 35. In this case, from their-verdict, the jury evidently found that the defendants had not waived their demand for margin, and the evidence supports such a finding. The notification by defendants that they would place stop-orders at a half point was not a waiver of their previous demand and notice, but a direct fulfillment of their expressed intention, to put stop orders to the best of their ability. It was not a new proposition, nor was there any negotiation after their first demand and notice. It was not a new agreement, for the minds of the-parties never met upon the question of stop orders, plaintiff having directed stop orders at one per cent upon a few of his stocks, and défendants disregarding this direction and adhering- to the-express terms of their notice. All these questions were for the jury, and we must assume that they were duly and properly submitted to them, for the charge of the judge is not printed in the case, and no exceptions upon those points were taken. The verdict of the jury also establishes that the notice from defendants-to plaintiff was a reasonable one.

Plaintiff, upon this appeal, assumes that the notice was given, at 11:23 on Saturday, and that his account was closed by noon of that day, but in fact the notice was given by the letter of the defendants the day before, to which the plaintiff, in effect, responded, by his letter admitting his inability to furnish margin, and by making no other reply to their notice.

The exceptions taken at the trial do not call for a reversal. The letter of defendants written on the 7th was admissible because it was a part .of the correspondence between the parties as to the-transaction in suit, it being a reply to the plaintiff’s letter of the 6th, which was put in evidence. Where a letter in correspondence is offered by one party and answered the day after, the answer may be read in evidence. Roe v. Day, 7 C. & P., 705; 1 Gr. Ev., 201, note.

Several exceptions were taken by plaintiff to the admission of evidence on defendants' part as to the original agreement or understanding between the parties as to margins. The evidence was-objected to upon the ground that there was a special contract between the parties. It appears from the appeal brief that this contention is based upon the correspondence of April 5th and 6th, which is assumed to establish an agreement to carry the stocks-until the stop order placed by plaintiff was reached. As this contention is not justified by the correspondence the objection was-not well taken.

The judge instructed the jury that it was conceded that the-plaintiff,-if entitled to recover at all, was entitled to $646.25. To-this plaintiff’s counsel assented; yet when the jury after retiring sent in to inquire if they might bring in a verdict for a less sum than that amount, and the judge replied in the negative, the plaintiff excepted. Error is claimed because it appears from the uncontradicted testimony that the defendants had at least $100 in their hands belonging to plaintiff after he was closed out Ho such point was made at the trial, and the action was brought upon a repudiation of the transaction which resulted in that balance. The judgment cannot be reversed for error because the plaintiff,, after verdict against him, is willing to affirm the transaction and take- the balance due upon the account ■ as stated by the defendants. Ho other exceptions are noticed upon appellant’s brief.

The judgment must be affirmed, with costs.

Bischoff, J., concurs.


text:
    Joseph Buehler et al., Resp’ts, v. Lorenzo Reich, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

      1. Witnesses—Experts—Qualifications tested by other experts.
    In an action brought to recover the value of certain electrical work, the evidence of a civil engineer, as an alleged expert, was received as to such value. He Id, that the qualifications of such witness to testify may be tested by the opinions of other experts. *
    :3. Services—Comparison of charges.
    In such case the testimony of an electrician as to the value of the work done in defendant’s premises previous to plaintiffs’ work, offered as a basis of comparison between the charges of the two electricians, is properly excluded where there is nothing to show that the work in each case was enough alike to form any basis of comparison.
    Appeal from a judgment of the general term of the city court •affirming a judgment in favor of the plaintiffs entered upon the verdict of a jury for $901.93, and from an order affirming an order denying a new trial. The action was to recover $796.35 for work, labor and services in and about the electric light wiring and bell work in premises known as “The Cambridge.” The answer contained a denial that the work was worth the sum claimed; a special agreement to do it for seventy-six dollars and a counterclaim.

      Abram Kling, for app’lt; Adolph L. Sanger, for resp’ts.
   Daly, Ch. J.

This appeal comes up on a bill of exceptions presenting two alleged erroneous rulings of the trial court in the admission and rejection of evidence. The plaintiff having introduced evidence to maintain the issues on his part, the defendant called one Doyle to prove the value of the work which was the subject of controversy. He testified that he was an engineer, and that in a general way his experience as a civil engineer had been in all classes of engineering, what he called mechanical engineering, and that he was familiar with electrical engineering in all its branches; that he had examined the work, and that it was worth $120 to do it. He admitted that he had to guess at the value of the switches and the price of the wire, and his cross-examination tended to show that he had no training as an electrician, and that he was wholly unfamiliar with electrical science. The defendant having called onerNoll, an expert electrician, to further maintain his defense, Noll was asked upon cross-examination whether he had heard the testimony of Doyle, and what he thought of him as ■an electrical expert engineer, to which Noll answered:Well, he is not an electrical expert.”

Appellant claims that - the admission of 'this testimony was error; that the question of the value of the work was not one of science; that the query put to the witness invaded the province of ■the jury and was also an attempt to introduce the opinion of one witness as to the value of evidence of another witness; quoting on this point Haverhill v. Cronin, 4 Allen, 141, holding it error to ■•ask a witness called by one party whether he considered his judgment as good as that of an expert called by the other side; and People v Webster, 36 St. Rep., 834, holding in a trial for murder,, where lay witnesses had testified to acts and conversations of the prisoner which they characterized as irrational, that it was prejudicial error to permit a medical witness to testify that people are-very much given to exaggerating either their own symptoms or those of their friends.

The testimony which the witness Doyle gave as to the value of the plaintiffs’ work in making additions or alterations to electric light machinery already in the premises involved a question of trade, science and skill, and whether such testimony showed that he (Doyle) possessed science and skill sufficient to enable him to-form a judgment was a matter upon which acknowledged experts, in the business of electric light might well have an opinion, the benefit of which either party was entitled to. It was not invading the province of the jury to elicit such opinion, for they had to know what Doyle’s judgment upon the value of another man’s work was worth, and they would be better enlightened on that point by the opinion of acknowledged experts than by his. cross-examination upon matters of science with which laymen are-, not expected to be familiar.

If the claims of a mere charlatan or pretender could not be the subject of opinion of acknowledged scientists, then the mos4 • direct, forcible and convincing evidence of sham and -pretensions would be excluded from the jmy. “The value of expert testimony will depend on the experience and knowledge which the witness has evinced concerning the matter about which he testifies.” Rogers on Expert Testimony, 490. The question as to how much knowledge and experience is evinced by the witness on his examination must, in all cases of science and skill, be the-subject of opinion by acknowledged experts.

This was not a case where one witness was permitted to give-an opinion as to the value of the testimony of another witness, but where the claim of a witness to the possession of science and skill is submitted to scientific judgment and experience. The qualifications of one medical expert may be testified to by another medical expert to confirm the opinion advanced by the former. Laros v. Commonwealth, 84 Penn., 208. The competency and skill of persons engaged in particular employments are frequently the subject of judicial inquiry, and the opinion of persons qualified to give it as to such skill and competency must from the necessity of the case be received.

There does not seem to be any good reason for excluding such opinions with regard to witnesses who assume to be competent to speak with authority - upon questions of skill and science. The-text-books seem quite clear that such opinions may be given where the competency of an expert offered as a witness is under consideration. The court is at liberty to examine other witnesses to aid it in determining whether he is qualified to draw correct conclusions upon questions relating to the science or trade in relation to which he is examined. * * * The witness is: usually allowed,1 after slight evidence as to his qualifications has been given, to testify in the character of an expert, it being left to counsel on the cross-examination and otherwise to show the ■absence of the qualifications and the consequent worthlessness of his testimony.” Eogers on Expert Testimony, § 17. The rule is thus stated by Lawson : “ The qualifications of persons offering themselves as experts may be tested by the opinions of others in the same calling.” Lawson, Expert and Opinion Evidence, 286. It would seem, therefore, upon reason and authority, that the allowance of the testimony objected to was not improper.

The second and last exception is to the exclusion of the testimony of the witness Noll, as to the value of the work which he had done in defendant’s premises previous to the plaintiff’s work. This did not call for an opinion as to the value of the work which was the subject of this action, but was offered as a basis of comparison between the plaintiff’s charges and the amount which the witness thought reasonable for other work done by other parties. There is nothing in the case to show tho+ the work in each case was so much alike that there was any basis of comparison. So that even if such evidence were proper to institute ■comparison, exclusion of the testimony was not error.

The judgment should be affirmed, with costs.

Bischoff, J., concurs.