author: Baeeett, J. : Davis, P. J.: Brady, J.

text:
    JAMES BROWN, Appellant, v. ALMON W. GRISWOLD, Respondent.

      Mature of a pa/rty to pay costs — one party cannot tajee advantage of the default of another, while the formers proceedings a/re stayed heaa/use of his fail/wre to pap costs— Oode of Civil Procedure, see. 779.
    This action was noticed for trial by both parties for the February Term, 1878. In June, 1878, a motion made by the defendant was denied, with ten dollars costs, which have never been paid. 'In February, 1879, the action was reached upon the calendar,, and on the plaintiff’s failing to appear, a judgment by default was taken by the defendant.

      Held, that the failure of the defendant to pay the costs awarded against him, operated, under section 779 of the Oode of Civil Procedure, to stay all proceedings on his part; that he had no power to move for a dismissal of the complaint, and that the judgment should be set aside as entirely unauthorized.
    (Brady, J., dissenting.)
    Appeal from an order entered on the 21st day of July, 1880, denying the motion of the plaintiff to set aside the judgment herein entered against him, and all proceedings subsequent thereto.
    This action was regularly noticed for trial by both parties for the February Term, 1878. In June, 1878, a motion made by the defendant for leave to renew a motion to vacate an order of arrest was denied, with ten dollars costs, which were not paid. In February, 1879, the action was reached on the calendar, and the defendant, on the plaintiff’s failure to appear, toot a judgment by default, which was entered February 25,1879. The defendant claimed, ana the plaintiff denied, that notice of the entry of this judgment was served upon June 4, 1879. In July, 1880, the plaintiff made this motion to vacate the judgment.

      J. Grata Brown and Geo. 8. 8edgwiok, for the appellant.

      G. A. BwnMe, for the respondent.
   Baeeett, J. :

I am imable to concur in the conclusion arrived at by my brother Brady./'In my judgment the defendant’s proceedings were stayed by the non-payment of the costs awarded by the order of June 19, 1878. It was before that date that plaintiff noticed the cause for trial. Indeed, such notice was for the prior February Term. 'That notice may have been a waiver of any statutory stay resulting from the non-payment of motion costs previously awarded, so far at least as to enable the defandant to prepare for trial and to meet his adversary thereon. But-1 am at a loss to perceive how such a notice could amount to a waiver with respect to costs subsequently imposed. Can it be possible that where a party once notices a cause for trial, the statute ceases to be operative with regard to the costs of all future motions. It seems to me not. I cannot but think that the defendant had no power to move the dismissal; that such dismissal was no mere irregularity, but a direct violation of the statutory stay, and that it should be set aside as entirely unauthorized. /

Upon the other point, I think the service of notice of entry of judgment is in such doubt, upon the affidavits, that it ought not to be found as a matter of fact. Before a party should be absolutely shut out, because of the lapse of the year, notice should be most clearly established. Then too the course pursued by the defendant seems to point to a belief, upon his part, in a formal but really ineffective service upon the attorney. Else why did he wáit wntil the expiration of the yearr before giving the plaintiff unmistakable notice, by sending the sheriff with an execution ?

I am in favor of reversing the-order and granting the motion to set aside the judgment of dismissal, but, as there was some negligence upon the part of the plaintiff’s attorney, without costs.

Davis, P. J.:

I concur with Barrett, J. I think, for the reasons assigned by him, the order appealed from should be reversed and the motion granted, but without costs.

Brady, J.

(dissenting):

The judgment sought to be set aside was entered on the 25th of February, 1879, the notice of which entry was not served, however, until the 4th of June, 1879. The motion to set it aside was not made until July, 1880, more than one year after notice of its existence had been served, as already stated.

Upon the presentation of the motion the plaintiff sought to show that the notice had not been served by negative evidence, which was answered by affirmative evidence on the part of the plaintiff showing the service of the notice.

The difficulty seems to have arisen from the fact that the plaintiff’s attorney had substantially abandoned the office which he had formerly occupied, and to which, according to designation, the papers in the case were to be sent. No notice of the abandonment seems to have been served on the attorney for the defendant; and it was not proved that his attention was called to it in any way, and, therefore, it does not appear that he had any notice of it. The object of this struggle, doubtless, was to show that the time limited by the Code under sections 724 and 1282 had not, in fact, expired, which would have been the case had notice of the judgment not been served, as alleged, on behalf of the defendant. This dispute seems to have been properly disposed of in the court below in favor of the defendant. The affirmative proof on all the rules of evidence is entitled to the superior consideration.

The judgment was obtained under what may be regarded as peculiar circumstances. The cause was noticed for trial for February, 1878, and, it would seem, by both parties. In June, 1878, a motion made by the defendant was denied, with ten dollars costs, which were not paid. The action was reached upon the calendar in February, 1879, and the plaintiff failing to appear default was taken and judgment docketed for costs. The plaintiff insists that the defendant was under a stay, according to the provisions of section 779 of the Code, for having omitted to pay the costs awarded against him, and that the court, therefore, had no power to grant the judgment which was directed. This view is erroneous. The plaintiff having noticed the cause for trial had a right to move it on, and the defendant had the right to prepare for the trial; and if he desired to avoid the judgment by default it was his duty to watch the progress made upon the calendar and be in court when the cause was called. If the plaintiff desired to avoid the default it was equally his duty to watch the progress upon the calendar and appear in court to urge his cause. Having noticed the cause for trial it was brought on upon his motion, and not upon the motion of the defendant, and the latter had the right to avail himself of all the advantages arising from tbe negligence of tbe plaintiff. The plaintiff’s attorney seems to have relied upon the stay as one effectually preventing tbe defendant from resisting bis movements in tbe. cause and, therefore, to have omitted to watch tbe progress upon tbe calendar, which is tbe chief reason assigned for not knowing of tbe call of tbe case and tbe disposition made of it at tbe circuit. Tbe result must be regarded as one occasioned by negligence, because the plaintiff’s attorney appears to have abandoned tbe case, if not absolutely, at least to such an extent that be knew nothing of its disposition for more than a year after it bad been disposed of at circuit by a judgment upon default. I think we are not called upon under such circumstances to relieve tbe plaintiff from tbe judgment which was thus obtained, particularly as it does not prevent him from bringing another action.

Tbe order should, therefore, be affirmed, with ten dollars costs and tbe disbursements of this appeal.

Order reversed, motion granted, without costs.


source: Caselaw Access Project

author: Beady, J.:

license: Public Domain

text:
    GEORGE THOMPSON, as Executor and Trustee of CHARLES WATERS, Deceased, Appellant, v. EMILY F. CONWAY and others, as Executors and Trustees of MARTIN WATERS, Deceased, Respondents.

      Legacy — when nested — when it passes to the children of the legatee, on his death before the time prescribed for its payment.

    The defendants’ testator died in 1871, leaving six children, all of full age except the youngest, Frances. One child, Charles, died in 1872, leaving a son and daughter, his'only children and heirs-at-law. By his will, the testator devised all his estate-to his executor, to manage the same and collect the rents and income thereof until the death or majority of Frances, and to divide and apportion the said income among his children, as therein provided. He appointed two trustees to receive $600 annually and pay the same, or a part thereof, to the use and benefit of his son Charles. Upon the death or majority of Frances, he directed his executor to divide his estate into thirty-four equal parts or portions, and give six of such parts to the said trustees to be retained or paid to and for the use, benefit and proper maintenance of his said son Charles until he should acquire habits of industry, steadiness and frugality, when and whereupon they might pay the whole sum, or any balance then undisposed of, to his son Charles, to he used and disposed of as might he right and proper.

      Held, that the legacy given to Charles was a vested one, and that upon his dying during the minority of Frances his interest therein passed to his children.
    Appeal from a judgment, entered upon the trial of this action at Special Term, dismissing the complaint upon the merits.

      Demiel T. Robertson, for the appellant,

      Wm. E. Fullerton, for the respondents.
   Beady, J.:

This action was brought to compel an accounting and payment by the respondents, as executors and trustees under the will of Martin Waters, deceased, of the legacy and bequest given by the will of the latter to Charles Waters.

The testator died in February, 1871, leaving him surviving five children, all of whom were of full age except Frances.

Charles Waters, on behalf of whose heirs this action was brought, died in November, 1872, leaving a son and a daughter his only children and heirs-at-law.

On the trial it was conceded that the facts alleged in the complaint were true, the only question in dispute arising under the will of Martin Waters as to its true interpretation in reference to his son, Charles, and the court found that the representatives of the latter were not entitled to the relief which they sought. The will devised to his executors all his estate for the uses and purposes specified with full power to convert all his personal estate, and all the rents of his real estate, into safe paying securities; and to apportion and pay therefrom yearly, and every year, the sums, or portions thereof, to his children, respectively, from time to time as 'directed and required by the will, and to continue to pay the same until his youngest daughter, Frances, if she should survive, should have attained the age of twenty-one years ; and if she did not survive to such age, then until the time of her decease. By the second clause of his will he said: “And I do hereby specify the division and apportionment, and I do hereby direct my said executors to divide, apportion, set off and transfer and pay the same to my said children, respectively, and to do the same in the following manner.”

He then proceeded to name the portions of each child, directing the payment to each of them per annum, giving to Charles Waters $600 per year and constituting his daughter, Sarah Lynch, and a Mr. Brennan his trustees for the purpose of receiving the yearly allowance given to his son, Charles, which they were to pay to his use and benefit, or a portion thereof, and in such manner as they might deem proper.

By his third clause he directed that if Frances, his daughter, should survive and attain the age of twenty-one years, or in case of her decease prior thereto, his executors, or survivors of them, should dispose of his real and personal estate and collect all the moneys derived therefrom, and then divide and apportion the whole amount into thirty-four equal parts or portions, and pay over to his children certain portions, including his son Charles, to whom he gave six of such equal parts, which he further directed to be in like manner set of£ and paid in the first instance to his trustees already mentioned for the sole use and benefit of his son Charles, the same to be retained or paid to and for the use, benefit and proper maintenance of his said son until he should acquire habits of industry, steadiness and frugality, when and whereupon the said trustees might pay the whole sum or balance then undisposed of to his son Charles, to be used and disposed of as might be right and proper.

The learned justice in the court below, seems to have disposed of this case chiefly upon the proposition that the testator intended that the heirs of his son Charles, after the death of the latter, should not participate in the annuity given to Charles during the minority of Frances, and that such intention indicated the y further intention to exclude the heirs of Charles from any particN pation in the estafe. In other words, that it was the intention/of the testator that the heirs of Charles, if he died during the minority of Frances, were not to succeed to the legacy which was givg<n him in case he survived, or she arrived at the age of twenty-uyie years during his life. This is regarded as a view of. the willy which its provisions, considered together, does not at all justify, y

It was clearly the intention of the testator to /onfide to the trustees named by him, the control of the arfnuity given to Charles during the minority of Frances, and that seems/to have been predicated of Ms conviction that his son was not distinguished either for habits of industry, steadiness or frugality. It is true that in that part of the third clause which 'makes the division, the word “ heirs,” relating to the portion set apart for Charles, is not used; but it will be perceived on a perusal of the whole will, that no disposition is made of any remainder which might by any possibility be left, so that the portion set apart for Charles, if the construction placed upon it by the learned judge below is sustained, is not appropriated by it. It may be presumed to have been fairly within the intention of the testator to provide for the family of Charles, in the absence of anything to the contrary contained in the will; and more particularly because, from his convictions of the habits of his son, he must have forseen that he would be personally of little service in supplying them with their wants. This is evidenced, indeed, by the conclusion of the third clause, by which the testator, even if all the circumstances necessary to the payment of the portion set apart happened, authorized a delay in the payment of it to him, and the use of it for his maintenance, until he acquired the habits indicated; when the trustees were authorized to pay the whole sum, or whatever remained undisposed of, to him.

These features of the will, when considered with reference to the fact that there is no gift of the rest and residue of his estate, seem to make it clear that in the testator’s mind, when the will was signed by him, he regarded his whole estate disposed of, and to the persons named by him as the objects of his bounty, and for the sums stated.

The gift of the legacy of $600 per annum, therefore, followed by the directions to pay over to Waters his share of the estate on the \death or attaining of her majority by Frances Waters, operated as añ,.absolute gift of the fund, which, on the death of Charles Waters, passed to his personal representatives, subject to the execution of the mists in favor of his children. (Paterson v. Ellis, 11 Wend., 260; Hatch v. Bassett, 52 N. Y., 362.)

The law favors the vesting of estates, and not the contrary; and it seems to pe well settled that when there is a gift of a legacy, a subsequent and independent direction for the payment on the happening of an event named does not defer the vesting of the legacy, but only postpone? the payment; and, if the legatee die, therefore, during tbe trust term, Ms representatives are entitled to the legacy. (Loder v. Hatfield, 71 N. Y., 96.)

It should be borne in mind that although an intention to disinherit an heir, when expressed in plain and unambiguous language, must, by the law of the land, be carried out whenever the' courts are called upon for that purpose; yet nevertheless, such a design will not be imputed to a testator by implication, nor will it be maintained when he uses language, capable of a construction to the contrary, though doubtful in its character. In other words, the courts do not favor the process of disinheriting an heir, and will avoid such a result unless the intention to accomplish it by the testator is clearly expressed. (Low v. Harmony, 72 N. Y., per Rapallo, J., 414.)

The conclusion from these views is, that the learned justice in the court below erred both on the question of intention and construction, and that the plaintiffs are entitled to succeed to the rights which were acquired by their testator, Charles "Waters, under the will. Ordered accordingly.

Barrett and Daniels, JJ., concurred.

Judgment reversed.


author: Barrett, J.:

text:
    LUDWIG H. KELLER and others, Appellants, v. ABRAHAM STRASBURGER, Respondent.

      Sale of goods on a c/redit — insolvency of the debtor' is not a waiver of the credit— when the plaintiff in order to recover must establish frcmd on the part of the defendant — charge of the court as to.

    In this action, brought to recover the price of goods sold and delivered to the defendant, the defense was that they were sold upon a credit which had not expired at the time when the action was commenced. To this the plaintiffs replied, that the sale was procured by fraud and that the credit had been waived. The only evidence of waiver was the avowed insolvency of the defendant within the time for which the credit was given, followed by a notice to the plaintiffs of his inability to pay the debt.

      Held, that this did not amount to a waiver of the credit.

      The court, in charging the jury, called their attention to the fact that an execution against the person of the defendant could be issued upon a judgment entered upon a verdict in favor of the plaintiffs.

      Held, no error; that it only served to impress upon the jury the fact that it was essential to the plaintiffs’ right to recover, to establish fraud on the part of the defendant.
    The court charged that “ if the defendant bought the goods in good faith, supposing he would be able to pay for them when the credit expired, even if he knew he could not pay all his debts at that time, but would be able to work his way out,” the plaintiffs could not recover.

      Held, no error.
    Appeal from a judgment in favor of the defendant, entered on the verdict of a jury.

      A. G. Ycunderpoel, for the appellants.

      Morris Goodhecurt, for the respondent.
   Barrett, J.:

This action was for goods sold and delivered. The defense was that the goods were sold upon a credit of four months, which credit had not expired when tbe action was commenced. Tbis was conceded by tbe plaintiffs, who replied that there was fraud in tbe purchase and also a waiver of the credit. The only evidence in support of the latter position was tbe defendant’s avowed insolvency within tbe four months, followed by notice to tbe creditors of bis inability to pay their claims. But tbis was not a waiver of tbe credit. The defendant’s financial condition had nothing to do with bis obligation. Tbe contract was not rescinded nor varied by bis inability to respond. It remained unchanged and in full force. There is no such doctrine as that in substance contended for, namely, that all debts payable im, fut/wro become payable í/n, presentí whenever the debtor acknowledges that be has no means, and will be unable to satisfy them. Tbe court was right in refusing to direct a verdict for tbe plaintiffs upon tbis ground. The question of fraud was fairly submitted to tbe jury, and they have found for the defendant.

The exceptions to tbe charge are untenable. There was no impropriety in calling tbe attention of the jury to the fact that an execution against the person could follow a verdict for the plaintiff. That was perhaps the only way in which they could be made to realize the precise nature of the question upon which they were to pass. It is not always easy for a jury to give logical effect to the evidence in this class of cases.

Their verdict is apt to be more or less influenced by the seeming hardship of deciding in favor of a defendant, who, beyond all question, has had and enjoyed the plaintiffs’ goods without paying for them. The difference between actions ex conúractu and actions ex delicto, cannot, therefore, be too clearly pointed out to them nor too forcibly illustrated.

In the case at bar the plaintiffs chose to bring their action before the credit had expired. But of course this credit had expired long before the trial, so that the practical question before the jury was, whether the plaintiffs should, after losing their goods, be mulcted in a bill of costs and commence all over again. The question then was whether the action was prematurely brought, and this depended upon whether the plaintiffs were justified in rescinding the contract because of the defendant’s fraud. Experience teaches us that, under such circumstances, the tendency of a jury is to ignore legal justice and to do just about what they think right. We know no better way of keeping them in the true path than to impress upon their minds the difference between the consequences attaching to a verdict for the price of the goods under the terms of the contract and a verdict based upon'its recision for fraud. There is-no doubt that an execution against the person could ha/oe been issued in case the verdict had been the other way. The plaintiffs’ counsel in excepting to the charge referred to an order of arrest as “ having been issued ” in the action, but whether this was so or not, one could certainly have been issued upon the verdict. In either case an execution against the person would follow under section 1487, sub. 2 of the Code of Civil Procedure.

With the charge that the plaintiffs could not recover if the defendant bought the goods in good faith supposing he would be able to pay for them when the credit expired, even if he knew he could not pay all his debts at that time, but would be able to work his way out,” we have no fault to find. It was in substantial accordance with well settled rules. (Nichols v. Pinner, 18 N. Y., 295; Anonymous, 67 id., 598; Roebling v. Duncan, 8 Hun, 502; John son v. Monell, 2 Keyes, 655; Chaffee v. Fort, 2 Lans., 81.) Nor was there any error in refusing to charge “ that an intent to defraud existed, is not to be rejected by the positive denial of the defendant.”

What was meant by this obscurely worded proposition is not entirely clear. With that observation we might rest. But construing the request as counsel would now have us, we think it was properly refused for the reason that it was within the province of the jury to give such effect to the defendant’s testimony as they thought proper. Then, too, the court had charged sufficiently upon the subject, and the tendency of the request was simply to confuse.

The judgment should be affirmed, with costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.


text:
    EDWIN SMITH, as Executor, etc., Respondent, v. CORNELIUS POILLON and RICHARD POILLON, Appellants.

      Indorser of note — notice to — when it need, not he sent hy the fin'St mail.

    This action was brought by the second against the first indorsers of a promissory note, made by a corporation payable at its office in the city of New York. On the day of its maturity, March 4, 1875, separate notices of protest to the plaintiff, the defendants and the third and last indorser, the cashier of a bank at Thomaston, Maine, were prepared by a notary in New York, inclosed in one envelope and mailed to the cashier at Thomaston. The notices were received at that place after banking hours on the fifth, and by the cashier on the morning of the sixth, by whom they were forwai’ded by the next mail to the plaintiff, who lived at Warren, a place distant about four miles from Thomaston. The plaintiff received them on the evening of the sixth, and on the next morning went to Thomaston for advice as to his proper course. In pursuance of the advice so received he mailed at Thomaston a notice addressed to the defendants at New York by the second mail of that day, which left Thomaston at 1:40 p. m. and passed through Warren at 2 p. m. The first mail left Thomaston at 10:10 A. m., and closed at Warren at 9:30 a. m. The plaintiff, who was upwards of eighty years of age, was a lawyer by profession but had been out of practice for twenty-five years.

      Held,, that the plaintiff was not chargeable with negligence in not posting the notice in time for the first mail leaving W arren on the morning of the seventh, and that the defendants were liable upon the note.

      Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Albert A. Abbott, for the appellants.

      James MoKeen, for the respondent.
   Barrett, J.:

This action was against the first indorsers of a promissory note made by a corporation called The McNeal Coal and Iron Company. The note was made payable at the office of the company. That office, at the date of the. note, was in the city of New York. The defenses were: First. That the note was not presented at maturity, according to its tenor, at the company’s office; and, second, that the notice of non-payment was insufficient to charge these indorsers. As to the first defense, we think the verdict was in accordance with the facts. The notary testified, generally, that he presented the note at the office of the company, 111 Broadway; he had frequently presented drafts at the same place; the name was still upon the door, and there was a person in charge of the office. This was sufficient prima facie. The answer to -it failed to carry conviction. No officer of, or person connected with, the company was examined. The defendants contented themselves with calling the superintendent of Trinity building and an ex-president of the company. The former knew nothing positively upon the subject. In fact, the company was never a direct tenant of the building. ITe, however, remembered the fact of the company being in the building as the occupant of an office with another party. The former president stated that, at the maturity of the note, the company had no office in the building, nor indeed any office at all in New York. How he knew this was not disclosed, nor did he give any further information about the company or its whereabouts. But little weight could be attached to such testimony. It was conspicuous for its reserve, when entire frankness and fulness of statement were called for. How did he know that the company had no office at 111 Broadway on the 3d of March, 1873 % When, if ever, did it move from there ? "Where did it move to ? Where was it upon the date mentioned? What, in fact, had become of it? These were questions upon which light should have been thrown, if the defendants expected the jury to give unqualified credence to the witnesses’ testimony. But the effect of this testimony, even if it be given the weight claimed for it, was simply to dispense with the necessity for presentment and demand. If, as the witness says, the company had no office at all in New York — by which, in the absence of explanatory limitation, we are bound to understand New York State — it could properly be treated as a natural person who had removed from the State. In that aspect of the case, the indorser was chargeable, without presentment or demand. (Foster v. Julian, 24 N. Y., 28.)

We now come to the question, as to the sufficiency of the notice. The defendants resided in this city. They were, as we have seen, the first indorsers. The next name on the back of the note was that of the plaintiff’s testator, Edwin Smith. Mr. Smith resided at a place called Warren, in the State of Maine. Underneath Mr. Smith’s name appeared the words, “ Pay Gr. E. Baker, Esq., or order, O. Robinson, cash.” Mr. Robinson was the cashier of a bank at Thomaston, Maine, a place distant about four miles from Warren. The New York notary enclosed all the notices of protest; that is, a separate notice for the defendants, for Smith and for Eobinson, in one envelope, and mailed them direct to “ O. Eobinson, cashier, at Thomaston, Maine.” This, we think, upon the evidence before us, was done in due season, upon the 4th day of March, 1873. The notices reached Thomaston after banking hours upon the fifth, and were probably delivered to Eobinson on the morning of the sixth. He forwarded them by the next mail, and they reached Smith at Warren upon the night of the sixth. The next morning, Smith and his son went over to Thomaston and the former took counsel as to his proper course. The result of the advice which he received was, the sending of notice to the defendants by the second mail of that day, which left Thomaston at forty minutes past one. This mail passed through Warren at 2 p. m. The first mail on that day left Thomaston at ten minutes after ten and Warren at half-past ten. It closed at Warren, about half-past nine. The general rule upon this subject is, that the holder need only give notice to the last indorser, and that all parties to the note are chargeable if they receive notice, in due course, from their immediate subsequent indorsers. (West River Bank v. Taylor, 34 N. Y., 128.) Each indorser has until the following day after he receives notice to notify the next previous indorser. We have no doubt that, up to the time of the receipt of the notices by Smith on the night of the sixth of March, every proper step had been taken. But the point made by the defendants is, that Smith should have sent the notice by the first mail, which left "Warren on the morning of the seventh, and that, because it was not so sent they are discharged.

We cannot think that this contention is well, founded. The strict rule thus invoked has been applied, mainly in cases where there was but one mail a day, and where, consequently, the day was lost by the failure to post the notice before the closing of such single mail.

Some of the authorities and text writers hold that, if two mails leave the same day, on the route to the place of the indorser, it is sufficient to deposit the notice in the post-office in time to go by either mail of that day, inasmuch as the fractions of the day are not counted. (Lawson & Covode v. The Farmers’ Bank of Salem, 1 Ohio State, 206, and cases there cited; 2 Daniel on Negotiable Inst., 84.) But the weight of authority in this State would seem to require the deposit of the notice in time for the first mail, closing after the commencement of reasonable business hours, which could be availed of with ordinary diligence. (Smedes v. The Utica Bank, 20 Johns., 372; Mead v. Engs, 5 Cow., 303; Roward v. Ives, 1 Hill, 263.) There is an absence of agreement in the cases, as to what constitutes reasonable business hours. In one locality, half-past nine a. m. was thought unreasonably early; while in others, it was held that, where the mail closed at ten minutes past nine a. m., the notice should have been sent by it. (See on this head Haskell v. Boardman, 8 Allen, 38; Lawson v. Farmers' Bank, supra ; Burgess v. Freeland, 24 N. J. L., 71; Bankes v. Salter, 4 Bing.; 715; 1 Smedes & M., 261; Sussex Bank v. Baldwin, 2 Harrison [N. J.], 487; Chick v. Pillsbury, 24 Me., 458-466.)

The question after all is, whether the party used reasonable and ordinary diligence? (Edwards on Bills, 618; Howard v. Ives, supra.) And the usages of the place are to be considered in determining wbat is sucb diligence (Edwards on Bills), so naturally are all tb.e surrounding circumstances. Now, here we find, that Smith was upwards of eighty years of age; that he received these notices at night, and that the first mail closed next morning about half past nine. Smith was a lawyer by profession, but had been out of practice for twenty-five years. We do not think that this aged man was chargeable with negligence in not posting the notice in time for the mail leaving by the early train. There was no delay thereafter. The counsel testifies that there was not time during the business hours of the morning to prepare the letter to the defendants (and notice) for mailing, before the first mail of that day. Under the circumstances, we think Mr. Smith exhibited great activity, and so long as he did not lose the day he should not be deprived of his just remedy against these indorsers.

We are satisfied after full consideration, that these defendants were properly charged, and that the judgment should be affirmed, with costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.


text:
    ENOCH MORGAN’S SONS’ COMPANY, Respondent, v. BENJAMIN F. TROXELL and others, Appellants.

      Trade-ma/rlc — what it may consist of — cha/raeter of buyers to be considered, in determining whether they will be deceived.

    A trade-mark is not necessarily limited to a device or name, but may consist of any marks, forms or symbols which serve to designate the true origin or ownership of the article.
    It is sufficient to justify the interference by injunction of a court of equity, to show that there is a fraudulent intention on the part of the defendants to palm off their goods as those of the plaintiff, and that such intention is being -carried into execution.
    In determining whether buyers are likely to be deceived by the defendants, the character of the article sold, the use to which it is to be applied, the kind of people by whom and the manner in which it is bought, are all to be considered.
    The plaintiff had for many years sold a polishing soap, put up in cakes, wrapped in paper, coated with tin-foil, and having around the edge of each cake a blue paper hand, with gilt letters printed thereon. On each cake was stamped the words “Enoch Morgan’s Sons’ Sapolio.” Thereafter the defendants prepared and sold a soap which they put up in cakes, wrapped in tin-foil, and having a blue paper band around them, similar to those used by the plaintiff, upon which were stamped the words “Troxell’s Pride of the Kitchen Soap.” It appeared that the defendants sold and delivered the soap so put up, to grocers, with the intent that it should he, and the same was, in many cases, sold as “ Sapolio.”

      Held, that the defendants should he enjoined from so preparing and selling the said soap.
    Appear from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought to restrain the defendants from using a trade-mark alleged to belong to the plaintiff.
    The referee found among other things, that the plaintiffs and their predecessors had invented and prepared a new manufacture of soap, especially designed for cleaning and polishing; and to indicate the origin and genuineness of their said fabrication and manufacture, they originated, devised, and for the first time applied as a trade-mark the word “ Sapolio, ” a device of a human face reflected by a polished pan; a uniform size and form of cake;. a uniform cream color therefor, the stamp thereon of the words, “ Enoch Morgan’s Sons’ Sapolio; ” an envelope or wrapper therefor of Argentine foil covered manilla paper, having printed on the inside thereof, in black type upon a cream colored ground, certain devices and words, and a band of ultramarine blue paper for encircling the said cakes when so enveloped and wrapped, on which certain words were printed in gold letters; and a style of packing said cakes, so enveloped and bound, in boxes twelve inches long, ten inches wide and nine inches deep, in which such cakes were packed upon their sides, exposing to the eye of the buyer the Argentine foil paper crossed by said band in printed gold letters. Having invented said manufacture, and having devised and applied thereto the said trademark, the said firm immediately commenced to advertise the same very extensively and expensively, and in the said advertisements called the attention of the public to their trade-mark, and to the specific details thereof, as the distinguishing marks which they had originated and appropriated to identify the said soap as the genuine and proper manufacture of the said firm, and by means thereof assured the public desiring to purchase the manufacture of the said firm, that if they purchased soap so marked they would purchase the soap which they desired; and by means thereof also endeavored to assure for themselves the right that the soap so bought by the public should be sold for the profit and benefit of the said firm. The said soap, by reason of its intrinsic value, and of the said advertisements, became and was, and is, widely known under the marks aforesaid, and so bearing the same, has since been and is now lai’gely adopted, purchased and used by the public as the genuine soap so first manufactured and introduced by the said firm; and the business of manufacturing and selling the same under the marks aforesaid has been and is largely pecuniarily valuable. That the said defendants have, since the 1st day of January, 1874, well known the premises, and since that date have wrongfully and fraudulently endeavored, and are now constantly in like manner endeavoring unlawfully, to avail themselves of the benefit of the said advertisements, and of the popularity and reputation of the said manufacture, and of the trade-mark under which the same has been and is now sold, and have unlawfully and fraudulently simulated the said cake, and simulated and appropriated the said mark, and are now so unlawfully and fraudulently simulating the same and each thereof, and are now, and for a long time past have been daily engaged in unlawfully and fraudulently selling their said, simulated manufacture under said appropriated marks, as and for the genuine manufacture of plaintiff; and said simulated manufacture and appropriated trade-mark have a tendency to deceive, and do deceive the public, exercising all the caution which purchasers usually exercise, and induce it to purchase said simulated manufacture of the defendants, to the great deception of the public, and to the great injury of the plaintiff. The said defendants now expose and offer for sale, and sell soap in said simulated form, and with said simulated color, in envelopes and wrappers, and have crossed and now cross each cake of soap when so enveloped and wrapped with the ultramarine blue band and gold letters. The said defendants, in addition to the deception and fraud upon the public, and upon the plaintiff practiced by said fraudulent and deceptive simulation, and as the means and mode of getting tbeir said manufacture upon tbe market, and to induce tbe retail grocers by whom it is sold by retail to tbe various persons wishing to purchase for use tbe said manufacture of tbe plaintiff, to purchase of tbe defendants tbeir said manufacture, and sell tbe same by retail to tbeir customers and to tbe pubbc, as being tbe said manufacture of said plaintiff, represented to said retail grocers, and induced them to believe that tbe public would not know tbe difference between tbe two, and that tbe defendants’ said manufacture could be sold by them as being that of tbe plaintiff wherever tbe latter could be sold; and so represented and induced said retail grocers to believe, with tbe intent that they should, and in tbe expectation and belief that they would, fraudulently sell to tbeir customers and tbe pubbc wishing to purchase, and applying to purchase tbe said manufacture of tbe said plaintiff, tbe said manufacture of tbe said defendants as being, and believing that it was tbe said manufacture of tbe said plaintiff. And tbe said retail grocers have at all times, in pursuance and execution of tbe said fraudulent intent of said defendants, sold, and now continue by means of said deceptive and fraudulent simulation to sell tbe said manufacture of tbe defendants, purchased by them of tbe defendants as aforesaid, and upon the representations aforesaid, to tbeir customers and to tbe public, as being tbe said manufacture of tbe said plaintiff, and did and do thereby deceive and defraud such purchasers, who are thereby fraudulently induced to bebeve, and do believe, that they are purchasing tbe said manufacture of tbe said plaintiff. Tbe said several acts of tbe said defendants were deliberate, willful and fraudulent in intent, and actually misled and deceived, and contiune to mislead and deceive the pubbc, and defraud tbe plaintiff.

      E. More, for the appellants.

      John H. Hull, for tbe respondent.
   Barrett, J.:

My impressions upon tbe argument of this' case were that tbe referee bad gone too far. There seemed to be considerable dissimilarity between tbe respective packages of “ Sapobo ” and “ Pride of tbe Kitchen” submitted for our examination. It did not appear probable that any person of intelligence could, even upon a casual inspection, mistake tbe one for tbe other. Upon tbe one, “ Enoch Morgan’s Sons’ Sapolio,” printed in gilt letters, met tbe eye. TJpon tbe other, “ Troxell’s Pride of tbe Kitchen Soap.” Indeed, tbe principal similarity, aside from tbe form and size of tbe cake, was tbe wrapper of tin-foil paper, encircled by a band of ultramarine blue. Tbe further question suggested itself to my mind, could tbe plaintiffs appropriate this peculiar combination of tin-foil paper, with an ultramarine blue wrapper and gilt letters printed thereon, and by applying it to scouring soap, secure a trade-mark therein ?

A careful examination of the evidence and further reflection have removed these impressions, and led me to tbe conclusion that tbe learned referee’s judgment was not only just but sound in law. Whatever there is of dissimilarity in tbe two articles is but seeming. While there is an almost ostentatious display of variation in matters not likely to attract the attention of tbe casual purchaser, there is substantial similarity in the picture to which the eye has become accustomed. In this connection, we must not lose sight of the character of the article, the use to which it is put, the kind of people who ask for it, and the manner in which it is ordered. Very broad scene painting will deceive an ignorant, thoughtless or credulous domestic, looking for an article in common and daily use, and of no particular interest to her personally. The same kind of deception would be instantly detected by an intelligent woman of the world, looking for her favorite perfume, soap or dentifrice, or by a man of luxurious tastes, inquiring for some special brand of champagne. Now, the evidence in the case is clear and abundant that the “Pride of the Kitchen” was sold by many grocers as “Sapolio,” and that many housekeepers were actually deceived. Nor can there be any doubt, we regret to say, that the “ Pride of the Kitchen ” was delivered by the defendants to these grocers, with intent that it should be so sold as “Sapolio.” It was thus the defendants’ purpose to take advantage of the market secured by the industry of the plaintiffs and their predecessors, and by a large expenditure of time and money. They thus determined, by selling their goods as the goods of the plaintiffs, to build up a business in scouring soap upon their neighbors’ labor and capital. It would be a reproach to the administration of justice if the execution of this purpose could not be checked.. It is said that the plaintiffs cannot monopolize the use of tin-foil nor of blue paper. This is quite true, but it does not meet the question. The plaintiffs do not seek to monopolize tin-foil nor blue paper. Any one may use these articles and use them freely. They may ba applied to any other soap. They may even be applied to scouring soap. All that the plaintiffs ask is that they shall not be applied to scouring soap in such form and manner, with such peculiar relations to each other and to the cake, as to deceive that special public which relied upon similar methods long since adopted by the plaintiffs and their predecessors.

A trade-mark is not necessarily limited to a device or name, nor are we prepared to admit that a party cannot be protected in the combined arrangement of form and distribution of color with which his goods are put up and placed before the public, especially where there is a fraudulent purpose, and where customers have in fact been deceived. If the plaintiffs cannot be protected in a pressed and stamped cake inclosed in a tin-foil wrapper, encircled with an ultramarine blue band, printed in gold,” neither can they, though other and still more novel, distinctive and striking forms and colors be added. There might be double and treble bands of various colors and sizes, crossing each other in different places, with the margins cut or stamped in different shapes and styles, yet if the defendants’ contention be well founded the plaintiffs could not be protected against their fraudulent reproduction. According to this doctrine, it is only necessary for the dishonest trader to avoid the use of some special word or device to which the technical name trade-mark has been given, and to gain his piratical end by imitating everything which really conveys to the public, belief in the genuineness of the article sought. It must have been this shallow as well as unworthy idea which was in Troxell’s mind, when he declared his purpose of imitating “ Sapolio ” as closely as possible without absolutely making himself liable.

The law of trade-marks has been gradually expanding so as to meet just such cases. The courts in a long and unbroken line of decisions have endeavored to uphold and enforce commercial morality, and have afforded their protection to honest enterprise and skill. It will not be necessary to go over these cases. They have, in fact, become too numerous for extended analysis. It will be sufficient to cite a few of the prominent ones (Popham v. Cole, 66 N. Y., 74; Colman v. Crump, 70 id., 578; Gilman v. Hunnewell, 122 Mass., 148 ; Woollam v. Ratcliff, 1 H. & M., 259 ; Hope v. Evans, 3 L. T. [N. S.], 294; Wotherspoon v. Currie, 27 id., 308; Perry v. Truefitt, 6 Beav., 66; Croft v. Day, 7 id., 84 ; Williams v. Johnson, 2 Bosw., 6), and to state tbe general result which has been arrived at, so far as may be applicable to the case at bar. We deem it then to be well settled upon authority, that to justify the interference by injunction of a court of equity, it is sufficient that there is a fraudulent intention of palming off the defendants’ goods as those of the plaintiffs, and that such intention is being carried into execution.

Caswell v. Davis (58 N. Y., 223) is supposed by the appellants to conflict with this position, but we think without reason.

All that was held in that case was, that there can be no trademark in words or phrases in common use, which merely denote the character, kind, quality and composition of an article. Consequently the name “Ferro Phosphorated Elixir of Calisaya Bark” could not be protected. But there was no suggestion that the defendant would have been permitted to palm off upon the public his own preparation of Ferro Phosphorated Elixir of Calisaya Bark, as that of the plaintiffs, had the latter given their preparation any name exclusively indicative of origin or maker. If the plaintiffs there had called their medicine “ Caswell’s Ferro Phosphorated Elixir of Calasaya Bark,” or “ Caswelline,” the defendant certainly would not have been permitted to palm off his elixir as that thus characterized. Nor would he have been permitted by the imitation of Caswell’s labels, signs, marks or other symbols to effect the same purpose. The Caswell case simply applies the well-known doctrine that a trade-mark cannot consist of anything which merely denotes the name or quality of the article, and that, as was said by Judge Dube, in the Amoskeag case (2 Sand., 609): “ It is not enough that the public may be misled, or has 'been misled. As already intimated, the resemblance must arise from the imitation or adoption of those words, marks or signs which the person who first employed them had a right to appropriate as indicating the true origin or ownership of the article or fabric to which they are attached.” It does not disturb the rule that a trade-mark may consist of anything — marks, forms, symbols — which designates the true origin or ownership of the article. (Godillot v. Hazard, 49 How., 5.) That the label as a whole is entitled to protection. (Kinney v. Basch, 16 Am. Law Reg., 597.) Also the packages, eases and hand-bills. (Kinney v. Basch, supra ; Williams v. Spence, 25 How., 366; Cook v. Starkweather, 13 Abb. [N. S.], 392.) Also the wrappers. (Lea v. Wolff, id., 389.)

The true rule is'well stated in the late English case of Mitchell v. Henry (43 Law Times [R. N. S.], 186). There the plaintiff’s trademark consisted of a white selvage on each side of the piece, having a red and white mottled thread interwoven the full length of the selvage between the edge of the piece and the edge of the selvage.” The goods sold by the defendant had a black or very dark selvage; the plaintiff’s being white or nearly so, and the defendants’ had an interwoven thread made up in their goods composed of red, white and yellow strands placed at the edge of the piece, between the piece and the. selvage.” Upon that state of facts Lord Justice JaMes observed, the Master of the Rolls seems to me to have considered that when he had satisfied himself, on the examination of the things before him, that the twisted thread in the defendants’ selvage was in a position different from that of the plaintiff’s, and that the plaintiff’s selvage could not be said to be white, then that determined the question. I am bound to say that to me the question is not whether the selvage is white, but whether it was what the trade knew as white selvage; whether anybody connected with the trade could have any doubt whatever as to what was meant by white selvage. Then it is not at all conclusive to my mind whether the position of the defendants is the same or different from the position of the plaintiffs. It resolves itself into the old question, which has always been the question to be determined in these cases — are the defendants, not in words, but by acts and by something on the face of the articles, representing their goods as being the goods of the plaintiffs ? That is to say, are they using something which is calculated to pass off their goods as the goods of the plaintiffs?”

The same doctrine, in substance, was expressed and an injunction allowed by Mr. Justice Lawrence in Enoch Morgan's Sons v. Schwachhofer (55 How., 38), a case very similar to the present.

The fact that the imitation is but partial cannot avail the defendants. The question is whether such a general resemblance remains as is designed to mislead the public (The Amoskeag Case); and of that, as we have seen, there can be no doubt. It all comes to this, that, as was said in Perry v. Truefitt (supra) “ a man is not to sell his goods under the* pretence that they are the goods of another.” The law does not limit the form of the pretence; that depends upon the facts of each particular case. Here that element is clearly present, both in the picture presented to the public eye and in the facts disclosed by the witnesses. The fraud, for such it was, was long planned, and its execution proceeded by regular and steadily advancing steps; when it was found that bars of soap were unsatisfactory a pressed and stamped cake was resorted to. Then we have the polished pan and the face reflected therein with the variation of a monkey for a man. Then came the various colored bands, none of which were found to answer the fraudulent purpose, culminating at last in the plaintiff’s ultramarine blue. What was done was done artfully with a view to reach thoughtless and ignorant buyers, and yet to evade the law by an apparent exhibition of mere rivalry. It was also done shrewdly by enlisting the retail grocers, through the bait of reduced prices and increased profits, thus making allies of these men for the general diffusion of direct misrepresentation. It will not do to call this enterprise and energy, nor to stigmatize the demand for pi-otection against such practices as an effort to limit legitimate competition and to promote monopoly.

We find no error in the rulings of the learned referee upon any of the other questions presented, and we think that the judgment should, therefore, be affirmed, with costs.

Davis, P. J., and Beady, J., concurred.

Judgment affirmed, with costs.


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    In the Matter of THOMAS STEPHENS, Respondent, v. HENRY MARSHALL and GEORGE CAULFIELD, Appellants.

      Habitual dfunkao'd — his committee should not allow him ‘ ‘ spending money ” — when the committee may be charrged with the costs of an accounting — when they will not be allowed commissions.

    The committee of an habitual drunkard on proving their accounts claimed to be allowed the sum of thirty dollars per month,, allowed by them to the inebriate for spending money. The court refused to allow more than seventy-live dollars a year for that purpose.

      Held, no error; that it would have been proper to refuse to allow any sum for that purpose.
    When the committee fail to file the inventories required by law, and do not on the commencement of the accounting disclose all the property they received, they may be properly charged with one-half of the expenses of the accounting,
    Though the fact that a trustee is charged with moneys lost by his negligence does not deprive him of his right to commissions, yet where he is charged with the moneys because he has expended them improperly and in a manner subversive of the purposes of the trust, the court may properly refuse to allow him any commission.
    Appeal by Henry Marshall and George Caulfield, a committee of Thomas Stephens, from an order of the Special Term, made after certain exceptions taken by said Marshall and Caulfield to the report of a referee, made on an accounting of said Marshall and Caulfield, as the committee of said Stephens, as an habitual drunkard.
    February, 1873, Stephens was adjudged an habitual drunkard, and the appellants were appointed his committee.
    October 3, 1877, an order was made adjudging the reformation" of said Stephens, superseding the inquisition, etc., and directing his committee to deliver to him his property, and to pass their accounts before George W. Parsons, Esq., referee, appointed for that purpose.
    The testimony showed that some three or four months after the committee was appointed, they concluded to take Mr. Stephens away from the city of New York and keep him with a Mr. Budd, who lived in a little village in Greene county. They agreed to give Mr. Budd $100 a month, thirty dollars of which Mr. Budd was to give Mr. Stephens for spending money. Stephens remained with Budd until lie recovered. The referee found that of the thirty dollars a month that Budd was to have given Stephens he had failed to give to him what, in the time Stephens staid with him, amounted to $675. The committee paid it to Budd, but Budd did not pay it to Stephens. That item the referee disallowed to the committee. The court held that the thirty dollars a month was too much to have given Stephens for spending money, and held that the committee should have given him hut seventy-five dollars per annum, and charged the committee with the difference, $1,173.56.
    An item of twenty-six dollars and twenty-five cents, claimed to have been for expenses incurred in the transfer of Brooklyn property bought by. Stephens for the benefit of his sister, was also disallowed.

      Wheeler H. Peelcham, for the committee, appellants.

      John Graham, for Thomas Stephens, respondent.
   Barrett, J.:

In the main we concur in all the conclusions arrived at by the Special Term. Not a penny should have been allowed to the inebriate for spending money. What he needed ought to have been purchased for him. All proper recreation could have been provided without intrusting him with the means of indulging his diseased appetite. The spending money was, in fact, a downright temptation to him. We do not look upon this as a mere error of judgment upon the part of the committee. It was, to say the least, gross negligence, not far removed from the line of bad faith. It exhibited a reckless disregard of the true interests of the unfortunate man confided to their care. We agree with the learned counsel for the respondent, that if any error was committed by the court below upon this head it was upon the side of leniency to these trustees.

The item of twenty-six dollars and twenty-five cents was also properly disallowed. It was not made clearly to appear that Stephens, if in the possession of his faculties, would, in all probability, have paid this item himself. The expenditure was not, therefore, brought within the case of Ex parte Heeney (2 Barb. Ch., 326). The testimony with regard to it was by no means clear, and as owing to the failure to file the proper inventories every presumption is to be taken againt the committee (In re Carter, 3 Paige, 146) we think the ruling of the Special Term should be sustained.

The reasons assigned by the court below for charging the committee with one-half the expenses of the accounting are satisfactory. There was no error in the statement contained in Mr. Justice Yan Yobst’s opinion that the committee, delayed the disclosure of the amount of moneys remaining in their hands to the credit of Stephens. An account was, it is true, submitted at the commencement of the reference, but it was incomplete and was subsequently amended in the particular mentioned. Apai’t from this we think the conclusion of the Special Term was warranted by the failure to file regular inventories as required by law (which would have facilitated the accounting), and by the fact that part of the expense was due to the investigation with regard to the spending money improperly allowed to Stephens.

The question as to the commissions is not altogether free from doubt, but upon the whole, we are inclined to agree with the court below, that the committee have forfeited their right to compensation. Ordinarily, it is true, a trustee is sufficiently punished for an act of negligence by being charged with the sum lost thereby. It was held in Meacham v. Sternes (9 Paige, 399) that a trustee is entitled to commissions upon sums with which he is so charged, in consequence of losses arising from his negligence. But there is a plain distinction between moneys lost to an estate by the negligence of the trustee, and moneys charged to the trustee because their expenditure was improper and subversive of the purposes of the trust. The former is an isolated act of negligence, consistent with general good management. The latter goes to the very heart of the trusteeship and stamps it with general mismanagement. It was here the duty of the committee to resort to all reasonable means for the restoration of the inebriate to his normal condition. The failure to perform that duty is transparent and conspicuous. They did the very reverse. They added fuel to the flame. It was indeed an error of judgment, and we must be permitted to say, a very grave one, to send this man away to a remote country town, where, instead of the careful treatment which he might have had in some proper asylum like that on Ward’s Island, he was left in the hands of a person not only devoid of experience or training in the care of inebriates, but who constantly provided him with liquor obtained from a neighboring manufacturer. This was bad enough, but when it is combined with improvident expenditure and highly reprehensible provision for continued indulgence, it stamps the trusteeship as faithless. After a full consideration of the evidence, we cannot bring ourselves to think that this committee is entitled to commissions.

The order appealed from should, therefore, be affirmed, with costs. If there has been any clerical error to the disadvantage of the committee, as would seem to be the ease, it can be corrected at the Special Term, or if the facts are not disputed, and there is no substantial contest about it, upon the settlement of the order on this appeal.

Davis, P. J., and Brady, J., concurred.

Order affirmed, with costs.


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    THE REPUBLIC FIRE INSURANCE COMPANY, Appellant, v. THOMAS B. KEOGH, Respondent, Impleaded, etc., and THE BANK OF NEW HANOVER and others, Defendants and AppellantTHE GERMANIA FIRE INSURANCE COMPANY, Appellant, v. THE SAME, Respondent. THE NIAGARA FIRE INSURANCE COMPANY, Appellant, v. THE SAME, Respondent. THE HANOVER FIRE INSURANCE COMPANY, Appellant, v. THE SAME, Respondent.

      Aotion of interpleader — when it cannot be removed into the United States courts.

    This action was brought by an insurance company to compel persons who had recovered a judgment against it, to interplead with others who claimed to be assignees of or to have acquired liens upon the said judgment. The plaintiff, the judgment-creditors and all of the defendants except two, were residents of this State.

      Held, that the action could not, upon the petition of one of the non-resident defendants, he removed to the United States District Court under the act of congress passed in 1875. (Sec. 2 of chap. 189.)
    Appeals from orders entered at Special Term, granting motions' made by tbe respondent to remove tbe actions to tbe Circuit Court of the United States for tbe Southern District of New York
    Tbe actions, wbicb were all of tbe same nature, were brought to compel an interpleader, and grew out of tbe following facts:
    In tbe month of February, 1880, certain actions brought in this court by tbe defendants Brink and Estes against tbe Republic, Ger-mania, Niagara and Hanover Fire Insurance Companies were finally terminated. After long litigation the Court of Appeals affirmed tbe judgments of the Supreme Court in favor of tbe plaintiffs.
    It appears from tbe pleadings that, pending tbe litigations, tbe defendant Brink assigned bis interest in tbe causes of action to tbe defendant Tbe Bank of New Hanover, a citizen of North Carolina; and tbe defendant Estes assigned bis interest to tbe defendants Williams and Black. Tbe defendants Blossom, Keogh (a citizen of North Carolina) and Van Volkenburg respectively commenced actions in this court against tbe defendant Estes, and caused warrants of attachment to issue by virtue whereof tbe defendants O’Brien, late sheriff, Reilly, late sheriff, and Bowe, sheriff, levied upon Estes’ interest in tbe causes of action referred to. Tbe defendants Hatch and McDonald were tbe attorneys for Brink and Estes in tbe original actions, and a controversy arose between them and their clients as to tbe amount of their fees, and notices were served by them and their clients on tbe companies not to pay over tbe fund to tbe other.
    In October, 1880, the defendant Keogh filed a petition and bond with tbe court to remove tbe actions into the United States Circuit Court for tbe Southern Distinct of New York, and obtained an order removing said actions unless tbe other parties to the actions showed cause, at an appointed time, why they should not be removed. On tbe return day of tbe order to show cause, tbe motion was argued and afterward decided by tbe learned justice, who made an order removing tbe actions on tbe ground that they involved a controversy wbicb was wholly between citizens of different States and wbicb could be fully determined as between them,

      Geo. W. Cotter ill, for the plaintiffs, appellants

      I. H. Arnold, Jr., for the defendants, appellants, the Bank of New Hanover and Williams, Black & Williams.

      Chamberlain, Carter <& Eaton, for the respondent.
   Barrett, J.:

We do not think that a ease was made for the removal of these actions. It does not fall within section 2 of chapter 139 of the act of congress passed March 3, 1815, for the reason that the essential controversy is between the plaintiffs and the defendants, and the latter are not all citizens of different States from the former. The actions are in the nature of interpleaders, and the main question to be determined is, whether the suits are rightly brought. That is the primary issue upon the pleadings. The rights of the co-defendants, as between each other, may never become a subject of adjudication in these actions. There is, in fact, no present controversy in the actions as between these co-defendants. The only existing issue is the direct one, between the plaintiffs and defendants, namely, whether the plaintiffs are entitled to relief by way of interpleader ?

The court may ultimately dismiss the complaints. It may find that the facts averred are not proved, or it may hold, as matter of law upon the conceded or established facts, that a case for an inter-pleader has not been made out. If, however, the right to an inter-pleader be sustained, the court may then direct an issue as between these co-defendants. Until such time has arrived, there cannot be said to be any controversy except as to the plaintiff’s right. But even as between the co-defendants it is apparent upon the papers, that whatever controversy may ultimately arise will be mainly between citizens of the same State.

There may possibly be a single controversy between citizens of different States; but such controversy will be incidental.

It is not within the spirit of the act of removal to permit such actions as these, with their numerous parties and conflicting interests, to be earned into the Federal forum, merely because a single incidental issue may arise between two of the defendants who are citizens of different States. As it appeared upon the face of the papers that the causes were not within the removal act, the court had no power to make the order. For that reason such order is appealable, and the appellants were not bound to apply to the Circuit Court of the United States to remand the causes.

The orders should be reversed, with ten dollars costs and disbursements in each case, and the motions denied.

Davis, P. J., and Brady, J., concurred.

So ordered.


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    In the Matter of the Petition of JAMES A. and AMBROSE K. STRIKER, to Vacate Sundry Assessments for Sewers.

      Statute of limitations— a/n application to vacate am, assessment must he made within ten yews.

    An application to vacate an assessment in the city of New York is a special proceeding, and is barred by tbe statute of limitations, unless made within ten years from tbe confirmation thereof.
    Appeal from an order made at Special Term, denying a motion to vacate certain assessments.

      Ectwin E. Van Auken, for the petitioners, appellants.
    E. E. Lacomhe, for the City of New York, respondent.
   Barrett, J.:

The petitioners’ application was barred by the statute of limitar tions. The assessments sought to be vacated were confirmed between the years 1861 and 1869, inclusive. The Court of Appeals has held, In the Matter of the Manhattan Savings Institution (MSS. opinion, Sept., 1880), that these are special proceedings, and are governed as to limitation by the provision of the Code of Civil Procedure. Section 338 of this Code provides that “an action, the limitation of which is not specially prescribed in this or the last title, must be commenced within ten years after the cause of action accrues.” Section 414 (in the same chapter) provides that tbe word “ action,” contained in this chapter, “ is to be construed, when it is necessary to do so, as i/ncludimg a special proceeding, or any proceeding therein or in an action.” Over ten years having elapsed since the confirmation of these assessments; it is clear that the petitioner is barred of his relief herein. It is said that this objection should have been taken below. For aught that appears it was so taken. But no pleadings are required in these summary proceedings, and the statute was not a matter to be proved. Even if the statute were not applicable to a case where the assessment was confirmed prior to its passage, the present application was properly denied upon the ground of laches, which here were gross.

The order was right and should be afiirmed, with ten dollars costs and the disbursements of the appeal.

Davis, P. <L, and Brady, J., concurred

Order affirmed, with ten dollars costs and disbursements.


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    THEODORE M. DAVIS, as Receiver of the Ocean National Bank of the City of New York, Appellant, v. WILLIAM D. BRUNS, LENA KATRINA BRUNS, FREDERICK TROPE, ANNIE R. TROPE and HENRY LEFEVRE, Respondents.

      Action by a judgment creditor to set aside a conveyanee as fra/udulent — it cannot be maintained unless a judgment has been recovered in the courts of this State.

    The plaintiff having recovered a judgment against the defendant Wm. D. Bruns in the District Court of the United States for the southern district of New York, and having had an execution, issued thereon to the United States marshal, returned unsatisfied, brought this action to have certain voluntary conveyances of real estate made by the said Bruns set aside as fraudulent and void as against him.

      Held, that as the plaintiff had not exhausted his remedy at law by the recovery of a judgment against the defendant in one of the courts of this State, and the return unsatisfied of an execution issued upon it, the action could not ba maintained.

      Appeal from a judgment dismissing the complaint, entered upon the trial of this action at Special Term.

      Southerland JD. Smith, for the appellant.

      George B. Ely, for the respondents.
   Barrett, J.:

This action was brought to set aside certain voluntary conveyances of real estate alleged to have been made in fraud of the plaintiff as a creditor of the defendant William D. Bruns. It was founded upon judgments at law recovered by the plaintiff against Bruns in the District Court of the United States for the southern district of New York, upon which executions were issued to the United States marshal and returned “ nulla bona? The complaint was dismissed upon the specific ground that the remedy at law had not been exhausted. The correctness of that ruling is the main question presented by this appeal. It was held in Tarbell v. Griggs (3 Paige, 207) that judgments of the courts of the United States stand upon no higher grounds with regard to creditors’ bills than the judgments of courts of sister States. The bill in that case was dismissed for the reason that the remedy at law had not been exhausted according to the laws of this State, namely, by the recovery of judgment in one of its courts and the return of an execution thereon unsatisfied. This case has never been overruled nor, so far as we can ascertain, questioned. It is referred' to, with approval, in Tompkins v. Purcell (12 Hun, 662), and without disapproval in McCartney v. Bostwick (32 N. Y., 53). It seems to be decisive of this case. It is true that it was a strict creditors’ bill, while the present action is brought to set aside certain conveyances alleged to be fraudulent. But that the legal remedy should first be exhausted is just as essential in the one case as in the other.

This is not an action to remove a fraudulent obstruction to process. In that class of cases the bill may, of course, be filed while the execution is outstanding in the hands of the proper officer. Here the allegation is that the execution upon the judgment of the Federal court has been returned unsatisfied. Nor is the case within the principle of McCartney v. Bostwick (supra). That action was to enforce in favor of creditors a statutory trust against the grantee of lands, purchased with the debtor’s means.

Judgment had been recovered against the debtor in a court of the State of Minnesota, and execution thereon had been returned unsatisfied. It appeared that the debtor was a resident of Minnesota and had no property within this State. Upon this the court held that the creditor had no remedy at law here, for the reason that none of our courts could acquire “jurisdiction over the debtor, and consequently it was impossible for the creditor to recover a judgment at law in this State. The decision was placed upon this ground, and the rule as to the sufficiency of a foreign judgment and execution thereon returned nulla, bona, limited to the case of a pure trust where the statute does not explicitly require the return of an execution unsatisfied, and where a recovery at law in our courts upon the foreign judgment is a matter of impossibility. “ Since, then,” said Davis, J., “ no statute controls it, as in ordinary creditors’ bills, and no action or legal proceeding whatever can be brought in this State, either upon the original debt or the judgment; the court must look at the facts stated, to ascertain if all remedy at law has not been exhausted. In this view of the case there was a remedy at law against the debtor; but where \ only in the courts of a sister State, and that is shown to have been followed to its ultimate results. Conceding it must also be repeated here in a case where it may be, yet when that is shown to be impossible under our law it inevitably follows that the law is exhausted. Our law is not, therefore, subject to the reproach of creating by statute a trust for foreign creditors in property within our State, yet withholding from them all power of reaching and applying it.”

Porter, J., declared that a case was simply presented “for the exercise of the original jurisdiction of a court of equity in enforcing a trust declared, by law,” and while placing his judgment upon substantially the same ground as that of Davis, J., observed that, the case being one of pure trust, he was “ not prepared to say that the action might not have been maintained without recowrse, in the first instance, to all attainable legal remedies against the principal debtor.”

We feel bound, therefore, upon authority and without expressing any opinion npon the question as an original one, to uphold the ruling of the Special Term, and to affirm its judgment, with costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.


text:
    WELMINA B. NEILLY, as Administrix of SARAH BYRON, deceased, Respondent, v. JOHN H. NEILLY and another, as Administrators of ALEXANDER WALDRON, deceased, Appellants.

      Trust of personal property — what instrument is sufficient to c/reate one — statute of limitations does not run against it — A pa/i'ty may he loth plaintiff and defendant as representing diffm'ent estates — Surrogate cannot pass upon disputed claims

    November 4, 1828, Alexander Waldron gave to bis sister Sally, the wife of George Byron, a paper whereby he acknowledged that he had in his possession and held in trust for her the sum of $268, being the balance of a legacy due to her under her father’s will, and agreed to pay her legal interest thereon so long as it remained in his hands, and to advance to her, from time to time, as her necessities might require, a portion of the principal money, the husband agreeing that the moneys should remain in trust for the sole benefit of his wife. Sally died in 1842, and letters of administration were granted on her estate to the plaintiff, her daughter, in 1878. Alexander Waldron died in 1877, and letters of administration were granted on his estate to the plaintiff and the defendant John H. Neilly, her husband.
    This action was brought by the plaintiff, as administratrix of her mother, to procure an accounting as to the said trust |fund from the estate of Alexander Waldron.

      Reid, that the instrument created a technical and continuing trust, which was not cognizable at law, but which fell within the peculiar and exclusive jurisdiction of a court of equity.
    That against a trust of that character the statute of limitations did not run.
    That the fact that the plaintiff was one of the administrators of the estate, against which this action was brought, did not prevent her from maintaining this action as administratrix of her mother’s estate.
    That the fact that this claim had been presented and disallowed upon the final accounting of the plaintiff and defendant as administrators of the estate of Alexander Waldron, deceased, did not bar this action, as the surrogate had no jurisdiction to pass upon the claim in those proceedings.

      Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought to obtain an account of a trust fund held by the defendant’s intestate for the benefit of the plaintiff’s intestate. The trust was claimed to have been created by the following instrument:
    “1 do hereby acknowledge to have in my possession and hold in trust for my sister Sally, the wife of George Byron, the sum of two hundred and sixty-eight dollars, being the balance due her, this day, for her proportion of one thousand dollars directed to be paid by my father in his last will and testament by my brothers Jacob, Tobias and myself, to his daughters, for which sum I promise to pay my sister legal interest as long as the same remains in my hands, and from time to time as her necessities may require, advance to her a proportion of the principal moneys, it having been agreed between me and her husband, the said George Byron, that the said moneys shall remain in my hands in trust for his wife and for her sole benefit.
    “Witness my hand this 4th day of November, 1828.
    “$268. (Signed.) ALEXANDEB WALDBON.”
    Sarah Byron died in 1842, and letters of administration were issued to the plaintiff, her daughter, upon her estate in 1878. Alexander Waldron died in 1877, and letters of administration were issued to the plaintiff and her husband.

      C. Stewart Davison, for the appellants.
    Plaintiff, as administratrix of her mother, Sarah Byron, cannot legally maintain this action against herself as administratrix of her uncle, Alexander Waldron. (Chv/rch v. Stewart, 27 Barb., 553; Engliss v. Furniss, 2 Abb. Pr., 333.) The claim is, in law, presumed to be paid after such a lapse of time — fifty years. (Ingraham v. BaMwi/n. 9 N. Y., 45 ; Lyon v. Odell, 65 id., 28.) The adjudication of the surrogate of Bock-land county, upon the claim in question, is a bar to this action. (Cooper v. Kerr, 3 Johns. Oh. [2d ed.], 606; Robinson v. Crandall, 9 Wend., 425.) It is immaterial in what capacity an executor or administrator seeks to recover for his own benefit against the estate of his testator or intestate; the surrogate has jurisdiction, the intent and scope of .the statute have been construed by the courts. {Kyle v. Kyle, 67 N. Y., 408; Boucjhton v. Flint, 74 id., 478; Smith v. Webb, 1 Barb., 230.) The paper is a mere expression of the acceptance of the duty of paying the legacy under the will, and the legacy is the real cause of action. {Borst v. Corey, 15 N. Y., 505.) As a legacy it is barred by the statute of limitations. {Looter v. Hatfield, 71 N. Y., 92.) In law the present claim is barred by the statute of limitations. ( Wheeler v. Warner, 47 N. Y., 519; Hubbell v. Medbury, 53 id., 98.) The demand being enforceable at law, even if it were a trust, which is contested, would be barred in equity by the lapse of the same period of time as would bar it in law. In such cases equity follows the law. (2 R. S., 301; Kane v. Bloodgood, 7 Johns. Ch., 90, 125; Borst v. Corey, 15 N. Y., 505 ; Mwray v. Coster, 20 Johns., 570; Gallar tin v. Cunni/ngham, 8 Cow., 360; Ru/ndle v. Allison, 34 N. Y., 180.) The demand is barred in equity by staleness. {Bruen v. Hooie, 2 Barb., 586; Ffoas v. White, 6 Johns. Ch., 360; Piet v. Bo'iichard, 4 Edw., 30.)

      George H. Forster, for the respondent.
    The statute of limitations cannot bar this claim. (Perry on Trusts, §§ 228, 863; Decouohe v. Savetier, 3 Johns. Oh., 190; Good/rioh v. Pendleton, id., 389; Story’s Eq. Jurisp. [10th ed.], § 1273, E.; Hill on Trustees [4th ed.], 264; Poillon v. Wilson, Gen. Term, N. Y. Weekly Dig.)
   Barrett, J.:

1. The trust in question was creatéd before the Revised Statutes. It was then a valid trust, relating to personal property. It is well settled that a formal or even a written agreement is not necessary to create a trust in money or personal estate. (Perry on Trusts, § 86.) As was said in Day v. Roth (18 N. Y., 453), “ any declaration, however informal, evincing the intention with sufficient clearness will have that effect. Such declarations stand on somewhat peculiar grounds. They are not to be regarded as admissions merely of some antecedent fact in relation to the subject, but are to be looked upon and received as constituting the very trust which they acknowledge. The doctrine of equity is, that, by their own force, they impress the fund with a peculiar character, and hence they are receivable on the same grounds as a precise and formal agreement. A person in the legal possession of money or property, acknowledging a trust, becomes, from that time, a trustee, if the acknowledgment is founded on a valuable or meritorious consideration.”

That is just this case. The plaintiff’s mother, Mrs. Sally Byron, was entitled to a legacy under her father’s will. That legacy was payable by her brother, the defendant’s intestate, Alexander Waldron. It amounted to $268. Thereupon it was agreed between Mrs. Byron, her husband, George Byron, and Waldron, that the latter should hold this sum in trust for his sister, and for her sole benefit, he agreeing to pay interest thereon and to advance to her, from time to time, according to her necessities, a part of the principal moneys

The possession of the moneys under this trust agreement was acknowledged by Waldron in the document upon which this action is founded. We do not think that the statute of limitations is a bar. The general rule is, that such a trastee (of an express trust) cannot protect himself by the statute in a suit brought by the cestui que trust. (Perry on Trusts, § 863; Hill on Trustees [4th ed.], 264; Decouche v. Savetier, 3 Johns. Ch., 190; Goodrich v. Pendleton, id., 384.) We are aware that this rale is only applied to strict technical trusts which are the mere creations of a court of equity (Kane v. Bloodgood, 7 Johns. Ch., 90; affirmed, 8 Cow., 360; Murray v. Coster, 20 Johns., 575; Humbert v. Trinity Church, 24 Wend., 587; Borst v. Corey, 15 N. Y., 505; Bertine v. Varian, 1 Edw. Ch., 343; Renwick v. Renwick, 1 Brad., 234), and that it is inapplicable where there is a legal remedy, or where the remedies in equity and at law are concurrent. It is undoubtedly confined to cases which were exclusively cognizable in chancery. (Same cases.)

The trust under consideration was of this character. It was one of those technical and continuing trusts which was not cognizable at law, but fell within the peculiar and exclusive jurisdiction of a court of equity. Mrs. Byron could maintain no action at law thereon, nor could her husband. The very object of the trust was to place the legacy out of Mr. Byron’s marital control. The remedy was solely in equity to enforce the trust for the wife’s benefit. It is not to be treated as an action to recover the legacy. It is rather as though the legacy had been paid by the executor (Mrs. Byron’s father), and.she had thereupon, with her husband’s consent, placed the money in the hands of an independent trustee under the trust expressed in the instrument before us. The case of Loder v. Westfield (71 N. Y., 92), which was an action to enforce the payment of a legacy, is, therefore, inapplicable. "We observe, however, that •the general rule, to which we have referred, was questioned in this latter case; not, however, as to its wisdom or propriety but with regard to the effect thereon of the positive and comprehensive provisions of the Code. Whether this was a passing remark or an intimation of deliberate judgment we are unable, to say. But we do not feel justified in treating this old and well-established rule as entirely abrogated by the Code without a more direct and positive adjudication upon the subject by the court of last resort.

2. Mrs. Neilley is not only the administratrix of her mother but also (with the defendant John H. Neilley, as administrator) the administratrix of Waldron. The objection is made that she cannot sue herself, but there is nothing in the point. She is not suing herself. It is simply estate against estate, the administratrix of Sarah Byron against the administrator and administratrix of Alexander Waldron. The court is not precluded, especially in an equitable action, from granting the appropriate relief merely because a single representative of one estate happens to be the administratrix of the other.

3. Nor was the judgment of the surrogate of Rockland county a bar to the action. It seems that on the accounting of the defendants before this officer the present claim was referred to in the petition, and the citation required parties interested to show cause why it should not be paid. Objections to the claim were filed by Waldron’s heirs. One of these objections was that the claim ought not to be determined by the Surrogate’s Court. Upon the hearing, evidence to support the claim was offered and excluded. The objections to the admission of the evidence were, that it appeared on the face of the paper that it is barred by the statute of limitations, also that it was the subject-matter of a claim which cannot be tried by the Surrogate’s Court, and that said claim, not having been adjusted and allowed by a court having jurisdiction to allow it, cannot form part of the administrator’s account.

It is evident that it was the latter objection which prevailed. That which referred to the statute of limitations bore upon the effect of the evidence, not upon its admissibility. The decree which followed disallowing the claim must, therefore, have proceeded upon the ground of the surrogate’s want of jurisdiction. The language used was inapt, but was doubtless intended as expressive of a dismissal of the proceeding. But whether such be the case or not, the decree can have no such effect as that now claimed for it. The surrogate had no jurisdiction to pass upon the claim, and any judgment which he may have rendered upon the merits was null and void. A surrogate has no power to adjudicate upon a disputed claim of an alleged creditor of the estate. (Bevan v. Cooper, 72 N. Y., 327; Kyle v. Kyle, 67 id., 408; Tucker v. Tucker, 4 Keyes, 148; Curtis v. Stillwell, 32 Barb., 354.)

It is true that he has jurisdiction to hear and pass upon a debt alleged to be due from the testator to the executor. (Kyle v. Kyle, supra; Boughton v. Flint, 74 N. Y., 478.) That results from the provision of the statute forbidding the executor to retain any part of the property of the testator, upon a claim of his own, until it shall have been proved to and allowed by the surrogate. (2 R. S., 88, § 33.) But Mrs. Neilley’s claim against Waldron’s estate was representative and not personal. It was simply a claim of her mother’s against her uncle’s estate.

None of the other points merit special consideration, and, upon the whole, we think the judgment should be affirmed, with costs.

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.


author: Per Ov/riam.

text:
    NATHAN C. MILLER and others, Appellants, v. ELMORE A. KENT and others, Respondents.

      Broker — Bill of pa/rtieulwrs, when it will he ordered,.

    Appeal Jr om an order denying a motion for a bill of particulars of tbe defendants’ account.
    The court at General Term said: “We see no good reason why the bill of particulars should not have been ordered. A broker, who is the agent of his client, is and ought to be required to show fully and specifically each item of the account which he charges against his client. In this case, nothing is furnished but a gross sum, amounting to $7,724.19, with which the plaintiff is charged, as his share of the losses upon the purchases and sales of lard, on a joint account between the plaintifE and others, under a contract described in the affidavit. Each of the parties to such an account is entitled to know and to have presented to him, when a demand is made for a loss, supposed or real, the items which make up such loss, and to be given an opportunity not only to inspect and ascertain the correctness of the same, but to controvert such items whenever it becomes necessary.”

      A. I). Pápe, for the appellants.

      L. A. Gemid, for the respondents.
   Opinion

Per Ov/riam.

Present — Davis, P. J., Bbady and Barrett, JJ.

Order reversed.


author: Davis, P. J.;

text:
    In the Matter of MARY A. MAUGER.

      Assessment — when it will be moated beeam.se an (arbitrary price was fixed for a portion of the work to be done — power of the legislature to cure irregula/rities in assessments.

    Appeal from an order made at Special Term vacating an assessment.
    The court at General Term said: “ This appeal is from an order vacating an assessment for constructing an outlet sewer in One Hundred and Eighth street, on the ground that the contract, although let to the lowest bidder, in fact, did not submit ‘rock excavation’ to be bidden for. Eor the purpose of preventing fraud in the bidding, the department fixed a price upon ‘ rock excavation,’ at which • each bidder for the construction of the sewer was required to accept the same. According to. the decisions, this was not a compliance with the statute, and renders the assessment void. (See Matter of Maham,, affirmed by the Court of Appeals, and' In re Manhattan Sawings Institution, MS. opinion of the Court of Appeals.) Upon the principle of sta/re decisis, this question is no longer an open one.
    “ It is insisted on the part of the appellant that the contract undei which this sewer was constructed was made valid by chapter 556 of the Laws of 1880. But that act does not go far enough to declare the assessment valid, and authorize its enforcement by the city.
    “ It has already been held by the Court of Appeals that a contract of this character, though void for the purpose of vacating assessments for the improvements made under them, because of the failure of the city officials to comply with the requirements of the law, is nevertheless valid against a city for the purpose of a recovery upon the contract.
    “ The legislature undoubtedly have power in these cases to authorize an assessment to be made of the cost of sewers and of similar work upon the property benefited, and the illegality of the assessment already made in nowise prevents or affects the exercise of that power. {Guilford v. Chenango, 3 Kern., 143; Howell v. City of Buffalo, 37 N. Y., 267.) There is neither justice nor right in per-¿fitting the owners benefited by such improvements to cast the whole burden of their expense upon the city treasury, and enjoy the use of them without any contribution toward their construction. It is ceytainly to be hoped that the legislature will speedily intervene by proper remedial legislation, to enable the city to compel the property benefited by public improvements and which has escaped its fair share of their cost by the invalidity of the assessments already made, to bear its proportion of public burdens through the imposition of new assessments. But the act of 1880 does not go far enough to produce that very just and equitable result.”

      W. G. Whitney, for the appellant.

      A. B. Johnson, for the respondent.
   Opinion by

Davis, P. J.;

Barrett, J., concurred; Brady, J., concurred in the result.

Order afiirmed, with ten dollars costs and disbursements.


author: Per Gv/riam.

text:
    HENEY F. BISSELL, Respondent, v. DORR RUSSELL, Appellant.

      Miidenee — refusal to allow a witness to state whether Tie desired to coireet any mistaTce Tie had made in his testimony — when sustained.

    Appeal from a judgment' in favor of the plaintiff, entered upon the verdict of a jury, and from, an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought to recover damages caused by the fraudulent representations of the defendant, by which the plaintiff was induced to make deposits in and purchase stock of the Loaners’ Bank. No exception was taken to the charge and all the requests of the defendant were granted. The appeal presents exceptions to the admission and rejection of evidence.

      The court at General Term said: “ The most impressive exception is that taken to the refusal of the presiding judge to allow Anthon D. Russell to state, whether he had made a mistake in giving his testimony in reference to an interview detailed, and the refusal to allow him to say whether he desired to correct any mistake that he had made in giving his testimony in that regard. The witness had been fully examined in the case prior to this incident and had been cross-examined as to all the conversations he had heard between the plaintiff and defendant, and all the statements made by the plaintiff in his hearing relating to this action. The right, therefore, to recall and examine the witness, even under the circumstances stated, is held to be a matter of discretion, and the rejection of it, subject to review only for the purpose of ascertaining whether the discretion has been abused. (Treadwell v. Stebbins, 6 Bosw., 538; Meakim v. Anderson, 11 Barb., 215 ; Meyer v. Goedel, 31 How., 163; Knight v. Gmmington, 6 Hun, 100; Marrshall v. Davies, 78 N. Y., 111.) The rule seems to be harsh because a witness entirely honest may be prevented from correcting an error which would benefit the party against whom he was called, and yet an arrangement with the witness might be made leaving a result which would be dishonestly obtained, and hence, no doubt, the rigor of the rule.

      “ The appeal book is so framed that the evidence of the witness is not given in detail, and it seems to be impossible to determine, therefore, whether there was any abuse of the discretion or not. The justice presiding at the trial seems to have been very decided in his views as to the impropriety of allowing the examination.”

      Robert Sewell, for the appellant.

      R. A. Stanton, for the respondent.
   Opinion

Per Gv/riam.

Present' — Davis, P. J., Brady and Barrett, JJ. ¡

Judgment affirmed, with costs.


author: Barrett, J.;

text:
    WILLIAM H. CHRISTIE, Appellant, v. RANSOM PARKER, Respondent.

      Lease of piers in New York — right of the city to resume possession — what sufficient evidence of its having done so — effect of a fa/Hu/re to gime notice to a lessee, as required try the lease — waiver thereof.

    Appeal from a judgment in favor of the defendant, entered on a trial at Special Term.
    This was an action for rent. The plaintiff being the lessee from the city of certain piers, sublet to the defendant a part of one ©£ them. The original lease to the plaintiff contained a provision, in substance, that the city might, at any time, set apart for its own use any or all of such piers, the plaintiff, in that- case, to have an equitable deduction from the rent reserved. The lease from the plaintiff to the defendant was expressly made “ subject to the terms and conditions ” of the original lease. In June, 18J0, the city took possession of the premises so sublet to the defendant, and used them for the purpose of one of the free floating baths. The effect was to deprive the defendant of the use of the pier. There was a judgment of dismissal, and the plaintiff appeals.
    The court at General Term said : “ The appellant makes several points, which will be separately considered. Eirst. He contends that the pier was taken for the free floating bath without due corporate action, and that consequently what was done in that regard amounted to a mere trespass. The argument is, that if the act was unauthorized, there was no setting apart by the city under the original lease, and that the plaintiff here is not responsible for any other manner of eviction. We think, however, that the facts justify the conclusion that the city did take possession of these premises. It was not necessary to show a direct or specific resolution with regard to this particular pier. What was shown was a general ordinance, placing the free floating baths, ‘ which may have been purchased by appropriation from the county treasurer, under the control and government of the department of public works,’ and giving that department the power to determine and govern their use. Hnder this ordinance the department located a free floating batb on tbe premises in question, where it remained during tbe entire season. The contractor who did tbe work was subsequently paid for it by tbe corporation. Tbe plaintiff knew that tbe batb bad been thus located; in fact tbe premises were in sight of bis office, yet be took no measures in disaffirmance. This evidence was ample to justify tbe inference, and, consequently, tbe finding that tbe city resumed possession of tbe premises, and did so with tbe plaintiff’s acquiescence, pursuant to tbe power reserved in tbe lease. Second. Tbe plaintiff further insists that tbe omission of tbe comptroller to give tbe plaintiff notice of tbe city’s intention to take tbe premises was fatal. It is true that tbe original lease makes it tbe duty of the comptroller to give such notice, and that it specifies the time of its service as tbe time when tbe right to tbe part of the premises retaken shall vest. But this notice was not in tbe nature of a condition. Tbe right to resume was absolute and could not be affected by tbe neglect of a subordinate officer to perform a duty imposed upon him by tbe lease. Besides, tbe notice could be waived by tbe lessee. And we think tbe plaintiff’s inaction, under tbe circumstances disclosed by tbe evidence, justified tbe court in finding such waiver.”

      Wm. Hemry Arnoux and Wm. F. Mac Rae, for tbe appellant.

      John, F. Bwrrill, for tbe respondent.
   Opinion by

Barrett, J.;

Davis, P. J., and Brady, J., concurred.

Judgment affirmed, with costs.


author: Brady, J.

text:
    MICHAEL GERNON, Appellant, v. JOSEPH B. HOYT, Respondent, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Brady, J.


author: Davis, P. J.

text:
    WILLIAM COOPER, Jr., Respondent, v. THE EASTERN TRANSPORTATION LINE, Appellant, Impleaded with JEREMIAH J. AUSTIN.
   Judgment reversed; new trial ordered; order to be settled on two days’ notice by the presiding justice.

Opinion by

Davis, P. J.


author: Barrett, J.

text:
    NATHAN W. LEACH, Appellant, v. ELLEN BERGEN, Administratrix, etc., of PATRICK BERGEN, Deceased, Respondent.
   Judgment and order affirmed.

Opinion by

Barrett, J.


text:
    SHEPPARD KNAPP, Respondent, v. LEWIS G. FRANCIS, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Barrett, J.


text:
    JEREMIAH PANGBURN, Appellant, v. WILLIAM H. MILES, sole Executor, etc., of ELEANOR WEBB, Deceased, Respondent.
   Judgment reversed as.to costs; judgment rendered as directed.

Opinion by

Brady, J.