text:
    Clinical Instruction Company, Limited, Resp’t, v. New York Elevated Railroad Company et al., App’lts.

      {Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Damages—Elevated bail way—Fee.
    Fee damages for easements taken by an elevated railroad may be awarded, though damages for loss of rents are refused, where circumstances make it difficult and impracticable to determine what, if any, past damage has been suffered.
    Appeal from a judgment rendered in favor of plaintiff.

      George T. Aldrich, for app’lts; John R. Abney, for resp’t.
   O’Brien, J.

The judgment restrains defendants from main-, taining and operating their railroad in front of plaintiff’s premises-unless they pay the sum of $10,000 for a conveyance and release of plaintiff’s rights and easements acquired by said railroad. No past or rental damages were awarded, and, with this circumstance as a basis, the defendants confidently refer to Hadden v. Met. El. R. R. Co., 75 Hun, 63; 58 St. Rep. 163, which followed Sutro v. Met. El. R. R. Co., 50 St. Rep. 701, in the court of appeals as-authority for a reversal of the judgment. Those cases hold that “to justify an award of fee damages, when an award of past damages is denied, a very clear case should be presented.” These-premises are situated on East Thirty-Fourth street, and have a frontage of 51 and a depth of 98 feet. A four-story and basement, iron-front, brick building covers the entire plot. After having been used for office purposes, and for public meetings of various kinds, it came into the possession, in 1882 orl883, of the-New York Polyclinic School, who occupied the building for medical and hospital purposes, and continued in such occupation up to the time of the purchase of the property by the plaintiff corporation in 1885. There was expended, after such purchase, about $25,000 in changing the interior, and rendering it suitable for the business of the corporation; and since that time the Polyclinic School has occupied the premises, at a nomipal rental, as lessee of the plaintiff corporation. The building has been used for the purposes of a hospital, the rooms therein being divided up for dispensary, reception rooms, and other apartments suitable to a hospital. The premises are 180 feet easterly from Third avenue. At that point the railroad structure extends from to 8 feet over the sidewalk, which latter is 30 feet wide. The railroad track is almost entirely over the sidewalk, lacking only 8 inches and a fraction of being entirely so. The outside walk of the structure takes up é feet additional over the sidewalk. The engine starts in front of .the building, and stands there when it is not in motion. With a column in front, and the structure above, affecting to some extent access, there is evidence to show that the easements of light and air, so far as the first and second stories are concerned, are materially impaired. There was sufficient evidence given of permanent damage to the fee, to prevent which injunctive relief was granted, but with an alternative permitting the acquirement of a conveyance of the rights and easements of the plaintiff injured and taken ■ by the railroad upon the payment of $10,000. The character of the occupation, the fact that the building was not used for ordinary business purposes, dr rented out with an idea of securing any proper rental return, it being rented as a school which was controlled and managed by the directors of the plaintiff corporation,—made it difficult and impracticable to determine what, if any, past damage had been suffered. The reason appearing, therefore, for a failure to award such past damages takes the case out of the rule applied in the Hadden and Sutro Cases, in which there appeared an inconsistency in refusing past damages and awarding damages to the fee. The amount here awarded might seem at first blush to be too large; but the evidence shows that the proximity of this property to the station, and its relative situation to that portion of the structure that is used by the defendants for the purpose of starting and stopping their trains, and allowing their trains to stand while awaiting passengers, affected this property more injuriously than premises where these conditions were not present. We think the judgment was right, and should be affirmed, with costs. All concur.


source: Caselaw Access Project

author: Folleto, J.

license: Public Domain

text:
    In the Matter of Proving the Last Will and Testament of Benjamin Richardson, Deceased. Viola J. M. Karan, App’lt, v. William T. Washburn, Resp’t.

      (Supreme Court, General Term, First Depa/rtment,

      Filed November 16, 1894.)

    1. Will—Revocation op fbobate—Waives.
    A legatee, who has received a portion of a legacy, cannot maintain a proceeding to revoke the probate of the will without restoring, or offering to restore, the amount received.
    2, Same.
    An infant not served may, by accepting the benefits of the judgment after he becomes of full age, so ratify it as to be estopped from moving to set it aside.
    Appeal from a judgment, denying an application to vacate a decree admitting a will to probate.
    February 20, 1889, Benjamin Richardson died, having him surviving, Joseph B„ Richardson, son, Jane Richardson, daughter, and five grandchildren, the children of a deceased daughter, to wit, EllaT. Birdsall, William H. Birdsall, Louis P. Birdsall, Viola J. Birdsall, and Philena C. Cooper, only heirs and next of kin of the decedent, who left a paper executed February 25, 1888, purporting to be his last will and testament. On the 27th of February, 1889, the executor mentioned in the will verified and filed in the surrogate’s court a petition praying that a citation be issued to the persons mentioned in the petition to attend the probate of the will. On the 1st day of March, 1889, a citation was issued, which was directed to all of the persons mentioned in the petition, including Viola J. Birdsall, and citing them to attend the probate of the will on March 2, 1889. The citation was not served on any of the persons to whom it was addressed, for the reason that on the 28th day of February, 1889, all of them had waived, in writing, the issuance and service of a citation, and had consented that the instrument dated February 25, 1888, and purporting to be the will of the decedent, be forthwith admitted to probate. All of the persons interested were of full age except Viola J. Birdsall, who was born September 20, 1869, and consequently, on the 28th of February, 1889, was of the age of 19 years, 5 months, and 8 days. The only provisions contained in the will for the benefit of Viola J. Birdsall are the fifth and sixth clauses. By the fifth clause she was permitted to reside at No. 514 East 116th street so long as she should wish. The following is a copy of the sixth clause:
    “Sixth, I give, devise, and bequeath to my executor, William T. Washburn, and to Emma Richardson, wife of my brother Joseph, executrix, and their successors in said office, all the balance of my real estate, wherever located, in trust for the purposes following: (1) I hereby direct my said executor and executrix to sell all real estate, from time to time, as the same can be sold to advantage, and of the avails thereof to pay my just debts, all the incumbrances upon said real estate, and all the legacies herein given, and, after all said debts, incumbrances, and legacies are paid, to pay remaining the balance to such of my children as may be living at the time of my decease, and the share of such of my children as now are, or as may at the time of my decease be, dead, to their children, in such proportion or share as the law would give them if I die intestate.”
    Viola J. Birdsall became 21 years of age September 20, 1890, and continued to occupy No. 514 East 116th street until March, 1893, when she married, and became Viola J. M. Karan. On the 9th of February, 1894, 3 years, 4 months, and 19 days after having reached her majority, she verified the petition by which this proceeding was instituted.

      Rastus S. Ransom, for app’lt; Robert H. McQraih, for resp’ts.
   Folleto, J.

The learned counsel for the appellant asserts in his brief that this proceeding is not for the revocation of the probate of. the will under § 2647 of the Code of Civil Procedure, but is a proceeding “ to vacate and open the decree under § 2481, subd. 6, of the Code of Civil Procedure, which provides: “Sec. 2481. A surrogate, in court or out of court, as the case requires, has power: * * * (6) To open, vacate, modify, or set aside, or to enter, as of a former time, a decree or order of his court; or to grant a new trial or a new hearing for fraud, newly discovered evidence, clerical error, or other sufficient cause. The powers, conferred by this subdivision, must be exercised only in a like case and in the same manner, as a court of record and of general jurisdiction exercises the same powers. Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term of the supreme court has the same power as the surrogate; and his determination must be reviewed, as if an original application was made to that term.”

The sole ground on which the plaintiff seeks to revoke the probate of the will is that the surrogate’s court acquired no jurisdiction over her in the proceedings to probate the will. This proposition is predicted on four undisputed facts: (1) That when the will was probated, March 2,1889, she was but 19 years, 5 months, and 12 days old; (2) that February 28, 1889, when she waived service of a citation to attend the probate, none had been issued; (3) that no citation to attend the probate was ever served on her; (4) that the surrogate failed to appoint a competent and responsible person to appear as special guardian for her in the proceeding to probate the will. Apart from the question whether the surrogate’s court, on March 2, 1889, had acquired jurisdiction of the plaintiff, wedhink that the decree should be affirmed because of the action and non-action of the plaintiff during 3 years, 4 months, and 19 days between the time she became of full age and the date when she began these proceedings. During this period she accepted benefits under the probated will, none of which has she offered to restore, and some of which she cannot restore. The testator died February 20, 1889, and the plaintiff became of full age September 20, 1890. Pursuant to the fifth clause of the will, she occupied a dwelling from the testator’s death to March, 1893, when she was married—during a period of more than 4 years; 2J of these years being after she became 21 years of age. Before she became of full age she received from the executors $165 in cash, and after she became of age she received from them $260 in cash, and in addition has received, since August 3, 1892, one-fourth of the net rent from four houses, her share amounting to more than $20 per month. An action was brought against the executors and devisees, by a woman who asserted that she was the widow of the testator, to recover her alleged dower right, which the appellant and the other defendants therein settled on the 11th of February, 1891, by giving their bond for the payment of $50,000 one year from date, secured by three mortgages, executed by the executors and devisees, on the real estate left by the testator. The executors paid $15,000 of this sum, and the remainder—$35,000—was borrowed February 18, 1892, on the bond of the executors and devisees, secured by three mortgages executed by them. This plaintiff was a party defendant in that suit, participated in its settlement, and executed the two bonds and mortgages given for their security. In 1893 she began proceedings in the surrogate’s court, which are still pending, to compel the executors to account. From the death of the testator to this date, the plaintiff has resided in the city of New York, has had personal knowledge of the will, of the proceedings taken to probate it, and of the transactions of the executors and devisees thereunder, and has joined in such transactions. She does not assert that she was ignorant of any fact on which she bases her present application, but only that she was ignorant of the law applicable to those facts. She does not disclose why she desires the probate revoked. It is not alleged that the will is for any reason void, or even that she desires to contest its probate on any ground. In short, she discloses no merits. In re Peaslee’s Will, 73 Hun, 113; 56 St. Rep. 134, this general term held that a legatee who has received a portion of a legacy cannot maintain a proceeding to revoke the probate of the will without restoring, or offering to restore, the sum received. The cases supporting this proposition (and they are numerous) are cited in the opinion, and need not be here referred to. It is said that the case last cited is not an authority for the position that the appellant is estopped, because in that case the petitioner, an adult, was a party to the proceeding to probate the will, and that the surrogate’s - court acquired jurisdiction over her. However the fact may be, the report of the case shows the decision was not placed on that ground, but upon the ground that a person, by accepting benefits under a probated will, is estopped from seeking to revoke its probata Persons may estop themselves from questioning void judgments, decrees, acts, and contracts,—for example, a forged signature to a contract,—provided they are not void as against public policy. The probate of a will is in the nature of a proceeding in rem, and affects the status of the estate, which status, as established by the probate, may be ratified by a person interested, though no jurisdiction was acquired over such person when the will was probated. This ratification may be effected by a writing solemnly executed, or by the acceptance of benefits under the will and proceedings, with full knowledge of all the facts connected therewith. The latter is what the appellant has done. A person sui juris, who is not served in an action which ripens into a judgment, through which the title to real property is affected, may, by accepting the benefits flowing from the judgment, with full knowlege of all the facts, bar himself front the right to vacate the judgment; and so an infant not served, after he becomes of full age, by accepting the benefits of the judgment, with full knowledge of all the facts, may so ratify it as to be estopped from moving to set it aside. It will be observed that the section under which this proceeding was instituted provides: u The powers, conferred by this subdivision, must be exercised .only in a like case, and in the manner as a court of record and of general jurisdiction exercises the same powers,”

A decree of a surrogate’s court should not be vacated for fraud unless the facts would justify setting aside a judgment of the supreme court, which does not set aside its judgments on that ground unless the fraud is clearly established. Smith v. Nelson, 62 N. Y. 286; Kinnier v. Kinnier, 45 id. 535. The section of the Code under which this proceeding is prosecuted provides: “ Upon an appeal from a determination of the surrogate, made upon an application pursuant to this subdivision, the general term of the supreme court has the same power as the surrogate ; and his determination must be reviewed, as if an original application was made to that term.”

The undisputed facts in the record refute the appellant’s allegation that a fraud was practiced upon her, or on the surrogate’s court, in the proceeding to probate the will, and, if the evidence produced by both sides is weighed, that furnished by the executors greatly outweighs that which was given by the appellant

The decree should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    Mary Talbot, App’lt, v. Stephen V. R. Cruger et al., Resp’t.

      {Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Landlord and tenant—Fixtures.
    A tenant who, having the right to remove the house on the demised premises, accepts a new lease of the land without reservation of, or making claim to, the building, loses his right of removal, even though his possession has been continuous.
    2. Same—Estoppel.
    The acquiescence by an agent of the owner of land in a tenant’s statement that she owns the building thereon, does not estop either owner or agent from asserting the contrary.
    Appeal from a judgment in favor of defendants.

      J. K Hands, for app’lt; Stephen Philhin, for resp’t Coffey; Henry H. Man, for resp’ts Cruger et al.

   O’Brien, J.

The action is brought to recover damages alleged to have been sustained by the plaintiff through the fraud and deceit of the defendants, in procuring from her a surrender of her house by falsely representing to her that the paper presented for execution, and which she signed, was a lease of the land, whereas, in fact, as the defendants knew, it was a surrender of the house to the defendant Coffey. The testimony shows that the defendants Cruger & McYicar were partners, and were acting as agents to collect the rent of certain property of Mrs. Fields; that the defendant Coffey purchased three lots at a sale ordered by this court on May 7, 1891, the referee’s deed bearing date June 8, 1891. The plaintiff, who was in possession as a yearly tenant since 1888, claimed the ownership of a frame house and some sheds erected on the premises; and all the damage claimed resulted from the procuring by the defendants, as she alleges, of a release of her rights in and to the frame building, and in removing her from the premises, and denying her the right to remove the buildings upon other land.

The plaintiff claims no interest in the land itself, and it is clear that if she was not the owner of these buildings as the time she was removed, or the steps taken to prevent her removing the building, from which she claimed damages flowed, she could recover nothing. It was, therefore, essential to plaintiff’s cause of action that she should prove that the house was, by agreement, personal property, and belonged to her. This she sought to do by saying that she owned the house, and that the defendants Cruger & Co., the agents of the owner of the land, knew and admitted that she was the owner. Her statement was a mere conclusion, and the acquiescence of the agents in her statement made to them, that she was the owner, was, at best, but proof of an admission on their part, which would not, however, prevent them, or the owner of the land, from denying that she was such owner, or offering evidence in support of their contention that she was not such owner. Apart from such evidence, it was sought to be shown that some twelve years ago one Hyland built the cottage or frame building under some arrangement with a Mr. McKesson, who at the time represented the owner of the fee. This arrangement was in writing, and the witness was not permitted to state its terms, although a foundation was laid for paroi evidence of the contents of the agreement by showing that the written agreement itself was lost. This ruling would have been a fatal error, if material upon the question of ownership. But, if we assume the view most favorable to the plaintiff,—that, by the terms of such arrangement, the owner of the fee agreed with the person who built the house that it was to remain personal proverty,— this would but fix the rights of those interested in the agreement as of that date, and might be the basis for showing that such an agreement was continued, but could be in no way conclusive as to the rights of the parties here, in view of the conceded change in the tenancy of the property, and the transfer of any interest in the house, either by sale to the plaintiff, or by the removal of Ilyland from the premises, prior to the rights of the parties to this controversy being fixed.

The plaintiff attempted to show that she purchased the house at sheriff’s sale, by producing the auctioneer’s receipt for the amount paid. This was objected to upon the ground that sufficient foundation had not been laid by proof that it was pursuant to a judgment and execution, although some evidence was given that the original judgment and execution could not be found, and secondary evidence of entries in the court records was offered to prove such facts. Here, again, we think that the rulings bore rather severely upon the plaintiff; but, again, assuming that what was sought to be proved was proved, viz., that at a sheriff’s sale, under a valid judgment and levy and execution, the plaintiff did purchase the house, another link in the chain of proof was essential to show her ownership at the time she was induced, as she claims, by fraud, to sign the release, or surrender all her interest, from which flowed all the damages that she here seeks to recover. In other words, assuming that she became the owner of the house in 1888, the fact of her taking a lease for the subsequent years, whether verbal or in writing, without expressly reserving her right in the house, and her right to remove the same at the end of her tenancy, would operate, as matter of law, as a surrender of her ownership. As said in Loughran v. Ross, 45 N. Y. 792 (headnote): “If a tenant, having the right to remove fixtures erected by him on the demised premises, accepts a new lease of such premises, including the buildings, and enters upon a new term thereunder, the right of removal is lost, notwithstanding his actual possession has been continuous.”

And in the course of the opinion it is said: “Elementary writers áre very well agreed that when a tenant continues in possession under a new lease or agreement his right to remove fixtures is determined, and he is in the same situation as if the landlord, being seized of the land with the fixtures, had demised both to him.”

It is conceded that the plaintiff was a tenant from year to year since 1888, and her omission to reserve the ownership of the house would have waived her claim, and raised a conclusive presumption that she had parted with her property therein, for, as said in another part of the opinion from which we have quoted (Loughran v. Ross): “A lease of land and premises carries with it the buildings and fixtures on the premises, and the tenant accepting a lease of the premises without excepting the buildings takes a lease of the land with the buildings and fixtures, and acknowledges the title of the landlord to both, and is estopped from controverting it.”

Upon the trial it was not shown whether the plaintiff’s lease was in writitig or by paroi; but, whether one or the other, it did not appear that there was any agreement made between the plaintiff and defendants by which, under her last renting of the premises, she reserved the ownership of the buildings, or the right to remove them on the expiration of her term. It will thus be seen that there was a failure of proof on the part of the plaintiff to sustain the first essential fact upon which her whole case necessarily must rest. That the defendants Cruger & Co. thought that she had some interest in the house clearly appears, not only from the correspondence between the parties, but from the fact of the efforts that they made to procure the release. But this impression or notion entertained by them as to plaintiff’s ownership did not establish the fact or estop anyone from asserting the contrary ; and even though we assume that there was sufficient evidence to warrant a submission of the question of fraud in procuring the release to the jury, no advantage could accrue to the plaintiff therefrom, because, no matter how much she may have been deceived in giving the release, she was in no way damaged if we are correct in our view that upon the evidence she made out no case showing ownership in the house. In other words, no matter how her signature to the paper called the “release” or “surrender” was obtained, it could not have damaged the plaintiff, except in the event that she had an interest in the house which she surrendered or released. In view of the rule of law which presumes that buildings, if erected by one person on the land of another, become part of the realty, and pass with the conveyance of the land, unless by the agreement of the respective owners they are to be regarded as personal property, and the other rule to which we have adverted,—that if a tenant, having the right to remove the house, accepts a new lease of the land without reservation of or making claim to the building, his right of removal is lost, even if his possession has been continuous,—and in view of plaintiff’s failure to bring herself within the exception to this rule by evidence showing, not only original ownership in her of the house, but that in her continuous possession and tenancy from year to year this separation was preserved, and her right to regard it as personal property not lost, she has failed to produce the proof of ownership essential to maintain her action.

Upon this ground of such failure, we think the direction was right, and that the judgment should be affirmed, with costs.

All concur.


author: Yan Brunt, P. J. Follett, J.

text:
    Edith Tinker, App’lt, v. Metropolitan Elevated Railway Company et al., Resp’ts.

      (Supreme Court, General Term, First Depm'lment,

      Filed November 16, 1894.)

    Deed—Descbiptioit.
    A deed, describing the land as bound in front by a certain street, conveys title to the center of such street.
    Appeal from a judgment, dismissing the complaint on the merits.

      II. A. Forster, for app’lt; O. T. Aldrich, for resp'ts.
   Yan Brunt, P. J.

This is one of the class of actions, with which the court has become somewhat familiar, brought to recover damages because of the construction of the elevated railway in front of and upon the plaintiff's property, and an appropriation of the easements appurtenant thereto. Without considering the many points which have been raised by'the appellant, and which are claimed to be fatal to the judgment herein, it will only be necessary to call attention to one radical error which has pervaded such judgment, which not only may have, but probably did, work great disadvantage to the plaintiff in the consideration of her claim for damages because of the rights appropriated by the defendants in the construction of their railroad. The plaintiff claimed in her complaint that she was the owner of the fee to the center of the street. She requested the referee to find this fact, which was refused. This claim was based upon the description of the premises contained in the deed by which the plaintiff derived title. It is as follows: “All that certain lot, piece, or parcel of land situate, lying, and being on the northerly side of Murray street, in the Third ward of the city of Mew York, being part of the land heretofore belonging to the rector and inhabitants of the city of Mew York, commonly called the ‘ Church Farm,’ and distinguished on a map or chart thereof by the number 380, being the eastern part of said lot, and bounded as follows: Southerly in front by Murray street, westerly by the premises heretofore conveyed by Jonathan Sturgis and Mary P., his wife, to Francis W. Hutchins, northerly, in the rear, by lot Mo. 381, containing in breadth in front and rear 22 feet, and in length on each side 100 feet, being the same premises now known by the street number 43 Murray street.”

That such a description carries to the center of the street has been too long the settled law of this state to need the citation of authority. The referee, therefore, erred in refusing to find this fact. The judgment appealed from must be reversed, and a new trial granted, with costs to the appellant to abide the event, and the order of reference vacated.

Parker, J., concurs.

Follett, J.

(dissenting).—I do not think that the reason assigned is sufficient to reverse the judgment. It is true that the referee refused to find as a fact that the plaintiff owned the fee of Murray street to the center thereof, but it may be that his refusal was upon the ground that he had already found this fact, as he had in effect. See the fourth finding of the facts found, wherein he sets forth a copy of the description of the plaintiff’s deed, from which it appears that the plaintiff owned the fee to the center line of the street. He finds that the plaintiff is now seized in fee and. possessed of all the premises embraced within that description. This seems to me to cover the point, and that it was error for him to refuse to find the fact upon the request of the plaintiff.


author: Follett, J.

text:
    Catharine Gunning et al., as Administrators, App’lts, v. Denis Quinn, Resp’t.

      {Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Conversion—Lien.
    A recovery cannot be had for the conversion of money on-which defendant has a lien as attorney, unless it is shown that the amount due has been paid or tendered to him.
    Appeal from a judgment entered on a verdict directed by the court in favor of the defendant, and from an order denying a motion for a new trial.

      Albert I. Sire, for app’lts; J. Woolsey Shepard for resp’t.
   Follett, J.

This action was brought to recover $1,623.43, alleged to have been converted by the defendant April 19, 1893, an order was duly granted and entered in this court by which it was—“ Ordered that said motion be, and the same hereby is, granted, and the defendant, the Morth Biver Savings Bank, is hereby ordered and directed, upon due service upon it of a certified copy of this order, to pay to James Gunning and Catharine Gunning, administrators of the estate of Martin Gunning, deceased, or to either of tiiem, or to Denis Quinn, their attorney, the sum of §2,359.75 dollars, deposited with said bank to the credit of said Martin Gunning, deceased, together with all the accrued interest due at the time of said payment.”

On the day of the entry of the order, the defendant drew from the bank $2,529.27, and on the 2d of May, 1893, he made out an account against the plaintiffs for services rendered and disbursements made as an attorney in several matters, including the recovery of the money in question, which had been in litigation for about two years. His bill as rendered amounted to $1,628.43, which, deducted from the sum drawn on the bank, leaves $905.84, for which he sent the plaintiffs his check, which was received. One of the plaintiffs’ witnesses denies that the check was accepted, but it is alleged in the complaint that defendant had paid the plaintiffs $905.84; and the action was brought for the recovery of the remainder—$1,623.43. The defendant came rightfully into possession of the money, upon which he had a lien for his services and disbursements. To maintain trover, the plaintiffs were required to show (1) that the defendant had been paid the amount due him; or (2) that the plaintiffs had tendered the defendant the amount due him. Before the owner of personal property held by another under a lien can recover for a conversion of the property for its simple detention, the plaintiff must show a payment of the lien or a tender of an amount sufficient to pay the lien. Bush v. Lyon, 9 Cow. 52; Everett v. Coffin, 6 Wend. 603; Clark v. Costello, 79 Hun, 588; 61 St. Rep. 556; Jones, Pledges, § 570; 2 Sclw. Nisi Prius (13 ed.) 1326.

Ho attempt was made to show a tender, but the plaintiffs relied upon proving an agreement with the defendant by which he was to perform all of the services which he had rendered for $400, and which had been paid him. We think the evidence given on the part of the plaintiffs of payment was entirely insufficient to raise a question whether they had paid the defendant $400, assuming that there was an agreement that he should accept that sum. Mr. Shepard, another attorney, was employed to assist the plaintiffs in the litigation, and they paid him $250. Ellen Gunning, the daughter of one and the sister of the other plaintiff, testified that the defendant owed her $66 for fixing gutters, leaders and roofs on liis property. This sum was not an offset, unless by the agreement of the parties, and none was shown. Aside from these two items, the sister testified that the defendant had been paid $180 at different times, and, in addition, that she had made payment of various other small sums for disbursements. There is no evidence that the defendant agreed to perform all of the services and make all of the disbursements for $400, and the plaintiffs utterly failed to show that the defendant had been paid the sum which they say they had agreed to pay him, and consequently they failed to establish a right to recover. The judgment being affirmed, it is entirely unnecessary to consider the plaintiffs’ appeal from the order refusing to compel the defendant to furnish a bill of particulars. The judgment and orders should be affirmed, with costs.

All concur.


text:
    John G. Fuchs, Resp’t, v. John A. Morris, App’lt.

      (Supreme Gourt, General Term, Krst Department,

      Mled November 16, 1894.)

    1. Deposition—Commission—Irresponsive answer.
    When irrelevant and inadmissible evidence is given by an irresponsive answer to an interrogatory upon submission, it is error to refuse to strike it out on a motion, based on the ground that the answer is irresponsive.
    2. Evidence—Weight.
    The evidence that an instrument was well manufactured, of the best materials, and perfect, cannot prevail over positive and uncontradicted evidence that it was found defective immediately after» it was put in place, and continued to be defective in operation until rebuilt.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Alfred B. Oruikshanlc, for app’lt; Edward Q. Black, for resp’t.
   Follett, J.

The defendant did not move for a nonsuit, or that a verdict be directed in his favor, and the plaintiff did not ask that a verdict be directed in his favor as to any of the counterclaims. The questions contained in the record are presented by the defendant’s exceptions taken to the rulings upon the admissibility of evidence, to the refusals to charge as requested, and to the charge as delivered, and by the appeal from the order. The action was brought to recover the last installment of the purchase price of an orchestrion. The defendant alleged as a defense that the instrument was defective in design and construction, and that the plaintiff failed to perform his contract in respect to it. He alleged by way of counterclaim that he had sustained $6,000 damages by reason of the defective construction of the instrument. Other counterclaims were set up in the answer, which need not be here specially referred to. April 25, 1890, the litigants entered into a written contract by which the plaintiff agreed to—•“ Well and sufficiently make, finish, complete, and deliver, and set up the musical instrument described in the specifications hereto annexed, commonly known as an 1 orchestrion,’ agreeably to the said specifications signed by the said parties, and hereunto annexed, within ten months from the date hereof, in a good, workmanlike and substantial manner, to the satisfaction of Thomas R. Jackson, to be testified by a writing or certificate under the hand of said Jackson.”

The contract contained the following covenant; “And in consideration of those presents said Fuchs hereby represents, guaranties, and warrants that said orchestrion will be a first-class instrument, and will keep in perfect running and working order, and in all respects be satisfactory, for five years after its erection, and will during all such time utter and furnish good and satisfactory tones and music, and agrees to time the same as often as required, and to keep it in order and to do all repairs thereto for such period. He also represents that such instrument does not require expert or extraordinary skill or care in its management”

The orchestrion was built for use in the New York Jockey Club House at Westchester. The defendant agreed to pay for it $14,300, in four equal installments of $3,575,—-the "first on the execution of the contract; the second, when the instrument was received at the customhouse in the city of New York; the third, when it was set up in the clubhouse; and the fourth, “ six months after said instrument has been set up in the clubhouse, and is in operation there, provided said instrument is as represented herein in every respect.” The contract also provided that the covenants and agreements were to be strictly performed and kept by the plaintiff, and that “everything will be made in a good, workmanlike, and substantial manner, to best satisfaction."

The orchestrion was manufactured by Imhoff & Mukle at Yohrenbach, Germany. The deposition of a member of this firm was taken in behalf of the plaintiff, and by him read in evidence. The following question put to the witness, and answer, were contained in the deposition: “ Q. State whether such cracking or splitting is due to faulty construction or poor or bad material in such cylinders, or the location, surroundings, or otherwise. State fully regarding the matter. A. The firm Imhoff & Mukle have manufactured, sold, and have in operation over two, thousand orchestrions. They are furnishers to her majesty, Queen Yictoria. That they have many such instruments in Great Britain, France, and Germany. That the orchestrion furnished the_ Jockey Club was the very best and most complete that the firm of Imhoff & Mukle could make. That special care and labor were bestowed upon it, as it was the first of the largest-sized orchestrions that was sent to America. Tnat it was the aim of said firm to give perfect satisfaction, as they did desire to extend their trade into the United States. (Defendant’s counsel objects to the answer as not responsive, and moves it to be stricken out. Overruled, and defendant excepts.)”

The plaintiff seeks to justify this ruling upon the authority of Fassin v. Hubbard, 55 N. Y. 465, in which. it was held that : “ Testimony, otherwise competent, taken upon commission, is not to be rejected because not responsive to the interrogatory, any more than that given upon an oral examination upon trial because not responsive to the question.”

The answer above quoted is not otherwise competent, but is utierly'irrelevant. But we find no case holding that, when irrelevant and inadmissible evidence is given by an irresponsive answer, it is not error to refuse to strike it out, on a motion based on the ground that the answer is irresponsive. Lansing v. Coley, 13 Abb. Pr. 272; Terry v. McNeil, 58 Barb. 241; Railway Passengers' Assurance Co. v. Warner, 1 Thomp. & C. Addenda, 21. There was no way in which this evidence could have been made competent. Whether the firm had furnished her majesty, Queen Yictoria, with an orchestrion, and their aims and objects in manufacturing the one in question, were facts utterly immaterial to the issue provided in the trial of this case. The answer, in its whole scope, is utterly irrelevant, and of a nature likely to influence the jury. It might well have been objected to on the ground that it was irrelevant to the issue, but it was not; and we think that this court, in the exercise of its right to grant a new trial when it believes that injustice may have been done, should not disregard this exception.

Upon the issue whether there was a breach of the warranty of the quality of the instrument, and of the covenant that it should be kept in perfect running and working order, and in all respects satisfactory, for five years, we are of the opinion that the verdict was contrary to the weight of evidence. The plaintiff concedes that many defects were found in the instrument immediately after it was put in operation, and that other defects were being continually developed from time to time during the following year, but he insists that these defects arose from two causes: (1) The excessive heat communicated by two steam pipes passing in the rear and near to the instrument; and (2) careless handling of the instrument by the defendant’s employes. The instrument was set up in April and May, 1891, and was played for the first time on the 25th of May. Early in June it was found to be defective in operation, and from, that time until autumn it was frequently repaired by the plaintiff, and early in the autumn the cylinders of the instrument were found cracked and warped. The evidence on the part of the defendant is that the steam was shut off from the pipes passing near the instrument, and that no steam was allowed to pass through them after the instrument was put up. There is no evidence on the part of the plaintiff that these pipes, which were designed to communicate steam for heating the upper floors, were used for such purpose during the summer of 1891; and it seems quite impossible that these checks, cracks, and warpings could have been developed during the summer by the excessive heat caused by these pipes. The plaintiff does not assert that these checks, cracks, and warpiugs were caused by the improper handling of the instrument by the defendant’s employes, but that such handling did bend and injure the pins on the cylinders. It is true that one of the manufacturers of the instrument testified that it was well made and perfect in every respect. In Boughton v. Smith, 142 N. Y. 674; 60 St. Rep. 389, it was said : “The plaintiffs gave evidence that the floors were of the best material and workmanship. This does not meet the specific and uncontradicted evidence.as to shrinkage, and the acts of the plaintiffs in relaying and repairing them show that the general statements [by defendant, that he was satisfied with the floor] were not intended to cover this defect.”

So, in this case, the evidence that the instrument was well ■manufactured, of the best materials, and perfect, is entitled to very little weight, as against the positive and úncontradicted evidence that it was found defective immediately after it was put in place, and continued to be defective in operation until it was rebuilt

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

All concur.


author: Per Curiam.

text:
    Alfred Blum et al., Resp’ts, v. Philip A. Jung et al., Def’ts. National Bank of Illinois, Subsequent Attaching Creditor, App’lt.

      (.Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Attachment—Affidavit.
    An. affidavit, on which an attachment is granted, is defective, where it does not state facts sufficient to constitute a cause of action.
    Appeal from an order denying a motion to vacate an attachment
    The affidavit on which the attachment was granted is as follows:
    Alfred Blum, of the said city, being duly sworn, says: (1) That the plaintiffs above named, Alfred Blum and Lucas Toch, are copartners, and are entitled to recover from the defendants above named, who are copartners carrying on business as American Saloon & Fixture Company, the sum of twenty-two hundred and twelve 62-100 dollars, over and above all counterclaims known to deponent, one of the plaintiffs, and known to the plaintiffs, upon one of the causes of action mentioned in section 635 of the Code of Civil Procedure, and particularly set forth in subdivision 2 of this affidavit. (2) That heretofore the plaintiffs sold and delivered to the defendants, at their special instance and request, goods, wares, and merchandise at prices agreed upon. That the defendants have made payments to the plaintiffs for and on account of such merchandise, and that there remains due and owing to plaintiffs from said defendants the said sum of twenty-two hundred and twelve and 62-100 dollars ($2,212.62). (3) That the defendants above named are natural persons, adults, and are nonresidents of the state of New York, but are residents of Chicago, in the state of Illinois, and have properly within this state subject to levy and sale; that the sources of deponent’s knowledge and the ground of his belief is derived from correspondence had'with the defendants, the letter head of defendants’ firm, and conversations had with one of the defendants, in which was stated that the defendants resided in Chicago, Illinois. (4) That the plaintiffs are about to commence an action against the defendants for the cause above stated, by issuing the summons hereto annexed, and no previous application for an attachment has been made herein.

      A. Blumenstiel, for app’lts; G. W Galinger, for resp’ts.
   Per Curiam.

The affidavit on which the attachment was granted was defective, in that it did not state facts sufficient to constitute a clause of action. The order should be reversed, with $10 costs and printing disbursements, and the motion granted, with $10 costs.


author: Parker, J.

text:
    Anna Mortland, App’lt, v. Philadelphia and Reading Railroad Company, Resp’t.

      {Supreme Court, General Term,, First Department,

      Filed November 16, 1894.)

    1. Gabbier—Liability.
    The liability of a company, as a common carrier, for a trunk checked from one place to another continues from the time it is checked until its arrival at its destination, and for such time thereafter as will afford the owner a reasonable opportunity to remove it.
    2. Same—Reasonable time.
    What constitutes such reasonable time, where the facts are undisputed, is a question of law for the court to determine.
    3. Same—Warehouseman.
    After the expiration of such reasonable time, the liability of the company as a carrier becomes changed into that of a warehouseman.
    4. Same.
    As such warehouseman, it can be charged with liability for the loss of the trunk only on the ground that it was negligent and failed to discharge in full the duty it owed to the owner.
    Appeal from a judgment dismissing the complaint with costs, and from an order denying a motion for a new trial.

      Jonathan G. Boss, for app’lt; Pierre M. Brown, for resp’t.
   Parker, J.

The baggage manager of a theatrical company, of which the plaintiff was a member, caused the baggage of the company, as well as that of the individual members of it, to be checked from Wilmington, Del., to Mahoney City. After the car in which the baggage checked was carried had arrived at Mahoney City, the manager of the theatrical company went to the car, in company with the baggage man in the employ of the defendant, who unlocked the car and opened it. All of the checks were at that time delivered to him by the manager of the theatrical company, who informed him that he only desired to take out the baggage of the company which would be required for use at the performance in the evening, leaving the other trunks in the custody of the defendant. He was informed by defendant’s baggage man that he might as well deliver up all the checks; that everything would be safe, because the car would be only 200 feet from the depot, and the defendant had a night watchman. This suggestion was acted upon, the property necessary for the evening’s performance being taken from the car, after which the door of the car, which had a snap lock on it, was closed. Among the trunks left in the car was one belonging to this plaintiff, the contents of which were of the value of $500. After the evening’s performance was at an end, the trunk was missing. Subsequently the trunk was found, but the lock was broken, and its contents had been taken away.

The trial court rightly, as we think, dismissed the complaint, after the plaintiff had rested her case. Defendant’s liability to the plaintiff as common carrier was in force from the time the trunk was checked at Wilmington until after its arrival at Mahoney City, and for such a time thereafter as should afford plaintiff reasonable opportunity to remove it. Roth v Buff. & S. L. Railroad, Co., 34 N. Y. 518; Fenner v. Buff. & S. L. Railroad Co., 44 N. Y. 505; Burnell v. N. Y. C. Railroad Co., 45 N. Y. 184; Mattison v. N. Y. C. Railroad Co., 57 N. Y. 553. As to what constitutes a reasonable time cannot be measured by any arbitrary and inflexible rule, but depends upon the circumstances of each case. When, however, the facts are undisputed, what is a reasonable time is a question of law for the court. Hedges v. H. R. Railroad Co., 49 N. Y. 223. In this case .the facts were not in dispute. Only one witness was sworn, and he was the baggage manager of the theatrical company. His testimony required the court to hold that, before the trunk was taken from the possession of the defendant, the plaintiff had had a reasonable time within which to remove it, because the person who was authorized to act for her, and for that purpose had possession of the check, removed from the same car other baggage, and could have removed this had he desired to do so. For his own convenience, or that of his principal, or both, he elected not to take it away, but to leave it in the custody of the defendant. The baggage master of the defendant suggested that he leave it in the car, and told him where the car would be located, and that the defendant had a night watchman. Plaintiff’s representative acquiesced in the suggestion, delivered the check, with others, to the baggage master, and the car was closed. Thus was terminated defendant’s relation to the plaintiff as common carrier of her trunk. Dininny v. New Haven Railroad Co., 49 N. Y. 546, is not an authority for the plaintiff. The decision in that case was predicated on a finding of fact, that the plaintiff caused the demand to be made for said trunk and contents within a reasonable time, and made reasonable efforts, and within a reasonable time, to demand and procure the trunk and contents; and that the defendant refused and neglected to deliver the contents of said trunk.” We have not overlooked the case of Burgevin v. N Y. C. & H. R. R. R. Co., 69 Hun, 479; 52 St. Rep. 617. The proposition of law which the court asserts to be controlling in such a case as this accords with the views we have expressed, but, under the peculiar circumstances of that case, it was held that plaintiff called for his trunk within a reasonable time after its arrival at the station. It does not follow, of course, that, because defendant’s responsibility as a carrier ceased, the company could thereafter leave it uncared for. It still owed a duty to the plaintiff in respect to the trunk. The strict responsibility of a carrier had been changed to a modified liability, such as that of a warehouseman. As a warehouseman, the defendant could be charged with responsibility for the loss of the trunk only on the ground that it was negligent, and failed to discharge in full the duty it owed to the defendant as such. But upon the question of negligence the record is silent, hence no question was presented for the consideration, of the jury.

The judgment should be affirmed.

Follett, J., concurs.

Yak Brunt, P. J.—I concur. The only witness examined for the plaintiff shows that the baggage was delivered. He says that he gave the checks to baggage man, who delivered the baggage to him; that then the witness asked to leave some of the baggage' there. This testimony is reiterated at folio 22. The witness says : “ After I got this baggage, I asked the baggageman to leave some of the stuff in the car, and he said it would be all right.” This evidence shows clearly that the obligations of the defendant as carrier had ceased.


author: O’BbiejST, J.

text:
    Jacob Hirschfeld, App’lt, v. Frederick A. Kursheedt et al., Resp’ts.

      (.Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Corporations—Stockholders—Liability.
    Section 55 of the stock corporation law is to be construed in connection, with § 53 of the banking act.
    2. Same.
    A complaint against a stockholder for a debt of. the bank, where the requirements of § 55 have not been complied with, must allege facts show ing that such compliance was impossible.
    Appeal from an interlocutory judgment sustaining a demurrer to the complaint.

      Louis Marshall, for app’lt; Joseph Fettretch, for resp’ts.
   O’BbiejST, J.

The material allegations of the complaint are as follows: (1) That such bank is a domestic corporation, organized and doing business under the laws of this state relative to banks. (2) That an action was commenced in this court on the 10th day of August, 1893, by the People of the state of New York against the Madison Square Bank, for its dissolution on the ground of insolvency, etc. (3) That on November 24, 1893, a final judgment was entered in the office of the clerk of New York county dissolving such corporation, forfeiting its franchises and providing for the distribution of its assets among its creditors,, forever restraining it from exercising its corporate franchises, etc., and restraining its several creditors from instituting any action against it. (4) That defendants O’Brien and Cannon, in and by said judgment, were duly appointed permanent receivers of such bank, and have qualified. (5) That the capital stock of the bank is $500,000, and that it was, at the time of the commencement of this action and the rendition of the ^decree of dissolution, held and owned by the defendants in the amounts stated. (6) That, prior to the commencement of said action (People’s), the plaintiff herein had only deposited with said bank moneys belonging to him to the amount of $5,334.41, for which said bank was on that day indebted to him; that a portion of this amount has been paid, and that there is now due plaintiff $4,024.56, with interest from August 10, 1893. (7) That said bank is also indebted to divers other creditors to an amount exceeding $1,000,000; that the assets of said bank which have come into receivers’ hands are inadequate to pay in full said bank’s liabilities, and that, after the application of said assets to the payment of such liabilities, there will remain a deficiency upon the aggregate claims of such creditors exceeding the sum of $500,000.

The defendants Kursheedt demur upon the ground that the complaint does not state facts sufficient to constitute a cause of action, and from the decision and judgment thereon, sustaining the demurrer, this appeal is taken.

The statute under which the action is brought is § 52 (chap. 689) of the “ Banking Law ” of 1892, and is as follows : “ Except as prescribed in the stock corporation law, the stockholders of every such corporation shall be individually responsible, equally and ratably, and not one for another, for all contracts, debts and engagements of such corporation to the extent of the amount of their stock therein at the par value thereof, in addition to the amount invested in such shares."

The stock corporatson law of 1892 (chap. 688), § 55, reads as follows: “Ho action shall be brought against, a stockholder for any debt of the corporation until judgment therefor has been recovered against the corporation and an execution thereon has been returned unsatisfied in whole or in part, and the amount due on such execution shall be the amount recoverable, with costs, against the stockholder. Ho stockholder shall‘be personally liable for any debt of. the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against a corporation within two years after the debt becomes due, and no action shall be brought against a stockholder after he shall have ceased to be a stockholder for any debt of the corporation unless brought within two years from the time when he shall have ceased to be a stockholder.”

It will be noticed that the banking law (§ 52) expressly refers to the stock corporation law, and the latter, in its classification as to what is to be considered as a stock corporation within the meaning of that law, in addition to a transportation and a business corporation, also includes a moneyed corporation, which latter, again, is defined by § 3 of the law (Laws 1892, chap. 687) as one “formed under or subject to the banking or insurance law.” It is clear, therefore, that the provisions of the stock corporation law embrace a banking corporation, and are applicable thereto; and, where a liability is created against the stockholders by the banking law, the provisions of the stock corporation law limiting such liability must be considered. Our conclusion upon this branch of the case is that the learned judge below was correct in holding that § 55 of the stock corporation law was to be construed in connection with § 52 of the banking act. It must be remembered that the latter is a special law applicable to banks, and creating a liability with respect to the stockholders thereof, while the stock corporation law is a general law, applicable, not only to banks, but to other classes of corporations in most respects dissimilar to a bank. In construing a general law applicable to different and dissimilar corporations, it is proper that such a construction should not be given to it as would render it unreasonable and meaningless. There is therefore much force in the contention that, if all the provisions of § 55 of the stock corporation law are to be literally consolidated with § 52 of the banking law, it would be impracticable to pursue a stockholder of a banking corporation, and the liability created in favor of creditors would be taken away. Because such liability, so far as the stockholders of a bank are concerned, never would arise until the insolvency of the bank, which, when it occurs, is followed by the placing of a temporary receiver in possession of the property, whose position is usually fortified by an' injunction restraining any action on the part of creditors; and, by express provision of law (Code, § 1806), such a restraining order is part of the judgment of dissolution, which it is provided shall have the same effect “as if each creditor upon whom it is served was named therein and was a party to the action in which it was granted.” There are cases which are seeming authority for the proposition that, where the performance of conditions precedent is rendered impossible by the act of the law, then such performance is excused and dispensed with. Shellington v. Howland, 53 N. Y. 371, 375; Kincaid v. Dwinelle, 59 N. Y. 548; Flash v. Connecticut, 109 U. S. 371; Hardman v. Sage, 124 N. Y. 25, 31; 35 St. Rep. 54; Nat. Tradesmens Bank v. Wetmore, 124 N. Y. 241; 35 St. Rep. 316. Whether allegations showing that the plaintiff could not obtain, or was prevented from obtaining, a judgment, and issuing an execution against the bank, would be sufficient, is a question that we are not called upon now to decide, and which is reserved, until it is directly presented; it being sufficient, so far as this appeal is concerned, to point out that this complaint nowhere alleges facts showing that the defendants or others have rendered the requirements of the statute impossible of performance. This, we agree, must appear, for where a liability is to be predicated upon the compliance by the plaintiff with certain conditions, the complaint must allege either such compliance or such facts as would show that compliance was impossible.

There is a statement that, by the final judgment, creditors were restrained from instituting any action against the bank; but, as this final judgment was not entered until some months subsequent to the commencement of the people’s suit, there was a period during which, so far as it now appears, an action could have been instituted. If, therefore, from the commencement of the people’s suit, the corporation liad been enjoined from the exercise of its corporate powers, and the temporary receivers of its property had been appointed at the same time, and creditors enjoined from proceeding against it, these facts should appear, or some reason should be given for plaintiff’s failure to proceed and comply with the conditions entitling him to maintain his action. In addition to this objection, we think that where no judgment is alleged it should at least be shown that there is an indebtedness which, upon presentation to the corporation or its receivers, has been allowed; and the facts in connection with such indebtedness should be made to appear in such a way that the court can determine whether or not it was contracted subsequent to the passage of the act of 1892. The statements that the bank was indebted to the plaintiff, and that plaintiff had duly deposited, are conclusions. These may be true, and still plaintiff have no action. As against a stockholder, allegations of the time when the debt was contracted and when it became due are important, for a stockholder is not liable “ for any debt of the corporation not payable within two years from the time it is contracted, or unless an action for its collection shall be brought against the corporation within two years after the debt becomes due.” And, again, to hold a stockholder, the plaintiff should state, not only that he made a deposit of money during the time that the person whom he seeks to hold liable was a stockholder, but that he made such deposit without any condition or limitation, and in such form as to entitle him to demand his money at any time; because, for aught that appears, the deposit may have been a special one, payable on demand, or in years, or for some special purpose, or conditionally, and thus be an obligation of the corporation for which the stockholder might not be liable. Whether the debt was one contracted before or after the present law of 1892 is important, because a stockholder’s liability prior thereto was fixed by article 8, § 7, of the Constitution, which confined the liability to stockholders of banks issuing notes or paper credits to circulate as money. By the act of 1892 the liability was enlarged, so that it is no longer necessary to show that the bank was engaged in issuing bank notes; but this should appear if recovery is sought for a debt contracted prior to 1892.

Apart, therefore, from the main question, which has been reserved, we think the other objections to the complaint, some of which we have pointed out, were sufficient to justify the conclusion reached by the learned judge at special term in sustaining the demurrer, and that the judgment appealed from should be sustained, with costs, but with leave, upon payment thereof, to amend.

All concur.


author: O’Driest, J.

text:
    Jacob Hirschfeld, App’lt, v. Adolph S. Kalischer et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Pleadings—Demurrer—Receiver.
    A failure to allege leave to sue a receiver is not ground of demurrer.
    3. Same—Leave nunc pro tune.
    Leave nune pro tuna may be granted after action brought.
    Appeal from an interlocutory judgment sustaining a demurrer to the complaint.

      Louis Marshall, for app’lt; Hoffman Miller, for resp’ts.
   O’Driest, J.

In addition to the grounds assigned and discussed in the case of Hirschfeld v. Kursheedt (decided herewith) 63 St. Rep. 217, another question is here presented. It is insisted that there is a defect of parties defendant, based upon the theory that the complaint fails to show that the plaintiff has obtained leave to make the receivers parties defendant. As matter of fact, the receivers are defendants, and the objection is directed to the failure to allege that leave was obtained to make them such defendants. While it would have been better to have Secured permission, and to have alleged it, we think that the appellant is right in his contention that it has never been held in this state that the commencement of an action against a receiver without leave presents a jurisdictional question; the courts never going beyond the proposition that, when an action has been commenced against a receiver without leave, the court acquires jurisdiction of the receiver by service of the summons, and the remedy applied is either a stay of proceedings upon the part of the plaintiff, or to punish him for contempt of court, or both, and upon such application, if the court believes that the case is a proper one for granting leave, such permission will be granted nunc pro tune. To avoid this objection, we think the plaintiff should be permitted to apply for leave, if he avails himself of the’permission granted to amend. Apart from this, however, upon the grounds and for the reasons stated in the Kursheedt Case, the judgment appealed from should be affirmed, with costs and disbursements, with leave to plaintiff, on payment of the same, to plead over.

All concur.


author: Van Brunt, P. J.

text:
    In the Matter of the Application of Frances M. Peaslee for Payment of a Legacy.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Will—Legacy—Action for.
    A legatee, who has been unsuccessful upon an application to revoke probate of a will, is not thereby precluded from enforcing payment of .the legacy during the time that she might appeal from such adverse decision.
    3. Surrogate—Jurisdiction.
    A surrogate’s court cannot enforce the contingent claims of executors by means of equitable setoff.
    Appeal from an order of the surrogate directing payment of a legacy.

      T. H. McGrath, for app’lt; W. H. Arnoux, for resp t.
   Van Brunt, P. J.

It appeared that one Peaslee died in 1878, leaving a will, which contained the following clause: “I give to my daughter, Fannie M. Peaslee, $20,000 in money, or its equiv-lent in stocks, as my executor may decide, and $20,000 in trust, the same to revert at her death, if without issue, equally to my wife and son.”

This $20,000 in trust was paid over to the said Fannie M. Peas-lee, who lost the same. The persons entitled to this fund in the event of Fannie M. Peaslee dying without issue are Edward H. Peaslee to the extent of $10,000, and Edward H. Peaslee and Hiram Hitchcock, as executors of Martha K. Peaslee, to the extent of $10,000. By the will of Martha K. Peaslee, a legacy of $30,000 was bequeathed to Fannie M. Peaslee, of which sum $7,000 has been paid, and the order appealed from directed the payment forthwith of the balance of $23,000. After the will of Mrs. Peaslee had been admitted to probate, Fannie M. Peaslee made a motion for the revocation of the probate. This motion was heard by the surrogate, and denied. Thereupon she appealed to the general term of this court, and the decree was affirmed, on the ground that she, having accepted the payment of $7,000 on account of the legacy bequeathed to her, had estopped herself from contesting the validity of the will. It is now urged that Fannie M. Peaslee, having accepted from the executors $7,000 on account of the legacy bequeathed to her by the will of Martha K. Peaslee, cannot now assert that the balance shall be paid to her pending the expiration of the time within which the Code of Civil Procedure prescribes that she shall have the right to appeal. The force of this objection we are unable to see. The time for the payment of the legacy has arrived, and she is entitled to its payment. What effect such payment may have upon other proceedings is a question with which we have nothing*to do upon this application.

It is further urged that as to $20,000 of the sum of $23,000 which the surrogate had directed the executors to pay they have a valid right of set-off. We are unaware of any authority on the part of executors to offset contingent claims against absolute legacies. These executors are entitled to nothing unless Fannie M. Peaslee dies without issue. And this contingent claim they seek to offset against her absolute right to her legacy given by the will of which they are executors. It seems to us that the surrogate’s court has no equitable powers which would enable it to enforce the contingent claims of the executors by means of an equitable set-off. The position of the appellants seems to be based upon the claim of an existing right of possession of this money which clearly does not exist. Therefore, under the rule laid down in Fera v. Wickham, 135 N. Y. 223; 47 St. Rep. 866, the right of set-off did not exist, even if the surrogate had the power to entertain such an application.

The order should be affirmed, with ten dollars costs and disbursements.


text:
    Cochrane Carpet Company, Resp’t, v. Henry G. Howells et al., App’lts.

      (/Supreme Oowrt, General Term,, -First Department,

      Filed November 16, 1894.)

    Bill of particulars—When not granted.
    A MU of particulars should not he ordered, where its only purpose is to limit the evidence which a party may he able to produce upon the trial, to maintain his side of the issue.
    Appeal from an order requiring a bill of particulars of matters alleged in the answer.

      William H. Arnoux, for app’lts; M. Begensberger, for resp’t.
   O’Brien, J.

The appeal is from the entire order, and from each and every part thereof, but the appellants, conceding the validity of the order in other respects, complain of that portion which requires the bill of particulars to state the dates upon which the requests or demands mentioned in the eighth and ninth paragraphs of their answer, respectively, were made. The action is the ordinary one for goods sold and delivered. In addition to a denial, the answer sets up a counterclaim,—that the parties entered into a contract for 2,000 pieces of goods, to be delivered within a year, of which the goods sued for were a part; that the goods were to be delivered at the rate of 500 pieces every three months, and in larger quantities if desired ; that the plaintiff did not make the deliveries as contracted for, although the defendants requested and desired such delivery, and that plaintiff has wholly failed to deliver the balance, “ although these defendants have many times demanded that the plaintiff should forthwith deliver the same to the defendants.” The reply, after denying that this was a proper construction of the contract, admits that defendants sent orders for some of the goods during the first three months, but after the receipt of said orders continually shifted and changed the order, so that plaintiff was unable to have all of the same ready for sale and delivery to the defendants.

The question presented, therefore, is, whether it was proper to require the defendants to state the dates upon which the requests or demands mentioned in the answer were respectively made. Hpon the issue thus raised it is conceded that requests or orders were made, but these are sought to be avoided upon the ground that they were so changeable and shitting that the plaintiff was unable to get all of the goods ready in time to deliver. It is therefore incumbent upon the plaintiff to show that the requests or orders were changeable and shifting, no question arising but that they were given ; and the only purpose that could be served by requiring of the defendants a statement of the dates would be to exclude requests and demands at times other than those given in the bill of particulars. The primary purpose of a bill of particulars is to give information or such details of a claim presented against another as justice requires. When ordered, and not given, it excludes evidence, and upon a trial confines the party to the particulars which he is thus required to give; and this is done to prevent surprise or injustice upon the trial. Here the information sought as to the dates when these demands were made of plaintiff are as much within the latter’s knowledge as that of the defendants, and the object, therefore, cannot be to furnish information, but to limit the defendants in the scope of their proof in meeting the affirmative issue raised by the plaintiff,—that the orders were so changeable and shifting that the plaintiff could not get the goods ready so as to complete the whole contract It is not the office of a bill of particulars to limit the evidence which a party may be able to produce upon the trial to maintain his side of the issue, and where that is the only purpose to be served the particulars should not be ordered. We think that the order, in this respect, was too broad, and that it should be modified by striking therefrom that portion requiring a statement of the dates upon which the requests or demands were made. The appeal, as stated, was from the entire order, and the contention below was against giving any particulars of the counterclaim, all of which it is now conceded the plaintiff was entitled to, except in the particulars above mentioned, about which upon the moving papers no special stress was laid, nor does it appear to have been specifically called to the attention of the judge at the special term.

We think, under these circumstances, that, while the order should be modified in the respect indicated, it should be without costs.


author: Peb Cubiam.

text:
    Nason Manufacturing Company, Resp’t, v. Craft Refrigerating Machine Company, App’lt.

      (Supreme Qourt, General Term, First Department,

      Filed November 16, 1894.)

    1. Attachment—Affidavit.
    An allegation in the affidavit that the sum therein mentioned is justly due and owing and that the plaintiff is entitled to recover that amount from the defendant over and above all counterclaims, is a sufficient averment of indebtedness to sustain an attachment.
    3. Same.
    An affidavit by the officer of a corporation that the complaint is true “ of his own knowledge," is sufficient, though it does, not state that he was an officer when the debt was contracted.
    Appeal from an order denying a motion to vacate an attachment.
    The affidavit on which the attachment was granted is as follows: Samuel Grreason, being duly sworn, says: “ That he is treasurer and general manager of the Nason Manufacturing Company, the plaintiff herein. (1) That the plaintiff above named, a domestic corporation, organized and created under the laws of the state of New York, is entitled to recover from the defendant above named, the Craft Refrigerating Machine Company the sum of ten hundred and seventy-eight and 73-100 ($1,078.73) dollars, with interest from the 22d day of August, 1894, over and above all counterclaims known to the plaintiff or to any of its officers or agents, upon one of the causes of action mentioned in § 635 of the Code of Civil Procedure, and particularly set forth in subdivision 2 of this affidavit. (2) That this action is brought to recover damages for a breach of contract, express or implied, other than the contract to marry, to wit, the refusal to pay as agreed the sum of $1,078.73, as more fully appears in the complaint herein, verified the 5th day of September, 1894. That no part of said sum of $1,078.73 has been paid, and the whole amount thereof, with interest from August 1, 1894, remains justly due and owing thereon from defendant to plaintiff, over and above all offsets and counterclaims known to plaintiff, or to any of its officers or agents. (3) That the defendant, the Craft Refrigerating Machine Company, is not a resident of the state of New York, but is a foreign corporation, organized and existing under the laws of the state of Connecticut, having its principal place of business at the city of New Haven, in said state; and that plaintiff is a domestic corporation, organized and existing under the laws of the state of New York, having its principal place of business at the city of New York. (4) That the plaintiff is about to commence an action against the defendant for the cause above stated, by issuing the summons, and serving it, with a' copy of the complaint, hereto annexed, and no previous application for an attachment has been made herein.

      Frederick Seymour, for app’lt; Ghas. De Hart Brower, for resp’t.
   Peb Cubiam.

The attachment was granted upon an affidavit and complaint, both of which were verified by Samuel Greason on September 5, 1894. The cause of actigm was for goods sold and services performed during a period of about fifteen months prior to and ending on August 22, 1894. Mr. Greason swears in his affidavit used upon the attachment that he is the treasurer and general manager of the plai ntiff. The two objections presented against the sufficiency of such affidavit and complaint are that there is no allegation that the goods were reasonably worth any sum, and that it is not stated that at the time the goods were sold and delivered or the services performed Mr. Greason had any connection with the plaintiff corporation. The first objection is disposed of in the opinion of the court below. In regard to the second, while it is true that in the affidavit the statement appears that Mr. Greason is the treasurer and general manager of the plaintiff, it is insisted that no inference from this can be drawn that he was such officer at the dates of the transaction sued upon. Whatever force there might be in this is met by the complaint, which accompanied the affidavit, and was referred to in it, and was part of the papers on which the attachment was granted, and which, in its verification, contains the statement that as treasurer of the plaintiff he has read the complaint, and “that the same is true of his own knowledge.” The support thus furnished to the affidavit by the complaint in respect to both objections as to the sufficiency of the papers entirely disposes of and answers them.

We think that the order appealed from was right, and should be affirmed, with ten dollars costs and disbursements.

The opinion of Mr. Justice Lawbence is as follows: The motion to vacate the attachment in this case will be denied on the authority of the case of Am. Exch. Nat. Bank v. Voisin, 44 Hun, 85; 7 St. Rep. 381. In that case it was held that an attachment which was issued in an action upon an affidavit made by the plaintiff’s cashier, which stated, among other things, that “ the plaintiff did, in September, 1886, advance and loan to the defendant the sum of $5,500, no part of which had been paid, and that said sum was then justly due and owing from the defendant to the plaintiff, over and' above all counterclaims known to the .plaintiff,” might be sustained on the presumption, from the tenor :of the affidavit, that the officer had actual knowledge of the facts which were therein stated in positive terms. In this case the attachment was issued upon an affidavit of the treasurer and general manager of the Nason Manufacturing Company, and it is expressly stated that “ the action is brought to recover damages for a breach of contract, expressed or implied, other than a contract to marry, to wit, the refusal to pay as agreed the sum of $1,078.73, as more fully appears in the complaint verified the 5th day of September, 1894. It is further alleged, that no part of said sum has been paid, and that the whole amount thereof, with interest from August 1, 1894, remains justly due and owing thereon from defendant to plaintiff, over and above all offsets and counterclaims known to plaintiff, or to any of its officers or agents.” This is a positive averment on the part of the officer making the affidavit that the sum aforesaid is due and owing, and the case of Am. Ex. Nat. Bank v. Voisin, above referred to, is authority for the presumption that the treasurer and general manager of the company, who makes the affidavit, had actual knowledge of the facts. There is not necessarily any conflict between the case of Am. Exch. Nat. Bank v. Voisin, supra, and the case of Manufacturers' Nat. Bank v. Hall, 60 Hun, 466; 39 St. Rep. 463, as in the latter case it does not appear that the president had any knowledge of the financial condition or affairs of the company, nor that he was president at the time the transaction took place oat of which the indebtedness arose, which the action under which the attachment issued was brought to recover. In this case the affidavit is made by the treasurer and general manager of the company, and a treasurer and general manager may be presumed to have knowledge of the financial condition of the company.

As to the second point taken by the counsel for the defendant, — that there is no allegation in the papers that the goods were reasonable worth any sum whatever,—I deem it sufficient to say that, as the affidavit on which the attachment was issued distinctly avers that “the sum therein mentioned is justly due and owing from the defendant to the plaintiff, and that the plaintiff is entitled to recover that amount from the defendant over and above all counterclaims, ” there is a sufficient allegation of indebtedness to sustain the attachment. See Allen v. Patterson, 7 N. Y. 476.

Ten dollars costs to plaintiff.

Ordered accordingly.


text:
    Barstow Stove Company, App’lt, v. Albert M. Darling, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Attachment—Aittdavit.
    An affidavit by an officer of a corporation, which states that he personally knows that there are no counterclaims, is sufficient, though it does not state that he was such officer when the debt was incurred.
    Appeal from an order vacating a warrant of attachment.

      George H. Pettit, for app’lt; Timothy M. Griffing, for resp’t.
   Parker, J.

The decision of this court in Manufacturers' Nat. Bank v. Hall, 60 Hun, 466; 39 St. Rep. 463, does not support the order appealed from, which vacates a warrant of attachment. It was not held in that case that an affidavit by an officer of a corporation is necessarily defective because it omits to allege that the affiant was such officer at the time the indebtedness alleged was incurred. The defects in the affidavit in that case were pointed out in the prevailing opinion as follows: “The affiant nowhere states that he has any knowledge of the financial affairs of the appellant corporation, or that he had any connection with its active business, or that he ever saw its books or accounts, or that he had any such relation to the business of the corporation as would justify the inference of knowledge as to its pecuniary affairs.” “We do not know even, from the papers, as to whether he was- connected with the company at the time of the transactions alleged in the affidavit.”

In this case it not only appears affirmatively that the affiant had knowledge of the financial affairs of the corporation in this state, where the cause of action arose, but the inference is justified that he was such officer at the time the defendant became indebted to the plaintiff. The affidavit asserts that deponent “ is the manager and agent of the Bars tow Stove Company, the plaintiff in the above-entitled action, in the state of New York, and has the general charge and management of the business of said plaintiff carried on within said state.” And after stating positively how the indebtedness arose, and when, the amount of the original indebtedness, and the sum remaining due and unpaid at the time of thfe commencement of the action, the affidavit continues : “ That, plaintiff is justly entitled to recover of the said defendant the said sum of two hundred and seventy-four dollars and sixteen cents, with interest thereon from June 16, 1891, over and above all set-offs and counterclaims; and deponent knows personally that there are no set-offs or counterclaims existing in favor of the said defendant to the said indebtedness.”

But if the inference is not required that he was the agent and manager of the corporation at the time of the transactions described, still the positive assertion of personal knowledge of all the facts f essential to the statement of a cause of action, considered with the statement of his official connection with the plaintiff, was sufficient to support the warrant of attachment issued. Essex Co. Bank v. Johnson, 40 St. Rep. 919; 16 N. Y. Supp. 71. The order should be reversed, with $10 costs and printing disbursements, and the motion denied, with $10 costs.

All concur.


text:
    Johns S. Keyes et al., Individually and as Administrators, etc., Resp’ts, v. Barbara Ellensohn et al., App’lts, et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Parties—Defect of.
    The omission to join a necessary party does not oust the court of jurisdiction, but merely renders the judgment not binding upon the omitted party.
    Appeal from an order denying a motion to vacate a judgment.

      Isaac N. Miller, for app’lts; E. 0. Perlcins, for resp’ts.
   Van Brunt, P. J.

This action was brought to establish the validity of the testator’s will. It was commenced in February, 1893, and an order for service on nonresidents by publication was obtained. A guardian ad litem was appointed for the defendants described in the complaint as Johann and Christina Kristof, infants under 14 years of age. The case was tried on the 20th of April, 1893, and judgment entered on the 5th day of May following. There were no such persons as Johann and Christina Kristof, but she had one child, Anna Kristof, an infant over 14 years of age. In July, 1893, upon her petition, Samuel B. Seward was appointed guardian ad litem, and moved to vacate the said j udgment, as irregular, premature, and without jurisdiction, which motion was granted, Vacating the judgment as to said Anna Kristof, and giving her leave to answer the complaint. Anna Kristof thereupon answered the complaint. The plaintiff then moved for leave to discontinue the action as to said defendant, which motion was granted, and the action was discontinued accordingly. The defendant appellants then moved to vacate the judgment as irregular, as without jurisdiction, and as having in effect been already vacated, and the action discontinued as to all the parties. This motion was denied, and from the order thereupon entered this appeal is taken.

It is claimed that Anna Kristof was a necessary party to the action, and that the discontinuance as to her deprived the court of jurisdiction, and rendered the judgment void. This contention is based upon the language of the section of the Code of Civil Procedure under which this action was commenced. The mere fact that necessary parties are not before the court upon the trial of an action does not oust the court of jurisdiction, as far as such persons are concerned who were made parties to the action. The distinction between necessary and proper parties has been too often discussed, and the validity of judgments where, under the rules of law, other parties were necessary, has been too often upheld, to need the citation of authorities. The only effect of such omission is that the judgment is not binding upon the party who has been omitted. In the discussion of this question, it is not necessary for us to determine whether, within the language of the section referred to, Anna Kristof was or was not a necessary party. The order appealed from should be affirmed, with $10 cost and disbursements.


text:
    Christopher Gullmann, Resp’t, v. John M. Sharp, Impleaded etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894,.)

    1. Appurtenance—Definition.
    An appurtenance is a thing belonging, and passing as incident, to the principal thing.
    2. Same—Dredge.
    An appurtenance to a dredge must be something needful in the work of dredging, and a suction pump, placed temporarily upon the dredge by a third person with the owner’s permission, is not such appurtenance.
    3. Contract—Construction.
    A conveyance of the dredge and appurtenances will not include such pump.

      4. Joint owners—Authority.
    The act of a joint owner of such dredge, in selling and delivering such pump to a third party, cannot be imputed to the other joint owner.
    Appeal from a verdict entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Rod ford & Slayton, for app’lt; Robert W, Todd, for resp’t.
   Parker, J.

The judgment under review awards damages to the plaintiff for the alleged conversion of a suction pump, built for the purpose of throwing mud over a sea wall. The defendants were sued as joint tort feasors, but only the defendant Sharp was served, and the judgment is against him alone. The act of conversion alleged against the defendant is that he sold and delivered the pump to one Stevens. He testified that he had no intention of selling the pump, and no word of his was proved in contradiction of his statement, unless it may be found in the written contract of sale executed by Sharp and the other defendants. Before referring to the contract of sale, some of the facts which led up to it should be stated. In the year 1891 the firm of J. A. Mundy & Oo. were engaged in dredging the harbor of Philadelphia under a contract with the United States government. Sharp was not a member of the firm, but the contract required that a bond in the penal sum of $500,000 should be given for the faithful performance of its provisions by Mund}' & Co., and upon this bond defendant Sharp was a surety. The bond provided, among other things, that the sureties should be liable in case of the failure of complete performance within the time stipulated in the contract. The work progressed so slowly that the sureties became concerned lest they should be compelled to respond in damages by reason of a failure to perform within the stipulated time, and were accordingly induced to unite with Mr. Mundy, one of the firm of contractors, in the purchase of a plant to be used in pushing the work to completion. The plant purchased included a dredge known as the “Big Jim,” for which they paid about $14,000. About the time of such purchase, Mundy & Co. entered into a contract with the plaintiff, Gullmann, to make a pump at League Island, to be used in pumping over a sea wall to the low lands mud, to be dredged from the river, and to be deposited near the pump. Upon the arrival of the dredge Big Jim, Mundy & Co. gave Gullmann the privilege of using it as a platform on which to place his pump. It was put on the Big Jim by Gullmann, where it remained until after the making of the contract by which it was contended Sharp sold the pump to Stevens. It is nowhere intimated that it was the intention of any of the parties that the connetion thus temporarily formed between the pump and the dredge was to continue beyond the period of plaintiff’s pumping operations. Later in the season of 1891, Mundy & Co. built another pump, known as the “ Big Pump,” the completion of which was substantially like that of the Gullmann pump. The Big Pump was not put on a dredge, but placed on a caisson built for the purpose. In the winter of 1891 and 1892, Mr. Stevens subcontracted with Mundy & Co. to do all the work yet to be done under the contract of that company with the government, Simultaneously, another agreement was entered into between Stevens on the one hand, and Mundy, Sharp, and Busch on the other (Sharp and Busch being sureties on the contract for Mundy & Co.), by which was sold to Stevens the plant that they had bought for use in connection with the work. It reads as follows: “Agreement made this 2d day of February, 1892, between James A. Mundy, John M. Sharp, and Clarence M. Busch (sole stockholders of the Philadelphia Dredging Co.), parties of the first part, and C. Amory Stevens, party of the second part. The parties of the first part hereby sell and transfer to the parties of the second part all their interest in the following described plant, now employed on the work of improving the Philadelphia harbor. The plant known as the ‘ Thompson Plant,’ and consisting of the dredge Columbus, the dredge Norwalk, the dredge America, the tugboat James Bowen and thirteen scows. The plant known as the 1 Philadelphia Plant,’consisting of the dredge Starbuck, the launch Governor Beaver, the Big Jim and appurtenances, the new pump, known as the 1 Big Pump,’ with its boilers, caisson, and appurtenances, together with three scows, and all fittings, appurtenances, plant, and apparatus owned by the parties of the first part, or the Philadelphia Dredging Company, and purchased or acquired for us in performing the work of improving the harbor of Philadelphia under the contract between the war department and James A. Mundy & Co.”

It is claimed that under this contract two pumps, similar in construction, and situated near to each other, were sold to Stevens. As we read the contract, it is difficult to discover any basis for this claim. The contract in terms only purports to transfer one pump, which it describes as the “ 1 Big Pump,’ with its boilers, caisson, and appurtenances.” It is conceded that this description does not include plaintiff’s pump. The claim is that this pump, which the jury valued at $3,200, was transferred by the words “and appurtenances,” contained in this phrase, “consisting of the dredge Starbuck, launch Governor Beaver, the Big Jim and appurtenances.” In the first place, the difference in the language employed in describing the dredge Big Jim and that which refers to the Big Pump strongly indicates that the parties to the contract did not intend to include plaintiff’s pump in following the word, “Big Jim’’with “and appurtenances.” In describing the Big pump, which the parties of the first part unquestionably owned it is called “the new pump, known as the ‘Big Pump’ with its boilers, caisson, and appurtenances.” But the caisson for the Big pump sustained the identical relation to it which the dredge Big Jim did to thes Gullmann (plaintiff’s) pump, and, if the words “Big Jim and appurtenances” included the Gullmann pump, it would follow that the words “ caisson and appurtenances ” would have included the Big pump. The full and specific description of the Big pump and its “appurtenances” strongly indicates that it was not intended by the contract to transfer the Gullmann pump as an appurtenant of the Big Jim. But, aside from the fact that the language of the contract indicates that it was intended to pass the title to but one of the two pumps, then located near together, the words “ and appurtenances ” cannot be held to include this valuable pump, which constituted no part whatever of the outfit of the dredge Big Jim, to which it was temporarily attached. The words are not ambiguous in the sense in which they were here employed, but instead have a definite and well-defined meaning. An appurtenance is “ a thing used with and-’relat.ed to or dependent upon another thing more worthy,- and agreeing in its nature and quality with the thing whereunto it it appendant or .appurtenant; a thing belonging to another thing as principal, and which passes as incident to the principal thing.” 1 Am. & Eng. Enc. Law, 641. An appurtenant to a dredge must be something incident and needful in the work of dredging. With such work plaintiff’s suction pump had nothing whatever to do, and the actual effect of putting it on the dredge Big Jim was to prevent its use for dredging purposes during the time they were connected. Mr. Parsons, in his work on Maritime Law, after considering a number of cases in which had been discussed what constituted an appurtenance to a ship, said: “ It would seem to be deducible that nothing is to be considered an appurtenance of a ship unless requisite to its proper use, although connected with it at the time.” Pars. Mar. Law, p. 72, note.

While we are convinced that the written contract does not include the Gullmann pump, and the record persuades us that it was never Sharp’s intention to sell it to Stevens,, we are, nevertheless, of the opinion that ¿here was evidence to support the verdict. The testimony of Stevens and Capt. Collins was to the effect that at the time of the oral negotiations which were had with Mundy and Stayton, who represented the owners of the property, it was stated by them that Mundy, Busch, and Sharp had furnished a large part of the money which had been expended in constructing the Gullmann pump, and that out of the moneys to be paid by Stevens for the plant Gullmann should be paid for his interest, and the pump should go to Stevens as part of the plant. This statement suggests that possibly the evidence should not have been received on the ground that the oral negotiations became merged in the subsequently executed - written .agreement, but our attention is not called to any exception taken to its admission. It was contradicted by Mundy and Stayton, but we must assume that the jury found in plaintiff’s favor. This evidence is followed by the testimony of Stevens and Capt. Collins, to the effect that in pursuance thereof all of the property, including the Gullmann pump, was delivered to Stevens by Mundy, one of the owners. On cross-examination Mundy testified as follows: “I turned over the material and plant which was sold on the contract of February 2nd to Mr. Stevens. I turned them over to Capt. Collins and Mr. Stevens. I know Mr. Stevens was present. I turned over to him the-Big Jim. Q. Didn’t you turn over what was on her to them? A. Do you mean the Gullmann pump? Q. Everything that was on her? A. Yes; we turned over everything that was on the Big Jim to Capt. Collins and Mr. Stevens. We turned the Big Jim over just as she stood.”

The jury was therefore permitted to find a delivery of the property to Stevens by Mundy. It is true, as appellant suggests, that as Mundy was not a partner of Sharp, but simply a joint, owner of the property with him, his relation to the property did not authorize him to deliver something which Sharp did not own, and had no right to sell; and, if he had no other authority, his act in turning over the property could not have been imputed to-Sharp. But Sharp testified that Mundy acted for him in turning over the property. He said: “I was not present when the money was paid, and as far as turning over the plant, I had nothing to do with that. Q. Who was that left to? A. Mr. Mundy took charge of that. He was to turn the plant over- to Mr. Stevens under that contract, and acted for me in that capacity.”

The evidence therefore presented question for the jury, which, being found in plaintiff’s favor, authorized the judgment. The judgment should be affirmed, with costs.

All concur.