author: Yan Brunt, P. J.

text:
    Howard Conkling, Resp’t, v. New York Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Partition—Provided by will.
    Where a will directs the appointment of commissioners to partition testator’s real estate, a deed from commissioners claiming to be so appointed and possession under such deed are prima facie evidence that partition was made as directed by the will.
    Appeal from a judgment in favor of plaintiff.
    iü.- L. Maynard,.for app’lts ; E. 0. Perkins, for resp’t.
   Yan Brunt, P. J.

This action was brought to restrain the defendants frqm the maintenance and operation of their elevated railroad in front of the plaintiff’s premises, Mo. 274 Third avenue, and also to obtain past damages. The court awarded judgment for past damages, and also for fee damages; with an injunction in the alternative. The defendants appeal from this judgment, and allege error in that the plaintiff failed to show that the fee of the property in question was vested solely in him, and that he could not give a good title to the easements interfered with by defendants in return for the alternative sum which the defendants were directed by fhe judgment to pay ; and also that the plaintiff failed to show any substantial injury to the fee of the property involved in this action.

The first objection mentioned is .based upon the claim that there was no proper partition of the property among the parties who became interested by the appointment made in the will of one Catherine L. Wolfe. The premises in question were part of the estate of Peter Lorillard, who died on the 23d of May, 1843, in possession thereof, leaving a last will and testament dated the 24th of /February, 1843. By this will Peter Lorillard directed his residuary real estate to be divided into five shares, one of which he devised absolutely to his daughter, Dorothea A. L. Wolfe, with full power to grant and devise the same without the concurrence of her husband.. The testator also empowered his executors to appoint commissioners to divide and . partition the residuary estate. Such commissioners were duly appointed, and made such.division by deed dated July 1, 1843, and the premises in question, with others, were thereby conveyed to Dorothea A. L. Wolfe. Dorothea A. L. Wolfe died in possession of the premises in question, leaving a last will and testament bearing date the 27th of June, 1865, which will was duly admitted to probate and recorded on the 12th of November, 1866. By the third clause of her will the said Dorothea A. L. Wolfe devised to trustees all the real estate devised to her by her father in fee for the benefit of her husband and daughter during, their lives and that of the survivor, giving to the daughter power to appoint the said real estate to and among her descendants, if any, in such lawful manner or proportions as she might think proper; and, in default of such appointment, the said Dorothea A. L. Wolfe devised said estate to the descendants of her said daughter. The said will further provided that, in case of the decease of the testatrix’s daughter without leaving issue her surviving, said real estate should go to her nephews and nieces, children of her brothers and sisters, living at her daughter’s decease, as tenants in common in equal shares. But by said will' the daughter was authorized and empowered, nevertheless, in the event of her so dying, leaving no child or other descendant, to limit and appoint said real estate by will, executed without the concurrence of any husband, to and among the descendants of the brothers and sisters of said testatrix in such manner and in such proportions as her said daughter in her discretion might think proper. The said will further provided as follows: “And should the said trust estate, upon the termination of said trust, go or belong, under the provisions of this my will, to more than one person, then I empower and direct the said trustees to cause an equitable partition thereof to be made, under their direction, to and among the parties so entitled; and for that purpose to nominate and appoint, under their hands and seals, three suitable persons as commissioners to appraise, allot, and set apart, in such manner as may, be just and equitable, the respective shares of such estate to the parties entitled thereto.” Catherine L. Wolfe, the daughter of the testatrix referred to in the above will, died in 1887, never having been married, leaving a last will and testament bearing date the 14th of February, 1884, and a codicil bearing date the 24th of March, 1885, which were duly admitted to probate. By this will Catherine L. Wolfe appointed the estate, real and personal, held in trust, pursuant to the provisions of her will, to certain nephews and nieces, and the surviving children of a deceased niece, and a deceased nephew of Dorothea A. L. Wolfe, upon the death of said Catherine L. Wolfe. The persons acting as trustees under the will of Dorothea A. L. Wolfe appointed commissioners, who partitioned the real estate which had been held in trust fo,r said Catherine under the third clause of the will of said Dorothea A. L. Wolfe between the devisees and appointees thereof under the will of Catherine L. Wolfe, and deeds were executed conveying the shares to the persons to whom they were allotted, and the grantees in said deeds went into possession of the same. The premises in question were allotted to Alfred R. Conkling, Howard Conkling, and Laura R.. Conkling as tenants in common, and subsequently said Alfred R Conkling and Laura R. Conkling conveyed the premises in question to the plaintiff.

It is urged that there is no proof that-commissioners were appointed under the will of Peter Lorillard, the former owner, and we think all the findings the defendant could demand have been found by the court, and there is no reason for disturbing the judgment. Judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: O'Brien, J.

license: Public Domain

text:
    James M. Constable et al., App’lts, v. Matthew Hardenbergh et al., Resp’ts.

      (Supreme Court, General Term, First Department, Filed

      March 16, 1894.)

    1. Bill of particulars—When not granted.
    There is no inflexible rule as to the cases in which a bill of particulars will, or will not, be granted.
    2. Same.
    It will not be granted, where it would, in effect, require plaintiff’s counsel to furnish his arguments, and the legal reasons on which he bases his claim.
    S. Same.
    Nor will it be granted, in order to enable defendant to frame his answer, where the facts are within his knowledge.
    ' 4. Same—Affidavit.
    An affidavit for bill of particulars, which states no facts, is insufficient.
    Appeal from an order requiring plaintiffs to furnish a bill of particulars.
    Tins action was brought to set aside a general assignment for the benefit of creditors, made bv the defendants Hardenbergh and Kelly to the defendant Hugo Hirsh, as assignee, upon various grounds stated in the complaint. After the complam'k was served, the defendants demanded a bill of particulars the allegations set forth in the plaintiffs’ complaint, specifying, (1) as to paragraph 5 of said complaint, in what respects the said assignment is insufficient in form, and in what respects the said assignment is fraudulent and void on its face, and wherein it is not in accordance with the statute in such case made and provided; (2) as to paragraph 6 of said complaint, in what manner, said assignment was made so as to hinder, delay, and defraud these plaintiffs; (3) as to paragraph 7 of said complant, in what respect the schedule filed by said assignee failed to state all the assets and property of the assignors, and what portions thereof were concealed and secreted with intent to defraud creditors, and what said concealed or secreted assets consisted of, and where they were concealed or secreted 9 (4) as to paragraph 8 of said complaint, wherein the said Matthew Hardenbergh and George H. Kelly withhold from the operation of the said assignment certain property not exempt by law from levy and sale under execution. These particulars not having been furnished, the defendant Hirsh obtained an order to show cause why they should not be furnished, upon an affidavit which, after reciting the facts already stated, proceeded as follows: “ That defendants’ time to answer herein expires on the 29th day of January, 1894, and that it will be impossible for deponent to answer herein without the facts stated and asked for in the said demand for a bill of particulars.” Upon this affidavit from which we have taken all that is stated therein as to the necessity for a bill of particulars, the motion was granted by the court at special term, ordering as fully as was demanded by the defendants, the plaintiffs to furnish such particulars; and from such order this appeal is taken.

      Jesse S. Epstein, for app’Its; William L. Perkins, for resp’ts.
   O'Brien, J.

Section 531 of the Code provides that “ the court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party.” Although the language of this section is clear and unambiguous, we feel called upon, from time to time, to repeat it, because counsel, in support of one view or the other, insist on arguing that there is a class of cases in wherein a bill of particulars will be, and a class of cases in which one will not be, ordered. In a late case, where we had occasion to examine this question, of Faxon v. Ball, 50 St. Rep. 495; 21 N. Y. Supp. 737, it was said :

“ There is, as shown, by the very wording of the section of the Code quoted, no inflexible or invariable rule applicable to motions for bills of particulars; there being certain general principles which may be proper to be referred to in determining under what circumstrnces the power vested in the courts will be exercised in a given • case in ordering a bill of particulars. ”

And where, in that case, it appeared that all the facts and circumstances with respect to the act 'of the assignor were peculiarly within the reach of the assignee, and that the particulars were asked for simply for the purpose of limiting the evidence upon which the plaintiff might rely to sustain her charges, it was held that the motion was properly denied. See, also, Passavant v. Cantor, 16 St. Rep. 252 ; 1 N.Y. Supp. 574. The facts here appearing, upon which a bill of particulars was sought, are not nearly so strong as in the case of Faxon v. Ball, supra. There it was asserted that the evidence was needed to be used upon the trial and to prevent surprise. Here the only purpose for which the particulars are required, as shown from the quotation given from the affidavit, is to enable the defendants to answer. This distinction between the office of a bill of particulars in order to enable a defendant to answer and one required for use upon a trial must not be lost sight of, because it might, very well be that, while particulars would be required to be furnished to prevent surprise upon the trial, an application made in the same case to obtain the same particulars forthe purpose of answering might be denied, where it appeared that without such particulars an answer could be interposed. To summarize, the particulars demanded have reference to those allegations of the homplaint which, in addition to alleging the insufficiency in form, and the invalidity on the face of "the assignment, charge certain acts of fraud in secreting the property, in omitting from the schedules a portion of the assets, and that the assignment was made to hinder, delay, and defraud creditors. In other words, reducing these latter, it may be said that the complaint seeks to set aside the 'assignment upon two general grounds: First, that it is void upon its face; and, second, that it is void for actual fraud committed by the assignors, of which it is claimed the assignee had knowledge. With respect to the first, — as to whether the assignment is void on its face,— the attorney for the defendants should be as competent and as well skilled in determining this question as the attorney for the plaintiffs ; and a compliance with the order would necessitate the plaintiff’s counsel furnishing his arguments, legal reasons, and conclusions, upon which he bases his claim of invalidity. We are familiar with no case which requires, nor do we think it in furtherance of justice to require, the plaintiff’s counsel to éducate the attorney for the defendants upon a question of law, and to that end be compelled to practically furnish him with his brief. Upon the second ground,—of the fraudulent disposition and secretion of property,—if this was done by the assignors with the knowledge of the assignee, they are in a position to know ; and, if the charge is false, there is nothing to prevent their putting in a general denial, which is all that would be required to put in issue these allegations. In other words, apart from the failure to show any necessity for the particulars in order to answer, we have no means of determining, from the affidavit submitted, whether the defendants have or have not knowledge of the fraudulent acts with which they are charged. And the necessity of this appearing becomes at once apparent when we consider its .bearing upon the exercise of the court’s discretion. If they have such knowledge, then clearly they should not be assisted in finding out whether. the plaintiffs also know of their fraudulent acts. If guiltless, little danger need be apprehended from groundless charges. And the question whether, under these circumstances, the information should be given, would depend upon their situation and opportunity for obtaining the knowledge, and the necessity therefor, either for the purpose of pleading or to prevent surprise upon the trial. All of which is suggested for the purpose of showing that an order for a bill of particulars is not, as the defendants would assume from their naked statement that the information is needed in order to frame an answer, a matter of right, but is a matter resting in the sound discretion of the court, to be* either refused or granted, according to the circumstances of each case. The language of the Code vests a discretion in the court to determine whether or not the information should be furnished. But in determining which way the discretion should be exercised, either ini granting or refusing, the .court should have before it some facts. As shown, the affidavit states no facts, but contains a bare statement that the particulars asked for are necessary in order to enable defendants to frame an answer. We do not think, therefore, that the application was made in good faith, because it was evident that this information was not necessary for that purpose. It will be noticed that they do not say that such information was necessary upon the trial of the action. If, however, there had been a mere statement that it was intended to be used upon the trial, then it .should not have been granted unless it appeared, at least by the affidavits of the defendants, that they had no knowledge on the subject, and had not the means of obtaining the information required, and that it was necessary to have such knowledge as was within the possession of the plaintiffs in order to prevent surprise upon the trial. In a case, therefore, where these facts, or some of them, are not made to appear, but where, on the contrary, it does appear that the application is not made in good faith, but is made with a view of limiting the evidence, or to compel the plaintiffs to disclose the same, then it should be denied. In discussing the rules which we regard as applicable to bills of particulars, w'e have wandered from the point which is presented here; but this has been thought necessary on account of the earnestness of the arguments which have been pressed upon our consideration in favor of upholding the order, but which are not strictly germane to the point involved. The only question presented upon this appeal, as we have shown from the affidavit used upon the motion, was whether, upon the facts appearing, the court would, to enable the defendants to answer, require the plaintiffs to furnish the particulars in all respects as demanded; and having reached the conclusion that plaintiffs should not have been so required, we think the order was wrong, and that it should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

All concur.


author: Per Curiam.

text:
    Jose A. Del Valle, App’lt, v. Josiah A. Hyland et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Fbaudulent conveyance—Stale claim.
    A barred claim presents a sufficient consideration for a transfer of propcrty in payment, provided the amount is not so excessive as to manifest an intent to defraud creditors.
    Appeal from a judgment dismissing the complaint on the merits.

      G. 0. Hulse, for app’lt; Julien T. Davies and Herbert Barry, for resp’ts.
   Per Curiam.

This action was brought by a judgment creditor of the defendant Navarro to set aside the transfer made to the defendant Hyland for five life insurance policies upon the life of the defendant Navarro for $10,000 each, on the ground that the same was made to hinder, delay, and defraud creditors of Navarro. The first ti'ial of this action resulted in a judgment dismissing the complaint upon the plaintiff’s case, which judgment, upon appeal to this court, was reversed, and a new trial ordered, 40 St. Rep. 924; 15 N. Y. Supp. 901, upon the ground that the proof would have sustained, although it did not require, a finding that the assignment was made in bad faith, and with intent to hinder creditors, and that it was error to dismiss the complaint. Upon the second trial, and upon the whole evidence, as well of the defendants as of the plaintiff, a judgment was rendered dismissing the complaint as to both defendants upon the merits. As upon the first trial, it now appears that “in January or February, 1889, Mr. Josiah A. Hyland, one of the defendants, found on the table of his private office a written instrument purporting to have been executed by Mr. Jose F. Navarro, the other defendant, on the 31st day of December, 1888, whereby that gentleman transferred all his light, title, and interest in and to five policies of life insurance for $10,000 each, subject to a claim thereon of $15,000 by Charles Coudert’s executor, for which Mr. Coudert held the policies as collateral security. Although the transfer was not personally delivered to the defendant Hyland, but was, as stated, found by him on his table, it appears by the evidence of both defendants that their being placed there was the result of prior conversations resulting in an agreement by Mr. Navarro to deliver such policies in payment of his indebtedness to Mr. Hyland. The value of such policies on the 31st of December, 1888, in case of the death of Navarro, was considerably over $50,000, and as paid-up policies, nearly that amount, and their value as cash policies on that date was $24,039.95; so that, if we deduct the $15,000 due to Mr. Coudert, and interest, there would remain a cash value in the policies of about $9,000. It was found by the learned trial judge, and conceded, that at the time these transfers were made the defendant Navarro was insolvent, and that such insolvency was known by defendant Hyland. The consideration, as claimed, for the transfer by the former to the latter, consisted of an indebtedness of about $19,000 (exclusive of the $15.000 due Coudert, and interest thereon, which the defendant Hyland testified he assumed), comsisting of five principal items:

Cash prior to and up to the 24th day of November,
1880.......................................... $6,132 00
Interest on same, which the defendant Navarro guaranteed to the defendant Hyland on the money given him from November 24, 1880, to December 21,
1888....'......................................
$2,981 17
Indebtedness of defendant Navarro to defendant Hyland for professional legal services from in or about 1880 up to December 31, 1888...................
5.000 00
Indebtedness of defendant Navarra to defendant Hyland for office rent of defendant Navarro’s two sons.
2.000 00
Deficiency judgment paid by defendant Hyland on or about February 29, 1888, on a bond given by him at the request of the defendant Navarro for money received by defendant Navarro on a loan on real estate in Eighty-seventh street, New York city... „
2,573 11

These claims for moneys advanced, services rendered, office rent, and for the payment of the deficiency judgment, were supported by the testimony.of both defendants; and, if such testimony is to be credited, then the findings of the court below were amply sustained, and the judgment should not be disturbed ; because it would thus appear that, for an indebtedness of about $18,000, the defendant Hyland had received policies, the cash value of which would not exceed $10,000 over and above the $15,000 for which it was pledged to Mr. Coudert. The fact that the defendant Navarro was insolvent, and that Mr. Hyland knew it, would not prevent the former from securing or paying the latter a valid existing indebtedness; and the giving of a preference to Hyland cannot be sussessfully assailed by the other creditors. That a debtor has the right to pay the claim of one creditor in preference to and to the exclusion of all the others has been many times decided. Though a criticism can justly be made upon the loose way in which the dealings between the defendants were carried on, and though the usual indicia of indebtedness—such as notes, the presentation of bills or demands for payment, and the keeping of an account* showing such indebtedness in the books of the creditor—are wanting, and are susceptible of different inferences, still the testimony offered of the close and intimate relations between them, the strong financial position which the defendant Navarro once held, and the confidence in his financial ability which those dealing with him entertained, explaining the loose manner of their dealings, left it a subject peculiarly within the province of the trial judge to determine ; and in the end whole question narrows down to one of credibility,'—as to whether or not this alleged indebtedness upon various items which have been alluded to was a scheme arranged between the defendants for the purpose of creating fictitious claims, and thereby securing to themselves the benefits of the policies of insurance, and thus defrauding Navarro’s creditors. In an action of this kind, where an assignment or transfer is sought to be set aside upon the ground that it was made with intent to hinder, delay, and defraud creditors, presenting, as it does, a question of fact, and when, upon sufficient evidence, this is determined one way or the other, and there is no such preponderance of evidence as would require this court to set aside the judgment and grant a new trial, then the decision of the trial j udge should not be disturbed. Here a suspicion is created by reason of the peculiarity and ’staleness of some of the items going to make up the indebtedness; and where, as here, a claim remains unpaid for a period so long that it is barred by the statute of limitations, then a doubt as to whether it has not been paid, or as to its ever having had a valid existence, is created. But where it is shown that there was a moral obligation, to say the least, to reimburse the defendant Hyland for what he had paid out in settlement of the deficiency judgment, or loaned in cash to Navarro, although the claim may have been barred by the statute of limitations, there is present a sufficient consideration for the transfer of property in payment, provided the amount of such property is not so excessive that it appears to have been made with'intent to hinder, delay, and defraud creditors, or provided such intent is not otherwise shown.

Considerable stress is laid upon the fact, as claimed, that the trial judge made certain findings upon insufficient evidence, and, contrary to the plaintiff’s request, refused to make findings which were justified by the evidence. With respect thereto we can but repeat what has been said lately in the case of Faxon v. Mason, 59 St. Rep.,(decided herewith),—that upon the trial of an action such as this, the court is not bound to find the evidence which supports the conclusion; all that is required is that there should be sufficient evidence to justify the finding and conclusion that the transfer or assignment was made with or without intent to hinder, delay, or defraud creditors. We find no valid ground for disturbing the decision of the trial judge, and think that the judgment should be affirmed, with costs.


text:
    Charles C. Doremus, Resp’t, v. Arieanna M. Doremus, Individually and as Executrix of, etc., Resp’t. Bliss & Schley, App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Reference—To hear and report.
    Upon a reference to hear and report with opinion of referee,' exceptions to the report are unavailing; they may he taken to the decision of the court in passing upon the report.
    Appeal from an order confirming the award of the referee to the attorneys of plaintiff for their services.

      Bliss & Schley, in pro per.; Theodore H. Sillcman, for resp’t.
   Per Curiam.

The reference in this case was not to hear and determine, but to take the evidence, and report it to the court, with the opinion of the referee thereon. -Exceptions' to such a report are unavailing, as exceptions can be taken only to the determination of some court or officer having power to decide the question the decision of which is challenged. Under this reference it was the duty of the court to determine the facts and the law, and, if the determination was unsatisfactory to either party, exceptions should have been filed to its decision. None having been filed and served, the record presents no question for review. It will be seen from this conclusion that we do not agree with the respondent in his contention that it was necessary to file exceptions to the report of the referee, and that the failure to so file them would, after eight days, result in the confirmation of the report. As correctly stated in Attorney General v. Continental Life Ins. Co., 64 How Pr. 93 :

“The thirtieth rule of the court, as to the necessity of filing exceptions to a referee’s report, has no application to a reference of .this nature and character. It is only a reference which empowers a referee to decide questions between parties that the rule is applicable, and cannot foreclose the court from passing upon matters which such court only has power to determine.’’

The motion to confirm the report could be resisted at special term upon any grounds appearing in the record, without exceptions having been filed to the report; but after the questions of fact and of law had been finally determined by the special term exceptions should have been filed, in order to successfully challenge the decision.

Our conclusion is that the order should be affirmed, with $10 costs and -disbursements. •


author: Van Bbunt, P. J. O’Brien, J.

text:
    John Duryea, Resp’t, v. Catharine Furchsel et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Judgment—Amendment.
    A judgment of dismissal cannot be amended by adding to the foot thereof an order appointing a referee to take and state the accounts between the parties.
    Appeal from a j udgment entered on a referee’s report, and from an order modifying the provisions of the judgment, and from an order overruling exceptions to the referee’s report.

      F. B. Candler, for app’lts; A. A. Gardner, for resp’t.
   Van Bbunt, P. J.

This action was begun to recover for the sale and delivery of certain merchandise alleged to have been delivered by the plaintiff to the defendants’ testator at an agreed price, and which merchandise the defendants’ testator agreed to manufacture, and pay to the plaintiff oné-half of the net profits of the sale thereof; and judgment was prayed for the amount claimed as the purchase price, and for an accounting as to the profits upon the sale thereof. After a trial, the court found a contract between the plaintiff and the; defendants’ testator by which the plaintiff agreed to purchase certain carloads of cauliflower, and ship them to the defendant, which the defendant was to manufacture, and sell, after such manufacture, in the market; and that the defendant was to reimburse himself for any expenses which he might have incurred, and then reimburse the plaintiff, out of the balance of the proceeds of sale, for the price to be paid for the canlifl-uvcrs, and then the profits arising from the adventure were to be equally divided between the plaintiff and the defendant. The court further found that the enterprise proved a failure, and that there were no profits therefrom to be divided between the parties thereto, and, as a conclusion of law, that the plaintiff had established no cause of action against the defendant, and that the defendant was entitled to ^judgment against the plaintiff, dismissing the complaint, with costs, and judgment was ordered accordingly. On the first Monday of March, 1890, a judgment was duly entered upon said decision, dismissing the complaint of the plaintiff upon the merits, and directing that the defendant recover of the plaintiff the sum of $220.58, the amount of the costs and disbursements of the defendant as adjusted by the clerk. On the 10th of April, 1891, an order was entered at a special term held by the justice who had tried the case, reciting the entry of the foregoing judgment, and that the plaintiff had subsequently made a motion before said justice for a new trial on the ground of irregularity and surprise, and that the court had, by an order duly entered on the 20tli of March, 1891, denied said motion for a new trial, but with leave to the plaintiff to move to amend said judgment so as to appoint a referee before whom the defendant should account for the goods sold by him and the profits realized therefrom, and ordering and adjudging that “the judgment entered on the first Monday of March, 1890, be, and the same was thereby, amended by adding to the foot of said judgment as follows.” And here follows the appointment of a referee to take and state the accounts between the plaintiff and the defendant. Pursuant to said order of reference, proceedings were had before the referee, who reported in favor of the plaintiff, and to whose report exceptions were filed, which were overruled, and judgment entered in favor of the plaintiff. In the meantime, the defendant had died, and the action was continued against the present defendants as his executor and executrix.

The appeal brings before us the regularity of the order entered on the 10th of April, 1891, amending the judgment entered on the first Monday of March, 1890, and of the judgment entered upon the referee’s report made pursuant to said amended order. In the disposition of this appeal it is not necessary to consider any of the questions raised by the appeal from the judgment, for the reason that we are of opinion that the alleged amendment of the judgment was errofleous, and conferred no jurisdiction whatever upon the referee to proceed in the action. The cause had been tried, and findings of fact made that there were no profits arising from the enterprise, and, as a conclusion of law necessarily following from such findings of fact, that the plaintiff had established no cause of action against the defendant, and that the defendant was entitled to judgment against the plaintiff, dismissing the complaint, with costs. Such a judgment had been entered, and, so long as that judgment existed, there was certainly nothing further which could be done in the action, with a complaint dismissed by a competent judgment; the plaintiff certainly can have no recovery in such an action. Without considering the question as to whether the court could, or'could not, have amended the judgment by vacating that which had already been entered, it is sufficient to say that, at least until the judgment dismissing the complaint was vacated, no other or different judgment could be rendered as against the defendants. It certainly would be an anomaly .in a litigation to have a judgment dismissing a complaint, and at the same time granting relief to the plaintiff because of the cause of action alleged to have been set out in the complaint. This conclusion, which seems to us to be inevitable, makes” it unnecessary to consider any of the questions raised -by the appeal from the judgment entered upon the referee’s report, for the reason that, the order amending the judgment appointing the referee being reversed, all the subsequent proceedings necessarily fall. The result of this case strikingly illustrates the ill-advisedness of the change in practice made by the present Code from that which had previously prevailed in respect to the review of intermediate orders. The plaintiff, after the judgment was amended, and without any notice upon the part of the defendant that such amendment was to be questioned, goes on with his reference, incurs the expenses of a trial before the referee, succeeds, and all his proceedings become of no value because of the review of an intermediate order on the appeal from the judgment thus procured. The order of the 10th of April, 1891, should be reversed, and the judgment appealed from vacated, but, under the circumstances, without costs.

Follett, J., concurs.

O’Brien, J.

(concurring).—I think it reasonably clear that the trial judge, after the entry of judgment, and on his attention being called to the status of plaintiff which entitled him to an accounting, intended to amend or modify the judgment so that such relief might be accorded. This was attempted by the order referring it, which, while the judgment stood dismissing the complaint, could not be done; and I agree with the presiding justice that the •order of reference and the subsequent judgment must be reversed. The plaintiff, assuming that the order of reference was proper, has no doubt allowed the time to appeal from the judgment dismissing his complaint to expire. On the accounting it was decided that the defendant was indebted to plaintiff in the sum of $5,103.74; and yet, as the result of a mistake, he finds himself out of court because he has lost his appeal. It may be that, on a new trial, ■plaintiff might not recover so much, or anything at all; but justice demands that there should be a new trial. Here, then, a mistrial has occurred, but how to remedy the injustice is by no means •clear. I think, however, that the reversal should be with leave to plaintiff to apply upon a case and exceptions for a new trial, or upon motion to resettle or set aside the judgment, or to make such motion before the trial judge as the practice permits.


text:
    Edith M. Faxon, Resp’t, v. John Mason et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894)

      1. Trial—Findings.
    Bequests to find facts, which, are evidential in their character, are properly refused.
    3. Assignment for creditors—Costs.
    An assignee, unless he knew of the fraud, is not liable for the costs of an action to set aside the assignment for fraud.
    Appeal from a judgment in favor of the plaintiff.

      H.A. Forster and F. Bien, for app’lts; J. Byrne, for resp’t.
   Yan Brunt, P. J.

This action was brought to set aside an assignment executed by the defendant Mason upon the ground that it was made with intent to hinder, delay, and defraud creditors. After a trial, the court held that the assignment was made with intent to hinder, delay, and defraud creditors, and granted a judgment setting it aside; and from that judgment'this appeal is taken.

It is claimed by the appellants that the learned judge erred in not finding certain findings proposed by the defendants. But it seems to us that no error was committed in this regard. The question before the court was whether the plaintiff could establish that the assignment of 'the defendant had been made to hinder, delay, and defraud creditors, and this was the only question of fact which it was necessary to pass upon in order to determine the question as to whether the plaintiff or the defendants were entitled to judgment. All the requests which were made upon the part of the defendants were evidential in their character; and the court is not bound to find evidence, but may, and should, confine itself to the finding of conclusions derived from the evidence. The sole issue presented being as to whether the assignment in question was made to hinder, delay, and defraud creditors, and this being strictly a question of fact, the court seems to have been right in refusing to find that this transaction and that transaction, this bit of evidence and that bit of evidence, did'not tend to establish the the plaintiff’s cause of action. This brings us to a consideration of the claim made upon the part of the appellants that there was no proof which justified the court below in finding that the assignment in question was made with intent to hinder, delay, and defraud creditors. There were various transactions which were investigated during the progress of this trial, in respect to some of which it may very well be that no proof of fraud such as would invalidate the assignment was presented. But there are others, in respect to which we can come to but one conclusion, namely, that there was an evident intent upon the part of the assignor to withhold property from the operation of the assignment which belonged to him.

A reading of the evidence, and a consideration of the claims which have been made in respect thereto by the appellants, lead irresistibly to the conclusion that the alleged gift of all the personal property of the defendant Mason to his wife, if it ever occurred, was never intended to be absolute unless circumstances required it. The character of the testimony of the wife of the defendant is certainly remarkable. Almost the whole of her direct examination was a mere assent by her to propositions suggested by the counsel for the defendants, indefiniteness of her memory in respect to the circumstances of the alleged gift would be, in itself, a matter naturally calculated to create suspicion. But when we have proof of the fact that the defendant assumed to exercise control over some of this property alleged to have been given to the wife, and his own, and even now claims the ownership of other of such property, it does not seem possible to come to any other conclusion than that which has been above suggested. It is assented to by the wife that at the time of her wedding, or prior thereto, the defendant gave all his personal property to her, consisting of horses, carriages, furniture, pictures, etchings, books, etc., and that subsequent thereto he gave her the books that he purchased. She further testified to the fact of her husband having bought, in his name for her, certain furniture, but that she furnished the money, which had been received from her father and given to her husband, who used it for that purpose. She is unable to state the circumstances under which these various gifts were made, but only states, in a general way, that everything which the husband owned, including his watch and shirts studs were given to her. Why, when the shirt studs were given, the shirt was not given also, we cannot imagine, because the defendant seems to have been careful to strip himself of every particle of personal property which he could possibly own. When we come to the evidence of the defendant, he is able to state with a little more particularity the circumstances of the gifts in question, and he testifies to having made the gift of this personal property to his wife at the time of his marriage, and also that he had given to his wife all of his books, without which it was impossible to carry on his business; that he gave them to his wife because she wanted them ; she took a great deal of interest in his library, and had a large one of her own ; she combined them, and he gave her his own so that she could call the whole thing her own. In reference to the furniture alleged to have been bought for his wife, upon the trial he testified that he received the money in the shape of a check from his wife’s mother or father, and that that check was deposited to his credit, and he paid the money to the cabinetmaker for the furniture. Upon his examination in supplementary proceedings, the defendant gave a different version of this transaction. He stated that he could not even remember the circumstances of her giving the money with which to purchase it. And when asked, “You have no idea where she obtained the money?” he answered : “I think it was money she had saved,—money that her parents had given her before we were-married. Q. Did she have a bank account? A. Yes, and had ever since we have been married. Q. Did she give you a check? A. Ho, sir; she gave me the money,—drew it out of the savings bank; I took the money to the store, and paid the bill by check.” It is true that the witness says that the testimony upon this trial and in the supplementary proceedings was about the same, but there seems to be quite a radical difference. And, notwithstanding this gilt, when the witness writes to his sister in regard to the exchange oí iurniture he talks about his furniture, and not his wife’s. It is undoubtedly true that a large portion of this furniture was stored in his wife’s name for a period of time anterior to the failure. But this circumstance does not overcome the absolutely convincing proof that this gift was a mere sham, when we consider that, notwithstanding the positive evidence that he had given to his wife all the books which he used in his business, he upon the trial, and his counsel upon the argument of this appeal, claim that the books engaged in his business belonged to him, and that they were exempt as tools of trade. Now, if these books belonged to him, certainly all the other furniture which he had given to his wife belonged to him. Ilis claim that he still had the ownership of these books characterizes the nature of the whole of the gift. They were to be his wife’s, if anybody could take them; and what he supposed nobody could take, remained his. The evidence as to the gift of these books is just as strong as that relating to any other piece of personal property claimed by the wife. In view of this condition of the evidence, no other conclusion can be arrived at than that already suggested, that the gift was only to be good in so far as it was necessary to keep the property out of the hands of creditors. It would seem, however, that this whole idea in regard to this gift was an afterthought, conjured up for the purpose of protecting some part of this defendant’s property from his creditors. The question then arises as to the claim made that these books which were withheld from the assignee Were the defendant’s tools of trade, and, consequently were exempt from the claims of creditors.' It would seem that this claim is effectually disposed of by §§ 1890 and 1891 of the Code of Civil Procedure. Among the exemptions, as far as applicable to the case at bar, it is provided that the tools and implements of a mechanic necessary to the carrying on of his trade, not exceeding in value $25, shall be exempt; and by § 1891 it is provided that, in addition to the exemptions allowed by the last section, necessary household furniture, working tools and team, professional instruments, furniture, and library, not exceeding $250 in value, are exempt The books in question, even if considered the tools and implements of the defendant, exceed in value the sum of $250 ^greatly, and therefore were not exempt, except to that amount; and all this property was deliberately and intentionally kept from the assigned estate.

In view of these considerations, it is apparent that the court below had more than ample evidence to justify the conclusion that this assignment was made with intent to hinder, delay, and defraud the creditors of the defendant Mason. There was a willful withholding of property ; there was a deliberate concoction of the claim of a gift to the defendant’s wife, which had no substantive existence", but was a mere myth, and, it seems to us, solely the offspring of the imagination. The court therefore was more than justified in making the finding which it did in regard to the fraudulent character of the assignment Some question is made as to a ratification by the plaintiff of the assignment which was set aside. It is hardly necessary to discuss such a proposition, because all the affirmative acts done which could amount to a ratification had taken place prior to the time when the plaintiff had any knowledge of the fraud because of which the assignment was set aside.

It is further claimed that the court erred in not allowing the assignee compensation for his services in caring for and preserving the estate. We have examined the judgment in vain to find any determination upon that point. A referee has been appointed to take and state the accounts of the assignee, and upon such reference the question of compensation to the assignee may properly be considered. We think, however, that the assignee should not have been charged personally with the costs of the action. In the performance of the duty which devolved upon him as assignee, he was bound to defend the assignment, unless he was personally acquainted with the facts which constituted the fraud for which the same was set aside. It does 'not appear from the evidence in this case that he was so cognizant, or that he had anything to do with the fraud which resulted in the setting aside of the assignment, and the judgment should be modified in that respect. The judgment appealed from, as so modified, should be affirmed, with costs against the defendant Mason, but without costs as to the defendant Ball.

All concur.


text:
    First National Bank of Sing Sing, App’lt, v. Schuyler Hamilton, Jr., et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894-)

    Fraudulent conveyances—Pre-existing debt.
    A conveyance by an insolvent husband to his wife, in satisfaction of an existing debt, will not be set aside as in fraud of his creditors, unless there is proof of a fraudulent intent on her part.
    Appeal from a judgment dismissing the complaint.
    The following is the opinion of Hamilton Odell, Esq., referee:
    On February 11, 1889, the defendant Schuyler Hamilton, Jr., conveyed to Ms wife, the defendant Gertrude Y. 0. Hamilton, the several pieces of real estate in the city of New York which are described in the complaint. ■ He was, at the time, heavily indebted to the plaintiff. In September, 1890, the 'plaintiff recovered judgment against him for $63,799.17, a portion of the said indebtedness, which it has been unable to collect It is charged in the complaint that at the date of said conveyance the said Schuyler Hamilton, Jr., was insolvent, and that the conveyance was made without consideration, or for an inadequate consideration, and for the purpose of hindering, delaying, and defrauding the grantor’s creditors, and the relief demanded is that it be declared to b@ faudulent and be set aside aS to the plaintiff, and that the said real estate be subjected to the lien of the plaintiff’s judgment. The material facts in the case are not disputed. In June, 1885, the defendant Schuyler conveyed to the defendant Gertrude, in consideration of “love and affection,” an undivided one-fourth interest in the Prescott House, on Broadway. No reasonable ground exists for challenging the validity of that conveyance. Mr. Hamilton’s solvency at that time is not questioned, and the fact appears that he had other property far exceeding in value the sum of his existing liabilities. It is plain from the proofs that he was not then anticipating the business misfortunes that subsequently came upon him, and that the gift of the Prescott House property to Mrs. Hamilton was not made with any dishonest purpose or intent. Such a settlement upon a wife the law approves, and will protect. Carr v. Breese, 81 N. Y. 584; Payne v. Freer, 20 St. Rep. 605; 4 N. Y. Supp. 644. In January, 1886, this property was mortgaged by Mrs. Hamilton for the sum of $30,000, all of which was loaned by her to her husband, who joined with her in executing the bond and mortgage. In December, 1888, the property was sold by her for the sum of $67,500, Mr. Hamilton receiving the entire proceeds, he at the same time agreeing, in consideration thereof, to convey to her other real estate of equal value. The conveyance which is assailed in this action was made by him in fulfillment of that agreement. The lots conveyed were subject to various ™ mortgage liens, and it is admitted that $67,500 was the fair value of Mr. Hamilton’s equity therein at the time of the conveyance. The said mortgage for $30,000 was paid by Mr. Hamilton out of the proceeds of said sale. It is claimed by the plaintiff that Hamilton was insolvent when the conveyance of February 11, 1889, was made. The claim, in my opinion, is well founded. This, however, is unimportant unless the conveyance was made either without adequate consideration or with fraudulent intent; and, if the consideration was adequate, a fraudulent intent on Hamilton’s part will not invalidate the deed unless Mrs. Hamilton had knowledge of it, or herself actqd with like intent. The statute expressly declares that its provisions-“shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor.” 2 Rev. St. p. 137, § 5. The law is stated as follows by Judge Earl in Starin v. Kelly, 88 N. Y. 421: “Under the statute, a-creditor assailing a transfer of property as fraudulent may succeed by simply showing a fraudulent intent on the part of the vendor, or such intent on the part of the vendee. If;' however, the vendee shows that he paid a valuable consideration for the property transferred to him, then proof of the fraudulent intent of the vendor alone is not sufficient. Then there must be proof, also, of a fraudulent intent on the part of the vendee, or that he had notice of the vendor’s fraudulent intent.” Here, it seems to me, is the fatal weakness of the-plaintiff’s case. There was valuable and ample consideration for the deed in question, and there is no proof to support a finding of fraudulent intent on the párt of either of the defendants. The learned counsel of the plaintiff strenuously insists that undisputed facts in the case require an inference of such an intent as against the defendant Schuyler Hamilton. It appears that in 1878, and also in 1884, he made gifts to his wife of other real estate situated in Croton, Westchester county, and in Newport, R. I.; that he afterwards expended thereon large sums of his own money; and that he so expended a considerable portion of the proceeds of the mortgage and sale of Mrs. Hamilton’s interest in the Prescott House, loaned to him by her as above stated. The argument is that for years Hamilton was systematically and deliberately divesting himself of his property, and bestowing it upon his wife, for the purpose of placing it beyond the claims of creditors, and that the gift of the quarter interest in the Prescott House, and the conveyance of the premises described in the complaint, were in execution of that fraudulent scheme. The contention, in iny judgment, is without foundation. The only question involved in this action is the validity of the said conveyance of February 11, 1889, and the facts above alluded to are material only as they bear upon the sufficiency of the consideration for that conveyance. There is nothing to show that there was any understanding between the defendants that any of the money realized from the Prescott House property, either by mortgage or sale, should be applied to the benefit of Mrs. Hamilton, or expended upon other property owned by her, or that any of it was so applied or expended with her knowledge or at her request. Her testimony is that Mr. Hamilton desired the money to assist him in his business, and that she loaned it to him for that one purpose. She was not bound to know the uses to which he put it. It may be that the plaintiff can successfully follow some of the said moneys into other property belonging to Mrs. Hamilton upon which it was expended by him; but it is clear to me that such voluntary expenditure by him, without prearrangement and without knowledge on her part, cannot in any manner affect the transaction which the plaintiff now attacks as fraudulent, and does not tend to prove a want of consideration for the conveyance of the lots in question. The defendants are entitled to judgment dismissing the complaint.

      Samuel Watson, for app’lt; Henry L. Sprague, for resp’ts.
   Per Curiam.

Judgment affirmed on opinion of referee, with •costs.


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

text:
    Isaac K. Funk, App’lt, v. Evening Post Publishing Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March, 16, 1894.)

    Appeal—Nominal damages.
    A new trial will not be granted in an action for libel, simply because the verdict lias been for the defendant, instead of for the plaintiff for nominal damages.
    Appeal from a judgment entered on a verdict in favor of the ■defendant, and from an order denying a motion for new trial.

      A. S. Bacon, for app’lt; L. Godkin, for resp’t.
   Yan Brunt, P. J.

This action was brought to recover damages for alleged libel; and the only question which is presented upon this appeal is as to the right of the appellant to a reveisal upon the ground that he was entitled to a verdict for nominal damages, whereas the jury, although so instructed by the court,found a verdict for the defendant. It is claimed upon the part of the appellant that the rule seems to be beyond controversy, in every case in a court of record where the law entitled the plaintiff to nominal damages, such damages are a strict legal right, and a verdict for defendant will be reversed. And it is claimed that there is but one exception to this rule, and the exception can only apply where the action is so trivial as to be brought in a justice’s court, and the plaintiff’s only object seems to be costs, and to vex the defendant, and no principle seems to be involved. A number of cases have been cited to support this proposition. But it seems to us that an examination of the same shows that no such rule exists as is claimed upon the part of the appellant, and that, upon the contrary, the cases establish the proposition that where the mere question of costs is involved, and where no mistake of the judge had crept in, and 'swayed the opinion of the jury and the verdict to simply one against evidence, a new trial will not be granted because the jury have rendered a verdict for defendant, instead of nominal damages for the plaintiff. It will be necessary to consider only a few of the eases cited by the appellant in order to show that such is the condition of decision :

In the case of Hyatt v. Wood, 3 Johns. 239, which was an action for assault and battery, where the injury was trivial, and the jury found a verdict for the defendant, a new trial was refused, notwithstanding the misdirection of the judge. The court, in their opinion, say,:

“If this had been an action quare clausum fregit in which the right to the freehold came in the question, there might be some reason for granting a new trial. But for an assault, by which the party has sustained little or no injury, there seems to be no sufficient ground for the court to interfere. .It has frequently been decided in this court that in cases where the damages are trifling a new trial will not be granted, after a verdict for the defendant, merely to give the plaintiff an opportunity to recover, and when no end of justice is to be attained by it, though there may have been a misdirection of the judge.”

This last proposition is probably not sustained by the subsequent authorities.

In Herrick v. Stover, 5 Wend. 580, this refusal to grant a new trial where there had been a misdirection of the judge seems to have been disapproved, although its existence is recognized; and the court refused to apply it because the verdict involved a property right. The court say:

“It was suggested on the part’of the defendant that as this was evidently a vexations suit, and the damages which the plaintiff would be entitled to recover would be merely nominal, we ought not to interfere, even if there had been error. The rule referred to by the counsel for the defendant has never, I believe, applied to a case like this. The cases in Burrows, 11, 54, 664, [Macrow v. Hull, 1 Burrows, 11; Farwell v. Chaffey, id. 54; Burton v. Thompson, 2 Burrows, 664,] were motions for new trials where verdicts had been rendered against the weight of evidence; and the court refused to grant the applications because the damages were trivial, and the prosecutions appeared to be vexatious. In the case of Edmonson v. Machell, 2 Term R. 4, there was an alleged misdirection to the jury by the judge who tried the cause. The court refused to set aside the verdict, or pass upon the questions of law, because they thought justice had been done between the parties. In actions o£ assault and battery and for trespasses, this court have refused new trials for the misdirection of the judge, where there was little or no injury. In Hyatt v. Wood, 3 Johns. 239, the court refused the motion for a new trial; but they said, if the action had been quare clausum fregit, in which the right to the freehold came in question, they should have decided otherwise. Lord Kenyon said in Wilson v. Rastall, 4 Term R. 753, that he did not recollect a single case where a mistake of the judge had crept in, and swayed the opinion of the jury, in which the court had ever refused to grant a new trial. I apprehend the case before us differs from any to which the rule mentioned in the above cases has been applied. It is much like the case which was considered in Hyatt v. Wood an exception. The object of this suit is not merely to recover such damage as the plaintiff may have sustained, but it is also to determine the extent of his right to property acquired for a private way. There is also a difference, as I apprehend, in the application of this rule, whether applied to a motion for a new trial or a writ of error. It is said by Ashurst, J., in Edmonson v. Machell, that an application for a new trial is 1 an application to the discretion of the court, who exercise that discretion in such a manner as will best answer the ends of justice.’ But where a record is brought into this courtfor revision, and error is found in it, is it a matter of discretion in us whether we will correct that error or not? I have always supposed that the party who has been affected by an error, be the extent of that injury ever so small, can require of us, ex débito fustiúa, to correct it.”

The rule laid down in these cases shows distinctly that where .there has been no error upon the part of the court, and where tire appeal comes up on a motion for a new trial, a verdict will never be set aside, and such new trial ordered, simply because the verdict has been for the defendant, instead of for the plaintiff for nominal damages.

It will not be necessary to refer to all the authorities cited, but, to those upon which the plaintiff lays the most stress, it must be proper to call attention. In addition to those already mentioned, he cites the case of Dixon v. Clow, 24 Wend. 188. This was an action for trespass upon land, where the court refused to charge correctly, and for the error and misdirection of the judge a new trial was granted. The case of Lyon v. Kramer, 24 Hun, 231, was an action for trespass upon the plaintiff’s building. A non-suit was ordered, and it was held to be error, because the judgment tended to deprive the plaintiff of a right in respect to his building. In the case of Stephens v. Wider, 32 N. Y. 351, the rule stated was clearly recognized; and the cases in which a party is entitled to a reversal, even though he could recover only nominal damages, are those in which an error crept in, and controlled the verdict, or in which some question of permanent right is involved. So, in the case of Moore v. N. Y. El. Railroad Co., 4 Misc. Rep. 132; 53 St. Rep. 169, the plaintiff’s title to the easements upon which the trespass had been committed was in question. The action was for damages for a past trespass, and judgment for the defendant would preclude a recovery for trespasses which should be committed in the future, of a like character. And so, in all the cases, unless some permanent right is affected, or some error of the court has crept in, by which the jury have rendered an erroneous verdict, the court will not set aside the verdict upon appeal because plaintiff was entitled to nominal damages. The question comes up in the case at bar, not to correct an erro$ during the progress of the trial, hut to review the order of the court denying a motion for a new trial upon the ground that the verdict of the j ury was against the evidence. The rule seems to be too well established to be interfered with at the present time; and it is not necessary for us to say whether, in our judgment, if it was an original question, we should have so held. The almost universal practice has been to refuse to interfere where the plaintiff is entitled to merely nominal damages.

We think, however, that the court should not, under the circumstances of this case, have granted the extra allowance which it did. And as the granting or denial of a motion for a new trial is, to a certain extent, discretionary, we think that an affirmance of the order denying such motion herein should be conditioned upon the defendant stipulating to waive the extra allowance granted by the court., Upon giving such stipulation, we think that the judgment and order should be affirmed, without costs.

O’Brien, J., concurs.

Parker, J.,

dissenting.—Assuming, as do all the members of the court, that the learned trial judge was right when he instructed the jury that the plaintiff was entitled to recover nominal damages, we have presented a case where the refusal to give the plaintiff that which was absolutely his due has resulted in a judgment which, so far as the record is concerned, adjudges the alleged libelous matter to have been true, and awards to the defendant, against the plaintiff, a judgment of over $800 for costs—an unjust result, certainly. Were there no decisions seeming to point the way to an affirmance of the judgment entered on such a verdict, we would, I think, have no difficulty in reaching the conclusion that a verdict having the effect to declare that to be trap which was in fact libelous, and carrying with it a judgment against the plaintiff of over $800, where rightfully nothing should have been awarded, should he set aside. Had the first verdict ever rendered in favor of a defendant, where the plaintiff was entitled to recover nominal damages, carried with it a judgment for costs ■against the plaintiff of over $800, it may well be doubted whether the court would have considered it one of the trifles of which courts will not take notice. Whether that assumption be well founded, however, is of no practical moment, because it must be conceded that the cases cited in the opinion, presenting the views of the majority of the court, as well as others which might have been referred to, seem to establish the rule that where only nominal damages are involved the courts will not set aside the verdict because against the weight of evidence. An exception to the rule equally .well established is that when, in addition to the question of nominal damages, there is involved some property right which is effected by the erroneous verdict, it will be set aside. As some of the cases to which our attention has been called are libelous, the question has not been considered, so far as we have discovered, whether injury to reputation, which in a greater or less degree results from a libelous publication, is of such a character as to bring it within the exception to the general rule to which we have referred. Certainly, there is nothing which a right-minded man possesses that he values more highly than a good reputation, and a good name proves every day to be of practical value to its possessor. Anything which unjustly tends to destroy or injure it in the slightest degree interferes with and affects a substantial' right, —:a right to the enjoyment of, and to the benefits accruing from, a good name. A verdict for a defendant when plaintiff is entitled to nominal damages for trespass will not be reversed, if the action involves nothing else, but if the title to the land trespassed upon be involved, however small its value, the result is otherwise; and no good reason suggests itself why the same rule should not apply when a permanent injury may result to the reputation of an individual. If he has been libeled, although a jury may differ with him as to the extent of the damage done, he has the right to have his reputation freed for all time from whatever cloud the libelous article may have thrown about it. I advise a reversal of the judgment.


author: Van Brunt, P. J.

text:
    Felix St. A. Govin, Resp’t, v. Luciana Govin de Miranda, as Executrix, etc., et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    1. Assignment—Delivery.
    The signing and acknowledgment of an assignment, without delivery, do not complete its execution.
    2. Trust—Undelivered declaration.
    In order to create a trust, the party must place the evidence thereof in the custody of another^ and thus show that it is intended to he a completed act.
    Appeal from a judgment entered on a verdict directed by the court in favor of the plaintiff.

      & G. James, for app’lts; A. Kling, for resp’t.
   Van Brunt, P. J.

The complaint in this action alleged the -death of one Felix Govin v Pinto in May, 1891, leaving a last will and testament, which was duly admitted to probate in the office of the surrogate of the county of New York, and letters testamentary issued to the defendant; that the plaintiff was the owner and entitled to the immediate possession of a certificate for $10,000 issued by the United States government, with interest thereon payable at. the rate of 4^ percent, per annum, and that prior to the 8th of November, 1881, said certificate, so belonging to the plaintiff, was delivered to the deceased in trust to and for the benefit of the plaintiff, and that the deceased and his legal representatives from time' to time collected the interest which accrued thereon; that the deceased and, the defendant in this action have refused to deliver to the plaintiff said certificate of $10,000, and the interest which accrued thereon, although duly demanded, and judgment is claimed for $10,000, with interest thereon. The defendant, answering the complaint, denies such ownership of the plaintiff in the certificate mentioned in the complaint, and the delivery thereof to the deceased ; and upon information and belief denies that the deceased neglected or refused to deliver the certificate or the proceeds thereof, but admits that she refused to deliver to the plaintiff the certificate, and alleges that there was no such certificate in the possession of the deceased at the time of his death. Various other allegations are made in the answer by way of defense, which it is not necessary to repeat here. These issues coming on for trial, a verdict was directed for the plaintiff, and from the judgment thereupon entered this appeal is taken. >.

The plaintiff, at the trial, to maintain the issues upon his part, introduced the following instrument, which was signed by the deceased, and acknowledged by him before a notary public. The defendant’s counsel objected to the introduction of the paper upon the ground that there was nothing to show that it had ever been delivered by the deceased. The objection was overruled, and the paper was read in evidence as follows:

“ State and City of New York, May 25th, 1881.
“For the sum of $1, to me in hand paid, the.receipt of which is hereby acknowledged, and for certain other valuable considerations, I do hereby transfer, set over, and deliver to the young man known as Felix Govin Diaz, a native of Matanzez, Island of Guba, now living at No. 147 Bast Thirty-Ninth street, in the city of New York, two certificates for $10,000 each ($20,000) of the United States four and a half per cent loans under the act of congress entitled ‘An act to authorize the refunding of the national debt,’ approved July 14, 1870, issued, one Jan. 18, 1876, Letter A, 13,-235; and the one issued May 17, 1877, Letter A, 10,642. Said certificate will be retained in my custody for the present, as trustee for the said Felix Govin Diaz.
“ Instead of two certificates, only one of ten thousand dollars.
“ Felix Govin y Pinto, [l. s.] ”

The plaintiff then offered and read in evidence the original will and codicil of the deceased, which was duly executed.

It appeared that after the death of said Pinto, and on the day of his funeral, his safe was opened, and it was found to contain, among other things, an envelope, in which were $50,000 of United States bonds, and the paper above mentioned; and upon the e velope was written in the handwriting of the decedent the following.

“This envelope contains eight certificates of United States four and a half per cent, loan, all of sixty thousand dollars ($50,000), which belong to Felix Govin Diaz, ten thousand; Emilia Govin and Guillermina Govin, $20,000 each. I will preserve the interest at present to help at their subsistence.
“ New York, May 25, 1881. L Felix- Govin y Diaz.
“Felix, ten; Emilia, twenty; Guillermina, twenty.”

There was also found another envelope containing a paper, which read as follows:

“In possession of Bamon Estevez there are sixty thousand dollars in United States bonds, which I declare belong to the three" children, brother and sisters, Emilia, Felix, and Guillermina Govin, residents of this city, living at 147 E. 39th St. Besides, in my box, there is a legacy which contains $29,000 R. R. bonds, Iowa Division. Of these ten thousand belongs to Luz Diaz y Sanchez, mother of the above-mentioned individuals. She has a note for the same, signed by me; and the rest belongs to the above-mentioned Emilia, Felix, k Guillermina in equal parts. No one may go contrary or against this declaration, as it is based under conscience and justice. To me alone is reserved the right to do with this money as I deem proper.
“New York, Dec. 8th, 1883. Felix Govin y Pinto.
“Acknowledged before me this 15th day of December, 1883.
“Jas. W. Hale, Notario Publico, 4 Hanover St.”

This envelope was indorsd as follows:

“A declaration in favor of Emilia, Felix, Guillermina Govin, and Luz Diaz y Sanchez, who lived in 147 E. 39th St”

These two envelopes, with their contents, were, on the day after they were so found in the decedent’s safe, sent to the mother of the plaintiff."

The only portion of the will of the testator which is claimed to be applicable to the questions in dispute in this action is the fifth clause, which is as follows:

“Fifth. There are in my possession, under cover, sixty thous- and dollars, belonging to Emilia, Felix, & Guillermina, residents to-day of New York,—twenty thousand dollars to each one,—in four and a half per cent, bonds of the United States of America, which will be delivered to them as they reach twenty-one years; and in the meanwhile they will receive the interest The surname of the three persons indicated in this article is Govin.”

It further appeared that the deceased during the years 1877 and 1878 purchased and paid for by his own checks, among others, the two bonds referred to in the instrument of the 25th of May, 1881, herein set forth; and that the bond which forms the subject-matter of this suit—one of the two therein mentioned—was sold by deceased on the 5th day of September, 1890; and that the deceased from the time he acquired the same until its sale, collected the interest thereon.

It was claimed upon the part of the plaintiff that the evidence showed title in him to the bonds which had been sold by the deceased. It was objected upon the part of the defendant that no such title was shown, in that the property was by the evidence proved to belong to the deceased, and that the alleged transfer was of no avail, because it had not been delivered, and therefore was never executed. The learned court, probably relying upon the case of Govin v. De Miranda, 140 N. Y. 468; 55 St. Rep. 837, which held that the par ties a interested in the securities referred to in the paper above mentioned, acknowledged December 15, 1883, had a right to recover the same, directed judgment in favor of the plaintiff. In this, we think the learned court erred. There is a marked distinction between the facts of the case at bar and those in the. case cited. It is claimed upon the part of the plaintiff—and bis right to recover must necessarily rest upon 'that claim—that the security which is sought to be recovered iti this action was transferred by the deceased to the plaintiff by the instrument of the 25th of May, 1881. The validity of this contention must depend upon the fact as to whether an execution of such instrument has been established. It is a common error to suppose that execution means the signing and acknowledging of an instrument; but there is another requisite which is equally necessary to its due execution, namely, its delivery. Hence the significance of the witness clause which in former times prevailed where the execution of instruments was witnessed. Such clause was, “Signed, sealed and delivered;” this, in the case of a sealed instrument, being necessary to complete execution. Applying this rule to the facts of the case at bar, the signing and acknowledgment of the instrument in question without delivery did not. complete its excution. It would be a dangerous rule to adopt that, simply because,a man signed an instrument and acknowledged it, and kept it in his possession, and then died, the party who would have been entitled to claim under said instrument had it been delivered to him, could, notwithstanding' this failure to deliver, claim thereunder, after the decease of the party signing it. For instance, a deed is signed and acknowledged in anticipation of the dosing of a contract for the sale of real estate, and the grantor dies. Under such a rule, the grantee in the deed would be entitled to recover the property described in the deed, although he would have' paid nothing for it, because there would be a grant and an acknowledgment of the consideration, and nobody could prove that such consideration had not been paid. So, in the case at bar, the instrument in question states, “I do hereby transfer, set over, and deliver,” and, it'being established that the title to the security was in the deceased at this time, it required some transfer in order to clothe the plaintiff with title. Such transfer never having been completed by delivery, it is clear that the deceased never parted with his title. The case which has been cited is clearly distinguishable from the one at bar. In the instrument which was the foundation of the right to recover in that case there was an acknowledgment by the deceased that he held in his possession property which belonged to the plaintiff in that action. There was no evidence that by the instrument he attempted to transfer any title, but it was ,a mere acknowledgment that he was the custodian of the property, and there was no evidence to contradict this declaration. This was the ground upon which this court affirmed the judgment in question, and it was upon this ground distinctly that the court of appeals held that the plaintiffs had a right to recover in that action.

But it is urged that by this paper the deceased created himself a trustee of these securities for the plaintiff, and that such trust was irrevocable; referring to the case of Martin v. Funk, 75 N. Y. 134. But the facts of that case are entirely different from those in the one at bar. In no case has it ever been held as yet that a party may, by transferring his property from one pocket to another, make himself trustee. In every case where a trust has been established, the party creating it has placed the evidence thereof in the custody of another, and has thereby shown that it was intended to be a completed act. In the case at bar the deceased kept all the evidence of transfer within himself, which is more consistent with the idea of an uncompleted purpose than of one which has been carried into final effect. And the fact that the deceased treated this property as his own by tire sale of it necessarily strengthens the conclusion that he considered the transaction incomplete and unfinished, and that he had not parted with the title to the property, which he still considered his own. There having been, therefore, no proof of the execution of this alleged transfer, it seems to us that the court was wrong in the conclusion at which it arrived, and that the judgment must be reversed, and, a new trial ordered, with costs to the appellant to abide the event

All concur.


text:
    Rosa Herzog, App’lt, v. New York Elevated Railway Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

    Municipal corporations—Basements in street.
    An abutting owner, who purchases the premises with knowledge of a consent by a former owner to the construction of the railway, cannot, in violation of its terms, enjoin the operation of such road.
    Appeal from a j udgment in favor of defendants.
    The opinion of Ingraham, J., at special term, is as follows:
    Prior to the year 1875 the city of New York had acquired, under certain condemnation proceedings instituted under the act of 1813. the fee of Third avenue, which it held in trust for use as a public street. As a municipal corporation the city of New York also owned in fee the property abutting on the westerly side of Third avenue, between Sixty-Seventh and Sixty-Eighth streets. On June 18, 1875, an act of the legislature know as the “ Rapid Transit Act ” was passed. By that act a system was established, under the provisions of which authority could be acquired to construct elevated railroads over public streets and highways, and it was provided in that act that the'use of the streets, avenues, places, and lands authorized to be used for the purposes of such highway should be considered and thereby declared to be, a public use, consistent with the uses for which the streets, roads, avenues, and public places were publicly held. That act also contained a provision which required as a condition for the construction of any elevated railroad under the authority' thereby granted, that the consent of the local authorities having the control of that portion of the street or highway upon which it is proposed to construct or operate such railway or railways be first obtained. In pursuance of the provisions of that act the defendant the New York Elevated Railway Company was authorized to construct an elevated railroad in Third avenufe, between Sixty-Seventh and Sixty-Eighth streets, and.on September 7,1875, the common council of the city of New York duly adopted, and the mayor duly approved, the following resolutipn: “ Resolved, that this board, on behalf of the corporate authorities of the city of New York, hereby gives its consent to the routes adopted by the commissioners on rapid transit, as contained in the report of the said commisssioners, transmitted to the board this day.” Acting under the authority thus granted by the corporate authorities the defendant constructed its railroad in Third avenue, between Sixty-Seventh and Sixty-Eighth streets. Subsequently, in the year 1885, the mayor, aldermen, and commonalty of the city of New York conveyed" to the plaintiff’s grantor the premises described in the complaint in this action, abutting on Third avenue; and^ the plaintiff now brings this action, alleging that she acquired by virtue of the grant from the city of New York to her grantor, and by the grant from her grantors to herself an easement in Third avenue, which has been appropriated by defendant in the construction and operation of its railroad, and asks for an injunction to restrain the defendant from trespassing upon or appropriating such easement. And the question that meets us on the threshold of this case is whether the consent given by the city of New York to the defendant, to construct its road in Third avenue, did not grant to this railroad company its right on Third avenue as abutting owner, as well as its right and interest as owner of the fee of the street.
    The city of New York, as a municipal corporation, held all of the property which it owned for public use. It held the fee of the street for a specific public use, viz. that of a public street; and it had no authority, except by consent of the legislature, to appropriate any of the property held in trust to be used as a street for any purpose except a street use, but all the property that was vested in the corporation was corporate property, and could not be applied to any use, except corporate use, without the consent of the legislature. The legislature, however, had power to authorize the municipal authorities to consent to the use of its property for any public use, and for such purpose it had power to declare what would be a public use. It had power therefore, to declare that the elevated railroad should be deemed a public use, and to authorize the corporate authorities to denote any of the property that it held—whether in trust for public streets, or for the general municipal purposes—to the use of such railroad; and, acting under such authority, the corporation granted the right to use any of its property for the construction of such railroad, and the railroad company acted upon such consent, and built its road, the right to use such property so devoted for the railroad vested absolutely and irrevocably in the railroad corporation, and neither the city nor the legislature could subsequently resume possession of such railroad property without the consent of such railroad corporation. Thus, in the case of People v. O'Brien, 111 N. Y. 38 ; 19 St. Bep. 173, Buger, C. J., says: “The title to the streets of New York is vested in the city, in trust for the people of the state ; but, under the constitution and statutes, it had authority to convey such title as was necessary for the purpose to corporations desiring to acquire the same for use as a street railroad. The city had the authority to limit the estate granted, either as to the extent of its use, or the time of its enjoyment, and also had power to grant an interest in its streets or public use in perpetuity, which should be irrevocable.” Whatever interest, therefore, the city of New York had in the streets,—whether as owner of the fee of street, or as owner of abutting property,—it has power to grant to the defendant for this public use; and the consent of the city to the use of Third avenue by the defendant operated as a-grant of so much of the interest of the city in the street as was neccessary, for the construction, maintenance and operation of defendant’s railroad, and the railroad company by such grant,, took an estate in the street. People v. O'Brien, 111 N. Y. 40; 19 St. Bep. 173. It would be entirely inconsistent with this grant made by the city to the company for the city to thereafter prevent the corporation from building its railroad because, by the construction of the road, the property of the city in the street would be appropriated. By its consent to build the road it granted to the railroad company so much of its property in the street as was necessary for the maintenance and operation of the railroad. If a private person had owned both the street and the abutting proprety, and had by grant authorized the railroad company to erect its structure and operate its road it is clear that such consent would include the use of the easement in the street that was appurtenant to the abutting property, as well as ' so much of the fee of the street as was necessary for the construction and operation of its road; and I can see no reason why the same rule should not apply to property owned by the city, when the city has authorized the construction of the road under legislative authority. When the city made its conveyance to plaintiff’s grantor, it could convey only such rights in the street as it had at the time of its conveyance, and subject to the rights of the railroad company theretofore acquired, and as the railroad company’s possession of the street at the time of the conveyance was open and notorious, I think the grantee took with notice of the right that had been granted by the city to the railroad company. The proceedings of the rapid transit commisssioners in respect to the elevated railroads in the city of New York, and the resolution of the common council giving the consent to the construction of the road, were introduced in evidence by defendants, and, by such, proceedings and consent, it appears that the consent of the local authorities applied to that portion of the road in front of the premises' in question. I think, therefore, that the property in Third avenue acquired by the plaintiff by the conveyance of the abutting property was subject to the use of the street by defendants and that no property of plaintiff has been or is appropriated by defendants; and it follows that the defendants are entitled to judgment, with costs.

      B. K. Ingalls, for app’lt; E. B. Thomas, for resp’t.
   Yan Brunt, P. J.

This action was brought in equity to restrain the further maintenance and operation of the defendant’s, road in front of the premises of the plaintiff, situated on Third avenue in the city of New York, and incidentally to recover damagep already sustained by the plaintiff to the fee and for loss of rents of these premises caused by the .maintenance and operation of the defendant’s railroad. Upon the trial it appeared that, prior to June, 1885, the premises in question were owned by the mayor, aldermen, and commonalty of the city of New York, and on such date were conveyed to one Kern, who on the 15th of July, 1885, conveyed the same to the plaintiff. Prior to this time the defendant the New York Elevated Railway Company had erected its road along Third avenue in front of the premises which were subsequently conveyed to the plaintiff, pursuant to authority of law—the consent in writing of the corporation of the city of' New York being first duly given to the construction of said road, —and were operating the said road at the time of the conveyance to said Kern, and by Kerb to the plaintiff. Upon this state of facts, the court'below dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

• We might very well base our decision upon this appeal upon the opinion delivered by the judge in the court below; he showing that the mayor, aldermen, and commonalty owning the fee of the street of Third avenue for public use, when they granted the easement of such street, pursuant to legislative authority, necessarily conveyed all rights which, as the owners of .property abutting upon said street they might possess therein. In other words, that the corporation of the city of New York, being the owner of the premises now claimed by the plaintiff, and also of the fee of the street (impressed, it is true, with a public use), when it consented to the construction of this railway upon said street, it parted with all claim .to compensation for the use of easements in said street by the railroad company, which affected its property abutting thereon.

But there is .another view of this case which seems to be fatal to. the right of the plaintiff to maintain this action. The road, the-operation of which this action is brought enjoin, was built by and' with the consent of the owners of the premises in question ; and it would be inequitable now to permit a subsequent owner, buying said premises with knowledge of such consent, to enjoin the operation of the road, in violation of its terms. Even If an action for damage might be sustained, a court of equity would not, under such circumstances, intervene and by injunction, restrain the operation of the defendant’s road. It is a familiar principle in equity jurisprudence that the powers of a court of equity cannot be invoked for the purpose of working an injustice. We are of opinion, therefore, that the judgment should be affirmed, with costs.


author: Follett, J.

text:
    Matilda C. Jantzen, Individually and as Executrix, etc., Resp’t. v. Helen J. Nelson et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894)

    Verdict—Unsustained.
    In an action to recover money alleged to have been paid on a mortgage, the verdict in favor of plaintiff was held not to be sustained by the evidence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.'

      F B. Lown, for app’lts; L. Cohen, for resp’t.
   Follett, J.

On the 22d of October, 1885, the plaintiff executed to Nathaniel S. Smith a bond and mortgage to secure the payment of $1,700 on the 20th of October, 1886, with interest at the rate of 6 per cent, per annum, payable semi-annually. The mortgage covered the lot at the northeast corner of Second avenue and Sixth street. The mortgagor executed a statement, which was annexed to the mortgage, of which the following is a copy :

Note for $700, June 15, 1885..................... $ 710 58
Less received for discount........................ 6 00
$ 704 58
Less 2 days’ interest on mortgage, it being dated Oct.
20th, and transaction closed Oct. 22d. ............. 1 12
Drawing bond and mortgage, and recording same....
$ 703 46 8 00
Yernam & Co.’s check for........................
$ 711 46 918 54
H. A. Nelson’s check for........................
$1,630 00 70 09
$1,700 00
The above is correct.
Dated Oct. 22, 1885. Matilda Jantzen.

It is admitted that this statement is correct, and sets forth the consideration of the bond and mortgage which was furnished by Homer A. Nelson, to whom the bond and mortgage were assigned on the day of their date. On the 15th of November, 1890, the plaintiff executed to Homer A, Nelson a bond and mortgage to secure the payment of $3,875 on the 1st day of January, 1891, with interest at the rate of 4 per cent, per annum. The mortgage covered the same premises described in the fifst, and no other. Annexed to it is a statement which the plaintiff admits she executed; of which the following is a copy:

Nov. 15th, 1887. Cash loaned.................... $1,775^00
Interest to Nov. 15, 1890, at 4 per cent, per annum.. 213"00
Jan. 2d, 1890. Cash loaned...................... 227 00
Cash loaned....................................• 1,600 00
Interest on cash, two items, at 4 per cent, per annum. 80 90
$3,875 90
Bond and mortgage dated Nov. 15th, 1890, executed for $3,875, to secure ihe payment of the above, all of which money was loaned to me as executrix, and for the protection of the property of the estate of Joseph Jantzen, deceased.
Dated-. Matilda C. Jantzen,
As Executrix and Individually.

On the 28th of April, 1891, Homer A. Nelson died, leaving a will, which being contested, the defendants were only appointed temporary administrators of his estate. Afterwards the will was admitted to probate, and on July 2,1891, letters of administration with the will annexed were issued to the defendants. On May 6, 1891, both mortgages and the assignment of the first were duly recorded. A controversy arose as to whether both mortgages were outstanding and due from the plaintiff to the defendants; and the plaintiff, being desirous of obtaining a larger loan on the premises, on the 28th of July, 1891, paid both mortgages to the defendants, who at the time executed the following agreement:

This is to certify that the administrators of the estate of Homer' A. Nelson, deceased, have, this 28th day of July, 1891, received of Matilda C. Jantzen, individually and as executrix, under the last will and testament of Joseph Jantzen, deceased, the sum of six thousand two hundred and seventy-two 13-100 dollars, ($6,272.13,) in payment and satisfaction of» the principal and interest of two certain bonds and mortgages held by said administrators as part of the assets of estate of said Homer A. Nelson, deceased, viz.:

Bond and mortgage Oct 22, 1885, to secure........ $1,700 00
Interest on the same from date thereof to this date... 588 20
$2,288 20
Bond and mortgage Nov. 15, 1890, to ,
secure.....................-....... $3,875 00
Interest on same from date thereof to this
date.............................. 108 93
---$3,983 93
s $6,272 13

And whereas, said Matilda C. Jantzen claims that said first-named bond and mortgage of §1,700.00 has been fully paid and satisfied, the said administrators agree that, upon satisfactory proof to them of such payment of said bond and mortgage, they will repay the sum paid to them as aforesaid, viz., two thousand two hundred and eighty-eight 20-100 dollars, ($2,288.20,) to said Matilda 0. Jantzen, but without interest thereon exceeding the rate of three per cent, per annum,

[Executed in duplicate,] Helen J. Nelson,
Laura Nelson,
Benjamin M. Fowler,
Matilda C. Jantzen,

Administrators, &c., of H. A. Nelson, deceased, by Benjamin M. Fowler.

On the 7th of April, 1892, this action was brought to recover $2,288.20, the amount paid on the first mortgage, with interest at the rate of 3 per cent, pursuant to the stipulation contained in the foregoing agreement; the plaintiff alleging that the amount secured by the first mortgage formed part of the consideration of the second, and Was so merged and paid. To establish this cause of action, the plaintiff offered in evidence the bonds and mortgages and the agreement of July 28, 1891, and called the person, who acted as the stenographer and typewriter of the testator, who testified that the testator dictated to her the second bond and mortgage, at the same time producing the first. She also testified: “I had a conversation with Judge Nelson the day he dictated this new mortgage. He said to me that he would like to dictate a mortgage, and, when I got in there to his desk, he said, “ This is the old mortgage, which I want to include in the new mortgage and also stated, ‘I don’t care here nor there, but Mrs. Jantzen wants a mortgage covering—’ He said, ‘I have advanced her additional money to this old mortgage.’ I didn’t know at that time what the amount of that was ; and in dictating this last mortgage he said, ‘This embraces the first mortgage.’ He gave me the old mortgage to copy from, and gave me in dictation what I made out in the last mortgage, which made a new mortgage, embracing the old mortgage in this new one. The new mortgage covered the identical ground covered by the old mortgage, except the date and amount. It covered the same property, and embraced the amount of the first mortgage.”

This witness testified, on cross-examination, that she did not know the items which made up the consideration of the second mortgage, but that the mortgagee told her that the $1,700 was paid by it. This was all the evidence of payment of the first mortgage given on the trial.

The defendants asked the court to charge:

“ I ask your honor to charge the jury that there is no proof of the payment of the first mortgage, or any part thereof, pleaded or proven, except by including it in the second mortgage.”

This was refused, and an exception taken, which was error. Whether the amount secured to be paid by the first mortgage formed part of the consideration of the second, and was so paidr was the only issue; and we think the court erred in refusing to call the attention of the jury to that issue, and in refusing to direct them to confine their attention to it.

The first item in the statement attached to the second mortgage

is:

Nov. 15th, 1887. Cash loaned . ....... $1,775 00
Interest at 4 per ct., for 3 years.................. 213 00
$1,988 00

It was proved and admitted that this item was loaned by the check of Yernam & Co., dated November 15, 1887, for $1,775, payable to the order of H. A. Nelson, and by him indorsed to the plaintiff. v

The 'second item in the statement is :

Jan. 2d, 1890. Cash loaned..................... $ 227 00'
Interest thereon to date of mortgage'......-......... 7 88
$ 234 88

A check drawn by Homer A. Nelson, January 2, 1890, for this áum, payable to the order and indorsed by the plaintiff,-: was proved.

The third item in the statement is:

Cash loaned.....................................$1,600 00

It was pfoved that Homer A. Nelson, dn January 14, 1890, drew his check for $1,600, payable to the order of and indorsed by the plaintiff. The interest on this item is $55.50. . The interest on the second and third items at 4 per cent, amounts to $61.38, and exceeds by 40 cents the amount of $60.90-charged in the statement. The plaintiff admitted on the trial: “We received the $1,700 and the $3,875. We don’t deny it.” . The interest on the first mortgage, from its date to the date of the second mortgage, at 6 per cent, amounts to $516.61, making the amount due $2,216.51, which, added to any of the items making up the second mortgage, will not produce its amount. The first bond and mortgage were found among the ■papers of .the testator at his death. The conclusion which logically follows from these facts, that the first mortgage forms no part of the consideration of the second, was not overcome by the loose and unsatisfactory testimony of the stenographer who drew it, and inevitably leads to the belief that the witness misunderstood the remarks of Mr. Nelson. The testator was a lawyer, and was dealing with a client, who was a woman; and he took great pains to preserve written evidence of the fairness of his transactions with her. We cannot doubt that the verdict in this case was contrary to the evidence, and it and the order should, be reversed, on the law and the facts, and a new trial granted, with costs to the appellants to abide the event.

All concur.