text:
    In the Matter of the Judicial Settlement of the Accounts of Charles Mayer et al., as Administrators of Margaret Mayer, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    1. New trial—Newly discovered evidence.
    A motion for a new trial on the ground of newly discovered evidence must be founded on the-affidavits of the proposed witnesses, unless it is riiown that they cannot be obtained.
    2. Attorney and client—Contract with client.
    The burden is upon an attorney to show that a contract, made by him with an heir or next of kin by which he is to receive for his services a large share of his client’s interest in the estate, is fair and just, and that his client acted understandingly and with full knowledge of all the facts connected with the transaction.
    Appeal from an order, refusing a rehearing of a claim preferred against the estate by one of the administrators.
    February 8, 1892, Bridget Neary died intestate, and June 16, 1892, letters of administration were issued to Margaret Mayer and Louis Cohen =on her estate, which amounted to $4,663.45. On the 16th of February, 1893, Louis Cohen, as surviving administrator, had a judicial settlement of his accounts in the surrogate’s court, and he was allowed for commissions $141.59 ; for moneys disbursed in setting the estate, $393.40 ; total, $534.99. There was left for final distribution among the next of kin $3,840.45, one-third of which—$1,280.15—was distributed to Louis Cohen and Charles Mayer, as administrators of Margaret Mayer, $1,280.15 to Ellen Convannon, and $1,280.15 to Mary Ryan, the next of kin of the intestate. July 8, 1892, Margaret Mayer died intestate, leaving Charles Mayer, her husband, and Charles Mayer, Jr., their infant son, her only heirs and next of kin. September 30, 1892, letters of administration were granted to Charles Mayer, Sr., and Louis Cohen, on her estate, which amounted to $1,636.35. October 12, 1893, the administrators of Margaret Mayer filed a petition for the judicial settlement of their accounts, and on the same day a citation was issued, returnable October 31, 1893, which was duly served October 21, 1893, on Charles Mayer, Jr., an infant of the age of eleven years. November 3, 1893, Luis James Phelps was duly appointed by the surrogate’s court the special guardian of said infant in said proceedings. On the final accounting Cohen presented the following account against the estate of Margaret Mayer:
    “New York, February 11, 1893.
    Administrators of Estate of Margaret Mayer, Dec’d, To Louis Cohen, Counsellor at Law, 176 Broadway.
    To professional services rendered in the Matter of Bridget
    Neary, deceased, as per special contract............ $1,200
    Or.
    By costs, disbursements, commissions & disbursements in
    estate of Bridget Neary......................... 534 99
    Balance
    $ 665 01

      “I hereby approve of the foregoing bill.
    “N. Y., Feb. 11th, 1893. Charles Mayer.”
    This claim was duly verified, and was admitted to be just by Charles Mayer, the co-administrator, but the validity was contested by the special guardian, and after a trial before the surrogate, it was disallowed. To support the claim, Cohen called Charles Mayer, who testified: “By Mr. Cohen : I knew Margaret Mayer. She was related to me. She was my wife. She died July 8, 1892. She left no will. I knew Bridget Neary in her lifetime. She was related to my wife,—her cousin. Bridget Neary died February 8, 1892. She left no last will and testament. I recollect of my wife’s calling at Mr. Cohen’s residence, and consulting with him concerning the affairs of the estate of Bridget Neary. It was on a Sunday, immediately after the death of Mrs. Neary, and before she was buried. I recollect what that conversation was. It was an agreement of $1,200 that Mr. Cohen was to receive out of the estate of Bridget Neary for services he was to render for that estate. There was something said in reference to the disbursements connected with the estate. Mr. Cohen was to attend to all claims. Mr. Cohen was to receive $1,200 for his services connected with that estate. Q. Do you know whether your wife paid the $1,200 in her lifetime? A. No, sir. Q. Do you know what amount of money, if any, was paid on account of the agreement ? A. None at all. There was something paid in the shape of costs and disbusements,—over $500.” No other evidence was given tending to support the claim, and the surrogate’s court refused to find, as a matter of fact, that the claim was established. Afterwards the claimant moved for a rehearing, to enable him to produce additional evidence in support of the claim. In the affidavit upon which the motion was founded he testified : “I called the matter to the attention of Mr. Sigmund Feuchtwanger, an attorney and counsellor at law, and in the course of said conversation had concerning the disposition made by the surrogate concerning said claim, he called my attention to the fact of his having heard the conversation between the above-named intestate and myself concerning the special contract which is the subject-matter of my said claim, and that he is ready and willing to corroborate and substantiate the testimonjr given by the husband of the above-named intestate which he has read ; and the reason that his testimony has not been heretofore offered was—First, upon the ground heretofore stated, that I was misled by the form of the objection raised by the special guardian; and, second, that I did not recollect the occurrence of his being present at the time that the original contract entered into between the above-named intestate and myself was consummated.” The surrogate’s court refused to grant a rehearing, and from the order denying the application Cohen individually and the administrators appeal.

      Louis Cohen, in pro. per.; Luis James Phelps, special guardian, in pro. per.
   Follett, J.

The order denying the motion for a rehearing is sustainable on four grounds :

1. It has long been the rule in this state that a motion for a new trial because of newly-discovered evidence must be founded on the affidavits of the newly discovered witnesses, unless it is shown that they cannot be obtained. Adams v. Bush, 1 Abb. Dec. 7 ; 2 Abb. Pr. (N. S.) 104; Denn v. Morrell, 1 Hall, 382 ; Roberts v. Bank, 38 St. Rep. 563 ; In re Collins, 6 Dem. 286 ; Gould v. Moore, 40 Supr. 387; Garvey v. Horse & Cattle Show, 8 Misc. Rep. 352 ; 52 St. Rep. 261; Denny v. Blumenthal, 8 Misc. Rep. 544; 59 St. Rep. 263; Baylies, New Trials & App. 526 ; 2 Rumsey, Prac. 414. The affidavit of Mr. Feuchtwanger was not produced, nor was its absence explained.

2. Apart from this, had Feuchtwanger’s affidavit been presented, stating that “he would corroborate and substantiate the testimony” given by Charles Mayer, it would have been insufficient. Such an affidavit must disclose the facts the witness will testify to.

3. A contract made by a’n attorney with an heir or next of kin, by which he is to receive for his services a large share of his client’s interest .in an estate, is always regarded with suspicion; a,nd, if the attorney seeks to enforce it, the burden is on him to show that the contract was fair and just, and that his client acted understandingly, and with full knowledge of all the facts connected with the transaction. Ford v. Harrington, 16 N. Y. 285; Evans v. Ellis, 2 Denio, 640; Haight v. Moore, 87 Supr. Ct. 161; Mason v. Ring, 3 Abb. Dec. 216. It appears from the record that the share of Mrs. Mayer in the estate of Miss Neary exceeded but by a few dollars the amount which the claimant alleges she contracted to pay for his services in securing that interest. The claimant presented no evidence before the surrogate that his services in the settlement of the Neary estate were worth the sum of $1,200, or any sum beyond the allowance made to him by the surrogate on the settlement of that estate.

4. The evidence of Charles Mayer is insufficient to create a personal liability against Mrs. Mayer. Her agreement was that Mr. Cohen was to receive $1,200 out of the estate of Bridget Neary for the services he was to render for that estate.

The order should be affirmed, with costs against the appellan ts personally. All concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    James Roarty, Pl’ff, v. Edward C. McDermott et al., Def’ts. Frank J. Walgering, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 15, 1895.)

    Mortgage—Foreclosure—Infants.
    Where a devisee for life, who was authorized by the will to mortgage the property devised for a certain purpose, gave a mortgage showing on its face that it was for a purpose not authorized by the will, and. in an action to foreclose such mortgage, the infant children of testator, to wh m was devised the remainder after the lif estate, were made defendants and appeared by their guardian ad litem, but the complaint did not allege that such infant i acquired any interest ns devisees under the will, though it did allege that they had, or claimed to have, some interest in the mortgaged premises which accrued subsequently to the lien of the mortgage, the rights of such iniants under the will were not cut off by the decree of foreclosure.

      Appeal from an order, compelling the purchaser at a partition sale to pay the amount of his bid and accept the deed tendered by the referee.
    August 24, 1871, Thomas McConnell died, seized in fee of No. 441 West'Forty-fifth street (the premises in question), of-235 West Twenty-ninth street, and a farm at Smithtown, Suffolk county, N. Y. He left, him surviving, Ann McConnell, his widow, and four children, Thomas McConnell, Hugh McConnell. Ann McConnell, and John McConnell, his-only heirs and next of kin. He left a last will and testament, of which the following is a copy: “In the name of God, Amen. I, Thomas McConnell, of the city and county of New York, beingof sound mind and memory, and considering the uncertainty of this life, do therefore make, ordain, publish, and declare this to be my last will.and testament, that is to say: First. After all my lawful debts are paid and_ discharged, I give and bequeath to my beloved wife, Ann, all the real and personal estate of which I may die seized or possessed, to be used and enjoyed by her during her natural life, subject, however, to the conditions following: * * * Second. I give and bequeath to my son Thomas an equal undivided-one-fourth part of all my real and personal estate, after deducting the one-third amount thereof to which my said wife would be entitled by way of dower, such fourth to be paid to him in cash on his arrival at the age of twenty-one years, such amount to be based upon the valuation of ^he appraisers hereinafter named. Third. I give and bequeath to my three children Hugh, Ann, and John, after the death of my wife, all the real and personal estate that may then be remaining, to be divided between them in such proportions as she may by will direct, it being my intention that all my real and personal estate shall be given to and become the property of my last-named three children, or the survivors of them. Fourth. I hereby authorize and empower my executrix hereinafter named to mortgage or sell any portion of my said estate at public or private sale for the purpose of carrying out the provisions of this, my will, or whenever in her judgment it may be for the best interest of my estate, applying the proceeds thereof to the benefit of my said estate. Fifth. 1 hereby nominate and appoint my friends Bernard Clark, Michael Roche, and Thomas A. Ledwith to appraise my estate when my son Thomas shall arrive at the age of twenty-one years, the valuation so made by them to be the basis upon which the amount so as aforesaid to be paid to him is to be paid. Likewise, I make, constitute, and appoint my beloved wife, Ann McConnell, to be executrix of this, my last will and testament, hereby revoking all former wills by me made.” The will was duly admitted to probate September 13, 1871, and on the following day letters of administration were issued to Ann McConnell, who qualified and entered upon the discharge of her duties as executrix. June 13, 1872, said executrix conveyed, by a deed dated on that day, and recorded June 17, 1872, No. 235 West Twenty-ninth street to Charles Devlin for $9,000, who paid all of the purchase price except $3,000, which he secured to be paid by his bond, secured by a mortgage on said premises, executed to Ann McConnell, as executrix. Part of the purchase price (more than $4,500) was applied by the executrix in payment of a mortgage on the farm, which was executed by Thomas McConnell in his lifetime, in payment of taxes in arrear thereon, and some portion of the purchase price was applied by the executrix in payment of taxes in arrear on No. 235 West Twenty-ninth street. June 21, 1873, said Charles Devlin, by a deed dated on that day, conveyed No. 235 West Twenty-ninth street to Ann McConnell, individually, in consideration of $9,000, which she paid bjr cancelling said mortgage for $3,000 held by her as executrix, and by her bond to him, dated June 21, 1873, for $6,000, secured by a mortgage executed by Ann McConnell individually on No. 235 West Twenty-ninth street, dated June 21, 1873, and recorded November 29, 1873. Further to secure the payment of her said bond for $6,000, she, as executrix, executed a mortgage to Charles Devlin, dated June 21, 1873, and recorded September 10, 1873, for $6,000, on No. 441 West Forty-fifth street. In January, 1877, Charles Devlin brought an action against Ann McConnell, individually and as executrix, to foreclose said two mortgages, the four children of Thomas McConnell being parties defendant therein. Three of the children, Hugh, Ann, and John, were infants, under fourteen years of age, and appeared by their guardian ad litem, and interposed the usual general answer in behalf of infants. The guardian ad litem was the attorney of record for the defendant Ann McConnell. May 21, 1877, a judgment foreclosing said mortgages was recovered. Pursuant to the judgment, the mortgaged premises, No. 441 West Forty-fifth street and No. 235 West Twenty-ninth street, were sold, June 18, 1877,o to Charles Devlin, the mortgagee, he being the highest bidder. " October 16, 1877, he assigned his bid to Mary Devlin, his wife, to whom the referee executed a deed of said two lots, dated October 13,1877. After-wards this action to partition No 441 West Forty-fifth street was begun, and May 29, 1894, an interlocutory judgment was entered, directing a sale of the lot, pursuant to which, on June 21, 1894, the referee sold it at public auction to Frank J. Walgering for $15,800, and he thereupon executed the usual memorandum of purchase and sale. Subsequently he refused to complete the purchase, on the ground that the title was doubtful Afterwards a motion was made in behalf of the parties to the action to compel him to perform his contract, which was granted, and from the order entered he appealed.

      Clemens J. Kracht, for app’lt; William H. Hamilton, for resp’ts,
   Follett, J.

How the parties to this partition action succeeded to the title of Mary Devlin does not appear, but it seems to be assumed that they succeeded to her title, and that the referee could convey the estate which Mary Devlin acquired by the deed executed to her October 13, 1877, by the referee in the foreclosure action. By the will of Thomas McConnell, his widow took the use of all of the testator’s property until his eldest son, Thomas, became of age, when he became entitled to one-fourth of the estate, subject to the dower interest of his mother in that fourth ; and, after that event, she was entitled to a life , estate in the remaining three-fourths, and the remainder on her death passed under the will to the testator’s'three youngest children, to be divided equally among them, or among the survivors of them. On the 7th of July, 1873, Thomas McConnell, having become twenty-one years of age, received his share of his father’s estate, and quit-claimed all of his interest in No. 235 West Twenty-Ninth street, and No. 441 West Forty-Fifth street, by a deed dated and recorded on that date. The life estate of the widow in this lot has been cut off by her conveyance, and the question is whether the ■estate of the three minor children was cut off by the judgment in foreclosure. When these infants became of age does not appear, but'it is shown that all of them were under fourteen years of age March 14, 1877. Assuming that the eldest was then thirteen, the second twelve, and the youngest eleven years of age, the youngest would become twenty-one years of age in 1887. Whether we are right in this assumption is not disclosed by the record, and the youngest may have reached majority at a much later daté. By reference to the power of sale contained in -the fourth clause of the will of Thoma's McConnell, it will be seen that the power of the executrix to mortgage or sell is solely for the purpose of carrying out the provisions of the "will, and she was given no power to sell or mortgage for any other purpose. By the record in the foreclosure action, it appears that the mortgage which she executed to Charles Devlin. June 24, 1873, on No. 441 West Forty-Fifth street, was given as collateral ■security for the payment of her personal bond for $6.000, which ■she gave as part of "the consideration of her personal purchase of No. 235 West Twenty-Ninth street. The proposition that the will gave her no power to mortgage this property for her individual benefit is so plain that it does not need the support of precedent. She could neither divest nor incumber the remainder, devised to her children, for her personal use.

But it is urged that these infants having been made parties to the action for the foreclosure of the mortgage, and having appeared therein by a guardian ad litem, their remainders were cut off by the judgment. This proposition is not sustained. The complaint and the amended complaint in the .foreclosure action contain the following averment:

“And the plaintiff further shows that he is informed and believes that Thomas McConnell, Hugh McConnell, Ann McConnell, and John McConnell, Luke Molloy, Rensselaer B. Winchill, John McCahill, have, or claim to have, some interest in or lien upon the said mortgaged premises, or some part thereof, which interest or lien, if any, has accured subsequently to the lien of the said mortgage, and is subordinate thereto.”

It is not alleged in the complaint that the children of the téstator acquired any interest in the property as devisees under the -will of their father; and it is also alleged that the mortgage on No. 441 West Forty-Fifth street was given as collateral security for the personal bond of Ann McConnell. Under such a complaint, the rights acquired by the three infants under the will of their father which were paramount to this mortgage were not cut off by the, judgment. Lewis v. Smith, 9 N. Y. 502 ; Frost v. Koon, 30 N.Y. 428 ; Iiathbone v. Jlooney, 58 N.'Y. 463 ; Bank v. Goldman, 75 N. Y. 127.

It is very clear that the judgment in foreclosure is not on its face a bar to the rights of the infant heirs. It is asserted in behalf of the respondents that the affidavits filed on this motion show that the avails of these two mortgages were applied by the executrix for the benefit of the estate of the testator, and consequently for the benefit of the infants. We do not so construe them. No part of the avails of the mortgage on No. 441 West Forty-Fifth street was used by the executrix for the benefit of the estate, but, had it been distinctly averred in the affidavits that the avails of this mortgage were applied by her for the benefit of the estate, such averment would not be evidence against the heirs in an action which they may hereafter bring to recover their supposed interest in the estate. In case an action should be brought by the heirs, the owners of the lot might or might not be able to secure the attendance of the affiants as witnesses; and, in case they should testify, the issue of fact might or might not be found in accordance with their testimony. We do not declare the title derived from Mary Devlin good or bad, for there may be circumstances not disclosed in this record which may estop the heirs from successfully maintaining a claim to the property; but we do hold that the title is so doubtful and uncertain, resting, according to the respondents’ theory, upon oral evidence, that the purchaser ought not to be compelled to perform his contract.

The order should be reversed, with ten dollars costs and disbursements, and thé motion denied, with ten dollars costs and disbursements.

Van Brunt, P. J.

I concur. The guardian ad litem seems to have appeared as attorney for the defendant Ann McConnell, having an interest adverse to the infants, and thus the infants had no protection whatever in the foreclosure action.

Parker, J., concurs.


author: Bischoff, J.

text:
    Andrew Freedman, as Receiver, etc., App’lt, v. Frank Loomis, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    ¡Evidence—Pabol.
    Where certificates of indebtedness are, upon their face, complete as an expression of the agreement entered into and the obligation assumed, testimony, admitted solely for the purpose of showing another and earlier agreement, inconsistent, with that expressed in the writing, in altering the time and method of payment, is incompetent.
    Appeal from a judgment in favor of defendant rendered by a justice without a jury.

      Howard S. Gans, for app’lt; Henry B. Dwyer, for resp’t.
   Bischoff, J.

In an action by the receiver of the Manhattan Athletic Club to recover the sum of §25, the amount of certain semiannual dues alleged to be owing to that institution from defendant, the cause of action was admitted •'* and the trial proceeded upon the issue raised by the answer, wherein a set-off was claimed upon certain evidences of indebtedness, in the form of scrip, issued by the club. This scrip, according to its terms, was to be redeemed on the first day of January, 1898, unless the club should exercise an option to pay the same before that date, and this option was not shown to have been exercised. It thus appears that the defendant’s claim had not accrued prior to the plaintiff’s appointment as receiver, and hence could not be allowed as a set-off in this action. Fera v. Wickham, 135 N. Y. 230 ; 47 St. Rep. 866. Defendant, however, was permitted to testify, over repeated objections and exceptions duly taken, to a paroi agreement entered into with him by the officers of the club, whereby this scrip was to be received in satisfaction of indebtedness for dues and house account, when tendered. For the error apparent in the admission of this evidence, the judgment must be reversed. The certificates of indebtedness were, upon their face, complete,, as an expression of the agreement entered into and the obligation as sumed; and the testimony admitted was solely for the purpose of showing another and earlier agreement, inconsistent with that expressed, in altering the time and method of payment as provided. The plaintiff was clearly entitled to its exclusion. Willse v. Whitaker, 22 Hun, 242 ; Thompson v. Ketcham, 8 Johns. 146; Van Allen v. Allen, 1 Hilt. 525 ; Store Service Co. v. Hartung, 46 St. Rep. 191; Thomas v. Scutt, 127 N. Y. 133; 38 St. Rep. 692 ; Case v. Bridge Co., 134 N. Y. 81; 45 St. Rep. 603. Judgment reversed, and new trial ordered, with costs to appellant, to abide event.


text:
    Ralph Moss, Individually and as Surviving Executor, etc., Pl’ff, v. Jacob Cohen et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed January, 1895.)

    1. Bond—Parties
    A bond, given to obligees named, executors, etc., and to them and each of them severally and individually, to indemnify them against the consequences of a devastavit, runs to them personally.
    2. Same-Validity.
    A bond, given to indemnify the obligees against the consequences to them of a contemplated devastavit in their offices as executors, is void as against public policy.
    Demurrer to part of the answers.

      Weed, Henry & Meyers, for pl’ff; Abraham Cohen, for def’ts.
   Bischoff, J.

The action is upon a bond executed by the defendants, as obligors, to “Sophia Moss, executrix, and Ralph Moss and David Moss, executors, etc., of Solomon D. Moss, deceased, and to them and each of them severally and individually,” in a specified sum, to be paid “ to the said Sophia Moss, Ralph Moss, and David Moss, as aforesaid, their legal representatives or assigns.” Clearly, the literal sense of the obligation is that the obligors thereby intended to be bound to the obligees personally, and not to them in their representative capacities, the words executrix" and “ executors" of the will of Solomon D. Moss, deceased, being descriptio personae only. Peck v. Mallams, 10 N. Y. 509 ; Litchfield v. Flint, 104 id. 543 ; 5 St. Rep. 800. Nor is the actual intent of the parties at the time of the execution and delivery of the bond, as it is to be gathered from the allegations of the complaint, at variance with the literal sense of the language employed. The bond was given to idemnify the obligees against the consequences to them of a contemplated devastavit in their offices as executrix and executors, etc., of Solomon D. Moss, deceased ; irrefragably a personal liability. 5 Am. & Eng. Enc. Law, 658 ; 7 Am. & Eng. Enc. Law, 346. At its maturity, therefore, a cause of action accrued, if at all, to the obligees personally, and not to them as executrix and executors, respectively.

The defendants severally answered, interposing as defenses that the bond was given for an illegal consideration, that it has not matured, and that the action was not commenced within the time prescribed by law. To these defenses these plaintiff demurred for insufficiency. Upon the trial of a demurrer to the answer, however, for deficiency in substance, judgment must, in any event, be rendered for the defendant if the complaint is open to the same objection. 5 Am. & Eng. Enc. Law, 560, and authorities collated in the notes; Williams v. Boyle, 1 Misc. Rep. 364; 48 St. Rep. 713 ; Corning v. Roosevelt, 33 St. Rep. 154. For the reasons stated above, the complaint fails to show a cause of action in the plaintiff as executor. I am of the opinion that it also fails to show a cause of action in him personally.

The bond is annexed to and made a part of the complaint ipsissimis verbis, and, taking the recitals of the one with the allegations of the other, it appears that Solomon D. Moss died in 1866, leaving a last will and testament, wherein and whereby he disposed of his residuary estate to his executrix and executors, in trust to pay the income thereof to his widow for. life, upon her death to pay the income of $12,000 to his daughter, Fanny Cohen, for life, and upon the death of the daughter to distribute the principal- sum set apart for her use among her then surviving issue; that the widow and the testator’s two sons, Ralph and David, were named as executrix and executors, respectively, of the will; that the will was admitted to probate, and that the executrix and executors named duly qualified as such ; that to induce the daughter, Fanny Cohen, to forego a contest of her father’s will, an arrangement was entered into, whereby the executrix and executors agreed to pay her at once $6,000 of the sum to be set apart for her and her issue upon her mother’s death, and she agreed in return to indemnity the executrix and executors against any further payment of the same sum; that this aarangement was carried out by the payment of the money and the delivery of the bond of indemnity upon which this action is brought, executed by the said Fanny Cohen and her husband as obligors ; that thereafter, in appropriate proceedings instituted in the surrogate’s court, the plaintiff, at the time the sole surviving executor, was permitted to resign his trust in respect to the fund directed to be set apart for the benefit of the said Fanny Cohen and her issue, and that the Farmers’ Loan & Trust Company was appointed trustee in his place and stead ; that in such proceedings, the said Fanny Cohen objecting to the plaintiff’s accounts as such trustee, he was not credited with the payment of the $6,000 to her, but was directed to pay, and did pay, the full amount of the trust fund to the substituted trustee. This payment, so made under the direction of the surrogate’s court, it is contended, was an event upon the happening of which the bond was, pursuant to its terms, to mature. Hence this action.

Waiving any question respecting the maturity of the bond, it remains that its enforcement would be in contravention of public policy and law. The intended obligation never had an inception; it was void ab initia; and therefore never was and is not actionable. The agreement for which the bond constituted a consideration was that the obligees should, by diverting trust funds, commit a breach of trust, a devastavit in their offices, respectively, of executrix and executors of and trustees under the will of Solomon D. Moss, deceased. That a promise of indemnity made under such circumstances is void as against public policy is a proposition abundantly sustained in principle and by authority. Greenh. Pub. Pol. 211, 306; 1 Whart. Cont. § 408; 1 Lewin, Trusts, 349; Piersons v. Thompson, 1 Edw. Ch. 212, 218; Coventry v. Barton, 17 Johns. 142 ; Love v. Palmer, 7 Johns. 159 ; Richmond v. Roberts, Id. 319 ; Webber v. Blunt, 19 Wend. 190; Griffiths v. Hardenbergh, 41 N. Y. 464, 469; 10 Am. & Eng. Enc. Law, 406, and cases cited in note 1. “Ex, dola malo non oritur actio." Broom, Leg. Max. (8th Am. Ed.) 729,et seq. “Pacta quae turpem causam continent non sunt observanda.” Id. 732 et seq. Hence, “Inparti delicto melior est conditio possidentis." Id. My attention was called to Wetmore v. Porter, 92 N. Y. 76, where-it was held that a trustee, as such, is not in pari delicto with one to whom he has tortiously disposed of trust assets with notice of their quality, and that the former may, therefore, notwithstanding his own collusive conduct, recover the assets from the latter. The principles enunieated in that and like oases, Lee v. Horton, 104 N. Y. 538; 5 St. Rep. 714; Zimmerman v. Kinkle, 108 N. Y. 282: 13 St. Rep. 634; Deobold v. Oppermann, 111 N. Y. 531; 20 St. Rep. 81; Place v. Hayward, 117 N. Y. 487; 27 St. Rep. 810 ; Hood v. Hayward, 124 N. Y. 1; 35 St. Rep. 229, however, are not controlling in the case at bar. In the several cases last above referred to, the action was by the trustee as such, and in disaffirmance of the unlawful transfer. Here the action is for the benefit of the executor personally, and, by proceeding upon the bond, is in affirmance of the prohibited agreement. There should be judgment for the defendants for the dismissal of the complaint, with costs. Complaint dismissed, with costs.


author: Giegerich, J.

text:
    Charles S. Halsted, Pl’ff, v. Sarah Halsted, Def't.

      (New York Common Pleas, Special Term,

      Filed March, 1895.)

    Divobce—Counsel fees.
    Counsel fees may be granted to the wife pending her appeal in a matrimonial action, if it appears that the appeal is in good faith and for a reasonable cause.
    Motion to compel plaintiff to pay counsel fees to enable the defendant to prosecute her appeal.

      Henry D. Hotchkiss, for def’t; George W. Carr, for pl’ff.
   Giegerich, J.

This is a motion by the defendant to compel the plaintiff to pay counsel fees to enable her to prosecute her appeal from a judgment of divorce granted and entered against heron the report of a referee, together with the expenses of such appeal, and the referee’s fees for settling the proposed case.

It is the settled law of this state that the power of the court to> grant alimony and counsel fees in matrimonial actions, during their pendency, is not limited to applications made before the entry of the final judgment, but may be exercised during the pendency of an appeal, and until the final determination of the action, and that although judgment finally, for the purposes of an appeal, is entered, the action is still pending; in other words, an action, within the purview of section 1769 of the Code, is pending as long as the appeal is undetermined. McBride v. McBride, 119 N. Y. 519; 30 St. Rep. 78. See McCarthy v. McCarthy, 137 N. Y. 500-503; 51 St. Rep. 276. The granting of counsel fees and alimony pending an appeal is sanctioned by adjudications in other jurisdictions. Chaffee v. Chaffee, 14 Mich. 463 ; Zeigenfuss v. Zeigenfuss, 21 Mich. 414; Holthoefer v. Holthoefer, 47 Mich. 643 ; Krause v. Krause, 23 Wis. 353; Friend v. Friend, 65 Wis. 412 : Clarkson v. Clarkson, 20 Mo. App. 94; Doolittle v. Doolittle, 78 Iowa, 691 ; Bohnert v. Bohnert, 91 Cal. 428 ; Van Voorhis v. Van Voorhis, 51 N. W. 281; Disborough v. Disborough, 51 N. J. Eq. 306, See, also, cases cited under note to Methvin v. Methvin, 60 Am. Dec. p. 674; Bish. Mar. & Div. § 957. But the allowance of alimony or counsel fees to the wife pending an appeal is not a matter of right. In Krause v. Krause, supra, the court said it “must always look into-the record so far as to determine whether the appeal is obviously without merits.” And this rule was recognized in the case of Friend v. Friend, supra, in winch the wife brought an action for divorce on the ground of nonsupport. The complaint was dismissed, and she appealed from the judgment of dismissal, and, pending such appeal, applied for alimony and counsel fee. In Zeigenfuss v. Zeigenfuss, supra, and Holthoefer v. Holthoefer, supra, the court held there should be a certificate that the appeal is in good faith, or a showing by counsel to that effect. In Bohnert v. Bohnert, supra, the court ordered the husband to pay for the expenses of the wife’s appeal from a judgment of divorce against her, on her showing that she wished, in good faith, to appeal. In Van Voorhis v. Van Voorhis, supra, the husband was ordered to pay the costs of perfecting the wife’s appeal from a decree dissolving the marriage, on the certificate of a member of the bar, in good standing, that her appeal was meritorious. In Disborough v. Disborough, supra, the wife was allowed alimony and counsel fees pending an appeal taken by her in apparent good faith from a decree dismissing her bill for a divorce.

From a consideration of these cases, the rule seems to me to be established that alimony and counsel fees may well be granted to the wife pending her appeal in a matrimonial action, should it appear that the appeal is in good faith, and for a reasonable cause. A careful consideration of the papers submitted upon this application convinces me that the defendant’s appeal is not a frivolous one and that the same has been taken in good faith, and for reasonable cause. The trial of this cause before the referee extended over a period of fifteen months. The record of the case is very voluminous, covering 2,939 typewritten pages of testimony. Numerous exceptions were taken to the rulings of the referee. The interests at stake are not only of great moment to the parties concerned, but to the public, in whose interest, beside that of the parties, the court’s action is to be directed in suits for divorce. Fanning v. Fanning, 49 St. Rep. 234. In view of these circumstances, and of the fact that the plaintiff has abundant means and that the defendant has none, I think the plaintiff should furnish the defendant with the necessary means to prosecute her appeal. Therefore, the plaintiff should be required, within thirty days after entry of the order, to pay a counsel fee of $500, to enable the defendant to carry on her appeal, and deposit with the clerk of this court $2,000, to meet the necessary expenses for typewriting, printing, Chaffee v. Chaffee, supra; Doolittle v. Doolittle, supra, and referee’s fees for settling case on appeal, who shall apply the same according to the directions of the court, made from time to time in the matter. The balance, if any, shall be repaid by the clerk to the plaintiff. Order to be settled on two days’ notice.


text:
    Bernard Cohen, Pl’ff, v. Carrie Cohen, Def’t.

      (New York Common Pleas, Special Term,

      Filed March 30, 1895.)

    1. Divorce—Alimony.
    Where, in an action by the husband for a divorce, the wife denies on oath the charge, she is entitled to an allowance for counsel fees to enable her to defend the action, even though the affidavits read on his part show her guilt, unless it appears beyond reasonable doubt that the ultimate success of the husband in the litigation is inevitable.
    2. Same—Poverty.
    The poverty of the husband is no defense to such application.
    Motion by defendant for an allowance for counsel fees to enable her to defend the action.

      Joseph I. Green, for def’t; William N. Loew, for pl’ff.
   Giegerich, J.

This is an application by the wife for counsel fees to enable her to defend the action, which is brought by the husband for a divorce on the ground of adultery. Where the wife denies on oath the charge, she is entitled to such allowance, even though the affidavits read on the part of the husband show her guilt, Osgood v. Osgood, 2 Paige, 621; Hallock v. Hallock, 4 How. Pr. 160 ; Frickel v. Frickel, 4 Misc. Rep. 382, “unless,” as was said by Judge Gildersleeve in the case last cited, “it appears clear beyond reasonable doubt that the ultimate success of the husband in the litigation is inevitable.” The defendant takes oath in denial of the charges, and in view of this denial, and of the allegations contained in her moving affidavit, although the latter are very vague in character, there is no justification, under the authorities, for deciding the question of her guilt upon such conflicting affidavits. Leslie v. Leslie, 6 Abb. Pr. N. S. 193; Frickel v. Frickel, supra; Hallock v. Hallock, supra. A careful consideration of the papers submitted satisfies me that the plaintiff is-absolutely without means ; but his poverty is no defense to the application. Hallock v. Hallock, supra ; Frickel v. Frickel, supra. He must, in an action of this character, either furnish the wife with money to enable her to make her defense, or abandon the action. Purcell v. Purcell, 3 Edw. Ch. 194. Great injustice might be done if the husband were not compelled to furnish to his wife the means of having so important a question of fact as is involved in this action decided in the usual manner. Hallock v. Hallock, supra. It is proper, however, to take into consideration the pecuniary ability of the husband, and the circumstances in life of the parties, in fixing the amount of the allowance. Hallock v. Hallock, supra. From a consideration of these matters, as well as of the facts and circumstances of the case, as disclosed by the papers submitted upon this motion, I am of the opinion that the defendant should have a counsel fee of $25 to defend the action, which the plaintiff should pay within five days after the entry of the order.


author: Pryor, J.

text:
    David B. Sickles, as Receiver, etc., Pl’ff, v. George Herold, Def’t.

      (New York Common Pleas, Trial Term,

      Filed March, 1895.)

    1 Contract—Consideration.
    Forbearance by the banking department at the request of a shareholder and depositor, to close an insolvent bank, is a good consideration for a promise by such shareholder and depositor to make good the capital of the bank.
    3. Same—-Estoppel.
    In any event, defendant is estopped to contest the validity of such promise for want of consideration.
    3. Same—Who mat sue.
    A note given to the bank in fulfillment of such promise is enforceable at the suit of the bank.
    4. Banks and banking—Powers op banking department.
    Such agreement by the banking department, not to close the bank, is not ultra vires, or against public policy.

      5. Same—Agreement to replace lost capital.
    An offer to a bank to replace its lost capital if it will continue business, upon acceptance, becomes a binding contract, and may be enforced by the bank.
    6. Same—Assets.
    A note payable on demand, given in pursuance of such contract to replabe the lost capital of the bank, is an asset of the bank, and is enforceable before exhaustion of other assets.
    Action by receiver on a promissory note. By stipulation of the parties, the cause was tried by the court without a jury.

      George M. Mackellar, for pl’ff; Charles E. Hughes, for def't.
   Pryor, J.

The action is against the maker of a promissory note for $50,000, payable on demand to the order of the Harlem River Bank, and the case is this: In 'November, 1893, finding the Harlem River Bank reduced in its capital, the official examiner required the deficit to be promptly supplied by a payment of cash, or else he would not suffer the bank to open again. Thereupon, a negotiation ensued between the examiner, on the one side, and the officers of the bank, on the other, in which defendant, as director, took part. The defendant and other officers were solicitous to avert the threatened closing of the bank. The result was that the examiner accepted certain notes—among them, the one in suit—as sufficient to make good the capital, and permitted the bank to continue its operations. Six months afterwards, deeming' the bank again insecure, the banking department closed it, commenced an action for its dissolution and liquidation, and meanwhile procured the appointment of the plaintiff as receiver. As such, he sues to collect defendant’s note, in order that he may apply its proceeds in discharge of the bank’s liabilities.

In answer to the action, the defendant first urges the invalidity of the note for want of consideration ; and the learned counsel in his behalf supports the contention in an argument, which, if not-convincing, is admirable, indeed, for its learning and ability. Undoubtedly, the suffering the bank to go on was, in the legal sense, of detriment to the department, because a forbearance to exercise-a legal right, Hamer v. Sidway, 124 N. Y. 538 ; 36 St. Rep. 888 ; and manifestly, also, was of benefit to the defendant, because a shareholder and depositor. 'But, says the defendant, the action is not on his promise to the department to pay in the $5,000, but on -the note given to the bank to secure such payment, and as the consideration for the note—the forbearance to close the bank—did not proceed from the promisee, the bank, but from the department, the consideration is legally insufficient. That the consideration must move from the promisee is an elementary rule of law. Thomas v. Thomas, 2 Q. B. 851; Langd. Sum. Cont. p. 80, section 63. But here the department was acting for the bank; was promoting its interest; took the note for its security; and, at its; request and for its benefit, allowed- it to continue business. The bank was seeking protection against the devastation of its officers,' and that protection the department afforded by procuring the note. But for the note the hank would have shut its doors. On the faith of the note it opened them. Pro hac vice the department was the bank, and the forbearance of the department was the forbearance of the bank. In another view, the tender of the note to the bank as inducement to the Continuance of its operation was an offer by the defendant, which on acceptance by the bank, became a consummate contract,—on the one side, to open the bank, and, on the other, to pay the note.

But, argues the defendant, the bank desired to continue its business, and hence, continuing its business was of no detriment to it. But this is confounding motive with consideration, and non constat but the continuance of business was detrimental to the bank, in accumulating upon it a still heavier burden of indebtedness. Supposing, however, the consideration for the note did move from the department, and not from the bank, then we have a promise by the defendant to the department for the benefit of the bank, and it is the settled law of the state that upon such promise its beneficiary may maintain an action. Nor is the case altered by the fact that the defendant, in fulfillment of his promise to the department, executed the note to the bank, for the bank may maintain an action on the note. Rector, etc., v. Teed, 120 N. Y. 533; 31 St. Rep. 908, is an explicit adjudication of the point. The defendant replies that he made no promise to the department, but the inevitable inference is otherwise. The department demanded the note, and he gave it Assent to the request must have preceded compliance. He agreed with his associate directors to satisfy the requirement of the department, and that was a promise to the department.

Again, the defendant objects that there was no obligation from the department to the bank, and no legal or equitable claim of the bank to the benefit of the promise. Neither was there such obligation or claim in Rector, etc., v. Teed, supra, and yet the action by the beneficiary of the promise was upheld.

The defendant objects still further, that the promise of the department or the bank, whichever it be, was to forbear a reasonable time, and that six months was not such time. I cannot say that six months was not a reasonable forbearance. On the contrary, if, as I am bound to assume, the bank, when closed, was in an insolvent or insecure condition, it would have been unreasonable— nay, a violation of duty by the department—to suffer it to go on a moment longer. But suppose the forbearance was not for a reasonable time, Still, the promise was to forbear for such time,—a competent consideration for the nóte,—and hence the defense is not a defect, but a failure, of consideration, or matter of counterclaim in damages, neither of which is available, because not pleaded.

Finally, the defendant insists that the promise of forbearance, if any was ultra vires and void, and so not a valid consideration for the note ; but just such a promise was sustained in Hun v. Salter, 14 W. D. 419; in Hurd v. Kelly, 78 N. Y. 588; and in Hurd v. Green, 17 Hun, 328. Upon the strict common-law doctrine of consideration, the note is not to be upheld, and such was my opinion on the argument. But. the old technicality is relaxed in New York, and stare decisis concludes me. Upon the adjudications of the New York courts, the note is a binding obligation, and enforceable at the suit of the plaintiff. Rector, etc., v. Teed, 120 N. Y. 583 ; 31 St. Rep. 908; Hun v. Salter, 14 W. D. 419, affirmed 92 N. Y. 651; Hurd v. Kelly, 78 N. Y. 588; Hurd v. Green, 17 Hun, 328; Best v. Shiel, 79 N. Y. 15. Even were the note without consideration, I should hold the defendant estopped to allege the defense. He knew all the circumstances of tne transaction, for he was an actor in it. He knew why the note was exacted, and for what purpose he gave it, namely, to enable the bank, by means of the note, to continue business, and so appear to the public as a solvent concern. Thus representing the bank to be solvent, he invited the public to repose confidence in it; and now, upon recourse to the note to redeem its pledge of the solvency of the bank, the defendant proposes to escape liability, and defraud the creditors of the bank, by pleading the invalidity and worthlessness of the very security by which he authorized the bank to beguile the public into trusting it. If ever a case of estoppel was presented, this surely is one. ■ “ The objection that the transaction was ultra vires cannot prevail against the claims of depositors who are represented by the receiver who is seeking to collect the bond, as an asset of the bank, for distribution among those for whose protection it was given.” Hurd v. Kelly, 78 N. Y. 588, 596. “ The defendant was apprised that this bond was to be .used to give credit to the bank, with the bank department and with the public, that it should be enabled to continue its business ; * * * and having allowed the bond to be treated as an asset, and the public to deal with the bank on this assumption until it has become insolvent, he is estopped from setting up the defense in question,”— i. e. the validity of the bond. Id. 597 Best v. Shiel, 79 N. Y. 15, 18 ; Hurd v. Green, 17 Hun, 327, 335.

Failing in the defense of want of consideration for the note, the defendant then contends that the action is premature, because brought before exhaustion of other assets of tne bank. But the note is payable on demand, and, while paroi evidence is competent to prove that it was not to take effect till fulfillment of a condition, such evidence, is incompetent to show a different day of payment. Browne, Parol Ev. 245, and cases. A creditor may press all his securities at once, and by the terms of the note, and the object of its existence, it was tobe a present, available resource for satisfaction of claims against the bank. “ These bonds were to continue to have the character of assets until a point of time should be reached when no deficiency from any cause existed. Until that time "they remained in full force and effect for the protection of depositors and creditors of the bank, liable to be enforced whenever an extingency should arise that would require the bank to go into liquidation by reason of insolvency.” . Hun v. Salter, 14 W. D. 419, 421. It is this contingency, exactly which requires and authorizes the collection of the note in suit.

In conclusion, the defendant insists that he is but a surety, and that the plaintiff should be compelled to resort, in the first instance to securities in his possession pledged to the payment of the principal debt. A formal defect in the contention is that the an- • swer omits to demand any subrogation or marshaling of assets. But assuming such prayer for judgment superfluous, the evidence shows no case for the relief. The defendant is not a surety. His not is not a collateral. The note was given to supply a deficiency in the capital of the bank. It is an asset of the bank and is available primarily to the creditors of the bank. Cases supra. But, if the defendant be a surety, still, as already apparent, the receiver is entitled to all the securities for satisfaction of creditors; and, until the entire indebtedness of the bank be discharged, he is not compellable to forego access to any resource. 14 Am. & Eng. Enc. Law, pp. 701-706, and notes; 3 Pom. Eq. Jur. §§ 1414, 1419.

I am of opinion that the counterclaims are sufficiently established by the evidence. Judgment for plaintiff in the amount of the note, with interest, less the sum of the counterclaims.


author: Per Curiam.

text:
    Manuel E. Barranco et al., Resp’ts, v. Roger B. Towner, App’lt.

      (Brooklyn City Court, General Term,

      Filed March 25, 1895.)

    Evro ence—Competency.
    A party may testify to a conversation at which a sale was negotiated, though the contract is in writing, in contradiction of testimony as to the same conversation previously introduced by the adverse party.
    Appeal from a judgment in favor of plaintiffs.

      Aynes & Walker, for app’lt; Jalius Lehmann, for resp’ts.
   Per Curiam.

We have carefully examined the record in this case, and are of opinion that the exceptions at folios 96 and 97 were well taken. At folio 26, Mr. Levison stated, on behalf of the plaintiffs:

“I had a conversation with him [meaning the defendant] at that time; and as a result of that conversation, I had business transactions with him. I sold Mr. Towner a bill amounting to about $985. I did not sell him the same brand that he purchased before. I sold him the same cigars, but a different brand.”

Again, at folio 83, Levison testified, on behalf of plaintiffs:

“The goods ordered in October were similar to the goods ordered in March previous; same cigars, but under a different label. Q. What was stated at the time you took the order in October ? A. When I came into Mr. Towner’s I asked him if he wanted any of my cigars any more. He said, ‘Yes; I can use your cigars; and then he gave me an order.”

The following question was asked the defendant by his counsel at folio 96:

“Q. What conversation did you have with Mr. Levison, the salesman of plaintiff, at the time you gave the order for the goods in suit?”

The question was excluded, on the ground that the contract was in writing. If the plaintiffs’ counsel relied on the contract contained in the letters, he should not have examined Levison as to conversations with defendant. As he did, we think the defendant should have had the privilege of, at least, contradicting the testimony of Levison. The letters, if to be treated as the contract were silent as to the quality of a portion of the goods. As to the first item of Exhibit 6, plaintiffs’ Exhibit 4 shows that the cigars were to be of the same size as a certain brand sold in March previous, but nothing is stated in the letter as to quality; and it is the same as to the item in Exhibit 6.

Judgment reversed, order of reference vacated, and a new trial granted ; costs to appellant to abide the event.

. All concur.


author: Van Wyck, J.

text:
    Anna C. Erickson, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed March 25, 1895.)

    1. Negligence—Quesion of fact.
    Where a motorman, though he expects or thinks it likely that some one will pass around the rear end of another car which has stopped to let off passengers at a street crossing and upon his track, and though his platform companion does see her so emerge when he was a short block away and calls the motorman’s attention to her, drives the car right ahead catching the woman just as she is about clear of his last rail injuring her, these facts and circumstances raise a question of fact as to the alleged negligence of the motorman, which is properly submitted to the jury.
    2. Damages—Excessive.
    A verdict for $23,000 for personal injuries was held, in this case, not to be excessive.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Dailey, Bell & Crane, for resp’t.
   Van Wyck, J.

It appears from the evidence- in this case that the defendant has under its control numerous trolley lines engaged in conveying passengers through the streets of this city, that three of these—the Gates avenue, Fulton street, and Third avenue lines —run order the same tracks on Fulton street, at Bond street, that the gates to the platforms of the cars are opened for ingress or egress only on the right side of the car, as it is going which is nearest to the curb; that a passenger desirous of reaching the other or left side of the street must leave the car on the right side, and cross over behind his car; that plaintiff, having entered one of the cars of the Fulton street line, on her way down town, thereafter alighted from the same when if arrived at the intersection of Fulton and Bond streets, on the right-hand side, and, with the object of reaching the left-hand side of the street, she passed on the cross walk behind the rear end of her car, which of course, to some extent, obstructed her view down the up-down track, until she was almost upon it; that while she was passing over this space, a Gates avenue car was approaching the rear of her car, sounding an alarm bell, to warn her to leave that track; that, as she left that track, she emerged from behind her car, in close proximity to the other track, and, while doing this, she looked down the latter track, having a clear view of about sixty feet, and saw no car in sight; when she continued to cross, and had almost cleared the up track, when the Third avenue car came up rapidly, and knocked her down, injuring her most seriously; that others were crossing at the same time, and in the same manner, who accomplished the passage in safety; that a person on the front platform of the Third avenue car saw the Fulton street car standing still at Bond •street, and this plaintiff in act of emerging from her ear, while the Third avenue car was a short block away from her and called his motorman’s attention to the dangers that women were subjected to under such circumstances; that the Third avenue car motorman saw this Fulton street car stop, and knew it was his duty to ■slacken his speed, and get his car under complete control, for passengers alighting from the Fulton street car at this cross walk were expected to pass in the rear of that car to cross his track ; that, notwithstanding the motorman expected or thought it likely .some one would pass around the rear end of the Fulton street car, ■and upon his track, and notwithstanding his platform companion did see her so emerge when he was a short block away, and called this motorman’s attention to her, this motorman’s drove his car right ahead, catching this woman just as she was about clear of his last rail, and knocking her down, and running over her leg, when this same platform companion said, “I told you she would get hurt.” These facts and circumstances certainly raised a question of fact as to the alleged negligence of this motorman, which was properly submitted to the jury, and by them, in our opinion, ■correctly decided. The question of contributory negligence was ■correctly disposed of in the same way. The rule laid down in Fenton v. Railroad Co., 126 N. Y. 625 ; 36 St. Rep. 385, and Dorman v. Railroad Co., 117 N. Y. 655; 27 St. Rep. 841, does not help the defendant in the motion for a nonsuit, for in those cases the plaintiff and the driver of the horse car both knew that the. plaintiff could cross the track in safety, and had a right to so assume until it was negatived by the plaintiff’s unexpectedly falling down, when it was too late to prevent a collision.

The exception at folio 282 to the refusal of the court to charge "that, if “ the plaintiff emerged from the rear of the Fulton street car when the front of the Third avenue car was within fifteen feet of her, the defendant cannot be held liable because the motorman did not stop the car before the plaintiff was injured,” is not well taken, for he virtually says he had reason to expect some one would emerge from behind that car when it stopped, and that it was his duty to reduce the car to complete control to avoid injuring such person; that he saw it stop, when thirty feet away, and at once he slowed up, and his platform companion said he ■saw her at the rear of the Fulton, street car, about to start across the street, when his car was a short block away, and called the motorman’s attention to her danger; and the testimony further shows that the car, at its then speed, could be stopped within five feet. The exception at folio 283 is not well taken, for it would have excluded from the consideration of the jury the circumstances that the motorman knew that passengers were expected to emerge from behind the car stopping to let them off at street crossings, and that it was his duty ts slow down, to give them a chance to cross over in front of him, and that in this case he did slow down for such purpose, but neglected to do so sufficiently to save her.

We do not think the other exceptions require any special notice, and this leaves for our consideration the contention of defendant that the damages, assessed at the sum of $23,000, are so excessive that the jury must have been unduly influenced by prejudice or sympathy. Before the accident, the plaintiff was á healthy and robust married woman, in tbe prime of life. Now, she has but one leg, one of them having been amputated below the knee, the stump of which has never been completely healed, and is easily -inflamed; her arm has an enlargement, which interferes with its ready and full use; her hearing has been impaired, and she endured great suffering and pain. The contrast of her prior with her present condition certainly discloses a great and sad change, for which we think the sum awarded does more than 'compensate her; therefore the verdict herein cannot be disturbed on such ground.

The judgment and order must be affirmed, with costs.


author: Ehrlich, J.

text:
    Arnold Hafelin, App’lt, v. Louis Silverman et al., Resp’ts.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Replevin—Undertaking.
    Where the affidavits on the part of the defendant, in a proceeding to re-bond the property, sufficiently comply with the statute, the court has power to allow a new undertaking to be filed nunc pro tune.

    Appeal from an order, denying a motion to compel the delivery of the chattels replevied.

      P. P. Stafford, for app’lt; D. C. Myers, for resp’t.
   Ehrlich, J.

The affidavits on the part of the defendants on the proceedings to rebond the property sufficiently complied with the statute, and the court below had power to allow a new undertaking to be filed nunc pro tune. There was therefore no abuse of discretion in the court below, and the order appealed from must be affirmed, with costs.

All concur.


author: Newburger, J.

text:
    Henry Hess & Company, Resp’t, v. Frederick Baer et al., App’lts.

      (New York City Court, General Term,,

      Filed March 19, 1895.)

    Principal and agent—Ratification.
    The direction by a landlord to his manager to take the proceeds of the sale of goods, ordered by a tenant, and pay the bill therefor, makes him the original debtor for the goods.
    Appeal from a judgment in favor of plaintiffs.

      Rabe & Keller, for app’lts; Louis W. Stotesbury, for resp’t.
   Newburger, J.

This action was brought by plaintiff, a corporation, for goods sold and delivered. The answer denies the sale and delivery of the goods. On the trial it appeared that the goods were originally ordered by one Nugent, who was a tenant of the defendants. The plaintiff proved that subsequently the defendants directed their manager to take the receipts from the sale of plaintiffs goods, and pay their bill. This was, however, denied by the defendants. The trial justice in his charge to the jury instructed them that if they believed that the defendants instructed their manager to take the receipts of the sale of plaintiff’s goods, and pay their bill, that made the defendants the original debtors, and they must find for the plaintiff. To this portion of the charge an exception was taken. We think the trial justice correctly stated the law in his chaige, and, as there is no other question raised by the appellants, the judgment appealed from must be affirmed, with costs.


author: Ehrlich, C. J.

text:
    William W. Richards et al., App’lts, v. Cortland B. Littell, Resp’t.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Jurisdiction—New york city court.
    Though equitable defenses may be interposed in the city court, they are permitted for defensive, not affirmative, purposes.
    Appeal from an interlocutory judgment, overruling a demurrer to a counterclaim set up in the answer.

      E. Huerstel, for app’lts; M. C. Ernsberger, for resp’t.
   Ehrlich, C. J.

The action is to recover for the use and occupation of certain premises by the defendant, as plaintiffs’ tenant.The defendant, in his answer, admitted the use and occupation of the premises, but denied the other allegations of the complaint,, evidently intending to put in issue the fact of tenancy. He then pleaded, by way of counterclaim, that the plaintiffs entered into a. contract with him whereby they agreed to convey to him the property in question on certain terms and conditions, and demanded, by way of relief, that the court decree specific performance of the contract. Plaintiffs demurred to this, on the ground that the court had not jurisdiction to grant the relief claimed. The court below overruled the demurrer, and granted an interlocutory judgment against plaintiffs for the relief demanded, to wit, that the plaintiffs execute and deliver to the defendant a good and sufficient deed for the conveyance of the premises described in the complaint, etc. This the court had no power to do. The city court has no equity jurisdiction, and, while equitable defenses may be interposed, they are permitted for defensive, not affirmative, purposes. Rodgers v. Earle, 5 Misc. Rep. 164. The denial in the answer sufficiently raised the issue of tenancy, and the relief demanded was of that affirmative character which a court of equity alone could grant. It follows that the interlocutory judgment must be reversed, and the demurrer sustained, with costs.


author: Newburger, J. Ehrlich, C. J.

text:
    Elwood S. Hand, App’lt, v. Charles P. Rogers et al., Resp’ts.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Judgment—One of several defendants.
    Under § 1305 of the Code, a separate judgment is authorized where a separate liability of some of the defendants is established at the trial, though the cause of action, as alleged in the complaint, is joint only.
    Appeal from a judgment, dismissing the complaint.

      Charles De Hart Brower, for app’lt; John Henry Hull, for resp’ts.
   Newburger, J.

The complaint alleges that the defendants were, and still are, copartners in business, and that on or about ■the 30th day of November, 1889, they made a contract with the plaintiff, whereby the plaintiff was to insert the defendants’ advertisement in a book published by him, for which plaintiff was to receive $205 in trade; that the plaintiff duly inserted the advertisement, and demanded payment, which was refused. The answer was a general denial. On the trial it apperred that the present copartnership was not formed until after the making of the ■contract sued on, and that at the time of making the contract the ■copartnership consisted of the defendant Charles P. Rogers and one Whitcomb. The case was tried by the court without a jury. At the close of the plaintiff’s case, plaintiff’s counsel moved to •dismiss the complaint as against all the defendants except Charles P. Rogers, and at the close of the case he moved for judgment ■against the defendant Charles P. Rogers, both of which motions were denied by the trial justice, who dismissed the complaint as against all the defendants, to which ruling the plaintiff duly ex■cepted. It was not denied by the defendant Charles P. Rogers -that he signed the contract with the plaintiff. He simply denied that the other defendants were his copartners at the time of making the contract. Upon the evidence, the defendant Charles P. Rogers was, in any event, liable upon the contract. It has been repeatedly held that under section 1205 of the Code a separate judgment was authorized, where a separate liability of some of the defendants was established at the trial, although the" cause of action, as alleged in the complaint, was joint only. Owen v. Connor, 33 St. Rep. 144; Stedeker v. Bernard, 102 N. Y. 327. It follows that the judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.

Vam Wyck, J. concurs.

Ehrlich, C. J.

(dissenting).—I think that all there is to this action has been disposed of by the trial judge in conformity with the decisions of the general term on the former appeals. There decisions must be taken as establishing the law of the case so far as this court is concerned. I find no error, and judgment should be affirmed, with costs.


text:
    Michael F. Conway, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Master and servant—Safe place.
    Where it appears that the defendant constructed and maintained a plank or board walk upon which to wheel freight from one float to another, which was not properly fastened, it is a question for the jury, in an action by an employe who was engaged in transferring freight from the pier to cars on such floats, to determine wether the defendant furnished a safe place for his servants to work.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Ashbel Green and H. E. Kinney, for app’lt; W. E. Morris, for resp’t.
   Ehrlich, C. J.

The action is by the plaintiff, a freight handler in the employ of the defendant, to recover damages for personal injuries sustained by him while engaged in transferring a cask of freight, weighing from 1,200 to 1,500 pounds, from the. pier to certain freight cars which were in process of loading on certain floats controlled and used by the defendant. It appears that the defendant constructed and maintained a plank or board walk upon which to wheel said freight from one float to another; that the float was not properly fastened; and the plaintiff, while assisting in transferring the cask in question, was injured by the giving way of the plank at one end, whereby the truck and cask were precipitated to one side, and against the plaintiff’s left leg, causing him severe injuries. There was no substantial dispute about the main facts in the case, and the real question narrowed itself down to one of law, as to whether the defendant was liable for the acts complained of. This on the record was a very close question, and must be made to depend in this case upon whether the master discharged his duty to the plaintiff by furnishing him a safe place in which to work. Rettig v. Transportation Co., 6 Misc. Rep. 328; 56 St. Rep. 235. The questions of negligence and of the absence of contributory negligence were clearly submitted to the jury, whose verdict was moderate in amount, and we do not feel disposed to disturb their finding. The judgment and order appealed from must be affirmed, with costs.

All concur.


text:
    Patrick McNamara, Resp’t, v. John P. Nolan, App’lt.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Parties—Forma pauperis.
    Leave to sue as a poor person will not be denied on the ground that the opposing affidavits show that the plaintiff's cause of action is not meritorious.
    Appeal from an order, permitting the plaintiff to continue the action in forma pauperis.

      J. R. Tressider, for app’lt; J. J. K. O' Kennedy, for resp’t.
   Newburger, J.

This is an appeal from an order permitting the plaintiff to continue this action in forma pauperis. This action was brought on the 12th day of December, 1894 ; and on the 14th day of January, 1895, plaintiff applied for the order appealed from, on notice to defendant. The petition of the plaintiff clearly shows that he is not worth $100, and in all other respects complies with section 459 of the Code.

It is contended, however, by the defendant, that the action is not meritorious, and he submits, in support of his contention, a number of affidavits. It has been repeadedly held that issues in an action cannot be tried or disposed of by affidavits. Upon the face of the pleadings, a cause of action is set out; and, as plaintiff has complied with the requirements of the Code, the order appealed from must be affirmed, with costs.


text:
    Margaret H. Kilpatrick, Resp’t, v. Ludwig Carved-Moulding Company, App’lt.

      (New York City Court, General Term,

      Filed March 19, 1895.)

    Conversion—Proof of title.
    Where both parties to an action oí conversion claim title to the property in controversy from the same person, it is error, on the cross examination of such person, to exclude his testimony as to transfer of the title.
    Appeal from a judgment, entered on á verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Clemens J. Craght, for app'lt; Kelly & Macrae, for resp’t.
   Newburger, J.

This is an appeal by the defendant from a. judgment entered upon a verdict of a jury directed by the court. This action was brought to recover the value of certain picture cases claimed to have been converted by the defendant. Plaintiff claims that one Simpkins purchased from her a quantity of lumber, and to secure payment therefor, upon the 14th day of June, 1893, he sold to her certain picture cases then in the premises in East 128th street, occupied by Simpkins. At this time there were five cases in Simpkins’ possession.. That on the morning of June 15th the plaintiff’s husband, acting as her agent, called at Simpkins’ for the cases, but found the officers of defendant taking away the cases, and, despite the protest of plaintiff’s agent, defendant’s said officers removed the cases. The answer of the defendant, after denying all the material allegations of the complaint, sets up, as a separate defense, that defendant and said Simpkins entered into an agreement in the month of October, 1892, whereby Simpkins agreed to manufacture for defendant sixteen picture cases, and thereafter he completed and delivered eleven cases to defendant, for which he was paid. That on or about May 8, 1898, it was agreed between defendant and Simpkins that defendant should take possession of the five cases, finish and complete them, and charge Simpkins with the money to bn paid out by defendant for the labor and' material necessary for finishing and completing the cases, and to deduct the sum of money to be thus paid from. the contract price to be paid Simpkins for manufacturing the five cases, and pay any balance which might remain to said Simpkins. In pursuance of said agreement, defendant took possession of the five cases mentioned and referred to in the complaint, performed work and labor upon the same, and furnished material used in and towards completing the cases, and paid, laid out, and expended for work and labor bestowed and materials furnished and used in and towards finishing and completing the same, various sums of money. That prior to and on and after said 14th day of J une, 1893, the defendant was the owner and in possession of said five picture cases mentioned in the complaint, and entitled to the possession thereof. At the trial the plaintiff called Simpkins as a witness, and, on cross-examination, the defendant asked him the following questions:

“(1) Did you request defendant to finish and complete them ? (Objected to as immaterial and irrelevant. Objection sustained. Exception.) (2) Didn’t you request the defendant to pay the wages of the men working on the cases ? (Same ruling. Exception.) (3) Who finished them ? (Same ruling. Exception.) (4) Didn't the defendant finish them? (Same ruling. Exception.) (5) Did not the defendant do all the work on them between May 11th and June 14th ? (Same ruling. Exception.)”

We think the trial justice erred in excluding these questions. The plaintiff claimed title through Simpkins, and defendant was entitled to show by Simpkins, as is claimed in its answer, that prior to the bill of sale to the plaintiff the property had come in the possession of the defendant by transfer and delivery from Simpkins to it, and properly no one would be more familiar with the subject than Simpkins himself, and therefore the questions put to him on cross-examination was material. Without considering the other points raised by the appellant, the judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: White, J.

text:
    Louisa Palmer, Pl’ff, v. William A. Robinson, Def’t.

      (Buffalo Superior Court, Special Term,

      Filed January, 1895.)

    Evidence—Surveyors.
    A surveyor is prohibited from testifying as to a survey made by him, unless he shall make oath, if required, that the chains or measures used by him were conformable to the standards of the state when such survey was made, and testimony that they conformed to the standards of the United States, is insufficient.
    Motion for a new trial on the minutes.

      Becker & Farnham, for pl’ff; Hodson & Webster, for def’t.
   White, J.

The unit of the chain or measure used by surveyors of land in this state is the standard yard furnished by the United States to this state, in accordance with a joint resolution of congress approved June 14, 1836. This standard yard measure is in charge of a superintendent of weights and measures, appointed by the governor, lieutenant governor, and secretary of state, or any two of them, and holds his office during their pleasure. It is the duty of such superintendent to provide the cities and counties of the state with such standard, and to compare them with those in his possession as often as once in ten years. The supervisors of each county appoint a sealer of weights and measures, whose duty it is, among other things, to take charge of the county standards ; to seal and mark with a certain device all weights and measures compared by them. Surveyors are prohibited from giving evidence in a case like the one in hand urdess they shall make oath, if required, that the chains or measures used by them were conformable to the standards which were the standards of the state at the time such survey was made. While the defendant did not in terms require the surveyors produced by the plaintiff as witnesses on the trial of this case to make the oath prescribed by statute before being permitted to testify respecting the measurements made by them, the question of their competency to testify was fairly raised and ruled upon adversely to the defendant under his objection and exception. At the time the question was raised the trial was in progress, and its expense to the parties had been substantially all incurred. The plaintiff's surveyors, all but one, at any rate, testified that their chains or measures conformed to the United States standard, but refused to say that they were conformable to the standard of the state; in fact, they appeared to be ignorant of the fact that there was a state standard. No actual comparison with the United States standard was ever made by any of these witnesses, nor were any two of their .measures ever compared with each other. With considerable misgiving as to the competency of the evidence, it was admitted for two reasons: First, with the idea that perhaps authority might be found for the contention that, the unit of standard measure of the United States being the same as that of the state, the oath of the surveyors that their measures correspond to the United States standard would satisfy the requirement of the statute in that respect; and, second, if the verdict of the jury should be in favor of the defendant, the question as to the competency of the evidence would be eliminated from the case. From such an examination as I have been able to make, I can find no decision holding that the oath of the surveyor was a sufficient compliance with the statute, and on principle 1 am now satisfied that it was not. The statute plainly contemplates a comparison of the measure used by the surveyor with the standard of the county, to be certified to by the sealer of weights and measures in the manner pointed out in the statute. Experience and observation—indeed, the disagreements of the experts in this case—show that the art of land surveying, as practiced in this city, at any rate, is one which requires-to be hedged about with all possible safeguards for the protection of property owners. The law is intended to prevent the use of improper implements by surveyors, and to secure, as far as possible, accuracy in locating the lines and boundaries of streets and lands, to the end that when once established it may be reasonably apprehended they will thus remain for all time. The statute is specific as to the form of the oath which is necessary to qualify these experts to testify. The oath in that form was not and could not be made. In my judgment, the importance of evidence given by experts of this class, and its possible consequences to-owners of land, makes it proper te prohibit its admission, except in strict compliance with the statute. Reflection has convinced me that the evidence complained of was improperly admitted. Neither party has, up to this time, been seriously prejudiced by its admission, because, as before stated, the expense connected with the trial had been substantially all incurred before the question was raised. The best time to correct an error is as soon as possible after it is discovered.

The verdict of the jury is therefore set aside, and a new trial is granted.

Motion granted.


author: McLaughlin, J.

text:
    George E. Beardsley, Pl’ff, v. Willis G. Pope, Def’t.

      (Essex County Court,

      Filed January, 1895.)

    1. Justices’ courts—Judgment.
    A judgment in justice’s court, rendered after four days from the time the cause of action was finally submitted to the justice, is void, where the party against whom it is rendered did not consent to the extension of time.
    2. Attorney—Authority.
    Authority to appear for a party in justice’s court does not carry with it power to enter.into a stipulation to extend the time within which the justice may render judgment.
    Motion to vacate and set aside a judgment and an execution issued on a transcript filed in county clerk’s office.

      H. E. Barnard, for pl’ff ; A. W. Boynton, for def't.
   McLaughlin, J.

I think that "the motion should be granted. A justice of the peace has such jurisdiction “as is specially conferred upon him by statute and no other.” Code Civ. Proc. § 2861. The time in which a justice must render judgment, after a cause is finally submitted to him, is limited by statute. The statute is mandatory. He “must render judgment and enter it in his docket book within four days after the cause has been finally submitted to him.” Id. § 3015. The statute requires two things,, both of which must be done within the time prescribed,—the rendering of judgment, and the entry of the same in his docket book. The power of the justice being thus limited by statute, and he not having acted within the time prescribed, his subsequent act of rendering the judgment was without jurisdiction, and the judgment itself is void, unless his jurisdiction was preserved by the stipulation. The stipulation was entered into, according to the sworn statement of the attorney for the defendant, “without the knowledge of or authority from the defendant." The defendant’s affidavit states that he “never in any manner authorized or empowered any one to agree that said justice should have more time than the statute gives in which to render judgment.” There is, therefore, not only no proof that the attorney of the defendant was authorized to enter into such a stipulation, but there are the-sworn statements of both the defendant and his attorney that no such authority was conferred. Authority to appear for a party in justice’s court does not carry with it authority to enter into a stipulation of the character of the one in question. Such a person is a mere agent. He has power to do that which his principal has authorized him to do, and no-more. If he exceeds the authority given him by his principal, the principal is not bound. Here the attorney was authorized to appear and take charge of the defendant’s interests so far as the management and control and final submission of the cause was concerned. When the cause was argued and finally submitted to the justice, the power of the attorney to represent his principal'was at an end. The authority thus given did not authorize the attorney to extend the time within which the justice must render judgment any more than it would have given-him authority to satisfy the judgment after it had been 2-en-dered, had it been in his client’s favor. Stipulations of this character were condemned in Flynn v. Hancock, 46 Hun, 369; 15 St. Rep. 145. If the foregoing conclusions are correct, then it necessarily follows that the judgment rendered by the justice was absolutely void, and, being void, can be assailed whenever and where-ever it is sought to be enforced. Ferguson v. Crawford, 70 N. Y. 254. Motion granted, with $10 costs.