text:
    New York Common Pleas—General Term.
    Filed June 4, 1894.
    The People v. Louis Silverman et al.

   Motion to vacate judgment entered on a forfeited recognizance. " Motion granted.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    Filed August 1, 1894.
    John Brady, as Admr. v. The Prudential Insurance Co. of America.
   Per Curiam

Motion for reargument and leave to go to the court of appeals, denied wi:h costs.


author: Per Curiam.

text:
    Robert G. Irving, Resp’t, v. Joseph A. Britton, App’lt.
    Motion for leave to appeal to the court of appeals.
   Per Curiam.

Application granted.


text:
    Ludwig T. Muench, App’lt, v. Globe Fire Insurance Co., Resp’t.
   Per Curiam.

Motion for leave to appeal to the court of appeals denied with costs.


text:
    The People of the State of New York v. Jacob Karl.
   Per Curiam.

Motion for remission of forfeited recognizance granted.


text:
    The People of the State of New York v. Morris Zins.
    Motion to vacate judgment entered on a-forfeited recognizance.
   Per Curiam

Applicati .ngranted.


text:
    Adolph Rothmiller, Resp’t, v. Theodore G. Stein et al., App’lts.
    Motion for leave to appeal to couri of appeals.
   Per Curiam.

Application granted.


text:
    John Frederick Schwann et al., Resp’ts, v. George W. Clark, App’lt.
   Per Curiam.

Motion for leave to appeal to the court of appeals denied with costs.


author: Newburger, J.

text:
    ¡New York City Court—General Term.
    Filed June 20, 1894.
    Louisa Carlson, Resp’t, v. Maria L. Winterson, App’lt.
   Newburger, J.

This is an appeal from a judgment entered upon a verdict. This action is on a promiss n-y note, and the defense is forgery. A careful examination of the pri nted case fails to disclose any errors on the part of the trial justice in the exclusion of cert-dn questions asked by appellant’s counsel, and as these seem to be the only grounds upon which this appeal has been taken the judgment must be affirmed with costs.

Fitzsimons, J., concurs.


author: Fitzsimons, J.

text:
    Israel O’Blake, Resp’t, v. Herman Bolte, App’lt.
   Fitzsimons, J.

The order appealed from is affirmed with costs on the opinion of the special term justice.

Conlan, concurs.


text:
    Lena Wolf, Resp’t, v. Ancient Order of American Star, App’lt.
   Fitzsimons, J.

The contest in thi; case was solely one of fact, for the jury to determine. They evidently believed pjaintiff’s version and disbelieved defendant’s, as they had a right. The evidence is quite sufficient to sustain the verdict. Finding no error the judgment must be affirmed with costs.


author: Follett, J.

text:
    George Hill, Resp’t, v. Durham House Drainage Company of New York et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Libel—Privileged communications—Private interest.
    Statements of one having a purely private interest in the subject matter of the communication, made to another having a like interest in the same matter, are prima facie privileged communications.
    2. Same—Exceeding privilege—Question for jury.
    Whether such communication exceeds the privilege is a question for the jury. .
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    This action was brought to recover damages for publishing a letter alleged to be libelous. At the date of the publication complained of, the plaintiff was, and during the 15 years preceding had been, a civil engineer, and in 1891 he was employed by Carrere & Hastings, architects, having charge of heating, ventilating, and plumbing buildings which were being erected under their plans and specifications. In 1891 the Mail and Express building was being constructed by Charles T. Wills, as contractor, who sublet the plumbing to James Armstrong. Carrere & Hastings were the architects in charge of the building, and the plaintiff, under them, had personal charge of the work until shortly after June 20, 1891, when he was withdrawn from that building. The Mail and Express building was constructed, including plumbing, pursuant to plans and specifications which had been inspected by builders and plumbers who bid for the work, which had been let some time prior to June 20, 1891, on which date the defendants wrote and sent the following letter to E. C. Alexander, who had charge of the work for the owners :
    “Cable Address: 1 Irisknack.’
    “The Durham House Drainage Company op New York, 158-160 West 27th Street.
    “Trade-Mark: D. H. D. Co.
    “New York, June 20,1891.
    “B. C. Alexander, Esq., Secretary Mail & Express Go.—Dear Sir: We beg to submit the following statement: In the spring of 1890 we called the attention of Messrs. Carrere & Hastings, architects, to the superiority of our drainage work, and as a result of the favorable opinion formed by their engineer, Mr. Geo. Hill, the Durham system of house drainage was specified to be used in the Pierce building, at the N. W. corner of Franklin and Hudson streets; and later the plumbing specification of the Mail & Express building also was drawn to include in its entirety our wrought-iron pipe drainage. The contract for the Pierce building, including plumbing, was awarded to-Mr. Wills, who sublet the plumbing to one James Armstrong, who for several years lias made a practice of imitating our system as closely as he dared without risking 4he consequences of infringement. When we learned that Armstrong had been selected to- do the plumbing, we promptly notified Mr. Hill that he (Armstrong) would probably not apply to us to furnish the drainage system as specified, but attempt to furnish his own imitation instead ; and Mr. Hill promised to notify Mr. Wills to suspend his selection of Armstrong as plumber until the matter could be investigated. When the Pierce building was about ready for the plumbing work, not having been able to secure satisfactory action from Mr. Hill, our attorneys, Messrs. Cannon & Atwater, notified Messrs. Carrere & Hastings that, if Armstrong attempted to construct the drainage work as specified, their client (the owner of the building) would be liable for damages for infringement. They replied that they had changed the specifications, and should allow Mr. Armstrong to proceed. We are now informed that Mr. Wills is the contractor for the Mail & Express building, and that he has selected Armstrong to do the plumbing. Hnder the circumstances we should be derelict in our obligations to the other bidders if we failed to appeal to Col. Shepard to forbid any similar change in the published specifications for the purpose of favoring the contractor, and to veto the selection of Armstrong as plumber, unless he should agree to furnish the work called for By the specifications. The following builders and plumbers applied to us for our price for constructing the drainage system as specified, viz.: Richard Deeves, builder; Byrne & Tucker, plumbers ; John Tourney & Son, plumbers; J. N. Knight & Son, plumbers ; W. R. Bracken, plumber; Cook & McCormack, plumbers. Mr. Armstrong did not ask us for a quotation. It is thei’efore evident that he made his price with the understanding that he would not be required to adhere to the specifications, and that the Pierce building precedent would be followed in this case. On this basis he could quote 'his patron a much lower price than could the first-class firms above named, who accepted the specifications literally; and the builders using their bids were correspondingly handicapped. Any departure from the intent of the drainage specification will be at the owner’s cost. Mr. Hill may have good reasons for changing his mind, and preferring a botched and scamped piece of work to that which he described in his specifications ; but he has selected an unfortunate time to declare the change, and in that opinion he will stand alone as an engineer. Among contractors his action could only be construed very unfavorably. We beg to assure you that this protest is not dictated from any sense of loss, but from indignation that we should, be made use of as a club with which to knock out honest bidders. And we trust that this appeal will have the effect of preventing the consummation of a purpose which it is amazing should be contemplated by any person valuing his reputation.
    “Very respectfully,
    Durham House Drainage Co.,
    By C. W. Durham, President.”
    At the date of this letter the Durham House Drainage Company was, and for some time had been, a domestic corporation, of which Caleb W. Durham was president. The defendants, by their answer, admitted the publication of the letter, and alleged that it was not composed or published maliciously; but in the course of the business of the defendant corporation to prevent its business from being injured by the substitution of inferior work for its work, which was called for by the the specifications for the Mail and Express building. These matters were alleged as a defense and in mitigation of damages. Upon the trial of the issues so joined the plaintiff had a verdict for $2,500, on which a judgment was entered.

      A. D. Cruikshank, for app’lts; David McClure, for resp’t.
   Follett, J.

The defense interposed by the answer is that the statements contained in the letter are true, were published without malice, and that the circumstances under which the letter was written rendered it a prima facie priviliged communication. There are two classes of privileged communications: (1) Those which are absolutely privileged, and for the publication of which an action cannot be maintained, no matter what the motive of the author may be. Within this class are accurate publications of the proceedings of courts of record and legislative bodies, and the statements of judges, witnesses, and jurors made on trials in courts of record. (2) Communications which are prima facie privileged. Among this class are statements necessary to protect one’s private interests, and statements of one having an interest in the subject matter of the communication made to another having an interest in the same matter. Prima facie privileged communications are subdivided into two kinds: (1) Those which relate to matters of public interest, and (2) those which relate to purely private interests. The communication in this case, if it be prima facie privileged, falls within.the second subdivision of the second class. In case a communication is prima fade privileged, the existence or nonexistence of malice on the part of the defendant is a question of fact, and the plaintiff, before he can recover, must affirmatively establish, to the satisfaction of the jury, that the publication complained of was made through malice. This may be shown by the communication, by the circumstances under which it was written, and it may be inferred from a variety of facts. There are two questions involved in the issue whether a communication is prima fade privileged. One is, was the occasion on which it was made privileged ? (2) Did the communication go beyond what the occasion justified, or did it exceed the privilege? The communication complained of related to the introduction of a system of drainage and plumbing for two buildings, the specifications for the construction of which called for the use of the defendants’ system. In both cases other systems of drainage had been substituted, to the defendants’ loss. The communication was made to the secretary of the Mail and Express Company, which was engaged in erecting one of the buildings. The occasion was privileged. Did the publication go beyond the occasion, or, in other words, was more written than the occasion—the facts—justified? This -depended upon the terms of the communication and the facts outside of it, and was an issue of fact for the jury. However, the case was not submitted to the jury-on that theory, but, on the contrary, the court charged: “This letter related to Mr. Hill, the plaintiff, in his business capacity; and I charge you that the words therein contained are libelous per se, and that he is entitled to maintain this action; and, being entitled to maintain the action, the next question which arises is as to the damages which he has sustained.”

To this -instruction the defendants excepted. In this the court erred, for, under defendants’ evidence tending in support of the letter, it could not be affirmed, as a matter of law, that the question was not privileged, and that the communication exceeded the privilege. The judgment and order should be reversed, and a new trial granted, with costs to the appellants to abide the event.

All concur.


author: Lewis, J.

text:
    Edith M. Cleghorn, App’lt, v. Jennie Cleghorn et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Trial—Decision—Demurrers.
    A decision, which fails to state the ground upon which demurrers are sustained, is in proper form, notwithstanding such omission.
    2. Pleadings—Demurrer—Misjoinder.
    A misjoinder exists, where not one of the defendants is interested in all the causes of action stated in the complaint.
    Appeal from an interlocutory judgment sustaining demurrers to the complaint.

      Henry M. Davis, for app’lt; E. C. Hart, for resp’t O’Connor; S. Wallace Dempsey, for resp’t Keough ; Charles Hickey, for resp’t Spaulding.
   Lewis, J.

The decision of the court sustaining the demurrers was handed to the clerk, and filed by him, during the sitting of the court. The plaintiff, laboring under the erroneous impression that the decision had not been made and filed within twenty days after the final adjournment of the court, made a motion, for that reason, for a new trial, under § 1010 of the Code of Civil Procedure. Another alleged error upon which the plaintiff relied was that the court’s decision failed to state the grounds upon which the demurrers were sustained. It was, notwithstanding such omission, in proper form. Eaton v. Wells, 82 N. Y. 576; Wood v. Lary, 124 Id. 83; 35 St. Rep. 53. The plaintiff’s motions were properly denied,

She also appeals from an interlocutory judgment which was entered upon the decision of the demurrers. The complaint is quite a remarkable one. It attempts to state a cause of action for partition, as against some of the defendants; as to others, it is an action in ejectment; as to others, for an accounting as to the rents, issues, and profits of real estate. It seeks to determine the rights in real estate, as between the plaintiff and some of the defendants, and again it seeks to remove alleged clouds upon the title to the land. It is quite clear that there is an improper joinder of causes of action. None of the defendants appear to be interested in all of the causes of action stated in the complaint. The demurring defendants are each severally interested in but one of the several causes of action. We are inclined to the opinion that the complaint fails to state a cause of action against any of the defendants.

The judgment and orders appealed from should be affirmed, with costs of the appeal from the judgment, but with leave to the plaintiff to amend the complaint within twenty days upon payment of the costs of the demurrer and of this appeal.

All concur.


text:
    Henry S. Riegle, Resp’t, v. Hiram E. Bratt, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Witness—§ 829.
    The fact that, after evidence has been admitted, it is made to appear that it involves a personal transaction with decedent, does not render its admission erroneous, but is only ground for a motion to strike out.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      Charles F. Tabor, for app’lt; George W. Cothran, for resp’t.
   Lewis, J.

Laura E. Riegle, the wife of the plaintiff, died at the town of Clarence, county of Erie, leaving a last will and testament, by which she bequeathed to the plaintiff $500, and her gold watch and chain. The property in question, consisting of an organ and some articles of furniture, she bequeathed to some female friends, and appointed the defendant executor of her will. The defendant qualified as such executor, and took possession of the property involved in this action, and the plaintiff thereupon brought this action against the defendant for conversion thereof. The defendant interposed an answer, claiming title thereto as executor of the will of the testatrix. The questions involved in this appeal arise upon the rulings of the court in the admission and rejection of evidence. The plaintiff, to maintain his action, called himself as a witness; and the following testimony was given, and proceedings had : “ Q. Did you purchase an organ of Denton, Cottier & Daniels ? (Objected to by defendant’s counsel on the ground that it involved a transaction between this plaintiff and the testatrix of the defendant, the deceased, and that the witness, being a party in interest, cannot, under § 829 of the Code, testify to a transaction which involved relations between him and the deceased. Objection overruled and exception taken.) A. Yes, sir. It was in April, 1891. It was an Estey organ, and the price was $40. I paid for it, and received the organ, and took it home that day. My home, at that timé, was in Clarence. I took the oi’gan to my father’s house at that time. It was on the 14th day of December, 1892. Where I lived, in the town of Clarence, •—in my own house. Q. Did you purchase some household furniture from Hersee & Co. ? (Same objection, and same ruling.) The witness testified that he purchased the furniture in question, and stated: “ I left it there a short time. I paid for the furniture, and received this bill from the firm. (Paper shown witness)

The paper was headed “ Mr. H. S. Riegle, Clarence Center, N. Y. Bought of Hersee & Co.,” and then followed the items of the furniture. Plaintiff’s counsel offered the bill referred to in evidence. It was objected to by the defendant's counsel on the ground that it was simply the declaration in writing of Hersee & Co. The objection was overruled, the paper was received in evidence, and exception taken. The witness further testified that the furniture was sent to his home by rail; and he was permitted, under objection of the defendant, to read the bill of lading in evidence, showing that it was billed to him. The witness, on being cross-examined, testified that the deceased was his wife; that after their marriage they lived with the witness’ father; that he got some money from his father, when he came to Buffalo to purchase the organ, after they were married; and that he and his wife and his wife's adopted mother came together, and picked out the furniture, but did not buy it that day, for the reason that he did not have money enough with him to pay for it; that he and his wife subsequently came with his wife’s adopted father, and that he bought the furniture for $75; that Lis wife was with him all the time, and that on that day she drew out of the bank $890, which she delivered to the plaintiff; that he took out $40 or $50, and with that, and some money of his own, he paid for the furniture, and that the balance of the money, with the consent of his wife, he delivered to his own father, with the exception of some of it, which his wife retained; that he paid for the furniture right there, when his wife was present; that the furniture was used in the house where he and his wife lived until she died; that he paid $75 for the furniture,—$40 of it was his own money, and $15 or $20 of it he got from his wife. Thereupon, the defendant’s counsel moved to strike out all the evidence of the witness, upon his direct examination, as to the purchase of the property, on the ground that it involved a personal transaction with the deceased, ■ it then appearing that the defendant claimed the property as executor. The motion was denied, and the defendant excepted. Plaintiff’s counsel then asked the witness the question: “Q. When the defendant’s counsel asked you if you paid for the furniture, you stated that your wife stood near by. That don’t answer the question which he put to you,—whether you paid for the furniture, or whether she paid for it?

Defendant’s counsel objected on the ground that it involved a transaction with the deceased. The objection was overruled, and the witness answered: “ I paid for it.” “ Q. Did you repay your wife the moneys you received from her, that were used in paying on this organ, and also the moneys that you received from her, and paid on the furniture ? ”

The same objection was interposed, and the court said : “ Either the whole of it has got to be stricken out, or he has got the right to show that he has repaid it. One or the other. (Ruling reserved, and the defendant excepted.) A. Yes, sir. I was at my home on the 14th of December, 1892. Mr. Bratt came there. He removed the articles of furniture mentioned in this bill, and the organ. I forbid him to move them, but he took them, notwithstanding.”

The witness appears to have answered the question, notwithstanding the court reserved its decision as to its admissibility, and the defendant neglected to move to strike out the answer.

The plaintiff called other witnesses, who gave evidence tending to show that the plaintiff paid for the organ, and as to the value of the property in controversy, and he then rested his case. The defendant introduced evidence tending to show that the deceased purchased the' property. The court, in charging the jury, submitted to them the question as to whether the plaintiff or his wife made the purchase. The jury found for the plaintiff the value of the property.

There was nothing in the testimony given by the plaintiff upon his direct examination tending to show that he ever had a wife, or that the defendant was the executor of his wife’s will. His evidence, therefore, so far as it then appeared, was competent. The fact that it was subsequently made to appear that his wife was present on the occasion did not render the reception of the testimony erroneous. Whitman v. Foley, 125 N. Y. 652; 36 St. Rep. 133. Upon his cross-examination, it was disclosed that his wife was present with him at the time of making the purchases of the property in suit, and that he borrowed of her a portion of the money used in paying for the property. The borrowing of the money and the purchasing of the property were two different transactions. The transactions out of which the plaintiff claimed to become the purchaser of the property were between himself and the vendors of the property. The transactions upon which the defendant relies to exclude the plaintiff’s evidence consisted of the act of his borrowing money of his wife. That had occurred before the transactions with the vendors of the property. The transactions did not necessarily have any relation to each other. The evidence showing the borrowing of the money was called out, by the defendant. The burden was upon the defendant to show the disqualification of the witness to give the testimony. Whitman v. Foley, supra. The defendant at the close of the cross-examination of the plaintiff, moved to strike out all of his direct evidence as to the purchase of the property, on the ground that it then appeared that it was a personal transaction with the deceased. The motion was denied, and the defendant excepted. The mo lion should have been granted, if, by the cross-examination, it had been established that the purchase of the furniture was a personal transaction between the plaintiff and the deceased. Mills v. Kernochan, 3 St. Rep. 152; Knowles v. Erwin, 43 Hun, 150; 5 St. Rep. 421. We incline to the opinion that it was not error for' the court to refuse to strike out the evidence, and that it was proper to submit the question to the jury as to who purchased the property. The defendant having called out from the plaintiff the fact that the borrowed money of his wife, which was used in the. purchase of the property, it was n,ot error to allow him to testify that he repaid the money. The' bill of sale and the railroad receipts were part of the transactions relating to the purchase of the goods by the plaintiff; and, while they were not very material evidence, we do not think it was error to admit them.

We have examined the other exceptions of the defendant, and find nothing calling for a new trial.- The judgment and order appealed from should be affirmed. All concur.


author: Haight, J.

text:
    In the Matter of the Estate of Amos Hurlbutt, Deceased. In the Matter of the Judicial Settlement of the Accounts of George S. Young et al., as Executors, etc.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    Wills—Legacy—When vests.
    Where the enjoyment of a legacy is postponed to enable the estate to meet another burden first imposed upon it, the legacy will vest as of the date of the testator’s death.
    Appeal from a decree of a surrogate.

      S. Edwin Day, for app’lts ; H. V. Howland, for resp’t.
   Haight, J.

The testator died December 10, 1882, leaving a last will and testament, which has been duly proved and admitted to probate, the second clause or which provides as follows: “I hereby ordain and require the sale of my farm as soon after my decease as it can be done without undue sacrifice, and out of the proceeds of such sale $4,000 are to be reserved for the use of my aforesaid wife,in the purchase of another home; but if she shall choose not to purchase, or choose a place of less value, then the whole of the money or balance left after purchase shall be placed at interest, and the profits arising therefrom shall be hers during life; and, after her decease, this amount of $4,000 or the premises my said wife may purchase with any balance of money left after purchase shall, after her decease, be equally divided among my children, Amos J. Hurl-butt, Mary Tift, and Ellen Close.”

The testator left, him surviving, Marv Hurlbutt, his widow, and the three children named in his will. The farm was sold in accordance with his direction, and of the money derived therefrom $4,000 was reserved and invested in a mortgage for the benefit of the widow during her life. She died on the 9th day of Septemher, 1893, but before her death, and in the year 1890, Mary Tift died, leaving a will, in which she devised and bequeathed all of her property to her husband, John Tift. The sole question presented in this case is as to whether John Tift is entitled to any portion of the $4,000, and this is dependent on the question as to whether that fund vested in the legatees on the death of the testator or upon the death of the widow. The question thus presented is not free from difficulty, and there may be some trouble in harmonizing the cases upon the subject.

The primary canon of construction of a will is that the intention of the testator shall be ascertained and followed. Subordinate to this canon are certain rules which have been formulated to aid the courts in ascertaining such intent, among which is one invoked by the appellant, to the effect that where there is no language importing a gift, except in the direction to convert the real estate into money, and make distribution, time is annexed to the substance of the gift, and the vesting is postponed until the time of payment. Leake v. Robinson, 2 Mer. 387 ; Warner v. Durant, 76 N. Y. 133-136; Delaney v. McCormick, 88 Id. 174-183; Smith v. Edwards, Id. 92; Bowditch v. Ayrault, 138 N. Y. 222 ; 52 St. Rep. 330; Delafield v. Shipman, 103 N. Y. 463-467; 4 St. Rep. 247. Under this rule, it is claimed that the testator has not in express language or words given the $4,000 tó his children; that he has only directed its division among them after the decease of his widow. If the provision contained nothing more, the appellant’s contention must prevail. But the rule invoked has exceptions and limitations, one of which it becomes necessary to consider, and that is that, although the will contains no other gift than as indicated by the direction to pay or distribute in the future, yet, if the enjoyment of the legacy is postponed to accommodate the estate, or to enable it to meet another burden first imposed upon it, the legacy will be regarded as vested as of the date of the testator’s death. 1 Jarm. Wills, 835; Packham v. Gregory, 4 Hare, 396 ; Loder v. Hatfield, 71 N. Y. 92-100; Coit v. Rolston, 44 Hun, 548-550; 9 St. Rep. 232.

Under the will, the testator disposed of all of his property. That which was not given or set apart for the use of the widow was given to the children. The $4,000, as we have seen, was reserved for the use of the widow during her life. If it was not invested in a home for her, it was to be placed at interest, and the interest during her life was given to her, and after her decease the principal was to be divided among the children. We thus have a postponement of the enjoyment of the fund by the children during the life of the widow; in other words, a postponement to meet another burden first imposed upon it. Under this rule the testator must be deemed to have intended that the $4,000 should vest in his children, subject to the life use thereof by the widow, and that the payment thereof was postponed until her decease, so as to enable the estate to first meet that burden.

The decree appealed from should be affirmed, without costs of this appeal to either party. All concur.


text:
    Thomas J. Reynolds, Resp’t, v. Ransom H. Miller, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 20, 1894.)

    1. Trial—Request to direct verdict—Waiver.
    A request by both parties for the direction of a verdict is a waiver of the trial by jury.
    8. Sale—When completed.’
    A contract of sale is incomplete, where the price of the goods is to be ascertained from an inventory to be afterwards made.
    Motion for a new trial on exception ordered to be heard at general term in the first instance.

      E. A. Nash, for pl’ff; John VanVoorhis, for def't.
   Haight, J.

This action was brought to recover the amount of a promissory note executed by the defendant, and delivered to the plaintiff.' The answer admits the execution and delivery of the note, but alleges, as a defense, nonperformance of the contract under which it was given, failure of consideration, and fraud. It "appears that the Trotter Refrigerator Company was a corporation engaged in the manufacture of refrigerators and other articles of merchandise; that on the 14th day of January, 1891, an agreement was entered into between Calvin P. H. Yary, Stephen Keiner, Charles W. Trotter, and the Trotter Refrigerator Company, as parties of the first part, and Thomas J. Reynolds, as party of the second part, in and by which the individual owners of the capital stock of the corporation and the board of directors agreed to turn over to said Reynolds the management-of the entire property and assets of the company, and the entire control and management of the business of the company, of every kind, etc. The agreement was not signed by Charles W. Trotter, who was one of the stockholders of the corporation. Pursuant to this agreement, Reynolds assumed the management and control of the property of the corporation ; and on the 11th day of June, 1891, in consideration of three promissory notes, of which the note in suit is one, executed and delivered to the defendant a bill of sale—“Of all the refrigerators manufactured and in process described in the annexed schedule, now stored in Newark, N. Y., at the company’s factory and storage house; also all the lumber, stock, wrought and unwrought, belonging so said company now in the yard and factory at Newark, N. Y., including sash, doors, blinds, glass, and other personal property, excepting the machinery and fixtures. The prices"at which said refrigerators shall be paid for shall be 30 per cent, of the list price, and. said lumber shall be inventoried and figured at 80 per cent, of such inventoried value. Any expenses incurred in finishing refrigerators shall be deducted from said 30 per cent. The other property hereby conveyed to be paid for at a price to be fixed by an inventory made hereafter at 80 per cent, of the cost price.”

This instrument was signed, Trotter’s Refrigerator, by T. J. Reynolds, Manager.” And upon the same day another instrument was executed and delivered to the defendant, which is as follows: .

“ Rochester, N. Y., June 11, 1891.
“Ransom H. Miller having this day purchased from the Trotter Refrigerator Company the property described in a bill of sale bearing this date, now said Miller is hereby authorized to collect all the unpaid book accounts due and to grow due to said company, and apply the proceeds thereof upon the indebtedness of said company to him. The rights hereby conveyed by said Reynolds as manager are the same rights acquired by him under an agreement made January 14, 1891, between him and said company and others.
“T. J. Reynolds, Manager."

Thereupon the defendant, on the morning of the next day, proceeded to Newark, where the company’s factory was located, and there met Vary and Keiner, two of the directors of the corporation, who were in charge of the company’s property, and demanded from them the possession of the property described in the bill of sale. This they refused to give until they could have advice of counsel, and it was then arranged that director Vary should proceed to Rochester within a day or two and obtain such advice. Subsequently he met the defendant, Miller, in the city of Rochester, and together they proceeded to the office of Hubbell & McGuire, the attorneys for the corporation, and were there advised that the agreement of January 14th, between a portion of the stockholders and Reynolds, was invalid, and that Reynolds had no power to sell the property of the corporation to the defendant in the manner which he had attempted to do, and they refused to then surrender the property to the defendant. Subsequently the defendant demanded back the notes which he had delivered to Reynolds, and offered to return and restore to him the assignment and papers he had received from him. This Reynolds refused. It further appears from the testimony of the defendant that, at the time the plaintiff offered the property to him, he stated and represented that he had legal power to sell and convey the same; that he had consulted with the members of the company, and that they had agreed to the sale, and that it was all right; that the plaintiff further stated that, if the defendant took the bill of sale, lie could have possession of the property, and that he should get peaceable possession, and that ah of the members of the company were satisfied, and would give him peaceable possession ; that the defendant believed the representation so made, and accepted the offer, upon condition that they would give him peaceable possession. It further appears that Reynolds had not consulted with the other members of the company in reference to the sale of property to the defendant; that they knew nothing about it until the defendant presented his bill of sale, and demanded possession ; and that they were not satisfied therewith. At the close of the evidence, the plaintiff’s counsel asked the court to direct a verdict in favor of the plaintiff for the amount of the note, with interest. This was refused, and an exception was taken. The defendant’s counsel then moved for a direction of a verdict in favor of the defendant, which motion was .granted, and an exception was taken thereto. No request was made that any question of fact should be submitted to the jury.

Where, upon the trial, each party asks that a verdict be ordered in his favor, and neither asks to go to the jury upon any question of fact, the court is authorized to find upon the facts, and, if there is any evidence to sustain its findings, it is conclusive upon the parties; for, by requesting the court to determine the case as one of law, a party waives liis right, if any, to go to the jury, unless he so requests. Kirtz v. Peck, 113 N. Y. 222 ; 22 St. Rep. 733 ; Provost v. McEncroe, 102 N. Y. 650; Dillon v. Cockcroft, 90 N. Y. 649. Here, as we have seen, there was some evidence tending to show fraud on the part of the plaintiff ; that he had falsely represented that he had authority to sell the property of the corporation ; and he had seen the members.of the company, and consulted with them ; and that they had agreed that it would be best for him to sell the property to the defendant. There is also some evidence tending to show that he had not performed the contract; that he agreed to deliver possession of the property to the defendant, and had not done so. It would doubtless have been the duty of the court to submit these questions to the jury had the plaintiff so requested, but in the absence of such a request, we must now assume that the court has found the facts upon these questions in favor of the defendant. If so, it follows that, if there was fraud practiced on the part of the plaintiff, it vitiates the contract; or, if he failed to perform the contract on his part by neglecting to deliver possession of the goods, there was both a breach of contract and a failure of consideration ; or if, as is claimed, the property was to be inventoried, its quantity and condition then to be ascertained, and a price then agreed upon based upon the inventory, it was not a completed contract.'

» Parsons on Contracts (at page 527) says : “ Nor is the sale completed where anything remains to be done to determine its quantity if the price depends on this, unless this is to be done by the buyer alone ; and, even if earnest or a part of the price be paid, the sale is not complete under these circumstances, and, if it finally fail, the money paid may be recovered back.” In Tipton v. Feitner, 20 N. Y. 423-425, Demo, J., says: “■ In contracts for the purchase of property, real or personal, where there is no stipulation for credit or delay on either side, the delivery of the property (or its conveyance, where it is of a nature to pass by grant), and the payment of the price, are each conditions of the other, and neither party can sue for a breach without having offered performance on his part.”

Dunham, v. Pettie, 8 N. Y. 508-512; Porter v. Rose, 12 Johns. 209 ; Parker v. Parmele, 20 Johns. 130.

These views rendered it unnecessary to determine whether the plaintiff could sell the property under the power given to him by the contract of January 14th. The plaintiff’s motion for a new trial should be denied,, with costs, and judgment ordered for the defendant upon the verdict.

All concur.


author: O’Brien, J.

text:
    Edward Rouget, Resp’t, v. Theodore Haight et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Guaranty—Advances.
    A guaranty which, in express terms, refers to advances thereafter from time to time to be made, does not cover money advanced before the agreement, where the guarantor did not know of such prior advances.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Wm. E. Wyatt, for app’lts; Samuel Cohn, for resp’t.
   O’Brien, J.

This action was brought to recover the sum of $7,250, upon an agreement dated July 9, 1887, which provided that a sum of money not to exceed $10,000 should be advanced to the defendant Theodore Haight by the plaintiff; that such sums so advanced were upon the death of plaintiff and his wife to become the property of the defendant Theodore Haight, provided that during the lives of plaintiff, and his wife interest was paid at the rate of 15 per cent, per annum. On failure, however, of Haight to pay interest, then the whole sum was to become due, and the defendant Ellen J. H. Haight agreed to repay such advances. Plaintiff claims to have advanced the amount sued for, and that, the interest being unpaid, the whole sum claimed to have been advanced has become due. Upon the trial it appeared that of the $7,250 the sum of $2,000 was advanced before the making of the agreement, and that at the various times when advances were made promissory notes were given, payable on demand, instead of receipts. The notes having been surrendered upon the trial, the court submitted the question of the amount of indebtedness, and in effect directed a verdict for the full amount and interest against both defendants. We shall treat the case then as though the verdict was directed.

As regards the defendant Theodore Haight, we think the verdict was right; for though, upon the other evidence in the case, a question might have been presented as to whether the moneys were advanced under the agreement or upon the promissory notes, this was set at rest by the testimony as to the manner in which the notes were given, and the purpose for which they were received, and' by the evidence of the defendant Theodore Haight, who admitted the receipt of $7,250. which he stated he was to invest under the agreement, the money to be his in the end, and that no part of such sum was repaid. His express admission, together with the other evidence in the case was conclusive upon the liability of the defendant Theodore Haight, and removed any doubt that might otherwise exist as to whether the moneys were advanced on the notes or under the agreement. A different question, however, arises as to the liability of the defendant Ellen J. H. Haight in regard to the $2,000 which was concededly given to her husband, Theodore, prior to the making of the agreement. It is not claimed that any of the money was advanced to Mrs. Haight, her status being that of a guarantor under the agreement; by the terms of which she was to repay such advances of money as might be made to her husband only in case her husband should die before the plaintiff aud his wife, or upon failure to pay interest. It was not made to appear that when she signed the agreement site knew of any prior advances,, nor is there anything in the language of the agreement itself which binds her to repay past loans. In the absence of such testimon}', and considering the language of the agreement itself, which in express terms refers to advances thereafter from time to time to be made, we are furnished with no good reasons upon which her liability for past advances can be predicated. No motion for a new trial was made, nor was any order entered denying such a motion, nor any appeal taken therefrom ; and, though we are thus confined to a consideration of questions of law, the question as to Mrs. Haight’s liability is directly raised by the exception taken to the refusal of the court to charge the jury, or to hold that, in order to render her liable, the money must have'been advanced under or pursuant to the agreement. As the evidence stood, therefore, at the close of the trial, we think it was the duty of the court, while directing a verdict against the husband for the full amount, to have deducted from the amount chargeable against the wife the $2,000 which had been given to the husband prior to the making of the agreement, and for which, by the terms thereof, she was not liable.

The judgment as to Theodore Haight should accordingly be affirmed, with costs and disbursements, and the judgment against Ellen J. H. Haight modified by deducting therefrom $2,000 and interest, and, as so modified, affirmed, with costs and disbursements to her. All concur.


text:
    Nathan Metzger, Resp’t, v. George W. Carr et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Corporations—Trustees—Liability.
    In an action against trustees to charge them with personal liability for notes of a club, it will not be presumed, for the purpose of destroying the sufficiency of a pleading, that said notes were given for past indebtedness.
    2. Same—Pleading.
    An allegation that the defendants were trustees when the judgment was obtained against the club, is unnecessary.
    3. Same—Parties.
    Such action may be brought against any or all of the trustees.
    4. Same—Chap. 267 of 1875.
    Section 8, chap. 267 of 1875, is constitutional,
    5. Same—Corporate remedy exhausted.
    The creditor can sue the trustees before exhausting his remedy against the corporation.
    6. Pleadings—Conclusion.
    A denial that there is due from defendant to plaintiff the whole or any part of a note sued on is a mere denial of a conclusion of law.
    Appeal from an interlocutory judgment sustaining a demurrer to portions of the answers.

      The opinion of Mr. Justice Ingraham at special term is as follows: The defendants, upon this demurrer by plaintiff to the answers, seek to take advantage of the rule that allows a party upon demurrer to take advantage of any defect in a pleading of his opponent, and thus to sustain their answers on the ground that the complaint fails to state facts sufficient to constitute a cause of action; and the objection to the complaint insisted upon is that the action is on a promissory note of the club of which the defendants are sought to be charged as managers, and the only allegation of the contracting of the debt is the allegation of the making of the promissory note; and, as the note is not itself the debt, but is merely the evidence of the debt, that there is no allegation that at the time the debt was contracted the defendants were managers of the club. It is quite true that a promissory note given for an existing indebtedness is merely evidence of the debt, and is not the debt itself; but the trouble with the objections raised by the defendants is that it does not appear upon the face of the complaint that the notes in suit were given for an existing indebtedness. I think that the presumption is that they were not, but were given for an indebtedness created at the time of the giving of the note, and that in such case the note itself is the contract by which the defendant is bound to pay the amount therein specified. The complaint alleges the execution of the notes by the club, and the delivery of the same for value, and that at the time the said promissory notes -were executed and delivered to him, to wit, the 21st day of September, 1892, the defendants, and each of them, were managers, trustees, and governors of the said club; and that that allegation, standing alone, would be sufficient to show that they were such managers of the club at the time the debt by which the club promises to pay the plaintiff the sum mentioned in the note was contracted. The act under which the club in question was organized, being chapter 267 of the Laws of 1875, § 8, provides: “The trustees, directors or managers of any society or corporation organized under the provisions of this act shall be jointly and severally liable for all debts due from said society or corporation contracted while they are trustees.” I think it clear, under this provision, that the words “jointly or severally” allow a creditor of the corporation to sue any one or more of the persons made liable for the debts of the corporation. If the managers are severally liable for the debts contracted while they are such managers, one or more of such persons thus severally liable may be sued in the same action, under § 454 of the Code, which provides “that where two or more parties, severally liable upon the same written instrument, including the parties to a bill of exchange or a promissory note, whether the action is brought upon the instrument or by a party thereto to recover against other parties liable over to him, may all, or any of them, be included as defendants in the same action at the option of the plaintiff.” I think, therefore, the complaint is sufficient, and sets up a good cause of action.
    The defendants Carr and Hoyt answer together, and set up several distinct defenses. The first allegation of the answer denies that the “defendants to this action, and each of them, were governors of the said club.” This denial is clearly insufficient. It does not deny that the defendants answering were such governors, etc., and it is not a defense available to this defendant that some of the other defendants were not severally liable to the plaintiff. The defendants then deny that there is due and owing to the plaintiff from these defendants the whole, or any part, of either of the notes. This is a mere denial of a conclusion of law.
    The next defense is that the notes set forth in the complaint were given for a debt theretofore due by the said club to the plaintiff, and for no other consideration, and that all the managers of the club at the time the debt was contracted are not parties to the action; and the third paragraph of the answer alleges that there is a defect of parties defendant, in that the club is not made a defendant. For the reasons before stated, • neither of these paragraphs allege a defense to the action.
    By the fourth defense the defendant alleges that the three notes set forth in the complaint were given by said club and received by plaintiff in payment of the debt contracted for goods sold and delivered to the club, and by the acceptance of the said notes the plaintiff elected to satisfy and discharge said debts and all liabilities which existed against the defendants as such trustees. It is clear that this allegation is no defense to this action. If by the acceptance of the note the plaintiff elected to discharge the indebtedness before existing, the note itself created a new indebtedness, and, under the statute, the defendants, who were then managers of the club, became jointly and severally liable to pay the indebtedness created by the execution and delivery of the notes.
    The fifth defense alleges that the provision of the statute before referred to is contrary to the constitution of the state of Rew York, and is now unconstitutional. Ro clause of the constitution that prohibits the passage of such án act has been cited, and I can see no reason why the legislature had no power to pass such an act.
    The sixth paragraph alleges, for a separate and further defense, that by the commencement of the action on the said notes against the club, and the entry of judgment therein, plaintiff elected to hold only the said club liable for the payment of said notes and the debts they were given for. I know of no principle upon which a suit against a person severally liable for a debt and the entry of judgment therein discharges .other persons who were severally liable for the same debt.
    The seventh paragraph of the answer alleges that the club had assets and real estate standing in its name, and that plaintiff had not, prior to this action, procured an execution in either of said actions, or upon either judgment, to be issued against said club and its property, and returned unsatisfied. I know of no provision that requires such an execution to be issued to make the defendant liable.
    The point raised upon the argument and in the brief filed by the defendants, that a note given for an existing debt is merely evidence of the debt, and not the debt itself, and in such case, to recover from the managers of the club, under this statute, the plaintiff must allege and prove the debt, and must show that the defendants were managers at the time the debt was contracted, is not raised by the answer. The fact is stated in two of the defenses before referred to, but in each case as part of a defense which is clearly insufficient.
    .1 think, therefore, that none of the defenses set up in the answer of Carr and Hoyt state facts sufficient to constitute a defense to the cause of action set forth in the complaint, and the demurrer must therefore be sustained, and judgment ordered for the plaintiff for the amount as demanded in the complaint, with costs, with leave to the defendants to amend their answer within 20 days, upon payment of costs.
    The defendant Van Schaick also answers the complaint, and, after denying certain of the allegations of the complaint, he sets up several separate defenses, to which several separate defenses the plaintiff demurs. ’ The views heretofore expressed dispose of all the objections to that answer except the separate defense alleged in the sixth and seventh paragraphs of the answer to each of the causes of action set forth in the complaint. By paragraph 6 the defendant alleges that the note set forth in the first cause of action was not given for an original contract by the Manhattan Athletic Club, but was given in renewal of the other notes, which were given for goods sold and delivered by said plaintiff. I think this defense is a good defense to the cause of action set up in the complaint, which is solely based upon the execution by the club of the promissory note therein mentioned. By the statute the managers of the club are jointly and severally liable for all debts due from the corporation, contracted while they are trustees, and the plaintiff, to recover, must allege and prove that when the debt was contracted the person sought to be held liable was a manager or trustee of the club. To contract a debt means to incur the debt, and a debt is contracted when the obligation is incurred ; and when the plaintiff sold and delivered to the club goods or merchandise the obligation to pay for such merchandise was then incurred; and, as was said by Davis, P. J., in Parrott v. Colby, 6 Hun, 55: “It is a well settled general rule that a promissory note given for an existing indebtedness is evidence merely of a debt, and is not the debt itself ; and it is extremely well settled in this state that the taking of a debtor’s note does not merge or extinguish the demand for which it is taken.” , When, therefore, a suit is brought to recover from this defendant for a debt due from the club, contracted while this defendant was a trustee, they must allege and prove that when the debt was contracted the defendant was a trustee. All the defendant has to do is to answer the cause of action alleged against him in the complaint, and when, in such an answer, he alleges the fact to be that the obligation sued upon did not represent a debt contracted at the time the obligation was executed and delivered, he answers the cause of action that is alleged in the complaint. The defense set forth in the seventh paragraph by this defendant is also sufficient, as that alleges that the obligation sued on was unauthorized by the club, and the club was not liable therefor.
    The demurrer to the third, fourth, and fifth separate defenses alleged in the answer as to each of the causes of action must therefore be sustained, with costs to the plaintiff; and the demurrer to the defenses set up in the sixth and seventh paragraphs of the answer to each of the causes of action must be overruled, with costs; the defendant, however, to have leave to amend his answer to the complaint within 20 days, without costs.
    There was also a demurrer to the answer of another defendant submitted at the same time, but, as a copy of that answer was not furnished me by the parties, I cannot dispose of that demurrer. If the defenses, however, are the same as those raised by either of the answers, the demurrers to which are hereinbefore disposed of, the same disposition will be made as before indicated. The decision to be settled on notice.

      George W. Carr, for app’lts Carr and Hoyt; Dittenhoefer, Gerber & James, for app’lt James; Bernard Metzger, for resp’t.
   O’Brien, J.

The action is brought to enforce the liability of the directors or trustees of the Manhattan Athletic Club, pursuant to § 8, c. 267, Laws 1875, which provides that: “The trustees, directors or managers of any society or corporation organized under the provisions of this act shall be jointly or severally liable for all debts due from said society or corporation contracted while they are trustees, provided said debts are payable one year from the time they shall have been contracted, and provided a suit for the collection of the same shall be brought within one year after the debt shall become due and payable.”

Two causes of action upon promissory notes are set up in the complaint, and, after alleging the incorporation of the club, it is averred that, upon the respective dates, it made its certain promissory notes, and delivered the same to the plaintiff for value, which at maturity were not paid. It is further alleged that, at the time of the execution and delivery of such notes, the defendants, and each of them, were governors, trustees and managers of the club ; that the notes were payable one day from date of their execution; and that less than one year has elapsed since they be.eame due and payable; and that payment has been refused. Then follow allegations about suit being brought thereon and judgment obtained, and that the whole of the judgment remains unpaid. The answer of defendants Carr and Hoyt sets up seven defenses : (1) They deny the allegation of liability either on the notes or judgments. (2) They allege that each of the notes was given for a debt theretofore due and owing by the club to plaintiff for goods and merchandise theretofore sold and delivered by plaintiff to the club ; and that neither at the times the debts were contracted nor the notes given were the defendants all the trustees but that at such times there were other trustees; and plead nonjoinder. (3) They allege the nonjoinder of the club. (4) They allege that, when plaintiff took the club notes, he elected to look only to the club for their payment, and thereby waived any liability of the trustees for the debt or for the notes. (5) They claim the provision of the act under which the liability is sought to be enforced is unconstitutional. (6) They allege that the judgments against the club are a bar. (7) They claim plaintiff had not, previous to this action, exhausted his remedy against the club, although it had assets. The answer of defendant James alleges no knowledge or information sufficient to form a belief as to any of. the allegations of either cause of action, except the allegation that the club was incorporated ; denies on information and belief, that the debt or claim set forth in either cause of action was contracted while he (James) was a trustee; and alleges that the provision of the act mentioned is unconstitutional. Plaintiff demurred tq all the defenses in Carr’s and Hoyt’s answer, except that contained in paragraph 1. He demurred to only that portion of or defense in said James’ answer which alleges the unconstitutionality of the law. The learned judge sustained the demurrer, and went one step further in holding that the first defense in Carr’s and Hoyt's answer, which was not demurred to, was bad. As no question was raised as to its sufficiency, we do not think that it should have been disposed of. The reasons assigned by the judge in his opinion are clear and satisfactory, and require no elaboration at our hands.

The only serious question presented relates to the sufficiency of the complaint, which question could be raised and was available to the defendants upon the demurrer; it having been repeatedly held that, though the defenses to a complaint be bad, a demurrer thereto will not be sustained if the complaint itself is insufficient The complaint itself is silent as to whether the notes sued upon were the original indebtedness, or merely evidence of an existing indebtedness; and it thus remains to" be determined whether, as the result of such silence, a presumption arises either way as to the notes being given for an indebtedness created at the time they were given, or for an indebtedness created prior to the giving of such notes. If the latter presumption is to be indulged in, then, as there is no allegation that the defendants were trustees when the original debt was contracted, but were merely trustees when the notes were subsequently given for the debt, they would not, under the authority of Parrott v. Colby, 6 Hun, 55 ; affirmed, 71 N. Y. 597, and Hardman v. Sage, 124 N. Y. 25 ; 35 St. Rep. 54, be liable. The liability of such trustees is predicated upon the creation of the indebtedness. In that case it was held that: “The acceptance of a note did not merge or extinguish the orignal indebtedness, but only operated to extend the time of payment, and that, as the plaintiff had not brought an action against the corporation within one year from the time the original debt became due, the defendant was not liable ; that the liability of a stockholder in such cases cannot be renewed or extended by any renewal or extension of the indebtedness which the creditor may make with the corporation.”

Although that action was one to hold the defendant liable as a stockholder of a corporation created under the act of 1848, relating to the formation of corporations for manufacturing, mining, mechanical, and chemical purposes, the principles applicable to the liability under that act and under the club act of 1875 "are similar. We are referred to the case of Lake v. Tysen, 6 N. Y. 463, as authority for the position that, where nothing is alleged but the making and delivery of the note, then the presumption to be indulged in is that it was given for an existing or past indebtedness. It is true that in the course of the opinion this language occurs: “The referee held, among other things, that the giving of the note by the appellant to the respondent was presumptive evidence that all prior claims between the parties were settled. * * * The giving of a promissory note is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker was indebted to the payee upon such settlement to the amount of the note.”

This language, however, is to be considered in connection with the question before the court, which was whether, where two persons have each claims against the other, and one finally gives a note, the giving thereof is presumptive evidence of a settlement of the accounts. Where such a question is presented, it is undoubted law, as held in that case, that the giving of such note is prima facie evidence of settlement of demands between the parties, and that all prior claims between them were settled. It does not, however, go to the extent of holding, nor is it authority for the position, that, in an action upon a promissory note, it is to be presumed that such note was given for a past or existing indebtedness. We think it is unnecessary to indulge in any presumption, because the complaint must be construed according to the language used; and, under the rule which requires that every inference will be indulged in to support, rather than to overthrow, a pleading, we should hold, ms the language used itself would import, that either the debt accrued at the time of the giving of the notes, or that, for value received, the club promised, according to the tenor of the notes, to pay at their maturity, which. would result in no debt being created until the notes became due. We think, therefore, that the learned judge below was right in holding that where, upon the face of the complaint, it does not appear that the notes were given for a past or existing indebtedness, no presumption to that effect will be indulged in for the purpose of destroying the sufficiency of the pleading, but that it is a matter to be pleaded, if the facts warrant, as a defense. We think the defendants are equally in error in contending that their liability is predicated upon the judgment, and not upon the notes, or the debts of which such notes are the evidence ; and that, therefore, it was sufficient to allege, as was here done, that the defendants were trustees when the notes were given, and an allegation that they were trustees when the judgment was obtained was unnecessary. Our conclusion, therefore., is that the judge was right in sustaining the demurrer to the various defenses set up in the answers of the defendants, but that there was no reason for his adjudging that the first paragraph of the answer of defendants Carr and Hoyt was demurrable, a demurrer thereto not having been interposed, and that question not being before the court; that in this respect the judgment should be modified, but in all other respects affirmed, without costs to either party upon this appeal, and with leave to the defendants to amend their answers upon compliance with the conditions imposed by the interlocutory judgment. All concur.


author: Parker, J.

text:
    New York Breweries Company (Limited), App’lt, v. Francis Higgins, as Receiver, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Banks—Insolvent—Deposit.
    A deposit in an insolvent bank, made in the usual course of business, vests in the bank, unless the officers knew of its condition at the time.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Louis Marshall, for pl’ff; Peter A. Hendrick, for def’t.
   Parker, J.

If a bank receive deposits of money, drafts, or checks after knowledge of its insolvency is acquired by the officers or agents in charge, it is, in a legal sense, guilty of fraud. While the effect of a deposit in a solvent bank is to vest the title of the thing deposited in the bank, upon an implied contract that it shall repay the amount of upon the checks of the depositor, yet, if the bank be chargeable with fraud in receiving it, the depositor may, on discovering that fact, rescind the contract,. and reclaim the property, unless it has in the meantime passed into, the possession of a bona fide holder. Cragie v. Hadley, 99 N.Y. 131; Importers & T. Nat. Bank v. Peters, 123 N. Y. 272; 33 St. Rep. 182. The plaintiff sought to prove such facts upon the trial as would entitle it to maintain this action-under the rule stated. The trial court dismissed the complaint at the close of plaintiff’s case, holding that there was no evidence that the officers of the bank knew of its insolvency at the time the deposits of the plaintiff were accepted. An examination of the evidence leads us to concur in the position thus taken. The cbmmencement of the action was doubtless prompted by the fact that rumors touching the affairs of the bank had led the plaintiff’s representatives, before making the last deposit, to take the precaution of asking the president to make a frank statement about its condition. This was at about 11 o’clock of the last business day of the bank. The president, responding to the inquiry, said: “ Mr. Graff, all that I can tell you is that everything is going on as usual, as you see. We are all right. You can tell Mr. Flannagan the banks are all pledged to stand by one another. The clearing house will also stand by us. We have it at our back. You can tell Mr. Flannagan for me, that there is not the slightest thing,— there is no trouble to be apprehended at all.”

It will be observed that the assurance of the president added nothing, really, to that which it gave by keeping its doors open, and transacting business in the ordinary way. Such conduct, of itself, is a continuing assertion of the solvency of a bank, and that “there is no trouble to be apprehended at all.” Was there any evidence, then, before the court, authorizing the jury to find that the officers in charge had knowledge of the wreck impending ? Several of the directors were called by the plaintiff for the purpose of proving that such was the fact, but their testimony did not tend in that direction. Joseph Brokaw, who had been a director of the bank for thirty years, a regular attendant at the directors’ meetings, and was present on the last day of the bank’s existence, testified at some length in relation to certain paper, upon which the receiver has been able to realize comparatively little, the most important of which was the paper of Paige, Carey & Co., amounting to about $460,000, for which the bank held as collateral an assignment of the amount due the firm from the city-of New York for work done under certain aqueduct contracts. With reference to it, he said: “We never had any doubt as to the Paige paper, sir; never to the day of the failure.’’ John H. Starin, another director, testified that he made an investigation with reference to the Paige paper, and reached the conclusion that the loan was well secured. As a further evidence of his confidence that the paper was collectible, and the bank solvent, he testified that he caused an investigation of the bank and its assets to be made, and he offered, a few days before its doors were closed, to take an assignment of the stock, assuming the liability of the bank, and go on with its business under a new board of directors, which offer he renewed after the notice had been put up that the bank was temporarily closed, and the superintendent of the banking department had taken possession. William E. Teft, another director, who lived at the same hotel with Mr. Paige, testified that he had had the affairs of Paige, Carey & Co. investigated in the same manner as he was accustomed to investigate those of the customers of his firm (Teft, Weller & Co.), and reached the conclusion that the bank was well secured. He also testified that, a day or so before the suspension of the bank, he advanced to it the sum of $28,000, because- it was short of legal-tender notes necessary to make exchanges at the clearing house. Without referring to the testimony of other witnesses who were connected with the bank, it may be said, generally, that not a word can be found indicating that they believed the bank to be insolvent, or that it would be unable to continue to conduct its business as usual. The bank examiner, upon whose report the action for dissolution was based, commenced an examination of the bank on the morning of November 12, 1890,—the last day of its existence. He said that about two o’clock in the afternoon of that day the president came to him with the information that a check for $12,000 had been presented for payment, and said that there was not money enough on hand to pay it, and solicited the advice of the examiner, who informed him, if he paid one dollar while confessing his inability to pay all, he did so at his peril. Acting upon the advice of the examiner, the notice was put up that the bank was temporarily closed. It turned out that the president was mistaken in his supposition that there was not currency enough on hand to pay the check. An examination made after the bank was closed led to a discovery that $61,000 in currency had been in some manner overlooked, and in addition there were checks amounting to $81,566.36, which afterwards passed through the clearing house, and checks of out of town banks aggregating $43, 789.42, which were subsequently nearly all paid. From the 12th to the 19th of November, the superintendent of the banking department was in possession of the bank, at the expiration of which time the bank examiner made a report upon which the action for dissolution was founded; and his report showed an impairment of the capital, which was $240,000, to the extent of $99,904.90. In reaching this conclusion, he made deductions from the face value of many of the assets, which were necessarily, to some extent, not based upon actual knowledge of value, but upon his judgment, founded upon such investigation as he had the opportunity to make. Arnold Davidson, an expert accountant called by the plaintiff, testified that he made an examination in the early part of 1892 of the books of the bank, as of the 5th day of September, 1890, and that as a result of the examination he reached the conclusion that the capital stock was at that time impaired $83,608.50. In arriving at this result, he valued many of the assets at less than their face, and in some instances at a less sum than was subsequently realized on a sale by the receiver.

Without further reference to the evidence, it may be said that it does not show that, prior to the making of the deposits, any of the drafts of the North River Bank had gone to protest, or that any of the officers knew or believed the bank to be either insolvent, or in danger of insolvency. Indeed, the counsel for the appellant, in his brief, frankly admits the record to be barren of any affirmative evidence indicating that the officers of the bank had actual knowledge, for any period of time, of the insolvency of the bank; his contention being that the jury would have been justified in finding, and therefore should have been permitted to find, that the bank was insolvent, and that its officers knew of its real condition. We cannot agree with him. It is true that the loan to Paige, Carey & Co., as well as other loans, have proved unfortunate. Their claim against the city, as subcontractors under O’Brien & Clark,— amounting to a much larger sum than their indebtedness to the bank,—has proved to be uncollectible. The question is not whether it has proved to be good or had, but whether the directors and officers of the bank, at the time plaintiff made its deposit, believed it to he good. Upon that question there is no dispute. There is no evidence whatever that they regarded the loan as insecure. On the contrary, there is abundant evidence that, after an investigation made by certain of its directors, they believed it to be good. There were other, smaller loans, which were bad, some of which were known to be worthless by the officers of the bank, as is doubtless the case in nearly all banks. But the loans which the evidence shows they understood to be bad did not aggregate such a sum as would have justified them in regarding the bank as insolvent.

The judgment should be affirmed, with costs.

All concur.


text:
    Jacob London el al., App’lts, v. Wilbur F. Martin et. al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Assignment eor creditors— Preferences.
    Chapter 603 of 1887 merely reduces the preferences within the statutory-limits.
    2. Same—When not set aside.
    When an assignment will not be set aside, though the court finds that the assignor transferred some of his property, in contemplation of the assignment, for the purpose of preventing it from passing thereunder.
    Appeal from a judgment dismissing the complaint.

      E. J. Myers, for app’lts; Benjamin H. Bayliss, J. C. Cloyd, Wm. J. Underwood and Wm. M. Thacker, for resp’ts.
   Parker, J.

After the evidence of both parties had been presented to the court, it reached the conclusion that the assignment which this action was brought to set aside, as fraudulent and void as against the creditors of the assignor, was in fact made and executed by the debtor with the honest intent and purpose of providing that his estate should be appropriated in payment, so far as the same would go, of all his debts. The findings of facts made by the court, as the basis upon which it founded its conclusions of law, entirely justify them ; and, had he stopped there, not a single question would have been presented which would have even justified the appellants in presenting an argument thereon to gn appellate court. But at the request of the plaintiff’s counsel the court made some findings (inadvertently, as we think) which, without explanation and additions, would have required a different conclusion,—findings which, if supported by the evidence, in the form in which théy are made, come within the rule established in Coleman v. Burr, 93 N. Y. 17, and require a determination that the inference of fraud was inevitable, from the facts found, notwithstanding the finding of the trial court that the transactions complained of were honest and fair. Those findings read as follows: Fourth. That on the 27th day of October, 1891, Wilbur F. Martin made and executed to George S. Martin a bill of sale of his stock of merchandise in trade, of his business in the city of New York, for the alleged consideration of eighteen hundred dollars (§1,800), no part of which was paid. Fifth. That the consideration of $1,800 named in the bill of sale was to be paid by the said George S. Martin to the said Wilbur F. Martin out of the proceeds of the sale of the said merchandise as they should, from time to time, be made. Sixth. That on the 27th day of October, 1891, Wilbur F. Martin made and executed his certain bond to Adam 0. Martin, as executor of Hannah S. Martin, deceased, to secure the payment of the sum ($6,000) one year after the date thereof. Seventh. That on the 27th day of October, 1891, Wilbur F. Martin made and executed a mortgage dated the 27th day of October, 1891, upon the certain premises, No. 223 West Forty-Ninth Street, New York City, belonging to him, to secure the payment of the above- mentioned bond, which mortgage was recorded in the office of the register of the city and county of New York on the 27th day of October, 1891. Eighth. That on the 27th day of October, 1891, Wilbur F. Martin assigned to Adam 0. Martin, as executor of Hannah S. Martin, deceased, the bond and mortgage of Emma J. Schober, made to secure the payment of $4,400,' upon which the sum of five hundred dollars ($500) had been paid. Ninth. That Wilbur F. Martin contemplated making an assignment, intended to prefer certain of his creditors. Tenth. That Wilbur F. Martin consulted with his counsel, Mr. Oloyd, and upon his advice made the bond and mortgage, and assignment of bond and mortgage, to Adam 0. Martin, and bill of sale to George S. Martin, at the same time and session that the general assignment was made ; that all of the said papers were part and parcel of one scheme to prefer certain creditors, and make a general assignment by the said Wilbur F. Martin for the benefit of his creditors. Eleventh. That, at the time of the making of the said assignment, Wilbur F. Martin had other personal property, consisting of household furniture, and chattels, and money in bank, which he, the said Wilbur F. Martin, appropriated to his own use, and which, at the time of making such assignment, he had no intention of conveying in and by said assignment. Twelfth. That the intention of the said Wilbur F. Martin was to exclude from the operation of his assignment, by means of bonds and mortgages and assignments of mortgages, the premises No. 228 West Forty-ninth street, and the bond and mortgage so assigned to Adam 0. Martin, and, further, the stock and merchandise in trade, then in possession, by transferring the same to George S. Martin by the bill of sale aforesaid. Thirteenth. That Wilbur F. Martin only intended to transfer for the benefit of his creditors, by the general assignment, the accounts due him by sundry debtors, created and made in his business. Fourteenth. That the transfer of the stock in trade by the bill of sale by Wilbur F. Martin to George S. Martin was made for the purpose of preventing the creditors reaching the said stock in trade, and to prevent such stock in trade from passing under the general assignment. Fifteenth. That the mortgage and assignment of mortgage made by Wilbur F. Martin aforesaid were recorded by Mr. Oloyd on the 27th day of October, 1891, and the general assignment made at the same time with the aforesaid mortgage and assignment of mortgage was recorded on the 28th day of October, 1891. Sixteenth. That the bill of sale of the stock in trade made by Wilbur F. Martin to George S. Martin was made and delivered at the same time with the several other papers. Seventeenth. That the transfer of the stock in trade by Wilbur F. Martin was made for the purpose of placing the same beyond the reach of his creditors. Eighteenth. That the said Wilbur F. Martin was wholly insolvent at the time of the transfers made by him aforesaid. Nineteenth. That the indebtedness of Wilbur F. Martin on the 27th day of October, 1891, amounted to the sum of over forty-one thousand (41,000) dollars, and that the amount of money -which Elwood Donnelly, the assignee, has collected, amounts to the sum of not over $6,000. Twentieth. That the property so assigned and transferred by the said Wilbur F. Martin, by the instruments hereinbefore mentioned, included all of the property of the said Wilbur F. Martin, and deprived him of the means of paying or satisfying the claims of those plaintiffs, in part or in whole.

It was our first impression that these findings called for a reversal of the judgment; but an attentive examination of the evidence has persuaded us that a number of the findings, while containing a grain of truth, yet, by reason of things omitted, really state an untruth. Briefly as may be, we shall present the reasons why we think the judgment should not be reversed, notwithstanding these findings.

In the first place let us speak of findings 6,7,8,9, and 10: It was not questioned on the trial,—indeed, it was admitted,—that Wilbur F. Martin was, and for many years had been, indebted to the estate of which Adam 0. Martin was the executor, in the sum of $6,-000. Upon the trial the assignor frankly admitted that his purpose in executing the bond and mortgage upon the property upon which he resided, and in assigning, as further security, the Schober bond and mortgage, was to secure beyond all hazard, payment of this just debt, and that at the time of executing these papers he knew .that he would be obliged to make a general assignment for the benefit of his creditors. Of his intention in that regard Adam 0. Martin, the executor, had no knowledge whatever. Indeed, he received the securities before he knew that his brother contemplated making an assignment. It appears now that he decided wisely in securing his mother’s estate by means of bonds and mortgages, rather than by prefering the estate in the general assignment. The sum realized has been so small that the statute limiting the amount of preferences would have operated to cut down the amount which the assignee would have been able to pay the executor to a sum far less than that actual due. But we need not concern ourselves with that fact, nor with a discussion-of any of the interesting questions which have been presented by a similar state of circumstances, -for they were put at rest by the decisions of Spelman v. Freedman, 130 N. Y. 421; 42 St. Rep. 531; Central Nat. Bank v. Seligman, 138 N. Y. 435 ; 53 St. Rep. 14; Abegg v. Bishop, 142 N. Y. 286 ; 58 St. Rep. 788. A failing debtor may now practically prefer his creditors to as great an extent as his property permits, provided he does it by giving mortgages and bills of sale, or confessing judgments, instead of putting it in the general assignment, which it is said the statute (Laws of 1887, chap. 503), alone condemns.

We pass these findings,’ then, to consider the 4tk¡ 5th, 14th, 16th, and 17th. They assert, in substance, that on the morning preceding the execution of the general assignment the assignor-executed and delivered to Greorge S. Martin, a nephew, a bill of the merchandise on hand, in consideration of $1.800, which was not then paid,—-was to be thereafter paid out of the proceeds of the merchandise, as it should be realized,—and that the transfer was made for the purpose of preventing the creditors from reaching the stock in trade, and to prevent it from passing under the general assignment. The impression actually created by the reading of the findings, or the summary of them which we have just made, is that the assignor attempted, through this bill of sale, to secure for his own benefit the value of this merchandise, and to prevent creditors from receiving either it or the proceeds But such was not the fact. The assignor was a butcher, and when he went to consult his counsel with reference to making an assign- • ment, he informed him that it was his purpose to secure his mother’s estate by giving to the executor thereof a bond and mortgage on his property, and assign as further security a bond and mortgage of which he was then the owner, and that is was his desire to devote all the remainder of his property to the payment of his creditors, without preference. The question was then suggested by one of the parties to the conference whether, owing to the perishable nature of the meat, it would be prudent to await disposition of it until after the assignee should be able to give the requisite security, and enter upon the discharge of his duty. It was decided that i£ such course should be taken it would result in a comparatively severe loss, as the meat on hand was estimated to be of the value of §1,800. So counsel advised his client to sell the meat to George S. Martin, who was then, and for many years previously had been, employed in the market, and charge it to him on the books, so that when the assignment should be executed it would carry with it, instead of the meat, a claim against George S. Martin for its value. The assignor testified that in pursuance of such direction he made a sale to his nephew, at the same time making an entry or charge upon the books to him of the sale; and that this transfer was made, and the entry made in the books, prior to the execution of the general assignment. This, it will be observed, is quite a different transaction than that which is suggested by the findings about which we are now inquiring. Supplementing those partial findings with the facts to which we have alluded, as is our duty, in support of the judgment, it is at once apparent that, if the judgment is to be reversed, some other ground must be found upon which to predicate it.

The other suggestions of wrongdoing in respect to the assignor’s estate relate to his disposition of household furniture and money in bank, and are referred to in the eleventh and thirteenth findings. At the time of the assignment, all the furniture in his house was worth about $1,000. It was all old furniture, some of it being the special property of his wife and children. Some of it he claimed as his own, but what its value was is not disclosed, nor can we tell whether it was exempt under the exemption laws of the state. The assignor testified that he supposed that his family, and not his creditors, were entitled to this furniture; that it belonged to the family. Mo special point was made of it on the trial, and the evidence respecting it is not in an entirely satisfactory condition; but it induces the belief that the assignor fully intended to devote all the property he had for the benefit of his creditors. The assertion in the eleventh finding that the assignor had money in the bank, which he had no intention of conveying, referred to an item of $43 which he had on deposit in the Chatham Bank, which was not the bank in which he kept his principal account. The assignor testified that he intended to include it in his assignment, but forgot it. A month or so later he was informed by the bank that the account should be closed, and thereupon he drew the money, and used it. There is no other evidence on the question, and it does not justify the setting aside of an assignment which distributes the assignor’s estate among all his creditors, without preference; for, whatever the fate of the general assignment^ the bonds and mortages given to secure the estate of his mother cannot be affected. The judgment should be affirmed, with costs. All concur.


text:
    Edward H. Swan, Jr., Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    Damages—Excessive.
    A verdict for $12,500 for personal injuries was held to be excessive under the facts and circumstances of this case. "
    Appeal from a judgment entered on a verdict-in favor of plaintiff, and from an order denying a motion for a new trial.

      William C. Beecher, for app’lt; Wilhelmus Mynderse, for resp't.
   Parker, J.

— The evidence fully justified the court in submiting to the jury the question of defendant’s negligence. -They not only found that the injury to the plaintiff was wholly due to defendant’s neglect, but that he had sustained damages in the sum of $12,500. It appears that since the injury, plaintiff has expended $200 for medicine, and about $450 for medical attendance; that it was over five weeks after the accident before, he was able to return to the city; and that thereafter he used a crutch for a period of eight weeks, and still continues to use a cane. Further inquiry is naturally prompted in respect to the nature of an injury which caused the jury to award to the plaintiff damages in a sum which, if invested at the rate of 5 per cent, would produce an income of $625 a year during his life, and leave the principal intact for those dependent upon him; a yearly income equal to 25 per cent, of that resulting from his labor both before and since the accident,—for his employers continue to pay him the same salary as before. Dr. Steinzig, who dressed the wound immediately after the injury, testified: 11 In other words, the leg was black and blue from a point a little above the knee joint to a point a little below, —about five inches,—and under the knee there was a slight cut of the skin. Couldn’t sáy how deep the cut was under the knee joint. I couldn’t say whether it was anything more than a superficial cutting away of the skin. I don’t think it was more than a quarter of an inch wide. I should think it was an inch long. It was not a cut. It was more of a tear; not a clean cut. There was no bone broken, no muscle cut, no cord cut, and no vein or artery cut, that I could see.”

The other physician called by the plaintiff said that “ one of the principal nerves of the limb had received contusion, as shown by an examination of the parts beneath it; that is, of impaired sensibility,”—for which he prescribed tonics, electricity, and that the patient go into the country. The plaintiff explained how the injury had kept him from lawn tennis, boating, and athletics generally, and described quite fully the severity of the pain which he had suffered, and was still suffering. The doctor gave him such support as he reasonably could in that direction. He said: “On examining it, I found that there was a horizontal scar in the ham, about behind the knee. On making extension, very great pain. Q. Could you judge, from your examination, of the cause of his pain, and, if so, in what way, other than from the simple statements of the witness ? A. It is different with different patients. In Mr. Swan’s case, 1 judged from his character that he knows when he is hurt; and if I press on a certain place, and he complained of pain, and I press on another place, and he does not complain of pain, I have reason to believe he is not deceiving me, and he had pain over the parts about which he complains when I used the pressure.”

It is quite apparent that his answer is not within the definition of “ diagnosis” as given by Judge Finch in Griswold v. N. Y. C. & H. R. R. Co., 115 N. Y. 64; 23 St. Rep. 729. He said, “at the best, diagnosis is little more than a guess enlightened by experience.” Here we have, so far as the element of pain is involved, a guess enlightened only by the statement of the patient, which ought not to have had, but probably did have, greater weight because reaching the jury through the mouth of the physician. Undoubtedly, the bruise was a severe one, occasioning the plaintiff expense, preventing him, for a time, from working, and causing him to suffer severe pain. But the results flowing from it did not justify, as we think, an award to the plaintiff of $12,50, as compensation for the injury sustained.

The judgment should be reversed because the damages are excessive, and a new trial granted, with costs to the appellant, to abide the event.

All concur.


author: Van Brunt, P. J.

text:
    Louis Steets et al., Resp’ts, v. New York Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Evidence—Judicial notice.
    The courts will take judicial notice of the fact that the elecated roads in the city of New York increase the traffic in the wide avenues through which they run.
    8. Tbial—Enromo-.
    It is not necessary to inform the court, by a finding of fact, of those things which it is presumed to known.
    Appeal from a judgment in favor of plaintiffs.

      A. T. Stoutenburgh, for app’lts ; C. A. B. Pratt, for resp’ts.
   Van Brunt, P. J.

It is not necessary to discuss the question of fact in this case, because the evidence which was relied upon by the appellants has no applicability to the issue which was involved. Our attention is called to evidence in regard to the value of the lot in question, without reference to the building, as being evidence that the property had increased in value since the construction of the elevated road, and had not thereby been injured. This may be entirely true in respect to the lot, whereas the premises may have been very materially injured because of the effect of the building of the elevated road upon its method of occupation. We see no reason whatever to interfere with the conclusion to which the learned trial judge has come in reference to the question of amount, either as to fee or as to past damage. It is urged, however, that the court erred because it refused to find certain requests made upon the part of the appellants. The court refused to find as follows: “The existence and operation of the defendants’ railroad in Ninth avenue has rendered the premises in suit far more accessible than they otherwise would be. This increase of accessibility has been a benefit to the plaintiffs’ property, and has, increased the value thereof. The facility for rapid transit furnished by the Elevated road is a benefit to the neighborhood, and to the premises in suit, and has increased the value thereof.’’

The court found that: “The presence and operation of the said railroad and station attract to and create in Ninth avenue a considerable amount of traffic and business therein, and the number of persons passing up and down said avenue and in front of plaintiffs’ said premises is largely multiplied by reason of the presence of said railroad and station.’’

This, we think, was substantially all that the court should have been called upon to find, as it is not necessary to iterate and reiterate substantially the same facts in different findings. Furthermore, our attention is called to the statement by the learned court of appeals in the case of Bookman v. N. Y. El. Railroad Co., 137 N. Y. 302 ; 50 St. Rep. 703, in which the court, in commenting upon the refusal to find that the fact of the proximity of the defendants’ station above mentioned to the premises in suit is advantageous to the business portion of said premises, and produces a special benefit to the same for business uses, say : “We think these facts could with propriety have been found upon the evidence in this case; but the nature and .operation of the elevated railroads are so notorious that the courts may assume to be acquainted with them, and from the numerous cases which have come before them they may take judicial knowledge that they increase the traffic in the wide avenues largely devoted to business purposes, and thus generally promote and increase the business thereof."

—Thus apparently holding that the refusal to find the above facts was not reversible error. A failure to find those facts of which the court máy take judicial notice not only is not error, but the finding thereof would be an act of superogation, as it is not necessary to inform the court by a finding of fact of those things which it is presumed to know.

We might very well have dismissed the appeal in this case because of the failure of the appellants to comply with the repeated decisions of the court in regard to the manner in which the findings of fact are to be prepared and presented in the record. All the facts found are not contained in the decision of the court, as required by the general rules of the court and manifestly by the provisions of the Code. The judgment should be affirmed, with costs.

Follett, J., concurs, Parker, J., concurs in result.


text:
    Maud E. Slaven Depierris, App’lt, v. Ellen A. Slaven, as Executrix, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 15, 1894.)

    1. Former adjudication—Another action pending.
    The pendency, in supreme court, of an action for an accounting precludes a proceeding in surrogate’s court for same purpose.
    2. Surrogate—Application.
    A surrogate is not obliged .to entertain an application of a party upon Ms oath that he is interested in the matter.
    Appeal from a decree dismissing a proceeding for compelling an executor to settle accounts.

      A. H. Holmes, for app’lt; A. H. Joline, for resp’t.
   Van Brunt, P. J.

We see no reason for interfering with the conclusion arrived at by the surrogate. There were two grounds upon which his decision seems to have rested: First, that the appellant was not a party in interest; second, that, having commenced an action in the supreme court for an accounting she would not be allowed to maintain an independent proceeding in the surrogate’s court.

It is urged upon the part of the appellant that, she having sworn that she was a party in interest, the surrogate had no discretion, and, as the supreme court may not entertain the action for the accounting, the surrogate erred in dismissing the proceeding before him. We are not aware that it has yet been established that because a party swears that he has an interest, and the papers, upon their face, show that he has not, the surrogate is bound to entertain any application by such party. The interest of the appellant can only be established by a successful maintenance of her suit in. the supreme court, and it seems to be time enough for the consideration of the question of accounting when she has established an interest, which, upon the record, apparently does not exist. Furthermore, the appellant has chosen her forum; and, having filed a bill in the supreme court for an accounting, there is no reason why she should have an independent proceeding. If the court should refuse to entertain that branch of her action which pertains to the accounting, it will be time enough then, in case the court shall decide that she has an interest, for the appellant to pursue her remedies in the surrogate’s court. The order should be affirmed, with costs. All concur.