text:
    William M. Bell, Resp’t, v. W. Ward Spencer, App’lt.
   Judgment of the county court affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Porter Holden, Resp’t, v. Daniel Staring et al., App’lts.
    Appeal from a judgment and order denying motion for a new trial. Action for false imprisonment and malicious prosecution. Tried at the Jefferson circuit and verdict rendered for the plaintiff.

      E. B. Brown, for app’lts; Thompson & Chapman, for resp’t.
   Per Curiam.

Upon the trial the defendants requested the court to hold that no cause of action for malicious prosecution was established, and the court refused so to hold and the defendants excepted. We think this exception was well taken. There was no sufficient proof of want of probable cause to maintain the action for malicious prosecution; therefore, a new trial should be ordered.

Judgment and order reversed and a new trial ordered, with costs to abide the event.


author: Daly, Ch. J.

text:
    New York Common Pleas—General Term.
    Filed December 5, 1892.
    The People v. John Carroll and William Corrigan.
   Daly, Ch. J.

Notice of this application has not been given to the district attorney, as required by rule 13 of this court. The application may be renewed upon such notice and with proof by certificate from the proper office of the marriage of the prisoner and the complainant.

Bischoff and Pryor, JJ., concur.


author: Bischoff. J.

text:
    The People v. Henry Cohen, principal, and Josephine Heinrich, surety.
    Application for remission of forfeited recognizance, etc.
   Bischoff. J.

The certificate of the district attorney fails to show that the expenses incurred in recapture, and the enforcement of the forfeiture, have been paid. People v. Lasher, 34 St. Rep., 624. Upon filing a certificate meeting above requirements, or to the effect that there were no such captures, this, application should be granted.

Daly, Ch. J., and Pryor, J., concur.


author: Bischoff, J.

text:
    Elmira Fulton, Resp’t, v. The Metropolitan Life Ins. Co., App’lt.
    Motion for leave to appeal to the court of appeals.

      A. I. Sire, for resp’t; Arnour, Ritch & Woodford, for app’lts.
   Bischoff, J.

No sufficient ground is assigned in support of this motion. Reference to the opinions, 47 St. Rep., 111, disclose that no novel question of law was involved in the appeal, which is our only justification for adding to the seriously lengthened calendar of the court of last r. sort. Hence the leave asked for, if granted, could result only in vexatious delay and expense to the respondent. Motion denied, with ten dollars costs.

Daly, Ch. J., and Pryor, J., concur.


text:
    Pasqual Antonio Riche, Resp’t, v. Lawrence Martin, App’lt.
    Defendant’s motion for leave to appeal to the court of appeals.

      A. J. Rose, for motion; A. C. Astarita, opposed.
   Bischoff, J.

In view of the fact that plaintiff’s recovery is substantially the sum which defendant conceded to be due him on the trial, this motion seems to be without merit.

Motion denied, with ten dollars costs.

Daly, Ch. J., and Pryor, J., concur.


text:
    The People v. Jennie Cohen and Harris Samuelson.
    Application for remission of forfeited recognizance, etc.
   Bischoff, J.

Upon filing the district attorney’s certificate to the effect that the expenses incurred in the apprehension or recapture of the accused, and the costs and expenses incurred in the enforcement of the forfeiture, have been paid, or that there were no such costs or expenses, this application should be granted. The certificate annexed to the petition is deficient in the respect mentioned. People v. Lasher, 34 St. Rep., 624.

Daly, Ch. J., and Pryor, J., concur.


text:
    The People v. David Hurwitz and Rebecca Hurwitz.
   Per Curiam.

The papers present a clear case for remission of the forfeiture and cancellation of the judgment.

So ordered.


text:
    Filed January 3, 1893.
    Irene Barreau, App’lt, v. James L. Hutchinson, Resp’t.
    Motion for reargument of appeal decided June 30, 1892.
    See 46 St. Rep., 965.
   Per Curiam.

The vice of appellant’s contention is that it assumes the letter of September 10th, addressed by defendant’s wife to plaintiff, to be an unequivocal and absolute repudiation of the contract of employment, whereas the justice below apparently construed it to have been no more than a proposition that plaintiff consent to a modification of the terms of the contract theretofore made; and as in our opinion the letter is susceptible of the latter construction, it necessarily follows that appellant has not sustained the burden of showing error for which the judgment appealed from must be reversed.

Motion for reargument denied, with ten dollars costs,

Daly, Ch. J., Bischoff and Pryor, JJ., concur.


text:
    Filed January 16, 1893.
    The American Artistic Gold Stamping Co. v. The Glens Falls Ins. Co.
    Motion for leave to appeal to the court of appeals.
   Motion denied, with ten dollars costs.


text:
    The People v. John Carroll and Wm. Corrigan.
    Motion to vacate judgment entered on a forfeited recognizance.
   Motion granted.


text:
    The People v. Gussie Brown and David Manus.
   Motion to vacate judgment entered on a forfeited recognizance. Motion granted.


text:
    In the Matter of the Application of The American Surety Co.
   Application of the American Surety Company of New York for a rule or order respecting the approval of bonds and -undertakings guaranteed or executed by said company, and for a modification of the order of the general • term of this court of May 2, 1892.

Application granted.


text:
    The People v. James Hassan and Joseph Finnerty.
   Motion to discharge judgment entered on a forfeited recognizance.

The defects noted at the November general term having been supplied on this application, and as it now appears that the People have suffered no damage, the application will be granted. '


text:
    William Riley et al. v. Alexander G. Black.
   Motion for leave to appeal to the court of appeals.

Motion denied, with ten dollars costs.


text:
    George W. Wilson v. The Manhattan R. Co.
   Motion for leave to go to the court of appeals.

Motion granted.


text:
    Gordon Cunard v. The Manhattan Railway Co.
   Motion for reargument. Motion denied, with ten dollars costs.


text:
    John Van Tassel v. The New York Lake Erie & Western R. R. Co.
   Motion for reargument denied, with ten dollars costs.


text:
    The People v. Solomon Wolff and Isaac Goldstein.
   Motion to vacate judgment entered on a forfeited recognizance. Motion granted.


text:
    Leopold Manheim v. Moritz Lowenthal.
   Motion for restitution. Motion denied, with ten dollars costs to abide the event.


author: Dugro, J.

text:
    New York Superior Court—General Term.
    Filed December 5, 1892.
    Frederick L. Degener, Resp’t, v. John T. Underwood et al., Appl’ts.
   Dugro, J.

The order granting an extra allowance is affirmed, with ten dollars costs.

Freedman and Glldersleeve, JJ., concur.


author: Dugro, J

text:
    Frederick L. Degener, Resp’t, v. John T. Underwood et al., Appl’ts.
   Dugro, J

The order denying a motion to re-tax is affirmed, with ten dollars costs.

Gildersleeve, J., concurs.


author: Ehrlich, C. J.

text:
    City Court of New York—General Term.
    Filed November 25, 1892.
    Sarah McHugh, Executrix, Resp’t, v. Jules Astrophe, Executor, App’lt.
   Ehrlich, C. J.

On the opinion filed this day upon deciding the appeal from the order of Judge Fitzsimons, the order appealed from will be reversed, without costs.

Fitzsimons and Newburger, JJ., concur.


author: Newburger, J.

text:
    Mary Walsh, Resp’t, v. William V. White, App’lt.
   Newburger, J.

Order appealed from affirmed, with costs.

Fitzsimons, J., concurs.


text:
    Oliver J. Wells, Resp’t, v. Frank B. Genin, App’lt.
   Newburger, J.

This is an appeal from a judgment entered upon the verdict of a jury.

The case was properly submitted to the jury, and as there are no exceptions in the case that deserve serious consideration, the judgment appealed from must be affirmed, with costs.

Fitzsimons, J., concurs.


text:
    Arthur Robbins and Frank W. Robbins, Resp’ts, v. Simon Arend, Julius Lipman and Moses Kind, App’lts.
    Appeal from judgment in favor of plaintiffs.

      Phillips & Avery, for resp’ts; Charles E. L. Jelliffe, for app’lts.
   Newburger, J.

This is an appeal from a judgment in favor of plaintiffs, in an action to foreclose a mechanic’s lien.

Plaintiffs had one John W. Hutton, who furnished hardware for the buildings against which the plaintiffs’ lien was filed.

The premises were sold under a mortgage foreclosure, at public auction, and purchased by defendant Arend. All of plaintiffs’ materials were delivered subsequent to said sale, and were used in the building.

From an examination of the record, there appears to have been no error committed by the trill justice.

The judgment against the defendants personally is proper and in accordance with the practice, they having executed a bond for the discharge of the mechanic’s lien, which bond had been approved by a justice of the court of common pleas.

For these reasons, the judgment appealed from must be affirmed, with costs.

Ehrlich, Oh. J., concurs.


text:
    Emma Mittelstadt, Resp’t, v. Henry Wulfers, App’lt.
    Appeal from judgment in favor of plaintiff.

      TenEyck & Remington, for resp’t; Culver & Anthony, for app’lt.
   Newburger, J.

This action is brought to recover rent for two months under a lease.

The defendant entered into possession of the premises and paid the rent for four months, but refused to pay the last two months of the term, on the ground that the premises became untenantable, and unfit for occupation, by reason of the removal of the roof, and other alterations to the building.

The lease provided that the plaintiff might enter tbe premises for the purpose of making repairs to the roof, and alterations to the premises, and that defendant would make no claim for damages by reason of any alteration.

From an examination of the record, it appears that no error was committed during the trial of this action. The trial justice was justified in directing a verdict for the plaintiff.

For these reasons the judgment appealed from must be affirmed, with costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.


author: Fitzsimons, J. Newburger, J.,

text:
    Bernard Kat et al., App’lts, v. Catharine Atfield, Adm’rx, Resp’t.
    Appeal from, order denying motion for a new trial.

      Henry Daily, Jr., for app’lts; Edward W. S. Johnson, for resp’t.
   Fitzsimons, J.

In the event of the payment by appellants’ counsel of the costs imposed by the order of Mr. Justice McCarthy and the general term reversing said order, I think that the interests of justice require that a new trial should be had herein.

It appears that the plaintiff diligently searched for and was unable to find the delivery receipts alleged to have been signed by Atfield until after the trial.

This is, in a sense, newly discovered evidence, particularly under the circumstances of this case; the same thing may be said of witnesses whose testimony plaintiff was unable to procure at the trial.

The fact that they refuse to make affidavits setting forth their knowledge is shown, and, therefore, it is impossible to submit them because they refuse to make the same under such circumstances.

It would be unjust to deny a new trial for the reason that such affidavits are not submitted to us.

We do not believe that the appellants suffered any surprise at the trial, except such as is usually experienced by counsel and their clients upon the rendition of an adverse verdict.

Order appealed from reversed upon condition that the general term costs, and all motion costs imposed and still unpaid, be paid within five days after entry of order herein.

If these conditions are not satisfactory and not complied with, then said order is affirmed, with costs.

Ehrlich, Ch. J., concurs in result.

Newburger, J.,

(dissenting).—I cannot concur with my associates in the conclusion they arrived at.

This court has heretofore determined, Whitney v. Saxe, 18 St. Rep., 1020, that a new trial will not be granted unless the new evidence has come to the knowledge of the applicant since the trial, and that it was not owing to the want of due diligence'that it was not sooner discovered.

An examination of the record clearly shows that the plaintiff has not brought himself within the rule laid down in the foregoing case.

The order appealed from should be affirmed, with costs.

Order reversed.


author: Fitzsimons, J.

text:
    Filed December 22, 1892.
    Ebenezer T. Baker, App’lt, v. D. Edgar Codding and Osmond H. Atwood, Resp’ts.
   Fitzsimons, J.

The two orders appealed from must be affirmed. Upon issuing the execution herein, defendants thereunder required only the collection of the amount of $213.12, not $217.49, as taxed in the judgment roll. This practice is correct. Section 3264, Code.

The orders of August 1st and August 15th, appealed from, are each one affirmed, with costs.

Ehrlich, Ch. J., concurs.


author: Ehrlich, Ch. J.

text:
    John H. Rieger et al., Resp’ts, v. William J. Swan, App’lt.
    Appeal from judgment entered on verdict in favor of plaintiffs.

      W. S. Severance, for app’lt; Palmer & Boothby, for resp’ts.
   Ehrlich, Ch. J.

The action was upon a special agreement, whereby the defendants agreed, in consideration of an introduction given by the plaintiff, that they would divide with the plaintiff the sum to be received by them upon a transaction growing out of such introduction.

The contract was satisfactorily proved, and the jury awarded the plaintiff a verdict for the amount which the parties had agreed upon.

But the defendant claims that the verdict is against the weight of evidence.

In this he is mistaken, the verdict in no manner indicates bias or prejudice, and no doubt recordsthe conviction of a disinterested jury, on conflicting facts. It should not be disturbed.

The exceptions taken by the defendants are without merit.

The one at folio 118 to that portion of the charge which the judge qualified, is unavailing.

In respect to this, the trial judge said, that the burden of proof was not on the defendants. . «

This was consistent with what he said in another portion, wherein he told them that the burden of proving the contract was upon the plaintiffs, who were bound to establish its existence by a preponderance of evidence.

There is no merit in the appeal, and the judgment and order appealed from must be affirmed, with costs.

Fitzsimons, J., concurs.


text:
    The Bradley Fertilizer Company, Resp’t, v. The South Publishing Company, App’lt.
    Appeal from judgment in favor of plaintiff.

      George Walton Green, for resp’t; Herbert H. Gibbs, for app’lt.
   Newburger, J.

There are but two questions raised on this appeal:

Hirst. Did the defendant at the time of the sale and delivery of the goods by plaintiff exist as a corporation; and, second, were both parties foreign corporations.

The first question was properly submitted to the jury by the trial justice, and no exception thereto was taken.

As to the second question, the evidence clearly shows the defendant transacted its business with plaintiff in the city of New York, and, therefore, the trial justice properly denied the motion for a nonsuit.

There are no exceptions in the case that will warrant us in disturbing the judgment.

Judgment affirmed, with costs.

Ehrlich, Oh. J., concurs.


text:
    Philip Duffy, Resp’t. v. Joseph Archer et al., App’lts.
    Appeal from judgment in favor of plaintiff.

      Charles De Hart Brown, for resp’t; Thornton, Earle & Kiendls, for app’lts.
   Newburger, J.

This action was brought to recover a balance due upon a contract to excavate a rock upon certain premises in this city.

The answer admitted the contract, but denied that the plaintiff had excavated the number of yards claimed in the complaint.

A careful examination of the appeal book fails to disclose any error on the part of tile trial justice in the admission or exclusion of testimony, and as there are no questions raised by the learned counsel for the appellant, the judgment must be affirmed, with costs.

Ehrlich, Ch. J., and Fitzsimons, J., concur.


author: Brady, P. J.

text:
    Joseph Cornell, respondent, v. James Eagan, administrator, etc., appellant.

      (Supreme Court, General Term, First Department,

      Filed October 15th, 1886.)
    1. PrINCTPAL AND SURETY — LIABILITY — Surety ENTITLED TO ALL THE BENEFITS OF CONTRACT GUARANTEED CHARTER-PARTY.
    One K. and tlie plaintiff entered into a charter-party by which K. secured a steamboat from July to October 1S79, for $9000 to be paid in sis certain payments of $1500 each. On the same day C. (defendant’s intestate) agreed to make good any loss or damage of the plaintiffs for the non-performance of the contract on the part of K. K. paid the first three installments, and when the fourth became due induced C. to give his note for the fourth and fifth, at which time K. gave C. $ 900. Afterwards, K. duly assigned the proceeds of the contact and earnings of the boat for the future to the plaintiff to secure the payment of the three last installments (two of them being covered by the note of C.) K. consented that L. an employee of plaintiff, should take the boat. L. received as earnings of the boat, after paying the expenses, over $5000, being more than the amount of the last three installments. In a suit brought to recover the amount of the note from C. the maker. Held, that C. as surety, was entitled to all the benefits resulting from the use of the charter-party, so that even if the signing of the note was an independent transaction founded upon an independent consideration he was not liable.
    2. Same — Contract of surety is strictissimi juris.
    The defendant, by reason of the change in the relations between plaintiffs and K., for the performance of which Coleman was surety and gave the note, was discharged upon the ground that his contract was strictissimi juris and the obligation made by him could not be extended to any other subject, to any other person, or to any other period of time than that expressed or necessarily included in it. It was not a question whether he was harmed by the change to which he had not consented.
    Appeal from judgment entered against James A. Coleman, deceased, upon the report of a referee.

      E. II. Bonn, for app’lt.; A. II. II Dawson, for resp’dt.
   Brady, P. J.

The action was brought upon a promissory note given by the intestate under the following circumstances : — On the 20th of June, 1879, one Peter Kennedy and the plaintiff entered into a charter party by which the former secured a steamboat wbicb was to be run in and around the harbor of New York from July 4th, 1879, to October 4th, 1879, and for which he was to pay $9000 in six payments of $1500 each, payable July 14th ana 24th, August 3rd, 13th and 23rd, and September 2nd. On the same day Coleman made an agreement by which he undertook, for 90 days from July 5th, 1879, to make good any loss or damage of the plaintiffs for the non-performance of the contract on the part of Kennedy. It appears that Kennedy took possession of the boat and continued in possession until the 29th of August. The first, second and third installments were paid. On the 13th of August the 4th installment of $1500 became due. Kennedy had not sufficient money to pay it and induced the defendant Coleman to give his note for $3000 to cover that instalment and the one which would become due on the 23rd of August. When the note was given $900 was paid by Kennedy to Coleman. The referee has found that there could be no doubt that that was an incident of the transaction in which the note was given. About the 29th of August, by an assignment duly acknowledged, Kennedy assigned the proceeds of the contract .and earnings of the boat for the future to the plaintiff to secure the payment of $4500, the three installments payable by the .agreement on the 13th and 23rd of August and the 2nd of September, and for two of which, as we have seen, the note in this .action was given. Kennedy consented that one Lewis, an employee of the plaintiff, should take possession of the boat and 'receive the earnings. Such possession was given by the plaintiff .and Kennedy to Lewis, and the plaintiff by Lewis ran the boat thereafter. ^

The defendant insists that, by reason of the change in the relations between plaintiffs and Kennedy, for the performance of which Coleman was surety and gave the note, he was discharged .upon the ground that his contract was strictissimi juris ; and the obligation so made by him could not be extended to any other .subject, to any other person or to any other period of time than that expressed or necessarily included in it, a doctrine which is laid down by Burge in his work on Suretyship, and cited with {approval in Barnes v. Barrow (61 N. Y. 42), in which it was said: a surety who assumed the burden of a contract without sharing in its benefits had a right to prescribe the exact terms upon which he entered upon its obligations and to insist upon his discharge in case those terms were not observed.” It was not a question whether he was harmed by the change to which he had not consented. He had a right to plant himself upon the technical objection, “that is not my contract.” (And see also Fellows v. Prentiss, 3 Denio 512). There is no doubt that the rule thus asserted is correct. (Mechanics Bank v. Conkling, 90 N. Y. 116; Ward v. Stahl, 81 N. Y. 406). The obligation, however, was not to give the promissory notes ; he was to make up any deficiency in the payments; and the note which he gave, although connected with the subject-matter of his undertaking, was given, not at the request of the plaintiff, but at the request of Kennedy, who paid a portion of the amount, namely, 1900. This might, with great propriety, be regarded as a transaction entirely independent of the charter-party, the note being founded — in part at least — upon a new consideration having been made for the accommodation of Kennedy for the payment of a debt due or to become due. This probably would be considered as an abstract proposition an answer to the attempted application of the rule governing the relations between principal and surety. But a difficulty presents itself, for the reasons that those relations growing out of the agreements already mentioned seem to have been fully investigated before the referee, the plaintiff having put Kennedy on the stand and begun such investigation, and such facts disclosed as warranted the conclusion that sufficient money was realized by the earnings of the boat after her transfer to the plaintiff, to pay the entire indebtedness existing under the charter-party. The first, second and third instalments having being paid, there was due $4500; and the earnings of the boat, according to the testimony of the plaintiff’s witness, Kennedy, were between $5000 and $6000. What the precise state of that account was does not appear; but it would seem from the cross-examination of Kennedy that the amount mentioned was the net earnings of the boat after the payment of the bills for services and other necessaries. These facts having been developed by proper evidence, the referee was requested to find amongst other things, that on the 29th of August, Lewis, who represented the plaintiff, received moneys on the boat, and which became due to lfim for services, between the 29th of August and the 4th of October, and that the same amounted to between $5000 and $6000. This was refused, but for what reason is not stated. It is possible that it was from the suggestion already mentioned, that the transaction with regard to the note was one independent of the charter-party. But there can be no question that if the charter-party was continued, as it seems to have been, even though it was transferred to the plaintiff for Ms protection, the surety, if to be held responsible at all, is entitled to all the benefits resulting from the charter-party in reference to his obligation as such. The record seems to demonstrate the payment of $4500 on account of the charter party, before the note was given; and the subsequent receipt by the plaintiff or Ms agent of a sum of money sufficient to cover the entire amount called for by the charter-party, to wit: $9000. These facts having been established, it needs no citation of cases to sustain the proposition, that the surety is entitled to all the benefits resulting from the use of the contract, so that even if the signing of the note was an independent transaction founded upon an independent consideration, tbe circumstances which induced the note and the introduction of the charter-party, and the evidence bearing upon the results of the charter-party having all been received, the case is to be disposed of according to the whole 'law of the land, and whatever rights spring out of the whole case as disclosed, must be maintained. The fact which the referee was asked to find in reference to the earnings of the boat was therefore material, and the failure to find it Avas an error for which there must be a new trial.

The judgment should be reversed and a new trial ordered, ■with costs to abide events.

Daniels and Macombeb, JJ., concur.


author: Macomber, J.

text:
    People ex rel William J. Haddock et al. v. Artemus S. Cady, Clerk of Arrears, of City of New York.

      (Supreme Court, General Term, First Department,

      Filed October 15th, 1886.)
    Taxes and assessments — Redemption — Kate of interest — New York (City of) Consolidated Act, § 941.
    After the sale of land for taxes and assessments in New York City, the land must be redeemed by the owner, if at all, by the payment of the sums prescribed by section 941 of the Consolidated Act and fourteen per cent, interest, as therein provided.
    Appeal by both relators and the respondent from an order of the Special Term, granting in part, and denying in part, a motion by the relators for a peremptory mandamus. Certain real estate of the relators was assessed for taxes for the years 1877, 1878 and 1879. On the 7th day of May, 1883 (all of said taxes remaining unpaid), the premises were sold by the Clerk of Arrears, to satisfy the same, and were struck off for the sum of $1,438.60, being the amount of the taxes, Avith interest, at seven per cent, per annum, together with the costs of advertising, and that sum was, on May 29th, 1883, received by the Clerk of Arrears from the purchaser.
    The Clerk of Arrears subsequently advertised that the premises had been sold on May 7th, 1883, and gave notice that unless redeemed by the payment, for the use of the purchaser, within two years from the sale, namely, from May 7,1883, of said sum of $1,438.80, with interest at fourteen per cent, per annum, a lease would be delivered to the purchaser. On May 8,1885, no such redemption having been made, the Comptroller, in the name of the Mayor, Aldermen and Commonalty of the City of New York, executed to said purchaser a lease of the premises, but the same has not been delivered, but is retained in the possession of the Clerk of Arrears of Taxes. On the 24th day of December, 1885, the relators tendered to the Clerk of Arrears the amount of taxes imposed for the years 1877, 1878 and 1879, with interest at seven per cent, from the date of the confirmation of the taxes in each year to the date of the tender, which was refused by the Clerk of Arrears. The court below granted a peremptory mandamus to the Clerk of Arrears, commanding him to receive the amount of the purchase money at fourteen per cent, from May 29, 1883, and give a certificate of redemption, and from that order, both parties appeal.

      John 0. Shaw, for the relator; John Townsend Jr. and Mr. Henry Lacombe for the Clerk of Arrears.
   Macomber, J.

The learned Judge, at Special Term, is of the opinion that there is an irreconcilable conflict between sections 918 and 941 of the Consolidated Act, which sections, in a large part, if not wholly, control the decision of this case. Section 941 says, among other things: “ If the person or persons claiming title to said lands or tenements, or some other person, shall not within two years from the date of the before-mentioned certificate, pay to the said Clerk of Arrears for the use of the purchaser or purchasers, his, her or their heirs, executors, administrators or assigns, the sum mentioned in such certificate, together with the interest thereon at the rate of fourteen per cent, per annum from the date of such certificate, the said Comptroller, in the name of the Mayor, Aldermen and Commonalty, at the expiration of the said two years, shall execute to the purchaser or purchasers, his, her or their heirs, executors, administrators or assigns, a lease under the common seal of the city,” etc. Section 918 declares that interest shall, after a certain period, be charged and collected at the rate of “ seven per cent, per annum on all arrears of taxes and assessments returned to the Clerk of Arrears, from the time they become due until paid.”

If, however, we examine the ' several sections of the Consolidated Act in their order, it will be seen that there is in reality no conflict between the sections already referred to, although there is in them much infelicity of expression and arrangement. The policy of this portion of the Consolidated Act seems to be to divide all the several periods in which taxes may be paid, into three parts, and to adjust the rate of interest accordingly as the taxes are paid during the one or 'the other of those periods. Section 917 declares that if the assessment shall remain unpaid for the period of sixty days after the date of entry thereof in the records, it shall he the duty of the officer authorized to collect and receive the amount of such assessment, to charge, collect and receive interest thereon at the rate of seven per cent, per annum, to be collected from the date of such entry to the date of payment. Section 918 follows, the first clause of which might well be attached to section 917, and by it the rate of interest is still stated to be seven per cent, on all arrears of tases and assessments returned to the Clerk of Arrears from the time the taxes became due. It then says that this rate shall apply to the taxes and assessments remaining due and unpaid, for the nonpayment of which the lands and tenements liable therefor shall have been sold since the 10th day of March, 1881, or thereafter, but shall not apply to or affect the rights of purchasers at sales for taxes, before March 16, 1881, or to authorize the redemption of lands for sums less than those collectible for such redemption under the provisions of laws then existing.

Up to this point, voluntary payments, made when due, and without resort to sales of lands, only are contemplated, and the rate of interest is seven per cent. Thence follows section 926, which directs the manner of advertising lands for sale for unpaid taxes, and the manner of the sale, and requires the Clerk of Arrears to give the purchaser a certificate hi writing, describing the lands so purchased, the terms of years for which the same were sold, and the sum paid therefor, and the time when the purchaser will be entitled to a lease thereof. The lands must now be redeemed by the owner, if at all, by the payment of the sum prescribed in section 941, which, as has already been seen, requires the owner, or his representative, to pay the amount of the taxes, with certain expenses and interest, at the rate of fourteen per cent, otherwise a lease of the lands will be given to the purchaser, and the purchaser will be let into possession thereof. Thence follow other provisions relating to the redemption of lands after the lease has been given, and the purchaser let into possession, and the rate of interest, during such period, which, clearly enough, do not have any bearing upon the question now before us, for the reason, first, that the notice to redeem was fatally defective, in that it required redemption to be made within two years from the 7th day of May, 1883, instead of May 29, 1883, as the opinion of the Special Term well demonstrates; and secondly, because the notice to the owner, as prescribed by section 943, had not been given, and hence the time had not arrived when the right to exact 42 per cent, was in the purchaser.

The order of the Special Term should be affirmed, but without costs.

Beady and DANIELS, JJ., concur.


author: Macomber. J.

text:
    Constance B. Price, respondent, v. Stephen Brown, et al., executors of Walter W. Price, deceased, appellants.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)
    1. Evidence — What competent undeb Code Civil Peocedube, § 829.
    Where the complaint alleged that defendant’s testator received from the plaintiff on a certain day the sum of $ 11,500, at par value in United States bonds for safe-keeping, the suit being for the value of said bonds. Held, that plaintiff was a competent witness under Code Civil Procedure, § 829, to state the exact number of bonds which she then possessed.
    2. Bailment — When bailee must pat intebest on money.
    Where money is given to another for safe-keeping, the bailor cannot recover interest unless the bailee has mingled the bailor’s money with his own.
    3. New teial — Efeect of — Amendments.
    An order granting a new trial for the erroneous reception of evidence does not obliterate from the record the amendments to the pleadings which have been properly ordered during the previous stages of the case.
    Appeal from a judgment entered upon tbe verdict of a jury.

      John L. Hill and Geo. S. Starr for resp’dt.; Hughes and Northrop for the appl’ts.
   Macomber. J.

That portion of the complaint which' was the subject of evidence, charges that the defendant’s testator, Walter W. Price, did, on or about the 26th day of March, 1865, receive from the plaintiff the sum of $11,500, at par value in United States Government bonds for safe keeping, and that afterwards and in the year 1869, the said Price loaned of the proceeds' of the money realized upon such bonds, the sum of $5,000, leaving $6,500 of the proceeds in his hands, for none of which did he in his life-time, or have the defendants as his personal representatives, accounted to the plaintiff. Also, that in January, 1871, the plaintiff was the owner of five hundred dollars of par value of the capital stock of the Ocean National Bank of the City of New York, which stock was thereafter sold under the direction of the said Walter W. Price and the proceeds thereof received by him for safe keeping for the plaintiff. There is also an allegation that the testator mingled these funds, as well as those arising from the United States bonds, with his own money and used the same in his business, and never has accounted to the plaintiff therefor. Walter W, Price died June 6th, 1876, and this action was begun in November, 1879.

The plaintiff elects by the complaint to treat each of the foregoing debts as existing upon contract alone, but prays that the executors of the testator may account and pay over to her the said several sums of money. The answer puts in issue these allegations of the complaint.

By the case presented the plaintiff seeks to establish by evidence the fact that at the time stated, she was possessed of the property mentioned, together with fifteen hundred dollars of other like bonds which were in her trunk in her house; and that having missed fifteen hundred dollars of the government bonds an alarm was given and the defendant’s testator came to the house with a policeman and took away the property that was left, namely, the $11.500 of government bonds and the $500 of the stock of the Ocean National Bank, to take care of it for her. The idea that dominates the 'entire argument of the learned counsel for the defendant is, that the evidence which has been adduced in favor of the plaintiff to establish such a state of facts has been given solely by the plaintiff herself, who is, of course, an incompetent witness, under section 829 of the Code of Civil Procedure. It becomes necessary, therefore, to examine the case, as we have done with much care, to see how much depends upon the plaintiff’s testimony and how far the plaintiff’s claim, which seems to be a meritorious one, is made out by other and competent testimony.

The witness James P. Bennett went to the plaintiff’s house in company with the testator, and in the presence of the testator and of the plaintiff the subject-matter of a loss by theft of certain securities was mentioned by all the parties, and that after discussing the bearings of the same, the defendant’s testator took the envelope which appeared to contain a number of bonds, but whether there were five or ten or twenty or more, the witness could not say, and put the same in his pocket and went away in company with the policeman to the police department, where the robbery was stated to the officers and the numbers of the missing bonds given, which were taken down by the clerk, and that the testator caused handbills to be struck off for the purpose of distribution among brokers and dealers, advising them of the theft of the bonds containing these numbers. The book is produced, and the entry which was furnished by the testator to the clerk is as follows: Saturday, March 25th, 1865. On duty, McQuade and Elder; Sunday duty, Brush and McQuade ; Sunday night, Farley and Roach. House Robbery. Miss C. B. Tallón (the plaintiff’s maiden name), 56 Hammond street, had stolen five one hundred 5-20 U. S. bonds, numbers 31, 746, 31, 747, third series ; May, coupons, numbers 27, 275, 27, 274; May 1st, 1862, number 49,-142, second series. While at the house, either the testator or the plaintiff herself stated in the presence of the policeman, that the envelope which had been produced contained the remaining bonds. At the time of the appearance of the testator at the plaintiff’s house, they were engaged to be married and they were in fact married in the following July. It is also shown by other evidence than that of the plaintiff, that in November 1869, the testator told one Archibald of his loan to Mr. Rosselle of $50.000 during which conversation he admitted tliat as late as October 1869, tbe plaintiff bad as mncb as ®1 CLOCK) in money wbicb be bad agreed to loan to Rosselle through him; that outside of tbe bonds in question, she had no property prior to 1869 from wbicb she could reabze so large a sum. There is also evidence that about tbe time of tbe Rosselle transaction, the testator sold some government bonds and also sold tbe stock of tbe Ocean National Bank, from which a faff inference may be drawn that be retained tbe proceeds of each sale. It is true that tbe item for tbe sale of tbe government bonds is not shown to be for tbe identical bonds wbicb were in tbe possession of tbe plaintiff in March, 1866, yet, from tbe likeness and tbe sums realized, it is not difficult to' derive a just inference that tbe sum so passed by tbe bank to tbe testator’s credit was derived from no other source than tbe bonds wbicb formerly belonged to tbe plaintiff herself, provided, however, it can once be shown that she bad that amount in value in ber possession and under ber own control and ownership.

There remains, therefore, only one important fact to be made out in order to establish clearly enough for tbe purpose of an adjudication at law, and that is that tbe testator received from tbe plaintiff all the bonds mentioned in the complaint. There is no testimony in tbe case, outside of tbe plaintiff’s, showing tbe exact amount of bonds wbicb was in tbe trunk and contained in tbe envelope which tbe policeman says be saw tbe testator place in bis pocket. Tbe plaintiff herself is called as a witness, and she alone, from tbe nature of tbe case, is tbe only one of all tbe people called who is able to state tbe exact num ber of bonds which she then possessed, and the question is, whether or not it was, under ' section 829, competent for ber so to state tbe fact. If tbe decision of this case on tbe other bearing (33 Hun. 69) is correct, and we, without hesitation, still adhere to it, there is no rule of evidence which would prevent tbe plaintiff from testifying, as an independent fact, that she bad, at the time stated, in ber possession tbe bonds in ques tion. Upon tbe other trial, tbe court, per Davis P. J. says : It was sought to prove that $11,500 of United States bonds belonging to tbe plaintiff were, on tbe morning of tbe 25th of March, 1865, delivered from ber possession into the possession of tbe defendant’s testator. Tiffs was done by showing that, on tbe morning of that day, those bonds were in ber possession in ber trunk in ber room, and that a portion of ber bonds were on that morning discovered by ber to have been stolen. So far, tbe testimony was entirely competent.

We have, then, in this case, sufficient legal evidence to warrant tbe jury, under tbe careful instructions wbicb were given them by tbe court, to adduce tbe conclusion that there was in tbe envelope on tbe morning of tbe 25th of March, 1865, this amount of bonds, and that tbe defendant’s testator took them away with him under circumstances showing that it was done for the safe keeping of the bonds, with the full consent of the plaintiff. The only evidence given by the plaintiff which was submitted to the jury, relates solely to an independent isolated fact of the amount of property which she herself possessed at the time named.

It is true this plaintiff was permitted to give testimony also to the effect that the defendant’s testator came to her home on the morning of the 25th of March, with a policeman. This evidence, however, was subsequently struck out by the court upon the motion of the plaintiff’s counsel, and the jury was particularly cautioned at the close of the charge of the court to disregard it. Ordinarily it would be reprehensible practice to permit a party to give evidence before a jury that was incompetent under the statute, and then, after getting the benefit of it, undertake to deprive the opposite party of an exception in the case by striking it out of the record; yet this question is often an embarrassing one to decide, inasmuch as the decisions upon it are very numerous, and not altogether reconcilable one with the other. The better opinion, perhaps, would be, that to permit a party to say that the deceased came to her home is admitting evidence of a personal transaction. In this case, however, inasmuch as that part of her testimony was merely cumulative, and the fact of the testator’s appearance at her house did not depend upon her testimony in the least (for it is established by the testimony of the detective), Ave think no harm was done by the reception of the testimony and its final rejection.

It is further urged by the counsel for the defendants that the plaintiff was not entitled to recover interest. The jury was instructed upon that subject that interest did not follow as a matter of course and of right, and that no interest could be recovered unless the defendant’s testator had mingled the plaintiff’s property Avith his OAvn, and that the amount of the interest upon the bonds was limited to the value of the coupons, up to the time of their payment. This was a correct statement of the rule, and by it the defendants could not have been in any way prejudiced.

When the case was pending for the first trial before the referee, upon application, the plaintiff was allowed to amend her complaint in certain particulars. This was done against the objection of the defendants. The amended complaint was prepared and served in a regular way, and the defendant’s ansAver was subsequently served to it. Upon this trial before the jury, the defendant’s counsel asked the court to rule and hold that the trial must proceed upon the original complaint, which the court, very properly as we think, declined to do. There is no warrant of authority to hold that an order granting a neAV trial for the erroneous reception of evidence obliterates from the record all tbe amendments wbicb bad been properly ordered during tbe previous stages of tbe case. Tbe question of tbe propriety of tbe amendment, when made upon tbe trial, may be always raised upon tbe appeal from tbe judgment. Tbat question was not considered at tbe former bearing wben it was before tbis court, but we say now tbat tbe granting of the amendment rested in tbe discretion of tbe referee, and tbat such discretion was fairly and properly exercised.

We have examined tbe numerous requests to charge tbe jury made by counsel for tbe defendants, and think tbat their exceptions to tbe refusal of the court to charge in many respects as requested are not well taken. Tbe court ruled tbat no recovery could be bad unless the jury could find from tbe evidence wbicb was submitted to them, that at the time tbe defendant’s testator received tbe bonds, be received them under such circumstances as showed tbat be was to keep them for tbe plaintiff, and tbe learned judge was so pressed by tbe requests of tbe defendant, tbat be went quite beyond what tbe rule would require him to do, and actually instructed the jury tbat they must find tbat tbis evidence made out such a case beyond a reasonable doubt. Certainly tbe defendants could ask no more than tbat, and while we cannot say tbat is tbe correct statement of tbe rule, we do say tbat under tbe facts appearing in tbis case, tbe defendants’ counsel are not in position to complain of it. . Tbe learned judge does say in bis charge: “ I am of tbe opinion tbat there is enough in this case, in tbe facts before you and tbe presumptions, taking into consideration tbe relation of tbe parties, to justify you m coming to tbe conclusion tbat a trust relation did exist between them, and that Price held tbis property in trust for the plaintiff.” We do not think tbat tbis is such an expression of an opinion upon the facts as to prejudice tbe defendants in any respect; it is no more than tbe statement wbicb was doubtless also made in rendering bis decision upon tbe motion for a non-suit, tbat there was sufficient evidence in tbe case to require him to submit tbe case to tbe jury. If there bad not been, in his judgment, sufficient evidence to warrant them to find tbat tbe property was so held in trust for tbe plaintiff, it would have been bis duty to set tbe verdict aside. Tbe case was sharply tried upon one issue, and was fairly presented to tbe jury upon tbat issue alone, namely, whether or not tbe trust existed on tbe part of tbe defendants’ testator to keep tbis property safely, and such being tbe case, no question of tbe statute of limitations could arise, as the cause of action did not accrue until demand was made, and tbe only demand that was made was upon tbe defendants as tbe executors of the testator. (Ganley v. Troy City National Bank, 98 N. Y. 487.)

We think tbe judgment should be affirmed with costs.

Beady and DaNibls, JJ., concur.


author: Daniels, J.

text:
    Matter of George W. McLean, Receiver of Taxes, respondent, v. John H. Jephson, appellant.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)
    Taxes and Assessments — Personal Tax against non-resident under Laws 1855, chap. 31 — What facts give assbssobs jurisdiction to assess — When theib determination cannot be attacked in a COLLATERAL PEOCEEDING.
    A tax amounting to $112.50 was assessed against tlie defendant for personal property. The assessors proceeded upon the facts that defendant was a non-resident, and that the goods were in possession of the defendant at a place of business under his charge in the city of New York. Held, that these facts undisputed were sufficient to sustain the assessment under Laws 1855, chapter 31, and gave the assessors jurisdiction to make the assessment. That it was too late in proceedings to collect the tax after the assessment was confirmed to present proof showing that the goods were not his and that he had charge of the warehouse as agent of a manufacturing company.
    Appeal from an order directing tbe commitment of the appellant to prison, there to remain until he should pay the amount imposed upon him as a personal tax.

      Douglas & Minton, for appellant; John J. Townsend, Jr., for respondent.
   Daniels, J.

The tax, amounting to the sum of $112.50, was assessed against the appellant for personal property, under the authority of Sec. 1, Chap. 37, of the Laws of 1855. The proceedings for the assessment and confirmation of the tax appear to have been regularly taken and carried on until they were consummated by a confirmation, rendering the payment of the tax obligatory upon the appellant, if jurisdiction was acquired by the assessors and the other officers before whom they were taken. The appellant denied this jurisdiction upon an affidavit made in the first instance by way of answer to the proceedings taken for his punishment. In this affidavit it was shown that he was a stockholder in, and vice-president of a manufacturing corporation, created and existing under the laws of the State of New Jersey, whose fabrics were deposited for sale in a ware-room in the City of New York, of which he had charge, as the agent of the company. If these facts had been proven before the assessors, or the other officers empowered to - hear and consider them, it is possible that the tax could not have been imposed upon himself. But they were not, and the officers proceeded upon the facts evident to them, that the fabrics were in the possession of the appellant, at a place of business under his charge in the City of New York. From these facts, it could be inferred that he was the owner and the person engaged in carrying on the business. And the inference which could be deduced and supported in this manner, was sufficient to render him amenable to taxation upon the personal property in his possession, under the Act referred to, as long as he was, in fact, a resident of the State of New Jersey. Undisputed, these facts sustain the proceedings which were taken to assess and impose the tax, and they accordingly gaye the officers jurisdiction oyer the appellant for this purpose, under the language of the statute. And having that jurisdiction, and complying, as they did, with the requirements of the law, in the proceedings which were taken, they became conclusive against the appellant when assailed in the manner in which it was proposed to affect them by the affidavit read on the hearing of the motion. What should have been done by him if he designed to object to the legality of the tax, was to have presented proof of the facts mentioned in his affidavit to the assessors themselves or the Board of Aider-men before the confirmation of the assessment. And when he failed to do that he deprived himself of the right to object to the legality of the assessment and the tax, by afterwards making and presenting this proof. The proceedings were in the nature of a judgment recovered against him upon proof, warranting the action and decision of the taxing authorities. And after its determination its effect could not be overcome or removed by the proof upon which the appellant relied as an answer to the. motion. The order for these reasons was right, and it should be affirmed, with ten dollars costs and also disbursements.

Macombee and Beady, JJ., concur.


author: Churchill, J.

text:
    Thomas Canary, respondent, v. Edwin Knowles and Theodore Morris, appellants.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)
    1. Practice — Appeal — When a party waives ms right to appeal FROM ORDER.
    The plaintiff procured an order of injunction forbidding defendants to do certain things and requiring them to show cause on a day named why the injunction should not be made permanent. And on the return of the order to show cause an order was made making the injunction permanent, hut with a proviso that upon the service of a certain stipulation upon the plaintiff’s attorney, the injunction should stand dissolved.- The stipulation required by the order was duly made and served, but was endorsed with a notice to the effect that it was served in pursuance to the aforesaid order but under protest and is not to be considered as constituting assent by defendants to such order or any waiver of the defendant’s right to appeal therefrom. Held, that by serving the stipulation and accepting the benefit conferred by the order, the defendants’ rigb t to appeal from the order was waived. (Following Chopin v. Foster 33, Alb. L. J. 33). That the service of the protest by defendant, did not prevent their action from operating as a waiver of their right to appeal. (Following Dambmann v. Schultina, 6 Hun. 29).
    Appeal from order confirming injunction during pendency of action.

      Hirsh, & Rasquin, attorneys for appl’ts; Greorge W. Wingate, of counsel. W. Bourke Cochran, for resp’ts.
   Churchill, J.

December 10th, 1885, plaintiff procured an order of injunction, forbidding defendants to allow any person, other than the plaintiff, to occupy for dramatic purposes the building known as the “ Grand Opera House,” in the City of Brooklyn, during the week commencing December 21st, 1885, or until the further order of the Court; and also ordering the defendants to refrain from interfering in any manner with the right of the plaintiff to occupy the same during that week.

The order further required the defendants -to show cause at a Special Term, to be held at Chambers, in New York, December 19th, 1885, why the injunction should not be continued during the pendency of the action. On the 19th, cause was shown, and an order made by the Court, continuing and making permanent the injunction, but with the following proviso added: “ Provided, however, that in case the defendants shall serve a written stipulation, that the damages to be recovered by the plaintiff in this action (in case he shall be decreed to be entitled to recover damages from the defendants therein) will be two thousand ($2000) dollars, less the expenses of the salaries of the company for the week in question, which the plaintiff will not be bound to pay; that upon the service of such stipulation, signed.by the defendants’ attorneys, upon the plaintiff’s attorney, the injunction hereby granted shall thereupon stand dissolved.”

December 21st, the defendants executed and served the stipulation called for by the proviso, and the injunction was thereupon dissolved. Endorsed upon the stipulation as served, was the following notice

“ Please take notice, that the within stipulation is made and served in pursuance of the injunction order of the 19th inst., and that the same is made and served under protest, and is not to be considered as constituting our assent to such order or any waiver of the defendants’ right to appeal therefrom. Dated December 21st, 1885.
Hirsh & RasquiN,
Attorneys for defendants.
To W. Bourse Cochrah, Esq.,' •
Attorney for plaintiff.

December 22nd, the defendants appealed from the order of December 19, and every part of it to the General Term.

The proviso of the order was a favor to the defendants. It put within their power to obtain, what, in showing cause, they were seeking to obtain, i. e., a dissolution of the injunction. They availed themselves of the proviso and thereby obtained such dissolution.

This action on their part was inconsistent with, and a waiver of their right to appeal from the order. Smith v. Rathbun, 75 N. Y. 122; Baylies on New Trials and Appeals, 19 et seq., and cases cited. 4 Waits Pr. 216.

It cannot be said that the defendants acted under duress in serving the stipulation. Had the proviso been omitted, their only remedy would have been an appeal from the order. This remedy was equally open to them, the proviso being added. Chapin v. Foster (N. Y. Court of Appeals), 33 Alb. L. J. 33.

The case just cited recognizes the rule “ that a party who has availed himself of provisions in his favor contained in an order, has thereby waived the right to appeal from other provisions therein which are adverse to him.

The defendants in acting upon the proviso, and serving the stipulation made the plaintiff’s' situation less favorable than it was when the order appealed from was made, since by their action the injunction was dissolved, and they could not after that insist upon their right of appeal. Grunberg v. Blumenthal, 66 How. 62.

The protest served did not prevent the defendants’ action operating as a waiver of their right to appeal. Dambmann v. Schulting, 6 Hun. 29.

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

DANIELS and Beady JJ., concur.


author: DANIELS, J.

text:
    Elizabeth Carter, appellant, v. Peter Bowe, Sheriff, etc. et al., respondents.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)
    1. Sheriff — Liability of — When judgment in actioN against bondsmen on undertaking a bar.
    This was an action brought to recover the value of certain goods, mortgaged and assigned to the plaintiff, which were seized under executions issued upon judgments recovered against the mortgagor, and by way of defense it was claimed that the property in fact belonged to him. The mortgages were duly filed. As to a portion of the property seized and sold, a preceding action resulted in favor of the defendants therein, who were the parties to a bond given to the Sheriff to indemnify him for the seizure and sale under the execution. Held, that as to such property, that judgment was a bar to this action against the Sheriff, but was inoperative as to the residue.
    2. Pleading — What allegations necessary in answer to admit EVIDENCE OF FRAUD.
    It was not necessary for the defendant to allege in his answer that the mortgages were fraudulent, in order to be permitted to put in proof of that fact, it was only necessary to allege the property to be that of the judgment debtor, and any evidence legally pertinent to prove that fact was ad- , missible under the answer.

      3. EVIDENCE — MEMORANDUM — WHEN WITNESS CAN REFRESH MEMORY BY REFERRING TO.
    Where liberty was refused a witness to look at a memorandum to refresh his recollection as to articles left at the stores of one of plaintiff’s assignors, on the ground that the memorandum had not been identified. Held, error, that the plaintiff had the right to have the memorandum consulted by the witness, and to the testimony he might give after referring to' it.
    4. Same — Testimony taken on supplemental proceedings, not admissible when.
    Where the defendants were permitted, against objection, to prove what the mortgagor had testified to in supplemental proceedings carried on against him, and to which the plaintiff herein was in no sense a party, such statements were not proved to contradict denials made concerning them, but as substantive evidence in the case tending to defeat the plaintiff’s title. Held, error.
    Appeal from a judgment recovered on tbe verdict of a jury, and from an order denying a motion for a new trial, and an order making an additional allowance of costs in the sum of $2,000.

      Greorge P. Avery, for appl’ts.; Charles F. MacLean, for res’pt.
   DANIELS, J.

The action was to recover the value of goods contained in stores leased to Wellington A. Carter and mortgaged in part to his wife and in part to Josephine S. Clason, and assigned by her to his wife, who is the plaintiff in the action. She also claimed to recover for other property asserted to have belonged to individuals assigning the same to her, after the taking and appropriation of it by the defendants. This property was all seized under executions issued upon judgments recovered against the mortgagor, and by way of defence it was claimed that the property in fact belonged to him. The two mortgages were filed, as that was required to he done by the statute, but the evidence tended to show that the mortgagor remained in the possession of the stores. That fact, however, was controverted by evidence on behalf of the plaintiff to the effect that it was under the charge and superintendence of a person acting for her in the stores. As to a portion of the property seized and sold, a preceding action was brought and tried in the second district. Upon that trial a verdict was recovered by the defendants in the suit, who were the parties to a bond given to the sheriff to indemnify Mm for the seizure and sale of the property under the execution. As to such property the court held the judgment to be a bar to this action against the sheriff and his deputies. And to that extent the ruling appears to have’ been correct. For a recovery in this action for the same property against the sheriff, if that could have been had, would 'have entitled him to maintain an action for indemnityupon the bond against the defendants in that suit, and in that manner deprive them of the effect of the judgment which had been recovered in their favor for the same taking. And to avoid that result tbe sheriff was entitled to rely upon, tbe judgment for bis protection, wbieb bad been recovered in favor of these bondsmen. But as to tbe residue of tbe property seized and sold after tbe seizure complained of in tbe preceding action, tbe judgment was not operative, but tbe controversy was open to evidence upon tbe pomt whether tbe property seized was liable to be taken and sold to satisfy executions issued against tbe mortgagor. Tbe right of tbe sheriff to seize tbe property under tbe execution depended upon tbe question whether tbe mortgages were made in good faith and without any intent to hinder, delay, or defraud tbe creditors of tbe mortgagor, and whether property belonging to tbe plaintiff’s assignors bad been seized and sold under the executions. Tbe mortgages and transfers were not alleged in tbe answer to have been fraudulently made, but that was not necessary, and nothing said in tbe case of McKinley v. Bowe, 97 N. Y. 93, requires that to be done to admit proof of that fact. What was legally necessary was that tbe answer should allege tbe property to be that of tbe judgment debtor, as it did, and any evidence legally pertinent to prove that fact was admissible under tbe answer. And proof tending to establish the fact that tbe mortgages were fraudulent, did tend to prove that tbe mortgagor was tbe owner of tbe property, so far as to render it subject to executions issued against him. This has been tbe course of proceeding for many years, not only unquestioned, but sanctioned by tbe courts, and the answer in this action must accordingly be held to have been sufficient.

In submitting tbe case to tbe jury tbe legal points upon which it depended were clearly stated to them by tbe court, but rulings were made upon evidence excluded and received which do not appear to be capable of being sustained. Among these was tbe ruling sustaining tbe objection that tbe witness, Wellington A. Carter, could not look upon a memorandum produced upon tbe trial, to refresh Ms memory, so that be could state tbe articles which bad been left in one of tbe stores by Mr. Aymar, who was one of tbe plaintiff’s assignors. Liberty was refused tbe witness to answer tMs question on the ground that tbe memorandum bad not been identified, but that objection was not well taken; for whatever tbe memorandum may have been, if it would refresh tbe recollection of the witness, so that be could state tbe articles winch were left, tbe plaintiff bad tbe right to have that memorandum consulted by Mm, and to tbe testimony be might be able to give after referrmg to it. Tbe object of tbe inspection, or examination, of tbe memorandum was to revive tbe memory of tbe witness, and whatever it may have be'en, if it would have been attended with that effect and tbe plaintiff was entitled to an opportunity to prove that it would, tbe witness bad tbe right to look at it. Dowe v. Per kins, 8 Durn & East, 409: Biglow v. Hall, 91 N. Y. 145: Marcly v. Shutts, 29 N. Y. 346.

Tbe defendants were also permitted, against tbe objection and exception of tbe plaintiff, to prove what tbe mortgagor bad testified to in supplemental proceedings carried on against him and to which tbe plaintiff was in no sense a party. These statements as to her consisted of no more than bis declarations, and they were not admissible as evidence against tbe plaintiff. Walker v. Henry, 85 N. Y., 130.

They were not proved to contradict denials made concerning them in the course of tbe examination of tbe witness, for winch, after be was interrogated concerning them, they might very well .have been proper, but, as substantive evidence in tbe case, tending to defeat tbe plaintiff’s title, they were not in this form lawful evidence against her, and should have been excluded. Tbe plaintiff’s case was also illegally prejudiced by answers allowed to be given concerning other property, and premises previously occupied by him. As to one of those places tbe witness was allowed to answer tbe question whether be was a prompt rent payer. Tbe statements, or representations, of tbe mortgagor concerning tbe fact that be represented Josephine E. ■Clason, and in that capacity promised to take care of a mortgage upon certain real estate not connected with the action, and ■other transactions were drawn in by way of evidence having no relevancy whatever to the action, or the credit of the witness. The object of this evidence seems to have been to create a prejudice in the minds of the jury against the mortgagor, inducing them in that manner to reject the plaintiff’s claim for indemnity for the property seized and sold as his under the executions. This course was not justifiable. The object of the law is to secure the administration of justice between contesting claim.ants, upon the evidence given to develop the facts logically and legally bearing upon that disposition. It is not its purpose, by means of irrelevant and foreign matters, to permit one party to .defeat another, either by holding him up to ridicule before the jury, or biasing their judgment by entirely foreign and extrane'ous.matters. In these respects the plaintiff has a legal ground for complaint concerning the manner in which her action was tried at the Circuit. And on that ground, as well as the exclusion of pertinent evidence offered to be given in her behalf and the admission of illegal evidence against her, the judgment .should be reversed and. a new trial ordered with costs to abide the event. And as that will dispose of the order making the ad■ditional allowance of costs, no further attention need be given ;to that subject.

BpuADY J., concurs.


text:
    Julius Schutz et al., as executors, etc., of Mayer Schutz, deceased, respondents, v. Samuel Corn, et al., appellants.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)
    1. LANDLORD AND TENANT — WHETHER PREMISES UNFIT FOR OCCUPATION— WHEN A QUESTION FOR THE JURY.
    Where a lease contained the covenant, “ And it is further agreed and understood that, should the premises hereby leased be damaged by fire, but not to such an extent as to render them untenantable, they shall be repaired without avoidable delay, at the expense of the said party of the first part; that in case such damage by fire shall be so extensive as to render the said premises wholly unfit for occupation, then in such case the rent having been paid up to the time of such event shall cease until such time as the said premises shall have been put in tenantable condition; but in ease of such destruction of the building containing said premises by fire or otherwise as to render it necessary to rebuild the same, and upon the payment of the rent up to such destruction, then and from thenceforth this lease shall cease and become null and void.” A fire having damaged the building and the evidence being conflicting. Feld, that it was a question for the jury whether or not the premises were rendered “ wholly unfit fór occupation.”
    2. Same — Covenant to repair on part of landlord implies permission TO MAKE THEM ON PART OF TENANT.
    The covenant of the lessors to repair contained in the lease carried with it an implied covenant on the part of the lessee to permit the lessors to enter for the purpose of malting repairs and that they should not be delayed in making them by the occupancy of the lessee.
    Appeal from judgment for §1876.44 upon verdict for plaintiffs, rendered by direction of the court.

      Townsend, Dyett Mnstien, for app’lts.; Charles F. Mac-Lean, for resp’ts.
   Churchill, J.

December 6tb, 1881, Mayer Schutz leased to the defendants all the lofts (4 in number) of Nos. 92 and 94 Green street, New York, for two years, 'from February 1st, 1882, for §6,250 a year, payable quarterly. The lofts were used by the defendants in manufacturing caps and furs. November 16th, 1883, the lease was continued for three additional years until February 1st, 1887. Mayer Schutz died July 19th, 1884, and the plaintiffs are executors and trustees under his will.

The lease contained the following covenant:

“ And it is further agreed and understood, that should the premises hereby leased be damaged by fire, but not to such an extent as to render them untenantable, they shall be repaired without avoidable delay, at the expense of the said party of the first part: that in case such damage by fire shall be so extensive as to render the said premises wholly unfit for occupation, then in such case, the rent having been paid up to the time of such event, shall cease until such time as the said premises shall have been put in tenantable condition; but in case of such destruction of the building containing said premises, by fire or. otherwise, as to render it necessary to rebuild the same, and upon tbe payment of the rent up to such destruction, then and from thenceforth, tins lease shall cease and become null and void.”

On Saturday the 18th day of April, 1884, the leased jrremises were very considerably injured by fire. Witnesses differ much as to the extent of the injury, but the evidence was such as to' make it a proper question for the jury, whether or not the damage by fire was “ so extensive as to -render the premises wholly unfit for occupation.” The defendants immediately rented other premises, to which they removed about 100 cases of goods, slightly damaged, and where they continued their business of manufacturing. The remaining goods, being about 4,000 cases, and valued at $91,000, were surrendered to the Insurance Companies, and were paid for by them as a total loss. The defendant’s loss on goods was finally adjusted April 24th, 1884, when the Insurance Companies took the goods, which they soon after began to remove, but such removal was not complete until May 16th.

The evidence was conflicting as to when the plaintiffs began to repair, and also as to when such rej>airs were completed. It was also conflicting as to whether or not the defendants themselves interfered at all with the repairs, although there seems to be no doubt but that the plaintiffs were somewhat delayed in making repairs by the presence in the building of the goods surrendered to the Insurance Companies. Defendants paid the rent to May 1st, which was accepted by the plaintiffs. This action is brought for the rent of the quarter ending August 1st, 1884, from which the defendants claim to deduct the rent from May 1st to June 16th, at which latter date they claim the repairs were finished. The defendants, at the close of the evidence, asked to go to the jury upon the question whether the premises were rendered wholly unfit for occupation by fire, within the meaning of the covenant in the lease; also for how long a time they remained so unfit for occupation; and whether the defendants were entitled to a reduction of the rent for that time. These requests were denied, and the Court directed a verdict for the plaintiffs for the whole rent, to which the defendants excepted. The grounds of this decision seem to have been two —1st. That the defendants continued to occupy the premises after the fire. 2d. That this occupancy delayed the plaintiffs in-making the necessary repairs.

The terms of the lease did not require that the tenants should abandon their possession to entitle them to a suspension of the rent. Kip v. Marwin, 52 N.Y., 542.

The lease continued in force. The defendants were yet lessees of the building. The only tiring suspended was the accruing of rent. The covenant to repair contained in the lease carried with it an. implied covenant on the part of the defendants, that they would permit the plaintiffs to enter for the purpose of making repairs, and that they would not, by their occupancy or otherwise, hinder or delay the plaintiffs in making repairs, and for a breach of this implied covenant, they would be liable to respond to the plaintiffs in damages.

•The word “ agreed ” used in this covenant is the word of both parties. Pordage v. Cole, 1 Saunders, 319; Bartons. McLean, 5 Hill, 256; Prey v. Johnson, 22 How. 316.

The rule with respect to implied covenants is well stated by Bocees, J., in the latter case (p. 323). “If in a written contract under seal the words manifest a clear intention that a party shall do certain things not expressly stipulated, a covenant to do such acts will be inferred; and an action may be maintained for their non-performance in like manner as if the instrument had contained express' covenants to perform them.

In the case before us, it was a question for the jury, upon conflicting evidence, whether or not the premises were rendered “ wholly unfit for occupation.”

If this question was answered in the affirmative, the defendants were entitled upon the covenant in their leases to a suspension of rent, the period df which was also a question for the jury upon the conflictiug evidence in the case.

The evidence was also conflicting as to whether or not the defendants did hinder or delay the plaintiffs in making repairs and the extent of such delay. If such hinderance was found, the damage to the plaintiffs therefrom, should have been allowed for by lessening the period of suspension of rent and the deduction from rent allowed to the defendants therefor.

These questions should have been submitted to the jury. It was error to direct (as was done) a verdict for the whole rent of the quarter. The judgment should be reversed and a new trial ordered with costs to abide the event.

DANIELS and Beady, JJ., concur.


text:
    Julien T. Davies, receiver, etc., respondent, v. The New York Concert Company, (limited), appellant.

      (Supreme Court, General Term, First Department,

      Filed October 15, 1886.)
    1. Mortgage — Trustee Named in — When action to foreclose may be BROUGHT BY A BONDHOLDER ON THE REFUSAL OF THE TRUSTEE TO BRING IT.
    , In this action the plaintiff, as receiver of G. and W., was possessed of certain bonds issued by the defendant and secured by a mortgage on its real estate. The mortgage was issued to D. as trustee for the benefit of the bondholders. The plaintiff applied to D. to institute a foreclosure suit upon the mortgage to collect the amount of certain overdue coupons remaining unpaid, which he refused to do. Held, that where a trustee refuses, upon a proper request made to him for that purpose, to take the necessary legal proceedings for the protection of the beneficiaries under the trust, they may, by the appropriate form of action, proceed for their own protection and the enforcement and maintenance of their rights and interests under the trust. That the default of the mortgagor in the particular respect must first be brought to the knowledge of the trustee and a request made to him to proceed upon the mortgage for that default.
    2. Same — When non-payment of interest does not prove default.
    Where the mortgage provided that it was made for the “ security and protection of the owners and holders of the bonds and interest warrants aforesaid, or any or either of them, and for the enforcing payment thereof when payable in accordance with the true intent and meaning thereof, and of the stipulations of this conveyance,” and “ so long as any of the said bonds shall he and remain outstanding the party of the first part will appoint and maintain ” some New York city bank “as its agent whereat payment shall he made of the interest and principal of the bonds secured. ” It further provides that, if the company shall pay the holders of the bonds the principal and interest thereon at the time and place and in the manner stipulated in the bonds and coupons attached thereto, then the mortgage to he void. It also provides that, “ if default shall be made in the payment of the principal or interest of the bonds aforesaid or any of them or the interest thereon,” the mortgage may be foreclosed by advertisement or otherwise; and that “ until default shall be made in the payment of the principal or interest of the bonds hereby secured or some of them . .. the party of the first part shall be suffered and permitted to possess, hold and enjoy the said premises,” etc. Held, that the simple circumstance that the coupons have not been paid does not disclose that default which, by the provisions of the mortgage was required to take place before action for its foreclosure could be instituted.
    3 Same — Pleading — Demurrer—What'fapt must be alleged to set FORTH A CAUSE OF ACTION IN THE FORECLOSURE OF A MORTGAGE FOR DEFAULT IN RAYING INTEREST.
    The complaint avers upon the subject of defendant’s default in payment that, “ among the interest coupons which were held and owned by the said firm of G-. & W. were twelve coupons for $15 each,” etc., “ and that said coupons were not paid at maturity nor was any of them paid, or any part thereof,” and that is all that is stated as to the fact of the non-payment of these coupons. It is nowhere alleged that the company had neglected or refused to pay them. Neither is it alleged that it had been requested to pay them and had. neglected to comply. • On demurrer on the ground that the complaint did not state a cause of action. Held, that the demurrer was well taken. That neither the default nor any facts from which it could be inferred to exist were alleged or set forth in the complaint.
    Appeal from an interlocutory judgment overruling a demurrer to tlie complaint.

      David Leventritt, for appellant; William B. Hornblower, for respondent.
   Daniels, J.

The first objection does not require to be specially considered, for it has now become very well settled, where a trustee refuses, upon a proper request made to him for that purpose, to take necessary legal proceedings for the protection of the beneficiaries under the trust, they may, by the appropriate form of action, proceed for their own protection, and the enforcement and maintenance of their rights and interests under the trust. Weetjen v. St. Paul, etc. R. R. Co., 4 Hun., 529, 5 id. 265; Greaves v. Gouge, 69 N. Y. 155; Brinkerhoff v. Bostwick, 88 id. 52, 56; Memphis City v. Dean, 8 Wall 65, 73.

A more serious difficulty in the way of the maintenance of the plaintiff’s action is presented by the other objection stated in the demurrer, and that is that the complaint does not state facts sufficient to constitute a cause of action. What the complaint avers upon the subject of the defendant’s default in payment is, that “ among the interest coupons which were held and owned by the said firm of Grant & Ward, were twelve coupons for fifteen dollars ($15) each, payable on the first day of January, 1884, and twelve coupons for fifteen dollars ($15) each, payable on the first day of April, 1884, and that said- coupons were not paid at maturity, nor Avas any of them paid, or any part thereof.” And that is all that has been stated as to the fact of the non-payment of these coupons. It is nowhere alleged that the company had neglected or refused to pay them, as it was obligated to do that by the mortgage, or that it was in any manner in default. Neither is it alleged that it has been in any form requested to pay them, or that it has neglected to comply Avith any demand, or request, for that purpose. But all that is alleged is, that these coupons were not, nor was any part of them paid at maturity. And that is consistent with the fact that no default had been made by the company which would, according to its own terms, permit a foreclosure of the mortgage.

The mortgage contemplated the intention to have been, that more than this mere fact of non-payment, should transpire before. the right to bring an action for its foreclosure could arise. For it has been provided in it, that it was made for the “ security and protection of the owners and holders of the bonds and interest warrants aforesaid, or any or either of them, and for the enforcing payment thereof, when payable, in accordance with the true intent and meaning thereof, and of the stipulations of this conveyance,” and “so long as any of the said bonds shall be and remain outstanding, the party of the first part will appoint and maintain, in the Marine National Bank, in the City of New York, or some other bank, or a trust company in the said City of New York, as its agent, whereat payment shall be made of the interest and principal of the bonds secured,” and no default in the observance of this obligation is alleged in the complaint. It has been further provided in the mortgage that if the “ party of the first part, its successors or assigns, shall well and truly pay, or cause to be paid unto the holder of each and every of the bonds aforesaid, the principal and interest to grow due thereon at the times and places, and in the manner stipulated in the said bonds and the coupons, or interest warrants, attached thereto, according to the true intent and meaning thereof . . . then these presents and the estate hereby granted, shall cease, determine and be utterly null and void.” It is further declared that, “ if default shall be made in the payment of the principal or interest of the bonds aforesaid, or any of them, or of the interest thereon, . . . the said party of the second part, his successors, legal representatives or assigns shall also be at liberty immediately after any such default, upon a complaint filed, or other proper legal proceedings being commenced for the foreclosure of tins mortgage on account of default in the payment of principal or interest, or both,” ... to apply for and secure the appointment of a receiver, and to apply the rents and profits “ to any deficiency which may exist after applying the proceeds of the sale of the said premises to the payment of the amount due, including interest and the costs of the foreclosure and sale.” It was also provided “ that in case of any such defardt as aforesaid,” the mortgage might also be foreclosed by an advertised sale, and the amount of the indebtedness paid out of the proceeds, and “ until default shall be made in the payment of the the principal or interest of the bonds hereby secured, or some of them,” . . . “ the party of the first part shall be suffered and permitted to possess, hold, and enjoy the said premises,” etc. These clauses of the mortgage are in no manner affected, or restricted, in any respect by any other provisions, or directions, contained in the instrument, and they clearly contemplate the intention to have been that default should be made by the company in the payment of the mortgaged debt, or of some part of the interest thereon, before an action of foreclosure can be instituted and maintained. The simple circumstance, that the coupons have not been paid, which is all that is averred in the complaint, and is not inconsistent with the fact of the performance of all the obligations of the company, as they have been declared, does not disclose that default which by the provisions of the mortgage was required to take place before an action for its foreclosure, and a sale of the mortgaged premises could be instituted.

In this respect the case differs from the authorities of Wolcott v. Van Santvoord, 17 John, 248; Caldwell v. Cassidy, 8 Cowen, 271; Hills v. Place, 48 N. Y. 520; Locklin v. Moore, 57 N. Y., 360, and Indig v. National City Bank, 80 N. Y., 100, 101, relied upon by the respondent sustaining the right of a party to maintain an action upon a draft, agreement, or promissory note made payable at a particular place, without alleging a demand of payment either at that place, or of the maker of the obliga^tion. For in those cases, the liability of the maker depended wholly upon a simple agreement to pay the debt, and it was sufficient to show in the first instance that payment had not been made, leaving it to the debtor to establish the fact that he had provided funds at the place of payment, at the time of the maturity of the demand for its payment there. For in this case the right of foreclosure was not made solely dependent on the fact of the coupons not being paid, but it was made to depend upon an actual default on the part of the company in the performance of these stipulations contained in the mortgage. And neither that default, nor any facts from which it can be inferred to exist, have been alleged or set forth in the complaint. What was legally requisite for that purpose was to show in some form that the defendant had failed to fulfill or perform the obligations it had assumed for the payment of these interest warrants. And neither of the cases of Arents v. Com., 18 Grattan, 750; Savannah R. R. Co. v. Lancaster, 62 Alabama, 555, or Philadelphia R. R. Co. v. Johnson, 54 Penn., 127, decides anything relieving the plaintiff from the necessity disclosed by this mortgage of stating a default on the part of the company itself, before a foreclosure suit upon it can be sustained. For in each of them, the default of the company was affirmatively made to appear. That was not averred, or disclosed in this action, and the complaint, for that reason, did fail to state facts constituting a cause of action.

It has been further alleged in the complaint that the company neglected to perform the covenant in the mortgage to bear, pay and discharge, as soon as the same became due and payable, all taxes, charges and assessments imposed by law upon the mortgaged premises. But that averment will not entitle the plaintiff to maintain the action, for the trustee was not informed of this default, or requested to commence a foreclosure of the mortgage on tbat account, but tbe information and request was restricted to a notice informing tbe trustee of the default in tbe payment of the coupons, and it was for that alone tbat tbe plaintiff became entitled to institute this action for tbe foreclosure of the mortgage. To secure tbat right to it for tbe omission of tbe company to pay taxes, charges and assessments, its default in tbat respect must first be brought to tbe knowledge of tbe trustee, and a request made to him to proceed upon tbe mortgage for tbat default. No knowledge or information of tbat fact was given to tbe trustee, and be is not in default, therefore, for failing to institute a foreclosure on tbat account, and until be shall be put in default, tbe plaintiff, as a party interested under the mortgage, has no right to take this proceeding because of tbat failure to pay. As tbe case has been presented, tbe second ground of demurrer was well taken, and tbe judgment should be reversed and a judgment entered sustaining tbe demurrer, with leave to the plaintiff to amend the complaint within twenty days after notice of tbe decision, on payment of tbe costs of tbe demurrer, and tbe costs and disbursements of tbe appeal.

Brady, J., concurs.