author: Ehrlich, Ch. J. Newburger, J.

text:
    Bernard Zivi, Resp’t, v. Elias Einstein and Louis Nelke, App’lts.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Pleading—Sham answer.
    In an action against stockholders of a business corporation the complaint alleged the recovery of judgment against the company and the issuing and return of an execution unsatisfied; the answer denied any knowledge or information as to the judgment and execution. Held, that the matters in dispute consisting of court records open to public inspection, the answer was properly stricken out as sham.
    (Newburger, J., dissents.)
    Appeal from order striking out answer as sham.

      James Murphy, for resp’t; Townsend, Dyett & Einstein, for app’lts.
   Ehrlich, Ch. J.

The action is against the defendants as stockholders in a domestic corporation formed under chapter 611 of the Laws of 1875, as a full liability company.

The complaint alleges the recovery of a judgment against the company in this court, together with the issuing and return of an execution thereon unsatisfied.

The defendant denied any knowledge or information as to the facts of the judgment and execution, and rested on this form of denial for a defense.

The plaintiff proved the facts disputed, by affidavit and by the records themselves, and moved to strike out the answer as sham.

The motion was granted, and the defendants appealed from the order.

The matters in dispute consisted of court records open to public inspection, and the ignorance thereof by the defendants was intentional.

Such pleas are not encouraged. McLean v. Julien Electric Co., 28 Abb. N. C., 249; S. C., 19 N. Y. Supp., 906.

And the order made was right, and must be affirmed, with costs.

Fitzsimons, J., concurs.

Newburger, J.

(dissenting.)—This is an appeal from an order striking out defendant's answer as sham.

The denials in the answer herein are substantially general denials of material allegations of the complaint and, though false, cannot be stricken out as sham.

The case of McLean v. Julien Electric Company, 28 Abb. N. C., 249, referred to by my associates, was a case in'which the answer was stricken out as frivolous and not as being sham.

The order appealed from should, therefore, be reversed, with costs.

Order affirmed, with costs.


source: Caselaw Access Project

license: Public Domain

text:
    Bernard Zivi, Resp’t, v. Elias Einstein and Louis Nelke, App’lts.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Appeal from judgment entered on order striking out answer as sham.

      James Murphy, for resp’t; Townsend, Dyett & Einstein, for app’lts.
   Ehrlich, Ch. J.

The judgment entered herein must be affirmed, with costs, on opinion filed this day on affirming the order herein.

Fitzsimons, J., concurs.

Newburger, J.

(dissenting).—The judgment entered herein should be reversed, with costs, on opinion filed this day by me, • on the appeal from the order herein.

Judgment affirmed, with costs.


author: Daly, Ch. J.

text:
    Charles H. Southard, Resp’t, v. Maria Moss, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Mechanics’ lien—Parties—Prior grantor or assignor.
    Prior grantors or assignors of a person against whose estate a lien is filed are not necessary or proper parties to an action to foreclose the lien, • whether their conveyances are recorded or not.
    Appeal from judgment overruling demurrer to complaint.

      Cornell, Secor & Page, for resp’t; H. R. Squier, for app’lt.
   Daly, Ch. J.

This is an appeal by the defendant Maria Moss from the final judgment upon her demurrer to the complaint, by which judgment her demurrer was overruled, with costs, and she was adjudged barred and foreclosed, with the other defendants, of all equity of redemption in certain leasehold premises against which the plaintiff filed a mechanic’s lien, which this action is brought to foreclose. The judgment directed the sale of the right, title and interest of Frederick S. Myers, the party at whose request the plaintiff furnished the materials which are the subject of his claim; Myers being at the time lessee of the said premises by virtue of an assignment from Maria Moss of a lease to her from Casimear de R. Moore.

Mrs. Moss having been made a party defendant to the foreclosure of the lien, demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action against her. The plaintiff claims that Mrs. Moss is a proper, and even a necessary party to the foreclosure of his lien, because neither her lease nor the assignment of it to Myers was recorded, and, although she had no interest in the property or concern in this litigation, that it was necessary to bind her by an adjudication that she had assigned the lease to Myers, thus to make a marketable title on this foreclosure.

The reason assigned for making Mrs. Moss a party would justify the plaintiff in making the original lessor, Moore, a defendant, for it is said that his lease to Mrs. Moss was not recorded ; but I know of no authority for making prior .grantors or assignors of tlm person against whose estate a lien is filed parties defendant in actions to foreclose such lien, whether their conveyances be recorded or not. A mortgagor who has conveyed his equity of redemption by an unrecorded deed may be made a party defendant to the foreclosure of his mortgage, 8 Am. & Eng. Ency. of Law, 211; but this is because the record8 title still remains in the person who made the mortgage; and so if the party against whom a lien is filed were to convey the interest so encumbered by an unrecorded deed he might yet be made a party to the foreclosure with or without the statute. But generally mortgagors who have conveyed all their interest are neither proper nor necessary parties to the foreclosure. Id., 223.

Only such estate as Myers got by the assignment from Mrs. Moss is subject to the plaintiff’s lien. Jones v. Manning, 25 St. Rep., 771. Mrs. Moss, who conveyed that interest before any claim of the plaintiff arose, cannot be compelled to submit to a judgment in this action which shall secure a purchaser against any possible claim on her part. It is not alleged that she makes any adverse claim, but if she did, the validity of such claim could not be tried in the foreclosure action. Corning v. Smith, 6 N. Y., 82.

. The lien act, in prescribing the parties to foreclosure proceedings,. does not include owners, grantors or assignors of the premises prior to the filing of the lien, and there is no question involved in this action to the determination of which Mrs. Moss is a proper party. Her assignment is questioned by no one, and the only ground for including her as a party defendant urged by the respondent, i. e., that her lease and assignment were not recorded, is not even alleged in the complaint.

The judgment is reversed, and' judgment for defendant Moss ordered upon the demurrer, with leave to the plaintiff to amend within twenty days on payment of costs; if no amendment is made, final judgment upon the demurrer, with costs, to be entered in her favor.

Bischoff and Pryor, JJ., concur.


text:
    Sampson Toplitz, Resp’t, v. Leopold Ullman, App’lt.

      (New York Common Pleas, General Term ,

      Filed December 5, 1892.)

    Master and servant—Wrongful discharge—Damages.
    Where a servant wrongfully discharged has fulfilled his duty in seeking other employment, and, failing to find it, has embarked in business for himself rather than remain idle, the actual profits received by him are all that should be allowed in reduction of the amount of agreed wages, and not the value of his services.
    Appeal from a judgment of the general term of the city court, affirming a judgment in favor of the plaintiff for $1,130.82. _
    _ The action is to recover damages by reason of the plaintiff’s alleged wrongful discharge from the service of the defendant, under a contract of employment for one year, commencing March 18, 1890, and terminated by the alleged wrongful discharge the next day.

      Otto Horwitz, for app’lt; M. H. Oppenheim, for resp’t.

       Affirming 46 St, Rep,, 294.

   Daly, Ch. J.

After the plaintiff was wrongfully discharged from the defendant’s service he endeavored to procure other employment, but was unsuccessful; and, thereupon, he embarked in business upon his own account in partnership with another. His share of the profits of the copartnership during the stipulated period of service under his contract with the defendant was $200. This sum, under the instruction of the court, was allowed by the jury as a deduction from the amount of the agreed wages which the plaintiff was prevented, by his discharge, from earning in the defendant’s service.

The defendant claims that the plaintiff having appropriated his entire services for his own benefit, the value of such services should have been ascertained and deducted from the amount of agreed wages, irrespective of the actual profits he had earned. If the plaintiff could have obtained other employment and declined it to go into business-for himself, the defendant’s contention would be just, and the damages would be confined to the difference, if any, between the agreed wages and the value of the services which the plaintiff might have hired to another; but this would be upon the principle that he had neglected the duty of reducing his damages by seeking other employment. The same rule would apply if the plaintiff, without seeking other employment, chose to go into business for himself. This was evidently the case in Huntington v. O. & L. C. R. Co., 33 How. Pr., 416, cited by appellant ; for it does not appear -from the report that the plaintiff there made any exertion to find employment, and the case is unquestionable upon the facts in it.

Where, however, the discharged servant has fulfilled his duty in seeking other employment, has failed to find it, and has embarked in business for himself rather than remain idle, taking all the hazards of such a venture in order to reduce his damages, the defendant cannot complain that his returns therefrom were less than his services were worth. Had plaintiff remained idle after seeking and failing to obtain other employment, he would have been entitled to the whole stipulated wages; and he is not to be worse off because he availed himself of the only opening which he found. Any other rule would operate to punish him for his diligence and activity in trying to reduce his damages, and would fix a premium upon indolence.

It would have been legitimate for the employee (if no better opportunity presented itself) to take service upon an agreement for a share in profits as compensation, and in that case his actual earnings, being his actual salary, would have been the measure of allowance to which the defendant would be entitled; or he might take employment at agreed wages far below the value of his services, and if that were the best lie could do the defendant would have no right to complain that only the amount actually earned was allowed.

The defendant argues that the plaintiff by engaging in business upon his own account voluntarily relinquished the chance of taking or finding other employment; this, however, could with equal justice be urged if he had engaged for the balance of his term with another employer at a smaller salary. He would thus equally deprive himself of the opportunity of taking or finding other employment. There was no proof that other employment could be procured; on the contrary, the evidence is that when he was discharged it was not the season when persons in his line were usually employed.

The appellant does not seem to question that the profits earned by the plaintiff were all that were actually coming to him in the copartnership business. It appears that what he drew for expenses, etc., was obtained from advances or loans which had to be repaid. So, I think, upon the facts of this case the instruction of the learned judge at trial term was correct, and so was the affirmance at the general term, and that the judgment and order should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Pryor, J.

text:
    The Starr Cash Car Co., Resp’t, v. Aaron Reinhardt et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    Pleading—Counterclaim:—Sale—Conversion.
    In an action for the purchase price of certain cash carriers, the an: swer alleged as a counterclaim that when plaintiff placed its service in defendants’ store it took the old service which was there and applied it to its own use and benefit without defendants’ knowledge; that a demand had been made for an allowance of the value thereof on plaintiff’s bill, and offered to allow judgment for the balance. Held, that while the several causes of action did not arise out of the same transaction, defendants had an option to waive the conversion and claim as for goods sold and delivered, and having elected to exercise it and proceed upon contract, that the counterclaim was valid.
    Appeal from judgment of the general term of the city court, affirming judgment at special term, entered on a decision at the trial overruling a counterclaim and directing judgment for the plaintiff.

      Joseph C. Rosenbaum, for app’lts; Eugene L. Richards, for resp’t.
   Pryor, J.

The action is for. the purchase price of fifteen cash carriers sold and delivered by the plaintiff to the defendants. The answer, by not denying, admits the price and the sale and delivery of the cash carriers ; and then proceeds to plead a counterclaim as follows: That there was on the premises of the defendants a certain car system; that when the plaintiff placed its service in the store of the defendants it took to itself the old service of the defendants and applied the same to its own. use and benefit without the knowledge of the defendants; that the reasonable value of the said old service was $150 ; that the defendants have demanded from the plaintiff a deduction to that amount from its bill, and have tendered to the plaintiff the sum of $150, and hereby offer to allow judgment to be taken against them for the sum of $150, with interest and costs. At the trial plaintiff moved for judgment upon the pleadings, “ on the ground that the answer did not deny any of the allegations of the complaint, and did not set up a counterclaim which could properly be interposed in this action. ” The motion was granted, and judgment directed for plaintiff for the full price of the cash -carriers, to which order and direction defendants duly excepted. The sole question for decision is, whether the facts alleged constitute a valid counterclaim ?

Defendants insist that the cause of action which they retort upon plaintiff “ arises out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim; or,” in any event, that it is “ connected with the subject of the action.” Code Oiv. Pro., subd. 1, § 501. The contention is obviously untenable. The transaction set forth as the foundation of plaintiff’s claim is the sale of the fifteen cash carriers; the cause of action alleged in the answer is the conversion of the old car system.

The sale of one commodity to the defendants, and the conversion of another commodity by the plaintiff, are two totally different and independent transactions. Neither is the cause of action in the answer connected with the subject of the action in the complaint. The subject of action in the complaint is the sale of the fifteen new cash carriers; the cause of action in the answer is the conversion of the old car system, between which subsists no-legal connection whatsoever. It is not apparent, therefore, on the face of the answer that the cause of action it advances sustains-to the claim in the complaint that common origin or relation which the Code exacts as the indispensable condition of a valid counterclaim. Edgerton v. Page, 20 N. Y., 281, 285; Boreel v. Lawton, 90 id., 293, 297; Thorp v. Philhin, 15 Daly, 155, 158; 22 St. Rep., 27.

But, in an action on contract any other cause of action on contract may be interposed as a counterclaim. Code, subd. 2, § 501. It is to be ascertained, therefore, whether the cause of action exhibited in the answer be a cause of action on contract.

Undoubtedly the facts stated in the answer constitute a cause-of action for conversion. But, “ if upon the facts alleged, a cause of action in tort, as well as one on contract may be spelled out.,” the pleader may elect to stand either upon tort or contract. The People v. Wood, 121 N. Y., 522; 31 St. Rep., 860. Do the defendants in their answer rely upon tort or contract ? Manifestly upon contract. Their claim is not damages for the conversion, but the specific value of the goods applied by the plaintiff to its use and benefit; and that value they plead as a counterclaim, which would be inadmissible were the claim of damages for a tort. Beyond all controversy the defendants elect to treat their cause of' action as a claim upon contract.

But, it does not appear that the plaintiff has sold the thing-taken; the contrary rather; and the question remains, whether the owner of a chattel converted, but not parted with for money or its equivalent, may waive the tort and sue the wrongdoer in assumpsit as upon an implied contract of sale ? It is conceded that in England, and in many states of the Union, the query must be answered in the negative. See cases collected by Mr. Freeman in his note to Webster v. Drinkwater, 17 Am. Dec., 242. Nay, more, in this state the law was, that traver could not he turned into assumpsit for money had and received until the thing converted was exchanged by the wrongdoer for money or money’s worth. McKnight v. Dunlop, 4 Barb., 36, 42; Harpending v. Shoemaker, 37 id., 270, 291; Osborn v. Bell, 5 Denio, 370; Tryon v. Baker, 7 Lans., 511, 514; McGoldrick v. Willits, 52 N. Y, 614, 620. “ When the tort is waived and assumpsit is brought, the receipt of the money on the sale of the goods gives the cause of action.” Schroeppel v. Corning, 6 N. Y, 107, 112. Meanwhile, however, the current doctrine was subjected to destructive criticism as well by courts as by commentators. Notes of Nicholas Hill to Putnam v. Wise, 1 Hill, 240, and Berly v. Taylor, 5 id., 584; 2 Greenl. on Ev., § 108, note 5; Cooley on Torts, 95; Hill on Torts, 42. “A more liberal, and we think a more sensible, rule is laid down by the later text writers, and sustained by many courts, to the effect that the tort may be waived and assumpsit maintained when the property taken has been converted either into money or into any other beneficial use by the wrongdoer,” Evans v. Miller, 58 Miss., 120.

“ We see no reason why the right to waive the tort and maintain assumpsit should not be as well applicable to the case where the defendant has actually appropriated to his own benefit and used up the plaintiff’s goods himself, as where he has sold them to another and received the money, though in the former case the action must be for goods sold and delivered and not for money had and received.” Talcott, J., in Abbott v. Blossom, 66 Barb., 353, 356. “If the defendant had taken the wheat tortiously, the plaintiff, according to the well known right of election, might have brought assumpsit for goods sold and delivered.” Cowen, J., in Putnam v. Wise, 1 Hill, 234, 240. “ Butts has therefore an election against Collins; he can maintain trover or assumpsit, and in the latter case recover the value of the flannels under the common counts for money had and received, or for goods sold.” Mason, Senator, in Butts v. Collins, 13 Wend., 139, 154. At last, in Hawk v. Thorn, 54 Barb., 164, it was expressly ruled that, “ where one has unlawfully taken possession of another’s property, the tort maybe waived, and an action brought for its value.” And in Terry v. Hunger, 121 N.Y., 161; 30 St. Rep., 746, the court of appeals, per Peckham, J., said : “ the owner of personal property which has been wrongfully converted by another man, although the property is retained by the wrongdoer, may waive the tort and sue for and recover its value upon an implied contract of sale.” 'The rule as thus held finds support in the adjudications of other states. Hill v. Davis, 3 N. H, 384; Stocked v. Watkins, ‘2 Gill & J., 326, 342-3; Halleck v. Mixer, 16 Cal., 574; Fratt v. Clark, 12 id., 89 ; Barker v. Cory, 15 Ohio, 9. It is commended, moreover, to acceptance by the analogies of the law and the interests of justice. A consent induced by fraud is no consent; and yet the vendor in a fraudulent sale may waive the tort and sue for goods sold. It is conceded that upon a conversion, if the goods be parted with by the wrongdoer, he may be held as for money had and received, his promise to pay being arbitrarily forced upon, him by implication of law. So, if lie retain the goods, the owner should be allowed to treat the transaction as a sale, and the law should imply a promise to pay their value. In such case the tort-feasor will not be allowed to set up his own wrongful intent, in disavowal of the implied promise. which the law would otherwise raise against him. Hill v. Perrott, 3 Taunt, 274, 275; Lightly v. Clouston, 1 id., 112, 114, per Mansfied, C. J, The rule is advantageous to a defendant, since being sued on contract instead of in tort, he is exempt from arrest and may plead an offset.

“ No party is bound to sue in tort, when by converting the action into an action on contract he does not prejudice the defendant - and generally speaking, it is more favorable to the defendant that he should be sued in contract, because the form of action lets in a set-off, and enables him to pay money into court.” Tindall, C. J., in Young v. Marshall, 8 Bingh., 43. Finally, by converting the tort into a contract, and so opening the case to a counterclaim,, all the controversies between the parties may be adjusted in a. single litigation.

The conclusion is, that the defendants had an option to waive the conversion and to claim as for goods sold and delivered; and that, by their answer, they elected to proceed upon contract

The result is, that the counterclaim is valid, and the judgment overruling it erroneous.

J udgment reversed, and a new trial ordered, with costs to appellants to abide the event.

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


author: Pryor, J.|

text:
    Maurice J. Sternberger et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Railroad—Elevated—Evidence.
    In an action against an elevated railroad for rental losses from 1885 to-1888, the court excluded evidence as to liow many buildings were erected in the street in question from 1878 to the present time. Held, no error; that proof of rental loss or of the prosperity of the street between 1888 and the time of the trial was immaterial and inadmissible.

      % Same—Leading question.
    A witness who testified to the course of rents of a building having, on cross-examination, stated that it was vacant for a time and the rents varied, was asked, it he had not, during that time, used his best endeavors to get the best rent possible, which was excluded under objection to it as incompetent. Held no error; that it was not best evidence on that subject, and the question was flagrantly leading.
    Appeal from judgment on verdict, and from order denying new trial. Action at law for rental losses to plaintiffs’ premises' from the construction and operation of defendants’ elevated railway. The claim of recovery is from April 11, 1885, to April 11, 1888.

      Julien T. Davies and Brainard Tolles, for appl’ts; E. W. Tyler and Henry Schmidt, for resp’ts.
   Pryor, J.|

The appellants concede that “the record presents a sharp conflict of evidence on the question of the amount of damages and this being so, we are not authorized to set aside the verdict on the ground that it is excessive. Betjeman v. E. R. R. Co., 48 St. Rep., 721. Still the appellants contend that the judgment is avoided by error in the exclusion of evidence.

1. This question was propounded to a witness by the defendants: “From 1878 to the present time, how many new buildings were erected in South Fifth street?” the locality of plaintiff’s premises. On objection that the proposed evidence was immaterial, irrelevant and incompetent, it was excluded, and defendants excepted.

The'aetion was for the recovery of rental loss between 1885 and 1888. Proof of rental loss between 1888 and the time of the trial, 1892, would have been proof of a fact not in issue, and hence inadmissible.

The argument of appellants is, however, that the evidence was relevant and competent to show the effect of the railroad on the prosperity of the street. But the prosperity of the street between 1888 and 1892 was not in controversy, and still the evidence was irrelevant

Appellants assert again, that since between 1888 and 1892 the railroad was operating under the same conditions as between 1885 and 1888, proof of its effect on the prosperity of the street during the former period was evidence of its effect on the prosperity of the street during the latter period. The effect of the railroad between 1885 and 1888 was as capable of direct proof as between 1888 and 1892, and to allow evidence as to the latter period was to rely upon a presumption too far fetched and feeble for the purposes of forensic demonstration.

Besides, direct evidence was in fact given by the defendants as to the effect of the railroad on the prosperity of the street during the period in litigation.

It is the primary and most prevalent law of evidence, that it be the best of which the case in its nature is susceptible. 1 Green-leaf, § 82.

Beverse the contention of the parties: would the defendants have allowed proof of the decadence of the street since the commencement of the action as evidence of plaintiffs’ damages at an anterior period ?

The evidence tendered was not only too weak to support a rational inference as to the fact in dispute, but was fraught with mischievous consequences to the cause on trial. The enhanced value of plaintiffs’ property after the action might have been credited by the jury in reduction of the damages they sustained before and for which they sue.

Defendants insist that the plaintiffs had been permitted to give evidence of improvements in Greene street since the period in controversy; and that so the court denied them the benefit of the rule accorded to the plaintiffs. The record does not support the contention. On the contrary, it is quite obvious that the evidence of improvements in Greene street was restricted to the period in litigation, and disclosed no fací since 1888, the time of the sale of the property by plaintiffs.

2. The defendants proved the course of rents of Nos. 520 and 522 Broadway. On cross-examination the plaintiffs showed that a portion of those premises had been vacant; that the rents varied and many changes of tenants occurred from year to year. Whereupon, on re-direct, defendants inquired of the witness: “ Have you not, during all this time, used your best endeavors to get the best rent possible?” On objection to the question as irrelevant, immaterial and incompetent, it was disallowed; to which defendants excepted.

If admissible to show that the rents realized were the best possible, the legitimate method of proving the fact was by exhibiting what the witness did to secure the best rents, and not by an opinion or conclusion as to the character of his efforts to that end.

In any event, the question was flagrantly leading, and so inadmissible.

Defendants argue, however, on the authority of Tooley v. Bacon, 70 N. Y., 37, that the irregularity is not available on this appeal. But here the alleged ground of objection was the incompetency of the question ; critically the appropriate objection to a leading interrogatory.

Detecting no error in the record, we must affirm the judgment.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ:, concur.


text:
    Christina Anderson, Resp’t, v. The Manhattan Railway Co., App’lt.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    1. Negligence—Objects falling from elevated road.
    While plaintiff was passing beneath defendant’s structure its servants were distributing guard timbers by sliding them over the car and letting them fall on the platform. 'A piece of wood was thereby knocked from the platform, which struck and injured plaintiff. There was evidence that said piece was so rotten that it could be broken with the hand. Held, evidence of negligence for the jury.
    2. Same—Damages.
    Plaintiff was sixty-nine years old, and earned about six dollars a week washing and scrubbing. The injury produced was a scalp wound, but plaintiff complained of pains in her head and other troubles which may be attributable to morbid condition. Held, that a verdict' of §5,000 was excessive.
    Appeal from judgment on verdict for $5,000, and from order denying a new trial.
    Action for personal injury from the negligence of the defendant.

      R. L. Maynard, for app’lt; J. Edward Swanstrom, for resp’t.
   Pryor, J.

We decline discussion of the proposition advanced by appellant, that except when a contractual relation subsists the mere occurrence of a casualty is no evidence of negligence; because we End in the rqcord sufficient proof prima facie of the absence of ordinary care on the part of defendant’s servants.

The injury of which thé plaintiff.complains was caused by the fall of a piece of wood from defendant’s elevated railway. The defendant was engaged in placing additional guard-timbers along its track. From their size, these timbers were manifestly of considerable weight. They were distributed by sliding them over the car and then letting them fall on the edge of the walk or platform. On the occasion in question, one of these timbers, so distributed, struck the platform and knocked a piece out, which fell on the plaintiff, eighteen or twenty feet below in the street. This piece of the platform was exhibited to the jury, and was rotten, so rotten that it might be broken with the hand, and so rotten that its condition was discoverable by ordinary inspection. Here, undubitablv, was evidence of negligence for the jury. Treanor v. Manhattan R. Co., 41 St. Rep., 615 ; Volkmar v. Manhattan R. Co., 47 id., 631, court of appeals.

Appellant contends, however, that the presumption of negligence, if any, shown bv the plaintiff, was rebutted and destroyed by the contrary evidence. But that was just the question for the jury; and as the evidence conflicted, and the credibility of the testimony was exclusively for their judgment, we are not permitted to gainsay their decision and set aside the verdict as unwarranted by the proof. Volkmar v. Manhattan R. Co., supra.

Although we cannot reverse the judgment for error or insufficient evidence, we are clearly of opinion that the recovery is excessive.

The plaintiff was in her sixty-ninth year ; she was a confirmed invalid ; in her occupation of washing and scrubbing she earned, apparently, on an average, six dollars a week; in itself, the wound inflicted by the defendant was neither painful nor serious nor incurable, but was important only in its consequences; these consequences, if they exist, which is doubtful, may be attributable to her morbid contition rather than to the injury inflicted by the defendant.

Our conclusion is that $2,500 would be a just compensation to the plaintiff; and that, if she accept this sum, the judgment should be affirmed; else, that it be reversed and a new trial awarded.

Judgment reversed, with costs to abide the event, unless plaintiff stipulate to reduce it to $2,500. If she so stipulate, judgment as modified affirmed, with costs.

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


text:
    Emily T. Fanning, Resp’t, v. Thomas Fanning, App’lt.

      (New York Common Pleas, General Term,

      Filed December 5, 1892.)

    DrvoBCE—Proof of adultery.
    Evidence insufficient to authorize a divorce on the ground of adultery.
    Appeal from judgment at special term, granting a divorce to plaintiff for the alleged adultery of the defendant.

      Wm, G. McCrea, for app’lt; A. G. Cropsey, for resp’t.
   Pryor, J.

Before proceeding to an examination of the evidence on which this judgment depends, it is requisite to recall the interest of the state in the litigation, and to ascertain the degree of proof necessary to a decree of divorce.

“A suit for divorce, although on the face of the record a mere controversy between two private parties, is, in truth, a triangular proceeding, sui generis, in which the government or public occupy the position of a third party. * * What the government does, is: 1. To protect the rights of persons not before the court, but liable to be affected by the decree or sentence; 2. To guard the interests of the public as to its morals; and 3, and chiefly, to see that the status of its subjects, who are parties of record, and sometimes their children, is properly determined or established.” 2 Bish. on Marr. & Div., §§ 230, 231, 6th ed. It follows, therefore, that it is the duty of the court, as representative of the state, to see that the interests of the public, and of persons not parties to the record, e. g., children, are not sacrificed or compromised by a sentence of divorce rendered contrary to law or justice. Richardson v. Richardson, 30 Am. Dec., 514 n., et seq. Hence, in divorce cases, the courts have prescribed a mode and measure of proof different from that which suffices for decision in other litigations. Thus, a sentence of. divorce will not be granted by default, Rule 37 General Rules of Practice; nor “be given upon the sole confessions of the parties,” Lyon v. Lyon, 62 Barb. 138, nor upon “the uncorroborated evidence of prostitutes and. private detectives,” Moller v. Moller, 115 N. Y., 466; 26 St. Rep., 207; nor 'is the testimony of a party competent evidence of the fact of adultery. Code, § 831.

It is settled also, that “ although presumptive evidence alone is sufficient to establish the fact of adulterous intercourse, the circumstances must lead to it, not only by fair inference but as a necessary conclusion; appearances equally capable of two interpretations, one an innocent one, will not justify the presumption of guilt,” Pollock v. Pollock, 71 N. Y., 137; and that “ a divorce should not be granted without evidence which is, after careful scrutiny, satisfactory and can command the confidence of a careful, prudent and cautious judge.” Moller v. Moller, 115 N. Y., 466: 26 St Rep., 207.

With these rules for our guidance, we proceed to inquire, whether the evidence upon which the judgment under review was rendered be sufficient in law to sustain it.

But a single act of adultery is charged; and that is made probable by no evidence of carnal inclination, or significant familiarities, between the defendant and the alleged paramour. The fact, if it be such, stands alone; without antecedent, or concomitant, or subsequent circumstance of corroboration. Moreover, but one witness testified to the adultery, and that witness was not only the mother of the plaintiff, but was manifestly inflamed with the fiercest animosity against the defendant. Plainly, the evidence in support • of the fact challenges the most jealous and suspicious scrutiny.

Now what was that evidence ? The summary in the respondent’s brief gives it with all possible effect:

“ The respondent’s witness, Mrs. Doyle, testified that at about half-past eight o’clock in the evening of about Decoration day, 1891, she saw the appellant in his store on Railroad avenue near One Hundred and Seventieth street in the act of putting out the lights, and that about three-quarters of an hour after the lights had been put out she saw a woman come out of the rear of the same store and go towards the lots towards the rear; that she knew such woman was not the respondent; that shortly thereafter she saw appellant locking the door of the same store when his pants were not fastened up, his necktie was undone and his vest was unbuttoned with the exception of three buttons; that this witness then and there reprimanded the appellant for his having been found in such a predicament as he appeared to be in, whereupon he said to the witness, “ I was locked up in the store with a woman, and it is none of your damned business. Now go and find out who it was.”

It should be remarked that the things the witness professes to have seen she observed at night and from a distance of twenty or twenty-five feet.

The story of plaintiff’s witness' was flatly contradicted. The defendant testified: “I had no woman in my store that night. No other woman than my wife was in my store on the night I am charged with having committed adultery. I did not have sexual intercourse with any woman in that store that night, or any other place. ■ Not that night or any other night I have not committed adultery with any one. When I came out of that store my clothes were not open or disarranged. They were just the same as they are now, only I did not have so much clothes on. I did no,t admit to my wife’s mother, or to my wife, that night that I had a woman in my store. I told my wife’s mother at the hydrant, where I was getting my wife a bottle of sarsaparilla that she wanted out of the store, that she was as big a fool as the daughter was. That was all the conversation I had. They ordered me out of the house and I went”

Mrs. Gahan, apparently a disinterested witness, testified, “ I was sewing and I heard glass break, and I put my needle into the work and jumped from the table and ran to the door and opened it; as I opened the door I saw Mrs. Fanning fly past my door from the rear portion of the house. Q. Where did she go ? A. Went to the store door, where Mr. Fanning stood, and accused him of having a woman there. Mr. Fanning told her to go in and see, and she declined to go in. She grabbed him by the face and called him a dirty loafer,’ and says ‘ If you ever come into my house again, I will shoot you.’ They both started from the store door down to the corner; whether they separated or not I could not say. There was nothing about Mr. Fanning at that time to attract my attention. I could not tell winch way be was dressed. I stood in my door, and his door was about twenty-five feet from me. I saw him, and he looked about the same as the time he came home in the afternoon, with feed. She was in the store the time lie came with the feed, and gave him a scolding. I did not see any woman or anybody else. That was Mrs. Fanning I saw coming from the rear part of the store.”

Upon due consideration we are unable to avoid the impression that the evidence is altogether insufficient to establish the fact of adultery. It falls short of the measure of proof prescribed by courts as necessary to authorize a decree of divorce.

We have said that the adultery is shown by but a single witness ; not so, however. The plaintiff herself was allowed to give evidence of the fact. “ I saw him let the woman out of the back doora pregnant circumstance, if true, in corroboration of her only witness, and in contradiction of the witnesses for the defense. True, the evidence was received without objection; but it was incompetent evidence; and, as guardian of the interests of the public, and persons not parties to the record, it is our imperative duty to prevent the dissolution of the marriage relation by means which the law condemns and expressly forbids.

An infant child is issue of this marriage, and we cannot tolerate that its character shall be sullied and its career clouded by a judicial conviction of the father on such evidence of infidelity to the most sacred of obligations. Since the “ common law marriage,” so called, another name for concubinage, is obtrusively prevalent in the community, and our calendars are crowded with applications for divorces, it behooves us not to relax the stringency of the rules which, in the interest of good morals and social security, have been prescribed by law for the safeguard of the sanctity and stability of the marriage relation.

The judgment is reversed, and a new trial ordered.

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


author: Martin, J.

text:
    Harriet Walsh, App’lt, v. Patrick Walsh et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    Benefit societies—Failure of designation—“ Legal heirs.”
    The statute incorporating a benefit association authorized it to accumulate a fund to be paid over “to the families, heirs, or representatives of deceased members, or to such person, or persons, as such deceased members may, while living, have directed.” A by-law of the association provided that “ in case of a failure of or imperfect designation, then the amount shall be paid to the legal heirs of the deceased member.” Held, that the words “ legal heirs” were intended to describe the persons who would take such property in case of intestacy.
    Appeal from a j udgment, entered in Chemung county February 16, 1892, adjudging that the $2,000 deposited in court and paid under a certificate issued by-the Catholic Mutual Benefit Association belonged to the defendants, and that the plaintiff had no interest therein.
    The action was tried before a court without a jury, and the findings of fact made bv the trial judge were substantially as follows : That the Catholic Mutual Benefit Association was organized under chapter 496 of the Laws of 1879; that at the time stated in the complaint there was in existence in the city of Elmira a branch known as Branch Ho. 51; that the general laws of the association provided, “ on or before sixty days after due notice and proofs of death of a member in good standing shall have been received, the amount as set forth in the beneficiary certificate ot' said deceased shall be paid to the person, or persons, designated therein, or, in case of. failure of or imperfect designation, then the amount shall be paid to the legal heirs of the deceased member;” that William Walsh was a resident of Elmira, became a member of the Elmira branch of said association September, 1879, and remained a member in good standing until his death; that when he became a member a certificate of insurance was issued to him, entitling him to participate in the beneficiary fund of the association to the amount of $2,000, “ which sum shall at his death be paid to his mother, Mary Walsk ; ” that this certificate was in force and valid at the time of Walsh’s death; that the beneficiary named died August 17, 1887; that William Walsh was married to the plaintiff in June, 1888, and died March 20, 1890; that no change in the designation of the beneficiary was ever made; that there was no issue of the marriage of Walsh to the plaintiff, and he left him surviving no parent or descendant; and that the defendants are his brothers and sisters and were all living at the time he became a member of the association.
    As conclusions of law the court held: 1. At the time of the maturity of the claim under the certificate of insurance, there was a failure of designation of the beneficiary to whom, such insurance should be paid; 2. The amount due under the certificate was at the commencement of this action and is now payable to the legal heirs of Willaim Walsh, deceased; 3. The defendants, the brothers and sisters of William Walsh, are bis sole legal heirs; 4. The plaintiff has no cause of action; 5. The defendants herein are entitled to judgment directing the payment to them of the sum payable under the said certificate of insurance.
    The statute incorporating the Supreme Council of the Catholic Mutual Benefit Association contained the following provisions:
    “ Sec. 5. The object of this corporation shall be to improve the moral, mental and social condition of its members, and to educate them in integrity, sobriety and frugality, to endeavor to make them contented with their position in life, and to aid and assist members, or their families, in case of death.
    “ Sec. 6. It shall be lawful for this corporation to create, hold, manage and disburse a beneficiary fund, sufficient to pay all losses and expenses incident to the corporation, and for the relief of members and their families of the branches and grand councils, under the jurisdiction of this corporation, under such regulation as may be adopted by said corporation.
    “Sec. 7. Such beneficiary fund as may be ordained suitable by said corporation, may be set apart and provided to be paid over to the families, heirs, or representatives of deceased members, or to such person or persons as such deceased members ma.y, while living, have directed, and the collecting, management and disbursement of the same, as well as the person or persons to whom, and the manner and time in which the same shall be paid, on the death of a member, shall- be regulated and controlled by the constitution, by-laws, rules and regulations of the corporation; and such beneficiary fund so provided and paid shall be exempt from executions, and shall not be liable to be seized, taken or appropriated by any legal or equitable process, to pay any debt of said deceased member; diocesan beneficiary districts may be set apart from time to time, and shall be governed by this law. The general and beneficiary accounts of said corporation and those of its branches, grand councils and districts, shall be kept entirely and distinctly apart in separate books and accounts.”

      Frederick Collin, for app’lt; Babcock, Baxter & Gibson, for resp’ts
   Martin, J.

This action was upon a certificate of membership, which was in the nature of a policy of life insurance, issued to William Walsh by the Catholic Mutual Benefit Association. The action was originally brought by the plaintiff, who was the widow and administratrix of the assured, against the association. Subsequently the association paid the amount due upon the certificate into court, and by an order of interpleader the brothers and sisters of the decedent were made defendants. The action seems to have been tried upon the pleadings, although by stipulation either party was permitted to refer to or read in evidence any part of the constitution or by-laws of the association.

The question involved on this appeal is, whether the plaintiff was. entitled to the two thousand dollars paid on this certificate, or whether it belonged to the defendants. An examination of the statute incorporating the association, discloses that its real and avowed purpose was to aid, assist and relieve members and their families during the life of the members, and aid and assist their families after death. Laws 1879, chapter 496, §§ 5, 6. After declaring such to be the purpose and object of the association, the statute authorizes it to accumulate a fund which may be set apart and paid over “ to the families, heirs or representatives of deceased members, or to such person or persons as such deceased members may, while living, have directed.” In Bishop v. G. L. E. O. of M. A. (112 N. Y., 627; 21 St. Rep., 811), which was a case involving the construction of a phrase in all respects like this, it was held that “ the families, heirs or legal representatives ” meant and included those who would take such property in cases of intestacy.

The doctrine of that case is decisive of this, unless the by-laws of the association have changed the persons entitled to the benefit under such a certificate, where no designation has been made. The provision relied upon to effect that change is, that “ in case of a failure of or imperfect designation, then the amount shall be paid to the legal heirs of the deceased member. ” The words “ legal heirs ” are inapt and inappropriate when applied to such property; hence it is obvious that they were not used in their strict legal sense. Nor do we think they were intended to include only the “ next of kin.” As we have already seen, the purpose of the association was to aid, assist and relieve members and their families during the life of the members, and upon their death to aid and assist their families. Manifestly, this by-law was established in contemplation of the purposes of the association, and with an intent to carry them into effect. We cannot believe that after the purposes of the association to aid and assist the families of deceased members had been so carefully and plainly stated, the association intended by its by-laws to so change that purpose as to aid only their heirs-at-law or next of kin, and thus ignore the wife of a member, who, with him, when living, constituted his family. The words “ legal heirs ” should be construed with reference to the general purpose of the association, and when so construed, were, we think, intended to describe the person or persons who would take such property in cases of intestacy. This construction is consistent with the statute, seems to give effect to the real purpose of the association, and is, we think, sustained by the authorities. Hannigan v. Ingraham, 55 Hun, 257; 28 St. Rep., 530 ; Lawton v. Corlies, 127 N. Y, 100, 106 ; 37 St. Rep., 925; Heath v. Hewitt, 127 N. Y, 166; 38 St. Rep., 687 ; Griswold v. Sawyer, 125 N. Y., 411; 35 St. Rep., 396 ; Woodward v. James, 115 N. Y., 346; 26 St. Rep.. 147 ; Brooklyn M. Relief Assn. v. Hanson, 53 Hun, 149 ; 24 St. Rep., 704.

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

Hardin, P. J., and Merwin, J., concur.


text:
    Daniel B. Hayden, Executor, Resp’t, v. The Wheeler & Tappan Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Corporations—Ratification of agreement made by secretary— Evidence.
    In an action against a corporation for rent, it appeared that the agreement for such rental was made with the secretary of the defendant company; that it continued to occupy the premises and never returned the keys to plaintiff; that it had notice of the lease through copies sent to the company’s headquarters in another city and never returned, and by bills sent for rent; also, by the fact that before the suit was commenced an action against the defendant to recover the rent of the same premises for five months was settled and the rent paid, defendant knowing that such suit was for the rent. The court held that the agreement between plaintiff and defendant’s secretary was not binding on defendant, but submitted the question to the jury, whether the defendant had ratified the same. Held,, that the court properly submitted the question of ratification to the jury, and their verdict for plaintiff was justified by the evidence.
    2. Same—Charge.
    In sucli case the court declined to charge “ that upon the evidence in this case the defendant was under no legal obligation to pay the money on the first suit,” having already charged that if they found that the agreement was as claimed by plaintiff, yet, that there was no evidence to show that the secretary had any authority to bind the defendant, and then submitted to them the question of ratification. Held, that the court properly declined to charge as requested.
    Appeal from a judgment for $50.75 damages and $106.89 costs,' entered in Onondaga county on the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the trial justice.

      The action was to recover the rent of stores number 401 and 408 South Clinton street, Syracuse, N. Y., for the month of December, 1891. The plaintiff had leased these stores to one Jefferson Young in June, 1891, for a term commencing the first of July,
    1891, and ending the 80th day of April, 1892. The plaintiff claimed that on the 16th of July, 1891, by an agreement between himself, Young and the defendant, he leased the stores to the defendant for the balance of said term at a rental of fifty dollars á month; that the agreement for such rental was made with Robert Forsyth, who was then the secretary and treasurer of the defendant. The plaintiff also claimed that he made a desk and railing for Young, and that Forsyth agreed for the defendant to pay for the same, as well as for the rent of said stores.
    The evidence tended to show that the defendant continued to occupy the stores and never returned the keys to the plaintiff; that the defendant had notice of the lease and agreement made by its secretary and treasurer through the written leases which were sent to the company' in Chicago, laid on the company’s desk and not returned, and by bills subsequently sent to the defendant for rent, also by the fact that before this suit was commenced, an action against the defendant to recover the rent of the stores for the months of August, September, October and November was settled by it and the rent for those months paid, the defendant knowing that such suit was for the rent of the stores for those months and the desk and railing for which its secretary agreed to pay.
    On the trial the court held that the agreement between the plaintiff and the defendant’s secretary was not binding upon the defendant, but submitted the question to the jury whether, under all the facts and circumstances disclosed by the evidence, the defendant had, with full knowledge of the facts, ratified the agreement claimed by the plaintiff to have been made with Forsyth for the defendant. The jury found in favor of the plaintiff, and rendered a verdict for the sum of $50.75.

      Wandell & Magee, for app’lt; L. E. Fuller, for resp’t.
   Martin, J.

A careful examination of the evidence leads us to the conclusion that the court properly submitted to the jury the question whether the defendant ratified the agreement of its secretary and treasurer to hire the premises in question until May, 1892. We are also of the opinion that the evidence was sufficient to justify the verdict, and that the court properly denied the defendant’s motion for a non-suit.

The appellant, however, contends that the court erred in declining to charge “that upon the evidence in this case the defendant was under no legal obligation to pay the three hundred and fourteen dollars on the first attachment suit’’ It had already charged that if they found that the agreement was as claimed by the plaintiff, yet, that there was no evidence to show that the secretary and treasurer had any authority to bind the defendant, and then submitted to the jury the question whether there had been a ratification of the agreement, stating that if there had been no ratification, it must find for the defendant, but if it found that there had been a ratification of the agreement, it must find for the plaintiff.

At the request of the defendant, the court then charged, “ that in the teeth of the by-laws of this defendant, no verbal lease entered into between this plaintiff and Robert Forsyth, as secretary and treasurer of defendant, could impose any legal obligation upon the defendant; that under the by-laws and manner of contracting of this defendant, as indicated by said by-laws, Robert Forsyth, as secretary and treasurer of this defendant, could not bind under a verbal lease this defendant for the rental of these stores from plaintiff, even though plaintiff had no notice of the existence of such by-laws.” The court also further charged, “ that if the jury found that this attachment was ordered paid by this defendant in ignorance of the circumstances and material facts, and the nature of the attachment, then such order of payment was not a ratification of any unauthorized alleged agreement between this plaintiff and Robert Forsyth.”

By this examination of the charge, it will be seen that the court •had already charged that the contract made by the defendant’s secretary and treasurer with the plaintiff was not binding, and subsequently charged that if the jury found that the attachment was paid in ignorance of the circumstances and material facts that the order of payment was not a ratification of any unauthorized alleged agreement between the plaintiff and its secretary and treasurer. Moreover, the question for the jury to decide was not whether the defendant was under any legal obligation to pay the three hundred and fourteen dollars on the first attachment suit, but whether the defendant bad so far ratified the agreement made by its secretary and treasurer as to become liable for the rent sought to be recovered in this action. In view of the charge of the court upon this subject, it seems quite manifest that it properly declined to charge as requested, as it had already charged as favorably to the defendant as it was entitled. We think the defendant’s exception to that portion of the charge was not well taken.

As our attention is called by the appellant’s brief to no other exception, and as we find none that is sufficient to justify a reversal of the judgment, it follows that the judgment and order should be affirmed, with costs.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


text:
    Dan S. Richards, Resp’t, v. Levi Crocker et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Deed—Cottstructiott.
    One S. executed and delivered to his three sons, E. I. and L., a deed which conveyed to each an undivided one-fourth part of his farm, at the same time executing and delivering to L. a deed of the remaining undivided one-fourth of the farm, conveying the same to L., “his heirs and assigns forever,” with all the grantor’s right, title and interest therein, to have and to hold the same unto the grantee “ upon the trusts, nevertheless, and for the uses, interests and purposes hereinafter limited, that is to say,

      upon trust to receive the issues, rents and profits of said premises and apply the same to H. during the term of his natural life.” The part constituting the grant was printed, that declaring the uses written. H. was a son of S. Thereafter S. deeded the undivided one-fourth last deeded to L. to plaintiff, ‘"subject to the life interest of H., created by deed of trust to L.” Held, that the purpose of the deed to L. was to convey the premises in trust for H., and that there was no intent to convey to him any other or greater estate.
    2. Real property—Action to recover—Proof of damages for use and
    OCCUPATION WITHOUT AVERMENT.
    In an action to recover the possession of real property, where the complaint demanded judgment for the possession of the property, and a sum as damages for withholding the same, but did not contain any averment of damage, the plaintiff is entitled to prove, and if he recover judgment establishing his title, to recover damages for the use and occupation of the premises in question from the commencement of the action to the time of trial.
    Appeal from a judgment, entered in Broome county May 11, 1892, on the decision of the court, a jury trial having been waived and the action tried by the court without a jury. The judgment awarded to the plaintiff the possession of the premises described in the complaint, $75 damages for the use, occupation and withholding the possession thereof, and $103.40 costs'.
    The action was to recover the possession of certain real estate situated in the town of Union, Broome county, IT. Y., known as the westerly portion of Crocker’s Island, and contained about seventeen and one-third acres of land. Prior to April, 1852, the premises, of which those in question formed a part, were owned and occupied by Samuel Crocker. On the 7th day of April, 1852, he executed and delivered to his three sons, Elias, Eli and Levi, a deed which conveyed to each, an undivided one-fourth part of his farm, which contained about eighty acres of land, including the portion of the island belonging to him.
    At the time of the execution of the deed to his sons, Elias, Eli and Levi, he also executed and delivered to Levi Crocker, one of the defendants in this action, a deed of the remaining undivided one-fourth of his farm, the material provisions of which deed were, “ That the said party of the said first part (Samuel Crocker), for and in consideration of the sum of one hundred dollars, lawful money of the United States, to him in hand paid by the said party of the second part (Levi Crocker), at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, remised, released, conveyed and confirmed, and by these presents doth grant, bargain, sell, alien, remise, release, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, all that equal undivided fourth part of all that piece or parcel of. land situate in the town of Union (which js therein described by metes and bounds), the said party of the first part hereby reserving to himself, during his natural life, the use of two square rooms of the first story, consisting of kitchen and bed-room, the privilege of the cellar, and of cutting necessary fuel on the above premises, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and also all the estate, right, title, interest, property, possession, claim and -demand whatsoever, as well in law as in equity, of the said party of the first part, of, in or to the above described premises, and every part and parcel-thereof, with the appurtenances, to have and to hold, all and singular, the said hereinbefore granted and desci'ibed premises, with th% appurtenances, unto the said Levi Crocker, upon the trusts, nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared, that is to say, upon trust to receive the. issues, rents and profits of the said premises, by leasing or otherwise, and apply the same to the use0of Hiram Crocker, during the term of his natural life, as follows: First, the said Levi Crocker shall pay. the annual .annuity to the party of the first part, during the term of his natural life, according to the requirements and conditions-of a certain bond and mortgage, this .day executed, by the said Hiram Crocker, to the pai'ty of the fil-st part; secondly pay the one-fourth part of a certain bond and mortgage, executed this day by Levi Crocker, Elias Crocker, Eli Crocker and Hiram Crockerpthe said rents, issues and profits of.the said premises, or so much thereof "as shall be necessary, shall be applied to the use and benefit of the said Hifazn Crocker, as aforesaid, and-for his use and benefit, during the term of bis natural life.” At the same time, a bond and.mortgage was executed by Eli, Levi, Elias and Hiram Crocker to their" sisters, to secure the payment to them of the sum of $800, and also a bond and mortgage to Samuel Crocker, executed by Eli, Elias, Levi and Hiram, to secure to Samuel the .payment of an annuity from each of $35.71, for and during the term of his natuz-al life. . °
    About one year after -.the execution and delivery of the deeds already mentioned, and on the 12th and 13th of May, 1853, a jiar-tition deed was executed by Elias Crocker and wife, Eli Crocker and wife, Levi Crocker and wife, Samuel Crocker and Hiram Crocker, by which the farm in question was partitioned between the,parties By such .partition, the portion of the premises described in the complaint was set off to Levi Crocker, as trustee for Hiram, to be held by him .for the uses and purposes set forth in the foregoing deed.
    Subsequently, and on the 10th day of October, 1855, in consideration of $150, that day paid' him by the plaintiff, Samuel Crocker executed, acknowledged and delivered to the plaintiff.a deed or instrument in writing, under seal, of’which the following is a copy:
    “ Know all men by these presents, that I, Samuel Crockei’, of the town of Union, Broome county, Hew York, have bargained and sold, and by this instrument do convey unto Dan S. Bichareis, of the said town, and to his heirs and assigns forever, in consideration of the sum of $150, to me in hand paid, the receipt whereof is hereby acknowledged, all that certain piece or parcel of land, commonly called the ‘ Crocker Island,’ situate in the Susquehanna river, in the said town of Union, and which is nearly opposite lot Ho. 218 in the Chenango township of the Boston purchase, and also nearly opposite the Choconnt Creek which runs into said river, through the lands of Jesse Richards from the north ; excepting from this conveyance, however, about three or four acres from off the upper end of said island, now owned by Benjamin Chambers.
    “ This conveyance is made subject to the life interest of Hiram Crocker in said island, which was created by a deed of trust to Levi Crocker, of date about April 8,1852, which deed is recorded in Broome county clerk’s office, in book of deeds Ho. 37, page 431, and as recreated or modified by a partition deed by Samuel Crocker, Hiram Crocker, Levi Crocker, Eli Crocker and Elias Crocker, which is recorded in Broome county book of deeds Ho. 40, page 258, by which deed the property held in trust by Levi for Hiram was partitioned off and shifted from that mentioned in the deed of April, 1852, to the island herein mentioned, which then became and now is the property which Levi holds in trust for Hiram, with a remainder over to me. This deed is intended to convey my remainder and the fee to said island, subject only to said Hiram’s life interest.”
    Ho consideration appears to have been given for the deeds from Samuel to his sons, Levi, Elias and Eli, and to Levi as trustee for Hiram, except the payment of the annuity and debt mentioned in the two mortgages given, one to Samuel Crocker and the other to his daughters.
    Hiram Crocker died in the month of February, 1890. This action was commenced on the 17th of April, 1890. In the month of April, 1890, the defendants were in the possession of that portion of the island which is described in the deed to the plaintiff, except a portion acquired by the Hew York, Lackawanna & Western Railroad Company. Before the commencement of this action, and in said month of April, the plaintiff demanded possession of the premises of the defendants, which was refused, and the plaintiff was excluded from the possession thereof and his right therein denied, the defendants claiming that the defendant Crocker was the owner in fee and the defendant Robinson his tenant. The value of the use and occupation of the premises claimed by the plaintiff which the defendants withhold from him, from the commencement of the action to the time of the trial, was seventy-five dollars.

      Millard & Stewart, for app’lts; D. S. & R. B. Richards, for resp’t.
   Martin, J.

A deed by Samuel Crocker to Levi Crocker of one-fourth of his farm in trust to receive the rents and profits of the land and apply them to the use of Hiram during his life would have been valid. (R. S., part 2, chap. 1, title 2, art 2, § 55.) If such was the character of the deed given, then Levi held the premises as a trustee of a valid express trust, and the title to the premises vested in him, and not in Hiram; but Samuel still possessed the right to grant or devise the land, subject to the execution of the trust. (Secs. 60, 61.) When the purposes for which the trust was created ceased the estate of the trustee ceased, and the estate conveyed to the trustee and not granted by him reverted to the grantor, his heirs, devisees, or those claiming under him, to the same effect as though such trust had not been created. (Sec. 67.)

If, therefore, the deed from Samuel to Levi conveyed the premises to the latter in trust to receive the rents and profits thereof and apply them to the use of Hiram during his life, upon the termination, by the death of Hiram, of the purpose for which the trust was created, the estate in Levi ceased and the title reverted to the plaintiff as the grantor of Samuel Crocker. Whether the deed from Samuel to Levi conveyed to the latter the premises in trust to receive the rents and profits thereof and apply them to the use of Hiram during the term of his natural life, or whether it conveyed to him (Levi) the absolute fee in the premises, is the real question to be determined in this case.

In construing this deed it is our duty to carry into effect the intent of the parties, so far as it can be collected from the whole instrument. Such is the mandate of the statute (R. S., part 2, chap. 1, title 5, § 2), and such the rule which must be applied in this case. Syracuse Savings Bank v. Holden, 105 N. Y., 418 ; 8 St. Rep., 29.

“ The intent, when apparent and not repugnant to any rule of law, will control technical terms, for the intent, and not the words, is the essence of every agreement. In the exposition of deeds, the construction must be upon the view and comparison of the whole instrument, and with an endeavor to give every part of it meaning and effect.” 2 Devlin on Deeds, § 887; Coleman v. Beach,. 97 N. Y, 545. Where a contract is partly printed and partly in writing, the written matter must prevail over the printed, in case of a conflict between them. Hill v. Miller, 76 N. Y, 32; Clark v. Woodruff, 83 id., 518. If a deed contain a clause clearly showing the intention of the parties, ambiguities and inconsistencies in other clauses will not defeat such intention. Bent v. Rogers, 137 Mass., 192. The circumstances connected with the transaction and the situation of the parties may be considered in arriving at their intent (French v. Carhart, 1 N. Y, 96; Field, v. Munson, 47 id., 221; Bridger v. Pierson, 45 id., 601), and regard must be had to the nature of the instrument itself, the condition of the parties executing it and the objects which they had in view. Clark v. Devoe, 124 N. Y, 120; 35 St. Rep., 206.

By the deed under consideration the grantor conveyed to the grantee, his heirs and assigns forever, an undivided one-fourth of the premises described, with all the grantor’s right, title and interest therein, to have and to hold the same unto the grantee, “ upon the trusts, nevertheless, and to and for the uses, interests and purposes hereinafter limited, described and declared, that is to say, upon trust to receive the issues, rents and profits of the said premises, by leasing or otherwise, and apply the same to the use of Hiram Crocker during the term of his natural life.” In preparing this deed a printed blank form of deed was used. The portion constituting the grant was printed, while the part declaring the uses and purposes for which it was given was written. The evidence shows also that when this deed was given the grantor was the owner of the whole of the premises described, which contained about eighty acres of land; that he deeded to his three sons, Eli, Levi and Elias, each an undivided one-fourth part thereof; and that his son Hiram was then feeble in intellect or diseased in mind.

The circumstances disclose an intent and purpose on the part of the grantor to make provision for his four sons. For Eli, Levi and Elias, by deeding to each an undivided one-fourth of his farm, subject to the payment to him of a certain annuity and an equal portion of a mortgage thereon. Having thus disposed of three-fourths of the farm equally between the three, he then evidently intended to provide for his more unfortunate .son by transferring the remaining one-fourth to Levi, in trust, to receive the rents and profits and apply them to the use of Hiram, who was incompetent to care for himself, and not to convey to Levi another one-fourth of the premises in fee. That the chief and only purpose of the grantor in conveying the one-fourth transferred to Levi in trust was to devote the rents thereof to the use of Hiram is, we think, quite obvious. We find no sufficient evidence in the deed or elsewhere to justify the conclusion that the grantor either intended to transfer the premises to Levi absolutely in fee, free from any trust in Hiram’s favor, or that he intended that Levi should acquire an absolute title subject to a trust to receive and expend the rents and profits thereof for Hiram’s benefit during his life. Applying to this deed the rules relating to the construction of written instruments to which attention has been called, considering the situation of the parties, the manifest object that the grantor had in view when it was given, giving proper effect to the written portion, and considering all its provisions, we are led irresistably to the conclusion that the purpose and intent of the deed was to convey to Levi a one-fourth part of the premises in trust to receive the rents thereof and use them for the henefit of Hiram, during his life, and that there was no intent to convey to him any other or greater estate therein.

The mere fact that the clause in the deed showing that it was intended as a deed in trust for the purposes mentioned was in the habendum clause, was not, we think, material in determining the intent. Phænix Ins. Co. v. Continental Ins. Co., 87 N. Y., 401.

We are, therefore, of the opinion that the conveyance to the defendant Levi Crocker in trust for the use of Hiram passed to Levi as such trustee an estate in the premises during the life of Hiram ; that upon his death the title reverted to the plaintiff, as Samuel Crocker’s grantee; that the farm having been partitioned by the deed, to which all the persons then interested in the lands were parties, the partition as thus made is binding upon them and their grantees; and that the plaintiff was entitled to the possession of the premises in question when this action was commenced.

On the trial, the defendants offered to prove by the testimony of the defendant Crocker that when the premises were partitioned, the plaintiff, in the presence of all the parties to the partition, told the defendant Crocker that he would be the sole owner of the property in question after the death of Hiram. This was objected to as “ immaterial and incompetent, and the rights of the parties are fixed by the written instrument; that paroi evidence cannot be given to vary or contradict the terms of this instrument or change their legal effect or affect any rights Mr. Eichards subsequently acquired under his deed from Samuel Crocker; and, also, the matter is collateral and not evidence, and cannot be given to contradict Mr. Eichards on any matter brought out in cross-examination by defendants’ counsel.” This objection was sustained, and the defendants excepted.

“ Defendants’ Counsel: Now, I put the same question and for another purpose, viz.: to show the intention of all the parties, the grantor being present at the time the paper was executed. Objected to on the ground that the intention of the parties must be gathered from their language as embodied in the written instruments. Objection sustained. Defendants except.”

Defendants’ Counsel: “ Mr. Eichards is plaintiff in this action. He has already gone on the stand and testified that Mr. Crocker told him he was acting' as trustee. Now, then, I propose to show what Mr. Eichards told Mr. Crocker in regard to the very matter.”

The Court: “ I don’t think it is proper under that theory, because it was not related to the time spoken of by Mr. Eichards.”

Defendants’ counsel then said: “ I offer it for another reason. I claim that Mr. Crocker was induced to sign this partition deed upon the statements made to him by plaintiff, that he was taking the fee in that property subject to the life estate of Hiram, and that after the death of Hiram the property would be his.” The same objection was interposed, and, in effect, sustained, to which the defendants excepted.

We find in these rulings no error which would justify us in disturbing the judgment. It was in effect an offer upon the part of the defendants to show that when the partition deeds were given, the plaintiff, who was not at that time a lawyer, expressed the opinion that, upon the death of Hiram, the defendant Crocker would become the sole owner of the property. This evidence was not admissible to vary, contradict or change the legal effect of the deed under consideration, or to show the intention of the parties to the deeds which had been executed about a year before. Neither do we think the evidence was admissible upon the theory that the plaintiff would be estopped by such a statement from claiming under the deed subsequently given to him by Samuel Crocker, as it was conceded that such statement was not fraudulently made.

When the plaintiff attempted to show the rental value of the property, it was objected to on the ground that there was no claim in the complaint for use and occupation. The plaintiff’s counsel then asked leave to amend, and the court said that the complaint might be regarded as amended so that it should include a claim for use and occupation not to exceed $1,000. To this ruling the defendants objected “ on the ground that it sets up a specific cause of action, and we are not to try but one cause of action; the cause of action alleged in the complaint,” and excepted to the decision of the court in allowing such amendment. The appellants now contend that the court erred in allowing the complaint to be thus amended, and cites the case of Larned v. Hudson, 57 N. Y., 151, to sustain his contention. It was plainly decided in that case that under the Code of Procedure such an amendment could not be properly allowed, and that a complaint which asked to recover the possession of real estate, with damages for withholding it, was insufficient to justify the admission of evidence of the value of the use and occupation.

Has the Code of Civil Procedure changed the rule ? The appellants claim not, and cite Clason v. Baldwin (56 Hun, 326 ; 31 St. Rep., 350), as sustaining their claim. The case cited holds the doctrine contended for, but when we follow it to its conclusion, we find that, upon a second appeal, after a retrial, the general term again held the same doctrine (20 Civ. Pro. Rep., 291, 294; 87 St. Rep., 213), and the judgment was modified by reversing so much of it as permitted a recovery of damages for the use of the premises. From that decision an appeal was taken to the court of appeals, where it was held that in an action to recover the possession of real property, where the complaint demanded judgment for the possession of the premises, and a sum named as the plaintiffs damage for withholding the same, but did not contain any averment of damage, the plaintiff was entitled to prove, and if he recovered judgment establishing his title, to recover incidental damages for withholding possession after the commencement of the action, including rents and profits, or the value of the use and occupation computed from the commencement of the action, and that the demand in the complaint was sufficient to apprise the defendant to meet the plaintiff’s proof in regard thereto.

It was, however, intimated in the opinion in that case that a recovery of the rents and profits, or the value of the use, as a part of the damages for a time' prior to the commencement of the action, might not be authorized. 129 N. Y., 183; 41 St. Rep., 496; 21 Civ. Pro., 383.

The plaintiff in the case at bar was awarded by the decision and judgment seventy-five dollars damages for the value of the use and occupation of the premises in question from the commencement of the action to the time of its trial. Following the decision of the court of appeals in the case cited, it must be held that, under the complaint as it was originally drawn, (¿he plaintiff was entitled to recover the damages awarded, and, therefore, the allowance of the amendment, even if erroneous, in no way prejudiced the defendants, and furnishes no ground for reversal.

Examining the defendants’ exceptions to the exclusion of evidence as to the condition of Samuel Crocker when the conveyance to the^ plaintiff was made, we find that a portion of the evidence rejected was that of the defendant Crocker as to the condition of his father during the last two or three years of his life. ^ This evidence was objected to as incompetent, immaterial and inadmissible, and calling for a transaction or communication with the decedent, under whom the plaintiff claimed. It was, we think, properly rejected. The defendant Crocker was a party, and the plaintiff derived his title from Samuel Crocker, deceased. We think the evidence was within the inhibition of § 829 of the Code of Civil Procedure. Holcomb v. Holcomb, 95 M. Y., 316. In that case it was said: “ The words of exclusion are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive - impressions or information from the conduct, condition or language of another. The statute is a beneficial one, and ought not to be limited or narrowed by construction.” In that case it was held that testimony was improperly received of interested witnesses as to conduct and actions of the deceased, tending to show his enfeebled and dependent condition, and as to statements made by him, although not addressed to the witness and made in ignorance of his presence. Matter of Eysaman, 113 N. Y., 62; 22 St. Rep., 136 ; Heyne v. Doerfler, 124 N. Y., 505; 36 St. Rep., 497. The only other evidence that was rejected bearing upon the condition of Samuel Crocker at the time of the giving of the deed to the plaintiff was that of Eli Crocker, who was a son of Samuel Crocker, to whom a portion of the property would descend if the plaintiff’s deed was held invalid. He was asked the question, What was his (Samuel Crocker’s) health during the last three years of his life ?” This was objected to, on the ground that the witness was disqualified from testifying upon this question by § 829 of the Code of Civil Procedure, and the objection was sustained. This ruling seems to be justified by the doctrine of the cases cited. In the Holcomb case it was held, that next of kin were interested in the event of the action within the meaning of § 829.

If, however, it be admitted that the court erred in excluding the evidence of these witnesses, still, we do not think it sufficient to justify a reversal of the judgment, as the defendants proved by the witness, Martha Crocker, the condition of Samuel Crocker during the last two or three years of his life, and there was no evidence to contradict that given by her, nor does it .appear that they sought to prove anything different -by the witnesses whose evidence was excluded. She testified that she lived in the same house with the decedent, that they lived together, that during the last two or three years of his life he was feeble, and did not go out much the last two years of his life. We do not find in these rulings any sufficient error to justify a reversal of the _ judgment.

_ Having examined all the exceptions and questions raised by the appellants’ brief, and having found no sufficient error to justify us in interfering with the judgment, it follows that it should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J. and Merwin, J., concur.


text:
    Henry M. Lawson, Resp’t, v. James Hill et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 9, 1892.)

    1. Costs—Adjournment—Code Civ. Pro., § 3255.
    ■ Section 3255 of the Code, limiting the power of a court as to the costs and disbursements to be imposed on adjourning a trial, applies to the postponement of a trial from one term to another, as well as a postponement to a later day in the same term.
    2. Same—Disbursements.
    In such case, to authorize an allowance for witness fees, the affidavit used before the taxing officer must show that the witnesses named were subpoenaed, their residence, the distance traveled by each, that the party had paid out or become liable for such fees and that they were rendered ineffectual by such postponement. A mere statement that the subpoenas were served on the witnesses at specified places and the distance of such places from the place of trial is not sufficient.
    Appeal from an order of the Oneida special term, made June 11, 1892, denying defendants’ motion to review the clerk’s taxation of costs under an order adjourning the cause until a subsequent term.
    At the circuit it was ordered “ that-this case go over this term, and that defendants pay plaintiff, or his attorneys, term fee and all fees of witnesses subpoenaed to attend this term by or on behalf of the plaintiff and all taxable disbursements of this term, and that such costs and disbursements be so paid within ten days from taxation or adjustment thereof by the clerk.”
    The plaintiff subsequently proceeded to have the costs and disbursements awarded by the order taxed by the clerk of Oneida county. They were taxed at the sum of seventy-six dollars and forty-four cents, of which amount sixty-five dollars and ninety-four cents were for witness fees. The only probf of disbursements or witness fees was the affidavit of the plaintiff, which was as follows; “ Henry M. Lawson, being duly sworn, says that he is the plaintiff; that deponent personally served a subpoena in the above entitled action on the following named persons, at the time and places hereinafter stated, to wit: on Wm. P. Chase, at Rochester, N. Y., one hundred and thirty-four miles from court house in Utica, H. Y.; on Wm. Grilmore, at Rochester, U. Y., one hundred and thirty-four miles from court house in Utica, H. Y; on Lewis Wells, at Pavilion, H. Y, one hundred and sixty-seven miles from court house in Utica, 1ST. Y.; on Daniel Allen, at Pavilion, 1ST. Y, one hundred and sixty-seven miles from court house in Utica, U. Y; and on Greorge Thomlinson, at Perry, U. Y, one hundred and ninety-one miles from court house in Utica, N. Y., for the present circuit term of court now being held at Utica for one day, to wit: May 10, 1892 ; that each of said persons are material and necessary witnesses for deponent upon the trial of this action, and their fees, respectively, are truly set opposite their respective names respectively, to the best of deponent’s knowledge.”
    On the taxation the defendants made the following objection, among others, to the taxation: “ Third. Defendants object to taxation against them, of any of the ‘ witness fees ’ in plaintiff’s said bill, on the grounds that the affidavit upon or accompanying the same is insufficient as a basis for taxing the amount or amounts claimed; that no affidavit or proof is presented showing or tending to show or establish that the witness fees ’ claimed were, or that any part of them was ever, in fact, paid or disbursed by or in behalf of the plaintiff ; that no affidavit or proof is presented tending to show or establish that the amount oramounls claimed for witness fees were ever actually disbursed; that it does not appear by any proofs or affidavit that said alleged witness fees ’ were necessarily incurred as disbursements herein, nor that they were or are reasonable in amount; nor does it appear that each and every of the persons named were necessary and material witnesses for the plaintiff, and nothing was or is specified or stated so showing; that no item or items of disbursements in a bill of costs can be allowed or taxed unless it or they appear, by affidavit or legal proofs, to have been necessarily and actually incurred, and that no such affidavit or legal proof is here presented as to the disbursements of ‘ witness fees’ herein.” This objection was overruled by the cleric, and the defendants excepted. Subsequently the defendants made a motion at special term to review such taxation, and to have the items objected to stricken from the bill of costs as taxed; which motion was denied.

      S. M. Lindsley, for app’lts; Henry F. & James Coupe, for resp’t.
   Martin, J.

This court held in the case of Inderlied v. Whaley (26 St. Rep., 7), that where the costs of a term were required to be paid by an order postponing a trial, the disbursements rendered ineffectual by such postponement, including witness fees paid for the term, which could not be recovered back, were a part of such costs. It was also held that to authorize an allowance for witness fees in such a case, the affidavit used before the taxing officer must show the residence of each witness, the distance traveled,, that the party claiming them had paid or was liable for such fees,, and that the sums paid were rendered ineffectual by such postponement.

Section 8255 of the Code of Civil Procedure limits the power of the court on adjourning a trial to requiring the party applying for the adjournment, as a condition thereof, to pay ten dollars costs, the fees of witnesses, and the taxable disbursements rendered ineffectual by the adjournment. Kennedy v. Wood, 54 Hun, 14; 26 St. Rep., 84.

We do not think the respondent’s claim, that putting the case' over the term was not an adjournment within the meaning of §• 3255, can be sustained. That that section was intended to apply to postponement of a trial from one term to another, as well as a postponement to a later day in the same term, we have no doubt. Hence, it follows that the conditions imposed could be none other than those mentioned in that section, and the plaintiff did not, by virtue of the order postponing the trial in this case, become entitled to any fees or disbursements except those mentioned in § 3255.

The important question on this appeal is, whether the affidavit of the plaintiff was sufficient to justify the clerk in taxing the witness fees allowed. The plaintiff’s affidavit failed to show when the witnesses named therein were subpoenaed, and, therefore, failed to show that the fees were a disbursement already paid or incurred when the order to postpone was granted, nor did the affidavit show the residence of the witnesses, the distance traveled by each, that the plaintiff had paid out or become liable for the fees claimed, or that they were rendered ineffectual by the postponement. We think the plaintiff’s affidavit was insufficient to justify the clerk in taxing the witness fees allowed ; that he. erred in overruling the defendants’ objection to the sufficiency of the plaintiff’s affidavit; that the order appealed from should be reversed, an order granted directing a new taxation of plaintiff’s costs and disbursements before the clerk of Oneida county, and upon such retaxation either party should have leave to furnish such additional affidavits and papers as he or they may deem proper and necessary.

Order of special term reversed, with ten dollars costs and disbursements of this appeal, and motion for new taxation before the clerk of Oneida county granted, with leave to use, upon the new taxation, such further affidavits or papers as either party shall deem necessary.

Hardin, P. J., concurs; Merwin, J., not sitting.