author: Haight, J.

text:
    Rosa Cullin, Resp’t, v. Supreme Tent of Knights of Maccabees of the World, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    Insurance—Mutual benefit.
    Where a member of a mutual benefit insurance company revokes his designation of the beneficiary without making another, it will be treated as though none had been made.
    Motion for a new trial on exceptions ordered to be heard at general term, in the first instance, after direction of a verdict in favor of plaintiff.
    TP. H. Nourse, for pl’ff; Q. M. Rider, for def’t.
   Haight, J.

The principal exception brought up for considera tior, was taken to the direction of a verdict in favor of the plaintiff. This action was brought to recover the sum of $2,000 upon an endowment certificate issued by the defendant to the plaintiff’s husband. The defendant is a corporation organized under the laws of Michigan, having its principal office at Port Huron in that state. Its object, among other things, is “ to establish a benefit fund or funds, from which on satisfactory evidence of the death of a member of the order who has complied with all its lawful requirements, a sum not exceeding $2,000 shall be paid to the widow, children, dependent, mother, father, sister or brother of a member, as he sh(all direct, and as the endowment laws provide,” etc. Subordinate tents are established at different places, under charters issued under the supreme tent. Under such a charter there was organized at Olean, N. Y, a subordinate tent known as “Riverside Tent No. 10.” On or about the 12 th day of February, 1890, John Guilin, the plaintiff’s husband, upon his own application, was admitted as a member of the Riverside Tent No. 10. and thereafter, and on or about the 10th day of March, 1890, the defendant issued to him its certificate of endowment No. 7,128, which, among other things, contains the following provision : “ This certifies that Sir Knight John Guilin has been regularly admitted in and is recognized as a member in good standing of Riverside Tent No. 10, located at Olean, N. Y, and that, in accordance with and under the provisions of the laws governing the order,, his legal beneficiary named herein is entitled to receive one assessment on the membership, not exceeding $2,000, and said sum will be paid as a benefit to Mrs. Margaret Rochford, his niece, dependent, upon satisfactory proof of his death, together with the surrender of this certificate,” etc. '

John Guilin died on the 12th day of September, 1890. The complaint, among other things, alleges that: “ After the death of said Guilin, satisfactory proofs of death were made out and forwarded, and this certificate surrendered to the defendant, in compliance with the laws, rules and constitution of the defendant in such case made and,provided, and payment thereof duly demanded, which was refused.”

It is further alleged in the complaint: “That the said certificate of insurance was made payable to one Margaret Rochford, dependent, and that said John Oullin, on the 1st day of July 1890, being of sound mind and memory, revoked said direction of payment to said Margaret Rochford, and died without leaving any legal directions as to its payment; * * * and with knowledge of such revocation on the part of the defendant it received several assessments, dues, and per capita tax thereunder, and continued said insurance.”

These allegations are not denied by the answer, and, therefore, for the purposes of the trial, stand as admitted facts in the case. Does the plaintiff, as the widow of John Guilin, become entitled to the fund upon his death, the direction of payment to Mrs. Rochford having been revoked ? This question must be determined from the constitution of the defendant. The right of revocation appears to be sanctioned by article II, § 10, of 'the constitution, which provides that: “ No transfer of a certificate will be binding on this association unless consent is given thereto by the supreme commander and supreme record keeper, and the surrender to this association of the certificate so transferred or assigned.’

The certificate could not well be transferred or assigned to another without a revocation of the payment directed to be made to the beneficiary therein named. The transfer referred to is by the member of the order. This is apparent from thve sentence which precedes that quoted, which limits the right of a member to transfer the certificate to any person other than his wife, children, dependents, mother, father, sister or brother. There must, therefore, be a revocation of the direction to pay the beneficiary named, and then a transferr or an assignment to another person can be made only upon the consent of the supreme commander and supreme record keeper, but no consent to a revocation of the direction to pay to the person named appears to be required. Section 11 of the same article provides that: “ In the event of the death of all the beneficiaries named by the member before the decease of such member, if no other disposition be made thereof, the benefit shall be paid to the beneficiaries of the deceased member, first, in the order named in the preceding section ; and, if no person or persons shall be found entitled to receive the same by the laws of the order, then it shall revert to the endowment fund of this association.”

It is claimed, however, that this section has no application to the case under consideration for the reason that it is limited to an event in- which the death of all the beneficiaries precedes that of the member, and the member has neglected to designate another beneficiary. But in this connection we have the concluding clause of section 7 of article 4, which provides that: “In case no direction is made by the member in such certificate, and he leaves no widow children, dependents, father, mother, sister or brother, the benefit shall revert back to the endowment fund of the supreme tent.” So that it is apparent, from this provision, that it was not intended that the fund should revert to the supreme tent or to the association, should the deceased leave a widow, children, dependents, father, mother, sister or brother; and the inference is that it was intended and understood that, in case no direction was made by the member in the certificate, as to the person to whom the endowment should be paid, it should be paid to the widow, children, etc., in the order named, in case she or they survive him. Section 11 and section 7 should be read and construed together, and, when so considered, the intention is, to our minds, quite apparent; and it is that, in the event of the death of the beneficiaries named in the certificate before the decease of the member, and if no other disposition be made thereof, or in a case where no direction has been made by the member in such certificate, the benefit should be paid to the beneficiaries of the deceased member first in the order named in section 10, which is first, to the widow, if there be one ; if not, to the children, if any survive; if not, to the dependents, etc. It is true the plaintiff first designated Mrs. Rochford as thfe beneficiary in the certificate , but he subsequently revoked such designation, and thereafter the certificate remained without any designation. Mrs. Rochford would not be entitled because her designation had been revoked. The fund would not revert to the supreme tent because the constitution provides that it shall only so revert back in case the member does not leave a widow, children, etc. We think, therefore, that the certificate must be treated as if no designation had been made, and that, under our interpretation of the sections quoted, the plaintiff becomes entitled to the fund.,

Upon the trial, three reports of the finance keeper of the subordinate tent to the supreme tent were offered in evidence for the purpose of showing that John Oullin had been suspended as a member of the order for the non-payment of assessment No. 53. They were objected to and rejected by the court. L. A. Mallory, was the finance keeper. These reports made out by one J. J. Quigley, who testified that he was authorized by the finance keeper to make out the reports in his name. They contained statements to the effect that John Oullin was suspended August 10th for non-payment of assessment No. 53. Mallory was sworn as a witness upon the trial, and testified that he was the finance keeper of the Riverside Tent; that assessments were payable to him; but he does not state that any assessment was due and owing from Oullin at the time of his death, or that he had been suspended because of the non-payment of any assessment. No evidence'was introduced showing that the supreme tent had, by resolution or otherwise, made any such assessment. There was evidence to the effect that the Bee Hive was the official paper of the order, in which notices of assessment were printed. It appears that a bundle of the BeenHive papers came to the post office in Olean, and that John Guilin’s name was on one of the papers ; but as to whether the paper contained notice of any assessment the case is silent. So that we have no evidence that any such assessment was ordered, or evidence of the service of any notice of it upon John Oullin, or evidence that all of the assessments were not paid by him to the finance keeper. There is only the report of Quigley, the local record keeper, made out in the name of the finance keeper, above referred to. We think the reports were not evidence, and that they were properly excluded by the court.

Under the view taken by us, the evidence to the effect that Mrs. RoehEord was not a dependent was immaterial; but it could do no harm, for the fact was alleged in the complaint, and was not denied by the answer.

It was not necessary to prove service upon the association of the proofs of death, for that fact as we have seen, was also alleged in the complaint, and not denied. The defendant’s motion for a new trial should be denied, and judgment ordered for the plaintiff upon the verdict.

All concur. -t


source: Caselaw Access Project

author: G-aynor, J.

license: Public Domain

text:
    George W. Dalton, Pl’ff, v. John H. Vanderveer, Def’t.

      (Supreme Court, Kings Special Term,

      Filed May 24, 1894.)

    1. Partnership—When not created.
    An agreement, by which the owner of land secures the experience and assistance of another in laying out such land in lots and streets and selling it off by lots at auction or private sale for a certain share of ’the proceeds above a slated amount, does not create a partnership, but an agency.
    2. Same—Nature op action.
    Upon a discharge of such agent, the relief is an action at law for damages for breach of contract for services, and not a suit in equity.

      3. Same—Damages—How proven.
    In such action, past sales furnish proof of the time and effort required to complete the contract, and thus tend to establish the amount of damages.
    4. Trial—Mode—Equitable action.
    Whére the complaint is framed solely for equitable relief, and upon the trial it is found that the plaintiff is not entitled to such relief, the court cannot entertain the action to give judgment for damages or to amend the complaint so as to change the action into one at law.
    5. Pleadings—Answer—Adequate remedy at law.
    Where the facts stated in the complaint make the action an equitable one solely, and not of legal cognizance, the defendant cannot properly, and need not, plead that, upon the actual unpleaded facts, the plaintiff has an adequate remedy in an action at law.
    6. Courts of chancery—Sketch.
    Brief sketch of the origin and jurisdiction of courts of chancery, given, and distinction between legal and equitable remedies noted.
   G-aynor, J.

The complaint alleges in sum and substance that the defendant owned a tract of 65 acres of land, and in order to secure the experience and assistance of the plaintiff in laying it out in lots and streets, and selling it off by lots at auction or private sale, entered into an agreement of co-partnership with the plaintiff, whereby the plaintiff was given a certain interest in common with the defendant in the lands and the future proceeds of sales thereof; that out of such proceeds the defendant was first to be paid the moneys expended in preparing the land for sale by lots, as aforesaid, the agreement requiring him to advance it all; and then $8,000 an acre for the tract, after which the over-plus, if any, should be divided between the parties, the plaintiff’s share to be one-quarter; and that after the plaintiff had so plotted and prepared the land for sale, and a large number of lots had been actually sold, the defendant notified the. plaintiff that he dissolved the partnership, and refused to go any further with the enterprise as a joint one ; and the prayer is for a judgment declaring the plaintiff to be a part owner of the land, for the appointment of a receiver to sell the land and for an accounting and division.

The answer denies the co-partnership, and alleges that the plaintiff was only the employe of the defendant.

The proof shows that there was no co-partnership, but that the plaintiff was employed as an agent by the defendant to prepare the land for sale and sell it, as aforesaid, and that for his services he was to be paid one-quarter of the over-plus, as already stated; and that after the contract had been partly performed, a large number of sales having been made, the defendant discharged the plaintiff. The cause of action which the proof presents is therefore one for damages for breach of contract for services. The amount already realized from sales is easily ascertained. Past sales furnish evidence of the time amd effort it would take to sell off all of the lots, and also of the price for which the lots can be sold, and it would not be difficult to otherwise prove their value; so that no difficulty would be encountered in proving the damages which the plaintiff has sustained by the breach of the contract, In this state of the case may the conrt go on and assess the dam- < age in this or must the complaint be dismissed ? The complaint states a case which is within the'jurisdiction of equity, and is not , an action at law, but the evidence fails to sustain the complaint, and also fails to make out any case which is within the jurisdiction of equity. This being so, must not the complaint be dismissed ? The origin of the high court of chancery in England was due wholly to the inability, and, to a limited extent, the unwillingness, of the common law courts to entertain and give relief in every case, and thus meet all the requirements of justice. The common law courts paid such deference to forms and precedents that they became slaves to them. Their jurisdiction was thus circumscribed. They adhered to certain precise writs and rigid forms of action which were not sufficiently comprehensive to enable them to give adequate redress in some cases of injustice and wrong, or to give any redress in many others. In such cases the aggrieved person was remediless, except he could get a hearing of the king himself. Petitions by those in such case were, therefore, frequently presented to the king, asking for relief of him as matter of grace, because it could not be got of his courts. From the fact that the king usually referred such petitions to his secretary, called his chancellor, they came in course of time to be presented to the chancellor directly by the suitors themselves; and thus, gradually, and at a time which history cannot enable us to precisely fix, the court of chancery came to be established. As is seen, its jurisdiction was wholly extraordinary. Relief was afforded by it only in those cases wherein the common law courts either could give no redress at all, or could not give adequate redress ; and any one coming to chancery with a case which did not need its extraordinary jurisdiction, but could be adequately dealt with in the common law courts,.'was- dismissed for lack of jurisdiction. Thus, side by side there existed the court of chancery and the common law courts, each with a distinct jurisdiction, the test of chancery’s jurisdiction, in any given case being that the suitor could either gei no relief, or could not get adequate relief, in a court of common law. And, therefore, necessarily there also grew up, not only two distinct systems of practice in thése courts, but also two distinct systems of substantive jurisprudence, that in the court of chancery being the-system which we call equity. In the formation of the government of this state these-two distinct kinds of courts and systems were given a place from the beginning, and the court of chancery here was clothed with the general jurisdiction and powers of the high court of chancery in England. Separate courts thus administered these separate systems of jurisprudence in this state until, by the Constitution of 1846, the court of chancery was abolished, and its jurisdiction and powers were devolved upon the supreme court. From that time on the same court has administered justice under both systems; but, all the same, the two systems have necessarily preserved their identity and continued to exist. The court of chancery is gone, but the system of equity jurisprudence remains, and is still administered, ■but by the same court which also .administers the common law system. There is only one court to administer both systems, but they remain distinct systems. This much have I said, because we seem sometimes to lose sight of it, and think otherwise. The cause of this is no doubt the enactment in our first Civil Procedure Code of 1848, and found in our present revised Code of Civil Procedure, namely: “There is only one form of civil action. The distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished ” (§ 8839). But this enactment relates only to the two systems of practice, and has no reference to the two systems of substantive jurisprudence. They still exist side by side, but the separate systems of practice under which they were formerly administered have been abolished, and the one system of our practice statute substituted. It is in this view that our court of appeals has said that “the distinction between legal and equitable actions is as fundamental as that between actions ex contractu and ex délicto, and no legislative fiat can wipe it out,” Gould v. Cayuga Bank, 86 N. Y. 83; and again that “the names of actions no longer exist, but we retain in fact the action at law and the suit in equity,” Stevens v. The Mayor, 84 N. Y. 304; and again that “although the distinction between actions at law and suits in equity is abolished, the distinguishing features between the two classes of remedies, legal and equitable, are as clearly marked and rigidly observed as they ever were, and this is necessary to the administration of justice in an orderly manner and the preservation of the substantial rights of suitors,” Chipman v. Montgomery, 63 N. Y. 230. In a word, the forms are all that are changed. The two distinct systems of justice still remain, though they are administered by the same court, under one system of practice.

This brings me down to saying what must be done with this action. Under our existing system both actions at law and suits in equity being brought in the same court, they are in regular course placed upon separate calendars by the parties themselves, namely, actions at law upon the calendar of causes to be tried by a jury, and equity actions upon the calendar of causes to be tried by the court without a jury.

When chancery existed as a separate court, if a suitor came there with a common law action he was dismissed for lack of jurisdiction. But now if a plaintiff place an action at law upon the equity calendar, and notice it for trial there, he may not be dismissed out of court. The court may, of its own motion, refuse to hear it, and send it to the jury calendar; or, if the court be willing to hear it, the defendant may, nevertheless, by demanding a jury trial, have the cause sent to the jury calendar; and if he do not so demand he waives the right to a jury trial and confers jurisdiction upon the court to hear it without a jury; and the rule is the same whichever side has so placed it upon the calendar and noticed it. (Code Civ. Pro. § 1009.) The cause of action stated in the complaint in this action being wholly equitable, and in no aspect constituting an action at law, the case was properly placed upon the equity calendar and noticed for trial there by the parties. For the same reason the defendant had no right to demand a jury trial. The case presented by the complaint was not one which entitled the plaintiff to a jury trial, and he was bound by the complaint in that respect. It cannot, therefore be claimed that he has waived a trial by the jury of the cause of action presented by the evidence. Nor can it be said that by failure to plead in his answer that the defendant had an adequate remedy by an action at law he has waived his right to so claim now. When chancery existed as a separate court, and a suitor came there asking for equitable relief upon a statement of facts in his bill upon which he could get full, complete and adequate relief in an action at law, the chancellor was free to so inform him and refuse to be vexed by his ‘ suit, but in order that the defendant might so insist, and have the suit dismissed on his motion, it was necessary for him to so plead in his answer, in default of which he was held to have waived that defense and submitted the cause to the chancery for equitable disposition, provide'd that court could in the end make any such disposition of it; and such is still the fule of pleading. Grandin v. LeRoy, 2 Paige, 509; - Wiswall v. Hall, 3 Paige, 313; LeRoy v. Platt, 4 Paige, 77; Truscott v. King, 6 N. Y. 147; Town of Mentz v. Cook, 108 N. Y. 504 ; 13 St. Rep. 845; Ostrander v. Weber, 114 N. Y. 95 ; 22 St. Rep. 979; Watts v. Adler, 130 N. Y. 646; 41 St. Rep. 325. But the facts stated in the complaint made the action at bar an equitable one solely, and not of legal cognizance, and therefore the defendant could not properly have pleaded that the plaintiff had an adequafe remedy in an action at law. “He was not required to plead that upon the actual facts which the plaintiff had not pleaded the plaintiff could get adequate redress in an action at law. He was only required to plead to the complaint; and the complaint being framed solely for equitable relief, it being found upon trial that the plaintiff is not entitled to such relief, the court cannot entertain the action to give judgment for damages or to amend the complaint so as to change the actión into one at law. Wheeloch v. Lee, 74 N. Y. 495 ; Oakville Co. v. The Tack Co., 105 N. Y. 658 ; 7 St. Rep. 528 ; Bockes v. Lansing, 74 N. Y. 437.

The complaint is therefore dismissed with costs.


text:
    Margaret A. Root, Resp’t, v. John R. Strang, as Executor, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1894.)

    1. Bills and notes—Payable after death.
    A promissory note, payable at a certain time after the death of the maker, is valid.
    2. Same—Burden. ¡
    The consideration need not be expressed therein or proved in an action thereon; the burden of showing a want thereof is upon the defendant.
    3. Same—Consideration.
    Where the consideration expressed is “for services rendered,” it is sufficient without any express promise on the part of the maker to pay therefor.

      4. Married woman—Services.
    Where the husband stands by and sees the employer pay his wife for services rendered by her, he acquiesces in such payment and surrenders to her any right thereto which he might have had to them
    Appeal from a judgment entered on a verdict in favor of the plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      J. B. Adams, for .app’lt; li. F. Remington and M. Fillmore Brown, for resp’t.
   Haight, J.

This action was brought upon a promissory note, of which the following is a copy:

$10,000. Looneyville, August 1, 1889.
In consideration of valuable services rendered to me, I promise to pay my niece, Margarett A. Root, or order, ten thousand dollars, at or after my decease. Collins Woodruff.
The above note executed by me, and delivered to my niece, Mrs. Margarett A. Root, of Looneyville, New York, I do hereby declare to be given to compensate her for her long and faithful services rendered to me, and for her devotion, and many kind and repeated acts of kindness and affection bestowed upon me during my life, while residing with, and making my home with, her, at her residence, in Looneyville; & I deem the amount of said note but a just and adequate compensation for all of her long-continued services, kindness, & devotion to me, in sickness and health, during my life. COLLINS WoODBUEF.
Dated August 1, 1889.
Witness:
Chester A. Root.
Margarett A. Root.
Margarett S. Root
Henry McDermitt.

The principal issue of fact litigated upon the trial was as to the genuineness of the signature of the defendant’s testator, and we are asked to review the determination of the jury upon that issue. It appears that the instrument was drawn by the late Alfred Ely, of Rochester, at the request of the defendant’s testator; and the persons signing as witnesses thereto, with the exception of the plaintiff, each testified that they saw him sign the same, at Looneyville, on the first day of August, 1889, and deliver it to the plaintiff. There is evidence on the part of the defense tending to show that Woodruff was not in Looneyville on the first day of August; that on that day he was in Rochester. It is quite possible that the plaintiff’s witnesses are mistaken in reference to his being'in Looneyville on that day. We are aware that mistakes in reference to dates are liable to occur. The instrument, as we have stated, was drawn in Rochester by Mr. Ely, and the date, August 1st, appears to be in his handwriting. It may be that it was drawn on the day of its date, and was not taken to Looneyville by Woodruff until the next day. But this fact, if such it be, would not, in. our judgment, seriously impair or affect the testimony of the plaintiff’s witnesses in referen.ee to the signing of the instrument by Woodruff, or his delivery of the same to the plaintiff. There, consequently, is evidence that sustains the finding of the jury upon this branch of the case.

As to whether the finding of the jury is against the weight of ■evidence, we do not think the question is before us for consideration. Much of the testimony of the expert witnesses has been omitted from the case, and none of the exhibits with which they made comparisons were produced before us. We, consequently, are not in a position to consider the evidence, or to determine the weight or effect it should have upon the verdict.

It is contended that the note is invalid, the defendant claiming that there is an inadequate consideration to support it. The note itself recites the consideration “of valuable services rendered.” The instrument which follows it declares it to be given to compensate the plaintiff “ for her long and faithful services rendered to me, and for her devotion, and many kind and repeated acts of kindness and affection bestowed upon me during my life, while residing with, and making my home with, her, at her residence, in Looneyville.” In Carnwright v. Gray, 127 N. Y. 92 ; 38 St. Rep. 56, it was held that an instrument by which the signer agrees to pay to another a sum certain at a time specified after his death, is a valid promissory note; that it is not necessary to its validity that a consideration be expressed therein, or proved in an action thereon; that the instrument imports a consideration, and,the burden of showing a want thereof is upon the defendant. Has the defendant in this case shown a want of consideration ? The testator, at the time of making the note, was aged, and in feeble health. He had no children, and his wife had died some years before. The plaintiff was the niece of his wife. It is apparent from his letters that he regarded her with much affection, and that he had on various occasions visited her at her home, and there remained several weeks at a time. The evidence further tends to show that on some occasions he was quite feeble, and that the plaintiff cared for him. There is therefore evidence of some consideration, and this, we understand, is sufficient. In Worth v. Case, 42 N. Y. 362, the plaintiff had nursed and tended the defendant’s testator through a severe illness, and upon his recovery he delivered to her a sealed envelope-superscribed with her name, and the addition, “This is not to be unsealed while I live, and returned to me any time I wish it,” signed by him. After his death she opened the envelope, and found therein his promissory note for $10,000, payable to her on demand. It was held that she was entitled to recover the amount against the estate of the testator. In Earl v. Peck, 64 N. Y. 596, it was held that mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence is not a defense to a promissory note. In that case the defendant’s testator had taken, by mistake, a fatal dose of aconite, and, being aware of his approaching death, executed and delivered to the plaintiff, his housekeeper, a promissory note for $10,000. The consideration expressed was “for services rendered.” It was held that the note was valid, although the amount was greater than the value of the services rendered. See, also, Cowell v. Cornell, 75 N. Y. 92, 98. It is claimed that these cases are not decisivo of the question involved in this case, for the reason that the plaintiff’s services were rendered without any express promise on the part of Woodruff to pay therefor. It does not appear to us that there is force in this contention ; for, after the services were performed, Woodruff recognized the plaintiff’s labor as valuable, and agreed to pay therefor by delivering the instrument in question.

It is further contended that the plaintiff had no right to receive compensation for her services; that her services belonged to her husband ; and that he, alone, was entitled to the compensation,— and in support of such contention the defendant calls our attention to Blaechinska v. Howard Mission, 130 N. Y. 497; 42 St. Rep. 387; Porter v. Dunn, 131 N. Y. 314; 43 St. Rep. 193; Coleman v. Burr, 93 N. Y. 17. But it does not appear to us that these cases are in point. The plaintiff’s husband stood by, and saw Woodruff pay the plaintiff for the services she had rendered. He subscribed the instrument by which the payment was made. He thus acquiesced in the payment to his wife, and thereby surrendered to her any right thereto which he might have had. This view renders it unnecessary to enter upon a consideration of the relation existing between husband and wife as to services rendered by her. These questions have been considered by this court in the cases of Burley v. Barnhard, 9 St. Rep. 587, and Stamp v. Franklin, 35 St. Rep. 828 ; 12 N. Y. Supp. 391.

We have examined the exceptions taken to the admission and rejection of evidence, but find none which we think requires a new trial.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur; Bradley, J. not sitting.


author: Van Wyck, J.

text:
    Matthew Baid, Resp’t, v. John Spence, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Payment—Check—Presumption.
    No presumption arises that a check, which post-dated the debt, was the debtor’s own and not received by the creditor in silence, was taken in accord and satisfaction of the debt, especially where the drawer produces it on the trial unpaid and unindorsed by the payee.
    Appeal by defendant from judgment for plaintiff,

      John Mulholland, for app’lt; J. Woolsey Shepard, for resp’t.
   Van Wyck, J.

The summons and complaint were served upon the defendant on January 11, 1894, and the complaint alleges sale and delivery by plaintiff’s assignor, of goods, at an agreed price of $135.10, to defendant on September 30, 1893, on which day the same became due and payable, and demanded judgment for such amount with interest from such last mentioned day. The defendant’s answer denied the assignment to plaintiff and that any sum was due, and plead payment, thus plaintiff was forced to trial to make good his cause of action as well as to meet this af■lirmative plea. However, at trial, which was by the court without jury, defendant conceded the copartnership of plaintiff’s assignors, the assignment to him for benefit of creditors, and his qualifying as such assignee and thereupon undertook the burden of proving his affirmative defense of payment; and his proof is: that on January 12, the day after the summons and complaint were served upon him, he drew his own check to order of plaintiff for 135.10 and sent it to him ; that on the sáme day he received a letter from plaintiff’s attorney saying: “Check for $135.10 received, I will credit this amount upon the judgment in. this action when taken, unless I receive the interest ($2.27) on the amount and costs $16.75) to date before the time for answering expires. If I fail to hear from you-1 will take judgment for the entire amount and credit on the execution $135.10,” and that he made no answer to this letter, or objection to the proposition therein contained. Defendant’s failure to object was his assent to plaintiff’s proposition, and if plaintiff had retained the check and collected the same, the defendant must pay the penalty by costs, of forcing plaintiff to trial, by his denying material allegations of the complaint, but it appears that plaintiff did not retain and collect the check, for defendant at trial produces the same unendorsed by plaintiff, although drawn to his order, and had it marked in evidence as his (defendant’s) exhibit A., and he then testifies: “1 did have funds in the New York County Bank to meet that check and I have them still there.” The defendant appellant insists that he has successfully carried the burden of proving his plea of payment, and that it was reversible error for the jucjge, the' trier of both law and facts, to have held against him. Arid his counsel first assumes that defendant’s own check was accepted by plaintiff without condition, and then says: “It is well established that whqre a person entitled to be paid in money for goods sold, accepts a check or draft, good"at the time it is given, he cannot afterwards hold the person paying in that way, even though the paper should be dishonored when presented for paymentbut this is not a correct statement of the law, for he must accept it in payment of the debt; however, it is true, that if a creditor re-. ceives from his debtor the check or note of a third person contemporaneously with the payment of a debt, the presumption is that it was agreed to be taken in payment, and the burden of proving the contrary rests on the creditor. This is the rule as regards a ])resent debt, but it is different in respect to a precedent debt, for where the note or bill of a third person is received on a precedent debt, the presumption is that it. was not taken as payment, and ‘ the burden of establishing that it was agreed to be so taken is upon the debtor. But in neither case is the presumption conclusive, and in either it can be overcome by proof of an agreement contrary to the presumption. In this case the debt ante-dates this .transaction, the check was the debtor’s own, and the creditor did not receive it in silence, and yet his counsel insists that the legal presumption is that it was taken in accord and satisfaction of the debt, notwithstanding his client produced it on the trial unpaid and unendorsed by the payee. That appellant will be called upon for about $200 costs is due entirely to' his improper effort to pay only the principal of a just debt which his creditor is compelled to collect by suit, and to avoid'the payment of less than $20 interest and costs accrued by reason of his own default. The defendant did not except to the findings of the court, nor did he make requests to find.

The judgment is affirmed with costs, ,

Ehrlich, 0. J., concurs.


text:
    William I. Denny et al., Resp’ts, v. Levi Blumenthal et al., App’lts.

      (New York City Court, General Term,

      Filed May 18, 1894.)

      1. Bail—Exoneration.
    Leave to surrender in exoneration of bail will be denied, in the discretion of the court, where the application is not made until after the dismissal of the appeal taken by the sureties in an action on the bond, and no sufficient excuse is offered for such delay.
    2. New trial—Newly discovered evidence.
    Tlie affidavits of the witnesses, who are to testify as to the newly discovered evidence, must be submitted on the motion for the new trial.
    Appeal by defendant Blumdnthal from order denying his motion for new trial and for permission to surrender his bail and serve amended answer.

      David Leventritt, for Blümenthal app’lts; 'Charles G. H. Wahle, for resp’ts.
   Van Wyck, J.

Appellant’s motion below was for a new trial on the ground of surprise and newly discovered evidence and for permission to surrender one Harris, the person for whom he" and his co-surety had became bail, and to serve an amended answer setting up such surrender in exoneration of bail, and that the plaintiffs had improperly caused the sheriff to return the executions issued against the property and body of such person under the judgment obtained by them for a debt fraudulently contracted by him and in which action the undertaking here sued upon, was executed by these defendants to secure the release from the custody of the sheriff of such person, and his motion was denied by the order appealed from, and in order to properly consider this appeal it is necessary to give a short history of the action. After these plaintiffs had obtained judgment in the original action against Harris, for whom these defendants became bail, and the executions against his property and body were returned unsatisfied and not found, they began tins action against the-bail in July 1893 by complaint, alleging the necessary facts, to which defendants answered denying the issuing and return of the executions against Harris, and affirmatively alleging that when the execution was issued against his body “ he was, has ever since been, and is now, within the jurisdiction, and that the sheriff made no effort to apprehend him.” If there was any truth in their plea that he was then within the jurisdiction, they should have surrendered him in. exoneration of bail, before answering, under § 591 of the Code. And again, when their attention was called to the weakness of their affirmative plea, as a defense against these plaintiffs, on the argument of the motion made by plaintiffs at special term for judgment on the answer as frivolous, they failed to ask the court for permission to so surrender the bail after the service of the answer. That motion, of course, was denied, as the answer was. not frivolous, because it put at issue material allegations of the complaint, to wit, the issue and return of the executions. They did not seek such permission to surrender their bail, nor to amend their «answer, and the plaintiffs were forced to trial to make proof of their material allegations which were denied by the answer, and such trial was had in October, 189.8, on which these defendants-appeared a,nd defended, and which resulted in a verdict and judgment against them. So for the second time in court they had been informed that their affirmative plea of the presence of the-principal debtor within the jurisdiction during the life of the-execution, against his body, might give them cause of action against the sheriff, butvwas no defence as against these plaintiffs. Why did they not then apply to the court for leaver to surrender in exoneration of bail ? Because notwithstanding that they had been twice informed, in court that their affirmative plea was insufficient, in law, they still doubted the correctness of such informationand appealed from the judgment and stipulated in writing to argue such appeal at the December general term, but defaulted, and their appeal was dismissed with costs. This default on their application was opened at the January general term, upon terms with which they never complied, but instead, served notice of withdrawal of appeal and stipulation to pay costs of same, and they have not paid the costs because their attorney differs with plaintiffs’ attorney as to the amount. Then in February last, came this motion by defendant Blumenthal, for a new trial on the , ground of surprise and newly discovered evidence, and for leave to surrender in exoneration of bail and serve amended answer, setting up surrender, and the improper interference by plaintiff with the return of the executions. There was"no surprise as to Haris' presence within the jurisdiction, for defendants so alleged in their original answer, and this certainly is not newly discovered evidence, nor is any excuse offered for not surrendering him before answer, or after answer and before judgment, or after judgment and before appeal, except that they assumed to,know the law and that the-court did not, and the able counsel who now represents them, (but did not then) asks that it be adjucated, that this is a worthy and meritorious excuse, calling for a reversal of the order made-below denying their application. How as to the newly discovered evidence that plaintiffs improperly requested the sheriff to return the executions before the day named for return of same. The defendant Blumenthal avers that he is credibly informed and verily believes that plaintiffs so questioned the sheriff. But he does not state by whom he was credibly imformed, nor what are the facts which lead him to verily believe, and the inevitable inference isy that no one so informed him, and that there are no such facts, and moreover the plaintiffs’attorney and the deputy sheriff and his assistant who had the execution of these writs in charge, aver on knowledge, that there was such interference. The rule is, that the affidavits of the witnesses who are to testify as to the newly discovered evidence must be submitted on the motion for new trial and can be forced from such witnesses under § 885 of the Code. Garvey v. U. S. Horse Show, 52 St. Rep. 261; 22 N. Y. Supp. 929. Mo such affidavits are submitted and no such witnesses are named. The denial of defendant’s application to the favor of the court was eminently proper, and if it had been granted it would have met reversal here. Order affirmed with costs. Ehrlich, 0. J. and McCarthy, J., concur.


text:
    Augustus P. Dudley, Resp’t, v. Herbert L. Satterlee, as Executor, etc., App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    1. Appeal—Direction op verdict.
    The court should not direct a verdict for plaintiff upon the testimony of a witness, hostile and adverse to defendant, though it constitutes the entire evidence in the case.

      2. Witness—Impeachment—Contradiction.
    A party has' the right, for the purpose of discrediting the testimony of an adverse and hostile witness, to prove statements made by him contradicting the testimony given by him, after the requisite examination of the witness in regard to such statements, whether they are statements pf fact or expressions of opinion.
    Appeal by defendant executor from judgment on verdict for $310 for plaintiff for medical seriviees rendered by him to a third person at the request of the testator, and the jury having been instructed by the court that they must find for $200, and could find for the larger sum provided that certain additional services were performed at testator’s request.

      R. E. Deyo and G. H. Kracht, for app’lt; Shepard & Prentiss, for resp’t.
   Van Wyck, J.

The doctor, plaintiff sues the executor of Travers to recover the value of his services as attending physician and operating surgeon, to one Mrs. Davis, at the request of the testator, both of whom died before the trial of the cause. The court’s direction to the jury to find certainly for" $200, and their finding as to the additional sum rests entirely upon the testimony of the lawyer witness called on plaintiff’s behalf, and as his testimony became, by the decease of both Mrs. Davis' and Travers, incapable of contradiction, he must be subjected to the severest scrutiny as regards the credibility of his evidence, and of necessity such inquiry can only be made in the light shed from his own testimony, and by which he says: that he was a lawyer, that before and at the time of the conversation which he says he heard between the testator and Mrs. Davis, he was the general counsel of the testator in all matters except those involved in this action, and continued to act as, such general counsel until about the time this action was commenced, that he did act as professional adviser to the testator before his death, in reference to this very claim, then made by the doctor agains't Travers for such, attendance on Mrs. Davis, but not until after this conversation between her and the testator had been overheard by him, and, finally, that he now has pending an action against this defendant as Travers’ executor, for a claim of $4,000 Tor his legal services rendered as general counsel to such testator, and in which is included an item for his legal services and consulations with testator in reference to the claim herein involved. Artd he then, over defendant’s objection and exception, was allowed to testify that he overheard a conversation between the testator and Mrs. Davis in which she said that Dr. Dudley had said that he would perform the surgical operation on her with the necessary attending services for $200, and that she then asked Travers, “ Will you pay for it ?” and he answered that he would. Assuming that this evidence was properly admitted," in view of the fact that he positively swore that at the time of this conversation he had not been retained or consulted by the testator in reference to this*particular matter, nevertheless the verdict as to this $200 should not have been directed by the court on his uncorroborated testimony. If the relation between him and the estator was not that of lawyer and client, it certainly approached it very closely and was extremely intimate and confidential. He was an adverse witness as regards a transaction with two persons who were both dead, and one of them defendant’s testator. He was a hostile witness who, himself, had an action pending against this defendant for $4,000 for legal services rendered to the testator as his genera] counsel and as his special counsel in this very controversy, subsequent, however, to the conversation. The defendant, under the circumstances of this case, was entitled ft) have the jury pass upon the credibility of this hostile and adverse witness, and, as their finding as to the additional sum, was dependent upon the truth of his testimony, the entire case should have been submitted to the jury; and, moreover, an error was committed in not allowing defendant to properly impeach the credibility,of this witness. While under'cross-examination he testified that he remembered going, with the testator, to see Dr Butts, after Dr. Dudley’s claim had been presented, but that he did not state to Dr. Butts that Mr. Travers did not owe this bill to Dr. Dudley, and yet, when the defendant called Dr. Butts, the only witness who could in any way contradict him, as death had silenced the lawyer’s client and the doctor’s patient, he, too, was silenced, on an objection from plaintiff by an erroneous ruling!' Dr. Butts testified that he knew this witness; “ He called at my office with Mr. Travers after Mr. Dudley had threatened to bring suit ? ’’ and lie was quesstioned by defendant’s counsel: “ Was the subject of this suit a matter of conversation between you and this witness?” Plaintiff objected to this question and he was sustained, to which defendant’s counsel excepted, and said : “ I propose to show that this witness, in this interview with Dr. Butts said that Dr. Dudley had no claim against Mr. Travers,” and the same was excluded, to which defendant excepted. The rule as regards the impeachment of the credibility of an adverse and hostile witness is : A party has the right, for the purpose of discrediting the testimony of an adverse and hostile witness, to prove statements made by him contradicting the testimony given by him after the requisite examination of the witness in regard to such statements, and it matters not whether it be a statement of a fact or the expression of an opinion, if it be adverse to the story which he has narrated. See Schell v. Plumb, 55 N. Y. 592, and read the irrefutable reasoning on this subject of Pryor, J., in Effray v. Masson, 45 St. Rep. 296 ; 18 N. Y. Supp. 353. The judgment and order appealed from are reversed, with costs to appellant to abide the event.

Ehríich, C. J. and McCarthy, J., concur.


author: Yan Wyck, J.

text:
    Max Gross, Resp’t, v. Granite State Provident Association, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Judgment—Default—Opening.
    Where the plaintiff has been guilty of laches in making his motion to open a judgment taken by default for costs only, he should be remitted to a new action for the enforcement of his rights if lie has any.
    Appeal by defendant from an order opening plaintiff’s default

      Philip Carpenter, jfor app’lt; Abram A. Joseph, for resp’t.
   Yan Wyck, J.

The record shows that plaintiff entered into an agreement in August, 1890, with his attorney, to give him twenty five per cent, of his recovery in this action, which w'as commenced in that month and a warrant of attachment was issued herein and defendant’s property attached thereunder ; that plaintiff never served a notice of trial or filed a note of issue herein; that in December, 1892, defendant made a motion to dismiss for want of - prosecution and served notice of same upon plaintiff’s attorney who sought and secured an adjournment of same for two days and then defaulted, upon which defendant’s motion was granted with costs of action to date, whereupon, on January 11, 1893, defendant entered a judgment against plaintiff wholly for costs after notice of entry of same and taxation of costs was duly given to plaintiff’s attorney and an execution issued and returned unsatisfied, whereupon, on February 3, 1894, an order in supplementary proceedings was issued and plaintiff was examined thereunder on the 8th of that month. „On March 1, 1894,, over three and a half years after commencement of the action and more than one year after the same had been dismissed for want of prosecution, the plaintiff moved to open his default in the motion to dismiss and his motion was granted, and the default opened by the order from which this appeal is taken. Not a single fact, as above set forth, was denied by plaintiff’s attorney nor "by plaintiff’s own affidavit except that he says he did not personally hear about the case until the judgment was entered, which was more than one year before his motion. The defendant’s judgment was for costs only and the dismissal of the plaintiff’s action was not on the merits, hence, he can bring a new action if he has any cause and if he does not need to amend his complaint for it is indeed doubtful whether it sets forth a cause of action. His motion should have been denied, leaving him to his new action. Judge Yan Brunt says in James v. McCreery, 27 St. Rep. 88, “ There is no good reason why all the damages arising from the negligence of a party or his attorney should be visited upon the opposing party to the action, as would be the case if defaults were to be opened as a matter of course. The plaintiff, in this 'case, has been guilty of laches in the making of this motion and should be remitted to a new action for the enforcement of his rights, if he has any.” And see Wygant v. Brown, 27 St. Rep. 4. The order is re versed, and plaintiff’s motion denied.

McCarthy, J., concurs.


text:
    Catharine Langan, Resp’t, v. Ellis M. Potter et al., App’lts.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    1. DAMASES—WltOKSEUL LEVY.
    The loss of profits consequent upon a tort are allowed, provided they are’ such as might naturally be expected to follow from the wrongful act, and are certain both in their nature and in respect to the cause from which they proceed.
    2. Same.
    If a business is entirely broken up_ or partially interrupted, the amount, previously done, is ordinarily pertipent upon the question of the amount which might subsequently be done.
    .Appeal by defendants from judgment on verdict for plaintiff, and from order, denying new trial.

      Joseph I. Green, for app’its; J. Woolsey Shepai-d, for re'sp’t
   Yan Wyck, J.

The plaintiff began this action against the sheriff for unlawfully taking possession, on July 13, 1893, of. her entire stock of goods, consisting of butter, eggs, lard aftd other goods usually dealt in a First avenue retail grocery store, and also of the premises in which she carried on such business and for retaining such unlawful possession of such goods and the premises for about three weeks, during which time she was entirely excluded from the premises and absolutely prevented from conducting her business. The present defendants are the sheriff’s indemnitors, and, as such, were substituted, herein, in his stead. The verdict was for $416 for plaintiff and her proof is abundantly sufficient to have justified the jury in finding that about one week before the sheriff so seized her stock of goods and store, an inventory was taken of such stock, the reasonable value of which was $1,156.86, to which she added goods of the value of about $350, making the aggregate value of $1,506.86, from which she sold goods of the value of $407, and that the value of the goods in the store and unlawfully seized was $1,099,96, while that three weeks afterwards, when she regained possession, the entire stock in the store was worth but $200, thus showing her damages on stock to be $899.66. It was not disputed that she paid a lawyer $25 for causing the attachment, under which the seizure was made to be vacated, and to the sheriff $66, before he would surrender to her the goods and premises. Her verdict was for only $416, from which deduct the $91 paid to the lawyer and the sheriff, not disputed, and it would seem that the jury had awarded her only about one-third of the amount which, by proof, she' claimed as damages to her stock of goods, and yet the brief of defendants’ counsel is devoted almost entirely to argument that this verdict is against the evidence and the weight of evidence. And the only point of law discussed by the counsel is raised by his exception to so much of the judge’s charge as says : “ The plaintiff has also the right to recover the profits that she would have made had she been permitted to continue in business in this store. Her witnesses claim that her profits would have been $90, and, if you believe that testimony, the plaintiff is entitled to verdict for the profits,” and by his exception to the proof of the facts upon which this charge is based. There was no dispute except as to the measure and value of plaintiff’s damages, and the plaintiff’s uncontradicted proof, as regards loss of profits, was that the sheriff retained unlawful possession of the stock of goods and the store, for about three weeks, during which time he absolutely excluded her from the premises, thus preventing her from conducting her business; that the average daily sales by her in this store, at the time of the seizure, was about $50, upon which her average profit was about twenty per cent, or $5 per day, and, hence, that her profits would have been about $90 for the time during which her business was entirely broken up by the tortious acts of the sheriff. The complaint alleged that by reason of such acts she lost the sale of her goods and the profits which she would have otherwise made. The loss of profits consequent upon a tort are allowed, provided they are such as might naturally be expected to follow from the wrongful act and are certain both in their nature and in respect to the cause from which they proceed. Griffin v. Colver, 16 N. Y. 489 ; Capel v. Lyons, 46 St. Rep. 298. A person who deliberately walks into a retail store, forcibly ejects the proprietor without any right and locks and tightly closes the store, must naturally expect that such proprietor will lose the sale of his goods and the consequent loss of his usual profits during this unlawful interruption of his business, and it is certain that the cause from which this loss proceeds is the act of the tortfeasor, and the nature of the loss of profits is made sufficiently certain by proof of the average daily sales made at the time of the unlawful interruption of the business and the then average profit on such sales. Schile v. Brochhahus, 80 N. Y. 614. In the Schile case the action was based upon defendants’ tort or trespass in so tearing down a partition wall as to leave the plaintiff’s adjoining house, in which he conducted a picture, lithograph and furniture business, open and exposed to the1 weather, and thus causing a partial interruption of his business, and the great chief justice, there writing, says: “When the evidence of the amount of business and profits during the corresponding months of the previous year were offered, the objection was made that it was incompetent for the purpose of proving loss of profits. This objection was not tenable. The fact of the extent of business done previously was competent to be shown. If a business is entirely broken up, the amount previously done is pertinent upon. the question of the amount which might subsequently be done, and the same rule is true of a partial interruption of business.” It would seem that nothing was allowed by the jurjr for this loss of profits, for plaintiff’s proof shows damage to specific property to an amount very much larger than the verdict. The judgment and order appealed for are affirmed, with costs.

Ehrlich, C. J. and McCarthy, J., concur.


text:
    Emma Molloner, Resp’t, v. State Bank, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Appeal—Direction of verdict.
    Where the defendant makes proper effort and is entitled to go to the jury on disputed facts, a direction in favor of plaintiff and a refusal of defendant’s request to have these questions submitted to the jury constitute reversible error. '
    Appeal by defendant from judgment on verdict directed for plaintiff.

      Julius J. '<& A. Lyons, for app’lt; S. Feuchtwanger, for resp’t.
   Van Wyck, J.

The plaintiff’s husband, concededly had full authority to act for her and did actually conduct all the transactions had with defendant, including the making of deposits and the signing of checks, hence his acts and conversations will be described herein as her acts and conversations. The record discloses many nice questions of law which are fully and ably discussed by appellant’s counsel but which it will not be necessary to investigate or discuss here, because this judgment must be reversed for the reason that defendant made proper effort and was entitled • to go to the jury on disputed facts regarding the transaction which is the basis of this action, hence a direction in favor of plaintiff and a refusal of defendant’s request to have these questions submitted "to the jury was reversible error. Plaintiff’s proof shows that on October 9, 1893 she made a deposit of $455.82 with defendant, included in which was a check for $393.17 drawn by Alfred Samuels on the Nineteenth Ward Bank and endorsed by her before so depositing the same, that after making this deposit and the same was credited in her pass book and before leaving the bank, in a conversation bad with the bank’s general bookkeeper and discount clerk, she was informed by him that the bank had just received a letter from Samuels warning it that the check which she had just deposited would not be paid and requesting her to give the batik her own check on it for like amount, to be charged against her account in case this Samuels check, for which she had just been credited, should be returned unpaid, after being sent through the clearing house for collection and that the bank immediately charged her account with this check given by her and made no effort to collect the Saméis check and never returned the same to her. The testimony given on behalf of the defendant by its general bookkeeper and discount clerk is similar to plaintiff’s except as to the disposition made of the Samuels check, and as to this he testifies that Samuels check was returned by him to her the very instant that she gave him her own check for like amount to be and which was immediately charged against her account to offset the credit given her for the Samuels check which had just been returned to her. Now if this testimony of the bookkeeper and discount clerk is true, the plaintiff has no cause of action by reason of that transaction and it is this transaction upon which her cause of action, herein, is founded. The defendant had the right to have the jury pass upon this testimony given on its behalf and this right its counsel asserted at trial by proper effort to be the same submitted to them but which was denied him and to which he excepted, and all of which he impressed upon the record. The judgment is reversed and a new trial granted, with costs to appellant to ¿bide the event.

Ehrlich, 0. J. and McCarthy J., concur


text:
    Carl Rehm et al., Resp’ts, v. William S. Weiss, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    1. Evidence—Conclusions.
    In an action on a lease to recover rent, a witness should not he permitted to give his conclusion that the relation of landlord and tenant existed between the parties, but should be restricted to the conversations which he claims created such relation.

      2. Lease—Bent—Defence.
    In an action on a lease, the fact that there is an outstanding lease under seal of the same premises from the plaintiffs to other persons, from and under whom the defendant occupied, is a defense in the absence of proof of assignment, re-entry or surrender of such lease.
    Appeal by defendant from judgment entered on verdict directed for plaintiffs.

      Chas. Qoldzicr, for app’lt; Ernest II. Ball, for resp’ts.
   Van Wyck, J.

Plaintiffs sue as landlords under an alleged .express letting of certain premises by them to this defendant at the rent of $250 per month, payable in advance, and seek to recover this rent for the months of September and October, 1893. The only witness examined on behalf of plaintiffs, was plaintiff Koch, and the only proof which he made of such letting was by his answers to the following questions, to each of which defendant objected as leading and calling for a conclusion, his objection overruled and his exception duly noted: Q. State to the jury what premises your firm let to defendant? A. The store floor of 157 Fulton Street. Q. Kindly tell me for what months defendant owes your firm rent? A. Part of September and October 1893. Q. How much did you let the premises for per month? A. $250 per month. Q. How much has defendant paid you on account of those two months? A. $200, in various ways. The defendant’s objections to these questions should have been sustained and the plaintiff witness forced to give his conversations with defendant regarding the transactions which he claimed created the relation of landlord and tenant between his ñrm and the defendant, so as to enable the court, if not contradicted, and the jury, if disputed, to determine whether there was such letting creating such relation. This error might have been cured if the witness had subsequently been forced either on his direct, cross or redirect examination, to give any such conversations; but the record does not disclose such proof, and -moreover it shows that when asked under cross-examination whether he could mention any conversation with, defendant about the renting of these premises, he said the only conversation he ever had with defendant, was that in October he asked defendant for the rent and he replied “I have not got it.” This certainly was too meagre to supply the defect in his proof, regarding the creation and existence of the relation of landlord and tenant, for plaintiffs’ action is upon an express demise to recover the rent reserved, and if it was for use and occupation, it could only be sustained on the ground of a subsisting tenancy between the parties. If there could be any doubt (but there is not) that, under the conditions of the case as above described, the defendant was entitled to his motion to dismiss on the ground that plaintiffs failed to show any hiring on the part of defendant, he should have prevailed on his other ground,- that there was at the time of defendant’s occupancy an outstanding lease under seal of the same premises, from plaintiffs to persons other than defendant, whose possession was from and under such other persons, as their tenant, and not as tenant of plaintiffs, the original landlords in such lease. The plaintiff witness, while under cross, admitted the existence of such lease and the same was then marked in evidence, and by its terms plaintiffs demised these same premises exclusively to such other persons “for the term of three years and one mouth from April 1, 1892,” and yet they sue the defendant, who is not a party to that lease, for rent of these premises,,for September and October, 1893, under an alleged express demise of the same to him by them. The defendant was not a party to or bound by this original lease from plaintiffs to such other persons, and it is not claimed that he was an assignee of such lease. There wa^' no suggestion of a written-assignment, and the interest .of such persons named as lessees in this lease, could only be transferred by writing. 2 Rev. St. § 6. And until a re-entry for condition broken, or a surrender of the lease, such persons were the owners of the term created thereby, and the only remedy which plaintiffs had to recover rent was by action on the covenant against them as lessees or their assignees if duly assigned. There is no proof even of a parol assignment of the lease, or of a surrender of the lease, or that plaintiffs regarded the lease as surrendered. On the contrary, on October 12,1893, they addressed a written notice to the lessees named in the lease “as tenants” and to this defendant as “under tenant,” to remove from and vacate the premises,which notice they and this defendant obeyed by vacating, whereupon plaintiffs “gained possession of the premises by having the door forced .open.” There is no evidence which would support a finding that defendant was the tenant of plaintiffs. Assuming that the proof showed (which it does not) that defendant was in exclusive possession of the premises-during September and until October 12,1893, the presumption is that he entered under the original lessees to the lease, whose term was outstanding and in whom the right of possession was vested, as sub-tenant, for there was no assignment to him of the lease, nor surrender of the same to plaintiffs. There was no privity of contract or estate between plaintiffs and defendant and the complaint should have been dismissed; hence the judgment for plaintiffs and the order denying motion for new trial must be reversed with costs to appellant to abide the event.

McCarthy, J., concurs.


author: Van Wyck, J

text:
    John Sullivan, Resp’t, v. William Brooks et al., App’lts.

      (New York City Court, General Term,

      Filed May 18, 1894.)

    Appeal—Evidence.
    Where the verdict is not against the evidence or the weight of evidence, the judgment will be affirmed, in the absence of any exceptions save to the denial of a motion to nonsuit.
    Appeal by defendants from judgment on verdict returned by jury for plaintiff.

      Alex. Thain, for app’lts; Edwin G. Davis, for resp’t.
   Van Wyck, J

The action is for damages for personal injuries received by reason of the negligence of defendants’ servant in so driving a team of horses as to cause the wagon to run upon plaintiff and crush his leg. The verdict was for plaintiff for $250 and is not excessive. The defendants duly excepted to the denial of their motion to nonsuit, on the grounds that" the proof did not show that plaintiff was free from negligence, or that defendants had been guilty of carelessness, and did show that plaintiff’s negligence had contributed to the accident. The plaintiff, a hod-carrier, says: that he was shovelling sand from a pile into a boal hole in the sidewalk when the driver turned his wagon and team, and before plaintiff knew anything he was run down and did not see the team as it backed on him just before it struck his leg because he was shovelling the sand on the sidewalk with his back toward the roadway, and that the driver never hollered or said a word or gave any warning, and before plaintiff knew where he was the wagon was on his leg, and that the driver could have come up another way, and no other driver came up like him, and he could have come up as any other driver did; and two other witnesses testify that just after the accident the defendant Brooks said: “ I am sorry myself; the driver yesterday came pretty near running over me, and I am going to discharge him. That driver went very near killing me, but he will never drive for me again.” However, this defendant denied making such statements. The verdict is not against the evidence, or the weight of evidence, and the judgment and order appealed from are affirmed, with costs. Ehrlich, Ch. J., concurs.


text:
    William J. Townsend, Resp’t, v. Thomas Auld, App’lt.

      (New York City Court, General Term,

      Filed May 18, 1894.)
    1. Bills and notes—Protest.
    Duo demand of maker, non-payment and due notice of same to the indorser is sufficient to charge him on a note, without formal or technical protest.
    2. Same—Proof.
    Proof of any or all of such facts can be made by parol evidence.
    3. Same—Notary’s certificate.
    A notary’s certificate, in case of protest and in the absence of the indorser’s affidavit of non-receipt, is presumptive evidence of such facts as are so certified.
    4. Same—service.
    Notice to an indorser of demand and non-payment may be given through the post office, when such indorser and the sender reside at different post offices.

      5. Same.
    The due mailing of such notice is, in itself, sufficient to charge an indorser.
    Appeal by defendant from judgment, on* verdict directed by the court for plaintiff, and order denying him new trial.

      Theo. H. Friend, for app’lt; Louis F. Murray, for resp’t.
   Van Wyck, J.

The action is against defendant as payee and first endorser of a promissory note, dated New York, and payable at a bank in Tarrytown, which plaintiff took in renewal of a dishonored note for like amount, by same maker, and upon which the defendant was third endorser. The complaint alPeges due demand, non-payment, protest, and notice of same; and the answer denies these allegations and that plaintiff is the holder, while admitting the making of the note, and defendant’s endorsement. The defendant did not at any time, serve, as required by § 923 of the Code, an affidavit to the effect that defendant had not received such notice. 'At trial the notary public’s certificate of protest was admitted in evidence against defendant’s objection that it was not in proper form, in that it did not contain a statement that New York, the place to which the notice was mailed to defendant, was his usual or reputed place of residence. The certificate did not contain such statement, although it stated that such notice had been duly mailed to the first endorser, Thomas Auld, (defendant) directed to New York, and every other fact permitted by § 923 to be so stated. The omission of such statement as to defendant’s residence might have been fatal if the instrument had been a foreign bill of exchange, for such bills must be protested; but this note is an inland bill, executed, delivered and made payable within this State, and as to such bills the rule is that due demand on maker, non-payment, and due notice of same to the endorser is sufficient to charge him, without a formal or technical protest, and proof of any or all of the facts necessary to charge him can be made by parol evidence. This section of the Code says that the notary’s certificate, in case of protest, and in the absence of the endorser’s affidavit of non-receipt, shall be presumptive evidence of certain facts therein named, provided they are certified, which means, presumptive evidence of such facts as are so certified. This certificate contained a statement of every fact permitted by this section, except the one as to defendant’s usual or reputed residence, hence was properly admitted in evidence to prove every fact necessary to charge the endorser, except as to whether the notice addressed to him at New York, was mailed to him at his residence, and proof of this fact was properly supplied by his own testimony, that before such mailing, at that time and ever since, he has resided in New York. This certificate was only presumptive evidence of the other necessary facts, and defendant had the right to show, by extrinsic evidence, that there had been no such demand, non-payment, protest, or such mailing of such notice, which, however, he did not even offer to do. Hence, upon the proof there was nothing to go to the jury upon, and it became the court’s duty to direct for plaintiff, as he did, and moreover, the defendant did not request to go to the jury, but relied upon his two exceptions to the exclusion, on plaintiff’s objection, of evidence offered by him and which will be now discussed. Appellant claims error, because the court would not allow him to say whether or not he had received the notice of protest, etc., which the certificate proved was duly mailed at Tarrytown, addressed to him at New York, which was his actual residence, as shown by his own testimony. This was not error, and to have allowed such proof of non-receipt of notice against plaintiff’s objection, would have been reversible error, if the verdict had been for defendant. The rule of the law merchant has ever been that notice to an endorser of demand and non-payment, may be given through the post-office, when such endorser and the sender reside at different post-offices, and if properly addressed and mailed will charge the endorser, whether he ever receives it or not. How could a honafide holder of a note ever protect his holding by finding proof to contradict an endorser’s statement that he had never received the notice of demand and non-payment sent by mail? The due mailing of such nbtice is in itself sufficient to charge an endorser. Judge Earle in Gawtry v. Doane, 51 N. Y. 89, says: That it may be proper to insert in the endorser’s affidavit, permitted by the Code, the denial of his receipt of notice of protest, but is not a proper denial to insert in his answer, and that: “It is wholly immaterial whether the endorser has received the notice. The only material question is whether notice has been properly served, and the rights of the holder of a note are not affected if the notice does not reach the endorser.” And so, too, it is said in Arnold, v. Rock R. V. R. R. Co., 5 Duer (12 N. Y. Superior R.) 210, that “an answer denying that a notice of protest was received, would deny an immaterial fact.” The defendant’s other exception is to the exclusion of a paper signed by the maker, purporting to certify to this defendant that the note in suit was endorsed by him for the purpose of taking up another note .for like amount, by same maker, also endorsed by this defendant, and then held by this plaintiff under protest. There was not the slightest evidence that this plaintiff knew or ever heard of this paper, and it was, properly excluded for that, if no other reason, and so, too, because it was mere hearsay evidence, and the person signing it was not in court' or his absence explained, and moreover, the very facts to which it purported to certify were fully proven by the best evidence, first by defendant’s exhibit 1, being plaintiff’s letter, acknowledging that the note in suit was given in renewal of the one mentioned in the properly rejected certificate, and secondly, by defendant’s exhibit 2, which is the very note itself, duly endorsed by the payee and-this defendant, and so mentioned in such rejected certificate.

The judgment and order are affirmed, with costs.

McCarthy, J., concurs, Ehrlich, C. J., dissenting.


author: Per Curiam.

text:
    A. L. & J. J. Reynolds Company, Resp’t, v. Third Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

      1. Negligence—Contbibutory.
    The fact that the driver, in crossing a track only 35 feet ahead of a car, does not look to see whether the caris approaching him or not, or how far distant it is, constitutes such negligence as to preclude a recovery.
    3. Same—Compabative.
    The doctrine of comparative negligence is not recognized by the courts of this state.
    Appeal from the district court in the city of New York for the third judicial district.

      John Verno Bouvier, Jr., for app’lt; L. B. Bunnell, for resp’t.
   Per Curiam.

This action was brought to recover damages for injury to respondent’s wagon, resulting from a collision with one of appellant’s cars. In the case of Hamilton v. The Third Avenue R. R. Co., 6 Misc. Rep. 382; 56 St. Rep. 397, this court at general term held that where the plaintiff undertook to cross the railroad tracks seeing a trolley car at a distance of some 40 feet, it was negligence on his part to make such an attempt. In this case while the car was not moving as rapidly as in the Hamilton case, yet the distance was only 25 feet ahead of the car j and it affirmatively appears and is uncontradicted that the plaintiff did not in any way look out to see whether a car was approaching him or not, or how far distant it was. In our judgment that constitutes negligence on the part of the servant which would preclude a recovery in th'is action. It is urged on behalf ,of the respondent, however, that notwithstanding this negligence appellant’s servants could, by the exercise of greater prudence and care on their part, have prevented the collision. Such' an argument brings up the contention of conparative negligence, a doctrine not recognized by the courts o£ this state. As we understand our law, it is that where the plaintiff is guilty of any negligence which contributes to the accident or injury sustained by him, there can be no recovery. That he did thus contribute to the accident in this case in our judgment is clear, and therefore we feel compelled to reverse the judgment and order anew trial, with costs to the appellant to abide the event.


text:
    Loie Applegate, Resp’t, v. Westchester Hardwood Company, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Judgment—Correction.
    Where a judgment is taken in the name of a person, not the plaintiff named in the summons, without any substitution, the record cannot be corected on appeal or remitted for correction.
    Appeal from a judgment rendered in the district court of the city of New York, for the first judicial district.

      George W. Gibbons, for app’lt; John F. Foley, for resp’t.
   Per Curiam.

A summons was taken out of the first district court in the name of William H. Morton, and there is proof of service of the same upon the defendant in this action. On the margin of the summons there is written in red ink the name of Loie E. Appleby, but the name of Morton is not stricken out, nor is the name of Appleby written in such a way as to indicate that he was substituted for Morton, nor is there anything in the subsequent proceedings to show that Appleby or Applegate was at any time substituted in the place and stead of Morton as plaintiff in this action. It is now too late to correct the record or to send the return back for correction, therefore the judgment must be reversed and a new trial ordered with costs to the appellant to abide the event.


author: Bookstaver, P. J.

text:
    Benjamin Bloom, Resp’t, v. Rosa Saberski, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Contract—Services—Plumber.
    Section 5, chap. 603 of 1893, prohibits a recovery for services rendered and materials furnished by a plumber, without compliance with its provisions.
    Appeal from a judgment rendered in favor of the plaintiff in the district court in the city of New York for the fourth judicial district.

      George R FoulJc, for app’lt; Louis R. Finn, for resp’t.
   Bookstaver, P. J.

This is an appeal from a judgment rendered in favor of the plaintiff against the defendant for the sum of $18.50 for services rendered and material furnished by the plaintiff as a plumber. The defense was a general denial and that the plaintiff was conducting business in violation of the statute rol ating to plumbers. In Ferdon v. Cunningham, 20 How. Pr. 154, we held that a contract for services by a public cartman who had not obtained a license as required by a city ordinance which merely affixed a penalty for keeping and using a public cait without first obtaining a license, as void, and an action for services by a cart-man not having a license could not be maintained. Chapter 602 of the Laws of 1892, by the 5th section, expressly provides that any person desiring or intending to conduct the trade, business or calling of a plumber or of plumbing, in any of the cities of this state, or of employing or master plumber, shall be required to submit to an examination before such board of examiners as to his experience and qualification in such trade, business or calling, and after the 1st day of March, 1893, it shall not be lawful in any city of this state for any person to conduct such trade, business or calling unless he shall have first obtained a certificate of competency from such board of the city in which he conducts or proposes to conduct such business, and that it shall not be lawful for any plumber to engage in or carry on the trade, business or calling of an employing or master plumber in any of the cities of this state unless bis name and address should have been registered as therein provided . There is no evidence in this case that he either obtained a certificate or registered as required by this act. But respondent contends that this was not necessary as it was work which any one could do, whether a plumber or not. The answer to this is that upon the return day of the summons when the complaint was formulated, the respondent stated the cause of action in these words, “ work, labor and services and materials furnished as a plumber.” Thus the respondent brought himself most fully within the provisions of this chapter, and on the authority of Ferdon v. Cunningham, supra and many other cases of like character which might be cited, the judgment must be reversed with costs ; and under the circumstances we do not feel warranted in ordering a new trial.

All concur.


author: The Court, (Bookstaver, P. J.)

text:
    Andrew Crawford, App’lt, v. Henry Redding, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Lease—Repairs.
    Dilapidation by gradual decay is covered by an express covenant, on the part of the tenant, to keep the premises in repair.
    Appeal from a judgment of the district court in the city of New York for'the first judicial district.

      Howe & Hummel, for app’lt; B. W. Traitel, for resp’t.
   The Court, (Bookstaver, P. J.)

There is no implied warranty in the lease under consideration that the premises were fit for the purpose for which they were rented ; while there is an express covenant on the part of the tenant that he will keep the premises in repair. The case is barren of any proof that the premises became untenantable by reason of any sudden disaster of any kind ; but the testimony rather tends to show that they became dilapidated by gradual decay which was one of the things the tenant undertook to guard against by his covenant in the lease. The judgment is, therefore, clearly erroneous and it must be reversed with the costs to the appellant.


text:
    Henry Graham, App’lt, v. The Manhattan Railway Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Negligence—Contributory. •
    A passenger, who puts himself where the gates of the car platform cannot he shut, or who goes voluntarily upon a car platform which he knows to he dangerous, assumes the risk which results in injury to him.
    Appeal from a judgment entered on the dismissal of the complaint at trial term and an order denying a new trial.

      Gilbert D.Lamb, for app’lt; Edward B. Thomas, for resp’t.
    Appellant’s counsel having argued that the respondent was guilty of negligence and the appellant was free from it, the court called his attention to the fact that the plaintiff himself testified that when he got on the platform of the car it was so crowded that he could just get f standing-room on it, and that the respondent's servants could not get the gates shut That when he got on at 59th street it was impossible to get in the car. That when the train reached 53rd street and Eighth avenue, he got off the car; that then he was in a place of safety, and that although the platform was not emptied, but as he himself testified, he had no more space to stand in than before, he, knowing his danger, voluntarily went on the platform again, and that this was negligence on his part. To which appellant’s counsel replied, u I think the respondents ought to have taken two or three from that platform and put them over on the platform, they could have closed the gates then. I submit on the testimony of the witness McCabe he could hare taken the passengers off.
   The Court, (Bookstaver, P. J.)

We think on the other hand it was the plain and manifest duty of the appellant when he found how dangerous the condition of the platform was and had reached a place of safety on the 53rd street platform, to wait for the next train and not put himself where the gates of the car platform could not be shut or have voluntarily gone upon a platform which he knew was dangerous, and by so doing took the risk which resulted in the injuries received by him.

The judgment should be affirmed with costs.


text:
    Greenwich Warehouse Company, App’lt, v. Charles E. Maxfield, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Contract—Breach.
    Under a contract to take and store fruit at a temperature ranging from 35 to 40 degrees, the placing it in a temperature which caused it to freeze, not only precludes a recovery for storage but also creates a liability for damages.

      Appeal from the district court of the city of New York for the first judicial district.

      SuUiiian & Cromwell’ for app’It; Abner C. Thomas, for resp’t.
   Bookstaver, P. J.

This action was brought by plaintiff to recover $219.05 storage charges for storing defendant’s fruit, consisting of mandarins and tangerines. Defendant counterclaimed alleging that the fruit was damaged and rendered worthless by being improperly.stored, and judgment was given in his favor for $260 damages and costs. The return does not,, show that any exceptions were taken by either party upon the trial of this action. But appellant contends that notwithstanding this, the judgment should be reversed on two grounds, first that the evidence shows that the defendant knew the temperature at which the room in the storehouse where his goods were placed was kept, and that it was. placed therewith his knowledge and consent and that the plaintiffs were not liable for any damages resulting from the freezing ; also-that it was a very cold day when the fruit was brought to the. storehouse, and that it received the injury complained of during transit from the steamer to the storehouse. The testimony on behalf of the defendant however we think , clearly warranted the justice in finding as he did, that the fruit was to be taken and stored at a temperature ranging from 85 to 40 ; and by failing to do this but placing it in a temperature which caused the fruit to freeze and thus ruining it, the appellant failed to perform .his contract and consequently failed to earn any storage whatever. On the other hand if the appellant failed to keep his contract with the respondent of safely storing and keeping the fruit, it would be-liable to respondent for the damages which the latter sustained by reason of that breach, and consequently the court below had the right to render judgment in favor of the respondent for the amount of the damage up to the extent of his jurisdiction. The judgment should therefore be affirmed, with costs.

All concur.


text:
    Augusta A. Johnson, App’lt, v. John Barg, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Lease—Rent—Eviction.
    An eviction constitutes no defense to an action for rent payable prior thereto.

      A B. Carington for app’It; No one appearing in opposition.
   Per Curiam.

Assuming that an eviction on November 20th,. was proved, it constituted no defence to an action for rent payable on the 1st of that month. Giles v. Comstock, 4 N. Y. 270; O'Brien v. Smith. 37 St. Rep. 41; 13 N. Y. Supp. 408; Rice v. Bliss, 66 How. Pr. 189. The judgment must therefore be reversed and a. new trial ordered with costs to the appellant


text:
    Robert McBratney, Resp’t, v. William C. Heydecker, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Contract—Rescission.
    A contract cannot be rescinded by one party, where the other party, though not intending to fulfil at one time, does so thereafter within the time limited by the contract.
    Appeal from a judgment of the district court in the city of New York for the first judicial district.

      Welch & Daniels, for app’lt; Henry B. Kinghorn for resp’t.
   Per Curiam.

This action was brought for a breach of contract. The evidence seems to be uncontradicted that the contract to pay the sum of thirty dollars was made directly between the plantiff^and the son of the lessee who was also her agent. He had a right to make a personal contract of the nature under consideration, and would be bound by its terms if it was performed. There may be some question as to whether or not at one time the respondent intended to fulfill, but the fact appears without contradiction that he did thereafter and within the time limited by the contract, fulfil all its terms. Hence there could be no rescission of it as argued by the appellant, and he became entitled to the money which was promised by appellant, and therefore the judgment should be affirmed, with costs.


author: The Court (Bookstaver, P. J.)

text:
    James W. Slater, Resp’t, v. Ernest N. Adler, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894 )

    Negligence—Tenants.
    Where there are two tenants in occupation of the premises, one being above the other, each is bound to see that no injury shall happen to the other by reason of any negligence on his part.
    Appeal from the district court of the city of New York for the eighth judicial district.

      Leon Lewin, for app’lt; James F. Higgins, for resp’t.
   The Court (Bookstaver, P. J.)

This action was brought to recover damages caused by the negligence of the appellant or his servants in permitting water to overflow from his premises down and upon and over the stock and machinery of plaintiff’s assignors. From the case it appears that the appellant occupied the-top loft and respondent’s assignors the loft beneath at Ho. 5 Dutch Street in this city, and that on the night of the 30th of Hovember, 1893, certain police officers discovered water running from the appellant’s premises on those of the respondent’s assignors, causing injury to the stock of the latter. Where there are two tenants in occupation of the premises one being above the other, while it is true that there is no contractual relation between them, yet each is bound to see to it that no injury shall happen to the other by reason of any negligence on his part. The case shows that there may have been a stopcock on the floor occupied by respondent’s assignors, which could be reached by both them and the appellant, yet the evidence makes it clear that there was also a stopcock on the floor of the appellant’s premises and that the water which ran on the respondent’s, flowed through that stopcock into barrels, from which there was a waste pipe which probably for some cause which does not appear, became choked up. This made the appellant liable, Moore v. Goedel, 34 N. Y. 532; Eakin v. Brown, 1 E. D. Smith, 36; Totten v. Phipps, 52 N.Y. 356. The judgment should therefore be affirmed, with costs.


text:
    Joseph H. Tooker et al., Respts, v. Marion Booth, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Appeal—Facts.
    The common pleas cannot review the facts in a case where the general term of the city court has reversed an order of the special term opening a default.
    Motion to dismiss an appeal from the city court.

      Michael J. Scanlan, for the motion; Langbein Bros. & Langbein, opposed.
   Per Curiam.

This is a motion to dismiss the appeal on the ground that this court has no jurisdiction to entertain it. The special term of the city court made an order opening a default suffered by the appellant, from which an appeal was taken to the general term of that court, where the order of the court below was reversed. The general term of the city court had the undoubted right to review the facts connected ,with the default and its opening, and to reverse if in its judgment it thought proper. But we haw repeatedly held that we cannot review the facts in such a case, being in all respects bound by the same conditions which prevail in like cases in the court of appeals.

The appeal must therefore be dismissed with costs.


text:
    I. Newton Williams, Resp’t, v. Isabella H. Fisher, App’lt.

      New York Common Pleas, General Term,

      Filed May 17, 1894.)

    1. Evidence—Parol.
    Parol evidence is admissible to vary, enlarge or define a written instrn ment, in an action between others than parties thereto.
    S. Contract—Promise for benefit of third person.
    Where a promise is made for the benefit of a third person as a condition of compromise of a litigation, such a party can maintain an action upon it.
    Appeal from the district court in the city of New York for the eleventh judicial district.

      Frank L. Crawford,, for app’lt; 1. Newton Williams, in person, for resp’t.
   Bookstaver, P. J.

This action was brought to recover attorney’s fees for services rendered in an action in the supreme court which was settled between the parties without the consent of the defendant’s attorney in that action, being the respondent herein. Upon the trial the release so executed between the parties was given in evidence, and thereafter respondent introduced oral testimony tending to show what his charges were, and that the appellant herein, being defendant in the supreme court action, undertook to pay them. This was objected to by appellant on the ground that no oral testimony could be given to vary, enlarge or define this written release. This contention is undoubtedly good as between the parties to the contract itself, but not as to strangers to it, as the respondent in this case was. The rule prohibiting the reception of parol evidence to vary or modify a written agreement, does not apply where the original contract was verbal and entire, and a part only reduced to writing ; nor does it apply to a collateral undertaking or to á stranger to the contract. Besides, where a promise is made by a party as a condition of compromise of a litigation for another’s benefit, that other can maintain an action upon it. See Todd v. Weber, 95 N. Y. 181; Rector v. Teed, 120 N. Y. 583 ; 31 St. Rep. 908 ; Gifford, v. Corrigan, 105 N. Y. 222; 7 St. Rep. 7; S. C. 117 N. Y. 257 ; 27 St. Rep. 233.

The judgment must therefore be affirmed, with costs.


text:
    John Allen, Resp’t, v. Francis A. Clark, App’lt.

      (New York Common Pleas, General Term,

      Filed May 17, 1894.)

    Appeal—Evidence.
    The decision of the general term of the city court upon the question as to the preponderance of evidence is final.
    Appeal from a judgment of the general term of the city court affirming a judgment entered upon a report of a referee.

      8. Lobenthal, for app’lt; Earley & Prendergast, for resp’t.
   Per Curiam.

It is clear that we cannot review the evidence in order to determine whether there is a preponderance on the one side or the other. The general term of the city court has passed upon that; and its decision is final. The claim that the verdict is against the preponderance of evidence admits that there is some evidence to support the verdict. There is no other quea. tion raised in the points of the appellant, and the judgment must be affirmed, with costs.