author: O'Brien, J.

text:
    Otis Corbett, Resp’t, v. Spring Garden Insurance Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    1. Insurance—Fire—Total destruction.
    When an insured building loses by fire its identity and character as a building, it amounts to a “ total destruction,” within the meaning and intent of the parties and the policy, though the materials may not have been absolutely destroyed.

      2. Same—Question of fact.
    The evidence was held, in this case, sufficient to require the question whether there was a total destruction of the building within the meaning of the policy, to be submitted to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    This is an action upon a police insuring the plaintiff against loss and damage by fire on his lease of a building. It provided as follows : “ It is a condition of this insurance that, in case of such destruction, by fire of the above named premises that the lease held by the assured shall be by its terms and in fact canceled, this company shall be liable to pay an amount not exceeding the sum hereby insured.” The lease provided: “ And it is further agreed between the parties to these presents that, in case the building or buildings erected on these premises hereby leased shall be partially damaged by fire, the same shall be repaired as speedily as possible, at the expense of the party of the first part; that, in case the damages shall be so extensive as to render the building untenantable, t-he rent shall cease until such time as the building shall be put in complete repair ; but, in case of the total destruction of the premises by fire or otherwise, the rent shall be paid up to the time of such destruction, and then and from thenceforth this lease shall come to an end.” The building was six stories in height in front, and live in the rear, with an iron front, and side and rear walls of-brick. It was occupied by plaintiff as a furniture store and warehouse. There was some decoration on the walls and ceiling of the first and second floors, where furniture was exhibited, and above that the brick walls were tinted. The plaintiff testified : “ It was used for warerooms up to the fifth and sixth stories, where we had our upholstery department and furnishing roojns; otherwise it was entirely open; there were no divisions.” On-November 23, 1892, while the above lease and policy of insurance were in operation, a fire occurred, which caused damage. The roof was entirely gone, the debris therefrom having fallen right down to the foundations. The front wall, constructed of iron, was spmewhat heated, and “ that would burn off the bolts and whatever would attach the iron together.” The ornamental top and cornice were taken down by the firemen. The connecting arches on the fifth and sixth stories were badly damaged. The woodwork, sashes, and glass were gone throughout. The east and west walls both had very large openings in them in the upper parts,— large enough, as described by one of the witnesses, ‘‘ to drive a horse and wagon through.” The bricks were badly burned and blackened ; the mortar was out in a good many places, and there were many loose bricks and the surface of others had been burned, taking the face off so that it exposed the interior of the brick. The rear wall was in a worse condition than the side walls. The lintels and sills were broken and scaled off, and the wall itself out of plumb. The entire interior of the building, which consisted, as stated, of six floors, was going down to the cellar, and there is no question but that the interior of the building was wholly destroyed. Immediately after the fire plaintiff surrendered his lease and demanded his insurance, which was refused upon the ground, mainly, that there.was not a total destruction of the premises.

      Michael H. Cardozo, for app’lt; Francis D. Dowley, for resp’t.
   O'Brien, J.

Upon the trial the plaintiff insisted that the building as a building had ceased to exist by reason of the fire, and that in consequence the insurance company was liable. On the other hand, the defendant contended that because the building' was worth a large sum, and a considerably smaller sum was expended in restoration, it was not liable because there was not total destruction ; and again upon this appeal the defendant insists that the contract of insurance was enforceable only in the event of the total destruction of the premises, and that upon the evidence no total destruction, within the meaning of the policy, was shown; that the only destruction was to the roof and the interior woodwork ; that the foundations and the brick walls at the side and rear remained in place and were in fact used without rebuilding ; that the iron front was. used, with repairs only at the top; and that as to the lintels and sills only about one-half were replaced. In addition to this summary of the extent of the loss, the strongest showing made by defendant was that the building was restored and put in complete repair at a cost of about one-third of the sound value of the.building at the time of the fire. If this last proposition had been so conclusively established as to make it a question of law, it would be difficult to evade the conclusion that . the weight of evidence was against the verdict, which, in effect, found that there was a total destruction of the building. But while there can be no question as to what it cost to repair, because the repairs were made and the money paid, there is room for -different inferences as to what was the sound value of the building prior to the fire. Three of the four witnesses examined on the part of the defendant did not see the building until after the fire, and the fourth testified that he did not estimate the total value of the building before the fire ; and, as to their knowledge of the value of the material destroyed, their testimony in this respect was to some extent weakened upon cross-examination by the fact that as to some of these witnesses they were not speaking of their own knowledge, but based their estimate upon information received from subcontractors and iron men; and against the estimates thus furnished, as to the sound value of the building before the fire as compared with what it cost to restore it, we have other witnesses for the defendant who furnish us a statement of the injury done to the building. They stated that it was necessary to put on a new roof: to remove the whole interior of the building, with hardly an exception ; that the reconstruction began at the ground, and ran up to the roof. The evidence, therefore, proved that all that was left consisted of the foundation and four standing walls, the latter being more or less injured, according to the version of all the witnesses. Upon the defendant’s motion to dismiss the complaint, we think the court correctly ruled in denying it; but on the case as it stood when all the evidence was in, upon the defendant’s motion to direct a verdict, a more serious question was presented. As the evidence then stood, was there presented a question of law or one of fact?

The appellant insists that the evidence was not open to debatable presumptions or doubtful inferences; that the plaintiff had not made out a case for the enforcement of his contract, and the court should have held as matter of law that there was no total destruction; that all that was shown was untenantability; and that there was no warrant for submitting the question of total destruction as one of fact, under the circumstances of this case, to the jury. On the other hand, the plaintiff insists that it was a question of fact, upon the evidence, as to whether the building, as a building, had ceased to exist by reason of the fire; that, while the standing walls or a structure remained, this is not a “ building,” in the ordinary acceptation of that term; that within the intent of the lease and of the policy, when theré was a destruction, not of the structure, but of the building as a building, then the-loss was one covered by the policy. “ Actual ‘ total loss,’ as applicable to a building, means, not that its materials were utterly destroyed, but that the building, though part of it remains standing, has lost its identity and specific character as a building, and instead has become a broken mass, or cannot longer properly be designated as a ‘building.’ Absolute extinction is not meant. ‘ Wholly destroyed’ may bean equivalent expression.” And. Law Diet. 639. “ A ' total loss ’ does not mean an absolute extinction, but only a destruction of a thing in the character in which it is insured. If a building ceases by fire to be such, losing its identity and character as a building, the whole sum insured is due, although the materials may not have been absolutely destroyed.” May, Ins. § 421a. “A loss is ' total,’ within the meaning of the term, when the identity and specific character of the thing insured is destroyed, although there is not an absolute extinction of all its parts.” Wood, Ins. § 107.“ A burned building is a ‘total loss’ when it ceases for all practical purposes to be a building, although some of its component elements remain.’, Bid. Ins. § 1375. While we are referred to no decision in our court of appeals, we have, by way of illustration and argument from other states, the cases of Williams v. Insurance Co., 54 Cal. 450, and Huck v. Insurance Co., 127 Mass. 306, in the former of which the court approved a charge to the jury which was in the following words:

“A ‘total loss’ does not mean an absolute extinction. The question is not whether all the parts and materials composing the building are absolutely or physically destroyed, but whether, after the fire, the thing insured still exists as a building. Although you may find the fact that after the fire a large portion of the four walls was left standing, and some of the ironwork still attached thereto, still, if you find that the fact is that the building has lost its identity and specific character as a building, you may find that the property-was totally destroyed, within the meaning of the policy.”

And in the latter case, Huck v. Insurance Co., Gray, C. J., says:

“Of the building forming the eastern half of the block, the roof and the whole interior, with all the floors and divisions thereof, had fallen, and nothing remained standing but the outer walls and the elevator, constituting a mere shell or ruin, and not a standing building, in any proper sense.”

While it will be conceded that after the fire there was left a structure, the question is whether such structure constituted a building. Upon the evidence we do not think the court erred in refusing to determine this as a question of law. There was sufficient to go to the jury upon the question of whether the building “ hád lost its identity and specific character as a building.” If it had, then there was a total destruction, within the meaning and intent of the parties and the policy. It is true there was no evidence to show that there was a total destruction of the component parts and material that made up the building; but there was evidence tending to show a total destruction of the building as a building, and it was this that was the subject -matter of the insurance.

In regard to rulings upon evidence, the defendant, on cross-examination of one of plaintiff’s witnesses, asked him if the building was totally destroyed, as understood in building. A like question was put to one of defendant’s witnesses. The objection to these, calling as they did, for a conclusion, was properly sustained.

The only other question arises upon assigned errors in the charge of the court to the jury. Defendant requested the court to-charge that:

“ There is not sufficient evidence as to the value of plaintiff’s lease, as there is no evidence of the estimated cost of repairs which the plaintiff expressly covenanted to make during his term, or of the annual water charges which he agreed to pay, and the jury cannot find a verdict for substantial damages against the defendant.”

This was asked also in another form, whereby the court was requested to charge that:

“ From the amount which the plaintiff might save annually in rent under his lease must be deducted the payments which the plaintiff would be required to make under his lease, and there is no proof as to what such payments would be.”

By the terms of the lease, the plaintiff was only obliged to make such repairs as he might deem necessary, and, the evidence showing that the building was in good tenantable condition at the time of the fire, it would be the purest speculation and conjecture to-estimate upon what might be the possible, or even probable repairs that the plaintiff might think necessary to make in the future. It is true that, in addition to this, the lease required the plaintiff to pay the water rates imposed upon the premises, and the amount of these should have been given. But, considering the uses to which the premises were put, we have some knowledge, as the jury undoubtedly possessed, of what the charges for water rates on such premises would be; and the only evidence as to the value of the lease being that offered by the plaintiff, from which it could be inferred that the unexpired portion of the lease was worth over $30,000, upon which there was an insurance of but $20,000, the failure to present for consideration the amount of water taxes as a proper deduction in estimating the value of the lease cannot have resulted in any injury to the defendant, and, being such a small matter, it should not be available to reverse the judgment, if otherwise right. ~‘De minimis non curat lex." Upon the main question, as to whether there was sufficient evidence to goto the jury upon the question of total destruction, we think that the learned trial judge was right in submitting it to the jury, and their verdict upon the facts should not be disturbed. Judgment and order accordingly affirmed, with costs.

All concur. ,


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Thomas Nolan, Resp’t, v. Rockway Park Improvement Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Appeal—Evidence.
    A finding of the jury, based upon competent evidence, will not be interfered with on appeal.
    6Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion fór a new trial.

      A. A. Gardner, for app’lt; Stephen C. Baldwin, for resp't.
   Van Brunt, P. J.

A different question seems to be presented upon this appeal frorri that which was presented when the case was previously before this court. It is claimed upon the part of the plaintiff that he was upon the beach, in question under a permission given by the defendant’s superintendent, in good faith, intending to serve a process, and that the defendant’s servant ejected him while the license remained unrevoked. It was claimed upon the part of the defendant, however, that this claim of permission and of attempting to serve process was a fiction, and that the plaintiff went upon the premises in question simply for the purpose of vindicating his rights as a citizen of this state so to do. The jury found by their verdict that the plaintiff's claim was correct, and gave him damages accordingly. We do not see that we can interfere with the finding of the -jury, there being competent evidence upon which it was found. It is further claimed that the learned court erred in the commencement of its charge to the jury,, wherein it stated that the first question for the jury to determine was:

“Had the defendant company actually appropriated and applied the beach as a bathing'place in connection with this upland ? If it had, then the plaintiff, under the opinion of the appellate branch of this court, had no right to trespass upon the beach.”

Upon the attention of the court being called to this proposition, the court withdrew it from the consideration of the jury, construing the opinion of the court upon the previous appeal, and charging the propositions of the defendant in respect to its title and right of exclusive possession and right to exclude the plaintiff. It is difficult to see how the learned judge could have been more explicit in withdrawing the question object to from the consideration of the jury. They were expressly instructed that, unless the plaintiff had permission to go upon the beach, and intended in good faith to serve the process, the defendant had the right to eject him. We think the judgment must be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Emeline Lee, App’lt, v. Mart A. Timken, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    1. Settlement—Fraud.
    A settlement, made with full knowledge of all the facts, will not be set aside for fraud.
    3. Same—Acceptance op part.
    The acceptance of less than the amount claimed in satisfaction of a disputed demand is a valid compromise.
    Appeal from an interlocutory judgment, and from an order directing an entry of said judgment sustaining a demurrer to the complaint.

      V. W. Kingsley, for app’lt; Geo. E. Mott, for resp’t.
   Parker, J.

We quite agree with the reasons given by the learned judge at special term for sustaining the demurrer to each of the causes of action attempted to be alleged in the complaint, and, were it not that the appellant seems to present a question to this court, not brought to the attention of the special term, further discussion could be avoided. The facts alleged as constituting the first cause of action are that James Lee, the father of the defendant, and the husband of the plaintiff, being the owner of two pieces of real estate, one of which he desired the plaintiff to have, and that defendant should have the other, summoned them to him, and proposed that he should execute to them, and deliver to one White in escrow, deeds for the property which he intended they should respectively have; and required of the defendant—as the property to be conveyed to her was of far greater value than that intended for his wife—that she should agree to pay off a mortgage, which was an incumbrance upon the property to be conveyed to the plaintiff; that defendant assented to this arrangement, and the deeds were accordingly executed and delivered in escrow. Subsequently the grantor died, and the deeds were respectively delivered to the plaintiff and defendant, but defendant, in violation of her agreement, refused to pay off the $10,000 mortgage, and a settlement was thereafter had, whereby plaintiff was induced to accept $4,000, and execute a release to the defendant. The complaint continues that, since the settlement, plaintiff has discovered that defendant admitted to certain parties that she had agreed to pay the sum of $10,000, to cancel and discharge the mortgage, and the prayer demands that the release be set aside, as having been procured and obtained from the plaintiff upon false representations. An examination of the complaint fails to disclose any suggestion that the plaintiff was misled by the assertions of the defendant; on the contrary, it appears that she then understood the facts to be precisely as she now claims them. She alleges, in effect, that this understanding and agreement between James Lee, this defendant, and herself, was arrived at when all three were together. So, when defendant refused to pay the mortgage, and denied the existence of the agreement, the plaintiff knew what the facts were, and with that knowledge she concluded to accept $4,-000 in settlement, rather than attempt, to enforce her claim for the full amount. Her position, as stated in the complaint, therefore, is:

“ I knew all about the facts when I settled with the defendant, but I feared to risk a contest. How I am informed that I can .strengthen the evidence which I had by the admissions of the defendant, and so I ask that the settlement be set aside as fraudulent.”

Clearly, the facts alleged do not entitle the plaintiff to any such relief.

It is also urged, and with some appearance of seriousness, that the acceptance of $4,000 from the defendant, and giving a release therefor, do not stand in the way of a recovery by the plaintiff, because, according to the allegations of the complaint, it was within the rule that the payment of a lesser sum in satisfaction of a greater cannot be any satisfaction for the whole. And some of the many authorities are cited, which, from Cumber v. Wane, 1 Strange, 426, to the present time, have maintained that a creditor can never bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of a larger amount,, such agreement being nudum, pactum. But that is not this case, and the authorities cited have no bearing upon it whatever. Whether there was anything due was in dispute between these parties, the plaintiff insisting that $10,000 should be paid, and the defendant that she was not liable to pay anything. And out of this d'spute there carne a settlement, by which the defendant agreed to pay, and the plaintiff to receive, the sum of $4,000. In accordance with this agreement, payment was made, and the plaintiff executed a release to the defendant. While this settlement stands, it is a bar to any further recovery by the plaintiff, and it must continue to stand, unless.it shall be made to appear that it was induced by the fraud of the defendant. The judgment should be affirmed, with costs, but with leave to the plaintiff to. amend her complaint within twenty days after entry of an order herein upon payment of the costs in the interlocutory judgment and of this appeal. All concur.


author: Herrick, J.

text:
    Warren B. Agan, Resp’t, v. Hiram File et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Limitation—Mutual demands.
    The cause of action for a balance found due upon the settlement of mutual demands accrues only at, and the statute of limitations begins to run. only from, the time of such settlement.
    Appeal from a judgment in favor of plaintiff.

      B. W. File (Henry A. King, of counsel), for app’lts ; Davenport & Hollister (N. Davenport, of counsel), for resp’t.
   Herrick, J.

I think there is evidence in this case to show that, prior to the year 1887, there was an outstanding claim or ac~ count between Warren B. Agan and Lyman B. Agan; that iti February, 1887, the parties, upon examination of their accounts, differed as to the amount due, and finally agreed to adjust or compromise it at $1,200. There being evidence of such facts, we should not disturb the findings of the referee in respect thereto. It seems to me that the settlement or agreement upon that sum was the foundation of a new cause of action in favor of Warren B. against Lyman B. Agan. We are not at liberty to go back of the settlement to determine whether in truth and fact Warren B. had at that time a just and legal claim against Lyman. Barnes v. Ryan,, 66 Hun, 170 ; 49 St. Rep. 152, and cases cited. If it did constitute a cause of action, that cause of action -only accrued at the time of the settlement, that is, February, 1887. And six years had not elapsed when the claim was referred; consequently, it is not barred by the statute of limitations. While I am inclined to tiiink that the referee erred in some of his findings of fact,—for instance, there does not appear to be positive evidence that the lease of the house to Warren B. was ever delivered to him,—still I do not think those errors affect the result, and it seems to me that in the main the referee’s opinion is correct, and that the judgment should de affirmed, without any opinion.

All concur.


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

text:
    People ex rel. Patrick T. Morris, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Municipal corporation—Police—Discharge.
    The finding by police commissioners that a charge against a police officer is true, where there is sufficient evidence to sustain it, will not be disturbed.
    Certiorari to review the action of the board of police commissioners, in adjudging the relator guilty of conduct unbecoming an officer, and discharging him from the force.

      Louis J. Grant, for relator; Wm. H. Clark, for respondents.
   Parker, J.

The captain of the Second precinct, about October 23, 1889, charged patrolman Morris, this relator, before the board of police commissioners, with neglect of duty and conduct unbecoming an officer, the specification being:

“ Said patrolman Patrick T. Morris did during his tour of patrol duty, on the evening of October 21, 1889, at 10:30 o’clock, leave his post, and enter the liquor store of John Campbell, corner of Albany and West streets, and engage in an altercation witli William F. Campbell, barkeeper, and drew a pistol on said Campbell, and discharged the same, not in self-defense.”

A hearing was had, in the course of which Morris testified in his own behalf, and it resulted in a finding that the charges were true, and Morris was dismissed from the force.

This court is asked on this proceeding to reverse the decision of the police commissioners. Whether the specifications were in all respects true may possibly be open to debate. But there was one incident of that occasion, about which there is no controversy whatever, which could have been added to the specifications without in any way weakening the force of the charge, namely, that William F. Campbell was killed by the discharge of the pistol by Morris. Patrick Rice, a bartender in the employ of John Campbell of No. 86 West street, testified that.:

“ On the evening of October 21st, William F. Campbell, the dead man, was in the store. That about 20 minutes past 10 officer Morris came into the store, and asked witness for a whiskbroom, which he used upon' his coat, and went out. A few minutes later he opened the door, and beckoned me to come out, and he inquired. ‘Who is that tall young man standing in front of the bar with a white coat on? ’ I says, ‘ That is the boss’ brother.’ He says, ‘ He has got a revolver in his pocket.’ Officer Moody, who was standing by, said to officer Morris, ‘ He has got a permit to carry it.’ Morris said, ‘ I don’t care whether he has or not, I. am going to take it off him,’ And he walked up to Mr. Campbell, and said, ‘Young man, you got a revolver in your pocket.’ Campbell said, ‘I have not.’ ‘What did you do with it?’ he said, running his hand in his coat pocket. Campbell said, ‘ It is behind the bar.’ So Mr. Campbell walks around behind the bar, and took off "his overcoat and undercoat and hat, and picked up the revolver, and held it behind his back like this, and says, ‘I am in my place, and I don’t give a damn for you, although you are an officer.’ Morris' put his hand in his hip pocket, and pulled out his revolver, and he says, ‘You are not the only man that’s got a revolver, and if you don’t leave that down on the bar I will shoot you dead.’ He [Campbell] did leave the revolver down, and he [defendant] says, ‘ If you don’t leave that there till I go around and take you out, I will shoot you dead ’; walking around behind the bar. Mr. Campbell picked up his revolver, and walked with it behind his back towards Morris. He [defendant] says, ‘ You leave that revolver down again ; if you don’t, I will shoot you dead.’ Mr. Campbell left it back on the bar. He [defendant] ran and grabbed hold of Mr. Campbell with his right hand. He had the strings of his club around his hand like this,' and the club in his hand, and he told him again he would shoot him dead. Leaving him stand at the end of the bar, he walked in behind the bar. I picked up the revolver, and laid it under the cigar case, where he first took it from. Morris went to end of the bar, where he left him in charge of officer Moody, and he says, Where is that revolver ? ’ Campbell made no answer. He walked behind the bar again,—walked twenty-four or twenty-five feet behind the bar,—picked up the revolver where I left it down, and walking to Mr. Campbell; and about three feet from Campbell he raised it in his hand, like that, and fired at him. Q. He said nothing "at the time he fired the revolver? A. I could not say he said anything. Q. He held his hand up like that? A. He held his hand up like that, pointing the revolver down.”

The relator’s version of the transaction is somewhat different. He said :

“I says to Moody, ‘You stay there, and I will get the pistol away from him.’ I entered the liquor store, and I says to Campbell, ‘You better leave that pistol behind the bar, or give it to the bartender; you are not fit to dairy a pistol’ He says, have a permit to carry it.’ I says, ‘ If you have a permit you should not abuse it, as you did down street a few minutes ago.’ He rushed behind the bar, and took his two coats and hat off, and took the pistol out of his overcoat pocket, and put his hand on the bar, and says, ‘You get out,’ pointing the pistol at me. Isays, ‘Don’t point that pistol at me; you put that revolver down, or I will shoot you.’ Q. You said that? A. Yes. Then he put the revolver behind the bar, and he came out from behind the bar, and he took hold of my stick and tried to get it away from me. Moody seen him and me together, and he jumped in,—officer Moody. I says to Moody, ‘You take hold and keep him there, and I will get the pistol’ I walked behind the bar, and took the pistol, and took it in that manner (holding hand out); and came out from the bar. I lifted the pistol in that manner,—it was a self-cocking pistol, double action pistol,—and as I did it struck on the bar, and the pistol went off. Moody threw up his hands, and I said, ‘ My God, Moody, it is an accident! ’ I thought Moody was shot. Then I see the man drop.”

Other witnesses gave their recollection of the occurrence. While they differ as to certain details, there was evidence adduced in support of every material allegation of the specifications. Indeed, there is no controversy about any of the allegations save one, for he did leave his post of duty; entered the liquor store of Campbell; engaged in an altercation with William F. Campbell; discharged a pistol, and did not do it in self-defense, for Campbell was at the moment under arrest by officer Moody. The dispute arises over the specification that he drew the pistol on Campbell. Morris says that its discharge was an accident. It is not unlikely that that may have been so, but that he pointed it towards him, and intended to do so, there is no reasonable chance for doubt. His purpose may have been to impress the residents of this, to him, new precinct that he was a dangerous officer to trifle with. Whatever the purpose, the finding of the commissioners that he drew the pistol on Campbell has sufficient evidence to support it. Within the rule of People ex rel. McAleer v. French, 119 N. Y. 502; 30 St. Rep. 72, and People ex rel. Masterson v. French, 110 N. Y. 494; 18 St. Rep. 231, the action of the police commissioners must be sustained. The writ should be dismissed, with costs to the respondents.

O’Brien, J., concurs.

Van Brunt, P. J.

I concur. It looks as though the relator was guilty of murder.


author: Gaynor, J.

text:
    People ex rel. William Cochrane, Pl’ff, v. Leonard R. Wells et al., as Commissioners, etc. Def’ts.

      (Supreme Court, Kings Special Term,

      Filed February, 1895.)

    Excise—Commissioners—Transfer of license.
    Excise commissioners, after granting an application to transfer a liquor license, cannot reconsider tlieir action on the ground that they had overlooked certain objections which had been interposed to the application.
    Application for a writ of mandamus to compel the commissioners of excise to deliver a certificate, authorizing the transfer of a liquor license.

      Paul E. De Fere, for relator; Jacob Brenner, for resp’t board.
   Gaynor, J.

The following facts are established: Joseph Scot-to held a license to sell liquors upon his premises on Sixtieth street, which will expire on May 1st next. On August 6, 1894, by a written assignment on the back of it, he transferred the said license to the relator. On the next day the relator applied to the commissioners of excise of the city of Brooklyn for their permission for such transfer, and also for their permission that he carry on business under the said license upon other premises; namely,his store on Sixty-Fifth street. The statute vests the commissioners with power and discretion to grant permission for the transfer of licenses from person to person, and from place to place. Laws 1892, c. 401, § 26, amended by Laws 1893, c. 480. The relator made his application in due form, filed the statutory bond, and complied with every requirement. The commissioners thereupon had presented to them a matter not calling for mere ministerial action on their part, but for an exercise of the judicial power .and discretion vested in them. They had to exercise, first, their judicial function of deciding whether they would grant the two transfers, which involved the licensing of both the relator and his place; and, if they granted them, then would come the mere ministerial act and duty of issuing the prescribed written certificate (section 26); the same as the entering of a judgment follows the rendering of it. The commissioners advertised the application in the usual way, and on August 29th, when it was reached in due-order, they granted it. They evidenced their action by an indorsement of approval upon the application and upon the bond, and by a resolution entered upon their minutes, which in so many words granted the application, and stated the person from and to whom, and the place from and to which, the transfers were made. The judicial duty devolved upon them was thus completely performed. On October 13, 1894, the commissioners passed a resolution reconsidering the foregoing resolution, and denying the application. Meanwhile they had notified the relator of objections to the licensing of his place, which they had overlooked on the day of granting his application, and discovered on the next day, and had heard such objections, the relator being present with counsel. The relator insists that they must issue the certificate of transfer to him.

It seems to me that the recent case of People ex rel. Chase v. Wemple, 144 N. Y. 478; 63 St. Rep. 738, requires that I grant $’uis application. In that case the facts were that an application was made to the state comptroller by an alleged occupant of land to redeem such land from a tax sale. It was resisted by another, and the contestants agreed to postpone its consideration until the determination of a pending ejectment action against the applicant, which involved the question of the occupancy of the land. A new 'Comptroller succeeded, and, being ignorant of this arrangement, granted the application, and made an order accordingly. The applicant was beaten in the ejectment action, and thereupon application was made to the comptroller by the contestant to vacate his said order of redemption. His refusal to do so was upheld on the ground that his action in granting the redemption was judicial and therefore not open to review by himself. That case was more extreme than the one now before the court. The comptroller would not have granted the redemption order if he had known of the arrangement to await the result of the ejectment action. He really acted by mistake. The rule is strict, and may sometimes seem unreasonable; but, after all, it is seated in deep reason and sound policy, for if those who act judicially were allowed upon this pretext or that, or for this alleged oversight or that, to turn back and review their own acts, it would result in the grave consequences which always follow instability and vacillation in government. That disputes and uncertainties be settled is generally of more importance than how they are settled. That the relator afterwards appeared upon the hearing does not show acquiescence on his part, for, as the return itself alleges, he then had no knowledge of the decision of the commissioners in his favor. Acquiescence may only be predicated upon full knowledge of the facts. There is no room to even question the entire good faith of the commissioners. Let final order for the relator be entered.


text:
    Pierre W. Wildey, as Trustee, etc., Pl’ffs. v. Robert E. Robinson et al., as Executors, etc., Resp’ts. Lucia L. Kearny, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    1. Trusts—Appointment of trustee.
    Though the court has no power te appoint a new trustee in the place of one deceased, an attempt of the court to exercise such power will be sustained as the appointment of a person to execute the trust under the direction of the court.
    3. Trustees—Commissions.
    A person who is both executor and trustee, is entitled to his commissions as trustee also, where the duties are distinct and he has been discharged as executor and left acting and liable as trustee.
    3. Contracts—Consideration.
    An agreement by a cestui que trust to pay the trustee commissions on the income received and paid out by him, is without consideration, where no duties are imposed upon him other than such as he is bound to perform by virtue of his office.

      Appeal from so much of a judgment as allows to the executors commissions and overrules the exception to the report of the-referee allowing commissions, and from so much of said judgment as directs that the costs and allowance should be charged wholly against the trust known as the residuary estate trust.

      R. L. Maynard, for app’lt; W. T Emmet, for resp’ts Robinson and Emmet; H. S. Ogden, for resp’t Wildey.
   Van Brunt, P. J.

This action was brought for the appoint ment of a trustee to succeed- Joseph R. Kearny, deceased, as-trustee of the estate of Philip R. Kearny, deceased, and also to-obtain a judicial settlement of the account of said deceased- trustee. Upon the trial of the action the court appointed a new trustee, and ordered a reference for the purpose of taking and stating the accounts of the deceased trustee. The referee took the account of the deceased trustee, and exceptions were filed to the amount of certain commissions allowed by him and to the allowance of others. Upon this appeal it is sought to bring up for review the disposition of the referee as to the costs. But we do not understand that any such question can be here presented, because no exceptions have been filed as to the conclusion of the referee- and the decision of the court in respect to these costs, and this-point of the case will not, therefore, be discussed.

It may be proper to call attention to the fact that under the-Revised Statutes there does not seem to be any power in the court to appoint a new trustee. The provision of the statute is-(volume 1, p. 730, § 68), upon the death of the surviving trustee of an express trust, the trust estate shall not descend to his heirs, nor pass to his personal representatives, but the trust, if then unexecuted, shall vest in the court of chancery, with all the powers- and duties of the original trustee, and shall be executed by some person appointed for that purpose under the direction of the court. There is no provision in the statute authorizing the court, to divest itself of the trusteeship, but it may appoint some person as its agent, under its direction, to execute the same. There seems to be no power to appoint a new trustee, except in the case-of a trustee resigned or removed ; and that there is a distinction between the appointment of a new trustee and the execution of a, trust devolving upon the court by some person appointed for that purpose seems to be emphasized by the provisions of section 71 of the statute, which is as follows : “The chancellor shall have full power to appoint a new trustee in place of a trustee resigned or removed and when in consequence of such resignation or removal there shall be no acting-trustee, the court in its discretion may appoint new trustees, or cause the trust to be executed by one of its officers under its direction there evidently being a distinction between the appointment of a new trustee and the execution of the trust by the court through the instrumentality of some person appointed by it. It has been held, however, that the attempt to exercise the greater power was a valid exercise of the lesser ; and that where the court has attempted to appoint a trustee, although it had no power to make such appointment, the person designated as trustee would be deemed to be a person appointed by the court for the purpose of executing the trust under its direction. The referee allowed the trustee upon this accounting commissions at the rate of five per cent, upon all the income of the trust received and paid out by him. This ruling of the referee is founded upon two papers executed by the appellant, whereby she promised to allow to the acting executors of the will of her husband commissions of five per cent, for receiving and paying out all sums of money ; and subsequently she executed a written agreement, whereby she agreed to allow to the acting executors and trustees a compensation of five per cent, for receiving and paying out all sums of money. It is claimed upon the part of the appellant that these agreements are void for want of consideration, and because of the relations existing between the trustees and the appellant, who was their cestui que trust. It is a familial-principle that a trustee, in order that he may establish and claim a benefit from a contract with his cestui que trust, must show that it is just and fair, that the cestui que trust understood his rights, and that it was a voluntary and intelligent action of such cestui que trust. No evidence in this respect was furnished on behalf of the representatives of the deceased trustee; and it would further appear that no charges for commissions were made by the said trustee in respect to this income during his life, subsequent to his accounting as executor before the surrogate, in July, 1873. It seems also to be perfectly clear that the agreement in question was void for want of consideration. All the duties which the trustees performed, or were to perform, by reason of these agreements, they were in duty bound to perform by virtue of their office. It does not appear under what circumstances these agreements were given, or that any consideration whatever passed from the trustees to the cestui que trust upon which the validity of the instrument could be based. We think, therefore, that the referee erred in giving any effect to these agreements, as they were without consideration.

It is claimed upon the part of the appellant that the trustees, as such, were not entitled to commissions upon the pripcipal of the estate which came into their hands as trustees, and our attention is called to various adjudicated cases in which it has been held that persons are not entitled to receive double commissions. These cases seem to hold that where the two functions of executor and trustee coincide, and run from the death of the testator to the final discharge, inseparable and blended together, double commissions or compensation in both capacities may not be allowed. But it has been expressly recognized, in the decision which has been referred to, that where the duties are distinct, and where by judicial decree the executor has been wholly discharged as such, and left acting and liable only as trustee, he will be entitled to his commissions as trustee, Johnson v. Lawrence, 95 N. Y. 162 ; and it is only in those cases in which the executor cannot be discharged, and be left acting as trustee, but both offices from the necessity of the case remain in existence, that the right to commissions as trustee must be denied. In the case at bar there has been a judicial determination, that the duties of executor and trustee are not so blended that they cannot be separated, but both must continue to the end of the trust. The executor, Joseph R. Kearny, has accounted as such, upon notice to all the parties interested in the estate, and he has been finally discharged from all further liability and responsibility as such executor, and his office of trustee continued. With this judicial determination, and this discharge, of the executor, as having completed all the duties devolving upon him as such executor, it is difficult to see how the offices of executor and trustee could be more effectually severed. We think, therefore, that the exception in question was rightly overruled. There are other points which are attempted to be raised in reference to the right of the trustee to the commissions; but, as they are not raised by exceptions, they are not properly before the court. It may be proper to say, however, with respect to the alleged release which seems to have been relied upon, that there is not the slightest evidence that any such release was ever delivered. It was found among the papers of the deceased trustee after his death, and is void for want of consideration and want of due execution by delivery. We are of opinion that the decree should be modified in the respect above mentioned, and as modified affirmed, without costs to either party.


text:
    Charles A. Glyn, App’lt, v. The New York & Harlem Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    ZRailroad—Street—Negligence.
    A street railroad company is not liable to a passenger who is crowded off the platform by other passengers, when such act is not caused by the crowded condition of the car.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Theodore M. Melvin, for pl’ff; Wm. S. Cogswell, for def’t.
   Parker, J.

In March, 1892, the plaintiff was a passenger on a car of defendant proceeding through Madison avenue. When nearing Fifty-Sixth street, plaintiff notified the conductor of his -desire to leave the car at that street. At this time he was inside of the car, and seated. The conductor thereupon rang the bell for the driver to stop, and plaintiff moved out from the inside of the car to the rear platform, and stood by the side of the conductor. The car did not'show up when it reached Fifty-Sixth street, nor ■did it stop after crossing it; and the plaintiff testifies :

“When 1 found that the car did not stop, I said : ‘Won’t you let me off at my street? I don’t want to be carried up town.’ He said : T rang the bell, but the driver didn’t stop the car.’ I said: ‘Ring it again.’ He did ring it again. At that time I was pre-' paring to leave the car. After he had rung the bell the second time, I prepared to get to the edge of the platform and get off the ear when it came to the next street.”

Before the next street was reached, and while the car was under full headway, he passed by the people standing on the platform, and what happened then the plaintiff describes as follows :

‘•There was a gentleman standing with his back to the window, and another at the dashboard. We were all pretty stout people, and both gave way to let me to the edge of the platform, and after I got there they crowded back again in their places, so forcing me to put my left foot on the step. It being slippery, I found it was not safe unless I put the other foot down,- and, before I could get standing there, by the motion of the car I found I had to let go the hand rail, or be thrown down. I was then on the step of the car leading down to the street. * * *' They forced me down. They forced me to put the first foot down, and then coming up behind me, like that [illustrating], they forced the second one down. I did not get an opportunity to stand there. The left one went off. I felt myself unbalanced by the rapidity of the car, and I had to leave hold of the rail.”

The trial court held, and we think rightly, that there was no evidence of negligence for the consideration of the jury.

Lehr v. Railroad Co., 118 N. Y. 556; 30 St. Rep. 1, does not aid the plaintiff in this case. The plaintiff, who was crowded from the platform by a movement of the passengers which caused him to lose his hold, fell under the car and was injured; and the verdict of the j ury was sustained because there was evidence authorizing the jury to find that the defendant undertook to carry more passengers than could stand or sit within the car, the platform and steps, in addition, being filled to their utmost capacity, and that the exercise of reasonable foresight would have led the defendant to anticipate that such crowding of its car and platforms would render accidents, like the one that befell the plaintiff probable. Saltzman v. Railroad Co., 73 Hun, 567; 56 St. Rep. 220, was very similar in its facts to the Lehr Case. Plaintiff boarded the car, which was filled on the inside, so that he -was compelled to stand on the platform, and passengers continued to come upon the platform in such numbers that he was finally forced onto the step, from which position he was finally thrown by the jolting of the oar while the horses were being driven very fast. In this case the car was not crowded. There was plenty of room in the car, where the platform had a seat, and there was no opportunity to charge the defendant, as in the cases referred to supra, with having undertaken to carry more passengers than could sit or stand within the car, so that both platforms and steps were crowded to their utmost capacity. The only act of negligence that we can spell out is that the defendant’s driver failed to stop the car at Fifty-Sixth street. But, while it is likely true that the accident would not have occurred had the car stopped at Fifty-Sixth street, it is apparent that such negligent act did not cause the accident, for the plaintiff testifies that he was standing on the platform, in a place of safety, when the car passed Fifty-Sixth street without stopping, and he made no attempt to get off there. Indeed, it seems that he then decided not to get off until the next street should be reached, for he says that after the conductor rang the bell the second time, in obedience to his request, “ he prepared to get to the edge of the platform and get off the car when it came to the next street.” .His preparations were prematurely made, and resulted unfortunately, but they were not directly occasioned by the failure to stop at Fifty-Sixth street, for plaintiff had abandoned the idea of getting off before reaching Fifty-Seventh street prior to his starting to the edge of the platform. If it be true that he stepped down upon the step because two persons, whom he describes as standing on the platform, crowded against Him, defendant cannot be charged with negligence for that reason. The car was not overloaded ; there was plenty of room for all inside of it, and no reason why he could not have continued to stand in the same position on the platform until he reached Fifty-Seventh street as he was standing in when he came to Fifty-Sixth street. The jostling and crowding, if any there was, was due to the carelessness of the two persons standing upon the platform, and for their acts, under the circumstances disclosed, defendant was not legally blamable. Plaintiff’s exceptions should be overruled, and judgment ordered for the defendant, with costs.

All concur.


text:
    Berthold Levy et al., Resp’ts, v. Walter Carr et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Contract—Rescission—Pledge.
    The rescission of a contract of sale on the ground of fraud, after the property has passed into the hands of .a pledgee for value and without notice, cannot operate to take away the latter’s right of resorting to such property for the payment of the obligation which it was intended to se cure.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, .and from an order denying a motion for a new trial.

      H. Aplington, for app’lts ; Wm. N. Cohen, for resp’ts.
   Parker, J.

The plaintiffs on August 25, 1891, contracted tosed to Walter Carr & Co. a quantity of beans, for which a 80-days note was to be given. The day following, the beans were delivered and the note requested, but the giving of the note was deT ferred upon a statement being made that the member of the firm authorized to sign notes was out of town. Within an hour after the beans were delivered to Walter Carr & Co., one of that firm consulted with counsel upon the subject of a general assignment by the firm for the benefit of creditors, and the day following, August 27th, the firm did execute a general assignment to EobertJ. Dean, as assignee. Plaintiffs elected to rescind the sale, on the ground that it had been procured by the fraud of Walter Carr &. Co., and demanded possession of the beans from the assignee. Their demand being refused, this action was brought to recover possession. -

If the possession of the beans had been in the,assignee, undoubtedly this judgment could stand; for the evidence was of such a character as authorized the jury to find, as they did, that the sale -of the beans was induced by-the fraud of Walter Carr & Co. Had the beans passed from the possession of Walter Carr & Co. to their assignee, Robert J. Dean, in pursuance of the assignment, they would have been subject to the same right of reclamation in the plaintiffs, upon their rescinding the fraudulent contract, as existed against the assignors. In such cases the only additional step which a vendor must take to recover possession of the assignee is to demand them from him before commencing the action. This is so because, the assignee having lawfully acquired the title and possession of the goods, a demand and refusal becomes necessary in order- to change the character of his possession. Goodwin v. Wertheimer, 99 N. Y. 149.

We have thus briefly called attention to the view upon which the case appears to have been tried on the part of the plaintiffs, and as it is presented on their behalf on this appeal. But such view wholly ignores the fact, established by the uncontradicted evidence, that neither the possession nor right of possession of these beaus was ever in the general assignee of Walter Carr & Co. Upon this subject the undisputed evidence is that on August 19, 1891, Walter Carr & Co. stored with Robert J. Dean & Co. certain merchandise, and received a negotiable warehouse receipt therefor. This receipt was indorsed by Waiter Carr & Co., and together with a note for $6,000, also signed by them, and made payable at the Irving National Bank, was delivered to Robert J. Dean & Co. to be negotiated for the benefit of Walter Carr & Co., the warehouse receipt to be used as collateral for the note. Upon the back of the note, payment thereof was guarantied in writing by Robert J. Dean & Co., who were, by a writing also indorsed thereon by Walter Carr & Co., authorized to negotiate the note and collateral, and to thereafter take up the note, in which event it was provided that Robert J. Dean & Co. should be relegated to all the rights and remedies which by the terms of the note were given to the Irving National Bank. Robert J. Dean & Co. procured said note and negotiable warehouse receipt to be discounted by the Irving National Bank, Walter Carr & Co. receiving the proceeds. For fifteen years Walter Carr & Co. had been accustomed to store merchandise in the warehouse of Robert J. Dean & Co., taking negotiable warehouse receipts therefor, specifying the kinds and qualities of the merchandise stored, which they either negotiated on their own account or procured assistance from Robert J. Dean & Co. to that end. They were accustomed, when W alter Carr & Co. should have procured a purchaser of some portion of the merchandise included in the warehouse receipts, to substitute other merchandise in its place. On August 25, 1891, the day on which, it will be remembered, the plaintiffs agreed to sell the beans in question to Walter Carr & Co., they addressed to Robert J. Dean & Co. the following letter ;

“New York, Aug. 25th, 1891.
“Messrs. R. J. Dean & Co.—Dear Sirs : We have about 100 bags beans going into your store to-day or to-morrow, which we desire you to substitute for 200 bags peas sold on the dock, for •which you hold B/L.
“Yours truly,
Walter Carr & Co.”

Robert j. Dean & Co. assented to the proposed substitution, and the 200 bags of peas were released, and. the beans purchased by Walter Carr & Go. substituted in their place, which was in part consummated by their delivery to the warehouse of Robert J. Dean & Co. on August 26th, the day of their delivery to Walter Carr & Co, by these plaintiffs; the 'general assignment, as we have said, being made the day- following. Thus it appears that before the general assignment was made these beans were delivered into the possession of Robert J. Dean & Go. in pledge. Robert J. Dean & Co., being compelled to' pay the note, became entitled to the collateral.

Assuming that at the close of the testimony it was established that Walter Carr & Co. had obtained the beans from these plaintiffs through fraud, and that before the commencement of this action a demand was duly made for their possession of the assignee of Walter Carr & Co., then this situation is presented: Walter Carr & Co. upon the delivery of the beans to them, in pursuance of their contract with the plaintiffs, became vested with the title and possession, notwithstanding the fraud, subject, however, to the right of the vendors to rescind the contract, if they should so elect. Powers v. Benedict, 88 N. Y. 605 ; Goodwin v. Wertheimer, supra ; Wise v. Grant, 140 N. Y. 593 ; 56 St. Rep. 496. But, before the plaintiffs concluded to rescind the contract and reclaim the property, it passed in the usual course of business into the possession of Robert J. Dean & Co., in pledge, without any notice to them of wrong doing on the part of the vendees, and in consideration of their releasing from the pledge, for the benefit of Walter Carr & Co., a quantity of merchandise of equal value. Rescission of the contract by the plaintiffs could not- operate to take away from Robert J. Dean & Co. the right which they had acquired' of resorting to this collateral for the payment of the obligation which it was intended, in part, to secure, for the title and possession had become vested in persons protected, as a rule of necessity, from the original vendors." The judgment should be reversed as to the defendants comprising the firm- of Robert J. Dean & Co., with costs to the appellants to abide the event.


text:
    Martin L. Rickerson, Resp’t, v. German-American Insurance Company of New York et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Insurance—Fire—Policy—Construction.
    A policy of insurance, issued upon a brick building and additions, occupied for stores and dwellings, was held not to cover another and independent building occupied almost exclusively for the purpose of a-factory
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      W. D. Murray, for app’lt; Geo. Richards, for resp’t.
   Van Brunt, P. J.

This action was brought to recover upon a policy of insurance issued by the defendant to P. Samuel and J, Alexander, of which policy the plaintiff became the owner, subject to the interest of a mortgagee. The dispute which has arisen between the parties to this action is as to the property insured by the said policy. There is no demand made by either party for a reformation of the policy, aud the question depends, therefore, upon the construction to be given to the terms of the policy. The question as to what the parties intended by the policy was submitted to the jury, and, they having found a verdict in favor of the plaintiff, from the judgment thereupon entered, and from the order denying the motion for new trial, this appeal is taken. It does not seem to us, however, that there is any question for the jury to pass upon, as there does not seem to be any ambiguity in the terms of the policy. By the policy in question the defendant insured against loss or damage by fire the brick building and additions. including gas, steam, and water pipes, yard, fixtures, railings,, stoops, and sidewalks, in front of, and all fixtures contained in or attached thereto, or under sidewalk thereof, situate No. 160 Mott street, city of New York, occupied for stores and dwelling. The lot to which the number 160 attached was about twenty-five feet wide, and 107 or 108 feet deep. The front of the lot was occupied by a three-story brick building, twenty-five feet, by about forty-six feet deep ; the first floor being occupied as a liquor store, and the other floors as dwellings. On the east side was a two story extension, of about sixteen feet in depth. Upon the rear of the lot was a five-story brick factory building, having independent walls on all its four sides, being about twenty-four feet wide by thirty-seven feet deep. There was a space between the rear wall of the extension on the front building and the front wall of the rear building of about seven feet. This space was filled in by a small frame structure, three sides of which were formed by the walls of the rear building, the extension of the front building, and the wall of the building on the next lot, boards, being nailed up to form the front, and boards being nailed down to form the roof. There was a window in the extension which looked into this small structure, and alike window in the factory. The usual way of entering the rear building was through an alleyway under the front building, by a wooden stoop, to the first floor of the rear building, and down some steps to the basement. Passage from one building to the other could only be effected by crawling through the windows which have been spoken of. The ordinary entrance to this frame building was from the yard, and it was used by the tenant of the rear building. The question presented is whether the policy in question covered the rear building as well as the front. It is to be observed that there is only one building insured, with the additions to such building, which it is: represented in the policy were occupied as stores and dwellings. It is difficult to conceive how the rear building is to be considered as an addition to the front building, there being no connection between the two, because this small frame structure cannot be considered a connection. It certainly was not intended to connect the rear with the front building, nor was it used for any such purpose. The fact of the existence of windows in the front and rear buildings, making it possible to crawl into this frame structure, temporary in its nature, in no manner made the large brick factory an addition to the smaller building on the front. And furthermore, by the terms of the policy, the building insured is represented as being occupied for stores and dwellings, and it is only the front building that answers this description.- The rear building was used almost entirely as a factory, with a very small portion of it occupied as a store for the sale of the goods manufactured therein. Under those circumstances, it is difficult to see how, under the terms of the policy as it reads, it is possible to include this rear factory building. As has already been observed, the buildings were absolutely independent of each other, and intended for different uses ; and the mere fact that this frame structure adjoined each building could in no way make the rear building an addition to the front building, any more than it could make the front building an' addition to the rear. The ordinary signification of the word “ addition” seems to be “ something added to." But these buildings are entirely disconnected, and do not seem to have been intended to have any connection with each other as buildings, and the addition, moreover, would seem to be of greater magnitude than that to which it is added. It is undoubtedly true that the large amount of insurance which was obtained would seem to indicate an intention upon the part of the owner to have insured all the buildings that were situated upon this lot, and if there was any mutual mistake between the parties in that respect it would have been necessary to reform the policy, in order that it might cover all these structures. But, there being no application or allegation looking towards such reformation, we can only construe the language of the policy as we find it. Applying the ordinary significance of language to the terms contained in this policy, which was issued upon a brick building and additions, occupied for stores and dwellings, we cannot make such language cover another and independent building, occupied almost exclusively for the purposes of a factory. Under all the circumstances of the case, it seems to us that there was no question for the jury to pass upon, but that, under the interpretation of the language of the policy, the rear building was excluded. The judgment appealed from must therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: Parker, J. Van Britnt, P. J.

text:
    Hattie E. Bucki, Resp’t, v. Charles L. Bucki, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Appeal—Conflicting evidence.
    A finding, on conflicting evidence, will not be disturbed on appeal.
    Appeal faom a judgment, granting to plaintiff a separation from defendant, and alimony.

      Delos McCurdy, for app’lt; Austin G. Fox, for resp’t.
   Parker, J.

The trial court reached the conclusion that the substantial facts alleged in the complaint were proved on the trial. On a former appeal this court held that the allegations in the complaint, if supported by evidence on the trial, would entitle plaintiff to the judgment prayed for. 70 Hun, 598; 54 St. Rep. 287. The question on this appeal, therefore, relates to the finding of fact made. Bearing that subject of inquiry in mind, we have attentively examined the evidence, with the result that we are persuaded that, under the rules which should govern this court in reviewing determinations of fact, the decision of the trial court must stand. The judgment should be affirmed with costs.

Follett, J., concurs.

Van Britnt, P. J.

I cannot concur in the affirmance of the judgment in this action. It is apparent that much of the evidence in this case was made under the advice of counsel, and that acts of violence were eagerly looked for under such advice, and gleefully welcomed. Even under these circumstances, only one act of violence could be established or was claimed, and many of the quarrels which were constantly taking place between these parties were the outcome of legal advice to the plaintiff. It is undoubtedly true that the defendant acted in many instances with great meanness, and many of his acts were of a despicable character. But the plaintiff is very far from having been free from endeavoring to incite such performances upon the part of the defendant. Unless we are to add another ground of divorce to those contained in the statute, namely, that of incompatibility of temper, I can find no ground for a separation in the case at bar. Simply because two people will lead a cat and dog life together, that fact does not seem to be recognized by the statutes as a ground for separation. Having made their bed, they must lie upon it. I do not think it is the province of the court to indulge in judicial legislation to the extent which would be required by the granting of a decree in this case, in order to enable the plaintiff to live at the expense of the defendant without the performance of any of those duties upon which his obligation to support her now depends.

The judgment should be reversed, and a new trial ordered.


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

text:
    The People v. St. Nicholas Bank of New York. In the Matter of the Application of Horace H. Chittenden, as Assignee, etc., App’lt, v. Hugh J. Grant, as Receiver, etc. Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Assignment for creditors—Receiver.
    The receiver of an insolvent hank cannot refuse to pay over money to which an assignee for the benefit of creditors is entitled, on the ground that the latter does not say that he intends to distribute it among the creditors.
    Appeal from an order, denying an application by the assignee for creditors to compel the temporary receiver of an insolvent bank to pay certain dividends, etc., to petitioner.

      Thomas P. Wickes, for app’lt; L. G. Reed, for resp’t.
   Van Brunt, P. J.

I cannot concur in the conclusion of Mr. Justice Follett in the case at bar. The applicant is the assignee and the owner of the fund deposited. ■ He is not an officer of the court, and until he is removed from his office of assignee in the manner prescribed by statute he is entitled to the possession of the assigned estate; and although he may, as far as this semidefunct bank is concerned, have made propositions which were inconsistent with his duties as assignee, such fact certainly does not authorize a holder of the funds of the assigned estate to resist the payment of the amount due to the assignee. If the assignee has-misconducted, he should be removed. But to say that the receiver of this bank shall be entitled to hold the funds simply because the assignee and owner of the same does not say that lie intended to distribute it among the creditors, would seem to be appointing the receiver of this semidefunct bank the substituted assignee of the estate without going through any of the forms of law necessary to such substitution. Certainly, iftbisbankdid not happen to be in the hands of a receiver, and a suit was brought-by the assignee to recover the amount on deposit, no defense has-been disclosed; and the fact that the bank is in the hands of such receiver, and a suit cannot be brought, does not seem to be any reason for denying relief to which the petitioner is legally en titled. The order should be reversed, and the motion granted without costs.

O’Brien, J., concurs.

Follett, J.

(dissenting).—It is not contended that the receiver of the bank can set off the funds standing to the credit of the assignee against his individual indebtedness to the bank. The assignee is not personally the owner of five per cent, of this sum (his commission), or of any part or portion of it, and the receiver has no right to hold any part or portion of the fund for the purpose of applying it in payment of the individual debt of the assignee to the bank. The fund must ultimately be distributed pursuant to a final decree of the court making the order for distribution of the funds in the hands of the assignee. The learned judge at special term held nothing to the contrary of the propositions above stated, but refused to take the funds from the hands of one officer of the court and place them in the hands of a trustee, subject to the control of the court under the circumstances disclosed ; and in this we think he wisely exercised his discretion. The assignee did not state in his application that he desired to distribute the fund among the creditors of the assigned estate, or to make any use of it as assignee, or that he proposed to deposit it as a trust fund. In a letter written by the assignee to the cashier of the bank, June 11, 1893, he said :

“Referring to my matters with your bank, I have to say that the reason I did not fulfill my engagement to settle the interest and overdraft was that I was obliged to postpone for two weeks a sale of some of the property of A. S. Hatch & Co., which I had every reason to suppose would be consummated before June 1. This sale will come off about June 15, and will, by the lowest estímate, put me largely in funds, and I hope you will consider this in view of what follows.’'

Again, on June 27, 1893, the assignee wrote the cashier as follows:

“With reference to my note given for interest on previous notes, due at your bank within a few days, I ask you to give me a three months renewal, with the added interest. When I asked you to take this note instead of cash, I represented to you that I expected to realize on property in my hands as assignee of A. S. Hatch & Co. a sufficient sum to enable me to pay the whole of my indebtedness to your bank, and I told you that I was about to make a sale of such property. In accordance with the intention I thus expressed to you, I advertised for sale certain of the property of the estate, the sale to take place on the 25th of May last. I enclose you a copy of the advertisement (marked 1).”

In these letters the assignee stated that, as soon as a portion of the assets of the assigned estate was converted into money, he would pay his individual debt to the bank therefrom. Under such circumstances, we think the special term wisely refused to order the.funds of this assigned estate into the personal custody of the assignee. The order should be affirmed, with $10 costs and disbursements, payable by Horace H. Chittenden personally.


author: Per Curiam.

text:
    Housatonic National Bank, Resp’t, v. James P. Foster, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Bills and notes—Consideration.
    The release by the owner of a claim, though doubtful, against a manufacturing company is a good consideration for a note given in compromise thereof by the treasurer of such corporation.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Edward Schenck, for app’lt; L. B. Bunnell, for resp’t.
   Per Curiam.

This action was brought to recover on a promissory note made by the defendant January 25, 1890, by which he promised to pay, two months after date, to the order of the plaintiff, $3,200. The only defense attempted to be made on the trial was that this note was a renewal of a prior note given by the defendant to plaintiff, without consideration; consequently the note in suit was without consideration. The original note was given as a compromise of three acceptances drawn January 15, 1885, by Tanner & Faxon on the Fishkill Manufacturing Company for $12,200, and which purported to be accepted by said corporation. The three bills were accepted in the following form:

“ Accepted ; payable at 166 Fulton street, New York.
“Fishkill Mfg. Co.
“ Sidney J. Everett, Treasurer.”

Everett was not the treasurer of the Fishkill Manufacturing Company, but the secretary, and, under the by-laws, he had no authority to bind the company by commercial paper ; and upon the trial he testified that he was not authorized by the trustees or by any one to accept the three bills above mentioned, amounting to $12,200. The acceptances became the property of the plaintiff, went to protest, and the plaintiff threatened to bring actions on them against the drawers and acceptor. The defendant was the treasurer of the Fishlcill Manufacturing Company, and, after considerable negotiation, he gave a note, of which the note in suit is a renewal, and received from the plaintiff the three acceptances, upon the agreement that the apparent liability of the manufacturing company was discharged. The compromise of a doubtful claim is a good consideration fora contract, and the release by the plaintiff of its claims against the manufacturing company was a good consideration for the note given by the defendant. White v. Hoyt, 73 N. Y. 505; Wahl v. Barnum, 116 N. Y. 87; 26 St. Rep. 457 ; Traders' Nat. Bank v. Parker, 130 N. Y. 415; 42 St. Rep. 506.

The judgment should be affirmed, with costs.


text:
    M. Jacoby & Company, Limited, App’lt, v. George D. Payson et al., as Executors, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Principal and agent—Liability of third person to principal.
    Where an agent, who is authorized to collect money due to his principal, indorses over to a third person, in payment of his individual debt, a check payable to the principal, and receives' from such third person the difference between the amount of the check and the amount of the debt, the latter is chargeable with knowledge that the agent is not acting within his authority and is liable to the principal for the full amount of the check received by him.
    Appeal from a judgment, entered on a verdict in favor of defendants, and from an order denying a motion for a new trial, made on the minutes.
    This action was brought to recover damages for the alleged conversion of the following check :
    “No. 230. New York, Nov. 20th, 1890
    “ Bank of America: Pay to the order of M. Jacoby & Co. forty-six hundred and thirty-nine 27||100 dollars.
    The H. B. Claflin Company,
    “$4,639.27. By D. N. Force.
    “[Indorsed :] M. Jacoby & Co., E. J. Dennison.
    “[Stamped on face:] 8. 21 Nov., 1890.
    “[Stamped on left-hand margin :] C. The Bank of America. Certified. Payable only through N. Y. clearing house.”
    The plaintiff is a foreign corporation, existing under the laws of the United Kingdom of Great Britain and Ireland, and having its chief place of business at Nottingham, England, and is engaged in the manufacture and sale of lace curtains. - August 1, 1883, the plaintiff and H. L. Fesler & Co. of New York, entered into a contract by which the latter were appointed for three years the plaintiff’s sole agents in the United States and Canada for the sale of the goods manufactured by the corporation. The contract contains, among others, the following provisions: “ Messrs. Jacoby & Co. will not pay any commission for goods sold by them to the following houses: * * * [Wight & Co. is not one of the excepted firms.] Excepting 'the above-named firms, a commission of five per cent, on the net amount of all sales made in sterling on our goods to be paid by Messrs. M. Jacoby & Co. to Messrs. H. L. Fesler & Co. * * * A monthly statement to be rendered by Messrs. M. Jacoby & Co. of all sales, and a fly-sheet copy of each invoice to be sent to Messrs. H. L. Fesler & Co.” By a subsequent contract, extending the one originally made, it was provided : “ Messrs. Fesler & Co. to advance the freight, duty, and other incidental expenses, adding same to the sterling prices, which they will so calculate to return Messrs. M. Jacoby & Co., Limited, the net amount in sterling, sending a-c sales showing the transactions in detail. Remittances to be made by Messrs. Fesler & Co. in accordance with the terms stated by them in the original orders.” In November, 1890, Wight & Co. of the city of New York, were indebted to the plaintiff in a considerable sum, and in that month they became embarrassed and unable to pay their debts in full. November 8,1890, H. L. Fesler & Co. cabled the plaintiff as follows:
    “ Have private information. Wight & Co. failing very soon Shall I act? “ Fesler.”
    The plaintiff replied by cable:
    “ Nottingham, Nov. 8, 1890.
    “ Fesler & Co.: Act promptly, Wight & Co. Can you obtain goods ? Remittances required. Will write you full particulars. Will power of attorney be required ? Reply immediately by code addition.”
    On the same day, Fesler replied by cable as follows:
    “Impossible to determine without knowing the amount. Power of attorney will not be required. . Fesler.”
    The plaintiff replied :
    “Nov. 11, 1890.
    “ Fesler, New York : 1,087 pounds. Have omitted the interest in the account, "$5,768.82.”
    Thereupon a suit to recover the amount was begun at the instigation of H. L. Fesler & Co.
    On the 11th of November, 1890, the plaintiff executed and delivered the following power of attorney to Fritz Reinhold, of Nottingham, England.
    “To All to Whom These Presents Shall Come, We, John Henry Jacoby and Arthur Joynes Butler, Directors of M. Jacoby & Co., Limited, Nottingham, England, Lace Manufacturers and Merchants, Greeting: Whereas, we, the aforesaid John Henry Jacoby and Arthur Joynes Butler, having reason to believe that several firms in New York, in the United States of America, are not in a position to meet their indebtedness to the firm of M. Jacoby & Co., Limited, desire to give a general power of attorney to Fritz Reinhold to act for them in such manner as he, in his discretion, may think the circumstances of each case may require; and to adjust any claims or differences in account that may arise with these New York firms: Now, these presents witness that the said John Henry Jacoby and Arthur Joynes Butler do hereby make, ordain, constitute, and appoint Fritz Reinhold, of Nottingham, in the United Kingdom of Great Britain and Ireland, their true and lawful attorney and agent for them, and in their name or otherwise, and on their behalf, to ask, demand, receive, and recover all and every sum or sums of money whatsoever that are or is now due and owing to the said company, of and on our behalf to investigate, adjust, settle, and to compromise all accounts, debts, claims, disputes, and matters which are, shall, or may subsist or arise, and also, if necessary, to commence and prosecute and defend all actions, suits, claims, demands, and proceedings touching the premises, and in any way connected therewith, and also to receive and give effectual receipts and discharges for all sums of money, claims, or demands by the said company, and to prove and receive dividends, and to give receipts for the proceeds arising from all, also to give effectual receipts in full discharge of all claims, and generally to do, perform, and execute all and every such act and acts, duty and duties, in and about the premises, as he, the said Fritz Reinhold, shall think proper, as fully and as effectually, to all intents and purposes whatsoever, as the said John Henry Jacoby and Arthur Joynes Butler might or could do if personally present, and also to substitute and appoint any person or persons to act under or in the place of the said Fritz Rein hold in all or any of .the matters aforesaid, and every such substitution at pleasure to revoke; the said John Henry Jacoby and Arthur Joynes Butler hereby agreeing to ratify and confirm whatsoever the said Fritz Beinhold or his substitute or substitutes shah lawfully do, or cause to be done, in or about the premises by virtue of these presents. In witness whereof, the said John Henry Jacoby and Arthur Joynes Butler have hereunto set their hands and seals, and also affixed the common seal of the said company, the 11th day of November, in the year of our Lord 1890.
    “For M. Jacoby & Co., Ltd.,'
    “ John Henry Jacoby, Director.
    “For M. Jacoby & Co., Ltd.,
    “ Arthur Joynes Butler, Director.
    “Signed, sealed, and delivered in the presence of:
    “ Geo. Richards.
    “ J. H. Warner.”
    On the 19th of November, 1890, Fritz Beinhold arrived in New York, bringing with him his power of attorney. On the next day he indorsed the following substitution on the power which he delivered to H. L. Fesler:
    “ I herewith transfer this power of attorney to Mr. H. L. Fester, of 464 Broome street, New York. Fritz Beinhold.
    “Nov. 20th, 1890.
    “[Seal of M. Jacoby & Co., Limited.]”

      ■ On the 20th of November, Mr. Fesler called on Wight & Co., taking with him the power of attorney and the substitution, and on that day effected a settlement of the plaintiff’s claim against the firm, and received the above-mentioned check in payment, and at the same time receipted the bills. H. L. Fesler thereupon indorsed the check “ M. Jacoby & Co.,” and delivered the same to Elisha J. Dennison, defendants’ testator, for the purpose of paying the indebtedness of Fesler to said testator of $1,050, and of receiving a check of Dennison’s for the balance, $3,589.27, payable to the order of H. L. Fesler & Co. The check given by Fesler to Dennison, was paid the next day after it was given, and Dennison’s check to Fesler was duly paid on presentation.
    Upon the trial, requests for direction of verdicts were made; but the court submitted the question to the jury whether or not, in advancing this money, Mr. Dennison, the defendants’ testator, ¿relied upon an apparent authority, and acted in good faith.

      John J. Adams, for app’lt; Lawrence Godkin, for resp'ts.
   Van Brunt, P. J.

The submission of this question to the jury "was duly excepted to, and the question presented upon this appeal is whether, upon the conceded facts, there was anything to ,go to the jury upon any such issue. In the determination of this appeal, it is not necessary to pass upon the question as to whether an agent entitled to collect moneys on behalf of his principal has authority to indorse, for purposes of collection, such commercial paper as may come into his possession as such agent. It is undoubtedly the established rule that such agent has no authority to make an indorsement which imposes any liability upon his principal. This seems to have been the rule which pervaded the cases cited in the case of Holtsinger v. Bank, 1 Sweeny, 64. We find in each of the authorities cited to sustain the conclusion of the court that there was a negotiation of bills received by the agent, and indorsed in the name of the principal by the agent, thereby creating an obligation upon the part of the agent to pay in case of a failure upon the part of the makers of the paper to provide for its payment. It has not, however, been authoritatively determined that, where an agent receives commercial paper in the course of the collection which he is authorized to make for his principal, he may not indorse such paper for the purpose of collection, and for the purpose of collection only; it being suggested that such an indorsement is not creating any liability in the name of his principal, but is simply the gathering in of the money which the agent is authorized to receive and remit to his principal. In the case at bar, however, this feature in respect to the indorsement seems to have been absent. Although the question as to Dennison’s good faith was submitted to the jury, and seems to have been resolved in his favor, the conceded facts of the case show that he received this check, belonging to the plaintiffs, indorsed in their name by their agent, for the purpose, at least partially, of paying the agent’s debt to him. He therefore knew at the time that this check was received, bearing this indorsement, that, in paying his individual debts with that check, the agent was not acting in his master’s business. It was apparent that the agent was not acting within his authority. There was nothing in the relations between the principal and the agent which authorized the agent to apply his principal’s money towards the liquidation of his own debt. And, as has already been suggested, when Dennison received this check,, indorsed as it was by the agent, he knew that the agent was violating his authority, because, at best, he only had the right to receive the money for the purpose of transmission to his principal.

It is true that there was some attempt upon the .trial to show that there was some indebtedness from the principal to the agent on account of commission. But no definite evidence in that regard was given. There was no proof that any of this money was due to this agent on account of commission. There was some pretense that some commissions were due, but that certainly is not sufficient to justify an appropriation to his own use of a principal’s money by an agent; and a party who aids an agent in a scheme of that description cannot be said to be acting in good faith. Therefore, as matter of law, it would appear that Dennison did not receive this check in good faith, as he knew that the agent was misapplying at least a portion of the proceeds. This misapplication to the knowledge of the party advancing the money, or rather the balance of the money, necessarily tainted the whole transaction, and charged him with knowledge that the agent, in making the indorsement, was not acting on behalf of his principal. Under such circumstances, it would seem that there was no question for the jury, there being no dispute in regard to the facts, and that Dennison, as matter of law, could not be held to have accepted the check in good faith, relying upon an apparent authority.

The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: Follett, J.

text:
    Margaret B. Edson, as Executrix, etc., App’lt, v. John E. Parsons et al., as Executors, etc., Impleaded, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 15, 1895.)

    Wills—Revocation.
    Mutual wills, unless executed pursuant to a contract between the testators, are revocable in this state.
    Appeal from a judgment, dismissing the complaint on the merits.

      Joseph H. Choate and Treadwell Cleveland, for app’lt; David B. Ogden, for resp’ts.
   Follett, J.

In some jurisdictions the rule is that in case A. and B. execute wills at the same time, each having knowledge of the provisions of the other’s, each giving all of his estate or a definite sum to the other, neither testator can revoke, in the lifetime of both, without giving notice of his intentions to the other. But that is not the law of England or of this state. Hobson v. Blackburn, 1 Keen, 273 ; 1 Adams, Eq. 274; Ex parte Day, 1 Bradf. (Sur.) 476; Jarm. Wills (6th Am. Ed.) 29; 1 Williams, Ex’rs. (7th Am. Ed.) 9, 174. In the case first cited it was said:

“ I have no. hesitation whatever in rejecting the allegation propounding the mutual or conjoint will as that of the party deceased in this cause, on the principle that an instrument of this nature is unknown to the testamentary law of this country; or, in other words, that it is unknown, as a will, to the law of this country at all. It may, for aught that I know, be valid as a compact; it may be operative in equity, to the extent of making the devisees of the will trustees for performing the deceased’s part of the compact.”

In Ex parte Day the learned surrogate of the city and county of New York referred to the judgment above quoted as follows: f‘So far as this judgment proceeded upon the revocability of a will by a subsequent testamentary paper duly executed, notwithstanding any contract to the contrary, the decision is beyond criticism.”

We find no case in England or in this state holding that mutual wills are not revocable. In case A. and B. execute their wills in like manner, each giving his residuary estate or a definite amount to 0., either testator may, without notice, revoke his will in the lifetime of both or after the death of the other. No legal obligation not to revoke is created by the mere execution of such wills. But in case A and B. enter into a contract by which they agree that each will give, by will, to the other a definite sum or a particular estate, and each executes a will pursuant to the contract, if either revokes, without notice, the other may compel a specific performance of the contract, or, in case a a specific performance is impossible, may recover damages for the breach of the contract. In case A. and B. agree that each will give by will his residuary estate or a defínate sum to C., and they concurrently execute their wils, pursuant to the contract, each having full knowledge of the contents of the other’s will, butC. having no knowledge of either, and no consideration moving from him to either, whether C. can compel the performance of the contract or recover damages from the estate, in case the provision is revoked, need not be determined in this action, because we are of the opinion that no such contract is established by the evidence in the case at bar. • The fact that the wills were made pursuant to such a contract must be established by the most clear and satisfactory evidence. If it is recited in the wills that they were so made, or if in any way it. appears on their face that they were executed pursuant to a contract, it is quite sufficient. The existence of a contract may also be established, outside of the wills, by the same evidence by which the existence of other contracts may be proved. In this case the evidence by which the plaintiff seeks to establish the existence of a contract outside of the wills utterly fails to convince this court that the wills were executed pursuant to an agreement that portions of the respective estates of the sisters should be given to Marmont B. Edson. The plaintiff, to establish her case, introduced in evidence the diaries kept by the sisters. In the diary of Susan are memorandums of their consultations with their counsel about the preparation of the wills, and in each of them we find entries relating to the most trivial occurrences in their daily lives; but nowhere is there any suggestion that their wills were made pur suant to an agreement, which seems to us to be, at least, as good evidence of the nonexistence of such a contract as the entries referred to are of its existence. On turning to the wills of the sisters, we find no evidence in either that they were executed pursuant to an agreement that the amounts bequeathed by each to Marmont should not be subject to revocation by either testatrix. 'The judgment should be affirmed, with costs.

All concur.