text:
    Edward Pettingill, Resp’t, v. The Town of Olean, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Negligence—Highways.
    Plaintiff, while riding with one N., on one of _ defendant’s highways, was injured by reason of the forward wheel sinking into a deep hole, the character of which was concealed by the water which filled it; which hole had existed for nearly a month. It appeared that the commissioner of highways had several times passed by it on a tour of inspection and had failed to discover it. Held, that the facts warranted a finding that the existence of the hole at the time of the injury was due to the negligence of the commissioner.
    3. Same—Charge.
    Plaintiff was riding with N. as a gratuitous passenger. The court after charging the general rule as to negligence, stated that it would probably be unnecessary to consider the question of plaintiff’s negligence; that if there was negligence on the part of if., it was not imputable to plaintiff, and that he did not recall any evidence from which the jury would be authorized to find that plaintiff was guilty of negligence. Defendant’s counsel asked a charge that if any want of care or neglect on the part of plaintiff appeared he cannot recover. The court replied that this was a correct proposition of law, but repeated that he could recollect no evidence which would warrant the jury in finding plaintiff negligent. Held, no error.
    Appeal by the defendant, the town of Olean, from a judgment entered in Cattaraugus county, on the 2'7th day of February, 1892, on the verdict of a jury at the circuit, in an action for personal injuries; and, also, appeal by the same party from an order bearing date the 22d day of February, 1892, denying its motion for a new trial upon the minutes.

      Frederick W. Kruse, for app’lt; Alfred & G. E. Spring, for resp’t.
   Macomber, J.

On January 4, 1889, the plaintiff, while riding with one Wellington Nottingham along a public highway in the town of Olean, was suddenly thrown from the wagon to the ground, and was quite seriously injured. He was a neighbor of Mr. Nottingham, and was a gratuitous passenger, riding at the invitation of Mr. Nottingham. While passing along the beaten carriage track, the right forward wheel suddenly dropped into a deep hole, quite to the hub, precipitating the plaintiff to the ground. The depth of the hole is shown to be twenty inches. This highway was one of the principal thoroughfares leading into the village of Olean, and was traversed constantly by teams. Many persons had inadvertently driven into this hole prior to the .accident to the plaintiff. By reason of water settling into the rut, its dangerous character was not readily observable to the passer-by. This defect was shown by credible witnesses to have existed for nearly a month next preceding this occurrence, and that upon several days during that time the commissioner of highways had passed over the road on an official tour of inspection ■and had failed to discover it. The long continued existence of the defect, and the omission of the commissioner to discover the same, were facts sufficient, in our judgment, to warrant the jury in coming to the conclusion that its existence at the time of the injury to the plaintiff was through the omission of duty which the commissioner of highways owed to the travelling public; and that, consequently, so far as that branch of the case is involved in this appeal, the exceptions to the refusal of the court to nonsuit upon this ground were not well taken.

The point, however, was made by the learned counsel for the appellant that it was error for the trial court to refuse to submit to the jury the question of the plaintiff’s contributory negligence. This point, also, does not seem to us to be tenable, for the reason that on an inspection of the charge in chief it is found that the Court explicitly instructed the jury that it was obligatory upon-the plaintiff not only to satisfy them that the injuries were received solely through the negligent act of the commissioner of highways, but also that no negligence on his part contributed to produce the injury. The court then proceeded to point out to the jury that it probably would be unnecessary for them to enter. into an examination of the question whether or not any negligence on the part of the plaintiff contributed to the injury.

The evidence was undisputed, as the court correctly informed the jury, that the plaintiff was riding with Mr. Nottingham through the latter’s invitation, or had sought the privilege of riding with him; and that he was a gratuitous passenger, paying nothing for the ride. Nottingham had absolute control over his team and vehicle. The court then proceeded to instruct the jury, that even if Nottingham was guilty of negligence, such negligence was not imputable to the plaintiff. Thereupon the court said to the jury that it did not recall any evidence in the case from which the jury would be authorized to inquire or to find as a fact that the plaintiff was guilty of any negligence while upon this journey between his home and Olean. Upon inspection of the record, this assertion made by the learned judge appears to have been an entirely correct statement of the evidence. No circumstance is shown from which it could be intelligently argued to the jury, that the plaintiff, being a gratuitous passenger, failed to do anything for his own safety at the time mentioned which a reasonably prudent man under like circumstances would have done.

After the charge had been delivered, the defendant’s counsel asked the court to charge “ that if any want of care or neglect on the part of the plaintiff appeared, he cannot recover.” The court, responded that such was a correct proposition of law, and again expressed himself to the effect that he did not recollect any testimony in the case which would authorize the jury to find that the plaintiff was guilty of any contributory negligence; and invited the counsel for the defendant, -if the court were in error in that regard, to point out any evidence which would indicate any act showing such negligence. The counsel failed to refer to any such testimony for the obvious reason above mentioned, but he did respond to the inquiry of the court by saying that he thought it was for the jury to determine that question from the way the plaintiff rode along there, and from the way the injury occurred. Again, reverting to the testimony, it is found that there were no facts or circumstances which would justify the jury in saying that the-plaintiff was not riding in the usual, ordinary way of an invited, guest.

We see no error in the ruling upon this request, and as this is-the only exception in the case of any. moment, our conclusion upon it is decisive of this appeal

The judgment and order appealed from should be affirmed. Judgment and order appealed from affirmed.

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    The Prince Manufacturing Co., Resp’t, v. The Prince Metallic Paint Co., App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Trade-mark—Injunction against use of name—Misrepresentation.
    Any material misrepresentation in a label or trade-mark as to the person by whom the article is manufactured, or as to the place where manufactured, or as to the materials composing it, or any other material false representation, deprives a party of the right to relief in equity.
    3. Same.
    Robert Prince in 1858 used the name “ Prince’s Metallic Paint ” as a trade-mark upon a paint manufactured from a metallic iron ore discovered by him on his wife’s land in Pennsylvania. After her death the title to the land, business and the right to use the trade-mark was vested in defendant, which built a new and larger mill than the original one, several miles distant from the old one, using however, exclusively the ore taken from the Prince tract. Subsequently plaintiff was organized and the Prince .tract and the land on which the new mill was erected was sold under foreclosure and eventually became vested in plaintiff, and it conducted the business and used the trade-mark for nine years, using ore from the Prince tract, and from other leased lands in Go/rbon county, when certain old creditors of the defendant caused the franchises of that company to be sold on execution and bought them in, and claimed to own the trade-mark under such sale. Held, that even if plaintiff had the exclusive right to use the label, it has by its own conduct in the misuse of the same, by constantly claiming that the ore came from the “Prince tract” and really using about one-half from other mines, forfeited any right to apply to the court for protection against its wrongful appropriation by others.
    Appeal from judgment of the supreme court, general term, first department, reversing judgment of special term dismissing the complaint.

      Joseph H. Choate and John Frankenheimer, for app’lt; Frederic R. Coudert and John S. Davenport, for resp’t.

       Reversing 39 St. Rep., 488.

   Andrews, J.

It is undisputed that the title “ Prince’s Metallic Paint ” was first applied in the year 1858 by Robert Prince and Antoinette Prince, his wife, to paint manufactured by them from iron ore obtained from a tract of land comprising about forty-four acres, owned by Antoinette Prince, situated in Carbon county, Pennsylvania, and upon which the mill and kilns in which the paint was manufactured was located. The product of the business was sold in packages, upon which a label was affixed, circular in form, and on the rim were printed the words “Prince’s Metallic Paint.” It is also undisputed that in 1871, after the death of the original proprietors, the title to the forty-four acres and to the business of manufacturing “ Prince’s Metallic Paint,” together with the right to use the- label or trade-mark, was vested in one Bass, a son-in-law of Robert and Antoinette Prince, who in 1873 organized a company under tjie name of “Prince’s Metallic Paint Company,” to carry on the business of manufacturing paint upon the premises, and that Bass and the company organized by him continued the business primarily carried on by Robert and Antoinette Prince until 1875,. when the company was organized as a corporation by the same name under a general law of Pennsylvania, in which was vested the title which Bass had held to the ore bed and premises, and to» the business and trade-mark before referred to. The corporation conducted the business of manufacturing metallic paint on said land from ore obtained therefrom, and attached the label “ Prince’s Metallic Paint ” to the product, and sold the same under that name until 1879, when the corporation became insolvent. The corporation had meanwhile erected a new and larger mill than the original one, and on land several miles distant therefrom, in which,, up to the time of the insolvency of the corporation, it had manufactured its paint, using, however, exclusively, ore taken from the Prince tract.

In 1878 and 1879, all the real property of the corporation, viz.: the forty-four acres known as the Prince tract, and the land on which the new mill had been erected, was sold under foreclosure: of mortgages thereon, and through several mesne conveyances title to one-half of the Prince tract and to the new mill became in 1879-' vested in the plaintiff, “ The Prince Manufacturing Companjr,” also a Pennsylvania corporation, organized in that year, and in which Abraham C. Prince and David Prince were and ever since,have been the principal stockholders. The Prince Manufacturing Company immediately upon its organization entered upon the: business of manufacturing metallic paint from ore taken from the Prince tract, and from other lands in Carbon county, leased by the corporation, and sold the product under the label “Prince’s Metallic ¡Paint,” except that paint which was manufactured in a mill on one of the leased tracts, in which a brand of paint known as “ Poco Metallic Paint ” had been previously manufactured, was, when customers desired and when orders; were received therefor, branded by the plaintiff as. “ Poco Metallic-Paint ” instead of “ Prince’s Metallic Paint.”

The plaintiff continued to conduct the business and to use the-“Prince” label (claiming the right so to do) without interference from 1879 to 1888, when certain creditors of the “ Prince’s Metallic Paint Company ” of 1875 caused a sale to be made of the-franchises of that corporation upon execution under a statute o£ Pennsylvania, and became the purchasers and proceeded to reorganize the corporation under the original name pursuant to the authority given by the statute, and the new corporation claims to-own the label or trade-mark, “Prince’s Metallic Paint,” as successor of the corporation of 1875, and, although it has not conducted the business of manufacturing paint, nevertheless permits Rutherford and Barclay, who are engaged in the business, to affix the label to their packages.

The plaintiff and the defendant severally claim exclusive title to the label and the right' to use it upon packages of metallic paint. Bach claim title under the “ Prince’s Metallic Paint Company ” of 1875. The plaintiff claims title from several and distinct sources: First, by reason' of its ownership of the original mine and works of Robert and Antoinette Prince, derived under the foreclosure sales; second, as transferee of the purchaser of the trade-mark on a sale under an execution against the “ Prince Metallic Paint Company,” issued in 1879, under which the trademark was sold eo nomine, and which sale is claimed to have been» authorized by a statute of Pennsylvania; third, under an agreement made between Bass, the president of the corporation of 1875,*. and subsequently ratified by the corporation.

The defendant denies the title of the plaintiff and rests its right' to the label and trade-mark exclusively upon the effect of the: sale and purchase of the franchises of the corporation of 1875,. made in 1888, before referred to, and the reorganization proceedings ; the claim being that the trade-mark, with the right to manufacture “ Prince’s Metallic Paint,” passed to the purchasers of the franchises as incident thereto, together with the right to reorganize the corporation under the original name.

The judgment dismissing the complaint, rendered at special term, was placed by the learned judge upon the failure of the: plaintiff to establish any exclusive right to the use of the trademark label upon its goods. The order of the general term, reversing the judgment of the special term, proceeded upon the contrary view of the question of title, and the court held that the evidence established the title claimed by the plaintiff. We feel, compelled to concur in the judgment of the special term dismissing the complaint, on the ground that, assuming that the plaintiff had the exclusive right to use the label “ Prince’s Metallic Paint,”’ it has, by its own conduct in the misuse of the trade-mark or label, forfeited any right to apply to the court for protection against its wrongful appropriation by others. This defense was set up in the defendant’s answer.

Whatever contradiction may be found in the record as to other facts there is one which admits of no dispute, and that is that, from 1858; the year in which the manufacture of metallic paint-was established by Robert and Antoinette Prince, until the incorporation of the plaintiff in 1879, the label “ Prince’s Metallic-Paint ” had been exclusively applied, first by the originators of the article, and subsequently, after their death, by their successors in the business, to paint made from ore taken from the so-called, original Prince tract of forty-four acres.

The label in its natural and primary signification indicates the-nature of the article to which it is attached and also the producer. The words “ Metallic Paint ” standing alone could not be appropriated as a trade-mark, since they constitute the proper designation of the article by its appropriate name. Butthe word “ Prince,”' indicating the manufacturer, identified the article to which the-label was attached as that produced by him, and no person of a, different name could stamp it upon a similar commodity. But the originators of the label, who seem also to have originated the-manufacture of metallic paint from iron ore, began to claim that the superior quality of their product was owing to the peculiar quality.and purity of the ore found in the mine on their tract of forty-four acres, from which the paint was manufactured, and that. it produced a much better quality of paint than. could be produced from ore taken from any other part of the same vein.

■It was claimed that the paint manufactured by rival manufacturers from ore taken from other parts of the vein, known as Lawrence Metallic Paint, Poco Metallic Paint and Lehigh Metallic Paint, was inferior in color and quality to the Prince’s Metallic Paint by reason of the inferiority of the ore from which it was made. These claims were put forth to the trade and the evidence leaves no room to doubt "that at the time of the incorporation of the plaintiff in 1879, and its acquisition of the original Prince tract, the credit which the article “Prince’s Metallic Paint ”.had acquired In the market was owing in part to the belief of the trade that the ore from the Prince mine was superior to all other -ore in Carbon county. The label or trade-mark came to have a ibroader meaning than it originally possessed, and when attached ito packages of paint indicated not only that the paint was made ¿by “ Prince ” or his successors in business, but also that it was made from ore taken from the original Prince mine, and this latter Indication constituted an important element of the good will of the business. That these facts were known to the plaintiff was ■established by the most satisfactory evidence.

The Prince Manufacturing Company (the plaintiff) in September, 1879 (the year it was organized), brought a suit in the superior court of the city of New York, against Bass and others, for an •infringement of the trade-mark. In that suit the plaintiff procured rsworn declarations to be made that “ Prince’s Metallic Paint ” <could only be made from ore taken from the original Prince vein, ¡and that it was so understood by the trade, and that the ore ■•from that mine was superior to the tíre from any other part of the vein.

Abraham C. Prince, the president of the plaintiff, declared among other things, under oath, •“ that there are in the neighborhood of Prince’s Metallic Paint Works several other paint factories whose products are known to the trade, but under distinct and separate designations, and that the designations of such products respectively denote to the trade their respective origin. And such paints are preferred and are in demand by the trade according to their locality 'of origin, as shown by their designations, and are not equally esteemed simply because they come from the same general vein or deposit in the neighborhood.” And, further, “ that the trade generally believe the paint manufactured from the ore -of the original Prince’s mine is superior, and in inquiring for paint with Prince’s Metallic Paint label upon it understand paint so produced.”

In the affidavit of Robert Prince, used by the plaintiff in that suit, he said, “ It has always been considered a matter of good faith that the ore for Prince’s Metallic Paint should be taken from the original Prince ore bed and works, and I know of no •case of its having been taken from any other.” The verified complaint in the present action, commenced in 1888, makes the same claim. It alleges the ownership by the plaintiff of the “original ¿Prince Metallic Paint works and minethat ever since the year 1858 the “ said premises and mine ” have been known as Prince’s Metallic Paint Works ; that the premises consisted and consist of mills for the manufacture of paint and of a “ well known mine or ore bed, which was discovered by Eobert Prince and from, which a certain peculiar earth or ore is obtained, which was the basis of the paint known as Prince’s Metallic Paintthat the-trade-mark or label was invented and arranged by Eobert and Antoinette Prince; that the paint distinguished by the label “ Prince’® Metallic Paint ” surpassed all other metallic paints and obtained, special favor with consumers, and brought a higher price; that; the business of Prince’s Metallic Paint works has been conducted, continuously since 1858, and that said label or trade mark has; been used exclusively “ for designating the product of said Metallic Paint works and the mines thereto belonging.”

The tenth paragraph of the complaint declares “ that by reason of Said use for about thirty years, the product of said paint works, and mine is known as Prince’s Metallic Paint, and Prince’s Metallic Paint is understood to be said product, and no other can. be, lawfully described as Prince’s Metallic Paint.”

■ The complaint, after alleging the infringement by the defendant, asserts that the article manufactured by the defendant is spurious and fraudulent and is manufactured elsewhere than at Prince’s Metallic Paint works, “and from earth not obtained from said mine.”

These references to the complaint sufficiently show that when this action was commenced the plaintiff understood that the name “ Prince’s Metallic Paint ” designated and was understood by the trade as distinguishing metallic paint made from ore taken from the original -Prince tract of forty-four acres, and that no other could be lawfully described as “Prince’s Metallic Paint.” This was the plaintiff’s claim in 1879, in the suit against Bass and others, and it was re-asserted in unequivocal language in the; complaint in this action.

It was disclosed on the cross-examination of A. 0. Prince on-the trial of the present action, that soon after the organization of' the plaintiff in 1879,- it secured leases of lands in Carbon county,, containing the ore from which Lehigh Metallic Paint, Poco Me? tallic Paint and Lawrence Metallic Paint had been made, and the-mills in which it had been manufactured, and that the plaintiff commenced and has continued to use ores taken from these leased; lands in making “ Prince’s Metallic Paint.” The other paints, mentioned up to 1879 had been sold in competition with “Prince’s; Metallic Paint.” The witness Prince when pressed for an explanation why the ores from the leased mines were used in making “ Prince’s Metallic Paint,” which the plaintiff in the suit against. Bass had declared to be inferior, and how the application of the? label to paint manufactured from these ores could be justified in-view of the understanding of the trade that “ Prince’s Metallic-Paint ” was made from ore taken from the Prince mine, at first-stated that at least twenty-five per cent of the ore from the Prince mine was used with the other ores, and this gave the product the-requisite color and quality. The witness finally admitted that. about one-half of the paint manufactured by the plaintiff, to which the label “Prince’s Metallic Paint” was attached, was manufactured wholly from ores taken from the leased lands, but claimed that ore on some of these lands was of the same character and as good as the ore from the original Prince mine, and that the paint manufactured by the plaintiff from such ores was of as good quality as the original paint known as “ Prince’s Metallic Paint.”. The plaintiff, as the witness testified, used the ores from the leased lands because the Prince tract did not supply sufficient ore for the plaintiff’s business.

The trial .judge, among his findings of fact, found that ever since 1879, down to the trial of the action, the plaintiff claimed ¡that the designation “ Prince’s Metallic Paint,” and the label and trade-mark in question, are properly applicable only to paint made ¡from ore taken exclusively from the original Pnnce mine, and ¡that the trade inquiring for paint with Prince’s Metallic Paint label upon it, understood paint so produced. Also, that ever since 1879 the plaintiff has represented that the paint sold by it under that label was made from ore taken from the original .Prince mine, and these findings are followed by a finding that .■about half the jpaint sold by the plaintiff as Prince’s Metallic .Paint, under that label, is made from ore taken from mines other than the original Prince mine and which are not situated upon ¡the original Prince tract.

Upon the facts appearing in the record' the plaintiff corporation is seeking to enjoin a fraudulent use by the defendant of a label which it itself -is using in violation of its established meaning, as a means of selling another product than that to which it could be rightfully applied. According to the definition .put upon the label by its originators, as understood by the trade, asserted in the most solemn manner by the plaintiff in judicial proceedings, alleged in the complaint in this action and found by the trial court, the words “ Prince’s Metallic Paint ” designated paint made exclusively from ore taken from the original Prince mine. The designation of the locality from which the ore Was taken, implied in the use of the label, was a material circumstance, because it was one of the essential grounds of the credit which Prince’s Metallic Paint had acquired in the market, and contributed to its sale. One-half of the paint sold by .the plaintiff under that designation was in no sense the article described in the label. The label was .an assurance to purchasers that the paint to which it was attached was made from the ore of the Prince mine, and was a guarantee that they were receiving paint so manufactured. By affixing the label to paint manufactured from other ores, the plaintiff availed itself of the credit which pertained to paint manufactured from the Prince ore bed to put upon the market paints manfactured from other ores, without so far as appears disclosing the difference of origin. Purchasers were deceived and the plaintiff reaped the advantage of the deception.

The jurisdiction of equity to restrain the infringement of trademarks is founded upon the right of property in the plaintiff and ¿ts fraudulent invasion by another, and is exerted to prevent fraud upon him and. upon the public. A plaintiff who has adopted a trade-mark to identify his production and by his labor and skill has created a valuable market therefor and has induced public-confidence in the superior quality of his goods, whether based on the skill used in their manufacture, or in the material from which they are made, or on both combined, is entitled so long as he deals-openly and honestly with the public to be protected against those-who without right attempt to appropriate his symbol to other goods of the same class.

In protecting the owner of the trade-mark the public is also-protected and deception is prevented. But, as was said by Lord Romilly in Cocks v. Chandler, L. R., 11, Eq., 446, “ the administration of equity is founded in perfect truth.” The party who comes into a court of equity for relief against fraud must himself be free from fraud in the matter of which he complains, or, as is frequently said, he must come with “ clean hands.” The courts have in many cases applied this principle in bar of relief in cases of trade-marks. Any material misrepresentation in a label or trade-mark as to the person by whom the article is manufactured, or as to the place where manufactured, or as to the materials composing it, or any other material false representation, deprives a party of the right to relief in equity. The courts do not in such cases take into consideration the attitude of the defendant. Although the defendant’s conduct is without justification, this, in the eye of a court of equity, affords no reason for interference. See The Leather Co. v. The American Leather Co., 11 Jur., N. S., 513; Pidding v. How, 8 Sim., 477; Perry v. Truefitt, 6 Beav., 66; Partridge v. Menck, 1 How. Ct. App. Cas., 558; Manhattan Medicine Co. v. Wood, 108 U. S., 218; Palmer v. Harris, 60 Pa. St., 156; Kenny v. Gillet, 70 Md., 574; Browne on Trade-Marks, chap. 10, and cases cited.

The present case differs from the cases referred to in the fact that the misrepresentation in those cases was on the face of the label or trade-mark used, or in written or printed advertisements or circulars, while here the words “ Prince’s Metallic Paint ” do-not of themselves embody any representation as to the particular ore used in the manufacture, except as connected with the meaning attached to them by the trade. But this we conceive does not. distinguish the cases in principle. The plaintiff and its predecessors in the use of the label have, by their conduct, warranted the public in believing that the words “ Prince’s Metallic Paint ”” mean metallic paint made by Prince, or his successors, from the-ore of the Prince mine. When the plaintiff offered for sale packages of paint, with the label attached, it was an implied representation that it was the product of ore from the Prince mine, and being untrue the same consequences follow, we think, as though the-representation was printed on the face of the label.

Mor is it any answer to this point that the article sold under the name of “ Prince’s Metallic Paint ” was as good as that made from the ore of the original mine. A party cannot secure the confidence-of the public in an article, on the ground that it is made from one material of which the trade-mark is.a guaranty, and then? without advising the public, substitute another material and sell that upon the credit of the true article, and justify the false use of the trade-mark or label on the ground of similar quality. If this was permitted, it would offer a temptation to fraud and .an inferior article might be palmed off on unsuspecting purchasers. And although the false article is as good as the true one, “ the privilege, of deceiving the public even for their own benefit is not a legitimate subject of commerce. Gardner, J., Partridge v. Menck. supra; see also Phalon v. Wright, 5 Phila., 464; Kinney v. Gillet, supra; Browne on Trade Marks, § 496.

It is probable that the plaintiff has acted without any actual intent to defraud, but what it did upon the evidence and findings operated as a deceit upon the public, and this is sufficient to ■bar relief.

The attitude of the defendant does not commend itself to a court of equity. Even if its right to use the label was established, it is aiding outside manufacturers to sell their goods under the label of the corporation. But we place our judgment on the inequitable use of the label by the plaintiff.

The conclusion is that the order of the general term should be reversed, and the judgment of the special term affirmed.

All concur.


author: O’Brien, J.

text:
    Charles E. Burns, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Costs—Code Crv. Peo., § 3234—“Recover.”
    Where a plaintiff recovers upon one or more separate causes of action, and is nonsuited as to others, this does not entitle defendant to costs under § 3234 of the Code. It is only when defendant recovers upon one or more of the separate causes of action that_ costs follow, and there must be an actual verdict, finding or judgment in his favor.
    S. Same—Pees eor taking commission.
    The clerk included in the costs taxed in favor of the plaintiff for “ attending to taking depositions of three witnesses at Pittsburg $30,” and “paid commissioner’s fees in Pbtsburg $14.50” expenses incurred in preparing for the trial of the second cause of action as to which plaintiff was nonsuited at the close of the evidence. Two of the witnesses were examined for plaintiff and the other for defendant, and their evidence referred to the said second cause of action. Feld, error^that the statutory allowance is limited to $10 whether one witness or three are examined. So that the charge of $30 should be reduced to $10 and that only be taxed.
    8. Same.
    The party entitled to costs is entitled to tax $10 for drawing interrogatories to be annexed to a commission, and the same sum for attending before a referee or commissioner to take a deposition, without regard to the number _ of witnesses examined.
    (Earl, Oh. J., Andrews and Maynard, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, fifth department, affirming order made at special term denying defendant’s motion for retaxation of the plaintiff’s costs, and denying defendant’s application to tax a bill of costs against plaintiff.

      Chas. J. Bissell, for app’lt; E. A. Nash, for resp’t.

       Modifying and Affirming 42 St. Rep., 171.

   O’Brien, J.

The order appealed irom adjudged that the plaintiff was entitled to recover costs in the action and that the defendant was not. The complaint contains three separate and distinct causes of action, each arising out of the neglect of the defendant to perform its duty as a common carrier. It is alleged that the plaintiff on three different occasions delivered property to the defendant within this state to transport to different consignees in three different states, and that by reason of its neglect and failure to transport and carry such property to its place of destination within a reasonable time the property was damaged and the plaintiff sustained loss in consequence. The defendant's answer put in issue all the material allegations in the complaint as to each cause of action. It appears that the plaintiff gave no proof whatever in support of the third cause of action, and that at the close of all the evidence the court granted a nonsuit as to the second cause of action and submitted the issues upon the first cause of action to the jury, and the plaintiff, on that cause of action aloné, had a verdict. Both sides claimed to be entitled to costs. The clerk taxed the bill presented by the plaintiff and rejected that presented by the defendant.

A motion on the part of the defendant for a retaxation was denied at the special term, and the order was, upon appeal, affirmed at the general term. The right of the defendant to costs depends upon the construction to be given to § 3234 of the Code of Civil Procedure, which provides that in certain actions “ wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other, or others, each party is entitled to costs against the adverse party, unless it is certified that the substantial cause of action was the same upon each issue; in which case the plaintiff only is entitled to costs.”

The plaintiff must admit that all the conditions mentioned in the statute upon which the right of the defendant to costs depends exist in this case except possibly one. The complaint sets-forth separately two or more causes of action upon which issues of fact were joined and the plaintiff has recovered upon one of the causes of action. The only question is whether the defendant has also recovered upon the other causes of action, within the-meaning of this section of the Code. The defendant has succeeded in defeating two of the plaintiff’s causes of action, but it-has been held that something more was intended by the use of' "the word “recovers.” Before the plaintiff is entitled to costs-there must of course be a recovery in his favor and this means an an affirmative finding, verdict or judgment. The word as used in the section has the same meaning whether applied to a plaintiff or a defendant. This provision of the Code was borrowed from the Revised Statutes, 2 R. S., 616, under which it was held that in order to entitle a defendant to costs, there must be an actual finding or verdict in his favor, and that where there was a general verdict, for the plaintiff and no verdict for the defendant, the latter could not be awarded costs, although he had succeeded in defeating the plaintiff upon one or more of the causes of action set forth in the ■complaint. Johnson v. Fellows, 6 Hill, 353 ; Crittenden v. Critttenden, 1 id., 359; People v. Feeler 12 Wend., 480; Briggs v. Allen, 4 Hill, 538. This was' the substance of the decision of the supreme court in Cooper v. Jolly, 30 Hun, 224, when this section of .the Code was before it for construction, and this court affirmed the decision in that case, without an opinion. 96 N. Y., 667. In this cáse, while there was a nonsuit ordered in favor of the defendant on two of the causes of action stated in the complaint, that is no bar to another action by the plaintiffs on the same claims, and hence? there has not been a recovery in favor of the defendant within the meaning of this provision of the-Code. In such case if the defendant intends to claim costs he should ask for an affirmative verdict or finding in his favor that will have the effect of •disposing of the cause of action as to which the plaintiff has failed. The case of The Newell Universal Mill Company v. Muxlow, 115 N. Y.; 170 ; 24 St. Rep., 545, is in no way opposed to this construction. In that case, although the action was brought to recover several chattels, yet there was but one count or cause of action set forth in the complaint. The fact that the plaintiff succeeded as to some of the property, and the defendant as to the rest, did not bring the case within the section, as the defendant’s right to costs is dependent upon a condition that did not exist, namely, the statement by the plaintiff in his complaint of two or more independent and separate causes of action. If the legislature intended to allow a defendant who succeeds in defeating a separate cause ■of action, stated in the plaintiff’s complaint, to recover costs, it. would have used some other word to designate the ’ form of the judgment in his favor and upon which the right depended. It is only when he recovers upon one or more of the separate ■causes of action that costs follow, and in the absence of an actual verdict, finding or judgment in his favor, this condition is not satisfied. Hence the order appealed from was right in so far as it denied costs to the defendant. It is also urged in behalf of the defendant that the clerk included in the costs taxed in favor of the plaintiff two items that were not taxable, namely, attending to taking deposition of three witnesses at Pittsburg, $30,” and “Paid commissioner’s fees in Pittsburg, $14.50.” This expense was incurred, as appears from the affidavits, in preparing for the trial of the second cause of action, as to which the plaintiff was nonsuited at the close of all the evidence. The item of thirty ■dollars is also included by the defendant in his bill of costs,- pre.•sented to the clerk for taxation, and the affidavit annexed is to •the effect that the witnesses examined were necessary. It appears that two of the witnesses were examined for the plaintiff and the ■other for the defendant, and their testimony related to the issue raised upon the second cause of action or count of the complaint. 'The commissioner’s fees are a disbursement, and all disbursements claimed must be shown to have been necessary in the case, in order to warrant the clerk in taxing them. The other item, however, is not a disbursement, but a part of the statutory allowance that follows a recovery and stands upon the same footing as the trial fees, the term, fee, or the allowance before-and after notice of trial. It is provided in § 3251 of the Code that either party shall be entitled “ For taking the deposition of a witness or of a party, as prescribed in § 870, § 871 or § 893 of this act, ten dollars.

“ For drawing interrogatories, to be annexed to a commission, or to letters rogatory, issued as prescribed in §§ 888, 912, 913 and 5171 of this act, ten dollars.” There are other provisions of the .section giving a designated allowance for certain services in an action, as the procuring of an injunction order, an order of arrest, or order appointing a guardian for an infant. The only question that can arise upon an application to tax these statutory charges is whether the proceedings were had, or the particular service actually rendered in the progress of the litigation. If a commission has been issued in the case, or an inj unction order, or order appointing a guardian granted, and remains a part of the record or the proceedings, the statutory allowance follows the right to costs, and neither the taxing officer nor the court can institute an inquiry as to the necessity of the commission, or the particular order, or the value of the service performed. In this case the plaintiff was ■defeated on the second cause of action, notwithstanding the testimony taken by commission to sustain it, but the very testimony ■elicited either upon the direct or cross-examination may have been the basis of the nonsuit granted upon the defendant’s motion. The right of either party to tax the statutory allowance given by law for examination of witnesses by commission did not depend upon success as to the particular cause of action to which the proof was directed, but only upon such success as carried with it the right to general costs in the action. Code, § 3228. As the plaintiff succeeded to that extent, the fact that he failed to recover upon the second cause of action is utterly immaterial. It does not appear from the record under which of the several provisions ■of the Code above referred to the witnesses were examined at Pittsburg. Nor does it appear whether the testimony was taken at the instance of the plaintiff or the defendant, or whether it was taken by stipulation, or under an order of the court, or a commission. Both parties have included in their bills of costs fees paid the “ commissioner.” We will therefore assume that one commission was issued to examine three, witnesses at Pittsburg.

The fact that counsel have attended at the taking of the deposition does not entitle the successful party to charge any more than he would be entitled to if the same witnesses had been examined upon interrogatories annexed to the commission, and drawn by counsel. Section 307 of the Code of Procedure authorized a similar charge for similar services, but it was held that under that section only one fee of ten dollars could be charged for drawing all the interrogatories to a commission for the examination of several witnesses. O'Brien v. Commercial Fire Ins. Co., 38 Sup. Ct., 4; Johnson v. Chappell, 7 Daly, 43. The plaintiff’s costs have been taxed in this case upon the theory that the successful party is entitled to ten dollars for every witness examined, whether by written interrogatory or otherwise. This, I think, is not the right construction. The party entitled to costs is entitled to tax ten dollars for drawing interrogatories to be annexed to a commission, and the same sum for attending before a referee or commissioner to take a deposition, without regard to the number of witnesses examined. The statutory allowance is limited to ten dollars, whether one witness or three is examined. The fact that the plaintiE failed to recover on the second cause of action does not, in my opinion, defeat his right to -recover the fees of the commissioner for taking testimony in support of it. The legal disbursements of a party in attempting to establish a separate cause of action, in which he fails, are not contingent upon his success as to the particular claim, but upon his right to general costs and disbursements in the action. When a party succeeds to that extent, every legal disbursement incurred in the case will follow, and cannot be defeated by showing that the expense was incurred in an unsuccessful attempt to establish a separate element of the case; A legal disbursement to establish a separate cause of action, in which the party fails, cannot be held to be unnecessary because of such failure. It is enough if it appears that the party claiming it is entitled to general costs and disbursements in the case, and that it was incurred in good faith in the progress of the cause-, and for the purpose of establishing one of the issues presented. When thus incurred it is necessary though the expense, as in this case, resulted irj no benefit to the party, but may in fact have benefited the other side.

The defendant in this case would have been entitled to costs as well as the plaintiE had its successful resistance to the second cause of action been expressed in the form of an affirmative verdict in its favor. The plaintiE ought not to be permitted to recover disbursements, connected with this cause of action, without some proof that they were actually incurred. The record does not show that there was any proof before . the special term or the clerk that the commissioner’s fees were paid, or any obligation to-pay incurred, or that the item was in any way a necessary or proper disbursement in the case. The charge of thirty dollars for attending to take depositions should therefore be reduced to ten dollars and the sum of $84.50 deducted from the costs as taxed.

The order appealed from should be modified in that respect, and as thus modified affirmed, without costs to either party.

Finch, Peckham and Gray, JJ., concur; Earl, Ch. J., Andrews and Maynard, JJ., dissent.


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    Caroline L. G. Scott, Resp’t, v. The Haverstraw Clay & Brick Co., App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

      1. Lease—Covenants T9 keep in good order.
    A lease of a brick yard premises contained a covenant by the lessee that it would maintain a proper and substantial brick yard on the whole ra said premises, a^d keep and preserve all buildings, etc., then on or which might be erected on the premises in good repair and condition at its own expense and leave the same in good condition at the expiration of the term; all such improvements to be the property of the lessor.. An extension lease provided that the lessee should erect and maintain an engine of sufficient power to manufacture brick on said premises, with suitable buildings and •fixtures and machinery for the same, and leave the same on the premises in good order and condition, such engine and fixtures being a part consideration for the extension. Held, that defendant was required to furnish everything necessary to such a yard covering the whole premises at the commencement of the term, and to keep it up during his term, and to furnish and leave thereon an engine sufficient to operate the yard.
    33. Same—Damages.
    Defendant put in a smaller engine than the covenant called for. Held,that so far as it was concerned the case was the same as if no engine had been furnished, and the referee was justified in allowing for a suitable engine.
    3. Same.
    The defendant was to leave the surface of the yard in a smooth condition and it was left broken. Held, that as this smooth condition was necessary in order to manufacture brick successfully, in the manner in gen•eral use when the lease was made, the fact that since the lease was made other methods had been devised, which rendered this condition unneces-. sary, did not change the construction of the covenant nor defendant’s liability under it.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff, entered on report of referee.

      Calvin Frost, for app’lt; E. A. Brewster, for resp’t.

       Affirming 43 St. Rep., 804.

   O’Brien, J.

The plaintiff recovered damages for the breach, on the part of the defendant, of certain covenants in a lease of premises used as a brick yard. The lease covered a period of ten years from April 1, 1878, and contained the following covenants on the part of the defendant, out of which the claim for damages arises ; “ That it will, at its own proper cost and expense, maintain .and keep up a proper and substantial brick yard upon the whole •of the demised premises. That it will keep and preserve all the buildings, sheds, docks, pits and other improvements, now on said premises belonging to the party of the first part or which may hereafter be erected, enlarged or altered, in good repair and condition at its own cost and expense ; and at the expiration of said term, or sooner determination of this lease, leave the same, with all docks, buildings, pits, improvements and fixtures in good order and condition, the whole thereof to be, at the termination of this lease from whatever cause, and become the sole and absolute property of the party of the first part, and at such time to be surrendered and yielded up to the parties of the first part, or their legal representatives, in good order and condition.

“ That it will not suffer, permit or allow any bats from said yard or vessel, or any other materials to be .thrown into the Hudson river near the bulkheads or docks so as in any way to obstruct or interfere with the navigation, or free use thereof, or so as to make the waters of the river in any degree more shallow or less deep.

“ That it will on the termination of the lease leave the docks, yards and grounds in good, smooth and regular surface and condition and in good repair. It being part of the consideration of this lease that the party of the second part shall keep the property from deterioration, and leave on the same all additions and improvements as aforesaid.”

“That it will erect, put up and maintain on said premises a. steam engine for the manufacture of brick thereon of sufficient horse power and capacity for the purposes thereof, with suitable buildings and fixtures and all machinery required therefor; and that at the expiration of the term it will leave the same and every part thereof on said premises in good order and condition,, the whole then to be and become the absolute property of the party of the first part; said engine, fixtures, building and machinery being part consideration for the granting of the term hereby demised.”

The defendant went into the possession of the premises at the-date of the commencement of the term fixed by the lease and occupied them thereunder until the termination of such term. It is alleged and found that there were two leases, the first dated February 23, 1878, made when the plaintiff was a joint owner of the premises with another, for-five years, to commence on the first of April thereafter. Subsequently and on January 31,1879, the plaintiff having become the sole owner, executed to the defendant another lease for five years, the term to commence at the expiration of the term demised in the first, and adopting therein all the covenants, of the first lease, with the last paragraph above quoted in addition. These two instruments demised to the defendant two successive terms of five years and are to be read and construed as-one grant. The rent reserved was $1,200 per year, payable quarterly. The cause was tried before a referee, who, upon conflicting evidence, found the following facts with respect to the violation of the covenants above set forth, on the part of the defendant. That when the lease went into effect and the defendant into possession, there were upon the premises buildings, sheds, docks on the banks of the Hudson river, pits, machines, boilers, engines and appurtenances, fixtures and other improvements belonging to-the plaintiff. That during the term other improvements and fixtures were made and erected or put upon the demised premises by the defendant which, by the terms of the lease, became the property of the plaintiff, as a part of the brick yard demised.

That the defendant failed to keep up and maintain a proper and substantial brickyard upon the whole of said premises, but permitted the same and the docks, sheds, buildings, machines, fixtures, additions and other improvements thereon, as well those thereon at the beginning of said lease, as those afterwards put thereon during said demised term, to become and remain out of repair, and to deteriorate and depreciate in value.

That at the expiration of said lease the defendant failed to yield and surrender said premises to the plaintiff in good order and condition, and to leave the docks, yards and grounds in good, smooth and regular surface and condition, and free from deterioration, but that said docks, yards and grounds were left by the defendant, out of repair; of uneven and irregular surface, and the facing upon said yards to a great extent broken and worn qut.^

That the defendant during or at about the expiration of the-term of said lease, removed, or permitted to be removed and taken away from said premises, certain buildings, sheds, pits, lumber,, machines, and othér property belonging to the plaintiff,^ thereby depriving the plaintiff of the same, and of the use thereof. _

_ That the defendant failed to put up, erect and maintain, and leave upon said premises in good order and condition, a steam engine of sufficient capacity and horse power, with suitable buildings, and all machinery required therefor.

That by reason of the premises, the plaintiff has sustained damages in the sum of thirteen thousand, four hundred and fifteen 70-100 dollars.

The referee directed judgment for the plaintiff for the sum thus-found as damages, with interest thereon from the date of the expiration of the lease, and the general term has affirmed the judgment.

The covenants in the lease in question differ in some important respects, as will be seen, from the ordinary and usual covenants in a lease of real property to pay a specified rent for the use of the premises in money, and at the end of the term surrender the-premises in as good condition as when the term commenced,, ordinary use and damage excepted. Here the cash rent reserved was but a part of the compensation of the landlord for the use of the demised premises. The balance was to be paid by the tenant in making certain additions and improvements to the premises, so as to constitute, when completed, a proper and substantial brickyard, and to leave all these improvements, as well as those found upon the premises when he took possession, in good condition. Certain parts of what is called in the lease a brickyard, the tenant was bound to create or furnish, such as machinery, fixtures and other improvements. He was also to expend money and labor upon what he found there when his term commenced, to put it in the condition specified in the lease, that is good condition, and the whole to be put and kept in that condition up to the date of the expiration of the lease. The fulfilment of these covenants is, by the terms of the instrument, a part of the consideration for which the grant was made. The defendant having covenanted to “ keep and maintain at his own cost and expense a proper and substantial brickyard upon the whole of the demised premises,” this required the defendant to furnish everything necessary to such a yard not-on the premises at the commencement of the term, and to keep it up during his term. The lease provides for but one yard and that was to cover the whole premises. For the use of such a yard the defendant was to put up and maintain thereon a steam engine, with sufficient capacity to operate the yard, with fixtures and all suitable buildings, and this was to be left upon the premises when the lease expired. The defendant was to “ preserve the property from deterioration ” and, therefore, was bound to do something with respect to the property to off-set the natural wear and damage by the elements. The tenant was not to permit or allow bats to be thrown into the river near the bulk heads or docks, so as to obstruct or interfere with free navigation or use of the water or-to make it in any degree more shallow.

This required the tenant at the end of the term to remove any bats thrown, or which had fallen into the water in violation of this ■covenant, or to pay to the landlord the reasonable expense of removing them. As the referee adopted a construction of the lease in harmony with the one here indicated, he had only to inquire whether there was an actual breach of any of the covenants, and to determine the damages resulting therefrom, and these points presented questions of fact which he determined upon conflicting ■evidence in favor of the plaintiff. The legal conclusion is .sustained by the findings, and the latter we are not permitted to review, because they are certainly supported by some, if not by the just preponderance of evidence. On the trial evidence was given by both parties as to numerous items of damages growing out of the breach by the defendant of the several covenants in. the lease. This evidence related to the value of numerous articles, such as machinery and other fixtures, which had been taken from the premises, and still others of the same general character which, were never put upon the premises by the tenant The removal •of these on the one hand, and the omission of the tenant to furnish .and put them upon the premises on the other, were alike claimed 'to constitute a breach of the covenants, and the referee so held. 'The damages awarded, though made up of many items, are stated ■by the referee in his report in a gross sum. The argument of "the learned counsel for the defendant is directed to certain items which he claims the referee included in his decision, and which went to make up the gross sum, which, he insists, should not have been allowed at all, or at a less sum than that awarded by the referee. That the plaintiff was entitled to recover a considerable sum as damages is not seriously disputed, the main -contention in behalf of the defendant being that the amount ■allowed is too large. We cannot know from the referee’s report what particular items he allowed or rejected. The jurisdiction of this court to review errors of law cannot be intelligently or properly exercised in such a case unless all the facts bearing upon the legality of the disputed items are either found, or the question presented by some specific request to find.

The defendant made some general requests which are sufficient to raise the question of any liability whatever as to certain items, but the question whether, upon the evidence, the sum allowed on account of these items is larger than it should have been, is not before us. That would require the examination of the evidence, ■a duty which we must assume was performed hy the referee and "the general term. We have examined the evidence, however, in regard to the general liability of the defendant under the covenants for the. several articles as to which there is dispute. It seems that the defendant sub-let the premises to other parties engaged in manufacturing brick. These parties had occupied the premises under a lease from plaintiff prior to the one to defendant, and had put upon the premises certain machines for making brick, buildings and other improvements. These improvements were on the land when defendant’s term commenced, and were aised by the former tenants of the plaintiff who now became tenants of the defendant. With respect to these things the plaintiff’s position is that they were not removed by the parties who put. them upon the premises at the expiration of their lease, and as. they took a new lease without excepting them, or claiming them as their property, their right of removal was lost and they remained attached to the land and were the property of the plaintiff, Loughran v. Ross, 45 N. Y., 792, or at all events, the things-were of such a character that the defendant was bound to put and leave them upon the land under the covenants. Neither the lease-prior to 1877 nor the lease from the defendant are in the record,, and we have not, therefore, before us all the facts with reference to this property, but we think that upon either ground the referee’s finding should be sustained. The defendant did not put into the yard or leave there such an engine as the covenant calls for, but did put in a smaller one, the benefit of which it does not appear that the plaintiff ever had. So far as concerns this article the case is the same as if no engine had been furnished. Had the plaintiff taken the small one with the land, when the lease-expired, she would be bound to allow for its value, but as that does not appear, the referee properly allowed for a suitable engine.

It is said that this item erroneously includes the cost of a new engine, whereas the covenant contemplated its use before the lease expired, but an examination of the evidence and the opinion of the referee does not sustain this contention. The defendant was to leave the surface of the yard in a smooth condition and it is-found that this covenant was broken and we think it was. This condition of the surface is necessary in order to manufacture brick successfully, in the- manner in general use when the lease was made, and the purpose was to leave á yard, at the expiration of the demised term, in which the business could be successfully prosecuted. The fact that since the lease was made other methods-for making brick have been devised, which render this condition of the surface unnecessary, does not change the construction to-be put upon the covenant, nor the defendant’s liability under it.

We have examined the rulings and other questions discussed by the learned counsel for the defendant, and have reached the Conclusion that the record does not disclose any error which requires a reversal of the judgment, and it should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


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    Anna B. Anderson, Resp’t, v. The Supreme Council of the Order of Chosen Friends, App’lt.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Benefit societies—Evidence of payment of assessments.
    In an action by the widow of a member of defendant’s association, evidence was given by the latter tending to show that deceased was delinquent in the payment of three assessments prior to his death. Plaintiff's-' claim was supported by evidence that she had caused to be paid to the wife of the secretary of defendant assessments in advance, covering all. that would fall due prior to his death. Held, that this was a question for the jury, and that as it was proven without dispute that it was the common practice to pay dues and assessments to the said secretary’s wife, she was virtually his assistant in receiving them.
    3. Same—Proof of death.
    There is no clear and definite duty imposed by the relief fund laws of defendant, or the laws or regulations of the order, upon a claimant under a certificate to furnish proofs of death, as in the case of ordinary life insurance, and plaintiff was not required to do more than to notify the officers of the subordinate council of her husbands death.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered upon verdict.

      James McG. Smith, for app’lt; J. Edward Swansirom, for resp’t.

       Affirming 42 St. Rep., 953.

   Andrews, J.

The obligation of the defendant is expressed in the relief fund certificate issued to Anders Johan Anderson, the plaintiff’s husband, June 4, 1886. It recites that he had become a member of the Order of Chosen Friends and entitled to .all the rights and privileges of membership and to a benefit not ■exceeding $2,000, which sum the certificate declares: “Shall in •case of death be paid to his wife Anna Brita Anderson in the manner and subject to the conditions set forth in the laws governing the said Belief Fund in the application for membership.” By a ' subsequent clause it is declared that the certificate shall be in force ,so long as the insured shall comply with the constitution, laws .and regulations of .the order, “ otherwise to be null and void.” In the application for membership referred to in the certificate, the husband of the plaintiff agreed to make punctual payment of all dues and assessments, and to conform “in all respects to the laws, rules and usages of the order,” and further that any claim against the order by reason of his membership or of any certifi■cate issued to him shall be filed with the proper officers of the ■supreme council within one year of the date when it might have been made. Anders Johan Anderson died February 22,1890, and in July thereafter this action was commenced by the beneficiary to recover the sum mentioned in the certificate. The complaint among other things alleged the existence of funds in the treasury •of the defendant, out of which the claim could be paid, and that ■due notice and proof of the death of Anderson had been given to the defendant and payment of the claim demanded, which had been refused.

° The allegation of the existence of funds was admitted by the •answer, but the allegations as to notice and proof of death and of •demand were denied, and the defendant affirmatively alleged that ■no proof of any kind, and no claim upon the relief fund had been made or presented to the defendant or any of its officers.

On the trial three defenses were relied upon: First, that the plaintiff’s husband had omitted to pay three assessments of ninety •cents each, which had become payable prior to his death, whereby "he became suspended from membership in the order and had forfeited any right under the certificate; second, that on the 28th day of January, 1890, he severed his connection with the order by ■written notice delivered to the secretary of the Svithiod Council, to which he belonged; third, that no notice or proof of death had been served on the defendant prior to the commencement of the action.

The first defense, if sustained by the facts, was a conclusive answer to the action. By the relief fund laws of the order both the .amount and time of payment of assessments are prescribed. They .are payable, without notice or demand, to the secretary of the subordinate council on the 1st and 15th of each month. The non-payment by any member of any assessment at the time limited results ipso facto, without notice or any action by the order, in his suspension from beneficiary membership and forfeits any right under his certificate until he is reinstated in the manner pointed out' by the laws of the order. The question whether Anderson was in default at the time of his death for non-payment of assessments was sharply litigated. Evidence was given on the part of the defendant tending to show that the deceased was delinquent in the payment of the three assessments mentioned, and that his suspension therefor had been reported to the subordinate •council by the secretary. On the other hand, the plaintiff claimed, and her claim was supported by evidence, that on the 28th of December, 1889, she had caused to be paid to the wife of the secretary, at his residence, in behalf of her husband, assessments in advance, covering all which would fall due prior to February 22, 1890, the date of his death. This evidence was accepted by the j ury, and the fact as claimed by the plaintiff must on this appeal be deemed established.

But it is insisted in behalf of the defendant that payment to the wife of the secretary was not binding on the defendant unless the •money actually came into the secretary’s hands, and the contrary rul-. ing of the trial j udge presents the only question of law under the first •defense mentioned. The duties of a secretary of a subordinate •council are prescribed in its constitution, and among other things, he is to receive all moneys for the relief fund, which consists of .assessments paid by members of the order entitled to relief benefits. The secretary is required to give a bond for the faithful performance of his duties, and the subordinate council may permit ,him to select an assistant secretary, for whose acts, however, he is made responsible. It was proved, without contradiction, that it had been the common practice for members of the council to pay dues and assessments to the wife of the secretary in his absence. The secretary, it seems, had no office, and payments were made to him or to his wife at his residence. It does not appear that any question had been made at any time as to the authority of the wife to receive payments from members. There is nothing in the rules of the council limiting the powers of the secretary to a receipt in person of assessments, or which prevents him from appointing a clerk or agent to discharge the clerical duty of receiving money from members at his house in his absence. The uniform practice proved, and the absence of any evidence of dissent on the part of the council or its officers, justify the conclusion that at was known to and approved by the council, and that the secretory’s wife was virtually his assistant in receiving assessments. The first defense was not, we think, sustained.

To sustain the second defense, the defendant introduced a formal written resignation of membership in the order, purporting to have been signed by Anderson January 28, 1890. The genuineness of the document was controverted. The plaintiff testified, that the signature was not her husband’s. The secretary testified that he drew the paper at the request of Anderson,'who signed it in his presence and delivered it to him. Evidence was also given in behalf of the plaintiff by physicians and others tending to show that Anderson was insane at the time of the alleged execution of the paper.

The judge submitted tp the jury the question whether Anderson signed the paper, and also the question of sanity. No exception was taken to the correctness of his instructions upon this point, and the finding of the jury disposes of the second defense.

The third defense presents a question of more difficulty. The claim on the part of the defendant is that no right of action accrues on a certificate for a death benefit until the claimant furnishes to the Supreme Council of the order proof of death, nor until the officers of the Supreme Council have had an opportunity to consider the claim and decide upon its allowance or rejection. In support of this contention reference is made to a section in the constitution of the Supreme Council .of the order, which declares that “ no claim for any benefit from the relief fund shall be paid until complete proof of the justness of the claim has been made in accordance with such laws, regulations, forms and decisions as have been or may be made or prescribed by this Supreme Cbuncil or its proper officers or representatives.” Const., art. 2, § 2.

The plaintiff testified that a few days after her husband’s death she called upon the secretary of the subordinate council and presented to him a physician’s certificate of the fact of death, and that the secretary informed her that he already knew of the death and assured her “ that everything would be all right;” that on the same day she called on the councillor of the lodge, who informed her “ that he would see that I got my money and everything would be all-right.”

The secretary and councillor deny that any certificate of death was exhibited to them, or that the plaintiff made any claim under the certificate, or that they recognized her right to any benefit thereunder, and they testified that it was understood both by the plaintiff and themselves that her husband had forfeited all right to a benefit by his neglect to pay assessments.

Upon the evidence of the plaintiff the question arises whether she was bound by the relief fund laws of this order, or by the terms of the certificate, to do anything more in respect to giving notice or furnishing proof of death than to notify the secretary ' and councillor of the subordinate council and produce the physician's certificate of death, in the absence of any demand for further proofs made by or in behalf of the defendant.

The defendant is incorporated under the laws of Indiana. The supreme officers of the order and representatives chosen to the Supreme Council is the governing body possessing the supreme legislative and administrative authority. The Supreme Council grants charters to subordinate councils and prescribes their constitutions. Members of the order become such by election as members of a subordinate council, upon such election being approved by designated officers of the Supreme Council and paying certain prescribed assessments and dues. The relief fund arises from periodical payments by the beneficiary members to the subordinate council to which they are attached. The supreme officers under prescribed regulations grant benefit certificates to beneficiary members.

The subordinate councils are the delegated agencies of the Supreme, Council to collect aud remit the assessments for the relief fund, which is exclusively managed by the Supreme Council and its officers.

The general scheme in respect to the presentation and proof of •claims for death benefits, as disclosed by the relief fund laws, referred to in the certificate, is to impose upon the subordinate ■council of which the deceased w*as a member the duty, on the •death of a member, of investigating the matter, and through its ■own officers preparing and forwarding to the Supreme Council, or its officers, proofs of death according to certain forms promulgated by the Supreme Council.

There is no duty, certainly n'a clear and definite duty, imposed by the relief fund laws, or the laws or regulations of the order, upon a claimant under a certificate to furnish proofs of death, as in case of ordinary life insurance.

By article 3, § 2, of the relief fund laws, it is made the duty of the secretary of the subordinate council, on the death of any member, to notify the supreme recorder thereof “ in accordance with a ■form furnished by the Supreme Council." This notice is to contain certain particulars, many of which could ordinarily be known ■only to an officer of the council. The section provides that “ further proof ” may be required by the Supreme Council. The forms ■of proofs promulgated comprise a notice of death addressed to the subordinate council, embracing full particulars as to the deceased, when admitted as a beneficiary member of the order, when the first and last assessments were paid by him, the total amount paid into the relief fund, the amount of benefits already received, if any, and other particulars. This notice is followed by a form of a resolution of the council referring the matter to a committee for investigation, and by a form of a report to be made to the council by the committee so appointed, to which is to be attached an affidavit of the undertaker and attending physician, with the recommendation of the committee approving or disapproving the payment of a death benefit in the case.

By § 8 of the same article of the relief fund laws before referred to, all proofs for death or disability benefits are required to be passed upon and approved or rejected by the subordinate council and by the medical examiner, and are then to be forwarded to the Supreme Council, and the board of claims of that body is then to pass upon the claim and may approve or reject it.

We think it is reasonably clear from an examination of the scheme for the administration of the relief fund and of the laws; governing the payment of death claims, that no duty is cast upon a claimant to furnish proofs of death as a prerequisite to maintaining an action on the certificate, and that the plaintiff was not required to do more than to notify the officers of the subordinate council of her husband’s death. The duty was thereby cast upon the council to make the investigation and proofs for the information of the Supreme Council. This conclusion is decisive against the third defense.

It is true that the liability of the defendant under the certificate to make payment did not accrue immediately on the death of Anderson. The liability assumed by the defendant is not absolute. The scheme contemplates a presentation of proofs of death and an adjudication of the defendant’s liability by the board of claims composed of officers of the Supreme Council before payment can be made. This procedure cannot be ignored by a claimant. While an adverse decision by the board of claims may not preclude resort to an action, there'seems to be no reason why the matter should not be first submitted to the judicatory established by the laws of the order, or some reason shown excusing such submission. It does not appear in this case whether the subordinate council took any action, or gave any notice, or furnished any proof of death to the Supreme Council. It is unnecessary to consider how an omission by a subordinate council to perform its duty in these respects would affect the rights of a claimant. We here simply decide the point presented, viz: whether any duty rested upon the plaintiff under the laws of the order to furnish proofs of death.

We think no error is disclosed by the record in respect to any of the issues tried which justifies a reversal of the judgment.

Judgment affirmed, with cpsts.

All concur.