author: Peckham, J.

text:
    Warren D. Fisher, App’lt, v. The Village of Cambridge, Resp’t.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Highways—Bbidges—Negligence .
    Where defendant huilt a foot bridge in such a way and in such close-proximity to the highway bridge as apparently to form a part of that structure and seemingly to be as strong as any portion thereof, and yet negligently omitted to in any way guard it from use as part of such highway bridge, and also negligently omitted to build it strong enough to support the weight which might under such circumstances he expected to be placed upon it, one injured while driving thereon is entitled to recover, provided he satisfies the jury that he was himself ignorant of the fact that the bridge was only a foot bridge and not intended for the use of horses and vehicles-, and there was nothing about the place whicii would suggest any danger to a reasonably careful and prudent man from driving on the bridge at the point he did and with the load he had.
    3. Same—"Violation of village obdinance.
    There must be some natural and reasonable connection, as cause and effect, between the violation of a municipal ordinance and the happening of an accident, before such violation can furnish any defense to an action therefor. It cannot be said to contribute to the accident, unless the latter is the natural and proximate result following such violation, or unless the violation contributed in some appreciable degree as a part of the proximate cause of the injury.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of defendant.

      Charles N. Davison,.for app’It; D. M. Westfall, for resp’t.

       Reversing 36 St. Rep., 1019.

   Peckham, J.

Prior to the passage of the act incorporating defendant there had been a bridge spanning the creek which crosses Main street at nearly right angles. Main street runs about east and west. This bridge was erected and kept in repair at the expense and by the authorities of the town, within the limits of which the village was situated. The bridge was in effect a continuation of Main street In 1866 the defendant was incorporated .as a village, and its trustees were made highway commissioners, with general power over sidewalks, roads and foot bridges, but not over highway bridges. Acting under their authority, the trustees built what is termed a foot bridge over the same creek. They built it by constructing on each side of this highway bridge another bridge, and each of these bridges which they thus built was about twelve or thirteen' feet wide, and almost the same span as the original bridge, which was about twenty-eight feet wide. The space covered by the original highway bridge and by these side bridges was thus about fifty-two or fifty-four feet, and. was in effect of the whole width of Main street, including sidewalks. There was in this way added to the original bridge thirteen feet on each side. It is -claimed on the part of the village that this addition was plainly a foot bridge intended solely, for the use of foot passengers, and so known to be by the plaintiff. The defendant further contends that it had no power to build .any other than a foot bridge, and that it was not guilty of negligence in building a foot bridge strong enough only for foot passengers. Also, that plaintiff was guilty of negligence which contributed to the injury by driving unnecessarily upon the foot bridge when he was fully aware of its character.

The creek, which was spanned by the bridge, had a course of about north and south, while the 'closely settled part of the village lay on the east side of the bridge.

There was evidence in the case tending to show the following facts: Main street had no curb at either side. Instead of a paved gutter there was on the south side of the street and north of the south sidewalk a sort of gutter way, which was a continuation of the street or road. The road rounded gradually, being higher in the center, and the gutter was simply the edge of the road, as it met the plane of the sidewalk on the south and there was no-, abrupt breaking away. It was perfectly easy for teams to drive across it one way or the other.

Both of these foot bridges, as has been said, joined and were built up against and substantially formed a part of the old highway bridge.

• The south curb line of Main street, if extended across the bridge, would take in about four feet of the north end of the footbridge, or, in other words, the foot bridge projected into the street line about that distance. The balance of the foot bridge was a. continuation of the line of the south sidewalk. The line of demarlcation between the so-called foot bridge and the highway-bridge was not distinct. The highway bridge was higher by the thickness of one plank, from one to three inches, than was the foot bridge. There was nothing else to show where one bridge ended and the other commenced. The general appearance of the whole bridge was that it was safe for general use and for driving with whatever load was necessary. The part the plaintiff drove on was level, or nearly so, with the old bridge ; there were plank on both bridges, and nothing on them but dust and dirt. There-was nothing to show where the foot bridge commenced and the-road bridge ended, for the line of the difference in height between the two was within the lines of the street. The plaintiff did not. know that one part was a foot bridge only and the other part a. road bridge, although he knew that the part designated on the-trial as a foot bridge was the only place that pedestrians usually crossed and that it was built for that purpose, that is, of furnishing-pedestrians a place to cross, but both bridges were on a level and he had never heard that one part of the bridge was stronger than the other part, and from appearances one was just as safe to drive-on as the other.

He did know that one part of the bridge was under the supervision of one set of men and the other under the supervision of another set of men. He knew that by seeing different men working on the bridge. During the time plaintiff lived in Cambridge .(a period of some years) he had seen other people frequently drive over the foot bridge part, and it was plain to be seen teams had so driven over it. Tracks of the wagons, marks of the horses- and their droppings could be there seen on the planks. These tracks and marks were plain to be seen on the planks at or very near the point where plaintiff went on the bridge. And it was plain that teams had been continually driving over that part

Upon this evidence we think a case would have been made for the jury if plaintiff had, driven along the highway and entered upon the bridge, and had been injured by the falling of the foot bridge part consequent upon his driving upon that portion. It would be a question for tbe jury whether tbe defendant were not guilty of negligence in building its foot bridge so near as in appearance to make substantially an addition to and a part of the old highway bridge, without taking precautions to build it strong enough to bear the loads which persons might naturally place upon it in ignorance that it was not a part of what it seemed to be and who were equally ignorant that it was designed only for foot passengers. Whether a plaintiff in such case were himself guilty of any negligence if even without absolute necessity he permitted his wagon wheels to drop from the upper plank of the highway bridge the distance of an inch or two to the lower plank of the foot bridge, and in consequence suffered injury by the falling of the foot bridge, is a question which could not be determined by the judge in the affirmative. It may be entirely true that defendant had no legal right to build a highway bridge. Its liability does not flow from the fact of its attempting to build such a bridge and. in negligently constructing it. Its liability, if any, rests upon- the fact, if it be a fact, that in executing its acknowledged and admitted power to build a foot bridge, it has built it so close to the highway bridge as seemingly to form a part thereof and in such a manner as was likely to deceive any one ignorant of the fact and lead him to believe that in driving on the foot bridge he was driving upon a highway bridge, any part of which would be equal to the burden of .sustidning any reasonable load that would be likely to be placed upon it.

The liability of defendant would rest in reality upon the negligent and improper manner in which it actually built a foot bridge.

The defendant, however, says that the plaintiff drove along the village sidewalk on the south side of Main street, and from such sidewalk entered upon the foot bridge of defendant with a team •of horses drawing a loaded wagon, and while his team was on the foot bridge the accident occurred. It would not have happened, the defendant says, but for the fact that the plaintiff drove on the village sidewalk, because it was while driving from this sidewalk that he reached the portion of the bridge where the accident •occurred. It does not appear that the plaintiff could not have •driven over the same portion of the bridge even though he reached the bridge while driving in the highway proper. The defendant now alleges that the plaintiff in driving on the sidewalk from the •store to the end of the bridge, a distance of a few feet, violated a village ordinance and also § 652 of the Penal Code. ,

The village ordinance provided that any person leading or driving any horse or other animal on any of the sidewalks should be liable to a penalty of three dollars for each and every offense. The Penal Code makes it a misdemeanor willfully and without authority to drive along a sidewalk.

It appeared from the evidence that plaintiff was in the employ of merchants who had a store near the bridge, and that he drove on the sidewalk to get his wagon near a-platform projecting from the store and from which he loaded his wagon witli a stove to be carried somewhere in the village. In driving off the sidewalk it was difficult for plaintiff to do so without at the same time driving his team and wagon on the portion of the bridge built by the defendant for foot passengers, and it was after he had left the .sidewalk and was on the defendant’s part of the bridge that the accident happened by the giving way of the bridge. From these facts we do not think it follows as a legal proposition that plaintiff was guilty of negligence contributing to the injury.

It has been sometimes held that one who violated some law or regulation intended to prevent the happening of an accident of the nature which in fact occurred was prima facie guilty of negligence, and from such violation a reasonable presumption might arise that the fault, if not the sole cause, was at least a contributory cause of the disaster. Thus in Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y., 535, it was held that a charge that the omis.sion to give the statutory-signals at a highway crossing constituted negligence which subjected the defendant to liability for ■damages if the death of the plaintiff’s intestate was caused thereby was correct.

So the non-compliance of a vessel at the time of a collision with statutory or other regulations prescribed by competent authority and intended to prevent collisions, is prima facie evidence -of negligence, and a presumption that it caused or contributed to the happening of the accident may be permitted to be indulged in.

In this case, however, we think the violation of the ordinance did not within the meaning of the law cause or contribute to the happening of the accident.

In the first place it is entirely clear that the purpose of the ordinance was not to prevent accidents on the foot bridge. Ordinances of this nature are passed for the purpose of keeping street vehicles within their proper limits and to protect pedestrians and to preserve the sidewalks from exposure to wear and tear from horses and vehicles, for which they were not intended. Although this bridge may be called a foot bridge and regarded as furnish-' ing in fact a continuation of the sidewalk at that point, yet there <¡an be no doubt that the ordinance as to. driving on the sidewalk does not cover within its terms the foot bridge in question. A foot bridge is not a sidewalk within the general meaning of the word.

Still less would a foot bridge which to all appearances formed part of a, highway bridge, and between which and such highway bridge there was no visible line of demarkation, be regarded as coming within the purview of language providing against the use ■of sidewalks by horses and carriages.

As the ordinance did not apply to the foot bridge there was no violation of it in driving thereon as the plaintiff did, and there was no reasonable connection between the prior violation by ■driving on the sidewalk and the subsequent injury arising from driving on the foot bridge. Although the accident happened immediately subsequent to the violation of the ordinance, it was also subsequent to the time when that violation ended. The sidewalk hád been driven on, but the plaintiff had also driven off it, and although in driving off the sidewalk the plaintiff had also driven on the foot bridge, yet they were entirely separable acts and the subsequent was not at all the necessary legal or physical consequent of the first act. The violation of the ordinance would not usually or naturally, and did not proximately cause or tend to cause the injury. If there had been an ordinance providing that every one driving on the highway bridge should keep to the right, would the fact that a person drove to the left at a time when no one else was on or in sight of the bridge be a defense to an action to recover damages sustained by the bridge going down while such person was so driving on the left side of the bridge ? There would be no natural connection between the violation of the ordinonce and the happening of the accident, although it might be in one sense said that if the ordinance had not been violated the accident would not have occurred. The purpose of the ordinance would be regarded, and when it was seen that its purpose was to-prevent accidents from collisions and that it assumed the equal safety of both sides of the bridge so far as its ability to sustain a. load was concerned, it certainly could not be held that in driving to the left under such circumstances the person was guilty of negligence which contributed to the injury because he thereby violated an ordinance. There must be some natural and reasonable connection, as cause and effect, between the violation of the ordinance and the happening of the accident before such violation-can furnish any defense. It cannot be said to contribute to the accident unless the latter is the natural and proximate result following such violation, or unless the violation contributed in some appreciable degree as a part of the proximate cause of the injury. Here the accident was in no sense the proximate result of the violation of the ordinance, nor did its violation contribute or tend to contribute to the happening of the injury as a part of its proximate cause.

If the plaintiff could convince the jury from the evidence in the case that defendant built its foot bridge in such a way and in such close proximity to the highway bridge as apparently to form a part of that structure and seemingly to be as strong as any portion thereof, and yet negligently omitted to in any way guard it-from use as part of such highway bridge, and also negligently omitted to build it strong enough to support the weight which might, under such circumstances, reasonably be expected to be placed upon it, he would be entitled to recover his damages, provided he satisfied the jury that he was himself ignorant of the fact, that the bridge was only a foot bridge and not intended for the use-of horses or vehicles, and there was nothing about the place which would suggest to a reasonably careful and prudent man the existence of any danger from driving on the bridge in question at the point he did and with the load which plaintiff had.

Evidence upon these questions was given, but the learned judge thought no case .for a jury was made out and therefore non-suited the plaintiff.

We think he should have another opportunity to prove his case, and if the evidence then produced should tend to prove the facts above stated, the case should be submitted to the jury. For that purpose - this judgment must be reversed and a new trial granted, with costs to abide the event.

All concur.


source: Caselaw Access Project

author: Maynard, J.

license: Public Domain

text:
    Hannah Nirdlinger et al., App’lts, v. Isaac Bernheimer et al., Resp’ts.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Tenants in common—Accounting—Abandonment.
    In 1854 seven persons entered into an agreement for the purchase and sale of lands in Minnesota. The title to the land was finally vested, in 1869, in the defendant Bernheimer. One of the parties thereto being indebted to F. Ñ., plaintiff’s ancestor, an agreement was entered into between them by which said party, J. N., was to hold his share for their equal benefit, and F. N. should bear one-half of the burdens to be borne by J. IT. The interest of F. IT. was not known to the copartners of J. IT. Bernheimer, the trustee, had rendered accounts to J. Ñ. aunually, to the year the action was brought, and had kept accounts crediting and charging the members with income and disbursements. J. N., in his schedules in bankruptcy in 1878, omitted all reference to his interest in this property, thinking it worthless. Both J. if. and F. if. are dead. In an action by F. if.’s heirs for an accounting, Held, that there had been no abandonment by J. Ñ.
    3. Same.
    The fact that F. if. and his representative did not bear equally with J. if. the payments and assessments of the latter on account of the enterprise, or refund to J. IT. moneys expended by him, cannot be taken advantage of by Bernheimer on this appeal.
    Appeal from judgment óf the supreme court, general term, first department, reversing interlocutory judgment in favor of defendants, entered upon the report of a referee.

      James W. Hawes, for app’lts; George H. Yeaman and Charles P. Daly, for resp’ts.

       Reversing 33 St. Rep., 1019.

   Maynard, J.

The plaintiffs, as the representatives and successors of Frederick Hirdlinger, have brought this action to establish the right of their intestate as a sub-partner of his brother Jacob in a joint venture, which the latter entered into with six-associates in the year 1854 for the purchase and sale at a profit of lands in the state of Minnesota. One of the principal objects of the action is to obtain an accounting from the defendant Isaac Bernheimer, who was one of the associates of Jacob Nirdlinger in this enterprise, and who held the legal title to the lands purchased in trust for the members of the copartnership, and who, by the agreement of the parties, had the principal care and management of the entire property. Jacob Nirdlinger contributed his share of the moneys required for these investments, and which, for a time at least, were funds in which Frederick had a half interest. In view of this fact the brothers entered into an agreement January 17, 1859, in which it was stipulated that Frederick should be jointly entitled with his brother to an equal portion of his share of the property acquired, and to be acquired, by Jacob and his associates, and that he should bear one-half of the burdens to be borne by his brother under the agreement which he had entered into for the prosecution of the joint undertaking. Frederick’s interest in his brother’s share was not known to the copartners of the latter.

Jacob Nirdlinger and all of his associates in the Minnesota enterprise, or their successors or representatives, are made parties-defendant. One of the members of the firm, who had the largest interest in it, died in 1868. Frederick Nirdlinger died in 1878, and this action was brought November 22, 1882. Jacob Nirdlinger died August 16, 1887, and his representatives were-substituted as defendants. None of the defendants answered except. Isaac Bernheimer and Jacob Nirdlinger and his representatives. The pleadings admit the existence of the joint enterprise; the trust relation of Be.mheimer to it; the share of Jacob Nirdlinger therein, and that his interest is still outstanding and unliquidated..

The only issue involved relates to Frederick Nirdlinger’s title.. It is alleged that whatever interest he had in the common enterprise has been lost by an abandonment of it by himself and by the plaintiffs who have succeeded to his rights in the property. The cause was referred and the referee found that the plaintiffs-were entitled to one-half of the share which Jacob Nirdlinger had' in thp lands purchased by him and his associates in Minnesota and in the proceeds of the sales which had been made, subject to the payment of any advances made by him, and subject to the results of an accounting, as to the management of the joint venture, by Bernheimer; and that an interlocutory judgment should be entered directing an accounting; and that all questions as to the further rights of the parties should be reserved until such account had been taken and stated.

The defendant Bernheimer appealed from the interlocutory judgment and also made a motion for a new trial under § 1001 of the Code; but the representatives of Jacob Nirdlinger did not appeal. The supreme court reversed the judgment upon the ground that the evidence in the case showed a complete abandonment of the enterprise by the Nirdlingers, and after such a lapse, of time equity would not permit the plaintiffs to claim an accounting simply because the enterprise has at last turned out to» be profitable.

But upon the pleadings and proofs the defendant Bernheimer is not in a position where he can be .heard to insist that there was an abandonment of the undertaking by Jacob Nirdlinger. No defense of that character was pleaded by him, or established upon the trial. He admits, by the allegations in his answer, that. Jacob Nirdlinger is still entitled to share in the profits of the venture and has an interest in the property held by him in tru^t for his co-partners. He has rendered accounts annually to Jacob-down to and including the year when this action was brought. He offered to purchase his interest in the property in 1882 and pay $7,000 for it. The referee has found that the latter invested, at least $16,900 in the purchase of these lands.

It is not alleged, and there is no finding that Jacob was indebted to the firm for any advances made, or that any demand was ever made upon him for contribution to the expenses of the-enterprise which was refused. For au'ght that appears there may be a balance in the hands of Bernheimer to the credit of JacobNirdlinger and there may have been such a balance to his credit. from the outset of the undertaking. It is admitted that Bernheimer has received the proceeds of lands sold and the rents and profits of some- of the lands, and the proceeds of timber and stoves manufactured from the property, and income from other sources; and he affirms that he has kept an account of all his transactions as trustee in which he has entered a description of the lands bought; the lands sold; the several amounts received by him therefrom and of all the revenues derived from the investment and a statement of the taxes and other necessary disbursements made by him; that he has credited each member of the firm with the amount contributed to the joint capital, and the various sums to which he might be entitled as his portion of the proceeds of the enterprise, and has charged him with his proportionate part of the expenses; and that he is ready to render an account to any of his associates whenever required by the court. His account book was put in evidence, but is not contained in the printed case, and the state of the account between the parties, as shown thereon, does not appear.

Under these circumstances there can be no basis for the contention that Jacob Hirdlinger had forfeited his interest in this enterprise by an abandonment of it. He is not shown to have been delinquent in any duty which he owed his co-partners, and there is no finding of an abandonment, or of an intent to desert his associates. Much stress is laid upon the fact that in his schedules in bankruptcy in 1878, he omitted all reference to his interest in this property, which he explains by saying that he did not consider it worth anything at that time, and that he was then under the impression that if he called on Bernheimer he would be in his debt

This impression was evidently unfounded, for Bernheimer does not, in his testimony, make any claim of an indebtedness from Jacob Hirdlinger to himself, unless it is shown by his account book, which is not in the record; nor was there any request made to the referee to find that Jacob was in arrears to the firm. Undoubtedly the investments did not prove immediately remunerative, and for a long time the lands could not be sold at a profit. Heavy losses were also incurred by the destruction of valuable improvements by fire. But the cost of the land and of the improvements simply represent the capital which had been actually contributed by the partners, and of which each had furnished his appropriate share. It is not apparent that there were any further moneys to be paid, except for taxes and the necessary expenses of caring for the property, and which are not shown to have exceeded its annual income. It must also be borne in mind that Bernheimer had the legal title to the entire property and the power of absolute disposal, and could thus reimburse himself at any time for any advances made by a sale of such portions of the property as might be necessary for that purpose. It also appears by his answer that he has in his hands mortgages taken by him upon a sale of portions of the property.

But the referee has found that Frederick bTirdlinger did not in his lifetime, nor have his representatives since his 'death, equally borne with Jacob Nirdlinger the payments and assessments of the latter on account of this enterprise; or refunded to Jacob any part of the moneys expended by him on account thereof; and it is insisted that Frederick, at least, had forfeited his interest in the Minnesota investments by this default on his part.

We are unable to see how the defendant Bernheimer can avail himself upon this appeal of any such question. Jacob Nirdlinger’s representatives have acquiesced in the judgment; and as Frederick was only a sub-partner of Jacob’s, not known to the other members of the firm and having no other or greater rights in the firm property than those which he acquired by assignment from his brother, it is not seen how any of the partners, other than Jacob, or his representatives, can take advantage of any failure on" Frederick’s part, to comply with the conditions upon which he acquired an interest in his brother’s share of the co-partnership estate. He owed no duty to the common enterprise. His obligation was to his brother. If the latter is not in default in defraying his share of the burden of the joint venture, the failure of the former to reimburse him is available to him alone as a defense. The defendant Bernheimer is not prejudiced; he can only be required to account for Jacob’s share of the property, and it is immaterial to him whether the whole share is paid to Jacob or divided between him and Frederick’s representatives.

The right of a sub-partner to maintain an equitable action of this character upon the facts disclosed in this case cannot be successfully questioned. As between themselves the brothers were partners and the subject of the partnership is the interest which one of them had in the Minnesota enterprise, and the extent of which must be determined in order to adjust the equities between them. By the death of the brothers intestate their respecttive rights have, by operation of law, become vested in their heirs and legal representatives, and if for no other reason the settlement and distribution of their estates would render an accounting necessary. The property in which both estates have a joint interest is in the hands of Bernheimer as trustee and his presence as a party defendant is authorized, both under §§ 447 and 452 of the Code; the former of which provides that a person may be made a defendant who is a necessary party for a complete determination or settlement of a question involved therein; and the latter imposes upon the court the duty of directing persons to be brought in whose presence is required for a final disposition of the controversy. Long v. Majestre, 1 Johns. Ch., 305; Dyckman v. Valiente, 42 N. Y., 549; Stokes v. Stokes, 59 Hun, 431; 36 St. Rep., 620; S. C., 128 N. Y., 615; 38 St. Rep., 1013. The case of Burnett v. Snyder, 81 N. Y., 550, is relied upon by the respondent, but is not applicable. The sub-partner there made no contribution to capital of the principal firm, and had no proprietary interest in its funds, or in the profits arising in its business before their division, and the question involved related solely to his liability to the creditors of the firm. Here the plaintiffs have a vested Interest in the corpus of the enterprise, and the relation of sub-partners has been terminated by the death of the parties to it, and the time has arrived when equity requires that tne status of all the parties having a right to share in the partnership investments shall be ascertained. '

It does not follow that the joint venture shall be immediately broken up. That question is reserved until after the accounting has been had, and application is made for final judgment. The court will then have full power to deal with it as will best sub-serve the interests of the respective owners of the property. If it should then appear that the original purpose of the joint undertaking had not been accomplished, and that it could not be now terminated, or a division of the property made without too great a sacrifice, the court can make such proper decree with reference to a continuance of the trust as may be necessary to prevent any serious loss to the trust estate.

The admission of plaintiffs’ right to maintain this action as the successors and representatives of a sub-partner of one of the members of the defendants’ firm, is not antagonistic to the principle of personal selection,_ or delectus personarum, as it is sometimes called, which is usually the controlling motive in the formation and pursuit of partnership adventures. The defendants are not compelled to admit the plaintiffs as members of their firm. It is still Jacob Uirdlinger’s interest in the enterprise which is to be the subject of adjudication and the plaintiffs are concluded by his dealings with the firm and by his acts and attitude with reference to its affairs. Payments made to him are chargeable to them ; his defaults, if any, are imputable to them, and if the defendant Bernheimer has annually rendered accounts to him, which as between them have become accounts stated, they will be given a like effect upon the accounting which has been ordered in this action, and cannot be avoided except upon some ground which would ordinarily be sufficient to open such an account, as for fraud, collusion, mistake or the like. In short, the defendants are to be placed in no other or worse position than if this action had been brought and prosecuted by Jacob Nirdlinger, for the purpose of an accounting and a discovery of his interest in the common property.

The orders appealed from should be reversed, and the interlocutory judgment entered herein affirmed, with costs,

All concur.


author: Bookstaver, J.

text:
    Mary T. Wetmore, Pl’ff, v. Frances C. Brooks, Admr’x, Def't.

      (New York Common Pleas, Equity Term,

      Filed December, 1891.)

    1. Gift—Causa mortis.
    Gifts causa mortis are regarded with suspicion by the "courts and must he affirmatively shown by the clearest, strongest and most unequivocal evidence.
    2. Same.
    A gift causa mortis of all the property of the donor when she has debts, is void under chapter 314, Laws of 1858.

      3. Same. '
    A gift with a condition, attached, viz., to pay the debts, is void, as there must be a renunciation by the donor, and an acquisition by the donee of all interest in and title to the subject of the gift.
    Action to recover a sum of money deposited in a bank by defendant’s intestate and claimed by plaintiff as a gift from the deceased.

      Samuel Campbell, for plaintiff; Wm. H. Sage, for defendant.
   Bookstaver, J.

This action was originally brought by the plaintiff against the Bowery Savings Bank to recover the sum of $798.38 on deposit to the credit of Georgiana H. Williams, deceased, which she claimed as a gift causa mortis from Miss Williams. After her death the defendant applied for and obtained letters of administration, and .thereafter as such administratrix made a demand upon the bank for the money, whereupon the bank obtained an order of interpleader whereby the defendant was substituted as defendant in this action. The question to be determined is whether or not there was a valid gift to the plaintiff causa mortis. The deceased was the niece of the plaintiff, being the daughter of plaintiff’s sister. The other next of kin were Grover E. Hurlburt, ■ a maternal uncle; Harriet M. Goodrich, Maria Clark, Charlotte Genet and Frances C. Brooks, the defendant herein, paternal aunts. Miss Williams had lived for a number of years in the same house with the plaintiff, but had paid her own rent and owned the furniture in her rooms, together with some family pictures and two bank books representing .about $1,000; the Bowery Savings Bank book was in a trunk in her room; where the other bank book was does not clearly appear from the evidence. The deceased had been ill about a week before the alleged gift was made, suffering from an intestinal obstruction. She died about 4 o’clock on a Sunday afternoon. On the evening before her death, at about 11 o’clock, the physician in attendance testified that she was very weak; that for some time she had been under the influence of morphine to alleviate her sufferings; that at that time she did not carry on any lengthy conversation, but as a rule merely answered questions put to her by saying “ yes ” or “ no ” in a very feeble voice. He further testified that he again called upon his patient about 8 o’clock on Sunday morning and found her still weaker and in about the same mental condition.

The alleged gift is said to have been made about four o’clock on Sunday morning. One of the witnesses for the plaintiff testified that plaintiff came to the bed and said, “ You are very sick,” to which Miss Williams replied, “ I am very sick, ain't I, Aunt Mary ?” That plaintiff then said “ Yes, Georgie, you are very sick; have you anything you would like to say ?” The other witness testified that the plaintiff was sitting on the side of the bed when the deceased said to her, “ Aunt Mary, I am very sick; do you think I will get well ?" To which the plaintiff replied, “No, Georgie, I don’t think you will; is there anything you would like to say?" Thus snowing that the plaintiff herself originated the conversation leading to the alleged gift. According to both witnesses, the plaintiff also suggested- the different parts of that conversation, even asking her if she had any money left, and where her bank books were, etc. These two witnesses afterwards denied the alleged gift of the money to three witnesses who were produced on behalf of the defendant. Mrs. Aldrich, one of the witnesses for plaintiff, told them that she knew nothing about the gift, as she was in and out of the room all of the time, and did not hear all the conversation ; and Mrs. Vail, the other witness, said to them that the deceased had said that Mrs. Wet-more was to sell the things and pay the expenses, telling them nothing'about the bank books. Such statements by witnesses of the gift was held sufficient in the case of Bick v. Reese, 21 St. Rep., 404, to uphold a verdict against the gift.

It also appears that the plaintiff herself, several weeks after the death of Miss Williams, told Mr. Lyon, the undertaker, and Mr. Purdy, the landlord, that all the money deceased left was about $200, which she told Mr. Purdy was in the Seamen’s Bank, and intimated to them that there would not be money enough to pay all the debts, as there was owing between $150 and $200 to the landlord for rent, and over $100 to the undertaker, besides the physician’s and druggist’s bills. Her position is, therefore, inconsistent, because she has brought an action claiming the money in the Seamen’s Bank, which can only proceed upon the theory that it was a gift to her, whereas her statement to those witnesses that it was a part of the estate negatives the idea of any gift. Both Mrs. Aldrich and Mrs. Vail testified that the deceased said her bank books were in the trunk, while Mrs. Wetmore testified that there was only one book there. There is a material difference in the terms of -the conversation given by these two witnesses relating to the alleged gift; Mrs. Aldrich testifying that the -deceased made the gift subject to the payment of her debts; the other one testifying that she heard nothing about paying the debts or expenses, and did not hear anything said about money. If Mrs. Aldrich is correct, the plaintiff only took part of the property, as creditors were to he paid, and she took the residue; whereas if Mrs. Vail is correct, the plaintiff took the property entirely, and no provision was made for the debts. Gifts causa mortis are regarded with suspicion by the courts, and must be affirmatively shown by the clearest, strongest and most unequivocal evidence. The ease with which frauds may be perpetrated has led to the adoption of this rule, Van Vleet v. McCarn, 18 St. Rep., 73; Halstead v. Sherrill, 6 id., 15; Chalker v. Chalker, 5 Redf., 480; Grymes v. Hone, 49 N. Y., 23; Parkin v. Day, 6 W. Dig., 113; Grey v. Grey, 47 N. Y., 555, and many cases which might be cited, and I do not think the plaintiff has fairly sustained the burden to which she is put in this case.

Besides, the divergence in the testimony between the two witnesses as to that conversation makes it extremely difficult to say which is correct. If there was no provision for the payment of debts, then I think it is ' obnoxious to chapter 314, Laws 1858, which declares that “ every person who shall in fraud of the rights of creditors and others have received, taken, or in any manner interfered with the estate, property or effects of the deceased person, shall be liable in the proper action to the executors or administrators of such estate or property for the same or the value of any property or effects so received or taken," and in Jones v. Jones, 41 Hun, 163; 4 St.Rep.,141, that section was- held to apply to a gift causa mortis, and although there was in that case a dissenting opinion by Follett, J., the nature of the testimony in this case fully supplies the lack of evidence in Jones v. Jones, pointed out in the dissenting opinion. For it is clear that if there was a gift at all, all the property belonging to the deceased was given to the plaintiff, and consequently there was nothing whatever left to pay her creditors, and the estate would be insolvent. In Fox v. Mower, 55 N. Y., 131, it is said that a voluntary, convey anee will only be “upheld by proof showing that when made he retained an ample estate to pay all his debts.” And the case of Spotten v. Keeler, 22 Abb. N. C., 106; 12 St. Rep., 385, “if a debtor may dispose of his property in the way it was done under the circumstances here shown to exist, and thus put his creditors at defiance, the law is of little avail to the latter by way of protection against injustice.’’ If, on the other hand, the gift was made subject to the payment of debts, then it was not absolute. There was a condition annexed, to wit: that the debts must be paid.

In order to make a valid gift causa mortis, there must be a “ renunciation ” by the donor, and an acquisition by the donee, of all interest in and title to the subject of the gift; part cannot be reserved, but all must be given. Curry v. Powers, 70 N. Y., 217; In re O'Gara, 15 St. Rep., 739; In re Wirt, 5 Dem., 179. But giving the testimony offered by the plaintiff the-utmost credence, it scarcely makes out a case of a gift. The statement “ the rest is yours,” and “ do with them as you like,” are in my judgment scarcely sufficient to uphold a gift. The words are too ambiguous to carry a clear indication of the intention of the deceased to part with title to the property. It may also be doubted whether the delivery was such as would be required to uphold a gift causa mortis; but it is unnecessary to give reasons for this at length, as I think I havé given sufficient to justify the conclusion to which I have arrived.

On the trial I permitted the physician to testify whether in his opinion the physical condition of the plaintiff was such that she would understand the nature of a gift of personal property; and also whether or not her condition was such that she could understand the nature of such an act as the giving away of money or furniture, etc. I had considerable doubt at the time whether these questions should have been allowed, and have not regarded the answers given by him at all in arriving at a conclusion in this case; and if any appeal is taken, I think these answers should be stricken out of the case.

.The judgment should be in favor of the defendant, with costs.


author: Herrick, J.

text:
    The National Bank of Troy, Appl’t, v. Marshall W. Scriven et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    1. Assignment nor creditors—Authority on co-partner to execute— Certificate of acknowledgment.
    Where one co-partner is authorized to execute a general assignment for the benefit of creditors, it is not necessary to set forth such authority in the certificate of acknowledgment.

      2. Same.
    A defect in a certificate of acknowledgment may be cured by evidence as to what did take place and what the acknowledgment really was.
    3. Same—Want of authority—Evidence.
    A general assignment for the benefit of creditors was executed by one member of a copartnership, and afterwards another was executed by both members. In an action by a creditor, preferred in the first but omitted in the second, to sustain the former, an attorney, who was called as a witness by the defense, testified that the copartner who executed the first assignment had admitted that it was without authority and he had then advised the second; on cross-examination he was asked, “ Did you then as an attorney give your advice or opinion that said first assignment was legal and valid, and that the second was illegal and invalid as to this plaintiff? ” The question was objected to as incompetent and the objection sustained, as were objections to other similar questions. Held, error; that they were competent for the purpose of impeaching the credibility of the witness.
    4. Same—Impeaching witness.
    A witness may testify that from his personal knowledge of another he would not believe him under oath, where he knows nothing from others as to his truth and veracity.
    Appeal from judgment, entered upon report of referee, dismissing the complaint.

      Frank S. Black, for app’lt; Smith & Wellington, for resp’t, Smith; George B. Bónnan, for resp’t, Scriven.
   Herrick, J.

Prior to August 1, 1884, Marshall W. Scriven and Elisha W. Hydorn were co-partners in trade doing business under the co-partnership name of M. W. Scriven & Co., at Troy, N. Y. On that day a general assignment was made in the name of the co-partnership to J. B. Hydorn for the benefit of creditors. Such assignment was executed for the co-partnership by Elisha W. Hydorn, he claiming that he had authority from Scriven to make the assignment.

At the time of the assignment the firm of M. W. Scriven & Co. was indebted to the plaintiff to the amount of about $14,000, and in such assignment the plaintiff was made a preferred creditor of the first class by itself.

J. B- Hydorn took possession under this assignment but never filed a bond.

On the 7th of August, 1885, the said Scriven and Hydorn made a second general assignment for the benefit of creditors, executed by each partner personally, to the defendant Henry W. Smith.

Smith filed a bond and took possession under this second assignment, the assignee under the first assignment giving the property up to him. Smith converted the property into money, and is now ready to distribute it. In their second assignment the plaintiff is placed in the second class of creditors with a number of others, and will apparently, if the second assignment stands, receive very little upon its claim.

The plaintiff did not know of or consent to the second assignment, and has not in any way waived its rights under the first assignment. It requested the first assignee, J. B. Hydorn, to take proceedings to enforce his title as such assignee, to discharge the duties of his trust, and to protect the rights of the plaintiff under such assignment. This he failed and refused to do, and the plaintiff having in the meantime procured judgment upon its claim and the execution thereon being returned unsatisfied, commenced this action in its own behalf' to enforce said first assignment, asking among other things: “ That said assignment of August 1st be declared valid, and be carried out so far as to pay plaintiff’s claim in full.”

It is claimed upon the part of the defendants and respondents that the first assignment was not legally executed.

That a general assignment for the benefit of creditors may be legally executed by one of the members of a co-partnership, of all the partnership assets, when lie is fully authorized to do so by the remaining co-partner or co-partners, is too well settled to require discussion. Hooper v. Baillie et al., 118 N. Y., 413; 29 St. Rep., 52.

In this case the assignment recites that it is an indenture made by and between Marshall W. Scriven and Elisha W. Hydorn, co-partners doing business under the firm name and style of M. W. Scriven & Go., and it is signed:

Marshall W. Scriven,

Elisha W. Hydorn,

By Elisha W. Hydorn.

The certificate of acknowledgment recites that Elisha W. Hydorn and J. Bartlett Hydorn (the assignee), came before the justice taking the acknowledgment; that .the justice knew them to be the same persons mentioned and described in the foregoing instrument ; and that they severally acknowledged before him that they executed-the samé.

The sufficiency of this certificate is challenged because there is no statement in the certificate that Elisha W. Hydorn was authorized to sign Scriven’s name. This I do not think necessary; if he was authorized by the firm it was sufficient. Hooper v. Baillie, 118 N. Y., 413-16; 29 St. Rep., 52. If he had authority to execute the assignment of the firm property, he had authority to execute it in the name of the firm and by himself and to acknowledge it as such. Klumpp v. Gardner, 114 N. Y., 153-160; 22 St. Rep., 672. It appears from the testimony of the justice of the peace who took the acknowledgment that Elisha W. Hydorn stated that he acknowledged it for the copartnership. That was a sufficient acknowledgment within the case of Hooper v. Baillie, and if the officer omitted to embody it in his certificate, that defect, if it is one, may be cured by evidence as to what did take place, and as to what the acknowledgment really was. The policy of the law is to uphold the certificate when the substance is in it. See Claflin v. Smith, 15 Abb. N. C., 241, and cases cited. Kelly v. Calhoun, 95 U. S., 710.

The officer taking the acknowledgment would be compelled to ■correct a mistake in the certificate and make it conform to the facts. 1 Am. & Eng. Encyclopedia of Law, 149, and cases cited. His testimony as to what took place before him is uncontradicted; that, as we have seen, was a sufficient acknowledgment in behalf o£ the copartnership. If it was a necessary part of the •certificate he could be compelled to insert it, and it now appearing in the case, it seems to me that the instrument was sufficiently .acknowledged within the statute, and properly executed, if, in fact, Elisha W. Hydorn was authorized by his copartner to make an assignment for the benefit of creditors; that question was sharply contested, and is the most important question in the case.

Without entering into any general discussion of the evidence, or as to what it tended to show, it seems to me that errors were ■committed in the reception and rejection of evidence bearing upon .that question, for which the judgment should be reversed. As we have seen, the most important question in the case is as to whether Hydorn was authorized by Scriven to make the assignment; that question in turn depended to a large extent upon the testimony of Hydorn, and consequently upon his credibility as a witness.

Upon the question of authority, one Samuel Foster was called as a witness for the defendants, and testified, among other things, that after the first assignment and before the second he had a ■conversation with Elisha W. Hydorn in reference to the first assignment, at which Mr. Scriven and others were present, and at which not only did Mr. Scriven deny that he had authorized Hydorn to execute the assignment, but Hydorn conceded that Scriven had not authorized him, but supposed he would not object ; and also stated, after giving details of the conversation, that “ there was considerable more said at that conversation to the same effect, and Mr. Smith and I, both distinctly understanding from the statement of Hydorn and Scriven that the first assignment had been made by Hydorn without the authority or consent of Scriven, advised the making of the second assignment, which was accordingly done.”

Upon the cross-examination, the question was asked of the witness as to whether his legal advice or opinion was there asked as to whether said second assignment was illegal and invalid as to plaintiff because of the existence of the first; as to which he .answered, yes. He was then asked: “ Did you then, as an attorney at law, give as your advice or opinion that said first assignment was legal and valid,'and that the second was illegal and invalid as to this plaintiff.”

This was objected to by the defendants as incompetent, and the •objection sustained.

Again he was asked :

“Did you then give it as your opinion and advice, as an attorney-at-law, that an action in behalf of this plaintiff to establish the first assignment as valid, and declaring the second assignment void, could be successfully maintained ? ”

New York State Reporter, Yol. 44. [Sup. Cl

This question was also objected to by the defendants and the-objection sustained.

Several other questions of the same character and tendency were asked by the plaintiff, objected to by the defendants and the objections sustained. The questions were asked for the purpose of affecting the credibility of the witness and for the purpose of showing that the witness’ acts and statements were inconsistent with his answers upon the direct examination and as tending to-impeach his testimony given upon his direct examination.

I think the questions were competent for the purpose indicated..

Acts, conduct or statements inconsistent or conflicting with the testimony of a witness on direct examination are competent. Homer v. Everett, 91 N. Y., 641.

Evidence was also given to impeach Elisha W. Hydorn and the plaintiff gave evidence to sustain him; the court limited the number of witnesses on each side. Among other witnesses called by the plaintiff was Edward J. McKenna, who was asked:

“ Q. Did you ever hear him spoken of as to his reputation for truth and veracity ? A. No, sir.
“ Q. Or his honesty ? A. Always considered it good; I never-heard it discussed.”

On motion of the defendant this last answer was stricken out; the witness further testified that he had known Hydorn thirteen or fourteen years, that he had heard him talked about politically ;, had done business with him, knew his associates. Only knew his reputation for truth and veracity from personal knowledge,, never heard it talked about except politically. He was then asked:

“ Q. From your knowledge, based upon the facts which I have-questioned you about, would you believe him under oath ? ”

This was objected to by the defendants as incompetent, and the objection was sustained.

These rulings I think were erroneous. The reasons therefor are sufficiently set forth in People v. Davis, 21 Wend., 309-316, and Adams v. Greenwich Ins. Co., 70 N. Y., 166-170, without repeating them here.

For the causes herein set forth the judgment should be reversed, a new trial granted, the referee discharged, with costs ta abide the event.

Putnam, J., concurs; Mayham, P. J., not sitting.


author: Putnam, J.

text:
    John S. Hulin, Resp’t, v. Norman B. Squires Ex’r, et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Will—Lapsed legacy—Residuary clause—Construction.
    By the fifth clause of his will, testator gave to a religious corporation $20,000 and certain real estate, and the will having been executed within, two months prior to his decease, it was conceded that the clause was void. By the tenth clause the testator gave ‘ ‘ all the rest and residue of my estate remaining after the payment of all the legacies, devises and bequests hereinafter specified or contained, to F.” Sield, that the tenth was a general residuary clause, and carried to F. all the estate of the deceased, including that part of his estate attempted to be given in the fifth clause.
    Appeal from an interlocutory judgment of the Rensselaer ¡special term, holding the fifth clause in the will invalid, adjudging that the testator died intestate as to such portion of his estate, and directing a sale of the real estate and distribution among the heirs at law and next of kin.

      King & King (Edwin A. King, of counsel), for executors, app’lts; Smith & Parmenter (R. A. Parmenter, of counsel), for Farnam Philip Caird, app’lt; J. Arthur Barrett (K Countryman, of counsel), for resp’t.
   Putnam, J.

The controversy in this case arises out of the construction of the will of Franklin W. Farnam, deceased. By the eighth clause the testator gives to a religious corporation in the city of Troy $20,000 and certain real estate, and the will having been executed within two months prior to his decease, it is conceded that this clause is void under chapter 319 of the Laws of 1888. The matter to be determined is the interpretation to be given of the tenth clause of the will, which is as follows:

Tenth. All the rest and residue of my estate remaining after the payment of all the legacies, devises and bequests hereinbefore specified or contained, I give, devise and bequeath to Farnam Philip Caird. In case he shall not be living at the time of my decease, then, and in such case, I give, devise and bequeath the same to his mother, Carrie L. B. Caird.”

The question submitted is, does the property attempted to be bequeathed and devised in the fifth clause of the will pass to the residuary legatee and devisee under said tenth clause, or, as held by the trial court, go to the heirs and next of kin?

The counsel for respondent insists, and I understand the trial court to have, in substance, held that the tenth clause was not a general residuary, but a specific residuary clause, so to call it.

The principles applicable to general residuary bequests are well settled. In Riker v. Cornwell, 113 N. Y., 115; 22 St. Rep., 151, the court lays down this doctrine: “The general residuary clause includes in its gift any property or interest in the will which, for any reason, eventually falls into the general residue. It will Include legacies which were originally void, either because the disposition was illegal or because, for any other reason, it was impossible that it should take effect; and it includes such legacies .as may lapse by events subsequent to the making of the will. It operates to transfer to the residuary legatee such portion of his property as the testator has not perfectly disposed of.”

In the Matter of Bonnet, 113 N. Y., 524; 23 St. Rep., 268, it is said: “We hold tho/t, unless a contrary intent unequivocally appears elsewhere in the will, a lapsed or void legacy will be carried by a general gift of the residuum of the testator’s estate.”

In the Matter of Benson, 96 N. Y., 510, the court quotes with approval the remark in Banks v. Phelan, 4 Barb., 80, that the only exception to the general rule is where the “ words used in the will expressly show an intention on.the part of the testator to exclude such portions of his estate as are mentioned in any of the previous clauses of the will from falling into the general residue.” See, also, Floyd v. Carow, 88 N. Y., 568; Rogers v. Case, 18 W. Dig., 470; King v. Strong, 9 Paige, 94; 2 Redfield’s Law of Wills, 115, note.

In the tenth clause the testator gives and bequeaths all the rest and residue of his estate remaining after the payment of all the-legacies, devises and bequests hereinbefore specified or contained,, to Farnam Philip Caird. The language is that of a general residuary clause. The sentence therein, “ after the payment of all' the legacies, devises and bequests hereinbefore specified or contained,” does not prevent it from so being considered.

In Riker v. Cornwell, supra, it was insisted that the words in the second clause of the second codicil, “ after payment of all the legacies and carrying out of the trusts and provisions -made,” wore words of exclusion, and which indicated an intention to give only a specific legacy. The court held, there was no force in the suggestion.

In Banks v. Phelan, 4 Barb., 91, the court remarked; “It was contended upon the argument that the words 1 if any there shall be after paying the preceeding legacies, devises and bequests’ contained in the parenthesis of the residuary clause, bring this case-within the exception to general rule. A reference to the adjudged cases will show that similar words used in the residuary clause have not been considered sufficient to limit a residuary disposition to any particular or partial residue.”

In King v. Woodhull, 3 Edw. Chan., 84, the vice-chancellor remarked : “1 after payment of debts and legacies,'1 or, ‘after payment of legacies specified or recapitulated in the residuary clause itself,1' are not restrictive of the bequest to any particular or partial residue; but the bequest after all is general of the remainder, and may be so understood without doing violence to the expressions of the will. Where the residuary clause is thus worded, the legatee is as much a general legatee of the residuum of the estate as if such words were not used. In some of the cases, where the court has decreed the residuary legatees entitled to the benefit resulting to the estate from lapsed or void bequests, the language of the will has been stronger in favor of a construction which would exclude them than in the present case. I will instance only two. Shanley v. Baker, 4 Vesey, 732 and Roberts v. Cooke, 16 id., 451.”

The case of King v. Woodhull was affirmed in 9 Paige, 94, is cited with approval in Riker v. Cornwell, 113 N. Y., 127; 22 St. Rep., 151, and in many other cases, and may be deemed a reliable-authority.

The learned judge at special term in his opinion says: “ When we reach the tenth clause the testator does not give ‘ all the rest and residue of my estate1 to Farnam Philip Caird, but he qualifies, and circumscribes the residue by clear expression of unmistakable import, namely, ‘ remaining after the payment of all the-legacies, devises and bequests hereinbefore specified or contained.1 Clearly whatever residue it is, is the residue remaining after the: payment of all the legacies, not of those effectually given, but. specified or contained in the will, whether valid or not. Otherwise why add the words of definition, description or limitation ?' If these words are to be stricken out the purpose of the testator in. adding them is to be thwarted.”

I cannot answer this position of the court below better than by quoting an extract from the opinion of Judge Gray in the Biker case: “ The words upon which the appellants lay so much stress as being words of exclusion and limitation are used by the testator rather as words of a description of the general residue. They might have been omitted without prejudice to the intention. But their retention works no confusion of thought. That which is-‘remaining after carrying out all the trusts and provisions made-by me in my will "and codicil ’ is the fund, which is only completely ascertained.when the previous provisions have been effectuated. The very sense of the words implies the negation of the idea of a specific or fixed residue outside of the previous gifts in the will. If the 1 carrying out ’ of the provisions of the will and codicils is defeated to any extent, to that extent the residue of the fund is increased by the accretion of the void or lapsed gifts.”-' See page 126.

I think, then, that the above quotations show that the said tenth subdivision of the will, being in form a general residuary clause, is not prevented from being deemed such by the words “ after the payment of all the legacies, devises and bequests hereinbefore specified or contained.” Is it affected as a general bequest because in the fifth, sixth, seventh- and eighth clauses of his will the testator has bequeathed certain legacies to be paid out of the “ residue ” of his estate ?

In King v. Woodhall, supra, see page 80, the testatrix willed the residue of the proceeds of her estate, if it did not exceed $1,000, to a missionary society, and the residue and remainder of her estate, after the payment of said $1,000 to said missionary society, if any there shall be, she bequeathed to the children of her niece. The legacy to the missionary society lapsed, and it was held that a residuary legatee took the money. That case, then, is an instance of a general residuary bequest, after a specific bequest out of the residue, held valid.

It is undoubtedly the rule that a bequest of a residue will not ordinarily carry a lapsed legacy. Kerr v. Dougherty, 79 N. Y., 316; Beekman v. Bonsor, 23 id., 298-312; Riker v. Cornwell, 113 id., 125-126; 22 St. Rep., 151; King v. Woodhull, 3 Ed. Chan., 82.

■ In the case last cited it was held “ to entitle a residuary legatee to the benefit of a lapsed or void bequest, however, he must be a legatee of the residue generally, and not partially so, for where it is manifest from the express words of the will that a gift of the residue is confined to the residue of a particular fund or description of property, or to some certain residuum, he would be restricted to what is thus particularly given, since the legatee cannot take more than is fairly within the scope of the gift.”

In Kerr v. Dougherty, supra, there was in fact no general residuary clause. The case is considered and explained fully in the Matter of the Accounting of Benson, 96 N. Y., 499, and in the Hiker case, supra, at page 127. And in the latter case, at pages 125, 126, is illustrated the difference between a general bequest .and a bequest of a particular residue. The distinction between .n devise of a particular residue, as so illustrated in that case, and that of a general bequest by the testator of all the residue of his estate, as in this case, must be apparent. The legacies contained in the fifth, sixth, seventh and eighth clauses of the will in question are specific legacies of a certain sum, payable in the order named, in case testator left sufficient property. There is no residue disposed of in these clauses. These are not specific residuary legacies. The testator wills a certain sum of money to each legatee in the order named, payable from the balance of his estate. The ■ effect in meaning of the will would have been the same had he used the word balance ” instead of “ residue. 1’

The effect of the will in question is by the first four clauses to 'bequeath certain legacies to the parties named. Then out of the balance of his estate to pay the specific legacies as specified in the fifth, sixth, seventh and eighth clauses, in the order named, and the residue of all his estate he bequeathed to Earn am Philip Caird. The gifth in the tenth clause is not of any particular part of the estate of testator, or any partial fund. It is a gift by its terms of the whole residue ' of the estate. In the language of King v. Woodhull, supra, Caird is “a legatee of the residue generally.”

Plaintiff claims that by the will in question, after the first four ■clauses, there are successive residuary legacies, beginning with the words: “ I give and bequeath out of and from the residue of my estate, after the payment of the legacies, etc.,” thereinbefore •specified and ending with the tenth clause in which the same language is used, and he infers that the will evinces a plain intent of the testator that the residuary legatees in each case, including said tenth clause, shall, only take the residuum after paying prior legacies, and hence that the tenth clause is a specific residuary clause and not a general one.

The answer to this proposition is (what has been before stated), that neither the fifth, sixth, seventh or eighth clauses of the will ■contain residuary bequests. Each of said clauses will or bequeath specific legacies of money or property. The word “residue” is used, but the testator might as well have used “ balance.” He wills in each case a sum of money, if after paying the former leg.acies his eslate is sufficient. " Neither the fifth, sixth, seventh or •eighth clause wills a residue. A “residue” is a “remainder,” “what is left,” “the rest.” These clauses will a specific sum of money in each case payable from the balance of the estate of the testator and not a residue. Then comes the tenth clause in question, in which the testator wills not any specific sum of money or property, but all his estate to the residuary legatee. He does not :so bequeath the residue after paying the legacies specified in the fifth, sixth, seventh and eighth clauses, but the residue after pay- mg all the legacies,including the first four. Suppose the first three legacies in the will had lapsed, can there be any reasonable doubt but what the language of the tenth clause is sufficient under the authorities above quoted to carry such lapsed legacies to Farnam Philip Caird ? If the bequest contained in the tenth clause was in anyway limited in its language so as to evince any intent on the' part, of the testator not to dispose of all- of his estate, we might come to a different conclusion but the language is general except the words “ after the payment of all legacies,” etc. And these words-as we have seen are words of description and not' words of limitation or exclusion.

There are cases where a gift of the rest and residue does not-carry a lapsed legacy, as, for instance, where a testator having disposed of ail his estate but certain specific property described in his-will, bequeaths such residue to two persons in certain proportions. If the legacy to one lapses the other will not take, although to-him was bequeathed the rest;and residue of such residuum. Such was the instance’ referred to in Riker v. Cornwell, supra (page-126). Such a legacy is in fact specific and residuary, and the intent of the testator appears clearly not to give all the residuum to the survivor, but only a specific part of the same.

Another case is where the whole residue of the estate is given to several persons, one of whom dies before the testator. In that case the others do not, under the will,'take the share of the one so-dying. Such are the cases of Matter of the Accounting of Benson, 96 N. Y., 502-503; Mount v. Mount, 3 N. Y. Sup., 190; Beekman v. Bonsor, 23 N. Y., 299. In such a case the testator by the very terms of the will only gives to the survivor-a certain share of the-residue and he cannot take more than the will gives him. The-object in all these cases is to ascertain the intent of the testator as-indicated by the language°of the will. And in such a case the-language of the testator is plain. In the case we are considering-the devise is general of “ all the rest and residue,” and bearing in mind the doctrine laid down by the highest appellate court in this-state in many eases, that unless a contrary intent unequivocally appears elsewhere in the will, a lapsed or void legacy will be-carried by such a general gift of the residue, I think the bequest, contained in the tenth clause carries to Farnam Philip Caird all the estate of the deceased not validly disposed of by the will, including that part of his estate attempted to be given and bequeathed in the fifth clause.

It follows there should be a reversal of the judgment The-will should be construed in accordance with this opinion and the complaint should be dismissed.

Mayham, P. J., and Herrick, J., concur.


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    Attilio Pasquini, Resp’t, v. James L. Lowry, Executor, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)
    Reference—Conclusions of fact—Conflicting evidence.
    Plaintiff, a sub-contractor to do the mason work, placed plank against the wall as a protection from the wind. G., a sub-contractor to do the iron. work, removed the plank. The wall blew down to the damage oí plaintiff. In an action against G-. to recover, the evidence, as to whether or not he replaced the plank, was conflicting. IMd, that the court, on appeal, would not disturb the conclusion of the referee.
    Appeal from judgment in favor of plaintiff, entered upon report-of referee.

      James B. Campbell, for app?lt; Andrew Vanderzee, for resp’t.
   Putnam, J.

The facts of this case as far as it is necessary to ■ state them are as follows: Holmes Brothers, in the year 1883, had a contract to build a round house on the West Shore Railroad at Coeymans Junction, 174 feet long on its northerly side, 67 feet 9 inches on its eastern and westerly sides and 98 feet and 8 inches on its southerly side. Plaintiff had a contract "under said Holmes Brothers to do the stone, brick and mason work of said building. The defendant’s testator, Austin Gibbons, also had a contract under said Holmes Brothers to do .the iron work. ■On Saturday evening, October 27, 1883, plaintiff had the brick wall on the north side of said round house nearly completed. 'There were in that wall a number of window frames set and fastened in the wall, and plaintiff had placed braces of plank from one and a half to two inches thick and six inches wide, and from 16 to 20 feet long, fastened by 20-penny nails to these frames, and also to timbers on the floor of said round house. The referee finds that between the time plaintiff’s employees left off work on Saturday evening and the following Monday at about 2 P. M., when they again commenced work, that the employees of Gibbons removed several of those braces, without the knowledge or ■consent of the plaintiff. That in consequence thereof a wind that ■arose on Monday at about 2.30 o’clock p. M. blew down a part of ■the north wall, causing a damage to .plaintiff which is conceded to be $325, and for which this action is brought.

The evidence seems to be sufficient to sustain the findings of ■the referee that the braces in question were placed by plaintiff originally to keep in place the window frames, and after such frames were fastened to the brick wall to support the wall itself. That the braces were removed without the knowledge or consent of the plaintiff, and the effect of such removal was to cause the fall of the unfinished wall. It is shown that where the braces. remained the wall was not affected by the wind. Also that the braces were of plank of the size above mentioned, securely fastened to the window frames and to timbers on the floor of said building. There was evidence given in the case that the braces were of proper construction, and that had they remained the wall would not have fallen. We think the direct evidence to that ■effect and the fact which is undisputed, that where the braces remained the wall was not affected by the wind, justified the finding of the referee, that the removal of the braces caused the wall ■to fall.

There was also evidence given upon the trial that said braces were removed by employees of Gibbons. The declarations of Seek, Gibbons’ foreman, made immediately after the accident, were .admitted in evidence without objection. He admitted that he removed the braces on Sunday because they were in his way. As a witness upon the trial he also swore that he removed them. But he and Stetten, another employee of Gibbons, testified that ■on Sunday evening, at the time he left work, he replaced the braces. Certainly the evidence justified the finding of the referee that the braces were removed by Gibbons’ employees between Saturday and Monday morning. But Beck and Stetten, two of such employees, testified that, although they loosened one end of the braces, that before they left they replaced and renailed them. Hnder the circumstances, was the referee bound to believe this .statement of defendant’s employees? If so; if, in fact, Gibbons’ men replaced the braces as they found them, it would follow that the refereee’s report could not be sustained.

We think, however, the evidence in the case was such that this rcourt is not justified in overruling the .referee upon this point. Of course the rule laid down in Roosa v. Smith, 17 Hun, 138-139, that the general term cannot in a doubtful case upon conflicting evidence assume the place of the referee and determine from the mere reading of the evidence who is telling the truth or who is-best entitled to credit, is well settled. Both Pasquini and Sewall, his foreman, testified that after the accident they saw the braces in question lying across the pits with iron upon them. They testified to this positively. Although there was conflicting evidence and testimony tending to contradict their statements, yet the referee, who saw and heard these witnesses, believed what they :said. If what Pasquini and Sewall positively testified to as to the braces that they had nailed up on Saturday night being across the pits on Monday under the iron placed there by Gibbons’ men is •true, then the testimony of Beck and Stetten to the effect that before they left the building on Sunday Beck renailed the braces must necessarily be untrue.

Again, Pasquini and Sewall both testified that right after the .accident Beck, being charged with moving the braces, admitted that he did, as they were in the way, and he did not then claim that he had replaced them. His failure, when blamed for removing the braces, to claim that he replaced and renailed them, is equivalent to an admission that he had not done so. When his attention was called as a witness to what occurred immediately after the accident .when he was so charged with removing the braces, he fails to satisfactorily account for what then admittedly took place. On the whole the findings of the referee in this regard, and on the various questions of fact involved, have evidence in the case to support them, and under well settled rules we would not be justified in reversing such findings as against evidence. It appears that it was not necessary for Gibbons’ men to remove the braces to do the work they were called upon to perform, or if it was that the braces should have been replaced.

There is sufficient evidence, then, to sustain the conclusions of the referee on the questions of fact involved in the case. It appears that plaintiff having his brick wall nearly erected, and having the same properly braced with plank securely fastened to the window frames in said walls and timber on the floor of the building so as to prevent said wall from falling, the defendant removed said braces and negligently failed to replace the same,, and as a result of said act the wall was blown down.

We think, these facts being established, that the referee’s conclusion that the act of defendant’s employee in removing and not replacing the said braces was negligent, is correct.’ It appears that the object of the braces was to prevent just such an accident as-did occur. Plaintiff was lawfully under his contract engagéd in building a wall, and the act of removing the braces necessary for the support of the wall without his knowledge and consent, which the referee, on sufficient evidence, found was done, was a negligent act. If it was necessary for Gibbons’ employees to move . said braces, they should have notified the plaintiff of their intention.

The cases cited by defendant on this question are not parallel. The case of Cosulich v. The Standard Oil Co., 33 St. Rep., 287, was where an accident occurred without any proof whatever of negligence on the part of the defendant, and it was held that negligence would not be presumed, the parties having no contractual relations. Here a wrongful, a negligent act is shown,- a tearing down of the braces placed by plaintiff to sustain his work. So in the Wiedmer case, 114 N. Y., 462; 23 St. Rep., 859; Reiss case, 38 id., 842. Ho negligence was shown on the part of the defendants in either of these cases. It was held that negligence-would not be presumed. But in this case an actual interference by Gibbons’ employees was shown in tearing down the braces-properly erected by plaintiff to support his walls.

The defendant also cites the Sutton case, 66 N. Y., 244; Nicholson case, 41 id., 525, and the Reiss case, 38 St. Rep., 842, to sustain his position that defendant’s act in removing the - braces was-not negligent because the accident that occurred could not have-been reasonably anticipated and would not have happened unless under exceptional cases. The answer to this position is that the object of the braces must be deemed to have been to sustain the wall as against winds or any other force that might cause it to fall. It appears that the wind, at the time the wall fell down, was not extraordinary. It was not a hurricane. The plaintiff as a witness was asked:

“ Q. Was it a very unusually strong wind that'blew at the-time ? A. No sir. It blew very strong, but I saw it blow a great, many times worse.”

It was to guard against such winds that the braces were placed. The referee was justified in finding that the accident might have-been anticipated from the removal oE the braces. Also that such, removal was the proximate cause of the accident, without which, it would not have happened.

The claim is made by defendant that plaintiff’s own negligence-contributed to the accident. The testimony shows that plaintiff’s. ■ own employees left the work Saturday night. That at that time-the braces were all examined and were in place, properly secured.. The plaintiff’s men again commenced work on Monday afternoon.

We do not think that negligence can properly be attributed to plaintiff because he did not examine the braces upon Monday morning to see whether any of them had been displaced. Having ■examined them on Saturday night when he left work, plaintiff could properly presume that they would remain in the same situation on Monday. He was not bound to assume that some wrongdoer would in the meantime have removed the braces. Ordinarily, the question of contributory negligence is one of fact, and the referee, under the circumstances, the braces having been properly secured on Saturday when the plaintiff quit work, could properly find absence of contributory negligence on the part of the plaintiff in not examining the braces upon Monday morning and in assuming that they remained the same as when examined on Saturday night. There is also evidence in the case justifying the conclusion that the braces were properly erected -and of the proper size and sufficient to sustain the wall. We have read through the case and do not find any exceptions requiring consideration except such as have been above discussed.

The case seems to involve a question of fact. It is a case ■of conflicting evidence. It was was tried before an able and experienced referee and we see no reason why his conclusions in the case should be disturbed.

It follows judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


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    Annie Losee, Resp’t, v. The Watervliet Turnpike & Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    .Railroad—Negligence—Charge.
    In an action against a street railroad company for injuries caused by the negligence of a conductor in starting his car without warning plaintiff who was in the act of walking to the door, and who was thrown to the floor and injured, the court charged as a legal proposition, “If you find from the evidence that this plaintiff was in the act of getting off, or had left her seat for any purpose, and the car started and she was thrown, the conductor had no right to start it without giving her warning to take her seat, or an opportunity to get her seat.” Held, error.
    Appeal from judgment in favor of plaintiff, entered on verdict :and from order denying motion for á new trial.

      Hale é Bullcley (Alpheus I. Bullcley, of counsel), for app’lt; John H. G leason, for resp’t.
   Putnam, J.

A conductor of a street railroad car should give passengers a reasonable opportunity to alight, and a failure to do .so is negligence. Poulin v. Broadway & Seventh Ave. R. R. Co., 61 N. Y., 621. He is only bound, however, to afford a reasonable time. A party wishing to alight must not loiter. It is not clear from the testimony that plaintiff was not afforded a reasonable •opportunity to leave the defendant’s car at the time of the accident which is the subject of this action, or that the evidence discloses negligence on the part of the conductor.

I infer that no notice was given to him, nor was it shown that lie knew plaintiff wished to alight. Plaintiff, was .sitting by Miss Gardner. The conductor stopped the car for the latter to alight, who arose from her seat, went out of the car and stepped on the ground', when the bell was rung and the car started. At this lime the plaintiff testifies she had taken three steps towards the rear end of the car where the conductor was. Therefore, it appears that the car was stopped long enough for a passenger to alight And although plaintiff was then on her feet, it was not shown that she signaled the conductor or gave him any notice that she wished to leave the car, or that his attention was in any way attracted to her.

To sustain the judgment there must be legitimate evidence of negligence. The jury has no right to guess at it. Plaintiff must prove it. This case is not like that of McDonald v. Long Island R. R. Co., 116 N. Y., 546; 27 St. Rep., 481. Where a railroad company stops at regular stations it is bound to stop at such places long enough to afford passengers a reasonable time to-alight, whether the conductor knows whether any passengers wish to leave the car or not. On street railways the conductor only stops when signaled by a passenger. It is true that when he stops for one passenger who signals him another may take advantage-of the opportunity to leave the car. But to establish negligence on the part of the conductor the circumstances must be such that his attention was or should have been called to the intent of the passenger to alight. Here there is not the slightest evidence that the plaintiff made any effort to attract the attention of the conductor, either by ringing the bell or in any other way; nor any evidence that the conductor saw her, or circumstances shown indicating that he should have seen her.

It is not shown that he started the car hastily. The passenger who sat next plaintiff arose and, as far as the evidence discloses, deliberately left the car, and at that time the plaintiff had only taken three steps towards the conductor. I infer from the evidence she must have been some distance from the door, as it does-not appear that her head fell against it or outside of it. Under such evidence it is a question of some doubt whether plaintiff' made out a case of negligence against the defendant which should have been submitted to the jury.

Admitting, however, that the case was properly submitted to-the jury- by the trial judge, nevertheless, in that case, it was a question of fact for the jury to determine, from the testimony given; whether the act of the conductor was or was not, under all the circumstances, negligent. And I think that some exceptions taken by the appellant to the charge of the judge to the jury renders a new trial of the case necessary. The judge charged the-jury ns follows:

“If you find from the evidence that this plaintiff was in the-act of getting off, * * * she had-started, left her seat for the purpose of getting off or for any other purpose, and the car started while she was on herieet and thrown, he had no right to start it without giving her warning to take her seat, or an opportunity to get her seat.” To this an exception was taken.

Again the judge charged: “If she started before the signal she was not guilty of negligence, but the company was negligent.” To this no exception was taken.

In answer to the sixth request to charge, the court charged: “ How, if the car was standing still she had a right to get up, and had a right to attempt to go out or a right to move over, and the ■conductor had no right to start it again until he saw she either moved out or sat down, or gave her notice to sit down. She must do one thing or the other within a reasonable time.” The defendant excepted.

By these instructions the jury were told that if plaintiff arose in the car for the purpose of getting off or for some other purpose, the conductor had no right to start the car without warning her, as a legal proposition. The jury were not instructed that they might so find or that they could determine from all the facts of the case that the starting of the car, under the circumstances, was improper, but were instructed that the conductor had no right, if the plaintiff was standing for any purpose, to start the car without warning her. •

In effect they were told that such an act was wrongful, and hence negligent. The judge stated this as a legal proposition. The jury might perhaps have found as a fact from the circumstances proved that the conductor was negligent in starting the car, even if the plaintiff was only standing without attempting to alight. I do not think that the court could properly charge as a legal proposition that such a starting of the car was improper. The evidence given in the case was such that the jury could have found that the plaintiff was on her feet for the purpose of changing her ¡seat merely, or for the purpose of alighting from the car.

I think it should have been submitted to the jury as a question of fact whether, under the circumstances, plaintiff standing in the car, either to go out or change her seat, the conductor was or was not justified in starting it when he did. There was evidence that the car had stopped long enough for a passenger to alight; that no ¡signal was given to the conductor. There was no evidence that his attention was called to her, or that he knew she wished to leave the car. If the question had been submitted to the jury, they might have found that, although plaintiff was standing in the car either changing her seat or to go out, yet the conductor was not negligent in not seeing her, and had the right at the time to start the car. But the court, by the instructions above quoted, took .away these questions from the jury, holding that if the plaintiff was standing at the- time the conductor started the car, he had no right to so start it without warning her, it necessarily following that his act was wrongful and negligent. . I think the court should have submitted this question to the jury as one of fact. It was for the jury to say not only whether plaintiff was. standing up to change her seat or to leave the car, but also whether the conductor should have seen her in the absence of any signal, and whether his act in starting the car when she was standing up was or was not wrongful. The exception taken by defendant to the said instructions of the judge seem to have been sufficient. See People v. Livingston, 79 N. Y., 292; Freund v. Paten 10 Abb. N. C., 316.

It is impossible to say that the instructions above referred to-did not influence the verdict, and hence the judgment should be-reversed, and a new trial granted, costs to abide the event.

Herrick, J., concurs; Mayham, P. J., not sitting.


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    Stephen Sanford et al., Resp’ts v. John Claflin et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Pleading-—Answer—Irrelevant allegations.
    Allegations in an answer charging plaintiffs with making a private agreement with defendants’ agent over four years before the making of the contract which is the subject of the action, no claim being made for damages on account of said act of plaintiff, are irrelevant and should be stricken out on motion.
    Appeal from order striking out certain portions of defendants’ answer as redundant and irrelevant.

      Charles W. Gould {Z. S. WestbrooJc, of counsel), for app’lts; W.. L. Van Denbergh, for resp’ts,
   Putnam, J.

The action is brought upon a written contract, dated February 11, 1888, by which defendants in consideration of an extra one per cent agreed to sell 24,000 pieces of plaintiff’s carpets, confining their sales of tapestry and velvet goods exclusively to those of plaintiffs’ manufactures. The complaint, alleges the receipt and retention of a sum mentioned therein by defendants on account of said one per cent, a failure by defendants to perform the contract, and hence their liability to repay the said sum so paid to or retained by them.

The answer admits and denies certain allegations contained in the complaint. Second, admits a contract made on February 11,. 1888, partly verbal and partly written, differing from the contract, set out in the complaint; alleges that defendants performed and plaintiffs failed to perform the covenants therein, whereby the-defendants suffered damage; and, third, sets up the same facts as-a counterclaim.

In the second part of the answer are the clauses stricken out by the special term relating to one William H. Davis, a former agent of the defendants, discharged by them on or about December 31, 1884; the alleged misconduct of the plaintiffs in making a private agreement with Davis preceded the making of the contract in question over four years.

We are unable to see what relevancy the allegations stricken out have to the issues raised by the pleadings in this case. It-will be observed that the written memorandum executed on February 11, 1888, as claimed by each of the parties, is the same,, except that the defendants assert that the figures “ twenty. _ thousand ” was contained in it before the figures “ twenty-four' thousand.” Both parties conceded that by the contract of February 11th the defendants were to have an extra one per cent. If there was a dispute raised by the pleadings in regard to this extra one per cent. it is possible that the allegations stricken out might be properly retained in the pleading. But the contract in regard to the one per cent is conceded to be in writing, and there is no issue in the pleadings in that regard. The only issue being ■as to whether defendants were*to sell twenty thousand or twenty-four thousand pieces of goods each year, and whether plaintiffs agreed in the same contract to furnish defendants with goods of the quality specified in the answer, and to furnish such goods to the defendants exclusively.

We think it is plain that the allegations in the answer charging plaintiffs with making a private agreement with defendants’ agent over four years before the making .of the contract which is the subject of the action irrelevant to the real issue in the case. No ■plaim is made for damages on account of the said acts of plaintiffs. It may be inferred from the answer that the pleader intended to •have it understood that the alleged improper action of the plaintiffs induced the defendants to insist upon receiving the extra one per cent, and the plaintiffs to yield to defendants' demand in that regard. But if so, the allegation is entirely irrelevant. It is of no consequence what induced the defendants to demand and the the plaintiffs to give the extra one per cent. The parties both agree that this one per cent was reserved in the contract. No issue is raised in that regard, and the reasons that induced the action of the parties is not material.

If the clauses in the answer in regard to plaintiffs making a private arrangement with defendants’ agent, Davis, on or before 1884 are allowed to remain in the pleading defendants will have the right to offer testimony upon that subject on the trial of the ■case, and plaintiffs will have to be prepared to meet such evidence. But inasmuch as there is no dispute between the parties in the pleadings as to the one per cent, it is difficult to see what rele-vancy such testimony would have to the real issues in the case.

We therefore think that the order of the special term was correct. We bear in mind the holding of the general term of this district. Town of Essex v. The N. Y. & Can. R. R. Co., 8 Hun, 361. In that case the court decided that irrelevant and redundant matter should be stricken from the pleadings with reluctance and caution. But the court determined in that case that it was proper to strike from the pleadings matter which on the first glance is plainly impertinent. We think the clauses stricken out by the special term were of that character, and such clauses being impertinent the allegations contained therein were of such a nature that they should not be allowed to remain in the pleadings. See Smith v. Hilton, 19 St. Rep., 344-345.

Order affirmed, with ten dollars costs and printing disbursements.

Herrick, J., concurs; Mayham, P. J., not sitting.