text:
    ERNESTINE SCHRODER, Respondent, v. MOSES G. WANZOR, Appellant, Impeaded, etc.

      Purchase of a family burial lot in a cemetery — right of the wife to restrain its corneyanee to, and use by, a stranger — right of the purchaser to rescind the contract and recover the price paid.

    A lot in Greenwood cemetery was purchased hy the plaintiff’s husband, to he used as a place for the burial of the plaintiff and her husband and their family, and had been thereafter greatly improved at her, as well as at his, expense, and the plaintiff’s parents and one of her sons and a brother of the husband had been buried therein. Thereafter the husband, for a valuable consideration, sold and conveyed the lot to a stranger.

      Held, that the wife could maintain an action to restrain the husband from so conveying the lot and was entitled to have a judgment entered therein specifically devoting the lot to the objects for which it had been purchased and improved.

      Lantz v. Buclcingham (4 Lans., 484) distinguished.

      That the purchaser would not thereby be deprived of the money paid by him as a consideration for the deed, as his inability to obtain the land itself would entitle him to recover the amount so paid, upon a rescission of his purchase.
    Appeal from a judgment in favor of the plaintiff recovered on a trial at the Special Term.

      George Bethwne Adams, for the appellant.

      Sidney II. Stuart, for the respondent.
   Daniels, J.:

The controversy determined by the judgment relates to the title of Moses G. Wanzor to a lot of land in Greenwood cemetery. It was purchased and a deed taken for it from the Cemetery Association by John Schroder, the plaintiff’s husband, and he executed and delivered a deed of the same lot to the appealing defendant. The plaintiff claimed to have become so far interested in the property by its improvement, and the interment of her parents, as to prevent her husband from making a legal or valid sale of it. It was alleged in the complaint that the lot had been purchased for the sole and only purpose and as a place of burial for the dead of the family of the plaintiff and her husband defendant, and that it had afterwards been improved by them by the expenditure of large sums of money in caring for, beautifying and protecting the lot, and erecting a monument thereon, and that in addition to the interment of her parents one of the sons of herself and her husband, and a brother of her husband, had been interred in the lot. These allegations were not denied in the answer of her husband, neither were they in the answer of the other defendant. He did state in his answer, after making specific admissions, that on information and belief lie denies all the allegations in the said complaint contained, not hereinbefore admitted or denied.” But this statement neither denied directly the other allegations contained in the complaint, nor did it contain the allegation that the defendant had not sufficient knowledge or information to form a belief as to the other statements in the complaint, and for that reason that he denied them. And these are the only forms of denial which the Code has provided may be-inserted in the answer. It has not permitted a material allegation in the complaint to be put in issue by the form of denial adopted by this defendant. He lias neither made a direct denial of the other allegations in the complaint, nor averred that he had no knowledge or information sufficient to form a belief as .to such statements. For that reason these allegations contained in the complaint also stand admitted as to him, and the case is to be «considered and disposed of with these facts established in that ■manner, in favor of the plaintiff. From them it appears ihat the property was acquired as a burial lot for the plaintiff and her husband and their family, and that it had been greatly improved, not only at his but at her expense, and their family dead had been placed in the lot as their final resting place. These facts were sufficient to prevent her husband from making such a disposition of the lot as was designed to be made in favor of the other defendant, and which was to be followed by the removal of these bodies from the ground. For by the understanding that the lot was acquired as a family burial place, and it had been so used, and it had been improved by the expenditure of money by the plaintiff with that understanding, and to beautify and adorn it, her husband had disabled himself from afterwards conveying it away to another person and thereby devoting it to a distinct and different purpose. And she became entitled to the judgment which was recovered by her specifically devoting this lot of land to the object for which it had been purchased and improved. In this respect the case was brought within the principle of Lobdell v. Lobdell (36 N. Y., 327), where a father had verbally agreed to convey a piece of land to his son in ease he entered upon it and improved it. That, it is true, included the entire legal title to the land, but if such an agreement can be held valid as it then was when it includes the legal title, by the same reasoning upon which that can be accomplished, its legality is capable of being sustained where the agreement to be implied may include an interest less than the legal title. The same point was discussed in Neale v. Neale (9 Wall. [U. S.], 1), where it was declared that “ equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession and the ■donee induced by the promise to give it, has made valuable improvements on the property.” (Id., 9.) And this rule was followed in the decision of Williston v. Williston (41 Barb., 635). Beyond that it would be offensive to the moral sense, and, therefore, should not be sanctioned by tbe court after these bodies had there been buried, to permit this property to be made the subject of speculative disposition, with permission to the purchaser to remove them from their resting place. Such an interference with them was not sanctioned by the common law. (King v. Lynn, 2 Durn. & East, 733; Com. v. Cooley, 10 Pick., 37.) And it was so considered in a very appropriate opinion delivered by Mr. Justice Yan Yorst in Thompson v. Hickey (8 Abb. N. C., 159). And the conclusion then and now arrived at is in no manner impaired in its strength by the case of Lantz v. Buckingham (4 Lans., 484), in which neither of the controlling circumstances was presented which are found in this case. The defendant appealing will not be deprived of the' money paid by him as a consideration for the deed by this determination, for as long as he may be unable to obtain the land itself, he will be at liberty to recover the consideration upon a rescission of his purchase. Good order, public decency and a just regard for the repose of the remains of the dead require, under the facts of this case, that the judgment from which the appeal has been taken should be affirmed. And the same policy has been embodied in the legislative acts of the State for the management and government of the property of rural cemetery associations. (Laws 1871, chap. 419 ; Laws 1879, chap. 310 ; Laws 1880, chap. 566, § 1.)

The judgment should be affirmed, with costs.

Brady, J., concurred ; Davis, P. J., concurred in the result.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Daniels, J. :

license: Public Domain

text:
    In the Matter of the Petition of THE NEW YORK ELEVATED RAILROAD COMPANY, Relative to Acquiring Title to Certain Property in the City of New York.

      Elevated railroad — 1875, chap. 606 — injuries to an adjoining owner’s easements of • light, air and access — what injuries cannot he considered hy the commissioner's.

    Under the authority conferred upon it hy chapter 606 of 1875, the petitioner constructed an elevated railroad in Front street, in the city of New York. This-railroad passed in front of the premises owned hy one Story, which he then, occupied and used to carry on his business as a dealer in spices. The street in front of his premises was held by the city of- New York, in trust, as a public street, for the convenient use and enjoyment of the public. The defendant’s road is supported by girders, which extend transversely across the street and rest at each end upon iron piers placed in the sidewalk, inside the curb lines. No pier stands in front of Story’s premises. The bottom of the structure is fifteen feet and one inch above the surface of the street, and the ties, which are six inches wide and separated hy open spaces of twelve inches,, extend to within eleven feet and one-half inch of the front of Story’s building.
    Commissioners appointed to appraise the damages sustained by Story, by the construction and operation of the petitioner’s road, reported that they had allowed him a gross sum as damages for the injury to his right or privilege to have Front street, opposite his premises, kept open and unobstructed and continued as a public street; and for the serious interference with and impairment of his rights to light, air and access to his property, which had been occasioned by the construction and operation of the road. Testimony was-received by the commissioners, and considered by them in making their award,, tending to show the depreciation of the property caused by the noise, smoke- and vibration, incident to the management of. the trains the direction of the-winds and to the state of the atmosphere, and also by the falling of ashes, dust and cinders, and the unsightly appearance of the structure itself.

      Eeld, that it was error to allow any compensation for the damages arising from noise, smoke, vibration, ashes or dust, or the unsightly character of the structure.
    That as it appeared that the access to Story’s premises was in no way obstructed by the petitioner’s road, it was error to allow or pay for any injury to that right.
    That Story’s compensation in this case should be limited to the damages occasioned to his easements of light and air by the erection of the petitioner’s road and its use by the passage of its trains.
    That the report of the commissioners should he reversed and a new hearing ordered.
    Appeal by the New York Elevated Railroad Company from the appraisal and report of commissioners appointed to ascertain and appraise the compensation to be made to Rufus Story, as the owner of, or person interested in, so much of the privilege, easement or other interest in Front street, belonging to said Rufus Story, or appurtinent to lots Nos. 7 and 9 on that street, as is taken by the petitioner for its use as an elevated railway company.

      II. II. Anderson, William B. Homhlower, Julian T. Davies and. Edwcurd 8. Rapallo, for the Elevated Railroad Company, appellant.

      John E. Parsons, for the respondent, Joseph Story.
   Daniels, J. :

The elevated railroad of the petitioner was constructed and has since been operated in Front street, under the authority of chapter 606 ■of the Laws of 1875. It was evidently then supposed that the railroad ■company had the right to locate and construct its railway in this street under the authority of this act, without compensating the owners whose property abutted upon the street, for any inconvenience it might occasion them, or any injury which they might ■afterwards sustain in the use and enjoyment of their property. But in Story v. New York Elevated Railroad Company (90 N. Y., 122) a different view of the law was established, and the railroad company was held to be liable for erecting and maintaining the structure in the street, so far as it interfered with the convenient, use and enjoyment of the petitioner’s property, or deprived him •of the use of the light and air he might secure and obtain from the street unaffected and unobstructed by this structure, and it was to avoid further controversy as to this liability and to compensate the •owner for what .was held to be an unlawful interference with his rights that these proceedings were taken, and the award has been made by the commissioners. Their object was not to compensate the owner as the proprietor of land taken and appropriated by the company. And as the land upon which this street was constructed was appropriated to that object by the conveyances through which the owner derived his title, and it was to be maintained as a free and common passage and as public streets and ways for the inhabitants of the said city, and all others passing and returning through or by the same in such manner as the other streets of the samo city are, or lawfully ought to be, he probably had no such interest in, or title to, tlie street itself as entitled him to compensation for the use or appropriation of its surface. This was considered in Story v. New York Elevated Railroad Company (supra), but the point was not definitely decided, the case having been disposed of upon the right of the owner to uninterrupted access to and from his property, and to the free enjoyment of the light and the air, so far as that would be supplied without this obstruction erected over the street. He was held to be entitled to such access to and from the property owned and occupied hy him, and to the use and enjoyment of the light and air so far as it might be supplied by the street, without interruption from the structure of the company erected and used in it. And it was to divest him of this right in favor of the company'that these proceedings were instituted and completed.

The structure was erected upon iron piers, placed in the sidewalk inside the curb line, with traverse girders extending across the street from the pier or column on one side to a corresponding pier or column on the other side, upon which were laid longitudinal girders, and on these the tracks of the railroad company were constructed. The structure is fifteen feet and one inch above the surface of the street, and rises from that height into the air nearly five feet, and the cars used upon the railway are about nine and a-half feet in height. The ties are six inches in width, having open spaces between them of about twelve inches, and they extend to within eleven feet and one-half inch of the front of this building, occupied and used by its owner to carry on his business as a dealer in spices. Neither of the piers nor columns is in front of his building. One was placed near the corner and the next in front of • adjoining premises. The front of his store was therefore free from interruption or obstruction, having a height for its entire width of fifteen feet and one inch above the surface of the street. This was proved by evidence encountering no contradiction on the hearing, and, of course, the fact could not be changed by any observations which the commissioners themselves might, or did make, of the locality. By their report they first reported generally the. compensation which they deemed it proper should be made to him, but upon the application of the railroad company a further report was required from them setting forth what they had considered to be easemente, for which they had allowed damages in and by their first report. And in compliance with that they further reported :

Second. That the easement for which they allowed compensation in their report is the right or privilege of Mr. Story to have Front street, opposite his premises, kept open and unobstructed, and continued as a public street, for the benefit of his abutting property.

Third. That while on the original hearing before them the easements of light, air and access were the only ones considered, no testimony was given, nor have your commissioners any knowledge upon which these easements can be divided so as to attach values to each of them separately, or to so much of each of them as has been taken by the petitioner.

Fourth. That their personal observations satisfied your commissioners that the easements of light, air and access of Mr. Story’s property were all seriously interfered with and impaired by the construction and operation of the petitioner’s railroad in front of the property.

And by this fourth subdivision of their report the fact has been stated by them that the easement of light, air and access of Mr. Story’s property were all seriously interfered with and impaired by the construction and operation of the railroad, and for that interference the compensation directed by them was intended to be required from the company. But as there evidently was no part of the structure which interfered with access to and from the store on Front street, no part of the compensation to be awarded to the owner could legally be made on that account. It was not shown, neither can it be perceived how the railroad structure could by any possibility interfere with the use and enjoyment of the access of himself, his customers or others, to and from the store. The uninterrupted space extending across its entire front of fifteen feet and one inch in height, would seem to be all that could be required for the convenient use and enjoyment of this right of access, and accordingly its obstruction should not have been included by the commissioners as a circumstance for which compensation should be made, for the fact itself on which the right to compensation depended appeared to be without existence.

The award made by the commissioners was of the s:::u of $15,000, and. it seems to liave proceeded in its amount upon the evidence of Mr. Story, the owner himself and two of his witnesses, designating that to be the depreciation produced in the value of his property by the construction and operation of the railroad. The witnesses Martin and Coddington, in general language, men’tioned the depreciation as one-half of the value of the property without this structure in the street, but gave no figures expressive of their valuation, and presented no criterion upon which their estimated one-lialf might be reduced to figures. It was the other witnesses who give the figures. _ They were the owner himself, who placed the value of his property without the road at the sum of $45,000, and stated its depreciation from the road to be one-third of that amount or $15,000, and the witness Herrick, who considered the value of the property without the road to be from $40,000 to $45,000, still placing the depreciation from the railroad ■at the amount mentioned by the owner, while Duke, in general terms, expressed his conviction to be that the rental value of the property had been reduced to the extent of one-third. And from the identity of the award with the figures given by these witnesses the conclusion appears to be well warranted that the commissioners followed their statements, in arriving at the sum mentioned by them in their report. It is true that it appears that they observed the premises themselves, but the result of their observation practically was that they coincided with the conclusions of these witnesses, and .adopted the statement made by them as the basis on which their award of compensation should be made. But in making these statements the witnesses included disturbances and annoyances arising out of the running of the trains themselves. They did not confine themselves in their statements to what they might consider the depreciation of the owner’s property by the erection of the structure and the mere passage of the trains over it, but included in addition to those facts the noise, smoke and vibration incident to the management of the trains, the direction of the wind and the state of the atmosphere, also the falling of ashes, dust and cinders and the unsightly appearance of the structure itself. How much of the one-third off in the rental value, or of the $15,000 mentioned by Herrick and Story as the depreciation in value of the latter’s property, was, in their judgment, attributable to these, or either of these incidental circumstances was not mentioned by either of the witnesses. And no estimate, therefore, can be made of the extent to which these facts may have influenced their judgment. That they did influence their judgment to some extent is manifested by the manner in which they gave their evidence upon the hearing. And as the commissioners adopted and followed their convictions concerning the extent of depreciation in the owner’s property, they must necessarily be held to have included as part of their award the compensation which should be made on the basis of these incidental annoyances and objections. The question, therefore, arises whether these were matters of fact which the commissioners had the legal right to provide for by way of compensation to the owner of the property. It is reasonably clear that they include no proprietary right or interest talcen from the owner, and it is only for the property taken from him for public use that compensation has been required io be made by section 6 of article 1 of the Constitution of the State. And in taking private property under the authority of the law for the construction of railroads, neither of these incidents-have been considered to be a subject of constitutional compensation. If they were, then every person residing or doing business, so near the line of a railway as to be annoyed or disturbed by the smoke,, noise, steam or ashes of a train, would have a legal right of action against the company for indemnity, but no action for that purpose has yet been sanctioned or maintained by the courts. Their judgment, on the contrary, where the point of liability has arisen, has-been against the right to maintain a suit for the recovery of redress on that account. (Briesen v. Long Island R. R. Co., 31 Hun, 112.) This street, as it was provided for in the deeds under which the pi’esent owner derived his title as they were made to appear in Story v. New York Elevated Railroad Company (supra), was to be maintained and used in such manner as the other streets of the city of New York then were or lawfully ought to be, and by that phraseology it was placed upon the same legal basis as the streets of the city have been generally maintained. And that required it to be held in trust as a street for the convenient use and enjoyment of the public; and it was subjected to such legislative control thereby as was not inconsistent with its use and maintenance as a public street. This subject was considered in People v. Kerr (27 N. Y., 188), in reference to another street of the city required to be maintained and used in the same manner. And it was there held that the legislature had supreme control over the street, and might “ change one kind of public use into another, so long as the property continues to be devoted to public use. What belongs to the public may be controlled and disposed of in any way which the public agents see fit; ” and 1 ‘ that the power exists with the State legislature, without the consent or license of the municipal corporation, to so control the use of the public streets of the city as to authorize the construction of a railroad track therein on which city passengers may be transported for hire.” (Id., 192, 214.) And this was sanctioned and followed in Kellinger v. Forty-second Street Railroad Company (50 N. Y., 206). And where this broad authority has been reserved to the legislature over a street, it has been considered to sustain legislative action authorizing the construction and maintenance of a railroad upon the surface of the street, whether it be piopelled by steam or horse power. On this subject it has been declared as settled law that “ where the original proprietor parts with the fee which is vested, by statutes in some of the States, in the public, or in the municipality for the use of the public, the courts concur in holding that the legislature may in such case authorize the street or highway to be used for a street railway, or even an ordinary railway, without his consent and without compensation to him.” (2 Dil. on Mun. Corp. [2d ed.], § 574.) And this appears to be sustained by Corey v. Buffalo, etc., Railroad Company (23 Barb., 482); Lexington, etc., Railroad Company v. Applegate (8 Dana [Ky.], 289); Atchison, etc., Railroad Company v. Garside (10 Kan., 552); Moses v. Pittsburgh, etc., Railroad Company (21 Ill., 516); Parrot v. Cincinnati, etc., Railroad Company (10 Ohio St., 624); Greene v. N. Y. Central, etc., Railroad Company (65 How., 161); and Barney v. Keokuk (94 U. S., 324, 341).

Assuming that to have been the authority which the legislature possessed over this street, if a surface instead of an elevated railroad had been provided for, no constitutional right whatever would have existed on the part of the owner of this property, and he can claim no more than that, to compensation for annoyance or disturbance, created by smoke, noise, vibration, ashes dust or cinders, for they would have been no more than incidental consequences resulting from the legal construction and maintenance of the railroad, and for such incidental consequences, where the business may be -carried on with reasonable and proper care, no right of action exists •on the part of the party complaining of such annoyances. (Bellinger v. N. Y. Central, etc., R. R. Co., 23 N. Y., 42; Gould v. Hudson River R. R. Co., 2 Seld., 522; Matter of Union Village, etc., R. R. Co., 53 Barb., 457; Porter v. North Missouri R. R. Co., 33 Mo., 128; Murphy v. City of Chicago, 29 Ill., 279, 286.) And building the railroad above the surface of the street will not render the company liable for these annoyances, when no such liability would have arisen if it had been laid upon the surface. But it is solely because of the fact that the railroad has been built' above the street that the right of the owner of this property to compensation has arisen, and under the authorities determining the extent of that right these incidental disturbances and annoyances are not .required to be included. It is true that a different rule was sanctioned In Matter of Utica, etc., Railroad Company (56 Barb., 456), 'but that case proceeded upon a departure from what had previously been, and has since also been, followed as the correct legal principle to be applied and observed. And upon this subject it has beeu very generally held that the extent of the owner’s right is to be compensated for the property actually taken, and the reduction in value of the residue of his property by the fact of the taking of a part of it. That satisfies and includes all that is contained in the constitutional requirement. It is to compensate him for what may be taken from him under the authority of the Constitution and the law, and not to remunerate him for any incidental damages or annoyances after-wards arising from the use of the property itself, occasioned by want of care or skill on the part of the party taking and using the property, or by the direction or force of the wind or the state of ¡the atmosphere. This was the rule adopted in Troy and Boston Railroad Company v. Lee (13 Barb., 169), and it was followed in Canandaigua, etc., Railroad Company v. Payne (16 id., 273); Albany Northern Railroad Company v. Lansing (Id., 69), and sanctioned and sustained by Henderson v. New York Central Railroad Company (78 N. Y., 423); Matter of Union Village, etc., Railroad Company (53 Barb., 457); Albany and Susquehanna Rail road Company v. Dayton (10 Abb. [N. S.], 183); Taylor v. Metropolitan Elevated Railroad Company (50 N. Y. Supr. Ct, 311, 333); Black River, etc., Railroad Company v. Barnard (9 Hun, 104), and Matter of Boston Road (27 id., 409). And it is in no manner in conflict with anything that was said or decided In Matter of New York Central, etc., Railroad Company (6 Hun, 149). These authorities all fail to sustain the decision made In the Matter of Utica, etc., Railroad Company (supra), and prescribe a rule to be observed and followed, excluding the right of the owner to compensation, because in the management of the business of the railroad constructed in front of his premises, their occupants may be disturbed by noise or the vibration of the building, or annoyed by smoke, ashes, dust, steam or cinders, or by the unsightly appearance of the structure itself.

If it was within the authority of the legislature to provide a surface road for this street, and it had been so provided and built, neither of these incidental annoyances would have been the subject -of action or compensation, for they included no taking or appropriation of the property of the abutting owners on the street. And it is only for the taking and appropriation of property that the Constitution has required compensation to be made. Beyond the constitutional necessity for compensation the subject has been wholly committed to, and is within the rightful authority and regulation of, the legislature of the State. And as these annoyances could not legally, in the absence of specific legislation to that effect, be required to be made the subject of compensation in the case of a surface railroad, it seems to follow that they should in like manner be excluded as items of compensation in the present case. And that exclusion is sanctioned by the other authorities declaratory of the compensation to be made to the owner whose property in any form may be appropiiated to the purposes and uses of a railway. The property of the present owner, so far as it may be appropriated and used, has been defined to be his easements in the street affording to his premises the ordinary means of access, and the light and air they would receive, and its occupants enjoy, without this structure and its permanent use in the passage of railroad trains. That is the utmost extent to which his right to compensation has been sustained by the authority already referred to determining these points against the company. And as the means of access to and from the premises have not been impeded or obstructed by the structure, he was not entitled to be compensated for any impairment of that right. But his right to compensation is to-be limited to the easements of light and air, the former of which,, according to the evidence, has the most seriously been interfered with. The point to be determined by the-commissioners is the-difference in the value of the plaintiff’s property abutting upon the-street produced by the construction of the railway and the passage-of the trains upon it. The former is alleged to have obscured the-passage of light into his building, while the latter disturbs it by producing a flickering appearance. So far as his premises have been reduced in value by these facts, when the evidence shall prove-their existence, as it already has, to the satisfaction of the commissioners, he is entitled to compensation. And so he will be from either the structure, or the motion of the trains disturbing or obstructing the passage and circulation of air to and from his-premises. And, as the case has now been presented, that seems to be the utmost extent to which the commissioners had the right to-make their award. And that does not include the incidental disturbances and annoyances mentioned by the witnesses as entering-into their calculation of the reduction in value of the plaintiff's-property, or justify the allowance for them by the commissioners. As these incidents are not permanent, but accidental, depending on the force and direction of the wind and the state of the atmosphere; and as their report is identical in its amount with the figures mentioned by the witnesses, including in part these incidental annoyances, it is to be presumed that the commissioners have awarded a portion of the compensation mentioned in their report on this account. That violated the legal principle required to be observed and applied by them in ascertaining the amount and extent of compensation. And this error, as well as that first mentioned, will not only justify but require that the report shall be set aside and a further hearing be had excluding these incidental disturbances from consideration. (Matter of Boston Road, 27 Hun, 409; Matter of Lackawanna, etc., R. R. Co. v. Bennett, not yet reported, but recently decided by the General Term of the Fifth Dept.; Matter of N. Y., West Shore and B. R. R. Co., 29 Hun, 646.)

The award made should be reversed and set aside, and a further hearing of the matter should be ordered by the court.

Davis, P. J., and Brady, ,T., concurred.

Award reversed and set aside and new hearing ordered.


author: Daniels, J.:

text:
    ANDREW ALBRIGHT, Appellant, v. LUTHER C. VOORHIES, Respondent.

      Sale of cm interest in a, partnership business — what is included in it — evidence of prior ' agreements is not admissible to contradict a written one — nor can the subsequent conduct of the parties be shown.

    Prior to September 30, 1875, tbe plaintiff and defendant bad been engaged, as partners, in carrying on tbe manufacture and sale of rubber-coated harness trimmings, under certain patents owned by them. On that day they entered into a written agreement by which the defendant, for a consideration therein named, sold and conveyed to the plaintiff certain real estate; and, secondly, the undivided one-half part and interest of all the stock of finished and unfinished goods, raw materials, machinery, tools and fixtures of and belonging to the said company in and about its place of business or elsewhere, t®getlier with all and every thing, right and interest that pertains to or is in anyway a part or belonging to the said business; and, thirdly, all the right, title and interest of the said Luther 0. Yoorliies in and to the aforesaid business, the good will of the same and the exclusive right to manufacture and sell all goods made, or hereafter made, or manufactured under the said letters patent.
    At the time this agreement was made, moneys arising from the business, to the amount of $13,000, were on deposit to tbe credit of the defendant, as agent, and there were collectible debts outstanding amounting to $27,000.

      Held, that the amounts of the said deposit and of the said debts were included in the agreement and transferred thereby to the plaintiff.

      Mmendorf v. Lansing (5 Cow., 468) and Van Hagen v.Van Rensselaer (18 Johns., 420) distinguished.
    Upon the trial evidence was admitted against the plaintiff’s objection and exception, tending to show what was said or understood between the parties concerning the said bank account and the said debts, previous to or at the time of the making of the said agreement.

      Held, that this was error.
    That it was also error to admit evidence to show what was done by the parties after the agreement had been made, as evincing the existence of a design different from that appearing from the agreement itself.

      Appeal from a judgment, entered upon the report of a referee-

      A. Q. Keasbey and Wheeler H. Peekham, for the appellant.

      8. W. Fullerton, for the respondent.
   Daniels, J.:

The judgment was recovered for the sum of $85,636.79 besides costs, upon a statement and settlement by the referee of the accounts of the parties as partners, previously engaged in business at Newark, in the State of New Jersey. Their business relations commenced in April, 1868, under an agreement by. which the plaintiff, on behalf of the Rubber Coated Harness Trimming Company, and as patentee of a certain invention “ granted to the said Luther C. Yoorhies, party of the second part, the full, sole and exclusive rigid and liberty of making, using and selling the inventions named and included in the said patents, for and during the term of one year from the day of the date hereof; ” and agreed to sell and transfer to him all the manufactured goods now in possession of said company at cost price, and the said Luther C. Yoorhies agrees to purchase and take from the said company all the said goods at the said cost price, and to sell the said goods for the highest price which he can obtain, and in the manner which he shall consider most advantageous for the interest of all concerned, and to pay over to the said company one-half part of the profits derived from the sale of said goods.” And it was further agreed that the term of the contract should be extended and continued for the additional period of three years from the 1st of April, 1869, at the option of the defendant. As an inducement for the making of this agreement, the defendant became obligated to invest in the-business the capital required to carry it on, and as a matter of fact he afterwards made that investment. After the agreement was entered into the plaintiff acquired the residue of the stock of the company not then owned by him, and he and the defendant carried on this business substantially as partners, but in the name of the company, and they continued to carry it on in that manner until the 30th of September, 1875, when a further agreement was made and entered into by which the defendant, in consideration of the sum of $80,000, to be paid as therein provided, sold to the plaintiff Ms interest in the business, and also agreed to convey to him certain, real estate which had previously been used by the parties in the business. And the defendant afterwards transferred and delivered to the plaintiff the property and effects of the business, and conveyed to him the real estate mentioned and described in the agreement. After a portion of the consideration for the agreement had been paid and received by the defendant, the plaintiff, in November, •1876, commenced this action to rescind and set aside the contract made on the 30th of September, 1875, on the ground that he had been induced to enter into it by fraudulent representations made by the defendant concerning the state of the business and his own. financial relations to it. After the suit was commenced the complaint was amended by presenting the additional ground for rescinding the agreement, that the defendant, in April, 1871, had presented his petition to the District Court of the United States for the Southern District of New York, to be adjudged a bankrupt, and that he was afterwards adjudged a bankrupt; and that an assignee of his estate in bankruptcy was appointed, to whom he assigned all and singular the property owned by him, but not expressed to include his interest in this business at the time of the presentation of his petition. The statement of these facts was followed by the allegation that the defendant fraudulently concealed them from the plaintiff, who acquired no information concerning them until about the month of December, 1878. And on these facts it was asserted in his behalf that he was liable to account to-the defendant, or his assignee, only for the value of his interest in the business at the time when he was so adjudged a bankrupt. * * * [Here follows an examination entirely confined to the evidence affecting this question of the defendant’s bankruptcy.]

As the plaintiff must be assumed, in view of this evidence and finding, to have become aware of the proceedings in bankruptcy before the agreement was made on the 30th of September, 1875, he has been precluded thereby from claiming any benefit or advantage by reason of those proceedings. For this reason, as well as thes others which have been stated, the referee was right in declining ta> hold that the agreement could be set aside or annulled because of these proceedings in bankruptcy.

The evidence also in like manner failed to establish the truth of the allegations that fraudulent representations had been made to the plaintiff to induce him to enter into the agreement of September, 1875. And to the referee’s conclusions upon this part of the case no serious objections have been presented.

But while the referee should be sustained in the disposition made of that part of the case relating to the validity of the agreement, he proceeded to take and state the accounts between the parties and to ascertain the amount remaining unpaid from the plaintiff to the defendant upon the fact assumed by him under the evidence, that the agreement did not include the bank account in the business or the outstanding debts owing to the parties and uncollected at the time when the agreement was made. By this agreement the defendant undertook and agreed to sell and transfer to the plaintiff, besides the real estate already mentioned, “ secondly, the undivided one-half part and interest of all the stock of finished and unfinished goods, raw materials, machinery, tools and fixtures of and belonging to the said Rubber Coated Harness Trimming Company in and about the place of business of the said company, on and near the corner of Prospect and Ferry streets, in said city of Newark, or elsewhere, together with all and every thing, right and interest that pertains to or is in any way a part or belonging to the said business ; and, thirdly, all the right, title and interest of the said Luther C. Voorhies in and to the aforesaid business carried on by the said Rubber Coated Harness Trimming Company, the good will of the same and the exclusive right to manufacture and sell all goods made, or hereafter made or manufactured, under the several letters patent granted to the said Andrew Albright by and from the patent office of the Hnited States, for the manufacture of hard rubber coated harness and carriage trimming, except the letters patent dated February 13, 1872, No. 123,603.”

At the time when it was entered into the amount of money arising out of the business and on deposit in a bank to the credit of the defendant as agent, was the sum of $13,000 and the debts owing to the business, which were regarded as collectible, amounted to about the further sum of $27,000 ; and evidence was taken by the referee, tending on the one side to prove that this bank account and this indebtedness were not included in the written agreement, while on the other side the evidence was as direct that they were •designed to be included. The evidence first offered on the part of the defendant for this purpose was objected to by the counsel for the plaintiff, but this objection was overruled and an exception taken to the decision so made by the referee, and under this ruling •the evidence referred to appears to have followed. And, according to the report made by the referee, he was in part governed by it in his determination that the deposits and accounts were not included in the settlement. To his decision and to his omission to find and hold the contrary, exceptions were taken by the plaintiff. And if he improperly admitted this evidence, he could not legally act upon it in making his decision, and the exceptions to this final disposition •of the case were so far well taken. (Hamilton v. N. Y. Cent. R. R. Co., 51 N. Y., 100.)

At the time when the agreement of the 30th of September, 1875, was made the defendant was the owner of the rights and interests, which he then agreed to sell and transfer. And if the agreement was made and executed in such a manner as not to include the bank deposits and these outstanding accounts, that fact should be ascertained from the language of the agreement itself. If it should be so construed, then the defendant remained the owner of an undivided half of the deposits and of the outstanding accounts; while if it should not be so construed, then he had no remaining interest in them, but they had been transferred and assigned to the plaintiff. For this reason evidence of an oral agreement or understanding previously entered into was not admissible on the trial. The parties were required, legally, to stand upon their written contract as they had made it, and whatever preceding oral stipulations were entered into by them, is regarded by the law as having been •embodied in the agreement so far as they were to remain effectual ■ or controlling over the parties. It is true there are exceptions to this general rule, but neither of such exceptions have any relation to the present case, for the agreement was definitely reduced to writing, so far as it was to be operative and binding upon these parties. The rule upon this subject is that “ the written agreement merged all previous conversations and negotiations between the parties, and must be held to express the true agreement made between them upon the matters therein referred to.” (Halliday v. Hart, 30 N. Y., 474, 493.)

In Colwell v. Lawrence (38 N. Y., 71, 73) the same legal principle was followed where it was said in the opinion of the count that the rule is well settled that all conversations had prior to the-execution of a written instrument become merged in the instrument when executed.” And this was further sanctioned in Dent v. North American Steamship Company (49 N. Y., 390), where the rule was stated to be that “ facts existing at the time of the making of the contract may, therefore, be properly considered for the purpose of interpreting this language, but no evidence of the language employed by the parties in making the contract can be resorted to except that which is furnished by the writing itself.” (Id., 395.) And in Baldwin v. Humphrey (44 N. Y., 609), where it was insisted that a further agreement had been made beyond that which was reduced to writing, the court, concerning this position, held that: “ It is true that it does not contain such an express agreement, and if they had not signed it, it is doubtless true that it would have been optional with them to perform or not on their part; but they have signed the paper, and hence are bound to perform all that which it may be fairly implied from the terms, or language used, they agreed to perform. It is a rule of construction-that whatever may be fairly implied from the terms or language of an instrument is in judgment of law contained in it.” (Id., 614.) This rule clearly entitled the plaintiff to the exclusion of all evidence tending to show what might have been said or understood between these parties on either side concerning the bank account and the outstanding accounts in the business previous to or at the time of the execution of their written agreement.' It was not only improper and erroneous for the referee to receive this evidence, but after having received it, to act upon it as a part of the basis of his decision in the disposition of the case.

It was further held by him that the agreement itself, without reference to the oral proof, was not intended or designed to transfer the defendant’s interest in the bank account, or in the other outstanding accounts of the business. But this agreement was evidently made for the purpose of discontinuing the defendant’s interest in or connection with this business. His presence in it had become objectionable to the dlaintiff, who desired to obtain-the control of the business himself. These were attendant circumstances existing at the time when the agreement was entered into, and its object and design was clearly to secure these results. And the agreement itself, although not very clearly drawn or expressed, was sufficient to accomplish this end. For it not only .bound the defendant to the sale and transfer of the undivided half of the stock, finished and unfinished goods, raw materials, machinery, fools and fixtures belonging to the company in and about the place of business, but, in addition to these rights and interests, it was declared to include all and everything, right and interest, that pertains to, or is in any way a part or belonging to the said business, and also all the right, title and interest of the defendant in and tc the business, and to the good will of' the same, and the exclusive-right to manufacture and sell all goods made, or afterwards made or manufactured, under the several letters patent granted to the plaintiff. It has been insisted in support of the judgment, and that view was followed by the learned referee, that the last clause of the second article of the agreement should be construed as no-more than a general repetition of what was stated in the preceding language. And this view is supposed to have been sanctioned by Elmenderf v. Lansing (5 Cow., 468), but it is not, for there the general language of the bond was limited to the object and purposes of the decree upon which, according to its own language, it was made and executed, while here there was no such preceding standard to which reference could be made to determine the extent of the agreement intended to be entered into by the parties. The case of Van Hagen v. Van Rensselaer (18 Johns., 420), also fails to sustain this as a proper view to be taken of the language of this agreement. It is, on the contrary, an authority for a broader construction so far as the rule was followed, that the matter in hand' is always presumed to be in the mind and thoughts of the speaker, though his words seem to admit a larger sense, and therefore the generality of the words used shall be restrained by the particular occasion.” (Id., 423.) And applying this rule to this agreement requires such a construction of its language, so far as that may be-justified by what has been employed, as to carry the main object and purpose of these parties into effect, and that was to place the business in the hands of the plaintiff, as the representative or the owner of the rubber company, and to discontinue the defendant’s connections with and relations to it. The language which was ■employed and made use of to express the agreement of the parties was more adapted to this end than to add a general description of what had before been particularly expressed. For such a description it was not needed, for the preceding part of the agreement was made unmistakably clear, and to limit the last clause to what was so ■expressed would rather tend to confuse than elucidate it. The language employed was not adapted to the expression of that object, but it was to making an additional disposition beyond that previously included in the instrument. The paragraph was so drawn ■and expressed as not only to include what was specially mentioned, but to add to that whatever other right or interest there might be pertaining to, or which was in any way a part of, or belonged to the business. The phrase “ together with,” by which this addition to the paragraph was made, was an expression of the design to add more to the agreement than what had already been mentioned. It was to make an addition to it and to render it so broad as to include •everything, right and interest, pertaining to or in any way a part of •or belonging to the business. And as such it was adapted to the .general purpose and design of the parties, to be carried into effect by the making and execution of the agreement. Upon this subject the rule has been stated to be that, in all these cases the court will ■endeavor to give to the contract a rational and just construction ; but the presumption of greater or less strength, according to the language used, or the circumstances of the case, is in favor of the comprehensive over the restricted, the general over the partid1 lar, the common over the unusual sense.” (2 Pars, on Cont. [6th ed.j, ■501.) And construed in this manner, as this part of the contract seems to be required to be construed, it had the effect of transferring and assigning all the defendant’s interest in everything pertaining to or in any way a part of or belonging to the business. And the first clause of the fourth article of the agreement further ■expressed that to be its intention. The bank account did pertain to the business. It had been made up by deposits of money collected in the course of its transactions, and the outstanding accounts were a. part of and belonged to the business, and so did the bank account it.sel f.

E.-idence was given tending to show what had been done by the parties after the agreement was made evincing the existence of a different design, and facts of this description have been relied upon in favor of each of the parties supporting, as well as opposing, the construction given to the contract by the referee. But as the agreement was clear and definite in its language, it afforded no room for the admission or consideration of evidence of this description. (Hill v. Priestly, 52 N. Y., 635, 636; Morss v. Salisbury, 48 id., 637.)

The views adopted and followed by the referee in the admission of, and in his action upon, the oral evidence received to show a preceding undei-standing of these parties, and in the construction of the agreement itself were erroneous, and operated so far to the prejudice of the plaintiff as to exclude him from the right to one-half of the bant account and of the other outstanding accounts created in, pertaining to, and connected with the business. And it may be that he also erred in further following this theory and chaining the plaintiff with the money paid out on account of what is called the purchase of the Welling patent. But whether that is the case or no, it is not necessary now to determine or consider, for the errors fallen into by the referee and_ already mentioned will require for their correction another trial of the action.

It was not determined by this court in considering the right of the plaintiff to discontinue the action that the defendant was entitled to recover anything against the plaintiff upon the claims preferred by him as not included in the written agreement of September, 1S75. All that was then held, or was intended to be held, was that in the state in which the action appeared to be presented, it was not one which could be discontimied without the assent of the defendant himself. The disposition which was made of that appeal does not, therefore, stand in the way of the consideration of the rights of the parties as they appear to have been defined by the written instrument finally made and executed between them.

The judgment in the case should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, •!., concurred.

Judgment reversed, new trial ordered, costs to abide event.


text:
    ELIZABETH BICKFORD, Respondent, v. HENRI MENIER, GASTON MENIER and ALBERT MENIER, Appellants.
    Agent— impliedpower of, to borrow money — when the direction of an agent to a mbagent is admissible as against the principal.

    This action was brought against the defendants, who resided and carried on business in Paris, to recover money loaned to an agent carrying on business for them in New York. The general agent of the defendant, having charge of their business in the city of London, had appointed one Bickford to locate and build up a distinct and separate business in the city of New York, he being supplied with goods manufactured by the defendants, and being empowered to exhibit and sell them, no specific restrictions being imposed upon him.

      Held, that the court properly submitted to the jury the question as to whether Bickford did not have an implied power to borrow money, when necessary, to be used in the course of the business.

      Futfcer v. Woolsey (64 Barb., 142;, distinguished.
    Upon the trial a letter written to Bickford from the London agent, in response to one from Bickford, was read in evidence. In it the London agent stated that he did not see any harm'in Bickford’s borrowing money, and told him to be sure and send him some and keep his payments regularly.

      Held, that as Bickford was subject to the London agent’s direction in the management and conduct of the business, the evidence was admissible.

      White v. Miller (71 N. Y., 118), distinguished.
    Appeal from a judgment in favor of tbe plaintiff, entered on the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      S. P. Wash, for the appellants.

      John P. Pannes, for the respondent.
   Daniels, J.:

The verdict and judgment were recovered for the equivalent, in dollars, of £1,200 in English currency, loaned by the plaintiff to her brother Edward Bickford, who was at the time engaged in the business of, and acting for, the defendants. Her evidence as well as that given by himself, tended to show that the money had been loaned to be used in the defendant’s business, then under the control and management of Bickford, at the city of New York, and his ■evidence was that the money had actually been used in that manner. The loans are stated to have been made to the extent of £200, in November, 1878, £200 in March, 1879, and £800 in May of the ■same year.

Bickford had not been expressly authorized by tlie defendants themselves to borrow money on their account in the course of this business; and the plaintiff’s action for the recovery of the sums •averred to have been loaned was resisted, on the ground that he had no authority to make the loans on their account, and that the money in fact had not been loaned by the plaintiff. In ordinary ■cases it may be assumed, as it was held in Tucker v. Woolsey (64 Barb., 142), that an agent has no implied authority to borrow money on the responsibility of his principals. But that case materially differed from the one brought before the court by these .appeals, in the fact that the agent there was employed to look for orders in the business of the defendants, and no implied authority to borrow money on their account could be inferred from such an employment. In the present case the employment of Bickford as agent of the defendants was much broader and more extended. They resided and carried on their own business in Paris, and he was ■sent to the city of New York under the authority of their general agent, having charge of their business in the city of London, to locate and build up a distinct and separate business in the city of New York. For this object he was supplied with goods of the ■defendant’s manufacture and empowered, as he did, to open and ■carry on a store for their exhibition and sale. No specific restrictions were imposed upon him in this employment, but he appears to have been authorized to do whatever might ordinarily be transacted in founding, conducting and mauaging a business on behalf of his principals, in a country in which neither of them resided. And to do that his agency would be co-extensive with the ordinary exigencies and course of the business itself. Practically, the authority was delegated the same as that of a subordinate proprietor of the business, who, in its ordinary course, could very well borrow money to meet special emergencies arising in its conduct.

For an agent may be deemed to possess all the authority which may be required, or become necessary, to promote or secure the results intended to be attained in the business to be carried on by him by virtue of his employment.1 The implied authority of an agent can only be accurately determined, when it may not have been expressly limited, by considering the employment in which he may have been engaged, and that is ordinarily the only means of ascertaining the limits of his authority in this class of cases. In other words, his authority is limited only by the apparent extent or bounds of his agency. (Armour v. Michigan Southern R. R. Co., 65 N. Y., 111; Marsh v. Gilbert, 2 Hun, 58.)

Upon this subject it has been said that “ the nature and extent of the authority of the servant or agent are often wholly deduced from the nature and extent of his usual employment. Hence, it is that the master is bound by the acts of the servant within the-scope of the usual business confided to him; for the master is presumed to authorize and approve the known acts that are incident to such an employment,” and that every such authority carries with it, or includes In it, as an incident, all the powers which are necessary or proper, or usual, as means to effectuate the purposes-for which it was created. In this respect there is no distinction whether the authority given to an agent is general or special, or whether it is expressed or implied. In each case it embraces the-appropriate means to accomplish the desired end.” (Story on Agency [4th ed.], §§ 56, 97.)

The defendants had committed to Bickford full control over and management of their business, commenced and continued by him in the city of New York. No other person in their behalf at any time presented himself to interfere with it, and in the course of its management and transaction if it became necessary to borrow money not obtainable out of the business, the power to make such loans would seem to be included within the extent or scope of the employment. For that would authorize whatever might be necessarily appropriate to the management and conduct of the business, and loans of money might very well from time to time become necessary and be required for that purpose.

In the management and conduct of the business, Bickford was subject to the direction of Guenin, the defendant’s agent having the charge and management of their business in the city of London. Under this relation Bickford not only had the right to consult him in the business, but was, within its limits, entitled to follow hie suggestions or directions. And in answer to a letter written to him by Bickford, which was not read in the case, neither was it essential that it should be, Gfuenin, in November, 1874, wrote to Bickford that he did not see any harm in his borrowing money, and to be sure to send him some and keep his payments regularly. This letter was objected to as improper evidence to this extent; and White v. Miller (71 N. Y., 118) has been referred to by the counsel as sustaining the objection. But it does not, for the reason that this was not a mere declaration of an agent concerning a transaction which had past, but it was in the nature of an instruction which the agent was entitled to give to Bickford by reason of the general management committed to him over the business in London, and incidentally extended to that carried on by Bickford in the city of New York. And their own evidence that they gave no suck authority to the agent in London would not deprive the letter of its effect in this respect, for the direction or suggestion contained in it was within the apparent limits of the general power of superintendence given by the defendants to their London agent.

Under the evidence in the ease, it was certainly a proper subject to submit to the jury whether Bickford’s employment appeared, by the business he was authorized to carry on, to be of so enlarged a character as to include, in cases of special emergencies, the power to borrow money; and the case was submitted to the jury by the judge presiding at the trial on that view of the evidence.

The further point in dispute was also so far supported by the testimony of Bickford and the plaintiff as to make that a proper subject for the jury to consider and decide, for it was stated by him that this money was required for the purpose of the business; and that it was so used and entered in the books maintained in it. It is true that his evidence was materially contradicted by his accounts and by a letter written by him, but it was still for the. jury to determine whether he was entitled to credit or his evidence! should be rejected by them as unworthy of belief. The case was; a ot one which could be determined by the court. It depended, very much upon probabilities and inferences, and those were; required to be disposed of by the jury. In both respects the ease was one which could not be withheld from their consideration; and their verdict on this disputed evidence must be accepted as a legal result, even though a different determination by them might have been regarded as more consistent with the entire weight and effect of the evidence.

The charge of the court was in all respects as favorable to the defendants as it could in any view be expected to be, for their liability was in all instances made specially dependent upon the fact that the jury must be satisfied by the evidence, before they could find for the plaintiff, that the money borrowed was within the general scope of Bickford’s authority. And that, under the circumstances, was all that could consistently be required for the impartial submission of the fact of authority in the action to the jury. The exception taken to the letter of February 26, 1880, has not been overlooked, but that letter is regarded as equally within the superintending authority of Guenin as the preceding letter was, which was written in November, 187é. No ground has been found in the examination of the case on which another trial of the action could be legally directed. Neither of the exceptions which were taken can be held to have been well founded, and the evidence upon the disputed points in the case was sufficiently in the plaintiff’s favor to require them to be considered and decided by the jury. The judgment and the order should therefore be affirmed.

Brady, P. J., concurred.

Present — Brady, P. J., and Daniels, J.

Judgment and order affirmed.


author: Daniels, J.

text:
    ADOLPHUS D. STRAUS and Others, Appellants, v. THE TRADESMEN’S NATIONAL BANK and Others, Respondents.

      Deposit of a check for a specific purpose— duty of the bank to apply it to that purpose — when a failure to make a proper parly a defendant, is warned by a failure to raise the objection by demurrer.

    ■One Dixon having delivered to the plaintiffs his accommodation check, drawn upon the ‘defendant, notified the plaintiffs that he did not have funds in the hank to meet it, and that they must provide for its payment when presented. The plaintiffs accordingly deposited with the defendant their certified cheek for the aggregate amount of Dixon’s check and a debt due from them to him, to the credit of Dixon, for the purpose of providing means for the payment of his check, the defendant knowing of the purpose with which the said deposit was made.

      Seld, that by accepting the plaintiffs’ check, with knowledge of the purpose for which it was deposited, the defendant became bound to apply it in payment of Dixon’s cheek, and could not apply it upon an existing indebtedness due to it from him.
    'That it was not necessary for the creation of this obligation that the officers of the bank should expressly agree to so use and apply the plaintiffs’ check.
    That if Dixon should have been made a party to the action, the defect appeared on the face of the complaint and was waived by the said defendant’s failure to take the objection by demurrer.
    Appeal from a judgment entered on the dismissal of the complaint at the circuit.

      Edwin jB. Smith, for the appellants.

      Niles dé Falls, for the respondents.
   Daniels, J.

The complaint was dismissed on the opening of the plaintiffs’ counsel, on the ground that it failed to present a cause of action against The Tradesmen’s National Bank, and that Hiram R. Dixon ■should have been made a party to tlie suit. By the complaint it appeared that Dixon delivered to the plaintiffs his accommodation cheek upon the Tradesmen’s National Bank, payable to their order, for the sum of $11,775. After the check bad been received by the plaintiffs Dixon informed tbem that be did not have the funds in the bank to meet it, and that they must provide for its payment when it should be presented on the next day, by the bank to which-it had been negotiated. The plaintiffs thereupon made their own check upon the Hanover National Bank payable to the order of' one of the members of their firm, who indorsed it and procured it to be certified by the bank upon which it was drawn. This cheek was for the sum of $11,787.50. Their object in making it was to provide for the payment of the check loaned them by Dixon, and another small debt due to him. This check so made, indorsed and certified, was delivered to the Tradesmen’s National Bank to pay the borrowed check of Dixon, and the small debt otherwise due to him. The allegation contained in the amended complaint, concerning its delivery was that it was done to make said Dixon’s check good, and to insure its payment upon presentation the plaintiffs sent their said check, indorsed and certified as aforesaid, by their own messenger, to said Tradesmen’s National Bank, and there deposited their said certified check to the credit of said Dixon, solely for the purpose aforesaid; that the Tradesmen’s National Bank then well knew the fact that the plaintiffs’ said certified check, drawn to and indorsed by said Eberstadt, was only intended and deposited for the sole purpose of meeting and securing the payment of said Dixon’s check to them, and this statement as well as the others of a material description contained in the complaint, were required to be taken as true in considering its legal effect upon the motion to dismiss. From this statement the fact clearly appears that the plaintiffs’ check was deposited with the Tradesmen’s National Bank to the credit of Dixon, solely for the purpose of paying the check received from him by the plaintiffs. And the bank having so received it, understanding that to be the intent and object of its deposit, legally accepted the trust created by the transaction and became obligated to appropriate so much of the plaintiffs’ check as should be required for that purpose to the payment of the check loaned to them by Dixon. It was not necessary for the creation of this obligation that the officers of the bank should expressly agree so to use and apply the plaintiffs’ check. The obligation to do that very clearly az-ose out of the delivery of the check to the bank with notice that such was the object of its delivei-y without any concurrent promise on the part of the officers of the bank to carry that object into effect. Their conduct was such as to disclose their acquiescence in the purpose for which the check was delivered and received, and out of that the obligation plainly arose to apply its proceeds solely and specially •as the plaintiffs intended they should be applied. A trust to this extent was created in the plaintiff’s favor, and the bank had no right or authority to use any part of the proceeds of the check for a different object. (United States v. State Bank, 96 U. S, 30, 35; National Bank v. Insurance Co., 104 id., 54; People v. City Bank of Rochester, 96 N. Y., 32, 37.)

At the time of the deposit of the plaintiff’s check with the Tradesmen’s National Bank, Dixon was indebted to that institution, and to the extent of that indebtedness, being the sum of $824.28, the Tradesmen’s National Bank diverted the proceeds of the plaintiff’s •check and refused to apply them in payment of the check loaned to them by Dixon, as the bank had become legally bound to do. And for that misappropriation the plaintiffs under the authorities would be entitled to recover against the bank as the facts have been set forth in the complaint.

It appeared upon the face of the complaint, if the fact was at all important, that Dixon should have been made a party to the action, mid under the provisions of the Code the objection to the omission to join him should have been taken by demurrer. It was too late to take it by answer. Not having been taken by demurrer it was waived under the express provisions of the Code. (De Puy v. Strong, 37 N. Y., 372.)

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

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Daniels, J.;

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. AUGUST PLATH, Appellant.

      Abduction — a manual or forcible talcing is not necessa/ry to constitute the crime — » Penal Oode, sec. 282, sub. 1.
    Appeal from a judgment of the Court of General Sessions, convicting the defendant of the crime of abduction.
    The court at General Term said: “ The conviction took place under subdivision 1 of section 282 of the Penal Code, by which it has been provided that £ a person who takes a female under the age-of sixteen years, without the consent of her father, mother, guardian or other person having legal charge of her person, for the purpose of mai’riage, prostitution or sexual intercourse, is guilty of the crime of abduction.’

      “ The evidence showed that the defendant was the proprietor of 141 Chatham street, which was in part maintained as a house of prostitution. The complaining witness went to this house in the latter part of July, 1884, and remained there until near the end of August.
    “ She approached the place with a companion, and as she went inside she inquired of the defendant how much it was to see the entertainment. He replied: £ Nothing, my little dear, come in.’ She then went into the place and he 'treated them both to soda water, and asked if they were going to stay. The other girl said £ no,’ but the complaining witness said yes, and then the defendant took them up stairs. They went into a room where he showed them a dress, which he asked the witness if she wanted to put on, and both herself and companion answered ‘ no.’ They were with him in the room about twenty minutes, and during that time her evidence is that he had connection with both of them. She remained in the place, having sexual intercourse with persons- visiting .it as long as she was there.

      “ It has been urged that what was said by the defendant to the prosecuting witness did not prove that he took her into his place. But the statute does not require a manual or forcible taking to create the crime. It is sufficient for that purpose that she may have entered his place and remained there at his solicitation and by his influence.
    “ This subject has been repeatedly examined in cases arising under a statute enacted in this respect, in the same language as is contained in this pi’ovision of the Penal Code, in England, and it has there been held that a taking by physical force is not necessary, but it is sufficient if such moral force íb used as to create a willingness on the girl’s part to enter into and remain an inmate of the defendant’s house. (Regina v. Handley, 1 Poster & Pin., 648.)
    “The same point was examined in preceding cases which repeatedly held that any persuasion or inducement, controlling the action of the person designed to be protected, would be sufficient to bring the case within the language of the act. (Queen v. Biswell, 2 Cox, 279 ; Regina v. Manhtelow, 6 id., 143 ; Regina v. Kipps, 4 id., 167 ; Regina v. Baillie, 8 id., 238 ; Regina v. Olifier, 10 id., 402-) Under this construction of the law what the defendant said to the complaining witness was sufficient to sustain the conclusion of the jury, that he did take her into his house, and that she was kept there, as the indictment has charged, for the purpose of prostitution, was equally as clear under the evidence given upon the trial.” * * *

      Wm. F. Howe, for the appellant.

      JDe Lamcy Nicoll, for the People.
   Opinion by

Daniels, J.;

Davis, P. J., and Bkady, J., concurred»

Conviction affirmed.


author: Davis, P. J.;

text:
    CHARLES E. FLEMING and Others, Appellants, v. EGBERT L. BURNHAM, Appellant, Impleaded, etc. In the Matter of MEYER STEINBERGER, Purchaser, Respondent.

      Power of sale given to executors —presumption that the executors signing a deed were all the acting executors — purchaser at a judicial sale — he cannot insist upon a perfect record title.

    Appeal from an order of tbe Special Term relieving Meyer Steinberger, a purchaser at a referee’s sale in an action for partition, from completing his purchase.
    The court at General Term said: “ In this case the purchaser moved at Special Term to be relieved from his purchase at the partition sale upon fifteen grounds, stated in the schedule annexed to his affidavit. The principal one of these grounds is that no title vested in Gerardus De Forest, the purchaser of the premises by deed executed by Thomas McKie and Andrew Stark, two executors of John McKie, deceased, for the reason that the deed was executed by two only of the three executors to whom a power of sale was given by the will of John KcKie. It appears that John McKie acquired title to the premises in question in 1806, by a grant from the corporation of the city of New York. He died in the year 1828, seized of the premises, leaving a last will and testament which, among other things, provided as follows :
    “ ‘ For the more easy and equitable distribution and settlement of my estate in the manner and the proportions aforesaid, I do hereby direct and fully authorize and empower my executors hereinafter named, or such one or more of them as shall take upon him or themselves the burthen of the execution of this my will, as soon as con venient after my decease, to sell and dispose of all and singular my real estate, be the same where it may, and to make and execute to the purchaser or purchasers thereof good and sufficient deed or deeds of conveyance for the same; and to pay and apply the proceeds thereof in the manner and proportions hereinbefore by me directed concerning the same.’

      “ The will nominated four persons therein named as executors, ‘ with full power for them, or such one or more of them as shall take upon him or themselves the burthen of the ■execution of this my will, to do all and every act, matter and thing needful and necessary to carry this my last will and testament into full effect, according to the true intent and meaning thereof, in the same manner as if all of my said executors had taken upon themselves the burthen of the execution thereof.’
    “ It appears that the will was proved in October, 1S28, as a will of personal estate only ; and letters testamentary were issued to three of the executors named in it, to wit, Thomas McKie, William McKie and Andrew Stark. It was subsequently proved as a will •of real estate in 1838, but it does not appear that any further letters testamentary were issued. The original of the deed from the city ■of New York to John McKie was never recorded. The premises before his decease had been sold for taxes, and in 1832 the mayor, ■etc., of the city of New York executed a deed to Andrew Stark ■and Thomas McKie, as acting executors of John McKie, deceased, who are described in the deed as lawfully seized of the premises thereby granted and conveyed. In this deed the original deed of “the city to John McKie is recited. On the 14th of February, 1833, Thomas McKie and Andrew Stark, as acting executors of John McKie; conveyed the premises to Gerardus De Forest, by deed recorded June 6, 1833. That deed describes the grantors as acting •executors of John McKie, and recites the authority conferred by the will upon 1 the executors therein named, or such one or more ■of them as should take upon him or themselves the burthen of the ■execution of the said will, as soon as convenient after his decease, to sell and dispose of all and singular his real estate, be the same where it might, and to make and execute to the purchaser thereof .good and sufficient deed or deeds of conveyance for the same,’ and refers to the will for their authority. ' It recites the steps for the ■sale of the property at public vendue after due notice of the time and place of sale pursuant to the direction of the statute in such ■case made and provided, and that the same was struck oft to the said Gerardus De Forest for the sum of $16,150, being the highest íum offered or bid for the same. De Forest entered into possession under the deed and the premises have been in the actual possession of himself and his heirs and grantees from 1833 to the present time. De Forest died in March, 1872, as the .case states, seized and possessed of the premises, and since 1833 no person, other than De Forest, his heirs and grantees, has been in possession or claimed any right or title to the premises so far as the case discloses. At the time of the execution of the deed by the two executors above-named, William McKie was living and continued in life for several years thereafter. More than fifty years have elapsed since the-execution of the deed by the two executors claiming to be the acting executors of John McKie. Their power to execute a deed in that capacity seems never to have been doubted or questioned. It is-not disputed but that they received the consideration of the sale, to wit, the $16,150 from the purchaser De Forest; and the law presumes that they proceeded to and did distribute the proceeds of the sale according to the directions of the will, and that William McKie, as one of the children of John and as a beneficiary under the will,, duly received his share of such proceeds. Nobody interested in the-property disturbed, or sought to disturb, the title or possession of De Forest, and since the validity of the execution of the power by the executors depends upon the question whether or not in fact they were at that time the sole acting executors, the law, in our opinion, conclusively presumes upon the facts stated, after the lapse of so great a period of time that such was the case. The recitals of the deed described them as ‘ the acting executors.’ The act of selling and conveying was performed by them as such, and the distributees of the proceeds of the will having undoubtedly received the same with full knowledge of the action of the two executors, would if living be estopped from asserting that there was at the time another acting executor. If it were necessary to establish the fact that William McKie executed a formal renunciation of his office as executor, that fact after so great a lapse of time should be presumed. But that was not necessary. It was enough to satisfy the requirements of the law that for some reason he had refused or declined to act, or was incapacitated in fact or in law from acting. In Roséboom v. Mosher (2 Denio, 61), and Sharp v. Pratt (15 Wend., 610), similar questions were presented and the reasoning of those cases estab ■ lishes what accords, we think, with the duty of the courts and the good sense of the law. The presumption, after so great a lapse of time, that the acting executors were such in law and in fact is to be adopted and upheld, for the purpose of protecting and quieting the title of the purchaser-and his heirs or assigns. We are of opinion, therefore, that on this ground the title of Gerardus DeForest, and of all who have acquired title by or through him, must be declared to have been good and valid at the time of the sale in these proceedings.
    “ But upon the facts appearing in this case, the claim of title taken by DeForest under which he entered and he and his heirs and grantees have remained in possession for fifty years claiming title, was adverse to any right or interest of William McElie and his heirs, and adverse to the devisees of any right, title or interest in the premises under the will of John McKie, and .his adverse possession upon the facts appearing in this case has ripened into a good and sufficient title, so that the purchaser at the sale, so far as-relates to any question growing out of the due execution of the power, or out of the devises of the will, w^mld have acquired a good title upon the sale. {Cahill v. Palmer, 45 N. Y., 485; Ward v. Warren, 82 id., 265; Woolsey v. Morss, 19 Hun, 273.)
    •x -* * «js not correct, as stated in the opinion of the judge at Special Term, that a purchaser, at such a sale is not £ bound to run any risk whatever as to his title ’ and in effect need not complete his purchase where there is any risk upon. any of the questions raised. (See Otterbv/rg v. Strasbwrger, MS. op. Daniels, J.; Shriver v. Shrwer, 86 N. Y., 575; Relbriege v. Mamvmg, 31 Alb. L. J., 13.) In which latter case, it is said in substance, that there is no inflexible rule that the purchaser must be furnished with a perfect record or paper title, and it is not sufficient for him merely to raise a doubt as to the title, but he must show such a reasonable doubt as affects the value of the property and interferes with its sale to a reasonable purchaser and thus render the land unmarketable. This case, we-think, modifies to some extent the rule laid down in Jorda/n, v. Poillon, as quoted by this court in Argali v. Raynor (20 Hun, 267), and this case differs from that one, in the respect that from facts appearing upon the face of the record the supposed title or interest of persons not parties to the record appear to have no existence. In that case the outstanding titles apparently did exist.”

      Alexander TJum/n, for the plaintiff, appellant.

      M. L. Townsend, for the defendant, appellant.

      S. Biker, for the purchaser, respondent.
   Opinion by

Davis, P. J.;

Daniels, J., concurred.

Order reversed with ten dollars costs and disbursements, and ■order entered as directed in opinion.


text:
    NELLIE WHITLOCK, as Administratrix, etc., of JOHN McCARTHY, Deceased, Respondent, v. THE BOWERY SAVINGS BANK, Appellant.

      Deposit in a savings bank to the credit of two persons — right of the bank to pay it to the survivor — effect of the issuing of letters of administration upon a payment to the person appointed administrator, made before the letters were issued.

    Appeal from a judgment recovered upon a trial before the court without a jury.
    The recovery was had for a portion of an amount found to be owing from the defendant for deposits made with it by John. McCarthy, •deceased. The account in the book delivered by the bank was preceded by the heading, “ Dr., Bowery Savings Bank, in account with •John and Elizabeth McCarthy,” adding then a statement of the balance, amounting to $1,259.43. John McCarthy died on the 22d of February, 1877, leaving his widow surviving him. On the 20th of September, 1878, she presented the bank book at the bank and drew out the balance then standing to the credit of the account, which was $1,485, giving a receipt for the same and surrendering the book to the defendant. Before this money was drawn, and on the twelfth day of the same month, Alonzo J. Ohadsey, to whom •John McCarthy was indebted for medical services, served a notice upon tbe bank stating that he was such creditor, and forbidding the bank to pay over any of the moneys to any one except by an order •of the court.
    The widow Elizabeth McCarthy was appointed administratrix of the estate of her husband John McCarthy after the money had been drawn by her from the bank. She afterwards intermarried with another person, and an action was brought against her in her name of Elizabeth Beilly by Chadsey, to recover the amount of his account, and that action resulted in a judgment in his favor. During its pendency the administratrix died, and the present plaintiff was appointed administratrix of the estate de bonis non. After the recovery of the judgment against her in the action which had been revived for that purpose, she brought this suit against the bank to recover the balance of the deposit, and the court held that she was entitled to a judgment for such an amount as was required to pay the judgment recovered by Chadsey.
    The court at General Term said: “ By the deposits which were made the bank became a mere debtor to one or both of the depositors (People v. Mechanics', etc., Sam. Inst., 92 N. Y., 7), and its liability consisted in its obligation to pay the debt so created on demand of the party entitled to receive it. It may be assumed, as it was in the disposition of the case at the trial, that the ividow of John McCarthy was not entitled to receive the debt created by the money which he had in this manner deposited with the defendant, and that the sole fact of payment to her by the bank would not have protected it from further liability. But the further fact was proved that after she collected this debt she was legally appointed the administratrix of 1ns estate, and that appointment related back to the time of his decease, and confirmed and legalized her act in demanding and receiving payment of this debt. (Rattoon v. Overaeker, 8 Johns., 126; Priest v. Watkins, 2 Hill, 225; Matter of Faulkner, 7 id., 181.)

      “ The plaintiff, as administratrix de bonis non of the estate, was simply the successor in office of Elizabeth McCarthy, the preceding administratrix, and had no further power or authority over the estate than that which she herself possessed at the time of her decease. She succeeded to it so far as the estate was in an unsettled condition, and he]’ authority included only that which was necessary to completely settle and adjust its remaining affairs. If Elizabeth McCarthy, as administratrix, in her lifetime, had brought the action against the bank to recover the debt, the fact of payment to her before she received the letters of administration would, under these authorities, have been a complete and unanswerable defense. And as the plaintiff had no other rights than those of her mere successor, she must be in the same manner concluded by what had previously taken place, and could not again recover a debt which had in this manner been received by her predecessor in office.
    “The judgment was accordingly erroneous, and it should be reversed and a new trial ordered, with costs to abide the event.”

      QarUsle Norwood, for the appellant.

      Solomon F. Higgins, for the respondent.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Brady, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. LEWIS R. MARTIN, Appellant.

      ■Forgery — liability of a pa/rty Turning forged bonds (pot fully executed) in his possession, with intent to return them to a person from whom they were received by him.

    Appeal from a judgment of the Court of General Sessions of New York, convicting the defendant of forgery in the first degree.
    The indictment charged the defendant with having in his possession a forged coupon of what purported to be a bond issued by the Morris and Essex Railroad Company, with intent to utter and dispose of the same. The defendant claimed that he was keeping the bonds for one Spencer, under an agreement to return the same to him when requested.
    Upon the trial the counsel for the prisoner requested the court to charge that: “ If Martin (the defendant) was keeping the bonds for Spencer with a knowledge of their character, and intending to return them to Spencer when the latter desired, the defendant would not be guilty of the offense charged in the indictment.” The court declined so to charge.
    The court at General Term said: “ The appellant asserted that the bonds which were alleged'to have been forged were placed in his care by Spencer, to be returned to him upon his request, and the court was asked to charge that if he was keeping the bonds for Spencer with a knowledge of tiieir character, and intending to return, them to Spencer when the latter desired, the defendant would not be guilty of the offense charged in the indictment.
    “It must be borne in mind that the bonds were incomplete, not having been signed, and their invalidity was not affected by the ■circumstance that the coupons attached to them were signed. It must also be kept in view that the coupons, if not detached from the bonds, would be invalid, because of the imperfect character of the bonds themselves, to which they were attached and to which they related. If the bonds were issued in the condition in which they were found in the appellant’s apartment, they would be valueless for the reasons suggested, namely, that the bonds were not signed, and notice would be given by that circumstance that they were not legally issued. If the appellant was the custodian of them, us he alleged, even if he knew their character and intended to give them back to Spencer, from whom he received them when the latter desired that he should do so, he would not be guilty of any offense for merely holding them in his custody, non constat, but that they would not be signed.”
    For these reasons the judgment pronounced should be reversed and a new trial ordered.

      Peter Mitchell, for the appellant.

      Randolph B. Ma/rlme, for the respondent.
   Opinion by

Brady, J.

Present — Davis, P. J., Brady and Daniels, JJ.

Judgment reversed, new trial ordered.


text:
    SIMEON J. DRAKE, Appellant, v. R. SUYDAM GRANT and Others, Executors, etc, of WASHINGTON LEE, Deceased, Respondents.

      Bepresentations by a director of a company to induce a purchase of its bonds — upon what statements the jury may find hvm to be liable in damages, if such statements a/re false.

    Appeal from a judgment recovered on a trial at the New York Circuit, and from an order denying a motion for a new trial.
    The action was brought to recover damages which the plaintiff alleged he had sustained in the purchase of ten bonds of $1,000-each, of the Long Beach Improvement Company. These bonds were sold to him through the agency of the testator, but before the sale took place and to induce the plaintiff to purchase the bonds, it is alleged that the testator made fraudulent representations to him as to the financial condition of the company, and in thát manner induced him to become the purchaser of these bonds. The evidence tended very directly to establish the fact that the company was not in solvent circumstances at the time when the negotiations took place, which were followed by the sale of the bonds, and the plaintiff’s wife, who was the only witness examined upon this subject, related what she stated that she remembered concerning the interview, dn consequence of which the plaintiff purchased the bonds. Her statement, as embodied in the case, was that: “ During the evening Mr. Lee asked Mr. Drake how he liked Long Beach. £ He said he was very much pleased with it.’ Mr. Lee then remarked: ‘ It’s a delightful place, and you no doubt want to come here every summer with your family, and you ought to have some of these bonds — the first mortgage Long Beach Improvement Company’s bonds.’ Mr. Drake replied ‘ that he did not know anything about the bonds— about the investment.’ Colonel Lee said, £ you can rely upon me; I am a director and know all about it; ’ or, in other words, that he had the £ inside track;’ that was the expression he used; he also said, £ they are just as good as government bonds; that the company owned the beach for seven miles, and that it was all in good condition ; some interest had already accrued upon them.’ He said also that the company was in good financial condition. He said: £ I will let you have ten bonds for $9,000; ’ ray husband replied that he had some money that he could invest, and that if he would assure him that the bonds were all right and the company in good condition he would take them, and Mr. Drake remarked: ‘ I will take ten and let Mr. Dos Passos have five of them.’ Mr. Lee replied, ‘No; I want Mr. Dos Passos to have ten too.’ Mr. Drake said to Mr. Lee, ‘ send the bonds to my office and you cau have a check any time you have a mind to send them,’ and Mr. Lee said he would send them at once. Mr. Lee also said in that conversation that some interest had accrued, and they would continue to pay it; he said the company would continue to pay it. Mr. Drake told Mr. Lee that he knew nothing about the condition of the company, and Mr. ‘Lee replied: ‘You can rely upon my statements; I know all about it.’ ”
    The court at General Term said: “ If these statements were untruthful, and were made to deceive the plaintiff and indued him to make a purchase which he otherwise would not have made, he was entitled to recover the damages sustained^by him in thd transaction. (Indianapolis, eto., JR. JR. Go. v. Tyng, 63 N. Y., 653; Hubbard v. Briggs, 31 id., 518; Taylor v. Quest, 58 id.,'262.)
    “ The testator was an active director in the company whose bonds were purchased by the plaintiff, and may well be presumed to have understood the financial condition of the company at the time. (Gillct v. Phillips, 13 N. Y., 114; Yates v. Alden, 41 Barb., 172.) The plaintiff, according to the testimony of the witness, wholly relied upon the representations and statements made to him for his information as to the financial condition of the company, and he had the right to do that from the confident and absolute manner in which the statements of the testator were made. At the close of the trial the court was requested by the defendant to charge, and it did charge: ‘ That statements as to the value of the bonds that they were as good as government bonds, though false, are not actionable, and must not be considered by the jury.’ That I charge. That is an opinion — that they were as good as government bonds. Plaintiff duly excepts.
    “ This direction withdrew what was relied upon as a material misrepresentation made by the testator to the plaintiff in the course of their negotiations. It was not as the court assumed it to be, a mere opinion expressed by the testator, but it was a fact asserted by him that the bonds which were offered to the plaintiff were as good as government bonds. The intention was to impress the plaintiff feh the conviction that they could safely be made the subject of Investment on his part, and that the testator knew that to be their character. It accordingly differed from the representation considered in Chrysler v. Ganaday (90 N. Y., 272). But even if it [fid not, the representation or statement should not have been withdrawn from the consideration of the jury. But the evidence tended to prove that it was understood at the time when it was made that the plaintiff should and did rely upon this as well as the other statements in making the purchase which he made of the bonds, and that he himself possessed no other knowledge or information than was conveyed in this manner of the financial value of the bonds. And when ‘there is a want of knowledge by the vendee and the sale is made in entire reliance upon the representations made,’ the vendor may be held responsible for damages to which $.e vendee may be subjected in that manner. (Id., 279.) Certainly, as a material part of the plaintiff’s case, this representation should not have been withdrawn as it was from the consideration of the jury. They had evidence before them tending to prove that the representations were materially untrue, and that the testator probably understood that to be their character, and with that evidence the plaintiff had the right to have each of the representations relied upon by him considered by the jury in their deliberations upon the case. This right was defeated by withdrawing this representation from the consideration of the jury, and to correct the error intervening in that manner in the trial.”
    “ The judgment and order should be reversed and a new trial ordered, with costs to abide the event.”

      John R. Dos Passos, for the appellant.

      Horace W. Fowler, for the respondents.
   Opinion by

Daniels, J.;

Davis, P. J., and Brady, J., concurred.

Judgment and order reversed and new trial granted, costs to abide event.