author: Hatch, J.

text:
    James Carter, App’lt, v. Charles J. Hodge et al., Resp’ts.

      (Buffalo Superior Court, General Term,

      Filed February 2, 1894.)

    1. Appeal—Undertaking on stay.
    Where an executed undertaking is passed upon and adopted by the judge at the time of granting a stay on appeal, it is given in pursuance of the statute authorizing such security.
    ■2. Same.
    Such undertaking is good as a common law agreement, though not in accordance with the statute.
    8. Same.
    A prior undertaking, which has performed its office, does not cease of effect because another is ordered executed.
    Appeal from a judgment dismissing the complaint on its merits.

      Edward T. Durand, {George W. Gothran, of counsel), for app’lt; Henry S. Thayer, for resp’ts.
   Hatch, J.

The plaintiff had a verdict against the Buffalo Carette Company, and the latter moved for a new trial upon the minutes of the court, which was denied. Thereupon plaintiff entered judgment and issued execution thereon, and delivered it to the sheriff for enforcement, who made a levy upon the property ■of defendant thereunder. Pending the levy, the Carette Company caused to be executed an undertaking, with the defendants herein as sureties, and at the same time appealed to the general term from the order denying the motion for a new trial. The undertaking was filed, with the notice of appeal, in the office of the clerk of the court, and a copy of the same was served upon the attorney for the plaintiff. Upon an affidavit setting forth these facts and others, together with a notice of motion asking for a stay of proceedings on the judgment pending the appeal, the attorney for the Carette Company applied to and obtained from the county judge of Erie county an order staying all proceedings on the part of the plaintiff and the sheriff to collect or enforce the judgment until the “hearing and determination of said motion, not exceeding twenty days” from a specified date. A copy of this order was served upon the sheriff, and the motion was brought to a hearing at a special term of this court, which thereupon made an order that execution on the judgment be stayed, pending the appeal taken, upon the appellant filing within two days “an undertaking that shall be deemed sufficient to protect the respondent upon the staying of the execution of said judgment.” Thereupon a new undertaking was executed by the same sureties, and served. This undertaking was in all respects similar to the first, except that it contained the words, “for the purpose of staying execution of said judgment and order.” Plaintiff excepted to the sufficiency of the last undertaking and the sureties therein who failed to justify. The order appealed from was affirmed at general term, and judgment of affirmance was entered with costs. Execution having been returned unsatisfied, plaintiff brings this action to recover the amount of the judgment and costs of the sureties in the first undertaking.

The court below held that the undertaking was not in conformity to any requirement of the statute, was without consideration as a common-law agreement, and was therefor void. A notice of appeal from the determination brings this case here

It is conceded by both parties that the second undertaking by reason of the failure of the sureties therein to justify, became inoperative for any purpose, and such undoubtedly is the law. Manning v. Gould, 90 N. Y. 476. When' defendant appealed from the order denying its motion for a new trial, execution had issued upon the judgment. It was not essential to a review of the order that any security should be given. Code Civil Proc § 1351. But it was essential, in order to secure a stay of execution, that an undertaking be given. This was undoubtedly in the mind of the attorney when he caused to be executed the undertaking, and filed and served the same, with his notice of appeal, as his object then was to procure a stay. The section of the Code above cited providestiiat a court or a judge thereof may make an order directing a stay, upon such terms, as to security or otherwise, as justice requires. When the undertaking was executed there was no order granting a stay, and none which" prescribed what the security should be, if a stay should be granted. Consequently, in the sense that it was in pursuance of no order made by a court or judge, it was not given in pursuance of any statute, tiut was the voluntary act of the party. Had it so remained, it would encounter little trouble. It was executed, however, for a purpose, and' that purpose was to make it a basis for a stay of proceedings on the judgment, pending the appeal, and it was in pursuance of such purpose that it was presented to the county judge as a basis for a stay. Thg county judge possessed the authority to make the order prescribed in section 1351, (Code Civil Proc. § 241,) and when he made the order granting the stay it was made to appear that this undertaking was given for the purpose of protecting, as it did in fact protect, the rights of plaintiff under the judgment. As the county judge had the authority to prescribe what security should be given before granting the stay, he also had authority to pass upon and adopt the security presented as he did j and when that was done this undertaking became as though executed in pursuance of an order made by the county judge upon an application for a stay, and, as such, was given in pursuance of the statute authorizing such security. It did in fact form the basis of staying all proceedings under the judgment for a period of 10 days. Having accomplised its object, does liability attach ? It was held in Wing v. Rogers, 138 N. Y. 361; 52 St. Rep. 888, that liability was to be determined upon the efficacy of the undertaking to accomplish the result contemplated when the undertaking was given. This seems to be authoritative of the question presented. I am also of opinion that this undertaking is good treated as a common law agreement. It produced an order staying plaintiff’s proceedings upon the judgment,and consequently was founded upon a good consideration. Goodwin v. Bunzl, 102 N. Y. 224; 1 St. Rep. 405 ; Wing v. Rogers, supra. Besides, it was under seal, which imports a consideration. Code Civil Proc. § 840. Ho evidence was offered to overcome this presumption, and it must be treated as conclusive here. Best v. Thiel, 79 N. Y. 15. The terms of the undertaking constitute an agreement upon the part of the sureties to pay the sum directed to be paid by the judgment if the order appealed from was affirmed. When the order was affirmed, its effect was to make operative the right to enforce the judgment, and it was that judgment which the sureties agreed to pay, and is clearly embraced within the terms of the undertaking. The last undertaking did not .have the effect of superseding the prior one, The failure of the surities to justify left this undertaking as though it had not been given, but there was nothing in the order made upon the motion for a stay which affected the prior undertaking. That simply required security which should be deemed satisfactory, the parties had the right thereunder to accept the undertaking already in existence, and it seems that this is what they did, as, the second undertaking failing, no attempt was made to enforce the judgment until the affirmance of the order. The Code (§ 1351) contemplates that there may be more than one order for the security made, but it does not provide that, where one undertaking has performed its office, it shall cease of effect because another is ordered executed. If the undertaking performs its office and accomplishes the purpose for which it was given, then liability attaches according to its terms, and it is not necessary that it should operate during the entire period of the appeal. As we have already seen, this undertaking was effective, and accomplished the purposes intended. Liability consequently attached, and plaintiff now becomes entitled to enforce it. It follows that the judgment appealed from should be reversed, and a new trial ordered, costs to plaintiff to abide event.


source: Caselaw Access Project

license: Public Domain

text:
    Parks, App’lt, v. Jacob Dold Packing Company, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed February, 1894.)

    1. Intebstate Oommebce Act—Shifpeb.
    The prohibitive sections of the Interstate Commerce Act apply to shippers and their agents.
    2. Evidence—Judicial Notice.
    The court will take judicial notice of the geographical location of large and universally known commercial centers, and that transportation by railroad from such places in other states is over lines outside this state.
    3. Same—Pabol.
    What is done by the parties under the contract may be resorted to for the purpose of aiding the interpretation.
    4. Contbact—Validity.
    The rule that, where the answer does not allege that the contract is illegal, the question is not raised, does not apply when, from plaintiff’s own testimony, the contract appears to he illegal.
    • Appeal from a judgment entered upon a decision directing a non-suit, dismissing plaintiff’s complaint, and from an order denying a motion for a new trial made upon the minutes of the court.

      M. Filmore Brown, for app’lt; Sherman S. Rogers, for resp’t.
   Hatch, J.

This action is brought to recover damages for a breach of contract of hiring. The plaintiff was the only witness sworn, and his testimony tended to establish that he entered into a verbal contract with the defendant whereby he agreed to render service for the defendant for the period of one year; that he entered upon said employment January 18, 1892, and continued to work thereunder until the 15th of March, 1893, when, without fault on his part, he was discharged by defendant. The only question presented upon this appeal relates to the validity of the contract of employment, the court below having held it void. The defendant carries on an extensive business in packing and shipping meats, and the services required of plaintiff related to the transportation department. Using plaintiff’s language, the material part of the contract is found to be this: “He (Bold) said that the position that he would create would be the transportation department, something he had never had before ; he explained to me what he wanted me to do; he wanted me to handle all railroad matters and work rebates with the railroad companies and save him freight money ; he said that he had been robbed by the railroad companies for about thirty years. * * * I was to get three thousand dollars for one year. * * * I had entire charge of the transportation department, a position known as general manager of the transportation department; my work was to direct the routing of shipments and working the different railroads to get the lowest possible rates, either openly or otherwise, and to save all the money in freights I possibly could, both in car lots and less than car lots.” On cross-examination plaintiff stated: “My first talk with Mr. Bold I told him in a casual way about my capacity to get freight rates below the tariff. I went to Mr. Bold’s to handle the transportation department; that was to be my main business; the main feature of that business was getting freight rates properly adjusted, cutting them down low, get a lot of railroad companies and get the best of them. * * * I was hired to take entire charge of the transportation department, whether it was below the tariff rate, to see that the cars came in promptly and that they wen t out promptly. Every railroad has a right to carry at schedule rates ; I was to use my supposed ability to get special rates from the railroad companies. I knew what the'law was on the subject ; it has never been proved that it was a felonly under the law to be getting cut rates; I knew to a certain extent that the statute made it a felony.” There is nothing left uncertain in the construction of this language or the contract or plaintiff’s understanding of it, for he says its main feature was to cut freight rates and get the best of railroad companies, and in its execution his testimony shows that he made arrangements with various railroad companies for the shipment of freight; that the defendant paid full tariff rates to the roads, and the latter paid to plaintiff a rebate, which he turned over to defendant, which amounted during the year of his employment to the sum of $5,285. Plaintiff seems to have faithfully fulfilled his undertaking, stated at the beginning of his service, that he would more than save his salary to his employer. It seems unfortunate for him that a somewhat stringent statute hampers the complete exercise of his abilities, and cuts off the pecuniary emoluments derived therefrom. The Interstate Commerce Act, so called, provides, among other things, that every common carrier subject to the provisions of the act shall make, publish and print a schedule of tariff charges for the transportation of freight and passengers between the several states, which shall apply to all persons and corporations under similar conditions and circumstances. § 2 of said act provides; “That if any common carrier subject to the provisions of this act shall, directly or indirectly, by any special rate, rebate, drawback or other device, charge, demand, collect or receive from any other person or persons for doing for him or them a like and contemporaneous service in the transportation of a like kind of traffic under substantially similar circumstances and conditions, such common carrier shall be deemed guilty of unjust discrimination, which is hereby prohibited and declared to be unlawful.” Supp. U. S. Statutes, vol. 1, p. 529.

It is argued that these provisions relate only to the common carrier and not to the shipper; that at common law it was not against public policy to contract for shipment with rebate on freights, so it is now no offense for the shipper or his agent to induce the carrier to violate the law, in consequence of which the present contract is lawful in character and provides for meritorious service. The case relied upon to support this construction, Root v. L. I. R. R. Co., 114 N. Y. 300, 305 ; 23 St. Rep. 226, discredits it, for in that case the rebates .provided for had consideration in the use of a coal pocket and docks, constructed by plaintiff’s assignor, and it was held, taking all the circumstances into consideration, a question of fact whether such rebates constituted an unjust discrimination against other individuals to the injury of their business. But the cout’t says: “ Had this provision (for rebates) stood alone, unqualified by other provisions, without the circumstances under which it was executed, explaining the necessity therefor, we should be inclined to the opinion that it did not provide for an unjust discrimination.” Whether the contract could be upheld at common law or not is of little consequence, for by § 10 of the interstate commerce act it is made a misdemeanor for the shipper or his agent to solicit or induce the carrier by any means to violate the provisions of the act by cutting the established tariff rate. Supp. U. S. Statutes, vol. 1, pp. 686, 687.

Consequently, by its express terms the act is made to apply to the plaintiff as though he were named in the prohibitive sections. Treating the act as malum prohibitum solely, defendant is not aided, for as to the forbidden acts the parties are in pari delicto and each are subject to the penalties of the statute. Under such circumstances there can exist no enforcible contract Tracy v. Talmage, 14 N. Y., 183-190; Knowlton v. C. & E. Spring Co., 57 id. 518.

This contract is an entire one; no part is severable from the other; its main object was to secure an unlawful preference in procuring freight reductions from established charges; this element was the one of value contemplated by the parties to it, and as the service contemplated was illegal, and known by both parties to be so, the contract is equally so, and the law will not enforce it, or permit a recovery of damages based upon its violation. Jackson v. Walker, 5 Hill, 27; Foley v. Speir, 100 N. Y., 552-558; Pars. Cont. [8th ed.] 456.

It is further said that there is nothing in the contract showing that it was the intention of the parties to secure rebates from regular schedule tariff rates of railroads carrying freight outside the state of New York. The rule is recognized that it is the duty of the court to give to the contract an innocent interpretation when possible. Here the evidence excludes the interpretation contended for. The contract was to work railroads by securing a less rate than the schedule charge; in its performance the plaintiff states that on March 5, 1892, he “ arranged with the Clover Leaf road; the true name of the road is the Toledo, St. Louis and Kansas City road; they were to pay me four dollars for each single deck of hogs, and six dollars for each double deck of hogs from Kansas City to Buffalo; on March 15, 1892, I arranged with the same road to pay me seven and one-half cents per hundred pounds on dressed hogs in car lots from Wichita and Kansas City to Buffalo; that would vary from $15 to $20 a car.” Kansas City and Wichita are large and universally known commercial centers in this country; the court will take judicial notice of their geographical location, and that transportation by railroad from, these places is over lines outside the state of New York. Hunter v. N. Y., O. & W. R. R. Co., 116 N. Y., 615; 27 St. Rep., 729; Langfear v. Meistier, 89 Am. Dec., 658, note, 678, 679; Pearce v. Langfit, 101 Penn. St., 507; The Peterhoff, Blatchf. Prize Cases, 521, 522.

What was done by the parties under the contract may be resorted to for the purpose of aiding the interpretation. And the evidence in this case shows clearly that the railroads from which the rebates were to be obtained were understood to embrace roads outside the state, and as we have already seen the contemplated reductions were to be less than the regular tariff schedule; it is, therefore, brought within the prohibitive terms of the interstate commerce act.

It is also contended that the answer does not allege that the contract is illegal, and, therefore, the question is not raised. But this rule does not apply when, from plaintiff’s own testimony, the contract appears to be illegal. Honegger v. Wettstein, 94 N. Y., 252.

It is quite apparent that the parties, plaintiff at least, knew the service to be rendered was in violation of the interstate commerce act; that trouble would ensue if the details were known to the Federal authorities, an apprehension which the evidence discloses was well founded; under such circumstances a clear case is presented for denying the relief asked for.

The judgment and order appealed from is, therefore, affirmed, with costs.

Titus, Oh. J., concurs.

Judgment and order affirmed, with costs.


author: Per Curiam.

text:
    American Horse Exchange, Limited, Resp’t, v. Jacob Strauss et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    1. Attachment—Inconsistent grounds.
    When two inconsistent grounds are stated, and the facts cannot establish both, the attachment will be vacated.
    5. Same—Affidavit.
    An affidavit, which alleges only conclusions of the affiant, but does not set up the facts on which such conclusions rest, is insufficient.
    Appeal from an order denying a motion to vacate an attachment.
    The allegations in plaintiff’s affidavit in regard to the fraudulent actions on the part of the defendants are as follows :
    And this deponent further says that the defendants, Jacob Strauss and Max Hamburger, are natural persons, and that they have removed, and are about to remove, property from the state, with intent to defraud their creditors, and have assigned and disposed of, and secreted, and are about to assign, dispose of, and secrete, property with the like intent; and deponent further says that the facts in regard to this allegation are that the said defendants are the owners of divers horses numbering in all about fourteen, which horses are the same horses which have been kept by the plaintiff, as hereinabove mentioned and set forth, and for the keep and care of which the aforesaid sum of $1,686 is due as aforesaid; and that the said defendants surreptitiously removed, from time to time, all the said horses from the stables of the plaintiff, while the plaintiff had a lien upon the said horses for their keep, and having recently advertised the same for sale in the public papers, in none of which is the name of any person given as. owner of the horses, and in one or more of which papers the said horses are mentioned as being horses “formerly the property of Messrs. Jacob Strauss & Co.,” the said defendants conducting business under that name, and the said defendants now claiming,., or causing it to be understood, that the said horses are now owned by a brother-in-law of one of the defendants ; and that from these facts, and investigations which deponent has made, he has ascertained, and now states, that the said defendants are about to sell and dispose of the said horses in such manner as to make the. public believe that that the same are not their property, but belong to some other person or persons, and so that they may receive the proceeds, thereof in a secret manner, and avoid the payment of the debts due from them to their creditors, including the aforesaid sum due to the plaintiff as aforesaid.

      S. Feuchtwanger, for app’lt; F. B. Gaudier, for resp’t.
   Per Curiam.

This motion is based upon various grounds,, only two of which it is necessary to consider. The first is that there are two grounds of attachment stated, each of which is inconsistent with the other, and the same facts could not establish both propositions. It is impossible for us to tell which ground the judge who granted the attachment considered to be established by the affidavits. In the next place, the allegations in the affidavit in regard to fraudulent action upon the part of the defendant are entirely conclusions of the affiant, no facts whatever being set up on which such conclusions rest. These facts must be set up, in order to enable the court to determine whether the conclusions derived by the affiant are well founded. The order should be reversed,, with $10 costs and disbursements, and the motion to vacate attachment granted, with $10 costs.


author: Per curiam.

text:
    Alexander McK. Jones et al., App’lts, v. Caroline Ogden Jones et al., as Trustees, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894 )
    Deposition—Interrogatories.
    Interrogatories, not clearly frivolous,, will not lie stricken out for that reason.
    Appeal from an order striking out certain interrogatories to be propounded to a witness proposed to be examined under a commission.
    The following are the interrogatories stricken out:
    Eighth interrogatory: Have you compared said will and codicil with the opinion of Shope, J., aforesaid, with a view of determining the precise construction placed. by the supreme court of Illinois upon the trust created by the said will and codicil for the benefit of the children of William Ogden Jones, deceased, and, if so, state the precise construction placed by the supreme court of Illinois upon those portions of the will and codicil creating said trust in said opinion ? Ninth interrogatory: Please state if a trust of the character of that under discussion is a valid trust under the laws of the state of Illinois, and was so under the laws of that state at the time of the death of the testatrix. Tenth interrogatory: Please state if you have examined the decree of the circuit court of Cook county, 111., entered in said suit on the fourth day of January, 1887, and thereafter affirmed by the supreme court of Illinois, and, if so, state what powers and duties of the trustees of said one-fifth of the estate of Mrs. McCagg are defined to be under said decree. Eleventh interrogatory: Have you read the pleadings in this cause, and are you familiar with the same ? Twelfth interrogatory: What do you understand to be the scope and purpose ot this action, and the precise contention of plaintiffs ? Thirteenth interrogatory: Does the law of the state of Illinois admit of any extension of the trust involved and adjudicated by the supreme court of Illinois in said suit beyond the construction given by the decision of that court? Fourteenth interrogatory: If you shall have testified that there is nothing in the law which would warrant a contention that the extention of the trust in said suit beyond the construction given to it by the supreme court, give any authorities you can for such testimony. Fifteenth interrogatory: Are or are not the defendant trustees amenable to the courts of the state of Illinois for the proper and lawful conduct of their duties as such trustees ? Sixteenth interrogatory: If the defendant trustees are amenable to the courts of Illinois, or subject to the control of a court of that state, what effect would a decree made by a court of New York have upon the property forming the subject of the trusts and upon the rights and persons of the trustees ?

      Wülard Parker Butler, for app’lts■, E. W. S. Johnston, for resp’ts.
   Per curiam.

Without passing upon the admissibility of the evidence which may be adduced under these interrogatories, we do not think that the 8th, 9th, 13th, 14th, 15th, and 16th interrogatories are so clearly frivolous that the defendants should be deprived of the opportunity of securing the testimony, that they may offer it at the trial, and, if excluded, have the benefit of an exception. We think, therefore, that the order appealed from should be reversed in respect to the 8th, 9th, 13th, 14th, 15th, and 16th interrogatories, and the same should be allowed, without costs to either party upon this appeal.


author: Van Brunt, P. J.

text:
    Henry P. Rogers et al., as Executors, etc., Resp’ts v. Frank Y. Maguire et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

      1. Action—Form.
    In determining what is the form of action intended to be brought, it is proper to consider the prayer for relief.

      3. Same.
    Where the necessities of the case require a party to come into a court of equity, allegations, which would otherwise be held to he those of an action at law, will be treated as belonging and appropriate to an equitable action.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.
    The opinion of Mr. Justice Andrews at special term is as follows :
    It was held in McGregor v. McGregor, 35 NT. Y. 218, “that one coexecutor may maintain an action in equity against another co-executor to compel the payment of a debt owing by him to the estate.” The learned counsel of the defendants, as I understand it, concedes that this decision has never been overruled nor questioned, but his contention is that the action at bar cannot be regarded as one of equity. Under the authorities, this contention is not well founded. It is true that, leaving out of consideration the prayer for relief, the complaint sets forth a cause of action at law to recover money alleged so have been loaned by the plaintiff’s testator to the defendants. It is to be noticed, however, that the complaint does not ask for any money judgment against the defendants. The prayer for judgment is as follows: “Wherefore these plaintiffs pray judgment, adjudging that the defendants are indebted to these plaintiffs to the amount of such indebtedness, and granting to these plaintiffs such other or further relief as may be just and equitable in the premises, together with the costs of this action.” The reason for the rule of the common law that no action lies by an executor or administrator against his corepresentative, and the reason why courts of equity entertain jurisdiction of actions of that character, is clearly stated in Smith v. Lawrence. 11 Paige, 206, in which case the chancellor said: “In the common law courts one executor or administrator cannot bring a suit against his coexecutor or coadministrator, to recover a debt which was due from the latter to the testator or intestate, for each has the same right to the possession of the fund, which belongs to both as the representatives of the estate,' of which they are joint trustees ; and the effect of a common-law judgment in favor of one against the other would be to give to the former the right to issue an execution and transfer the whole fund to his own, exclusive possession. A court of equity, however, from its peculiar mode of administering justice, can settle the questions as to the fact of indebedness, and as to the amount due from one of the executors to the estate of which both are trustees, whenever the decision of this question becomes necessary, without changing the possession of the fund. When the amount of such indebtedness is ascertained, the court may make such disposition of the fund as justice and equity shall then require.” In that case one executor cited his coexecutor to account before a surrogate, and the latter objected to the jurisdiction of the surrogate to call upon him to account upon the application of his coexecutor. The surrogate sustained the objection, but his decision was reversed by the chancellor. In Decker v. Miller, 2 Paige, 150, an action in equity was maintained, which was brought by two of the executors of one Egbert against their coexecutor, to compel payment of two bonds given by the defendant to the testator. Of course, an. action upon the bonds would have been an action at law, and under the rule above mentioned could not have been maintained by two executors against their coexecutor. A case which, if possible, is still more clearly in point is that of Wurts v. Jenhins, 11 Barb. 546. This was an action in equity, brought by two executors against their coexecutor to compel the defendant to pay the sum of $1,345, which it was alleged he owed the testator at the time of his death for goods sold and delivered. The defendant demurred to the complaint upon various grounds, and, among others, upon the ground “ that the plaintiffs have not legal capacity to sue, being coexecutors with the defendant.” Harris, J., speaking for the court, delivered an opinion, which was concurred in by his associates, reviewing the authorities, and expressly deciding that, although the plaintiffs could not maintain an action at law to recover said sum of $1,345 for goods sold and delivered, they could maintain an action in equity to have the question determined whether the defendant was indebted to the estate in that sum, and to obtain such other relief as a court of equity could give under those circumstances. These authorities are decisive of the present case, for they conclusively establish the doctrine that where there are several executors of an estate, and it is claimed that one of their number is indebted to the estate, while part of the coexecutors cannot maintain an action at law, which, if successful, would result in the transfer of the possession of the fund in dispute from the defendant to the plaintiff, they may maintain an action in equity to have the question determined whether the defendant coexecutor is indebted to the estate, and to obtain such other relief as may be appropriate to the case. Nor is is necessary that the defendant should be described as executor. What was said in McGregor v. McGregor is applicable to the present case : “ As the cocxecutor is made the defendant to the suit, and is brought in by actual service, it is not necessary that he be described as executor. Indeed, it may be questioned whether such description would have been proper, as the object of the suit is to revive an action in which relief was sought against him in his individual character only.” In the case at bar no relief is sought against the defendant as executor. The object of the action is to have it determined whether the defendant as an individual is indebted to the estate of which he is an executor, and, if he is so indebted, to obtain such relief against him individually as a court of equity can give under the circumstances. The demurrer must be overruled, with leave to the defendant to answer on payment of costs.

      J. F. Miller, for app’lt, T. D. Kenneson, for resp’t
   Van Brunt, P. J.

The complaint in this action alleges the death of one N. P. Rogers at the city of New York, leaving a last will and testament, wherein he appointed the plaintiffs and the defendant Nathaniel P. Rogers as his executors; that said will was duly admitted to probate, and letters testamentary issued thereon to the plaintiffs and the defendant N. P. Rogers; that the defendants Frank Y. Maguire and N. P. Rogers were at the times mentioned in the complaint copartners doing business in the city of New York under the firm name of Maguire & Rogers; that the deceased, N. P. Rogers, loaned to the said Maguire & Rogers, as such copartners, divers sums of money, amounting in the aggregate to the sum of $50,000, which said several sums they promised and agreed to pay to the testator; that at the time of the death of said testator the defendants Maguire & Rogers wholly failed to repay such sums, or any portion of the same, although such sums were at such time, and ever since have been, wholly due and owing by said defendants to the testator; and judgment was prayed adjudging that the defendants were indebted to the plaintiffs, and the amount of such indebtedness, and for such further and other relief as might be proper. The defendant Rogers demurred to the complaint upon the ground that it appeared upon the face of the complaint that there was a defect of parties plaintiff in the omission of N. P. Rogers as an executor of the last will and testament of N. P. Rogers, deceased.

We think the decision of this appeal might very well be left upon the opinion of "the learned court below. But such opinion is criticised, in that it is claimed that error was committed by the court in considering the prayer for relief, together with the other allegations of the complaint, in determining whether the action was one in equity or an action of law. And the cases of Hale v. Omaha Bank, 49 N. Y. 636, and Bell v. Merrifield, 109 N. Y. 207 ; 14 St. Rep., 796, are cited in support of that proposition. But all that was decided in those cases was that the form of the relief asked in the complaint is not controlling in determining the nature of the action,—a very different thing from holding that in determining what might be the form of action which was intended to be brought it was improper to consider the prayer for relief. In the case at bar the learned court held that an action at -law cannot be maintained by one executor against another, but that an action in equity may be maintained by one executor against another to establish a debt owing by the defendant executor to the testator, and to determine the disposition of the funds thus created. The defendant executor, together with his copartner, is alleged to have been indebted to the testator. This debt the defendant executor was bound to pay to the estate of the testator, and the only way in which his liability could be determined is by an action such as this, in which the debt may be established, and its proper disposition adjudicated upon. It is undoubtedly true that similar allegations in an action between other persons would be held to be an action at law. But, where the necessities of the case require a party to come into a court of equity, these allegations will be treated as belonging and appropriate to that class of actions, as was held in the court below. We think that the principles declared in the case of McGregor v. McGregor, 35 N. Y. 218, authorize the bringing of such action. The judgment should therefore be affirmed, with costs.

All concur.


text:
    Edward Gustaveson, Resp’t, v. Ira L. Otis et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed Jannary 12, 1894.)

    Pleading—More definite.
    Where the complaint, in an action for use and occupation, describes the premises as situated on the sides of three streets in the city of New York, a motion to make it more definite and certain in this respect will be granted.
    Appeal from an order denying a motion to make the complaint more definite and certain.
    The complaint is as follows:
    The plaintiff complains of the defendants, and respectfully shows to this court that, at all the times hereinafter mentioned, the defendants were copartners in trade, under the name of Otis & Gorsline; that heretofore, and at all the times hereinafter mentioned, this plaintiff was the tenant and occupant of certain premises in the city of Hew York, situated on the north side of 139th street, east side of Rider avenue, and west side of Morris avenue; that heretofore, and during the period on and between April 1, 1892, and the 1st day of February, 1893, the defendants occupied certain portions of the premises above described for the purpose of storage for certain sewey pipes by permission of this plaintiff, and as his tenant; that the fair and reasonable value of the use of the said premises for that period was the sum of one hundred and fifty dollars; that, though duly demanded, no part of the same has been paid. Wherefore, plaintiff' demands judgment against the defendants for the sum of one hundred and fifty dollars, with interest thereon from the 1st day of February, 1893, together with the costs and disbursements of this action.

      Q. A. Strong, for app’lts; A. H. Smith, for resp’t.
   Per Curiam.

So much of the motion as asks that the complaint should be made more definite and certain, by including a definite description of the premises alleged to have been occupied, should have been granted. The order should be reversed, and motion granted to this extent, with $10 costs and disbursements, to abide the event.


text:
    The People v. Madison Square Bank. In the Matter of George T. Fitzgerald, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Mortgage—Payment.
    The receiver of a bank which, after having assigned a mortgage, accepted payment from the mortgagor, who had not had notice of the assignment, will be required to pay over the amount to the assignee on the application of the mortgagor.
    On June 10, 1891, George T. Fitzgerald, the petititioner, executed a mortgage to one Henry Morgenthau for $2,580, due June 15, 1894. Morgenthau assigned the same to the Title Guarantee h Trust Company, October 7,1891, The latter assigned the same to the Madison Square Bank March 18, 1892, of which the petitioner had due notice. On July 25, 1892, the latter on suggestion from the Madison Square Bank, paid the bank $1,580, to be applied on the principal, and $8.77 on the interest, then due on said mortgage. "The bank became insolvent, and Miles M. O’Brien and James Gf. Cannon were appointed receivers thereof in August. 1893. On October 30, thereafter, said Fitzgerald was notified by the State Trust Company, 36 Wall street, that the latter held and owned said mortgage by assignment from the Madison Square Bank, the latter having assigned'the same April 6, 1893, and this was the first potice he had. Said State Trust Company further claimed the entire amount of $2,580 as due, with interest, and refused, on demand of Fitzgerald, to credit the amount of $1,580 as paid in reduction of said principal, and the interest paid at the same time, of $8.77. Thereupon, this petitioner notified the receivers of the Madison Square Bank of this claim of the State Trust Company, and was informed by them thst the amount in question, of $1,588.77 had been duly passed to the credit of said Madison Square Bank. Yet the latter,and its receivers and attorneys, refuse, and ever have refused, to pay this money over to the State Trust Company, or to any one, to be duly credited on said mortgage.

      L. W. Redington, for app'lt.; Moses Weinman, for resp’t.
   Per Curiam.

The money paid by the petitioner in this proceeding having been wrongfully received by the Madison Square Bank after it had parted with the bond and mortgage upon which it was paid, the petitioner is entitled to be put in precisely the same position which he would have occupied had the bank held the mortgage at the time of the payment, which the bank or its receivers cannot be heard to object to. This can only be done by directing the receivers to pay the money of the petitioner, which they have in their possession, to the State Trust Company, to be applied upon the bond and mortgage in question. The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.


text:
    Thomas F. Tobin, as Executor, etc., Appl’t, v. Edward C. Kirk et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February, 1894.)

    1. Principad and Surety—Subrogation.
    A surety, upon payment of the principal’s obligation, becomes subrogated to all the latter’s rights in respect thereto.

      2. Same.
    When the consideration for the obligation paid by the surety has been wrongfully and fraudently diverted from the principal and converted by a third party, the wrongdoer is bound to respond to the surety, no matter how many intervening rights may be called into play to enforce such result.
    Appeal from judgment entered upon a decision sustaining defendants’ demurrer to the complaint.

      T. B. Turley <& A. Walker Oils, for app’lt; James W Perry, for resp’ts.
   Van Brunt, P. J.

The complaint alleges that in June, 1872, one Thomas H. Cocke and one John Si Hatcher were copartners in business at Memphis, Tenn., under the firm name of J. S. Hatcher & Co., that in July the Life Association of America agreed to loan to said Cocke $10,000 on a note for the sum made by him and his wife (plaintiff’s testatrix), payable three years after-date to the order of said association, secured by a mortgage or trust deed upon the separate estate of plaintiff’s testatrix, but with the express understanding that the money so borrowed was not to be paid over by said assocation until the 15th day of October, 1872, thereupon said note and mortgage were executed and delivered to said association by said Thomas H. Cocke and wife.

The complaint further alleged that, pursuant to an agreement made between J. S. Hatcher & Co., Thomas H. Cocke, the Life Association of America and the defendant Tobey, and in order to effectuate the loan aforesaid, the defendant Thomas H. Cocke, drew his draft for $10,000 on said the Life Association of America, dated July 6th, 1872, due October 15th, 1872, payable to the order of said J. S. Hatcher & Co., which said draft was accepted by said the Life Association of America, endorsed by the payees, and by the joint act of the parties aforesaid, deposited in the personal custody of defendant Tobey, upon the express understanding and promise made by the said Tobey to the said Life Association of America, as well as to the other parties aforesaid, that the said Tobey should not have any title to said draft, but that his relation thereon should be that of a personal custodian, only and that it should not leave his possession or be put into circulation, it being the intention of the parties that it should remain in the personal custody of defendant Tobey, without any validity as commercial paper until the 15th day of October, 1872, when said the Life Association of America, should receive back said draft and pay to said Thomas H. Cocke, said sum of $10,000, so agreed to be loaned as aforesaid.

The complaint further alleged that, in violation of said agreements and with the intent to defraud the parties thereto, defendant Tobey, with the assistance and connivance of defendant Kirk, negotiated said draft before maturity to innocent holders, receiving therefor the sum of $10,000, which sum of money they, the said Kirk and Tobey, wrongful converted to their own use.

The complaint further alleged that by reason of the wrongful acts of the defendants Kirk and Toby in placing said draft in circulation said Life Association of American was sued thereon by the holder thereof, and under compulsion of legal process, after final judgment in said action, paid the amount of the same to the holder; that upon payment of said sum by said Life Association, it demanded from the defendant Cocke the payment of said sum of $10,000, but Cocke neglected and refused to pay the same; that thereupon the Life Association foreclosed the mortgage upon the property of the plaintiff’s testatrix and such proceedings were had that a decree was duly entered for its sale, and thereafter said separate estate was sold under the decree for a sum sufficient to satisfy said decree in full; and that on the 1st of January, 1873, the firm of J. S. Hatcher & Co. was dissolved and its debts paid, and consequently thereto said Hatcher departed this life, leaving said defendant Cocke the sole surviving partner of said firm ; that the plaintiff demanded from defendant Cocke the payment of the sum which the estate of his testatrix was compelled to pay as surety, but he has refused to pay the same. And judgment was thereupon demanded, declaring that said Life Association had a right of action against the defendants Kirk and Tobey for the amount so paid, and that the plaintiff, as executor of said Mary J. Cocke, is entitled to be substituted and subrogated to such rights and remedies ; and that the defendants Kirk and Tobey account for the money received by them to the extent that the plaintiff as executor of Mary J. Cocke has been compelled to pay by reason of the suretyship of his testatrix as aforesaid, with interest and expenses.

To this complaint the defendants demurred, upon the ground that it did not state any cause of action.

There is no doubt upon this state of facts that the action of Tobey and Kirk in disposing of this draft was a conversion of the same,and they became liable for the damages arising from such conversion. The result of this transaction is that they have stolen the money realized upon the draft in question, and appropriated it to their own use without the slightest right or authority.

What may be said in regard to the forms which was used to attain the end, it is clear that the whole intention of this transaction was to place it upon such a footing that the Association, on the 15th of October, 1872, could be compelled to pay to Thomas H. Cocke the sum which they had agreed to loan £im upon his and his wife’s note, taking as security therefore a mortgage upon the real estate of plaintiff’s testatrix. Now, by the illegal and fraudulent acts of Tobey and Kirk, the Life Association of America has been compelled to pay this money to other persons ; they have not kept their contract with Cocke and paid him the money which they agreed to pay him, and the objects and inducement which caused the wife of Cocke to become his surety has been entirely defeated. And yet the respondents claim that there is no remedy for such a wrong. It seems only necessary to state the proposition in order that the answer may come that thieves have no title to stolen property. The plaintiff's testatrix has been -compelled to pay out of her estate the amount of this mortgage, without a dollar of consideration ever having been received therefor, except such as the defendants in this action have received in violation of their agreement and converted to their own use. It seems to be apparent that her estate is entitled to be reimbursed, and that the parties who were guilty of the fraud are bound to respond to the party who is immediately injured, no matter how many intervening rights might have been called into ’play to enforce this result. By reason of the fraudulent action of the defendants, the consideration to the plaintiff’s testatrix for the mortgage she gave to the life association entirely failed, and yet she has been compelled to pay the mortgage. We say entirely failed, because it appears upon the face of the complaint that the consideration for the execution of that mortgage was a loan to be made by the life association to her husband, evidenced by the draft which the life association has been compelled to pay to an innocent holder; and although the wife’s estate has been compelled to pay the mortgage, the husband has received nothing, and the defendants, without a shadow of right, now hold, use and enjoy the money, the payment of which this mortgage was given to secure. The plaintiff’s testatrix was a surety in this transaction, and whatever rights the life association or her husband might have had to recover the proceeds of the draft in question from the defendants, upon the payment of the mortgage she became in law subrogated thereto. It is too familiar a principle to require the citation of authorities that a surety upon payment of the principal’s obligation becomes subrogated to all the rights of the principal in respect thereto.

We think, therefore, that the demurrer should have been overruled, and that the judgment must be reversed, with costs of the appeal and of the court below, the defendants to have leave to .answer upon payment of such costs within twenty days from the •entry and notice of the order upon this decision.

Follett and Parker, JJ., concur.


author: Follett, J.

text:
    Simon Witmark, Resp’t, v. The New York Elevated Railroad Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February, 1894.)

      1. Lease—Surrender.
    Leases may be surrendered for the purpose of obtaining renewals without terminating the estate created by them.
    3. Same.
    Such termination will not be presumed against the intent of the parties as manifested by their acts.
    8. Same—Elevated railway.
    Such changes in the form of the leases constitutes no defense to an action against an elevated railway for damages and injunction.
    4. Same.
    The fact that the leases expired pending the suit and before the trial, and were renewed under the provisions for renewals therein, constitutes no defense to such action.
    8. Appeal—Correction oe judgment.
    Where a judgment can be readily corrected by a motion, an appeal is unnecessary for such purpose.
    Appeal from a judgment entered on the report of a referee awarding the plaintiff $1,754.15 damages for diminished rental value, and an injunction restraining the operation of the railroad unless the defendants pay $1,000 for the injury to plaintiff’s estate by taking and impairing street easements appurtenant to No. •830 Ninth avenue.

      The New York hospital now is, and since July 2, 1862, has been, the owner in fee of a tract of land, bounded north by West Twenty-ninth street, and west by Ninth avenue, which has been divided into lots. November 30, 1869, the society leased Nos. 324, 326, 328 and 330 Ninth avenue to Henry J. Burchell for twenty-one years from December 31, 1869, which term ended December 31, 1890. The leases contained covenants binding the lessee to erect buildings on the lots, and the lessor covenanted to renew the leases for two terms of twenty-one years each, at a rent to be agreed on, or, in case of failure to agree, the amount to be fixed by arbitration.
    On the 15th day of December, 1871, Simon Witmark, the plaintiff, and David Witmark, his brother, became, by mesne conveyances, the assignees of the leases of the four lots before mentioned. The corner lot, No. 330, is eighteen feet and nine inches wide, and each of the others twenty feet wide, and all are one hundred feet deep. The buildings erected on these lots extend about seventy feet east from the avenue. At some time (the date not appearing) Simon and David Witmark erected a building, on the rear of the four lots, thirty feet wide and seventy-eight feet and nine Inches deep, fronting on West Twenty-nine street and known as No. 370. By the construction of this building, the property was divided into five lots instead of four. In 1881 the brothers desired to partition their leasehold interest, so the four original leases held by them were surrendered, and May 1, 1881, five new ones were taken from the New York Hospital society -for the unexpired term of twenty-one years. Nos. 328 and 330 Ninth avenue and No. 370 West Twenty-ninth street were leased to the plaintiff, and Nos. 324 and 326 Ninth avenue were leased to David Witmark. When the leases of the plaintiff’s three lots expired (December 31,1890), he took renewals for the full term of twenty-one years.
    Between December 15, 1871, the date when Simon and David Witmark became the assignees of the four original leases, and May 1, 1881, the date when they surrendered the original leases and took in their stead five new ones, the defendant constructed and put in operation its elevated railway in Ninth avenue. September 19, 1889, this action was begun to recover past and fee damages. The referee assessed the past damages at $144 per year and allowed a recovery from September 19, 1883, to March 30, 1893, the date' of the report, and assessed the so called fee damages at $1,000.

      Davies & Rapallo (Sidney Smith of counsel) for app’lts, Benno Loewy (Boger Foster of counsel) for resp’t.
   Follett, J.

The defendant insists that the plaintiff’s present estate began May 1, 1881, after the elevated road was in operation, and that he must be deemed to have taken his lease with reference to its existence, and that he is not entitled to injunctive relief for any permanent injury to the easements appurtenant to his estate norn to damages caused by the operation of the road since that date. On and prior to May 1, 1881, Simon and David Witmark were possessed of an estate for years in Nos. 324 to 330 Ninth avenue, together with the right of renewal for two terms of twenty-one years each under four leases, one for each lot.

On the date last mentioned the four old leases were given up and five new ones were taken in their places, and it is insisted that this amounted to a surrender of the leasehold estate created by the original leases. A surrender is a falling of a lesser estate into a greater, like an estate for years, into an immediate remainder in fee.

The estate held by the Witmarks was one which could be extinguished by a surrender to the owners of the remainder in fee. Neither the surrender nor the destruction of the written evidence of the title to an estate effects a surrender of an estate unless the parties so intend. A deed or lease is not the estate, but only the evidence of it, and the destruction or surrender of the written instrument does not necessarily effect a surrender of the estate. Presumptively the surrender of a written lease by the lessee to the lessor, accompanied by the acceptance of a new lease, effects, as between the parties, a surrender of the estate held under the old lease, but it is a rebuttable presumption, especially as be-ween third parties, and when there is no ground for the application of the doctrine of estoppel. Van Rensselaer v. Penniman, 6 Wend., 571; Lawrence v. Brown, 5 N. Y., 394-404; Coe v. Hobby, 72 Id., 146 ; Abell v. Williams, 3 Daly, 17.

In Coe v. Hobby, supra, it was said: “ A surrender is implied and so effected by operation of law within the statute quoted, when another estate is created by the reversioner or remainder-man, with the assent of the termer, incompatible with the existing estate or term. In the case of a term for years, or for life, it may be by the acceptance by the lessee or termer of an estate incompatible with the term, or by the taking of a new lease by a lessee. It will not be implied against the intent of the parties, as manifested by their acts; and when such intention cannot be presumed, without doing violence to common sense, the presumption will not be supported.”

In 1871, the Witmarks paid $52,500 for the leasehold interest in the four lots and prior to May 1, 1881, they erected on the demised premises a new and valuable building fronting on West Twenty-ninth street, and it is unreasonable to presume that they intended to surrender their estate in the premises without any compensation whatever. The transaction of May 1, 1881, was simply a division of the premises into five tenements or lots instead of four for the purpose of enabling the co-tenants to partition their interests as between themselves. The rent reserved by the five leases was the same as that reserved by the four, and the new leases contained the,same covenants and conditions as the old ones. The Witmarks did not surrender possession of the premises, and they did not intend to give up their estate created by the original leases, nor did the landlord understand that it was receiving a surrender of the original estate. It has long been the policy of England and of this state to permit leases to be surrendered for the purpose of obtaining renewals without terrainating the estate created by the original leases. 4 Greo. 2, chap. 28,No. 5; 16 Pick. Stat., 255; 2 J. & V. L. of N. Y., 240; I. R. L [K. & R.], 144; I. R. S., 744, No. 2.

From the evidence contained in the record we think that the referee well found as a fact that the lease of May 1, 1881, simply continued the estate created by the leases of November 30,1869. When a lease has been taken since the construction of the elevated road it is held that it must be presumed that the rent was fixed with reference to the advantages and disadvantages of the road to the demised premises. Kernochan v. N. Y. El. R. R. Co., 128 N. Y., 559; 41 St. Rep., 110. In this case there is no room for such a presumption, for the ground rent was fixed in 1869, and since that time valuable buildings have been erected on the premises by the Witmarks and their predecessors in the leasehold estate.

No error was committed in receiving in evidence the lease of December !, 1890, and in permitting the plaintiff to recover damages for the diminished rental value since that date. The new lease was but a renewal of the former one, pursuant to a covenant that it should be renewed, and it continued the original term. Gibbs v. Jenkins, 3 Sandf. Ch., 130; Collett v. Hooper, 13 Vesey, 225.

No error was committed in permitting Marcus Witmark to testify to the valuations placed on Nos. 328 and 330 when the property was divided between the co-tenants. There was no evidence that there was any written contract dividing the property or that there was any written evidence of the price agreed on.

It is urged that the referee erred in permitting Levy to testify that the value of real estate in the avenues and streets near the property in question, and its rental value has recently advanced. The point of the objection seems to be that the witness should have been required to specify the property to which he referred, and if sold, the prices for which sold, or if rented, the prices at which rented during the period covered so that the referee might judge whether values had risen or fallen. The witness did point out many pieces of property, stating prices at which they had been sold and the sums for which rented, and clearly showed a sufficient acquaintance with real estate in that vicinity to qualify him to testify as to value. If we should limit the evidence of the value of real estate to actual sales, it would be very difficult, if not impossible, to establish the value of that, which, for a long time, had not been in the market All doubt of the competency of the witness and about his familiarity with the fee and the rental value of property in the vicinity of the plaintiffs property was removed by the cross-examination of the defendant’s counsel. The rulings challenged by the appellants in respect to the testimony of Beaver and Alexander are entirely unimportant, and the evidence admitted could not have effected the result. The referee found that the plaintiff’s household estate is subject to a mortgage owned by Jessie A. Marshall, who is not a party to the action. By his conclusions of law he directed that the plaintiff should be required to procure a release of her lien upon the easements receiving the fee damages. The plaintiff’s attorney in entering the judgment neglected to insert an appropriate provision to that effect. It was not necessary for the defendants to appeal to correct the judgment which could have been readily done by a motion. However the plaintiff committed the first fault.

It seems to us that the judgment should be modified so as to conform to the referee’s decision, and, as modified, affirmed without costs to either party.

Van Beunt, P. J., and O’Brien, J., concur.


text:
    Mary Davies, as Adm’x, etc., Resp’t, v. The Pelham Hod Elevating Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February, 1894.)
    Negligence—'Unsafe machinery.
    In an action for negligence in furnishing unsafe apparatus, the fact that there was a substitution of intestate’s judgment for that of defendant in respect to the kind of rope to be used, is a complete answer to the charge of negligence against defendant in having furnished such rope.
    Appeal from a judgment entered on a verdict, and from an order denying a motion for a new trial made on the minutes.

      George 8. Coleman, for app’lt; William H. Arnoux, for resp’t.
   Follett, J.

This action was brought to recover damages occasioned by the death of plaintiff’s intestate, caused, it is alleged, by the negligence of the defendant’s employees, The defendant is a domestic corporation, engaged in supplying contractors and builders with derricks elevators and pumps. It furnished the builders of the Savoy, which is on the southeast corner of Fifth avenue and Fifty-ninth street, with a boom derrick and appurtenances. Afterwards, the New Netherland, which is on the northeast corner of Fifth avenue and Fifty-ninth street, was erected. Isaac A. Hopper & Co. had a contract for constructing the masonry, and hired, about April 16th, 1891, of the defendant the derrick and its appurtenances which had been used at the Savoy. The defendant also furnished a steam engine which supplied power to operate the derrick, and an engineer who ran the engine, for-which it received $15 per day. Isaac A. Hopper & Co. had exclusive control of the derrick and its managment. The plaintiff’s intestate was employed by Isaac A. Hopper & Co. as a foreman, and was placed in charge of the derrick.

The topping-lift of a derrick is the rope connecting the end of the booln with the mast or upright and by means of which the boom is raised and lowered.

OnthelOth of June, 1891, while the plain tiff’s intestate and others were lifting with the derrick a foundation stone, weighing between eleven and twelve thousand pounds, the topping-lift broke and the boom fell, striking plaintiff’s intestate on the head, from the effects of which he died the next day. It is not asserted that any part of the derrick or its appurtenances was defective except this rope or cable, called the topping-lift. When the plaintiff’s intestate began using the derrick, the topping-lift was a steel wire cable, seven-eighths of an inch in diameter, which was used until May 22nd, when a new manilla rope or cable, four and one-fourth inches in circumference was substituted and used until June 10th, when it broke.

The precise and only cause of action sought to be established on the trial was that the defendant pegligently furnished the manilla cable which was not of sufficient strength for the purposes for which it was used, and that the decedent did not by his own neglect contribute to the accident. There is no evidence that the manilla rope was defective in quality, material, or in the mode in which it was made, but the plaintiff’s contention it simply that it was too small for the purpose for which it was used. Upon this issue considerable evidence was given on both sides, but it was found for the plaintiff, and it must be regarded as settled, so far as this review is concerned, that the rope was too small for the purpose for which it was used. When this case was before this court on the first appeal, Davies v. Pelham Hod Elevating Co., 65 Hun, 573 ; 48 St. Rep. 596, it was held, on the authority of Devlin v. Smith, 89 N. Y., 470, that the defendant would be liable for the damages occasioned by the death of the plaintiff’s intestate in case the evidence justified a verdict that defendant negligently furnished a rope .of insufficient strength, and that the intestate by his own neglect did not contribute to the accident. This question is not an open one in this court.

It is asserted in behalf of the plaintiff that the rope broke because it was of insufficient strength by reason of its size. For the purpose of the present contention it must be conceded that this proposition is true.

The important questions involved are: (1.) Was it negligent in the defendant to furnish this rope, and (2.) did the intestate by his own negligence contribute to the accident ? The plaintiff asserts that sufficient evidence was given to make these questions of fact, which have been settled in her favor by the jury, while the defendant asserts that the evidence is insufficient to justify the submission of these questions to the jury, and that its motion for a nonsuit should have been granted, and also that the verdict is contrary to the weight of evidence, and that its motion for a new trial should have been granted. The undisputed evidence is, that from the time when the derrick was first set up by Isaac A. Hopper & Co., until May 22d, a steel wire rope or cable was used for the topping lift, and that on the date last mentioned the manilla rope or cable which broke was substituted, at the request of the plaintiff’s intestate. It is true that he did not request that this particular rope be substituted, but that a manilla rope be substituted, and he gave his reasons why. The rope or cable which broke was taken by one of the defendant’s employees to the plaintiff’s intestate, and they together placed it in the derrick, or, in, the language of a witness, “rigged the derrick with it.”

It was testified by witnesses called by both sides that a manilla rope was substituted for the wire cable at the special request of plaintiff’t intestate; that he saw the manilla rope which broke before it was substituted, and assisted in making the change. About this there is no dispute nor conflict in the evidence.

Patrick White, a witness called by the plaintiff, testifies: “I was present when the rope came. Mr. Davies was there. I had & talk with Mr. Davies about the character of the change to be made in the rigging. He said he was going to get a manilla rope put in, and they would have the wire rope taken out. That is all he told me. He said he thought the manilla rope was better because it was safer. He said if it parted it would give you warning, and steel wire rope would break short. Q. So it was Davies5 own suggestion to you? A. Yes, sir.” (fol. 78).

This witness further testified: “ I remember the circumstances of the putting in of the manilla rope. I saw the rope brought there. The condition of it was new; it was in a coil; a brand new rope in a coil. I do not know the size of that rope; they said it was a two inch rope. When the rope was put on the derrick Mr. Davies, the man who was injured, was present. He said he was going to stay there to see it put in.”

This witness also testified : “ Q. How, you have spoken about the wire rope that was in use on this derrick. When was this change made from a wire rope to a manilla rope ; about ho.w long before the accident ? A. I guess about two weeks. I saw the wire rope that was used there at the time the change was made, or just before the change was made. Mr. Davies might be working on the job two weeks, or around that time, before this change was made from a steel rope to a manilla rope. The topping-lift was changed to a manilla rope. The steel wire that was taken out was the one that was in the fall rope. In raising and lowering these granite blocks it had to drag on the ground. At the time the change was made, the outside of it was a little chafed from running along the ground. Some of the wires were crooked. The steel w ire rope that was used to raise and lower the stone, known as the fall, that was taken out, and the wire rope that was used for a topping-lift, that was taken out and placed in and used as the fall instead of the topping-lift, and a new manilla rope was put in and used as a topping-lift from that time. The wire rope that had no chafing on it, and didn’t have any breaking of the wires in it, was substituted and used from and after that time as the rope to raise and lower the granite blocks ” (fol. 84).

Ebenezer Davies, a brother of the intestate, testified: “ Q. What did your brother say to you about the reason for changing from wire rope to manilla ? A. He said there was a flaw in the wire rope. He said he believed manilla rope gave warning before anything happened, and that wire rope would not. That it would snap all at once ” (fol. 103).

Mr. Isaac A. Hopper, the employer of the intestate, was called as a witness for the defendant and testified : “I had some conversation with Mr. Davies in regard to making a change of rope in the topping-lift; that was about two days after he was there; the second day, I think, after he was in charge of the derrick. I made my usual visit to the building and had general conversation with Mr. Davies, and, after a while he said to me, ‘ I wish you would step over to the derrick; there is something I want to call your attention to.’ I stepped over about ten feet away from the-foot of the derrick, and he picked up one of the wire cables and said to me, ‘Look at that’ I said, ‘Look at what? ’ He said, ‘Look at that spot on that cable.’ I said, 1 What of it? ’ He said, ‘I think that is a weak spot.’ I said, ‘It don’t appear so to me; it looks like a mud spot.’ He said, ‘ No, boss; I think that is a weak spot in that cable.’ I said, ‘John, if you have any doubt about it, there will be no risk. You tell Henry, our timekeeper, to telephone to Mr. Pelham to come right up here, that you want him, and you just show him this and tell him to take this cable out and put in another one.’ So, he said, ‘Very well, sir.’ ”

“ Q. Do you remember which cable that was, whether it was the one' that was in the topping-lift ? A. My recollection is it was the topping-lift that I understood he was to change. I saw him the next day. When I went there the next day I found a manilla rope had been substituted for the wire cable in the topping-lift. I asked Mr. Davies what it meant. I expressed sur-, prise at seeing the change made, and I asked him what it meant,’ and he told me, as near as I can remember his words—he said to me, ‘Don’t say anything, boss, I know what I am doing; now I have got what I want.’ I said to him, ‘What do you mean by that, John ?’ And he said, ‘I mean that a manilla rope is the-best rope for this purpose;’ and I asked him why, and the answer he made me was that if a manilla rope was going to give that-there would be some warning; while with a wire cable, that if there was anything to give there, it would snap like a pipe stem, and there would be no warning, and he said, ‘Now, don’t make any objections, boss, for I know what I am doing now.’ So I told him, I said, ‘John, be careful. I don’t want anyone hurt on this job,’ and I left him at that. The derrick was in his charge.”'

William A. Smith, an employee of the defendant, who, at the request of Davies, sent for the manilla rope, testified : “I went, there the day the rope was changed. First I saw the engineer. I had a conversation with him. As the result of that conversation I went and had a conversation with Mr. Davies, the foreman. He wanted the wire cable changed to a manilla rope; he said that-he preferred a manilla rope, as the wire rope might give way without any warning, and by using manilla he thought he would have warning in case it was liable to break. I told him I thought he was making a mistake—that a steel cable was preferable, in my judgment. He said he would sooner have a manilla rope. He insisted upon having manilla. As a result of that conversation I went around to the New York Cable Company’s store in Fifty-eighth street and Fifth Avenue, and telephoned to our office in West Twenty-sixth street.” ****“! had further conversation with Mr. Davies after that in regard to the rope. It was some few days after the change had been made. He said he was satisfied with the change—that he had what he wanted.”

Mr. Brown, an employee of the defendant, testified: “ I got the rope that I took up there in the shop. I cut it off from a new coil myself, and put it in the wagon. I saw Mr. Davies and had a conversation with him. I brought the rope up there, and I was going to leave it on the sidewalk, and he told me there was no one around to put it on, and asked me to put it on for him, and I told him I would. I took off the wire rope that was on to the blocks and put on those two new blocks and changed the rope. Mr. Davies stayed there all the time.

“ Q. Did he say anything to you about making the change from a wire to a manilla rope ? A. Nothing more; only he looked at it and said : ‘ That is the stuff. I would sooner have that one than that wire.’ I took off the blocks that were used with the wire rope and put on others. I took those others up with me— two double blocks. When I rigged the manilla rope there were in the topping-lift five parts, all told ” (fols. 345-346).

Mr. Newton, who ran the engine, testified that he had a conversation with the intestate on the day after the ropes were changed. “He came up and said ‘ Good morning, Mr. Engineer; I feel satisfied this morning.’ He said he always felt safer with a manilla rope than with a wire rope, because it gave so much more warning” (fol. 405).

The foregoing extracts from the testimony conclusively show that the plaintiff’s intestate assumed to be an expert in such matters, or asserted, by his conduct and language, that he knew which kind of a rope was best for the topping-lift. He exercised his judgment which the defendant acquiesced in, though not recommending the change. These extracts also show that the substitution of the manilla rope for the steel wire cable was made at the special instance and request of the plaintiff’s intestate; that he helped make the change, saw and handled the rope before it was used, and exercised his own j udgment in respect to the substitution. A rope is not an intricate piece of machinery, the details of which are not readily comprehended, but it is a simple implement, the strength of which is learned, approximately, by referring to tables which are given in the hand books of mechanics. The intestate knew the size of the stones which were being moved, and understood approximately the strain which the derrick was required to sustain. During the eighteen days which elapsed between the date when the substitution was made and the date when the accident occurred, the intestate had the entire supervision of the derrick and knew the size and number of the stones moved, and it was his duty to see that the cable was not used after it had been weakened by use. The intestate having assumed to be an expert and to know the kind of rope best suited to his purpose, and having directed the change and accepted the new one, knowing its size and presumably its estimated strength, was as guilty of negligence as was the defendant, if either can be said to have been negligent.

When this case was before the court on the former appeal it was said: “We are of the opinion that the substitution by plaintiff’s intestate of his own judgment for that of the defendant, in respect to the kind of rope that should be used, is a complete answer to the claim of negligence as against defendant in having supplied him with the very thing that he ordered and from the use of which his injuries were received.”

That language is as applicable to the present record as to the former one, and, under the evidence presented in this record, the court erred in refusing to non-suit the plaintiff, and the judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Yan Brunt, P. J., and Parker, J., concur.


text:
    In the Matter of Robert Ray Hamilton, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February, 1894.)

    1. Will—Probate.
    Only those persons who are interested in the question as to whether the will shall be probated or not can be heard to support or oppose the application.
    2. Same.
    Simply naming a person in the petition as being an interested party, when he is not such, does not give him a status to contest the will.
    3. Same.
    Any party interested has the right to bring this question to the attention of the surrogate.
    4. Same.
    The surrogate has a right, without objection from, any party, to determine whether parties claiming to be heard have any status in the proceedings.
    5. Marriage—Proof.
    A contract of marriage may be established by circumstantial evidence.
    6. Same—Presumption.
    In the case of a marriage per verba et de praesenii, contracted in another state, it will be presumed, in the absence of evidence to the contrary, that the law of such state is the common law of this state.
    7. Same.
    It will also be presumed that the relation, once established, has since continued unchanged.
    8. Will—Probate—General Term.
    The general term of the supreme court is a court of original jurisdiction upon appeals from probate proceeings in the surrogate’s court.
    Appeal from the decree of surrogate admitting to probate the will of Bobert Eay Hamilton.

      G. W. Broolce for app’lt; Mihu Boot for resp’t.
   Van Brunt, P. J.

In August, 1890, Bobert Eay Hamilton died, in the State of Wyoming, being at the time a resident of this State. The said Hamilton lefta last will and testament, bearing date the 17th of March, 1890, and on or about the 2d of October, 1890, one of the executors named in said will petitioned the surrogate that a citation might issue to the heirs and next of kin of the deceased, and that the said will of the said Hamilton might be proved as a will of real and personal property, and letters testamentary issued thereon. In said petition the petitioner stated on information and belief that one Evangeline L. Mann, otherwise known as Evangeline L. Steele, and also as Evangeline L. Hamilton, then residing at Trenton, in the State of Hew Jersey, claimed to be the widow of the deceased, and that a certain child, known as Beatrice Bay, claimed to be the adopted daughter of the deceased. Citations were thereupon issued, amongst others, to said Evangeline L. Steele, otherwise Mann, otherwise Hamilton, and Beatrice Bay, as the heirs and next of kin of Bobert Bay Hamilton, deceased. Upon the return of said citations, the said Evangeline L. Steele appeared and claimed to be the widow of the deceased, and filed objections to the probate of the will. Thereupon one of the legatees and beneficaries named in the will denied the right of the person styling herself Evangeline L. Hamilton, widow of Bobert Bay Hamilton, to appear and contest the probate of the will, and also denied, upon information and belief, that said so-called Evangeline L. Hamilton was the widow of Bobert Bay Hamilton.

Upon the matter coming on for trial before the surrogate, the surrogate directed that, as the status of the appellant claiming to be the widow was denied, and her right to object to the probate denied, the burden was upon her to show that she had a status in court. The counsel for said Evangeline L. Steele thereupon called a witness proving a ceremonial marriage which had taken place between said Bobert Bay Hamilton and the contestant in the month of January, 1889. The proponent thereupon proceeded to offer proof, without any objection being made upon the part of the contestant, tending to show that at the time of her alleged marriage with Hamilton the contestant had a husband living, and the contestant offered evidence in reply. At the close of the testimony, the surrogate held the previous marriage to be established, and denied the right of the contestant to appear in the proceeding, and from the decree thereupon entered, admitting said will to probate, and adj udging that the contestant was not the widow of Bobert Bay Hamilton, this appeal is taken.

The principal objection urged by the counsel for the appellant, which, however, was not taken during the progress of the trial before the surrogate, was that the court erred in trying the question as to the status of the appellant as the widow of the decedent, before taking testimony as to the/uciitm of the will.

It is urged that the appellant was made a party to the proceeding by the petition of the executor for probate; and that, by section 2528 of the Code, it is provided that the appearance of a party against whom a citation has been issued has the same effect as the appearance of a defendant an action brought in the supreme court.

We think, in the presentation and argument of this objection, which goes to the jurisdiction of the surrogate, that the learned counsel has overlooked the authority which is vested in the surrogate, and which is necessary in the performance of his duties ; and that he has also sought to invest the appearance of a defendant in an action in the supreme court with a sanctity to which it is not entitled. It is a very familiar rule in the conduct of the trial of cases, particularly those in the nature of equity proceedings, where there is a preliminary question as to the right of one of the parties either to bring the action or to intervene as a defendant, to try such question and to determine the status of the parties before attempting to pass upon the final rights in respect to which the action is brought. Such is the foundation of almost all interlocutory judgments in equity actions, except those entered upon demurrers.

■ In actions for a partnership accounting it is familiar practice, where the partnership is denied as to one of the parties, to first try the queston of partnership before allowing such party claiming to be a partner to vex the court and the other parties to the litigation with his presence in a controversy in which he may have no interest. So, in the case at bar, only those persons who are interested in the probate of this will had a right to contest the same. The provision of the statute is (if the will relates to both real and personal property, as in this case) that the husband or wife, if any, or the heirs or next of kin of the testator, and all persons in being who would take an interest in any portion of said personal property, and the executor or executors, trustee or trustees named or described in the will, shall be cited. And it provides that any person, although not cited, who is named as a devisee or legatee in the will propounded, or who is otherwise interested in sustaining or defeating the will, may appear and support or oppose the application. These provisions of the statute show that only those persons who are interested in the question as to whether the will shall be probated or not can be heard to support or oppose the. application. And it seems to be a proposition, which hardly needs a suggestion for its refutation, that one person cannot give another a standing in court for contesting the probate of a will by naming him in the petition as being that which he is not. Any person designated in the will as executor, devisee or legatee, or any person interested in the estate, or a creditor of the decedent, may apply to have a, will admitted to probate.

Can it be that any one of these parties, by simply naming another party as an heir or next of kin, or a wife, or husband, as the case may be, can give that person a status to contest the probate of a will in which he has not the slightest possible interest because the relationship does not exist. Clearly not. As in respect to the other procedures of the surrogate’s court, those incidental powers, which are necessary for the fulfillment of the duties imposed upon him by statute, are possessed by the surrogate, as was recognized in the Matter of Peaslee, decided by this court in November, 1893. So, in reference to the probate of a will, where the right to support or oppose such application depends upon interest, has the surrogate the right to determine the status of the ' party proposing to contest ? Upon an accounting for the purpose of distribution of an estate, the surrogate'' has the power to construe the will so far as it affects his decree of distribution. This is an incidental power. He now has, by provision of the statute, the power upon the probate of a will to make such construction where then required. And to say that a party may come in and delay the proceedings, without establishing any right or status, seems to place such proceedings at the mercy of any interloper who may have the assurance to claim an interest, even though without the slightest foundation.

It is urged that the surrogate’s court has no equity jurisdiction. It is undoubtedly true. And it is further urged that, therefore, the court could not decree that this appellant was not the widow of the testator; and in support of this proposition our attention is called to the well established principle that the surrogate’s court has no power to annul or set aside, on the ground of fraud, a release executed by the parties interested in the estate to the executors thereof. But it has never been held that the surrogate’s court had no power to try the question as to whether any such alleged release existed or not. The surrogate’s court would undoubtedly have the right to try the question of a release presented before him as to whether it had ever been signed, or whether it was a forgery ; and it is a similar question which was being determined by the surrogate in reference to the alleged marriage with the testator. He was not making a decree annulling a marriage He was simply determining the question as to whether the contestant had any status in his court, by reason of her being the testator’s widow. In order that this performance in Hew Jersey between Hamilton and the appellant should be a marriage, it was necessary that both parties should be free to contract, and if either party was under a disability, although the parties went through the forms of a marriage, there was no marriage, and that is all that the surrogate attempted to determine.

If the appellant, by virtue of an alleged marital relation, was seeking to enforce her rights in a court of law, those rights could be defeated by showing that no such relation existed, because at the time of the attempted contract of the disability of one of the parties. This has always been the rule, and the surrogate, in passing upon the status of this contestant, assumed no equity jurisdiction, but was passing upon a legal question.

It is further urged that, in any event, the legatee who filed the -objection to the appearance of the appellant as a contestant of this will being simply a defendant to this proceeding to probate the will, had no right to question the status of this contestant. The force of this objection we are unable to see. Any party interested had the right to bring this question to the attention of the surrogate ; and in the orderly conduct of the proceeding ask him to pass upon it. The proceedings for the probate of the will did not belong to any of the parties, but belonged to the court. The court has a right to bring in other parties, to allow other parties to be heard, and to determine whether parties claiming to be heard have any status in the proceedings, whether any of the other parties object or not. It seems to be assumed by the appellant that the surrogate is the mere agent of the proponents of the will; that he has no powers of his own for the purpose of seeing that justice is done. This is contrary to the whole scope of the authority conferred upon the surrogate in the probate of wills. He is bound to see that the proceedings are regularly conducted, to hear those entitled to be heard, and to prevent contests of wills by persons who have no interest.

Yarious errors claimed to have been made by the surrogate in the admission of testimonyhave been called to our attention. But upon an examination of the record, we do not see that any of them are deserving of special comment or mention.

It is urged upon various grounds that the proof was wholly insufficient to establish the existence of a marriage between Joshua J. Mann and the contestant; that there was no evidence of a contract of marriage de verba etpraesenti between Mann and this contestant ; that, in attempting to contract with Hamilton, the contestant was guilty of bigamy if a marriage already existed between herself and Mann ; and that there being a presumption of innocence there was not sufficient proof to overcome such presumption. And it is further urged that the parties contesting her right to appear must prove beyond all doubt that she was the wife of Joshua J. Mann at the time of the attempted marriage with Hamilton. The latter proposition seems to show the extremities to which the appellant’s counsel must resort in order to support the position he has taken upon this appeal. He claims before this court a dignity of proof in a civil proceeding which does not prevail upon a trial involving the life of the defendant. It is undoubtedly true that cohabitation and repute merely do not constitute a marriage.

There must be an agreement or contract to be husband and wife—mere livng together as such is not sufficient; the agreement to be such is an absolute and vital prerequisite to constitute a valid marriage. But murder can be proved by , circumstantial evidence, and there does not seem to be any reason why a valid ■marriage may not be established by the same class of proof. Men are convicted and executed without having eye-witnesses of their crime. Circumstances which inevitably lead to the conclusion of the commission of the crime are sufficient in a capital case; and in a civil case a preponderance of evidence which tends to establish the’proposition is all that is required. So, where the issue is of marriage., although the contract itself may not be established by direct evidence, yet it may be established by circumstances. It may, from the action of the parties, their visible relations to each other, and their representations to others, be inferred that at some previous time they had entered into a contract of marriage, and that is all the dignity of the proof of cohabitation and repute. It is circumstantial evidence tending to establish a previously existing fact; and such proof may be as satisfactory, and often more satisfactory, than the much more limited direct evidence which is ordinarily possible to produce.

It has been urged as an objection to the character of the proof offered in this case that there was a failure to prove that a contract of marriage de verba et praesenti was a marriage under the laws of Pennsylvania; and that there was no proof what the laws of that state were ; and that there was no proof that this marriage was existing on the 7th of January, 1887, the time of the attempted marriage, or that no divorcement or annulment of any preexisting marriage was had.

As for the laws of Pennsylvania, in the absence of proof they are presumed to be the same as the common law of this state. As to the question of the proof that there was no divorce or annulment of any pre-existing marriage even in a trial for bigamy, no such proof is required. The relation once established, it is supposed to continue to exist until something is proved to have dissolved it. And the existence of this marriage between Mann and the contestant having been established, it was incumbent upon her to show that the disability had been removed when she attempted to marry the testator.

It would be impossible, within the limits to which this opinion should be kept, to consider in detail the evidence before the surrogate tending to establish the marriage to Mann. The probative character of such evidence always depends largely upon the peculiar features of each individual case, as will be seen by a reference to the adjudications upon the question as summed up in the case of Hynes v. McDermott, 10 Daly 423. In the case at bar the cohabitation and repute was of the most satisfactory and complete character. Indeed, it seems it would have been difficult for the surrogate to come to any other conclusion from all the evidence introduced of the long existing relations between Joshua J. Mann and the appellant, but that they were husband and wife.

It is undoubtedly true as claimed by the appellant, that the surrogate seems to have an exaggerated idea in regard to the force of his adjudications upon questions of fact where he says : “ After having ascertained the fact, his finding upon a conflict of evidence is, in my judgment, equivalent to the finding of a jury, and must settle forever in all courts the question of fact involved. If he errs in the application of the law, the appellate court will correct his mistake. But they are powerless, as they should be in the proper administration of human affairs, to inquire into the fact which he or a jury has determined, I think, for all time.” In the enunciation of this proposition the surrogate seems to have forgotten the provisions of the Code which makes the general term a court of original jurisdiction upon appeals in these proceedings, and they may take additional evidence, and must determine questions of fact as they think the preponderance of evidence requires. The powers of the court, upon appeal from the surrogate on the probate of a will, are entirely different from those upon appeal from the verdict of a jury. And the questions of fact upon conflicting evidence are finally determined, not by the surrogate, but by the general term.

Bearing in mind this responsibilty upon the part of the general term, we not only see no reason to differ from the conclusions arrived at by the surrogate upon the questions of fact, but, as already intimated, we do not see how, under the evidence, he could have reached any other result.

The decree should be affirmed with costs.

■ O’Brien and Parker, JJ, concur.