author: Bischoff, J.

text:
    William Halliday, Resp’t, v. Harry T. Nichols et al., App’lts.

      (New York Common Pleas, Special Term,,

      Filed June 3, 1895.)

    Conversion — Payment on condition
    An action cannot be maintained for the conversion of a fund payable to plaintiff on condition, unless such condition has been complied with at the time of the alleged conversion.
    Appeal from a judgment entered on a verdict in favor of

      William W. Baldwin and Charles A. Boston, for app’lts; William, M. Safford, for resp’t.
   Bischoff, J.

— This was an action for conversion. The fund alleged to have been wrongfully retained from plaintiff was held by the defendants under the following circumstances : Plaintiff and one Zimmerman were stockholders in the .Peoria, Decatar & Evansville Railway Company, which company had in project a consolidation of the Chicago & Ohio River Railroad Company. Defendants were apparently interested in having this consolidation effected, but it was opposed by plaintiff and Zimmerman, which latter instituted an action to restrain the Peoria Company from taking the course contemplated. The defendant Nicholas employed one Hollins to obtain the consent of plaintiff and Zimmerman to the consolidation, and, upon the part of the latter, the discontinuance of the injunction suit, the terms of the agreement upon which plaintiff’s consent was actually obtained being that he should receive the sum of $693.50 upon such consolidation ; but from whom the money was to be received does not clearly appear. In pursuance of the agreement,, defendant Nicholas received certain checks, which, in the presence of one Rushmore, who apparently represented the plaintiff, were placed by Nicholas in an envelope, and sealed up.

According to the plaintiff’s testimony, the agreement made by him with Hollins, under which agreement these funds were held by defendants, was as appeared in a copy of a certain unsigned document, in evidence as plaintiff’s Exhibit G, and which read as follows:

“ We, H. T. Nicholas & Co., admit the receipt of two thousand four hundred and ninety-eight dollars ($2,498), the same to be held by us until July 15th, 1893, and on that date paid out as follows:

To Frank 0. Hollins................'.......... $1,111 00

“ William M. Halladay....................... 693 50

“ “ “ “ ...................... 693 50

$2,498 00

The aforesaid payments to be conditioned upon the consolidation and issue of bonds in accordance with the terms of the proxy hereto annexed. In case the said consolidation be not effected, or said bonds be not authorized to be issued, the money to be returned to P. O’Connor, Esq’re, from whom the same was received.”

The proxy referred to was in the usual form of a power of attorney, authorizing the attorney designated' to vote upon the “proposition to consolidate,” etc., and describing the subjects of consolidation. The only possible construction to be placed upon the words contained in this paper was that the payments noted were to be made by defendants to plaintiff only in event of the consolidation being “effected” before July 15, 1893. Such was the express condition. It was admitted upon the trial that the consolidation was not “perfected” until August, 1893, and plaintiff’s demand for the sum in suit was not made until September. The recovery below was apparently based upon the theory that, granting the fact that there had been no actual consolidation before July 1st, yet, according to a deposition read in evidence by the plaintiff, the stockholders had met on the 13th of that month, and voted in favor of consolidation. The party so deposing further stated that a consolidation was not “ effected ” until the laws regulating such action had been complied with, and this statement accords with our view of the situation. The favorable vote of the stockholders did not “ effect ” a consolidation, and authorize the issue of bonds to any greater degree than would the express determination of individuals to organize a corporation create such corporation, and authorize its corporate assumption of liability. It appearing conclusively from the plaintiff’s evidence that some forms of law were required to be complied with before the consolidation could become an accomplished fact, and that these forms were not complied with until after the 15th of July, it is clear to demonstration that there was no “ consolidation ” of these two corporations at that date, and hence the condition upon which plaintiff’s title to the fund held by the defendants, whether as stockholders, trustees or promisors, depended, was not fulfilled, and no cause of action for conversion was created by the latter’s refusal of his demand for payment when made. Therefore, the exceptions to the denial of the defendants’ motion, for dismissal of the complaint when plaintiff rested, and to the justice’s refusal to direct a verdict at the close of the case, present error, for which this judgment must be reversed.

Judgment reversed, and new trial ordered, with costs to abide the event AH concur.


source: Caselaw Access Project

author: Daly, C. J.

license: Public Domain

text:
    Timothy J. Kieley, Resp’t, v. Central Complete Combustion Manufacturing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Service and proof — Foreign corporation
    The facts, in this case, were held to establish a sufficient service of the summons on the managing agent of the foreign corporation to give the court jurisdiction.
    Appeal from an order denying motion to vacate an attachment on the ground of a failure to serve the summons within thirty days after the issuing of the warrant.

      Charles J. Hardy, for app’lt; Melville Egleston, for resp’t.
   Daly, C. J.

— This is an appeal from an order of the special term of this court denying the defendant’s motion to vacate an attachment granted on November 14, 1894, against the defendant, as a foreign corporation. Code, § 636. The ground of the motion is that the plaintiff had not complied with the provisions requiring that, within thirty days after the granting of the attachment, defendant must be served with the summons, personally, within or without the state, or by publication pursuant to an order therefor. Id. § 638. It appears that defendant, as a foreign corporation, filed with the secretary of state the designation required by law, naming one Caleb E. Ayer as the person upon whom process against it could be served, but it also appears that such person was not to be found in the state; that the attachment was levied upon moneys belonging to the company in- the hands of one Rutzler, which moneys were claimed by one Colwell; that Colwell received from Rutzler the papers served upon and left with him by the deputy sheriff who levied the attachment; that Colwell communicated the fact of the attachment and the action to the board of directors of the defendant corporation, and advised them to take some action in the matter ; that he called on plaintiff’s attorney, and suggested giving, a bond for the release of the attachment; that he promised to aid in making service of process, and directed that nothing further be done until advised by him. During all this time Colwell was the managing agent of the defendant. The papers which Colwell received from Rutzler, and which were left with the latter by the deputy sheriff when he levied the attachment, were the summons and complaint in this action and the affidavit and undertaking upon attachment. The delivery of these papers to him was a sufficient service of the summons upon the defendant within the prescribed time. Service upon a foreign coporation may be made upon its managing agent. Code, § 432, subd. 3. It is contended that the service was not good, because the papers were not delivered to Colwell by Rutzler with intent'to effect a service, and, after being taken away by Colwell, were afterwards returned by him to Rutzler. But the delivery of the papers to Colwell, and the knowledge of the company of the action, through his communication to the directors, was sufficient service, under the Code. The object of the summons is to advise tke defendant of the commencement of the action, so that he may protect his rights, and the object was fully accomplished in this case. Chemical Works v. Jochen, 8 Civ. Proc. R. 424. In that case the summons had been left by a deputy sheriff with a stranger, not on defendant’s premises, but it reached the bookkeeper of defendant, and was delivered to the latter, who' placed it in the hands of his attorney; and that was held to be sufficient service, under section 638 of the Code. In this case the papers were left with the custodian of the property attached, who delivered them to the managing agent of the defendant; and- the board of directors of the latter was notified, and placed the matter in the hands of its attorneys. The cases are very much alike, and the reasoning of the decision is clearly applicable. In the case cited, as in this, there were facts and circumstances which warrant the impression that the course of events was watched and uninterrupted with a view to defeat the plaintiff’s attachment, and in this case there is evidence of active means taken by Colwell to effect that purpose.

The affidavits present a question of fact as to whether Colwell was the general agent of the company, but the weight of evidence is with the plaintiff. It is conceded that he was the manager of the company up to April, 1894, and the burden was on defendant to show the termination of the relations. Upon proof that one had been agent and had resigned even, but still acted in some capacity for the defendant, it is for the latter to show the precise nature and extent of his agency, as it was obviously within its power to do so. Donaldi v. Insurance Co., 2 E. D. Smith, 519. It was shown by the evidence of a director of the defendant that from July, 1893, when Colwell obtained the option to buy out the company, all business 'that had been done by or for the company had been done by Colwell, acting as manager and general .agent; that he held himself out to be such manager and general agent, his name with that designation being stamped on the books and design and pamphlets of the company; and that his office in New York was the office of the company. And it was shown that lie communicated with the company as to this attachment, and asked that some action should be taken ; that he had received ■ orders for boilers for the company, and had submitted propositions in its name therefor ; and all this down to and subsequent to the time of the attachment. From the evidence it was manifest that, although the company had a full board of officers and directors, it had done no business for over a year and a half, unless the business done by Colwell was the business of the company ; and yet it was not contended that it had ceased to do business, although affidavits were made by its president and secretary and by Colwell; •and it is certain that Colwell, with the knowledge of the directors, ■continued to hold himself out as manager and general agent. It was to Colwell’s interest to have it appear that he was not doing •business for the company, although styling himself its agent; for he claimed the moneys attached, on the ground that by arrangement with the company they were to be collected by him, as the work for which they were intended as payment was subcontracted by the defendant, and he paid the costs thereof. Notwithstanding this claim, he received an assignment from the company of such moneys after the attachment was levied. Upon the evidence, therefore, it was satisfactorily established that Colwell had the whole management and agency of any business to be done by the •defendant company; that the summons and complaint were deliv•ered to him within the thirty days prescribed by law, and the fact thereof communicated to the defendant, and thus, under the authorities, the provisions as to service were substantially complied with.

The order should be affirmed, with costs and disbursements.

All concur.


author: Giegerich, J.

text:
    Samuel McFadden, Resp’t, v. Herbert P. Campbell et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Negligence — Proof.
    Where the facts proved are as consistent witli the absence, as with the existence, of negligence on the part of the defendant, there is a failure of proof, and it is error to leave the case to the jury
    3. Same — Master and servant.
    A servant, who accepts and continues in a service necessarily hazardous, with knowledge of the character of the work from which an injury may he apprehended, assumes the usual risks and perils of the service, and also those risks which are apparent to ordinary observation.

      ' Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Thomas S. Moore, for app’lts; Robert C. Taylor, for resp’t
   Giegerich, J.

— The defendants, at the time when the accident happened to the plaintiff, viz., on or about the 21st day of December, 1891, were engaged in the storage business at various places in the city of New York. Among their warehouses was one covering the block bounded by Twelfth street, Thirteenth avenue, Bethune and West streets, divided into eight stores, lettered from A to H, in which were stored various kinds of merchandise, piled-in tiers nearly to the ceiling of the several floors. Plaintiff had then be^n in their employ about a year. He. at first was employed as an ordinary laborer, and subsequently, and about Thanksgiving Day, he succeeded one Miller as foreman of store H, the duties of which position were to superintend the receipt and delivery of goods, wares, and merchandise, and the storage thereof, at said warehouse. Before entering the defendants’ employ, plaintiff had been employed in a grocery house, which he testified, “is just about the same thing as a storehouse," for twelve years. He had been employed in storage warehouses about two years, and was “familiar with the various modes of storing goods; familiar with stevedores" work generally.” The complaint charges that, previous to plaintiff’s employment as such foreman, said Miller had been employed by defendants to perform similar services; that said Miller was incompetent to perform the services for which he had been employed; that his said incompetency was known to the defendants, and that; they had nptice thereof; that, previous to plaintiff’s employment as such foreman, the defendants received at said warehouse a large number of bales of rope, which they negligently caused to be stored therein by or under the direction of said Miller; that while-plaintiff was superintending the delivery of certain bales of goatskins, which were stored near and adjoining the place where said-bales of rope had been stored, one of the bales of rope fell upon him, thereby severely injuring him. As the complaint further-charges that “the place where the said plaintiff was so working was rendered unsafe, and that the unsafeness thereof might, by the exercise of care and inspection, have become known to defendants, but no inspection thereof was made, or caused to be made, by said defendants.”

Now, the very first question to be determined upon this appeal is whether any evidence was adduced upon the trial which tends: to show that the accident was due to the manner in which the bales-of ropes were stored; for, if there was not, it is apparent that there-is no necessity for considering the other questions raised upon the-argument of this appeal. Both plaintiff and defendants’ witnesses; testified that in tiering goods each lot should stand on its own bottom, and not receive support from the adjacent goods, this precau-r tian being deemed necessary in order that one lot of goods might be removed without depriving others of support, and causing their-fall The manner in which the rope was stored was described by? one Michael Divyer, a laborer, who assisted in tiering the bales, as-follows:

“ The goatskins were in place before the rope was tiered, and alongside the goatskins there was an open space, in which the-rope was put. The rope was tiered as follows: Certain tiers of it. were first piled, fore and aft, up against the wall of the building. This left a little space in between these bales and goatskins — just-enough for a single side tier of rope to be run in. * *• * The truck was run in with the bale of rope, and was just emptied into this space. As we got higher, and other bales of rope were brought in, tipped, and dumped to fill up the space. There was a single side tier of bales roljed on top of that, filling up the space between the goatskins and the rope.”

From the testimony of the plaintiff, it appears that the goatskins were about five feet high, three to four feet thick, and four feet-wide, and that the bales of rope were in burlap, bound with rope, and were about six feet high, four feet wide, and two and one-half feet in thickness, and stood on end, and that the bales of the latter were not straight, and were in a kind of old straw bagging, the whole of them piled together. It was impossible to give them the right pitch unless they were leaned in against the wall or something.” Plaintiff further testified as follows:

“ Q. Then, did I understand you to say that such rope only are safely tiered up, — when it leaned against something ? A. Yes, sir; leaned against the wall. Q. Was it proper tiering to tier the rope of that character so that it leaned against the next goods ? A. No, sir; that was a poor way. Q. Tell the jury just how that rope ought to be tiered, in a place like that? A. (Witness illustrates, with the model.) The rope was very soft and heavy, — I should, judge, weighed 1,200 pounds to the bale. It would not stand up. straight, of itself. You might take two of them, and let them run. that way (indicates). When you commence to put them up to the wall, you don’t go close to the wall, but come out, and the next bale goes over. Q. You put the layers out a little, and then give them the pitch to the wall? A. Yes, sir. Q. Would it be-a proper way to store rope, — such a kind of rope, — in such a place,, to have the side tier alongside the rope piled in the way you have-indicated? A. No, sir; the proper way would be to put the side-tier in between two. * * * Q. Could rope be piled that way safely, — such tiering that way? A. The way Divyer testified?' Q. Yes, sir. A. No, sir; it would not be proper to pile it that way. It wouldn’t be safe.”

At the time when the accident occurred, plaintiff was engaged in superintending the delivery of 116 goatskins. These adjoined,, in part, the bales of rope, which were to the north thereof. Such bales of rope and goatskins bordered on a gangway about six feet, wide. Plaintiff testified that, with the assistance of .eight men, he .began work at the gangway, and took away bales of, goatskins, that were in front of the side tier, which was only the size of the end of the bales; that.the matting which covered the goatskins had marks thereon which were not clear and distinct, and some diffi.-culty was experienced in finding, from a large number of goatskins, the particular bales numbered in the order which plaintiff was filling.

Plaintiff further testified:

“I shipped and walked around wherever I saw the needed one. There was the porter down stairs, from the store the goatskins "belonged to, and he stood there, and if I saw one he would say, ‘Stop; here is one.’ Then we did not begin again at the tier to the left, to take away the skins. We might find about fifteen ■of them. We may have worked towards the wall. I should say we went ten feet of it. I won’t say, as a matter of fact, we went to the wall. I won't be positive. In this sort of hallway we went in an irregular space of ten or fifteen feet. I should judge I was .about twelve or fifteen feet from the gangway when I was hurt. It was about twenty feet from the gangway to the wall. I was in there about eight or ten feet when it happened. * * * I suppose we moved easily eighty bales. I would go in and find the bale, .and see it was not the right number, and take it and turn it to ■one side. I was making search for these bales.”

John Clarke was substantially the only witness who saw the .accident, and his version thereof, as testified by him, was as follows :

“I was away from him (plaintiff), when he was hurt, about as far as you are from me; that is, I was working there breaking ■out goatskins. Q. Tell us how he was hurt, and what did you .see? A. A bale of rope. Q. What did the bale do? A. His back was towards the bales, and the bale rolled down, and struck him on the shoulders, and knocked him down. Q. Where did the 'bale come from ? A. Came from the tier of rope. Q. What tier was it? A. The side tier. * * * Q. Did you see when it rolled down upon him? A. Yes, sir. Q. How high was it before it rolled down? A. About five feet high, or six ; about six feet, I CTuess. Q. What was it held up before it rolled down? A. I don’t know. I worked in there the same time, back and forth, and rolling out those bags. Q. In the same place? .A. In the same place; yes, sir. Q. It did not fall until this particular time ? A. No, sir. Q. Was it clear there, or any support to it, up to that time? A. Yes. Q. No support? A. No ■support. I had taken the goatskins away from that place. We had taken goatskins away from that place. Those goatskins that I took away were next to the pile of rope. I remove those goatskins. That left a clear space there. I was in there myself, back and forth. This clear space was there before this bale fell. It might be twenty or thirty minutes, —half an hour or more.”

It thus appears from the plaintiff’s evidence that the bales of ;rope stood for the length of time stated by the last witness after •the goatskins were removed. For some unexplained reason, the -top bale — not the whole tier — fell off and struck the plaintiff. The ■outside tier having thus stood the length of time mentioned, can it fairly be deduced from the evidence that the solitary bale fell in -consequence of the manner in which it was tiered ? The evidence in my opinion, does not warrant the drawing of such an inference. On the contrary, the only conclusion which, to nay mind, can be drawn legitimately from the evidence, it that the bale was dislodged from its resting place in the tier by the pulling about of bales of goatskins by laborers who worked under plaintiff’s direction, and by their jostling one an other in the dark, caused partly by their eagerness to finish their job, which they were encouraged to do by the words of the plaintiff: “Come, boys, make a move with these. It is getting twelve o’clock, and we’ll get these down before dinner.” I am confirmed in these views by the testimony of the plaintiff, who, after testifying to having made search for the bales of goatskins, testified as follows :

“Q. Did you watch to see that the goods were all stowed nicely at the time? Did you look at it, up alongside of you, to see how they were? A. I looked up in front; yes, sir; and with the lantern. My mind was on the getting out of the 116 odd numbers of the goatskins. Q. You did not care for anything else? A. How do you mean ? Q. You did not pay any attention to them ? A. I was paying attention to these men. These men were turning out the 116 bales of them skins.”

But conceding, without so holding, that such conclusion cannot be drawn from the evidence, still, as plaintiff’s evidence, at most shows that it is equally consistent with the absence as with the existence of negligence of the defendant, there has been a failure of proof. Hence it was error to leave the case to the jury. Baulic v. Railroad Co., 59 N. Y. 356, 366. The case of Guliano v. Whitenack, 9 Misc. Rep. 8; 59 St. Rep. 738, cited by respondent’s counsel, is not at variance with these views, as in the present case there is not, in my opinion, room for rational doubt either as to the circumstances proved, or as to the conclusions of fact which may properly be drawn from them. Willis v. Railroad Co., 34 N. Y. 679. The burden of proof is upon him who asserts the master’s negligence as the foundation of his claim. Benedict v. Seheider, 38 St. Rep. 201. And, as plaintiff failed to sustain such burden as to a most essential feature of his claim for damages arising out of defendants’ alleged negligence, it was error to submit the question of defendants’ negligence to the jury, and to deny defendants’ motion for a dismissal of the complaint, made when plaintiff rested, and renewed upon the close of the entire case.

There is another reason why the plaintiff should have been non-suited, and this is furnished by plaintiff’s own evidence, which clearly shows that he assumed an obvious danger, — one deary accepted by him as among the risks of the employment. Plaintiff testified that the manner in which the side tier had been piled was unsafe, and that it would not stand without support; and yet, notwithstanding this, he caused.the goatskins which supported it to be removed. These circumstances, considered in connection with the testimony of said Clarke: “There is nothing out of the common in stowing in the side tiers. I worked sometimes in a storage warehouse, and am always on the lookout to see that bales don’t fall upon me when I work there. . If you want to keep yourself safe, you look out ahead of you. You don’t want to get yourself in a hole. To look out to see, in moving bales, you. don’t get hurt. That is quite a common thing,’’ • — show conclusively that plaintiff accepted and continued in a service necessarily hazardous, and with knowledge of the character of the work from-, which injury might be apprehended; and hence it must be held that he assumed the usual risks and perils of the service, and also-those risks which were apparent to ordinary observation. Gibson. v. Railway Co., 68 N. Y. 449; Benedict v. Scheider, supra; Davidson v. Cornell, 132 id. 243; 43 St. Rep. 887.

For these reasons the judgment should be reversed, and a new" trial ordered, with costs to abide the event.

All concur.


author: Bookstaver, J.

text:
    John R. Miller, Resp’t, v. Edgar W. Youmans, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Appeal — Waiver.
    Where a party has accepted, so far as it is for his benefit, a conditional order, granting leave to amend the complaint in an action to foreclose a. mechanic’s lien, neither he, nor the surety on his bond to discharge such-lien, can question the validity of such order.
    8. Same — Estoppel—Bond.
    Where a bond, given to discharge a mechanic’s lien, has been treated by-all the parties as valid, and the lien been discharged upon the faith of it,, the sureties are thereby estopped from denying the validity of the bond.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, directed by the court.

      E. H. Benn, for app’lt ; James Kearney, for resp’t.
   Bookstaver, J.

— This action was brought to recover the sum 'of $1,023.21, the amount of a judgment recovered by respondent, in an action brought by him in this court against Emma S. Olmsted, as owner, to foreclose a certain mechanic’s lien filed by the-respondent against property situate on the northwesterly corner of Spring and Washington streets, in this city, upon a bond executed by Emma S. Olmsted, in pursuance of the provisions of: chapter 342, Laws 1885, to procure the discharge of the respondent’s lien, approved and filed in pursuance of that statute, whereby the lien was discharged. The appellant, Youmans, was one of the sureties upon that bond. By an order made in the action brought to foreclose the mechanic’s lien subsequent to the giving of the bond above mentioned, upon notice to Emma S. Olmsted,, respondent was permitted to serve an amended and supplemental complaint, bringing in and making Miles W. Olmsted, Cyrus Olmsted, the Meyer-Sniffen Company, Limited, John A. Cisco, as executor, etc., and William A. Barwick, parties defendant to-that action, upon the payment of $20 costs and taxable disbursements to the attorneys for the defendant Emma S. Olmsted. The-respondent paid the costs and disbursements provided by the order, and served an amended and supplemental complaint. All the parties thus brought in as defendants in that action answered the amended and supplemental complaint, one of them, Cyrus Olmsted, pleading a counterclaim, to which the respondent replied. The issues so framed were referred to a referee to hear and determine, who subsequently reported in favor of the respondent on the main issues, but dismissed the complaint, without costs, as to Emma S. Olmsted. On this report, judgment was rendered in respondent’s favor, and against the property described in the mechanic’s lien, which decreed the foreclosure of the lien and a sale of the property ; but, as the lien was discharged by the giving of the bond before mentioned, the judgment was declared to be in form only, and granted leave to respondent to pursue his remedy upon the bond. It ateo directed the clerk of the city and ■county of New York to deliver up and surrender to the respond■ent that bond. The judgment remaining unpaid, the respondent • applied to this court at special term, upon notice to appellant, for leave to sue in his own name for the breach of the condition of the bond; and an order granting such leave was duly made, whereupon this action was brought. On the trial, the evidence offered on behalf of respondent was received without objection, and no evidence was offered on behalf of the appellant, who relied solely upon the questions raised on the motion to dismiss the •action made at the close of the evidence. This motion was made on the ground that the action was originally brought against Emma S. Olmsted, the principal in the bond, as owner of the property, and that the action was subsequently changed to one against Miles W. Olmsted, as owner of the land, and because the judgment was recovered against him, and not against Emma S. Olmsted.

Upon this appeal the appellant contends that she never contracted any such liability; that she was not in any way surety for Miles W. Olmsted ; and also that the order in the original action bringing in new parties, and allowing the plaintiff in that action to serve an amended and supplemental complaint, was without jurisdiction, and void. But we think neither contention is well founded. The court had complete jurisdiction of the cause of action. The order complained of made in that action cannot be collaterally attacked. Besides, the defendant in that action, Emma S. Olmsted, accepted from the plaintiff therein, payment of the costs and disbursements upon which the order was allowed, answered the amended and supplemental complaint, and, upon the issues thus raised, proceeded to trial. Under similar circumstances, it has been decided that a party cannot accept, so far as it is for his benefit, a conditional order granting leave to amend, and then question the validity of the order. Smith v. Rathburn, 75 N. Y. 122; Austin v. Wauful, 36 St. Rep. 799. If the parties to the original action, by their acts, are estopped from questioning the validity of the order now complained of, the surety also is.

But- the court was certainly right in granting the order. Section 8 of the mechanic’s lien act provides that the manner and form of instituting and prosecuting actions commenced thereunder to judgment shall be the same as in actions for the foreclosure of mortgages upon real property, except as in that act otherwise provideil; and in those actions it is always within the power of the court to bring in such parties as are necessary to a complete adjudication of the matters in controversy. Moreover, it appears from the case that there was then another action pending by another lienor, to foreclose a lien, commenced subsequent to the Miller action ; and section 1814 of the consolidation act provides for the? consolidation of such actions.

The contention of the appellant that he has never contracted a-liability to pay the judgment recovered in the mechanic’s lien action, and that he never intended to become surety for Miles W. Olmsted, might be sustained if the undertaking had been that Emma S. Olmsted should do or omit to do any particular act or' thing; but such a contention entirely overlooks the condition of the bond, which is “ that the said Emma S. Olmsted, or her legal representatives, shall well and truly pay any judgment that may be rendered against said property in any proceeding to enforce the aforesaid lien,” etc. The judgment sought to be recovered in this action is against the property, and the event in which the defendant’s liability became fixed happened. It is true, it is not a judgment against Emma S. Olmsted, the principal named in the bond, that respondent recovered, but it was not the condition of that bond that plaintiff should obtain judgment against her. Such a judgment is entirely foreign to the condition of the bond. All the respondent is required to do in an action of this character is? to prove a judgment rendered in proceedings to enforce the lien. This the plaintiff has done. Morton v. O'Keefe, 10 Misc. Rep. 588; 64 St. Rep. 23.

In Morton v. Tucker, 145 N. Y. 244; 64 St. Rep. 685, it is-said:

“ The sureties in the bond (to release the mechanic’s lien) intended and must be understood as undertaking to pay the amount which it should be adjudged was due and owing to the plaintiffs, and which was chargeable against the property by virtue of their notice of lien. In other words, the condition was for the payment of any judgment which might have been rendered against the property had not the bond been given. The bond, as we have seen, is given to discharge the lien. It is one of the proceedings-provided for by the statute, and it was evidently intended that-the bond should take the place of the property, and become the subject of the lien, in the same form and manner as provided for in the case of the payment of money into court, or the deposit of security under an order of the court after action brought.” Citing Ward v.- Kilpatrick, 85 N. Y. 413.

The bond upon which this action is brought having been treated by all the parties as valid, and upon the faith of which the plaintiff’s mechanic’s lien was discharged of record, the sureties are thereby estopped to deny the validity of the bond. Goodwin v. Bunzl, 102 N. Y. 224; Sheffield v. Robinson, 62 St. Rep. 768.

No question having been raised to the form of the action, the judgment should be affirmed, with costs.


text:
    William E. Barwick, Resp’t, v. Edgar W. Youmans, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Appeal from a judgment entered on a verdict in favor of plaintiff, directed by the court.

      E. H. Benn, for app’lt; James Kearney, for resp’t.
   Bookstaver, J.

— This action differs from Miller v. Youmans (handed down herewith), 68 St. Rep. 188; only in the fact that the action to foreclose the mechanic’s lien in which the bond upon which this action is brought was given was brought subsequent to the commencement of the Miller action ; that this plaintiff was brought in as a defendant in the Miller action by order of the court dated the 30th of September, 1891; and that the amount of the recovery was different. The other facts being the same, the same conclusion is arrived at in this action as in Miller v. You-mans, and the judgment must, therefore, be affirmed, with costs to the respondent.

All concur.


text:
    Benjamin G. Sanford, Resp’t, v. American District Telegraph Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Pleading — Amendment.
    The plaintiff will not be permitted on the trial to amend his complaint, in order to conform it to the proof, by substituting a cause of action for a tort, in the place of one on contract.
    3. Same.
    The consent of the defendant to such substitution cannot be inferred from the character of the evidence admitted without objection, where such evidence is relevant to the issues made by the pleadings.
    3. Same — Form of action.
    The complaint, in this action, was held to allege a breach of contract and not a tort.
    Appeal from a judgment of the city court, affirming a judgment, entered on a verdict in favor of plaintiff.

      Geo. H. Fearons and Rush Taggart, for app’lt; McIntyre & Settel, for resp’t.
   Bischoff, J.

— Under a contract between it and the Continental Bank, the defendant, a corporation organized under the laws of the state of New York, had installed one of its “call” instruments at the place of business of the bank in the city of New York. On November 13, 1891, the plaintiff, a bookkeeper employed by the bank, and with its consent availing himself of the call ” instrument, summoned one of the defendant’s employes, to whom he delivered a sum of money, with directions to deposit the same with the Bank of the State of New York, which was. situated several blocks distant. The messenger, through carelessness, lost the money, and the plaintiff thereupon brought this. action for indemnity. The defendant disputed its liability, assigning as grounds that its messenger’s services were.not employed in the business of the Continental Bank, but in the plaintiff’s personal business. In other words, the defendant contended that, ■because it had held no contractual relation with the plaintiff, it owed him no duty for the breach of which an action would lie. The trial court ruled against this contention. A verdict .was rendered for the plaintiff, upon which judgment was entered against the defendant. The judgment was affirmed at general term in the ■court below, and from the judgment of affirmance the defendant lias appealed to this court.

Upon the trial it appeared that the defendant was engaged in 'the business of supplying messenger service for the use of all persons who chose to avail themselves of its facilities, and were willing to pay the rates, and to submit to the conditions, rules and regulations established by the defendant for the proper conduct, of its business; that for such purpose the defendant maintained a central and branch offices, each equipped with a force of necessary employes of its own selection, whose particular duties were to carry messages, packages, and parcels for the defendant’s patrons, and extended to the performance of all the ordinary errands which are incident to business and private life; that any patron could, upon payment of the additional expense thus to be incurred, and assuming to be responsible for the payment of the defendant’s proper charges for services supplied through the medium of its use, have installed at his residence or place of business a “call” instrument, which is connected electrically with the defendant’s nearest office, from which, in response to a signal or “call" transmitted with the aid of the instrument, the officer in charge despatches a messenger to attend for service at the particular patron’s •address. It furthermore appeared conclusively that the plaintiff sustained the loss complained of by him in the manner hereinbefore stated.- That upon the facts as they appeared upon the trial the defendant is liable in damages for the loss sustained by the plaintiff seems indisputable. It undertook, “ as a business, to carry from one place to another the goods of all persons who may apply for such carriage, provided the goods be of the kind which it professes to carry,” and was, therefore, a “common carrier.” 2 Am. & Eng. Enc. Law, p. 777; 2 Kent, Comm. (Lacy’s Rev. Ed.) *599; And. Law Dict. 150; 2 Bouv. Law Dict. 299; Bish. Noncont. Law, §§ 1057, 1151, 1185. As such, its duty to carry existed independently of any contract. Its business was affected with a public interest, and it was bound to serve, without discrimination, all who applied to it in the course of its business, and who, upon request, were willing to pay its reasonable charges, and to submit to its reasonable conditions, rules, and regulations. Lough v. Outer-bridge, 143 N. Y. 271, 277; 62 St. Rep. 324; Nolton v. Railroad Co., 15 N. Y. 444; Rich v. Railroad Co., 87 id. 382. Having assumed to carry, the defendant was, furthermore, under an imposed duty, aside from any duty which it might contractually assume, to do so with.due care. Coggs v. Bernard, 1 Smith, Lead. Gas. 382; Rich v. Railroad Co., supra; Bish. Noncont. Law, §§ 74,1184; 16 Am.

& Eng. Enc. Law, 415; Cooley, Torts (2d ed.) 105. Hence, for inexcusable neglect in the performance of such imposed duty the defendant was liable in damages ex delicio to all persons who sustained loss from such neglect, and for the negligent performance of its contractual duty it was liable in damages ex contractu to the particular person with whom it had contracted to carry. Cooley, Torts (2d ed.) pp. 103, 106, and cases collated in note 1; Shearm. «& R Neg. § 4; 16 Am. & Eng. Enc. Law, p. 387, tit. “Negligence,” subtit. “ Analytical Description”; 2 Am. & Eng. Enc. Law, p. 903, and cases collated in note 3. The degree of care to which the defendant was held as a “ common carrier ” of goods was that of an insurer of their safe delivery, and from the consequences of a. loss of the goods intrusted to it for carriage it was •absolvable only by vis major and the acts of the common enemy. Door v. Navigation Co., 11 N. Y. 485; Merritt v. Earle, 29 id. 115; Read, v. Spaulding, 30 id. 630. For the predicament of the defendant’s liability ex delicto, therefore, proof of a contract with the plaintiff for the carriage of the money lost was not essential. It was sufficient that the money was the property of the plaintiff, that it was received by the defendant for carriage, and that the latter omitted to make delivery thereof. The messenger dispatched in response to the plaintiff’s signal was without express authority to contract for the carriage of the money with the plaintiff in the •defendant’s behalf. He was a mere servant, bound, only to obey his master’s lawful directions. No such authority was, we think, inferable from the character of his employment. Nevertheless, his dispatch to attend for service at the Continental Bank clothed the messenger with the limited apparent authority to accept for the defendant whatever its patron, the' bank, or those acting for or with the consent of its patron, saw fit to intrust him with, and was in the usual course of the defendant’s business to receive. Thus the rule respondeat superior (Broom, Leg. Max. [8th Am. Ed.] 842)-applied. The messenger’s custody was the defendant’s custody; his default that of the defendant. No implication arose from the installation of the “call” instrument at the place of business of the bank that its use was to be limited to the affairs of the bank; and whether or not the use of the “call” instrument by the plaintiff, with the consent of the bank, implied an adoption on his part of the limitation of defendant’s liability for the default of its messengers, provided for in the contract which accompanied the installation of the instrument, is a question which does not arise in the case at bar, because not presented by any exception which appears in the record. For a fatal variance between the pleadings and the proof, however, and a resulting failure of proof to sustain the cause of action alleged in the complaint, of which the defendant sought to avail itself by motions for dismissal of the complaint, made when the plaintiff closed the introduction of his direct evidence, and again when the cause was about to be submitted t'a the jury, and to the denials of which motions, severally, due exception appears, the judgment for the plaintiff must be reversed.

The gravamen of the complaint is the neglect of the defendant-to deliver a sum of money which it had received under an alleged contract of carriage between the plaintiff and the defendant. Hence the cause of action alleged was ex contractu. This is apparent from the allegations that “ the defendant, through its lawful and. authorized representative, received from the plan tiff the sum of one hundred and seventy-five dollars ($175.00) lawful money of the-United States of America, to be delivered for deposit in the Bank of the State of Hew York, for a good and valuable consideration”; and “that thereupon, in consideration thereof, the defendant undertook and promised the plaintiff to transport and deliver the same to the Bank of the State of Hew York,” which it “negligently and carelessly omitted to do.” Proof of the alleged contract was therefore, a constituent of the cause of action, without which the cause of action was not apparent. True, at the time of the several motions for dismissal of the complaint, the defendant’s counsel did not in those words call the attention of the trial court to the failure of proof or the variance between the complaint and the proof, but we cannot ignore the fact that such was the effect of the ground stated. The evidence upon which reliance was had bv the plaintiff for proof of the contract alleged was the delivery of the money to the messenger dispatched by the defendant. This,, for the absence of express or apparent authority on the part of the messenger to contract in the defendant’s behalf, was, as stated, palpably insufficient, and the defendant’s counsel thereupon moved the dismissal of the complaint upon the ground that the messenger’s authority to contract was not shown. Heither could the trial court, against the defendant’s objection, without disregard of established principles of pleading and recovery, have directed an amendment of the complaint to conform if to the proof, since such a direction would have involved the substitution of an entirely new and different cause of action. Code Civ. Proc. § 723 ; Bay-lies, Code Pl. 321. It is the settled rule that the recovery must, in every instance be secundum allegata et probata (Romeyn v. Sickles, 108 N. Y. 650; 13 St. Rep. 864; Southwick v. Bank, 84 N. Y. 420; McLewee v. Hall, 103 id. 639, and it is not to be said in the case at bar that the consent of the defendant to the substitution of a cause of action ex delicto is inferable from the character of the evidence admitted without objection, Frear v. Sweet, 118 N. Y. 454 ; 29 St. Rep. 972, since such evidence was relevant to the issues which were made by the pleadings. The objection of a defendant to the plaintiff’s recovery ex delicto in an action ex contractu is not without force, because of the gravity of the results, to the former. The nonjoiner of necessary parties defendant may be available as a defense in an action ex contractu, and not so i lian action ex delicto ; compensatory damages only are recoverable-in the former, punitive as well as compensatory damages in the-latter; in the one, the judgment is enforceable only as against property; in the other, against the person as well. 2 Am. &• Enc. Law. p. 902, cases collated in note 3; Pom. Rem. Eights (2d ed.) §§ 558-562. The judgments of the general and trial terms of the court below should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.


text:
    Henry A. Bogert, as Trustee, etc., Resp’t, v. George Bliss et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Mortgage — Payment.
    Where a bond secured by a mortgage is paid, and a consent to satisfy the mortgage is executed by the mortgagee and delivered to the mortgagor, the mortgage is thereby satisfied.
    2. Same — Reissue.
    After such payment, it is not competent for the mortgagor and mortgagee, or either of them, to revive its effect as a lien as against third persons!
    3. Same.
    Such lien is not reinstated by an assignment of the bond and mortgage by the mortgagor to a third person, against one, who took a mortgage on the premises to secure money advanced to the mortgagor, without notice of the assignment.
    Appeal from an order, confirming the report of the referee in proceedings for the distribution of surplus moneys arising from the sale of the mortgaged premises.

      Bliss & Schley, for app’lt; Abm. I. Elkus, for resp’t.
   Bischoff, J.

— The contention of the parties to this appeal is with regard only to the order of priority in which they were adjudged to be entitled to share in the distribution of the surplus moneys which arose from the sale of the mortgaged premises. In May, 1891, one Striker, the owner, and his wife, executed and delivered a mortgage to Weil to secure the payment to the mortgagee of $1,000 advanced by him upon Striker's bond, which was to mature one month later. This mortgage was duly recorded on the day of its date, and at maturity was paid; the mortgagee executing and delivering his consent to its discharge of record. The bond also was returned to the obligor, but the mortgage was still in the custody of the register. The consent to the discharge of the mortgage was never placed upon record ; and after its delivery to the defendant Robert, as hereinafter mentioned, was destroyed by Striker, or with his consent. In July, 1891, Striker received a loan of $1,000 from Robert, to whom he delivered the bond and consent above mentioned, upon the oral understanding that the documents delivered, as well as Weil’s mortgage should constitute Robert’s security. In April, 1892, Weil formally assigned the mortgage to Robert, which assignment was at once recorded. In August, 1891, the defendant Bliss made an advance of $1,000 to Striker, which the latter promised to repay, and to secure the repayment of which, he, with his wife, executed and delivered a deed of the mortgaged premises to Bliss. This deed was recorded in November, 1891. Upon these facts, the referee concluded that Robert was entitled to priority over Bliss.

When the Weil mortgage was paid, it became functus officio,. and the mortgaged premises discharged from its further lien. 15 Am. & Eng. Ene. Law, n. 875, and cases collated in note 1. “By payment, the whole mortgage is extinct; as much so as if released or paid and canceled of record. It ceases to operate either at law or in equity, and the whole title revests in the mortgagor. To call it a ‘ mortgage’ would be an abuse of the word. It is no more than a blank.” Cameron v. Irwin, 5 Hill, 272, 275. “Ho estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.” 3 Rev. St. (Banks & Bros.’ 7th ed.) p. 2326, § 6. Obviously, therefore, after the Weil mortgage was paid, it was not competent for the mortgagor and the mortgagee, or either of them, to revive its effect of a lien by paroi agreement (Mead v. York, 6 N. Y. 449 ; Marvin v. Vedder 5 Cow. 671), at least as against third persons.

Ho estoppel arose in Robert’s favor. Ho misrepresentation of the true character of the Weil mortgage was made to him. He .knew that it was paid and defunct, the evidence of the fact having been surrendered to him, Weil’s previously executed consent to its discharge, and the bond in the possession of the obligor. 18 Am. & Eng. Enc. Law, p. 206, and references in note 1. For the purposes of an estoppel, it must appear that there was a misrepresentation or concealment; that it was made with knowledge of the facts to one ignorant of them ; that it was made with intent that it should be acted on; and that it was acted on. Bigelow, Estop, p. 480 et seq. And of what effect upon the defendant Bliss’ rights was his alleged constructive notice, from the fact of the record, of a defunct mortgage ? He did not know at the time of Striker’s deed to him, so far as appears, that Robert had taken the Weil mortgage as security for a further loan, and that fact did not appear of record. Possibly, as between Striker and Robert, the assignment and delivery to the latter of the Weil bond and mortgage, upon the oral- understanding that it should be security for a loan by Robert, was an equitable or informal mortgage — an agreement for a mortgage — of which a court of equity may compel specific performance. Such an oral agreement is taken out of the operation of the statute of frauds by the fact of performance on the part of one of the parties thereto. Sprague v. Cochran, 144 N. Y. 104, 112; 63 St. Rep. 63, and cases cited ; Rockwell v. Hobby, 2 Sandf. Ch. 9; Jackson v. Parkhurst, 4 Wend. 369. But “ every conveyance of real estate, within this state, hereafter made, shall be recorded in the office of the clerk of the county where such real estate shall be situated, and every such conveyance not so recorded shall be void as against any subsequent purchaser, in good faith and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.” 3 Rev. St. (Banks & Bros.’ 7th ed.) p. 2215, § 1. That the defendant Bliss was a purchaser for valuable consideration is conceded, and found by the referee The deed from Striker and wife to him was duly recorded. His good faith cannot be impugned upon any theory of constructive notice of that which was not a lien— a defunct mortgage — in the absence of notice, actual or constructive, of the oral agreement for its revival. Obviously, no one-can have notice of that which does not exist.

The learned judge at special term, in sustaining the conclusion of the referee, cited Purser v. Anderson, 4 Edw. Ch. 18 ; Champney v. Coope, 32 N. Y. 543; Kellogg v. Ames, 41 id. 259, and Coles v. Appleby, 87 id. 114. The Purser Oase, however, is direct authority for the position assumed by us in the present. While allusion "was not made by him to the statute of frauds and the recording act, the vice chancellor decided that the assignee of the once defunct mortgage could not enforce his rights thereunder as against another mortgagee, and the creditors of the mortgagor, whose rights had intervened between the dates of payment of the mortgage, its assignment, and the oral agreement for its revival. In the Champney, Kellogg and Coles Cases the ratio decidendi very clearly appears to have been the intention of the mortgagor or owner of the equity of redemption, at the time of the payment of the mortgage debt, to preserve the lien, by which its merger was prevented.

We attach no significance to the point attempted to be made by the defendant Bliss that he was at least entitled to so much of the surplus moneys as represented the dower interest of Mrs. Striker. Her joinder in the deed of her husband' to the defendant Bliss operated as a release merely, not as a.conveyance of any interest or estate. Witthaus v. Schack, 105 N. Y. 332 ; 7 St. Rep. 345; Hinchliffe v. Shea, 103 N. Y. 153.

The order appealed from should be reversed, and the decision of the referee modified or amended by directing priority in payment of the defendant Bliss’ claim; and, as so modified or amended, the decision of the referee should be confirmed. The appellant should have the costs of this appeal, payable out of the fund. All concur.


author: Bookstaver, J,

text:
    William Pierpont, Resp’t, v. Ellen T. McGuire, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

      1. Assignment por benefit of creditors — Surety.
    A judgment against an assignee for the benefit of creditors is prima facie evidence against the sureties on the assignee’s bond.
    3. Same — Demand.
    A demand upon the sureties is not necessary, where a judgment has been recovered against the assignee.
    3. Same — Delay.
    Mere delay does not relieve the surety from liability.
    4. Same — Pleading.
    The allegation of the recovery of the judgment against the assignee is a sufficient pleading of the indebtedness.

      5. Appeal — First instance.
    It is too late on appeal to raise for the first time an objection, involving a clerical error which would have been corrected in the court below if attention had been directed to it.

      Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      S. M. Hitchcock, for pl’ff; Thomas J. McKee, for deft.
   Bookstaver, J,

— This action is against the defendant, as administratrix, etc., of John T. McGuire, deceased, who was one of two sureties upon a bond executed and approved November 1, 1892, conditioned for the faithful performance by George Barker, as assignee under a general assignment, of his duties as such assignee, and that he should duly account for all moneys received by him. Thereafter, upon a petition made by the plaintiff herein, an order was entered December 7, 1883, requiring the said George Barker to make and file an account of all his proceedings as assignee. In compliance with this order, on December 28, 1883, Barker filed an account as directed ; and on January 4, 1884, an order was entered directing that the account be referred to a referee, to take and state the same. Upon the referee’s report, an order was made December 15, 1885, which was entered as a judgment October 3, 1887, directing, among other things, that the costs of the proceeding ($361.66) be paid by George Barker personally, and that he pay on demand, to the plaintiff herein, the sum of $530.76, together with interest on $400 part thereof from January 2, 1885, at six per cent, per annum. This action was originally brought against John T. McGuire, and on his death it was revived against his administratrix, upon plaintiff’s motion.

The case of People v. White, 28 Hun, 289, is almost upon all fours with the case at bar. It was there held that a judgment against the assignee is prima facie evidence against the indemnitors, whether he received notice of the proceedings or not, but he may be let in to show that the principal had a good defense to the claim. Insurance Co. v. Wilson, 34 N. Y. 275. The want of notice does not go to the cause of action. Id. Defendant’s motion to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action was properly denied. The recovery of the judgment, being set out, was a sufficient pleading of the indebtedness. Demand is not necessary where a judgment has been recovered against the assignee (Code Civ. Proc. § 1891); but, if it were, execution was duly issued and returned unsatisfied,which was a good demand. Mere delay does not relieve the surety from liability. People v. White, supra. The defendant, by answering, has waived all objections to the complaint, except the objection to the jurisdiction of the court, and that the complaint does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 499.

The objection that the petition for leave to sue recited a judgment entered March 21, 1887, while the complaint is based upon a judgment entered October 3, 1887, and that the order granting leave to sue was therefore invalid, should have been taken by motion (Code Civ. Proc. § 1892); and, at most, it was but a clerical error, which could have been corrected had plaintiff’s attention been directed to it, and it is too late now to raise the objection.

The procedure followed by the plaintiff in bringing this action is authorized by article 2, tit. 4, chap. 15, of the Code of Civil Procedure, and section 1915 of the same, under which leave to •sue may be granted to any creditor, In re Stockbridge, 10 Daly, 33; and these provisions of the Code, having been passed in 1880, •seem to have superseded section 9, chap. 466, Laws 1877. The inventory was a material part of the judgment pleaded, and, as such, was prima facie evidence of the facts therein set forth.

The other objections noted in defendant’s points either were not raised upon the trial, and are not the subject of review, or have •already been answered. Mo error appearing, the exceptions are overruled, and judgment for plaintiff, as directed below, with -costs. All concur.


text:
    Frederick W. Prior, App’lt, v. Henry M. Flagler, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Master and servant — Services—Termination.
    The contract of employment is dissolved by the servant becoming disabled from performing services thereunder.

      2. Sanee — Consideration.
    In such case, an agreement to pay the servant his wages if he would resign his employment is without consideration.
    3. Appeal — Harmless error.
    No reversal will result from harmless error.
    Appeal from a judgment of the city court, affirming a judgment dismissing the complaint for failure of proof.

      Edwin R. Root, for app’lt; Boudinot Keith, for resp’t
   Bischoff, J.

— The judgment directing the dismissal of the -complaint was rightfully rendered, and should be affirmed. The plaintiff was employed by the defendant as chef in the kitchen of the Hotel Alcazar, at St. Augustine, Fla., for the season of 1892-'93, at an aggregate salary of $750. A little more than three weeks after his employment began, the plaintiff met with a mishap, through whose fault does not appear, from which he sustained personal injury which disabled him from further service during the tgrm. While at the hospital, he testified, one Tomlinson, another of the defendant’s employes, promised, in the defendant’s behalf, that he (the plaintiff) would receive the stipulated salary if he would resign his employment, to which, the plaintiff further -testified, he agreed; and it was upon this alleged oral agreement .that the plaintiff sought recovery in this action.

When the plaintiff became disabled, the contract of employment was dissolved, each of the parties thereto being released from further performance. Wood, Mast. & Serv. (2d ed.) § 122, p. 237; Fisher v. Monroe, 34 St. Rep. 760. He then had no employment to resign, no right of return to service to yield. Whereof, then, did the consideration for the defendant’s alleged promise consist ? •Obviously, there was none; yet it is elementary that from the •nonfulfillment of a mere promise no cause of action can accrue. ¡But, the appellant’s counsel urges, the judgment must be reversed because the trial court committed error in the exclusion of evidence proffered by the plaintiff, and which tended to show that Tomlinson had authority from the defendant to make the promise. Not so. Let us assume that Tomlinson had such authority.. How could that have aided the plaintiff, in the absence of proof of the constituent of a valid contract, a consideration ? We fail to see. It is manifest that the exclusion of evidence of Tomlin-son's authority, if error it was, did not prejudice the plaintiff, and, to sustain his right to a reversal of the judgment, it was incumbent upon him to show that he was prejudiced by the rulings of the trial court, Tracy v. Altmyer, 46 N. Y. 598, 604; Appleby v. Bank, 62 id. 12, 18; Carman v. Pultz, 21 id. 547; Briant v. Trimmer, 47 id. 96; Standard Oil Co v. Triumph Ins. Co., 64 id. 85; Phillip v. Gallant, 62 id. 256, 265. From harmless error no reversal will result. Tenney v. Berger, 93 N. Y. 524; Thorne v. Turk, 94 id. 90; Story v. Association, 95 id. 474; Ellwanger v. Fish, 60 id. 651; Flannagan v. Maddin, 81 id. 623; Downs v. Railroad, Co., 56 id. 664. Judgment affirmed, with costs.

All concur.


text:
    Theron S. Atwater, Resp’t, v. Edward C. Wilson et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Brokers — Compensation.
    The fact that a sale is finally made by the owner directly to the purchaser, is not alone effectual to defeat the broker’s claim to commissions.
    2. Same.
    The evidence, in this case, was held sufficient to sustain a finding that, the plaintiff was the procuring cause of the sale.
    Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff.

      Smith Lent, for app’lts; Alfred B. Cruikshank, for resp’t
   Giegerich, J.

— This action was brought to recover broker’s commissions on the sale of certain real property situated at Peeks-kill, Westchester county, N. Y., and by consent was referred to-a referee, who found in favor of the plaintiff. The judgment, entered upon the referee’s report having been affirmed by the general term of the city court of New York, the defendants appealed to this court. The principal questions presented for solution upon this appeal are whether there was any evidence (1) that the plaintiff was the procuring cause of the sale, and (2) that his agency continued to the time of the sale. It appears from the undisputed evidence that the plaintiff had the property in his hands for sale for a period of nearly three years ; that he advertised it at his own expense about twenty times in the New York papers during that period; that he visited the property three times with a view of selling it; that he first called the attention of one Henry W. Bates-to it, and for many months continued the negotiations in an effort. to “work Bates up” to the defendants’ terms. At last, after various proposals and withdrawals, not necessary to recount, Bates offered the plaintiff $500 if he would buy the property for him. for $27,500, which offer the plaintiff most properly refused; but asked- Bates to make it an offer of $28,000. Plaintiff testified that Bates agreed to this, which Bates denied; but it appears from the undisputed evidence that a short time after this interview the plaintiff reported an offer of $28,000 to the defendants, who- were at the time asking $80,000. Meanwhile Bates, according to his own testimony, “ asked another broker to buy it for me (him) for $27,000," coupling the request with a promise of $500 to the so called broker Crouch, who it seems was really an attorney at law.. The course of the transaction immediately thereafter is shown by a letter from the defendant Wilson to the defendant Hobby under date of March 2, 1898, from which the following is an extract: Mr. Crouch knows a party who will give $27,000 for the farm if we are willing to sell it at that. * * * Mr. Crouch will go-to see him if we will allow him the two and a-half per cent, commissions. * * * I have signed a .contract in case you think it. advisable to sell, so that Mr. Crouch can see his party at once, which he agreed to do in case we accepted the offer. Naturally Bates did not stand to his offer of $28,000, as it had. been learned by his agent, Crouch, that the less offer made through the intermediation of Ingersoll, would be accepted by the defendants if the sale could not be made at $28,000. Under the circumstances, we think there was sufficient evidence to support the conclusion of the referee. Bates was an intending purchaser, whom the plaintiff had procured, and on whom he had long worked to create such a desire for the property that an offer satisfactory to the defendants might result. That his efforts were successful is evident from the fact that Bates, after failing to induce the plaintiff by the offer of $500 to use his influence in securing the property at a lower figure than his employers, the defendants, were asking, so far as his latest information disclosed, engaged another to make the purchase. Bates took the initiative, and selected his own agent and intermediaries, Crouch, Ingersoll, and Freeman, who-acted for him, and the purchase was as much his act as though performed by him directly. The fact that a sale is finally made-by the owners directly to the purchaser is not alone effectual to-defeat the broker’s claim to commissions, Lloyd v. Matthews, 51 N. Y. 124; Martin v. Silliman, 53 id. 615 ; Hanford v. Shapter, 4 Daly, 243; nor does the fact that the price obtained was not what the broker was instructed to procure have that effect, Gold v. Serrell, 6 Misc. Rep. 224; 55 St. Rep. 696: Levy y. Coogan, 16 Daly, 137; 30 St. Rep. 553; Baker v. Thomas, 67 St. Rep. 275; 33 N. Y. Supp. 613. This case is distinguishable from Sibbald v. Iron Co., 83 N. Y. 378, where the plaintiff’s agency had been unmistakably terminated by the defendants in good faith, and for good cause. Here we do not think that the evidence necessarily shows such a termination. True, one of the defendants testified that he thought they told the plaintiff they had an offer--that they were going to accept. But this is not as strong as the somewhat similar evidence in Hendricks v. Daniels, 46 St. Rep. 384, where the principal told the broker that he was about to ac•cept another offer unless the broker produced a certain purchaser who had been negotiating and had made an offer which the principal was willing to accept, but who had failed to appear and close the transaction as promised. The broker answered that “ he had not seen him since Friday, and he presumed the matter had been dropped,” and at the same time said “ he claimed a commission if the defendant sold to any one who had seen him.” Chief Judge Daly, who spoke for the court, said:

“ There was no notice to the defendant that Randrup (the broker) was still negotiating with the party. On the contrary, the notice was, in effect, that the negotiations were at an end."

Besides, it should not pass unobserved that the latter case was an affirmance of a judgment entered upon the verdict of a jury, while this is a case in which a conclusion that there was a termination of the agency would lead to a reversal of a judgment affirmed by the general term of the city court of New York, a case in which we are only to inquire whether there is any evidence to support the judgment. Gold v. Serrell, supra. The evidence is this case is, we think, susceptible of contrary inferences as to the termination of the agency. The defendants did tell the plaintiff that they were about to accept another offer unless he produced his purchaser; but there had been so many proposals and counter proposals, offers, withdrawals, and refusals, notwithstanding which the plaintiff’s agency continued uninterrupted, that we think the referee and the court below were warranted, in view of all the facts, in inferring that there was no intention to terminate the agency. Winans v. Jaques, 10 Daly, 487, which was a reversal of a judgment entered upon the verdict of a jury, is hard to distinguish from the present case. There the circumstances were as follows: Stevenson, plaintiff’s assignor, was a real estate broker employed by the defendant to sell certain premises in the city of New York. He found a Mrs. ‘Gill, who wanted such property. She told her husband of it, and he informed another broker, his friend, of the facts. That broker secured one Sewell to make the purchase on behalf of Mrs. Grill, to whom Sewell assigned his contract, and to whom the defendant -conveyed the property. Before such conveyance the defendant objected that some claim might be made by another broker for commissions, but was assured that no such claim could be made, .•and that the law required him to make the deed to the assignee of "the contract. Judge Van Brunt, in speaking for the court, ■■said:

“* * * It would appear as though it was a scheme upon the part of Mr. Grill to defraud Mr. Stevenson out of his commissions, and enable his friend Mr. Griswold to make such commissions. It may be unfortunate that the defendant in this action has ■been victimized by such a scheme, but that misfortune cannot deprive the plaintiff in this action of his right to recover.”

The above case cannot be distinguished from the present, even in the circumstance that the defendant bad notice before the conveyance was made that the real purchaser was one whom the plantiff had secured. The plaintiff here testified that he stated to the defendants that the other offer they were considering was from Bates, and his testimony is uncontradicted. This case is unlike Baker v. Thomas, supra. There an interval of two months elapsed between the last act of the plaintiff and the sale, which was then made through a different broker. Here there is no room for a presumption of the intervening and efficient agency of any other. ‘The only broker, so far as appears from the evidence, employed •by the defendants, and who negotiated between them and Bates, was the plaintiff. He remained steadily loyal to their interests, and the customer whom lie had found purchased the property .through his own agents. The judgment wrought no hardship •upon the defendants. They were not even exposed to the payment of double commissions, as in Winans v. Jaques, supra, because Crouch could not enforce a claim against them if they were unaware that he had been paid by Bates to act for him, Condit v. Bill, 44 St. Bep. 284, and citations.

For these reasons the judgment should be affirmed, with costs.

All concur.


text:
    Luzan J. Adams, App’lt, v. Kate S. Burr, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Landlord and tenant — Eviction.
    A tenant is not justified in abandoning the demised premises, where the matters which constitute the alleged eviction ceased some time before the abandonment.
    :3. Appeal — Exceptions.
    Where no ground of objection to evidence offered is stated, the exception is valueless for purposes of review.
    Appeal from a judgment in favor of defendant, rendered by the justice without a jury.

      R. Lyons, for app’lt; Edward Hassett, for resp’t.
   Bischoff, J.

— To an action for rent the defendant, after pleading a general denial, interposed a counterclaim for medical expenses, arising from the landlord’s failure to furnish sufficient heat for the apartment in question, which was part of a building heated generally by steam. Upon tbe trial no damages were proven, and the counterclaim apparently was abandoned, but defendant gave proof, without objection, tending to show a modification of the written lease for a year, upon which the action was brought, and its practical discharge; the defendant, according to the witnesses, •holding thereafter as a tenant from month to month. Evidence was also adduced whereby it was sought to prove an eviction. ’New issues were thus introduced upon the trial by consent of the parties. Frear v. Sweet, 118 N. Y. 454; 29 St. Rep. 972. From the record it appears that defendant removed from the premises about the last day of June, 1894, and the rent claimed in this action is that falling due under the lease for the months of July and

August. It may be said that the claim of eviction was not sustained by the proof. This claim was founded upon the fact that, insufficient heat was furnished the premises by plaintiff during the month of May, and that defendant’s comfort was interfered with by the presence of certain disorderly tenants occupying the apartments immediately above her own, which tenants, however, removed from the building six weeks before the defendant’s departure. Thus it would appear that the matters constituting the alleged eviction had ceased to afford ground for this tenant’s abandonment of the premises for a considerable period prior to the time when the abandoment actually occurred, and hence no justification for it was apparent upon the theory advanced. Ryan v. Jones, 2 Misc. Rep. 65; 49 St. Rep. 140. However, sufficient evidence-appears in support of a finding that the lease upon which plaintiff claims was discharged, and that defendant held the premises as-tenant from month to month, which tenancy had been terminated prior to the accrual of the rent sued for; therefore the judgment, in favor of defendant is to be supported. The exceptions taken by appellant are not relied upon, and our examination of them discloses no prejudice. Moreover, we find that in no instance was-the ground of the objection to evidence offered stated, which omission renders the exception valueless for purposes of review,, the evidence admitted being intrinsically competent. Stouter v. Man. Railway Co., 127 N. Y. 661; 38 St. Rep. 162.

Judgment affirmed, with costs.


text:
    Eliza A. Kenworthy, App’lt, v. E. Starr Sanford, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Appeal — Harmless error.
    A. finding by the court will not be disturbed on appeal, for the admission of incompetent evidence, where such error could not have affected the result for the reason that there had been previously admitted sufficient competent evidence to sustain the judgment.
    Appeal from a judgment, dismissing the complaint.

      Rufus L. Scott, for app’lt; Cornelius F. Collins, for resp’t.
   Bookstaver, J.

— This action was brought to recover for the-, rent of the third floor of No. 347 Fifth avenue, from the middle of. November, 1893, to the 1st May, 1894. The questions presented are of fact merely. On behalf of the plaintiff it is contended that the letting was on the 13th November, 1893, and was unconditional ; and that on that day or the day following the defendant, took possession of the premises, and continued in possession until the 22d or the 23d of the month, making some alterations on the premises. On the part of the defendant it was claimed that the-hiring was conditioned upon supplying of an independent meter for the gas to be used on the floor, and also a water tank; and. that there were to be done before the 22d of the month, or the-lease was not to be effectual. It is clear from the evidence that, the hiring could not have been on the 13th November, because there was a difference as to the monthly rent to be paid, which was not settled until the following day. The plaintiff then gave ' the defendant the key to the outer door of the house, so that he ■might come and go as he liked. The keys" of the third floor were not delivered, and the defendant’s possession was not exclusive; for, after that time, plaintiff had furniture and other property in the rooms, which was not removed. She also commenced to make the repairs that were promised. There is a direct conflict ••as to whether these repairs were a condition precedent or not, and we think the letters introduced in evidence strongly corroborate 'the defendant’s contention. On a careful review of the whole evidence, we are well satisfied that the conclusion reached by the justice who tried the case, and had the witnesses before him, and was better able to judge of the weight which should be given to their testimony than we can possibly, be, was correct. It is true that several leading questions were objected to by the plaintiff’s •counsel, and should have been excluded; also, that constructions of the contract were introduced in the questions propounded by defendant’s counsel which were wholly inadmissible. But, before such questions were allowed, there was quite sufficient evidence to sustain the defendant’s contention; and we think the errors in the respects pointed out could not have affected the result The judgment must therefore be affirmed, with costs.


text:
    Allan Lee Smidt, App’lt, v. Leo C. Dessar, Resp’t

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Appeal — Conflicting evidence.
    Where a question has been decided upon a conflict of testimony, the justice’s decision thereon will not be disturbed in the absence of inad- ' vertence, mistake, prejudice or passion on his part.
    2. Contract — Construction.
    Where there is no ambiguity in a contract, its construction is for the court.
    3. Same.
    An agreement to give plaintiff a certain sum for the trial of cases, and to guaranty two cases per week, does not entitle the defendant to compen"sation for any case not tried by him.
    Appeal from a judgment in favor of defendant.

      William C. Reddy, for app’lt; Burr & De Lacy, for resd’t.
   Bookstaver, J.

— The agreement sued upon is as follows :

“ It is agreed between Leo. 0. Dessar and Allen Lee Smidt that Smidt is to commence April 7tb, 1892, the trial of cases before commissioners at a fee of $40 per case, ($25 cash and $15 on collection) ; Dessar guaranteeing Smidt two (2) cases per week. Either party may terminate this agreement by one week’s notice to the other.
“N. Y, April 6th, 1892. [Signed] Leo 0. Dessab."

The plaintiff’s claim rests upon the contention that under this agreement the defendant guaranteed him two cases a week; that he worked ten weeks before the commission, and during that time-tried seventeen eases, no more being given him; and he seeks to-recover $120 for the three cases so withheld. Defendant contends that he had a calendar of fifty cases to be tried ; that he turned this over to plaintiff; and that plaintiff had entire charge of it,, and in the ten weeks tried them as rapidly as he could, and tried all he could before the commission adjourned, in number seventeen, for which he has been paid. The agreement was correctly interpreted by the justice. Under it the defendant guaranteed to plaintiff two cases a week, but he only agreed to pay him for the cases he actually tried ; and the whole matter resolves itself into a question of fact as to whether defendant furnished the-cases according to the guaranty. This question has been decided upon a conflict of testimony in favor of the defendant, and the justice’s decision thereon will not be disturbed in the absence of inadvertance, mistake, prejudice or passion on his part. Mead v. Pope, 7 Misc. Rep. 181; 57 St. Rep. 585.

The plaintiff challenges the decision upon the further ground that the justice erred in excluding testimony as to the terms of the contract. There is no ambiguity in the contract, and its construction was for the court, whose interpretation, as we have said before, we think was correct, and the exclusion of this testimony was not error. Gerard v. Cowperthwait, 50 St. Rep. 592; Campbell v. Jimenes, 57 St. Rep. 480.

For these reasons the judgment must be affirmed, with costs.


text:
    Charles H. Nicoll, App’lt, v. William E. Clark, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

      1. Corporations — Foreign—Certificate.
    Ar assignee of a foreign corporation, in an action brought by him, need not prove that the corporation had filed a certificate in compliance with the provisions of section 15, chap. 627 of 1892. It is a matter of defense.
    2. Pleading — Denial.
    A denial of sufficient knowledge to form a belief as to an allegation in the complaint is not authorized in the Hew York district court.
    3. Corporations — Foreign—Proof.
    The fact of incorporation cannot be proved by paroi evidence.
    4. Same — Objections.
    An objection “ that it is not the proper way to prove whether it is a corporation,” is sufficient to raise the point that the fact of incorporation cannot be proved by paroi.
    Appeal from a judgment dismissing the complaint

      William C Timm,, for app’lt; Boothby & Warren, for resp’ts.
   Bookstaver, J.

— At the, close of the plaintiff’s case the defendants moved to dismiss the complaint, and the motion was granted by the justice on the ground that plaintiff was suing as the assignee of a foreign corporation, and that he had failed to prove that his assignor, the corporation, had filed a certificate in. compliance with section 15, chap. 687, Laws 1892. We think that this provision of law does not affect the cause of action, but only the remedy ; .that it was not necessary to allege and prove-compliance therewith, but that that was matter of defense, and the justice therefore erred in granting the motion. Lumber Co. v. Bus-sell, 31 N. Y. Supp. 1107.

Even if it is incumbent upon a plaintiff that is a foreign corporation to allege and prove that it has filed such a certificate, we still think that this judgment cannot stand. The plaintiff was not suing 'as assignee of the contract with the defendants. The facts appear to have been as follows: A corporation, Power & Co., was preparing for publication a book entitled “ An Illustrated Catalogue of the Best Productions of American Manufacturers,” and was securing contracts and subscriptions for advertising space therein. On March 13, 1894, it assigned to the plaintiff all its right, title, and interest in and to the said book and all contracts for advertising space therein, and agreed with the plaintiff that he should have the right to conduct, publish, and issue the book in its name, and to make all contracts in connection with the publication in its name. On April 27, 1894, plaintiff’s soliciting agent obtained the defendants’ signature to a contract authorizing the plaintiff, under the name of Power & Co., to insert their advertisement in said book. These facts appear from the complaint, and, in so far as they were not admitted by the answer, were proven upon the trial. The defendants admitted by their answer the assignment by Power & Co. to the plaintiff, and the making of a contract with Power & Co. By the third paragraph they evidently intended to deny the third paragraph of the complaint, but the copy of the answer returned with the record reads:

“(3) Defendants, in answering the second paragraph or count of plaintiff’s complaint, allege that they have no knowledge or information sufficient to form a belief as to the facts therein alleged.”

Assuming that the word “second” was a clerical error, and that •it was intended to be “third,” still there is no proper denial; an allegation to that effect not being authorized in pleading in the district courts. Steinam v. Bell, 7 Misc. Rep. 318; 57 St. Rep. 462. The. third paragraph of the complaint alleges the assignment to plain tiff by Power & Co., and was admitted by the answer, as we have shown that there was no proper denial thereof. It there- . fore appears that plaintiff was suing upon a contract between himself and defendant; that Power & Co. had no rights under that contract; and that plaintiff did not obtain his rights under the contract through Power & Co. It was therefore unnecessary, as between the parties, to allege and prove that Power & Co. had filed a certificate as hereinbefore set forth, and the justice erred in granting the motion to dismiss upon that ground. Furthermore, the court erred in allowing the question asked plaintiff on cross-examination as to whether Power & Go. was a foreign corporation. Even if the question were material, the fact of incorporation cannot be proved by paroi testimony; and plaintiff’s objection “that it is not the proper way to prove whether they are a New Jersey corporation” was sufficiently comprehensive to raise this point. Maddock v. Root, 72 Hun, 104; 55 St. Rep. 469.

For these reasons, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


text:
    James L. Miller, Resp’t, v. Isaac A. Lawrence, Impleaded, etc., App’lt.

      (New York Common Pleas, Special Term,

      Filed June, 1895.)

    Landlobd and tenant — Liability.
    In an action to charge the defendant for services rendered on premises in possession of his lessee, the lease is admissible in evidence to show the relation of defendant to the premises and to the work done by plaintiff.
    Appeal from a judgment, rendered in favor of plaintiff.

      Bowers & Sands, for app’lt; Alexander Finelite, for resp’t.
   Bookstaver, J.

— The action was brought to recover for work, labor, and services in removing ashes and garbage from the Sherman Square Hotel by one John Wenzer, who afterwards assigned his claim to the plaintiff. The defendant Wilson did not appear, and the defendant Lawrence answered by a general denial. It is not contended that Wilson and Lawrence were copartners, or in any wise interested in a joint enterprise. The defendant Lawrence was the owner of the Sherman Square Hotel. Elijah N.- Wilson, sued as Edward N. Wilson, was the proprietor of that hotel under a lease, and it was he, and not Lawrence, who employed Wenzer, as testified to by the latter. Hence the only way in which the defendant Lawrence could have been liable for the debt owing to Wenzer was either because Wilson was his agent, or because he had hired Wenzer himself, or in some way guaranteed Wenzer’s debt. But there is an entire failure of proof on both of these questions. It is true that plaintiff’s counsel, in some of his leading questions put to Wenzer, coupled the defendant Lawrence with Wilson in such a way as to enable the witness to testify that they both had promised to pay him for his work, when in reality only Wilson, the lessee, had made such a promise. The son of the defendant Lawrence was called on behalf of the defendant, and distinctly testified that he, as agent of his father, had not employed Wenzer, or promised to pay him ; and it further appeared from the evidence that the defendant Lawrence was not known to the assignor of the claim until long after the work had been done. To' show conclusively the relation of the defendant Lawrence to the premises and the work done by Wenzer, the lease of the premises to Wilson was offered in evidence, but excluded. This, we think, was error. It raised no question of title to the Sherman House, but, if admitted, would have shown conclusively that Wilson was in possession of the property, and alone answerable for •work that he had engaged Wenzer to do. The judgment should be re versed and a new trial ordered, with costs to the appellant to -abide the event.

.All concur.


text:
    Mary Fanton, Resp’t, v. Coachmen’s Benevolent Union, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    -Insurance — Benefit—Funeral expenses.
    Under a provision in the constitution of a benefit society that, “in case of the death of a member entitled to benefits, the sum of $150 shall be allowed as a funeral benefit and, in the absence of competent friends, the ■ association shall appoint a committee to take charge of the deceased brother,” the funeral benefit is payable to the person who had charge of the funeral, and the wife of the deceased member, who has lived apart from him and is not his administratrix, is not entitled thereto.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      P. G. Talman, for app’lt; Cornelius F. Collins, for resp’t.
   Bischoff, J.

— Plaintiff, the widow of one G. H. Panton, a deceased member of the defendant benevolent association, brought this action to recover $150, claimed to be due her from defendant by virtue of the following provision of its constitution:

“Sec. 6. In case of the death of a member entitled to benefits, the sum of one hundred and fifty dollars shall be allowed as a funeral benefit. In the absence of competent friends, the association shall appoint a committee to take charge of the deceased brother.”

Upon the trial, defendant offered no evidence, but moved a dismissal of the complaint upon the ground that plaintiff had not shown herself to be entitled to the payment. The admitted facts were that the deceased had not been buried at the expense of the plaintiff, and that she had not lived with him for a period of four years prior to his death; that he was a member in good standing in the association, and entitled to benefits ; and that plaintiff had not been appointed administratrix of his estate. We obtain no aid in the construction of the provision upon which this suit was based from other portions of* the defendant's constitution, since this section alone, as having bearing upon the question, was put in evidence by plaintiff, and, in our view, the proper construction fails to give the provision a sense which could support the recovery below. The plaintiff not being designated as beneficiary, and the benefit provided for being expressly a “funeral benefit,” as distinguished from a benefit in the nature of life insurance, a rational interpretation of the words used would restrict the “benefit"’ to an allowance for burial expenses defrayed by the “competent friends,” or by the committee appointed to act in their absence. As personal representative or as heir at law, the plaintiff would not be entitled to the fund which, by the provisions of the defendant's constitution under which she claims, was to be devoted to a special purpose, other than as an asset of the estate or as a benefit, to the heirs at law. The party impliedly designated to receive and apply this payment is the party on whom the duty of defraying the funeral expenses of the deceased devolved through circumstances, and such the plaintiff admittedly was not. The judgment, must be reversed and the complaint dismissed, with costs.