text:
    Sidney M. Dyer, Rec’r, etc., App’lt, v. Edward Power et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    1. Receiver—Right of foreign receiver to sue in New York.
    A foreign receiver can maintain an action on this state where there are no local interests adverse to his suit.
    (Van Brunt, P. J., dissenting.)
    2. Same—Vendor and vendee—Acceptance—Resale.
    In an action to recover the difference in price between that fixed in a contract for sato of corn and that received upon a resale, the complaint alleged that plaintiff had fully complied with the contract which called for “ Boston inspection, payment by seller’s draft at sight on buyers, with documents attached as customary.” This was denied by the answer, and plaintiff failed to show that the certificate of inspection and bill of lading were attached to the draft when presented to defendant, although it was stated in the evidence that they were both obtained and attached to the draft. Held, that the complaint was properly dismissed.
    Sidney M. Dyer, as receiver, etc., brought an action against Edward Power and others to recover the difference between the contract price of 15,800 bushels of corn and the amount received on a• resale of the same after refusal by defendants to accept, and claimed $801.09 damages. The contract on which the corn was sold in New York, December 3, 1886, through Lolirke & Co., brokers, on behalf of Glosser & Co., doing business in Boston, was as follows:
    “ Sold for account of Messrs. J. A. Glosser & Go., Boston, to Messrs. Power, Son & Co. sixteen (16,000) thousand bushels, five (5) per cent more or less, grade, steamer mixed corn, Boston inspection, at fifty-nine (59) cents per bushel of fifty-six pounds, cost, freight and insurance to London. Shipment during month of January, 1887, on ocean bill of lading by first-class steamer from Boston. Payment by seller’s draft, at sight, on buyers, with documents attached as usual.
    “ Otto E. Lohrke & Co., Brokers.”
    From a judgment dismissing the complaint at circuit plaintiff appeals to this court.

      George F. Langbein, for app’lt; Joseph A. Shoudy, for resp’ts.
   Daniels, J.

—The plaintiffas the receiver of the firm of J. A. Glosser & Go., brought this action to recover $801.09, the difference between the price agreed to be paid by the defendants under a contract made with them by Glosser & Go., for the sale of 16,000 bushels of corn, and the price it brought on a sale, after the refusal of the defendants to accept it. He was appointed such receiver in an action pending in the state of Indiana. And at the close of the plaintiff’s case, a motion was made by the defendants for the dismissal of the complaint. Among the reasons assigned to support the motion was the objection that the plaintiff had no legal capacity to sue here, and no standing in court, being a foreign receiver. It was not objected that he had not been regularly appointed by the court in Indiana. If it had been, that objection might have been removed by the introduction of the proceedings resulting in the appointment. But the objection was that he, as a foreign receiver, could not maintain an action in this state in that capacity. But in Peters v. Foster, 10 N. Y. Supp., 389 ; 32 N. Y. State Rep., 174, it was assumed that such a receiver might maintain an action in this state when there were no local interests adverse to his suit. And there were no such interests in "this case. And in Toronto Gen. Trust Co. v. Chicago, etc., R. R. Co., 123 N. Y., 37 ; 33 N. Y. State Rep., 78, it was further held, reversing the same case in 4 N. Y. Supp., 726 ; 21 N. Y. State Rep., 903, that the plaintiff as trustee appointed by a court of general jurisdiction in Ganada, to collect and get in the outstanding debts and estate of a deceased testator, could maintain a proper action in the promotion of that end in this state. And in principle, the receiver in this action is equally entitled to maintain it. And if the complaint appeared to have been dismissed upon this objection, a reversal would necessarily follow.

But that does not appear to have been the ruling at the trial. And thé dismissal may have been directed under the further objections that the Boston inspection of the corn had not been proved to have been made, and that the draft which the vendors were authorized to draw on the defendants for the price was not accompanied with the ocean bill of lading, or the customary documents required by the contract.

It was stated in the evidence that such a bill of lading, and a certificate of the inspection of the corn were obtained, and with ' a certificate of insurance attached to the draft. But there was no proof whatever that such was its condition when it was presented to the defendants for their acceptance, and that proof was essential to the plaintiff’s action, for the defendants, by their answer, had denied the allegation of the complaint that the terms and conditions of the contract were fully and duly performed and complied with on the part of the vendors of the corn. To prove that compliance, it was for the plaintiff to show by evidence that when the draft was presented to the defendants, it had these customary documents attached, and that proof was wholly wanting.

The absence of the proof has been excused by the fact, as it was stated, that the bill of lading permitted the steamer to stop at Halifax on her way from Boston to London, and that this was the sole objection stated by the defendants when the draft was presented to them. But there was no legal evidence that they confined themselves to this objection. It was so stated in one of the depositions read upon the trial. But the witness seems not to have been present when the draft was presented, and was consequently without actual knowledge of the fact which, in this connection, was mentioned by him. It is probable that he stated it in reliance upon a letter written by the brokers, through whose intervention the contract of sale was made. There was certainly no such evidence given to prove it, as would have permitted the court to submit the inquiry to -the jury, whether the defendants had restricted themselves to this objection. If there had been, a very different case would have been made to appear. It was in the nature of a condition that the draft, when it was presented to the defendants, should have attached to it such documents as were customary in the shipments of produce, and the evidence failed to prove that fact, as it also did that there had been an inspection of the corn at Boston. That inspection was also an important circumstance on which dependence would be placed for its quality conforming to the terms of sale. These objections were well founded, and they render it unnecessary to examine those upon which still greater stress was placed at the trial. It may be that they will be found of no force when they shall be fully considered. But before that can be done, these other conditions should appear to have been performed. That was not the state of the evidence when the plaintiff closed his case. And the judgment should be affirmed.

Van Brunt, P. J.—I do not concur in the view that a foreign receiver can sue in our courts; but I concur in the result of this opinion.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Samuel W. Regester et al., Resp’ts, v. The Edward Barr Company, Limited, App’lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Appeal—Review—Excessive verdict.
    The issue whether a pipe delivered was the pipe which the defendant had agreed to buy and the plaintiff to sell was submitted to the jury on three different theories, without exception to the charge, and no request to charge otherwise. Held, that the jury having found a verdict in accordance with one of the theories submitted, it is not open to the objection that it is excessive, and will not be disturbed.
    Appeal by defendant from a judgment in favor of the plaintiffs entered upon the verdict of a jury, and from order denying defendant's motion for a new trial.

      Billings & Cardozo, for app’lt; Black & King, for resp’ts.
   Freedman, J.

—The contract as to the iron soil pipe in question is to be found in the correspondence between the parties. On the trial the issue whether the pipe delivered was the pipe which the defendant had agreed to buy and the plaintiffs had agreed to sell was sharply litigated and submitted to the jury on three different theories. There was no exception to the charge and no request made to charge otherwise. Nor had the defendant asked the court to dismiss the complaint or to direct a verdict for the defendant. The jury having found a verdict in accordance with one of the theories submitted, the verdict is not open to the objection that it is excessive. Upon the whole case I fail to perceive how the verdict can be disturbed.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., concurs.


text:
    Minna Knoch, App’lt, v. Louis Funke, Jr., Resp’t.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Partnership—Accounting—Production of books.
    In an action brought for an accounting of an alleged partnership already dissolved by the death of one of the partners, the defendant having been already examined as a party before trial, and having fully denied the partnership, Held, that no competent evidence having been adduced that his books contained entries establishing the existence of the copartnership, a motion for their inspection was properly denied.
    Appeal from order denying plaintiff’s motion for a discovery and inspection of defendant’s books and papers.

      Edward Grosse (John W. Goff, of counsel), for app’lt; James McG. Smith (Austin Abbott, of counsel), for resp’t.
   Freedman, J.

—This action having been brought by the assignee of the right of action to an accounting of an alleged partner in a co-partnership already dissolved by the death of one of the partners, and the defendant having been already examined as a party before trial at the instance of the plaintiff and having fully and circumstantially denied the partnership relations, and no competent evidence having been adduced that the books and papers sought to be discovered do contain entries establishing or tending to establish the existence of a co-partnership between plaintiff’s assignor and the admitted partners, the motion for a discovery and inspection was properly denied

The order appealed from should be affirmed, with costs, on the opinion filed by the learned judge at special term.

Sedgwick, Oh. J., concurs.


author: McAdam, J.

text:
    Daniel Mahoney, Resp’t, v. Louis Ungrich et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Agent—Commission for sale of real estate.
    In an action to recover for services rendered to defendant in procuring a purchaser for real estate, under a special agreement to pay one per cent commission, testimony of the purchaser and the admission of the defendant in the presence of a witness, that the purchaser’s attention was first called to the property by the plaintiff, and that he was the inducing cause of the sale, establishes a clear cause of action against the defendant.
    2. Agency—Authorization.
    Evidence that property was placed in the hands of several brokers for sale by a co-owner, with the knowledge of the other owner, that the property was sold, and the latter united in the deed, is sufficient to authorize a finding that the former was authorized to employ brokers in effecting the sale, and that they are jointly liable for the brokers’ commissions.
    The plaintiff sued to recover $675 for services rendered to the defendants in procuring a purchaser for their property on the northwest corner of Rinth avenue and Seventeenth street, at $67,500. The plaintiff is not a broker, and relied upon a special agreement to pay him one per cent commission.
    The defendants conceded that they sold the property to one Eobert Blackburn for $67,500, and defended upon the ground tha$ they never employed the plaintiff, never promised to pay him a commission, and on further ground that he was not the procuring cause of the sale. Upon the conclusion of the evidence on the part of the plaintiff, the defendants’ counsel moved to dismiss the complaint on the general ground that no cause of action had been proved, and that it affirmatively appeared that the plaintiff was not the procuring cause of the sale, and upon the further ground that no cause of action had been established against Louis and Louisa Ungrich, two of the three defendants.
    The complaint was dismissed as to Louisa Ungrich, and the motion to dismiss as to Louis and Louis Kossuth Ungrich was denied. The trial proceeded against these two defendants and resulted in a verdict in favor of the plaintiff for $722.24, the amount claimed, and interest. A motion for a new trial on the minutes was made and denied, and the two defendants named appealed from the judgment and order.

      E. P. Orrell, for app’lt Louis Ungrich; Johnston & Johnston, for app’lt Louis K. Ungrich; Jeroloman & Arrowswith, for resp’t.
   McAdam, J.

—The plaintiff proved that he had a conversation with Louis K. Ungrich, one of the defendants, at which he was employed on their behalf to find a purchaser for the property in question, under an agreement that he was to be compensated for his services at the rate of one per cent upon the, selling price. That acting under this employment he called the attention of Blackburn to the property and placed him in communication with the defendants, and that his efforts eventuated in the sale to Blackburn at $67,500.

Blackburn, the purchaser, was next called as a witness and testified that bis attention was first called to the property by the plaintiff, and in effect that he was the procuring cause of the sale subsequently made. Indeed, Louis K. Ungrich admitted in the presence of the witness Quinn that the plaintiff was the inducing cause of the sale, and the proof on this subject is emphatic.

The plaintiff having proved: 1st, his employment to sell; 2d, a special agreement to pay him for his services at the rate of one per cent on the selling price; 3d, a sale through his efforts to Blackburn at $67,500, established a clear cause of action against Louis K. Ungrich, and the only remaining question is whether the obligation is to be enforced against him alone or jointly with his brother and co-owner, Louis Ungrich.

The evidence shows that Louis K. Ungrich had authority to sell the property, he did sell it, and executed the contract of sale on his own behalf and as agent of his brother Louis.

Louis ratified the sale by joining in the execution of the deed required by the contract. The property was placed in the hands of several brokers by Louis K. Ungrich, to the knowledge of his brother and inferentially by his approval. The circumstances stated were sufficient to authorize a finding that Louis K. Ungrich had authority from his brother to employ assistance in effecting a sale of the property and to make any contract for the payment of the customary brokerage charges. It is is impossible to lay down any inflexible rule by which it can be determined what evidence shall be sufficient to establish an agency in any given case, but it may be said in general terms that whatever evidence has the tendency to prove the agency is admissible, even though not full and satisfactory, as it is the province of the jury to pass upon and determine what weight it is entitled to receive. Bickford v. Menier, 36 Hun. 446 ; Heywood Co. v. Burns, 15 N. Y. State Rep., 570 ; Leslie v. Knickerbocker L. Ins. Co., 63 N. Y., 27. The case was carefully submitted to the jury, and they found the facts in favor of the plaintiff. The evidence satisfactorily sustains their verdict, and the judgment entered upon it and the order denying the motion for a new trial must be affirmed, with costs.

Sedgwick, Oh. J., concurs.


author: Per Curiam.

text:
    Henry Y. Wemple, Resp’t, v. Patrick H. McManus, App’lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    I. Noir-joinder of parties—Waiver.
    Defendant employed plaintiff to procure a loan on some property and agreed to pay him a certain commission. On the trial of the action brought to recover the same, the defendant offered to prove that the plaintiff was to divide his commission with three other persons. Held, that under § 499 of the Code Civ. Pro., the failure to plead the non-joinder of the other three was fatal to the offer.
    2. Pleading—General denial—Proof—New matter.
    The general denial allowed by § 500, subd. 2, of the Code Civ. Pro., permits a defendant to disprove anything the plaintiff alleges, or any fact the plaintiff must establish to show a cause of action, or to mitigate the damages, but not to prove a defense founded on new matter.
    Appeal by defendant from a judgment entered on a verdict for plaintiff as directed by the court and from an order denying a motion for a new trial.
    Action to recover for work, labor and services of plaintiff as broker in procuring a loan for defendant on bond and mortgage.
    McAdam, J., rendered the following opinion on denying defendant’s motion for a new trial:
    “ There is much confusion in the evidence, but no conflict The facts are easily collated. The defendant employed the plaintiff t'o procure a builder’s loan of $180,000 on property in ÍEast Fourteenth street, and agreed to pay for procuring it $7,000, which was to cover brokerage, lawyer’s fees, searching title, and all other expenses. The plaintiff, acting under this employment, introduced the defendant to the Metropolitan Life Insurance Company, the officers of which were well acquainted with the plaintiff. A formal application, giving the details of the property and the contemplated buildings,-'was there prepared with great particularity, and subscribed by the defendant. The company officially approved of the application, and agreed to make the loan, of which the defendant had due notice. The insurance company, according to the uncontradicted evidence of its officers, was able, as well as willing, to make the loan. The broker’s duty ended there. He did all it was possible for him to do in the matter. He could do no more. The ultimate failure to consummate the transaction was owing to some subsequent disagreement between the company and the defendant as to the latter’s ability to comply with the terms of his appli-’ cation, a misunderstanding that in no way concerned the broker. The court, at the trial, offered to allow the defendant to show, in defense, that the insurance company failed to keep its part of the understanding according to the written application and acceptance, and finally offered to send the case to the jury on the question whether the company had offered full performance, on its part, of the written compact, with an ability to comply. The defendant failed to give the proof, and declined to go to the' jury on the question.
    The offer by the defendant to prove that the plaintiff was to t divide his brokerage with three other persons was abortive, for two reasons: (1) If the money was to be first received by the plaintiff and afterwards divided, the evidence offered would not' have constituted a defense; for the plaintiff could not have made the necessary division until he received the money. He was entitled to it in his own right and as trustee for the others. (2) If the three other persons were, in the first instance, to receive the brokerage jointly with the plaintiff, the failure to plead the nonjoinder of the other three was fatal to the offer. Barb. Parties, 308 ; 1 Wait Pr., 119 ; Karelsen v. Sun Fire Office, 45 Hun, 144 ; 9 N. Y. State Rep., 831 ; Iron Co. v. Hasbrecht, 48 id., 206 ; 15 N. Y State Rep., 587. The defendant was also bound to plead payment if he intended to insist upon that as a defense.
    Such a defense must be specially pleaded, McKyring v. Bull, 16 N. Y., 297, except in the one exceptional instance where the nonpayment must be affirmatively proved to establish the plaintiff’s cause of action, Knapp v. Roche, 94 N. Y., 329, and this case is not of that peculiar character. The subsequent attempted modifications of the contract made between the insurance company and the defendant were not provable, (1) because they did not affect the broker; and (2) if they did, they were not specially pleaded. The general denial allowed by the Code permits a defendant to disprove anything the plaintiff alleges, or any fact the plaintiff must establish to show a cause of action, or to mitigate the damages, but not to prove a defense founded on new matter. Code, § 500, subd. 2 ; Morrell v. Insurance Co., 33 N. Y., 429 ; Weaver v. Barden, 49 id., 286 ; Brennan v. Mayor, etc., 62 id., 365 ; Clifford v. Dam, 81 id., 52. The rulings at the trial were in accordance with these views, and are correct The plaintiff did not seek to recover the contract price ($7,000) for his services, as this included expenses which were not made. He claimed and recovered the statutory rate allowed for such work, viz., one-half of one per cent, aggregating, with interest, $967.50. No point was raised at the trial as to the propriety of this course. In conclusion, it is only necessary to say that, as the defendant declined to go to the jury on the only question of fact in the case, the verdict in favor, of the plaintiff was properly directed, and the motion for a new trial must be denied.”

      Thomas I. L. McManus for app’lt; Staley Fiske, for resp’t.
   Per Curiam.

—The judgment and order are affirmed, with, •costs, upon the opinion of the judge below given on the decision ■of the motion for a new trial.

Sedgwick, Ch. J., and Freedman, J., concur.


text:
    Frederick R. Keller, Resp’t, v. The Manhattan Elevated Railway Company et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 11, 1891.)

    1. Railroads—Elevated—Injury to adjoining premises—Inconsistent FINDINGS.
    Plaintiff brought an action to restrain the maintenance and operation of an elevated railroad past his premises and for damages for past injuries. The court found that the plaintiff, previous to and including the trial of the action, had lost no rents on account of the taking of any property connected with his premises, but that there was a certain loss in the rental value of the property. Held, that the findings were not inconsistent.
    Appeal by defendants from a judgment entered upon findings and conclusions made at special term.
    Action to restrain defendants from maintaining and operating their elevated railroad in front of plaintiff’s premises and to recover past damages for the same.
    Truax, J:, on the trial found the following facts:
    • “ Third. That in the month of January, 1879, the defendant, the Metropolitan Elevated Railway Company, began the erection of an elevated railway structure on Sixth avenue, in the city of New York, in front of the premises in question, and completed the same in June, 1880, and commenced the operation of the same by running passenger cars and steam locomotives thereon in front of plaintiff’s premises until May 20, 1879, when it leased the same to the defendant, the Manhattan Railway Company, which company has- continued the maintenance and operation of the same down to the present time, and is now so operating the same.
    “ Eighth. That the maintenance of the railway structure above described in and along the front of plaintiff’s premises, has, from the month of June, 1878, to the present time, constituted, and will hereafter constitute, a use inconsistent with and in excess of the ordinary use for which said street was set apart and reserved in law, and by such inconsistent and excessive street use the access to plaintiff's premises above described has been obstructed, and will hereafter be continuously obstructed, and the quantity of air and light that would otherwise have passed, and would otherwise hereafter pass, has been lessened, and will hereafter continued to remain lessened.
    “ Ninth. That the passage of the trains, as heretofore described, over the railway structure in and along the front of plaintiff’s premises, with the escape of smoke, cinders, and obnoxious gases and smells from the locomotives drawing said trains, since the month of June, 1878, to the present time, constituted, and will hereafter constitute, for the greater part of the time, a use wholly inconsistent with, and therefore in excess of, the ordinary uses for which said street was set apart and reserved in law, and that by such inconsistent and excessive street uses the quantity of light and air that would otherwise have passed, and would otherwise hereafter pass, over the said street, in front of plaintiff's said premises, has been lessened, and will hereafter continuously remain lessened, and that the air which occupied, and will hereafter occupy, the space in front of said premises, and which entered and will hereafter enter the said premises, has been filled with smoke, cinders and obnoxious gases.
    “ Tenth. That to the extent the maintenance of said railway structure, and the operation of trains thereon, constituted and constitute an inconsistent and excessive street use, as set forth in the eighth and ninth findings herein, the defendants have taken and kept, and are in the possession of, and will hereafter keep, a part of the easement of access, and of light and air, hereinbefore found to be a part of plaintiff’s land.
    “ Eleventh. That by the taking set forth in the tenth finding of fact the plaintiff from the 27th day of April, 1885, to the time of the commencement of this action, sustained a loss in the rental value of the premises No. 622 Sixth avenue, amounting to at least the sum of $577.50.
    “ Thirteenth. That this action was commenced on the 14th day of September, 1888.
    “ Fourteenth. That the value of so much of the plaintiff’s easement belonging to the premises No. 662 Sixth avenue as was taken by the defendants, as hereinbefore found, was at the time of such taking, and also at the time of the trial of this action, at. least $2,500.
    “ Forty-second. The plaintiff purchased No. 662, knowing of the existence of the railroad and its operation, and that the taking of easements appurtenant to No. 662, if any were taken, had already been effected, and that such taking was permanent.
    “ Forty-third. That the plaintiff, previous to and including the time of the trial of this action, had lost no rents on account of any taking of property connected with No. 662.”

      Davies, Short & Townsend (Edward B. Thomas, of counsel), for app’lts; Edwin M. Felt, for resp’t.
   Per Curiam.

—The fair construction of the findings and conclusions that are argued to be inconsistent is that although the plaintiff lost none of the rents under the lease of No. 662 expiring in 1890, yet that the rental value had been diminished. That the plaintiff could recover for such a diminution has been determined in this court against the plaintiff.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Ingraham, J., concur.


text:
    Joseph B. Pennell et al., Respt’s, v. The Mayor, etc., of the City of New York, App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Contract—Interference with performance—Loss incurred.
    Plaintiffs contracted to clear and remove wood and brush from land to be used as a reservoir by defendants for a sum of money and the wood cut, the work to be completed by a certain time, which was done; but, prior to its completion, defendants flooded the land, causing plaintiffs to lose a portion of the wood cut, and increasing the cost of clearing off the biush. Plaintiffs brought an action to recover the value of the wood, lost, and of the increased cost in clearing the land. Held, that defendants had no right to interfere with plaintiffs in the performance of their contract, and were liable for the loss and expense incurred.
    Appeal by defendants from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from order denying defendants’ motion for a new trial.

      William H. Clark, counsel to the corporation (Henry B. Twombly, of counsel) for app’lts; Kellogg, Rose & Smith, for resp’ts.
   Freedman, J.

—This action arose out of a contract made for clearing wood and brush from the land which was to be flooded by the building of certain dams, under the general plan for supplying New York city with water, authorized by chapter 490 of the Laws of 1883, and the amendments thereto. The plaintiffs had contracted to do the work for a consideration, which consisted of a certain sum of money and of the wood that they might cut, and which it was their right to remove for their own benefit.

The action was brought by the plaintiffs to recover upon two causes of action: 1. To recover the value of about 770 cords of wood cut by them under the contract, but wholly lost to them through the act and fault of the defendants, in flooding the ground cleared by the plaintiffs, with water, during the time the plaintiffs were engaged in the performance of their contract; and 2, to recover the increased cost in clearing off the brush under the samé contract, occasioned by reason of the premature flooding.

The main question presented by the appeal relates to the construction of the contract. It required two things to be done, viz.: 1, the land was to be cleared, and 2, all timber, brush, grass and other vegetable growth thereon was to be removed beyond the limits of the land. The .work was to be done in order of precedence approved by defendant’s engineer, and all the timber and other growth was to be removed or burned, and all the work covered by the specifications was to be done and completed on or before November 1, 1889. As matter of fact the work was completed by the plaintiffs by the time fixed for its completion and was accepted by the defendants, and no controversy exists here in that respect. The litigation in this action is confined to the two causes of action specified.

In respect to them the counsel for the defendants has argued that all parts of the contract should be construed in such a way as to give force and validity to all of them and to all of the language used where that is possible, and this is the rule beyond question. But it is equally true that a clause giving an additional and independent right to one party and imposing a corresponding burden upon the other, cannot be interpolated by the court. So surrounding circumstances may be considered to explain or define a something in the contract which required explanation or definition, but they cannot be invoked to add something entirely new. Justice and common sense are to rule in the construction and the interpretation of what is written, but neither can be used for purposes of addition. In no case has the court the right or power to, make a new contract for the parties.

Judged by these rules, the plaintiffs had until November 1, 1889, to do and complete their work, and there being no clause or provision in the contract giving to the defendants the right to flood the ground before that time, they had no right before said time to interfere with the plaintiffs by doing so, and having so interfered months before the said time, they were guilty of a wrongful act, for which, if damage ensued, the plaintiffs have a cause of action.

It has been strenuously insisted that under the clause that all work should be done in the order of precedence approved by the engineer, the defendants’ engineer had the right to order all the wood not only to be cut, but also to be removed, at any time prior to November 1, 1889; and that all that was necessary for that purpose was that a reasonable notice should be given to the plaintiffs. Such a construction of the contract would be a harsh and forced one, but it is not necessary to determine the point for the reason that no such order or notice was given. The letters of April 20th and May 7, 1889, relied upon by the defendants in support of this contention, relate only to the clearing of the land ; and in view of the clear distinction made by the contract itself between that term and the term of removal, the letters cannot be stretched so as to include by implication an order of removal.

The issues were submitted to the jury in accordance with the foregoing views. The record discloses no error which calls for reversal, nor can it be maintained that the verdict is contrary to the evidence, or excessive.

The judgment and order should be affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.


text:
    Frank Leslie, Resp’t, v. George F. Bassett et al., App'lts.

      (New York Superior Court, General Term,,

      Filed May 4, 1891.)

    Bills and notes—Accepted draft—Diversio.
    Defendants accepted a draft drawn on them hy the American Exchange to provide the latter with funds to meet a draft drawn on them hy A. & Co., and accepted by them as an accommodation to defendants,hut receiving a commission. "Thereafter the Exchange transferred the draft before maturity to plaintiff as a payment in advance of interest soon due. Held, that there was no restriction as to the mode of using the acceptance, and that the plaintiff was the owner and transferee thereof before maturity.
    The action is on a bill of exchange accepted by the defendants, and transferred to the plaintiff before maturity. The cireumstances leading to the acceptance and transfer are subtantially as follows: The defendants, merchants, doing business in New York, were accustomed to make purchases of earthen ware of the firm of Henry Alcock & Co., of Colridge, Staffordshire, England, with which firm they had a line of credit.
    They had also been doing business through the New York office of the American Exchange in Europe as a banking house, in transacting their foreign business.
    Wishing to extend their credit with Alcock & Co. beyond the usual limit, the defendants entered into an agreement with that firm, the substance of which was embodied in a written memorandum. as follows:
    “New York, September 20, 1878.
    “ Terms 4 mos. Note with interest added at the rate of 5 per cent per annum, to the extent of £2,000.
    “After the account shall have reached the limit of credit, £2,000, then Messrs. Alcock & Co. are to draw on American Exchange in Europe, London (with b\l attached) on our account Interest on same, 5 per cent per annum.
    “Geo. F. Bassett & Co., “Henry Alcock & Co."
    After this agreement was made, the defendants entered into an agreement with the American Exchange, the substance and effect of which was, that that corporation should accept the drafts drawn by Alcock & Co. for goods purchased by defendants of that firm, payable ninety days after date, with bills of lading and invoice attached. That the American Exchange should then draw upon defendants drafts for the amount of the draft drawn by Alcock & Co., with one per cent commission and expenses added, payable twenty days before the draft drawn by Alcock & Co. matured, so as to place the American exchange in funds with which to pay the draft which it had accepted for Alcock & Co.
    When this arrangement was consummated, notice was given to Alcock & Co.
    Pursuant to the agreement, the defendants ordered a bill of merchandise from Henry Alcock & Co. amounting to £344, 8s., 3d. For the purchase price Alcock & Co. drew their bill of exchange, dated March 28, 1888, upon the American Exchange, payable ninety days after date. This bill was forwarded to the American Exchange and duly accepted. The goods ordered were sent to David Inglis, the agent of the defendants in Liverpool, who shipped them to the defendants.
    To place itself in funds to meet the bill of exchange which it had become bound to pay to Henry Alcock & Co., the American Exchange made its draft upon the defendants, dated April 9, 1888, for $1,715.17, being the amount of the Alcock bill, with commissions and expenses added. This bill was payable sixty days from date, and on its face it is expressed to be for “ merchandise account 1087, Alcock & Co." It is upon the acceptance of this draft that the action is brought.

      The plaintiff derived her title to the bill of exchange in suit in the following manner:
    On November 21, 1887, she loaned to the American Exchange in Europe, Limited, the sum or $50,000, and took therefor a certificate of deposit dated that day, and payable six months ■ from date with interest at six per cent.
    The plaintiff and Mr. Grillig substantially agree in the statement that the plaintiff asked Grillig, as he was about to .leave for Europe in April, 1888, to make some provision for the payment of interest on the debt due plaintiff from the Exchange, but which was not due until the 21st of May following. To this request Gillig assented, and thereupon endorsed and delivered to the plaintiff the bill in suit under the agreement that it should be applied in payment of interest, and that ■ any balance above the interest should be applied on account of the principal.
    The bill in suit was drawn, and bears date April 9,1888. This transaction of its transfer was within a day or two thereafter, as they both testify.
    Thereafter, and on April 13, 1888, the insolvency of the Exchange was known, and on April 13th a receiver was appointed.
    Under the circumstances, the defendants claim that the consideration for their acceptance had failed, and that the plaintiff having made no present advance upon the faith of the bill, was not a Iona fide holder of it, and that she took it subject to all the equities between the original parties.
    Upon the conclusion of the trial, both sides asked for the direction of a verdict.
    The court directed a verdict in favor of the plaintiff for $1,995.60, the amount claimed, with interest, to which direction the defendant excepted. The court thereupon ordered that the exceptions be heard in the first instance at general term, and the entry of judgment in the meantime suspended.

      Fullerton & Rushmore, for pl’ffs; Wing. Shoudy & Putnam, for def’ts.
   McAdam, J.

—Independently of the question whether the plaintiff became a Iona fide holder of the acceptance within the • meaning of Coddington v. Bay, 20 Johns., 637, and kindred' cases, a proposition not necessary to consider, the verdict was properly directed for other reasons. First, the acceptance by the American Exchange of Alcock & Co.’s draft, furnished a sufficient consideration for the acceptance in suit. Dowe v. Schutt, 2 Den., 621 ; Wooster v. Jenkins, 3 id., 187 ; Nantucket Pacific Bk. v. Stebbins, 6 Duer, 341 ; Newman v. Frost, 52 N. Y., 422. Second, there was no understanding that the specific moneys to be collected by the American Exchange, on the acceptance in suit, were to be applied towards the payment of its acceptance of Alcock & Co.’s draft.

The arrangement was, that the defendants should accept the draft of the American Exchange, so as to put it in funds to pay its acceptance to Alcock & Co. twenty days before its maturity. In other words, so much money was to be placed with the American Exchange to the credit of the defendants, against which its acceptance, a commission of one per cent and expenses were to be charged.

The American Exchange could do what it pleased with the defendants’ acceptance or the money realized from it, so long as the amount was credited on their books. Any use the Exchange might make of either, would neither be a misappropriation or diversion or the acceptance or money. They could meet their own acceptance as well with any other money on deposit.

The acceptance and its proceeds belonged to the Exchange to do with as it pleased, subject to its liability to make its acceptance to Alcock & Go. good. The defendants evidently trusted the responsibility of the Exchange and its ability to make good its obligation. The transfer of the acceptance by the Exchange to the plaintiff as a payment in advance of the interest soon to become due on the $50,000 loan made by her to it, the balance thereof above the interest to apply on the principal, was therefore a valid transfer of that instrument by the person having the jus disponendi, and she became the owner and transferee thereof before maturity. Even assuming there had been a failure of or no consideration for the defendants’ acceptance, the rule applicable would be that laid down in the case of The Grocers' Bank v. Penfield, 69 N. Y., 504, wherein the question arose with respect to the title of the holder of a note made for the accommodation of the payee, and by him endorsed and delivered to the plaintiff solely as collateral security to a precedent debt, without any agreement extending the time of payment of the the debt. The court said:

“ It is universally conceded that the holder of an accommodation note, without restriction as to the mode of using it, may transfer it either in payment or as collateral security for an antecedent debt, and the maker will have no defense. It is only where the note has been diverted from the purpose for which it was entrusted to the payee, or some other security exists in favor of the maker, that it is necessary, that the holder should have parted with value on the faith of the note in order to cut off such equities of the maker.” Also see Continental Bank v. Townsend, 87 N. Y., 8.

The defendants do not plead diversion of the acceptance, and if they rely upon that defense it must be inferred from their answer, for the intention is not clearly expressed.

It charges that the plaintiff received the acceptance with knowledge of the facts, and that she has collected and received out of property and security transferred to her by the American Exchange sufficient to pay and satisfy all claims and demands she had against it, and ceased to have any right to collect or receive payment of the acceptance sued on; defenses they utterly failed to establish. The defendants have called our attention to the case of Bassett et al. v. Leslie et al., 123 N.Y., 396; 33 N.Y. State Rep., 685, which was an interpleader suilj brought by Bassett & Co. against Mrs. Leslie and Alcock & Co., in respect to the acceptance in suit and Alcock & Co.’s claim for the merchandise delivered on the faith of the acceptance of the American Exchange, subsequently dishonored. The court below on demurrer interposed to the complaint, held, that the action was not maintainable. The general term upon appeal sustained the court at special term, and the court of appeals in affirming the courts below, and accepting as it properly did the allegations of the complaint in that suit as true (it having been demurred to), intimated that Mrs. Leslie (the plaintiff here) could not maintain an action on the defendant’s acceptance, it having been diverted, and she not being a bona fide holder. The intimation was not necessary to a decision of that case, because the court put its affirmance on the ground that the claim of Mrs. Leslie on the acceptance and of Alcoclc & Co. for the merchandise sold, were two separate and distinct obligations, and that Bassett & Co. could not be discharged from both on paying one. On the present trial, Bassett & Co. on the one hand and" Mrs. Leslie on the other, have made their allegations and presented their proofs, and it is on these, and not on the undisputed facts alleged in the inter-pleader suit, that we are called upon to determine the propriety of the rulings made at the trial, and from these we draw the conclusions to which we have before referred. There was no defense to the action, the verdict was properly directed, the exceptions must be overruled, and the plaintiff permitted to enter judgment on the verdict, with costs.

Sedgwick, Ch. J., concurs.


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    Michael Bergman, Resp’t, v. The Manhattan Railway Co., et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Right to trial by jury—Both legal and equitable relief.
    When a plaintiff brings an action for both legal and equitable relief in respect of the same cause of action, the case presented is not one of right triable by jury under the constitution.
    This appeal is from a judgment rendered at the equity term of the court after a trial of the issues. The action was brought to enjoin the continuance of the defendants’ elevated railroad in front of the plaintiff’s premises on Sixth avenue, in this city. It was the ordinary suit by an abutting owner, and the judgment is in the usual form, restraining the defendants from operating the road unless, within a specified time, they pay the sum of $5,500 and obtain a grant and release of the easement.
    The defendants appeal.

      Davies & Rapadlo, for app’lts; Peckham & Tyler, for resp’t.
   McAdam, J.

—The principles regulating the rights and liabilities of abutting owners, with reference to elevated roads, have been so often declared that the adjudications have become too familiar to require citation. It is necessary only to refer to the points which it is claimed are not embraced within the general principles decided.

At the opening of the trial the defendants insisted that they were entitled to a jury trial by the constitution of the state and the provisions of the Code of Procedure. The claim was over. ruled and defendants excepted. The ruling was proper. _ This court decided in Sears v. The Met. El. R. R. Co. et al. opinion, February general term, 1891, that “when a plaintiff brings an action for both legal and equitable relief, in respect of the same cause of action, the case presented is not one of right, triable by jury under the constitution.” Citing Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y., 319 ; 7 N. Y. State Rep., 203.

This disposes of the only novel question raised. The evidence fully sustains the findings of fact, and the rules of law were properly observed and applied by the trial court . The exceptions taken by the defendants’ counsel are without merit, and the judgment appealed from must be affirmed, with costs.

Sedgwick, Ch. J., concurs.


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    Henry Bohlen, Resp’t, v. The Metropolitan Elevated Railroad Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Equity trial—Requests to find.
    It is not necessary, under § 1023 of the Code of Civil Procedure, where numerous proposed findings of fact and conclusions of law are submitted, that the court note his ruling in the margin of each request; all that is necessary is that the record show that the court did pass on all the requests submitted to him.
    2. Evidence—Review—Harmless error in equity trial.
    Where, on a trial by the court alone, the objections to evidence do not sufficiently point out the error to enable the appellant to raise the point intended, and abundant evidence on the same subject of an unobjectionable character was given, the judgment will be sustained on appeal.
    This appeal is from a judgment rendered at an equity term of the court, after a trial of the issues. The action was brought to restrain the continuance of the defendants’ elevated road in front of the plaintiff’s premises on Second avenue, in this city. It was the ordinary suit by an abutting owner, and the judgment is in the usual form restraining the defendants from operating their road, unless within a specified time, they shall pay the sum of $3,500, and obtain a grant and release of the easement. The judgment also awards $4,623 past damages. The defendants appeal.

      Davies & Rapallo, for app’lts; Sackett & Bennett, for resp’t.
   McAdam, J.

—The defendant’s counsel claims that the trial judge erred in refusing or neglecting to note in the margin his ruling upon each of the thirty-five proposed findings of fact and fifteen proposed conclusions of law submitted by the defendants, and that a general ruling that the court refuses to find except in the particular instances in which it has specially found as requested, will not suffice as a compliance with the Code, § 1023, and this is assigned as one reason for reversing the judgment appealed from.

It does not appear that the trial judge refused to note his ruling on each separate request, nor was any order entered embodying his decision upon the subject. The record on appeal shows that the trial judge did pass on all the requests submitted to him. He found the thirty-fourth and declined to find the others, and this is sufficient. Davis v. Leopold, 87 N. Y., 620. Some of the requests were to pass on the effect of evidence rather than upon the issues, which is improper practice, Wiltsie v. Eeddie, 4 Trans. App., 481, yet the trial judge in a general way passed upon all the requests submitted, and that is sufficient for all practical purposes.

A more important phase of the case is that presented by the admission of evidence, at fols. 377 to 382. The witness Curtis, a real estate broker, testified that in his judgment the present fair selling or fee value of the property, affected as it now is by the structure of the elevated railroad and the operation on it of the steam railway, is about $18,000. These questions and rulings followed:

Q. Please to state what, in your judgment, would be the fail-selling or fee value of the same premises if they were unaffected by the structure of the elevated railway or the operation on it of a steam railway ?
Defendants’ counsel objected to the question as hypothetical, speculative and incompetent. The court overruled the objection and counsel for defendants duly excepted.
A. $20,500 to $22,000.
Q. In about May, 1882, what, in your judgment, was the fail-rental value of the premises, affected as they then were by the structure of the elevated railroad and the operation upon it of steam cars? A. About $1,640.
Q. What, in your judgment, would have been the rental value of those same premises if unaffected by the structure of the elevated railroad and the operation upon it of steam cars ?
Defendants’ counsel objected to the question. The objection was overruled by the court and defendants’ counsel duly excepted.
A. About $2,150. Down to May, 1, 1888, I think' the difference in rental values, with and without the effects of the elevated railway, continued substantially the same. In my judgment the fair rental value of those premises to-day, affected as they are by the structure and operation of the road, is about $1,800.
' Q. What, in your judgment, would be the fair rental value of those same premises, if unaffected by the construction of the elevated railway and its operation ?
Defendants’ counsel objected to the question.
The court overruled the objection, and defendant’s counsel duly excepted.
A. About $2,200.

It is claimed that under McGean v. Met. El. R. R. Co., 117 N. Y., 219 ; 27 N. Y. State Rep., 337, and Avery v. N. Y. Cent. R. R. Co., 121 N. Y., 31 ; 30 N. Y. State Rep., 471, the evidence referred to was improperly admitted. In the McGean case, the questions put, objections taken to them and rulings thereon were quite similar to those here. The court, while of opinion that the testimony should not have been received, held that the objections to it did not sufficiently point out the error to enable the appellant to raise the point intended, and that it was ungracious on the part of the defendants to insist upon a rule which they themselves had violated during the counse of the trial.

The same thing is true here. The judgment in that case was affirmed. The Avery case is of the same tenor and effect. . Neither case seems to require a reversal of the judgment appealed from. In this, as in the McOean case, abundant evidence of an unobjectionable character as to damage was given, so that the alleged error was harmless, and resulted in no prejudice to the defendants. In this connection a distinction must be observed between the effect produced by improper testimony admitted in a cause tried before a jury, and one tried by the court alone.

On trial before a jury, evidence improperly admitted may produce an impression on the lay mind not easily removed which may be carried by the juror into the verdict, while on a trial by the court without a jury, the improper testimony may, upon reflection, be disregarded or stricken out, without producing any effect or causing any injury whatever. This case is within the rule stated. The evidence sufficiently sustains the findings of the trial judge; no error was committed during the trial to the detriment of the defendants, and the judgment must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


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    Vincenzo Mele, App’lt, v. The Delaware & Hudson Canal Company, Resp’t.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

      1. Master and servant—Negligence of master—Allegations in complaint.
    It is not necessary to affirmatively allege in a complaint for damages for . personal injuries that no negligence on the part of the plaintiff contributed to the disaster.
    2. Same—Master not liable for negligence of fellow servant.
    The plaintiff, a laborer in the employ of the defendant, a railroad company, while crossing the tracks was struck by one of the company’s trains through the negligence of the engineer. Held, that the plaintiff was a co-employee of the engineer for whose negligence the company was not liable.
    The complaint alleges that on or about July 21, 1888, the plaintiff, a workman in the employ of the defendant, was crossing a bridge over which defendant’s trains pass, at or near the place known as Maryland, Otsego Co., N. Y., on his way to his work, in common with other employees; that in attempting to avoid an approaching train of defendant’s, plaintiff slipped and fell; that other workmen in company with plaintiff signalled the train to stop; that the engineer in charge negligently and without due or proper warning, caused the train to pass over the plaintiff before he could rise and avoid the same. That the signalling was made while defendant’s train was at a distance of about five hundred feet from the plaintiff. That in consequence of the negligence the plaintiff sustained bodily injury, so that both his arms were amputated, to his damage $25,000. The defendant demurred to the complaint on two grounds.

      First That the complaint does not state facts sufficient to constitute a cause of action.

      Second. That there is no such corporation as that named as defendant. The court below sustained the demurrer and from the interlocutory judgment entered thereon in favor of the defendant the plaintiff appeals.

      Smith & Vosburgh, for app’lt; Edwin Young, for resp’t.
   McAdam, J.

—The learned judge in the court below properly held that there was no force in the objection that plaintiff has not, in his complaint, affirmatively alleged that no negligence on his part contributed to the disaster, and that the allegation that the negligence of the defendant caused the injury carries with it the inference that such negligence alone was the cause. Urquhart v. Ogdensburgh, 23 Hun, 75; Robinson v. N. Y. C. & H. R. R. R. Co., 65 Barb., 146, aff’d, in 66 N. Y., 11; Lee v. Troy C. G. Co., 20 Wk. Dig., 413; Hackford v. N. Y. C. R. R. Co., 6 Lans., 381, aff’d, 53 N. Y., 654; Hale v. Smith, 78 id., 480; Lee v. Troy C. G. L. Co., 98 id., 115.

The judge put his decision on the ground that the plaintiff, though not a trespasser, was a fellow servant in a common employment with the engineer, and that no action would lie against the matter of both. To sustain this proposition he cites Boldt v. R. R. Co., 18 N. Y., 432; Malone v. Hathaway, 64 id., 5; Vick v. R. R. Co., 95 id., 267.

These cases, particularly Boldt v. R. R. Co., supra, seem to be decisive of the question involved. In that case plaintiff was a track laborer, who was struck by a train while walking on the track on his way to his work. The court held that while doing this particular act he was a co-employe of the engineer, for whose negligence the company was not liable. See, also, Gillshannon v. Stony Brook R. R. Co., 10 Cush., 228. The rule is that all who serve the same master work under the same control, derive authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants who take the risk of each other’s negligence.

Prima facie, all servants of a common master employed in the railway service are fellow servants, and neither has a cause of action for the negligence of another.

The rulings in other states, drawing a distinction between the grades of service and giving a remedy to a laborer or clerk injured by an engineer, Chicago & A. R. R. Co. v. Keefe, 47 Ill., 110; Ryan v. Chicago & N. R. R. Co., 60 id., 171; Valtez v. R. R. Co., 85 id., 500; O'Donnell v. Allegheny R. R. Co., 59 Pa. St., 239, have never been approved in this state and are contrary to its policy. We have endeavored to distinguish this case from Boldt v. R. R. Co., supra, but cannot.

The fact that the plaintiff slipped and fell, and was helpless upon the track when the warning was given by his co-laborers, only adds to the degree of negligence on the part of the engineer and tends to establish more clearly freedom from fault upon the part of the plaintiff. It does not reach the underlying principle, too firmly established to be now questioned, that the plaintiff cannot recover for the negligence of a fellow servant, no matter how gross, and that the engineer guilty of the wrong came within that relation. For these reasons, and without seriously considering the second ground of demurrer, which seems to be without merit, the order and interlocutory judgment entered upon it must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


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    George R. Randall, Resp’t, v. United Life and Accident Insurance Association, App’lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Postponement of trial on day calendar—Ground.
    A vague and insufficient certificate of a physician, not verified, that defendant’s counsel was ill is no ground for the postponement of a trial, when the cause had been on the day calendar for several days.
    2. Opening default and inquest—Grounds.
    A motion to open a default and inquest is properly denied when it does not appear that there was any defense to the action to go to a jury, or, at best, but slight ground that if there were a trial the defendant would recover or materially lessen the damages recovered on the inquest.
    Appeal by defendant from an order denying defendant’s motion, at the trial term, to postpone the trial, from an order denying defendant’s motion to open the default and inquest taken and from an order denying defendant’s motion for a re-argument of the last motion.

      Harry Wilber, for app’lt; Samuel H. Randall, for resp’t.
   Per Curiam.

—The action of the judge at trial term, in refusing defendant’s application for an adjournment, should not be reversed. The case had been on the day calendar for several days and when it was called for trial there was no reason given for postponement excepting a vague and insufficient certificate of a physician that the defendant’s counsel was ill. This was rightly disregarded as it was not verified.

The judge rightly exercised discretion in refusing to open the default and inquest. Several reasons might be adduced. The principal one was that it did not appear that there was any defense to the action to go to a jury. There was the same kind of defect in the motion for re-argument. On that motion, the only support of defense, that was offered was a statement in an affidavit that a resident of another state would testify that he was a physician and looked at the plaintiff for the purpose of seeing if he were injured and did not see any marks of hurt. This was but slight ground for a belief that if there were a trial the defendant would recover or would materially lessen the damages recovered on the inquest.

The orders are affirmed, with ten dollars costs.

Sedgwick, Ch. J., and McAdam, J., concur


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    Albert Wilson, Resp’t, v. George W. Smith, App’lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Amending complaint—What a new cause op action.
    A plaintiff will be granted leave to amend his complaint to make it conform to his bill of particulars, by stating that of his demand, a certain part was for cash loaned, and the remainder for money had and received, according to the original complaint, although, if a new cause of action the claim would have been barred by the statute of limitations, as the amendment was neither misleading nor prejudicial to the defendant for he had been apprised of the true state of facts by the bill of particulars served weeks before the statute could have attached.
    The plaintiff sued to recover $542.30, for so much money “ laid out and expended for and at the request of the defendant.” The action was commenced April 8, 1890, and ten days afterward the plaintiff served a bill of particulars of his demand, the first item of which was for “ cash loaned defendant $234.” The answer, which consisted of a “ general denial,” was served May 5, 1890. No further proceedings were taken until November 5, 1890, when the plaintiff moved to amend the complaint by making it conform to his bill of particulars, by stating that $234 of the original demand “for cash loaned” and the remainder for money had and received according to the original complaint. The motion was granted November 13, 1890, upon payment of ten dollars costs, and with leave to the defendant to answer the amended complaint within twenty days thereafter. The defendant appeals from the order.

      George Yeaman, for app’lt; Albert Wilson, for resp’t.
   McAdam, J.

—The amendment allowed did not increase the amount of the plaintiff’s demand which was to recover $542.30, and merely allowed him to state the fact that $234 of it was a separate item for cash loaned, the remainder of the claim being for so much money paid, laid out and expended, as charged in the original complaint. The moneys expended were paid out between January 1, 1884, and July 1, 1884. The loan was made June 8, 1884, so that nothing was imported into the complaint by the amendment except that which was necessary to apprise the defendant of the nature of the demand against him. The cause of the error was explained, the delay excused, and a case presented which called for the exercise of the liberal power of amendment vested in the court. Code, § 723. The defendant claims that the effect of the amendment was to introduce a new cause of .action barred by the. statute of limitations, and that this circumstance was sufficient to require the denial of the motion. Citing Sheldon v. Adams, 18 Abb. Pr., 405; Evangelical L. Ch. v. Fingar, 11 W. Dig., 460.

These cases do not question the power of the court to allow such an amendment, but hold that it should be exercised as in other cases, only in furtherance of justice and upon cause shown. With this qualification the power is plenary. Hatch v. Central N. Bank, 78 N. Y., 487 ; Eighmie v. Taylor, 39 Hun, 366. The plaintiff did not, however, invoke the exercise of this power in the present instance. He did not seek to introduce a new or independent cause of action barred by the statute. He applied to correct an inadvertent error in his complaint, by amending it to conform to the truth and fact. The amendment was neither misleading nor prejudicial to the defendant, for he had been apprised of the true state of facts by the service of the bill of particulars seven weeks before the statute of limitations could have been attached. The amendment was in furtherance of justice and properly allowed. Indeed, it would have been an abuse of discretion to have denied it.

The appeal is without merit, and the order appealed from must be affirmed, with costs.

Sedgwick, Ch. J., concurs.


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    Nicholas M. Quade, Resp’t, v. The N. Y., N. H. & H. R. R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed June 10, 1891,)

    1. Corporation (foreign)—Service—Code Crv. Pro., § 431.
    Laws of 1846, chap. 195, § 8, which provides, after permitting defendant to extend its line into this state, that it “ shall be liable to be served by summons in the same manner as corporations created by the laws of this state,” does not make defendant a domestic corporation, or authorize such a service of process as is provided by § 431 of the Code Civ, Pro.
    2; Railroad companies—Illegal fare—Action for penalty—Service.
    In an action brought under Laws of 1857, chap. 185, which provides that any railroad charging more than the legal fare shall forfeit fifty dollars, “which sum may be recovered, together with the excess so received, by the party paying the same,” section 1895 of the Code Civ. Pro., providing that the summons “can be served only by an officer authorized to collect an execution issued out of the same court,” does not apply, as the plaintiff is a party aggrieved.
    Action brought to recover the penalty prescribed by chapter 185 of the Laws of 1857, for charging more than the legal fare. The following opinion was delivered by Freedman, J., in denying defendant’s motion:
    “ This is a motion to set aside the service of the summons in this action.. The motion is made on two grounds. The first is that the service was not made as prescribed by § 432, and the second is that the service was not made as prescribed by § 1895 of the Code of Civil Procedure.
    “ Concerning the first point, it is claimed that the defendant is a foreign corporation, and that in such a case the service must be made in strict conformity with the requirements of § 432. In fact, the service was not made according to the requirements of that section. It was made upon a director, which, under § 431, is good service in the case of a domestic corporation, but which is insufficient, under § 432, in the case of a foreign corporation. The first point would, therefore, be well taken, if it were not for the following considerations: The defendant corporation was originally chartered by the state of Connecticut, in the year 1844, under the name of the New York &New Haven Railroad Company. In the year 1846 it applied to the legislature of the state of New York for the permission to extend its road from the Connecticut state line to the line of the New York & Harlem Railroad, and to unite or connect with the last mentioned railroad at or near Williams Bridge. Such permission was granted by chapter 195 of the Laws of 1846, and one of the conditions imposed by the eighth section of said act was that the said company shall be liable to be served by summons in the same manner as corporations created by the laws of this state. This provision subjects the defendant to the liability of being sued by summons like any domestic corporation, although, for all other purposes, it may be a foreign corporation. This being so, I am of the opinion that the service of the summons upon a director was a good and valid service.

      “ Concerning the second point, it must be noticed that the action is for the recovery of a penalty given by a statute. The plaintiff claims in his complaint that on a certain day, on which he took passage on a passenger train of the defendant, to be carried on the defendant’s road from One Hundred and Thirty-fourth street, in the city of New York, to Morris Park, in the state of New York, and thence back to said One Hundred and Thirty-fourth street, he was charged and compelled to pay, contrary to the laws of the state of New York, fourteen cents in excess of the sum which the defendant had the right to ask and to receive, by means whereof the defendant became liable to pay to the plaintiff, by virtue of the statute of the state of New York, entitled ‘An act to prevent extortion by railroad companies ’ passed March 27, 1857, the sum of $50, together with the sum of fourteen cents, so asked and received as aforesaid, in excess of the legal fare. That being the character of the complaint, the defendant claims that service of the summons could be made only as prescribed by § 1895, and that, because in fact it was not so made, the service which was made should be vacated. Section 1895 provides as follows: ‘ The summons in an action brought as prescribed in the last section, can be served only by an officer authorized by law to collect an execution issued out of the same court,’ etc. The section thus referred to (§ 1894) provides that, where a penalty or forfeiture is given by a statute to any person who sues therefor, an action to recover it may be maintained by any person in his own name. But this does not apply to plaintiff’s case. The plaintiff is a person aggrieved, and the statute gives a right of action to him, and not to any person who may sue for the penalty. The language of chapter 185 of the Laws of 1857, as amended by chapter 415 of the Laws of 1886, is, ‘ which sum may be recovered, together with the excess so received, by the party paying the same,’ etc. This distinction has been carefully preserved by the Code of Civil Procedure. Section 1893 provides that, where a penalty of forfeiture is given by the statute to a person aggrieved by the act or omission of another, the person to whom it is given may, if it is pecuniary, maintain an action to recover the amount thereof, etc., while § 1894, as already shown, provides for cases in which the right to sue for the penalty is given by the statute to any person. Section 1893, therefore, relates to actions which may be brought by persons aggrieved, while § 1894 relates to actions which may be brought by common informers. The distinction is a material one; and, as § 1895 relates only to the actions to be brought under § 1894, it does not include the actions which may be brought under § 1893. The action brought by the plaintiff falls within § 1893, and consequently § 1895 does not apply. For the foregoing reasons the motion must be denied, with ten dollars costs.”

      Henry W. Taft, for app’lt; E. M. Wight, for resp’t.
   Per Curiam.

—The defendants were attempted to be brought into court by a service upon one of their directors of a summons of the kind prescribed by the Code. Such a service is not valid, excepting in the cases provided concerning a domestic corporation. The defendant is a foreign corporation. The service was upheld below under § 8, chap. 195, Laws of 1846, which provided that the defendant “ was liable to be served by summons in the same manner as corporations created by the laws of this state.” The court however is of the opinion that to constitute a service under the act cited it would be necessary to serve the kind of process described. The summons named in the act was not of the character, in form or substance of the summons named by the Code. As neither the act of 1846 nor the Code provided for the service that was made, that service should be set aside.

The learned judge was correct in holding that this action is not within § 1895, Code Civ. Pro.

Order reversed and motion below granted, with ten dollars costs.

Sedgwick, Ch. J., Truax and Dugro, JJ., concur.


author: Patterson, J.

text:
    The New York Life Insurance & Trust Co., etc., Resp't, v. John H. Livingston et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Trust—Reservation of power in maker of, to dispose by will.
    Clermont L. de Peyster conveyed kis property to plaintiff as trustee to lease the real estate and keep invested the personalty and pay over the income to him, and upon his death to make over the balance to such persons, and in such shares, as should be appointed by him by his last will and testament. By his will he gave and bequeathed to defendant “all the rest, residue and remainder of my estate, of what nature or kind soever and wheresoever situate, which I may own or be in any manner entitled to at the time of my death.” Held, that the will was a valid and effectual exercise of the power of appointment, both as to real and personal property.
    Plaintiff brought this action as trustee of Clermont L. de Peyster against John Henry Livingston, individually and as executor of the last will and testament of Clermont L. de Peyster, John Watts de Peyster, Eslette L. de Peyster, Johnston Livingston de Peyster and John Watts de Peyster Toler, and in his complaint demanded “that its accounts as trustee, as aforesaid, may be judicially passed, settled, adjusted and allowed, and that it may receive the instructions and direction of this court as to the time and method of transfer and payment of the balance found remaining in its hands of the said trust funds, less its lawfql commissions and the expenses of this action, as to the person or persons to whom the same should be transferred and paid over, and for such or further order, judgment or relief as may be just and proper.” The trial court held:
    “ First. The said Clermont L. de Peyster did, by the residuary clause of his said will, validly appoint the property covered by the said trust deed to and in favor of the defendant, John Henry Livingston, individually and for his own benefit.
    “ Second. That the plaintiff is entitled to commissions on the personal property belonging to the principal of the said trust fund now in its hands, amounting to the sum of $222.32, and that the said plaintiff is entitled to be paid out of the principal of said trust fund now in its hands, and the interest accrued thereon since the 1st day of October, 1889, its costs and expenses of this action, as hereinafter provided. That the defendant, John Henry Livingston, individually, is entitled to receive the amount of income from real estate accrued since October 1, 1889, to wit, the sum of $48.35, remaining in plaintiff’s hands as above found.
    “ Third. That the defendant, John Hemy Livingston, individually, is entitled to the amount above found to be in the hands of the plaintiff as incbme accrued on the personalty of the trust estate since the 1st day of October, 1889, to wit, the sum of $881.56, less deductions on account of the plaintiff’s costs and expenses of this action, as hereinbefore provided.

      “ Fourth. That the said John Henry Livingston, as executor of the last will and testament of Clermont L. de Peyster, deceased, is entitled to the amount above found to be in the hands of the plaintiff on account of the income of the trust fund accrued prior to the 1st day of October, 1889, to wit, the sum of $120.28.
    “ Fifth. I do hereby direct judgment to be entered herein adjudging the right of parties as hereinbefore set forth, and directing the plaintiffs to retain out of the principal of the said trust fund now in their hands, and the income accrued thereon since the 1st day of October, 1889, the sum of $200, which is hereby adjudged to them as and for an extra allowance, besides their taxable costs and disbursements, and directing the plaintiff to assign, transfer and set over unto the defendant, John Henry Livingston, individually, for his own use and benefit, all the property now in its hands belonging to the principal of the said trust fund, to wit, the following securities.”

      Geo. W. Ellis, for app’lts; D. B. Ogden, for resp’t.
   Patterson, J.

—The plaintiff was appointed trustee under deeds of trust made by Clermont L. dePeyster, the owner of real and personal property, which passed to the plaintiff under those deeds for the purposes of the trust. This action is brought to settle the accounts of the trustee and to obtain the judgment of the court as to the person or persons to whom the corpus of the trust estate shall be transferred and paid over. The contest is waged between different defendants, and the question litigated between them is as to the proper and sufficient execution of a power of appointment reserved by the settlor of the trust in the instruments conveying and transferring the real and personal property to the trustee.

In July, 1888, one of the trust deeds was executed and delivered and the other in August of the same year, but no change is made by the latter in the terms of the former deed respecting the subject now under consideration. By their provisions the trustee was to lease the real estate and keep invested the personalty and pay over the income to the settlor during his natural life, and upon his death “ to convey, assign, transfer and set over all the said property then in its hands, and any income thereon accrued since the last quarter day, to such persons and in such shares as shall be appointed by the said party of the first part by his last will and testament.”

On the 24th day of August, 1888, Mr. dePeyster made a will. Its second provision, a residuary, clause, reads as follows: “ I give and bequeath to my uncle, John Henry Livingston, of the town of Clermont, county of Dutchess, state of New York, all the rest, residue and remainder of my estate, both real and personal property, of what nature and kind soever and wheresoever situate which I may own or be in any manner entitled to at the time of my death.” He died in December, 1889, and his will was duly admitted to probate by the surrogate of Columbia county in Feb'ruary, 1890.

Do the provisions of the will recited constitute a valid and effectual exercise of the power of appointment ? So far as the realty is concerned there can be no doubt.

It is expressly provided by § 73 of the statute of powers that in their creation, construction and execution they are to be governed solely by the provisions of the Revised Statutes, and it is enacted by § 126 of that statute, that lands embraced in a power to devise shall pass by a will purporting to convey all the real property of the testator, unless the intent that the will shall not operate as an execution of the power, shall appear expressly or by necessary implication. This disposes of the realty, but the question remains as to the personalty. It is one settled, however, by authority. In Hutton v. Benkard, 92 N. Y., 295, it was held that the rules governing the construction of testamentary appointments in regard to real estate apply when they affect personal property so far as they can be. There is no difficulty here in applying the analogy of the statute, or following the precedent cited.

That rule, in a few words, is that both real and personal property pass by disposition under a will where the power of appointment resides in the testator. It is not for us to criticise that rule, but to recognize it, and the court of last resort having held that so far as the execution of a power of this kind is concerned, there is no difference between real and personal property, and that the will operates upon both, the only remaining inquiry is whether there is anything to show that the testator did not intend his will to be an exercise of the power of appointment he had reserved to himself as to the oersonal property. Nothing of the kind appears; certainly not expressly, nor is there anything which by necessary! implication would produce that result. The intention of the testator is to be gathered from the four corners of the will, by taking all its provisions and conditions and construing them in associa-j tion; and in the light of surrounding circumstances, and so doing, we cannot find in the proofs a contrary intent to that which the will itself plainly imports when read in connection with the adjudged cases on the subject.

The judgment must be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


author: Daniels, J.

text:
    Alfred N. Wildman, App’lt, v. John Van Gelder, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)
    Fraud—Attachment—Diversion of check—Code Civ. Pro., § 636.
    Defendant as a stockholder in the H. Go., agreed to pay plaintiff as trustee a certain assessment provided the company would deliver to him a check for the same amount upon an indebtedness to him to be used by 1 him to meet his own check to the company. Plaintiff was induced by defendant to hold his check until the former had received the company’s check, when defendant stopped payment on his own check and used that j of the company to another purpose. Held, that plaintiff was entitled to ' an attachment as the facts warranted the conclusion that in the disposition of the check the defendant intended to defraud him.
    Appeal from order of special term, New York county, vacat- ¡ ing an attachment.

      Edward Lyman Short, for app’lt; J. E. Eustis, for resp’t.
   Daniels, J.

—The attachment was issued on the ground that i the defendant had assigned and disposed of property, with the intent to defraud the plaintiff, his creditor.

To establish this recital it was proved by the affidavits that the j defendant as a stockholder in the Hat Sweat Manufacturing Company had agreed to pay an assessment to the plaintiff as trustee for the company amounting to the sum of $1,200, provided the : company would deliver to him its check for the same amount upon an indebtedness of the company to him, and that the check of the company should be used and applied by him, to pay his own check delivered to the plaintiff as trustee, and ! on the faith of which the latter agreed to and did pay the assessment, for the defendant. He made and delivered his check to the plaintiff, dated July 28, 1890, but at his request its ! presentment for payment was delayed until the 29th of the following month to enable the defendant to meet and provide for the payment thereof by the check of the company, which on that day was made and delivered to him, to be used in that manner by him. But instead of using the check received by him for that object, he stopped the jiayment of his own check which he had made and delivered to the plaintiff, and otherwise appropriated and disposed of the check made and delivered by the company to him. These were substantially simultaneous transactions, resulting in a fraud upon the plaintiff. He had been induced by the defendant to hold his check until he received the company’s check for the same amount, which was delivered to him to be used only to meet his own check delivered to the plaintiff; and when he received the company’s check, he stopped payment to the plaintiff, and used the company’s check for another object. These facts create the presumption that the defendant all along, and when he received the company’s check, intended to defraud the plaintiff, by inducing him to pay the assessment to the company, with the assurance that he would be reimbursed by the eompany’s check, but which when it should be received, he would appropriate to a different object, and which he finally did. They warrant the conclusion that in the disposition of the check the defendant intended to defraud the plaintiff.

It is undoubtedly the law that the intent to make a fraudulent disposition of the debtor’s property must not only be averred, but it must also be supported by the facts. Fleitmann v. Sickle, 13 N. Y. State Rep., 399 ; Morris v. Talcott, 96 N. Y., 100, 107 ; Bump v. Dehany, 12 N. Y. Supp., 901 ; 36 N. Y. State Rep., 114. But these facts are reconcilable with no other inference than that the defendant did intend to defraud the plaintiff in the disposition which he made of the company’s check. It was received upon a disputed claim of indebtedness to be used for a special object, and at once diverted by the defendant to another, which necessarily had the effect of defrauding the plaintiff out of the use to which the check had been specially devoted.

To entitle the creditor to an attachment for this disposition of the debtor’s property, the law does not require the disposition of all the debtor’s property, or any particular portion of it, to defraud his creditors, but it has been provided in case it shall be made to appear that the debtor has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete property, with the intent, to defraud his creditors. Code Civ. Pro., § 636, subd. 2; Taylor v. Myers, 34 Missouri, 81.

, The check delivered to him was property, and the intent to defraud the plaintiff by its disposition is very fully disclosed by the facts which the affidavits maintain. And he as a creditor is as much within the spirit of this provision, as two or more, or any other number of the debtor’s creditors would be whom he intended to defraud by the disposition of any part of his property. Sherrill v. Bench, 37 Ark, 560; Correy v. Lake, Deady, U. S., 469.

The order should be reversed, with ten dollars costs and the disbursements, and the motion denied.

Lambert, J., concurs.


author: Van Brunt, P. J.

text:
    Henry A. Rice, Assignee, etc., Resp't, v. James Grange, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Bills and notes—Consideration—Exchange oe notes.
    Defendant made his note to Chase & Co., plaintiff’s assignor, and received in return a note of the same amount and date made hy a third party and endorsed by Chase & Co. Held, that the latter constituted as much of a consideration as though the money had been paid in cash, and the fact that the note was not paid when due, in no way affected the title to defendant’s note.

      Appeal from judgment entered on verdict directed by the court, "and from order denying motion for new trial.

      Drew & Page, for app’lt; A. B. Cruikshank, for resp’t
   Van Brunt, P. J.

—The uncontradicted facts appearing upon, the trial were that in 1889 one Earl B. Chase was doing business in the city of New York, under the firm name of Earl B. Chase & Co., and in December, 1889, one Pollard gave to the defendant a note of a firm of Hawkins & Co., endorsed by Chase & Co., and received in exchange therefor the defendant’s note for the samo amount, Pollard in this transaction acting as a broker for E. B. Chase & Co.

When these notes became due neither of them were paid, and in July, 1890, E. B. Chase & Co. made an assignment for the-benefit of creditors to the plaintiff, who thereupon brought this action to recover upon the note given by the defendant to Chase & Co. The answer alleged a failure of consideration as to the note-sued upon, because of default in payment of said note of Hawkins & Co., endorsed by Chase & Co.

At the end of'the testimony the defendant moved to amend his-answer, by setting up a counterclaim, which motion was denied. No exception, however, was taken to the ruling of the court, and no order was entered.

The defendant moved to submit the case to the jury, which was-denied and excepted to, and a verdict was directed in favor of the plaintiff. A motion was made for a new trial, which was denied, and from the judgment thereupon entered and from the order denying a motion for a new trial, this appeal is taken.

The ground upon which the defendant claims a reversal is that there was no consideration for the note sued upon. This is clearly untrue, because the note of Hawkins & Co. was as much a consideration as though the money had been paid in cash, and the simple fact that Hawkins & Co. did not pay in no way affected the title to the defendant’s note.

It is further urged that the answer sets up a counterclaim, which should have been allowed.

We have examined the answer in vain to find any suggestion of a counterclaim or offset.

It is clear that no counterclaim could be set up, because no-cause of action could be maintained against the assignee, and even if an offset might be allowed, there are no allegations in the-answer making any such claim whatever; the whole defense proceeding upon the theory of want of consideration.

The point as to some agreement between the defendant and Chase, by which each were released and discharged, is not well taken, because there is no evidence to support it and no allegation in the pleadings which justified the admission of any such evidence. ,

Upon the whole case, therefore, we tnink that the judgment, and order appealed from should be affirmed, with costs.1

Barrett and Patterson, JJ., concur.


author: Per Curiam.—

text:
    Charles F. Starr, Resp’t, v. Charles G. Patterson, App’lt.

      (Supreme Court, General Term,, First Department,

      Filed June 12, 1891.)

    Appeal—Questions of fact.
    A judgment debtor having moved for a perpetual stay of execution on the ground that he had been discharged under the insolvency laws of Massachusetts, the creditor- claimed that the motion should be denied on the ground that his name had not been included in the list of creditors as required by said law. The referee having reported, the court denied the motion, holding that the evidence did not sustain the finding that defendant had not fraudulently omitted plaintiff’s name, and defendant appeals from the denial of his motion. Held, that as the case was disposed of simply upon the question of fact, the order must be affirmed, but with permission on payment of costs to renew the motion on additional papers.
    Plaintiff issued an execution upon a judgment obtained against defendant and the latter moved for a perpetual stay on the ground that he had obtained a discharge from his debts under the insolvency laws of Massachusetts, which provides, Pub. St., Mass., chap. 157, § 19, that the debtor shall make on oath, “ a schedule, containing a full and true account of all his creditors, with the place of residence of each creditor, if known to the debtor, and the sum due to each of them,” and also provides, by § 81, that the certificate of discharge given thereon, “ shall be conclusive evidence of the fact and regularity of sucb discharge.”
    The referee to whom the matter was referred having reported, the court denied the motion holding that the evidence did not sustain the finding that defendant had not fraudulently omitted plaintiff’s name from the schedules in the insolvency proceedings, and defendant appealed.

      J. W. Lawton, for app’lt; Payson Merrill, for resp’t.
   Per Curiam.—

Upon an examination of the papers in this case, we are of opinion that the statute printed in the appellant’s points presents an entirely different question from any which has ever been before the court before. On the original motion the only question before the court was as to whether or not the omission of the plaintiff’s name as a creditor was an act of fraud; and that question was referred to a referee for further proof. On the motion coming up again on the referee’s report, the questions of law were not presented, but the case was disposed of simply upon the question of fact, and there being no change in the testimony, the order now appealed from was made.

This new matter, however, arising under the statute of Massachusetts may require further consideration and a different disposition of the case, but as the record now stands that subject cannot be considered.

The order appealed from must be affirmed, with ten dollars costs and disbursements, but with leave on payment of the costs of this appeal and of the proceedings in the court below to renew the motion upon additional papers.

Van Brunt, P. J. and Patterson, J., concur.


author: Barrett, J.

text:
    The People, Resp’ts, v. Raffaele Izzo, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 12, 1891.)

    Criminal law—Carrying concealed weapons—Penal Code, § 410—Evi-dence.
    On the trial of a person charged, under Penal Code, § 410, with carrying concealed weapons with intent to use the same upon another, it was error to permit the officer who arrested him to testify that a third party, Grandi, at whose instance he was arrested, stated, in the presence of defendant, that defendant had previously drawn the dagger in a saloon and threatened to stab him, where it appeared that Grandi spoke to the officer in English, which the defendant spoke so slightly that the officer could not understand or communicate with him. This statement so introduced evidently overcame the presumption of innocence which arose from defendant’s good character and his declaration that he picked up the knife accidentally.
    Appeal from a judgment of conviction of the crime of carrying a dagger concealed upon the person with intent to use the same upon another. Upon the trial the police officer who made the arrest testified that on arresting the defendant in Elizabeth street, in the city of New York, at the instance of one Michael Grandi, he then and there searched defendant and found a dagger concealed upon his person in an inside coat pocket; that at the station house Grandi stated, in the presence of defendant, that in a saloon on Elizabeth street defendant had drawn the dagger and threatened to stab him. Defendant testified in his own behalf that he was a musician, and that he found the dagger in the street a short time before his arrest, and that he intended taking it home for household purposes, and that he did not intend to úse it upon any person.

      Charles E. Barbier, for app’lt; Delancey Nicoll, dist. att’y, for resp’ts.
   Barrett, J.

—I think that justice requires a new trial in this case and that it should be granted under the authority conferred by § 527 of the Code of Crimimal Procedure. The People did not rest upon the presumption created by § 411 of the Penal Code, but attempted to prove the intent to use the dagger in violation of § 410 by direct evidence. Thus the policeman who arrested the defendant and found the dagger concealed upon his person was permitted to testify that one Grandi declared in the presence of the defendant at the station house that he, Grandi, “ was in a saloon on Elizabeth street and the defendant took the knife out of his pocket and said that he would stab him.” This testimony was highly prejudicial to the defendant and undoubtedly affected the consideration of his subsequent explanation with regard to the possession of the dagger. Ordinarily such testimony would have been admissible, but here it appears that Grandi spoke to the sergeant in English and that the defendant could not speak our language or else spoke it so slightly that the officer could not understand or communicate with him. It is quite apparent that the defendant did not comprehend the charge made by Grandi and that, so far as any possibility of denying it on the spot was concerned, that charge might as well have been made to the sergeant in the defendant’s absence. The learned recorder very properly suggested at the close of the case that the district attorney should have called Grrandi as a witness. I think, too, that he should have called the sergeant. As it was, this defendant was convicted solely upon the testimony of the officer who arrested him, to the effect that he found the knife upon the defendant’s person. It is true that this fact raised the presumption declared by § 411, but the defendant’s effort to rebut that presumption should not have been nullified or weakened by the declaration of a third person, which he was no more in a position to deny at the time and under the circumstances it was made than if he had been absolutely deaf.

This defendant was shown to be a man of good character, engaged in a reputable calling, for nine years a resident of this country and a man of family. He testified without contradiction that he never carried a knife such as was found upon him; that he had never before been arrested or been in any trouble; that he picked up the knife in question accidentally and that he had no other intention than to take it to his home. Of course the jury were the judges of this story, and it was for them to say whether the presumption raised by § 411 was thereby rebutted. But it is quite clear that in weighing the defendant’s explanation the scale was turned in favor of the presumption by Grrandi’s declaration at the station house.

I think a new trial should be ordered.

Van Brunt, P. J., and Patterson, J., concur.