author: Bischoff, J. Pryor, J.

text:
    Louisa Carlson, Resp’t, v. Maria Louisa Winterson, App’lt.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    1. Witness—Impeachment—Reputation.
    A witness, in order to testify to the general character of another, must show that he is familiar therewith.
    2. Same—Specific acts.
    Proof of the commission of a specific act of forgery is incompetent to discredit a witness.
    3. Same.
    A person cannot testify that he would not believe a witness under oath, unless it is shown that he knows his general character.

      4. Trial—Objection.
    An objection to a question previously excluded need not repeat the-ground thereof.
    5. Same—Jurors.
    It is improper to ask jurors whether the fact that a witness had been in the penitentiary would so prejudice them that they would not believe him.
    Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff.

      E. F. Bullard, for app’lt; Hector M. Hitchings, for resp’t.
   Bischoff, J.

Upon the trial the plaintiff produced a paper, dated August 28,1891, which in form purported to be the defendant’s note, whereby, for value received, sheqpromised to pay, to the order of one Tengzelins, $500, thirty days after date. Tengzelins, called as a witness for the plaintiff, testified that he received the-note from the defendant in payment for services to be rendered by 'him in the investigation of the financial ability of one Collingwood, against whom she at the time asserted a claim, and that he-transferred the note to plaintiff in payment of a precedent debt. Defendant admitted Tengzelins’ employment for the purposes mentioned, but denied that she executed or delivered the note produced, and contended that her promise to pay Tengzelins forms services was contingent upon the collection of her claim against Collingwood. The only substantial contest between the litigants; was with regard to the genuineness of the note. Upon evidence, to the sufficiency of which neither party at any time objected, the-jury returned a verdict for the plaintiff. Hence, for the purposes of this appeal, we may consider only rulings made during the trial, and to which due exception was taken. Schwinger v. Raymond, 105 N. Y. 648; 7 St. Rep. 544; Smith v. Pryor, 30 St. Rep. 553; Gundlin v. Hamburg-American Packet Co., 59 St. Rep. 208.

The issue was substantially one of veracity between the plaintiff’s witness, Tengzelins, and the defendant. Evidence of Tengzelins’ reputation as a person of bad character generally was, therefore, admissible to impeach his credibility as a witness in this action (1 Greenl. Ev. § 461; 1 Rice, Ev. p. 630; Wright v. Paige, 3 Keyes, 581, 586, etc.; People v. Mather, 4 Wend. 229, 257; Wehrkamp v. Willett. 4 Abb. Dec. 548, 556), the credibility of a. witness always being in issue. Pharo v. Beadleston, 2 Misc. Rep. 424 ; 50 St. Rep. 609. To an inquiry of Forwood, called by the defendant for the purpose of discrediting Tengzelins, concerning the latter’s general reputation, the plaintiff’s counsel objected, on the ground that the evidence called for was irrelevant, incompetent and immaterial, unless confined to reputation for veracity, and “that"no foundation has been laid.” The last objection specifically raised the question of the witness’ competency in the absence of evidence that he had knowledge concerning the subject-matter of the inquiry. It was thereupon incumbent upon the defendant, before proceeding with the inquiry, to establish the witness’ competency (1 Greenl. Ev. § 461; 1 Rice. Ev. p. 630; Wright v. Paige, 3 Keyes, 581, 586, etc.); but, though admonished by the learned trial justice in that respect, the defendant’s counsel omitted even the effort to do so. The evidence was thus properly excluded. To two subsequent inquiries of the same witness,—■ one as to the “general reputation ” of Tengzelins, the other as to his “ general reputation as to moral character,”—both of which were excluded, the plaintiff’s counsel did not renew his objection that the witness was incompetent; but, having otice made the proper objection, he was not called upon to repeat it every time his adversary chose to renew his futle efforts to elicit the testimony excluded, from the same witness.

A further inquiry of the same witness, and tending to show that Tengzelins had forged his name to a note, was also properly excluded, under objection by the plaintiff’s counsel that the evidence was incompetent, irrelevant and immaterial. Evidence of specific acts of moral obliquity are inadmissible for the purposes of discrediting a witness. Corning v. Corning, 6 N. Y. 97, 104; Wehrkamp v. Willett, supra; 1 Rice, Ev. p. 629. Without evidence of Tengzelins’ reputation, and of the competency of the witness called to discredit him, the exclusion of the inquiry as to whether or not he (the witness) would believe Tengzelins under- oath was obviously proper.

Upon Tengzelins’ cross-examination by the defendant’s counsel he admitted that he had suffered a term of imprisonment in the penitentiary. The record of his conviction, however, was not produced, and, against objection, Tengzelins was permitted, upon redirect examination, to testify that his imprisonment was upon his conviction of a forgery,involving $2.80. The admission of this last-mentioned testimony is claimed to have been error. Without discussing the proposition, the alleged error is so palpably harmless that a reversal of the judgment should not result.

The judgment of the general and trial terms of the court below should be affirmed, with costs.

Daly, Oh. J., concurs.

Pryor, J.

I cannot concur in the affirmance of this judgment. Against objection and exception, plaintiff’s counsel was permitted to ask the jurors whether the fact that plaintiff’s principal witness had served a term in the penitentiary for forgery would so prejudice them that they would not believe him if his testimony in other respects appeared trustworthy, or was corroborated. To me, at all events, the inquiry is without precedent Interrogation of jurors before impaneled is with a view to challenge, but a challenge may be made only for matter tending to their disqualification, or to the revelation of their relations to the cause or the parties. I had not supposed that a juror’s mental attitude towards a witness or species of evidence was ground of challenge either for cause or for favor.

In impeachment of plaintiff’s principal witness, defendant produced a witness, and inquired of him, “ What is his (plaintiff’s witness’) general reputation ? ” The evidence was objected to as “ irrelevant, incompetent and immaterial,” and because “no foundation had been laid.” That proof of the general character of a witness, without restriction to reputation for truth and veracity, is competent, is abundantly sustained by authority. People v. Mather, 4 Wend. 230, 257; 2 Cowen & Hill’s Phil. Ev. 508, note.

Further on the defendant- asked his witness, “ What is his (plaintiff’s witness’) general reputation as to moral character ? ” To which the objection is simply that the evidence was “ immaterial, irrelevant and incompetent,” omitting the ground previously stated, “ that no foundation had been laid.” The prevailing opinion goes upon the rule that a party is not obliged to repeat a rejected objection to the same sort of evidence (Church v, Howard, 79 N. Y. 415,; but this is not to say that, if he renew the objection, he need not state the grounds. And if he states some, but not all, of his former gounds of objection, the inference is that he waives the unspecified and abandoned ones. “Hxpressio unius exclusio alterius." A general objection on account of incompetency or immateriality is considered as applying only to "the competency or materiality of the facts sought to be proved, and not to the competency of the witness to testify to the facts. Stevens v. Brennan, 79 N. Y. 254; Schwander v. Birge, 46 Hun, 66 ; 10 St. Rep. 802. Special objection is indispensable to present the point that the witness is incompetent to testify to the fact. Ward v. Kilpatrick, 85 N. Y. 413, 416; Amadon v. Ingersoll, 34 Hun, 132; New Jersey Steamboat Company v. City of New York, 14 St. Rep. 57. The evidence having been excluded, the plaintiff must stand or fall upon the ground stated. Tooley v. Bacon, 70 N. Y. 34, 37- Waiving all this, however, defendant’s witness was competent to speak as to the character of plaintiff’s witness. Defendant’s witness knew plaintiff’s witness, saying, “ He was with us two or three years,”—meaning in the same employment. In People v. Davis, 21 Wend. 309, the impeaching witness had known the other for a number of years, and knew his associates, but was “ not acquainted with his general character for truth and veracity; ” and yet he was allowed to testify that “ he would believe the other on oath.” The ruling was followed in Adams v. Greenwich Insurance Co., 70 N. Y. 166. On the authority of these decisions, the evidence tendered was legal, and it was error to exclude it. In the cases cited the impeaching witness was not acquainted with the character of the other; here, non constat but the impeaching witness knew the character he was offered to discredit. The presumption is that, were the witness ignorant of the other’s character he would have so answered; or, had he answered that the character of the other was bad, the presumption would be that he testified to what he knew. The practice is habitual to ask a witness for a fact without first inquiring whether he knows the fact. It is the office of cross-examination to ascertain the means and opportunity of knowledge. My conclusion is that the judgment should be reversed.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Merton S. Mosher et al., App’lts, v. Charles Lewis et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    1. Mechanic’s lien—Consent.
    Work done under a contract, which authorizes' the lessee to make repairs, is done “with the consent of the owner.”
    2. Same.
    The right to a lien is not affected by the fact that the improvements were designed especially for the tenant’s business.
    3. Same—Record—Notice.
    The recording of the lease is not notice to one who supplies the materials for repairs under a contract with the tenant.
    4. Same—Sidewalk.
    The lessee’s covenant to keep the demised premises in good repair and either to improve the buildings now upon said premises or to erect new buildings thereon, is no proof of the lessor’s consent to improvements or repairs upon the sidewalk, so as to create a lien therefor on the leased land.
    5. Same.
    Nor will the mere acquiescence of the lessor to the building by the tenant of a sidewalk in front of the demised premises, constitute such consent.
    Appeal from a judgment dismissing the complaint.

      Andrew Shiland, Jr., for app’lts; Sidney H. Stuart, Jr., for resp’ts.
   Bischoff, J.

The defendant owners, Charles and Joseph Lewis, demised the “ lot of ground, with the buildings thereon erected, situate in the Ninth ward of the city of New York, at the southwesterly corner of Eighth avenue and Thirteenth street,” with the “ appurtenances,” to John W. Wilson and John C. Van Houten, for 10 years from May 1, 1893; the lease being dated February 7, 1893, and recorded in the office of the register of said city and county two days thereafter. Among other things, the lessees covenanted to “ keep the said demised premises, with the improvements, in good repair and condition, at their own expense; * * * these repairs to include all inside and outside repairs, roofs, or anything else, of whatever kind and description, connected with the demised premises; it being understood and intended that no repairs shall fall on or be made by the parties of the first part (the lessors) or that they shall be liable therefor; ” and further, that they would “ either improve the building now upon said premises, or erect new buildings thereon,” and at the expiration of the term surrender to the lessors “the said demised premises * * * and all improvements or repairs of whatsoever nature, * * * together with all- and any new or repaired buildings.” On the day succeeding the date of the lease the lessors executed and delivered their written consent to the lessees to “ make such alterations in the buildings demised by said lease as they (the lessees) may elect.” Before the commencement of the term the lessees entered into possession of the demised premises, and began making improvements and repairs thereto. Between April 15, 1893, and June 15, 1893, both dates inclusive, the plaintiffs, at the instance and request of the lessees, performed services and furnished materials of the aggregate value of $584.40, of which $233.76 was for “ concreting the cellar, making and laying the cellar floor, and facing the cellar walls,” and $350.64 was for “ making and laying an artificial stone sidewalk and repairing the sidewalk ” in the street immediately adjacent to the lot and buildings demised. While the plaintiffs’ work was in progress, Charles Lewis, one of the lessors and owners, defendants, on several occasions visited the premises, saw the work, and orally expressed his approval thereof. Up to the time of the completion of their work the plaintiffs were in actual ignorance of the provisions of the lease, though they knew Wilson and Yan Houten’s interest in the premises to be that of lesses only. The lesses having failed to pay the plaintiffs for the work, the latter claimed to be entitled to a lien therefor upon the premises as against the lessors and owners, defendants, pursuant to the provisions of the mechanic’s lien law (chapter 342, Laws 1885, as amended by chapter 316, Laws 1888), and filed a notice of such lien, having in that respect complied with every requirement of the statute to render the notice effectual. This action was brought to foreclose the lien, and upon the facts stated the learned trial judge dismissed the complaint, upon the merits, as against the lessors and owners, defendants. From the judgment entered upon such direction this appeal was taken by the plaintiffs.

The question presented, therefore, on this appeal, is whether the plaintiffs had acquired a valid lien as against the lessors and owners, defendants, for the whole or any part of their claim. With regard to so much of the plaintiffs’ claim as is for “concreting the cellar, making and laying the cellar floor, and facing the cellar walls,” the lien is indisputable. Section 1 of the mechanic’s lien law confers the lien, if the services were performed or the materials were furnished with the “consent” of the “owner.” That the “owner” comprehended by the statute is not only the correlative of the “contractor,” as both terms may be popularly understood, and that the “consent” of the “owner” may be predicated of his agreement with another, the lessee or vendee, whereby the latter undertakes to make improvements or repairs at his own expense, was ruled in Husted v. Mathes, 77 N. Y. 388; Burkitt v. Harper, 79 N. Y. 273; and Otis v. Dodd, 90 N. Y. 336. True, these cases arose under former statutes,—the first under chapter 402, Laws 1854, as amended by chapter 489, Laws 1873; the second under chapter 478, Laws 1862 ; and the third under chapter 489, Laws 1873, as amended by chapter 233, Laws 1875. Nevertheless, the provisions of the several statutes alluded to are so substantially alike to the provisions of the corresponding sections of the present mechanic’s lien law that the rulings last above alluded to have been approved or cited in Schmalz v. Head, 15 Daly, 223 ; 23 St. Rep. 117, affirmed 125 N. Y. 188; 34 St. Rep. 779 ; Miller v. Mead, 127 N. Y. 544; 40 St. Rep. 177; Pell v. Baur, 133 N. Y. 377; 45 St. Rep. 241; Cowen v. Paddock, 137

N. Y. 188 ; 50 St. Rep. 386; and Spruck v. McRoberts, 139 N. Y. 193; 54 St. Rep. 44,—each of which arose under the present law (Laws 1885, c. 342). The learned trial judge thought the present case distinguishable from "those above referred to, because of the plaintiffs’ alleged notice of the fact that, pursuant to agreement with the lessees, at whose request and upon whose promise to pay the plaintiffs performed the services and furnished the materials, the lessors and owners, defendants, were in no manner to be answerable for the improvements or repairs. Neither in Otis v. Dodd nor in any other of the cases referred to did it appear that the lienors had or did not have notice of a like provision in the agreement under which the persons causing the improvements or repairs to be made were in possession of the premises: hence the circumstance of such notice is to be taken as immaterial. But, though the determination of the last-mentioned proposition may not be .involved in the former decisions, it is our opinion that .such notice cannot impair the right to a lien as against the lessors’ and owners’, defendants’, interest in the premises. The right to such a lien did not exist at common law. Spruck v. McRoberts, 139 N. Y. 193, 197; 54 St. Rep. 461; Benton v. Wickwire, 54 N. Y. 226 ; Mushlitt v. Silverman, 50 N. Y 360 ; Freeman v. Cram, 3 N. Y. 305 ; Grant v. Vandercook, 8 Abb. Pr. (N. S.) 465; Huxford v. Bogardus, 40 How. Pr. 94. It “is a peculiar, particular, and special remedy, given by statute, founded and circumscribed by the terms of its own creation.” 15 Am. & Eng. Enc. Law, p. 5. It is created by the statute, but arises, not from contract, but from the employment of services and the use of materials in improvements or repairs with the “owner’s” consent, though it may be incidental to a contract. Id. p. 65, note 5 ; Frost v. Ilsley, 54 Me. 345, 351. The present mechanic’s lien law does not prescribe ignorance of the mechanic or material man of the “owner’s” agreement with another, whereby the latter has assumed the expense, as a condition of the right to acquire the lien ; hence we may not annex it. The determinative fact is that the services were employed, or the materials furnished, with the “owner’s” consent. In Miller v. Mead, 127 N. Y. 544, 549 ; 40 St. Rep. 177, it was held that the “owner” and “contractor” cannot, by agreement among themselves, to which the lienor was not a party, and of which he had no notice, subordinate the lien of a mechanic or material man to the “owner’s” claim for advances. Whether the lienor’s right, as such, would have been impaired if he had notice of the provisions of the agreement, the court did not undertake to say. However, the question of notice cannot arise in the present case. That the plaintiffs did not have actual notice of the lessees’ covenant to make the improvements and repairs at their own expense appeared from unchallenged proof, if, indeed, affirmative proof of nonnotice was requisite to the plaintiffs’ case ; and constructive notice to the plaintiffs, in favor of the lessors and owners, defendants, did not arise from the fact of the record of the lease. The recording act (3 Rev. St. [Banks & Bros.’ 7th Ed.] p. 2215, § 1) is that:

“Every conveyance of real estate, within this state, hereafter made, shall be recorded in the office of the clerk of the county where such real estate shall be situated; and every such conveyance not so recorded shall be void as against any subsequent purchaser, in good faith, and for a valuable consideration, of the same real estate, or any part thereof, whose conveyance shall be first, duly recorded.”

Its only effect is to afford a means of protection to the grantee against the acts of the grantor. Lacustrine Fertilizer Co. v. Lake Guano Fertilizer Co., 82 N. Y. 476, 485. No advantage can accrue therefrom to a grantor.

It appeared on the trial from the testimony of Wilson, one of the lessees, called as-a witness for the plaintiffs, that the improvements and repairs were designed to fit the demised premises for the purposes of an hotel and cafe, which the lessees proposed to conduct thereon. We are unable to understand how that fact can impair the plaintiff’s lien, in view of the further facts that the improvements and repairs appear to have been of a character which made them substantially a part of the premises, and that the statute under which the lien was acquired does not discriminate against improvements and repairs which are designed for special uses. A different question might have been presented if it had appeared in evidence that the improvements were mere trade fixtures, which did not constitute an integral part of the realty. Baum v Covert, 62 Miss. 113. With regard to the improvements- and repairs to the sidewalk, however, the lien was not established. We do not question the right of a mechanic or material man to-acquire a lien for improvements or repairs to the sidewalk, when made with the “ owner’s ” consent. This right is expressly given by § 1 of the present mechanic’s lien law. But we predicate our conclusion on the absence of sufficient evidence of the lessors’ and owners’, defendants’, consent. The premises demised ” were the “lot of ground,” with the “buildings” thereon and the “ appurtenances.” Though this must be construed to include the easements of light, air, and the means of access in the street adjacent to the premises, and necessary to their usual and proper enjoyment (In re New York Cent. & H. R. R. R. Co., 49 N. Y. 414, 419; Mott v. Palmer, 1 N. Y. 564, 569; 12 Am. & Eng. Enc. Law, p. 983; Wood,, Landl. & Ten. p. 310, § 213 ; Tayl. Landl. & Ten. p. 111, § 161; Gear Landl. & Ten. §§ 67, 170), it included no-part of the street itself, the control of which was presumptively in the public authorities for such purpose by law established. Prima facie, the obligation to maintain the street in proper repair was upon the municipality. City of Rochester v. Campbell, 123 N. Y. 405 ; 34 St. Rep. 77; 24 Am. & Eng. Enc. Law, p. 87. That by § 321 of chapter 569, Laws 1887, the municipality is authorized, in certain cases, to impose the expense incurred as a charge upon the adjacent property, does not change the rule. The lessees’ covenant to keep the “ demised premises ” in good repair cannot be taken as evidence of the lessors’ consent to improvements or repairs elsewhere. Neither was the lessees’ further covenant to “ either improve the building now upon said premises, or to erect new buildings thereon,” evidence of a consent to improvements or repairs on the sidewalk! Again, the lessors’ written consent, made subsequent to the date of the lease, was expressly limited to “alterations” in the “buildings demised.”

It remains only to-inquire whether Charles Lewis’ oral expression of approval while the plaintiffs’ work was in progress may be taken as a consent to the work. Waiving the objection that,, without express authority from his co-owner, Charles Lewis’ consent at most subjected his own interest to the lien. White v. Manhattan Railway Co., 139 X. Y. 19, 30; 54 St. Rep. 409, the evidence of an oral consent to the plaintiffs’ employment and use of materials for improvements and repairs to the sidewalk is-equally deficient. It nowhere appeared that the lessors and owners, defendants', could lawfully authorize another to make such improvements or repairs, or prevent him from making the same. To consent implies the power to authorize and to prevent, a degree of Superiority which arises from the presence of a combined mental and physical ability to act. One cannot properly be said to have consented to an act which he could neither authorize nor prevent. Ottiwell v. Muxlow, 24 St. Rep. 38; Ottiwell v. Watkins, 15 Daly, 308, 24 St. Rep. 38; Havens v. West Side Electric Light & P. Co., 44 St. Rep. 589 ; Robbins v. Arendt, 58 St. Rep. 483 ; Webst. Unab. Diet. “Consent.” The lien sought to be foreclosed in this action being valid in part, it was error to dismiss the complaint. Judgment reversed, and new trial granted,, with costs to appellants to abide the event.

All concur.


author: Van Wyck, J.

text:
    Edward Engelbach, as Administrator, etc., Resp’t, v. Martin Ibert, Impleaded, etc., App’lt.

      (Brooklyn City Court, General Term,

      Filed December 24, 1894.)

    Negligence—Proximate cause.
    Negligently driving a wagon against another, which was standing in the street, thereby causing the latter to strike a person standing near, is the proximate cause of the injury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, and on the ground of newly discovered evidence.

      Jackson & Burr, for app’lt; Dailey, Bell & Crane, for resp’t.
   Van Wyck, J.

Plaintiff sued to recover damages for the ' death of his son William, alleged to have been killed through the carelessness of the defendants, and the jury rendered a verdict against all the defendants. Defendant Ibert moved for a new trial on the minutes, and afterwards on the ground of newly-discovered evidence. Both motions were denied, and Ibert alone appeals from the judgment entered upon the verdict and from the two orders. There is evidence in this case which we, after critical examination, are satisfied that the jury were justified in believing, which shows that the deceased, a child of the age of two years and seven months, went out on October 15, 1893, on Graham avenue in charge of his thirteen year old brother Eddie. On Graham avenue, in front of their place of business, Berker & Orgelñnger had two one-horse wagons, without horses, on the sidewalk, and in the street, where they were usually stored when not in use. One stood on the sidewalk along the gutter, but about twelve inches therefrom, with its shafts resting at the foot of a tree on the edge of the curb, and the other wagon stood in the street about three feet distant from it, so that the front wheels of the one in the street were about abreast the hind wheels of the other, with shafts pointing towards the same tree, leaving a space between the side of this wagon and a car passing by scarcely sufficient for Ibert’s wagon to pass between them. Little William Engelb'ach was on the sidewalk, close to the wagon on the sidewalk, while a car was slowly approaching a point nearly abreast of the wagon in the street, when Ibert’s wagon, in the immediate rear of the car, was rapidly turned out to pass the car, between it and Berker & Orgelfinger’s wagon in the street, in doing which, to use the words of the youthful witnesses, he “ bunked ” his wagon first against the tail of the car, and then against this wagon in the street, driving it against the wagon on the sidewalk, and wedging the child between the tree and this latter wagon, and inflicting upon him injuries of which he died the same afternoon. The defendant Ibert offered testimony for the purpose of showing that his wagon was in front of this car, which pushed his wagon against the wagon in the street; but the jury discredited the same, and we see no reason to disturb their conclusion. From such circumstances an inference of negligence on the part of Ibert’s driver can be fairly drawn, and was most natural. The appellant insists that his wagon was not the proximate cause of the injury, but the wagon or wagons of the other defendants, which were improperly stored in the street. With • this view we cannot agree. It reminds us of the man who, after negligently dropping a brick from the roof of a house, knocking down a projecting sign against the head of a pedestrian on the sidewalk, insisted on laying all the blame of the injury upon the person who put up the sign. The exception to the refusal of the court to charge the request at folio 194 does not furnish ground for reversal, for the court had clearly and correctly instructed, at considerable length, the jury upon this point, at folios 185 to 186; and then, again, we cannot conceive how a jury could have adjudged an adult guilty of contributory negligence for standing near a wagon stored entirely upon the sidewalk any more than he would for standing or walking under a sign projecting over the sidewalk. ’ It seems to us that the trial judge properly denied the motion for a new trial on the alleged newly-discovered evidence. The plaintiff did not see the accident, and ar.d in no way pretended that he had any personal knowledge thereof; and why should his allegations in a complaint on information and belief against the defendants influence the jury to disregard or discredit the evidence of eyewitnesses of the occurrence? For these reasons we think the judgment and orders should be affirmed, with costs.


author: Yam Wyck, J.

text:
    Margaretha Hovell, Resp’t, v. William Noll, App’lt.

      (Brooklyn City Court, General Term,

      Filed December 24, 1894.)
    Guardian and ward—Support.
    A guardian is entitled to an allowance for his expenditures, made by him. before his appointment, in the support of the ward while he was too young to support himself.
    Appeal from a judgment in favor of plaintiff.

      Max Hallheimer, for app’lt; Chas. J. Patterson, for resp’t.
   Yam Wyck, J.

When the plaintiff was about six years old, both of her parents died, leaving her and two brothers surviving them. ' She lived first with her brother Adam Strohlein, but he soon died; and then her brother John Strohlein took her, at the age of about seven years, to his home, and supported her till she was eighteen, providing her-with clothing and all the necessaries of life. He was a poor man, and owned, with his sister, in common, an equity in a piece of real estate of the net value of $942.44, making the share of each $471.22 When plaintiff was nine years old her interest in this real estate was sold, because she was in absolute need of it for her support, under infant proceedings instituted for that purpose. John Strohlein, her brother, was appointed her guardian ad litem therein, and received her net share of $471.22, giving the usual bond for the faithful discharge of his trust, with two sureties, viz., William Noll, the defendant herein, and one John F. Melloh, who is now dead. John Strohlein died in October, 1889, and this action on this bond was commenced in the spring of 1890 to recover the said sum of $471.22, with interest from the.time John Strohlein, her guardian, received it. The verdict was in favor of plaintiff for $923.38.

The defendant’s first defense was that he could not be sued till there was an accounting between the guardian or his representative and the ward. Let us assume, for the time being, that an action at law could be maintained without such accounting, under the authority of Long v. Long, 142 N. Y. 545; 60 St. Rep. 311; then we are confronted with the second defense, and the question as to whether any error was committed in the trial thereof to the injury of the defendant. This defense was that the guardian was entitled to an allowance for his expenditures in the support of the child while she was too young to support herself. The trial held that such an allowance should be made for -the period subsequent to the guardian’s appointment, but not for that prior thereto. To this limitation an exception was duly taken. John Strohlein was the natural guardian of this child, and there is no question that he maintained and supported her' till she was old enough to do so herself, furnishing her with all the necessaries of life. There was no order authorizing the guardian, Strohlein, to use this money for the support of the child, but it has been frequently held in this state that, if the expenditures made by a guardian for the support of his ward were “ such that they would have been authorized by the court if the application had been made in advance of paying out the money,” then they should be allowed in an action or proceedings where the amount due the ward is involved. The plaintiff, while an infant of very tender years, was without means, except her equity in this real estate, which realized a net sum of $471.22. This money could have been devoted to no better purpose than to maintain her in a decent home under good influences. The law provides for just such a case. It authorizes-the court to direct the sale of an infant’s real estate where the personal property and the income of the real estate are “ together insufficient for the payment of his debts or for the maintenance and the necessary education of himself.” Code Civ. Proc. § 2348, subd. 1. An infant’s estate is liable for moneys advanced for the necessaries of life. Atchison v. Bruff, 50 Barb. 381; Smith v. Oliphant, 2 Sandf. 306; Randall v. Sweet, 1 Denio, 460. This infant had no personal estate, and no income from real estate, and the order made in the proceedings under which her real estate was sold indicates that the application for such sale was made on the ground that the infant was in absolute need of the proceeds for her support and maintenance. The claim for back support of this infant by her guardian; John Strohlein, before the sale of the real estate, should have been taken into consideration in determining what allowance should have been made him if he did not intend to donate to her the cost of the living provided by him. Hyland v. Baxter, 98 N. Y. 610 (see page 615); In re Bostwick, 4 Johns. Ch. 100-105; Sheppard v. Stebbins, 17 St. Rep. 900. In Hyland v. Baxter, the court says: “It is not necessary, at the present time, to consider the rules which govern courts of equity in exercising this jurisdiction, but the general principle has been applied in many cases that an allowance for past maintenance of infants may be made to executors, trustees, or guardians upon an accounting or upon petition, even when it requires breaking in upon the capital, provided the expenditures for which reimbursement is sought would have been authorized by the court if application had been made in advance.”

In that case the administrator of their father, without any order of the court, advanced moneys to the mother (of infants) for their support, she being their natural guardian, they having no general guardian at the-time; and the court credited the administrator with these advances ten years afterwards. In re Bostwick, 4 Johns. Ch. 105, the chancellor expressly declares that a parent may be allowed, out of the capital of the infant, for the past maintenance of such infant.

The judgment and order are reversed, and new trial ordered, with costs to abide the event.


author: Clement, C. J.

text:
    Robert Young, as Administrator, etc., App’lt, v. Atlantic Avenue Railroad Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed December 24, 1894.)

    1. Negligence—Street crossing.
    A child seven and one-half years old is not, as a -matter of law, negligent in attempting to cross in front of an electric car approaching a street crossing.

      2. Same.
    A foot traveler, using the cross-walks, has a right to assume that all cars will nearly stop upon approaching the crossing.
    3. Same.
    A motorman, approaching a cross-walk or a cross street, should have his car under control.
    4. Evidence—Judicial notice.
    The court will take judicial notice of the fact that a trolley car, which is operated at an ordinary safe rate of speed, can be stopped, emergency or no emergency, in a much shorter space than 102 feet.
    Appeal from a judgment in favor of defendant.

      Tredwell & Catlin, for app’lt; Bergen & Dykman, for resp’
   Clement, C. J.

— The plaintiff’s intestate, a boy, was at the time of his death of the age of seven and one-half years, and if sui juris, could only be held to the degree of care required of one of his age of ordinary prudence. The testimony in the case is not very satisfactory, though certain facts were proven. One Grriessman was at the time in the doorway of his place of business at the northeast corner of Duffield and Concord streets, looking out towards the west side of Duffield street, and saw the boy when he was between the two tracks on Concord street, at or near the west cross-walk. The boy was running at the time as if he started from the northwest corner, and went directly across the street, though Mr. Griessman did not see him until he had crossed one track. The boy ran in front of the approaching ear, and was nearer the southerly rail when he was struck; that is to say, he was nearly over the track at that time. The car, aftej’ it struck him, ran 102 feet, and when it was stopped he was taken out lifeless from under the car. The grade on Concord street, from west to east, is very steep, and the cars had only been operated with electricity for three days before the day in question.

It is very evident from the testimony that the car, at the time it struck the deceased, was operated at a high and unsafe rate of speed. It may be assumed that the motorman' saw the boy, and did all he could to stop the car, and yet it moved 102 feet, carrying along his remains. We think that we can take judicial knowledge of the fact that a trolley car which is operated at an ordinary safe rate of speed can be stopped, emergency or no emergency, in a much shorter space than the distance above stated. There is direct testimony also in the case that the car was moving very rapidly. The negligence of the motorman was sufficiently proven to entitle the plaintiff to go to the jury. A motorman approaching a cross-walk or a cross street should have his car under control for two reasons: Firstly. Foot passengers are liable to use the cross-walk; and, though the railroad company has the paramount right of way, yet it behooves the motorman to be vigilant in approaching a cross-walk, that he may avoid injury to a foot traveler, though the latter may be careless and take his chances. Murphy v. Orr, 96 N. Y. 14. Secondly. Vehicles using streets which cross a street railway have an equal right of way with the railroad cars. Buhrens v. Dry Dock, etc., Railroad Co., 53 Hun, 571; 26 St. Rep. 191; affirmed (Ct. App.) 125 N. Y. 702; O'Neil v. Dry Dock, etc., Railroad Co., 129 N. Y. 125; 47 St. Rep. 107. And foot passengers using the crosswalks at such cross streets have a right to assume that the motormen will slow down their cars as they approach the cross streets to avoid collisions with vehicles. Trolley cars, in crossing tracks of other lines, come nearly to a stop, and do not cross till the signal is given by the conductor. So, at such crossings, foot travelers using the cross-walks have a right to assume that all cars will nearly stop, and we know of no reason why a foot traveler would be negligent at a crossing of a street not occupied by a railroad, if he assumed that a motorman would comply with the law, and would slow down his car before 'crossing the street, when otherwise there would be liability of collision with vehicles which have a right of way equal to that of the cars.

We do not think that the deceased was negligent, as matter of law, in running in front of the car. If it had been operated at a reasonably safe rate of speed, he would have crossed in safety. Is it negligent for a child seven and one-half years of age to run across a street railroad track, when he can cross in safety if the approaching car is operated at a fair rate of speed? This child did not have the discretion of an adult, and the trolley cars had been operated for three days only in that street. The question of contributory negligence should have been submitted to the jury under the usual instructions given in a case where the injured party is a child of the same age as the deceased. Stone v. Dry Dock Railroad Co., 115 N. Y. 104; 23 St. Rep. 551. The plaintiff, with the meagre testimony offered, and which we assume was all that could be obtained, made out a prima facie case, against the company, and the judgment appealed from must be reversed, and a new trial granted, costs to abide the event.


author: Osborne, J.

text:
    Gustav Hurliman, Resp’t, v. Isaac Seckendorf, et al., App’lts.

      (Brooklyn City Court, General Term,

      Filed December 24, 1894.)

    Landlobd and tenant—Rent—Defense.
    The fact that the lessor is to furnish heat and steam power during the month furnishes no defense to an action, brought before the end of the month, for the rent of such month, when payable in advance.
    Motion for reargument.

      Henry I. Meinhard, for app’lts; Jas. C. Foley, for resp’t.
   Osborne, J.

On the trial of this cause plaintiff obtained a judgment in his favor, which, on appeal to the general term of this court, was reversed, on the ground that defendants were improperly denied the affirmative with the right to open and close. The action was brought on a lease which provided that the rent should be paid monthly in advance. On leave obtained, both sides have submitted briefs on a reargument of this appeal. We have given very careful attention to the points submitted by the learned counsel for the plaintiff, but we find nothing in them that affects, or induces us to alter, the views heretofore expressed by us. We have nothing to- do with the financial effects on the plaintiff that our decision may entail, nor can any such consideration be permitted to affect our opinion on the questions of law involved in this appeal. Hor have we overlooked the plaintiff’s contention that the lease was executory in its terms, and that plaintiff could not recover the month’s rent sued for until he had first shown that he had complied with this agreement to furnish steam heat, power, etc. If the rent sued for was payable at the end of the month, then plaintiff would unquestionably have to show, if it was denied, that he .had performed all the covenants on his part provided for in the lease; and the authorities cited by him well sustain that position. But in the present case the parties to the lease plainly covenanted, not that the lessees’ payment of the rent for each month should be conditioned on the lessor first furnishing steam heat, power, and so forth for "that month, but that the lessees should pay each month’s rent “ in advance on the 1st day of each and every month.” That the lessor had a right to commence suit to recover the month’s rent on the 2d day of the month if not paid cannot be disputed, and the lessees could not be heard to-allege, as ground of defense to such an action, that the lessor was to furnish heat, steam power, etc., throughout the month, and that they should not be compelled to pay their rent for that month until they first knew whether the lessor would perform his covenant. The plain answer to such a contention would be that the lessees had covenanted to pay their rent in advance on the 1st of each month ; that by so doing they had precluded themselves from requiring the performance of any conditions precedent to the payment of the rent, and they would be remanded to their action for damages for any breach of the lessor’ covenants. The rights of the respective parties became fixed at the time the cause of action accrued, and plaintiff would seem to have adopted that conclusion, for the summons herein is dated on the 8th day of September, 1890, to recover the rent for that very month. The law on this subject is well stated by Parsons as follows :

“If money is to be paid on a day certain, in consideration of a thing to be performed at an earlier day, the performance of this thing is a condition precedent to the payment. And if the money is to be paid in instalments, some before a thing is to be done and some when it is done, the doing of the thing is not a condition precedent to the former payments, but is to the latter. And if there is a day for the payment of the money, and this comes before the day fixed for the doing of the thing, or before the time when the thing, from-its nature, can be performed, then the payment is, at all events, obligatory, and an action may be brought for it, independently of the act to be done.” 2 Pars. Cont. (6th Ed.) p. 677.'

ISTo authority cited by the learned counsel for the plaintiff is in conflict with the foregoing views.

There is no valid foundation for plaintiff’s contention that he was bound to prove, as a part of his case, that he had performed all his covenants up to the time that the September rent became ■due. It was not necessary to allege his performance or nonperformance of anything that had gone before in order to properly plead his cause of action. That rested on the breach of defendants’ covenant to pay the September rent on the 1st day of that month; and, even if he saw fit to allege such performance, it was not essential to his cause of action, and consequently he was not bound to produce evidence to sustain such allegation. Fone of the points urged by the learned counsel for the plaintiff on this motion were overlooked by us in originally deciding the appeal herein. On the contrary, they all had our careful consideration, ■even if not fully touched upon in our opinion. A further examination, induced by the elaborate brief of the learned counsel for the plaintiff submitted on this motion, has only tended to confirm our views as originally expressed. Motion for Lreargument is denied, with costs. - .


author: Per Curiam.

text:
    George L. Taylor, App’lt, v. Blue Ridge Marble Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Pleadings—Sepabate statement op causes op action.
    Where the object of an action is to create a fund and, then, having all persons who could have any interest therein in court as parties, to determine as to its distribution, the facts constitute but a single cause of action.
    Appeal from an order requiring plaintiff to amend his complaint, by separately stating and numbering two causes of action.

      Edward W. Crittenden, for app’lt; Julius F. Workun, for resp’t.
   Per Curiam.

If two causes of action are set forth in the complaint, then the order below was right, in directing the separation and numbering of such causes of action. The question presented, however, is, whether there are two causes, or one, set forth in the ■complaint. The complaint alleges that the firm of Byrne & Perry had a contract for the construction of a church; that the defendant the Blue Ridge Marble Company contracted, with them to furnish the material and perform the work required by the marble specifications of the plans for said church; that thereafter the Piedmont Marble Company, plaintiff’s assignor, contracted with the Blue Ridge Company to complete the latter’s contract with Byrne & Perry; that this contract was induced by false representations, which, when the falsity was known, led the Piedmont Company to repudiate the contract, and file a mechanic’s lien for the value of the material furnishe’d; that thereafter, an action having been brought, an agreement was entered into between the parties to this suit, by which the action was discontinued and the mechanic’s lien satisfied, and the moneys, as received by Byrne & Perry from the church, were to be paid into a trust company to the joint order of the attorneys for the two marble companies, and, if Byrne & Perry did not pay in to the trust company $6,000 when the last payment should be due from the ■church, that firm was to give an order on the church to pay in to the trust company such an amount as would make up the sum agreed; that by a subsequent agreement the plaintiff and the Blue Ridge Company and the attorneys contracted for the disposition of the money deposited with the trust company, and that, although the payments provided to be made by the church to Byrne & Perry are due, the latter have paid nothing in to the trust company, and have refused to give their order on the church. The prayer of the complaint, in substance, asks that the contract entered into between the parties should be specifically performed, and that, out of the moneys so to be deposited, the plaintiff receive the value of the work, labor and material furnished.

It is insisted that there are two ca.uses of action stated,—one against the Blue Ridge Marble Company for the value of material furnished, and another for the specific performance of a contract made by the firm of Byrne & Perry and the marble companies,— and that these should be separately stated. We think, however, ■that in this the respondent is in error. This is not an action at law, but a suit in equity for the purpose of creating a fund, and then, as a result of or an incident to the creation of the fund, its distribution, and all persons having any interest in the fund or its distribution are made parties to the action. The action may be rightfully regarded as brought to enforce the contract made between all the parties to the action, which had for its object the discontinuance of plaintiff’s action, and the substitution of a fund-in the trust company. The grievance is the failure of some of the parties to provide the fund as agreed, and, as shown by the complaint, the object of the action is to create a fund, and then, with all persons who could have any interest therein being made parties, to determine as to its distribution. There are not, therefore, two causes of action at law, but the facts furnish the grounds for relief in a court of equity, and constitute, in the language of the Code, “a cause of action.”

We think the order below was erroneous, and should be reversed, with ten dollars costs and disbursements.


author: O’Brien, J.

text:
    Sigmund Ashner, App’lt, v. Max Abenheim et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Contract—Construction.
    "The contract, in this case, was construed to be one, by the terms of which the plaintiff was to buy at the short price, which excluded the duty, and, in addition to such price, to pay whatever the duty might thereafter be found to be.
    Motion for a new trial on exceptions, ordered to be heard at general, term in the first instance. '

      John Fennel, for pl’ff; B. F. Einstein, for def’ts.
   O’Brien, J.

The plaintiff purchased from defendants 26 bales of Sumatra tobacco, through a broker, and received from the latter a bought note, which reads as follows: “Mr. S. Ashner, 15£ Bowery, bought of M. Abenheim & Co., 2 and 4 Stone street, twenty-six .bales Sumatra tobacco, Deli Poewa, Bl, as per annexed return, Hos. 1,148.52, 1,154.74 ; net 45,460, at $1.40,—$6,364.40.. Terms: The goods are to be delivered, duty cash, not less than five bales at a time. Any amount of goods over five bales delivered between date of bill and sixty days thereof is to be discounted at the rate of 6 per cent, per annum on a four months’ basis. For amount of goods remaining in bond at the expiration of sixty days, a four months’ note is to be given for the bonded amount; but, whenever more than five bales have been delivered", such excess is to be discounted at 6 per cent, per annum for unexpired time of nota The duty on such amount of goods remaining in bond must be paid whenever a change in the tariff necessitates it.. The duty is 45 cents (forty-five cents) per pound.”

The plaintiff paid the full amount of $6,364.40, and received the 26 bales of tobacco ; but having subsequently ascertained that, the duty on said tobacco was only 35 cents, instead of the 45 cents stated in the note and paid to defendants, this action was brought to recover the difference of 10 cents per pound so obtained by defendants, as alleged, through misrepresentation.

It clearly appears that the broker represented to plaintiff that the duty on the tobacco was 45 cents, and that plaintiff relied upon such statement in paying that sum to defendants. If, however, such representation is to be regarded as one relating to the value of the tobacco, or as a representation of what the law was relating to duties, some doubt might exist as to plaintiff's right to recover, —upon the former ground, because it would have been necessary ■ for the plaintiff to show that the actual value of the tobacco which he purchased was less than it would have been if the government had imposed a duty of 45 cents upon it, instead of a duty of 35 cents, which the evidence fails to disclose; and upon the second ground of misrepresentation of law, because, “ generally speaking, a misrepresentation of law affords no ground of. redress or relief; the misrepresentation should be of a fact” 1 Bigelow, Fraud, p, 487. But the plaintiff was not confined to either of these theories to justify a recovery, and we think that the error into which the learned court fell in dismissing the complaint was in overlooking the basis upon which the action Was predicted, and which necessarily involved a construction of the contract between the parties. The construction of such contract was for the court, and it is here to be determined whether, upon the construction which should be given to such contract, the dismissal of the complaint was justified. If it was one wherein, as contended by defendants, the plaintiff agreed to purchase so many pounds of tobacco at $1.40 a pound, then it would make no difference whether the duty was 35 or 45 cents per pound. Or, as expressed in the trade language, if the price at which the plaintiff bought the tobacco was the “long price” (that is, inclusive of the duty), and not the “short price” (which is exclusive of the duty), then the plaintiff could not recover back the difference in duty paid. If this construction of the contract were to prevail, then the effort to recover back the difference of 10 cents could not be successful, because any representation made for the purpose of inducing the plaintiff to enter into such an agreement would be one relating to the value of the tobacco, or a misrepresentation as to the law, upon neither of which grounds could the plaintiff recover, for the reasons already given. And it was by confining its attention to this as the only construction to be given to the contract that the court was led into the error of dismissing the complaint. If, on the other hand, the contract was one by which the plaintiff agreed to purchase the tobacco at a certain sum per pound, and, in addition thereto, to pay whatever might be the duty, and, for the purpose of fixing in the contract what the understanding of the parties was as to the duty, it was, as the effect of a representation made by defendants, placed at 45 cents per pound, and thereafter the defendants paid only 35 cents, they would be justified in retaining the 45 cents which they received from the plaintiff.

We think the evidence justified the construction that the contract was one by the terms of which the plaintiff was to buy at the short price, which excluded the duty, and, in addition to such price, was to pay whatever the duty might thereafter be found to be, whether which was included in the contract. Such construction finds support in the circumstances attending the making and delivery to plaintiff of the bought note, which, as shown, when brought to plaintiff, contained a statement that he bought so many pounds of tobacco at a fixed or long 'price, including the duty; but, before he would accept the bought note or complete the contract, he insisted on the information as to what the duty was, and, as appears from such note, had it placed at the end thereof. It is true that the broker in one place testified that the price per pound for the tobacco fixed by the contract was $1.40, duty cash ; but he further stated that he could not remember whether, at the time such price was fixed, anything was said about the duty, or, to quote his exact language: “ I am at a loss to say whether these bought and sold notes and the price of $1.40 a pound was settled upon before I found out what the duty was.” This uncertainty, however, is entirely removed by his subsequent testimony that he and plaintiff conversed about the price of the tobacco in Amsterdam, and the cost of importing the same, and that the plaintiff “ would not accept the contract unless I put it down in writing how much the duty was.” When cross-examined by defendants’ counsel as to whether the plaintiff had not agreed to pay $1.40, no matter what the duty was, he said, “I can’t say as to that”; and upon further cross-examination he again positively stated that what the plaintiff said was that he would not accept it until he knew the amount of the duty. This testimony of the broker’s is fortified by that of the plaintiff himself, and is borne out by the letter written by the defendants to plaintiff, from which it is evident that they intendéd that, if the duty should be increased upon such tobacco before it was delivered, the plaintiff was to pay such additional duty. Besides this, we have the statement of account wherein the amount to be paid by note and the amount of duty to be paid in cash are separately stated. Such evidence, furnishing, as it does, the strongest kind of testimony as to the construction which the parties themselves placed upon the contract,, must, in the absence of evidence to the contrary, be regarded as controlling upon the construction which the court should place thereon, and as supporting the plaintiff’s contention that he purchased the tobacco at 95 cents a pound, and, in addition thereto, agreed to pay the duty, which was stated at 45 cents a pound, and that he did not agree, irrespective of what the duty was, to pay $1.40 a pound for the tobacco. We think, therefore, that it was error to dismiss the complaint, because, in the light of such evidence, and as the case- then stood, the court should have construed the contract, as we have endeavored to point out, favorably to the plaintiff's contention. Having then, been induced by the misrepresentation that the duty was 45 cents a pound to purchase, upon subsequently ascertaining that all the defendants paid from time to time out of the cash sent them to pay such duty was 35 cents a pound he was entitled to recover back the 10 cents which we think, as shown by. such evidence, was unjustly and illegally withheld by the defendants. It would, of course, be competent for the defendants to introduce their evidence, and that might to some extent change the construction which upon the plaintiff’s evidence alone must be given to the contract, and, if it presented a question of conflict, might require submission to the jury ; but, in the absence of defendants’ evidence, we think that the dismissal of the complaint upon the plaintiff’s case was error, for which the judgment should be reversed. Exceptions accordingly sustained, and motion for new trial granted, with costs to abide event.

Follett, J., concurs. Parker, J., dissents.


author: Van Brunt, P. J. Follett, J.

text:
    Charles Bloom, Resp’t, v. P. Cox Shoe Manufacturing Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Contract—Question of fact.
    Where the evidence is conflicting as to the terms of a contract, it is a question for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      J. C. Ross, for app’lt; J. C. Rosenbaum, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for the breach of a contract of employment, whereby the defendant employed the plaintiff as traveling salesman for the period of one year, commencing January 1, 1892, and expiring January 1, 1893, at the agreed salary of $1,800 per year and expenses. The defendant admitted the making of the contract, but denied that the plaintiff had complied with said contract, and denied that it had refused to carry out its part of the same, and also denied that it had discharged the plaintiff without cause. The real controversy between the parties was as to whether, under his contract of employment as traveling salesman, the plaintiff was required to sell goods in the city of Hew York, in which city the defendant already had its representatives. It is urged upon the part of the appellant that the uncontradicted testimony showed that, under a contract similar to the one in question, it was the custom for salesmen to sell goods at the place of their residence and the place of business of the concern by wihch they were employed. In this, however, we think that the learned counsel is mistaken as to the scope of the evidence. There was evidence offered upon the part of the plaintiff, in respect to the custom, that it was not the custom of the trade for persons who sold goods outside of the city of New York to sell goods in the city particularly where the house has two representatives in the city. There was also evidence upon the part of the plaintiff tending to show that it was the understanding between the defendant and the plaintiff, at the time of his employment, that he was not to sell goods in the city of New York, but that he was to travel elsewhere, and not to interfere with the business of the other agents of the defendant which they had in the city of New York. Under this state of the evidence, the question as to the contract was fairly submitted to the jury, and they were informed with clearness as to what the rights of the parties would be thereunder, according as the jury found the contract to be. Various exceptions to the charge are called to our attention, but none of them seem to be of sufficient importance to call for a reversal of this judgment. At the suggestion of the learned counsel for the appellant, when attention was called to the language of the charge, the jury were reinstructed upon the points taken, and no exception was taken to such reinstruction. As to the exceptions to the admissibility of evidence, none of them seems to be of sufficient moment to merit special mention. Judgment and order -should be affirmed, with costs.

Parker, J., concurs.

Follett, J.

(dissenting).—The plaintiff was employed for the year 1892 as a traveling salesman on a salary of $1,800 and expenses. He made two' extended trips through the South, and several short ones in this state, and he sold only $180 worth of goods, his traveling expenses being $350. About this there is no dispute. Afterwards, he was directed to sell in the city of New York and vicinity, which he did for a time, his aggregate sales being $2,120. The defendant desired that he should continue to sell to the trade in New York and Brooklyn, but the plaintiff refused, and he was discharged June 24, 1892. His total sales for six months were $2,300, which cost the defendant, in salary and expenses, $1,250. The verdict that the plaintiff was a competent salesman and performed his contract is contrary to the weight of evidence. In contracts for personal services, the incompetency of the employe to perform the service which he has undertaken is a. sufficient ground for his discharge.

It seems to me that the evidence shows that this plaintiff was either incompetent or unfaithful, and that the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.


author: Follett, J.

text:
    People’s Trust Company, as Executor, etc., Resp’t, v. John J. Smith et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Will—Bequest—Charities—Y pro.
    Where the will is not executed two months before the testator’s death, a bequest to the "‘Presbyterian Home for Aged Women” is void.
    Appeal from a judgment construing the will.

      John M. Shedd, for app’lts Smiths; J. Warren Greene, for app’lts Masons; A. R. Dyett, for resp’t Presbyterian Home for Aged Women; W. F. Dunning, for resp’t Association for the relief of Respectable Aged Indigent Females; Geo. W. Wingate, for resp’t executor.
   Follett, J.

The question raised by the pleadings in this action is, whether the remainder bequeathed by the third clause to the Association for the Relief of Respectable Aged Indigent Females and to the Presbyterian Home for Aged Women is void under the sixth section of chapter 319 of the Laws of 1848, entitled “An act for the incorporation of benevolent, charitable, scientific and missionary societies,” which provides:

“ Sec. 6. Any corporation formed under this act shall be capable of taking, holding and receiving any property, real or personal, by virtue of any devise or bequest contained in any last will or testament of any person whatsoever, * * * and no such devise shall be valid in any will which shall not have been made and executed at least two months before the death of the testator.”
“An Association for the Relief of Respectable Aged Indigent Females in the City of New York ” was incorporated by chapter 69 of the Laws of 1815, which provided that it “ shall by that name and style be capable in law of purchasing, holding and conveying any estate, real or personal, for the use of said corporation: provided, that such estate shall never exceed in value one hundred thousand dollars nor be applied to any other purposes than those for which this incorporation is founded.” By the seventh section of this act it was provided that the corporation should continue until the last Thursday in November, 1830. By chapter 308, Laws 1830,-chapter 257, Laws 1849, chapter 328, Laws 1868, and chapter 88, Laws 1889, the act is continued in force until March, 1940. By chapter 382, Laws 1860, chapter 116, Laws 1878, and chapter 224, Laws 1885, the corporation is “ authorized to take, receive and hold any purchase, gift, devise or bequest, from, any person or persons, estate, real, personal or mixed, to an amount not exceeding ten hundred thousand dollars.”

It’ was conceded on the trial of this action that the property then held by the corporation did not exceed $700,000. There is no provision in any of the acts relating to this corporation which makes the sixth section of chapter 319 of the Laws of 1848, above quoted, applicable to it; and on the trial the claim asserted in the pleadings—that the bequest of one-half of the remainder to this corporation was invalid—was abandoned, and an appeal has not been taken from that part of the judgment adjudging that the bequest of one-half of the remainder to this corporation is valid. The only question presented on this appeal is whether one-half of the remainder bequeathed to the Presbyterian Home for Aged Women is valid, because the will was not executed two months before the -death of the testatrix. The Presbyterian Home for Aged Women was incorporated by chapter 413 of the Laws of 1869. The fourth ■section of this chapter provides:

“ Sec. 4. The said corporation are hereby authorized to take and hold by gift, purchase, devise or otherwise, subject to all provisions of existing laws in relation to devises by last will and testament * * * and shall be entitled to all the provisions and privileges of law of charitable institutions.”

In case a corporation is authorized by statute to take property by devise or bequest, “ subject to all of the provisions of law relating to devises and bequests by last will and testament,” or “ subject to the provisions of law relating to bequests and devises to religious societies,” the limitation imposed by § 6 of chapter 319 of the Laws of 1848 applies, and a devise or bequest to the corporation is invalid unless the will is executed two months before the death of the testator. Kerr v. Dougherty, 79 N. Y. 327; Stephenson v. Short, 92 N. Y. 433. In the case at bar it is conceded that the provision in the statute under which the Presbyterian Home for Aged Women was incorporated—“subject to all provisions of existing laws in relation to devises by last will and testament”—brings devises to that corporation within § 6 of chapter 319 of the Laws of 1848, and that if the testatrix had devised real estate to the corporation, and had died within two months after the execution of the will, it would have been invalid. The bequest was upheld at special term upon the theory that, the word “bequest” not being used in the act, it was not the intention. of the legislature to make bequests to this corporation subject to § 6 of chapter 319 of the Laws of 1848. By § 4 of chapter 413 of the Laws of 1869 the corporation is authorized to take' property by “devise or otherwise.” The words “or otherwise” were construed at special term, and we think correctly, as authorizing the corporation to take property by bequest. Under that ■construction the corporation was authorized by the section to acquire property by devise or bequest; and it is declared in the same action that it “ shall be entitled to all the provisions and privileges of law relating to charitable institutions.” Considering the purpose of the act, the object for which this corporation was incorporated, and reading the whole section together, it seems to us that it was the intention of the legislature not to give this corporation greater priviledges than those generally given by the statutes to charitable institutions, but that it should have the same power to take by will as is conferred by the statutes on like ■corporations. It seems to us that it was clearly the intention of the legislature to subject this corporation to all of the provisions of existing laws relating to devises and bequests. It is a rule that a statute shall be reasonably construed, and we can see no reason why the legislature should have intended to have made this corporation subject to the statute of 1848 in respect to devises, and not in respect to legacies. The statutory provisions that wills disposing of property in favor of religious and charitable institutions-must be executed two months before the testator’s death is for the protection of heirs and next of kin from improvident dispositions-by testators of their estates when weak and in apprehension of death ; and such must have been the intention of the legislature-in imposing a limitation as to devises to this corporation, and we can see no reason why the legislature should have intended not to have imposed limitation upon bequests. The word “ devise ”" has frequently been construed to embrace bequests, when used in-statutes or wills. By chapter 244 of the Laws of 1849 the American Female Guardian Society was authorized to receive property by “ gift or devise,” and it was held (Lefevre v. Lefevre 59 N. Y. 444) that the word “devise” embraced “bequest.” The word “bequest,” when used in wills, has frequently been held sufficient to-pass real estate, and the word “ devise ” to embrace personalty. Jackson v. Housel, 17 Johns. 281; Ladd v. Harvey, 21 N. H. 514; 2 Redf. Wills (3d Ed.) 315 et seq. The judgment should be modified by declaring the bequest to the" Presbyterian Home for Aged Women invalid, and, as modified, affirmed, with costs in favor of the executor and the appellants, payable out of the estate.

All concur.


author: Cullen, J.

text:
    Cornelius F. Kingsland, Resp’t, v. Kings County Elevated Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Appeal—Conflicting evidence.
    A verdict, on conflicting evidence, will not be disturbed on appeal, unless clearly against the weight of evidence.
    2. Damages—Elevated railway—Equity.
    In an action against an elevated railway for an injunction and damages, the grantee cannot, recover the damages which accrued before the conveyance to him, though they were assigned to him by his grantor.
    Appeal from a judgment in favor of plaintiff.

      Russell, Poste & Perry ( W. A. Poste, of counsel), for app’lt; T. B. Gates, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the special term in favor of the plaintiff. The action, save in one particular, is the usual one by an abutter for injury to the fee and for past damages. The most earnest contention of the appellant is that the trial court erred in the question of fact as to the amount of damages both to the fee and to the rental value. It does seem to us as if the evidence of the witnesses to the depreciation in the value of the property was more speculative than based on actual facts. But, to justify us in reversing the judgment below on this ground, it is not sufficient that we might have arrived at a different conclusion. The proof must so clearly preponderate that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion. Aldridge v. Aldridge, 120 N. Y. 614;. 31 St. Rep. 938; Barnard v. Gantz, 140 N. Y. 249; 55 St. Rep. 541. We do not think the evidence so clear as to justify us in such a finding.

The appellant put in evidence a consent to the construction of the road, executed by one Henry Mangles. We assume from the record before us, though the will is not set out in it, that the title to the property at the time was in Anna Mangles and Claus D. Doscher, as trustees under the will of Henry Mangles, deceased. Assuming that authority from Anna Mangles for the execution of the consent was proved, still the consent was inoperative, as the other trustee did not join in it. Besides this, the consent provided that its execution should not otherwise affect the abutter’s claim to damages, but the right to and the extent of compensation should be left entirely unaffected, to be dealt with according to law. This condition, we think, reserved to the owners the right to-equitable remedies to enforce compensation as well as the right to remedies at law.

The plaintiff was allowed $250 as damages to the rental value while the property was owned by his predecessor in title, the right to which was assigned to him by a special provision in his deed. Equity takes cognizance of the subject of past damages only as incident to the administration of equitable relief for injury to the fee. The damage was severed from the property by its conveyance. Tkese damages, unless assigned, would have been retained, by the plaintiff’s grantor, who could bring only an action at law for their recovery. The fact that they have been assigned to one who has an equitable cause of action does not give equity jurisdiction over them. Sommers v. N. Y. El. R. R. Co., 60 Hun, 148; 38 St. Rep. 419; Siefke v. Man. Railway Co., 39 St. Rep. 355.

The j udgment appealed from should be reversed, unless plaintiff consents to reduce the same by $250 and interest, in which case the judgment as modified is affirmed, without costs to either party.

All concur.


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    Anton Spiehler, App’lt, v. Leopold N. Asiel, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Judgment—Irregularity.
    The rendering of a judgment in a county other than that of the venue-is a mere irregularity, which does not avoid the judgment.
    2. Same—Jurisdiction.
    The consent to submit the application for judgment in a county other than that of the venue, is not a consent to the rendition of judgment in such county.
    3. Same—Vacation.
    Where, in such case the judgment was granted under a misapprehension that the consent extended to the granting of a judgment, it will be set. aside on motion.
    Appeal from an order adjudging plaintiff guilty of contempt,, and from an order denying motion to set aside said order.

      G. A. Clement, for app’lt; Hoadley, Lauterbach & Johnson (F. R. Minrath, of counsel), for resp’t.
   Cullen, J.

These are appeals from two orders of the special term,—one adjudging the plaintiff guilty of contempt in failing to comply with a decree of specific performance; the other from an order denying a motion subsequently made by the plaintiff to set aside said decree. The motion to punish for contempt was heard and decided before the motion to vacate the decree. The order adjudging the plaintiff in contempt was properly'made. The motion on the pleadings was heard and the judgment rendered at a term of the court held in the county of New York. The venue of this action was laid in Westchester county. The application for judgment could therefore not be properly made in the county of New York, except by consent. But such consent was in fact given by the. submission of the application without objection. Even if consent had not been given, it was a mere irregularity, and did not render the judgment void. It was the duty of the plaintiff, if aggrieved, to seek to set the judgment aside; he could not disregard it. ' The motion to vacate the judgment should have been granted. The complaint alleged defendant’s- default and prayed for a specific performance of a contract for an exchange of lands. The answer denied defendant’s default, alleged, that the title of the plaintiff to his property was defective; and prayed for specific performance, or, in lieu thereof, damages. After the action had been pending for some time, the defendant tendered a stipulation withdrawing his objections to plaintiff’s title, and noticed a motion for judgment on the pleadings and stipulation. The motion was submitted to the court and the decree granted. This decree ordered the plaintiff to perform the contract, convey his property, and pay. certain.moneys of rents, and also ordered the defendant to convey his property to the plaintiff. After issue had been joined, the orderly way would be to bring the cause on for trial. We think, however, that the cause might have been submitted by the consent of the parties for summary determination on the pleadings and stipulation. But the judgment was evidently granted under a misapprehension. It was granted on the recital in the decree of the consent of the parties. It is not now questioned that the consent extended only to the submission of the application, not to the granting of the judgment. There has been, therefore, no judicial determination of the rights of the parties, and the decree granted by error should not stand, even though it be such as could prop■erly be rendered. The plaintiff, instead of promptly applying for relief from the judgment, contumaciously resisted it, and terms should now be imposed as a condition for the relief sought. The order denying motion to vacate judgment should be reversed, and judgment vacated, on plaintiff paying within 10 days the costs of both motions at special term-and the costs and disbursements of both appeals therefrom; and, on failure to comply with such conditions, the orders appealed from should be affirmed, with $10 .costs on each appeal and disbursements.

All concur.


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    George F. Wilson et al., App’lts, v. Sarah E. Underhill, Resp’t

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Husband and wife—Agency.
    Where, in an action against the wife for goods sold to the husband, it appeared that he was carrying on the business of farming, received the profits and earnings thereof and paid its expenses, and the goods purchased were for use in that business, the fact that she was the owner of the farm is not sufficient to show that he was her agent.
    Appeal from a judgment of nonsuit.

      A. M. & G. Card, for app’lts; Hackett & Williams, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the defendant entered upon a nonsuit at circuit. There is also an appeal from an order denying plaintiffs’ motion for a new trial on newly-discovered evidence. The action is to recover for goods sold and delivered. There is no dispute as to the sale or the value of the goods sold. It is conceded that the sale was made to the husband of the defendant, and that the credit was extended to him. The only ground upon which the defendant can be held liable is that in fact the husband was the agent of the defendant, and that the goods sold were for her use and benefit. The defendant’s husband carried on the business of farming, and the goods purchased were for use in that business. He received the profits and earnings of the business and paid its expenses, the plaintiffs dealing with him for nearly 20 years. The only evidence to establish the fact that the wife was the real principal was proof that she had at all times been the owner of the farm, and that, after plaintiffs’ claim accrued, she conveyed the farm and personal property on it. We think this evidence was insufficient to justify the submission to the jury of the question of the husband’s agency, nor did the facts disclosed in the affidavit made on the motion for a new trial supply the defect.

The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costs.


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    The People ex rel. Edson Lewis, App’lt, v. Edward F. Brush et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Elections—Canvass—Mt. Vernon.
    Where the common council of the city of Mt. Vernon is convened to canvass a vote, the mayor has no vote except in case of a tie, and is not to be counted in ascertaining a quorum.
    Appeal from an order, denying an application for a writ of mandamus.

    The opinion of Mr. Justice Bartlett, at special term, denying the application, is as follows:
    Before any writ of mandamus, peremptory or alternative, can be awarded to the relator in the present proceeding, it must appear that the mayor of Mt. Vernon and five aldermen constituted a body competent to canvass the vote cast in that city at the last municipal election for office of mayor. The canvass, under the charter, must be made by the common council. Laws 1892, chap. 182, § 10. The charter declares that the aldermen, of whom there-are ten in all, “ shall constitute the common council of the city.”' Section 158. The mayor, when present, is to preside at the meetings. “ In the proceedings of the common council each member shall have a vote except the mayor when presiding, who shall have only a casting vote when the votes of the other members are-. tie'd.” Section 159: “A majority of the common council shall be a quorum for the transaction of business, but no tax or assessment shall be ordered, nor any appointment to office be made except . by a concurring vote of a majority of all the members of. the common council in office, including the mayor, who shall be entitled to vote thereon as a member of the common council.”' Section 161. The use of the expression “other members,” in section 159 of the chapter, affords some basis, for the argument that the mayor is to' be deemed at all times a. member of the common council. Nowhere, however, does the statute say in express terms that he is a member. It says he may vote in case of a tie,, and that he shall be entitled to vote as a member in relation to taxes, assessments, and appointments to office; but in declaring who shall constitute the common council it mentions the aider-men, and the aldermen alone. I think a fair interpretation of the . various provisions, construing them together, is that the mayor, though not a member of the common council, has a right to vote with the same force and effect as a member- in reference to the matters specified in section 161 of the charter, none of which have anything to do with the canvassing of votes. When the common council is convened to make a canvass, his functions are merely those of a presiding officer, without any voting power except in case of a tie. He is no more to be counted in ascertaining whether a quorum is present than the lieutenant governor can be counted to make up a quorum of the state senate because the constitution gives that officer a casting vote therein. It is argued, however, that the provision in section 161 of the chapter of Ml Vernon that a majority of the common council shall be a quorum for the transaction of business, does not apply to a ministerial duty imposed upon the council as public officers, and that those members who attended to carry out the mandate of the statute could effectually canvass and declare the result. I cannot see why the statutory declaration as to what shall constitute a quorum does-not relate to a meeting at which a ministerial duty is to be performed, just as much as to a meeting for the performance of some other sort of duty. The charter makes no distinction. In providing for a quorum, it denies by the strongest implication the power of any smaller number to act as the common council, and leaves no room for the application of the common-law doctrine that, where the power of acting is conferred upon a corporate body, and all'the members have been properly notified to attend, those who do attend are competent to exercise the power.
    I have carefully examined the authorities cited in the brief of the learned counsel for the relator, and find none in conflict with the views I have expressed. In Horton v. Garrison, 23 Barb. 176, the note in suit was signed by two out of three of the school trustees, so that there was no question but the act was the act of a majority. In the case of Bank of Maryland v. Ruff, 7 Gil. & J. 448, the charter of the bank required seven directors to make a quorum, and a meeting of the president and six directors was held to constitute a sufficient board for the transaction of business ; but this was because, under the charter, the president was declared to be entitled to all the powers and privileges of a director. In Kimball v. Marshall, 44 N. Y. 465, the power to elect a municipal officer was devolved by law upon the mayor, aldermen, and common council sitting in convention. An election by a quorum of the entire body was pronounced valid, although there was not a quorum of the board of aldermen in attendance, considering that branch of the city government by itself. In Launtz v. People, 113 Ill. 137, no question of quorum arose, because all the councilmen, eight in number, were present at the election. Four voted in the affirmative. The other four refused to vote either way. The mayor, who was entitled to vote only in case of a tie, treated those who refused to vote as though they had voted in the negative, and decided the question by voting in the affirmative. In this he was sustained by the supreme court of Illinois, Sheldon, J., saying in the opinion that the presence of those who abstained from voting sufficed to constitute the elective body. Ex parte Rogers, 7 Cow. 526, so far as it has any bearing here, is merely an authority to the effect that in a public judicial body, where all convene and act, the majority may decide, notwithstanding the dissent of a member who declares himself to be absent. In Small v. Orne, 79 Me. 78, as in the Illinois case of Launtz v. People, above cited, there was no question as to the presence of quorum. The defendant was a candidate for the office of constable of Rockland. At a regular meeting of the city council 13 votes were cast for him and 13 for his opponent, whereupon the mayor, who was entitled to the casting vote, declared the defendant elected, without formally depositing any ballot himself; and it was held that the election was lawful, notwithstanding the omission of the formality. These citations are all which seem to require notice. It does not appear to me that they suffice to sustain the ingenious contention of the learned counsel who represents the relator. The application must be denied.

      Roger M. Sherman, for pl’ff; Joseph S. Wood, for def’ts.
   Cullen, J.—I vote to affirm order on opinion of Bartlett, J., at special term.

All concur.


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    Delia Ann Horton, App’lt, v. Stephen D. Horton et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Pleading—Answer—Affirmative defense.
    A release of a cause of action is an affirmative defense and must be pleaded.
    Appeal from a judgment dismissing the complaint.

      Coleman & Donohue (Charles W. Coleman, of counsel), for app’lt; Wm. M. Du Bois, for resp’ts.
   Cullen, J.

This is an appeal from a judgment rendered at the special term dismissing the plaintiff’s complaint. We have little doubt that the decision of the trial court was right, on the facts proved, and that it was justified in finding that the plaintiff did execute the release despite her final statement to the contrary. But the plaintiff objected to the proof of the release, on the ground that no such defense was pleaded, and excepted to the ruling of the court admitting it in evidence. This objection was well founded. A release of a cause of action is an affirmative defense, and must be pleaded. McKyring v. Bull, 16 N. Y. 297 ; Kirchner v. N. H. Sewing Mach. Co., 185 N. Y. 182 ; 48 St. Rep. 242.

The judgment appealed from should be reversed, and new trial ordered, costs to abide event.


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    Henry B. Bolton et al., as Executors, etc., App’lts, v. Sarah L. Myers et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Executors—Accounting—Estoppel.
    An objection by executors that they cannot account in the surrogate’s court for the proceeds of realty, does not estop them from afterwards claiming that such proceeds are personalty.
    2. Will—Conversion.
    Where the amount of debts exceeds the value of the personalty, a power of sale in the will to pay debts converts the realty into personalty.
    Appeal from a decree, determining the accounts of the executors.

      A. Oldrin Salter (Alex. Thain, of counsel), for app’lts; James R. Marvin, for resp’ts.
   Cullen, J.

This is an appeal from a decree of the surrogate of Westchester county determining the accounts of the appellants as executors. The substantial controversy is whether, under the will of the appellants’ testator, the power of sale given the executors may be exercised for the payment of debts. The will is as follows:

“In the name of God, amen. I, Ann Bolton, of town and ' county of Westchester and state of New York, being of sound mind and memory, and considering the uncertainty of this frail and transitory life, do therefore make, ordain, publish and declare this to be my last will and testament. That is to say: First. After all my lawful debts are paid and discharged,, I give and bequeath to my daughter Catherine E. Bolton all my household furniture, beds and bedding, and my silver and plated ware, and all my .clothing. Secondly. I give, devise and bequeath to my son Henry B. Bolton the house and lot where he now resides, in the town of Westchester. Thirdly. I authorize and direct my executors to-invest the sum of fifteen hundred dollars on good security, and to-pay the interest and income to the trustees of the Methodist Episcopal Church at Bronxdale, in the town and county of Westchester, for the support of said church; and I also authorize and direct my executors, in case I should not do so before my death, to expend a reasonable sum in erecting a monument and putting in order the family cemetery at Woodlawn; and I also give power and authority to my executors to sell any and all of my real estate, either at public or private sale, whenever, in their judgment, they may deem for the best interest of my estate, and to give good and sufficient deed or deeds or conveyancy of the same. Fourthly. I give, devise and bequeath all my estate, both real and personal, not hereinbefore bequeathed, to my children Henry B. Bolton, Thomas Bolton, John W. Bolton, Mary A. Littlewood, Sarah L. Myers, Emily B. Horris and Catherine E. Bolton, and my adopted son, William H. Birchall, to be divided equally between them, share and share alike. Likewise, I make and constitute and appoint my sons Henry B. Bolton and Thomas Bolton to be executors of this my last will and testament, hereby overlooking all former wills by me made.
“In witness whereof I have hereunto subscribed my name and affixed seal the sixth day of April, in the year of our Lord one thousand eight hundred and eighty.
“Ann Bolton.
“Witness present:
“ Henry H. Bolton.
“ Sarah I. Bolton.”

The preliminary point made by the appellants, that the contestants having once insisted that the executors could not bring the-fund realized by the sale of the realty into the surrogate’s court, and there account for it, and in consequence thereof, the item having been withdrawn from the account, were estopped from afterwards compelling the executors to account for the fund in that court, is plainly without merit. The contestants were wrong-in their original contention, and it was so held in an action in this court for partition, They have received no part of the fund, and there is therefore nothing to estop them from proceeding now in. accordance with what has been held to be the law, even against their contention. The learned surrogate has held that the fund should be distributed as real estate, and that it was not applicable to the debts of the testator. The question is not free from doubt, but we think that this conclusion was erroneous. The case is very similar to that of In re Gantert, 136 N. Y. 106; 48 St. Rep. 889. In both cases the question is not whether the debts are charged on the real estate, but whether the power of sale is given for the purpose of paying debts. In this respect the cases differ from that of. In re City of Rochester, 110 N. Y. 159; 17 St. Rep. 146. It is found by the surrogate that the testator left less than $3,000 in personalty, and that her debts amounted to nearly $9,000. The-will was made about two years before the testator’s death. There is nothing to show that there was any change in her pecuniary circumstances from the date of the will to the time of her decease. By the will she gives $1,500 to be invested for the benefit of the church, and also directs the expenditure of a reasonable sum for erecting a monument and putting in order the family cemetery. Immediately, following these directions, and in the same clause of the will, is the grant of the power of sale. We should assume that the testator knew her own circumstances, and intended that both the debts and legacies should be paid; that with such knowledge she foresaw that her personalty was insufficient for either purpose, and that, to raise the necessary fund, some of the real estate must be sold. This conclusion is strengthened when we find the power of sale directly following the legacies. The learned .surrogate distinguished the present case from the Gantert Case by what he deemed a fatal difference, that in this will there is found a specific devise to the son. The surrogate overestimated the effect of this difference. In the opinion in the Gantert Case, Judge Maynard says:

“If the testator had specifically devised designated portions of his realty, or impressed them with separate trusts, the presumption is very strong, and usually controlling, that he did not intend' that these dispositions of his property should be overturned by the exercise of a general power of sale. A direction to sell for the payment of debts cannot be implied in such cases, because, in order to sustain the structure of the will, there must be implied a direction not to sell for such a purpose.”

But the devise of a single piece out of her large realty does not necessarily fall.within the rule stated by the learned judge. If the effect of the power would naturally be to break up the general scheme of disposition of the realty, the case would fall within the principle of In re McComb, 117 N. Y. 378; 27 St. Rep. 269, .and the power of sale be held limited to a sale for the benefit of the devisees. Here there was a large residuary estate, ample to discharge any debt or legacy, without recourse to the specific devise. The devise of the residuary estate is immediate, and there would seem no reason why a power of sale should be given to be exercised for the benefit of those devisees. We are of opinion that in the will before us the power of sale was to be exercised for the payment of both debts and legacies.

The decree of the surrogate should be reversed, and the case remitted for further proceedings in accordance with this opinion.

All concur.


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    Mary E. Thrall, Resp’t, v. Edwin A. Thrall, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    1. Divorce—Alimony.
    A deed of separation, which provides an allowance to the wife, precludes the husband from objecting that the same amount, allowed as alimony, is excessive.
    2. Same—Fbom what time allowed.
    Alimony pendente lite can as a rule, be made only for future support, and should commence only at the time when notice of an application for its payment is given.
    Appeal from an order, granting alimony pendente lite.

      Taylor & Parker (Alfred Taylor, of counsel), for app’lt; Alexander Cameron, for resp’t.
   Cullen, J.

This is an appeal from an order made by the special term in an action for separation, granting the plaintiff $50 a week alimony pendente lite. The defendant insists that the application should have been denied on the ground that the plaintiff has not a meritorious cause of action, and that, if granted, the amount allowed is excessive, in view of the financial condition of the defendant. The action was instituted in 1891. Thereafter the parties executed a deed of separation, by which the defendant covenanted to pay the plaintiff $50 a week for her support. As long as such payments were made the proceedings in this action were to be stayed, and upon default in such payments it was stipulated that an order might be made by the court granting plaintiff alimony at the same rate. The defendant made default on May 19, 1894, and notice of application for alimony was given on July 5th. It is a well-settled rule that parties may make law for themselves, which the courts are bound to administer, if no question of public policy is concerned. In re New York, L. & W. R. Co., 98 N. Y. 447; Sentenis v. Ladew, 140 N. Y. 463; 55 St. Rep. 831. The provisions of the deed of separation are a complete answer to defendant’s objections both to the alimony and its amount. We do not say that the defendant would be allowed to stipulate himself into prison by agreeing to a sum beyond his power to pay. But there is no danger of that character here, as the defendant, on his own statement, is worth at least $30,000, and the action can be brought on for trial at any time.

We are of opinion, however, that the allowance of alimony was ordered to be made from too early a time. It seems settled by authority that alimony pendente lite can, as a rule, be made only for future support, and should commence only at the time of notice of an application for its payment. Collins v. Collins, 10 Hun, 275; Beadleston v. Beadleston, 103 N. Y. 402; 3 St. Rep. 684; McCarthy v. McCarthy, 137 N. Y. 500; 51 St. Rep. 276. There is no provision in the deed of separation increasing the power of the court in this respect. For the unpaid weekly allowance prior to the motion for alimony, the plaintiff must recover by her trustee in a suit upon thé covenants of the deed, or await final judgment, when the court may make such allowance for this period as may be just. Percival v. Percival, 124 N. Y. 637; 35 St. Rep. 340.

The order appealed from should be modified so as to'direct the payment of the alimony to commence on July 5th, and as modified should be affirmed, without costs of appeal.

All concur.