author: Bookstayer, P.

text:
    Smith A. Brooker et al., App’lts v. John Filkins, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Appeal—Direction op verdict.
    In the absence of a motion for the direction of a verdict by the plaintiff, at any time during the progress of the action, a judgment of a tirmance of the general term of the city court is conclusive upon the common' pleas as to the weight of evidence, the submission of the evidence to the jury and as to whether or not there was any evidence to support defendant’s recovery.
    2. Evidence—Memorandum.
    Only that part of a memorandum which has been identified as correct is to be received in evidence.
    3. Trial—Charge.
    It is not strictly accurate for the court to charge that the jury must believe a witness who is corroborated.

      4. Same.
    It is grossly improper for counsel to allude to matter outside-of the record in summing up to the jury or in improperly attempting to influence their verdict hy dwelling upon the legal Consequences of it, or in any other way attempting improperly to influence them.
    Appeal from a judgment of the general term of the city court of New York affirming a judgment entered on the verdict of a jury at trial term, and from an order of that general term affirming an order denying a motion for a new trial.

      Fdward Uassett, for app’lts; Abner C. Thomas, for resp’t.

      Affirming 55 St. Rep. 167.

   Bookstayer, P.

The complaint alleged that between April 1, 1889 and December 16, 1889, the defendant, as agent for the plaintiffs, collected of different parties in the city of Mew York certain sums aggregating $206.20 and converted the same to his own use. The answer of the defendant d,cnied this allegation and set up a counterclaim, for services rendered. Mo certificate is contained in the case to the effect that all of the evidence given upon the trial is included therein, and the record shows upon its face that documentary evidence apparently of importance has been omitted. No motion was made for the direction of a verdict by the plaintiff at any time during the progress of the action ; therefore, the judgment of affirmance of the general term of the city court is conclusive upon us, both as to the weight of evidence, the submission of the evidence to the jury and, also, as to whether- or not there was any evidence to support defendant’s recovery; Paige v. Chedsey, 4 Misc. 183 ; 53 St. Rep. 190; Rowe v. Comley, 11 Daly, 318 ; Smith v. Pryor, 16 Id. 169 ; 30 St. Rep. 553 ; Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep. 297; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Schwinger, v. Raymond, 105 N. Y. 648; 7 St. Rep. 544. The order of the general term of the city court denying plaintiffs’ motion for a new trial is not reviewable here. Nor is any other matter which rested in the discretion of the court of original jurisdiction. § 3191, Code Civ. Pro.; Pharo v. Beadleston, 2 Misc. 424; 50 St. Rep. 609 ; Smith v. Pryor, supra; Wilmore v. Flack, 96 N. Y. 512; Schwinger v. Raymond, supra. We can, therefore, only review questions of law appearing upon the record, and the only ones presented to us upon the argument of this appeal or by appellant’s brief are the exceptions, first, to the admission of a paper concerning which Lahey, one of the plaintiffs, testified that “ This first page of this document records the amount of wages earned and the sums of money paid to Mr. Filkins. This memorandum was made by me from the book.” Its introduction was objected to unless the other side of the paper was offered; but the witness, on being questioned as to the writing on the other side, stated: “ I can’t say it is Mr. Brooker’s memorandum.” And the court, very properly, directed only that part which had been identified as correct, to be received in evidence. The second exception was to a question as leading; but this was a matter in the discretion of the court below and will not be reviewed by us. An exception was taken to a portion of the charge made in response to a request of defendant’s counsel. This request must be taken in connection with what followed, and, altogether, amounts to this: “An admission of the defendant that he had collected money, is sufficient to prove that fact; but if you believe the defendant that he admitted that he received the moneys, but at the same time de-dared that he paid them over to the plaintiffs, this is not evidence of a conversion; ” and was obviously correct for' it is not claimed that there was any evidence of the conversion outside of the defendant’s own alleged admissions. The counsel for appellant claimed that the court erred in that part of its charge to the jury, which is as follows: “ So that the question in the case is one of credibility, whether you will believe the plaintiffs, Mr. Brooker and Mr. Lahey, and their employee, Mr. Nilón, or whether you will believe the defendant. So far as the parties are concerned you have a right to believe or disbelieve them. So far as witnesses, other than parties, are concerned, you have no right to disbelieve them if corroborated. Mr. Brooker and Mr. Lahey are parties and Mr. Filkins is a party, and you have a right to disbelieve them if you see fit, but you have no right to disbelieve Mr. Nilón if you find that he has been corroborated.” In the first place no exception was taken to this portion of the charge upon the trial, and even if there had been, it was at least as favorable to the appellants as they could have asked. If any one had a right to complain of it it was the respondent, for it is not strictly accurate to say that the jury must believe a witness who is corroborated, and in telling the jury that they have “ no right to disbelieve Mr. Nilón if you find that he has been corroborated,” the court laid down a rule to which the respondent might properly have objected, but not the appellants, since Nilón was their witness. Appellants’ counsel has prepared and presented to us on this appeal an elaborate brief claiming that defendant’s counsel committed error in summing up to the jury; but he did not at the trial call the court’s .attention to it nor take any exception to the summing up, nor did he make a motion for a new trial upon that ground, nor does the language of thexcounsel any where appear in the record. The only reference to the impropriety of the remarks is in the charge of the trial judge in relation thereto, to the effect that “ It is true, as counsel has stated, although it should not have been mentioned to the jury, that the effect of your verdict may be to consign this defendant to jail, .this being an action sounding in tort, but that is something with which you have nothing to do. You have nothing to do with sympathy; you are not responsible for the effect of your verdict. Your duty is to decide the case fairly between the plaintiffs and the defendant;’’ which instruction was ‘doubtless followed by the jury, for on rendering their verdict the foreman in answer to-the following by the court, “I instructed you gentlemen, that unless you believed the testimony of the plaintiffs’ witnesses, that the defendant admitted taking the money, there was no proof to sustain the plaintiffs’ case, and in that case the defendant was entitled to recover his counterclaim,” said, “We discussed that question and came to the conclusion that they should have had something to show that the money had been received, and as there was nothing but the testimony we had, and that was the only thing to guide us, we weighed the matter thoroughly and concluded that the defendant was not guilty of taking the money." We quite agree with appellants’ counsel in the gross impropriety of alluding to matter outside of ‘the record in summing up to the jury or in improperly attempting to influence their verdict by dwelling upon the legal consequences of it or in any other way attempting improperly to influence them, and when a proper case is presented to us upon that question will have no hesitation in reversing a judgment on any of these grounds. But such a case is not presented by the record before us.

The judgment must therefore be affirmed, withcos''«. Bischoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: Pryor, J. Bookstaver, J., The Court

license: Public Domain

text:
    Antonio Guliano, Resp’t, v. John H. Whitenack, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Negligence—Question eor jury.
    In an action for negligence, if there is any doubt as to the facts established by the evidence, or as to the inferences from the facts, the case must go to the jury.
    Appeal from judgment on verdict and order denying new trial. The opinion gives the case.

      J. Hampdon Dougherty, for app’lt; Joseph Wamsley, for resp’t.
   Pryor, J.

In connection with a building he was erecting, the defendant constructed an oven, intp which, when it was about completed, he directed the plaintiff to enter for the purpose of cleaning out the sand. It collapsed and crushed the plaintiff; and for the injury so sustained he prosecutes the action. With seeming confidence the defendant imputes error to the court in refusing to dismiss the complaint. But, upon what ground ? Surely not because the proof of his negligence was insufficient to carry the case to the jury. Not such was counsel’s opinion on the development of the evidence at the trial. For, he then said: “It would be a question for the jury whether it was a negligent construction or not, connecting the oven with the post that caused this oscillation.” And, indeed, defendant’s own testimony left no alternative but to submit the issue to the jury. He disclosed the agency by which the oven collapsed, saying, “ The cause of the break, to the best of my knowledge, was the post of the elevated railroad standing against the corner of the oven and shaking it; all the stones shook on to it.” And again, “Its giving way I could only attribute to two things; one was the cement and plaster was no good, and the other was that hammering of the post.” The defendant had been working there before the oven was built; and he confessed that “During that time I felt the vibration; the vibration of the elevated railroad; but did not think there was enough to do any harm. I subsequently found that it did.” And yet with this knowledge of the vibration of the pillar, he so placed the oven that it was “ hammered ’’ to pieces. Obvious and easy was the escape from the peril of which plaintiff was the victim. When the oven was rebuilt “it was rebuilt so that it did not touch the post, with a short interval between." Thus, that the caving-in of the oven was the effect of its ill construction, the defendant concedes. And that its bad construction was the result of negligence, is equally apparent on his testimony. For, what man of ordinary prudence, aware of the vibration of the pillar under the incessant movement of the trains, would have so placed the oven as to subject it to the impact of the disintegrating agency? That the consequence was within the range of reasonable apprehension, and might have been averted by the slightest effort, it is idle to gainsay.

Beyond, all question the evidence required the submission of the issue upon defendant’s negligency, to the jury, and is sufficient to sustain their verdict. “ If there is any doubt, however slight, either as to what facts of negligence are established by the evidence, or as to the conclusion in respect to the fact of negligence that may be drawn legitimately from the circumstances proved by the average of men of common sense, ordinary experience, and fair intentions, the case should not be taken from the jury.” Bills v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 5, 10. Nor, may we, upon our estimate of the probative force of the evidence, so encroach on the function of the jury as to nullify a verdict not manifestly destitute of support Nelson v. E. & A. R. R. Co., 7 Misc. 656; 58 St. Rep. 384. Equally untenable is the position that no proof was given of plaintiff’s freedom from contributory negligence. He was a common laborer, not a mason or a brick-layer, and he had done no work on the oven. Thus ignorant of its insecurity, he was ordered into it by the defendant; and obedience to the command of his master absolved him from the imputation of negligence, Kranz v. L. 1. R. R. Co., 123 N. Y. 1, 5; 38 St. Rep 46; Doyle v. Baird, 15 Daly, 287, 289; 25 St. Rep. 749; Stuber v. McEntee, 58 St. Rep. 455, 457; Connolly v. Poillon, 41 Barb. 366. The record discloses no error, and the judgment should stand.

Judgment and order affirmed, with costs. Bischoff, J., concurs.

Bookstaver, J.,

(dissenting.)—This action was brought for damages for injuries sustained by the plaintiff while in the defendant’s employment. The plaintiff, in accordance with defendant’s directions, entered an oven or vault built beneath the sidewalk in order to remove the sand which had served as a support and also as a pattern for the arched roof of the vault while in process of construction. While he was so engaged the structure collapsed and he suffered the injuries complained of. The only witnesses called were the physicians who treated him at the hospital and who testified to the nature and severity of his injuries and the length of time he was in the hospital, and the defendant who testified chiefly to the method of constructing the oven and to its material, shape and dimensions. When plaintiff rested, and also when all the evidence was in, the defendant moved that the complaint be dismissed upon the ground that no case had been made out against him, which was denied, and he thereupon duly excepted to the refusal. After the jury rendered this verdict he in due time also moved for a new trial on the minutes. I do not think the judgment can be sustained, for the reason that there was no affirmative evidence given to show the plaintiffs freedom from contributory negligence nor do the circumstances of the accident warrant such an inference. The record is barren of any evidence to show how the plaintiff proceeded to remove the sand. It may be that he used an iron bar or some other implement to loosen the sand (which was packed hard to serve as a support and shape for the superincumbent masonry) and was so careless that he disturbed the foundations or displaced some of the híleles of the arch, a structure well known to be little calculated to resist pressure or impacts from below. Furthermore, I think there was error in instructing the jury. The defendant’s attorney said, in the course of the charge, “I suppose your honor will also charge them that the mere fact that this oven fell in would not warrant the jury in assuming that there was any fault on the part of the defendant in its construction, or any negligence upon his part.”

The Court

“I shall charge the jury with respect to' that, that the falling of the oven after it was completed calls upon the defendant for an explanation as to the way it was constructed.” This is equivalent to saying that the fact that the oven fell threw the burden of disproving negligence m its construction upon the defendant. It is true that there are numerous cases in which it has been held that the mere happening of an accident has raised a presumption of negligence on the part of the defendant. Many of these are cases where one passing along the street has been in-j ured by the fall of objects from adjacent or overhanging structures, as in Muller v. St. John, 57 N. Y. 567, by the fall of the building itself, or in Morsemann v. Manhattan R. Co., 16 Daly, 249, by the fall of a crowbar from the elevated structure, or in Cahalin v. Cochran, 1 St. Rep. 583, by the fall of a chisel from a building upon which work was being done. See also English cases cited in Muller v. St. John, supra, in which the same ruling was made in cases where a brick fell from a railway bridge over the highway, or a barrel from a shop window, or bags of sugar from a warehouse. All the above. decisions may be referable more or less to the principle of nuisance. Another class of cases in which this doctrine of res ipsa loquitur has been applied is against common carriers, as in Wilkie v. Bolster, 3 E. D. Smith, 327, explosion of a lamp in an omnibus; see also cases cited in Thompson on Carriers of Passengers, pp. 211 and 212, but these again rproceed upon the ground -of the peculiar relation between passenger and carrier. Other cases, not falling within either of the above categories, may be found, but in all of them, so far as I have been able to discover, the facts of the. accident have been such as to exclude any reasonable inference that the plaintiffs own negligence could have contributed to the injury. To apply the rule in the present case would necessitate two presumptions against the defendant, that of his own negligence and the plaintiff’s care. The language in Dobbins v. Brown, 119 N. Y. 188; 28 St. Rep. 957, seems applicable to this case ; “ neglect must be proved, either by direct evidence or the proof of facts from which the inference of negligence can be legitimately drawn by the jury. It cánnot be supported by conjecture or surmise, but must be made referable by proof to some specific cause or defect. It has been held that the mere fact that an accident occurred which caused an injury, is not generally, .of itself, sufficient to authorize an inference of negligence against a defendant.” * * * There were other ways in which the accident might have occurred, * * (meaning other than in accordance with the theory advanced by the plaintiff) which are not sufficiently negatived or contradicted by the evidence;” and in this connection it is significant when the case was so barren of evidence as to the cause of the accident that the plaintiff himself was not produced or sworn, he must have known all about the circumstances of the accident, or at least all about his connection with it, and could have removed all doubt as to his contributory negligence, if such were the fact, and under such circumstances the jury ought not to have been allowed to speculate as to its cause ; see Miller v. Railway Co., 5 Misc. 301. But aside from the above considerations, the facts testified to boncerning the contact between one corner of the walls of the oven and a part of the elevated railroad were scarcely sufficient to make a question for the jury as to whether there was negligence in the construction. The defendant admitted that he was aware of the vibration of the post but denied that he was aware of any danger arising therefrom. He testified that it was the custom of builders to erect walls in contact with the pillars and foundations of the elevated railroads, and that never before had he known of any instance where walls had-been affected by such contact. From the fact of this and other similar subsequent occurrences it was conjectured that the constant jarring caused by passing trains may have prevented the proper setting of the cement and mortar in the arch so that the structure became unsafe. This is only conjecture, even now, but if an established fact, the conclusion would not be different upon the evidence given. It is easy to be wise after the event, but the question of negligence must be viewed from what was known at the time of the occurrence and-not from what is discovered after an accident has taken place. Hochman v. Moss Eng. Co., 53 St. Rep. 195; Loftus v. Union Ferry Co., 84 N. Y. 455; Lafflin v. Buffalo, etc., R. R. Co., 106 N. Y. 136 ; 8 St. Rep. 596; Kelly v. New York and Sea Beach R. R. Co., 109 N. Y. 44; 14 St. Rep. 36.

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


author: Bookstaver, P. J.

text:
    John G. Kinkele et al., App’lts, v. Emma Giles Wilson, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Will—Codicil.
    A codicil will not operate as a revocation beyond the clear import oí its language.

      2. Same—Altebation,
    An express intention to make an alteration in a will, in one particular, negatives by implication an intention to alter it in any other respect.
    3 Same—Consteuction.
    The one equal third of the real estate, given to the widow by the codicil, was held to remain subject to the charge, imposed by the will, to assist in paying her annuity.
    Appeal by plaintiffs from a judgment in favor of deféndant, entered upon the. report of a referee. Action for an accounting for moneys received.

      <3. P. & W. M. Buckley, for app’lts; F.t A. Burnham (George Burnham, Jr., of counsel), for resp’t.
   Bookstaver, P. J.

Henry C. Giles died April 27th, 1887, leaving a last will and testament and a codocil thereto,'both of which were duly admitted to probate in this' county. George B. Patterson, one of the executors named in the will, qualified as such, and has taken charge of the estate, which consisted of a small amount of personal property, and the premises known as Nos. 163, 165 and 175 Canal street, in this city. Emma Giles, the defendant herein and the widow of Henry C. Giles, remarried February 11th, 1891. The executor did not know of this until some, months after it took place, and paid her the entire income of the estate up to May 1st, 1891. . Since that time he has paid her at the rate of $2,000 per annum, and the remainder of the income is ¡-still in his hands. Plaintiffs seek an accounting by the defendant for all moneys received by her since her remarriage, and that she pay over to each of them one-third of the net income of the estate since that time, less the sum of two thousand dollars. Whether the action will lie or not, depends upon the construction to be giyen to certain portions of the will and codicil. The testator in his will, after providing for the payment of his debts and funeral expenses, directed that the rents and income of his estate should be paid to his wife, Emma, the defendant herein, “so long, during her natural life as she shall remain my widow and unmarried.” If she should remarry, he directed that the sum of $2,000 annually, should be paid to her at specified periods during her life. Subject to this provision for his widow, he gave, devised and bequeathed his estate in equal shares to certain relatives, including the plaintiffs^- The will also provided that the above-named provisions for testator’s wife should be in lieu of dower and every other right or interest she might have in the estate. By the codicil the testator changed his will as follows: “In addition ‘to the provisions which in and by my said will I have made for the benefit of my beloved wife, Emma Giles, 1 do give and bequeath unto her all my household goods and furniture, absolutely, as and for her own property, and to be at her own disposal; and also I do give, devise and bequeath unto my said wife, in fee simple, all the one equal third of my real estates,” etc., “and these gifts are to take effect, whether or not she shall remarry after my death, if she shall survive me.” He then revokes his devise to certain nieces, and continues, “hereby declaring that it is my will that my brother, William. P. Giles, and my nephew, John G. Kinkele, shall take in equal shares the portion of my estate which in and by my said will is given, devised and bequeathed to them and to my said two nieces—saving and excepting therefrom the one equal third part of my real estate and the household goods and furniture, which I have herein given, devised and bequeathed to my said wife, Emma Giles. Appellants contend that since the remarriage of the respondent, they are each entitled to one-third of the net annual income of the estate after deducting $2,000 awarded the widow annually by the will, while respondent contends that she is entitled to one-third of the entire net income of the estate, and to $2,000 more. In other words, if the entire net income of the estate were $6,000 she would be entitled to $4,000, while the devisees of two-thirds of the estate would be entitled to pnly $1,000 each. Respondent bases this contention on the language of that part of the codicil before quoted, and insists that the whole of the first part of it should be read as one sentence, and that, inasmuch as the first clause gives the household goods and furniture to the respondent, “absolutely as and for her own property to be at her own disposal ” so the second clause connected as she claims by the words “ and also ” devised one-third of the real estate to her in Wee manner • i e., as and for her own property to be at her disposal. But this seems to us to be a very inartificial and forced construction of the sentence. Had this been the intention of the testator, the natural construction of the sentence would have been to have placed the words “ absolutely as and for her own property aiid to be at her own disposal,” after both the gift and the devise, so that they would have controlled both clauses of the sentence. While it is true, as respondent contends, that the word “also” has the meaning of “in like manner,” it more frequently means “ too, further, in addition to,” Imperial Dictionary, Webster’s Dictionary, ad haec verba, and this we think the plain and natural meaning in the sentence under consideration. Thus read, the whole sentence is plain and unambiguous. The first clause, commencing with “In addition to,” gives the personal property to the widow absolutely; the second clanse, commencing with “And also,” devises one-third of the realty to her in addition to the personalty, but subject to what•ever . charge there was upon the whole realty. The change of language from “In addition to” to “And also” being made to avoid the repetition of the same words and not because the meaning had changed. So far on the theory that all was intended as one sentence, but this we think was not the intention. Some error has crept into the codicil as it stands. The gift of the personal property is separated from the devise of the realty by a colon, while the “And" in the devising clause is written with a capital letter. No ordinary copyist, and certainly no one capable of drafting a will would write the conjunction “and” with a capital in the middle of a sentence any more than he would “if” or “or.” It is far more likely that the copyist, through error or mere inadvertence, put two dots where one should have been written, than that he should have written “and” with a capital A. IE this is so, then we have two complete sentences, one containing a gift to the widow absolutely free from all charges, and the other a devise subject to any charge then existing on the realty. The respondent also insists that the use of the words “in addition to ” frees the devise of the one equal third of the real estate to her from the charge on the remainder of the real estate. But, as we have before shown, these words only mean that1 the widow was to have something in addition to the $2,000 left her by the will in case of her re-marriage. This additional something was, first, personal property, which the testator was careful to provide should be free from every charge," by giving it to her absolutely in every event, and, second, one-third of the realty which he devised, without any such provision. Nor do wre think that the words “ in fee simple ” at all aid respondent’s contention Fee simple is defined by Bouvier to be “ a pure estate of inheritance not restrained by any heirs nor subject to any condition or collateral determination except the law of escheat,” vol. 2, p. 215. The word “ simple ” adds no meaning to the word “ fee ” standing by itself. But it excludes all qualification or restriction as to the persons who may inherit it as heirs, thus distinguishing it from fee-tail, as well as from an estate which, though inheritable, is subject to conditions or collateral determination. 1 Washburn Real Prop1., 51. The phrase does not mean that the fee is to be absolutely free from all incumbrances or charges. The words would have been apt and appropriate had the real estate been mortgaged for two-thirds of its value. But in that event no one would have argued that these words released the widow’s share from the incumbrance of the mortgage, and why should they from the charge to pay the widow’s annuity ? No one will dispute but that the two thousand dollar annuity was by the will expressly charged on the whole estate left by the testator. This charge, as we have before shown, was expressly removed from the personal estate. It is a general rule that a codicil will not operate as a revocation beyond the clear import of its language; and that an expressed intention to make an alteration in a will, in one particular, negatives, by implication, an intention to alter it in any other respect. Wetmore v. Parker, 52 N. Y. 450; McLoskey v. Reid, 4 Brad. 834. Applying this rule to the case under consideration we cannot escape the conclusion that the respondent’s one equal third of the real estate given her by the codicil remains subject to the charge imposed by the will. As before shown, this charge is not expressly removed by anything contained in the codicil, while the personal property is expressly freed from it. By the will, the testator gave his entire estate to the appellants and two nieces in equal shares, charged, however, with the payment of the entire income to respondent until her death or remarriage, and on her re marriage subject to the payment of the annuity of $2,000. By the codicil the testator revokes every gift and devise to the two nieces named in the will, and after giving his household goods and furniture to the respondent, he gives her “ in fee simple all the one equal third part of my real estate,” making no mention of the charge, and then gives to. the appellants, “in equal shares,” the portion of my estates which in and by my said will is given, devised and bequeathed to them and my said two nieces, * * * saving and excepting therefrom the one equal third part of my real estate and the household goods and furniture which I have herein given ” to respondent. No other alterations are made by the codicil, and in it the testator expressly confirms his will except as altered. By the codicil, were it not for the exception 'of one-third in the widow’s favor, the whole of the real estate would have gone to the appellants. In that case there could have been no question but that the whole would have been charged with the annuity to her. But the codicil gives one-third of the real estate so charged to her, how can it be argued that the mere gift of property charged with an annuity discharges it? Again, the words, equal third part used throughout the codicil to designate that portion of the real estate given to the respondent, we think extremely significant. What is respondent’s one equal third part equal to, if not to the third part of each of the appellants? Yet, if her contention is sound, how unequal these equal thirds are; hers being free and clear and each of the other two equal thirds not only charged with one-third of the annuity but surcharged with one-half of one-third more. We therefore conclude that the charge still remains upon the entire real estate, including respondent’s portion. A much stronger case than the one now under consideration was decided adversely to respondent’s contention in Redfield v. Redfield, 126 N. Y. 466; 38 St. Rep. 516. In this case real estate was devised to three persons, M., J. and L., charged with the payment of an annuity to testator’s wife. By a codicil the devise was changed by striking out J. and L. and leaving all to M. alone, subject to the same provisions and conditions contained in the will to be kept and performed by M. alone. By-a later codicil testator devised said premises to M. and L., equally as tenants in common, no reference being made to the annuity for the wife. Held, that under the last codicil the land was devised to M. and L., subject to the annuity; that the fact that no reference was made in the last codicil to the condition upon which the premises were devised in the will and the first codicil, did not show an intent to devise it free and clear from the charge of the annuity or to charge it upon the interest of M. alone. The fact that the gift and devise to the respondent in the codicil is to take effect whether or not she shall re-marry, does not free the real estate from the charge. The respondent takes no further or other estate than she would have received if these words had not been used. In this case the fee in the respondent is no more absolute than the fee in the appellants. She did not have an absolute life estate so that it would merge in the one equal third of the fee devised to her. If the devise of one equal third in the codicil had been to a stranger no one would have thought of arguing that it was not subject to respondent’s annuity, and the fact that both are to the same person cannot alter the case. We therefore decide that the judgment appealed from must be reversed, but as all the facts are substantially uncontradicted, it is not' necessary that the respondent should be ordered to account l’or moneys received by her. Justice will be attained if a judgment is entered in accordance with the foregoing opinion and the following statement of the account between the parties:

Net rents Feb. 1, 1891, to Jan. 1, 1893.... $7,269 11
Less rents Feb. 1, to 11, 1891............ $115 88
Annuity Feb. 11, 1891, to Jan. 1, 1893.... 3,777 77
---- 3,893 65
$3,375 46
Share of plaintiff Kinkele................$1,125 15
Share of Giles.......................... 1,125 15
Share of defendant...................... 1,125 16
--- 3,375 46
Defendant’s share of rents Feb. 1 to 11, 1891........ $115 88
Annuity to Jan. 1, 1893.......................... 3,777 77
Share of balance............................. .... 1,125 16
Total...................................... 5,018 81
Payments to defendant ......................... 4,372 39
Leaving due respondent Jan. 1, 1893............... $646 42

which should be paid her, and the remainder of the rents, $1,125.15, to each of the appellants. They to "have the costs of this appeal and the costs of the action up to final j udgment, to be paid out of the income of the estate.

Bischoff and Pryor, JJ., concur.


text:
    Edgar F. Kirwan et al., App'lts, v. Edward F. Byrne, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

      1. Contract — Constiuiction,
    Where there is substantially no dispute as to the facts, the construction of a contract is for the court.
    2. Same—Execution.
    Where a written contract, when submitted by the vendor, is changed by tbewendee, to which change the vendor refuses to concede, no contract exists, and the latter is at liberty to discontinue the negotiations.
    Appeal by plaintiff from an order of the general term of the city court, reversing a judgment entered on a verdict directed by the court, and directing a new trial.

      William H. Shepard and Eoarts L. Prentiss, for app'lts; Thomas C. E. Ecclesine. for resp’ts.

       Affirming 57 St. Rep. 863.

   Bookstaver, P. J.

This action is for damages for breach of contract to sell and deliver fifteen hundred boxes of coke tin. Defendant made the following offer to plaintiffs, he having dealt with them as broker for five or six years: “From Edward F. Byrne, Metal Broker, to Messrs. Kirwan & Tyler, 54 Cliff street. New York, 16th May, 1891. Gentlemen : I can offer you, subject to prior sale, fifteen hundred boxes i. e. 14 x 20 Bessemer Steel Coke Tin, for June delivery at Locust Point, at $4.95, cash on delivery. This is a very low price, but having offered them to other parties, and having only a limited quantity to sell, I can only offer them to you subject to prior sale. Yours very respectfully, Edward E. Byrne.”

On May 18th plaintiffs telegraphed:

“Mr. E. F. Byrne.
“We accept your offer 16th, if full weight plates,
Kirwan & Tyler.”

On the same day defendant sent the following reply to this telegram by letter: “Gentlemen: Your telegram of even date at hand, accepting my offer of 16th for fifteen hundred boxes 14 x 20 standard weight Bessemer steels, and beg to enclose accepted contract for same, and would ‘ask you to accept the copy and return.’ ”

The contract referred to was as follows: “Messrs. Joseph Byrne & Son. Dear Sirs: I have this day sold for your account, to Messrs. Kirwan & Tyler, fifteen hundred boxes i. e. 14x20 Bessemer Sheet Coke Tin Plates, standard weight, for June delivery on dock at Locust Point, Md., at four dollars and ninety-five cents per box. Cash on delivery of order. Yours respectfully, E. E. Byrne.”

Plaintiffs struck out the words “delivery of order” and inserted “ receipt of plates ” and returned the contract to defendant in a letter of May 19th stating “We have made a slight alteration in the one we have signed and would like to have Messrs. Byrne <& Son change theirs to correspond,” and offering to accept a tnreeday draft for three-quarters of invoice, “ if any accommodation to your sellers,” and to send a check for the balance after an examination of the goods. Defendant then wrote under date of May 20th, that Messrs. Byrne & Son would not agree to the terms inserted in the contract, and had cancelled the order. Plaintiffs sue to recover the difference between the contract price and the market price of coke tin in June, 1891, which was admitted to be thirty cents per box. The trial justice directed a verdict for plaintiffs, and the general term of the city court reversed the judgment and ordered a new trial. This appeal is from that order. Where there is substantially no dispute as to the facts the construction of a contract is for the court. Groat v. Gile, 51 N. Y. 431. This is true of contracts by correspondence. Turner v. Yates, 16 How. (U. S.) 14, 23. The correspondence must be attentively examined in order to ascertain whether the minds of the parties met, i. e., whether there was an unconditional offer by defendant and acceptance by plaintiffs at any time in view of the light of the surrounding circumstances. Thus viewed, defendant’s first letter appears to have been nothing more than a business circular,-and was treated as such by both parties. The circular said “ I can offer.” It was a mere notice to plaintiffs. That they looked upon it as such, and not as a binding offer, is shown by their acceptance of the contract forwarded to them by defendant without objecting to the fact then appearing that the defendant was a mere agent, and by the further negotiations between the parties. Plaintiffs’ acceptance was conditional. Vassar v. Camp, 11 N. Y. 441; Myers v. Trescott, 59 Hun, 395; 36 St. Rep. 235 ; 13 N. Y. Supp. 54, and cases cited; Corcoran v. White, 117 Ill. 118. Defendant’s reply acknowledged the receipt of the order, and enclosed a contract for plaintiffs to accept. Plaintiffs’ acceptance thereof was a waiver of any right they might have had to hold defendant as principal, and as they changed the terms of the contract, defendant or his principal not agreeing thereto, were at liberty to discontinue the negotiations. We think the reversal must be sustained on still another ground. If the offer and acceptance were unconditional, thereby constituting a valid contract, evidence that a written contract when submitted by defendant had been changed by plaintiffs, which change defendant refused to accede to, was sufficient to show that the minds of the parties had never met, and that no contract existed. Fraser v. Small, 37 St. Rep. 900; 13 N. Y. Supp. 468 ; Bristol, etc., Aereated Bread Co. v. Maggs, 44 Ch. Div. 616.

The order of the general term must therefore be affirmed and judgment absolute rendered for the defendant with costs of this appeal and in the court below.

Bischoff and Pryor, JJ., concur.


text:
    William H. Mook, Resp’t, v. Parke, Davis & Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Principal and agent—Reference.
    Where a person is referred by another to a third party, with full knowledge of the former’s application for employment, whatever such third party does in the matter of such application is as much the act of such second person as though the latter personally transacted the whole business.
    S. Appeal—First instance.
    Where the materiality of evidence is not clearly apparent, a purpose, for which such evidence is admissible, not having been presented upon the trial, cannot be urged on appeal as ground for reversal.
    Appeal from a judgment entered upon the order of the general term of the city court of New York, affirming a judgment entered upon the verdict of a jury and an order denying defendant’s motion on the minutes for a new trial.

      Chambers & Boughton, for app’lts ; Burr & De Lacy, for resp’ts.
   Bookstaver, P. J.

his action was brought to recover damages for the wrongful discharge of the plaintiff, whose testimony was to the effect that he called at the office of the defendant company, dealers in drugs and physicians’ supplies, and asked its manager, one Olay, for employment as a traveling salesman and Was referred by him to one Templeton who was in the same buildiug, in the office in the rear, and who was represented by Clay as having charge of the salesmen. Clay denied upon the stand, that he told plaintiff that Templeton had charge of the salesmen, but it is significant that he did not deny sending plaintiff to Templeton and he admitted that, so far as he could remember, the conversation was in general as the plaintiff had testified. He expressly disclaimed however any distinct recollection of the details of the meeting. Undéi the authority of Benesch v. John Hancock M L. Ins. Co., 16 Daly, 394; 32 St. Rep. 73, if the plaintiff was referred by Clay to Templeton, with full knowledge of plaintiff’s application for employment, whatever Templeton did in the matter of the application was as much the act of Clay as if the latter„ personally transacted the whole business and, in this aspect of the case, the question whether Templeton, in fact and independently of this reference to him by Clay, had authority to employ the plaintiff on defendant’s account, is immaterial and it was proper for the trial judge to exclude all evidence that went to show that he did not have any such authority. The plaintiff however did not stop here, but introduced a new issue by putting in evidence a check as follows: “ New York Branch ; Parke, Davis & Co., John Clay, Manager. No. 3623 N. Y., May 15, 1890. Phenix Hational Bank. Pay to the order of W. H. Mook, one hundred- OO-100 dollars, $100 00-100 John Clay,” which he received on account of salary as salesman. It is argued that this, being a direct payment from the defendant "to the plaintiff, was a recognition of him as an employee and a ratification by the defendant of the contract, even conceding that it was not originally enforceable against it. Clay however testified that this check “had nothing to do with the business of Parke, Davis & Co.,” and that it was drawn in pursuance of a specific contract between himself and Temple-ton. The appellant’s chief reliance is upon error alleged to have been committed by the trial judge in excluding certain contracts, and other writings, between Templeton and the defendant. Parts of these writings disclose the fact that Clay was Templeton’s attorney in fact for the purpose of making certain payments, including salaries of salesmen employed by Templeton individually in accordance with the contract on his part to place the products of the defendant company upon the market in this manner. It is argued upon the appeal that this agreement should have been admitted as it was important "corroboration of Clay’s testimony that the check was given by him personally in pursuance of a contract with Templeton. The weakness okthe appellant’s position is that the argument, so cogently made here, was not presented at all upon the trial. Sterrett v. Third Ave. Ry. Co., 122 N. Y. 659 ; 34 St. Rep. 241; Akersloot v. Second Ave. Ry. Co., 30 St. Rep. 146. There the effort was to get these papers in to prove that Temple-ton had no authority to act for the defendant in the employment of salesmen;' and for that purpose they are inadmissible. The writings were long and only a few lines were material and even these to but a single issue involved and from that issue the attention of the court was called by the language of the offer which was as follows:

“I again offer these papers to show, first, that Templeton was not employed by Parke, Davis & Co., that he had no authorty to employ any salesmen, etc.” Had the trial judge’s attention been called to these portions, and their relevency urged, there can be no doubt but that he would have admitted them, as is shown by his ruling made just afterward, but in connection with other evidence, “I will allow you to explain that check, or any other check given by the witness (Olay), as .that is in rebuttal of testimony already in.” Against the question “ was there any paper executed which provided Templeton should draw any orders upon you for mon,ey that might be due to Templeton or to his employees,” and other similar subsequent ones which, were excluded, the same objections lie; their materiality was not clearly apparent, especially with the mind of the court under a misapprehension as to the object of the questions induced by the repeated attempts of counsel to get in the same kind of inadmissible evidence for the same pui'pose. This also explains and justifies the court’s, interruption: “I will exclude the papers marked for identification; I will also exclude any offers,” which, as we understand it, was no more than an attempt to forestall any further attempts of a similar kind. The clhim that other questions asked and excluded should have been allowed because they were designed to contradict testimony previously given by the plaintiff cannot be supported. Mo objection was made at the time to the admission of such testimony, nor had the issues •' then become so well defined that it was apparent that the testimony admitted was immaterial.

The judgment must, therefore, be affirmed with costs.

Bischoff and Pryor, J. J., concur.


author: Bis OH OFF, J. Daly, C. J.

text:
    Ellen Pollock, Resp’t, v. Alexander Pollock, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Evidence—Hearsay—Res gestae.
    In an action by a wife for loss of her husband’s consortium, statements made to her by her husband, in the absence of the defendant, are inadmissible except as part óf the res gestae and as tending to show the existing relations between husband and wife at the time.
    2. Husband and wife—Consortium.
    In an action by a wife for loss of her husband’s consortium against his father, stronger proof is required for a recovery than against a stranger.
    3. Same—Motives.
    In such action, the motives of a parent are presumed to be good until the contrary is shown.
    Appeal from a judgment for plaintiff which was rendered on a verdict in her favor. Appeals also from two orders, each of which denied a motion by defendant for a new trial, the first motion having been made on the minutes at trial term, and the other on a case and exceptions at special term. Action by the wife to recover damages for the loss of her husband’s consortium, the defendant being the husband’s father and charged with having wilfully, wrongfully, and maliciously ,by threats, persuasions, and offers of money, induced and procured the husband to abandon his wife.

      Delaney Nicoll, for app’lt; Edward C. James, for resp’t.
   Bis OH OFF, J.

Repeated scrutiny of the testimony adduced on the trial is convincing that the facts afforded no justification for the recovery and that the verdict was not the result of temperate and dispassionate deliberation on the part of the jury. It is, therefore, the prerogative, as well as the duty, of the court at general term, on appeal from an order denying a motion for a new trial, lest justice should be preverted, to set the verdict aside and to order a new trial. Kummer v. Christopher A Tenth St R. R. Co., 2 Misc. 298 ; 50 St. Rep. 332 ; Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25, 30 ; Hynes v. McDermott, 7 Abb. N. 0. 98 ; Engel v. Schoclherr, 12 Daly, 417; Schwinger v. Raymond, 105 N. Y„ 648 ; 7 St. Rep. 544. The plaintiff was permitted, under objection and exception by defendant's counsel, to testify to stasements made to her by her husband in the absence of the defendant which in effect'attributed the husband’s abandonment of his wife to the persuasions and contrivances of the defendant, but the learned trial judge mindful of the rule which interdicts sucli statements as hearsay, limited their admission as part of the res gestae and as tending to show the existing relation between husband and wife at the time. Willis v. Bernard, 8 Bing. 376 ; Gilchrist v. Bale, 8 Watts, 355; Palmer v. Ctoolc, 7 Gray, 418; Holtz v. Dick, 42 Ohio St. 23 ; Remsen v. Hay, 14 Wk. Dig. 443 ; Baker v. Baker, 16 Abb N. C. 302. The subsequent proceedings on the trial, however, demonstrate that this limitation was disregarded and that the statements of the husband to the plaintiff were given the effect of evidence against the defendant which tended to establish the subject matter of the husband’s statements to his wife as the facts of which the defendant’s liability was predicable. How utterly destitute the evidence was of every personal knowledge by the plaintiff of the defendant’s alleged interference to wreck her marital happiness is best shown by her own testimony given upon cross-examination when called in rebuttal: “Were you .ever present when Mr. Pollock threatened your husband ? A. I was not. Q. Were you ever present when Mr. Alexander Pollock offered to bribe your husband? A. My husband was not present when I saw Alexander Pollock but once. Q. I ask you if you were ever present when Mr. Alexander Pollock offered a bribe to your husband ? A. No, sir.” Disregarding a@ incompetent to establish the defendant’s interference with the plaintiff’s marital felicity all testimony which was not given upon personal knowledge of the alleged facts narrated, the record at most shows that the defendant was displeased with his son’s marriage with the plaintiff; that he did not approve it; that notwithstanding he gave his son employment in his business; that he supplied him with money and harboured and sheltered him at his home; that he stated it to be his wish that his son might be extricated from a marital alliance which paternal solicitude, perhaps unwisely, prompted him to regard as foreboding future infelicity for his son ; that he dedined to receive the plaintiff as a member of his family and at his .home; that on several occasions when the plaintiff invaded hip home and place of business he caused her to be ejected, and that he further declined'to assist her in the restoration of her child which her husband had caused to be taken from her. But these facts did not'justify the recovery. It yet remains to be judicially sanctioned that parental solicitude for a child’s felicity is a reprehensible quality, and that the .natural grief and displeasure of the parent because of the child’s1 marital alliance, which to the former seems apprehensive of the latter’s future discontent, must give way to rejoicing, lest the parent should be exposed to liability in damages for having by his disapproval deprived his child’s spouse from the enjdyment of his or her anticipated advantages of the marriage ; or that because of a marriage of the child, which, the parent conceives to be ill-fated, the latter must, to avoid a similar liability, cast the former out, declin.e any longer to receive his child in his family, and refuse to succor it by means of employment, shelter and tender consideration. Neither docs the parental roof, by the child’s marriage, become an open asylum or place of refuge, for any .but those to whom the parent extends the privilege of enjoying it as such. The marriage of the child imposes no obligation upon the parent to receive within the bosom of his own family, or at his place of business, any person other than one present at the parent’s invitation or with his consent. The defendant was under no legal duty towards the plaintiff to assist her in the restoration of her child. The evidence fails to show that he was instrumental in removing the child; but, even if that be otherwise, it must be borne in mind that this action was to recover for the loss of the consortium of the husband.

Increased intensity of the proof is required in actions of this character when recovery is sought against a parent. The motives of a parent in harboring, sheltering, and otherwise extending aid and assistance to a child are presumed to be good until the contrary is shown. Such is the current of opinion of text writers and such is ruled in adjudged and,reported cases. “The motives * * * of a parent are presumed good.” 9 Am. & Eng. Ency. of Law, 884. “ Not only a parent or child, but a stranger, may give shelter to a wife who has left her husband, but the motives of such harborer, are important, and must not be to separate husband and wife, those of a parent are presumed good.” Stewart’s Husband and Wife, § 78. “Parents and near relatives stand on a different footing from strangers.” Schouler’s Husband and Wife, § 64. “ If, however, the interference is by the parents of the wife, on an assumption that the wife is ill-treated to an extent that justifies her in withdrawing from her husband’s society and control, it may reasonably bo presumed that they have acted with commendable motives, and a clear case of want of justification may be justly required to be shown before they should be held responsible. ” Cooley on Torts, 224. “ A father’s house is always open to his children; and whether they be married or unmarried, it is still to them a refuge from evil and a consolation in distress. Natural affection establishes and consecrates this asylum. According to Lord Coke, ‘it is nature’s profession to assist, maintain and console the child.’ ” Bad or unworthy motives cannot be presumed. They ought to be positively shown, or necessarily deduced from the facts and circumstances detailed.” Kent, Ch. J., in Hutcheson v. Peck, 5 Johns. 196. “ Much will be forgiven the parents of a wife who honestly interferes in her behalf, though the interference was wholly unnecessary, and may have been detrimental to her interest and happiness, as well as that of her bus-, band.” Holtz v. Dick, 51 Am. Rep. 791. “Nor is the guilty agency of the defendant to be inferred from the fact that the plaintiff’s wife, on separating from him, went to the house of the defendants and remained with them. It was her former home; they were her parents. Burnett v. Burkhead et al., 21 Ark. 79. Observing the difference in the degree of proof which should be required for the purposes of a recovery for the loss of consortium in actions against parents and strangers we are emphatically of the opinion that the verdict in the case at bar was not only against the weight of the evidence but without sufficient evidence. Accordingly the judgment and order denying the motion for a new trial made at the trial term should be reversed and a new trial be had, with costs to the appellant to abide the event. The foregoing conclusion renders it unnecessary to discuss the order denying defendant’s motion for a pew trial made at special term. We are of the opinion that the order was properly made and that it should be affirmed.

Judgment and order of the trial term reversed, and new trial granted, with costs to appellant to abide the event. Order of the special term affirmed with costs.

Bookstaver, J., concurs.

Daly, C. J.

I think that there was sufficient evidence to sustain a verdict in favor of the plaintiff, but am of opinion that the verdict was excessive in amount, and for that reason a new trial should be ordered.


author: Parker, J. Vah Brunt, P. J.

text:
    Dugald J. Bannatyne et al., Resp’ts, v. Florence Milling and ning Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April, 13 1894.)

    1. Pleading — Statute of frauds.
    Where the defense of the statute of frauds is neither presented by the averments of the complaint nor pleaded in the answer, it is not available to the defendant.
    S. Broker — Commissions.
    In an action by a broker to recover damages sustained by reason of the refusal of the owner to perform such of his promises as constituted conditions precedent to the securing of a purchaser, he is not restricted to the expenses incurred, but may recover compensation for services rendered.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      T. Me Cants Stewart, for app’lt; Henry T Terry, for resp’ts.
   Parker, J.

The case presented by this record is not the usual one of an agent who has earned an agreed commission by procuring a willing purchaser, but rather of one whose recovery" is for damages sustained by reason of the refusal of the owner to fulfill such of his promises as constituted conditions precedent to the securing of a purchaser. The propositions of fact which the jury must necessarily have found in plaintiffs’ favor in order to reach the verdict rendered, are briefly that the defendant agreed to permit the plaintiffs to sell its mills and mining property ; to allow them a reasonable time in which to make the sale, to do such acts and execute such papers as should be reasonably necessary for that purpose, to abstain from other negotiations in the mean time; upon the faith of which plaintiff expended much of time and money, but without result, because the defendant refused to execute the paper which was essential to the incorporation under the English law, a fact well known to the defendant when consent was given to the efforts which plaintiffs made to sell the property. The appellant1 makes the point, among others, that such findings are contrary to the evidence and the weight of evidence, and therefore the judgment based thereon should be reversed. But its position is not well taken. The evidence upon each proposition is abundantly sufficient to support the disposition made of it, not excepting the one which, in effect, declares that defendant and its agent, who owned all its stock, knew, in advance of the substantial expenditure of money made by the plaintiffs for the purpose of promoting the formation of a corporation under the English law to become the owner of this property, that one" of the preliminary steps required by that law would be the execution and filing of a written contract of sale. The appellant now insists, as it did upon the trial, that the contract alleged in the complaint is void under the statute of frauds. As this defense is neither presented by the averments of the complaint nor pleaded in the answer, it cannot now be made available to the defendant. Wells v. Monihan, 129 N. Y. 161; 41 St. Rep. 409; Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659. If the pleadings presented the question fairly for consideration, we should feel constrained to hold that the statute is not applicable. This action is not prosecuted by the plaintiffs on the theory that defendant made a valid contract with them for the sale of lands to such a purchaser as the plaintiffs might select, but rather that defendant made the plaintiffs .its agents, and persuaded them to undertake the task of selling property as to which prior, and not unfrequent, efforts had resulted fruitlessly ; that defendant bad fixed the terms of the agency, understood fully the character of the work to be undertaken, appreciated that it involved a substantial expenditure of money as well as skillful labor, and knew, long before its refusal to do the act essential to further progress in the scheme upon which they had embarked; that plaintiffs were acting in reliance upon its promises ; and when it so acted as to terminate, in effect, the agency thus created, the law enjoined upon it the legal duty of compensating the agents for the injury sustained. This position of the plaintiffs is so well grounded in principle as to require neither discussion nor the citation of authority.

It is also insisted that the court erred in refusing to charge two requests made by defendant’s counsel; First. “ If the jury find that the plaintiffs are entitled to damages for breach of contract, they can only take into consideration actual damages.” If that request be considered separately from the one which follows it, there would seem to be no justification for its refusal, other than that the court had already charged (the jury upon that subject in language which must have met the approval of defendant’s counsel, for no exceptions were taken to the charge as made in respect to the subject of damages. Of course, the plaintiffs were only entitled to recover compensation commensurate with their loss or injury, and the request, standing alone, seems to imply only that. But, considered in connection with the request following,—both of which are now treated as one request in the appellant’s brief,—we have an explanation of the meaning intended. The further request was that the court instruct the jury not to take into “ consideration possible profits or commissions which might have accrued, which are too remote and indefinite to be regarded.” It thus appears that the point of the request was that the jury should be instructed that, in determining upon the amount of damages which should be awarded to the plaintiffs, they should not take into account the loss of commissions. If such were the rule, it would, in a case like this, leave no room for the jury to make an award to plaintiff except for damages sustained by reason of the expenditure of money, and prevent them from having regard for the time taken and skill employed in endeavoring to bring about the result which was the desire of both parties. The contract between these parties provided that plaintiffs should receive $50,000 if they should succeed in getting up an English company, and selling the property to it for the price fixed upon by the defendant. It also appears that the necessary expenses of the plaintiffs in the undertaking would equal the sum of $5,000, and that they had actually paid out in one item the sum of $500, which payment was made necessary in the carrying out of the plan undertaken. Evidence was also produced by the plaintiffs tending to show that, had they been permitted, they would have succeeded in getting up an English company to which the mines would have been sold. The plaintiff, Mackey, was not without previous experience and success in similar transactions, and it was made to appear that he had interested influential people in the scheme, who had agreed to become directors in the new company ; so that there was evidence from which the jury might have inferred, that their undertaking would have proved successful but for the defendant’s conduct in refusing to take the necessary steps in that direction, and, instead, selling the mines to other parties. Such being the case, it would seem to be within the rule as laid down in Wakeman v. W. & W. Mfg. Co., 101 N. Y. 205, in which the court considered what might be taken into consideration in estimatjng the damages for the loss of an agency. It said:

“ The damages must be reasonably certain, and such only as actually follow, or may follow, from the breach of the Contract. * * * They are nearty always involved in some uncertainty and contingency. Usually they are worked out. in the future, and they can be determined only approximately, upon reasonable conjectures and probable estimates.”

With evidence tending to show, as we have- already observed, that a sale would have probably resulted had plaintiffs been permitted to have continued in their efforts along the lines agreed on between them ahd the defendant, the court could not haveproperly instructed the jury not to take into consideration, in fixing the damages, the matter of compensation to'the plaintiffs for services - rendered. Such we deem to have been the purpose of the two requests, and their denial, therefore, does not call for a reversal.

The judgment should be affirmed, with costs.

Follett, J., concurs.

Vah Brunt, P. J.

I concur in the result of Mr. Justice Parker’s opinion, only because I think he is mistaken in his statement that it has ever been decided, in any case where the result depended upon this issue, that where the existence of the contract is denied in a pleading, and want of compliance with the statute of frauds is the ground relied upon, such ground must be stated in the pleading; and because, if it has been so decided, such decision is contrary to all the authorities cited to support it. Mr. Justice Parker cites as his authority the statement of Judge Finch contained in the case of Wells v. Monihan, 129 N. Y. 164; 41 St. Rep. 409, in which-case the latter says :

“ So far as the defense in this case rests upon the statute of frauds, it must fail for two reasons. No such defense has been pleaded, and it is not raised by the averments of the complaint; and, without one or the other of these conditions, the defense, if existing, cannot be made available,” citing Porter v. Wormser, 94 N. Y. 450.

And then the learned judge proceeds to dispose of the validity of the contract upon other grounds. Upon an examination of the case of Porter v. Wormser, supra, cited by Judge Finch, it does not seem to have held the proposition which it is cited to support. All that was decided in that case on .this subject was that, where" a vendee brings an action to impeach the account of his vendor, on grounds which imply the existence of a formal contract of sale, he .cannot question the validity of the contract under the statute of frauds. Chief Judge Andrews, who wrote the opinion in that case, says:

“The plaintiff, having become an actor, and brought an action to impeach the account upon grounds which implied the existence of a formal contract, is not in a position to question the validity of 'the contract under the statute;” citing Cozine v. Graham, 2 Paige, 177; Vaupell v. Woodward, 2 Sandf. Ch. 143 ; and 2 Story Eq. Jar., § 755.

The above proposition is plainly supported by these cases, as will be presently shown. But the learned judge writing the opinion in the case under consideration went further, and stated : "

“ The general rule is that the defense of the statute of frauds must be pleaded, except when the complaint on its face discloses a case within the statute. It cannot be doubted that, if the defendant had brought an action to recover a balance claimed to be due on the contract for the purchase of the bonds, without disclosing whether the contract was oral or written, the plaintiff would have been bound to plead the statute to avail himself of its protection.”

This last proposition is not supported by the authorities cited. It is true that the headnote in Vaupell v. Woodward, supra, seems to support the dictum of Chief Judge Andrews, but an examination of the 'opinion shows upon what ground the decision proceeded. The opinion upon this point is as follows:

“The first objection to the complainant’s claim is on the ground that the contract between the parties is not in writing, subscribed by the defendant. The bill alleges that the parties entered into a contract, by which one agreed to sell to the other 200 shares of stock, upon terms which are fully stated. The answer admits the making of the contract as set forth in the bill. On this state of the pleadings, the court has nothing to do with the question whether the contract is in writing or by parol. The chancellor’s decision in Cozine v. Graham, 2 Paige, 177, is conclusive that, where it does not appear by the bill that the contract is not in writing, the defendant admitting the contract must insist by plea or answer that it is not in writing, or he cannot raise that objection to its validity; and in such case no proof of the agreement is necessary.”

In other words, where the contract is admitted, and under the pleadings no proof thereof is necessary, if a defendant desires to impeach it he must allege his grounds. To the same effect is the case of Cozine v. Graham, supra. In this case the chancellor held that, Where a complaint alleged the existence of an agreement, without stating whether it was in writing or oral, the defense that the agreement was within the statute of frauds could not be raised by demurrer; that, where the agreement is admitted, it must be deemed to be valid, unless the contrary is alleged and proven. Weither of these cases supports the proposition enunciated in Porter v. Wormser and Wells v. Monihan, supra, that “the general rule is that the defense of the statute of frauds must be pleaded, except where the complaint on its face discloses a case within the statute.” Upon the contrary, the chancellor, in Cozine v. Graham, supra, expressly states that;

“If the agreement is denied, the plaintiff must produce legal evidence of its existence, which can only be done by producing a written agreement, duly executed according to the provisions of the statute. If the agreement is admitted by the pleadings, no evidence to prove its existence is necessary, and the court never inquires whether it was or was not in writing.”

The rule, therefore, undoubtedly was, until the dicta of Chief Judge Andrews and Judge Finch in the cases cited, that where the contract was denied in an answer, the objection that the contract was within the statute of frauds, when the plaintiff attempted to prove his contract, was available to the defendant. Such a rule is entirely in harmony with our general rules of pleading, viz. that where an agreement is denied in an answer, the plaintiff must support his allegation by legal proof of its truth ; and this he cannot do in the case of a contract void under the statute of frauds, unless in writing, without proving a written contract. Every other agreement is void by the express provisions of the statute, and is therefore no contract; and proof of such an oral agreement furnishes no basis for an obligation. The cases of Hamer v. Sidway, 124 N. Y. 538 ; 36 St. Rep. 888, and Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659, may be cited as also holding contrary to the above rule, but an examination of those' cases will show that the cases cited to support the rule therein expressed either contain mere dicta upon the point, or the cases therein cited do not support the rule contended for in them. In the case of Hamer v. Sidway, supra, the court, after holding that the case had been taken out of the statute, further stated that, under the authority of Porter v. Wormser, 94 N. Y. 431-450, the statute of frauds not having been pleaded, such a defense was not available. _ This was a dictum not necessary to the decision of the case, and rested simply upon the case cited. In the case of Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659, it was held that where, in an action upon, an agreement within the statute, defendant did not plead the statute, and permitted the plaintiff to prove without objection a verbal agreement, a motion to dismiss the complaint on the ground that the agreement was within the statute, and void, made at the close of plaintiff’s evidence, was properly denied, upon the ground that the admission of incompetent evidence of the agreement without objection was a waiver of the statute, the sam’e as an admission of the contract in an answer would be; and various cases are cited to support this proposition, none of which, however, support the contention of the learned judge writing the opinion, except the dicta in the cases of Porter v. Wormser, Hamer v. Sidway, and Wells v. Monihan, supra. In the case of Harris v. Knickerbacker, 5 Wend. 638, cited in Crane v. Powell, the rule laid down is precisely that which is here contended for. The court say :

“ It appears from the cases that it remained for a long time doubtful as to the manner in which a defendant could avail himself of this statute, and under what circumstances he was deemed to have renounced it. I apprehend that it is now settled that, if the defendant admits the agreement, and insists on the statute, he can protect himself from a decree for specific performance, notwithstanding his admission; but if he admitS-the agreement, but neither pleads the statute nor insists on it in his answer, he is deemed to have renounced the benefit of it. Cooth v. Jackson, 6 Ves. 39. If.the bill states generally a contract which the law requires to be in writing, the court will presume that it is made with the requisite formalities to give it validity, until the contrary appears. The defendant, in answering, may either plead that the contract was not in writing, or insist upon that fact in his answer. IE he meets the allegation of a contract in the bill with a general denial, and the complainant is put to his proof to establish it, he must show a written contract; and, if he does not, the evidence to establish the issue will be adjudged incompetent. Cozine v. Graham, 2 Paige, 177 ; Talbot v. Bowen, 1 A. K. Marsh, 437. But if the bill set up an agreement, admitting it to be by parol, or which shall in proof turn out to be by parol, the defendant cannot avail himself of the benefit of the statute, provided the bill contains, along with the agreement, matter sufficient to avoid the bar created by the statute. Such is said to be this case. A part performance by the respondent is alleged, whereby it is insisted that the contract is taken out of the operation of the statute.”

The rule laid down is that, if the contract is denied, and it is one which comes within the statute, the plaintiff must show a written contract In e the case of Duffy v. O'Donovan, 46 N. Y. 226, all that was held was that the objection could not be raised, for the first time on appeal that no contract was proved, valid by the statute of frauds, or where the contract was admitted by the answer. And then the rule was laid down that:

“ If the defendants intended to insist upon the statute of frauds, or upon the invalidity of the contract for any other reason, they should have denied the making of the same, and put the plaintiff to proof, or set up the special matter relied upon."

In the case of Marston v. Swett, 66 N. Y. 209, also cited, the correct rule is again laid down. It is that:

“If the contract alleged in the complaint had been denied, or the statute of frauds set up as a defense, it would have been necessary upon the trial to prove that the contract was im writing, if it was one which the statute required to be in writing.”

The rule undoubtedly was, prior to Porter v. Wormser, supra, that where the contract was absolutely denied the statute of frauds was available to the defendant; and it might further be contended, under our system of pleading, that if the agreement is admitted by the answer, even if it is attempted to be attacked by another allegation in the answer as no' contract, because not in writing, such a defense cannot be available, because, the agreement being admitted by the pleadings, the court will not inquire whether it was or was not in writing. Cozine v. Graham, supra. This is the rule laid down in § 755, Story, Eq. Jur. He says:

“Courts of equity will enforce specific performance of a contract within the statute, not in writing, where it is fully set forth in the bill, and is confessed by the answer of the defendant. The reason given for the decision is that the statute is designed to guard against fraud and perjury; and in such case there can he no charges of that sort.”

Such also is the rule of pleading declared in our court of appeals in the case of Fleischmann v. Stern, 90 N. Y. 110. In this case it was held that,. where a material averment of the complaint is not put in issue, such averment must, for the purposes of the trial, be taken as true; and the defendant is not at liberty to deny the existence of the facts constituting the cause of action stated in the Complaint, or to prove any state of facts inconsistent therewith; and certainly, where the agreement is expressly admitted1 in the answer, the same rule must apply. The defense of the statute seems to be only available, therefore, when the obligation of the contract is denied, and not otherwise. In the case at bar tire contract was denied. The plaintiff was, therefore, obliged to prove a contract valid under the statute.


author: FolEETT, J.

text:
    Henry J. Barnes, App’lt, v. Amelia M. Barnard et al., Impleaded, etc., App’lts. Louis Lowenstein et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    Partition—Sale—Contingent interests.
    Where the judgment in partition does not provide for and protect the contingent , interests of persons not in being, they are not cut off by the partition sale. ■ .»
    Appeal from an order relieving the purchasers from their contract of purchase, and directing the sums paid by them on their . contract for auctioneer’s fees and for searching the title to be returned to them.

      Horace H. Chittenden, for app’lt Henry J. Barnes; James M. ' Townsend, for app’lt Amelia M. Barnard; Thomas P. Wickes, app’lt in pro. per.; Masten & Nichols, for the other app’lts; Franklin Pierce, for resp’ts.
   FolEETT, J.

J.— February 17, 1888, Julia M. Luther, a citizen of this state, died seized of No. 322 Delancey street and No. 56 Gfoerck street, the income of which she devised to her sisters Amelia M. Barnard and Amanda M. Ball, and to the survivor of them, for life. Her will was probated in 'Kings county, in this' state, March 20, 1888, and letters testamentary issued thereon to-Amanda M. Ball, who acted as executrix until her death, and thereafter, and on the 16th of November, 1888J letters testamentary were issued to Joseph Gf. Luther. The testatrix left her surviving said two sisters and nine nephews and nieces, the children of a deceased brother, her only heirs and next of kin. The fee of this realty descended, subject to the life estate devised, one-third to each of her said sisters and one-third to the children of her deceased brother, each nephew and niece becoming entitled to one twenty-seventh part. In August, 1888, said Amanda M. Ball, a resident of Massachusetts, died in that state, leaving a last will, by which she devised her interest in the property to Henry J. Barnes, the plaintiff. On the 4th of September, 1888, her will was admitted to probate in the state of Massachusetts, and letters testamentary issued thereon to Henry W. Hart and Samuel M. Brown. On the 26th of April, 1892, Abbie Maria Ball, one of the nieces, a citizen of Massachusetts, died, leaving a will, by.which she devised her interest, in the property to Henry M. Earl, as trustee, with directions to apply the income therefrom to the support of her son, Harry Wheaton Ball, during life, and, upon his death leaving children, the remainder was devised to them, but, in case he left none, it was devised to the sisters of the executrix, except Mary Hannah Pierce. Her will was admitted to probate in Massachusetts, November 18, 1892, and letters testamentary were issued thereon to Henry H. Bari. The wills of Amanda M. Ball and Abbie Maria Ball have not been recorded in this state, pursuant to § 2703 of the Code of Civil Procedure, nor does it appear whether they were executed in accordance with the laws of this stata James Westgate Mason, one of said nephews, died intestate in Massachusetts, September 20, 1892, leaving no ancestors nor descendants, and 'leaving his brothers and sisters and his nephew, Harry Wheaton Ball, his sole heirs and next of kin. In April, 1898, this action was begun to compel Joseph G. Luther, as executor of Julia M. Luther, to account as said executor. During the pendency of the action Thomas P. Wickes was appointed receiver of the property of Julia M. Luther within this state. The surviving sister, said Amelia M. Barnard, and the seven surviving nephews and nieces, are parties defendant, and so are the representatives of Amanda M. Ball, Abbie Maria Ball, and James West-gate Mason. They all answered, and joined in the prayer of the complaint, and also prayed for a judgment distributing the estate of Julia M. Luther among the persons entitled thereto. An interlocutory judgment was entered in the action directing a sale of the property under the direction of Thomas P. Wickes, and a distribution of the avails. Upon the sale had pursuant to the judgment the respondents became the purchasers, but afterwards applied to be relieved from their purchase upon the ground that the title is defective. Harry Wheaton Ball is not a party to this action, but he offers to join in the conveyance of his interest in the property. No provision is made in the judgment under which the respondents are asked to take their title for the protection of the interests of such children as Harry Wheaton Ball may leave him surviving. In an action brought for a partition and sale of realty the contingent interests of persons not in being may be cut off, provided the judgment entered provides for and protects those interests; but not otherwise. Monarque v. Monarque, 80 N. Y. 320; Kent v. Church of St. Michael, 136 id. 10; 49 St. Rep. 19. Under the will of Ms mother, Harry Wheaton Ball did not acquire her interest in this land, and Ms conveyance would not out off the interests of such children as lie may leave in the land devised by his mother. The title tendered is not one which the respondents should be required to take, and the order should be affirmed, with costs. All concur.


author: Per Curiam.

text:
    Hattie E. Bucki, Resp’t, v. Charles L. Bucki, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    Mortgage—Foreclosure—Judgment.
    The special term cannot, in advance of the decision and entry of judgment in an action of foreclosure, order what provisions the judgment, when rendered, shall contain.
    Appeal from an order directing the owner of the equity of redemption to exhibit the mortgaged premises to intending purchasers, and directing the referee appointed to make and advertise the sale in addition to the mode required by statute.

      Wallach & Beach, for app’ It; Michael H. Cardozo, for resp’t.
   Per Curiam.

The parties to this appeal are husband and wife, who are living apart, and between whom there is an action pending for a limited' divorce, brought by the wife against the husband. Charles L. Bucki, the husband, is the owner of the fee of No. 116 West Seventy-ninth street, subject to a mortgage given by a prior owner, which is being foreclosed in this action, and the appellant and respondent are parties defendant. During the pendency of the action, before judgment was entéred, and, so far as it appears, before the defendants had made default, the wife moved at special term for an order directing:

“ That a clause be inserted in the judgment to be entered in this action directing that the premises described therein be advertised in such manner as to the referee may seem proper, in addition to the advertisement required by law; and that said referee be authorized to place a person in charge of said premises, to show the same to persons desiring to purchase the said premises, and for that purpose the defendant Charles Lloyd Bucki be directed to deliver to said referee the keys of said premises, in order to place such person in proper charge thereof; and the expense of such extra advertising and employment of person to be placed in charge of said premises be paid by said referee out of the proceeds of the sale, such expenses not to exceed a sum to be fixed by the court.”

Upon this motion an order containing the following provisions was granted:

“It is ordered that there be inserted in the final judgment of foreclosure and sale to be entered in this action, in appropriate places, the following paragraphs: ‘ And the referee above named is hereby directed to advertise the sale of the premises herein described (in addition to the manner provided by law) in such newspapers, and at such times, and by means of posters, and in any other manner as in his discretion may seem proper, in order to prevent the premises from being sacrificed on the sale herein provided for, and that the cost of such advertising and posters be paid by said referee out of the proceeds of said sale as one of his expenses thereof, providing there are sufficient moneys arising from such sale, after paying the plaintiff’s claim, interest, costs, and allowances; and expenses not to exceed one hundred dollars. And it is further ordered, adjudged and decréed, that the defendant Charles Lloyd Bucki open the house on the premises herein described, and place some proper and suitable person or persons in charge thereof, with orders from him to show all or any part of the interior thereof to all persons applying for leave to inspect the same, and allow such inspection to be made on all secular days intervening between the day of the date of this judgment and the day of the actual sale of said premises, such inspection to be made on said days at any of the hours between 9 a. m. and 6 p. M.; and the persons or person so placed in charge of said premises are hereby ordered and directéd to carry out and obey the directions regarding the inspection of said premises, as above fully set forth.’ ”

We are not aware of any rule of practice authorizing a special term, in advance of a decision and the entry of a judgment in a pending action, to order and decree what provisions the judgment, when rendered, shall contain. If the defendants desire to be heard as to the provisions and form of the judgment, they should appear in the action, and, when application is made for final judgment, then present their views in respect to the provisions which it should contain. It is sufficient for the disposition of this appeal that a special term cannot, before the case is ripe for judgment, by an order granted on a special motion, bind the court before which the action is to be submitted for judgment by requiring that court to enter particular provisions in the judgment. The order should be reversed, and the motion denied; but, as this litigation is between husband and wife, without costs to either party.


author: Eollett, J.

text:
    Samuel Cole, App’lt, v. Samuel B. Sanford et al., as Executors, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)

    1. Lease—Renewal—Presumption.
    Where a landlord permits the tenant to occupy after the expiration of the lease and accepts a month’s rent at the rate stipulated in the lease, the presumption is raised that the lease is renewed for another year.

      2. Same—Rebuttable.
    But such presumption is a rebuttable one.
    3. Same.
    It is not rebutted by the fact that the tenant after his eviction, paid rent up to the date thereof.
    Motion for a new trial on a case and exceptions, ordered to be heard at general term in the first instance.

      Benjamin Scharps, for app’lts; Be Witt 0. Brown, for resp’ts.
   Eollett, J.

The right by which the plaintiff claims to have occupied, the premises is not set forth in his complaint, but it appears by the answer and the concessions on the trial that he was a lessee. By these concessions it appears that his lease expired on the 1st day of May, 1891, and that he paid, and Taylor accepted, $333.83, the rent for that month, but the circumstances under which the payment was made are not disclosed by the concessions nor by the evidence. The landlord having permitted the tenant to occupy the leased premises after the expiration of the term, and having accepted a month’s rent from him at the rate stipulated in the lease, a presumption is raised that the lease had been renewed for another year, Clark v. Howland, 85 N. Y. 204; Schuyler v. Smith, 51 N. Y. 309 ; Laughran v. Smith, 75 N. Y. 205; 4 Kent, Comm. (13th Ed.) 114, note x; Wood, Landl. & Ten. 76.

The complaint in the action for rent brought in the city court of Brooklyn contains allegations which, if they had been established, would have constitutéd a defense to this action, provided the eviction, was effected at the proper time and in the proper manner; but that complaint, though introduced in evidence, is no evidence of the truth of the allegations therein contained. The rent for June and July, 1891, fell due on the first days of those months; so there was, by the terms of the lease, two months’ rent due when the tenant was evicted, and it is well settled that an unlawful eviction is not a defense. We are not sp'eaking of counterclaim to an sction brought for the recovery of the rent due and payable before the eviction. Giles v. Comstock, 4 N. Y. 270 ;■ O’Brien v. Smith, 37 St. Rep. 41; 13 N. Y. Supp. 408. And the fact that the tenant, after his eviction, paid rent up to the date thereof, does not rebut the presumption that he was entitled to occupy the premises for another year. The presumption that the lease was renewed for another year, arising from permitting the tenant to hold over and accepting rent from him, is a rebuttable one, and it may be that the defendants, on a new trial, will be able to show that the plaintiff held over under terms justifying their testator in evicting him; but nothing of the kind was shown on this trial, and the plaintiff’s exceptions must be sustained, 'and his motion for a new trial granted, with costs to him, to abide the event.

All concur.


author: Follett, J.

text:
    Morris Fisher et al., Pl’ffs, v. Ellen H. Wilcox, as Executrix, etc., Def’t.

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894.)
    Specific pebfobmahce—Title.
    Where the power of the trustee to convey an estate in fee simple is doubtful, the purchasers will be relieved from the performance of their contract of purchase entered into with such trustee, and not be required to take the title tendered.
    Submission of controversy on an agreed state of facts, pursuant to § 1279 of the Code.

      David Leventritt, for pl’ffs ; Vanamee, Watts & Vail, for def’t.
   Follett, J.

The testator, by his will,"did not convert or attempt to convert his realty into money, out arid out, but the title to the land, assuming the devise to be valid, passed to the trustees, with power to convert it into money, invest the proceeds, and apply the income therefrom. By the will the trustees have power to hold the realty, and apply the net rents as directed, until the death of Edith G. Polhemus, when they are directed to convey the naked title to her children, subject to the right of the trustees to apply the net rents for the benefit of the life annuitants and legatees. The children of Edith 0." Polhemus are not given the power of alienation until after the death of all of the cestuis que trustent. By the fifth clause of the will the trustees are empowered, not directed, to sell' the realty whenever they deem it most judicious for the interest of the devisees and legatees, invest the proceeds, and apply the income for the same purpose that the rents of the realty are directed to be applied. It is very clear that the testator attempted to authorize the trustees to hold the land in trust, in their discretion, until after the death of all of the annuitants, and until after the payment of the $4,000 legacy, and thus suspend the power of alienation for more than two lives in being at the death of the testator. The interests of the cestuis que trustent in the rents of the realty, and, in base it is sold, in the income to be derived from the proceeds of the sale, are not merely successive, one cestui que trust taking after the death of another, but they are concurrent as well. In this case the heirs of the testator are not before the court, nor are the cestuis que trustent, except as they are represented by the trustees, nor are the devisees of the remainder, except as so represented; and without their presence we do not think this court should authoritatively determine their rights, and ■we simply hold that the power of the trustees to convey an estate in fee simple is so dbubtful that the purchasers should not be required to take the title tendered. In Abbott v. James, 111 N. Y., 673; 20 St. Rep. 230, and Kilpatrick v. Barron, 125 N. Y., 751; 36 St. Rep. 15, the court of appeals held that, when the validity of the title in question is doubtful, even that court ought not to determine it, and compel an acceptance of the title, in the absence of and without hearing the heirs at law whose rights depend on the same question. This judgment was followed in this department in Alkus v. Goettmann, 60 Hun, 470; 39 St. Rep. 576. The decision of the court of last resort is binding by way of estoppel only on parties and their privies, but on persons not parties nor privies only on the rule of stare decisis, and the decision of this court would not be binding upon that principle on the court of appeals; and we think, although we are not in much doubt about the question presented, that we ought not to go further than to decide that the purchasers ought not to be compelled to take the title tendered. Submissions between executors and purchasers relating to the validity of devises have become quite common in this court. The heirs at law of testators in such cases (often infants) are not parties to the submission, are not heard, and their rights ought not to be determined, and, in case of doubt, the purchasers ought not to be required to take title. In some cases which have been submitted, though not in this, we have had reason to believe that the contract of sale made, arid the submission entered into, were for the purpose of securing an adjudication on the questions submitted, without the heirs and the other persons interested having an opportunity to be heard. A judgment should be ordered in favor of the plaintiffs, that they be relieved from the performance of their contract of purchase, and that they recover from the defendant $1,000, with interest from June 13th, 1893, with the costs of this action. All concur.