text:
    Allen R. Pharo et al., Resp’ts, v. Alfred N. Beadleston et al., App’lts.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

    1. Sale—Fraudulent representations.
    In an action upon a contract for the sale of a quantity of thermometers, the defendants admitted the making of the contract, but alleged that they made the contract for the purpose of obtaining a novel means of advertisement and were induced to make it by the fraudulent representation of plaintiffs’ agent that no such thermometers had been or would be sold to any person, firm or company engaged in the same business as defendants within a specified territory, when, in fact, they had been sold to two other persons in said business at that time. Held, that evidence of such fal ;e representations would not contradict or modify the contract, but tend to avoid it; and that these facts, if uncontradicted, would be sufficient to prevent a recovery.
    2. Same.
    These facts were testified to by defendants’ witnesses, but were controverted by the witnesses for plaintiffs. Held, that the question was one for the jury, and that the court erred in refusing to submit it to them and in directing a verdict for plaintiffs.
    Appeal from judgment in favor of plaintiffs, entered on verdict directed by the court.

      K S. Clinch, for resp’ts ; Guggenheimer & Untermeyer, for app’lts.
   McCarthy, J.

This is a hearing upon exceptions taken at the trial directed to be heard in the first instance at general term. This action was brought to recover $1,005 damages for breach of contract. The complaint alleges that the defendants contracted in writing with the plaintiffs for the purchase of 2,000 thermometers, at fifty cents each; that the plaintiffs made the thermometers, and offered to deliver them to the defendants and demanded payment therefor, but the defendants refused to receive them.

The answer admits the making of a contract for the furnishing to the defendants of 2,000 thermometers at fifty cents each, and that the request for the furnishing of the thermometers was made in writing, and allege for an affirmative defense that the plaintiffs, through their duly authorized agent, falsely and fraudulently represented that the plaintiffs had not furnished thermometers of the kind offered to. the defendants to any other person, firm or company in the brewing business, either in the city of New York, Brooklyn, Jersey City, Newark or Hoboken, and that they further agreed and represented by their said agent not to sell or furnish thermometers to any other person, firm or company engaged in the brewing business in the aforesaid places.

Upon the trial, the defendants admitted the allegations of the-complaint, and took the affirmative of the issue. The evidence of Alfred N. Beadleston, John D. Cole, John Tully and Ernst G-. W. Woerz, established the aforesaid false representations of the plaintiffs’ agent and the conditions upon which the defendants’ order was given, as alleged by them.

The plaintiffs admitted that prior to the making of the contract in question they had sold thermometers to two brewers, one in the city of New York and one in Brooklyn.

Upon the close of the testimony the defendants’ counsel requested to go to the jury distinctly and separately upon all of the issues raised by the pleadings upon which testimony had been admitted without objection or exception.

The trial judge held that the evidence of the false representations made by the plaintiffs’ agent could not affect the validity of the contract relied upon by the plaintiffs, that it contradicted a written instrument, and denied the requests to submit the questions, of fact to the jury and directed the jury to render a verdict for the plaintiffs for the.full amount, to all of which rulings the defendants duly excepted.

The learned trial judge adopted the view that the representations on which the contract was procured must themselves be in writing, because the contract was in writing.

The defendants set up two separate and distinct defenses in their answer, as follows:

Third. It admits that on or about the 15th day of September, 1890, it entered into an agreement with the plaintiffs for the furnishing to it of 2,000 thermometers at the price of fifty cents each, and that the request for the furnishing of the said thermometers was made in writing on or about that day. But it denies that such written request embodied or comprised the entire agreement which they entered into at that time for the thermometers mentioned in the complaint, and it denies all the terms and conditions of the said contract or agreement are correctly or sufficiently set. forth in the complaint in paragraph third thereof.

Fourth. It admits that the plaintiffs offered 2,000 thermometers to the defendant on or about the 1st day of October, 1890, and demanded payment therefor, aud that the defendant refused to receive the said thermometers or to pay for the same. But it. denies each and every other allegation in the subdivision or paragraph of the complaint marked and designated therein as l: Fourth.”

Fifth. It specifically denies that the plaintiffs have duly performed all the conditions of the contract which they made with it on their part to be performed.

Sixth. Further answering the said complaint and for a further and separate defense to this action, this defendant alleges that it is engaged in the business of brewing and selling lager beer and ale in the city of New York and elsewhere; and that the plaintiffs through their duly authorized agent, for the purpose of inducing the defendant to enter into an agreement with them, stated and represented that they, the plaintiffs, had not furnished nor sold thermometers of the kind or characted offered to the defendant or any other person, firm or company in the city of New York, or in Brooklyn, Jersey City, Newark or Hoboken, and they further agreed through their duly authorized agent that they would not sell, furnish or supply thermometers to any other person, firm or company engaged in the brewing business in any of the places aforesaid.

Seventh. That the plaintiffs knew that the object of the defendant in ordering such thermometers was to have a novel advertisement which no other of its competitors had to give and furnish to its customers for the purpose of advertising its business. That relying upon the truth of the said statements or representations of the plaintiffs, and upon the agreement that they would not furnish or sell thermometers to any other firm, company or person engaged in the brewing business in any of the aforesaid places, the defendant ordered of the plaintiff two thousand (2,000) thermometers at fifty cents a piece.

Eighth. That the aforesaid statements and representations made by the plaintiffs' agent as aforesaid for the purpose of inducing the defendant to enter into said agreement were false and untrue, and were known by him to be false and untrue at the time they were made. Upon information the defendant alleges that the plaintiffs had, prior to the time when such statements or representations were made, furnished and sold thermometers similar in character to those which the defendant ordered to other brewers located in the aforesaid towns or cities, or some of them, and contrary to said agreement or representations, sold thermometers to other brewers located in the aforesaid cities or towns, or some of them, and that upon account of such incorrect and false representations the agreement that was made in reliance thereon was and is absolutely void and of no force and effect.

At the opening of the trial the defendant, in order to secure the affirmative of the case, admitted the allegations of the complaint and put in evidence the contract in question. This then did away with the issues under the first defense. What was the issue then to be tried under the second defense ? It was not to contradict, modify, enlarge or alter the contract, which contract, by the withdrawal of the first defense, was admitted, but to avoid it by reason of alleged false and fraudulent representations. It does not seem tó us that both the court and appellants’ counsel did not observe the full effect of this withdrawal. See Mayer v. Dean et al., 115 N. Y., 560; 26 St. Rep., 375. Nelson, C. J., in Sandford v. Handy, 23 Wend., 265, says: “We may remark that the proof proposed did not go to vary the terms or conditions of the contract, which seems to be implied in the reasons assigned at the trial for the rejection, but to show that the defendants were induced to enter into it, as drawn, in consequence of the fraudulent representations of the agent in respect to the subject-matter, the property sold, and which was material in forming an estimate of its value. The legal effect of the representations we will examine hereafter; for the present we assume they were sufficient to go to the jury on the point of fraud; and the question is whether they were competent to affect the plaintiff in that aspect of the case.”

It did not and could not deprive the defendant from avoiding the contract by reason of the false and fraudulent representations. See Bennett v. Judson, 21 N. Y., 239; Stewart v. Lester, 49 Hun, 60; 17 St. Rep., 248; Conner v. Keese, 105 N. Y., 643; 7 St. Rep., 200.

The facts which the defendants proved on the trial of this case if uncontradicted were sufficient in our opinion to prevent a. recovery in this action.

Alfred N. Beadleston, a witness called on behalf of the defendants, arid duly sworn, testified: I am a brewer, and a member of the firm of Beadleston & Woerz; I have been engaged in the brewing business for a great many years in the city of New York; we have a large trade; I remember the occasion of placitig the order for these thermometers; the gentleman who solicited the order is in court; he did not get the order on the first occasion when he called; on that occasion he said he represented a house that made thermometers, and suggested that we adopt the mode of advertising; that he was anxious to get some representative in different industries and they only wanted one in each class-of business; he instanced the fact of Huyler & Company, the candy people, being the only ones in their line, and that they confined themselves to that one house, and suggested" that there were no brewers in New York or vicinity that had them, and that if we would be a customer for them we would be the only ones that would have them; at that interview Mr. Pottberg and Mr. Cole, both of whom are in our employ, were present, as well as Mr. Tully, one of the firm of Upham & Company, signmakers, who attend to all our advertising outside, sign work; I asked Mr. Tully for his opinion regarding the advisability of it, and he said if he could have the exclusive use of those things he thought it would be a very good mode of advertising; I don’t know what the solicitor for the plaintiff may have said to Mr. Tully, they may have had some conversation; I think they went over about the same ground as with me; we talked about half an hour; I told him I would consider his proposition and for him to call in a few days and I would let him know, and he did call again, on which occasion I gave him the order; at that time Mr.Woerz and myself were present; I told him I would give an order for many thousand more if they turned out well.

Mr. Woerz had not met the gentleman before, so we went in the private office and we went over substantially the same ground with him. He" said again that we would be the only customers for these thermometers they made, not only brewers who were located in New York, but who did business in New York, who might have their factories elsewhere. He said we would be able to carry out the idea we had of advertising, that is, have a novelty in our line of business, and thereupon we gave the order for two thousand. He said the same thing to Mr. Woerz, that no other brewers had them and no other brewers would have them. I relied upon that statement and gave him the order for two thousand ; then he asked me to sign this paper, which I looked upon as an order for him to to take. I signed the order. There was an advantage in' having the exclusive use of these thermometers as an advertisement.

The advantage was in having something in the way of our advertisement, a novelty that other people in our line of business do not have. After the contract was made, I had several calls from the plaintiffs. I had several interviews, I remember, I think but three; two at least. The first was, the salesman, accompanied, I think, by one of his employers, came to suggest to us that they had sold only these two brewers; I think that the salesman told me that he had recently become connected with this house and did not know that fact. We had notified them that we would not receive the thermometers, we did not want them ; we found several of them outside among customers in the trade, and inasmuch as he had misrepresented the thing to us, and that was a fact, we did not want them. Then he called and the salesman told me he was sorry the thing had occured, that as far as he was concerned he was innocent in the matter, that he did not know that those brewers had been furnished with any, that he had been only connected with this house for a few days, I think, and that, however, but two houses had them, and they had not a great, many, and they would not be supplied with any more, or no one elsé, if we would consent to take these thermometers. I told him we did not care to take them after they were already out. The novelty had gone and we did not want to issue chestnuts. On two or three occasions they called and wanted to see me. I don’t think I had any further interview in regard to the matter, except with one gentleman, whom I don’t know, and he said he would insist upon our taking them. I told him we would not take them; well, he said he would do something about it. Well, I told him he knew what his remedy was. Then another gentleman called some months or so afterwards and said they had those things on hand and could we not use them at any price; make some use of them. I told him no. We went over the same ground, the reason we ordered them, I think the gentleman is here ; I am not sure; it is some ago; I told him I did not want to imitate other brewers; I told him I did not want them at price.

Cross-examination: I mean to say that the gentleman who first called upon me in reference to the placing of the order had said that they had furnished Huyler & Company with thermometers similar in form, and as a representative of the confectionery trade. I am quite sure that he said that no other brewers had been furnished with thermometers. I dont know that it is a fact that for the past fifteen years a brewing firm has used a thermometer in connection with its signs or advertisement. I do not recall a sign upon which is a bottle in the centre of which a thermometer is placed, and which sign or advertisement is used by a brewing firm. I have never seen it. I am only familiar with the various devices used by us for advertising purposes. I am not acquainted with the general market. I have said that after I had learned that other brewers had these thermometers, that I sent word to the plaintiffs that inasmuch as their representations were untrue, that I would not accept the thermometers; by what means that word was sent, I am unable to state. I gave notice in the 'office, personally. I dont know that it was sent. I dont know what method they took to notify them ; I simply gave orders to that effect. I wont say that any such order was sent. The representation, substantially, which I claim this agent made was, that our concern of Beadleston & Woerz would be the only customers in our particular trade for these thermometers.

Ee-direct: Did I understand you to say that they were the only persons who had the thermometers ? A. Had or would have. We were the first people he had approached. He said that no one had them, and if I took them nobody else would have them.

Q. You have been asked about notifying them, the plaintiffs, that you would not take them. The people who called to induce you to take them appeared to know that you had refused ?

A. They called before they attempted to deliver them. It appeared to be in answer to a notice.

Ee-cross: The letter which is shown me came from my place •of business (witness looking at paper); it was written by Mr. Pottberg; he is here in court; I presume that the letter shown me is the notice that was sent under my instructions; that is the notice that I should think was sent under my direction.

Paper referred to read in evidence, and marked plaintiffs’ ■exhibit 11 A.”

Cable Address Monocle per Str.
Beadleston & Woerz,
Brewers and Maltsters,
Empire Brewery.
“Hew York, Oct. 2, 1890.
Empire Brewery.
Trade Mark.
Lager beer Dept Perfection Therm. Co., City:
Gentlemen: Please let your agent call some time to morrow A. M. in reference to our order.
Also stop working on same until you hear from us again.
Yours truly,
Beadleston & Woerz,
Pottberg.

John D. Cole, a witness called on behalf of defendants, and duly sworn, testified: I am a book-keeper for Beadleston & Woerz, and have been for nearly ten years. I remember.the occasion when the solicitor for the plaintiffs called to get this order: I was present at the interview; Mr. Pottberg was there; I think Mr. Tully was there; in fact I know he was, and really I don’t know who else was there at the time; Mr. Beadleston was also there; I was present only at one interview; that was before the order was given; the gentleman came in there and showed the sample that he had, and at first Mr. Beadleston did not seem to want to take his time to look at it, but finally this gentleman said: “We are going to put this into every branch of trade, and have one thermometer in each trade; ” and then Mr. Beadleston looked at it, and asked the opinion of different ones who were there, Mr. Pottberg and myself and Mr. Tully, and we all thought it might be a pretty good thing if only one branch of trade had it, but otherwise it would not be worth anything, and Mr. Beadles-ton, after talking a while, wanted to know if any other brewer had it; the party said “ Mo,” and he told him to call in again in a day or two, and we would make up our minds what to do about it; the gentleman who solicited the order is here; he said no brewer had it in Mew York or Brooklyn, or vicinity; he even put in Hoboken or Mewark. If Beadleston & Woerz took it, he said no one else would have it; I am positive as to that; as a novelty it was thought to be a good thing; I did not know of any other brewer having any such advertisement; I don’t know now of any other brewer who had such an advertisement, nor did I know of any that time.

Cross-examination: I think I can almost use the exact language of the representative. This gentleman came in as all advertisers do, and offered this sample, and solicited our advertisement, but the gentleman said no other brewers had it, and if we would give him an order, no other brewers would have it but us. This is his exact language. I regarded thermometers as a novel means of advertising, if we were the only parties that had it; it had never before been used as a means for advertising in the brewery business; I believe some wagon house uptown had a thermometer a year before that; that is the only case came to my knowledge; I did not know then, nor do I know now, that for fifteen years before it had been extensively used as a means of advertising, and I don’t know now.

Carl Pottberg, a witness for the defendants, being duly sworn, testified:

I am a bookkeeper at .Beadleston & Woerz, and have been there about ten years;' I was present at this interview at which the order for thermometers was solicited ; there was also present Mr. Beadleston, and Mr. Tully and Mr. Cole; I remember part of what took place; I was not present at any more than one interview ; I heard Mr. .Beadleston say to the salesman that he gave-this order with the idea only that no other brewer would have these thermometers.

Q. That no other brewers — A. Would have these thermometers; I don’t know whether he said anything about whether any other brewer had them, as I was not there the whole time; that is all I .heard ; I did not hear him ask the agent any questions ; I was not present while the agent answered any questions; I just passed by through that office, and I heard no more.

To Plaintiffs’ Counsel: The signature to the contract, Defendants’ Exhibit No. 1, is that of Mr. A. N. Beadleston.

To Defendants’ Counsel: At that interview, Mr. Alfred Beadleston did not call me in for my opinion of this thing. After the salesman had gone he asked my opinion ; I wrote this notice (referring to Plaintiffs’ Exhibit A).

John Tally, a witness, called on behalf of defendants, having •duly affirmed, testified as follows :

I am in the painting and decorating business; I have dealt largely with Beadleston & Woerz for a great many years, having ■charge of their advertising. They have been extensive advertisers, always advertising in a novel way. I was present when the party solicited the order. I heard this solicitor solicit the advertisement from Mr. Beadleston, and he stated to him that no other brewer had the thermometers, and .that if he gave them the order for the thermometers he was the only one who would have them. Me said that Beadleston & Woerz would be the only brewer as I understood him; and Mr. Beadleston appealed to me for my opinion of the advertisement; I told him if it was an exclusive thing for their business it was a good thing. Then I volunteered to make a design of their exclusive advertisement, that is, then-style of advertisement, the lettering on this thermometer which I ■did,' and furnished it to this young man, this salesman. The young man had a thermometer there at the time. I had never-seen any other brewer who had this form of advertisement. I regarded it as a novelty only as an exclusive advertisement. The thermometers now shown me without the lettering is the character of thermometer the young man showed when he first called. The lettering was put upon it from a plate from a design furnished by me.

Cross-examination: At the time this thermometer was presented to Mr. Beadleston the plaintiffs did not submit a design for lettering upon it. This sheet of paper is my work (paper shown witness). I furnished it to the plaintiffs that they might put the words upon the thermometer that are now on it. I furnished it to give the idea; I did not know that he wanted to get a woodcut for the transfer of my design to the thermometer. I did not know that the transfer had to be made by means' of a wood-cut. It might have been made by a stencil. A stencil will produce that kind of work. The letters would be ragged, but I told him they could be trimmed up in that way. .

firnst G. W. Woerz, a witness called on behalf of the defendants and duly sworn, testified: I am one of the concern of Beadleston & Woerz, and remember the time when Mr. Alfred Beadleston signed the order for these thermometers; I was present at the time; this young man, the salesman for the plaintiffs, was the person who presented the order. At that time it was said that no other brewer was to have the thermometer but ourselves, and under that condition the order was given. The young man said there was no others except ours; there would be no other brewers who would have it; that there would be no other brewers having the thermometer; upon that the order was signed. We were talking about the novelty among ourselves, that it would be a nice ■advertisement; I was speaking to Mr. Beadleston.about it in the presence of this young man; we thought it was a nice advertisement for one concern to have it alone; it was new, I thought; I never had seen any thermometer advertisements before, and we took it because of the novelty.

It is admitted by plaintiffs' counsel that plaintiffs had sold thermometers to the Umpire State Brewery in the city of New York, and the Long Island Brewery in the city of Brooklyn.

These facts were, however, controverted by the plaintiffs’ witnesses, and thus it became a question of fact for the jury.

We think, the court, therefore, erred in refusing to allow the defendants to go to the jury on the propositions requested by them, .and to which refusal exception was duly taken.

The court erred in directing a verdict for the plaintiffs.

The exceptions were well taken. See Hall v. Erwin, 66 N. Y., 649. See, also, cases already referred to.

For these reasons the judgment should be set aside and new trial granted, with costs to the defendants to abide the event.

Yan Wyck, J., concurs.


source: Caselaw Access Project

author: Fitzsimons, J.

license: Public Domain

text:
    Thomas Drummond, Resp’t, v. James Brander Matthews, App’lt.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

    Default—Laches.
    Where judgment was taken by default in 1885, and no motion made to open the default for about six year's, and until the defendant inherited property and was about to be examined in supplementary proceedings, Held, that the motion should be denied on the ground of loches.
    Appeal from order denying motion to open a default and vacate and set aside the judgment entered thereon.

      Lincoln W. McLeod, for resp’t; Abbott Brothers, for app’lt.
   Fitzsimons, J.

This action is based upon an award. It was commenced November 3, 1883, defendant appearing by attorney who was served with complaint; no answer was served, and judgment was entered September 30, 1885, and execution issued April 3, 1886, for $1,365.45. No further action was taken by defendant until April 16, 1891, when lie applied through his attorney for an order to open his default and to set aside and vacate the judgment and to permit him to appear and answer. This application was denied and from the order entered thereon this appeal is taken.

The order appealed from is a discretionary one and should be affirmed unless it appears that the special term justice acted arbitrarily.

I have carefully read the papers submitted on appeal, together with áppellant’s brief. They show the utmost indifference and carelessness on defendant’s part concerning this judgment. He was without means until his father’s death (a short time ago) when he received a large portion of his father’s estate and is now able to pay this judgment.

The execution issued by plaintiff in 1886 was returned unsatisfied, and no further proceedings were taken by plaintiff for the reason that defendant was penniless until April, 1891, when learning that defendant was able to pay his claim he procured an order for his examination in supplementary proceedings. Then for the first time defendant questioned this judgment, displayed some interest concerning it and intimated that he had a defense thereto. It appears to me that the lively interest now' exhibited by him is due to the fact that the judgment against him is now collectible and not because he has a meritorious defense. But whether this be so or not, I agree with the special term justice in the order made by him. 'The defendant should not be allowed now to set aside the judgment entered or to question.the same, or to answer herein. His loches and apparent indifference to the proceedings taken against him are so gross that to grant his applica-' tian would simply be an inducement and encouragement to litigants to be careless in legal proceedings taken against them. Such I think is not the purpose or policy of the law. They should at least be reasonably diligent in the protection of their rights.

The order appealed from is just and right and is affirmed, with costs.

Yan Wyok and McCarthy, JJ., concur.


author: McCarthy, J.

text:
    Jennie Fisher, Resp’t, v. Robert B. Monroe, et al., App’lts.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

    1. Contract—Theatrical—Evidence.
    In an action for breach of contract by defendants in discharging plaintiff, an actress, for refusing to appear at a final rehearsal, the plaintiff was allowed to testify that she had performed all the duties called ■ for by the contract on her part. Beld, error; that it was for the jury to say from all the evidence whether such was the fact.
    2. Same—Expert.
    In such an action, evidence cf an expert as to whether a failure of a member of the cast who held an important part or who was cast with the leading lady in an important situation to attend a final rehearsal would be a material matter under the circumstances, is admissible, and a refusal to admit it is error.
    Appeal from judgment in favor of plaintiff and from order denying motion for a new trial.

      W. H. Phillips, for app’lts; S. Miller, for resp’t.'
   McCarthy, J.

Plaintiff brings an action for breach of contract by which she was to render services as an actress fendants’ theatrical company. The contract is set forth p. 4, case. The action was tried before a jury with judgment for plaintiff and appealed to the court of common pleas from a judgment of general term of the city court affirming the judgment, and was by common pleas court reversed and new trial granted. The action was tried before the court and jury in June and a verdict rendered for $565 in favor of plaintiff.

This appeal is from an order denying defendants’ motion for a new trial and from the judgment.

The following facts are not controverted: Plaintiff entered into the performance of the contract. The company were playing at Columbus, Ohio, and while so playing were holding rehearsals by reason of the engagement of a new leading lady, who was to appear on the following Monday evening for the first time.

A rehearsal was called in the usual manner on Friday night, after the performance, for the following (Saturday) morning at 10:30 o’clock A. M. Plaintiff asked to be excused on the ground that she was tired and nervous, not, however, claiming to be sick; she was not excused, defendants declining to excuse her.

This rehearsal was, in fact, a “ final ” rehearsal.

The fact was generally known throughout the company.

A final rehearsal is one where not only are the lines rendered but the action of the play is rehearsed as at an actual performance. If the part requires a person to be thrown down, he is grasped and thrown down.

Plaintiff did not attend the rehearsal. She did attend a matinee that Saturday afternoon, and after the performance that evening was discharged by defendants for not attending the rehearsal.

Plaintiff admits that it is part of the general duty of an actress to attend rehearsals and it is so understood, and that the piece could not be properly presented till the new leading lady had been rehearsed in her part. It was a rule of the defendants also and so understood in the company. Defendants have paid plaintiff for her services in full to the date of discharge and this action is only for damages for the alleged breach growing out of the discharge.

Plaintiff denies she knew of any rule requiring her attendance at rehearsal. This was unnecessary, as she knew it was her duty. See supra. She denies she knew this was a final rehearsal, though admitting she knew the new leading lady was to commence on the Monday night. Her answers were a practical admission of the fact, and she did not know of any other opportunity to rehearse before then.

Plaintiff expressly denied being sick and at this trial there was no claim of physical exhaustion amounting to sickness. She said she was not sick, but she was very tired. On the contrary it is admitted by plaintiff it was the ordinary and usual fatigue attending the labors of her profession, and that she had been an actress since she was three years old.

It is contended by defendants that the plaintiff was in her usual state of health on the Saturday morning, and that she appeared at breakfast at the usual time and was there seen by persons.

On page ten, folios 28, 29, the plaintiff was asked these questions under objection and exception: Q. Had you in the meantime performed your part of the covenant of the contract?

A. Yes sir.

Q, Did. you perform all the duties called for in the contract on your part? A. Yes sir.

This was clearly error. It was for the jury to say from all the evidence whether such was the fact. Again at folio 93, p. 31, a witness was called for the defendant who testified as-follows:

Frank B. Murtha, a witness called on behalf of the defendant, being duly sworn, testified: _ .

My business is manager of the Windsor Theatre I have been a theatrical manager pretty near twenty years; the attendance of the full cast is absolutely necessary at the holding of a final rehearsal in order to prepare a company properly to present a piece, . and this where we may be rehearsing even the leading man only or the leading lady.

Q. And a piece could not be properly staged before the audience before such final rehearsal was held? A. I should not think so.

Q. Would you regard the failure of a member of the cast holding an important part or being in an important situation in the play to attend as material or immaterial ? •

Objected to; objection sustained; defendants except.

Q. Assuming that you were rehearsing a leading lady in her part, or rehearsing so as to perfect her in her part, that you were about to hold a final rehearsal and that one of the members of the troupe who was cast with her in an important situation failed to attend, would that failure be a material matter under the circumstances ?

Plaintiff’s counsel objects; objection sustained; defendants except.

This was error. Among the questions to be ascertained by the jury was: Did the plaintiff under her contract violate any rule.in regard to attending a rehearsal, and, if so, was such a violation or failure to attend material or immaterial to the proper production of the play.

At folio 100, p. 34, one Rosenquest was called as a witness for the. defendant, but his testimony was ruled out as cumulative.

Ro exception having been taken by the appellant he cannot obtain the benefit of such ruling even if it was erroneous. At folio 106, p. 36, defendants’ counsel said: I offer Mr. Murray to corroborate the evidence of Mr. Murtha; and upon the same points, excluded. Defendant excepts.

This offer was proper and the evidence should have been allowed. It was important as corroborating the expert testimony of Mr. Murtha upon the question as to whether the plaintiff's absence from the rehearsal, if she was not sick, was material or immaterial in the proper production of the plajq and thus whether or not there was a breach of the contract by the plaintiff which gave the defendant the right to discharge.

This was a proper question for the jury and was not cumulative, but corroborative.

For these reasons the judgment should be reversed and new trial granted, with costs to the appellant to abide the event.

Van Wyck and Fitzsimons, JJ., concur.


text:
    James R. Floyd et al., App’lts, v. Nathan Wise, Resp’t.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

    Statute op frauds—Promise to pay for services rendered to another.
    In an action for services rendered and materials furnished to a third person, the weight of evidence showed that plaintiff intended to give credit solely to defendant and hold him primarily liable for the debt, and it appeared that defendant personally made a payment thereon and took a receipt drawn in his own name. Held, that defendant was liable as an original debtor, and that it was error to dismiss on the ground that the case was within the statute of frauds.
    Appeal from judgment dismissing the complaint.

      Edward M. Bliven, for app’lts ; Samuel W. Weiss, for resp’t.
   Fitzsimons, J.

This is an action for services rendered and materials furnished, all of the value of $145.41. Twenty dollars was paid on account thereof. The answer is a general denial. The complaint was dismissed at close of plaintiff’s case by the trial justice, on motion of defendant’s attorney, upon the ground that the testimony established the fact that defendant promised to pay the debt of another, and such promise, not being in writing, was void under the statute of frauds,

If the testimony proved that the defendant was liable collaterally and not as an original debtor upon the cause of action in the complaint, then the trial justice was right in dismissing. But such is not the case here. I have carefully read all of plaintiff’s testimony, and am of the opinion that it proves that the defendant is primarily liable for the debt sued on to the plaintiff. It is true that a few times plaintiff’s witnesses said that defendant promised to “ see the bill paid,” but the weight of the testimony shows plaintiff intended to give credit to the defendant solely, and to hold him primarily liable for the debt. This theory is supported by the fact that the defendant personally paid to plaintiffs on account of the work to be done the sum of twenty dollars, and received a receipt therefor drawn to his own name.

In view of this state of facts, I think that the trial justice should have required the defendant to submit his version of the transaction to the jury under proper instructions, and let them decide whether the promise made by him was an original or collateral one.

Judgment must be reversed, a new trial ordered, with costs to appellant to abide event of action.

Van Wyck and McCarthy, JJ., concur.


text:
    Elizabeth Meyers, Resp’t, v. The United Life Ins. Ass’n, App’lt.

      (City Court of New York,

      General Term,

      Filed December 17, 1891.)

    Benefit societies—Pleading.
    Plaintiff’s husband was a member of defendant, his certificate calling for a sum of money equal to the amount received from one assessment, not exceeding $2,0u0. In an action on the certificate the complaint alleged that defendant, hy its agent, falsely alleged that plaintiff was not entitled to anything, but that defendant would pay her $1,000, which she had better accept or she would not get anything, which sum she accordingly accepted; that said statements were false in that she was entitled to receive and there was due her $2,000. On demurrer, Held, that the complaint was insufficient; that in order to recover she should have alleged that defendant could have realized on one assessment more than the sum of $1,000.
    Appeal from, order overruling demurrer to complaint, and from interlocutory judgment entered thereon.

      Harry Wilber, for app’lt; A. H Beavey, for resp’t.
   Fitzsimons, J.

The defendant issued to the plaintiff’s husband a policy of insurance on February 29,1891, payable to plaintiff upon her said husband’s death (within ninety days after proof of his death), a sum of money equal to the amount received from a death assessment, but not to exceed the sum of $2,000. Plaintiff’s husband died April 1, 1891.

The action is brought to recover the full amount of said policy.

The complaint alleges the issuance of the policy, death of plaintiff’s husband, and that due proof thereof was given to defendant, and that they fully performed all the conditions of said insurance-on their part.

It further alleges that on or about May 1, 1891, the defendant, through its agent, falsely and fraudulently represented to plaintiff that she was not entitled to anything under said policy, but that defendant would pay her $1,000; that she had better accept, otherwise she would not receive one dollar.

That relying upon such statements she was induced to and did accept $1,000.

That these statements were false in that plaintiff was entitled to receive, and that there was due her under said policy the sum of $2,000, which was known to defendant, and that therefore she was damaged for $1,000, for which amount she demands judgment.

The defendant demurred to the complaint upon the ground that the complaint failed to state facts sufficient to constitute a cause of action.

The demurrer was overruled, and from the order entered this, appeal is taken.

The plaintiff under the policy in question was entitled to receive only a sum equal to the amount received from a death assessment, not to exceed $2,000.

To entitle plaintiff to a recovery in this action it became her duty to- allege in her complaint that the defendant realized or could have realized from a death assessment more than the sum of $1,000, because if the defendant only received, or could have received, as the result of levying one death assessment the sum of one thousand or less, the plaintiff certainly suffered no damage, no matter what statements were made to her; she had no right to more than the result of one assessment, and if that did not exceed the sum paid her by defendant she is not entitled to a judgment herein for any amount. We cannot presume that the sum received or which might have been received was or might have been larger than $1,000. That is a fact which she must allege affirmatively in her complaint, fixing the amount in excess of that sum, and prove it upon the trial of the action. There is no such allegation in the complaint. Martin v. Equitable Ass'n, etc., 29 St. Rep., 421; O'Brien v. Home Benefit Society, 46 Hun, 426; 11 St. Rep., 810.

The statements in paragraph VIII of the complaint are mere legal conclusions and do not supply the omissions indicated.

We are therefore of the opinion that the special term justice erred in overruling the demurrer. The order of July 10, 1891, and the interlocutory judgment entered July 31, 1891, must be reversed, with costs to appellant, with leave however to plaintiff to amend the complaint herein within six days from notice of entry of general term judgment.

McCarthy, J., concurs.


author: Freedman, J.

text:
    George W. Eggers, Pl’ff, v. The Manhattan Railway Co. et al., Def’ts.

      (New York Superior Court,

      Special Term,

      Filed December, 1891.)

    1. Constitutional law—Code Civ. Pro. § 970—Laws 1891, Oh. 208.
    The amendment of § 970 of the Code of Civil Procedure hy chapter 208 of the Laws of 1891 is not unconstitutional.
    2. Railroad—Elevated—Jury.
    In an action against an elevated railroad company for an injunction and damages, presenting an issue as to past damages, such issue comes within the language of the amendment and must be tried by a jury. On the question of fee damage, however, defendant cannot, as matter of right, demand a jury trial.
    S. Same.
    As matter of discretion the question of fee damage will be sent to the jury, along with the question of past damage, in cases in which past damages are insisted on, but where the claim for past damages is unconditionally waived, the motion to submit the issues to a jury will be denied.
    Motion for an order directing the issues to be tried by jury.

      Leo. O. Bessar, William W. Badger, Cannon & Atwater, Peck-ham, <h Tyler, Forster & Speir, Wolff & Hodge and Eugene B. Hawkins, for various pl’ffs; Bavies, Short & Townsend (.Edward G. James, of counsel), for def’ts.
   Freedman, J.

This is a motion on the part of the defendants in the above entitled action, and a large number of similar actions, for an order in each action directing the issues and' questions arising on the pleadings as to the value of property, and as to the damages to be recovered by the plaintiff, to be distinctly and plainly stated for trial by a jury pursuant to the pro visions of § 970 of the Code of Civil Procedure, as amended in 1891.

The section as thus amended provides, among other things, that “ where one or more questions arise on the pleadings as to the value of property, or as to the damages which a party may be entitled to recover, either party may apply, upon notice, at any time, to the court for an order directing all such issues or questions to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application the court must cause such issues or questions to be distinctly and plainly stated. * * * ”

The actions are brought to enjoin the defendants from maintaining and operating an elevated railway through such parts of the streets of the city of Mew York as are in front of the plaintiffs’ premises, and to recover damages for injuries already inflicted upon plaintiffs’ premises.

The number of motions thus made is so large that almost every conceivable question which may arise under the amendment of the section referred to is presented for adjudication, and the array of counsel appearing in opposition to these motions is so great that the briefs submitted by them cannot be noticed in detail. I have, therefore, deemed it best to deliver a general opinion, which is intended to briefly cover all the points raised.

It is claimed that the amendment in question is unconstitutional for various reasons, but none of them appears to be tenable. The amendment is not directed against this court, but against, every court of equity in the state. It does not deprive a court of equity of the jurisdiction or power to try certain actions or any action heretofore cognizable in equity. It simply directs that in certain actions of this character part of the issues or questions arising upon the pleadings shall be submitted to a jury. It therefore affects the remedy only, and anything which affects the remedy only cannot be claimed, except by the merest indirection, to be an interference with previously acquired jurisdiction or with a vested right. Lennon v. The Mayor, 55 N. Y., 361; Dolan v. The Mayor, 62 id., 472; Astor v. The Mayor, 39 N. Y. Supr. Ct., 120; aff’d, 62 N. Y., 580; Rae v. The Mayor, 39 N. Y. Supr. Ct., 192.

If, as was decided by the court of appeals in these cases, an act of the legislature could lawfully divest the courts of this state of their previous jurisdiction and power in the class of cases covered by the statute, to the extent that even in actions commenced before the passage of said act no relief could be granted after the passage of the act, which went into effect immediately, it is difficult to see how the amendment now under consideration, especially when construed and interpreted as I shall construe and interpret it, can be held to be unconstitutional. The cases in which it was held that certain acts of the legislature, empowering the transfer of actions from the superior city courts to the marine court, or abolishing the right of appeal from judgments of the marine court to' the general term of the court of common pleas, were unconstitutional, do not apply here.

An interesting and valuable case directly on the question whether the trial of certain issues by a jury is a change in the jurisdiction of the court, or simply a regulation of practice, is found in Phillips v. Gorham, 17 N. Y., 270, where it was claimed that the provision of the old Code of Procedure, allowing legal and equitable relief in the same action, was violative of the provision in the constitution of 1846 (art. 6, § 3) that “There shall be a supreme court having general jurisdiction in law and equity,” the argument being that the recognition by the constitution of distinct jurisdictions at law and in equity imposed on the legislature the obligation to preserve distinct methods of enforcing legal and equitable rights. In overruling this contention, Johnson, J., says (p. 272): “The supreme original civil jurisdiction at law was, under the preceding constitution, in the supreme court; the equitable jurisdiction was in the court of chancery. The new constitution conferred the whole jurisdiction upon a single court. The subject to be acted upon was the vesting of judicial authority, not the regulating of judicial procedure.”

The learned judge then cites art. 6, § 5 of the constitution of 1846, as it then stood, which provides as follows, viz.: “ The legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and equity as they have heretofore possessed.”

The present constitution, art. 6, § 8, as amended January 1, 1870, provides: “ The testimony in equity cases shall be taken in like manner as in cases at law, and, except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and equity cases that they have heretofore exercised.”

The saving clause, “except as herein otherwise provided,” contained in the constitution last referred to, protects only the jurisdiction and power of certain courts as courts, and not the proceedings therein, and it having already been shown that no court has been deprived of the jurisdiction or power to finally determine the actions in question, and to grant in each the equitable relief demanded by the circumstances, the amendment must be held h> have been a constitutional exercise of the legislative power to regulate the proceedings in law and equity.

As to the construction to be placed upon, and the interpretation to be given to, the amendment, I cannot avoid the conclusion that the statute applies to actions pending at the time it took effect as well as to actions brought subsequently to that date. It became a law April 20, 1891, and by its terms took effect September 1, ■ 1891. Of course no proceeding had or right accrued prior to September 1, 1891, is invalidated or impaired thereby. But this remark applies only to proceedings which actually took place, and to rights which became vested prior to the date named. A litigant in an equity suit has no vested right to a trial in the future in a particular manner. The trial, with all its incidents, is mere matter of procedure which is subject to legislative regulation. It was, therefore, competent for the legislature to enact, and I think the true intent and meaning of the amendment is, that the issues and questions specified therein shall, after September 1, 1891, be tried in the manner therein directed. There is nothing in §§ 8347 and 3352 of the Code, or any of the cases cited, most of which relate to vested rights, which calls for a different conclusion.

It now becomes important to determine what issues and questions in the cases at bar should be ordered for submission to a jury. In all the actions the plaintiffs alleged damage to the use or rental value of the premises, in most cases specifying the amount thereof, and asked a money judgment therefor, and the defendants took issue thereon by denying the damage. Every case, therefore, presents a direct issue as to past damages, and such issue comes clearly within the language of the amendment and must be tried by a jury, unless the claim for such damage is waived as hereinafter provided.

As to the damages to the fee, the complaints differ. While they all aver substantial damage to the fee, some do and others do not state the amount. So, while they all ask for injunctive relief, some ask for an absolute injunction, and others ask in the alternative that the defendants either be enjoined or that, if they be permitted to continue the maintenance and operation of the elevated railway, it be on the condition that they pay the plaintiff the value of the property taken by them. Other differences might be pointed out, but it is not necessary to do so, for all the differences which do exist in this respect are immaterial for the following reasons:

The motion which may be made under § 970, as amended, is a motion which can be made by either party. From this the implication arises that any question which may be ordered to be submitted to a jury must be a question which both parties have a right to have determined. But in the Galway case recently decided by the court of ajDpeals, 40 St. Rep., 145, it was held that the provision for the payment of the fee damage, as the equivalent of the property taken, in avoidance of the injunction in this class of cases, is purely a matter of favor to the defendants ; that such payment is at the option of the defendant, and not at the option of the plaintiff, and that neither party has a right to compel the court to make the provision. It was also held that it is now the settled law of this state that no action at law can be maintained by an owner to recover prospective damages for injuries inflicted upon real property; that even in equity an action cannot be sustained for that purpose alone; that the action in the case before the court was neither in practice or theory an action of such a character, but an action for equitable relief to restrain continuing acts of trespass, and that the privilege to continue the trespasses, if granted, was to be granted as an act of grace and favor to the offending party and not as a matter of right to the injured owner. There is nothing in the cases of Roberts, Gray and Doyle which can be twisted iyto a modification of the doctrine of the Galway case, for they were decided on points as to the admissibility of testimony on the question of damages, and the decisions simply point out the method to be pursued by the equity court in ascertaining the fixed sum which the defendants may be required to pay if the court in its discretion shall see fit to grant them this favor.

ít is evident, therefore, that the amendment under consideration, inasmuch as it did not change the rule laid down in the Galway case, was not intended to apply to questions in regard to. the value of property which may incidentally arise in these injunction suits, and which the court may desire to determine in order that it may grant an optional favor to the defendants. It applies only to questions which directly and necessarily arise between the parties, and which both parties have a right to have determined.

Notwithstanding the decision of the Galway case, the defendants still insist that it is part of the inherent powers of a court of equity to grant a judgment for the absolute payment of damages in a suit, commenced "for equitable relief where it appears upon the hearing that the plaintiff should have a judgment for damages either in lieu of specific relief or as' an alternative for it or in addition to it. Their brief upon this point is quite elaborate, and upon the claim thus made the further contention is made that,, after all, the question of fee damage is so directly and necessarily involved as to constitute one of the questions referred to in § 970-as amended. The cases referred to are cases of specific performance and analogous cases, and they do not apply here. The power contended for has never been asserted or exercised in any of the many elevated railway cases which have been determined, and the existence of the power has been expressly denied in theGalway case, which was an elevated railway case of the usual type. The decision in the case last referred to must, therefore,, govern here.

Moreover, making provision for the payment of the fee damage, as the equivalent of the value of the property taken, in avoidance of the injunction, at the option of the defendants, is not the only provision which a court of equity may make as an act of grace and favor to the defendants. Nor is it necessary that any determination of the extent of the fee damage should be made in the action. All the court is bound to do is to ascertain and determine that the fee damage is sufficiently substantial to entitle-the plaintiff to equitable relief. The court may then grant an absolute injunction against the maintenance and operation of the elevated railway and, as an act of grace and favor to the defendants, stay the operation thereof for a reasonable time to enable the-defendants to acquire title to the property taken by condemnation proceedings.

For the foregoing considerations the conclusion is unavoidable that, even if the questions mentioned in § 970, as amended, are treated as questions which differ from the regular issues, which perhaps they do not, the question of fee damage involved in the cases before me is not one which falls within the section, and that the defendants cannot, as matter of right, demand that it should be submitted to a jury.

Inasmuch, however, as the issue as to past damages must' be sent to a jury, it is eminently proper that the question of fee damage, or, in other words, the question as to the value of the property taken by the defendants, should be passed upon at the same time and in the same manner, especially as a large part of the evidence which will be given on the issue of past damages may be made to apply to the question of fee damage. This will be an economy of time and labor, and will result in a harmonious disposition of the main questions in the case. As matter of discretion, therefore, the question as to fee damage or the value of the property taken by the defendants will also be sent to a jury in every case in which the plaintiff insists upon the recovery of past damages.

In every case in which the plaintiff elects to waive his claim for past damages, the waiver must be filed in the form of a stipulation, and it must be an unconditional and unqualified waiver. There are good reasons why this should be insisted upon. The claim for past damages now constitutes an issue in the cáse, and as such it must be submitted to a jury. If withdrawn in a conditional or qualified manner, so that a new action may be brought upon it, it could only be asserted in an action triable by jury. That action, if brought, might, on motion, be ordered to be consolidated with the equitable action, and then the litigation would stand again where it stands now. The waiver must, therefore, be general, unconditional and unqualified. I shall not insist that it must be accompanied by a release, but it must be sufficient to estop the plaintiff, if he takes the benefit of the order denying defendants’ motion in toto, from bringing another action.

It still remains to be considered whether the motions made by the defendants have been made in proper time and at an appropriate stage in the proceedings. Upon this question the plaintiffs advanced various conflicting arguments in opposition to the motions.

It was urged that the motions should be denied because the defendants have been guilty -of loches in making them. I cannot find that such was the fact.

It was also urged that the motions should be denied because they were not made within ten days after issue joined under the provisions of general rule 81. That rule, by its express terms, applies only to cases where the trial of issues of fact is not provided for by the Code and either party desires a trial by jury. The motions now before the court are for jury trials which are provided for by the Code. But even if there were a conflict between the statute and the rule, the provision of the statute is that the motion may be made “ at any time.” These words were added by the amendment of 1891, and as the legislature has thus prescribed the time when the motion may be made, the statutory enactment would supersede the rule.

Another claim advanced was that the motions should be denied upon the authority of Mackellar v. Rogers, 52 N. Y. Supr. Ct., 468; affirmed 109 N. Y., 468; 16 St. Rep., 406. But that case has no application here. It was an action brought in equity to foreclose a mortgage, and the trial took place at a time when the words “ at any time ” were not contained in § 970. The allegations of the complaint were not put in issue by the defendant, who contented himself by interposing a counterclaim in .the nature of a common law cause of action, upon which issue was joined by a reply. The defendant took no steps to have an issue framed for trial by jury, and both the defendant and the plaintiff noticed the case for trial at an equity term. It was under these circumstances, and under the law as it then stood, that it was held that the defendant had waived his right of trial by jury.

It was also insisted that the defendants waived whatever right to a jury trial they hadj by noticing the cases for trial at the equity term. I do not see how they could have noticed them for trial at any other than an equity term. There is no independent • common law cause of action involved, but the entire cause of action is equitable in its character, and only some of the questions of fact are to be tried by a jury. The cause itself is to be tried by the court. It, therefore, only remains to be seen whether, by giving any notice of trial, the defendants waived the benefit of the provision of § 970. For this purpose the cases may be divided into three classes, viz.:

1. Cases in which issue was joined prior to September 1, 1891, and in which notices of trial of all the issues were served by both •sides for an equity term held prior to September 1, 1891.

2. Cases in which issue was joined prior to September 1, 1891, and in which notices of trial of all the issues were served by both sides prior to September 1, 1891, but for an equity term held subsequent to September 1, 1891.

3. Cases in which issue was joined prior to September 1, 1891, and in which notices of trial of all the issues were served by both sides subsequent to September 1,1891, and for an equity term held subsequent to September 1, 1891.

Having already demonstrated that the intent of the legislature was that, after September 1, 1891, the issues and questions specified in § 970 should be tried in the manner therein directed; that a litigant in an equity suit has no such vested right to a future trial that the legislature cannot change the mode of procedure; that the legislature conferred upon the defendants the right to move for a jury trial at any time, and that rule 31 does not apply; it cannot be held that the defendants, by giving notice of trial, waived their right to move in any of the cases, and the differences between the cases are wholly immaterial. The act, by its terms, did not go into effect until September 1, 1891. Before that date the defendants could not move. They moved with reasonable dispatch thereafter, when all the circumstances are considered. In every case the motion was made in advance of the trial Having acquired the right to move at any time, they must be held to have that right up to the time of the commencement of the trial. True, § 1009 of the Code provides that a party may waive his right to a jury trial by moving the trial of the action without a jury, or, if the adverse party so moves it, by failing to claim a trial by a jury before the production of any evidence upon the trial. But this evidently refers to that class of cases in which the whole action is triable by jury, and in which the notice of trial should be given for the jury term. The cases at bar do not fall within that class. As a necessary consequence, all the cases decided under § 1009 have no application here.

The further claim was ’ made by many of the plaintiffs that, even if § 970, as amended, does apply, and the defendants do have a right of trial by jury of some issue or question in the present actions, the motions now made are premature, and should be denied for that reason. The argument is that the plaintiff in an action may not succeed in establishing his title to the property, or for some other reason may be beaten in the suit, and that in such a case the question of amount may not be reached. There is not sufficient force in the argument to call for the result contended • for. True, the statute may be satisfied if the court does make the order for a jury trial whenever it becomes apparent that the trial of an issue or question as to which the right of trial by jury is given is necessary and material. The defendants are at liberty to postpone the making of the motion until the commencement of the trial, and, if the motion is then made, the court may proceed with the trial of the other issues and questions, and if it then appears that the trial of the issue or question as to which the right of trial by jury exists is necessary and material, it may make an interlocutory judgment determining the controversy between the parties in all other respects, and directing that the issue or question as to which a jury trial has become necessary and material,, and which js then and there stated for such trial, be submitted to a jury, and that upon the coming in of the verdict of the jury the cause be brought on for final hearing. All this may undoubtedly be done, but, nevertheless, the Code gives the right to make the motion at any time, which, from the necessities of the case, must be held to mean at any'time after issue joined. The plaintiffs are not entitled, therefore, to have the motions denied as premature. For the reasons hereinafter stated, however, some of the motions may be denied in the exercise of the discretion of the court if it should appear that the issue or question to be tried by jury cannot conveniently be formulated with precision at the present time. In every such case the denial of the motion should be with leave to renew the motion at the commencement of the trial of the action.

None of the objections raised by the plaintiffs being tenable, it. now remains to be seen how the issues or questions to be submitted to a jury should be formulated. It may be a question whether the defendants, in their motion papers, should have formally proposed the issues and questions which they desire to have submitted, but I shall not stop to consider it. The defendants evidently intended to have their rights determined first in a general way and then to follow the direction of the court. The principal questions involved in the motions are certainly of so novel a character and involve so much substance and are of so recent an origin, that technicalities should be avoided in their determination.

In every case in which the plaintiff does not waive his claim to past damages as hereinbefore stated, there should be formulated: (1) An issue as to such past damages; and (2). A question as to the value of the property taken by the defendants.

In the formulation of the issue as to past damages it must be borne in mind that, in view of the plea of the Statute of Limitations, the recovery can in no case exceed the period of six years preceding the commencement of the action, although the plaintiff may have been the owner of the premises for a longer time. In every case in which the plaintiff has been such owner for a period less than six years before the commencement of the action, the precise period of ownership must be ascertained. In addition to the damages recoverable for the respective periods stated, damages may be recovered from the commencement of the action to the time of the trial. The issue should therefore be formulated ■as follows, viz:

What amount of damages, if any, did the plaintiff in this action sustain in the use of rental value of the premises described in the complaint from the-day of-in the year ■———- to the day of the trial of this issue by reason of the construction, maintenance and operation of the elevated railway in front of said premises? *

The question as to the value of the property taken by the defendants should be formulated as follows, viz:

What is the value of the property taken by the elevated railway company or companies from the plaintiff by reason of the construction, maintenance and operation of the elevated railway in front of plaintiff’s premises, described in the complaint ?

Mo other issue or question should be submitted to the jury, and except where special circumstances make a departure necessary, the foregoing formulas should be adopted. In stating the issue as to past damages it is absolutely necessary to state the exact date from which the right of recovery exists. In every case in whieli such date cannot be conveniently fixed the motion should be denied, with leave to renew at the commencement of the trial of the action, and in every such case, if the motion is then and there renewed, the trial court will be at liberty to make appropriate provision by interlocutory judgment.

The motions will therefore be granted or denied, with leave to renew, according to the circumstances of each case. But in every case in which the plaintiff by stipulation waives his claim to past damages, as hereinbefore required, the motion will be denied absolutely.

Having now indicated generally the course to be pursued, the decision in each particular case will be made on the settlement of the order to be entered. Motice of settlement will be required in all cases. As the questions decided are of a novel character no costs will be given.


author: Coleman, S.

text:
    In the Matter of the Judicial Settlement of the Estate of James L. Collard, deceased.

      (Surrogates Court, Orange County,

      Filed November 2, 1891.)

    Executors and administrators — Property set apart eor widow —Laws 1889, chap. 406.
    Where the personal property is not sufficient to make up the amount required so that the widow may receive a full $1,000, the proceeds of real property converted hy sale under the will cannot he considered as personal property under the statute and used to make up the deficiency. In such case, however, she takes all the personal property free from any charge for debts or expenses of administration.
    Judicial settlement.

      G. Q. Dill, for ex’rs ; George \E£. Decker, for widow.
   Coleman, S.

James L. Collard died August 30, 1889, leaving a will which has been admitted to probate. At the time of his death he was the owner of a farm which has since been sold by the executors for $4,062.50. The farm was subject to a mortgage for $1,000 which was signed by his widow. Deceased also had about $300 of personal property. The deceased left a widow,, who was childless, but children by a former marriage survived him.

The question now to be determined is what are the rights of the widow under chap. 406, Laws of 1889.

Section 1 of that act, giving $1,000 to the widow from the estate of the deceased, does not apply in this case, the deceased not-having died intestate.

In ascertaining the rights of the widow under the provisions of § 2 of the act, following the rule laid down in the Matter of Daggett, 29 St. Rep., 864, which was affirmed in general term and reported in 37 id., 810, overruling the decision in the Matter of Steward, 30 id., 438, we must ascertain the present value, of her dower, which is $307.41, and to this must be added the $150 given her by statute, making together the sum of $457.41. To this latter sum must be added, from the personal property, $542.59 to-make up the required sum of $1,000, if there is so much, or, if there is not so much, what remains.

The personal property is not sufficient to make up the amount-required so that the widow may receive a full $1,000. And this raises the further question whether the conversion of the real estate into personalty by the sale under the will makes the proceeds of the sale personal property within the meaning of the act.

I think not. The amount to be set apart from the personal property to make up the $1,000 is to be ascertained and set apart by the appraisers, whose acts relate only to property as it was left by deceased. The deceased could not direct a conversion of the real into personalty which would defeat the dower, and being-considered real for the purposes of the dower it cannot at the same time be considered personal for the purposes of the act. The rights given the widow by this act are received by her independently of the will, and they are therefore to be determined by the nature and character of the property before being affected by the will. In this case the widow therefore has no claim to the proceeds of the sale of ,the real estate other than the value of her dower right; she however takes all the personal property free from any charge for debts or expense of administration. Matter of Daggett, supra.


author: Daniels, J. Lambert, J.

text:
    The People, Resp’ts, v. Henry Cassin, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Larceny—Proof of.
    On the trial of an indictment for larceny, the evidence for the prosecution showed that defendant was a hall boy at an hotel, who sat near the safe; that some two weeks prior to the theft he told another boy that there was a box of valuables in the safe; that he had the combination and could get it, and asked his assistance, which being refused he said he would do it himself and hide it under the carpet up-stairs; that defendant was left alone in the hall for a few minutes, and was gone when the clerk returned, and the latter then discovered that the box was gone. Defendant was absent for half an hour, and some of the contents of the box were found under the carpel up-stairs. Held, that a refusal of a request to acquit was proper, and that although defendant denied his guilt, the question was one for the jury.
    2. Same—Charge.
    The court charged: “ The declarations of a person of his intention to commit a crime, if those declarations are made under such circumstances as to convince a jury that they were freely and voluntarily made, without any threat or inducement, without any fear, that they were freely and voluntarily made by a person of sound mind and understanding, and that is followed up by the fact of the commission of a crime having some connection with those declarations, what stronger evidence could be presented to a jury? It is claimed in this case that that state of facts has been established by the evidence, and that those conclusions are proper conclusions to draw from it. You, of course, are to determine all questions of fact, and upon you rests the responsibility of determining them correctly.” Held, that the concluding portion of the charge relieved it from all supposition that it was intended to be dictatorial, and that defendant was not prejudiced by anything that was said.
    Appeal from a j adgment of the court of general sessions of the county of New York, convicting the defendant of the crime of grand larceny, in the first degree.

      Purdy & Me Manus, for app’lt; Bartoiu 8. Weeks, for resp’ts.
   Daniels, J.

The only exception deserving consideration in this case is that which was taken to the refusal of the court, at the conclusion of the evidence of the prosecution, to advise the jury to acquit the defendant. The motion was made on the sole ground of the insufficiency of the evidence to warrant a conviction. There was no reason to doubt that the crime charged had been committed by some person. It consisted in taking a box, deposited for Bernard Sanders in the safe of the Vendóme Hotel in the city of New York. It was placed there on the 15th of September 1890, and taken from the safe during that day. The box contained $12,808 in United States currency, and four certificates of deposit of one thousand dollars each.

At and previous to the time when the larceny was committed, the defendant was employed as a hall boy in the hotel. And he occupied a position, when he was not obeying other orders, on a seat in the office of the hotel, about twelve feet away from the safe. The owner of the box was a guest, or boarder at the hotel, and was in the habit of having the box deposited in the safe for its security. This fact became known to the defendant. And evidence was given by the witnesses John O’Brien and Oscar ■Matthews, from which the conclusion could be fairly drawn that he had planned the stealing of the box. O'Brien testified that, “ Two or three weeks prior to the 15th day of September of this year, I had a conversation with the defendant in reference to a guest stopping at the Hotel Vendóme. The conversation was not at my house where I live. Cassin invited me out to have a walk in the evening, and the talk was had while we were walking. The first thing he said was that he had a good scheme. I asked him what it was, and he went on to relate all about it. He said that there were two book-makers stopping at the Hotel Vendóme, and that they left in the safe every night a box containing, I think he said, from ten to twenty thousand dollars. So, he says 1 pretty near every night I be sent into the office for to relieve the clerk. He goes to the water closet.’ And that he had the combination of the safe, and that if I would go there for two or three nights, and when I would see him in the office for to walk in, and he would hand me the box.

“ Q. And what did he say to you you would have to do with it ? A. He said that all I would have to do was to take it with me. So, after he had1 got through, then I said,.‘I guess I won’t have nothing to do with that,’ and I advised him not to either. So he went on to relate then that he was going to try to get it.”

The witness added that he said to the defendant, I guess I won’t have nothing to do with that” That the defendant asked what would be the penalty, and that the witness replied, from ten to fourteen years, and the witness then answered:

“Well, he asked me then what would be the penalty, and I told him that I thought it was from ten to fourteen years, and he said, 1 Well, I would be willing to serve ten years if I would get a stake, because I would have more money when I came out than I would earn while I would be there,’ and then he got talking, I think he said he would do it himself. I couldn’t say his exact words now, but it was to that effect, and that he would take it up stairs and hide it under the carpet. We both went home together.”

The witness Matthews testified on this subject as follows:

“I should judge it was about three weeks before the fifteenth of September, about a week after Sanders and his partner came there. We had the conversation in the basement of the hotel sometime during the day. It must have been either at 12: 30 or '6, because he goes off and I go on sometime between that time. I don’t know where the watch was found in the hotel. The conversation I had with the defendant at that time and place was, he asked me if I had ever noticed that box that was turned into the office, and I told him I had, and he said he wouldn’t mind having . it, and he didn’t think there would be much trouble in getting it, and I told him he had better leave it alone and have nothing to do with it. That was all that was said. About a week after-wards a few words passed between us. I don’t remember whether I mentioned it first or he did, but the words were, 1 Why don’t you get the box ? ’ and either he or I answered, 1 Why don’t you get it yourself ? ’ I don’t know which one of us. said it. I had forgotten all about it until my attention was called to it The next I knew of it was when the loss of the box was discovered, and I have had no further conversation with the defendant since that time. I was at the hotel when the loss of the box was discovered. Cassiu was not there,”

These conversations were denied by the defendant, but he testified that he had no intention to, and did not, take the box. After the larceny the box was found in an ash can, near which the defendant passed when for a short time he ran the elevator to relieve its ordinary operator. And the certificates of deposit were found under the stair carpet on the stairs extending from the second to the third story of the hotel. And after the arrest the defendant is stated by O’Brien to have said, “ If Oscar is brought down then I will be in a hole.”

The precise time when the box was taken from the safe was not made to appear. But the evidence tended to show that there were at least two occasions when the defendant could take it, as the clerk and other persons usually in the office of the hotel were temporarily absent therefrom.

This evidence authorized the jury to conclude that the defendant had formed the design of stealing this box, and was willing to serve a long term of imprisonment to obtain its contents. His plan was to take the box and conceal the contents under the carpet. And the fact that a substantial part of such contents was, soon after the larceny, found under the carpet, as he designed to conceal it, directly points to him as the guilty person. The improbability that the same plan would be formed and in part executed by another person is so great as to justify its'exclusion as a fact in the case. The details had been too carefully matured by-reflection to afford ground for belief that they had been formed and executed in the same way by another person than the defendant. For that reason this combination of the circumstances was very weighty evidence against him. And with the evidence that he had the opportunity to commit the crime, and was impressed with the conviction that the evidence of Oscar, intending thereby to refer to Oscar Matthews, would place him in a hole, as he is stated to have expressed himself, was sufficient to bring the case within the province of the jury. The request made at the close of the People’s evidence was rightly denied. And while the defendant, as a witness in his own favor, positively denied his guilt, the case was still «one for the decision of the jury.

Ho exception was presented to the charge of the learned recorder in submitting the case to the jury. But it has been urged that he expressed himself too plainly on the effect of the evidence. What he did say in this respect was that “ The declarations of a person of his intention to commit a crime, if those declarations are made under such circumstances as to convince a jury that they were freely and voluntarily made, without any threat or inducement, without any fear, and that they were freely and voluntarily made by a person of sound mind and understanding, and that is followed up by the fact of the commission of a crime having some connection with those dedurations, what stronger evidence could be presented to a jury ? It is claimed in this case that that state of facts has been established by the evidence, and that those conclusions are proper conclusions to draw from it. You, of course, are to determine all questions of fact, and upon you rests the responsibility of determining them correctly.’’

But in the conclusion of these remarks, and otherwise, the jury were informed that it was for them to decide the facts, and that relieved them from all supposition that there was anything intended to be dictatorial in what was said. The jury were not only left at full liberty to determine the facts for themselves, but they were apprised that such was their province, and in support of the verdict it is to bo presumed that they acted on that theory.

The reference to the omission of the defendant to produce exculpatory witnesses was within what had previously been settled as the law by the courts. Gordon v. People, 33 N. Y., 501, 508-9 ; People v. Grimshaw, 2 N. Y. Crim., 390, 395-6, and People v. Hovey, 92 N. Y., 554.

If what was said was too positively expressed, it was rendered free from objection by what was added at the request of the defendant’s counsel, that the same rule applied to the prosecution, which was all the counsel deemed to be important.

It is true that others had superior opportunities for the commission of this offense. But that is all that can be justly said in his favor. For there is an absence of all other facts having any tendency to implicate either of them as the criminal. The defendant had the opportunity, and had actually planned and intended the crime, as the jury seems to have believed the evidence. And a strong circumstance indicating him to be the guilty person was the finding of the four certificates of deposit as he suggested the stolen property could be hidden. In no view does the defendant appear to have been prejudiced by what occurred on the trial, and as the evidence quite clearly indicated his guilt, his conviction was proper, and must be affirmed.

Lambert, J.

The defendant was charged in the indictment with having, on September 15, 1890, stolen from the safe in the office of the Hotel Vendóme, located at the corner of Forty-first street and Broadway, in the city of New York, a box containing $12,808, four certificates of deposit of $1,000 each, and a gold watch, the property of one Bernard Sanders. The record before us indicates that it was on the trial and by counsel for defendant in his printed points admitted, that the box containing the prop-' erty enumerated was on the 15th day of September, 1890, stolen by some one, so the important inquiry is, whether the proof afforded by the circumstances developed on the trial is of sufficient probative force and so far conclusive against the defendant as to justify the jury in convicting the defendant of the crime. The evidence tended to show, without contradiction, that Sanders was and had been engaged in plying a trade or profession known as a bookmaker, and, as such, had in his possession from time to time considerable sums of money, which was kept by him in box and deposited at various times from the 17th of August up to the time of the commission of the larceny in the safe at the hotel for safe keeping, and that this fact was known to the defendant and others engaged in service as clerks and hall-boys of the hotel.

It appears from the evidence of the witnesses O’Brien and Matthews that the defendant, some two weeks prior to the time of the larceny, asserted his ability, from the opportunities afforded him from time to time, to take this box from the safe, and solicited the assistance of O’Brien to secrete it, and upon the refusal of O’Brien to aid him, went so far as to declare his intention to take it and of secreting the contents under the carpet. The defendant, as a witness in his own behalf, admits that he had the conversation testified to by these witnesses, so that the jury probably had no trouble in reaching the conclusion that the defendant, long before the property was stolen, knew that the box containing money was kept in the safe and realized the opportunities afforded from time to time to obtain possession of it, and that he not only possessed an inclination, but declared his ability and intention to do so.

It also appears, from the evidence in the case, that the clerk Whitman, after depositing the box in the safe remained at the counter of the hotel office until about noon of that day, and until relieved by the witness Cook, as clerk, and that up to that time the box had not been removed from the safe. The evidence of Cook is that he continued in the discharge 'of his duties as clerk until six o’clock in the evening, when he was relieved by the clerk Whitman, and that during this period of time the safe had not been opened except upon one occasion by himself to enable the proprietor, Plant, to take from the safe a book for inspection; that he did not see nor was his attention in any manner directed to the presence of the box in the safe. At six o’clock the clerk Whit-more relieved Cook, and continued in charge of the office until after midnight. Whitman testifies that it was the duty of the defendant to remain upon a settee about seven feet distant from the counter of the hotel office, when not serving the guests of the house or the directions of his superiors, and that about the hour of five minutes before eleven on that evening he (Whitman) walked out from behind the counter down towards the front door, looked out and walked back and spoke to one or two of the guests, and then went down stairs to the washroom, washed his hands and returned, being absent about five minutes; at the time he went down stairs the defendant was then sitting upon the settee ; but upon his return he was gone and remained absent about half an hour; that access to the office of the hotel was by means of a doorway or gate leading behind the counter, and that it was always open and was on the night in question.

From the evidence of Whitman the jury were permitted to infer that the opportunity anticipated, if not sought, occurred for the defendant to take unobserved the box from the safe, and the record before us fails to disclose any explanation by the defendant of his absence of about one-half hour immediately following such opportunity. The force of these circumstances connecting the defendant with the crime charged is made more apparent by the evidence of the clerk Whitman, that upon his return from the washroom he immediately discovered the loss of the box, taken in connection with the evidence of the witnesses, Cook and Plant, that the box had not been taken from the safe during the absence of Whitman, and permitted the inference that the defendant took the box from the safe during the time Whitman was in the washroom, and that his absence for half an hour thereafter was for the purpose of secreting the sanie.

The defendant made no attempt to explain the cause of his absence, or to give any excuse for his continued absence from duty at the time the evidence disclosed he was charged with the commission of the theft. It must have been manifest to the defendant, upon the presumption that the jury believed the evidence of the witness Whitman, that it was important for him, to exculpate himself from the force of these circumstances, that he explain the occasion of his absence, and for his failure so to do we may assume that the jury indulged in the assumption that he coulcl not without disclosing circumstances tending to connect him with the crime. The proof afforded by these circumstances was sufficient to place him under the obligation of proving where he was at this time, and for his failure so to do the jury were justified in adopting it as a criminating circumstance. Gordon v. The People, 33 N. Y., 501; 6 Hun, 516.

O’Brien testified that some two weeks before the theft the defendant stated to him that he would take it (the money) up-stairs and hide it under the carpet Hazen, a witness introduced upon the part of the People, who was an engineer in the hotel, testified that he made a search for the lost property and found the four certificates of deposit under the stair carpet between the second and third floors of the hotel. If the evidence of this witness is reliable, it probably was assumed by the jury that the party guilty of the theft placed these certificates under the carpet for the purpose of dispossessing himself of articles he could not use, and of leaving them in a situation that would cast suspicion upon others, and thereby relieve himself of the evidences of guilt. It would be a strange coincidence, upon any hypothesis except that of the guilt of the defendant, that the stolen property should be discovered in the place where the defendant declared he could hide it. Conceding that the jury believed the evidence of these two witnesses, the circumstances established thereby justify the inference of the execution of the declared intention to take the box in question. The finding of the certifiicates in the place where the defendant declared he could place the contents, together with his threat to commit the theft, the loss of the property, the opportunity afforded the defendant, his unexplained absence at the time of its loss, furnish not only sufficient but, to our minds, convincing proof of the guilt of the defendant, and that the verdict of the jury was justified upon the evidence in the case.

The defendant complains that the court committed an error in its charge to the jury as follows: “It is true, gentlemen, that the court of appeals in two cases reiterated the rule in reference to the nonproduction by the defendant of a witness, or witnesses, who are within his reach and whom he could produce, and which rule the assistant district attorney has called your attention to. The first case is that of Gordon v. The People, and the other case is that of Hovey v. The People. He has read to you from the decision of the court of appeals in both of those cases and you will apply the rule of law that he read from those decisions as to the fact, if it be a fact, that there are witnesses within the defendant’s reach whom he might have produced, if he had desired to do so.” By this reference of the trial judge he adopted the law of these two cases read by the district attorney as applicable to the facts as they might be found by the jury in this case. From the appeal book before us, it does not appear that all of the evidence and proceedings had upon the trial of this case is contained in the record; hence we are not advised of the facts present to which the rule of law was directed as a guidance to the jury in reaching a conclusion. There is nothing in the record from which an inference is permissible that the rule as stated misled or tended to mislead or confuse the jury.

There was no error committed, and the judgment of conviction should be affirmed, and the case remitted to the court of general sessions of the peace of Hew York county, for execution.