author: Peokham, J.: Bookiss, J.: Learned, P. J.

text:
    WALTER JENNERY, Respondent, v. AARON B. OLMSTEAD and WILLIAM H. CLEMENT, Appellants.

      Agreement for compensation for services, out of “ profits ’’ — meaning of that word.

    The defendant Olmstead having been elected president of a savings bank, a reso. lution was passed fixing his compensation, which resolution provided that he should “receive such sum or sums from the net profits of the institution as such profits, after paying all incidental expenses, may warrant, not exceeding $1,000 per annum.” During one of the years for which Olmstead claimed to be entitled to compensation, United States bonds held by the bank had increased in value, so that their market-price at the end of the year was greater than their cost price.

      Held, that as the bonds were not sold at the end of the year, nor their value then determined by agreement between the parties, the increase in their market-value was not a “profit” within the meaning of that term as used in the said resolution. (Learned, P. J., dissenting.)
    Appeal by^h'e defendants from a judgment for $952.06 damages and $113.16/osts against them and in favor of the plaintiff, entered in the Sarajdga county clerk’s office on the 6th day of October, 1883, upon the verdict of a jury.
    This action was brought upon a bond given by the defendant Olmstead as principal, and Clement as surety, to the Saratoga Savings Bank, conditioned for the faithful performance by Olmstead of his duties as president and general actuary of said bank. The Saratoga Savings Bank was an institution doing business at Saratoga Springs, incorporated under chapter 626 of the Laws of 1867. On the 19th day of August, 1867, the defendant Olmstead was elected president and general actuary of this bank, the resolution fixing his compensation providing “ that as compensation for his services in that /capacity he receive such sum or sums from the net profits of the institution as such profits, after paying all incidental expenses, may warrant, not to exceed $1,000 per annum.” On the day following Olmstead’s election he qualified by giving the bond upon which the action is brought, and entered upon his duties as such officer, and continued to act as such until January 11, 1873, and continued in charge of the bank until February 10, 1873. Previous to or on the 1st day of January, 1873, Olmstead drew out of the funds of t.,j .mu!; $931.85, which he charged to himself on that day as cash, and on the 10th day of February, 1873, the further sum of $424.99, also charged to himself on that day as cash.
    The action was once before tried, when the plaintiff recovered $1,038.88, with costs. This was affirmed by the General Term, but reversed by the Court of Appeals, that court holding, in opposition to the views of the Supreme Court, that although no provision was made in the contract of employment for annual rests, yet a reasonable construction of the resolution was, that if profits were earned in any one year, Olmstead was entitled to them as salary, irrespective of losses occurring in subsequent years of his administration; ■and that as tfyé trial court had found that • there was at one time during his service a surplus of $648.43, he was entitled, on the proof as it/then stood, to deduct that amount from any sum which it might lie found that he had subsequently taken. The Court of Appeals held further, that the $424.99 taken by Olmstead, February 10, 1873, could not be recovered in this action, for the reason that after January 14,1873, Olmstead’s relation to the bank was changed from that of president and general actuary, which offices he held when the bond was given, and became that of a mere custodian, and that any breach of duty in that capacity was not covered by the terms of the bone]/ Upon the trial it was conceded by the defendants that no profits were made by the bank in any year but 1869, and proof was offered by them to show that July 1, 1869, the bank had a surplus of $648.43.

      M. Hále and E. F. Bullard, for the appellants.

      E. T. Brackett, for the respondent.
   Peokham, J.:

The chief question in this case is whether the bank made any profits in the year 1869, from which, under the agreement between the parties, the salary of the president could be paid. The defendants contend that there were profits to the amount of $648.43, while the plaintiff claims that there were none. The method by which the sum above mentioned is arrived at is by taking the •difference between the purchase-price and the market value of certain government bonds then owned by the bank (the value of the bonds having in the meantime appreciated), and calling that appreciation in value profits. The method pursued by the plaintiff was to take the actual cost of the bonds, add to that tbe accrued interest on the coupons yet unpaid, and call the total the value of the bonds. JBy this means a difference in the value of the bonds-was made in the sum of $503, being that amount less than made by the defendants.

Both plans, it is perceived, take it as proper to obtain the value-of the bonds, although unsold, as a means of deciding upon the-profits. I agree to the correctness of neither -plan. It is not a proper way to ascertain the fact of profits to estimate the value of bonds yet unsold and upon finding the estimated value to exceed the price paid, to call the difference profits. It is not profits in any true sense of that term. If the bonds were actually sold at such price, the transaction would then be completed and the profits actually realized instead of merely estimated.

It does not appear that defendant’s counsel treats the method pursued by defendants as showing actual, realized profits, but he-terms them estimated profits, and argues that the contract meant estimated profits instead of actual realized profits, for otherwise he-claims that every piece of property of the bank would have to be-sold annually in order to determine whether profits were made,, which he very sensibly states would be absurd. The trouble with, this mode of reasoning lies in the confusion of property with profits. To take an inventory of all the property of the bank and to place a valuation on it, and from it to deduct its liabilities, is-perfectly proper in order to arrive at the financial standing of the-bank as to solvency, and if solvent, how much beyond it the institution may be deemed to be.

Here was a savings bank without capital stock, and with but one resource at first from which to obtain money, viz., deposits, upon which it must pay interest. The means of profit to it were simply the possibility of so investing these moneys as to obtain a greater-return for them than the bank was to pay by way of interest, and in a possible sale of securities or property purchased at a greater price than was paid for them or it. It could not have been contemplated by the parties to the contract that the president should have a right to demand the sale of any property at any particular time-for the mere reason that a sale would then result in a profit, and thus possibly insure him a salary, for that year.

The purchase and sale of stocks, as a business and for a profit, is not contemplated as pertaining to a savings bank; and in this case, by the very terms of the charter, only certain securities could be invested in, and could only be sold by the concurrence of a majority of the trustees. The investment in government bonds is-assumed to partake of the character of a permanent investment; and in order to determine the profits of the year it is not necessary either to sell the securities or to estimate their value. The profits-are, as I have said, the amount of money received by the bank from its investments, by way of interest, over and above the amount of interest it has to pay its depositors, ¡together with the amount of any money it had received by the"sale of property over and above-its cost to the bank. If such a sale had been made, then a profit had arisen, but if not, then no profit had accrued simply from the fact that the property, if sold, would have resulted in a profit. It-is as yet an uncompleted transaction, and with not the slightest right on the part of the president to demand its completion in order that he may earn his salary. As I -have said, such right could not have been contemplated by the parties to this contract; and in case-of non-sale, there exists no right to estimate what the profits would have been if the property had been sold and call that a profit made-in that year. Suppose the property were soon after sold at a loss,, the result would show that there had been no profit, but an actual loss, yet the president had received his salary on the basis of a profit. There is no reason, therefore, that I can see why the contract should be read as if it had said that the salary of the president-should be based upon the estimated profits of each year.

It is plain that the same rule does not obtain to the full extent in the case of a loss, for a loss may be sustained without a sale of the property. It may deteriorate permanently and plainly in value, or may be burned up or stolen. In brief, if anything happen by which the bank sustains plainly and permanently a depreciation in, or total obliteration of, the value of property, such depreciation or obliteration must be regarded as a loss sustained, and such loss must be deducted from the profits before a net profit can be arrived at. This is wholly distinct from adding a possible profit 'by the sale of property, if then sold, to the actual realized profits otherwise made, and at the same time keeping the property.

In the one case property has been permanently depreciated in value, or actually destroyed, and the amount of such depreciation or destruction is an actual realized loss, while in the other it is simply a fact that if the property were then sold a profit would be made, but as it is not, non constat that when sold a loss may not be met with.

It is claimed that profits are substantially realized by this appreciation in the value of government bonds, if the bonds are unsold, just as much as if they were sold. If unsold, it is said that the value of the bond is as well known by a simple reference to the reports of the stock market as it would be by an actual sale, and that if sold, all that is got in exchange is another article, whose value may also fluctuate from time to time, and hence there is no sense in demanding an actual sale of the bond before asserting a realization of a profit. Nevertheless the bond unsold is only called worth so many dollars, according to the market price thereof, whereas the bond when sold has actually brought so many dollars, and these dollars are in money, which is a standard of value, made so by law, and that money is now on hand.

It can now be determinéd as a fact whether a profit had been made, notwithstanding the other fact that in long periods of time the standard of value itself varies in its own intrinsic value. I therefore, in order to see what profits were made in the year 1869, reject wholly from the account the appreciation in the market price of the government bonds on the day the balance was struck. That appreciation was the sum of $648.43, and without that there was no profit.

The court erred, therefore, in leaving it to the jury to say whether there were profits in 1869 or not. The error did not harm the defendants, for the judge should have decided, as matter of law, that there were no profits, at least so far as this bond transaction was concerned. t ■> *

. The Court of Appeals has only-^held that as it appeared there were profits in 1869, the President was entitled to take his salary for that year out of them. The question now discussed has not been in any way passed upon by that court. The evidence in the case is, that when the term of service of the president expired, in looking over the books it appeared that the assets of the bank were less than its liabilities by $931.85, and more than that sum the defendant Olmstead had drawn for himself. Prima facie it would appear as if the bond he gave had been violated by his drawing money under such circumstances, when to draw it left the bank insolvent. He therefore attempted to explain it. One explanation was that this deficit only appeared by striking out this estimated profit by the appreciation in government bonds, and taking the method adopted on the part of the plaintiff relative to that subject and above described. But we hold such item ought to be struck out, and the defendant shows no justification thereby in drawing from the bank the amount above stated. As to the other amounts claimed they seemed to have been submitted to the jury fairly by the judge, and I do not see that from the testimony there was any such question in regard thereto as to show any error on the part of the judge by such submission. The condition of the bond signed by the defendants was that Mr, Olmstead should well, truly, honestly and faithfully ” perform his duties as actuary, etc.

The defendants claim no breach of the bond had been proved, because at most the drafts made bydefendant Olmstead were made by reason of a mistaken construction on his part of his rights under the contract, and that there was no dishonesty or fraud in the matter.

His bond held him to a faithful performance of his duties. It surely cannot be said that he faithfully performed them when he took moneys which he had no right to take, although he took them under a mistaken belief that he had such right. It is not a mistake in bookkeeping, or in figures, or any other mere mistake resulting in his doing what he did not intend to do. He intended the very act he did, viz.: the drawing of this money, although by reason of his erroneous construction of the law he thought he was entitled so to do. In so doing he did not faithfully perform his duties. He may have thought he did, and he may have intended to, but the fact remains that he did not, and his failure resulted, as I have said, from no mistake which would in law ©perate as an excuse.

If, upon consultation with the trustees, there had been a mutual agreement as to the value of the property, and that it need not be sold, but an amount agreed upon as profits without such sale, then the defendant might have drawn the amount provided it did not exceed $1,000. No such case is here presented. But in regard to the Dorner lot this method seems to have obtained. This court, upon a former appeal, decided in regard to that matter, and it must be regarded as a final disposition of the question so far as we are concerned.

It may have been erroneous to call a witness on the stand and ask him what the books prove as to any disputed fact. But the only issue as to what the books showed was not regarding their contents. All agreed as to that. It was only as to how to treat the value of these bonds. And that question was fully discussed and no mistake made as to the contents of the books by either side.

Upon certain facts, substantially undisputed, the simple question was whether profits had or had not been made, and nothing in the books obscured or threw light upon that question, which was not fully known and discussed by both sides. Under these circumstances no harm was done in allowing the general question.

I think there were no errors upon the trial which resulted in any injury to defendants, and the judgment should be affirmed, with costs.

Bookiss, J.:

I concur for affirmance. I do not think, there is any error in the record of which the defendants can complain.

Learned, P. J.

(dissenting):

The contract between the bank and Olmstead was that, in compensation for his services, he should receive such sum or sums from the net profits of the institution as such profits, after paying all incidental expenses, may warrant, not exceeding $1,000 per annum.”

When the case was before this court on a former appeal, the court thought that, in estimating these profits, the whole period of five years, during which Olmstead was in the employment of the bank, should be taken into account without making annual rests, and reducing the profits of one year by the losses of a subsequent year. It was, however, held by the Court of Appeals (90 N. Y., 363) that this was not the true construction of the contract; that the contract was to pay the sum of $1,000 in annual payments out of the profits of the preceding year if earned; ” that if profits were earned he was entitled to be paid, and the bank could not charge against the profits of one year the losses of a succeeding year.” The decision necessarily implies two things: First. That the profits of each year can be, and should be, determined at its end. Second. That when so determined they are not to be affected (as to this contract) by subsequent losses.

Now, as this institution was a savings bank, the duty of which was to invest its money, and keep it invested in securities, it is not to be supposed that the parties to the contract contemplated a sale every year of the securities of the bank, in order to determine what the profits of, the year had been. It must have been contemplated that, without any such sale, the parties could annually ascertain how much the nets profits of the year had been.

Without making such a sale, there is no way of determining the -amount of profits except by a comparison of the assets with the liabilities. And it seems to be agreed upon, on both sides, that such a comparison was proper and necessary, in order to carry out the contract as interpreted by the Court of Appeals. For it must be noticed that the question is one under the contract ¡ that is how, wnder the contract, is it to be ascertained whether the net profits in .any given year warrant ” Olmstead’s receipt of any salary ? By using the word warrant ” the parties meant that the payment of Olmstead’s annual compensation should not reduce, at the time of . payment, the assets below the liabilities. The only way to determine what the net profits would warrant,” at the end of any year, was to ascertain the value of the assets and to deduct therefrom the liabilities. This would show the total net profits. Deducting from that sum the net profits of the preceding year (if any remained after paying Olmstead), the residue would be the net profits of the year in question.

Olmstead was appointed August 19, 1867. We judge that nothing was shown as to the profits of the first year.

On July 1, 1869, there is a statement which shows an excess of assets over liabilities of $648.48. The Court of Appeals say that there is no evidence that any of this was lost before August 20, 1869. It does not appear how much of this was made in 1868 and how much in 1869. But it is assumed by the Court of Appeals, and by the learned justice at the circuit, that this sum is to be taken as the net profits of the year ending August 20,1869 ; unless errors or improper calculation should be shown, as hereafter mentioned.

Now, in regard to this statement, the important question arises as follows: Among the assets were $6,000' in United States six per cent bonds. They cost $6,540, according to the statement. They were inventoried in the statement at their market value at that time, viz., $7,170. The plaintiff claims (in order to deprive Olmstead of part of his compensation for that year), that the bonds should be estimated thus :

Cost of bonds....................................$6,420 28

Accrued coupons, $180 gold, worth................. 246 15-

Total....................................... $6,666 48

JBy this estimate the value of the bonds is reduced by $503.57, and, of course, the net profits are reduced by the same sum.

The plaintiff admits that the net profits are to be ascertained by • a comparison of assets with liabilities, but he insists that in making that comparison the bonds should be estimated at just what they cost. Suppose, however, that the bonds, since their purchase, had depreciated to fifty per cent of their cost, would it have been just to estimate them still at cost and to' allow Mr. Olmstead compensation on that basis ? This would be to pay him a salary out of supposed net profits, when, in fact, the bank might not be able to. pay its liabilities. A depreciation in market value is no more real than an increase in market value. If these bonds had fallen to fifty per cent in the market, Olmstead could not have had them estimated in the statement at the cost price. ' ’ '

The Court of Appeals have distinctly said that the bank, under this contract, cannot charge against the profits of one year the losses of a succeeding year. They must have anticipated the suggestion made by the plaintiff’s counsel, viz., that the bonds might subsequently depreciate, so that in the end there would be in this invest- • ment no profits. And they have said that the subsequent losses shall not, under the contract, take away the right to compensation.

If the net profits are to be determined (as the plaintiff admits) by deducting liabilities from assets, why should the bonds be estimated at what they cost ? The question is, what are the net profits of the institution;” and those are determined by finding out how-much more it has than it owes. Suppose Olmstead, on the 20th of August, 1869, had sold these United States bonds; he would have received for them $7,170. And the plaintiff admits that in that case the net profits of the institution would on that day have been just what Olmstead now claims them to have been. Then suppose that the next day Olmstead had bought the same amount of bonds for $7,170. The bank would then be in precisely the same con- *' dition in which it actually was without any such sale and purchase. It could not be denied that if he had done this “ the net profits of the institution ” would have been $648.43. Is it a sound construction of the contract to say that by such a sale and purchase he would have become entitled to compensation to which he is not entitled?

We must remember that the question is only as to a mode of determining compensation for services. Are not Olmstead’s services shown to be valuable when .an investment 'which he made has increased in value ? Does not the actual condition of the bank at the end of each year furnish the basis to which the parties, had reference in their contract ? What difference whether the assets of the bank are in cash on hand or in investments 1 The point is, how much are the assets ?

As to the Dorner lot, the resolution is not very clear. The learned justice was right in holding that the parties could agree as to its value for the purpose of estimating profits, and was also right in holding that the resolution did not have the effect of such an agreement.

But it may be remarked that if an agreement between the trustees and Olmstead as to the value of property would be material in determining net profits without any sale, it would seem that proof of actual value would be equally effectual.

Another point which has not been argued may be suggested. In estimating net profits the plaintiff deducts the dividends paid to the depositors. The bank could declare such rate of dividend as it chose. If these dividends were to be deducted in order to determine the net profits, it would seem that under this construction the bank might make dividends which would consume all the profits and leave nothing with which to compensate Mr! Olmstead.

I think the defendant was entitled to have the bonds estimated at market value. This would make a difference in defendant’s favor of $503.57. If plaintiff stipulates to deduct that I think judgment should be affirmed; otherwise, reversed. 5 „ ,

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Bookes, J.:

license: Public Domain

text:
    KATE DATER and FRANK WILLSON, Appellants, v. M. JOSIE WILLSON, FANNIE J. WILLSON, WILLIAM C. D. WILLSON, ANNIE J. DATER, M. FRANK DATER and ALBERT C. COMSTOCK, Respondents.

      Probate of a will — only presumptive evidence of its validity so far as it affects real estate — an estoppel — it does not apply unless a party will be injured by the withdrawal of the former statement — waiver — not effective unless made with knowledge of rights.

    This action was brought by the plaintiffs, the only heirs-at-law of one Freiot, to recover certain real estate owned by her, in hostility to the provisions of what purported to be her will. By the alleged will the real property was devised to an executor, to apply one-half of the income thereof to the support of one of the plaintiffs for her life, the other half to the support of the other plaintiff. Upon their respective deaths the one-half of the estate so held for each was given to her children, all of whom were made defendants to this action, some of them being infants. After the decease of the testator the plaintiffs presented to the surrogate their verified petition describing themselves as legatees and praying for the probate of the will; the subscribing witnesses having been produced by them and proved the due execution of the will, it was admitted to probate, and the defendant Comstock, a creditor, was appointed administrator with the will annexed, the executor and trustee named therein having renounced. Subsequantly, upon the plaintiffs’ petition, Comstock was appointed trustee by the Supreme Court and entered upon the discharge of the duties of his office.
    The plaintiffs were present when the will was executed, well knew of its conditions and all the facts and circumstances connected with its production and proof before the surrogate; as to all things done by them they acted in good faith. Having subsequently related to Comstock what had been said and done at the time of the execution of the instrument, and being informed by him that, in his opinion, if the facts were as detailed, the will was worthless, they brought this action to recover the real estate. The referee found that they were estopped from questioning the validity of the will.

      Held, that this was error.
    That they were not estopped by the decree admitting the will to probate, as such decree was but presumptive evidence of the validity of the will in so far as it affected real estate, nor did the fact that the probate was procured on their application at all affect the question as to its conclusiveness.
    That they were not concluded by the order appointing Comstock as trustee to carry out the provisions of the will, as it adjudicated nothing as to the validity of that instrument.
    That they did not by their conduct waive their right to claim in hostility to the provisions of the will, as they were ignorant of their rights at the times referred to.
    That there was no estoppel by deed, as assuming that the will should be treated as such, its validity was assailed.
    That there was no estoppel in pais, as it did not appear that' any person had been induced, by their conduct, to so act as that he would be injured by the allowance of their present claim.
    Appeal from a judgment, dismissing tbe complaint, entered upon the report of a referee.

      James Lansing, for the appellants.

      Eugene Hyatt, for Comstock, respondent.

      King c& Rhodes, for La Mott W. Rhodes, guardian ad litem of infant defendants, respondent.
   Bookes, J.:

This is an appeal from a judgment directed by a referee dismissing the complaint, with costs.

The action was for the recovery of real property, brought by the plaintiffs, who were the children and only heirs-at-law of Hannah M Freiot, who died in August, 1881, seized of the premises in question. The claim of the plaintiffs is in hostility to the provisions of an instrument purporting to be the last will and testament of Mrs. Freiot, by the terms of which all her real property was devised to her executor therein named, in trust, to apply one-half the income therefrom to the support of her daughter, the plaintiff, Frank Willson, and her children, during her life, and on her decease the one-half of the property to go to her children; and to apply the remaining half of the income to the support of the plaintiff Kate Dater and her children, during her life, and on her decease the other half of the property to go to her children. The defendants M. Josie Willson, Fannie J. Willson and William C. D. Willson, are the children of the plaintiff Frank Willson; and the defendants Annie J. Dater and Frank Dater, are the children of the plaintiff Kate Dater; all of whom are minors except M. Josie Willson. The defendant Comstock has been appointed administrator and trustee under the will, the executor and trustee therein named having renounced.

The referee found the facts of the case as follows: that soon after the decease of Mrs. Freiot the plaintiffs presented to the surrogate their verified petition, describing themselves as legatees named in the will, and praying for its probate; that they produced the subscribing witnesses before the surrogate, proved the due execution of the instrument, and it was thereupon admitted to probate as a will of real and personal property ; that the executor and trustee therein named having renounced, on the application of the defendant Comstock, as creditor, and of the plaintiffs, he was appointed administrator, with the will annexed; that soon thereafter the plaintiffs presented their verified petition to the Supreme Court praying for the appointment of M. Comstock as trustee for the purpose of carrying out and executing the trusts declared in the will, and he was thereupon appointed such trustee and entered upon the discharge of his duties as administrator and trustee, and took possession of the property, real and personal, belonging to the estate, and has continued to hold and manage the same with the consent and approbation of the plaintiffs; that the plaintiffs were present when the will was executed ; well knew of its conditions and all the facts and circumstances connected with its production and proof before the surrogate; that the plaintiffs, as to all things done by them, acted in good faith, and that prior to the commencement of the action they related to Mr. Comstock what had been said and done at the time of the execution of the instrument, and were thereupon informed by him that, in his opinion, if the facts were as detailed, the will was worthless, and that they afterwards sought the advice of counsel and brought this action. As a conclusion of law the referee found that the plaintiffs were estopped from questioning the validity of the will, and declined otherwise to consider the ease. The only question brought before the court on the appeal is, therefore, as to such estoppel.

The respondents’ counsel insist, in the first place, that there was here an absolute estoppel of record ; that the plaintiffs were, on the facts found, absolutely concluded by the decree of the surrogate admitting the instrument to probate as the last will and testament •of Mrs Freiot. It is not to be disputed, of course, that, in general and in the absence of a statute affecting the subject, the judgment •of a court having jurisdiction of the parties and. of the subject-matter is conclusive between them as to all things determined by it. 'The judgment in such case imports absolute verity and closes finally .all matters embraced in the adjudication. This doctrine of the law is too familiar to require citation of authorities in its support. But under our statutes the probate of a will before the surrogate, in so far as real property is affected by it, is but prima facie or presumptive evidence of its validity. (2 R. S., 60; Code of Civil Pro., §§ 2626, 2627; Matter of Kellum, 50 N. Y., 298 ; Bogardus v. Clark, 4 Paige, 623; Bailey v. Hilton, 14 Hun, 3, on p. 7; Matter of Gouraud, 95 N. Y., 256.) In the Matter of Kellum, Judge Rap allo remarked as follows: “A will may be proved at one and the same time both as a will of real and personal property. The effect of the probate differs, however, as to each class of property. As to the real estate, the probate is not conclusive either as to the validity or due execution of the will. These questions may be litigated whenever rights to real estate claimed under the will, .are controverted.” So Judge Earl says in Matter of Gouraud: “ The probate of such a will ” (a will of real estate) “ is never conclusive ; and whenever title to real estate is attempted to be made under it, its validity may be resisted on precisely the same grounds that were litigated when it was admitted to probate, or upon any other grounds ” Nor has the law in this regard been at all changed by the Code. It was said in the last case cited that sections 2626 and 2627 give substantially the same effect to the probate of wills of real and of personal property as was provided in the Revised Statutes.” (P. 261.) Nor does the fact that the probate was procured on the application and through the direct agency of the plaintiffs at all effect the question as to the absolute conclusiveness of the probate. Their action did not enlarge the power of the surrogate in the premises, did not make bis adjudication anything different on the question of its conclusiveness as a record, than it would have been had the proceeding to prove the will been instituted and conducted by some other party. The decree, by whomsoever obtained, remained under the law but presumptive evidence of what it declared in so far as real property was affected by it. Nor were the plaintiffs corfcluded by the order appointing Mr. Comstock as trustee to carry out the provisions of the will. This order adjudicated nothing as to the validity of the instrument. An adjudication concludes parties only as to the points embraced in it. Again, it is suggested that the plaintiffs, by their conduct, waived their right to make claim against the provisions of the will. But a waiver presupposes knowledge of an existing right and an intention to abandon or surrender it. The facts here disclosed do not, as we think, admit of an application of the doctrine of waiver to the plaintiffs’ case; It is further urged that the plaintiffs are estopped by deed; that is, as we understand the counsel, that the will purporting to be formally and'duly executed, should have the effect of a conveyance by Mrs. Freiot, hence should. conclude the plaintiffs as privies in estate. But an estoppel by deed has its origin in a valid grant as against the grantor. Here the validity of the instrument is assailed. Its legal existence is denied. Until this question is settled it affords no basis on which an estoppel can be predicated.

The question still remains whether an equitable estoppel — an estoppel in pais — was established in bar of the plaintiffs’ claim. The law of estoppel in pais and the principle on which it is based are fully and clearly stated by Judge Bronson in Dezell v. Odell (3 Hill, 215). The learned judge there says that “when a party either by his declaration or conduct, has induced a third person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission, if the consequence would be to work an injury to such third person or to some one claiming under him. But as this doctrine may have the effect of shutting out the truth, and as the evidence upon which the estoppel arises is not always of the most satisfactory character, too much care cannot be taken in the administration of the rule to see that it is not allowed to work injustice. Before the party is concluded, it must appear (1) that he has made an admission which is clearly inconsistent with the evidence he proposes to give, or the title or claim which he proposes to set up; (2) that the other party has acted upon the admission^ and (3) that he will be injured by allowing the truth of the admission to be disproved.” This doctrine of the law has been repeatedly stated in many other cases, but nowhere, perhaps, more clearly and tersely in its entirety than by Judge Bronson in the above extract. Admitting the fact that the plaintiffs’ statements and conduct in procuring probate of the will, and in obtaining the appointment of Mr. Comstock as administrator and trustee, were inconsistent with or in hostility to their present claim, how did this influence the action of the defendants or of either of them to their injury, in case the plaintiffs shall be permitted to gainsay their former action ? Indeed, have the plaintiffs’ children, in fact, taken any action on the faith of the plaintiffs’ statements and conduct ? Did they part, or ha,ve they parted with any property or right, or incurred any liability because of them? It is said that they acquired rights because of the plaintiffs’ action not before possessed by them which it is proposed to take away. This does not answer the requirements of their case. The question is this, were the defendants influenced in obtaining those rights by the plaintiffs’ action and conduct ? Were their rights acquired under such influence ? Judge Allen says, in Finnegan v. Carraher (47 N. Y., 500), “ they ” (the declarations), “ must be intended or calculated to influence the conduct of the party to whom they are made; and they must have, in truth, influenced his cond/uct in a manner by which he will be prejudiced if the party making them is allowed to retract.” How the plaintiffs’ children have been influenced in their action, as regards the matter in controversy by the plaintiff’s conduct is not apparent, yet such influence constituted the foundation of their defense. We conclude that an estoppel was not here established in favor of. the plaintiffs’ children, nor do we think any was established in favor of Mr. Comstock. All that can be claimed in his behalf is that, through the plaintiffs’ proceedings, he has been made administrator and trustee. He acquired by his appointment no personal rights in himself. His rights are but representative, such as the law has clothed him with for the benefit of others. As administrator and trustee he has no vested future rights in the subject of the suit. As is well said by counsel, the taking from him of his position as administrator and trustee will not deprive him of any pecuniary right which has accrued to him. He will be allowed all he is justly entitled to when called upon to account. If the above conclusions be sound, the judgment awarded on the ground that the plaintiffs’ action was barred by an estoppel must be reversed.

Judgment reversed, new trial granted, costs to abide the event, and referee discharged.

Present — Learned, P. J., Landon and Bocees, JJ.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author: "Bockks, J.: Landon, J.:

text:
    ALICE VAN WAGONER, Respondent, v. THE NEW YORK CEMENT COMPANY, Appellant.

      Xkidence — when expert testimony as to the injury caused, to the ma/rlcet value of a horse by its having run away is inadmissible — how the injury should be proved.

    Upon the trial of this action, brought to recover damages alleged to have been sustained by the plaintiff’s horse and wagon, by reason of the defendant’s negligence, witnesses called by the plaintiff were allowed, against the defendant’s objection and exception, to testify as to the effect upon the value of a kind and gentle horse of having ran away, while being driven along the road, by reason of its being run into by a car crossing the road on a tramway, and its having run a quarter of a mile before being stopped; such witnesses testified that it would reduce the market value of a horse fifty per cent, though it should not run away for years afterwards.

      Held, that the court erred in admitting the evidence.
    The proper mode of reaching the amount of injury to the market value of a horse, because of its running away, without being wounded or physically injured, is to prove the habits of the animal before the occurrence, the circumstances attending it and how the particular horse was then and afterwards affected by it; also the description of the horse and its value prior to the runaway. These ' facts should he laid before the jury, and the question of damages left to them for determination.
    Appeal from a judgment of the County Court of Ulster county, entered upon the verdict of a jury in favor of the plaintiff, and from an order denying a motion for a new trial made upon the judge’s minutes.

      F. L. Westbrook, for the appellant.

      Howard Ohipp, Jr., for the respondent.
   "Bockks, J.:

This is an appeal by the defendant from the judgment of the ■County Court of Ulster county, rendered on the verdict of a jury ; ■and also from an order denying a motion for a new trial on- the judge’s minutes.

The action was brought to recover damages alleged to have been caused to the plaintiff’s horse and wagon, through the defendant’s negligence.

The defendant’s business was the manufacture of cement for market, its mill standing on the west of the-public highway, and its store-house on the opposite or east side. The cement, being put in barrels at the mill, was taken to the store-house on platform cars by means of a tramway. At the time of the injury complained of the defendant’s servants were taking a car-load of cement upon the tramway from the mill across the highway to the store-house, when the plaintiff's husband was driving her horse with a wagon along the highway. The loaded car and the horse and wagon reached the •crossing simultaneously, or nearly so, when the horse sprang over the car, ran away, and both horse and wagon, as was claimed, were greatly injured.

The first point urged as error is that the plaintiff failed to make a case for the jury on the proof and should have been nonsuited. "We conclude otherwise. All the circumstances attending the occurrence — the manner in which the loaded car was handled, whether or not entirely manageable; also, whether due care was ■exercised by the driver of the horse to avoid accident — were laid before the jury and it was for them to determine therefrom the •question of negligence as to the defendant; as also, whether there was negligence which contributed to the injury chargeable to the plaintiff. These subjects were, as we think, for the jury on all the proof; and the case seems to have been sent to the jury under correct instructions by the court as to the law applicable to it. 'The motion for nonsuit was properly denied.

The difficulty in the case grows out of what is claimed to be the •erroneous admission of evidence. The witness Shader testified that he knew the horse in question; had bought and sold horses; was somewhat acquainted with the value of horses; and should judge this one to be worth from $250 to $300. lie also testified that from his experience with horses, the fact that a horse had run away would have a bearing upon its market value. The question was then put to him: “ Suppose a mare was worth $250, and should be driven along a road and be run into by a cement car, the wagon broken and the mare should run up the road for a quarter of a mile and be stopped, what would you consider her worth after such a runaway ? ” Being allowed to answer against objection, the witness replied: “ That would depend a good deal upon how she was scared or hurt; it might have been thoroughly scared and be worth half the value; a horse may run away without being frightened. Q. Suppose a horse has run away and been badly frightened ? A. If a horse is badly frightened she might not be-worth half the value.” The witness Dolson was examined and testified much the same as did Shader, fixing the value of the mare before the runaway at $200. A question similar to that put to Shader, above set out, was then put to this witness, having this difference, however, that the question was directed to “this mare,” the one in question, instead of to “ a mare.” The witness was-allowed to answer : “ I would not want to give over seventy-five dollars for her; I put her value at seventy-five dollars.” On his cross-examination the witness said: “ I have never known of horses that have run away once and never again ; I do not know how much it would affect the value of a horse if it had run away once and never run away but that once.” A motion to strike out tho evidence of this witness bearing on the question of damages because of the runaway, was denied and exception was entered. The witness Sparling testified that he had bought and sold horses; was acquainted with the value of horses and the elements that go to make up the value of horses ; and that he should think the fact of a horse having run away had a bearing upon its market value.. This question was then put to him: “ Suppose a mare, nine years old, kind and gentle,, should be driven along the road and be run into by a cement car, which broke the wagon, and the mare should run away and run a quarter of a mile before being stopped, would that have a bearing upon its market value ? ” He was allowed to-answer as follows: “ It would affect the market value one-half or more if she ran away but once and never for years afterwards ran away again.” It does not appear that this witness knew or ever saw the mare in question. We think this line of examination touching the alleged damage to the horse because of the'runaway plainly inadmissible. It was laid down in Morehouse v. Mathews (2 N. Y., 514), that it is not, in general, competent for witnesses to state opinions, or conclusions from facts, whether such facts are known to them or derived from the testimony of others that the exceptions to this rule are confined to questions of science, skill, trade and a few others of the same nature. The cases also include among the exceptions questions of the value of property. This subject has been examined in very many cases since the decision in Morehouse v. Mathews, but nowhere, perhaps, has it been considered with greater clearness and precision than by Judge Selden in De Witt v. Barly (17 N. Y., 340). In a case involving matters-of skill or science, the question is one as to expert evidence. Not entirely so, however, in a case involving the value of property merely. The principle abstracted from the opinion in Westlake v. The St. Lawrence County Mutual Insurance Company (14 Barb., 206) was to the effect that the opinion of a witness in respect to-the value of property, which he has never seen, is not admissible. This would exclude hypothetical questions, such as were permitted in this case. As bearing upon this point, the remark of Judge Selden in De Witt v. Barly (above cited) has peculiar force. He says by way of illustration: “ Two sleds may be made of the same materials and the same dimensions, and the value of one be three times that of the other; as two horses may have legs of the same length, heads of the same size, and hair of the same color, and yet be widely different in value.” In Jay v. Hopkins (5 Denio, 84) the action was for breach of warranty on the sale of a cow. A witness was allowed to state what the cow would have been worth if “good and young;” but this was held'to be inadmissible, because, as stated in the opinion of the court, “ the question was what that cow, which the witness had seen and knew, was worth, giving four quarts of milk; and not what an imaginary animal giving that quantity would be worth.” The line of argument in Clark v. Baird (9 N. Y., 183) is against the allowance of hypothetical questions to witnesses as to the value of property which they have never seen and of which they knew nothing. In closing his opinion in this case, Judge Johnson seems to limit the rule •which allows such questions to cases of inquiry as to scientific opinion by skilled experts, in which case the witness need know nothing, of his own knowledge, as to the facts of the particular case. To the same effect is the conclusion of the same learned judge in Harpending v. Shoemaker (37 Barb., 270). (See, also, Terpenning v. The Corn Exch. Ins. Co., 43 N. Y., 279 ; and Schermerhorn v. Tyler, 11 Hun, 549.) As to the question put to Shader, it was directed to “a mare,” that is, any mare worth $250. He answered that, if thoroughly scared, the animal might after the runaway be worth one-half its former value. Such is the purport of his evidence. The question to Dolson was directed to the mare in question, which he thought worth $200 before the runaway. He put her value after the runaway at seventy-five dollars, but he put it at that sum on the hypothesis she was run into by a •car of cement and ran. a quarter of a mile without being stopped. He did not pretend to know how the runaway had, in fact, affected this animal, nor was his answer based on any information from other witnesses in that regard. He also testified that he did not know how much the value of a horse would be affected by one runaway in case it never ran away again. The witness was not shown to be competent to speak upon the subject as to which he testified, and the motion to strike out his evidence should have been granted. The question put to Sparling, and his response to it, was more objectionable, if possible, than in the case of the other two witnesses above adverted to. It did not appear that he had ever seen the mare in question. He was inquired of as to a mare ” (any mare) nine years old, kind and gentle. He fixed a kind of per ceutage as an estimate of injury to all such mares that ran away once, and never again for years afterwards; that is, that such runaway would injure the market value of the animal to the extent of fifty per cent. Now, Shrader spoke intelligently, when he said that the injury to a horse from a runaway would depend upon how greatly the animal was scared or hurt by it; that a horse might runaway without being frightened. It is manifest to every person of observation that a runaway does not affect all horses alike as regards their future safety in use. One would be a dangerous animal to use during all its future life ; while another would be affected by it but slightly, if at all. The injury from such a cause will depend much on the disposition and temperament of the animal, and as tlie witness stated, how thoroughly it was frightened. So, it is apparent that the mode of reaching the amount of injury in its market value to a horse because of its running away, without wounding or physical injury to it, on a trial involving that question, must be to prove the habits of the animal before the occurrence, the circumstances attending it, and bow the particular horse was then and afterwards affected by it; also a description of the horse and its value prior to the runaway. These are facts to be established by proof, and when laid before the jury the question of damage byway of injury to the animal is for the jury to determine. In this case there was no question of science, skill or learning involved to make the evidence objected to admissible. (See recent case of Ferguson v. Hubbell, 97 N. Y., 507.) Such is rarely the case in determining questions of mere value. As said by Judge Selden in DeWiit v. Barly-: “ In some cases to form a correct judgment as to value would require a knowledge of some branch of science, or of some particular art or trade; while in others no such knowledge would be necessary; for instance, the value of precious stones could only accurately be judged of by a lapidary; of drugs and medicines by a druggist; while to assess the value of a horse, a cow, or an article of household furniture, would require no such peculiar skill.”

In the case in hand there was no subject of art, science or skill involved, making hypothetical questions, or the opinion of witnesses admissible. (Ferguson v. Hubbell, supra.) The cases cited by the learned counsel for the respondent (Filer v. N. Y. C. R. R. Co., 49 N. Y., 42; Cowley v. The People, 83 id., 464; Dilleber v. Ins. Co., 87 id., 79) involved the subject of expert evidence in its strict sense; therefore, they are not here in point. In Stearns v. Field (90 N. Y., 640) the court was careful to say that neither the competency of the witness nor the mode of proof was disputed. So the question here under consideration was not in that case. The case of Whiton v. Snyder (88 N. Y., 299) comes nearer the case in hand. There it was held to be competent for a dealer in clocks to speak of the value of a clock he had never seen, basing his opinion on a description of the article given by another witness. But this does not reach the case of a horse, to describe which accurately and perfectly in language is impossible: It must be seen to be appreciated and valued. Its form, style, movements, disposition, and temperament — knowledge of all which can only be obtained by actual inspection and observation of the particular animal — enter into the subject and constitute grounds for' an intelligent judgment or opinion of its value. This, however, does not touch the question as to the admissibility of expert evidence bearing on the amount or extent of injury to the animal from having at some time run away without causing any wound or perceptible physical injury to it. The subject of injury in such a case is for the jury on the facts proved in its entirety, as well as to the fact of injury, as also to the damages resulting from it. No question of science or skill is then involved making expert evidence admissible. On this subject the reasoning of the court in Ferguson v. Hubbell (supra) is entirely conclusive. The learned judge there says that the opinions of experts cannot be received when the inquiry is into a subject, the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it;” and further, “to warrant its introduction the subject of the inquiry must be one relating to some trade, profession, science or art, in which persons instructed therein by study or experience may be supposed to have more skill and knowledge than jurors of average intelligence may be presumed generally to have;” and it is added “the jurors may have less skill and experience than the witnesses, and yet have enough to draw their own conclusions and do justice between the parties.” We are of the opinion that the questions above referred to, with the evidence given in response to them, were improperly admitted. For this reason, without examining other questions urged upon our consideration, there must be a new trial.

Judgment and order appealed from reversed, new trial granted,, costs to abide the event.

Landon, J.:

How much this mare was injured in value by the runaway in question was best known to those who knew and had observed the mare both before and after the occurrence. Not to call such persons was possibly to suppress an easily obtainable truth. To call persons who had not had the opportunity of such observation, and to take their opinions as to possible damages, was to give the plainT tiff an opportunity to recover for supposed injuries which possibly were never sustained. For these reasons, as well as for those ■adduced by my brother Bookes, I concur for reversal.

Present — Learned, P. J., Landon and Bookes, JJ.

Judgment reversed, new trial granted, costs to abide event.


author: Landon, J.:

text:
    DANIEL S. COONLEY, Respondent, v. ELIJAH W. WOOD, Appellant.

      -Joint and several makers of note — the satisfaction of a judgment recovered against one discharges the other.

    The payees of a joint and several note made by the defendant and Smith Wood, having transferred the same to the firm of Coonley & Smith, the latter brought an action thereon against both makers, but the summons was served upon and a judgment, by default, entered against Smith Wood only. Subsequently Smith Wood transferred a mare to the said firm, and the same was received by it “ in satisfaction of judgment against him only.”
    Thereafter the said firm having sold the mare for fifty-five dollars, brought this action against the defendant to recover the residue of the note.
    ' Held, that the acceptance of the mare in satisfaction of the judgment against Smith Wood, released the defendant from all further liability therein.
    ■ Appeal from a judgment in favor of the plaintiff, entered upon report of a referee.
    The defendant and Smith Wood made and delivered to the payees thereof the following note:
    $80. Altona, Oct. 18, 1878.
    For value received, I promise to pay Baker & Wood eighty ■dollars at Altona express office, with use, January 1, 1880.
    E. W. WOOD.
    SMITH WOOD.
    The payees transferred the note to Coonley & Smith. After its maturity they brought an action in this court against both makers, but served the summons upon Smith Wood only, and entered judgment upon his default against him only. Supplementary proceedings for the collection of the judgment were instituted against-Smith Wood, pending which he transferred to the plaintiffs a mare in satisfaction of the judgment against himself. The plaintiffs received the mare and indorsed upon the note this memorandum : “[Received of Smith Wood one bay mare, in satisfaction of judgment against him only; ” and afterwards sent him a receipt to the same effect. Plaintiffs in that action sold the mare for fifty-five dollars, and claiming that to that extent only was the judgment reduced, the present plaintiff, as survivor of Coonley & Smith, brought this action against this defendant and recovered the judgment from which this appeal is taken.

      Gilbert da Hellas, for the appellant.

      Albert Hobbs, for the respondent.
   Landon, J.:

The Code of Civil Procedure (§ 456) provides, where a summons issued against two or more defendants, alleged to be severally liable, is served upon some but not upon all of them, the plaintiff may proceed against those upon whom it is served, as if they were the-only defendants named therein.

This note was joint and several, and as it was set forth in the action against both defendants, their several liability appeared. It is only where the liability is joint that judgment against one discharges the others not served. Where the obligation is joint, it is but one obligation, and that is not divisible; being indivisible it cannot be as to part of the joint debtors in judgment, and as to part in contract. (Candee v. Smith, 93 N. Y., 349.) But no such reason exists when the contract is severable, and therefore there may be a judgment as to part of the debtors and a contract as to the others. (Stannard v. Mattice, 1 How. Pr., 4.) The several liability of the two makers of the note was therefore properly placed in a judgment as to one, and remained in the note as to the other. Each one could therefore discharge his own several liability without discharging that of the other; except as each was severally liable for the same claim, to the extent that it was paid or satisfied by one, it was paid or satified as to the other. Coonley & Smith received the mare from Smith Wood in satisfaction, at least, of the judgment against him, but agreeing with him to sell the mare and apply the proceeds, after deducting the costs in the judgment, upon the note against this defendant, and thus satisfy -the note pro tanto only as to this defendant. No price was agreed upon between Smith Wood and Coonley & Smith for the mare. Coonley & Smith subsequently sold the mare for fifty-five dollars, and claim that that sum only was paid them by Smith Wood, and therefore Elijah Wood is liable for the balance.

The referee found, in response to requests of the defendant, that the judgment was satisfied as to Smith Wood, but as to him only. If he had simply found that Smith Wood, in consideration of the delivery of the mare to Coonley & Smith had been released from liability upon the judgment, upon the understanding that the proceeds of the sale of the mare should be applied upon the judgment, a different case would be presented. Where the debt is joint and several one debtor may be released and the other held. (Morgan v. Smith, 70 N. Y., 537.) But if the debt is satisfied by either, nothing remains for either to pay. If the judgment was satisfied the debt was satisfied, and to allow the plaintiff to recover again would be to allow him to receive satisfaction twice upon one debt. The finding that the judgment was satisfied is supported by the receipts given, and by the fact that no price was placed upon the mare at the time she was transferred to Coonley & Smith. By the agreement the mare was the consideration .of the satisfaction. The title to her vested in them. Whether her value was greater or less than the judgment was immaterial. When a sum of money is due, it cannot be satisfied by the debtor’s payment of a smaller sum, for the debt being measured in money we know the smaller sum cannot pay in full a larger sum; but when the satisfaction is in articles of property, we know the parties can by agreement place any price they please upon the articles, and if they do agree that any article shall satisfy any debt, they may thus make the one the equivalent and consideration of the other. (Brown v. Feeter, 7 Wend., 301; Grocer’s Bank v. Fitch, 1 T. & C., 651; S. C, 58 N. Y., 623.) In this case the judgment was satisfied the instant the mare was transferred to Coonley & Smith. She became their property, and whether they made a profit or loss by the transaction is immaterial.

Judgment reversea, reference discharged, new trial ordered, costs to abide the event.

Learned, P. J., and Bookes, J., concurred.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


author: LANDON, J.:

text:
    MORRIS COHN, Respondent, v. JEREMIAH BORST, as Treasurer of Lodge No. 394 of Free and Accepted Masons, Appellant.

      Lease to a committee of a lodge — when the lodge is bound by it — a lodge may be sued as a joint-stoalc association under chapter 258 of 1849, as amended by chapUs' 455 of 1851 —power of, to malee by-laws — the lodge is bound by a contract though its members change.

    By a written lease, made between M'orris Cohn, the plaintiff, of the first part, “ and Lodge No. 394 of Free and Accepted Masons, by their committee, Sanford J. Thatcher, Luther T. Fox and Charles Hamilton, of the second part,” certain premises were leased to the party of the second part for the term of five years, at a rent therein named. It was signed by the plaintiff and by the three members of the committee, individually, seals being placed opposite their names.

      Held, that the lease was taken by the lodge and not by the individual members of the committee.
    The lodge, which had received a charter from the grand lodge of the State, Consisted of about fifty members, having officers and holding and owning property.

      Held, that the lodge was such an association as is described in chapter 258 of 1849 and chapter 455 of 1851, and that under those acts an action might be brought against the lodge in the name of its treasurer.
    That it was competent for the persons composing the lodge to hire a room, in which to hold their meetings, and that it was also competent for them to agree, by their by-laws, that a certain number, less than the whole, should, at a stated meeting, constitute a quorum, and that such quorum should, by a majority vote, act for the whole body.
    That the fact that the body was fluctuating in its membership did not present any obstacle to the recovery of a judgment against it, however it might affect its collection.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought upon a written lease under seal, executed by the plaintiff, and by the lodge through its committee to recover the rent due thereby to the plaintiff, for certain rooms therein leased to said lodge.
    At the time of the commencement of this action Jeremiah Borst was, and yet is, treasurer of Lodge No. 394 of Free and Accepted Masons. The lodge is one of the masonic lodges of this State. It is located at Cobleskill, Schoharie county, JN. Y. It existed for more than five years prior to any of the transactions in question, and has a charter for its existence acquired from the grand lodge of this State. During its entire period of existence it has been composed of a large number of persons — more than fifty — and has ■owned and possessed property, and at the time of the transactions in question it possessed and hired the property named in the complaint.
    At a regular or stated meeting of said lodge, held at its lodge rooms in Cobleskill, on the 18th day of November, 1873, the following resolution was adopted:
    Cobleskill, November 18, 1873.
    At a regular communication of the Cobleskill Lodge, No. 3.94, in the village of Cobleskill, the 18th of November, 1873, motion made that a committee of three be appointed to rent of Brother Cohn and J. H. Dievendorf, the lodge room for the term of five years, for the sums of $125 and thirty dollars per annum, respectively, with improvements as per agreement. (Carried.)
    “ Committee appointed: Charles Hamilton, S. J. Thatcher and L. T. Fox.”
    Afterwards, and in pursuance of said resolution, and in behalf of and for said lodge, said committee and the plaintiff executed the lease in question.

      N. P. Hinman, for the appellant.

      Hobart Krum, for the respondent.
   LANDON, J.:

The lease upon which recovery was had recites that it was made and concluded between the plaintiff and “ Lodge No. 394 of Free and Accepted Masons, by their committee, S. J. Thatcher, L. T. Fox and C. Hamilton, of the second part.” That the lease is not ■the lease of the individual members of the committee, but is the * lease of the lodge, is apparent upon its face. ( Whitford v. Laidler, 94 N. Y., 145.) It is immaterial that the members of the committee signed the lease in their individual names, and did not repeat, after their signatures their representative character, or that they placed seals after their names. (Id.) It plainly appearing upon the face of the instrument that the committee acted for the lodge, and not for themselves, their individual seals affixed to a paper that needed no seal could not add to the binding force of their representative act, or detract from it, and must per se be without significance. In cases apparently holding otlierwise, it appeared upon the face of the agreement that the person signing it acted for himself or did not disclose his principal. (Briggs v. Partridge, 64 N. Y., 357.)

The existence of the lodge as a social organization, composed of about fifty members, and collectively having officers and property, was found by the court. It was, de facto, such an association as is described in chapter 258, Laws 1849, amended by chapter 445, Laws 1851; and under these statutes the action is well brought against the association in the name of its treasurer. (Tibbetts v. Blood, 21 Barb., 650; Bridenbecker v. Hoard, 32 How. Pr., 289; Kingsland v. Braisted, 2 Lans., 17; De Witt v. Chandler, 11 Abb., 470; Corning v. Greene, 23 Barb., 47; Ebbinghousen v. Worth Club, 4 Abb. N. C., 300)

It was competent for the persons composing this lodge to hire a room in which to hold their meetings; and it was competent for them to agree by their by-laws that a certain number less than the whole, should at a stated meeting constitute a quorum, and that such quorum, by a majority thereof, could act for the whole body. Whatever contract it would be lawful for all to make, they could lawfully appoint their agents to make. The statutes authorizing suit against such an association in the name of an officer thereof, upon such a contract, impose no new liability; they make the enforcement of the obligation practicable and convenient.

That the body is fluctuating in its membership does not present any obstacle to the recovery of the judgment, however it may affect its collection.

The judgment should be affirmed, with costs.

Learned, P. J., and Bookes, J., concurred.

Judgment affirmed, with costs.


text:
    ELEAZER A. DURKEE, Appellant, v. THE NATIONAL BANK OF FORT EDWARD, Respondent, Impleaded with Others.

      Mortgage — when it extends the time of payment of the debt it is given to secure — when it entitles the mortgagee to the benefit of the recording act— 1S. 8., 756, see. 1.
    ■One Durkee gave to the defendant a mortgage, which recited that it was “ intended to secure the payment of a certain promissory note of the amount of $3,100, and the interest thereon, made by William Allen and indorsed by the said party of the first part, bearing date May 19, 1881, payable three months after date, and which was discounted and is now owned and held by the said party of the second part, and upon which there is due and unpaid said sum of $3,100 and interest thereon from the 22d day of August, 1881, besides notary’s fees and expenses of printing, and any note given in renewal thereof; the same to be paid in manner following, viz.: One thousand dollars of the principal .sum hereby secured, and interest from August 22, 1881, in one year from the date hereof; $1,000 of the said principal and the interest on the sum unpaid in two years from the date hereof; the balance of the said principal remaining unpaid after the payments aforesaid, and the interest thereon, in three years from the date hereof. And if the amount of said note, principal and interest, and all notes given in renewal thereof, shall be paid as above specified, then these presents shall become void, but if default shall be made in the payment of said note or the notes given in renewal thereof in the manner above provided,” then the party of the second part was authorized to sell, etc.
    J3eld, that the mortgage extended the time of payment of the note; that it, therefore, was founded upon a valuable consideration, and entitled the mortgagee, as against a prior unrecorded mortgage, to the protection of the recording act.

      ■Ca/ry v. White (52 N. Y., 189) distinguished.
    Appeal from a judgment in favor of tbe defendant The National Bank of Fort Edward, entered upon the report of a referee.
    The action was brought to foreclose a mortgage given by one Solomon R. Durkee to the plaintiff upon certain- real estate.
    The plaintiff’s mortgage was dated, acknowledged and delivered on December 3, 1881, and recorded June 8, 1882. A mortgage to the defendant, the bank, on the same property was given by Durkee, which was dated, acknowledged and recorded on December 5, 1881.

      Charles Hughes, for the appellant.

      A. D. Wait, for the respondent.
   Landon, J.:

The plaintiff’s mortgage is prior in date and delivery, but subsequent in record to the defendant’s mortgage. The defendant, however, took its mortgage as collateral security for a precedent debt, then past due, and upon the facts in the casé is therefore not a purchaser in good faith and for a valuable consideration so as to entitle it to the protection of the recording act (1R. S., 756, § 1), unless, by the mortgage or as the consideration thereof, it extended the time of the payment of the antecedent debt, to secure which the mortgage was given. Whether it did extend the time of payment is the only question presented upon this appeal.

The mortgage to the defendant recites that “this conveyance' is intended to secure the payment of a certain promissory note of the amount of $3,100 and the interest thereon, made by William Allen and indorsed by the said party of the first part, bearing date May 19, 1881, payable three months after date and which was discounted and is now owned and held by the said party of the second part, and upon which there is due and unpaid said sum of thirty-one hundred dollars and interest thereon from the 22d day of August, 1881, besides notarial fees and expense of protest, and any note given in renewal thereof. The same to be paid in manner following, viz. : One thousand dollars of the principal sura hereby secured and interest thereon from the 22d day of August, 1881, in one year from the date hereof; one thousand dollars of the said principal and the interest on the sum unpaid in two years from the date hereof, the balance of the said principal remaining unpaid after the payments aforesaid and the interest thereon in three years from the date hereof; and if the amount of said note, principal and interest, and all notes given in renewal thereof, shall be paid as above specified, then these presents shall become void, but if default shall be made in the payment of said note or the notes given in-renewal thereof in the manner above provided, or in keeping the said premises insured as hereinbefore covenanted, then the said party of the second part and its assigns are hereby authorized, pursuant to-statute, to sell the premises above granted, or so much thereof as will be necessary to satisfy the amount hereby secured and then due and unpaid, with costs,” etc.

The case of Cary v. White (52 N. Y., 139) is greatly relied upon by tbe appellant. That case is an authority to the effect that where there is no agreement to extend the time of the payment of the original debt, or no new or substituted contract made respecting the debt, the mere taking of a mortgage, payable at a future time, as collateral security for the original debt, does not extend the time for its payment. But the difference between that case and this is, there the mortgage only by its terms was made payable in the future ; here the mortgage recites that the note is to be paid in the future. There “ the pre-existing obligation remained in full force and the collateral security was entirely independent of it; ” here the collateral security recites the note, and then says, the same to be paid in manner following,” giving future days for payment. There the mortgage was not taken in the name of the creditor; here it is.

The bank, by receiving this new and valuable security, assented to its terms ; those terms were that the dishonored note should be paid at a future day. The bank received a valuable consideration for stating such future -day, and the expression of a new day of payment is the substitution of it for the old day of payment.

The most favorable statement of the case for the plaintiff is, that upon the delivery of the mortgage to the bank, it had two days of payment for the same note ; the one stated in the note, the other stated in the mortgage; the mortgage is the latest statement between the parties, and was made upon a new consideration received by the bank. The two dates of payment are inconsistent, and the last should prevail. The courts have been disposed to limit the authority of Cary v. White to the facts in that case. (Hubbard v. Gurney, 64 N. Y., 468; Grocers’ Bank v. Penfield, 1 Hun, 282.)

The referee found that the mortgage was given to the bank in pursuance of an agreement that the bank should refrain from suing the mortgagor upon the note, until the bank should ascertain by the foreclosure of another mortgage, which it held against one Allen, who was the maker of the note in question and of other notes, how much, if anything, would remain unpaid upon this note.

Such finding, if warranted by the evidence, constituted the bank a holder for value. (Mechanics and Farmers’ Bank v. Wixson, 42 N. Y., 438; Cary v. White, supra.)

The cashier who represented the bank and whose testimony was not contradicted, testified that there were three notes discounted by the bank, made by Allen and indorsed by this mortgagor, aggregating, including the $3,000 note mentioned in the mortgage, $6,689 of principal, all past due. Allen had given S. It. Durkee, this mortgagor, a mortgage to protect his indorsements.. S. It.. Durkee had assigned this mortgage to the bank; Allen, the maker of the notes, was insolvent. Such being the situation, the cashier said to S. It. Durkee that he thought the property in the Allen mortgage would not sell for enough to pay all the notes. “ I told him if he would secure us on the $3,100 note I thought the assigned mortgage would pay the other two ; that we could not tell till such sale took place how much we could realize under the assigned mortgage. I suggested that he give us a mortgage to secure the $3,100 note. I told him the bank might sue him unless security was given for the note. lie said he did not want to be sued. I was to wait until there was a sale under the other mortgage before we could tell what would remain to be paid, and the bank was to hold the mortgage in the meantime. S. R. Durkee said he would have the mortgage drawn, and he did.” No proceedings to foreclose the Allen mortgage had then been taken, and no action has ever been taken by the bank upon the $3,100 note.

That the bank intended the mortgagor should understand that by giving the mortgage he would not be called upon for payment, either by suit or otherwise, until the balance unpaid upon the foreclosure of the Allen mortgage should first have been ascertained, I do not doubt. And to hold otherwise seems to be a substitution of an artificial construction for the conviction which the evidence forces upon the mind.

The judgment should be affirmed, with costs.

Learned, P. J., and Pookes, J., concurred.

Judgment affirmed, with costs.


author: Learned, P. J.: Bookes, J.:

text:
    In the Matter of the Application of LYDIA MOTT to compel ISAAC WAYLAND COOK, an Attorney, to pay over certain moneys belonging to her.

      Application for an order requi/ring an attorney to pay over money to his client — not granted, during the pendency of an action by the client to recover the same money.

    Upon the hearing of an application for an order to compel an attorney to pay over to his client money which he had received for the purposes of investment, it appeared that the client had, prior to instituting such proceedings, commenced an action against the attorney in which she had caused him to be arrested, and that the said action was still pending.

      Meld, that the pendency of this action furnished a sufficient ground for denying the application.
    Appeal from an order made at a Special Term denying a motion made, by the petitioner for an order compelling the respondent to ,pay over certain moneys belonging to her.

      Edgar T. Brackett, for Lydia Mott, appellant.

      Theodore B. Yates, for the respondent.
   Learned, P. J.:

We think that the learned justice at Special Term took the proper view of this motion. We are not prepared to decide whether proceedings of this character can be taken against an .attorney to recover money which he has simply received for the purpose of investment. However this may be, in the present case Mrs. Mott, prior to taking these proceedings, had commenced an ■action against Mr. Cook to recover this money, and in that action ■she had caused him to be arrested. The action is still pending.

Now it is a most reasonable rule that a man shall not be harassed by two actions or proceedings against him for the same cause of action at the same time. The pendency of another action for the same cause is ground of demurrer or answer. (Sec. 488, sub. 4, § 498.) So, if there be a pending special proceeding for the same cause, this is a'bar. (Groshon v. Lyon, 16 Barb., 461.) Conversely, if there be an action pending, this should be a reason for denying relief applied for by special motion, based on the same facts and on the same claim. ‘

The case of Phillips v. Wheeler (67 N. Y., 104) is not inconsistent with this view. In that case a demurrer to the action had been-sustained, so that the plaintiff had been practically defeated. What would have been the rule, if the action had been sustained, was not before the court for decision. Further, that was only a proceeding to enable a sheriff to distribute “moneys in his hands. No redress against the defendants was asked. And it was, as the court say, at least matter of discretion in the court to grant the-relief upon the motion, during the pendency of the action.

It is in that light we consider this appeal. Perhaps it cannot be said that a pending action is a bar to a motion. That word is applicable rather to actions. .But, at least, it may be considered by the court when exercising its discretion. And we think that the pendency of an action, especially one in which the defendant is under arrest, should induce the court, in its discretion, to refuse, on a special motion, the same relief in substance as is sought in the action.

It is urged, however, that the court should compel, in this summary way, an attorney to pay a check of $100 which it is alleged he gave as a consideration for putting over the action. We see no ground for this. If the giving the check was a legal fraud the courts are open for redfess in the ordinary ways.

The case of Wilkinson v. Gill (14 Week. Dig., 231), cited by the counsel for Mrs. Mott, decides nothing of this kind. There the motion was denied, not granted, and the denial was affirmed by the General Term. Further, the motion was to compel an attorney to-pay money which he had received from his client for the purpose-of paying a judgment. He had given his check, which, of course, was not payment. The giving of the check did not create the-liability. (The head-note in the Weekly Digest is not supported by the opinion as there given.)

The order is affirmed, without costs.

Bookes, J.:

I think the order should be affirmed solely (on the ground above discussed) that there is an action pending between the parties based on the general statements of facts set forth in the moving papers, in which action the defendant has been held to bail. On the merits of the controversy (and as bearing thereon, see Matter of Dakin, 4 Hill, 42; Matter of Grant v. Chester, 17 How., 260; and Matter of Husson, 62 id., 358), we should not, as I think, express any opinion, or, indeed, give any intimation whatever. All matters involved in the action should be left open for investigation and decision on the trial; and, as I think, the affirmance should he without costs of appeal.

Present — Learned, P. J., Bookes and Landon, JJ.

Order affirmed, without costs.


author: Learned, P. J.: Landon, J.

text:
    ESTHER FORD, Respondent, v. JOHN P. AMES, Appellant.

      Pleadings — to be liberally construed — what is a sufficient statement of a cause of action under the civil damage act.

    The complaint in this action alleged that the plaintiff was the wife of one Amos Ford; that the defendant, at the time therein mentioned, kept a place in Ogdensburg at which intoxicating liquors were sold; that on August twentieth, while the defendant was in possession of said premises, the plaintiff’s husband became intoxicated; “that said intoxication was caused in whole or in part by intoxicating liquors sold or given away by the said Ames, his agents or servants, at and upon said place; ” that while so intoxicated, and in consequence thereof, her husband was drowned, and by reason thereof the plaintiff was injured in her property and means of support, for which latter she was wholly dependent upon said Amos Ford.

      Held, that the complaint sufficiently alleged a sale or giving away of intoxicating liquors by the defendant to the husband to justify the court in overruling a demurrer interposed to the complaint upon the ground that the facts stated therein did not constitute a cause of action. (Landon, J., dissenting.)
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the complaint.
    The action is brought under the civil damage act. (Laws 1873, chap. 616.)
    The plaintiff alleged “ that at the time of the death of Amos Eord, hereinafter mentioned, she was the wife of said Eord and is; now his widow.
    “ That the defendant, at the city of Ogdensburg, during the-time hereinafter mentioned, kept a certain place situate on Isabella street, in said city, for the purpose of selling intoxicating liquors, .and at which place intoxicating liquors were sold.
    “ The plaintiff further shows that on the 20th day of August, 1883, and while said Ames was in possession of said premises, and running the said bar, the said Amos Ford became and was intoxicated, at the said city of Ogdensburg, in said county; that said intoxication was caused in whole or in part by intoxicating liquors ■sold or given away by the said Ames, his agents or servants, at and upon said place. That while so intoxicated, and in consequence of .said intoxication, the said Amos Ford was drowned.
    “ This plaintiff further shows that she was wholly dependent upon the said Amos Ford for her means of support. That by reason of the intoxication of the said Amos Ford, caused as afore.said, and of the death of the said Amos Ford, caused by said intoxication, this plaintiff has been injured in her property and means of support. That by reason of the aforesaid, plaintiff has sustained damages in the sum of $10,000.”

      William Peters, for the appellant.

      Nelson L. Robinson, for the respondent.
   Learned, P. J.:

Pleadings are to be liberally construed with a view to sub.stantial justice. (Code, § 519.) Nothing to the contrary is decided in Clarke v. Dillon (97 N. Y., 371). All that was decided there (if ■even that was decided) was that a denial of the allegations in the ■complaint not hereinbefore specifically admitted, qualified or denied, did not deny a certain allegation of the complaint. And the question did not arise on demurrer ; and further, the court held that there was evidence to prove the fact.

The statute (Laws 1873, chap. 646) says that “every * * * wife * * * who shall be-injured in * * * property or means of support * * * in consequence of the intoxication * * * of any person, shall have a right of action * * * .against any person or persons who shall, by selling or giving away intoxicating liquors, caused the intoxication in whole or in part of such person.”

The demurrer admits that by reason of the intoxication of Amos Ford, caused as stated in the complaint, the plaintiff has been injured in her property and means of support; that said intoxication was caused in whole or in part by intoxicating liquors sold or given away by the defendant. This admits all the facts which the statute says give a right of action. It admits that the defendant sold or gave away intoxicating liquors at a certain place, and it admits that these liquors caused the iutoxication of Amos Ford ; that by reason of such intoxication, viz. : through the death of Amos Ford, caused thereby, the plaintiff, his widow, who had been wholly dependent on him for support, was injured in property and means of support.

The defendant’s argument is that it is not asserted that the-defendant sold or gave the liquors to Amos Ford. He cites a case of Bush v. Murray (66 Maine, 472). Cases in other States have no authority with us, though they may be useful as arguments. In that case it was charged on the trial that if the defendant sold the liquor to a third person, who gave it to the person who became intoxicated, then the defendant was not liable, and this charge was held to be correct. That may be sound in (his State. But it does not touch the question of pléading.

The case of Ditton v. Morgan (56 Ind., 60) does not apply. The complainant averred that defendant “ sold, bartered or gave, or permitted, to be sold, bartered or given,” etc. This allegation, as the court said, was no better than an allegation of permissionr which was not the act specified in the statute.

But in the present case we have the allegation, admitted by the demurrer, that the intoxication was caused by.liquors sold or given away by defendant. And this is exactly what the statute specifies as a ground of action. "Whether or not the statute implies a selling or giving to the intoxicated person we need not decide. It must certainly be enough, in a pleading, to aver facts which come within the language of the statute. (Ford v. Babcock, 2 Sand. Sup. Ct., 518 at 523.)

Probably no one would claim that the wholesale dealer would be-liable for damages arising from intoxication caused by a sale of liquors by the retail dealer. But, on the other hand, it is not clear that if two persons go to a retail dealer’s shop, and one of those persons “ treats ” the other, and that other becomes intoxicated, the retail dealer may not be liable. Yet it could be argued that he neither sold nor gave to the intoxicated person. And, therefore, it may have been intentional that the statute was not limited to a sale or giving to the intoxicated person.

If those are the circumstances of this present case, there may have been good reason why the pleader would not aver a sale or giving by the defendant to Amos Ford.

The principal object of a complaint is to inform the defendant of the claim made against him. No one can doubt that the defendant in this case fully knows what the cause of action is which the plaintiff alleges that she has. Whether she has a claim or not can be only determined on the trial. It is our duty to disregard any error or defect which does not affect the defendant’s substantial rights. (Code, § 723.) What substantial right of the defendant is affected, even if it should be admitted that better pleading would have added the words, “ to Amos Ford ? ”

The judgment should be affirmed, with costs, with leave to defendant within twenty days after notice, on payment of costs, to withdraw his demurrer and answer over.

JBookes, J., concurred.

Landon, J.

(dissenting):

I cannot concur. The statute gives the right of action against the person who caused the intoxication by selling or giving away intoxicating liquors.” This comprehensive and general expression was, no doubt, intended to cover all cases of proximate cause. These cases may arise in numerous and various ways. A complaint must contain a plain and concise statement of the facts constituting each cause of action.” To state the facts constituting the cause of action, it must be necessary to state facts that do constitute it, not facts that may or may not constitute it. And this is the vice of this complaint — the facts stated may or may not constitute a cause of action, dependent upon the unstated fact whether the intoxication was proximately or remotely caused by the liquor sold or given away by the defendant. It is not charged that it was sold or given to the person who became intoxicated, or whether the defendant, by selling or giving it away, was the immediate cause of the liquor reaching such person. For aught that appears, lie was many removes from that person ; and was nearly as remote a canse of his intoxication as tile person who grew the grain from which the liquor was distilled. Ordinarily, it may be enough to ■charge the defendant with the acts specified in the statute, but when a statute is in such general terms as to cover cases which admit both of a recovery and a non-recovery, it does not seem toó •exacting to require the pleader to bring himself within the case of ■a recovery.

I advise that the demurrer be allowed.

Judgment affirmed, with costs, with leave to withdraw demurrer ■and answer in twenty days on payment of costs.