text:
    John W. Dibble, Resp’t, v. Jeremiah W. Dimick, App’lt.

      (New York Common Pleas, General Term,

      Filed June 5, 1893.)

    1. Appeal—Gage.
    A statement that the case contains all the testimony taken on the trial is not equivalent to a statement that it contains all the evidence; and under such statement the facts are not brought before the court at general term for review.
    3. Evidence—Admissions—Authobity of agent.
    In an action to recover commissions under a contract of employment, in making which it is claimed defendant’s son acted for him, questions as to whether plaintiff ever had any conversation with defendant with respect to the authority of his son to act for him in his business affairs, and as to what the conversation was, do not call for hearsay evidence, but for admissions by defendant against his interest, and are neither incompetent nor hearsay.
    3. Same—Contents op books.
    Questions as to the contents at a former time of a party’s books which are produced are competent for the purpose of showing whether a change in them has been made.
    (Pbyob, J., dissents.)
    Appeal from a judgment entered upon a referee’s report*

      F. A. Hibbard, for app’lt; Ira G. Darrin, for resp’t
   Bookstaver, J.

This action was brought to recover plaintiff’s commissions as a The answer is in effect a general denial There is no statement contained in the appeal book that the case contains all the evidence taken on the trial; but instead of that there appears the following: “ This case contains all the testimony taken on the trial of this action.” It has been repeatedly decided of late that the latter of these statements is not the equivalent of the former, and that under such a statement the facts are not brought before the court at general term for review. Hyman V. Friedman, 45 St. Rep., 636; Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948; Upington v. Pooler, 47 id., 34; Halpin v. P. Ins. Co., 118 N. Y., 166; 28 St. Rep., 788; Brayton v. Sherman, id., 854; Porter v. Smith, 107 N. Y., 531; 12 St Rep.. 479; Claflin v. Flack, 36 id., 728; Bradley Fertilizer Co. v. South Publishing Co., decided at this general term, ante, 214, and cases therein cited. Ñone of the questions, therefore, raised by the appellant upon this appeal in any wise depending upon the evidence can he reviewed by us. Nor can we inquire whether the conclusions of the referee are against the weight of evidence; nor even whether they have evidence to support them.

As we understand the law, we can only review those exceptions which raise questions of law purely. The referee has found that the defendant agreed to pay the plaintiff two per cent, upon all goods sold by him, and also that such commissions became due and payable at the time of thesale and delivery of the goods to the respective purchasers.

These findings furnish a warrant for awarding commissions on goods ordered through plaintiff before his discharge and delivered by the defendant after his discharge. The referee’s interpretation of these findings evidently was that the commissions became due and payable on delivery of the goods whether before or after the plaintiff’s discharge. The fifth finding is that there was not any new or different agreement as to compensation, and there is no exception to this finding by defendant; therefore a review of all of these questions is precluded for the reasons before stated; and it also seems to us to preclude the defendant from claiming that the contract was modified by the plaintiff’s computing and receiving part of his commissions at one per cent

The only questions that can be reviewed here are as to the competency of certain evidence introduced by the plaintiff. He was asked by his counsel the following question: “ Have you ever had any conversation with Mr. Dimick, Sr., with respect to the authority of Mr. Dimick, Jr., to represent his father in the business affairs of Mr. Dimick, Sr. ? ” which was objected to by defendant’s counsel as hearsay. Also, the following question: “Please state what conversation you had with him,” which was objected to on the same ground. Both of the objections were overruled, and the defendant duly excepted. Inasmuch as the plaintiff could establish the authority of the son to act for the father in his business by declarations of the latter, these questions' did not call for hearsay evidence, but for admissions made by the defendant against his ■ interest, and were n either incompetent nor hearsay. A number of exceptions were taken to similar questions asked concerning statements or admissions made by the defendant to the plaintiff and others; but they were all admissible upon the same ground, and no error was committed in overruling the objections.

Certain books" of the defendant were produced before the referee, and various questions were asked of the plaintiff concerning them and what they contained at a former period of time, which were objected to by defendant, the objection overruled and the defendant excepted. These questions did not call for the contents of the books as presented, but facts as to whether a change had been made in them or not, and they were clearly competent for that purpose, and there was no error in admitting them. The other objections and exceptions were all of a like character, and must fall with these, except those which wei'e merely to the relevancy and materiality of evidence. And in these cases it is the appellant’s duty to show how merely irrelevant or immaterial matter injured him or influenced the referee, which has not been done in this case.

The judgment must, therefore, be affirmed, with costs.

Bischoff, J., concurs; Pryor, J., dissents.


source: Caselaw Access Project

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

license: Public Domain

text:
    The People, Resp’ts, v. Alfonso Bracco, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Assault—Proof of.
    On the trial of an indictment for assault by throwing vitriol, it appeared that the assault occurred about 6.30 a. m. in January; that the complainant shortly after identified defendant, his son-in-law, with whom he had quarreled, as his assailant; a witness for defendant testified that he had found him in bed at about a quarter of seven on the morning of the assault, and others testified to finding him there at seven o’clock; other witnesses testified that they were on the corner where the assault was alleged to have occurred on a January morning and saw a man with his hands on his face, and a man running, who was not defendant. Defendant sold vitriol, and the assault occurred within a half hour’s walk of his house. Held, that the evidence would sustain a verdict of guilty.
    Appeal from a judgment of conviction of assault in the second degree.

      Chas. E. Le Barbier, for app’lt; De Lancey Nicoll, Dist At'ty. (Henry B. B. Stapler, Asst. Dist. Att'y., of counsel), for resp’ts.
   Ingraham, J.

The defendant was indicted for assault upon one Luigi Mastrangelo by throwing upon said Mastrangelo a quantity of oil of vitriol, and was tried and convicted at the court of general sessions before the recorder. The defendant on this appeal strenuously insisted that the evidence offered on the part of the People was so uncertain and contradictory that it was not sufficient to sustain the verdict of the jury. Upon a careful examination of the whole testimony, however, we are of the opinion that the verdict was sustained by the evidence. The fact that Mastrangelo was very seriously injured by oil of vitriol that was thrown upon his face, which caused severe burns upon his face and neck, and the loss of one eye, is conceded, and the only question at issue was whether the defendant threw the vitriol. According to the complainant’s story, on the 8th of January, 1891, as he was walking up First avenue at half past six in the morning, on the corner of Fifteenth street and First avenue he saw the defendant, who threw something in his face; that it was just daybreak, and he recognized the defendant, and that he then put his hands to his face, and fell down, when the defendant ran away. It further appeared that the complainant went to his house, and was subsequently taken to the hospital; that he charged the defendant with the commission of the offense; that the defendant was brought to the hospital, and identified by him as the person who threw the vitriol upon him, and that the defendant was well known to him, being his son-in-law.

It also appeared that the defendant and complainant had had trouble before on account of a dispute between the defendant and his wife, who was the daughter of the complainant. The complainant .was cross-examined at considerable length, and it is claimed that his testimony on this trial was contradictory to that made before the police magistrate and statements made to witnesses who called upon him immediately after the accident. Both the defendant and complainant are Italians, and the complainant’s testimony was given through an interpreter, and a careful examination of all the complainant’s testimony fails to show such serious contradiction of his testimony as would justify us in holding that the case should not have been submitted to the jury. It is clear that the complainant was injured, and it is hardly possible to imagine that he inflicted these" injuries upon himself for the purpose of revenge upon the defendant; and the fact that he claimed to recognize the defendant immediately after the injury, and while he was suffering great agony, and identified him when produced at the hospital within a few hours of the time of the occurrence, is inconsistent with the claim that he did not recognize the defendant; and after the injury made up the story for the purpose of injuring him. The defendant was sworn as a witness, and testified that on the morning of the occurrence he was in bed until 7 o’clock, and produced several witnesses to corroborate his story; but I think, conceding these witnesses testified to substantially the truth, it was' not inconsistent with the commission of the crime by the defendant. The defendant lived at 283 Mott street, and it was not at all impossible for him to have gone from First avenue and Fifteenth street to his residence in a half hour. One Lampiazi was called as a witness for the defendant, and swore that he went to the defendant’s residence at about a quarter to seven on the morning the crime was committed,- to purchase some wine ; that the defendant was then in bed, and called the witness up to his bedroom, and asked him to come later, and that he, the witness, returned about a quarter past seven and found the defendant dressing. The witness does not attempt to fix the time with any .degree of certainty. He did not look at a watch or clock, and only says it was about a quarter to seven.

The defendant himself testified that he was in bed-on that morning, asleep, at half-past 6, and did not awake until a little after 7, and that he then saw the witness Lampiazi. None of the other witnesses called by the defendant testified to seeing him before 7 o’clock. There were two witnesses called, who swore that on a morning early in January of that- year, they were walking down. First avenue, and saw a man on First avenue and Fifteenth street with his hands to his face, apparently injured, and at the same time, saw another man running down Fifteenth street, and that the man running down Fifteenth street was not the defendant. There is no certainty that these witnesses saw the defendant on that morning, or that the man that they saw running away was the person -who committed the crime, and one of these witnesses stated that the complainant in the case did not look like the man he saw who was injured. It also appeared that the defendant was engaged in the manufacture of soda water; that he used sulphuric acid, and had before that time used oil of vitriol in his business. From this state of the evidence it seems to be clear that a fair question was presented for the jury as to whether or not they were satisfied beyond reasonable doubt that the defendant was the person who committed the assault, and that the verdict of the jury should not be disturbed. There are several exceptions to the admission and rejection of evidence, but they are clearly without merit, and do not require notice. I think, therefore, the judgment should be affirmed.

Van Brunt P. J.

I cannot concur with Mr. Justice Ingraham in the conclusion arrived at by him in his opinion as to the strength of the evidence offered upon the part of the People in the case at bar. The conviction of the defendant necessarily depended upon the evidence of the complainant, and, if we are to believe his testimony in regard to his recognition of the defendant prior to the assault, then there would be no doubt of the guilt of the defendant, because the complainant testifies to a complete recognition of the defendant It further appears from the evidence that ill feeling had existed between the defendant and the complainant; and whether some portion of this recognition did not arise from the conclusion that because of this ill will the assault had been made by the defendant does not, to my mind, seem clear.

It appears from the evidence that the complainant was not a particularly reliable witness. He testifies that it was daybreak at half-past 6 o’clock on the morning of the 8th of January; and I suppose that the court may take judicial notice of the fact that the sun does not arise until about half-past seven in that season of the year, and the day does not break at half-past six, but it is substantially the darkest part of the night. Furthermore, the evidence of the witness in respect to subsequent recognition of the defendant is shown to be false by the proof as to his condition, which showed that it was impossible for him to have seen the defendant at the times at which he stated he did subsequent to • the happening of the assault. The point that the defendant was accustomed in his business to use vitriol does not seem to me to be of the slightest importance upon the question of his guilt. As well might an apothecary be accused and convicted of the crime of poisoning because he was in the habit of handling poison daily in his business. The alibi attempted to be proved upon the part of the defendant was not at all satisfactory. In fact, alibis are the least reliable species of evidence offered in courts of justice. They are so easily fabricated ; the change of a day, or of a very short period of time, or a mere lapse of memory, will all establish an apparent alibi. But in the case at bar there seems to be no proof of so exact and convincing a character as would necessarily lead the court to the conclusion that the defendant was in bed when the assault occurred, as he claims to have been. But, upon a consideration of the whole of the evidence, although, perhaps, if I had been on the jury, I might not have come to the conclusion that the evidence established the guilt of the defendant beyond a reasonable doubt in view of the infirmity of the evidence offered upon the part of the People, I do not think there is sufficient doubt as to the justice of the verdict to call upon this court to set the same aside. The jury had the benefit of the oral testimony of the witnesses, and they were better able to judge as to the credibility to be given to such testimony ; and, notwithstanding the contradictions of the witness upon whose testimony the conviction depends, there were no physical impossibilities present which proved beyond doubt that his account of the assault was not true.

The conviction should be affirmed.

O’Brien, J., concurs.


author: Follett, J.

text:
      August Albertz, App’lt, v. Semon Bache et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Master and servant—Negligence—Failure to provide sufficient
    FORCE FOR THE WORK.
    In an action brought by an employe against his employers for personal injuries alleged to have been caused by their negligence, it appeared that plaintiff and another employe were engaged in moving boxes of glass as ordered by the foreman, when the boxes fell, and the plaintiff was injured. There were many other employes subject to the foreman’s orders "on the premises; but no request for assistance was made by plaintiff or his assistant. Held, that plaintiff could not recover on the ground that sufficient men to do the moving were not furnished.
    Appeal from a judgment.entered upon the verdict of a jury, under which the defendants taxed their costs.

      August P. Wagener, for app’lt; Sol Kohn, for resp’ts.
   Follett, J.

This action was brought by an employe against his employers to recover damages for a personal injury alleged to have been caused by their negligence. The defendants were cutters of, and dealers in, glass, having a factory at 443 and 453 Greenwich street, New York. The business of the defendants was divided into three departments, the window-glass department, the plate-glass department, and the silvered French plate department. A foreman was employed to supervise the operations of each department About 300 persons were employed in the factory. At the date of the accident, February 7, 1885, the plaintiff had been employed in the window-glass department for about three years. His principal duties were to cut glass, but occasionally he assisted in removing glass packed in boxes to and from the factory.

On the" occasion in question a large number of boxes of glass were standing on their ends on the sidewalk in front of the factory. The boxes did not stand squarely on their ends, but inclined from the street, and towards the factory. It became necessary to load part of these boxes on trucks for shipment. Gorman, the foreman, was engaged in overseeing the shipment Bergen, a porter, was engaged in removing the boxes. The foreman, needing another man to assist in the work, asked the defendants to send some person to assist. The plaintiff was sent, and assisted Bergen in removing boxes from the walk to the truck. The average weight of the boxes was from 150 to 160 pounds. A particular box, standing behind three or four boxes, was required to fill an order. To get this it was necessary to move forward three or four boxes standing in front of the one they wished to reach. This was not an unusual operation in the business, and was accomplished in one of two ways, as suited the convenience of the workmen. Sometimes the outer box was turned so to stand edgewise to the boxes in the rear, so as to support those which were tipped or moved forward, in order to gain access to the box required. At other times a laborer would stand in front of the boxes, and pull them forward onto his shoulder, holding them in that position until the box sought was removed, and then tip them back into place. The plaintiff and Bergen were engaged in removing a box which was fourth or fifth in a row. Instead of supporting the boxes in the mode first described, Bergen, who. was called by the plaintiff, testified: x

“ I told plaintiff to hold up those boxes until I got out a certain box I' wanted. Q. Wouldn’t each box stand on its end when it was lifted up in a perpendicular position? Answer. No. Q. How wide Were they at the bottom ? A. Three or four inches. -Q. And they had to be supported, or else they would turn over ? A. Yes. Q. You lifted them up, one at a time? A. Yes, one at a time. Q. And he, plaintiff, stood in front, and as you lifted up the box he held it? A. Yes. Q. And you continued it until you had lifted up three or four, and he was standing there, holding them up? A. Yes, and then they overbalanced him, and they came down upon him.”

The plaintiff testified that the foreman did not tell him how to take out the box. The foreman, who was called by the plaintiff, testified that he directed the plaintiff to assist Bergen in getting the cases out, but did not tell him to select one from among the number that fell. He also testified that he had authority to direct how the men in the window-glass department should be employed, and that he could have ordered as many men to do that work as he thought necessary, and that there were twenty or thirty men then .working in his department. Whether the accident was caused by the boxes being tipped too far forward, so as to bring great weight upon the plaintiff, does not clearly appear. However, the evidence tends to show that this was the cause of the accident. The theory upon which the plaintiff sought to recover was that the defendants did not furnish a sufficient number of men to do the work. Assuming that more men should have been employed in removing this particular box, it was the fault of the foreman, and not of the defendants. The foreman testified that, at the time of the accident, five or six men were at work on the sidewalk, handling boxes. The plaintiff asked for no assistance, nor did Bergen, to handle this particular box. So it appears from the evidence introduced on behalf of the plaintiff that the defendants did furnish a sufficient force to do the work in which the plaintiff was engaged. The learned counsel for the plaintiff also insists that the plaintiff was entitled to recover because he was directed to do work that was dangerous, and of a kind that he was unaccustomed to perform. The plaintiff testified that he had been a glass-cutter for nine years, and could tell the weight of plates of glass; that he had packed it, and handled it when in boxes.

The plaintiff had a verdict for six cents, and his counsel insists that the damages awarded were inadequate, which is the only ground upon which a reversal of the judgment is asked. The damages are inadequate if the plaintiff was entitled to recover, but we think that the evidence introduced in behalf of the plaintiff' shows that the defendants were not in any way negligent, and. that the-accident was caused solely by the negligence of the plaintiff and his coemploye, Bergen. This case has been twice tried. At the close of the first trial the plaintiff was nonsuited, but a new trial was granted, 32 St. Rep., 1014, on the ground that-whether the defendants were negligent in not employing a sufficient number of men to do this worlc should have been submitted to the jury, and also that whether plaintiff had knowledge of the risks of the service in which he was engaged should have been submitted to the jury. The evidence on the trial under review seems to have been quite different from-the‘evidence on the first trial, and we think we have shown, from the plaintiff’s own evidence, that the defendants ,were not negligent in either respect.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Henry C. Miner, App’lt, v. Augustin Daly, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    False representations—Exclusive right to produce plat.
    Where, on the trial of an action for false representations as to the ownership of the sole right to produce'a play, it was not shown that the representations were known to be false by defendant, nor that defendant did not have the exclusive right to produce the play, but simply that others produced a similar play, and no evidence of any damage was given, beyond proof of the purchase price of the right, Meld, that the complaint, was properly dismissed.
    Appeal from a judgment dismissing the complaint.

      A H. Hummel, for app’lt; Stephen H. Olin, for resp’t.
   Follett, J.

In the autumn of 1888, the plaintiff was in Paris, France, where he saw a play acted at the City theatre and at the Ambigú theatre, known as “Roger LaHonte.” He called on Mr. Chizzola, the manager of the Ambigú theater, and asked if he could purchase the right to produce the play in America. Mr. Chizzola told him that he had sold the right to the defendant. Afterwards the plaintiff entered into negotiations with Mr. Dorney, Mr. Daly’s manager, who told the plaintiff that Mr. Daly had purchased the play of Mr. Chizzola, and had the sole right to-produce it in this country. On the 5th of February, 1889, the parties to this action entered into a written contract, in which it was recited:

“ Whereas, the said Daly has the sole right to produce in the United States and Canada a certain play entitled ‘ Roger La Hontef * * * Now, this agreement witnesseth that, in consideration of the sum of five thousand dollars paid by the said Miner to the said Daly, the receipt whereof is hereby acknowledged, and of the covenants hereinafter contained on the part of the said Miner to be, performed, the said Daly hereby agrees to sell, and by these presents does sell, assign, and set over, unto the said Miner, all the right, title, and interest of the said Daly in and to the said play
‘Roger La Honte,’ together with the exclusive right to produce the same, but only for one year, commencing on the 11th day of November, 1889.”

The plaintiff expended moneys (the amount was not shown) in preparing to produce the play, which was acted by his troupe in various cities of the United States. While it was so being acted by the plaintiff’s company, a similar play, bearing the same name, was also acted in various cities of the United States. The plaintiff called on the defendant to protect the right which he had purchased. This the defendant declined to do, placing his refusal on the ground of want of power. The plaintiff did not rescind the contract, and sue for the return of the consideration paid and damages, but continued to produce the play, and afterwards, brought this action to recover damages on the ground that the defendant falsely and fraudulently, and with intent to deceive the plaintiff, represented that he had the sole right to produce the play in the United States and Canada. It is also alleged in the complaint that Daly had not this right. On the trial the plaintiff testified that the alleged representations were made by the defendant’s business manager, but did not show that they were known to be false by the defendant or by his manager. The plaintiff failed to show that the defendant did not have the exclusive right to produce the play in this country, but rested his case on showing that others produced a similar play. Whether they had a right to produce it, or were mere violators of the plaintiff’s right, was not shown. No evidence of any damages was given, beyond proof of the payment of the purchase price. How much the-plaintiff lost, if anything, by his purchase, or by the production of a similar play by others, was neither shown nor attempted to be shown. Under this state of the evidence it is clear that no cause-of action was established, and that the court did not err in dismissing the complaint.

The judgment should be affirmed, with costs.

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


text:
    Charles Myers, Adm’r, Resp’t, v. The Mayor, etc., of the City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. New York City—Inspector of regulating streets not a public officer.
    An “ inspector of regulating and grading the streets in the city of New York ” is not a public officer, but an employe of the department of public works, serving for daily wages, and dischargable at the commissioner’s pleasure.
    8. Same.
    Such person is not entitled to pay from the city while unemployed, though wrongfully removed dr superseded by the commissioner.
    3. Same—Veterans.
    Chap. 119, Laws of 1888, regarding the removal from a position held by appointment in a city of an honorably discharged soldier, does not apply to an employe of the department of public works of New York city, serving for daily wages.

      Appeal from a judgment entered by direction of the court in an action to recover wages.
    The plaintiff’s intestate served in the United States navy from 1857 to March 15,1864, when he was honorably discharged. In October, 1886, he was employed by the department of public works as an inspector of regulating and grading the streets of the city, at the rate of three dollars per day, and continued to act in that capacity until April 6, 1889, when he was suspended by the commissioner of public works, by a communication qf which the following is a copy: “ You are hereby suspended from the position of inspector of grading, etc., in this department, without pay, from this date.’’ He received his pay to April 6, 1889, and after-wards, from time to time, reported to the department that he was ready and willing to discharge the duties of the place, until July 11,1889, when he sent to the department a formal resignation of the position. Between April 6 and July 11, 1889, another person discharged the duties which the intestate had previously discharged, andón the same work, audit appears that during this time the decedent was not employed by the department; that he sought other work, and was unable to find employment. Between these dates there were seventy-eight working days, the wages for which amounted to $234, to recover which, with interest, this action was brought, and for which sum a verdict was directed, and on which a judgment was entered. This action has been twice tried. On the first trial in March 1891, the complaint was dismissed, and a judgment entered, which was reversed by this court in May, 1892. 46 St. Rep., 130. In June following Myers died, and afterwards letters of administration were duly issued on his estate to the present plaintiff, in whose name this action was duly revived and continued. On the second trial the evidence taken on the first was read, no other or additional evidence being received or offered.

      William H. Clark (William A. Sweetzer, of counsel), for app’lt; William W. Jenks, for resp’t.
   Follett, J.

A public officer cannot, without his assent, and in the absence of statutory authority, be deprived of the salary attached to his office by being suspended or prevented by his official superiors from temporarily discharging the duties of his office. So long as he remains a public officer, his right to the sailary attached to the office exists. Nothing short of removal from, or abandonment of, his office bars this right. Gregory v. Mayor, 113 N. Y., 416 ; 22 St. Rep., 703. The view we take of this case renders it unnecessary to determine whether the power to remove an officer includes the power of suspending him. For a discussion of this question see Gregory v. Mayor, supra, and Emmitt v. Mayor, 128 N. Y., 117; 38 St. Rep., 907, and the cases cited in Throop Pub. Off., §§ 401-406, inclusive. The right of the plaintiff to recover depends upon whether his intestate was a public officer of the city, or a mere employe of the department of public works. In this state public offices can be created only by the lawmaking power, the legislature, or by some public body or hoard to which the power to make local laws or regulations has heen delegated pursuant to the constitution. Ho such office as “ inspector of regulating and grading the streets in the city of Hew York” has been created by the statutes of this state, nor by any law or ordinance of any public board or body authorized to legislate for the city in respect to its local affairs. Such an office is not mentioned in the consolidation act, chapter 410, Laws 1882, nor do we find any authority therein for the creation of such an office by any board or body existing by virtue of that act. Moreover, the evidence does not show that any body, board or officer has attempted to establish such an office. Section 54 of the consolidation act provides:

“ Every person elected or appointed to any office under the -city government shall, within five days after notice of such election or appointment, take and subscribe, before the mayor, or any judge of a court of record, an oath or affirmation faithfully to perform the duties of his office, which oath or affirmation shall be filed in the office of the mayor.”

The burden of showing that the decedent held a public office was on the plaintiff, and there is no evidence that the intestate took an official oath. A person designated and employed as foreman of a street cleaning gang could claim with as much propriety as the decedent to be a public officer. We have not failed to note the cases in which excise inspectors, Gregory v. Mayor, 113 N.Y., 416; 22 St. Rep., 703 ; inspectors of masonry, Emmitt v. Mayor, etc., 128 N. Y., 117; 38 St. Rep., 907; court attendants, Rowland v. Mayor, 83 N. Y., 372, and various other persons occupying positions in the courts, or in the departments of the state or city governments, have been held to be public officers; but in all those cases the position occupied was created and existed by force of some statute or local ordinance having the force of a statute. The plaintiff’s intestate was not a public officer, but a mere employe of the department of public works, serving for daily wages, at the rate of three dollars for each day’s service. When the officer who employed him, and had the power to continue or to cease to employ him, refused to permit him longer to render service, his right to wages was terminated. It makes no difference in what language the refusal is expressed. When his services were dispensed with, his right to pay ceased. We are unable to see any good reason why a person whose services are no longer desired is “ suspended," instead of being discharged ; and why the custom prevails, unless it is to “ keep the word of promise to our ear, and break it to our hope,” is difficult to understand. This practice 'has caused a multitude of actions against the city.

Chapter 119, Laws 1888, provides: “Ho person holding a position by appointment in any city or county of this state, re•ceiving a salary from such city or county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the Rebellion, shall be removed from .such position, except for cause shown, after a hearing had.”

The intestate held no “ position by appointment,” and he was compensated for his labor by daily wages, but not by “receiving; a salary,” and he is not within the statute. “ Salary ” differs from “ wages," and denotes a higher degree of employment. The term “ wages ” indicates inconsiderable pay, without excluding “ salary,” which is suggestive of a larger compensation for more important service. The contention that a person employed by the • city by the day, who has served in the army, cannot be discharged, or his services dispensed with, “ except for cause shown,, after a hearing had,” derives no support from the language or intent of the statute quoted. But, admitting that the terms of the employment of the intestate brought him within the act, he was; not entitled to pay from the city while unemployed, though wrongfully removed or suspended by the commissioner of public Works. Higgins v. Mayor, 131 N. Y., 128; 42 St. Rep., 711. Y7hen this case was before this court on the former appeal the question whether the then plaintiff was a public officer, or a mere employe of the city, was not presented to, nor considered by, the court. However, that decision, in so far as it conflicts with this judgment, is overruled. The judgment should be reversed, and, as under no circumstances can the plaintiff recover, the complaint should be dismissed, with costs.

Yan Brunt, P. J., and Barrett, J-., concur.


text:
    Francis A. H. Bergmann et al., Resp’ts, v. Hamilton H. Salmon et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Parties—Pleading—Injunction.
    An action was begun against S. to restrain him from selling or collecting certain securities, and he was served with an injunction. Subsequently plaintiffs learned that S.’s father, who bore the same name, but was dead, was the person with whom the transaction in question had occurred. Held, that it was proper to allow the summons and complaint to be amended by bringing in the executors of the father, and continuing the injunction against them.
    8. Same—Undertaking.
    In such case, the plaintiffs’ undertaking, given when the injunction was first obtained, cannot be made to stand as good and sufficient as to the. ■ additional defendants.
    Appeal from an order of special term bringing in new parties defendant, giving plaintiff leave to issue a supplemental or amended summons, and an amended complaint, and granting an injunction pendente lite.

      Johnston & Johnston (Edward W. S. Johnston, of counsel), for app’lts; Gould & Wilkie (Lloyd McK. Garrison, of counsel), for resp’ts.
   Follett, J.

In August, 1882, the plaintiffs were owners of a, tontine policy of insurance, No. 167,187, issued by the New York Life Insurance Company. On that day they borrowed of Hamilton H. Salmon $1,000, for which they gave their note payable six months after date, and assigned to him, as security, said policy No. 167,187, and also another policy, issued by the AStna Insuranee Company, for $1,000, payable, in the event of the death of the plaintiffs, to Salmon. It is alleged that Salmon loaned but $753, and that the difference between that sum and the amount of the note was a usurious consideration for the loan. This note was four times renewed,upon the payment of alleged usurious considerations. There were two Hamilton H. Salmons father and son. The father died before the commencement of this action, which was begun against the son, for the purpose of restraining the defendant from selling, assigning or surrendering the policies, and for a judgment that the plaintiffs’ assignment of them be set aside, as void for usury. With the summons and complaint, an injunction restraining the defendant from transferring or collecting the policies was served. The defendant interposed an answer by which he denied each and every allegation contained in the complaint. (Subsequently the plaintiffs ascertained- that the transaction was with the father, who was dead, and not with the son, who had been sued, and that letters of administration had been granted upon his estate to Hamilton H. Salmon and Emily M. Salmon. They then moved for an order permitting them to amend the summons and complaint by bringing in the representatives of Hamilton H. Salmon, deceased, and that the injunction issued in the action be continued as against them, which was granted.

The order provided “that the plaintiffs’ undertaking, as provided herein, be, and the same hereby is, declared good and sufficient as to all these defendants.” In this we think the special term exceeded its power. This undertaking was given in an action brought against Hamilton H. Salmon individually, and not against the representatives of his father’s estate. The undertaking upon which the injunction was granted was entitled as the action was entitled before the amendment was granted, by which the sureties undertook to indemnify the defendant so enjoined from damages which he might sustain by reason of the injunction. They did not undertake nor agree to indemnify the additional defendants who were brought in by the amendment from any damages which they might sustain by. reason of the granting of the -order, and no action of this court could make them liable beyond the terms of their contract. We think that the order permitting ■the summons and complaint to be amended by bringing in the additional parties was right. So, also, was that part of it restraining them from selling or disposing of the policies of insurance. But that part which provided that the undertaking should stand as security for the new defendants brought in cannot be sustained. That part of the order which provides “ that the plaintiffs’ undertaking, as provided herein, be, and the same hereby is, declared good and sufficient as to all these defendants,” is reversed ; but it is in all other respects affirmed, provided that the plaintiffs, within ten days after service of a copy of the order to be entered on this decision, file a new undertaking in this action, in the form prescribed by the Code, to be approved by the supreme court, or a judge thereof, with no costs to either party on this appeal.


author: Barrett, J.

text:
    Charles G. Stevens et al., App’lts, v. Marietta Stevens, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Executors And administrators—Rents.
    Where the only duty imposed upon an executrix with regard to the residuary real estate is to divide it into three equal parts, and to make proper conveyance thereof to the trustees of the several trust funds, though such real estate was charged with a trust legacy in her favor, and with other legacies, neither she nor her trustees have any right to inteifere with the rents and profits of said real estate, where she has received more than the interest due on the unpaid portion of her trust legacy, and the residuum is worth five times the amount of the lien thereon.
    2. Same—Restraint of unauthorized lease and collection of rents.
    The trustees of one-third of the residuary real estate may bring an action to have the liens and charges theieon cleared off, and the residuary devise to them effectuated, and to restrain the unauthorized collection of rents and leasing of the property by the executrix, their rights to one-third, of the rents and profits following their right to one-third the fee.
    3. Same—Estoppel.
    Such trustees’ acquiescence in previous acts of the same character by the executrix does not estop them from maintaining the action.
    4. Same.
    It is not an interference with the functions of an executrix to direct that she shall not infringe upon the rights of others by possessing herself of that to which, as executrix, she has no right.
    5. Former adjudication—Effect of appeal.
    A judgment is conclusive notwithstanding both parties have appealed therefrom, and one of them has given an undertaking on appeal.
    Apaeal from an order denying plaintiffs’ motion to make permanent an order of injunction which had been granted under the 609th section of the Code.

      George Zabriskie and John E. Burrill, for app’lts; Hoadly, Lauterhach & Johnson (George Hoadly, of counsel), for resp’t.
   Barrett, J.

This action was brought by the plaintiffs, as trustees of Ellen F. Melchor, to procure a judgment by which sufficient of the residuary real estate devised to them and to certain other trustees by the eleventh, twelfth, and thirteenth clauses of the will of Paran Stevens, deceased, may be sold to satisfy the balance due on legacies charged on such residuary real estate, and that the remainder be adjudged .to be vested in, and be conveyed by the executors and executrix to, the plaintiffs and such other trustees.

Under the fifth clause of the will in question the sum of $1,000,-000 was given to these same plaintiffs as a trust fund for the benefit of the testator’s wife, Marietta R. Stevens, and the residuary real estate was (as adjudged by a former degree of this court in what is called a “ construction action ”) charged with this trust legacy. In the year 1873 certain parcels of property were conveyed to Mrs. Stevens’ trustees, as part of the principal of the trust legacy; and since then, in an action brought by these same trustees against all parties in interest, a decree has been made adjudging that but $265,297.19 remains due upon account of such principal. This decree was filed on the 5th day of November, 1891, and it establishes the fact that all interest on the unpaid balance of the trust legacy, down to the 1st day* of May, 1887, had been fully paid to Mrs. Stevens, and that after such payment there remained in her hands, on the date mentioned, the sum of $83,-611.79, received by her from the estate over and above all credits to which she was entitled. In supplementary complaint in the present action it is alleged that since the 1st day of May, 1887, Mrs. Stevens has collected and received from and out of the assets of the estate sums exceeding $93,000, which amount is more than sufficient to pay the interest from May 1, 1887, to December, 1891, upon the unpaid balance of this $1,000,000 trust legacy, and this averment is not denied in her answer to the supplemental complaint. It thus appears by the decree of this court and by the respondent’s admission that she has received more than the interest upon this unpaid balance down to the present time. By the decree of November 5, 1891, it is further adjudged that a legacy of $100,000, given to Mrs. Stevens by the first clause of her husband’s will, has been paid. Thus all legacies given to her by the will have been paid, except the balance of the trust legacy already referred to.

It seems to us, upon these facts, that a plain case for an injunction was made out Mrs. Stevens had no right under the will to collect rents for the real estate, or to make leases thereof, as executrix. The only duty imposed upon the executors and executrix with regard to the residuary real estate is to divide it into three equal parts, and to make proper conveyance thereof to the trustees of the several trust funds. It is true that this residuary real estate was charged with the trust legacy in her favor, and, indeed, with all the other legacies; but that gave her no mortgage, either as executrix or individually, upon this real estate, much less upon the rents and profits thereof. The charge is in favor of her trustees, as trust legatees, and, while they have a right to enforce this charge to the extent of the unpaid balance of principal, there is no necessity for the application to this purpose of the rents and profits; for, by the decree already referred to, it was adjudged that the residuary real estate was worth at least the sum of $1,500,000 over and above the incumbrances thereon. There would certainly be no equity, therefore, in any action brought to enforce this charge, to impound the rents of property worth nearly five times as much as the lien. It seems clear, therefore, that neither Mrs. Stevens, as executrix, nor her individual trustees, have any right to interfere with the rents and profits of the residuary real estate. The plaintiffs, as trustees of one-third of this residuary real estate, for the testator’s daughter, Mrs. Melchor, have properly brought this action to have the liens and charges thereon cleared off, and the residuary devise to them effectuated. Their right to one-third of the rents and profits follows their right to one-third of the fee, in trust for Mrs. Melchor. They are, therefore, entitled to restrain the unauthorized collection of those rents, and also to restrain the unauthorized leasing of the property. The former act is an infringement of their rights as trustees, and of the rights of the other trustees; and the latter tends to embarrass the proceedings in the action, and to interfere with the sale upon final judgment. The plaintiffs’ acquiescence in Mrs. Stevens’ past acts does not alter the legal status. That acquiescence was possibly excusable while anything remained due for interest on the unpaid balance of the trust legacy; but in view of the decree adjudging that all such interest was paid to May 1, 1887, and "that on that day Mrs. Stevens actually owed the estate $83,611.48 ; in view also of the admission, already pointed out, that she has since collected $93,000 of rents, the plaintiffs were bound to revoke any passive authority which may have been acquired by their acquiescence. That they have done by instituting this action, and by praying in their complaint for an injunction against renting or leasing the real estate, or collecting or receiving the rents thereof. It would be grossly inequitable to deny their legal rights in the premises, now that the residuary estates are not in any wise indebted to Mrs. Stevens, and ■ that the rents thereof are not needed to afford her full interest, upon the entire trust legacy.

The learned judge at special term placed his decision upon three grounds: First, that the granting of the motion would be, in effect, to remove the executrix; second, that the facts set forth in the moving papers were denied;. and, third, that irreparable injury was not shown. The first ground involved a misconception of the relief sought. The plaintiffs do not ask the court to restrain any act which Mrs. Stevens has a right as executrix to perform. It is not an interference with her executorial functions to direct that she shall not infringe upon the rights of others by gossessing herself of that to which, as executrix, she has no right. he is not thereby removed or shorn of any of her lawful functions. The court simply-exercises its power to regulaté and control her action under well settled principles. See Wood v. Brown, 34 N. Y., 337. The second ground overlooked the consideration that the material facts in support of the injunction were adjudicated by the decree of November 5,ú 1891, already referred to. The respondent insists that this judgment should not be given conclusive force upon this motion, for the reason that both parties have appealed from it, and that the present respondent (appellant there) has given an undertaking to stay proceedings on her appeal therefrom. The effect of this undertaking, however, is only to stay the execution of the judgment. It cannot affect the findings as conclusive evidence against her, so long as they are unreversed. Nor does the counter appeal of the present plaintiffs alter the situation. This is not the case of a party accepting the fruit of a judgment, and then appealing therefrom. That principle has nothing to do with the force and effect of the judgment whileunreversed. The question here is one of evidence, and there can be no doubt that, notwithstanding the appeal, both parties are now bound by the findings and adjudication. Nor- are the general rules with regard to insolvency, irreparable injury and laches here applicable. Whether Mrs. Stevens be solvent or insolvent, whether the plaintiffs have permitted her to infringe upon the rights of their cestuis que trustent or not, • is quite immaterial. The question here is one of right, and the injunction should not be denied merely because the plaintiffs have failed to check Mrs. Stevens sooner, nor because she may be able ultimately to account for rents to which the trustees are, and to which she is not, entitled. The order should be reversed, and the injunction granted, with costs.

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


text:
    Margaret Devlin, App’lt, v. Robert Boyd et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    2. Judgment—Mistake.
    Where a defendant made no defense to an action, believing that it was brought on notes which he thereafter found had been paid, the judgment will not be set aside, it appearing that there was an actual present indebtedness on which the judgment was obtained.
    3. Monet loaned.
    The allegation of a complaint that a loan was made on or about the 13th day of August, is sustained by proof that it was made June 7th, and a note given therefor payable August 10.
    Appeal from a judgment entered upon the decision of the court at special term.

      George P. Gordel, for app’lt; Kohn & Ruck (August Kohn, of counsel), for resp’ts.
   Barrett, J.

This is an action to set aside a judgment of the city court in favor of the defendant Boyd against the present plaintiff, which judgment has been collected and satisfied, and to require Boyd to restore to Mrs. Devlin the amount so collected, with interest and costs. The judgment was for $1,346.22, and it was entered on the 24th of December, 1889. The gravamen of the complaint is that the judgment was obtained by mistake. It is alleged that Mrs. Devlin allowed it to be entered against her in the belief that she was actually indebted to Boyd upon two notes for $1,000 each, which she had previously given to her husband to facilitate certain building operations.

After her husband’s death, in March, 1891, she found these two notes among his papers, stamped “ Paid ” as of a date prior to the commencement of the city court suit; and thereupon she instituted inquiries which resulted in the information that the judgment was not upon these two notes, but for moneys loaned in July and August, 1889. She now asserts that no such moneys were loaned to her at these dates, and consequently that the judgment was based upon causes of action which never existed, but were wholly baseless. The defendant denies the material allegations of the complaint, and alleges that his complaint in the city court suit was true, and that the moneys therein referred to were actually loaned by him to the plaintiff. The learned justice who tried the case has found that the judgment in question was obtained without any fraud or misrepresentation on the part of the defendant Boyd, and without any mistake of fact on the part of the plaintiff. He refused to find that the loans upon which the city court action was founded were not made by Boyd to Mrs. Devlin. He also refused to find that she was not liable therefor. We think the evidence was sufficient to justify both the findings ■ and the refusals to find. The complaint in the city court set forth two causes of action, one for a loan of $1,000; and the other for a loan of $200. As to the loan of $1,000, there can be no question. Boyd's testimony, to the effect that he made this loan upon Mrs. Devlin’s note, is corroborated by the check which he gave therefor, payable to her order. This check was indorsed by Mrs. Devlin, and was deposited to her credit in the Riverside Bank,where she kept an account. As to the remaining $200, Mr. Devlin borrowed it as his wife’s agent, declaring that he wanted the money for her. He signed the note “James Devlin, for Mrs. Devlin,” and this very note, together with the $1,000 note, was given up by Boyd when the city court judgment was entered. Mrs. Devlin says that her husband had no right to borrow this $200 upon her credit, and she claims to have canceled his power of attorney prior to the date of this loan. But Boyd had no-notice of this cancellation, and he was quite justified, because of the prior course of dealing, in believing that Mr. Devlin’s authority was continuous. At all events, there is no foundation for the charge that this cause of action was wholly baseless.

There is an apparent variance with regard to the date when one of those -loans was made, but it is explained in a simple manner. The allegations of the city court complaint are that the loan of $200 was made on or about the 8th day of July, 1889, and that the loan of $1,000 was made on or about the 12th day of August, 1889. The proof is that the loan of $200 was made on the day so specified in the complaint. But the loan of $1,000 was not made on the 12th day of August, 1889. It was actually made on the 7th day of June, 1889 ; and Boyd then received Mrs. Devlin’s note therefor, payable in two months. That note matured upon the 10th day of August, 1889, which was “on or about ” the date specified in the complaint

It -is difficult to see, in view of these findings of fact, upon .what principle the appellant can hope to have the city court judgment disturbed. The singular contention is made that it was error to permit respondents to prove the loans, to recover which the city court suit was instituted, and that the only material question upon the trial here was whether the judgment in question was entered under a mistake on Mrs. Devlin’s part as to the precise nature of the cause of action set forth in the complaint. In other words, the appellant claims that even if she owed Boyd money, and was willing to protect him, the judgment therefor should not be allowed to stand, because she did not intend to permit judgment for this particular money, but only for other money which she supposed to be due, but which, as she subsequently discovered, was not due, it having previously been paid. This contention overlooks the underlying principle upon which courts of equity exercise jurisdiction to set aside judgments duly and regularly obtained. The fundamental ground of relief is that the enforcement of the judgment as to which the mistake occurred would be unjust and unconscionable. Here, however, the situation is reversed. It would be unjust and unconscionable to set the judgment aside upon the pretense of an unsubstantial mistake.

We have no fault to find with the law, as laid down in the numerous cases cited in the appellant’s elaborate brief. Mistake, under proper conditions, is an undoubted ground for the exercise of equity jurisdiction. But the mistake must be material, and must have worked real, and not merely technical, injustice. It was, therefore, entirely proper for the special term to permit Boyd to show that Mrs. Devlin owed, him money, and desired to protect him by a judgment for what she really owed. There was no mistake about this, even on her part. She intended to secure whatever she owed him, and she did it. The form of the obligation was wholly immaterial. The substantial fact was that Mrs. Devlin owed the money for which judgment was entered, and that she has only done what was right and honest in paying that judgment. Her mistake, so called, was nothing more than an .unfounded impression, for which Boyd was in no wise responsible r a belief which has neither changed her real purpose nor deprived her of a dollar which she did not owe. There is a good deal, in the case to justify the conclusion that the mistake set up was an after-thought. The summons, with notice of the amount due, was served upon Mrs. Devlin. That showed a claim of $1,200. It is hard to credit the suggestion that she then believed that the action was for $2,000, upon two promissory notes of $1,000 each. She knew that the plaintiff's attorneys in that action were also .her own counsel, and that they were acting upon an understanding between herself, her husband and Boyd. She had no good reason for the belief that the two promissory notes in question had remained unpaid until the time of the commencement of that action. Her husband had no occasion to deceive her upon the subject, and, indeed,, there is not the slightest ground for the belief that she would have acted otherwise than she did, had' she carefully read the complaint in that action. In every view of the case, it seems to be without merit, and the complaint was properly dismissed.

The judgment should, therefore, be affirmed, with costs.

Yah Brunt, P. J., and Follett, J., concur.


author: Barrett. J.

text:
    Carroll Whitaker, Resp’t, v. Herman L. White et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    1. Stocks—Evidence.
    Where the issue is whether a purchase of stocks by defendant stockbrokers was authorized by plaintiff, a letter repudiating the purchase written by the latter in reference to the former’s letter and telegram of about the same-date, saying they would sell the stocks on failure to receive further margin, letters having been sent calling for such margin, is admissible as part of a continuous correspondence and as an answer to defendants’ letters and telegram, and as a letter calling for an answer.

      S. Same.
    Defendants testified that the disputed order was given verbally to them by plaintiff at their office on a certain day. Plaintiff claimed not to have been in the city on such day, and that the only communication with them was held four days later. Held, that entries made by plaintiff in his diary before such dates, showing engagements for those days, were inadmissible to show his absence and presence as claimed.
    Appeal from a judgment entered upon the verdict of a jury.

      Wm. P. Toler (George P. Gordel, of counsel), for app’lts; Durnin & Hendrick for resp’t.
   Barrett. J.

The contest here was mainly upon the defendants’ counterclaim. The defendants were stockbrokers, and their counterclaim was for a loss upon the purchase, alleged to have been made on plaintiff’s account, of 100 shares of the capiial stock of the Louisville, Mew Albany & Chicago Railroad. The plaintiff denied the defendants’ authority to make this purchase on his account, and the jury, by their verdict, have sustained his denial. Mo order was entered denying the defendants’' motion for a new trial, and the appeal is solely from the judgment. The verdict is therefore conclusive, and we are limited to a review of the exceptions taken upon the trial. There were no exceptions to the judge’s charge, and but two questions of evidence are presented by the record. The defendants excepted to the admission, over their objection, of certain letters written to them by the plaintiff. They also excepted to the admission of certain memoranda made by the plaintiff in his law diary.

As to the letters, the defendants now contend that they should not have been admitted at all until after the plaintiff had rested. They bore solely upon the counterclaim, and the contention is that the plaintiff had no right, while upon the stand proving his case, thus to forestall the defendants’ case. We find, however, no objection in the record to the procedure upon the trial, nor to the order of proof. The objection was to the materiality of the letters, and, as to one of them, that it contained declarations in the plaintiff’s favor. These objections alone can now be considered, especially as we are not reviewing an order denying a motion for a new trial. The exceptions, as to two of the letters in question, are clearly untenable. One was objected to as immaterial, and “as not evidence against the defendants.” They were, however, certainly material, being in answer to letters from the defendants asking for a deposit of money to secure them against depreciation of the plaintiff’s stocks. To the first of these letters the plaintiff replied that he did not understand their letter. “ What is the trouble?” he says, “I can’t understand why my account is not good at present T. & P. prices, [meaning Texas & Pacific]. Why am I bound to deposit? ”

This letter ignored the Louisville, Mew Albany & Chicago transaction, and thus gave the defendants notice that the plaintiff did not consider that the stock of that railroad was in his account. It certainly called for an answer indicating at least that the deposit was required because of the depreciation in the Louisville. Mew Albany & Chicago railroad stock, as well as in the Texas & Pacific. The second of these letters bore most directly upon the issue. The defendants had written to the plaintiff as follows: “ Texas Pacific is 21$ to-day, andL., 1ST. A. & C. (meaning Louisville, New Albany & Chicago), say 30 to 35, making 3 to 4,000 due, besides putting up margin.” To this the plaintiff, in the second letter, repled: “ You should not have any Louisville, N. A. & C. stock charged to me on your books. I will take it for you if I can raise the money, and own it; otherwise you must look after it yourself.” This correspondence was certainly material, and, indeed, important, on the question of the defendants’ authority to purchase the Louisville, New Albany & Chicago stock for the plaintiff.

A more serious question is presented by the exception with regard to the third letter. That was objected to as “ immaterial, and as containing declarations in the plaintiff’s favor.” This letter is certainly open to the latter criticism; and if, as contended by the appellants, it was not in response to any letter written by them, but was “ wholly isolated from the correspondence between the parties,” we would have deemed it inadmissible, and would then have considered the further question as to whether its contents were, under all the circumstances, sufficiently prejudicial to the defendants to require a reversal of the judgment. But this letter was not an isolated statement, simply giving the plaintiff’s side of the existing dispute. It was written on the 7th of November, and was, in fact, an answer to the defendants’ telegram of the same date, and to their letter of the 4th. It is true that the plaintiff testified that he did mot think he made any answer to this letter of the 4th, but his letter of the 7th, under .consideration, bears internal evidence that it was an answer to both the letter of the 4th and the telegram of the 7th. The letter of the 4th is a distinct notice that on the 9th the defendants would sell at auction (because of the plaintiff’s failure to make his amount good with 10 per cent, margin) the Louisville, New Albany & Chicago stock, as well as the Texas & Pacific. There is a postscript to this letter in the following words: ■“ If you would give us an order to sell the stocks at the N. Y. Stock Exchange previous to the date mentioned, we would much prefer that course.” This postscript is directly answered by the plaintiff’s letter of the 7th, thus: “ If you wish an order, as you term it, to sell my 300 shares of Texas Pacific, I will give it, and do give it.” He then, refers to the Louisville, New Albany & Chicago, and refuses to give the order as to that stock, for the reason (we quote) “ that I desire to contest that purchase and sale (at its present price), if it is intended to charge me, in a court of law.”

In their telegram of the 7th, the defendants informed the plaintiff that White, the member of their firm with whom Whitaker had mainly dealt, could not meet him as he, plaintiff, had requested, In the letter of the 7th the plaintiff says: “ I regret

that Mr. White would not meet me. I presume that he feels embarrassed over the L., N. A. & C. matter,” etc.; thus plainly referring to the telegram of the same date. The letter of the 7th was therefore an answer to- the defendants’ previous letter and telegram. It was also part of a correspondence which did not terminate until the following December. Although the defendants did not apparently answer the letter in question, it certainly called for an answer, and it seems to have had the effect of postponing the threatened sale on the 9th of the Louisville, Mew Albany & Chicago stock. It was followed, too, on the 17th of the same month, by a stronger, though briefer, letter, in which the plaintiff declares that he has been most shamefully treated; and to this last letter the defendants replied, defending themselves against the accusation. We think, therefore, that the letter of the 7th was properly admitted. First, as part of a continuous correspondence between the parties; second, as an answer to the defendants’letter and telegram; and, third, as a letter calling, under the circumstances, for an answer.

We think, however, that the exceptions with regard to the entries in the plaintiff’s diary were well taken. The defendants claimed that the order to purchase the Louisville, Mew Albany & Chicago stock was given by the plaintiff, in their office in Mew York, on the 11th of June, 1887. The plaintiff denied this, and claimed that the only conversation which he had with the defendants on the subject of the purchase of this stock was in their office, on the 15th of June, 1887 ; and he was supported in this claim by the witness Eoosa. The object with which the first of these entries was offered was to prove that the plaintiff was in Saugerties and Kingston on the 11th of June, and could not, therefore, have been in the defendants’ office upon that day. The object with which the second entry was offered was to support the testimony that the plaintiff was in Mew York, with Eoosa, on the 15th of June. These entries were, therefore, exceedingly important, and, in view of the crucial conflict between the parties as to dates, may well have turned the scale. We think they were inadmissible under well-settled rules. They did not purport to be entries with regard to any fact in issue. They were simply entries made in the plaintiff’s law diary prior to the 11th and 15th days of June, indicating future engagements on the dates in question. They would doubtless have been proper to refresh the plaintiff’s recollection as to the time and place of such engagements, but, if they failed to do this, they were not admissible as original entries, for they were irrelevant to the real issue. As to the 15th of June, the entry was clearly inadmissible, for the plaintiff was well able to testify to the interview at the defendants’ office on that date without the aid of the memorandum. Bank v. Madden, 114 N. Y., 280; 23 St. Rep., 220 ; Marcly v. Schults, 29 N. Y., 346; Guy v. Mead, 22 id., 462. And, further, the plaintiff did not testify to the correctness of either entry when made. This was indispensable. Same cases. It is contended that, even if inadmissible, these entries could not have prejudiced the defendants, as the plaintiff had already testified without objection to their terms. We find, however, that the plaintiff did not testify to the terms of the entry of June 15th, and that his testimony as to that of June 11th was an inaccurate conclusion drawn from what really appeared in the book. He said that the latter entry showed that he was in Saugerties and Kingston on the 11th of June, whereas it really showed nothing more than that on a previous day he bad agreed to be there. He gave no testimony, however, accurate or inaccurate, as to the terms of the entry of June 15th, and the admission of that entry was unquestionably prejudicial. The judgment should, therefore, be reversed, and a new trial ordered, with costs to ■abide the event.

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


text:
    George R. Cornwall, Resp’t, v. Joseph Sachs et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

      1. Patent—Injunction.
    Where, in an action to enjoin the sale of a patent, the plaintiff makes out a prima facie case in support of his claim, and the injury which he would sustain by a sale of the invention is much greater than the defendant could possibly sustain by a temporary restraint upon his right of disposition, it is proper to grant an injunction restraining defendant pendente lite.

    8. Same.
    In such case it is improper to embrace in the injunction order an original invention, of which it was claimed the invention in question was an improvement, no allegation in regard to such an invention having been made in the complaint, and plaintiff’s right to the same having never been denied by defendant.
    3. Same.
    The original patent was for an individual call fire-alarm system. Held, that it was improper to embrace in the injunction order a provision restraining the sale of “ any other invention, improvement or patent relating in any way to a fire-alarm system.”

      4. Same—Restraint as to drawings.
    An order that defendant deposit with a certain party certain drawings should be limited to' those relating to the invention claimed to be an improvement, and their disposition only should have been restrained pendente lite, not their possession taken away.
    Appeal from an order restraining one of the defendants, to wit, Joseph Sachs, from in any way disposing of or assigning certain patent rights, or from removing certain papers and other property relating thereto from certain premises.

      Francis Forbes, for applts; Wheeler, Cortis & Godkin (Lawrence Godkin, of counsel), for resp’t.
   Barrett, J.

The question here is whether Sachs’ latest invention is an improvement upon his original invention, for which a patent was granted on the 30th of August, 1892, or whether it radically differs therefrom and from the patented mechanism. Under the contract between Fenno and Sachs the latter was to perfect an individual call fire-alarm system, to be used in operating present systems of fire-alarm street boxes from a distance, and Fenno was to be the owner of the patent to be issued therefor. Sachs was also to assign to Fenno such improvements upon the original application as might be made' during the continuance of Sachs’ monthly stipend. After the system, for which a patent was granted in August, 1892, had been to some extent perfected, Sachs invented the debated system, and in February, 1893, he applied for a patent therefor. The plaintiff alleges that this latter application, and the system upon which it was based, involved an improvement upon Sachs’ original invention, and, although this allegation is made upon information and belief, Fenno supports it by an affidavit in which he states positively that the latest application was certainly intended to be an improvement upon the system described in the contract, and that it follows the specifications of the contract except in certain particulars, as to which there was a special agreement. Fenno also states that the alleged improvement was so invented while Sachs was still in his employ and in receipt of salary under the contract. The plaintiff thus makes out a prima facie case in support of his claim, and, although his averments are denied, we agree with the special term that it was proper to preserve the status quo until a hearing upon the merits. The injury which the plaintiff would sustain by a sale of the invention is much greater than the defendant can possibly sustain by a temporary restraint upon his right of disposition. The case is thus brought within the rule that where, upon balancing considerations of relative convenience and inconvenience, it is apparent that the act complained of is likely to result in irreparable injury to complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted. High Inj., §§ 5, 13.

We think, however, that the order appealed from is altogether too broad, and that it should be modified by limiting the injunction to the particular invention which the plaintiff claims as an improvement upon the original invention. It was improper to embrace in the injunction order the original invention for which the patent of August, 1892, was issued. No allegation with regard to this invention is made in the complaint, and Sachs has never denied the plaintiff’s right thereto or to the patent therefor. The sweeping provision restraining the sale of any other invention, improvement or patent relating in any. way to a fire-alarm system, or boxes or apparatus for use in connection therewith,, was wholly unauthorized. So, also, was the mandate that Sachs deposit with Messrs. Brieson & Knauth certain specifications, drawings, and models, and that he prosecute his application for a patent with all practicable diligence. As to the materials, models, drawings and papers in the Germania Bank building or in the shop of Wischering & Son, the injunction was proper, so far as it restrains their disposition pendente lite. But the injunction on this head should be limited to such materials, models, drawings, papers, etc., as relate to the invention and application in dispute, namely, the application of February. 1893, and it should also be limited to the sale of these articles. There is no reason why they should be taken out of Sachs’ possession, any more than the disputed invention, in advance of judgment. Indeed, an injunction can properly run against their disposition only because they are ancillary to the invention, and may be embraced in the decree, if the plaintiff is successful upon the trial, as an incident to the main relief. But for this peculiarity, the plaintiff would be left to his legal remedy as to these articles. This modification of the-injunction practically disposes of the second branch of the appeal, namely, the order made upon the application to punish for contempt. No decision, however, was made with regard to the alleged contempt, and the order on that head is simply a statement that no punishment will be imposed, but that in a certain contingency the plaintiff may apply again. The order appealed from should, therefore, be modified so as to enjoin Sachs from disposing of the invention described in the specifications for an auxiliary fire-alarm system sent by him to the United States patent office on or about February 14, 1893, and also from disposing of any of the materials, models, drawings, papers, or other property relating to said invention. In all other respects the order appealed from should be reversed, without costs of this appeal to either party.

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


author: Van Brunt P. J.

text:
    The People ex rel. The Durant Land Improvement Co., Resp’t, v. John Jeroloman, Justice, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 12, 1893.)

    Summary proceedings—Stay—Appear prom judgment por rent.
    The amendment to § 1310 of the Code Civil of Procedure by act of January 34, 1893, that “when an appeal from a judgment for rent has been perfected, and execution stayed as herein provided, the appeal stays alt summary proceedings, pending or otherwise, to recover the possession of real property or dispossess tenants therefrom, based on a failure to pay the rent included in the judgment appealed from,” applies to proceedings where, pending an appealtaken from a judgment for rent by a tenant who gives an undertaking on appeal, summary proceedings ■ are begun to recoverthe premises, and the proceedings dismissed, but the orderreversed on appeal, anda new trial granted, pending which the act took effect.
    Appeal from an order of the special term granting a mandamus.

      H. B. Twombly, for app’lt; Esek Cowen, for resp’t
   Van Brunt P. J.

The relator in this Proceeding having pro cured a judgment for rent against its tenant (from which judgment the tenant has appealed and given security to stay execution), instituted a summary proceeding in the district court over which Justice Jeroloman presided, to recover possession of the premises because'of nonpayment of said rent, and such proceedings were thereupon had that in October, 1890, a final order was made by the justice dismissing said summary proceedings. From this final order the relator appealed, and on the 19th of January, 1893, the same was reversed, and a new trial ordered. On the 24th of January, 1893, and before said new trial was had, the legislature passed the following act:

“ Section 1. Section thirteen hundred and ten of the Code of Civil Procedure is hereby amended so as to read as follows : ‘Section 1310. Where ah appeal to the general term of any court or to the court of appeals, or otherwise, has been heretofore or shall hereafter be perfected, as prescribed in this chapter, and the other acts, if any, required to be done to stay the execution of the judgment or order appealed from have been done, the appe? I stays all proceedings to enforce the judgment or order appealed from, except that the court or judge from whose determination the appeal is taken may proceed in any matter included in the action or special proceeding, and not affected by the judgment or order appealed from, or not embraced within the appeal, or may causé perishable property to be sold pursuant to the judgment or order appealed from. The proceeds of such sale must be paid, to abide the result of the appeal, into the court from or in which the appeal is taken; or, if it was taken as prescribed in title fifth of this chapter, into the supreme court. When an appeal from a judgment for rent has been perfected, and execution stayed as herein provided, the appeal stays all summary proceedings, pending or otherwise, to recover the possession of real property or dispossess tenants therefrom, based on the failure to pay the rent included in the judgment appealed from.’
“ Sec. 2. All acts and parts of acts inconsistent with or repugnant to the provisions of this act are to that extent hereby repealed.
“ Sec. 3. This act shall take effect immediately.”

When said proceeding came up for trial the justice held that he was prevented from proceeding with the case, as the giving of security upon the judgment for rent operated as a stay. A motion was then made for a peremptory writ of mandamus, which was granted, and from the order granting the same this appeal is taken.

It is claimed by the respondents that the amendment to the ■Code, above referred to, is not, in terms, retrospective, and applies only to judgments entered and appeals taken after its passage, and we are referred to the rule laid down by Judge Denio in the case of Ely v. Holton, 15 N. Y., 595, which was as follows:

“ The theory of amendments made in the form adopted in the present instance we take to be this: The portions of the sections which are repeated are to be considered as having been the law from the time they were first enacted, and the new provisions are to be understood as enacted at the time the amended act took effect. In other words, we consider the amendment as only equivalent to an independent statute, declaring in general language that an appeal may hereafter be taken from an order granting a new trial on complying with the conditions mentioned.”

And it is urged that, applying this rule of construction to the present case, it means that this amendment as to judgments for rent is to be read as though it was a separate section. It seems to us that it is an equally well settled canon of construction that where it is manifest what was the intention of the legislature, all statutes must be construed according to such intention. People v. Lacombe, 99 N. Y., 43, and cases there cited. Upon an inspection of this statute it seems plain that it was the intention to make it applicable in all its parts to pending proceedings. It expressly alters the first part of the statute, making it applicable to appeals theretofore perfected ; and then, in the subsequent part of the sec-lion, provides that “ when an appeal from a judgment for rent has been perfected, and execution stayed as herein provided, the appeal stays all summary proceedings, pending or otherwise.” The reference to the preceding part of the section shows that the appeals referred to are those mentioned in the amended first part of the section, viz., those which had been theretofore or should be thereafter perfected. It is difficult to see how the legislature ■could have more plainly signified its intention to make these provisions apply to pending proceedings than this peculiar language has done. As a strong objection to making this legislation apply to -existing proceedings, it is urged that, if so construed, it would violate the provision of the constitution of the United States forbidding a state to pass any law impairing the obligations of contracts. It is well settled that a person has no vested right in any particular remedy, and the instances of changes of practice held applicable to pending litigations are too numerous to need citation. The case of Martin v. Rector, 118 N. Y., 479; 30 St. Rep., 27, recognizes the validity of such litigation, and none of the citations by the respondent in any way impairs the force of that decision. It is undoubtedly true that, if the legislature had taken away all means of obtaining possession of the premises leased if no rent was paid, such legislation would have been unconstitutional ; but it only provided that, after the landlord has obtained ■a judgment for his rent, which has been secured upon appeal, he shall not be permitted to proceed with this particular remedy to obtain possession of the premises. The rent has been secured, if due. Why, then, should the landlord have a right to this summary remedy after all reason for its existence is gone? He should be remitted to the ordinary channels of legal procedure, if he seeks, under such circumstances, to enforce a forfeiture. We think, therefore, that the order appealed from was wrong, and should be reversed, with ten dollars costs and disbursements ■of appeal, and the motion denied, with twenty-five dollars costs.

Follett and Barrett, JJ., concur.