author: Learned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. HENRY MOETT, Plaintiff in Error.

      Bight of accused to testify in his own behalf — effect of his intentionally swearing falsely as to one material fact— The power to decide whether the act in question . is right or wrong, is the test of criminalresponsibility — Evidence of accused's good character — is admissible in all cases.

    Upon the trial of the plaintiff in error, for murder, he was sworn and testified in his own behalf. Thereafter the court, after commenting on the right of one accused of crime to testify in his own behalf, and of the right of the jury to accept that part of such testimony which they believed to be true, and to reject that which they believed to be false, said, “ when a party in a civil action deliberately swears false to one material part of his testimony, and the jury are satisfied that he has so sworn falsely, intentionally false, they ai-e not only at liberty to reject it, but it is sometimes the duty of the jury to reject the whole. The maxim is falsus in uno falsus in omnibus."

      Held, that there was no error in the charge, as it properly left the decision of the question as to whether or not the whole testimony should be disregarded to the judgment of the jury, to be formed upon the whole case.

      Semble, that if the court had omitted the word “sometimes,” and if the charge could be considered to apply to the present case, and not solely to civil actions, it would have been erroneous, as making an absolute rule of law out of that which is only a wise maxim, to be applied discreetly by the jury, according to their judgment in each case.
    The counsel for the accused requested the court to charge that the people must satisfy the jury, beyond all reasonable doubt, that at the moment the act alleged in the indictment was committed by the prisoner, he had reason, perception and understanding, sufficient to know that the laws of Grod and the land forbid him from committing it. The court declined to charge as ruqiiested, but charged In the language of the Court of Appeals, in Flanagans. People (52 Ñ. Y., 467), and read to the jury that portion of the opinion which stated the settled law, as to the test of responsibility, to be the capacity of the defendant to distinguish between right and wrong, at the time of, and with respect to the act which is the subject of inquiry.

      Held, no error.
    Evidence of a prisoner’s good character is admissible in all criminal cases, and is to be considered by the jury, whether the evidence of the prisoner’s guilt be doubtful and uncertain, or strong and conclusive, but in the latter case it is of comparatively little importance
    Writ of Error to the Court of Oyer and Terminer, in and for the county of Columbia, to review the conviction of the plaintiff in error of murder in the first degree.
    The plaintiff in error was tried and convicted for the murder of his wife.
    Upon the trial the counsel for the prisoner requested the court to charge: “ That the people must satisfy the jury beyond all reasonable doubt, that at the moment the act alleged in the indictment was committed by the prisoner, if he did commit it, ho had reason, perception and understanding sufficient to know that the laws of God and the land forbid' him from committing it, and if he had not, the jury must acquit him.” In respect to which the judge stated to the jury : “ I charge in the language of the Court . of Appeals in that respect, and decline to charge1 in the language of the request, and adhere to my original charge.” The “ language of the Court of Appeals,” as referred to by the judge, is the opinion in Flanagan v. People (52 N. Y., 487).

      John B. Bongley, district attorney, for the people.

      R. F. Andrews and J. Rider Gady, for the plaintiff in error.
   Learned, P. J.:

The prisoner was a witness in his own behalf. The court commented on the privilege now allowed to persons accused of crime to testify, and spoke of the right of the jury to accept that part of such testimony which they believed to be true, and to reject that which they believed to be false. The court then proceeded to say: “ When a party in a civil action deliberately swears false to one material part of his testimony, and the jury are satisfied that he has so sworn falsely, intentionally false, they are not only at liberty to reject it, but it is sometimes the duty of the jury to reject the whole. The maxim is falsus in uno, falsus in omnibusThe counsel for the prisoner duly excepted to this last sentence, “ The maxim is falsus in uno, falsxos in omnibus.” And again, at the close of the charge, .the counsel for the prisoner said, “ I except now to the maxim here, falsus in uno, falsus in omnibus.’ ”

We must first notice that the maxim was not translated by the court; nor was there anything said by the court which was equivalent to a literal translation. The law of the case the court had just laid down in language familiar to the jury. If the jury understood the Latin maxim, still there was nothing said to indicate that they were to give it any other force or meaning than belonged to the English words which had preceded it. If they did not understand it, it could have done no harm. There is no reason, therefore, that we should think this quotation of a- Latin maxim (familiar to the profession) might have changed in the mind of the jury the meaning of the preceding language.

' The counsel for the prisoner insists that the exception taken is sufficiently broad to cover the wdiole language of the court on this point. And, as this is a criminal case, involving life, we may perhaps so treat the exception.

Is there, then, anything erroneous in what was said ? The remark was, in fact, limited to a civil action. But even if the jury were induced to understand that the same rule applied in criminal cases, was that error ? The language is carefully guarded. It is limited to deliberate and intentional false swearing. And it says that when a jury is satisfied that a party (not merely a witness) has deliberately and intentionally sworn falsely to one material part of his testimony, they are at liberty tb reject-it; that is, the part to which he has sworn falsely. Of course, there can be no doubt of that proposition. Then the court proceeds to add that in such cases it is sometimes the duty of the jury to reject the whole.

The court had been saying just previously that, in the case of prisoners testifying in their own behalf, the jury are not bound to believe all they say. And the court then proceeded with the case where the jury are satisfied that a party has intentionally sworn 'falsely to one material part, and said, not (as the prisoner’s counsel construe the language) that the jury are at liberty to reject the whole, but that the jury are not only at liberty to reject that one part, but that it is sometimes their duty to reject the whole.

That left the matter just where it belonged. It is the province of the jury in each case to decide whether intentionally false swearing in one material point should, or should not, cause them to reject all the testimony of the witness. The rule on this matter is not a rule of law, but of common sense in judging of evidence. If we have caught a man in a lie, we become doubtful of him, and yet we sometimes believe him.

If the court had omitted the word “sometimes,” and if the charge should be considered to apply to the present case, and not solely to civil actions, we should have thought the charge erroneous. It would have made an absolute rule of law out of that which is only a wise maxim to be applied discreetly by the jury, according to their judgment in each case. (Warren v. Haight, 62 Barb., 492 ; Pease v. Smith, 61 N. Y., 483 ; Place v. Minster, 65 Id., 89.) The case of People v. Evans (40 N. Y., 1) is not to the contrary. There Near testified that on a former trial lie had perjured himself. It was held that his evidence unsupported was not sufficient to convict the defendant of subornation of the perjury «alleged to have been committed on the former trial. And clearly so, because there was no more reason to believe Near’s testimony given on the one trial than that given on the other.

If there had been any doubt that the effect of such false swearing was a matter for the jury, it must be at rest since the adoption of section 832 of the Code of Civil Procedure. If a convict is a competent witness, it would be absurd to say that the testimony of an unconvicted perjurer is to be excluded. But we do not think that the court intended so to charge, or did so charge. We understand the charge to leave the matter to the sound judgment of the jury. The counsel for the prisoner ingeniously argue that the jury either are, or are not, in all cases, bound as matter of law to reject the whole testimony because some part is materially false. But the fair meaning of the charge is, not that there is a varying rule of law; but that, instead of a rule of law the judgment of the jury on the whole case must determine whether they should, or should not, reject the whole testimony. If there was any doubt whether-this meaning would be understood, attention should have been called to the language, and the court should have been asked to explain more fully.

There was a request to charge that the people must satisfy the jury that the prisoner had reason, perception and understanding, &c. To which the court said, I charge in the language of the Court of Appeals in that respect, and decline to charge in the language of the request. The court had previously read- .the law on this point from the” case of Flannagan v. People (52 N. Y., 467). And he had called the attention of the jury to that part of the opinion in that case, which states the settled law, as to the test of responsibility, to be the capacity of the defendant to distinguish between right and wrong, at the time of, and with respect to, the act which is the subject of inquiry. "We do not think that the prisoner was entitled to any different statement of the law.

On the argument of the writ of error a point was suggested as to which no exception .was taken at the trial. The prisoner’s counsel had asked the court to charge that the good character of the prisoner as a peaceable and mild person was to be considered favorably to the prisoner.

The court said that there was some evidence given tending to show the prisoner had always sustained the character of a quiet and peaceable citizen; that such evidence in a doubtful case is entitled to proper consideration ; that it is important evidence in determining a doubtful case; that where the evidence is clear, convincing and conclusive, that the party charged is, however, a guilty one, then evidence of good character is of no weight and that it is only in a doubtful case that the rule will apply. To this no exception was taken.

Evidence of good character is competent in all criminal cases. (Cancemi v. People, 16 N. Y., 507.) If admissible evidence it must be considered. Otherwise it is useless to admit it. Ilow much weight it is to have is a point for the jury; but is one on which they may very properly be advised. It is true that “ wanton, killing is as much, murder in the virtuous as in the vicious.” (People v. Hammill, 2 Park. Cr. 223.) In other words, if the whole evidence convinces the jury of the prisoner’s guilt, he is not to be acquitted because he has previously been a good man. But the question is this ; if, excluding the evidence of good character, the jury are satisfied of the prisoner’s guilt, may they in such a case take good character into consideration 1 If they cannot, then this dilemma arises. If, excluding evidence of good character, the jury have a reasonable doubt, they must acquit: and hence evidence of good is not needed. If, excluding such evidence, the jury have no reasonable doubt, then they are satisfied of the prisoner’s guilt, and therefore evidence of good character is to be disregarded. Hence in no case is it of any use.

Good character is always to be considered. (Cancemi v. People, ut supra, 506.) It “will of itself sometimes create a doubt where none could exist without it.” (People v. Lamb, 2 Keyes, 378 ; Stephens v. People, 4 Park. Cr., 481; Fields v. State, 47 Ala., 603 ; People v. Ashe, 44 Cal., 288.)

It is true that where a clear case of guilt is made out, aside from evidence of good character, such evidence is of companeati/oely little importance. But of how much importance it is for the jury -to say.

■ These views lead us to inquire whether any wrong was done the prisoner by this charge. The fact that no exception was taken is strong evidence that under the facts -of the case the language of the charge could have done no harm. And it will be seen that the court charged that the jury were to give this evidence such weight as they thought it Avas entitled to. Thus, the court did not direct the jury to disregai-d this evidence, even if they were satisfied from the rest of the case that the prisoner Avas guilty. The further remark of the court that Avhere the evidence was clear, convincing and conclusive, evidence of good character was of no Aveight, must have meant that Avhen on the Avhole evidence, the jury Avere satisfied of the prisoner’s guilt, they must not acquit because he had been a peaceable man. And certainly if this Avas not the meaning of the court, or if any meaning Avas intended Avhich the prisoner’s counsel judged to be erroneous, the attention of the court should have been called to the alleged error.

The judgment and conviction should be affirmed.

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

Judgment and conviction affirmed.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    THE COMMISSIONERS OF THE ALMSHOUSE OF THE CITY OF KINGSTON, Respondent, v. PETER L. OSTERHOUDT, Appellant. SAME, Respondents, v. ADOLPH ISRAEL, Appellant.

      City of Kingston — who is to sue for violations of the excise law committed, in it— chapter 150 of 1872 — chapter 109 of 1878.
    The power conferred by the charter of the city of Kingston (chapter 150 of 1872) upon the Commissioners of the Almshouse, to sue in their corporate name for all violations of the excise laws committed in the said city, was not affected or taken away by the amendment to section 22 of chapter 628 of 1857, made by section 1 of chapter 109 of 1878.

      The Board of Commissioners v. Qlennon, 21 Hun, 245, — followed.
    Appeal from a judgment of tbe Ulster County Court, in favor of the plaintiff, entered on the decision of the court made on the trial of the issues without a jury.
    The action was brought to recover a penalty under section 14 of chapter 628 of 1857, for a violation of the excise laws.
    The charter of the city of Kingston (chapter 150 of 1872), provides, among other things, as follows :
    “ Sec. 60. The said Commissioners of the Almshouse may sue and ho sued in their corporate name in any of the courts of this State. They shall have the sole and exclusive, care and management of the poor of said city, and shall provide for and maintain the persons enumerated in the fourteenth section of the act concerning the relief and support of indigent persons in the manner hereinafter mentioned, and for that purpose they shall have and exercise all the power and authority now vested by law in the overseers of the poor of towns, and in the superintendents of the poor of counties, not inconsistent with the provisions of this act. - They shall also have and possess the powers following :
    “ Title 6. The said commissioners shall also have power, and it shall be their duty to sue in their corporate name for all violations of the excise laws committed in said city in any court having jurisdiction of such suits. All other suits and proceedings which may,' by law, be prosecuted and maintained by the overseers of the poor of a town to enforce civil remedies, shall, and may, hereafter be prosecuted and maintained, and remedies enforced in the name of the commissioners of the Almshouse of the city of Kingston.”
    In 1878, section 22 of the act of 1857 was amended by section 1 of chapter 109 of 1878, as follows:
    “ Sec. 22. The penalties imposed by this act, except the penalties provided for by sections fifteen and nineteen, shall be sued for and recovered by and in the name of the overseers of the poor of the town or city in which the alleged penalty is incurred, except in such towns or cities as have no overseers of the poor, in which case said penalties shall be sued for, and recovered by and in the name of the Board of Commissioners of excise of the town or city aforesaid and paid over to the treasury of the county for the support of the poor of the town or city in which such penalty was incurred; except that in counties where there is no distinction between town and county poor, then for the poor of such county, within thirty days after receipt of the same by such commissioners, overseers or their attorneys.”
    The defendant claimed that the action should have been brought by the Board of Commissioners of excise of the city of Kingston, and not by the plaintiff.

      D. If. De Witt, for the appellant Osterhoudt.

      Howard Qhipp, for the appellant Israel.

      Q. ft. Adams, for the respondent.
   By the Court :

The main question involved in these cases is not one of principle. It involves only the putting of some construction on the confused and careless legislation in regard to excise matters, and of determining what' officers under conflicting statutes have the right of action. Since the argument a decision on a case closely analagous has been published, made by the General Term of -the Second Department in Board of Commissioners v. Glennon (28 Sup’m. Ct. [21 Hun], 215). This decision sustains the position'of the plaintiffs in the present cases. On a question of this kind, especially, there should be no conflict between the decisions in the several departments of this court. Whatever, therefore, our own views might be, we follow the case above cited, on the point of the authority of the plaintiffs to bring the action.

In the first case another point is made, the defendant claiming that the time of sale was covered, by one or the other of his licenses. We do not think that the license granted August, 1S78, authorized the sale made in the previous July. If the sale was not .lawful when made, the subsequent license could not have a retroactive effect and legalize the sale. Nor do we think that the license granted August, 1877, which by its terms ended May 1, 1878, authorized the .sale made in the following July. Even if, as the defendant claims, the license ought to have run for a year from date, it did not, and the defendant accepted it as it was..

The judgment must be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    FRANK J. CHILDS, Respondent, v. THE VILLAGE OF WEST TROY, Appellant.

      Might of one traveling in a street — liability of one making an excavation therein — • Costs — presenting claims for audit, when unnecessary — the trustees of West Troy cannot audit claims for tort.

    One driving along a public street has the right to assume that it is safe for travel, and is not bound to be on the look-out for danger as is one about to cross a railroad track; and one who digs a pit therein must so guard and protect'it (hat no accident can happen except by such extreme negligence ■ on tiie part of a traveler as may almost be called willful.
    Under the charter of the village of West Troy (chapter 330 of 1850, §§ 31, 33 and 33) the trustees thereof have no power to audit claims against the village, arising out of torts, and the claimant to entitle him to recover cost? therein is not required by chapter 363 of 1859 to present his claim to the chief fiscal officer of the village before bringing an action thereon.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover the damages alleged to have been sustained by the plaintiff, by being thrown from liis wagon by reason of an excavation alleged to have been made by the defendant’s street commissioner, and left unguarded by the defendant, in one of the public streets of the village of West Troy,

      Galen B. Hitt, for the appellant.

      P. D. Pfiver, for the respondent.
   Learned, P. J.:

Costello was street commissioner, and dug the ditch. Thus, he knew of the fact of the alleged obstruction. His knowledge was notice to defendant. The answer to the question in what capacity he dug the ditch was immaterial.

There is undoubtedly evidence tending to show that plaintiff was driving rapidly, and some evidence that he had been drinking. The accident occurred, according to liis testimony, about 7 p. m.j according to his companion’s somewhat later. The sun set about 7 p. m., at that time of the year. So it is difficult to understand how it could have been dark enough to prevent the plaintiff from seeing the obstruction.

But we must notice that this is not like the case of crossing a railroad track, where there is reason to expect danger and where the person crossing must be on the look-out. One driving along a street has the right to assume that it is safe for travel. Ho is not bound to drive on a walk lest some street commissioner should have dug a pit in the street. On the other hand, those who dig pits in public highways must so guard and protect them that no accident can happen except by such extreme negligence of the traveler as may almost be called willful. (Clifford v. Dam, 10 Week. Dig., 153.)

The referee reported that plaintiff should recover costs, and judgment was entered therefor. To this defendant objects under chapter 262 of the Laws of 1859. The plaintiff insists that ho is entitled to costs under the decision in Howell v. Buffalo (15 N. Y., 512). But that ivas only a decision that under the peculiar language of the Buffalo charter it was not necessary to present a claim upon tort before bringing an action; the word “ claim ” being used in connection with account ” and contract.” The ease of McClure v. Supervisors (50 Barb., 591), might seem at first sight to •bo conclusive in the plaintiff’s favor. But that was an action against the county, and the court held that a claim for damages for property destroyed by a mob was not one which must be audited by the supervisors. And further remarked that where the statutes for auditing demands against municipal corporations were sufficiently comprehensive to include claims arising in tort, such claims would come under this statute.

And thus, the (piestion is whether such causes of action as the present can be audited ” by the trustees. Sections 31, 32, and 33 of the charter would indicate that they could not. The claims which they are to “ audit ” are to be accompanied by an affidavit -of services done or disbursements made. This language does not apply to claims on tort. (And see McGaffin v. Cohoes, 74 N. Y., 387, 390.)

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Bockes, J.: Westbrook, J.: Learned, P. J.,

text:
    JOHN H. HOLLIDAY, Appellant, v. TIMOTHY D. PARKER, as Executor, &c., of JOHN W. GOULD, Deceased, Respondent.

      Action for seduction — abates on the defendant's death, and cannot he revived.

    An action by a father to recover the damages' occasioned by the seduction of his daughter, is an action on the case in tort, and is abated by the death of the defendant, and cannot be revived against his executors or administrators. (Learned, P. J., dissenting.)
    . Appeal from an order made at, a Circuit, dismissing tlie plaintiff’s complaint upon tlie ground tliat it did not state facts sufficient •to constitute a cause of action against the defendant herein, and from the judgment entered on the said order.
    The complaint alleged, as the cause of action, that the defendant’s testator did in his lifetime wrongfully, willfully, wickedly and maliciously seduce and debauch the infant daughter and servant of the plaintiff, and did thereby deprive the plaintiff of the services of his said daughter, and caused him to expend large sums of money in procuring medical aid and assistance for his said daughter, and that he was caused thereby great anxiety, solicitude and affliction, and that he, plaintiff, suffered great disgrace in consequence thereof, and claimed damages in this action for his personal anxiety, solicitude, affliction and disgrace, as well as for the loss of services and expenses incurred.

      Solomon Bundy, for the appellant.

      David H. Bndpp, for the respondent.
   Bockes, J.:

‘ Ye are of the opinion that the decision in Wade v. Kalbfleisch, (58 N. Y., 282) sustains the ruling of the learned judge at the Circuit. The reasoning of the court in .the case cited seems entirely conclusive of the question here presented. The action in that case was based on contract — contract of marriage. It was held that notwithstanding this, the action in its essential and controlling features was in tort for an injury to tlie person of tlie plaintiff, lienee that it abated, on the defendant’s decease, and could not be revived against his executors or administrators.

The action here, for seduction, is an action on the case in tort; and, like Wade v. Kalbfleisch, has a personal injury for its prin- ' cipal ingredient as a right of recovery. True, the right of action is made technically to depend upon loss of service ; but, as was said in the case cited, the damages are not measured by the pecuniary loss sustained ; but “ are in the discretion of the jury to the same ' extent as in strictly personal actions, such as slander, malicious prosecution, assault and battery and the like; and the recovery may be, and usually is, principally for injured feelings, anxiety of •mind, wounded pride and blighted affections ” (p. 285). The point urged in the case in hand is that the right of action to the extent of the actual damages sustained, is based on a wrong “done to property rights or interests.” This precise point was urged in ’' Wade v. Kalbfleisch. Speaking to which Judge Ciiurcii said: ' The learned counsel suggested, that upon a trial against the executors or administrators, the personal elements of the action might be eliminated, and a recovery confined to the pecuniary loss.” The learned judge added: “There is no precedent-for such a proceeding, and no principle upon which it could be adopted,” and after considering the question somewhat in detail he further remarked : “ aside from these considerations, suggested ■ to show the novelty, if not the absurdity of such a trial, the brief answer to this point is that the action is from its peculiar nature indivisible. • If revived at all, it must be revived in its entirety. If its personal features are abandoned, the incidents only remain.” Again the learned judge says: “ the controlling consideration is that it ” (the action) “ does not relate to property interests, but to personal interests.” These remarks apply with full force to the case in hand, and' the conclusion declared in the case cited must control the disposition of this. They are, too, in harmony with the line of argument pursued by Judge Denio in Lipe v. Eisenlerd (32 N. Y., 229), and by Potter, J., in Damon v. Moore (5 Lans., 454). So, too, in Badgley v. Decker (44 Barb., 577), it was laid , down that the real gravamen of the action for seduction is not the loss of service, but the mortification and disgrace of tlie family, and the wounded feelings of tbe plaintiff. Judge Mason there says: “ All the modern cases hold that the legal gravamen of the action is not the real gravamen,” and .that it was often spoken of as an action resting upon a fiction.” It seems within all the cases that the right of action for seduction rests in personal tort and dies with the person. (Price v. Prive, 11 Hun, 299 ; affirmed in Court of Appeals, 75 N. Y., 244; Butler v. New York & Erie R. R. Co., 22 Barb., 110.) The above views are not at all in conflict with the decision in Creqin v. B. C. R. R. Co. (75 N. Y., 192).

Ye have seen that in an action for seduction the real gravamen of the action is the injury to the feelings, and that the pecuniary loss is a mere incident, only technically necessary to the right of action. In Cregin’s case it was conceded that under those circumstances the right of action died with the person.

It is not suggested by the plaintiff’s counsel in this case that a. light of action for seduction is assignable. If not assignable, it would not siuwive to or against executors or administrators.

The judgment dismissing the complaint must be affirmed, with costs.

Westbrook, J.:

I concur in the foregoing opinion. It is trae that the basis of an action of this character is loss of services, but it is only the basis. The damages recoverable are identical with those which follow a breach of promise to marry. Wade v. Kalbfleisch (58 N. Y., 282), is, therefore, directly in point, and the remarks of Church, Ch. J., in that case (pp. 286, 287), as to allowing a recovery for some of the damages allowable in an action of that kind, and not for others, answer the-argument that in this.case the recovery could be confined to the injury resulting from simple loss of services.

Learned, P. J.,

dissenting:

I cannot agree with the foregoing opinion.

Rights of action survive unless they are excepted by 2 R. S., m. p. 448, § 2. The question is, whether the present is “an action on the case for injuring to the person of the plaintiff.” If not, it survives.

The ground of action is that the plaintiff was entitled to the services of his daughter, and was deprived thereof by the wrongful act of defendant’s testator. (Knight v. Wilcox, 14 N. Y., 413.) An injury to such a right to her services is an injury to property. (Whitney v. Hitchcock, 4 Den., 461.) There is no injury whatever, to the person of the plaintiff. True; the plaintiff may recover for injury to his feelings. Such recovery is in the nature of punitive damages, such as are recovered in certain other cases. (Bartley v. Richtmyer, 4 N. Y., 38, 43, et seq.) The amount of damages which may be recovered, does not affect the nature of the action ; which is for an injury to property, and not for an injury to the person. (Dain v. Wycoff, 7 N. Y., 191 ; Ingerson v. Miller, 47 Barb., 47.)

Wade v. Kalbfleisch (58 N. Y., 282) is in harmony with this view. That was an action for breach of promise of marriage. It was not based on. injury to any right of the plaintiff which had a pecunicvry val/ue. It was based solely on injury to the plaintiff’s feelings; as an action of assault and battery would have been based on injury to the jilaintiff’s body. The only difficulty in that case was that the form of the action was on contract. And therefore, it was necessary to show that, in fast, it was not an action based on wrong done to' the property, rights or interests of another.” (2 R. S., 447, § 1.)

A master, deprived of the services of a servant by the wrongful act of another, is injured in his property. (Woodward v. Wasburn, 3 Den., 369.) So is the plaintiff in this case. (Fried v. New York Central R. R. Co., 25 How. Pr., 285.) The husband, deprived of the services of his wife by a wrongful act, is injured in his property; and the light of action survives. (Cregin v. Brooklyn Crosstown R. R. Co., 75 N. Y., 192; Haight v. Hayt, 19 N. Y., 464.)

In England it has even been held that the executor of a traveler on a railroad may recover for the expenses of medical attendance, and for loss to the estate on account of- the testator’s inability to work, when he had been injured by ■ defendant’s negligence. Bradshaw v. L. & Y. R. W. Co., L. R., 10 Com. Pl., 189.) And the distinction was drawn between such a case, and an action on breach of promise where the damages are purely personal. (Chamberlain v. Williams, 2 M. & S., 408.)

By the wrongful act of defendant’s testator, the plaintiff lost, for a time, the services of his daughter,' which were of pecuniary value to him. I think he should recover, although the wrongdoer is dead. It would be a strange doctrine that, if a robber forcibly and violently took from one’s pocket a large sum of money, the robber’s executors would not be liable to an action for the amount thus taken, for the reason that the action of assault and battery did not survive.

Judgment affirmed, with costs.


author: Bockes, J.: Westbrook, J.:

text:
    ELLEN URQUHART, Respondent, v. THE CITY OF OGDENSBURG, Appellant.

      Pleading — in an action for negligence, the complaint need not aver the plaintiff's freedom from, contributory negligence.

    Although in an action to recover damages, alleged to have been caused by the defendant’s negligence, the burden of proof is on the plaintiff to show upon the trial by competent proof that his negligence did not contribute in any degree to the injury complained of, yet it is not necessary for him to specifically allege these facts in the complaint. It is sufficient to aver therein that tlie injury and damage complained of was caused by the negligence of the defendant; the averment that the negligence of the defendant was the cause of the injury is equivalent to an averment that it was the sole cause.
    Appeal from a judgment in favor of the plaintiff, entered upon an order overruling a demurrer interposed to the complaint by the defendant, on the ground that it did not contain facts sufficient to constitute a cause of action.
    The complaint alleged the incorporation of the defendant, and that it was a part of its duties “ to properly direct the manner and superintend the building and repairing of the streets, sidewalks and crosswalks in said corporation, and also to direct the manner of grading, paving, flagging and. otherwise improving its sidewalks,' crosswalks and highways within the corporate limits of said city and corporation; that on or about November 29, 1879, the said city and'corporation, incorporated as aforesaid, disregarding its duties and obligation imposed as aforesaid, with full knowledge and notice thereof, did negligently and carelessly allow, suffer and permit one of the streets and sidewalks of said corporation and city, situate upon and being the street or highway known as Lake street, in said city, at a point near Henry C. Rockwell’s furniture shop, to remain and be in an unsafe and dangerous condition, and did, with full knowledge and notice, allow, suffer and permit the said sidewalk and highway to be constructed in a dangerous and unskillful and careless manner; that this plaintiff, while passing along and over said sidewalk and street, constructed and remaining in said unskillful, negligent and careless and unsafe and dangerous manner and condition as aforesaid, did by reason thereof stumble and fall, and was then and there greatly hurt, bruised, wounded, and fracturing and breaking her leg, and became sick and sore and lame, and underwent and now undergoes great pain.”

      Edwa/rd C. James, for the appellant.

      Stone <& McGuire, for the respondent.
   Bockes, J.:

It lias been uniformly held, that in actions for negligence, it was unnecessary to aver in the complaint that the injury complained of occurred without fault of the plaintiff. (Haskell v. Village of Penn Yan, 5 Lans., 43, 48 ; Wolfe v. Supervisors of R. Co., 19 How. Pr., 370; Hackford v. New York Central R. R. Co., 13 Abb. Pr., N. S., 18; Richards v. Westcott, 2 Bosw., 589; Johnson v. H. R. R. Co., 20 N. Y., 65.) The defendant’s counsel admits that such has been the rule of pleading until the present, or until a very recent period. But it is insisted that since the decision in Reynolds v. N. Y. C. R. R. Co. (58 N. Y., 248), and in Cordell v. New York Central & Hudson River R. R. Co. (75 Id., 330), which hold that it is a necessary part of the plaintiff’s case to show the absence of contributory negligence on the part of the latter, the rule of pleading ’ is necessarily .changed, or rather, that a new. rule of pleading is thereby inaugurated.

It is held in these, as well as in earlier and more recent cases, that the burden of proof is on the plaintiff to show that the negligence of the latter did not contribute in any degree to the injury complained of; and that-this must be shown by competent proof. I do not understand that these decisions have established any new principle of law, nor do they in my judgment necessitate any new rule in pleading. Of course, the plaintiff must, aver in the complaint every fact requisite to establish the cause of action. But it is sufficient as a matter of pleading to aver that the injury and damage complained of was caused by the negligence of the defendant. This is, in pleading, an averment that the injury ivas occasioned by the sole negligence of the latter. Judge Denio strikes this point exactly in Johnson’s case (supra), where he says, “ I agree that this ” (the absence of contributory negligence on the part of the plaintiff) is an element in the definition of the cause of action, and that the plaintiff’s case, when presented to the jury, must not be defective upon that point, any more than upon that of the defendant’s negligence.” The. learned judge adds significantly: “ This is embraced in the proposition that the injury must be the result of the negligence of. the defendants ; for if the culpable conduct of both parties united in bringing it about, that proposition is not true’’ Before the jury could find against the defendant, under the averment that the' injury was caused by his negligence, they must “ be able to say that the injury happened from the negligence of the defendant, to which tlid1 plaintiff did not, by any act of his, contribute.” (p. 71.) Thus, where it'is averred that the injury was caused by the defendant’s negligence, it is a part of the plaintiff’s ease, under that averment, to show himself free from contributory negligence. The remarks of- Judge Rapallo in Hale v. Smith (78 N. Y., 480), seem in harmony witfi those of Judge Denio in Johnson’s case. He says, that, “ in cases where contributory negligcace may l>e claimed, it is settled in this court that the absence of contributory negligence is part of the plaintiff’s case, and the burdcu of satisfying the jury on that point rests upon liim.” Thus it seems that the rule of law alluded to is one applicable to the condition of the case on the proof, rather than one governing the pleading. This rule has been recognized as sound in law for a great length of time, yet there is no precedent in the decisions for the position held by the appellant; nor do I think it well grounded on the law, as a rule of pleading.

The above was the principal point urged on the argument of this case, but it was also sought to be maintained that the complaint did not aver that the negligence of the defendant contributed to produce the injury. We are of the opinion that the pleading is sufficient in that regard.

In my opinion, the interlocutory judgment must be affirmed, with costs, but the defendant is at liberty to withdraw the demurrer and answer the complaint, on payment of the costs of the Special Term, and of the appeal.

Learned, P. J., concurred.

Westbrook, J.:

An averment in the complaint that the negligence of the defendant was the cause of the injury is equivalent to an allegation that it is the sole cause. To establish such an allegation, the absence of contributory negligence by the party injured must be shown, as the cases now hold, but the pleading covers the whole ground.

Present — Learned, P. J., Bockes and Westbrook, JJ.

Judgment affirmed, with costs, with leave to withdraw demurrer, and answer over on payment of costs of Special Term and of appeal.


author: Learned, P. J.: Bocees, J.,

text:
    BENJAMIN F. MIDDAUGH, Respondent, v. THE CITY OF ELMIRA, Appellant.

      'Interest — when allowed as damages, it is barred by the receipt of the principal.

    The plaintiff, having received an assignment of a non-interest-bearing order, drawn upon the defendant’s treasurer, presented it on September 3, 1872, to the treasurer for payment, which was refused for want of funds. On August 20, 1874-, the order was again presented to the treasurer and paid by him, ho then telling the plaintiff that he could not pay any interest thereon; that it was customary to have bills for over-due interest made out and presented to the common council, who issued orders therefor which he could pay. The order was then surrendered, the plaintiff stating- that he would take the money, if he would not thereby release his claim for interest, but would not if he did thereby release his claim. The common council having refused to allow the claim for interest, this action was brought to recover the amount due.

      Held, that the plaintiff was not entitled to recover. (Bocees, J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis action by tbe court, without a jury.
    One 'Wyekoff, having done work for tbe defendant, received in payment an order, not bearing interest, drawn on its treasurer, and signed by the mayor and clerk, for tbe amount due. Tbis be transferred to tbe plaintiff. It was payable, by its terms, September 1, 1872. The plaintiff presented it September 3, 1872, and tbe treasurer refused to pay, because not in funds. On August 26, 1871, the plaintiff again presented tbe order to tbe treasurei", and received payment and surrendered the order. At that time the treasurer told plaintiff that be could not pay any interest. Tbe plaintiff asked bow he could get his interest. Tbe treasurer told him tbe common custom, that they made out bills for over-due interest, and presented them to tbe common council; they issued an order and be could pay. The plaintiff testifies that be said if that did not release bis claim, be would take it, if it did be would not; that they would go and see tbe city attorney.
    About July 2, 1877, tbe plaintiff presented a claim for interest to tbe common council, and it was rejected: He then brought tbis action.

      jS’. C. Van Puzen, for the appellant.

      Reynolds do Collin, for the respondent.
   Learned, P. J.:

The rale is stated, in Southern Central R. R. Co. v. Town of Moravia (61 Barb., 180), that, where there is no agreement in the contract to pay interest, interest is allowed by way of damages only; and that, in such a case, when the principal has been paid in full, no action can be maintained to recover interest. This is established by several cases there cited. (And see Riley v. Maxwell, 4 Blatchf., 237.) It is plain that the treasurer had no authority to create any different obligation from that which the law imposed. His promise (if he had promised) to pay the interest would not be binding on the city. The conversation between the plaintiff and the treasurer can amount, then, at the most, only to a statement of the treasurer’s opinion, on a legal point, that the surrender of the order would not release the claim for interest, and to a notice by the plaintiff, that he would not surrender the order, if that act did release the claim. There was no misstatement of fact by the treasurer. If the plaintiff mistook the law, the city should not be liable. We do not see anything in this case to take it out of the rule above mentioned. The settled rule is wise, and exceptions to it should be rarely allowed.

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

Bocees, J.,

dissenting:

It is not denied, that the order or warrant, drawn on the treasurer, was valid; and that the holder was, by law, entitled to have from the defendant the amount called for thereby, on its presentation for payment. It was duly presented and payment refused because of the want of funds. Prom that time the warrant or order drew interest. (Marker v. Trustees of Pardue, 56 Ind., 288.) The case cited fully and completely sustains the recovery here. The holder might waive interest, of course, and he would be doomed to have done so, in case he should accept the principal and surrender the order unconditionally Avithout claiming interest. In such case, interest being an incident to the debt, the surrender of the contract Avithout any condition as to the interest, would operate as an extinguishment of the debt, and the -right to interest, as an incident, would be gone. There is, in that case, a legal presumption that the holder of the claim waived his right to interest. This is the rule laid down in S. C. R. Co. v. Town of Moravia (61 Barb., 180-189, and cases cited). In the case cited, payment of the principal Avas made and accepted Avithout any claim for interest; and a receipt was gÍAren AA-hich acknowledged payment in full. Snell is not this ease; and this case is unlike those cited on which the decision in 61 Barbour proceeded. Here Avas but a conditional payment and surrender of the order or warrant. The holder claimed interest; and the acceptance of the piincipal and the surrender of the order was upon the express condition that he should have interest on the debt. There has been no surrender of the order, save as accompanied with that condition. It is suggested that the treasurer of the city had no right to attach such a condition. But the defendant claims the benefit of the surrender, and must, therefore, take it with the condition attached, otherwise there had been no surrender; the right to interest remains, that is, a right to recover on the order to the amount by the unpaid interest. The surreptitious possession of the order by the defendant Avill not bar the plaintiff’s claim; and there is either a surreptitious possession of the order by the defendant, or its possession is accompanied with a saving condition. There was no surrender, or else a surrender with a condition, Avhieh the defendant is, both in justice and law, bound to respect.

The judgment should be affirmed, Avitli costs.

Present — Learned, P. J., Bockes and Follett, JJ.

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


author: Learned, P. J.: Bockes, J.:

text:
    CATHARINE BLACK, Respondent, v. DENNIS O’BRIEN, MARY O’BRIEN, PATRICK CROWLEY and ANN CROWLEY, Appellants.

      Costs — in equitable actions, costs are in the discretion of the court.

    In an action brought by a judgment creditor to set aside, as fraudulent, a conveyance of land made by the debtor, the costs are in the discretion of the court.
    The rule that, in equitable actions, costs are in the discretion of the court, was not altered or affected by the adoption of the Code of Procedure.
    Appeal from an order made at Special Term, setting aside a judgment for costs entered by the defendants.

      A. Pond, for the appellants.

      John Van Rensselaer, for the respondent.
   Learned, P. J.:

This was an action, in the nature of a creditor’s bill, to Bet aside conveyances of land made by the judgment debtor O’Brien, to defendant Crowley, and by him to the judgment debtor’s wife.

On the trial, the complaint was dismissed: the order of dismissal saying, without costs. The defendant thereupon entered a judgment against the plaintiff for costs; claiming that, in such an action, costs were a matter of right. The Special Term set aside the judgment, and the defendant appeals.

The case of Van Wyck v. Baker (18 Sup’m. Ct., 309) does not decide this question. For the court only said that that action seemed to be within section 304, Old Code. And they proceeded to hold that even if costs were discretionary in the court, such discretion had previously been exercised by the General Term, and that such discretion could not afterwards be modified by the Special Term. So that the court held that the order appealed from must be reversed, whether the action came under section 304 or 306. Therefore the ease does not decide under which section it poínos.

"Nor does the case of Wood v. Hollister (3 Abb. Pr., 14), holding that an action like this is local, determine the question; because section 123 is different in its language from section 304. The former speaks of the determination, in any form, of any interest in real property; ” thus using the most extended language possible. The latter is limited (in subdivision 1) to an action for. the recovery of real property or a claim of title to real property.

Now, an action to set aside a conveyance as fraudulent against a creditor is not for the recovery of real property. The plaintiff does not recover the land, if successful. Nor does a claim of title to real property arise. The plaintiff does not claim title to the land. While yet, in the language of section 123, in some form, an interest in real property is determined, and therefore the action is local.

So again, the case of Nichols v. Voorhis (74 N. Y., 29) only decided that an action to vacate an assessment on land as void was not an action “ affecting the title to real estate or au interest therein,” under chapter 322, Laws 1874. It did not construe the language of section 304, Old Code, subdivision 1. No other cases than these two are cited by the appellant.

Now, if we look at section 304, we shall see that (unless actions of the same kind with the present be an exception), all of the actions therein mentioned are actions at law, to use the old language. While section 306, embracing other actions, takes in the whole class of equitable actions, we may naturally suppose that the framers of the Code intended that, in equitable actions, costs should continue to be, as they had previously been, discretionary. That rule had been long settled and was sound. (Eastburn v. Kirk, 2 Johns. Ch., 317.) There is no positive and unmistakable language changing it, and we must hold that it still continues in all equity actions. (Taylor v. Root, 48 N. Y., 687.)

For these reasons the order should be affirmed, with $10 costs, and printing disbursements.

Bockes, J.:

The learned judge before whom this action was tried without a jury, dismissed the complaint without costs; that is, without costs fo either party against the other. This direction as to costs, must however be disregarded in case the defendants, who were the successful parties on the record, wore entitled to costs as a matter of absolute right by law. If the statute gives costs to a party in express terms, the court has no authority over the subject. In such case the right to costs depends upon the statute, not upon the fiat of.the court; and in entering the judgment the clerk must follow the statute. (Lanz v. Trout, 46 How. Pr., 94, and cases there cited.) So, too, if he make an improper entry in that regard, the error will be corrected on motion. (Same ease ¡ but see Lossee v. Ellis, 13 Hun, 655, and cases there cited; also Morris v. Wheeler, 45 N. Y., 708.)

The question, then, is, whether costs in this case are expressly given by statute to the party succeeding on the issues raised by the pleadings. The action was in equity, and was brought by a judgment creditor of one of the defendants to set aside a conveyance of real property .for fraud. It has been held, with a single exception (Rawls v. Carr, 17 Abb. Pr., 86), that this action belongs to the class denominated local, with a view of determining the place of trial (Wood v. Hollister, 3 Abb. Pr., 14 ; Starks v. Bates, 12 How. Pr., 465); and so it was held in Van Wyck v. Baker (11 Hun, 309), and in Nichols v. Voorhis (74 N. Y., 28), that such actions raised orinvolved a claim of title to real property. On the strength of these decisions it is insisted that this case comes within the purview of subdivision 1 of section 304 of the Code of Procedure, and that costs are to be allowed of course to the prevailing party on the record, inasmuch as “a claim of title to real property arises on the pleadings.” (Code of Pro., §§ 304, subd. 1, and 305.) This position of .the appellant’s counsel was sustained in Van Wyck v. Baker (11 Hun, 309.) But we question the soundness of this decision. It stands unsupported by any other case, and is contrary to the accepted practice, ever since the Code went into efEeet in 1848. It has been supposed that in all equity actions costs were in the discretion of the court under section 303, the same as before the Code was adopted. It was supposed that the actions referred to in section 304 were, actions at law, and that the other actions ” alluded to in section 306 were actions, in equity, and embraced all equity actions. That ■ the. Code had brought about no change in the law in this regard, was laid down by Marvin, . J,, in Downing v. Marshall (37 N. Y., 384). The learned judge,, afier considering the general subject of costs, and the several sections of the Code relating to their allowance, says that “ other, actions”, in section 306 “ includes actions previously known as suits in equity, and thus the discretionary power of the old Court of Chancery, derived from an act of Richard II., whether costs shall or shall not be awarded, and if awarded, which party shall pay for them, is fully preserved.” The same view of this question was .entertained by Judge Willard, who, in 1850, after the Code was adopted, in Hinds v. Myers (4 How. Pr., 356), declared the same conclusion. The learned judge there says : that all the causes of action enumerated in section 304, were, under the old order of legal proceedings, actions at law, and he held that the words “other actions,” contained in section 308, referred to suits in equity. That costs were in the discretion of the court in equity actions has been repeatedly declared by the courts in general terms; aud the right to grant or withhold costs in those actions has been deemed to be an important clement In the administration of equity jurisprudence. So it was laid down in Eastburn v. Kirk (2 Johns. Ch., 318), that costs, in equity “do not depend upon any statute, nor do they absolutely depend upon the event of a cause. They depend upon conscience, and upoma full and satisfactory view and determination of the whole merits of a case. They rest in sound discretion, to be exercised undena consideration of all the circumstances.” It was in view of this equitable principle that costs were refused to the prevailing party in Webb v. Daggett (2 Barb., 9-13), a case of creditor’s bill like the present one. Now if, according to the remark of the court quoted from the case in ,37 N. Y., this right of discretion “ is fully presumed ” since the adoption of the Code, then subdivision 1 of section 304 has no application to equity suits. This section, then, must be deemed to apply only to actions at law; and it was so held by this court in Law v. McDonald (9 Hun, 23-28). The decision in Hauselt v. Vilmar (76 N. Y., 630), is infercntially, although’ not perhaps directly, to the same effect; that is, to the effect that, in a case like the present, the granting or withholding of costs is in the discretion of the court. An examination of the record in the 'case cited shows that the action was brought to set aside a transfer ' or conveyance of both real and personal property for fraud. Like ' the ease in hand, a claim of title to real property arose on the ' pleadings. The complaint was dismissed, with costs to both defendants, who made separate defenses. The Court of Appeals held ' that such allowance of costs was in the discretion ofi the court. This case did not come under the second paragraph of section 306, •because the plaintiff failed to recover against either of the defend•ants. See Williams v. Cassady (22 Hun, 180), wherein construe- : tion was given to tliis provision of the Code. The discretion, then, : declared by the Court of Appeals, existed because of the fact that • the action was in equity. And this view seems to be confirmed by the action of that court, which awarded costs on the appeal under "an equitable view of the case. Although that court affirmed the judgment of the Supreme Court entirely, as to both defendants, ' yet full costs were awarded to one defendant, and disbursements '■only tofflie other. The closing paragraph of Judge Eaul’s opinion, • which is before us in MSS., is as follows : “ The judgment must "therefore be affirmed, with a full bill of costs in this court, in favor of the defendant Zay, and 'disbursements in favor of defendant ■ Vilmar.”

"We are therefore led to the conclusion that section 301 has reference to actions at law only; and that “ other actions ” in section 306 has reference to and embraces all equity actions.

Again, unless this be held to be the true construction of sections 301, 305, and 306, when read together, costs are given as matter of law to the prevailing party in all equity actions ; for, by subdivision 3 of section 301, costs are given to the prevailing party “ in the actions of which a court of justice of the peace has no jurisdiction.” Justices courts have no jurisdiction of equity actions, hence, By a literal reading of subdivision 3 of section 301 (the same as is claimed for subdivision 1) the prevailing party in equity action would have costs- by force of the law itself. But it has been’ held that subdivision 3 of section 301 should be deemed to refer to actions of which a justice of the peace has no jurisdiction, according to section 54 of the Code of Procedure, which, with the preceding section (53) defines the jurisdiction of that court. This construction of subdivision 3, will, then, leave section 304 still to have application only to actions at law.

In conclusion, therefore, it follows, that in all actions in equity the granting or withholding of costs rest in the discretion of the court, to be exercised according to .conscience, upon a full view of the whole merits of the particular case; the same since as before the adoption of the Code of .Procedure. We do not think that any principle applicable to equity jurisprudence was intended to be destroyed by the Code ; and we think that the line of authority since its adoption sustains this view.

The order appealed from should be affirmed.

Present — Learned, P. J., and Bockes, J.

Order affirmed, with $10 costs, and printing disbursements.


author: Bocees, J.:

text:
    ALBERT SALMON, Appellant, v. MARY McENANY, Respondent.

      Married woman — when the evidence fails to show an intent to charge her separate estate — when she is not liable as having bought as the agent of her husband —1860, ch. 90, § 1.-
    This action was brought to recover the price of meat sold by the plaintiff to the defendant, who lived with her family, consisting of her husband and ten children, and conducted the household affairs. The husband supported the family, and the wife carried on no separate trade or business, but was possessed of a separate estate liable to be charged with her debts. The plaintiff having refused to give further credit to the husband, , said to the defendant that “if they wanted to run a bill he should charge ' it to her,” to which the defendant replied, “you will not get cheated out of it, if you do; I will see you paid.”
    Mild, _ that the defendant was not liable for the price of tlie meat, as the evidence failed to show an intent to charge her separate estate with the payment thereof.
    That she could not be held liable, under section 1 of chapter 90 of 1860, as ■ having purchased the meat as her husband’s agent, for the support of hertself and family, as the evidence showed that the sale was made to her and not to him.

      Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury. The action yvas brought to recover a balance of an account for meat, vegetables, &c., claimed to have been sold by the plaintiff to the defendant. -

      Waldo & Grover, for the appellant.

      James W. Sheehy, for the respondent.
   Bocees, J.:

The defendant lived with her husband and conducted the household affairs, at the time the meat was delivered, which was purchased for family use from time to time, and for which the defendant promised payment. The form of the promise will be' hereafter given. The family consisted of the defendant, her husband, and ten children. The husband supported the family, the defendant, his wife, having charge of the household affaire. She carried on no trade or business on her own account; but it stands admitted by the pleadings that she was at the time the owner of separate property liable to be charged with her separate indebtedness. So circumstanced, and further credit to her husband being refused, the following colloquy occurred between the parties. The plaintiff said to her, “ If they wanted to run a bill he should charge it to her;” the defendant replied, “ You will not get cheated out of it if you do. I will see you paid.” The learned judge before whom the case ivas tried without a jury, hold that under this sta.te of facts, the defendant, bciug a married woman, was not liable on her promise, and did not thereby charge her separate property, and directed a dismissal of the complaint.

The defendant could not bo held liable, on the ground that she carried on a trade or business on her own separate account, for such was not the fact; nor on the ground that her promise related to or ivas for the benefit of her separate property or estate, because this fact was unproved. Then, does the evidence establish an intent on her part to charge her separate estate ? It is not so expressed in the contract relied on. But this was held to be necessary in Eisenlord v. Snyder (71 N. Y., 45), where the contract did not havj( relation to tlie separate trade, business or estate of the wife. Sucjh was also the ruling in Weir v. Groat (4 Hunn, 193), on a state of facts quite similar to, but stronger for the plaintiff than is the present. (See also Yale v. Dederer, 22 N. Y., 450; Manhattan B. & M. Co. v. Thompson, 58 Id., 80.) Nor is the case brought within the decision in Conlin v. Cantrell (64 N. Y., 217), where it was held that the intent to charge the separate estate might be inferred from the surrounding circumstances. That case is quite different on the facts from this under consideration, and is not in point. There the defendant lived separate and apart from her husband, and supported herself. The contract was for her own personal benefit. She had a separate estate, and was trusted for that reason, on her promise to pay when she received her rents. Here the promise was not for her individual and personal benefit. She lived with her husband, who supported the family. The promise was, in fact, for his benefit. No reference was made to her separate property, nor does it appear that the plaintiff then knew that she had any separate property. The promise was simply that if the plaintiff would deliver the meat, she would see him paid. This was held, in Weir v. Groat, to be insufficient to charge her separate estate.

It is not deemed necessary here to discuss the question as to the legal import of the promise, “ I will see that you are paid,” as we are of the opinion that if the promise had been direct and unequivocal, “ I will pay you,” the plaintiff’s case could not stand in law. (But on this point see Brown v. Bradshaw, 1 Duer, 199-201; Rawson v. Springsteen, 2 Sup’m. Cfc. [T. & C.], 416 ; and Payne v. Baldwin, 14 Barb., 570, and cases there cited.)

It is suggested that the defendant should be held liable, on the ground that the purchase was of necessaries by the husband through the agency of the wife, under the decision in' Covert v. Hughes (8 Hun, 305). The action was not brought on this theory, nor is a case made for its application on the facts. The defendant did not malee the purchases or the promise to pay as an agent. The promise was her own and for herself. ■ She must be bound by it as a promise for herself and in her own behalf, or not at all. In Covert v. Hughes the purchase of the goods was by the wife as the ageni of her husband. NoLso here. Credit to the husband was refused, and delivery was made on the defendant’s individual and personal promise. There is no ground here for a claim that the wife purchased as the agent of her husband. The proof negatives this hypothesis.

We are of the opinion that the judgment must be affirmed, with costs..

Learned,'P. J., concurred.

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

Judgment affirmed, with costs.


text:
    ALEXANDER JOHNSTON, Respondent, v. LEMON THOMPSON, Appellant.

      Evidence — admissibility of the declarations of an agent, as against his principal.

    The declarations and admissions of an agent are not admissible as against his principal, unless they were connected with or made in regard to a transaction then (at the time of the making of such declarations and admissions) being conducted by him for his principal.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover for wort and labor performed for, and materials furnished to the defendant by the plaintiff, and others who had assigned their claims to him.
    The liability was claimed to have been created by the acts of one Bissell, an agent for the defendant. Upon the trial various declarations and admissions of Bissell were, against the defendant’s objection and exception, received in evidence.

      Isaac Lawson, for the appellant.
    IF". B. French, for the respondent.
   By the Court :

We are of the opinion that a new trial must be granted because of the admission of improper evidence against the defendant’s objection. Even admitting that the proof was sufficient to establish the fact of Bisseil’s agency, his declarations and admissions when not engaged in the performance of the business of the agency would not bind his principal. The rule of law upon this subject is this, that to make the declarations or admissions of an agent evidence against his principal, they must be connected with the trmisaction then being done by him.for Ms principal. They must be made not only during the continuance of the agency, but in regard to a transaction depending at the very time. (Anderson v. Railroad Co., 54 N. Y., 334-341; Bap. Ch. v. B. Ins. Co., 28 Id., 153-160 ; Cortland County v. Herkimer County, 44 Id., 22-24 ; Luby v. H. R. R. Co., 17 Id., 131, 133; Hydorn v. Cushman, 16 Hun, 107.) This rule of evidence was violated in several instances on the trial, and for this reason there must be a new trial.

Judgment reversed; new trial granted; costs to abide the event; and reference discharged.

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

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


author: By tiie Court :

text:
    In the Matter of the Assignment of THOMAS C. RIDER, to EDWARD P. MAGOUN.

      County Court — when it cannot set aside, on a motion, a sale made by an assignee— what orders of, are appealable to the General Term — when a judicial sale will not be set aside.

    A County Court has no power to set aside, on motion, a sale made by an assignee for the benefit of creditors, on the ground that the price paid was insufficient, and that a better one can be obtained.

      Semble, that, upon the accounting of the assignee, the County Court could charge him with any loss occasioned by his wrong-doing in making a sale at an inadequate price.
    An order of the County Court, setting aside such a sale on a motion, is appeal-able to the General Term.
    The circumstances under which a court will not set aside a judicial sale considered.

      Appeal by Henry A. Ashley, the purchaser of a portion of the assigned real estate of Thomas C. Rider, the above named assignor, from an order of the County Court of Columbia county, made March 10, 1880, vacating and setting aside the sale of that portion of the assigned real estate, consisting of about one hundred and nineteen acres, purchased by the appellant, Ashley, at the assignee’s sale thereof at public auction, had May 12, 1879; and also setting aside all subsequent proceedings therein, including the deed given by said assignee to said appellant, dated May 13,1879, and recorded in Columbia county clerk’s office on the same day, and ordering a re-sale thereof by said assignee, in the manner, at the time and upon the conditions prescribed in the 6aid order.

      Gadma/n <& Uoysradt, for Henry A. Ashley, appellant.

      Gerrit S. Collier, for Thomas C. Rider, respondent.'
   By tiie Court :

First. The respondent insists that this order is not appealable, and cites several cases in the Court of Appeals. But those cases do not apply. There are many orders which cannot be ajipealed to that court, which may be appealed to this court from a Special Term. And the same is true of orders of the County Court, (Code Civ. Pro., § 1342; see .L. 1878, ch. 318, § 6, amending L. 1877, ch. 466.) It is true that this court will not review certain orders which rest solely in discretion and affect no rights. But the present order is not of that kind. It affects a substantial right; for it takes away the real estate of Ashley, the appellant, more effectively than would a judgment in ejectment. We do not doubt that the order is appealable.

Second. This is the more evident because, in our judgment, the County Court had no power to make such an order. Judicial sales are such as are made by the authority of a court. Over such sales, as a general rule, the court which makes them has control. The act of the officer wffio makes them often requires, and probably is always subject to, the approval of the court which confers his power. But the sale mode by this assignee was not a judicial sale. He sold by virtu» sis power in trust; and the purchaser obtained the title of the original owner through that power. It was said, on the argument, that a court of equity exercises, over sales by trustees of express trusts, such a summary power as was exercised by the County Court in this case. ~VV e are not aware of any such power. Undoubtedly a court of equity would have jurisdiction of a regular action, brought to set aside a fraudulent sale made by the trustee of an express trust in collusion with a purchaser. But that is not the present case. Here the County Court has set aside, on motion, a sale made by an assignee for the benefit of creditors, on the ground that a better price can be obtained. The County Court has, in short, exercised the power which it would have had over a judicial sale made by its officer. "We see nothing in the statute (L. 1877, cli. 4GG, § 25, amended by L. 1878, ch. 318) giving such a power. Yery possibly, on the accounting of the assignee, the County Court can charge him for loss to the estate by wrong-doing in making the sale, if any such wrong-doing existed. But the purchaser has acquired a title to the land, not by the authority of the County Court, but by the powror of sale in the assignment. The County Court cannot deprive him of this title by any such order as was made in this ease.

Third. But, passing the question of jurisdiction, the order should not have been made, even if this had been the case of a judicial sale. Some ten months had elapsed since the sale; during all which the assignor, who now applies for the order, had full knowledge of the facts. lie was present at the sale, and subsequently surrendered possession to the purchaser. lie is guilty of laches.

Again, there is nothing to show that the purchaser did not act in perfect good faith. He has gone upon the property and has made improvements thereon; and at this length of time it might be difficult to compensate him for the injury which he would suffer by having his land taken from him and by being compelled to remove therefrom.

Again, since the sale, the value of the land may have risen. This is probable, both from the making of this motion, and from the increased prosperity of the country. To that increase the purchaser is entitled.

Again, the price which the assignor claims may be obtained is not a sufficient increase over the price at the former sale to justify the order.' When to the purchase price we add the judgment on the premises which the purchaser was obliged to discharge; the improvements whieli he has put on the property ; the expense of a re-sale; the costs of this motion ; the expenses which will be caused to the purchaser by taking away his land at this time; the interest which be has paid on the mortgage ; even if we deduct therefrom whatever profits it shall appear that he has received, we shall find that the probable benefits to be derived from a re-sale is not enougli to make such a re-sale expedient, under the practice of a court of equity on this subject.

And it must further be observed, that it is for the public good that such sales as this, where no fraud is charged on the purchaser, should not be readily set aside. Men would be reluctant to bid at such a sale (especially where the property sold was a farm), if a purchase, made in good faith, might be set aside, after a year’s possession and enjoyment, and the expenditure of labor and money, on the ground that the farm did not sell for its full value. Men often attend such sales in the hope of making a good bargain; and they may rightfully do so, when there is no fraud, and the salo is conducted fairly. This hope is valuable, to induce men to attend, and thus to produce competition. And, therefore, the court should be careful to do nothing which would deter, in the future, attendance and competition at similar sales. Great benefit in the particular ease must he shown, in order to justify the harm which may he done in the case of other sales.

The order should be reversed, with $10 costs, and printing disbursements, and the motion for a re-sale denied, with $10 costs.

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

Order reversed, with $10 costs, and disbursements, and motion for re-sale denied, with $10 costs.


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    ARTHUR M. MURPHY, as Receiver, &c., Respondent, v LAFAYETTE MOORE, MARY E. MOORE, HENRIETTA BRIGGS, CATHARINE WHITING, Appellants, Impleaded with JACOB, I. WERNER.

      Conveyance made with intent to defraud creditors — rights of mortgagees of the fraudulent grantee.

    Where, iu an action brought by a receiver appointed in proceedings supplementary to execution, to set aside a conveyance, as fraudulent as against the creditors of the grantor, it appears that the fraudulent grantee has at the request of the fraudulent grantor given mortgages upon the property to secure debts of the grantor, existing at the time of the conveyance, to creditors who were ignorant of his pecuniary condition and ability, and of Msintentinmakingthe conveyance, the rights of such mortgagees arc superior to those of the creditors bringing the action, and cannot be affected thereby.
    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 by the plaintiff, who had been appointed a receiver'of tbe property of one Lafayette Moore, in proceedings supplementary to execution, issued upon judgments recovered against him in April and May, 1878, to set aside certain conveyances made by Moore to Werner, and by Werner to Moore’s wife, in February of that year, and also certain mortgages given to the defendants Henrietta Briggs and Catharine Whiting (creditors of Lafayette Moore) at Moore’s request, by Mrs. Moore upon, tlie property so conveyed to her. In March, 1878, Lafayette Moore made a general assignment of all his property for the benefit of his creditors.

      Monroe Wheeler, for the appellants, Lafayette Moore and Mary E. Moore.

      Jacob I. Werner, for the appellants,
    Briggs and Whiting. By the conveyances, the legal title to the seventy-two acres of land was vested in Mrs. Moore, and lias never been divested, except by her mortgages, to Mrs. Briggs and Mrs. Whiting. (Rankin v. Arndt, 4A Barb., 251, 256, 257; 2 R. S., 137, § 5 ; Cole v. Malcolm, 66 N. Y., 363, 365, and cases cited in appellant’s brief,; Bump on Fraud. Con., 2d ed., 451, 452, 571, and notes.; 4 Abb... Now Big., title “Mortgage,” §§ 448, 449 ; 4 Johns., 216 ; 2 R. S., .137, marg. § 5 ; 44 Barb., 251, 256, 257; Bump on Fraud. Con., 2d cd., .488, 489 ; Jackson v. Henry, 10 J ohns., 184, 196, 197; Avhwm Ex-ofumge Banlev. Eitch, 48 Barb., 344, 349.) By the agreement and consent of all of the defendants, a portion of Mr. Moore’s property was finally appropriated to the payment of his debts. lie. had an undoubted right to prefer his creditors. (Cramer. v. Blood, 57 Barb., 155, 671; 8. C., 48 N. Y., 684; Bump on Fraud. Con., 2d ed., 473, and notes, 484, where it is said: “An innocent, mortgagee as well as a bona fide purchaser is within the protection of the proviso;” and 5 Bans., 149, is cited, with other cases; Wilson v. Berg, 7 Reporter, 508; Wrterbury v. Sturtevant, 18 Wend.,. 353,. 363, opinion by Senator Edwards ; Hall v. Arnold, 15 Barb., 599.) The same rule must prevail as to real estate, whenever the prosecuting creditor has not a prior lien or a superior ■ equity; and the case of Gery v. White (52 N. Y., 138), is not in conflict with, this position. (See 1 Barb. Ch., 220; 4 Sandf.., ,522; Anderson' v.Roberts, 18 Johns., 515; Birdseye v. Ray, A Hiil, ■ 158.) .‘‘The parties may rescind the fraudulent contract rand .enter into-a new-contract for a sale or other transfer of the property, and if- the lat-. ter is made in good faith and for a valuable consideration, it will not be contaminated by the fraud in the first.” '.(Bump on Fraud. Con. (2d ed.), 4-73, and 57 Barb., 155; 8. G, 48 N. Y.,/684; 4 Id., 496; 2 Robt., 459 ; 48 Mass., 520, and numerous other cases there, cited; Civil Code, §1915, citing. Miller v. Lewis, 4..N..Y., 5.54,.. 559; 1 Story Eq. Jur'., 12th ed., §§ 381, 433, 640.)i .Purchaser.without-notice protected. (Newton v. McLean, 41 Barb.¿,.285,-237, 2,89; 44 Id., 251; 10 Johns., 196.) .. - y ,.. ...

      Griswold <& Crowell, for the respondent.
    The couveyauce /by Moore to his wife of this real estate was void as-,to tljp phfintiif-a'nd the judgment creditors ;whom ho represents-,;is".receiver, . (2;Edm.' Stat., 142 ; Colev. Tyler, 65 N. IB,-73 ; Union,.,fif-atioiya\ Bank-, v. Warner, 12 linn, 306.) The mortgages pxccutecE by. Mrs. • Moore to the defendants Briggs and Whiting mxist.fail.to the mine extent as the title of the mortgagor, being a mere lien on such title. [Rinohey v. Stryker, 23 N. Y., 598 ; Barnard v. Campbell, 55 N. Y., 461.) Neither defendant Briggs nor Whiting comes within the exception in the statute provided by section 5, 2 R. S., 137. These mortgagees, not being bona fide purchasers for a valuable consideration, could acquire a lien only on such title to this real estate as their mortgagor possessed. [Barnard v. Campbell, 58 N. Y., 73 ; Be La/noey v. Stearns, 66 Id., 157 ; Cary v. White, 52 Id., 138 ; Weaver v. Border,, 49 Id., 289 ; Griffin v. Marquardt, 17 Id., 28; Piokeb v. Barron, 29 Barb., 508; Biokerson v. Tillingerhast, 4 Paige, 215.) The defendant Whiting had notice of the fraud in the conveyance by Moore to his wife. [Ilerlick v. Brerman, 11 Hun, 194 ; Williamson v. Brown, 15 N. Y., 354 ; Reed v. Gen-non, 50 Id., 349; Myer v. Lathrop, 73 Id., 321.) The deeds and mortgages should be considered as parts of one single transaction and fraudulent scheme. [ILaydoek v. Coope, 53 N. Y., 68 ; Elias v. Farley, 3 Keyes, 398 ; Nicholas v. MoEioen, 17 N. Y., 22; Bishop on Assignments, § 184.) The judgments were valid liens on this real estate. [Chautauqtia County Bank v. Risley, 19 N. Y., 370; Porter v. Williams, 9 Id., 142; Underwood v. Sutcliffe, 77 Id., 62 ; Austin v. Bell, 20 Johns., 441; Rinohey v. Stryker, 28 Id., 45 ; Bank v. Leggetíi, 51 Id., 552.) The assignee is not a necessary party. [Cole v. Malcomb, 66 N. Y., 365.) The right of a judgment creditor to set aside a conveyance as fraudulent and void as to creditors, is not affected by a voluntary general assignment. [BrowneU v. Curtis, 10 Paige, 211; Leach v. Kelsey, 7 Barb., 466; Browning v. Kart, 6 Id., 91; Andrews v. Roberts, 16 Johns., 526; 19 Alb. Law J., 282; 22 Id., 60.) There is nothing in chapter 314 of Laws of 1858 (4 Edm. Stat., 483), that deprives a judgment creditor of his right of action.
   Learned, P. J.:

Assuming, for the present, that the conveyances from Moore to Werner, and that from Werner to Mrs. Moore, were fraudulent and void as against creditors, the important question is whether the mortgages, executed by Mrs. Moore to Mrs. Briggs and to Mrs.. Whiting, must fail.

. Mrs. Briggs and Mrs. Whiting were Iona fide creditors of Moore. •It does not distinctly appear, but it would seem that the greatest part of this indebtedness arose before the conveyance by Moore to Werner.. It is specially found by the court that, prior, to the execution of the mortgages to Mrs. Briggs and to Mrs. Whiting, these persons were ignorant of the pecuniary affairs and condition of •Moore, and of his ability or inability to pay his debts, and had no notice of the claims of the persons represented by the receiver, and also that they had no knowledge of the circumstances of, or the consideration for the conveyances by which Moore transferred the land to his wife ; and had no actual -knowledge or information of the intent of the conveyances, other than such as appeared from ■the conveyances themselves. Thus it appears that these mortgagees acted in good faith, and with no intent to defraud. . , , ■

It is undoubtedly true, as urged by the plaintiff, that, where a ■ conveyance has been made which is fraudulent against creditors, a purchaser from the fraudulent grantee, in order to resist the rights Of the grantor’s creditors, must have parted with value as a consideration for the conveyance to him. And therefore, if the fraudulent grantee, to secure a pre-existing debt of his own, and without any present consideration, mortgages the property, the mortgagee cannot defeat the rights of the creditors of the original grantor. The reason of this, is plain. The creditors of the fraudulent grantor ai*e entitled to have his property applied to their debts, in preference to one who has parted with nothing on the strength of the apparent title of the fraudulent grantee.

But the present question is entirely different. Here the fraudulent grantee, at the request of the fraudulent grantor, has applied the property to secure debts of the grantor himself. The act then amounts only to a preference given by the grantor to one of his creditors over another. In this there is nothing fraudulent. The fraud consists in his taking away from his creditors that which, should apply to their debts. But when his property is applied to any of his debts, there is no fraud in such application. The fraudulent grantee, in surrendering the property, and applying it to the . payment- of the grantor’s debts, was doing the very equity which -.•would have .been demanded-of her by the court. ■

■ Mrs. Briggs and Mrs. Whiting have legal mortgages on the property. The plaintiff claims that the mortgages are void as to the creditors of Moore. But Mrs. Moore and Mrs. Whiting, being themselves creditors of Moore, are just as equitably entitled to have their debts paid or secured, out of Moore’s property, as. are the persons whom the plaintiff represents. And Mrs. Moore and Mrs, Whiting, besides this equal equity, have the legal rights given by their mortgages. There is no reason, therefore, that they should he deprived of the rights which they have obtained. (Seymour v. Wilson, 19 N. Y., 417.) This doctrine, or one quite analogous, was recently held by this court in Pond v. Comstock (20 Hun, 492).

These views render it needless to examine the question, whether, the assignee of Moore was a necessary party.

■ The judgment must he reversed so far as it affects Mrs. Briggs and Mrs. Whiting, and it must be' adjudged that their mortgages are valid as against the plaintiff and those whom he represents ■; and Mrs. Briggs and Mrs. Whiting must recover against the plaintiff costs of the action and of this appeal.

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

Judgment reversed as to Mrs. Briggs and Mrs. Whiting, and judgment for them against plaintiff, with costs; form of judgment to be settled before Learned, P. J.


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    LEVI S. GUSTINE, Respondent, v. MARY R. STODDARD, Appellant.

      Statute of limitations — does not begin to run against attorneys' claim for services, until the termination of the action — is not affected by an intermediate assignment of the cause of action.

    In I860 Messrs. Pond & French, as attorneys, for S. 8. Stoddard, commenced an action against one Whiting, in which, they were defeated at the Circuit, but were successful in the Court of Appeals, a judgment in favor of the plaintiff being entered on May 16,1872. Pending-the appeal taken by him ' to the General Termj and on September 10, 1809, the plaintiH assigned h'iá-' right pf action to the defendant in. this action subject to the payment of■all-costs and counsel fees of every name and nature, due to the said Pond & (French, and to all costs which ho then was or might become liable to pay to Whiting, which w'efe assumed by the defendant.
    Ill this action, brought by the assignee of Messrs. Pond & French, to recover, ;-for their services rendered in the, action against Whiting, Held, that their claim for services, was .entire, and that the statute of limitations did not ■ begin to run against it'uhtil the final termination of tiio action in 1873.
    That they were entitled, to recover for the services rendered before, as well as for those rendered after the assignment to the defendant.
    Appeal by tbo defendant from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover for professional services rendered by Messrs. Pond & French, which claim had been assigned to tl;C plaintiff, embracing services rendered in different actions, and .continuing from .1806 down to the time of the commencement of ¡this- action, May 25, .1877.
    This appeal seeks to review two items, one of $60 and one of $500. As to the- item of $60, the plaintiff, on settling the case, -.offered to deduct it, insisting, however, that it was correct. The principal question is: on the item of $500. Pond & French, on the retainer of AbicLStqddard, commenced an action in 1866, in the parné of Sylvester.-S. Stoddard, against Lewis E. Whiting. Judgr rn'ent therein for dismissal of the complaint, with costs, was entered ¡May 8, 1869. Appeal-was taken May 29,1869, to the General Term. September 16, I860;. Sylvester L. Stoddard assigned to defendant .•his right of action-by q sealed instrument. Therefrom, on the employment of the defendant, Pond & French proceeded with the acitrón. It went to; the Court of Appeals, whore the plaintiff succeeded, March 5,-1872. (See 46 N. Y.,. 627.) Under the judgment in favor of plaintiff tiras obtained a reference was bad, beginning April, 1872j and: continued to May 16, 1872, when a report jwas made, stating the .amount to be paid by defendant, assignee of jthe .plaintiff, in that action, to redeem the premises. Such payment was accordingly made, and the premises were convoyed by ,Whiting to defendant.; ,
    UvThe services of.Pp.nd & French before the assignment to defendgnt were worth $500. The question- is, whether the claim for those services is barred by the statute of limitations.
    * The assignment by Sylvester S. Stoddard to defendant is made, “ subject to the payment by said Mary R. Stoddard of all costs and counsel fees of every name and nature, due to Pond & .French, my¡ attorneys, in the action, and all costs which I am- now liable for, or may become liable to pay to the defendant in:said action, if any; all which-said Mary.R., by accepting this assignment and transfer,' agrees to and does assume.” .....

      P. II. Cowen, for the appellant.

      A. Pond, for the respondent.
   Learned, P. J.:

The contract of the attorney who prosecutes -a suit is entire! The statute does not begin to run until his relation to the suit aá attorney has ceased. (Bathgate v. Haskin, 59 N. Y., 533.) 'This is the doctrine of Adams v. Port Plain Bank (36 N. Y., 255), Mygatt v. Wilcox (45 Id., 309.) If, for instance, there- had been n'o assignment to the defendant, the relation of -Pond & French to the suit as attorneys would not have ceased till May 16, 1872; and the statute would not have commenced running- xintil that time. The only question here presented relates to the 'effect óf the assignment to'the defendant, and of her assumption-'of - the costs, for which Stoddard was then liable. Now,' clearly,'her assumption of these costs did not make her liable any sooner than'Stoddard would have been. She stepped into his place and-became liable just-, as he had been. As against Stoddard, it is above- shown that the right of action would have arisen on the termination of the action. The defendant stands in the same position. If Messfs. Pond & French; immediately on the making of the assignment to the defendant, had sued her, she might well have answered in 1 defense,-that their contract xvas entire, and had not yet been completed that she had not undertaken to pay, so long as their l'elaiiori to the suit as attorneys continued.

' Of course these remarks do not mean tliat the client,may riot terminate tilo 'relation' at pleasure ;’ -or the -attorney; -dm í-eásonáble notice. None of these questions arise here. For .tlie .relation was continued the same after the assignment as before, with the assent of the parties. We think, therefore, that the claim of $500 was not barred by the statute.

As to the item of $60, we think that the statute of limitations is sufficiently pleaded. The payment of $30 did not take this claim out of the statute of limitations. It was not made on account of this claim. Nor is the present case analogous to Smith v. Velie (60 N. Y., 106).

' The plaintiff, having offered to deduct this $60, the judgment should be affirmed, with costs of appeal, on plaintiff’s stipulating to deduct the amount of $60 from the judgment.

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

Judgment affirmed, with costs, on plaintiff’s stipulating to deduct $60 from recovery.