text:
    Jerome L. Cheney, Rec’r, Resp’t, v. Ann Thornton, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    I. Mortgage—Husband and wipe.
    Contracts between husband and wife made prior to 1887 are legally invalid, but effect may be given to them as between the parties by courts of equity so far as they are just and fair and equitably ought to be enforced ; but the courts will not enforce a mere voluntary agreement not founded upon any consideration in favor of either against the other.
    S. Same.
    Defendant’s husband conveyed certain real estate to his mother subject to two mortgages, which defendant subsequently purchased. On a foreclosure of one of the mortgages defendant purchased the property and gave a mortgage to her husband. In an action by his receiver to foreclose this latter mortgage defendant testified that no money passed between her and her husband and that she received nothing for the mortgage; which testimony was not contradicted. Held, that there was nothing to justify a finding that the husband had any interest in the premises which was a sufficient consideration to uphold the mortgage, and that the burden, which was upon plaintiff, of showing a consideration, was not sustained.
    Appeal from a judgment entered in Onondaga county April II, 1891, rendered on the decision of a special term. The case contains all the evidence.

      Robert JE. Drake, for app’lt; P. J. Ryan, for resp’t.
   Martin, J.

This action was to foreclose a mortgage. It was brought by the plaintiff as receiver of the property of Joseph Thornton, a judgment debtor. The plaintiff, was appointed in proceedings supplementary to execution instituted by Nicholas Joy upon a judgment obtained by him and entered in Onondaga county. The mortgage sought to be foreclosed was given by the defendant to Joseph Thornton on the 5th day of October, 1885. When it was given, the defendant and Thornton were husband and wife. They were.married in May, 1879.

Prior to April 30, 1877, Thornton was the owner of the premises covered by the mortgage in question. On that day he conveyed them by warranty deed to Catharine Tobin, his mother, the consideration mentioned therein being $2,500. At the time of such conveyance, the premises were encumbered by two mortgages; one given by Thornton to Peter Tobin, February 1, 1877, to secure the payment of $300 and -interest, and the other was held by the Onondaga County Savings Bank, and given to secure the payment of $1,000 and interest. Both of said mortgages were subsequently purchased by and assigned to the defendant; the $300 mortgage on January 2, 1880; the $1,000 mortgage on January 4, 1882.

At the time of her death Catharine Tobin owned the premises subject to these two mortgages. By her will she devised them to. Thornton’s son, John. Whether John is living Or dead is unknown.

In 1885 the defendant commenced an action to foreclose the-. $1,000 mortgage; the mortgage was foreclosed, the premises sold to the defendant, and a deed duly executed to her therefor October 5, 1885. On the same day the mortgage in suit was executed, and purported to be given to secure the sum of $2,500.

The validity of this mortgage is substantially the only question involved in this suit It-must be admitted at the outset that the plaintiff as receiver acquired only such rights as the defendant’s husband possessed at the time of the plaintiff’s appointment.

The appellant insists upon this appeal, as she did at special term, that the mortgage in suit was invalid as a legal contract, by reason of the marital relation which existed between the parties thereto when it was given, and that it ought not to be enforced in equity, as it was a mere voluntary agreement without consideration, and not shown to have been- equitable, just or fair.

The common law doctrine that husband and wife cannot contract with each other has not been changed by the legislation in this state respecting the rights of married women (unless by the act of 1887, which is not applicable to this case), and contracts between them before 1887 are legally invalid. Courts of equity,, however, will give effect to transactions or agreements between husband and wife, so far as they are just and fair and equitably ought to be enforced, but will not enforce a mere voluntary agreement not founded upon any consideration either in favor of the wife against the husband, or in his favor against her. Hendricks v. Isaacs, 117 N. Y., 411; 27 St. Rep., 449.

Prior to the act of 1887 a deed from husband to wife, or from wife to husband, was void, and did not operate to divest the grantor of title unless founded upon a valuable or meritorious consideration, such as would enable a' court of equity to sustain it. The burden is upon the party claiming under such a deed to prove the consideration. Dean v. The Metropolitan El. R. Co., 119 N. Y., 540; 30 St. Rep., 81.

The trial court found: “ That neither at the time of the giving of said mortgage, nor at any time before or since, has the defendant, received any money as a consideration for said mortgage.” But it also found “ That the said Joseph Thornton had a certain interest, in the said property sufficient to support the said mortgage, and. render the same a valid security, and there was a good and valid consideration for the same, and that the said mortgage was executed by defendant to the said Joseph Thornton for his interest in the said mortgaged premises described in the complaint, previous to the foreclosure of the mortgage in 1885.”

On the trial the defendant testified that no money passed between her and her husband, and that she received nothing whatever for the mortgage. This evidence was uncontradicted, and was direct proof that there was no consideration for this mortgage. When we examine all the evidence given on the trial, we find none that would justify a finding that the mortgage in question was founded upon' any sufficient consideration, or was other than a, voluntary contract between the parties. We think the evidence was not sufficient to justify the court in finding that the defend-' ant’s husband had any interest in the premises which was a sufficient consideration to uphold a mortgage between husband and' wife. It is manifest from the opinion of the learned trial judge that he was totally unable to describe what interest the defendant’s husband had in the premises, or from the proof before him to determine that he actually had any interest whatever. The most he was able to say upon the subject was that he might have had some interest which was sufficient to constitute a consideration for • the mortgage in qüestion. An examination of his opinion discloses, we think, that his finding that the defendant’s husband had an interest in the mortgaged premises was, in fact, based upon conjecture rather than upon proof.

As we have already seen, the burden of proving that this mortgage was based upon a sufficient consideration, and that it was fair and just and equitably ought to be enforced, was upon the plaintiff. This burden he has not successfully borne. We are of the opinion that the evidence was insufficient to justify the judgment awarded, and that it should be reversed.

Judgment reversed on the facts and a new trial ordered, with costs to abide- the event

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    William McDonald, App’lt, v. David H. McLaury and Catharine McLaury, Resp’ts.

      (Supreme Court, General Term, Fourth, Department,

      Filed February 13, 1892.)

    1. SUMMARy PROCEEDINGS—NOTICE TO QUIT—CODE ClV. PRO., §§ 2232, 2236.
    The giving of a notice to quit is a condition precedent to the right to institute proceedings to remove a person after mortgage foreclosure, and the petition must allege the giving of such notice in order to confer^ jurisdiction on the justice to issue process. A statement that petitioner “demanded possession" is not sufficient.
    2. Same—Waiver of defects.
    Such defects are not waived by the appeararce of the defendant and proceeding to trial, where the first appearance was special for the purpose of objecting, and the same objections were renewed at the close of the trial.
    Appeal from a judgment or order of the Delaware county court, reversing a final order awarding to the appellant the possession of certain premises situate' in Delaware county, made by a justice of the peace of that county, in summary proceedings to recover the possession of real property.

      JE. O' Connor, for app’lt; Walter Scott, for resp’ts.
   Martin, J.

The final order in this proceeding was reversed by the county court without opinion, and, hence, we have no means of knowing the particular grounds upon which the decision was based.

The respondents, however, seek to uphold it upon the ground, among others, that the petition presented to • the justice upon which such proceedings were founded was fatally defective in not alleging that the notice required by section twenty-two hundred and thirty-six of the Code of Civil Procedure had been given.

The authority to maintain proceedings of this character is given by title 2 of chapter 17 of the Code of Civil Procedure. Independent of this statute, the proceedings could not be maintained. •Such proceedings are entirely statutory, and must be conducted in strict accordance with the provisions of the law, otherwise they •are absolutely void. Miner v. Burling, 32 Barb., 540; Coatsworth v. Thompson, 5 St. Rep., 809.

The provisions of section twenty-two hundred and thirty-two, :so far as they relate to the question under consideration, are as follows:

“ In either of the following cases, a person who holds over and ■continues in possession of real property after notice to quit the same has been given, as prescribed in section two thousand two hundred and thirty-six of this act, and his assigns, tenants, or legal representatives, may be removed therefrom, as prescribed in this title:
up * * * *
“ 2. Where the property has been duly sold, upon the foreclosure, by proceedings taken as prescribed in title ninth of this chapter, of a mortgage executed by him, or a person under whom he claims, and the title under the foreclosure has been duly perfected."

It will be observed that authority to institute a-proceeding to remove after mortgage foreclosure exists only in case of a person who holds over and continues in possession after notice to quit has. been given as prescribed by section twenty-two hundred and thirty-six. The giving of such notice is a condition precedent "to the right to institute the proceeding. Section twenty-two hundred and thirty-six, so far as applicable to this case, provides: “ Where the application is made in a case specified in section two •thousand two hundred and thirty-two of this act, the petition must state that a notice, in behalf of the applicant, requiring all persons -occupying the, property to quit the same, by a day therein specified, has been either served personally upon the person or persons to be removed, or affixed conspicuously upon the property, at least ten days before the day specified therein.”

The following is the only allegation in the petition in this case which it is pretended was at all in compliance with this requirement of the statute: “ That after the title to the said mortgaged premises had been fully perfected in this petitioner as aforesaid, this petitioner demanded possession of said premises from said David H. McLaury and Catherine McLaury, who were then in possession and who are now in possession thereof, claiming to hold the same by some right or title derived from said David H. McLaury, the said mortgagor, subsequently to the execution and delivery of said mortgage, and that the said David H. McLaury and Catherine McLaury neglect and refuse to surrender said possession, and that they hold over and continue in possession of said premises after the perfection of said title under said foreclosure proceedings, and after such demand aforesaid, without permission of this-petitioner who is entitled. to the possession thereof.” There was-here no allegation or statement that a notice, in behalf of the-appellant, requiring the. persons occupying the property to quit, the same by a day therein specified, had been either served personally upon the respondents, or affixed conspicuously upon the-property at least ten days before the day specified therein. It is. manifest that the provisions of § 2236 were not complied with.

It is an elementary rule that, in every purely statutory proceeding, the statute must be strictly pursued in order to give jurisdiction to the court or officer called upon to apply its provisions.”’ Schneider v. Leizman, 57 Hun, 562; 33 St. Rep., 351.

As the appellant entirely omitted to insert in his petition the-statement required by § 2236, the justice acquired no jurisdiction and was not authorized to issue the original process in the proceedings sought to be commenced. Chretien v. Doney, 1 N. Y., 419; People v. Matthews, 38 id., 451; People v. Andrews, 52 id., 445; Cuyler v. Crane, 25 Hun, 67; People v. Boardman, 4 Keyes, 59; Coatsworth v. Thompson, 5 St. Rep., 809; Hallenbeck v. Garner, 20 Wend., 22; People v. Keteltas, 12 Hun, 67.

- The claim that the defendants waived the objection to this defect in the petition by appearing in the proceeding cannot be sustained. They appeared first specially for the purpose of objecting to the proceeding and among others raised the objections, “ that, there is not evidence in the petition that a notice requiring all persons occupying the premises in question to quit the same by a day specified therein was served on the defendants or either of them ten days before a day specified in said notice or that any notice of that purport was so served. 3d. There is no evidence in the petition or otherwise before the court that the petitioner has in any way demanded possession of premises in question since his pretended title to said premises was acquired or- that any such demand was made ten days before these proceedings were instituted.”

At the close of the evidence substantially the same objections were again raised. In both instances they were overruled by the-justice, and the respondents duly excepted. Under these circumstances we do not think the defect in the appellant’s petition was waived. The court' erred in overruling the objections of the respondents, and for such error the county court properly reversed the final order in the proceedings.

Judgment affirmed, with costs.

Hardin, T. J., and Merwin, J., concur.


text:
    Sidney Wilder, App’lt, v. Henry C. Ballou, Ex’r. of Theodore P. Ballou, Deceased, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    1. Decedent’s estates—Limitation.
    Section 406 of the Code is applicable in a case where the limitation provided for by § 1822 is pleaded as a defense.

      8. Same.
    After the rejection by the executor of a claim presented by plaintiff, the latter moved to have an action previously brought upon said claim continued against the executor; which motion was granted on condition that plaintiff stipulate not to claim treble damages and to stay all proceedings on the claim presented to the executor, which stipulation was given. The order entered thereon, in terms, granted the motion and directed the filing of the stipulation in ten days. Held, that such order operated as a stay, and that the time of the continuance of such stay was not a part of the time limited for the commencement of this action upon the claim so presented and rejected.
    Appeal from a judgment, entered in Oneida county, October '9, 1891, dismissing the plaintiff’s complaint, with costs. In December, 1885, the plaintiff commenced an action against the defendant’s testator and one James N. Walters for the same cause of action set out in the complaint herein. Issue was joined therein by the service of answers by both defendants. Before it was brought to trial, and on February 28, 1887, the defendant’s testator died, leaving a last will and testament by which the defendant was appointed as his executor. This will was subsequently admitted to probate, and letters testamentary were duly issued to him, and he qualified as such executor.
    After having so qualified and entered upon the duties of his 'office, he caused a notice to the creditors of the decedent to be published in a newspaper printed in the county where the testator resided at the time of his death, requiring such creditors to present their claims to him at his office on or before the 15th of September, 1888. This notice was published from March 12th until September 15th of that year.
    During the publication of such notice, and on June 30th and July 2, 1888, the plaintiff presented to the defendant his claim, which was the same as the cause of action set forth in the complaint. On the 25th of the latter month, the defendant served upon the plaintiff a notice in writing that he doubted the justice and validity of such claim, and therefore disputed it. The claim presented was not referred.
    On December 3, 1888, the plaintiff moved in the action against the defendant’s testator and Walters for an order reviving that action as against the decedent’s estate and to make the defendant a party thereto. This motion was opposed by the defendant on the grounds that after the death of his testator and after letters testamentary were issued to him, the plaintiff had proceeded therein against Walters, the surviving defendant, thus working a practical severance thereof. And also on the further ground that the claim presented by the plaintiff to the defendant had not been withdrawn, and defendant claimed that any motion granted to revive and continue such action should be conditional upon the withdrawal and abandonment of his claim as presented against the estate of defendant’s testator.
    The court decided that it would grant plaintiff’s motion, provided he would within ten days stipulate to waive his right to apply for treble damages in case of a verdict in his favor, and also-stipulate within that time to stay all proceedings upon his claim. presented to the executor, to be binding as long as the order stood. In pursuance of that decision, an order was entered as-follows:
    ‘ Upon reading and filing affidavits of the above named plaintiff, verified November 23, 1888, and notice of motion to continue and revive the action as to the' estate of defendant Theodore P. Ballou, and bring in his executor, and upon reading and filing affidavit of Henry 0. Ballou, verified November 26th, and. E. J. Richardson, verified November 27, 1888, after hearing A„ B. Steele, of counsel for plaintiff, for said motion, and E. J.. Richardson, of counsel for defendants and said executor, opposed. Ordered, that this motion be, and the same is hereby granted, the-said plaintiff as a condition of the granting of said motion, file a. stipulation to waive his right to apply for treble damages in case-of a verdict in his favor, and also stipulate to stay all proceedings-upon his claim presented to the executor, such stipulation to be filed within ten days and to be binding as long as this order-stands. ”
    On December 13, 1888, the plaintiff filed a stipulation in compliance with such order, waiving the right of plaintiff to apply for treble damages and stipulating that all proceedings be stayed upon the claim of plaintiff presented to the defendant, to be binding as-long as the order reviving the action and bringing in the executor stood.
    After such stipulation was filed, the defendant appealed from the foregoing order. Upon the appeal, the order of the special term was reversed. The order of reversal was entered February 27, 1889, and copies thereof served upon the plaintiff’s attorneys-upon that day.
    This action was commenced by the personal service of the summons and complaint herein upon the defendant as such executor-on the 28th day of March, 1889, and not prior to that time.
    From the time of the rejection of- the plaintiff’s claim to the-time of granting the order to revive the former action was four-months and sixteen days, and from the date of the entry of the order of the general term, reversing the order of the special term to revive and continue said action .to the commencement of this action, was one month and one day. This action was not commenced within six months after the plaintiff’s claim was rejected by the defendant, but excluding the time during which the order-reviving said action remained unreversed, the remaining time-between the rejection of such claim and the commencement of this action, was only five months and seventeen days.

      Steele & Prescott, for app’lt; K Jl Richardson and A. M. Mills,, for resp’t.
   Martin, J.

The only question that need be considered on this appeal is whether the plaintiff’s right to maintain this action was-barred by the six months limitation provided for by § 1822 of the Code of Civil Procedure.

' That the claim which was the foundation of this action was presented to the defendant as executor, and by him disputed andi rejected more than six months before the commencement of this action, was amply proved and undisputed.

The appellant, however, seeks to avoid the effect of the limitation provided for by § 1822, on the theory that § 406, which declares that “ Where the commencement of an action has been stayed by injunction, or by other order of a court or judge, or by statutory prohibition, the time of the continuance of the stay is not a part of the time limited for the commencement of the action,” was applicable to this case, and that he was stayed by the order of the' special term during the time the order reviving and continuing that action was in force.

The first question presented is whether the provisions of § 406 are applicable to the limitation provided for by § 1822. It is contended by the respondent that the general provisions contained in chapter 4 of the Code of Civil Procedure are not applicable to the special limitation provided for by § 1822. That question can hardly be regarded as an open one in this court. In Titus v. Poole (38 St. Rep., 627) we held that § 405 was applicable in a case where the limitation provided for by § 1822 was pleaded as a defense. If that decision was correct, it would seem to follow that § 406 is applicable to the case at bar, and that the time, if any, during which the commencement of this action was stayed by an order of the court was not a part of the time limited for the commencement of the action.

The contention of the respondent is that the decision and order made by the court did not absolutely require the plaintiff to give a stipulation for á stay of proceedings on his claim, and that there was no absolute order either continuing such action after such stipulation was given, or in any way staying the commencement of an action. He also contends that the only order granted was a provisional one, and that whether there was to be any stay was wholly dependent upon the consent of the plaintiff; that if there was any stay of proceedings, it was by virtue of the stipulation of the plaintiff, and not otherwise.

On the other hand, the appellant claims that such decision and order constituted a stay of proceedings by an order of court, and was within the provisions of § 406 of the Code; that, although the decision was conditional, yet, when the plaintiff accepted its terms, and entered an order whereby the motion was granted, and • he was directed to give a stipulation staying proceedings on his claim, the stay was in pursuance of an order of the court, and, therefore, within the spirit, if not within the letter, of that section. There seems to be much force in this claim.

The decision made by the court did not absolutely require the plaintiff to give a stipulation for a stay of proceedings, but the order which was entered by the plaintiff in pursuance of that decision was an order actually reviving and continuing the action against the defendant, and it in effect required the plaintiff to give a stipulation staying proceedings on his claim while that order was in existence. This we regard as a fair construction of the provisions of the order. The order, and not the memorandum of the judge, must control While the order did not in terms stay the commencement of an action by the plaintiff upon his claim, it required him to stipulate to stay proceedings thereon while it stood, which was tantamount to and in effect an order for such a stay. This question may not perhaps be entirely free from doubt, but when we consider this order in the light of the circumstances under which and the purpose for which it was granted, we are led to the conclusion that it in effect stayed the commencement of an action by the plaintiff upon his claim, and was within the spirit of § 406.

We are, therefore, of the opinion that the plaintiff was stayed by an order of the court from the commencement of an action upon his claim during the continuance of such order, and that the time of the continuance of such stay was not a part of the time limited for the commencement of this action. Hence it follows that the judgment appealed from should be reversed.

Judgment reversed, and a new trial ordered, with costs to abide the event.

Merwin, J., concurs; Hardin, P. J., not voting.


author: Martin, J.—The

text:
    Frederick Stearns & Co., App’lt, v. Ella A. Eaton, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Supplementary proceedings—Contempt.
    After the appointment of a receiver in supplementary proceedings against her, defendant commenced an action upon a policy of insurance on her husband’s life, which action was compromised for $1,100, of which $1,000 was plaid to her attorney in pursuance of an assignment under which he claimed it, and the balance to defendant who claimed it was exempt. Held, that an order denying a motion to punish her for contempt and direct the payment of the money to the receiver, without prejudice to an action by him to determine the rights of the parties to the fund, was proper; that such questions could not be tried in such a proceeding. .
    Appeal from an order, made by the county judge of Onondaga cohnty, denying appellant’s motion to punish the respondent for alleged contempt and for an order to compel her to pay over to the receiver herein certain moneys in her possession.

      J. A. McFarran, for app’lt; Eine & Barnum, for resp’t.
   Martin, J.—The

judgment which was the basis of the proceedings herein was recovered in justice’s court, March 13, 1890, for fifty-four dollars and twenty cents. A transcript thereof was filed in the office of the clerk of Onondaga county, an execution was issued thereon to the sheriff of that county and returned unsatisfied, when proceedings supplementary to execution were instituted, which on May 5, 1890, resulted in the appointment of a receiver of the property arid effects of the respondent. ' The order appointing the receiver enjoined the respondent from making or suffering any transfer or other disposition of or interference with her property except in obedience to that order.

The respondent held a policy or certificate of insurance upon the life of her husband in the American Oo-operative Relief Association, which entitled her upon the death of her husband to the proceeds of one full assessment upon the members of the association according to its by-laws, not exceeding three thousand dolíais. The moving papers failed to show when her husband died or whether her right to such insurance accrued after or before the supplementary proceedings were instituted by the appellant, but the papers used by the respondent in opposition to the motion perhaps showed, inferentially at least, that her right to such money had become fixed by the death of her husband before the proceedings were commenced.

After her husband’s death and after the appointment of the receiver herein, the respondent commenced an action against the insurance association to recover the amount due under her policy or certificate of insurance, which action was on or about September 27, 1891, compromised and settled for the sum of eleven hundred dollars. Of this sum one thousand dollars was paid to the respondent’s attornery under and in pursuance of an assignment made to him by her in February, 1890, and under which he claimed that sum. The remaining one hundred dollars was paid to the respondent, and was claimed by her to be exempt and consequently beyond the reach of her creditors in this proceeding.

After hearing the appellant’s motion and reading the papers in support thereof and in opposition thereto the learned county judge denied the motion, but without prejudice to an action by the receiver to determine the lights of the parties to the fund in question. ' It is quite manifest that the county judge did not intend upon this motion to determine the question whether the claim of the respondent’s attorney to the one thousand dollars paid him was valid, nor whether the one hundred dollars paid to the respondent was exempt, but intended to require the parties to bring an action to determine those questions. In this we find no reason to disturb the order appealed from. If the transfer by the respondent to her attorney was valid, the receiver acquired no interest in the portion of the fund assigned. The question of its validity could not be tried by the judge in such a proceeding, but only in an action brought by the receiver for that purpose. Bod-man v. Henry, 17 N. Y., 482; Barnard v. Kobbe, 54 id., 516; Teller v. Randall, 40 Barb., 242; Locke v. Mabbett, 2 Keyes, 457; West Side Bank v. Pugsley, 47 N. Y., 368.

The remaining one hundred dollars was claimed as exempt. It would seem that there was force in that claim. The learned judge instead of attempting to decide as to its validity in this proceed-' ing denied the appellant’s motion, for the obvious reason that that question ought not to be thus determined, but should be determined in an action for that purpose where all the facts could be shown and all the parties fully heard. The case of Dickinson v. Onderdonk (18 Hun, 479), would seem to justify the conclusion of the county judge. In that case it was in effect held, that in supplementary proceedings where the debtor claims .that property, which may by law be exempt from execution, is in fact so exempt, the question of exemption ought not to be tried in such proceedings, but should be tried in an ordinary action. Whether the money in the respondent’s hands would be ordered paid to the receiver, was at least discretionary with the judge. Code Civil Procedure, § 2447.

These considerations lead to an affirmance of the order.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concur.


text:
    Dana Rhodes, App’lt, v. R. Burns Linderman, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 13, 1892.)

    Contempt—Supplementary proceedings.
    After the recovery of the judgment in this action against him, but before issue of execution, defendant assigned to his wife all his right, title and interest in an insurance policy on his father’s life, in payment of an indebtedness due to her. After service of an order in supplementary proceedings upon him, he received a check for his interest in said policy, endorsed the same and deposited it in bank to the credit of his wife. Held, that he was not guilty of contempt in so doing; that if the money so recéived did not belong to him, but was the property of his wife, there was no violation of the injunction order.
    Appeal from an order of the county judge of Cortland county, denying'appellant’s application to punish the respondent for contempt in violating an injunction contained in an order for his examination in proceedings supplementary to execution, adjudging that he was not guilty of such contempt, and awarding him costs.
    * On the 9th of April, 1887, the appellant obtained a judgment against the respondent for $73.56 damages and costs before a justice of the peace of the town of Groton, Tompkins county, ¡N". Y. The summons was personally served upon the respondent. A transcript of this judgment was filed, and the judgment duly docketed in the office of the clerk of the county of Tompkins on the 26th day of January, 1891. On February 4, 1891, a transcript of the judgment docketed in Tompkins county clerk’s office was filed, and the judgment docketed in the office of the clerk of Cortland county. An execution upon this judgment against the property of the respondent was thereupon issued out of the county court of Cortland county, delivered to the sheriE of that county, being the county where the respondent then resided, and the sherifl returned said execution wholly unsatisfied on February 4, 1891. On the same day the appellant obtained an order to examine the respondent in proceedings supplementary to execution, which was granted by the county judge of Cortland county. This order was served upon the respondent, whd appeared before a referee appointed to take his examination. The order also forbade the respondent from “ making or suEering any transfer or other disposition, or the interference with the property of R. Burns Linderman, the judgment debtor, or in which he has any interest, legal or equitable, and not exempt from levy and sale on execution until further directions in the premises.”
    The respondent was examined before such referee and the examination was adjourned from time to time until the 26th of February, when the appellant obtained an order from said county judge requiring the respondent to show cause why be should not be punished for contempt in disobeying the injunction contained in the order for the examination of the judgment debtor.

      On the return of such order, the respondent appeared and filed ' a verified answer denying the contempt The appellant then obtained an order from the judge referring the matter to W. D. Tuttle, Esq., as a referee to take the proofs, hear the allegations and report the same to the court with his opinion as to whether the respondent was guilty of the alleged contempt In pursuance of this order the referee took the evidence and reported the same to the court with his opinion thereon, which was to the effect that ' the respondent was not guilty of contempt. The respondent upon the evidence, affidavits and proceedings, then made application to the county judge to be discharged and acquitted of the alleged contempt, and for costs. Upon such application the appellant appeared and asked the judge to consider the whole matter as if no report had been made by the referee, which the judge proceeded to do, and made findings of fact and conclusions of law at appellant’s request.
    Among others, the judge found the following facts:
    “IV. That on or about October 3, 1890, defendant’s father, D. V. Linderman, died, leaving an insurance upon his life, of which $1,500 was made payable and belonged to defendant.
    “ V. That on or about the 15th day of October, 1890, the defendant herein assigned’and transferred all right, title and interest in the insurance policy of $2,000 on his father’s life to his wife, Emma B. Linderman.
    “VI. That on or about the 15th day of October, 1890, the defendant was indebted to the said Emma B. Linderman, and that he assigned his interest in said insurance policy and the money due thereon to her in payment of the debt which he owed her.
    “ VII. That upon the 6th day of February, 1891, the said $1,500 had not been paid by the insurance company nor received by the defendant.
    “VIII. That upon the 6th day of February, 1891, the order in supplementary proceedings marked: Ex. A., April 9, 1891, W. D. T., referee,’ was served upon the defendant.
    “IX. That upon the 18th day of February, 1891, the defendant received by check from the said insurance company, through its agents, the sum of $1,500, being the life insurance in said policy made payable to the defendant, and that the money from said check was passed to the credit in the bank of Emma B. Linderman.
    “ That at that time the defendant was not entitled to or did not own said money which was then due from the insurance company on the life of his father, but that at that time said money was the property and belonged to the said Emma B. Linderman.
    “ X. That for about a year and a half prior to the death of the said D. V. Linderman, said Emma B. Linderman paid the premium on the insurance of said $2,000, and had possession of the policy; that the same had been assigned and delivered to her by the said defendant, and his father, and she had possession of it, and the avails thereof at the death of said Linderman to the extent of $1,500 were payable and to be applied on this indebtedness to her in accordance with an assignment to her previously made.
    “ XI. At the request of the plaintiff’s attorney, I further find as a mattér of fact that upon the return of the motion in these proceedings, dated May 19, 1891, the attorney for the plaintiff requested the court to return all the proceedings had before the referee, William D. Tuttle, Esq., to said referee with instructions that lie find the facts upon which he based his decision and report in these proceedings.”
    As a conclusion of law the judge held “that the defendant, R. Burns Linderman, is not guilty of contempt or violation of the order of February 4, 1891, as alleged and set out in the order to show cause and affidavit on which the order was granted.” He also directed that an order should be entered in accordance with such finding, and that the defendant should have ten dollars costs of his motion and his disbursements in the proceeding, and the disbursements were allowed as follows; Referee’s fees, thirty dollars; witness’ fees, $3.96; serving notice of motion, two dollars; amount, $35.96.

      G. M. Stoddard and S. D. Halliday, for app'lt; T. H. Courtney, for resp’t.
   Martin, J.

The basis of the alleged contempt was that the respondent had refused to obey the injunction order in that on the 18th day of February, 1891, he received from the Mutual Relief, or the Rochester Mutual Insurance Company, the sum of $1,500 in money, and on the same day disposed of the same by paying the whole thereof to his wife. The order appealed from should not be disturbed on the ground that the facts as found by the learned county judge were not sustained by the evidence. An examination of the appeal book shows that the evidence was sufficient to justify the findings made.

- Assuming the facts as found, it becomes quite manifest that the respondent was not guilty of contempt in receiving the check from the insurance company, endorsing it, and procuring the same to be placed to the credit of his wife at the bank. If, as was found, the $1,500 thus credited and received upon the policy did not belong to the respondent, but was the property of his wife, there was no violation of the injunction order. In Beard v. Snook (47 Hun, 158; 13 St. Rep., 233), this court held that to support a conviction for contempt in disobeying an injunction restraining the transfer of property in proceedings supplementary to execution, it must be proved that the title to the property transferred was in the accused. The same doctrine was again held in Duffus v. Cole (39 St. Rep., 838).

We think the order of the judge denying the appellant’s application to punish the respondent for contempt was proper and should be upheld.

We find no error in the award of costs against the appellant. Costs were in the discretion of the judge. On the application of the appellant the judge granted an order to show cause why the respondent should not be punished for contempt.- On its return, on motion of the appellant, the judge referred the issue made by the respondent’s answer to a referee in the face of the respondent’s objection. Thus, the motion and reference were made and had on the appellant’s application. He failed in both. The court then allowed the respondent ten dollars costs of the motion for his discharge, the disbursements arising from the hearing before the referee in the proceeding for contempt, and two dollars for serving notice of motion.

Under these circumstances we fail to discover any abuse of discretion on the part of the learned county judge.

The order should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Hardin, P. J., and Merwin, J., concur.


author: Bischoff, J.

text:
    George W. Fuller, Resp’t, v. David S. Tuska, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    Appeal—Interlocutory judgment.
    A judgment of the city court of New York which decrees that a demurrer to a complaint he overruled, with leave to defendant, upon payment of costs, to answer within a time specified, and, in case defendant does not serve an answer within said time and pay'costs allowed, then plaintiff may enter final judgment for the relief demanded in the complaint, is merely interlocutory, and an appeal will not lie to the court of common pleas from an order of general term affirming such judgment.
    Appeal from an order and a judgment of the general term of the city court affirming an interlocutory judgment made at special term overruling defendant’s demurrer to the complaint, and directing the entry of final judgment for plaintiff unless defendant answer the complaint within five days.

      William W. Fuller, for resp’t; Wm. JT. Cohn and Benjamin Tusica, for app’lt.
   Bischoff, J.

The action was to recover damages for defendant’s alleged breach of contract. A demurrer was interposed to the complaint on the ground, that it did not allege facts sufficient to constitute a cause of action. Upon argument the demurrer was overruled at special term, and upon the order there made judgment was entered whereby it was “ adjudged and decreed that the said demurrer is overruled, with costs, with leave to the defendant, upon paymant of said costs, to serve an answer within five days after service of a copy hereof and notice of entry, and in case the defendant does not, within five days after such service, answer the complaint and pay to the plaintiff’s attorney the sum of fifty-six dollars and seventeen cents, the costs as taxed herein, then plaintiff may enter final judgment against the defendant for the relief demanded in the complaint.”

From that order and judgment defendant appealed to the general term below, where the judgment was affirmed. An order of affirmance was made and judgment was duly entered thereon as follows : Ordered and adjudged that the said judgment be and the same is in all respects affirmed, with costs to the respondent,” and from the last mentioned order and judgment defendant has attempted to appeal to this court. The notice of this last appeal describes the judgment of the general term as also affirming a final judgment for plaintiff, but as the record contains only the judgments from which we have quoted, and neither the order or judgment of affirmance, nor the notice of appeal to the general term below, shows that any other judgment was appealed from or submitted to the general term for review, we cannot on this attempted appeal consider any other. Hunt v. Chapman, 62 N. Y., 333.

That an order of the general term of the city court affirming a judgment upon appeal is not an “actual determination” within the meaning of § 3191 of the Code of Civil Procedure, and that an appeal to this court lies only from the judgment entered pursuant to such an order, were held by us in Whitfield v. The Broadway & Seventh Ave. R. R. Co., 16 Daly, 288; 31 St. Rep., 285, and it remains for us, therefore, to consider only the appealability of the judgment of the general term below apjaearingin the record.

It will be noticed that the judgment goes no further than to affirm the judgment at special term. Had it extended defendant’s time to answer the complaint and directed that upon default in the service of such answer, plaintiff should be permitted to enter final judgment, it would also have been clearly interlocutory and so not appealable to this court Had it proceeded to adjudge final recovery for the plaintiff it would have - been a final judgment and upon appeal to this court could have been reviewed on its merits. Either form would^have been proper. Smith v. Rathbun, 88 N. Y., 660.

The court of common pleas possesses no appellate jurisdiction not expressly conferred upon it by statute, Wilmore v. Flack, 96 N. Y., 512, and the only cases wherein it may entertain appeals from the city court are those enumerated in | 3191 of the Code of Civil Procedure. These are, from an “ actual determination ” made at a general term of that court: 1st, where a final judgment has been rendered upon an appeal taken to such general'term; 2d, where an order has been made granting a new trial; * * * 3d, where an order has been made which grants, refuses, continues or modifies a provisional remedy, or where it involves some part of the merits, or where it affects a substantial right, or where, in effect, it determines the action, and prevents a judgment from which an appeal-might be taken.

Referring to subdivision 1 of § 3191 of the Code of Civil Procedure, it will be seen that to be appealable the judgment must not be awarded merely, but it must have been rendered, that is to say, made or delivered, and be final. Read with the judgment of the special term it must of course be conceded that the judgment of the general term awarded a final judgment for plaintiff upon defendant’s default in the service of an answer. But was the judgment of the general term final? If not, then final judgment was not yet rendered, and an appeal therefrom was premature. A final judgment “ is such a judgment as at once puts an end to the action by declaring that the plaintiff has or has not entitled himself to recover the remedy for which he sues. * * * It is the termination of the individual action which marks the finality of the judgment.” An interlocutory judgment “is one which determines some preliminary or subordinate point or plea, or .settles some step, question or default arising in the progress of the cause, but does not adjudicate the ultimate rights of the parties, or finally put the case out of court" Black on Judgments, vol 1, § 21.

The judgment of the special term determined that the undisputed facts alleged in the complaint entitled plaintiff to a recovery, and that, unless defendant controverted their allegation by answer within the time stated, a further judgment should be ■entered in favor of the plaintiff for the relief demanded by him.

That judgment did not, therefore, put an end to the action, or terminate it, or put the case out of court It remained for plaintiff upon defendant’s default in the service of an answer, to take further proceedings to determine and adjust the extent, or limit, of his recovery and to entitle himself to the invocation of the remedies given by law to carry that recovery into effect. The judgment of the general term proceeded no further; it conferred upon plaintiff no additional advantage, and he was thereby left to pursue the proceedings necessary to perfect his ultimate recovery. True, these proceedings may be only formal, but so is the entry of judgment upon an order of affirmance of a judgment on appeal, or an order reversing a judgment, or one sustaining a demurrer, but because of that fact such orders are not converted into judgments and rendered appealable, or deprived of their interlocutory character. Whitfield v. The Broadway & Seventh Ave. R. R. Co., supra; Mehl v. Vonderwulbeke, 46 N. Y., 539; Adams v. Fox, 27 id., 640; Elwell v. Johnson, 74 id., 80. The judgment of the special term may have become final respecting* the defendant in the sense that he is,. by reason of the expiration of the time granted him for service of his answer, precluded from ■offering further resistance to plaintiff’s ultimate recovery, but as to a final judgment it must be so as to all the parties who are to be affected by it. Black on Judgments, vol. 1, § 23.

Our conclusion is, that the judgment of the general term sustaining the judgment of the special term was interlocutory only, that final judgment for plaintiff was not rendered by the general term of the court below, and that an appeal to this court from an interlocutory .judgment of the general term of the city court is unauthorized.

Respondent’s motion for dismissal of the appeal must, therefore, be granted.

Appeal dismissed, with costs.

Pryor, J., concurs.


author: Daly, Ch. J.

text:
    The People ex rel Thomas Thornton, Resp’t, v. The Board of Public Parks, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Veterans—Laborers—Discharge.
    Under chap. 464, Laws 1887, a veteran soldier serving as a laborer must be retained while any laborers are employed.

      2. Same. .
    The transfer of jurisdiction over the annexed district where the veteraa was at work from the park department, and consequent suspension of work by the department in- that district, with a failure of funds for such work, will not justify his discharge so long as there is work to he done in, other sections of the city by the department and other laborers are retained to perform it.
    Appeal by defendant from the final order directing the issu■ance of a peremptory writ of mandamus, requiring the reinstatement and re-employment of the relator, Thomas Thornton, by the board of public parks, for the reason that the relator being an-honorably discharged Union soldier was entitled to preference of employment.

      Wm. H. Clark {Theodore Connoly and Terence Farley, of counsel), for app’lt; G. M. Van Hoesen, for resp’t.
   Daly, Ch. J.

The finding of the trial judge that the relator Thornton had capacity to discharge the duties of a laborer in the parks was amply sustained by the evidence. He had been employed in the department of parks for seven years down to December 30, 1890, when he was discharged. Mr. Parsons, the superintendent of parks, testified that he was capable of doing his work, and Mr. Huss, the foreman of the department, testified in effect that Thornton could work as good as any when he was watched, although he was reported at other times to go as slow as he possibly could. There was 'evidence pro and con upon the question whether Thornton was idle and shirked his work, and some attempt was made, which wholly failed, to show that he was guilty of stirring up dissension; but the trial judge found in his favor on all these issues, and the defendants have not excepted to- • such findings.

In view of the long service of Thornton in the department, of the absence of any formal charges against him while so employed, and of the fact of his dismissal being placed upon the express ground of want of work and failure of appropriation, the trial judge was undoubtedly justified in disregarding the rather weak evidence adduced by defendant against the relator’s character as a. conscientious workman.

The discharge of Thornton was not justified by lack of work or lack of money. He was a regular employee of the department in and about the city parks, and in the fall of 1890 was sent to-the “Annexed District,” of which the department then had charge. The jurisdiction over that section was transferred by authority of thé legislature to a commissioner of street improvements, and the appropriation for work in that section was exhausted ; but there was money and work for laborers like Thornton in other sections of the city of which the park department, had control; and when they discharged Thornton, on December 30, 1890, they retained in their employment about a hundred and! fifty laborers, and immediately after his discharge began to employ many more. These facts were found by the trial judge upon evidence which leaves no question of the propriety of his decision. As Thornton is an honorably discharged Union soldier .lie was entitled by law to be preferred, not only for appointment but employment (Laws of 1887, chap. 464), and preference in employment requires that the veteran soldier serving as a laborer should be retained while any laborers were employed, The People ex rel. O'Connor v. Adams, 53 Hun, 141; 25 St. Rep., 351, for the act charges the public officials with a faithful compliance with its terms, “ both in letter and spirit.”

We are referred to the case of The People ex rel. Moore v. Gallup and others, Lawrence, J., Sp. T. Sup. Ct., First Dept., May 11, 1891, as authority for sustaining the defendant’s contention that the transfer of jurisdiction in the Annexed District from the park department, and the consequent suspension of work in that territory on the part of the department with the failure of funds for such work, justified the discharge of all employees of the department working in said district. But there was absent in that case .such proof as there is before us of a controlling fact, viz., that at the time of the relator’s discharge there was work to be done in other sections under control of the department, and other laborers were retained to perform it.

The final order directing the issuance of a peremptory mandamus should be affirmed, with costs.

Bookstaver and Bischoff,- JJ., concur.


author: Pryor, J.

text:
    Andrew P. Blake, Resp’t, v. Simon Fox, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

      1. Landlord and tenant—Negligence—Defective elevator.
    Where a landlord furnishes an elevator for the use of his tenants it is his duty to keep the same in repair, and he cannot escape that duty by delegating its performance to others, and hence it is immaterial that the person who makes an alteration therein was the servant of the landlord or an independent contractor, or whether the landlord had notice of the defective performance.
    3. Same.
    The landlord is not excused from liability by the fact that such alteration was gratuitous and for the accommodation of the tenants.
    3. Same.
    To enable an elevator which carried 350 pounds to reach the upper story the rope was spliced, and a few days thereafter it parted at the splice, causing injury to plaintiff. Held, that there was sufficient evidence of negligence to carry the case to the jury.
    Appeal from judgment of general term, city court, affirming judgment on verdict; and from an order affirming order denying new trial. Action by infant of eight years, for damages from alleged negligence of defendant Plaintiff resided with his mother in a tenement house of defendant, where she hired apartments. A dumb-waiter operated between the cellar and the upper stories of the building for the general use of tenants in carrying coal and -other things to their r'ooms. This dumb-waiter was in the custody and control of defendant, landlord. At the instance of tenants, defendant undertook to arrange for the dumb-waiter to run to the 4op of the house; and this alteration required a lengthening of the sape by which the dumb-waiter was operated. Instead of procuring a new and longer rope, the old rope was “spliced.” Within, three days after the change the rope parted at the splice, was precipitated to the floor of the cellar, and by its fall inflicted the-injury complained of on the plaintiff.

      Samuel W. Weiss, for app’lt; T. B. Wakeman, for resp’t.
   Pryor, J.

In legal effect the relation between the plaintiff and defendant was that of landlord and tenant, and their respective rights and liabilities in the action are to be determined by that relation. •

The dumb-waiter being provided by the landlord for the common use of tenants, it was his duty “ to use reasonable care to keep it in repair and suitable condition.” Peil v. Reinhart, 127 N. Y., 381, 384, 385; 38 St. Rep., 913; Ritterman v. Ropes, 51 Supr. Ct., 25; Tousey v. Roberts, 53 id., 446; 1 St. Rep., 780;. Dawson v. Sloane, 49 Supr. Ct., 304, aff’d, 100 N. Y., 620. And. that duty he cannot escape by delegating its performance to, another, but is still responsible for its negligent performance by whomsoever he substitutes as his representative. Fuller v. Jewett, 80 N. Y., 46, 52; O’Sullivan v. Norwood, 14 Daly, 286; 8 St. Rep., 388. Nor was the rigor of the obligation incumbent on defendant at all relaxed by the fact that he undertook the alteration of the dumb-waiter for the accommodation of his tenants, the-rule being that, although the service was gratuitous, he was nevertheless liable for misfeasance in its performance. Coggs v. Bernard,. 1 Smith’s Leading Cases, 346-435.

Such being the principle of the liability incumbent on defendant, these two corollaries are inevitable, namely: First, it is immaterial whether the man who made the alteration was a servant of the defendant or an independent contractor; and, secondly, it is-immaterial also whether he had notice of the defective performance of the work. In contemplation of law the work was his work, and so his liability for its negligent performance is absolute. Otherwise, however, had the work been properly done and its defect a subsequent condition, for then notice of the defect, or its-equivalent, might have been a prerequisite of liability.

Obviously, therefore, most of the exceptions apparent in the-case are untenable.

The only question, then, for determination is whether the evidence of negligence in the performance of the work was sufficient to take the case to the jury, for, if so, we are concluded by the action of the court below.

The dumb-waiter being designed for a weight of 350 pounds,, plainly a rope of considerable consistency and strength was necessary to its secure operation. And yet, instead of supplying a new rope, the defendant was content to “ splice ” the old one. That, the splicing was the cause of the break is not controverted, and that the splicing was insufficiently and negligently done is supported by evidence abundantly adequate to sustain the verdict.

The point that the negligence of the mother contributed to the-child’s injury, though raised on the trial, is not presented by the,argument on appeal. However, the issue was submitted to the jury, by a correct charge, and their decision is sufficiently supported by the evidence.

The apparent error in the charge as to the rule of damages was repaired by the subsequent explanation of the learned justice.

We have no" jurisdiction to reverse the judgment for the amount, of damages, even if we deemed it excessive, which, however, is not apparent.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


author: Bookstaver, J.

text:
    Frederick Holler et al., Resp’ts, v. Filippa Apa et al., Def’ts. Frederick Holler et al., Resp’ts, v. Tomasso Giordano et al., Def’ts. Frederick Holler et al., Resp’ts, v. Michele Tarchini et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Partnership—Agreement not acted on.
    Plaintiffs and defendant Schwehn entered into an agreement of partnership as general builders and contractors; but it appeared that said agreement was not acted on, and that defendant as to the buildings in question took the contract himself and set the plaintiffs at work thereon; received the payments and made disbursements without consulting them, and upon complaint being made by the owners discharged plaintiffs and set other men at work in their place. Held, sufficient to justify a finding that the partnership never began, and that the work in question was not done by them as partners.
    2. Account stated.
    Plaintiffs made out a" time hill for their work at defendant’s request, which he retained for some time, marking on it the German word “balance” or “rest,” and it was admitted that the time charged was correct. Held, that a finding that there was an account stated was correct.
    3. Evidence—Conclusions.
    A question as to whether certain work was done under a co-partnership-■agreement calls for a conclusion and is improper.
    Appeal by defendant, George Schwehn, from a judgment, entered in each of the three above entitled actions on the report, of a referee duly confirmed.

      George W. Stephens, for app’lt; Robert K. Prentice, for resp’ts.
   Bookstaver, J.

The above entitled actions were brought to-foreclose three separate mechanic’s liens on three separate houses, but all referred and tried together and the same questions are presented in each case. George Schwehn, the principal contractor, is the only party appealing. He denied that there was any indebtedness from him to the plaintiffs, and also claimed that he and the plaintiffs were copartners. The latter was the chief point relied upon by the defendant before the referee and argued on this, appeal.

On behalf of the appellant it is contended that both the making of the agreement and the existence of the copartnership is not contradicted by the plaintiffs, and that the referee erred in refusing to find, these facts. While it is true there is no evidence to show the agreement was not made, it is not correct to say there is no evidence contradicting the existence of the copartnership, if by this term is meant the actual entrance upon the execution of that agreement. For the plaintiff Frederick Holler expressly testified nothing was ever done under it, that he did the work on the houses in question for the defendant Schwehn, that'he had before that time done work for him on another house at Bedford Park. The sum of $250 was loaned by this witness to Schwehn, but he swears it was not loaned under that agreement, and it appears • from the evidence this money was used on the house in Bedford Park. He also denied that the defendant ever said anything to him about profits or about a contract on those houses. Henry Holler testified that the defendant sent his father and himself to work on the last mentioned house by day’s work and that the ■defendant afterwards sent him to work on the three houses in question, saying: “ I will pay you three dollars,” meaning three -dollars a day. It further appears that the defendant took the contracts in his own name, gave orders as to the manner of doing the work and was the only contractor recognized by the owners, who ■complained to him,- as he testified, about the way in which the plaintiffs were doing their work, and that he said to them, the plaintiffs, that he would put other carpenters on the work and finish the houses, thus substantially discharging the plaintiffs, which he •could not have been done had they been copartners with him.

There is also evidence in the case showing that the defendant throughout acted as master, and did not treat the plaintiffs as his partners. He received all payments from the owners, and did not •consult the plaintiffs as to disbursements, but made them as he •saw fit. Henry Pfeiffer testified that he worked on these houses as a carpenter; that defendant hired him, and'that he had nothing to do with the plaintiffs, and that the defendant paid him his wages. The plaintiffs afterwards made out a time bill for all their work included in the lien, admitted by defendants’ counsel on the trial to be correct as to the number of days’ work. This defendant admitted he had in his possession a week before he discussed it with Frederick Holler, and it appears that he then calculated and struck a balance, which he called a “rest;” and paid money on account of this balance, and admitted that interest was to be ■allowed on the loan. These facts, we think, were sufficient to warrant the referee in refusing to find the work was done under the copartnership agreement. That 'expressed no time when the ■contemplated .copartnership should begin or end, and the referee, ■on this evidence, was justified in finding it never began.

It is true defendant’s evidence reads smoother and is more coherent, but it does not follow that it is intrinsically more reliable. The referee had all the witnesses before him, and was in a better position to determine t'he weight which he would give to each than we can be. The testimony as to the statements of Henry Holler regarding the copartnership amounted to declarations only. Ho one acted on them. Such declarations cannot constitute a co-partnership. Cassidy v. Hall, 97 N. Y., 159. While we might have arrived at a different conclusion, we cannot say that the preponderance of evidence is so great as to authorize us to reverse the judgment on that account. Darrah v. Boys, 16 Daly, 209; 32 St. Rep., 297. It is sufficient for the respondent that the case exhibits some evidence to support the referee’s conclusions. Aldridge v. Aldridge, 120N. Y., 614; 31 St. Rep., 948.

Appellant also contends that the referee erred in finding that there had been an account stated between the parties. But the evidence shows that the bill for the work before referred to was made out at defendant’s request after the plaintiffs quit work ;■ that he had it in his possession for some time; that he then wrote on it in German the word translated “ balance ” or “rest” opposite the figures $328.25, and of this balance he afterwards paid twenty-eight dollars, and his counsel on the trial admitted that the bill was correct as to the time, and there was abundant evidence that the amounts charged for days’ work was correct, as well as the debits and credits given, and in fact the defendant at no time disputed either the time or any other item in the bill rendered. W e therefore think the referee was justified in finding on this question as he did.

All the other questions raised on this appeal, except as to the admission and exclusion of evidence, rest on these two grounds and fall with them.

• The defendant was asked to state whether the work was done under the copartnership agreement, which under objection and exception was excluded. This we think was not error. The question called for a conclusion merely. Besides the witness had before testified as to this in detail. We think the evidence as to breaking open a tool house,' although irrelevant, could not possibly have injured the defendant, as the witness said that no one told him to break the tool house open, but that he did it because he had to go to work, and in order to get his tools, no key being there, he broke the lock.

The judgment should be affirmed, with one bill of costs to the respondents.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.—Plaintiffs

text:
    Don A. Gaylord et al., Resp’ts, v. John D. Karst, Jr., App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Contract—Damages for breach—Waiver.
    . In an action for building materials furnished at defendant’s request, the defendant counterclaimed for damages caused by failure to furnish said materials at the time agreed. Held, that a charge that the jury had a. right to consider whether a subsequent receipt of the materials by defendant was a waiver of any claim for damages was error.
    2. Trial—Erroneous charge.
    An apparent possibility of injury from an erroneous charge demands that the verdict rendered thereon be set aside, unless the party seeking to take advantage of the verdict conclusively establishes the absence of injury, and the burden of doing so rests upon him.

      Appeal from a judgment of the general term of the city court, •affirming a judgment entered upon a- verdict for plaintiffs in an action to recover the balance due upon a contract for the sale and •delivery of certain building material.

      J. M JEustis, for resp’ts; Lewis Sanders, for app’lt.

       Reversing 37 St. Rep., 688.

   Bischoff, J.—Plaintiffs

sued to recover $262, as and for the balance claimed to be due them for building material supplied at defendant’s request for use in certain buildings in course of construction. Defendant denied all of the material allegations of the complaint, excepting the partnership of plaintiffs, and counterclaimed damages alleged to have resulted to him from the nondelivery of the building material within the time agreed upon.

On the part of plaintiffs, it appeared on the trial that the contract was made on or about January 19, 1887, and required them to deliver the material by March 4, 1887. The evidence for the defense tended to show, and the fact seems to have been substantially conceded, that a considerable portion of the building material was delivered and accepted by the defendant long after the time originally appointed by the contract Plaintiffs, however, contended that any delay in the delivery was occasioned by the neglect of the defendant to progress with the construction of the building, whereby they were prevented from taking the measurements required for the manufacture of the material by them agreed to be supplied, and that they were for that reason absolved from the consequences of the delay in its delivery. Defendant, on the other hand, claimed that the construction of the buildings had sufficiently progressed, and that the delay in their ■completion was caused wholly by the failure of plaintiffs to make ■delivery of the building material as agreed.

Both parties sustained their several contentions by evidence .sufficient to have supported a verdict either way, and defendant also introduced evidence from which damage from delay in completion of the buildings was made to appear.

Upon the close of the evidence, counsel for plaintiffs requested the court to charge that the defendant’s consent, given in April,, succeeding March, 1887, thereafter to accept the building material remaining and undelivered as quickly as it could be delivered, was a waiver in respect'to the time of delivery fixed by the contract, and the court thereupon charged the jury as follows: “ There is no dispute, I understand, but that all these goods were delivered some time or other, and that the goods were received -and used by the defendant in his place. You have a right to consider whether that receipt was not a waiver of any claim for damages.to which defendant’s counsel duly excepted. The jury thereupon found for the plaintiff for the full amount claimed, with interest.

Obviously so much of the charge as is italicized by us had no other purport than to instruct the jury that if they found that defendant consented in April to accept future delivery of the "building material, which plaintiffs had originally agreed to deliver on the fourth of the previous month, they were at liberty to find further that defendant had thereby waived all claim for damages .accruing to him from plaintiff’s default in delivery by the time first appointed, and as this seems to be in direct conflict with the law as declared by the court of appeals in Ruff v. Rinaldo, 55 N. Y., 664; and McMaster v. The State of New York, 108 id., 542, 553; 13 St. Rep., 674, it is impossible to escape from the conclusion that the charge was erroneous and the exception thereto well taken.

That the defendant was prejudiced by this error is a proposition the validity of which is apparent upon its mere assertion, as the error vitally affected the meritorious consideration by the jury •of defendant’s counterclaim.

An apparent possibility of injury from an erroneous charge demands that the verdict rendered thereon be set aside, unless the party seeking to take advantage of the verdict conclusively establishes the absence of injury, and the burden of doing so rests upon him. Greene v. White, 37 N. Y., 405, 407. It is not sufficient in the case of a general verdict, as in this action, to contend that the jury may not have observed the erroneous instruction, .and might, notwithstanding it, have found a verdict in his favor on the merits of the controversy, but it is incumbent upon him to show that they could not have done otherwise, Starbird v. Barrons, 43 N. Y., 200, 204; Pollett v. Long, 56 id., 200, 207; Richards v. Millard, id., 574, 584, and as there was evidence upon which the jury could have been justified in finding for the defendant on the counterclaim, we are unable to say that they would not have done so but for the erroneous instruction. The judgment appealed from must, therefore, be reversed.

Judgment of the general and trial terms of the court below reversed, with costs to abide the event, and new trial ordered.

Pbyob, J., concurs.


author: Bookstaver, J

text:
    Joseph W. Binney, Resp’t, v. Arthur W. Delmar, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1, Partnership—Settlement—Release—Fraud.
    On a voluntary dissolution of. tlieir copartnership defendant sold his interest to plaintiff, who executed a general release. Two accounts standing on the books had in fact been collected by defendant without plaintiff’s knowledge, and it was claimed that defendant represented that the books represented the exact condition of the accounts; but this was denied by defendant. In an action to recover for fraud in such settlement, Held, that a judgment for plaintiff was properly granted, notwithstanding such release.
    2. Same.
    Such an action may be maintained by one partner against the other after dissolution in district court, as it does not involve an accounting.
    Appeal from a judgment of the district court of the city of Hew York for the second judicial district.

      George Robinson, for app’lt; John Id. Stoutenbwrgh, for resp’t.
   Bookstaver, J

This action was brought to recover damages ¡sustained by the plaintiff by reason of the fraud and misrepresentation of the defendant. From the return it appears that the parties had been co-partners from the 1st of February, 1890, to the 7th of November, 1890. That on the last named day they dissolved the co-partnership by mutual consent, and the defendant, in consideration of $400 paid to him by plaintiff and a general release executed to him at the same time, assigned to the latter all his interest in the business, assets and credits of the firm, including among others two accounts which on the books of the firm were charged against and appeared to be due from Davis & Co., of Portsmouth, Ohio, to the amounts of $36.96, and from Haring, Hart & Co., of Hunin, Indiana, to the amount of . $191.46. Plaintiff testified that he made an examination of his firm books, and from them it appeared there was due from these two firms respectively the amount before stated; that he never received these amounts, and only found out after the payment of the $400, and the execution of the release, that these two- sums had been collected by the defendant prior to the settlement, and had not been entered in the books. It also appears from .the evidence that the defendant represented to the plaintiff before the settlement that he had received no accounts except two, which he disclosed, and which were not those above mentioned, and that the money he had received on these latter he had used to pay his own personal attorney; it further appears from the evidence that defendant stated at the time of the settlement that the books then showed the exact condition of the accounts due the firm, that is, that these two accounts of Davis & Co. and .Haring, Hart & Co. were not paid, and that plaintiff relied upon these representations. After it was discovered that these accounts had been paid, defendant acknowledged the fact, and promised to pay plaintiff when able to do so.

In answer to a question by the court, defendant said he had ■ collected these two claims many weeks before the dissolution. But he and his witness testified that he had told the plaintiff he had collected them before the settlement, and that they were included in. the compromise or settlement. But the fact remains-that the payments were not entered on the books at that or any other time. On these proofs thé justice was not only justified, but was bound to render judgment for the plaintiff.

No exceptions were taken to any ruling of the justice on the trial of the case as to the admission of evidence. At the close of plaintiff’s case defendant moved to dismiss the complaint on the ground that it being an action between partners the court had no' jurisdiction to try it. The motion was denied and defendant did not except. When the testimony was closed on both sides the defendant moved to dismiss the complaint, on the ground that there was no proof of the representations, and, secondly, on the: ground of the general release.

As to the second"of these grounds, the justice who tried the case rightly disposed of it when he said: “ A general release may be attacked in any tribunal if its delivery was induced by fraud or deceit” This has been so frequently held that it is needless to cite authority upon the point. As to the first he rightly decided it on the testimony before him.

On this appeal it is claimed that the court below had no jurisdiction to entertain the action, because it was one in equity between partners and not an action at law, and that he can avail himself of it now, although he took no exception to the denial of his motion to dismiss on that ground in the court below. It is true that the question of jurisdiction can be raised at any stage of the case. But the action was commenced long after the dissolution of the copartnership relation between the parties, and after the defendant had ceased to have any interest in the firm property. It was not for an accounting between partners, but was brought to recover damages for the fraud and misrepresentation of the defendant in procuring the settlement between them.

This court held in Dart v. Walker, 3 Daly, 136, that the rule that one partner cannot sue another at law has no application to an action for fraud or conspiracy between the parties to a joint adventure in the purchase of land after they had severed their interests by conveying the land and dividing the proceeds. So where a partnership was dissolved, the partners agreeing to make a distribution of their assets, giving to each in severalty certain notes and accounts, it was held that one partner might maintain ah action at law to recover the amount of an account allotted to him and collected by a copartner. Crosby v. Nichols, 3 Bosw., 450. In the latter case it was not even clear that there had been an entire distribution and apportionment of all the assets; it was held sufficient if there had been a distribution and a holding in severalty of those sued for. If no matter of account is involved and the money will not when recovered belong to the firm, there is no objection to an action at law between the partners. Howard v. France, 43 N. Y., 593; Crater v. Bininger, 45 id., 545.

In the case at bar after the assignment -was made the firm as a firm had no existence and had no interest in the accounts. They all belonged to the plaintiff. Besides these two accounts had previously been collected by the defendant and that fact concealed by him. He, therefore, contracted to sell to plaintiff what did not exist, but which he fraudulently concealed from him, and it is to recover for that concealment this action is brought. This involves no accounting, and whatever was recovered belonged to the plaintiff alone.

If we rightly apprehend the appellant’s last point, he complains because the justice who tried the case awarded the plaintiff only one-half of the amount of these two accounts, and because he assumed that one-half of these two debts belonged to the defendant when he collected them. As he was to be interested only in the profits of the copartnership, this may have been an unwarranted -assumption on the part of the justice, but it certainly could not have injured the defendant.

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

Bischoff, J., concurs.


text:
    Frederick W. Elliott, Resp’t, v. John E. Miller, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Master and servant—Wrongful discharge—Wages.
    In an action for wages by an employee who has been wrongfully discharged he can recover wages actually due up to the time of the discharge, but not thereafter. If he desires compensation.for loss of work by reason of his wrongful discharge, he must ■ bring an action for damages for breach of the contract.
    2. Same.
    Where his wages are payable at the end of each month and he is discharged in the middle of the month, he cannot recover in an action for wages for the portion of the month during which he performed service, as the wages therefor were not due at the time of the discharge.
    Appeal from a judgment rendered in the district court of the-city of New York for the first judicial district.

      Charles Coleman Miller, for appl’t; Frederick L. ' Gilbert, for resp’t.
   Bookstaver, J.

This action was brought to recover two and a half month’s wages at fifty dollars a month, alleged to be due-from plaintiff to defendant on a contract of service. , The answer was a general denial, and judgment was rendered for the plaintiff" for $142.50, being the full amount claimed together with costs. ■

The plaintiff entered into the employment of the defendant about the 15th July, 1891, under a verbal contract by which he was to-work for defendant as salesman, for five months, at a salary of fifty dollars per month, payable at the end of each month, and in addition a commission of ten percent on all sales in excess of $5,000; he-was also to receive thirty-five dollars per week for traveling expenses,, while he was actually traveling in defendant’s service. He started on a salesman’s trip on July 16th and returned to New York on August 29, 1891. During -this time, trade being very dull, and for the express purpose of saving travelling expenses, he stopped at Indianapolis, and remained there twelve days without travellingat all; this was done with the approbation, of the defendant, and it was mutually understood that it should be done to save expense. He then returned to New York on his own suggestion, as he claimed the trade was all here at that time. Shortly after -his return, and on or about the 1st day of September, he reported to the defendant, and demanded seventy-five dollars as salary for the six weeks he had been in defendant’s employ. This the latter-refused to pay on the ground that the plaintiff had received fifty dollars in excess of' his travelling expenses, which exceeded "his-first month’s salary, and that as the agreement was to pay monthly at the end of the month, and the second month had not expired, nothing was then due.

There is a conflict of testimony as to whether the plaintiff refused to work any longer for the defendant because he was not. paid, or whether he was discharged by the defendant; but that is-immaterial in this case. It is conceded that he did not work for the defendant after that time. This action was brought to recover wages, and the bill of particulars specifies two and a half months' wages, and it is for this amount that the justice rendered judgment. In this we think he was in error.

It is well settled by authority, that in an action for wages, damages for a wrongful discharge from employment cannot be recovered. Wages are what the employee earns while actually working for his employer. If an employee is wrongfully discharged, he can recover wages actually due up to the time of the discharge, but not thereafter, for then he ceases to work. A suit for wages is an action on the contract; if he desires compensation for loss of work by reason of his wrongful discharge, he must bring an action for damages for the breach of the contract, and such an action is not on the contract, but for breach of it. Howard v. Daly, 61 N. Y., 362; Weed v. Burt, 78 id., 191; Perry v. Dickerson, 85 id., 345.

In the last case it was said “ that a claim for wages earned and due before the dismissal and for damages for a wrongful dismissal constituted two separate and independent causes of action, is clear upon reason and authority ; the right to recover the wages was complete and perfect before the right to damages accrued. "Upon the wrongful dismissal a new cause of action arose, wholly disconnected in its origin and nature with the claim for wages. A suit by a servant for wages due is consistent with the continuance of the contract of employment and of actual service thereunder. A suit for wrongful dismissal proceeds upon the ground of an entire repudiation of the contract by the master. A suit for wages is brought to recover for services rendered; the action for wrongful, dismissal to recover compensation for loss of the situation and for not being allowed to serve and earn wages under the contract. The wages could not have been proved or recovered under the pleadings in the justice’s action ” (which was for damages for wrongful discharge) “ nor the damages for wrongful dismissal in this ” (which was for wages only). To the same effect, Levin v. Standard Fashion Co., 25 St. Rep., 817.

As before stated, this action was for wages, yet by his own tes- • timony plaintiff did no work for the days after September 1st. A judgment for more than the six weeks before that time was therefore impossible under the pleadings and proofs, and the allowance in the judgment of fifty dollars for the month of September was error.

W e also think it was error to have allowed the twenty-five dollars for wages for the last two weeks in August. Plaintiff’s own testimony shows that his wages were payable monthly at the end of the month. Under the agreement, therefore, the two weeks’ wages were not due when he was discharged or left defendant’s employment. In Perry v. Dickerson, supra, it was said in an action for wrongful dismissal occurring in the middle of a quarter or period before wages are due and payable under a contract of employment, compensation for services for a broken quarter or period may he recovered as part of the damages, for by the wrongful dismissal the plaintiff was prevented from earning wages for the broken quarter under the contract, and compensation for the services actually rendered is justly allowed as part of the damages. And in Levin v. Standard Fashion Co., supra, where a recovery by a discharged employee of the wages alleged to be actually due her was held to be no bar to an action for damages for such discharge before the expiration of the term of employment. Though the evidence in both actions was substantially the ¿ame, it was said that the first action was for wages only. “ Subsequently this action urns commenced for wrongful. discharge, and the defendant insists that because the plaintiff was discharged December 9,1887,. and recovered judgment up to and including the following day,, the recovery in the third district court is a bar to this action. W e think not. The plaintiff probably ought to have been defeated in her third district court case on the ground that one week’s wages ■ had not been earned because she had been discharged on Friday and the wages did not become due and" payable until the close of the following day, so that an action for wages technically so-called was not maintainable.”

In both of the cases last cited actions in justices’ courts were-, involved, and yet it was not even hinted that the pleadings should be so loosely construed as to waive the distinction between actions-for wages and one for wrongful discharge. Indeed we do not sen how this could be done, for the one action proceeds on the theory of a continuing contract, and the other upon the breach of it, and the two are inconsistent.

The claim that plaintiff had been paid fifty dollars for his first month’s salary by an overpayment for traveling expenses was denied by the plaintiff. The evidence upon that subject is contradictory, and we think there is enough to sustain the justice’s finding in that respect.

But for the errors pointed out, we think the judgment should be reversed and a new trial ordered, with costs to the appellant to-abide the event, unless the plaintiff, within five days, elects to reduce the judgment to fifty dollars and the costs allowable upon-such a recovery in the court below, and if he so elects, then that the judgment so modified should be affirmed, without costs to either party as against the other.

Bischoff, J., concurs.


author: Pryor, J.—The

text:
    Richard Marston, Resp’t, v. Mart F. French, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Guaranty—Requisites of.
    A contract of guaranty, to fie valid, must still exhibit on its face the parties, the promise and the consideration. - These elements need not all appear in a single paper, but when the relation of several papers is apparent by intrinsic reference paroi evidence is receivable to identify the paper referred to.
    2. Same—Consideration.
    A contract already executed, without more, affords no consideration for a subsequent promise of guaranty.
    3. Same.
    A contract of guaranty recited the making of certain contracts and the-, guarantor agreed to secure or accept “the above.” Held, insufficient, as it failed to show for whom the guaranty was made.

      Appeal from judgment of a district court, in actions on an alleged guaranty.

      Samuel Hyman, for app’lt; William Arrowsmith, for resp’t.
   Pryor, J.—The

actions are brought by plaintiff as assignee, upon an alleged guaranty of defendant; and the fundamental question is, whether the guaranty be valid and enforceable.

It is a mistake to suppose that, since the act of 1863, a contract of guaranty need not express the consideration. The rule is conclusively settled otherwise by the court of appeals, Barney v. Forbes, 118 N. Y., 580, 585; 29 St. Rep., 980; Drake v. Seaman, 97 N. Y., 230; and it is still the law of New York that a contract of guaranty, to be valid, must exhibit on its face the parties, the promise and the consideration. True, these essential elements of the agreement need not all appear in a single paper; yet, paroi evidence is not admissible to connect several papers, but their relation must be seen by intrinsic reference. When such relation is so apparent, paroi evidence is receivable to identify the paper referred to.. These propositions are elementary.

Defendant’s guaranty to Brown recites that, “ Whereas, I, Alexander Brown and Chester Phillips Smith, have made and entered into various contracts,” etc.; and this is the only expression of consideration to be collected from the paper. But the expressed consideration is manifestly no consideration in law; for, “ a bygone consideration, unless supported by a request, will not sustain a subsequent promise.” Tindal, C. J., Thornton v. Jenyns, 1 M. & Gr., 188; Hunt v. Bate, Dyer, 272. A contract already executed, without more, affords no consideration for a subsequent promise of guaranty.

But as to the other contracts assigned to the plaintiff, namely, those of Palmoni, Clifford, Knott and Leiden, it is said that each of them is secured by another and peculiar guaranty. These contracts contain reciprocal obligations between the parties, mutual stipulations; and the defendant promises merely to secure or accept “the above.” Now, whose engagements does she thereby agree to guaranty? For which of the parties is she a surety? The contract of guaranty must exhibit ex facie the contracting parties. Mentz v. Newwitter, 122 N. Y., 491; 34 St. Rep., 207. Here Mrs. French appears as the guarantor, but who the guarantee is the paper does not disclose. It is equally- consistent with its terms that she guaranteed the engagements of both parties, or of the party of the first part, or of the party of the second part.' “ It is indispensable that the written memorandum should show not only who is the person to be charged, but also who is the party in whose favor he is to be charged.” Benjamin on Sales, §§ 234, 238; 122 N. Y., 495; 34 St. Rep., 207.

Appellant presents other grave exceptions to the judgments, but the error indicated being radical, it is unnecessary to consider them.

Judgments reversed and new trials granted, costs to abide event.

Bookstaver and Bischoff, JJ., concur.


text:
    Michael Mahler, Resp’t, v. Samuel F. Hyman, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Attorneys—Liability fob moneys collected fob client—Estoppel,
    Anattorney who is retained to collect a judgment, and is furnished by his client with a release and satisfaction piece from the judgment creditor, cannot resist payment of the moneys collected thereon, on the ground that' there is no evidence that his client owns the judgment. In such case he is. a bailee of the claim for his client, and is estopped to deny his tille to the money.
    2. Same—Evidence. '
    Proof that defendant, upon request for payment of a sum claimed to have been collected by him, replied that he would straighten up when lie had collected the rest, is sufficient to show that he had collected sucha sum.
    Appeal from the judgment of a district court in an action by a client to recover money collected by defendant as attorney for plaintiff.

      Samuel F. Hyman in person, for app’lt; no appearance for respondent.
   Pryor, J.

At the close of plaintiff’s case, defendant moved to dismiss the complaint, on the ground that no evidence was produced to show that plaintiff was owner of the judgment which he had entrusted to defendant to collect it appearing that one Hahn was the judgment creditor.

It is a perfect answer to this contention that the plaintiff retained the defendant to collect the judgment; that the defendant, accepted the retainer from the plaintiff ; that to enable defendant to collect the judgment plaintiff furnished him a release and a. satisfaction piece from the judgment-creditor; that of the $100’ collected by defendant he paid $50 to plaintiff, and now he refuses to account for the balance without pretense of other justification than the claim that the evidence exhibits no legal transfer .of the judgment to plaintiff Mahler. It is not apparent that Hahn, the judgment-creditor, asserts a right to the money, or makes objection to its payment to plaintiff. By what authority,, then, does defendant refuse payment to plaintiff, his client ? He; was bailee of. the claim for plaintiff; and so is estopped to deny plaintiff’s title to the money. His contract was to account to his-client for the money collected on the claim entrusted to him by plaintiff; and it is no concern of his whether his client was accountable over for the money to somebody else.

The position of clients would be precarious indeed, if when-they claim money collected on their retainer, the lawyer can resist its payment on the pretense that it belongs to another, who, however, himself asserts no title to it. Defendant’s contention is as destitute of legal as of moral support. '

As to the twenty dollars collected on the chattel mortgage, defendant contends that there is no evidence of its receipt by him. We think otherwise. On the examination of the plaintiff, this occurred:

“ Q. Did you speak to him (defendant) about this $20 ? A, Yes.
“ Q. What did he say ? A. He said when he collected the rest of it he will straighten up,” a plain admission of the receipt of $20, especially in view of the fact that defendant did not venture to-deny its receipt.

Judgment affirmed, with costs.

Bookstaver and Bischoee, JJ., concur.