text:
    Christopher Lochmann, App'lt, v. Ellen Meehan, Resp't.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    1. Specific performance—Purchase of chattel mortgage.
    An action for specific performance of a contract for the purchase of a chattel mortgage cannot be maintained in the absence of averment or proof that the claim is doubtful, the debtor irresponsible, or the mortgage insufficient security. In such case only a breach of contract is shown and no facts conferring equity jurisdiction.
    3. EqutTY—When action will not be retained for pecuniary compensation.
    Where plaintiff utterly fails to show any right to relief in equity, the court will not retain the action for pecuniary compensation, especially where, at the commencement of the trial, defendant’s motion for a jury trial was refused.
    Appeal from a judgment entered upon the report of a referee dismissing the complaint in an action to enforce the specific performance of a contract to purchase a chattel mortgage.

      Bartlett, Wilson & Hayden (Philip L. Wilson, of counsel), for app’lt;

      W. J. Gaynor, for resp’t.
   Barrett, J.

This was an action for the specific performance of a contract for the purchase of a chattel mortgage upon fixtures in a barroom, and of the claim against the mortgagor which was thereby secured. ’ The plaintiff was the owner of these securities, upon which the sum of $1,350 remained unpaid, and. the defendant agreed to purchase them for $800, but refused upon demand to carry out her contract. Upon these bald facts the complaint was dismissed at special term, and properly. No reason for invoking the equitable powers of the court was shown, and upon the facts found the plaintiff had an adequate remedy at law. We cannot assume, in the absence of averment or proof, that the claim was doubtful, the debtor irresponsible, or the mortgage an insufficient security.

In the cases to which we are referred, Phillips v. Berger, 2 Barb., 608, more accurately considered upon appeal, 8 id., 527; Adderley v. Dixon, 1 Sim. & S., 607, the damages were uncertain, or would, not have furnished a complete and satisfactory remedy. In Phillips v. Berger, the agreement was to compromise a judgment which the plaintiff had against third parties. What Edmonds, J., said at special term regarding the purchase of choses in action was obiter, and not so fully supported by Adderly v. Dixon, supra, as the learned judge seemed to think; for in Adderly v. Dixon the purchase was of debts which had been proved under a bankrupt commission, and specific performance was decreed, as Judge Edmonds observed, “because damages at law could not accurately represent the value of the debts, and to compel the purchaser to take such damages would be to compel him to sell them at a conjectural price.” The difficulty here is that the facts found establish nothing but a naked cause of action for breach of contract. It is well settled that, before equitable relief can be granted, the facts conferring equity jurisdiction should be alleged and must be proved. Hammond v. Morgan, 101 N. Y., 187; citing Pom. Jur., §§ 177, 1402. Ho such facts were here alleged or proved, and there was consequently no basis for an equitable decree. The plaintiff necessarily rests his case upon the proposition that specific performance should always be granted to enforce broken contracts for the purchase of dioses in action, a proposition which finds no support even in Phillips v. Berger, supra.

The plaintiff further contends that, even if he were not entitled to relief in equity, his complaint should not have been dismissed, but that the case should have been retained for a trial by jury, or upon common law principles by the judge without a jury. This position is also untenable. The court will retain such an action, for pecuniary compensation, only when the plaintiff actually has an equitable cause of action, and shows himself entitled, upon the facts averred and proved, to specific performance, but, owing to some circumstances for which he is not responsible, bis equitable right cannot be enforced by decree. He cannot take his chances in equity, and, failing there to make out a case for equitable relief, fall back before the same tribunal on his claim for damages. This is here accentuated by what took place before the commencement of the trial. We quote from the record:

“ Before proceeding to the trial, defendant made the following motion: Defendant’s counsel: I move that this case be sent to a jury. The defendant now, before proceeding, and before the production of any evidence or the beginning of the trial, demands that this case be tried by a jury. There is absolutely nothing in this complaint that makes this an equitable action, and the defendant, therefore, demands a jury trial. The Court: Motion denied. Exception.”

After this the plaintiff certainly had to stand or fall by his claim for specific performance. He could not thereafter proceed in equity, and, upon failure, insist upon the ¡common-law trial, which was originally refused to his adversary.

The judgment should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People, Resp'ts, v. Herman W. Miller, App'lt.

      (Supreme Court, General Term, First Department,

      Filed December 16, 1892.)

    Criminal law—Appeal.
    Where a verdict of conviction is amply justified by the evidence and no exception has been taken thereto, and the charge was full and fair, the verdict will not be disturbed.
    Appeal from judgment of conviction of the crime of assault in the second degree.

      Henry Welite, for app’lt;

      De Lancey Nicoll, dist. atty. (Henry B. B. Stapler, asst. dist. atty., of counsel), for resp’ts.
   Per Curiam.

This is an appeal from a judgment of conviction of the defendant of assault in the second degree, rendered by the court of general sessions, under which he was sentenced to imprisonment in the penitentiary for two years. The defendant admitted that he stabbed, with a knife, one Boss, the complainant, in the arm, and attempted to justify the act upon the theory that he was acting in self-defense. There was little conflict in the testimony upon the trial, and no exception was'taken to the exclusion or admission of evidence. The court fairly submitted the question to the jury whether the defendant was justified in using the knife to defend himself against an apprehended assault by the complainant. This charge drew the attention of the jury to every inference which could have been drawn by them in support of the defense sought to be established, and laid down the law relating to the right of self-defense in accordance with the decisions of the courts in this state, and as declared in the Penal Code. Every request to charge preferred in behalf of the defendant, applicable to the facts of the case, was granted, although not in the exact language of the request. The learned judge responded more fully to those requests than he was required to do ; for, when a request was sound in part and unsound in part, he separated the sound from the unsound, and charged the part which was valid. The trial was a fair one, the verdict was amply justified by the evidence, and the judgment should be affirmed.

Yah Bruht, P. J., O’Brieh and Eollett, JJ., concur.


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

text:
    Joseph Thomson et al., Resp'ts, v. Samuel E. Fairfield et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Appeal—Reeebence.
    F. and other defendants answered, whereupon plaintiffs, upon an affidavit that the action was in the nature of interpleader to compel defendants to determine their respective rights to a certain fund, those of F. being opposed to the other defendants, that all the defendants except F. would join in application for a reference, and that a receiver had been substituted for F. as defendant, gave notice of motion for a reference, and served the same on F., who appeared in opposition. The motion was granted. Held, that as there was no order striking F. from the record, and he was treated as a party, the appointment of a receiver did not preclude him from appealing from the order granting a reference.
    2. Same.
    Such an action is not referable as a matter of right.
    Appeal on behalf of one Samuel E. Fairfield, an attorney and counsellor-at-law, who, at the time of the commencement of this action was one of the defendants herein, but who has since been superseded by Ernest M. Welch, his duly appointed receiver in supplementary proceedings.

      J. Murphy, for app’lt;

      F. H. Moeran (Wm. J. Leitch, of counsel), for resp’ts,
    Joseph Thomson and others; J. Geo. FJammer, for resp’ts,
    Eugene Fishel and Irving Nat. Bank; Rufus P. Livermore, for resp’t,
    É. M. Welch; Geo. Wilcox, for resp’t
    Ferrier; Chas. F. Royes, for resp’t, A. F. Darragh.
   Van Brunt, P. J.

This action was brought against the appellant Fairfield and others for the purpose of determining the validity, priority and extent of the claims of the respective defendants in certain judgments obtained in this court. The appellant Fairfield duly answered, as also certain other of the defendants. Thereupon the plaintiffs, upon an affidavit stating that the action was in the nature of a bill of interpleader, brought to compel the defendants to determine their respective rights, as between themselves, to a fund of upwards of $3,000 deposited by the plaintiffs with the clerk of this court to the credit of this action; that issues had been joined in the action; and that, while there was no substantial dispute between the defendants •and the plaintiffs, the trial of the cause would necessarily involve the rights of certain of the defendants upon the one side, and the appellant upon the other, and that difficult questions of law would not arise, and that all the parties except the defendant, Fairfield, would probably join in the application upon the return day of the motion for a reference ; and that inasmuch as Fairfield had been superseded by one Welch, receiver, upon supplementary proceedings instituted upon a judgment recovered against him, which receiver had been substituted in the place of Fairfield as defendant, any objection in behalf of Fairfield, in view of the circumstances, would not address itself to the court with much force or weight, gave notice of motion for a reference of the issues. Such notice of motion was duly served upon the defendant Fairfield, who appeared upon the return day of the motion, and opposed the application for a reference. Notwithstanding such opposition, the motion was granted, and from the order thereupon entered, referring the issues in such case, this appeal is taken.

It is now objected that the appellant has no standing in court, because he had no interest in the action, and, therefore, has no standing to dispute the validity of the order of reference. Whatever might have been said as to this proposition had the facts been different, I am of the opinion that having thought it necessary to serve their notice of motion upon Fairfield, having considered him as a party to the action, and he having appeared and opposed the motion, there seems to be no reason now why he should be shut out from the rights which, it is admitted upon the part of the plaintiff, that he had. It is by no means certain that, • because of the appointment of. a receiver of Fairfield's property, he had lost all interest in the result of this action. He was largely interested in seeing that his claim against the fund, which formed the subject matter of this action, was properly prosecuted, in order that it might realize as large a sum as possible for his creditors. There was no order striking him from the record, and, as already stated, he was treated as a party; and, having been called in by the plaintiffs, they certainly cannot complain if the appellant pursues his legal rights. Very "much-of the respondent’s argument is taken up with a statement of points arising from assumed facts not one of which appears upon the record, which is the only source of information in regard to the legal status of the parties that the court can take cognizance of. It seems to be clear that the action is not referable as a matter of right, and, therefore, the appellant, Fairfield, has a right to a revfersal of the order.

The order should be reversed, with ten dollars costs and disbursements.

Barrett, J.

We can only consider the papers recited in the order appealed from. The affidavit of Mr. Murphy, which has been inserted in the appeal book, was verified after the notice of appeal was served, and it has no proper place in the record. This observation applies equally to the order of April 18, 1892, substituting Fairfield’s receiver and enjoining Fairfield. This order ig not recited in the order appealed from, and it cannot properly be •considered. Upon the papers recited in the order appealed from, and upon those only, the motion opposed by Fairfield should have been denied. Accordingly, I concur in the reversal.

O’Brien, J., concurs.


author: Van Brunt, P. J.

text:
    George P. Upington, Resp't, v. John Keenan, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    INew ti¡ial—Newly discovebed evidence.
    In an action for money loaned, plaintiff testified that he had loaned defendant $48,000 without any security or even a receipt, relying on what his uncle told him as to his responsibility, and that he made such loan because defendant could “ put him into something good.” He produced an alleged bank account showing drafts of sums of money suflicient to make the loans. On cross-examination he testified that he formerly represented a lottery company, but at the time of the alleged loan was a stock broker. The only corroboration offered by plaintiff was the testimony of his clerk, who said he was present when defendant received $5,000 from plaintiff. The jury having found for plaintiff, defendant moved for a new trial on the ground of newly discovered evidence, some of it being evidence that plaintiff’s alleged bank account did not represent money belonging to him. Held, that the motion should have been granted.
    Appeal from order denying motion for a new trial on the .ground of newly discovered evidence.

      Bliss & Schley (Geo. Bliss, of counsel), for app’lt;

      Rudd, Hunt ■& Wilder {James M. Hunt, of counsel), for resp’t.
   Van Brunt, P. J.

This motion is opposed upon the part of the plaintiff upon the ground that there are certain rules governing the disposition of motions of this kind which must be complied with in order to entitle a party to relief; and that the defendant in this action has not complied with these requirements. It is undoubtedly true that in a large number of cases certain features have been referred to as necessary to be present upon motions of this kind, in order that relief might be granted. Bat it will be found upon an investigation of those cases, and of the principles upon which they were founded, that the peculiarities •of. each case necessarily varied the rules which upon this application are claimed to be invariable, and that there is no absolute •criterion which can be held to govern in all cases, and the peculiarities of each must determine as to whether or not the evidence claimed to be newly discovered is of such a character as calls upon the court to set aside the judgment, and allow the defeated party an opportunity to introduce the same before a jury. In the case of Dillingham v. Flack, 43 St. Rep., 806, the motion was denied because there was no newly discovered evidence, and that the principal ground on which a new trial was asked was to allow witnesses already sworn to revise their testimony, because, upon reflection and consideration, and talking with other people, they had come to the conclusion that they were mistaken somewhat in the sequence of events, and upon the further ground that there was no evidence but that the newly discovered evidence was all within the reach of the plaintiff at the time of the trial, and could have been procured.

The fact that the rules alleged to govern applications of this kind are not invariable was illustrated, notably, in the cases of Clegg v. Union, 51 Hun, 232; 21 St. Rep., 215, and Wilcox Silver Plate Co. v. Barclay, 48 Hun, 54; 14 St. Rep., 879, and also in the case of Sistare v. Olcott, 22 St. Rep., 564, in all of which cases it was held as a sufficient ground for a new trial that the newly-discovered evidence would probably, upon a new trial, bring about a result favorable to the party making the application; and that this conclusion must necessarily be arrived at by considering the nature of the evidence by which the successful party has •established either his claim or defense, and the nature of the newly-discovered evidence.

Now, in the case at bar, what is the plaintiff’s claim, which he has attempted to establish almost solely by his own evidence ? It is that some time prior to May, 1881, he had a conversation with his uncle, George Caulfield, who told him that the defendant had .applied to him, Caulfield, to borrow money, and that he had advised the defendant to apply to the plaintiff, and that he advised the plaintiff to loan the money, because the defendant was at this time a powerful man, and had great influence, and would appreciate any confidence put in him. The plaintiff prior to this time had met the defendant, having been introduced to him by Caulfield, and had become on intimate terms with him. That the ■defendant applied to him about the middle of May, 1881, to borrow money,- referring to what Caulfield hadasaid. That the ■defendant had stated that he wanted $6,000 as soon as he could get it, and would want about $6,000 about a month after, and about the same amount the month following that The plaintiff did not let the defendant have the money then, but fixed a time when he would be in a position to loan him the money. The plaintiff thereupon went to Denver, Colorado, and returned about the middle or latter part of June. On his return he saw the •defendant, and also sent him word by Caulfield that he was disposed to do what the defendant asked him to do. In July, the plaintiff had a conversation with the defendant at his, plaintiff’s, office, at 599 Broadway, in which the defendant asked him if he had any objection to his uncle, referring to Caulfield, calling for the money, because he had reasons of his own for not receiving the money direct, and the plaintiff told him he had not; that such a plan was entirely satisfactory to him, and Caulfield first called for money in the neighborhood of the 11th of August, 1881, and was paid $1,000. When the plaintiff asked him for a receipt, he replied that he did not think John, referring to defendant, wanted any writing between them. The plaintiff then asked him : “What proof would I have whether Mr. Keenan would acknowledge to-•have received this money from me ?’’ Caulfield said: “You have me.” The plaintiff then told him : Of course, he knew that, but, in case he died, where was he? That he wanted some more proof' than that, and that, before he would pay any more monejr, he would have to see Keenan, in order to learn what secrecy there was about the matter.

Subsequently, at a casual meeting at Parker’s, the plaintiff learned from Keenan that he had got the $1,000. In August,, under direct examination stated by the plaintiff to be the 20th, and, upon cross-examination, the 24th, the plaintiff claimed to-have paid to Keenan, direct, at Sieghortner’s restaurant, $5,000 in money, upon which occasion he told Keenan the doubts in his mind with regard to paying this money over, and that there was a certain sense of insecurity in his mind, and he wanted to knoxv if there was any way by which Keenan could make him think differently. “Well,” said the defendant, “this is not the first, time I have used your uncle in matters of this kind, and I have always found him correct, and I trust him ; and I don’t see why you can’t.” “Then,” continued the plaintiff, “I made the same remark to him, ‘ In case Caulfield dies, where am I ?’ Keenan said, ‘ That is so,’ and asked me if I could suggest anything. I said, 1 Well, I could not suggest anything further, except that I have a man in my employ, and that he would be obliged to, know about the loan, in fact, did know about the loan, and what was going on ;’ that I had come back from Denver, and was just about to make up my books, and that I had employed this man, and he knew what I was going to do. I then said, ‘ Shall I call him in?’ He said, ‘Do you trust him?’ I said, ‘I do.’ He said, “ Call him in, then.” In this gentleman’s presence, I then stated the kind of loan I was to make to Keenan, and the payment I was to make, and Keehan confirmed it. I took out of my pocket, and, gave him, the money, $5,000; and he took it,, and counted it,'’and said, ‘ All right.’ ” At this interview, conversation was had between the plaintiff and the defendant in regard to future loans xvhich the plaintiff promised to make if it did not embarrass him. Subsequently the plaintiff received a letter from Caulfield, asking him to call, under date of August 31. 1881, “to-morrow,” and bring him $1.000. In response to that letter, in the vicinity of September 2, the plaintiff paid, in bills, $1,000. He subsequently made various payments, all of which were to Caulfield, and after each payment he accidentally saw Keenan, and learned from him that he got the money; the last payment being made in March, 1882, when the plaintiff sent word to the defendant that he would loan him no more money, and wanted him to return a good part of the money as soon as he. could.

All these payments were made in bills, except one, which the plaintiff claimed to have offered to make in a check, which was refused ; and he, not being able to get bills, procured gold, and deposited to the credit of Caulfield, in his bank account. The total amount of the loan was $48,000, being $6,000 a month. The plaintiff got no security for any part of the moneys loaned Keenan, nor any paper or acknowledgment for any of the money; he claiming to rely entirely upon what Caulfield said to him of Keenan’s responsibility, and that he, Caulfield, would see that he got the money back. The plaintiff testified that what influenced him to make the loan was that the defendant was going to befriend him, and put him into something good, show him how to make some money; the plaintiff at this time making, according to his own story, $72,000 a year out of his business. The plaintiff also introduced what he claimed to be his bank account in the Pacific Bank, showing drafts of sums of money sufficient in amount to make the loans in question. Upon cross-examination it appeared that the plaintiff, from 1877 to December, 1879, was in the employ of the Brie Railroad Company as a clerk, and from December, 1879, for about a year, he represented the Kentucky State Lottery Company, having his office at 599 Broadway. Having found out, as he claims, that such business was illegal, he discontinued his representation of the lottery, but continued a general brokerage business fit the same office, broker in stocks, notes and mortgages; western notes and mortgages; selling fractional lots of stock, from which business he made at least $6,000 a month from about May, 1881, down to the time when he swore to the complaint, the jurat bearing date the 7th of June, 1890. This statement, however, he corrects immediately afterwards by saying that the brokerage business continued down to September, 1882, and that he was selling irrigated lands and bonds and mining property for certain people in Denver, and that this was the source from which this money came.

The only corroboration offered by the plaintiff to this extraordinary story was that of the witness Barnes, who testified that he was present at the time the plaintiff gave to the defendant the $5,000, upon which occasion the plaintiff testified that, in Barnes’ presence, he stated the kind of loan he was to make, and the payments he was to make to Keenan, having called him over for that purpose. But Barnes testified that he did not hear any conversation between them in regard to money transactions, except the words, “There is the $5,000,” to which Keenan replied, “All right.” This man, upon cross-examination, testified that he left Buffalo in the month of August, 1881, to come to Hew York, and that up to that time he had been in the employ of the Hew York Stockyard Company, and that in August, 1881, he was in the employ of the Merchants’ Union Transportation Company, on Broadway, corner of Worth, and that it was during this time that he went to Upington’s office, looking over his accounts. The defendant and Caulfield denied having received this money, and the jury having found a verdict for the plaintiff, this motion was made for a new trial, upon the ground of newly discovered cvideuce: First, evidence showing that Barnes had not been in the employ of the stockyard company in Buffalo since 1876 ; next, that the plaintiff was in the employ of certain persons engaged in the lottery business at 599 Broadway, where there had-been a consolidation of the business; and that the account kept in his name in the Pacific Bank did not represent money belonging to Upington; and that from one of the parties interested he received a salary of $100 a month, and from another half of the profits; and that he had never claimed, when accounting for the money belonging to these parties in the Pacific Bank, to have paid any money to Keenan, the defendant.

Now, in view of the extraordinary claim of this plaintiff; the fact of the secrecy attending all these loans; that he has not a scrap of paper or a single particle of evidence of this indebtedness, nor a single witness who can be called credible, to support his extraordinary story; that he gave no credible explanation as to the manner in which he got this money, claiming, on the one hand, to be in receipt of an income of $6,000 a month from a mythical business, and on the other that he was influenced to loan this money because of something good the defendant might put him in, it seems to us that evidence tending to show that this remarkable claim had no foundation in fact ought not to be shutout by any court.

It is true it is claimed that some of the witnesses offered on defendant’s behalf are in the lottery business, and are, therefore, to be discredited. But that is a question for the jury. They are certainly no more engaged in the lottery business than the plaintiff himself was during the time he was representing these combined lottery schemes at 599 Broadway; and the idea that it was because of some compunctions of conscience, and because he found out that lotteries were illegal, that he relinquished this agency, is scarcely 'worthy of a moment’s discussion. If there had been a loan of money to the defendant to the large amount testified to by the plaintiff, it is absolutely incredible that he should have nothing whatever to show to support it; and the very fact of the secrecy attending the alleged transaction, as an excuse for the failure to produce the papers which would ordinarily attend a transaction of this description, stamps the whole alleged loan with suspicion, to say the least. Under these circumstances, with this remarkable claim supported by this remarkable evidence, it seems to us that anything that will throw light upon the transaction ought to be allowed to be introduced." The claim that this evidence might have been produced upon the trial is unfounded There is nothing to show that the defendant had any reason to apprehend that the witnesses could give the testimony which it is now claimed they could give. Neither could the defendant, in advance of the trial, anticipate the story which the plaintiff rehearsed upon the witness stand.

We are of opinion that the motion should have been granted in the court below. The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, upon payment of the costs and disbursements of the trial, and such costs of the appeal from the judgment as might have been taxed at the time of the decision of the original motion.

O’Briem and Barrett, JJ., concur.


author: O’Briem, J. Barrett, J. Van Brunt, P. J.

text:
    Alfred A. Blair et al Resp'ts, v. James A. Flack, Sheriff, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Attachment—Release—Agreement to hold check op third party in lieu op.
    The surrender of the rights obtained under an attachment to a third person is a sufficient consideration to support the latter’s agreement that he would, in place of the attached property, deposit a check with the sheriff as security for plaintiff’s claim, and give support to the sheriff’s agreement to hold the same for plaintiff.
    2. Evidence—Secondary.
    A copy of an affidavit, offered as secondary evidence, and claimed to have been made by defendant, and in which he made material admissions, was identified by an attorney, who testified that it was served on him in another action by the attorney for defendant in that and this case; that the original was read in court in the former action, and purported to have been sworn to by defendant; the loss of the original from the files of the court was testified to by an employee of its clerk. Held, that the copy was properly admitted in evidence.
    (Van Brunt, P. J., dissents.)
    Appeal from a judgment entered on the verdict of a jury, and from order denying a motion for a new trial.

      David Tim (Abram Kling, of counsel), for app’lt;

      George HI Fletcher (Herbert T. Ketcham, of counsel), for resp’ts.
   O’Briem, J.

This action has been tried three times, and reviewed once by this court, 62 Hun, 509; 42 St. Rep.. 925, the opinion giving a full and explicit statement of the facts upon which the issues between the parties were framed. Since the appeal the pleadings have been amended; changing, to some extent, the issues. But as the principal issues were correctly defined in the former opinion, and the views therein expressed were availed of by the learned trial judge upon this last trial in such a way that no exception to his charge was taken, the only questions left upon this appeal are such as are presented by exceptions taken to the denial of the motions to dismiss the complaint, and to the admission or exclusion of certain evidence. A restatement of all the facts will not be required, because, by reference to the statement in the former opinion, and to so much of the facts as may be necessary to present the questions urged upon this appeal, we shall have sufficient data before us upon which to dispose of the case.

The plaintiffs assert that, having attached property of their debtor, they agreed with the sheriff that the latter should accept as security for their claim, in lieu of the levy made, the money of one Adams, which being given, they consented to release their lien upon the attached property. The appellant insists that it was error to refuse to dismiss the complaint, because, assuming that the agreement under which the plaintiffs sought to recover was established, such an agreement, being without consideration, was void. We cannot see the slightest force or merit in this suggestion. The plaintiffs, upon their attachment, had procured a levy by the sheriff upon the property, which ostensibly belonged to the debtor. It was entirely competent for a third person, desiring to obtain possession of the goods, whether under claim of ownership or not, to make a contract with the attaching creditors by which he would obtain possession thereof ; and the surrender of the rights which the creditors thus obtained under their attachment was a consideration sufficient to support the agreement on the part of the third person that he would, in place of the attached property, deposit a check with the sheriff as security for plaintiff’s claim, and gave support to the sheriff’s agreement in favor of plaintiffs.

A more serious question relates to the admissibility of a copy of an affidavit alleged to have been made by the sheriff, and used by the latter upon a motion made in the city court upon an application to interplead the plaintiffs in a suit brought by Adams, who was the person who had deposited the check with the sheriff, and which affidavit contained admissions claimed by plaintiffs to be fatal to defendant’s defense. We do not think that any question is presented but that proof sufficient was offered to show the loss of the paper purporting to be an affidavit signed by the defendant, Flack, and used in the city court suit, and which was present in the court room on the former trial of this action. Nor is there any question but that such proof would have justified resort to secondary evidence as to the contents of the paper, assuming that sufficient appeared to show that the original was signed by, or brought home to, the defendant, Flack, against whom it was to be read as his declaration. As said in Nichols v. Iron Co., 56 N. Y., 618, however: “ Secondary evidence of the contents of a written instrument, when allowed, does not obviate the necessity of proving the genuineness of the instrument, but renders it more imperative. Where secondary evidence of the contents of a writing is admissible, it is indispensable that the person by whom it is proposed to prove it should have seen and read the writing, and can speak from personal knowledge. There must be proof that 'the party either wrote it or authorized it to be written.” .

The question, therefore, is, was there proof that the affidavit, secondary evidence of the contents of which was read to the jury, was either written, or authorized to be written, by Flack? We will leave out of consideration, in this connection, any inference to be drawn from the admissibility of a copy of the affidavit upon the former trial, and refer to so much of the record as directly bears upon the question of proof that the original affidavit was written, or authorized to be written, by Flack. The copy was produced by the attorney who appeared for Adams in the city court case in his litigation against the defendant, Flack. He testified that this copy of the affidavit was served upon him, as such attorney, by Flack, acting through his attorney. When asked as to his means of knowledge of the identification of the copy with the original affidavit used by Flack upon the motion in the city court, he stated, in effect, that he knew it was a copy of the affidavit, because the original was submitted to the court on the motion, and referred to, and that the reference to the affidavit in the court showed that it was the same as the copy which the witness then had in his hand.

It was also put beyond question that the attorney who presented the affidavit was the attorney for Flack, and that he read the affidavit purporting to be sworn to by Flack, and served the copy upon the witness which the latter produced in court, and which was admitted in evidence. We think, therefore, that where the loss of the original affidavit from the files of the city court was, proved to the satisfaction of the trial court, and where the identity of the contents of the copy offered in evidence with the original appeared by the testimony of two witnesses, and the lost original paper was made a part of the proofs on a former trial, supplemented, as were these facts, by evidence to show that the original was served by Flack’s attorney, and used upon the motion in the city court, a sufficient foundation was laid for the admission of the copy as proof of the contents of the lost original.

The action in the city court was stated by counsel to have been one brought by the third party, Adams, against the sheriff, to recover back the amount of the check deposited with the sheriff. The appellant here contends that it was error for the court to exclude the judgment roll in that action, or evidence that the plaintiff had notice of such action, and had been requested to defend the same. It is true the record shows that the defendant offered in evidence the judgment roll in an action in the city court wherein Adams was plaintiff and Flack defendant, and that thereupon a discussion between court and counsel was indulged in as to the purposes for which such judgment roll was offered. It appears to have been marked for identification, but it forms no part of the present record, and is not, therefore, before the court. So we fail to see how any great consideration is to be given to this, because we are unable to determine what the character of that action was. We probably would be right in assuming that it was an action brought by Adams to recover back the money from the sheriff upon the theory that he had converted the same, but of this there is no proof in the record. Assuming, however, that it would have proven what the defendant’s counsel offered to show, we do not think that, sustain:ing by competent proof the offer thus made, it would have in any way affected the plaintiffs’ right to a recovery. If we may assume, as stated, that that action was brought against the sheriff for converting the money belonging to Adams, it can have little or no bearing upon the questions presented here, as to plaintiffs’ right to recover, which was based upon an agreement alleged to have been made by the plaintiffs in this action and the sheriff and Adams. It must be remembered that the plaintiffs were not parties to that record, nor were they privies, for both Adams and Flaelc held towards them an antagonistic position. The plaintiffs here held towards the sheriff no relation as surety, indemnitor or bailor, and, therefore, the effect of a suit brought by a third person against the sheriff, relating, as it may be, to the same subject-matter, could in no way be controlling, even though notice thereof had been brought home to the plaintiffs. They were justified in standing upon the claim which they made, of an agreement with the sheriff b^ which he held a fund sufficient to pay any claim which they might have recovered against the debtors; and we fail to see how a judgment, or notice of proceedings in an action resulting in a judgment, in favor of the third person, Adams, against the sheriff, for converting money belonging to Adams, could affect plaintiffs’ right to recover. We think it, however, sufficient to say that where, as here, the judgment is absent from the record, and the relevancy and materiality do not clearly appear, we cannot conclude that the trial judge, with the record before him, made any error which would demand a new trial.

As no other error’s upon the trial were assigned or urged upon this appeal, we are of opinion that the j udgment should be affirmed, with costs and disbursements.

Barrett, J.

The presiding justice suggests that there was no proof whatever that any affidavit made by Flack existed. If by this the presiding justice means there was no direct proof of Flack’s signature and oath, I agree. But there was abundant proof that Flack made himself responsible for the existence of this affidavit, and for the statements therein contained; for upon it he applied to the city court for certain relief,, and he served what purported to be a copy of this affidavit upon his adversary with his notice of motion. I can conceive of no more conclusive evidence of the existence of this affidavit, as against Flack, than these facts. It either existed, as Flack thus deliberately asserted, or he and his attorney were guilty of a fraud upon the city court in pretending that it existed, which we should not assume. But, whether this affidavit was actually verified or not, it was clearly admissible as a statement made and put forward by Flack, and used by him upon the application which he made to the city court thereon, in his own interest and for his own benefit There was also abundant proof that the paper admitted in evidence was a copy of this affidavit, and that the original could not be found. The learned counsel for the appellant, in criticizing the ruling of the circuit court, quotes but a small part of the testimony upon the latter head. The witness, Duffy, in fact, testified that he had searched in the clerk’s office of the city court for two days, “ all over the books and papers of the date upon which the affidavit was recorded as having been filed,” and could not find it. As to the point that the evidence was insufficient to show that the paper so admitted at circuit was a copy of the affidavit, the testimony of Mr. Daniels is controlling. This gentleman was the attorney for the plaintiff in the city court suit, and he distinctly testified that the paper which he produced was the identical copy of the affidavit which was served upon him by Flack’s attorney. This copy so served was clearly admissible as an independent assertion by Flack of the statements therein contained, upon which statement he asked for relief. I, therefore, concur with Mr. Justice O’Brien that the paper in question was properly admitted. I also agree with him as to the other questions discussed, and I think the judgment should be affirmed, with costs.

Van Brunt, P. J.

(dissenting).—I dissent. There was no proof whatever that any affidavit made by Flack ever existed, nor was there sufficient proof of the loss of such a paper. Nor was there any proof that the paper produced was the copy of any other.

Judgment affirmed, with costs.


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    Henry G. Keasbey et al., Resp'ts, v. The Brooklyn Chemical, Works et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Trademark—Descriptive name.
    The words “ Bromo Caffeine,” used as a name by a firm of manufacturing chemists to describe a preparation composed of bromide of potassium, caffeine, effervescing salts and sugar, are descriptive of the principal ingredients of the composition, and a trademark cannot be acquired in such name. -
    Appeal from a judgment confirming the plaintiffs’ right to the exclusive right to the use of the words Bromo-Oaffeine, descriptive of a certain medical preparation manufactured by them.

      Taylor & Parker (Alfred Taylor and Herman Aaron, of counsel), for app’lts ;

      Jones & Govin ( Wm. G. Choate and Edward K. Jones, of counsel), for resp’ts.
   Van Brunt, P. J.

There seems to be no pointed dispute in regard to the facts which were established upon the trial of this case; and it does not seem to be claimed but that the findings of the court set forth all that is necessary for a determination of the rights of the parties to this action. Neither is there any substantial dispute as to the rule of law which is applicable to those facts, but the divergence arises in the determination as to what result should follow from such application. It is conceded that, if the necessary effect of the alleged trademark is to inform the reader or hearer of the general characteristics and composition of the thing, it is a name which may be used with equal truth by any one who makes or offers for sale a thing compounded of the same ingredients, and who desires to express to the public the same facts, and that it is not necessary that it should convey an exact notion of how to combine the articles, or that one reading it would be able to make a like article; also, that the coupling together in combination of words which before that had been used apart, and had entered into the common or scientific vocabulary, does not give a right to the exclusive use of such combination, where it is indicative, not of origin, maker, use and ownership alone, but also of quality and other characteristics.

The questions,' therefore, which are presented for solution by the facts found in this case, are: Does the trade-mark in question inform the reader or hearer of the general characteristics and composition of the thing to which it is attached? Does it also inform of its quality and other characteristics, or is it indicative only of origin, maker, use and ownership? Now, the facts found by the court were that the plaintiffs are, and have been since the year 1878, manufacturers of medicines and medical preparations; that in said year the plaintiffs began to manufacture and put upon the market a medicine called “Caffeine;” that in the year 1881 the plaintiffs commenced, and have ever since continued, the manufacture of a secret preparation of caffeine, composed of bromide of potassium, caffeine, and other ingredients; that, in order to distinguish said preparation from all others, and from similar preparations of other manufacturers, and to establish a trade-mark for the same, the plaintiffs originated and applied to the said preparation a new, arbitrary, and fanciful name, which neither described the article nor its ingredients, consisting of the words “Bromo-Caffeine,” which had never before 'been used in medical science to designate or name any other medicine or medical preparation; this finding being somewhat inconsistent with some that follow ; that preparations similar to the plaintiffs’ article, designed and adapted to the same use, have been made and sold bj^ others, including the defendants, by the name of “ Hydro-Bromate of Caffeine; ” that in 1890 the defendants made a preparation similar to that of the plaintiffs, and intended for the same purposes, to which they applied the name “ Bromide Caffeine,” which name they subsequently changed to “ Bromo-Caffeine,” and that the defendants have since used, and are still using, the same name upon such similar preparation; that prior to 1881 bromo-caffeine was the name of a definite, distinct, chemical compound; and that bromine and caffeine were and are, and each of them was and is, an element well known in chemical science, and each had an established place and meaning in the English language; that bromides, prior to 1881, were known to physicians, and were well known to possess certain medicinal properties as sedatives; that bromide of potassium and bromide of sodium were known, and well known, to pos: scss certain medical properties as sedatives; that the preparation sold by the plaintiffs under the name of “BromoCaffeine” consists of bromide of potassium and caffeine mingled with an effervescing salt and sugar; that it is and was a common practice to prepare medicines in the form of effervescing salts, and that the objective medical ingredients in the plaintiffs’ preparation sold under the name of “ Bromo-Caffeine ” are bromide of potassium and caffeine; that the active therapeutic ingredients in the defendants’ preparations are bromide of sodium and caffeine,' and that bromide of sodium and of potassium are what are known as “ bromides,” and their therapeutic effect is substantially identical. Upon these facts the court found that plaintiffs have acquired a valid trade-mark in the name of “ Bromo-Caffeine,” to designate their article of manufacture; and that they are entitled to its exclusive use as a name for the same.

It is urged by the respondents, in support of the judgment appealed from, that the term “Bromo-Caffeine,” as applied to the plaintiffs’ preparation, is not descriptive, and that it is no objectian to its validity that it suggests, without describing, the thing, or the ingredients from which it is made, and this contention seems to be based principally upon the ground that “ bromo,” in medical nomenclature, has no definite meaning, and is not in use; and that, if taken to designate some substance in which bromide enters into its composition, it did not indicate or suggest any particular one,of such substances, and that, therefore, the case at bar was not in any way like the case of Caswell v. Davis, 58 N. Y., 223, which involved the right to a trade-mark in the words 11 Ferro-Phosphorate Elixir of Calisaya," but is included in the principle decided in the case of Electro-Silicon Co. v. Hazard, 29 Hun, 369. This contention we do not think can be sustained. The finding of the court is that the ingredients which give to the plaintiffs’ preparation its medicinal properties, and produce the effects claimed by its use, are bromide of potassium and caffeine, and that bromide of potassium is one of what is known as the class of bromides. Under these circumstances, it is difficult to see why the use of the word “ bromo ” is not and was not intended to be descriptive of one of the ingredients in the composition manufactured by the plaintiffs, and that such is the necessary result of the use of the word is plainly established by the evidence of Dr. Hamilton, one of the witnesses for the plaintiff. . He testified that he knew the medical preparation called “Bromo-Caffcine; ” that he had been in the habit of prescribing it for his patients for at least ten years past; that he did not know what ingredients were contained in it to induce him to recommend it, but he believed it contained bromides and caffeine, and that he understood from its name that it contained bromine, either free or in combination, because “ bromo ” is the most commonly used word.

He further testified that the combination conveyed to his mind the fact that bromide, some sort of bromide, and caffeine were combined; and that bromine, in combination in medicine, is known to be a sedative, and that caffeine, in certain diseases, has also well-known medical properties, in that it acts as a stimulant; and that the name “ Bromo-Caffeine ” vaguely conveyed to his mind that there was some preparation of bromide and caffeine together, and we think that that is just what the term was intended to convey to the ordinary purchaser of the article, only not vaguely; and the evidence shows that the active constituents of this composition are a bromide and caffeine. It seems to us that it is difficult to get a combination of words which so correctly describes a manufactured article, or rather its active properties, as the one adopted by the plaintiffs. If these words are not descriptive under this evidence and these findings, it would seem to be impossible to imagine a combination of two words which could be descriptive in case the composition contained other ingredients absolutely unnecessary for the production of the medical result. The case of Electro-Silicon Co. v. Hazard, above referred to, has no similarity whatever to the case at bar. In that case it appeared that the preparation, made from an infusorial earth, was first put up by the plaintiff’s predecessor, and sold by them under the name of “ Electro-Silicon ” and also “ Silicon ” for a number of years; that the words “Electro-Silicon ” were not descriptive, although the article contained some silicon in the form of silica or silicic acid, silicon itself not being, and from its nature it being impossible that it ever should become, an article of commerce, as it exists in minute quantities, and is an elementary body closely allied to carbon, and is never found in an uncombined state, but is only a component part of compounds not resembling it in any respect, from which it has been separated in very small quantities to furnish specimens for cabinets; and that, therefore, the word “silicon ” was in no way descriptive of the active qualities of the preparation. This case seems to be entirely distinct in all its essential- features from the one at bar. We are of opinion, therefore, that the plaintiffs failed to establish the right to a trade-mark in the words “ Bromo Caffeine,” and that the judgment should be reversed and a new trial ordered, with costs to appellants to abide event

O’Brien and Eollett, JJ., concur.


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    C. Elliott Minor, Assignee, App'lt, v. Cornelia A. Beveridge, Resp't.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Stocks—Umabthobized sale.
    A sale by stockbrokers of stock carried on margin, by reason of tlie margin becoming exhausted through a depreciated market, without notice to the customer or demand for further margins,is a breach of the broker’s implied agreement to carry the stock that would defeat a recovery for any losses arising out of such sale.
    Exceptions to a dismissal of the complaint, directed to be heard in the first instance at the general term.

      Max Stern {George W. Wingate, of counsel), for app’lt;

      Eugene L. Bushe, for resp't.
   Van Brunt, P. J.

This action was brought by the plaintiff, as assignee for the benefit of the creditors of the late firm of Gallaudet & Co., who had been bankers and brokers in stocks, bonds and other securities, against the defendant, who had been a customer of said firm. Certain stock having been purchased for the defendant by said Gallaudet & Co., it was carried for a long period of time. In June, 1886, pursuant to a request then made by Gallaudet & Co., the defendant deposited á certificate of fifty shares of Pacific Mail stock as margin on the account. A son of the defendant was throughout this period an employee of said firm, and said employment continued up to the time of the failure. In December, 1888, the defendant transferred a stock-dealing-account which she then had with other brokers to Gallaudet & Co. This account was at all times kept fully margined up, and there was sufficient margin up to the 10th November, on which day there was a depreciation in the market, and Gallaudet & Co. sold out all the defendant’s stocks. ¡No demand was made upon the defendant to supply margins, and no notice was given to her of the intention to sell; but one of the members of the firm testified that he' notified the defendant’s son that he should have to sell out the stocks of the mother, the market being at this time very ragged, very weak, and panicky, and that he sold the stocks right away. After the sale,notices were offered to the defendant’s son, at his office, which he refused to accept, but no notice was ever sent to the defendant. This suit was subsequently brought to recover a balance claimed to have been created by this sale against the defendant, and proof was offered tending to show that all the stocks could have been purchased at prices below the prices at which they were sold within a week. 'At the close of the plaintiff’s case, a _ motion was made to dismiss the complaint on the ground that Grallaudet & Co. had failed to perform their duty to the defendant as brokers, in having sold out her stocks without notice to her, and without demand for further margin, and they were consequently precluded from maintaining any claims. This motion was granted, and the ruling of the court excepted to, and the exceptions ordered to be heard in the first instance at the general term.

It is difficult, and we will not undertake, to reconcile the cpnflicting decisions which have been made by the court of last resort upon the relative rights and duties of stockbrokers and their customers. If we are to follow the deductions claimed to be drawn from the statements contained in some of the decisions, we should be compelled to hold, where there is a contract to carry stocks upon a margin, that a sale of such stocks without notice to a customer is not a breach of contract, the relation of the parties being simply that of pledgor and pledgee, and that for a conversion of the pledge the pledgee is only liable for the damages sustained by the pledgor by such conversion ; but whether they would equal the amount of the claim of the pledgee would depend upon the facts developed. But we think that this claim is not directly supported by the case cited; and the implied agreement from the contract to carry upon a margin is also lost sight of. Where there is a contract to carry stocks upon a margin, an agreement, as part of the contract, is implied, that such stocks shall not be sold, in case there is danger of the exhaustion of the margin, until additional margins shall be applied for, and a reasonable time afforded for the furnishing of the same. Therefore, where the relations of the parties are such as they were in the case at bar, the sale of stock without notice is a breach upon the part of the broker of the contract under which the stocks were purchased ; and one of the essential elements of recovery, in every contract, is an allegation upon the part of the party seeking to recover that he has fully performed the contract upon his part. To hold that under such circumstances the broker is necessarily entitled to recover any advances that he may have made, and that in case of a sale without authority the customer must go into the market and repurchase, if it is possible- to do so, and thereby save himself from the losses arising from his unauthorized sale, is to lose sight entirely of the fact that such a construction of the law would give the party a right to recover upon a contract which he has himself violated. In one of the cases, that of Capron v. Thompson, 86 N. Y., 418, it was undoubtedly held that a sale of stock which had been bought upon a margin without notice to the customer did not constitute a failure to perform a condition precedent, but was a breach of a condition subsequent to the purchase. But it seems to me that this is a misstatement in reference to the relations of the parties. The contract in regard to the carrying of the stock is an entire contract, and a failure to carry until the customer has been placed in default is a breach of the entire contract, and the broker, under such circumstances, is not in a position to establish, a condition of affairs which entitles him to any recovery arising out of anything which has been done in connection with that contract. A customer having a contract with a broker to purchase and carry stocks upon a margin cannot be called upon, after the broker has violated his contract and sold his stocks without notice, to go into the street and endeavor to make a similar contract with other brokers, in order to protect himself from loss. It might be that the condition of the market would render it impossible for the customer to make such a contract at that particular time; and thus he is placed at a disadvantage by the broker inducing him to enter into the adventure, because of his promise and agreement to carry the stock upon a margin, and when he violates that agreement the customer must look out for himself and assumes all the risks. We do not think that this can be the true construction of the relation which arises 'between the broker and the customer from a contract to buy and carry upon a margin. The case of Gillett v. Whiting, 120 N. Y., 403; 31 St. Rep., 495, recognizes this principle, and so does the case of Rogers v. Wiley, 131 N. Y., 527 ; 43 St. Rep., 918. This latter was a case of a short sale. The stock having advanced, the defendants agreed to carry the stock until the plaintiff could get out all right. Without any notice to the plaintiff, the defendants bought the stock in at a-price which about exhausted the margin. Upon receiving the notice of the purchase, the plaintiff repudiated it. The market subsequently declined, and the plaintiff directed the defendants to buy to cover the short sale, and to sell the securities held as margin, and to account. This they declined to do, and the court held that the plaintiff was entitled to recover for a breach of that contract ; thus recognizing the fact that the duty of the broker continues to the end, and he can terminate his obligations only by fulfilling his duties to his customers. Therefore, it seems to follow that where a purchase of stock is made upon a margin, and where, from the facts, there is an implied agreement to carry upon a margin, and the broker sells in violation of this agreement, he violates the contract which governs the relations between himself and his customers, and he ought not to be allowed to recover upon the implied promise to pay for the stock purchased, which is part and parcel of the same contract to carry. The exceptions should be overruled, and judgment ordered for defendant, with costs. 1

O’Brien and Follett, JJ., concur.


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    The Wilcox & Gibbs Sewing Machine Co., Resp't, v. Jehiel W. Himes, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Patent—License to use.
    Plaintiff leased to defendant certain sewing machines, the lease containing a provision that the lessee should have the option at anytime to surrender the lease and the machines, provided he should have complied with all the obligations contained in the lease. Held, that a surrender of the license to use the machines could not be effected without their return.
    . % Same—Change op venue.
    In an action for the use of the machines, defendant, by his answer, admitted that he had not returned all the machines. Held, that a motion by him for a change of venue for the convenience of witnesses, by whom he expected to prove that he had surrendered his license to use the machines, was properly denied.
    Appeal from an order denying defendant’s motion to change the place of trial of this action from Hew York county to Sara-toga county on the ground of convenience of witnesses.
    The opinion of the special term is as follows:
    Ingraham, J.—-The question to be determined on this application is whether any of the witnesses mentioned in the moving papers, with the exception of the defendant, would be material witnesses on the trial of the action, and it seems to me clear that they would not. Defendant admits signing the contract annexed to the complaint, and admits receiving the machines mentioned in the contract. He having failed to make any return of the amount of work done by the machines, he was liable to pay to the plaintiff for the rent of the machines the amount specified in the contract. He alleges as a defense that he was “ induced and seduced ” to enter into the contract by various statements made as to the validity of certain patents owned by plaintiff, and he alleges that those statements were untrue. He does not allege, however, that he executed the contract relying upon those statements; nor does-he allege that upon the discovery of the untruth of the said statements he returned the machines to the plaintiff. So far as appears, he has kept possession of the machines during all the time; and before he can escape the liability for the rent reserved, he must elect to rescind the contract by returning the machines. Hor do I think the counterclaim alleged in the answer presents any issue to be tried. The negotiations between the parties must be deemed to be merged in the contract. The contract contained no guaranty that no other person had the right • to use the machines of the same character as those leased to the defendant. The plaintiff does “agree to indemnify the defendant in the undisturbed enjoyment, during the continuance of his lease, and while it is in force, of all the machines leased, hereby agreeing to save said lessee harmless against any claim or claims for alleged infringements of any patent or patents by such use of said machines, or by making or selling the said product.” But there is no allegation in the answer that the defendant has sustained any damage by reason of any claim against him that he was not authorized to. use the machines in question. The answer is very long, and inartificially drawn, and it seems to me clear that no defense is interposed to the action that would justify the defendant in refusing to pay the rent of the machines, nor is any counterclaim alleged upon which defendant could, recover.
    I think, therefore, the motion should be denied, with ten dollars costs to abide the event.

      Charles F. Doyle {Arthur H. Hasten, of counsel), for app’lt;

      Howson & Howson {Stephen A. WalJcer, of counsel), for resp’t.
   Van Brunt, P. J.

It may not be at all necessary to add anything to the opinion given by the court below upon the decision •of the motion. But, in view of the insistence upon the part of the appellant that the papers show that there are at least four witnesses necessary to the defendant to prove the defense set up in his answer of a surrender of the license, it may be proper to call attention to the condition of the pleadings in that regard. The contract between the parties, which is called a “ lease,” and which formed the basis of this action, contained a provision that the lessee should have the option at any time to surrender said lease and the machines mentioned therein, provided he shall have complied with, all and singular, the obligations of the lease, and settled his indebtedness to the lessor thereunder; and, upon such surrender of the said lease and machines, the lessee should be discharged and released from any and all obligations, agreements and covenants thereunder assumed by him. By the fifth paragraph of the answer the defendant alleges upon information and belief that on or about the 1st of January, 1885, he fully complied with, all and singular, the obligations of said contract, and settled his indebtedness to the plaintiff thereunder, and surrendered said license and machines received from the plaintiff. It is apparent that by this allegation the defendant did not intend to aver that he had returned to the plaintiff all the machines received from it, because the complaint alleges the receipt of a considerable number of machines; and the defendant, by the very next paragraph of his answer, admits the receipt of these several machines mentioned in the complaint, ten or more in number, and then denies that the same were used after January 1, 1885, and alleges the absolute return to and receipt by plaintiff of two of said machines, which is a clear concession that all the machines mentioned in the complaint had not been returned. The allegation of the surrender of the license, therefore, is merely the pleader’s conclusion as to a mixed question of law and fact. It seems to be reasonably clear that if the defendant did not return the machines in pusuance of the provisions of the lease, no surrender of the license actually took place; and, therefore, the allegation in the affidavit that certain witnesses are necessary to prove the surrender of the license and the machines becomes entirely immaterial, as there can be no surrender without the return of the machines, and bv the pleadings no such return is averred, and no such return or offer to return was ever made of the large majority of them. It would, therefore, seem that there were no witnesses who could be examined who could give evidence material to the defense alleged. We are of opinion, therefore, that for the reasons assigned in the court below, and for the foregoing reason, no ground was shown for changing the place of trial, and the motion was properly denied, and the order should be affirmed, with costs.

O’Brien and Follett, JJ., concur.


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    The Continental Trust Co. of New York City, Resp't, v. Sarah T. Wetmore, Ex'rx, et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Divorce—Sequestration proceedings—Receiver—Trust fund.
    A receiver of personal property and of the rents and profits of real property of a person, appointed in sequestration proceedings, cannot maintain an action to restrain a trustee of such person from disposing of the income to accrue from the principal of the trust estate.
    3. Same.
    If there is any obligation arising out of the marital relations which had existed between such person and his wife in her action for divorce, which authorized the court to enforce against him the payment out of future accruing income of the alimony awarded her, such right is a personal one, and the receiver is not her representative in respect to it.
    Appeal from an order which, pending this action, restrains defendant from making any disposition of the securities which constitute a trust estate.

      S. P. & J. McL. Nash, for app’lts;

      Jay & Candler (Flamen B. "Candler, of counsel), for resp’t.
   Van Brunt, P. J.

On the 1st day of April, 1892, one Annette B. Wetmore, the wife of William B. Wetmore, obtained a decree -of absolute divorce against her husband, and, in the decree allowing such divorce, the defendant, Wetmore, was directed to pay to her for alimony $3,000 a year, and $1,000 for each of her three children, during their minority, the first payment to be made on the 1st day of July, 1892. The defendant, William B. Wetmore, having failed to comply with the directions contained in the decree of divorce in respect to the payment of alimony, on the 26th of July, 1892, the plaintiff in that action obtained an order, under § 1772 of the Code, by which the personal property and the rents and profits of the real property of said defendant, Wet-more, were sequestrated, and the Continental Trust Company, the plaintiff herein, was appointed receiver of such personal property of said Wetmore, and of the rents and profits of his real property.

This action was subsequently brought against the appellant, Sarah T. Wetmore, as executrix and trustee under her husband’s will, and others, to reach the interest of the said William B. Wet-more in a trust fund of $100,000, provided for by the fifth clause of the will of the appellant’s husband, by which he gave to his executors, other than his son, the said William B. Wetmore, $100,000, upon trust to keep the same invested, and receive the income thereof, and, after deducting reasonable charges for the management of the trust, to apply the net income of the-said trust fund, from time to time, as it should accrue, to the use of his son, William B. Wetmore, s'o long as he should live. By the eighth clause of the will the testator directed that no-person for whose benefit any trust was thereby created should have power to anticipate or dispose of any income directed to-be paid or applied to the use of such person until the same, should have fully accrued and become payable to such use; and the trustees of the respective trusts were empowered and requested to disregard and defeat every assignment or contract-in contravention of this clause of the will. There was no allegation in the complaint that, at the time of the appointment, of the receiver in the sequestration proceedings, any income had accrued or was payable under this trust, nor that there was at that time- in the trustees’ hands anjr income which had not been previously paid over to the beneficiary. Upon the foregoing facts an application was made to the court for an injunction pendente lite, restraining the defendant Sarah T. Wet-more from making any disposition of the stocks or securities constituting the trust estate, and also enjoining and restraining her from collecting and receiving any income accrued, or thereafter to accrue, from the said trust securities and stocks, or any or either of them, and from paying over any of said trust income of said William B. Wetmore to any other person or persons whomsoever. From this injunction order this appeal is taken.

The only question which it is necessary to discuss is, can this-receiver in sequestration proceedings maintain such an action ? Or is it not the rule of law that the relief sought, if obtainable at all, can only be by action brought in the name of the plaintiff in the action for divorce? We think, when we consider the rights- and powers of the plaintiff, and the property of which the plaintiff was appointed receiver, it is apparent that this action cannot be maintained. The receivership did not, and could not, extend to-the principal of the trust fund in the hands of the appellant as trustee. The plaintiff was appointed receiver of the personal property of the defendant, William B. Wetmore, and of the rents, and profits of his' real estate. By no fiction of law can income, which may result from investments held in trust, and which income, when it does result, belongs to a party, be held to be the-personal property of such party until it has accrued. It is a. familiar principle that a receivership in supplementary proceedings does not apply to property subsequently acquired hy the defendant, unless such property issued out of property the possession of which passed to the receiver, as the rents of real estate of which a receiver has been appointed. Dubois v. Cassidy, 75 N. Y., 298. And the same rule must necessarily apply to a receiver appointed in the sequestration proceedings. In supplemental proceedings the receiver is appointed of the property of the judgment, debtor. In sequestration proceedings, a receiver of his personal property may be appointed, and of the rents and profits of his-real estate; the sequestration receiver taking less than a receiver in supplementary proceedings. Therefore, it seems to follow,, as a necessary result, that such receiver acquires no title to personal property acquired subsequent to his appointment.

In the case at bar, at the time of the appointment of this plaintiff as receiver, and of the commencement of this action, there was no property upon which the appointment of the plaintiff as receiver could attach; and it is only sought by this proceeding to reach some income which, perhaps, may in the future accrue to the defendant, William B. Wetmore. We fail to see how the plaintiff makes out title to any such property. If there is any obligation arising out of the marital relation which had existed between the plaintiff and the defendant in the action for divorce, which authorized the ■court to enforce against the husband the payment out of future accruing income of the alimony awarded to the plaintiff in the action for divorce, such right is a personal right, and the receiver in sequestration proceedings is not the representative of the wife in respect to it. Much as we may condemn the wilful defiance by the defendant, William B. Wetmore, of the decrees and orders of this court, yet such a condition of affairs affords no ground for this court to violate the plain principles of law in order to lay our hands upon him. The order should be reversed, with ten dollars ■costs and disbursements.

O’Brien and Follett, JJ.,- concur.


author: OBrien, J.

text:
    The National Bank of Commerce, Pl'ff, v. The Whiteman Pulp & Paper Co. et al., Deft's.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

      1. Attachment—Affidavit.
    An affidavit of a sheriff is sufficient to give jurisdiction to issue an attachment when it sets forth that he has made diligent effort to serve defendant with a summons and complaint at a place “ where she has resided for years,” but could not for the reason that she had left the state to avoid service, and that he was informed by the bookkeeper of her son, and by her daughter, that she had left the state to avoid such service.
    3. Same.
    In such case, the affidavit of the sheriff is not fatally defective because he failed to ^ive therein the reasons why the affidavits of the persons giving him the information were not produced.
    Appeal from an order denying a motion made on behalf of Webster B. Van Nuys, as subsequent lienor, to vacate a warrant of attachment.

      Fred. W. Noyes, for app’lt,
    Van Nuys; Frederic A. Ward and B. I). Silliman, for resp’t.
   OBrien, J.

The appellant, claiming to be a subsequent lienor, moved to vacate the warrant of attachment granted herein against the property of the defendant, Bebeeca E. Whiteman, upon the ground that the affidavits upon which the attachment was granted were upon information and belief, and were defective because of the absence of sufficient reasons why the persons giving the information did not themselves make the affidavits. The attachment itself, as to the defendant, Bebeeca E. Whiteman, was upon the ground that, though a resident of this state, she had departed therefrom with intent to avoid the service of a summons. The affidavit of the president of the plaintiff discloses that the statement made by him, that Mrs. Whiteman, “having a life interest in certain real estate in the village of Dansville, N. Y., has been sent by her son to Holdrege, in the state of Nebraska, and has departed from this state with intent to avoid the service of a summons,” • is predicated upon information received from plaintiff’s attorney, with respect to information received by the latter from the sheriff of Livingston connty, to whom the summons and complaint in the action had been sent for service.

In addition, we have the affidavit of the sheriff showing that the information of the president of the plaintiff was derived from him. Upon the merits, the attachment must stand or fall upon this affidavit of the sheriff ; and the question presented is, whether it makes out a prima facie case showing that the defendant, Mrs. Whiteman, had left the state with intent to avoid the service of process. The sheriff swears that he formerly resided in Dansville, and was well acquainted with the defendant, Mrs. White-man, who was an aged lady upwards of seventy years old; that, upon- receipt of the summons and complaint, he attempted to serve the same upon her at Dansville, “ where she had resided for years, but she was not to be found, and I was unable to serve her; and, although I have used the utmost diligence, I have since been unable to find or to serve her with said summons and complaint, for the reason that she has left the county and the state to avoid the service thereof.” He further states that the defendant, Alonzo J. Whiteman, failed in business, and, with his mother, was an indorser upon a large amount of promissory notes, which have been protested, and attachments have been obtained against - his property; that he had made “ diligent inquiry at Dansville regarding the whereabouts of the defendant, Rebecca E. White-man, and ascertained that she had gone west because of the pend-ency of the suits aforesaid, and to avoid service of the summons herein.” He then proceeds to disclose the sources of his information, and shows that it was derived from a Mr. Leman, who was the clerk of the defendant, Alonzo J. Whiteman, and from Alonzo’s sister, a daughter of the defendant, Rebecca, who also lived at Dansville. From the former he ascertained that Rebecca had left and gone to Nebraska, and from the latter that her going was in order to avoid the service of process in the suits brought by hold-ers of the notes on which she was indorser with her son, Alonzo.

The criticism made by appellant is that reasons are not given why the affidavits of both Mr. Leman and Clara Whiteman were not produced. Within theprinciple, however,of the case of Scott v. Beaudet, 41 St. Rep., 675, this is not fatal to the sufficiency of the affidavit. That was a case in which the affidavit for the attachment on the ground of non-residence of the defendants was attacked becausemade upon information received from the defendant’s bookkeeper, whose affidavit was not obtained, nor reasons given for not obtaining it. It was therein held that, where the relations between the parties are such that the reasons for not obtaining the affidavit of the informant may be reasonably inferred, the explanation of the absence of such an affidavit is not necessary. We think that, having in view the actual knowledge of the sheriff with respect to the persons and their places of residence, and the information derived by him as to the attachment issued against the property of the defendants, coupled, as it was, with the information derived from the bookkeeper and sister of the defendant, Alonzo J. Whiteman, of their having left the village of Dansville, together with a state' ment of the diligent efforts made by him to serve the summons and complaint, these circumstances fully justify his conclusion, and make out a prima facie case against Mrs. Whiteman of having left her place of residence with intent to avoid service of process. This is all that was required to give the court jurisdiction, no question being raised but that all the other grounds necessary were shown to the court granting the attachment Were we to require more than is here furnished to prove that a person has departed with intent to avoid service of a summons, we should render it exceedingly difficult for plaintiffs to obtain an attachment upon this ground. The criticisms of the appellant upon the affidavits of the plaintiff, if applied to his position as a subsequent lienor, would raise a serious question as to his right or standing to make the motion. Instead, however, of disposing of it upon this ground, we have concluded that, upon the merits, the judge at special term was right in denying the motion to vacate the attachment, and that the order appealed from should be affirmed, with costs and disbursements.

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


author: O’Brien, J.

text:
    Edith Mason Faxon, Resp't, v. John Oscar Ball et al, App'lts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    1. Bill of particulars.
    There is no inflexible or invariable rule applicable to motions for bills of particulars under § 531 of the Code; the granting or denying of thesame must be determined by the facts and circumstances of each case.
    2. Same—Assignment for Creditors.
    In an action to set aside as fraudulent a general assignment for the benefit of creditors, the assignee moved for a bill of particulars of the fraudulent acts relied on to prove fraudulent intent. It appeared that all the facts and circumstances with respect to the acts of the assignor were peculiarly within reach of the assignee, and that the particulars were asked simply for the purpose of limiting the evidence and the charges upon which the plaintiff might rely to sustain her charges of fraud. Held, that the motion was properly denied.
    Appeal from an order denying a motion for a bill of particulars in an action to set aside a general assignment for the benefit of creditors.

      Forster & Speir (Henry A. Forster, of counsel), for app’lts ;

      Hornblower, Byrne & Taylor (James Byrne and Marie W. Potter, of counsel), for resp’t
   O’Brien, J.

This action was brought to set aside as fraudulent and void a general assignment for the benefit of creditors, executed by the defendant, John Mason, to the defendant, John O. Ball. No claim is advanced but that the complaint sets forth facts constituting such a cause of action. But the defendant insists that the particulars of the fraudulent acts relied upon to prove fraudulent intent should be furnished, and it is from the order denying the application for such a bill of particulars that this appeal is taken.

The appellant industriously refers to the' various kinds of action involving the question of fraud in which bills of particulars have been ordered. On the other hand, the respondent cites the case of Passavant v. Cantor, 48 Hun, 546; 16 St. Rep., 252, as authority for the proposition that a bill of particulars will not be granted in an action such as this, to set aside an assignment. Section 531 of the Code provides that “ the court may in any case direct a bill of particulars of the claim of either party to be delivered to the adverse party.” We think that the mere reading of this section renders unnecessary a reference to the authorities cited by appellant in support of his view that a bill of particulars should have been furnished, as it equally disposes of the contention of the respondent that the court will never, in an action to set aside an assignment, grant such an application. There is, as shown by the very wording of the section of the Code quoted, no inflexible or invariable rule applicable to motions for bills of particulars; there being certain general principles which may with profit be referred to in determining under what circumstances the power vested in the court will be exercised, in a given case, in ordering a bill of particulars. This view is well illustrated by the two cases of Claflin v. Smith, 13 Abb. N. C., 205, and Passavant v. Cantor, supra, both being applications for bills of particulars in actions such as this, brought to set aside assignments upon the ground of fraud, and in the former of which a bill of particulars was ordered, while in the latter it was denied. It will be found that the granting or denying of particulars must be determined by the facts and circumstances of each case ; and where the court, in furtherance of justice, concludes that a bill of particulars of the claim of either party should be delivered to the adverse party, the application will be granted; otherwise denied.

Here it has been made to appear that the assignee, upon taking possession of the property of the assignor, had delivered to him all the books of account, together with the other property of the assignor. In addition, the latter, in proceedings supplementary instituted by the plaintiff, has been very fully examined as to the disposition made of his property prior to the assignment, and upon such an examination the assignor was represented by the same attorneys who appear for the assignee in this action. It is, therefore, evident that there is no such unfriendly relation existing between the assignor and the assignee that the latter is not in a position to be furnished with all the data essential to meet any claim of fraud which may be produced upon the trial; in other words, all the facts and circumstances with respect to the acts of the assignor, and the disposition made by him of his property, prior to and at the time of the assignment, are peculiarly within the reach of the assignee. There has been, in view of these circumstances, no good reason assigned why, in addition, he should be furnished with any more detail or particulars in order to be prepared to meet the plaintiff’s case as presented upon the trial. We do not think that the purpose of insisting upon the particulars is to give the assignee any light or information upon the matters that will be the subject of contention between the parties upon the trial, but rather that the purpose sought is to limit the evidence and the charges upon which the plaintiff might rely to sustain her charges of fraud. The court never regards favorably applications which, by indirection, would seek to obtain an advantage which upon a direct application would be denied. It certainly never was the object and purpose of allowing a bill of particulars to have it directed solely to limiting an adversary’s evidence. It is true that where information is desired, and a bill of particulars is ordered, the effect, under the provisions of the Code, necessarily is to limit and confine the evidence to the particulars thus ordered and directed to be furnished. But the primary object of a bill of particulars, and the considerations which should move the- court in granting or refusing it, are with a view of furnishing an adverse party with information which is exclusively in the possession of the other, and which, under the circumstances shown, it is but right and proper that such adverse party should Have, to the end that he may be prepared upon the trial to meet the claim made, and prevent the injustice which might result from surprise. Upon the facts here appearing, we are of the opinion that the court was correct in its disposition of the motion, and that the order appealed from should be affirmed, with costs and disbursements.

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


author: Barrett, J.

text:
    La Societe Anonyme De L'Union Des Papeteries, App'lt, v. Samuel M. Marks et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed January 13, 1893.)

    Pkincipal and agent—Evidence of agency.
    In an action of replevin, the .sole question was whether defendants held the goods as agents of plaintiff or as owners; there was put in evidence a declaration of defendants that, “ We, * * * acknowledge by these presents that we are only agents of S. * * * We, therefore, give and acknowledge to said S. an absolute right upon all merchandise consigned by it, and upon all credits arising from the sale of its merchandise.” Accompanying this declaration was a letter from defendants of like import. Other letters from defendants to plaintiff were introduced, in one of which they say: “ We have always considered ourselves as your agents.” _ 3eld, that the evidence established the agency and plaintiff’s ownership of the property, and that there was no question for the jury.
    Appeal from a judgment entered in favor of the defendants, and from an order denying a motion for a new trial, in an action in replevin.

      Coudert Bros. {MB. Goudert and Joseph Kling, of counsel), for app’lt;

      David Tim {Abram B. Kling, of counsel), for resp’ts.
   Barrett, J.

The sole question in this case is as to the title to certain goods, for the recovery of which the action was brought. The plaintiff claimed that it was the owner, and that the defendants held the goods as its agents. The defendants denied the agency, and claimed that they had purchased the goods from the plaintiff. The material evidence was documentary, and consisted mainly of the correspondence between the parties. The testimony of the witnesses threw but little light upon the controversy, and it amounted substantially to their construction of the documents. For instance, the witness Bevenot, whose testimony was read by the defendants, and who declared that the goods were not consigned, but sold, and that the plaintiff’s books showed this, qualified his testimony by the statement that, as far as he could remember, such were the conditions existing between the parties, “as shown by correspondence and invoices.” There was, in fact, no oral testimony, in the least controlling, as to the arrangement between the parties, nor were the alleged admissions of any special value. One witness testified that the defendant Meyer told him, upon a certain 'occasion, that the defendants were the plaintiff’s agents. Another witness testified that the plaintiff’s sub-manager told him that the defendants were debtors to the plaintiff. And so they were debtors, whether consignees or vendees. The defendant Marks testified that no goods were ever consigned to his'firm; that the defendants had received no letter from the plaintiff referring to transactions between them as consignments, thus summing up the entire correspondence, and that they never received any commission for selling the plaintiff’s goods. All this was but Mr. Marks’ construction of the correspondence, invoices and other documents, including the entries made upon his own books. There was no attempt on either side to prove an oral agreement between the parties, and consequently the agreement must be looked for in the documents. Where the, documents were susceptible of two views, as perhaps they were with reference to the earlier transactions, the course of dealing between the parties became an important factor. It was proper, therefore, to read these documents in the light of the testimony given by the witnesses.

From this testimony, it appeared that the defendants paid freight, insurance, and duties; that they were debited with the goods on the plaintiff’s books; that they gave their notes therefor ; and that a discount was at one time allowed them for cash, which, upon failure to pay cash, was withdrawn. These and several other facts of a similar character tended to throw light upon the real nature of the original arrangement between the parties; and they would, doubtless, have been sufficient, standing alone, to justify the submission of the main question in controversy to the jury. But whatever the original agreement, as evidenced by the earlier letters, supplemented by the testimony as to the course of dealing, may have been, all question as to the real relations between the parties was set at rest by the defendants’ letter and declaration of May 11, 1888. The declaration' reads as follows:

“We, tlie undersigned, Sami. M. Marks and Jules Meyer, acknowledge by these presents that we are only the agents of the Societe Anonyme de 1’Union des Papeteries at Bruxelles, without any right on the part of the company to take any part in the purchase or sales; the company not being chargeable with the slightest responsibility in reference thereto. We, therefore, give and acknowledge to the said company an absolute right upon all merchandise consigned by it, and upon all credits arising from the sale of its merchandise. The societe may withdraw this agency by giving us six months’ notice in advance, and the account will be liquidated for that period, to wit, six months after arrival of the notice. The liquidation will only comprise our debit balance. Same. M. Marks and Jules Meyer.”'

The letter, so far as material, reads as follows:

“ To give you every satisfaction, we send you herewith a declaration by which we recognize that we are only your agents, and that, although working at our own risks, you have, none the less, an absolute right upon all merchandise coming from you, and on all the credits arising from our sales of your articles. This instrument, under private signature, is what is called, in legal terms, in America, a ‘lien,’ and binds third parties.”

These documents admit of no misconstruction. They were deliberately written by the defendants, and sent to the plaintiff to settle all question as to their relations ; and these relations, as thus specified, established and settled, were fully acknowledged in subsequent communications. On the 7th of the following December, Mr. Meyer wrote to the plaintiff with regard to the approaching expiration of his contract with Mr. Marks, calling its attention to his “ two years of assiduous work,” and to the fact that Mr. Marks’ position had been only secondary. He said that he had reached the point “ of gathering the fruit,” and that he proposed to the plaintiff “ to continue as heretofore under the same conditions.” In this letter, he adds: “I have'established your house upon the most solid basis. Your goods are known from the Atlantic to the Pacific. * * As I have written you, the house is yours and you have an exclusive right to ownership, as I have told you, and upon the conditions indicated.”

In March of the following year both defendants wrote to the plaintiff, complaining of the latter’s delay in communicating to them the decision of its board of directors with regard to future transactions. In this letter the defendants use the following language: “We have taken and received orders, and nothing is left us but to notify our customers, customers which we consider your own, that it is impossible for us to execute the orders.” And also this : “ We have always considered ourselves as your agents, and are considered such by you, as appears from your last letter. We, therefore, do not understand what you say about borrowing from bankers on your stock, which would alter our position as depositories into that of debtors, and the stock, which is yours at present, would become our property, without any preference in your favor.”

Again, on the 2d of April, 1889, the defendants refer to the stock on hand in this wise: “ If we do not receive a satisfactory answer by cable or letter, we shall have no alternative but to place your stock in warehouse.”

. Indeed, it was not until the 17th of May, 1889, when the relations between the parties had become strained, that the agency was questioned. This letter of May 17, 1889, was a specious attempt to avoid the effect of the declaration and letter of March 11, 1888, and of the subsequently acknowledged relations thereunder. In this letter the defendants pretend that the declaration in question was a mere unaccepted offer. But this pretense was frivolous, in view of the correspondence which followed the declaration, and in view of the fact that the declaration itself, resulting, as it did, from the defendants’ willingness to give the plaintiff “every satisfaction,” was evidently solicited. At all events, the declaration was received by the plaintiff, and retained, without objection or suggestion of inaccuracy, for upwards of a year. That was a plain acquiescence in its correctness as an embodiment of its reW tians with the defendants, and this acquiescence was emphasized by the receipt, without comment, of the letters which followed. The defendants’ letter of May 17, 1889, was not an honest statement of their views with respect to this declaration. They knew well enough that it had been accepted, but it served their ulterior purposes to put forward at that time the shadowy distinction between a formal acceptance and a tacit, but well-understood, aecepance. The defendants were plainly bound by this declaration, and by the correspondence with accompanied and followed it. It conclusively established their agency, and the plaintiff’s ownership of the pi’operty in question. In our judgment, the case should not have been submitted to the jury for their opinion upon the mass of confusing documents which led up to the crucial and conclusive declaration in question, but a verdict should have been directed for the plaintiff upon the legal effect of this declaration and the accompanying arid subsequent letters.

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

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