author: Putnam, J. Mayham, P. J.,

text:
    Emily Wagner, App'lt, v. Thomas J. Daly, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Trade-mark— Originator of use of label.
    Plaintiff, since 1883, has used upon her cigar boxes a certain label bearing the head of a pug dog and the words Wagner’s Pug, which label she purchased from the printers who invented and registered the same. Prior to the sales to her and ever since said printers had sold said label without the words to a cigar box manufacturer, and have continued to sell the same to the cigar trade generally as cigar labels. Held, that plaintiff not being the inventor of the label, nor the originator of the word and symbol as a cigar box label, could not claim an exclusive right thereto, or maintain an action to restrain defendant from using said label with the words Pug Cigar thereon.
    (Matham, P. J., dissents.)
    Appeal from judgment dismissing complaint.
    The facts appear fully in the dissenting opinion.

      Charles S. Nisbet (Harvey Booh, of counsel), for app’lt;

      Thomas A. Murray.{Z. S. Westbrook, of counsel), for resp’t
   Putnam, J.

In Schneider v. Williams, 44 N. J. Eq., 17 Stewart, 391, to which we are referred by appellant, it is held that one to acquire title to a trade-mark “ must adopt some mark not in use to distinguish goods of the same class or kind already in the market belonging to another trader.” In Van Beil v. Prescott, 82 N. Y., 630, it is held that “ to make an exclusive right to use a name or symbol as a trade-mark, such use must be new ; if ever used as applicable to a like article, it cannot be exclusively appropriated.” In Selchow et al. v. Baker et al., 93 N. Y., 59, it is determined that “ where a manufacturer has invented a new name consisting either of a new word or words in common use, which he has applied for the first time to his own manufacture, * * * he is entitled to be protected.”

Plaintiff was not the inventor of the alleged trademark in question. She commenced using it on November 7, 1885. It was invented by Wischt & Smidt, engravers, on August 14,1883, as a cigar label. On September 11, 1883, said firm sent samples of said label all over the country to the cigar trade. They sold the first labels to plaintiff on October 19, 1883, but prior to that time had sold ten labels to one Pople, a cigar box maker of Newark.” It also appeared by the evidence of the witness Wischt that from the time said firm originated this label and offered it to the trade they had sold quite a number of such labels to other parties or other cigar box makers for use in the cigar trade.

Hence while plaintiff was not the inventor of the word and symbol in question, neither was she the originator of such word and symbol as a cigar box label. When she commenced using them, they were on sale to the cigar trade -in the country as cigar labels, and at least one lot of such labels had been sold to a cigar box manufacturer. Therefore, under the case of Van Beil v. Prescott, supra, I do not think it appears that plaintiff’s use of the symbol and word in question as a cigar box label was new. They were used before her adoption of them as applicable to a like article. Therefore, the plaintiff fails to make out a case showing herself entitled to the exclusive use of the said alleged trade mark.

The plaintiff in fact in this action seeks to prevent the inventors and originators of said device from having the benefit of their invention. Of course, if purchasers from Wischt & Smidt of the labels in question cannot use them the firm are prevented from a further sale thereof.

I think the trial court made a proper disposition of the case, and that the judgment of the court below should be affirmed, with costs.

Herrick, J., concurs.

Mayham, P. J.,

(dissenting.)—This action was prosecuted by the plaintiff, a cigar manufacturer, against the defendant, also a cigar manufacturer, for an alleged infringement by the defendant of plaintiff's trade mark, used in her business as a cigar-maker.

The device consisted of the picture of the head of a pug dog, on which was printed the words “Wagner’s Pug,” pasted upon plaintiff’s cigar boxes, and the alleged infringement consisted of a similar picture on which were the printed words, “ Pug Cigará,” which defendant pasted upon his cigar boxes.

The proof shows that the plaintiff first used this device or brand, upon her cigar boxes, on the 7th of November, 1883, and that her sales of that brand of cigars increased from 7,000 in that year yearly, until in 1891 her sales reached the sum of 225,000. The defendant commenced using this device with the words “ Pug Cigars” on his boxes in February, 1892. The proof shows and the trial judge found, that one Sammons, a cigar box manufacturer, supplied the plaintiff with cigar boxes from 1883 to the time of the commencement of this action, and that in October of that year he procured from Wischt & Smith, manufacturers of cigar box labels, samples among which was one in all respects like the one used by plaintiff except that over the device was printed the words “ Friend Pug,” and that at the request of the plaintiff, Sammons procured of Wischt & Smith the same kind and device except that in the place of “Friend" the word “Wagner’s1’ was substituted, and this device with the words “Wagner’s Pug" was pasted on the boxes sold by Sammons to plaintiff and by her filled with cigars and sold to her customers.

The testimony also showed that Wischt & Smith originated this device in August, 1883, with the words “ Friend Pug ” printed over the picture, and on the 11th of September of that year sent samples of the same to cigar dealers all over the country, and sold some to customers before the sale in October, 1883, to Sammons, and that the business of Wischt & Smith was that of engravers, lithographers and colored prints, and publishers of cigar labels, and has sold several millions of the “Friend Pug” label, but had never sold any of the “ Wagner Pug" labels, except to Mrs. Wagner’s box maker.

The defendant commenced the use of this device with the words “Pug Cigars” about the year 1888, and his box maker procured his label from Wischt & Smith, the same lithographers from whom plaintiff’s box maker procured her label.

Wischt & Smith labels were not registered, or copyrighted under the United States statutes, and the plaintiff had never registered her device as her trade mark.

Two leading propositions must be established by the plaintiff before she is entitled to maintain this action.

First. That she had so far used and appropriated this device as-to constitute it her trade-mark, so as to give her the exclusive right to the use of the same.

Second. That the use by the defendant of the device, which he-placed upon his boxes, was such an adoption and use of the plaintiff’s device as to constitute an unlawful interference or infringement of the plaintiff’s trade-mark.

The legislature of this state, in the adoption of the Penal Code, have furnished a recent, and, I think, correct definition of a trademark, which may be safely followed in the determination of the civil rights and remedies of parties upon that subject.

Section 366 defines it as follows: “A trade-mark is-a mark used to indicate the maker, owner or seller of an article of merchandise, and includes among other things, any name of a person, or corporation, or any letter, word, device, emblem, seal, stamp, brand, wrapper, ticket, label or other work, lawfully adopted by him and usually affixed to an article of merchandise, to denote the-same was imported, manufactured, produced, sold, compounded, bottled, packed, or otherwise prepared by him * *

To acquire title to a trade-mark as above defined, the person-using and adopting the same must adopt some mark or device, not in use, to designate goods of the same class or kind already on the market, belonging to some other trader.

. He must also apply his mark to some article of merchandise, or traffic, and must put his article thus marked with his intended trade-markon, the market. Snyder v. Williams, 44 N. J. Eq., 391.

It does not seem to be necessary that the plaintiff, to acquire property rights in a trade-mark, should describe the device adopted by her on the face of the label as her trade-mark; adopting it, attaching it to specific articles of merchandise, and putting the merchandise on the market for sale, is a sufficient notice to the-public to give exclusive right to its use as to the particular kind of merchandise to which it is attached.

But in order to establish such property right the plaintiff must show that he was the first to establish and use the device attached to the particular kind of goods which he has put upon the market.

It must,- in the language of Upton’s Trade Mark, be “the name, symbol, figure, letter, form or device, adopted and used by a manufacturer or merchant in order to designate the goods which he manufactures or sells, and distinguish them from those manufactured and sold by others, to the end that they may be known in the market as his, and thus enable him to secure such profit as results from a reputation for superior skill, industry, or enterprise.” Upton’s Trade Mark, 9. In Newman v. Alvord, 51 N. Y., 193, Earl, J., says, “ The trade mark must be used to indicate, not the quality, but the origin or ownership of the article to which it is attached.

“ It may be any sign, mark, symbol, word or words, which others have not an equal right to employ for the same purpose.”

The long and uniform use made by the plaintiff of this device upon the boxes in which she sold her cigars to the general public was, we think, sufficient evidence of her adoption of this device as her trade mark and established her title to the same, provided she had such priority of adoption, use and sale of the same as is required by law to vest in her a property right in it as a trade mark.

But it is insisted by the learned counsel for the respondent that the plaintiff, was not the first to adopt this device, and that, therefore, the plaintiff acquired by its use no exclusive right to the same.

It is true that the evidence discloses that the lithographer and originators of the pug dog design had sold to one person, for what use or purpose does not appear, some of these lithographs differing only from plaintiff’s in having the word “ Friend ” in the place of “ Wagner’s ” on them, but it does not appear that they were used by the purchaser as labels on cigar boxes, which alone would make their sale and use such a prior use as to deprive the plaintiff of the right of adoption and use upon cigar boxes, as her trade mark. Nor was the printing and sale of this device by the lithographers any adoption of the same by them as a trade mark, and their sale of the same to plaintiff’s box maker imposed no restraint upon the plaintiff which prevented her from adopting it, provided there had been no prior adoption of the same by some other person as a trade mark for the sale of cigars.

This being so, the device adopted by the plaintiff, and pasted upon her cigar boxes, became her trade-mark, and any unauthorized use of the same by another was a violation of her property rights for which an action would lie.

The remaining question is, was the device used by the defendant an infringement of the plaintiff’s trade-mark, or, in other words, was it such an imitation as to mislead the public into the belief that the cigar boxes on which it was placed bore the trademark of the plaintiff, so as likely to promote the sale of the defendant’s cigars under the mistaken belief that they were of the plaintiff’s manufacture.

To constitute a violation of the plaintiff’s right in the unauthorized use by another of her trade-mark, it is not essential that the device so used is in all respects a fac simile of the plaintiff's trade-mark, a counterfeit or imitation so nearly resembling the genuine as to mislead, with the apparent object of producing, and likely to produce, upon the mind of the purchaser the belief that the article offered for sale bears the trade-mark of the plaintiff, may produce all the injurious consequences to the plaintiff as the use of the device itself, or an exact fac simile.

Upon this subject, we may again refer with profit to the legislative definition of a counterfeit of a trade-mark.

A criminal counterfeit of a trade-mark is defined by the Penal Code, § 368, as follows: “An imitation of a trade-mark is that which so far resembles a genuine trade-mark as to be likely to induce the belief that it is genuine, whether by the use of words or letters similar in appearance or sound, or by any sign, device or other means whatever."

In Clark v. Clark, 25 Barb., 76, the plaintiff’s genuine trade mark on spool cotton consisted of four concentric circles on the end of the spool, the inner one in gold, the next in silver, the next in black, with letters in gold, the next in silver ; the whole bound in two concentric black lines. Within the inner circle was the number, in the next were the letters and words: “ J. Clark, Jr., & Co.”; at the top and at the bottom, “ Mile end, Glasgow.” The imitation by the defendant, which was alleged to be in violation of the plaintiff’s right, consisted of spool cotton, with concentric circles on the end of the spool precisely like that of plaintiff, and the number in the middle, and at the top of the circle the words “ Clark & Go.”, and at the bottom of the circle were words in the same position as in the plaintiff’s but the words there were.: “ Seed Hill, Paisley,” differing entirely from those in a similar position on plaintiff’s spools. '

Both spools contained the same name as agent, and the court held that the defendant, by the use of such partial imitation, had violated the plaintiff’s rights in his trade mark, and Mitchell, J.', in delivering the opinion of this court in Hew York general term, Davis and Bosevelt concurring, uses this language: “ The effect of this imitation must be that all, except very cautious persons, will be deceived.”

It will be observed that the difference between the plaintiff’s trade mark in that case was more marked than in this case at bar.

In the case before us the pug dog picture is the leading and marked characteristic of the plaintiff’s trade mark. The whole lithograph of both labels are exactly alike, one a reprint of the other, except that in the place of the words “Wagner’s” on the plaintiff’s,_ the word “Pug” appears on the defendant’s.

If so slight a difference can relieve the defendant from all responsibility for the use of another’s trade mark, the law upon the subject of trade marks will serve no useful purpose, and one party may avail himself of, and appropriate to his own use, the well-earned reputation of another, with all the profits and advantages which the law adjudges to be the property of the latter.

We think that the plaintiff made out a valid cause of action against the defendant upon the evidence, and for that reason the judgment should be reversed and a new trial ordered, costs to-abide the event

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Charles W. Austin, Overseer, App'lt, v. Sarah A. Carswell,. Resp't.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Excise—Evidence.
    In an action to recover penalties for the sale of liquor without a license, evidence that the defendant has been arrested and fined for similar offenses is irrelevant, and the admission of such evidence is not cured by a charge that whether there had been criminal prosecutions for offenses of this nature, was no concern of the jury.
    2. Same.
    Notwithstanding such charge the plaintiff is entitled, on request, to a. charge that a defendant may be liable civilly, although she may have been prosecuted criminally for the same offense.
    Appeal from judgment of the Washington county court, entered upon verdict of no cause of action, on appeal from judgment of justice’s court in favor of plaintiff.
    Action to recover penalties for sales of liquor without a license-on the 17th and 19th days of October, 1891.
    On the trial, defendant was permitted to testify that she had been refused a license, and had afterward been indicted and taken to-Sandy Hill in September, and fined $100, and that on her return she told her barkeeper not to sell any more intoxicating liquors-under any circumstances.

      I). M. Westfall, for app’lt;

      John K. Larmon (James H. Ryan, of counsel), for resp’t.
   Putnam, J.

I think an error was committed upon the trial, in-overruling plaintiff’s objections to the evidence offered by defendant to show that she had been taken to Sandy Hill and fined $100. This evidence was irrelevant to the' case on trial, and may have-had some influence upon the jury. It is held that illegal evidence, tending to excite the passions, arouse the prejudices, awaken the-sympathies or influence the judgment of jurors may not be considered harmless. Hutchins v. Hutchins, 98 N. Y., 56.

Although this evidence was improperly received, the error could have been cured had the court afterwards struck out such evidence or directed the jury to disregard it. The remark of the judge, that, “ whether there have been prosecutions of criminal nature for offenses of this nature, or not, * * * is no concern of yours,” cannot be deemed a striking out of the evidence in question, or a direction to the jury to disregard it.

To remedy an erroneous reception of evidence, it must be plainly stricken out or the jury must be distinctly told to disregard it. The above quoted instruction of the trial judge is am7 biguous, and does- not come up to this requirement. Again, the-judge was requested to charge that defendant may be liable civilly, although she may have been prosecuted criminally for the same offense. He declined to so charge on the ground that he had already charged on that point. I am unable to discover that he had charged in that regard. I think plaintiff was entitled to have the instructions requested given to the jury. For this error there should be a new trial.

It is, therefore, unnecessary to consider other exceptions, or whether the charge of the trial judge to the effect that if Roach made the sales of liquor shown on the trial without the knowledge or consent and against the instructions of defendant, she was not liable, is correct or not. It was shown that defendant was proprietor of the hotel, and that Roach, at the time of such sales, was her bar-tender. He testified that the receipts for all sales of liquor were passed over to defendant Under such circumstances, there are authorities holding defendant liable, although Roach had sold the liquor against her. express directions. 3rd vol. Am. & Eng. Ency. of Law, 258; Smith v. Reynolds, 8 Hun, 128; Keedy v. Howe, 72 Ill., 133; George v. Gobey, 128 Mass., 289, and see Amerman v. Kall, 34 Hun, 127; 47 Alb. Law Journal, 35, 36.

Without passing upon this point, however, and for the reasons above stated, I think the judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., and Herrick, J., concur.


text:
    Salie Straus, Resp't, v. David Straus, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    1. Divorce—Limited—Cruel treatment.
    Continued accusations against a wife of un chastity, if false and made without sufficient cause, constitute cruel and inhuman treatment sufficient to justify a judgment of separation.
    2. Same.—Counsel fees.
    No allowance can in the final judgment be properly made to the wife for expenses of the action. Such allowance can only be granted by an order, but past expenses cannot be included therein.
    Appeal from judgment in favor of plaintiff, granting a separation and for the custody of her child, and for twelve dollars per week alimony for plaintiff and two dollars per week for the child, and costs and counsel fee of $500 additional, to be paid by defendant.

      Edward J. Maxwell, for app’lt;

      Westbrook, Borst & Perkins {Z. S. Westbrook, of counsel), for resp’t
   Putnam, J.

I am unable to see how we could properly disturb the findings of the learned referee upon the questions of fact submitted to him. It was a case of conflicting evidence, and we feel concluded by his decision. There was sufficient testimony given to sustain his conclusions upon the facts, and such being the case the plaintiff was entitled to a judgment of separation.

The testimony shows, and the referee found, that defendant, without reasonable cause, falsely and repeatedly accused plaintiff with being an unchaste woman; with having had unlawful intercourse with one Solomon Levi, and with other men. I think such an accusation constituted cruel and inhuman treatment of plaintiff by defendant sufficient to justify a judgment of separation, if no other ground of complaint existed. Such a charge, if false and made without sufficient cause, as found in this case, is more cruel than blows or any mere physical violence. The duty devolves upon a husband to protect his wife, not only her person, but also her reputation; and when, instead of fulfilling that duty he cruelly traduces her character, the court can properly protect her by a judgment of separation.

The testimony in this case shows that defendant not only cruelly and repeatedly aspersed the character of his wife, but also assaulted and otherwise ill-treated and abused her.

If there was any condonation by plaintiff, subsequent acts of cruelty committed by defendant revived the condoned offenses.

Hence the judgment as far as it provides for a separation of plaintiff from defendant must be affirmed.

The defendant objects to the allowance of $500 awarded to plaintiff in the judgment “for a further reasonable and necessary counsel fee and allowance in this action for the costs and expenses, services and disbursements of her attorney and counsel herein, expenses incurred and to be incurred to the entry of the judgment.”

This objection raises two questions. Can any extra allowance or allowances for expenses of counsel be properly awarded in the final judgment in an action for divorce or separation ? And, if so, can such an allowance be made for past expenses.

The only authority for the allowance of alimony, expenses of the action or costs contained in the Code is found in §§ 1766 and 1769. The former section is silent on the subject of costs and expenses, and provides for an allowance for support and maintenance of the wife in the final judgment. Section 1769 provides for the payment of alimony and the expenses of the action during its pendency and for a judgment in favor of the successful party with costs, evidently referring to the ordinary costs of an action. This section, which is the only authority for an order directing the payment of expenses of the wife for counsel in the action, evidently means that such direction shall be given in the order and not in the final judgment.

This construction of § 1769 has been given in several cases. Thus in Percival v. Percival, 14 St. Rep., 255, 256, it is held “ that expenses pendente lite if they are to be awarded at all must be awarded upon special application and cannot properly form a part of the final judgment.” In the same effect is Williams v. Williams, 25 St. Rep., 186; and see Stampfer v. Stampfer, 33 id., 807.

I think, therefore, that no allowance can in the final judgment be properly made to the wife for expenses of the action. The case of McBride v. McBride, 119 N. Y., 519, 30 St. Rep., 78, to which the respondent refers, merely holds that an action may be deemed pending for the purpose of allowing expenses to the wife, both before and after judgment, if an appeal is taken, evidently contemplating an allowance by order and not as a part of the final judgment.

The case of Percival v. Percival, 124 N. Y., 631; 35 St. Rep., 340, to which the court below referred, merely determined that in the judgment past expenses of the wife for support and maintenance can be provided for; but such an allowance is authorized by § 1766 of the Civil Code, which does not provide for the costs or expenses of the action.

If, however, a provision could be properly made in the judgment for expenses of the wife in an action, such an allowance, I think, could not, under § 1769, supra, be made for past expenses, those already incurred by the wife, as it appears was done in this case. Beadleston v. Beadleston, 103 N. Y., 402; 3 St. Rep., 634.

The opinion at special term suggests that, although the court on a motion before judgment has no power to order the husband to pay past expenses of counsel in the action, as determined in Beadleston v. Beadleston, supra, yet the same court has such power in the final judgment. I am unable to see how § 1769 of the Civil Code can be properly so construed, or that it can be deemed to give a court power in rendering final judgment, to allow for past expenses, which it could not provide for in an order before judgment. The court possesses no more power when rendering judgment than when making an order before judgment.

As I have suggested, in Percival v. Percival, to which the court below referred, the allowance for support and maintenance was made under the provisions of § 1766, supra, which section is silent on the subject of costs and expenses of the action.

The allowance to plaintiff, therefore, in the judgment for the expenses of counsel incurred, and to be incurred, was unauthorized. The motion for the allowance was made at the same time as the motion for judgment, and when the proceedings in the ac- • tian were substantially ended, and it is not claimed that the $500 counsel fee, as far as it provided for the payment of past expenses, was necessary in order to enable'plaintiff to further carry on the action.

The action being determined when the judgment or order making the allowance was entered, such could not be the case. ISTor can the allowance be sustained under McBride v. McBride, supra, because it provides for the payment of the expenses of counsel up to the entry of judgment, and not expenses upon an appeal.

The allowance in question is doubtless a reasonable and fair provision and I have examined the case with the desire to sustain it But in my judgment it is unauthorized and, therefore, the judgment should be modified by striking said allowance therefrom and as modified affirmed, without costs of appeal to either party.

Mayham, P. J., and Herrick, J., concur.


text:
    Louisa S. Adams, Resp't, v. Anthony N. Brady, Adm'r, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Decedent’s estates—Reference.
    A consent to a reference of a claim against a decedent’s estate is. a waiver of a trial by jury, and after a reference by consent the proceeding may be treated in the same manner as a case in which the court could direct a reference without consent, and upon setting aside the report of the referee the court may appoint a new one in his place.
    Appeal from order setting aside the report of a referee and granting a new trial before a new referee appointed thereby.
    Reference of a disputed claim against an estate.

      Reilly & Hamilton {Andrew Hamilton, of counsel), for app’lt;

      Alden Chester, for resp’t.
   Putnam, J.

J.—Plaintiff having presented a claim against the estate of James N. Brady, deceased, which was rejected by defendant, as administrator of the deceased, served on the latter a written offer to refer said claim pursuant to the statute. The offer being accepted by defendant and the parties, by another writing, having agreed on a reference to John T. Cook, and the surrogate of Albany county having duly approved of said referee, on filing said agreement to refer and the approval of the surrogate in the county clerk’s office of said county, an order entitled in the supreme court, referring the matter, as to said •claim, to said Cook, was entered.

The cause was afterwards tried before said referee, who found in favor of the claimant. A motion made by plaintiff at special term to confirm said report, and for judgment in favor of plaintiff, with costs, was denied, and the report set aside, on the ground that the referee had improperly stricken out evidence received on the trial, after the final submission of the case. The referee was discharged and a new trial granted before Hon. William L. Learned, who, by said order, was appointed sole referee to hear and determine the matter in controversy between said parties. Defendant objected to the appointment of a new referee, ánd gave notice that he elected to end the reference and claimed a jury trial. It is now claimed by appellant that that portion of the order appointing a new referee is unauthorized. That the «ease is one where the plaintiff is entitled to a trial by jury, and that by consenting to a reference to a particular referee he did not waive his right to a jury trial, said reference having fallen through.. Preston v. Morrow et al., 66 N. Y., 452.

The general term of this district in Masten v. Budington, 18 Hun, 105, determined that the doctrine laid down in Preston v. Morrow et al. does not apply where there is a reference under the statute by consent on a claim against a deceased party, and that such consent is a waiver of a trial by jury. In the case last cited the provisions of 2 R. S., 89, §§ 36 and 37 (which remain in force), are considered, and the court held that after a controversy as to a claim against a deceased party had been referred, by consent, pursuant to the above quoted provisions of the Revised Statutes, it may be treated in the same manner as a case in which the court could direct a reference without consent That said § 37 of the statute provides that upon setting aside the report of a referee another referee may be appointed by the court in place. See 2 R. S., 89, §§ 36, 37; 3 Rumsey’s Prac., 298; Roe v. Boyle et al., 81 N. Y. at page 308.

I think we are concluded by the decision of the general term of this district in Masten v. Budingion, which seems decisive of the question under consideration, and hence that the order should be affirmed, with costs.

Mayhaii, P. J., and Herrick, J., concur.


text:
    Robbins M. Witherbee, App'lt, v. Charles R. Paris, Adm'r, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed February 15, 1893.)

    Vessels—Liability of owner fob advances made to master.
    While the master of a vessel is the agent of the owner, and as such can bind the owner for necessary supplies furnished to enable the vessel to proceed on its voyage, where he does not contract as agent, but obtains repairs orsupplies under a special contract on his own credit or theeredit of some other person than the owner, the latter is not bound.
    Appeal from judgment dismissing the complaint, entered upon the report of a referee.
    The action is for money paid, the complaint alleging that the defendant, as administrator of the personal estate of Augustus Hale, deceased, was engaged in running a canal boat belonging to said estate, and while transporting a cargo of ice through the Champlain canal, at the request of the master of said boat, and to enable him to proceed upon his voyage and deliver his cargo, the plaintiff advanced to said master, upon the usual terms, $100.
    According to the findings of the referee and the uncontroverted ■evidence in the case, it appears that upon the death of said Augustus Hale, the canal boat in question, the “ Henry Hoyle,” constituted a part of his estate, and was in the custody oí Joseph Hale, as master; that said Hale was then engaged in running said boat, and thereafter continued to run her and earn freight with the knowledge and consent of the defendant. The defendant allowed said Hale to continue as master and run said boat, because freights were high and the boat could earn more than its expenses ; that said Joseph Hale, as master of said boat, loaded her with a cargo of ice in August, 1890, at St. John’s, and undertook to carry the same to the city of Hew York, that is to say, Joseph Hale, the master of this vessel in charge thereof as master, agreed to carry and deliver a cargo of ice on said boat, in ■consideration of the freight thereon, the amount of which is immaterial and does not appear. This agreement, made by said master as a common carrier, was made with one William Guindon, the surviving partner of the firm of Hale & Guindon, owners of the ice. When the boat arrived at Whitehall, en route, the master was without funds to pay the expenses of said voyage, and applied to the plaintiff, who advanced to him $100, less the usual commissions in such cases, for the purpose of enabling him to pay said expenses, and said advances were used and expended by the master for that purpose.
    The referee has found that Joseph Hale, the master of said vessel, received said moneys, and the same were advanced to him by plaintiff, as the agent of Guindon, the shipper of the ice, and not as agent of the vessel or Us owner, and this is the material question in the case.

      Potter & Lillie (J. Sanford Potter, of counsel), for app’lt;

      D. J. Sullivan, for resp’t.
   Putnam, J.

The position of the appellant, that the master of a vessel is the agent of its owner, and, as such, can bind the owner for necessary supplies furnished to enable the vessel to proceed on its voyage, is, I think, correct. Thomas v. Osborn, 19 How., U. S., 22; Macy v. Wheeler, 30 N. Y., 240.

Therefore, ordinarily, plaintiff could recover from defendant, as the owner of the canal boat in question, the $100 he furnished to Joseph Hale, its captain, said sum being advanced to pay necessary expenses to enable the boat to continue its voyage to Mew York.

But the authority of a captain of a vessel to bind its owner for repairs and necessary expenses of the voyage is based on his actual or presumptive agency. If, in fact, he does not contract as agent, but obtains repairs or supplies under a special contract, on his own credit, or on the credit of some person other than the owner, the latter is not bound. The doctrine applicable in such a case is well stated in James v. Bixby et al., 11 Mass., 39, as follows: “ Where labor is performed'upon a ship or any other chattel, the presumption would naturally and legally be that it was done, not only for the benefit, but at the request of the owner ; and an implied promise to pay would arise, which, in law, would charge the owner for a reasonable compensation for the work and labor performed.

“But the implication of law may be avoided by showing that there was an express contract for the work and the compensation, or that the work was done upon the credit of another person, without any intention of resorting to the owners.” See Warner v. Miller, 13 Hun, 654.

In this case the referee found that the $100, to recover which this action was brought, was loaned to William Guindon; that Joseph Hale, the master of the boat, received it as his agent, and that said money was not advanced to or for the use of defendant.

If this finding is sustained by the evidence it is a defense to the action within the authorities above cited. I think the evidence clearly sustains the conclusions of the referee. Tim plaintiff charged the $100 to Guindon, presented a claim to him for it, and testified that he had loaned Guindon money before. _ Hale, the master, testified that he obtained the money in Guindon’s name.

Stockwell, plaintiff’s clerk, testified that arrangements had been made with Guinden to advance the money. In fact, it is difficult to see how the referee could have reached any other conclusion than he did.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


author: Pratt, J.

text:
    William F. Lawrence et al., Resp'ts, v. Frederick L. Pease, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

      1. Supplementary proceedings—Third party order—Trust fund.
    A third party order was granted against the trustee of the estate of the judgment debtor’s mother, who, on his examination, testified that he had in his hands a certain amount of accrued income payable to the debtor and his sister, and that he was about to render his account. Held, that an order made on notice to the debtor that the judgment be paid from his interest in such moneys was proper.
    2. Motions and orders—Motion to vacate.
    A motion to vacate an order made, on further papers, is addressed to the discretion of the court, and where the party has had his day in court, and the order has been executed, a denial of such motion cannot be considered an abuse of discretion.
    Appeal from two orders: one directing payment of a judgment out of moneys in the hands of a third person, and the other denying a motion to vacate the first order.
    Plaintiffs, being the owner of a judgment against the defendant, obtained a third party order for the examination of the trustee under the will of defendant’s mother. On such examination the trustee testified as follows:
    “I am an attorney and counselor at law, and reside at Yonkers, Hew York. I am well acquainted with Frederick L. Pease, the defendant and judgment debtor above named, and I am a trustee under the will of Rosena Pease, deceased, the mother of said Frederick L. Pease.
    “ By and under the terms of the will of said Rosena Pease, the care and maintenance of Josephine A Pease, a daughter of the testatrix, was made a first charge upon the income from the estate; and after the expenses of maintaining her were met, the trustees were directed to divide and pay the balance of income remaining in their hands equally to and between Caroline CL Li'ndsley and said Frederick L. Pease annually. The trustees are about to render their account, and there is now in their hands about one thousand dollars subject to the division above mentioned, and of which said Frederick L. Pease under the terms of the will would receive one-half. I cannot state the exact amount, but it is very near $1,000.00, which will be divided. The precise amount cannot be certainly ascertained until the entry of the decree in the accounting above mentioned, proceedings for which have already been begun.”
    On this deposition an order to show cause was granted, which was served on the trustee and the defendant, and after one adjournment at defendant’s request, an order was granted directing payment of the judgment by the trustee.

      After the trustee had complied with the order defendant moved upon further papers to vacate, which motion was denied.

      L. B. Bunnell, for app’lt;

      Millard 0. Brnsberger, for resp’ts.
   Pratt, J.

The order of May 28, requiring payment to the judgment creditor, was justified by the papers before the court. Nothing in the testimony tended to show that the title to the fund was in the trustee or that it was not properly subject to the proceeding. The order as made was, therefore, proper.

The application upon further papers to vacate the order of May 28, was addressed to the favor of the court and was properly denied.

The judgment debtor had enjoyed his day in court, and under the circumstances of the order being executed, a re-hearing would not have been in the interest of justice.

It must not be inferred that we thinlc a re-hearing would have changed the result. On the contrary, we are of opinion that upon the fresh papers the same decision would have been made.

Order affirmed, with $10 costs and disbursements.

¡ Barnard, P. J., concurs; Dykman, J. not sitting.


author: Pratt, J. Barnard, P. J.

text:
    John D. Ferguson, Resp't, v. Thomas C. Arnow, Imp'ld, Appl't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Malicious prosecution—Probable cause.
    Plaintiff was employed by highway commissioners to tear down a fence and part of a building of defendant's father which were claimed to encroach on the highway. Defendant brought action for trespass and had plaintiff arrested, but the complaint was dismissed. It appeared that defendant had testified in a former action that he had been told that the premises encroached, hut he would not remove the fence until the people on the other side removed theirs. In an action for malicious prosecution, Held, that a verdict for plaintiff would not be disturbed, as even if the court should have taken from the jury the questions of malice and probable cause, the result would have been the same.
    (Barnard, P. J., dissents).
    Appeal from judgment in favor of plaintiff, entered uponverdict of a jury.
    Action for malicious prosecution.
    The defendants as legatees under the last will and testament of their father were the owners of certain lands, situate in the village of Westchester, Westchester Co., N. Y. The premises had been ■enclosed and occupied by them and their ancestors for the period ■of fifty years. In March, 1889, the commissioners of highways of the town claimed for the first time that a portion of the lands so •owned and occupied were a part of the public highway, and notice was served to remove the fences and a veranda from a dwelling house in order that the public take possession of the land for street purposes.
    The defendants brought an action to restrain the commissioners in the name of the executors of their father’s estate. Upon the trial of that action his Honor Judge Dykman dismissed the complaint upon the ground that the executors had no such interest in the real estate as would permit them to sustain such an action and the trial o£ the cause did not involve the merits.
    Immediately after the conclusion of that trial, the plaintiff, for the commissioners, without further notice entered upon the premises and proceeded to tear down the fences and a portion of defendants’ house, cutting off the posts, tearing the siding from the building.
    Defendants then brought an action against this plaintiff for damages in trespass and had plaintiff arrested. In the suit, upon the trial of that action before Mr. Justice Barnard and a jury, a verdict was found for the defendant. No judgment was. entered upon that verdict until after the commencement of this action.
    The plaintiff then brought this action which was tried before Mr. Justice Bartlett and a jury at Westchester circuit, December 9, 1891, and resulted in a verdict for the plaintiff for $150.

      Seward Baker {J.. W. Bartram, of counsel), for app’lt;

      Wm. G. Reddy, for resp’t.
   Pratt, J.

We find no errors in this case prejudicial to the defendant. The verdict cannot be considered excessive.

If it be that the court should have taken from the jury the questions of motive and want of probable cause, the defendant has not been thereby injured, for had the court itself passed upon those questions the result would have been the same, as we think the jury decided them correctly.

Judgment affirmed, with costs.

Dykman, J., concurs.

Barnard, P. J.

(dissenting.)—The plaintiff’s case, assuming the action to be one for malicious prosecution, is this : The defendants own a piece of land along a highway in the town of Westchester. The commissioners of highways tore down the fence along the road with the assistance of plaintiff, who was a workman employed by the commissioner. The lack of probable cause and the express malice is proven by the dismissal of the complaint in an action to restrain the trespass. This action was brought by the executors of defendant’s father, and proves nothing except that, without proof of a title in the executors, they had no right to maintain the action. On the trial of that action, Thomas 0. Arnow swore as follows: “ I did say that the fence and piazza were upon the highway, and that both sides were upon the highway, what people had told me. I stated to John B. Skennion that I would not remove the fence until the people on the other side removed theirs.” The fact is stated to be on information of other people, and not as a fact in any way known to the witness. As against this testimony, the proof establishes that the fence had been along the road for many years. A part of an old house was removed. The highway, for 1,000 feet, including this disputed point, is of varying width. There was no record of the road which is so defined, and precise, as to settle the controversy. A part of the disputed line was an old stone wall, established by actual measurement and location by former commissioners and the then proprietor. The wall had been there some fifty years.

Proof was given tending to show that the piazza destroyed in part was entirely out of the road. All this proof was on the assumption that the wall and fence opposite the defendant’s was on the true line. The fence had stood exactly as it was when torn down for some twenty years, as testified to by the defendant, Thomas C. Arnow. There was no proof that the other defendants knew that it was ever claimed by people that the fence was on the highway. Under all this proof the defendants had a right to go to a jury. The jury decided on an extremely close and doubtful case that the fence was on the highway, and justified its destruction. The case neither shows lack of probable cause or malice.

The judgment and order denying new trial should be reversed, and a new trial granted, costs to abide event.

Judgment affirmed, with costs.


author: Barnard, P. J.

text:
    George W. Martin et al., Resp'ts, v. Samuel C. Freed, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Arrest—Bar.
    . Defendant, who was a resident of Pennsylvania, procured goods from plaintiffs by false representations. Thereafter a judgment for the amount of the goods was entered in Pennsylvania on a confession note without plaintiffs’ knowledge, and they repudiated it immediately upon learning of its entry. Held, that as no connection was shown between plaintiffs and "the confession note, an order of arrest granted in an action for the fraud in this state should not be set aside on account of the entry of such judgment.
    Appeal from order denying motion to vacate an order of arrest.
    Defendant was a resident of Pennsylvania, and purchased goods from plaintiffs on credit through fraudulent representations as to his financial standing. Said goods were almost immediately seized upon judgments against him. The action in which the order of arrest was granted was brought to recover for the fraud, and defendant was arrested while attempting to leave the country in disguise.
    The application to vacate is made in part on the ground that a judgment in favor of plaintiffs was entered in Pennsylvania on a confession note.

      Isaac N. Miller, for app’lt;

      J. Stewart Ross, for resp’tS.
   Barnard, P. J.

The defendant contracted a large debt to the plaintiffs by fraudulent representation. He was a resident of Pennsylvania, and the plaintiffs are alleged to have obtained a judgment against him in that state, as upon a contract. This judgment was obtained upon a confession note for the debt, and it was repudiated by the plaintiffs when they were informed of the entry of the judgment. No connection is proven between the plaintiffs and the confession note. The Pennsylvania judgment will bind no one unless it was entered so as to bind the plaintiffs. The point argued, whether a judgment recovered in a foreign state upon a fraud merged the original consideration so that an order of arrest in this state can neither be granted on the original fraud or on the judgment obtained for the fraud, is not presented. If the defendant pleads a judgment the plaintiffs can deny it, and the question will be tried as in other cases of a dispute as to facts.

Order affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Austin P. Gibbins et al., Resp'ts, v. James P. Campbell et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Mortgage—Cancellation.
    Plaintiff’s father, in 1885, gave him a piece of property, hut upon his conveying it to his wife became dissatisfied and brought action to set the conveyance aside, which resulted in plaintiff and his wife conveying to his sister, who reconveyed to him, taking back a mortgage, for which no money was paid. The father by his will directed the mortgage to be cancelled, but Campbell, who drew the will, after the fathei’s death procured the sister to assign the mortgage to him. In an action to cancel the mortgage the court found that the sister was only used asan intermediary; that the mortgage was without consideration and was only intended to protect the property against plaintiff’s creditors. Held,, that a cancellation of the mortgage was properly decreed.
    Appeal from judgment and decree in favor of plaintiffs.

      William F. Clarice, for app’lts ;

      William Man, for resp’ts.
   Dykman, J.

It was the object of this action to obtain the cancellation and restoration of a bond and mortgage executed by the plaintiff, Austin P. Gibbins, to his sister, the defendant, Mary E. Gibbins, for $15,000 upon premises in Brooklyn.

The case was tried at a special term, and the trial judge found the following facts, which are substantially the same as the facts were set out in the complaint.

On or about September 16, 1889, the plaintiff, Austin P. Gibbins, signed a certain paper purporting to be a mortgage upon real property described, in the complaint and dated on the same day, to secure the payment of his bond for $15,000, also made to Mary E. Gibbins, his. sister, which mortgage purported to be for part of the purchase money of the premises described therein, which were conveyed to him by his sister by deed of equal date with the said mortgage, he and his wife having executed and delivered a deed of the same premises to his sister on the same day.

That the mortgage to Mary E. Gibbins was absolutely and entirely without consideration passing to the plaintiffs or either of them from the mortgagee, but that the mortgage was made at the request of Austin Gibbins, the father of the plaintiff, Austin P. Gibbins,^ for purposes of his own, and put in the name of Mary E, Gibbins, as mortgagee, solely for his convenience, and that the same belonged to him, the father, so far as there was any consideration therefor.

That from September 16, 1889, the premises were the absolute-property of the plaintiff, Austin P. Gibbins, until recently conveyed by him to his wife, the other plaintiff.

That Austin Gibbins, the father of the plaintiff, Austin P. Gibbins, died in the month of January, 1890, leaving his last will and testament, dated January 5,1890,which was duly proven as a will of real and personal property, and letters testamentary thereunder were issued to the defendant, James L. Lowry, and he is-still the sole acting executor of said will, and he has, as executor or otherwise, no right, title or interest whatever in said bond and mortgage.

That in and by the said will of Austin Gibbins he asserted, and it was the fact, that the said Mary E. Gibbins held the said mortgage for $15,000 at the control of said testator, and under his direction, and he provided by his will that the said mortgage should be cancelled and discharged so that the real estate might be held by the plaintiff, Austin P. Gibbins, free of the mortgage, and at the time of the making and probate of said will the plaintiff, Austin P. Gibbins, was the owner of said property and held the title thereto, but has since, for valuable consideration, conveyed the same to the plaintiff, Veronica F Gibbins, who is now the owner thereof.

On or about September 17, 1891, the defendant, James P. Campbell, procured the defendant, Mary E. Gibbins, to execute a paper purporting to be an assignment to him of the said bond and mortgage, which assignment was recorded September 25, 1891, in the office of the register of Kings county, and the said mortgage was recorded October 11, 1889, in the same register’s office.

That James P. Campbell took the said mortgage subject to any defense for lack of consideration or otherwise to which it was subject in the hands of his assignor, and the said mortgage is of no greater value in his hands than it was in the hands of Mary E. Gibbins.

That the plaintiffs have duly demanded before the commencement of this action that the said mortgage should be cancelled as without consideration passing to Mary E. Gibbins, and for the reason that it was directed by the will of Austin Gibbins to be can-celled.

Before the commencement of this action the defendant Campbell threatened to foreclosure the said mortgage against the property of the plaintiff, Veronica F. Gibbins, and to hold liable upon the bond therein recited the plaintiff, Austin P. Gibbins.

As conclusion of law, the trial judge found that neither of the defendants, James P. Campbell, James L. Lowry, as 'executor of Austin Gibbins, deceased, nor Mary E. Gibbins, have any interest whatever in the ownership of or control over the said bond and mortgage for the purpose of cancelling the same, that the said bond and mortgage were not of any value, so far as Mary E. Gibbins was concerned, in her hands, and that there was never anything due to her thereupon, and she never had any interest legal or equitable in said bond or mortgage and could transfer none to the said James P. Campbell, and he never acquired by the assignment to him any greater interest than his assignor, Mary E. Gribbins, had, which was none.

That the defendant,Mary E.Gribbins,held the said bond and mortgage solely under the direction and control of her father, Austin. Gribbins, and that, under his will, the plaintiff, Austin P. Gribbins, was and is entitled to have the said bond and mortgage cancelled and delivered up. That the said bond and mortgage do not form, an asset of the estate of Austin Gribbins in the hands of James P. Campbell, as executor of said will, and he has no right, title or interest in or to the same, either in his own name as such executor, representing the estate, or in the name of James P. Campbell, as-attorney or agent.-

The said mortgage to be cancelled and discharged of record, and the bond recited in and accompanying said mortgage-should be cancelled and delivered to the plaintiff, Austin P. Gribbins.

That the defendants, and each of them, should be enjoined and forever restrained from in any manner proceeding to enforce, sue-upon or collect the said bond and mortgage and from making any claim thereon or thereby, and I direct judgment according to the foregoing findings and conclusions in favor of the plaintiffs, with their costs to be taxed, and $250 additional allowance.

From the judgment entered in pursuance of these findings, the defendants, James P. Campbell and Mary E. Gribbins, have-appealed to the general term, and the case is brought before us-in that way.

It appears from the record that Mary E. GHbbins answered the complaint upon the merits, and denied that she held the mortgage for her father or at his direction, and alleged that, the mortgage was given for full value. The defendant Lowry did not answer, but appeared as a witness for Mr. Campbell upon the trial.

The defendant, Campbell, answered the complaint, also insisting that he was the absolute owner and holder of the mortgage-for full value.

The findings of the trial judge are fully sustained by the testimony produced on the trial, and the question presented here seems to be, whether anything was due to the defendant, Campbell, upon this mortgage; whether it was in his hands a valid, subsisting security against the property of the plaintiffs.

The trial judge has found that the bond and mortgage never had any vitality, and from the testimony it is to be gathered that they were made to subserve a purpose which was well understood, and was stated by Mr. Benedict, the lawyer, who was a witness, as follows: “The basis of the fifteen thousand dollars as Mr. Gibbins, Sen., stated to me in the presence of his son was, that he wanted this property protected. He wanted me to draw a fifteen thousand dollar mortgage on it to the daughter. I recorded the mortgage. Ho money consideration passed for the mortgage to my knowledge, or any money consideration for the deed from , Mr. Gibbins, Jr., to his sister.

“ Mr. Gibbins said something about protecting the property. He said that his son might get into debt, and for that reason he wanted this fifteen thousand dollar mortgage executed.”

As the defendant Campbell took the bond and mortgage subject to all existing equities, they fall in his hands as they would have done in the hands of his assignor. She never had any interest in the transaction and was a mere intermediary utilized by her father as an instrument to accomplish his purpose to protect the property in the hands of his son.

According to the testimony of the plaintiff, Austin P. Gibbins, which was uncontradicted, the property in question was purchased by his father, Austin Gibbins, who paid for the same, and caused the title to taken in the name of his son, the plaintiff, where it remained until 1889, when he conveyed it to his wife, to whom he was married in the meantime. Then the father commenced an action to destroy that conveyance, which was settled by a re-conveyance of the property by the wife to the defendant, Mary E. Gibbins , a conveyance by her to the plaintiff, Austin P. Gibbins, and the execution of the fifteen thousand dollar mortgage in question back, all of which was dictated by the father, Austin Gibbins.

The father was, therefore, the equitable owner of the securities at the time of his death, and by his will he directed that the mortgage be cancelled and discharged so that the property might be held free of said mortgage.

notwithstanding this direction, the defendant, James P. Campbell, who drew the will, and was named as an executor therein, now claims to hold this mortgage individually and enforce its collection against the property. If such enforcement is permitted, the purpose of the father, who had the right to dictate the cancellation of the papers, will be defeated and a great wrong permitted.

The effort to enforce the collection of the bond and mortgage is to endeavor to peipetrate a fraud against the plaintiffs, and the defeat of such object is a well recognized head of equitable jurisprudence.

It requires but little research to find an equitable principle which will defeat the effort to enforce the mortgage, for equity in its broadest sense is based upon natural justice, honesty and right, and courts of equity are ever ready to assist in their advancement and prevent their violation.

As, 'therefore, it would be clearly inequitable to permit the collection of this bond and mortgage, the power of the court is wisely executed to prevent the wrong, and the judgment should be .affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Austin P. Gibbins et al., Resp'ts, v. James L. Lowry, Ex'r, Impl'd, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Default—When will Not be opened on ground of mistake.
    Plaintiff's father purchased, property and took title in plaintiff’s name. On plaintiff’s conveying the same to his wife an action was brought to set it aside, which resulted in a conveyance to plaintiff’s sister, who reconveyed to plaintiff, taking back a mortgage for which no consideration was paid. The sister executed an assignment of the mortgage to the father, but thereafter assigned to defendant U. The father by his will directed a cancellation of the mortgage. In an action to decree cancellation, the executor of the father was made a party, but did not answer,and after the trial asked that his default be opened, and for leave to answer, alleging that until the trial he believed 0. to be the owner. Plaintiff’s answering affidavit showed that the executor had previously been informed of all the facts in the matter. Held, that the motion was properly denied.
    Appeal from order denying motion of defendant Lowry, to -open his default, and for leave to answer.

      Alex. Thain, for app’lt;

      William Man, for resp’t
   Dykman, J.

This is an appeal by the defendant, James L. Lowry,.sole executor of Austin Gibbins, deceased, from an order of the special term denying a motion made by him for permission to come in and serve an answer to the complaint after the cause has been tried.

The case was tried at special term, and Mr. Lowry appeared as a witness for the defendant, Campbell, to support his ownership of the mortgage in question, and it is to be gathered from his affidavit that he had some intimation that the decision would be in favor of the plaintiff. Thereupon he conceived the idea that he was the owner of the mortgage as executor of Austin Gibbins, deceased, and now ■ desires permission to set up that fact, and submit the plaintiff to another ordeal. He says in his affidavit, among other things: I was made a party defendant, the plaintiff alleging that I made claim to said mortgage, or had some interest therein, as executor of Austin Gibbins, deceased. Until yesterday, April 21, 1892, at about four o’clock, I supposed that James P. Campbell was the legal owner and holder of said mortgage by virtue of an assignment thereof from the mortgagee, Mary E. Gibbins, to him. But I believed at all times that such mortgage was held by some secret and undisclosed trust for Austin Gibbins, deceased, by Mary E. Gibbins, but as I had no means of proving that fact, I interposed no answer in this action, but left the matter to be settled by the court in the controversy between the plaintiffs, Campbell and Mary E. Gibbins. One reason for thinking that such secret trust existed was the direction in the will of Austin Gibbins, deceased, directing that such mortgage be surrendered to the plaintiff, Austin P. Gibbins, and satisfied and cancelled of record, while I knew the fact to be that at the time said will was made the record showed that said mortgage was held by said Mary E. Gibbins.”

Pausing here for a moment, we observe that until April 21, 1892, just five days after the trial judge’s refusal of the request of the defendant, Campbell, to find in his favor,” Lowry says he supposed Campbell owned the mortgage. How his understanding was enlightened then he does not state. He does say, however, that he believed at all times that the mortgage was held by some secret trust for Austin Gibbins, deceased, by Mary E. Gibbins. How he could believe the last statement, if he believed the first, We cannot understand. In fact the statements are irreconcilable. Again, he says he interposed no answer because he had no means of proving the existence of the secret trust, but the reason assigned is unsatisfactory, for he knew all the parties who' possessed any information on the subject.

Then he says he employed an independent lawyer, who discovered that Mary E. Gibbins, the mortgagee, on the same day the mortgage was made, assigned the same to her father, Austin Gibbins, and that another assignment was made, the same as the first, except that it recited the date of record of the mortgage. He says, further, that the estate of Austin Gibbins, deceased, is-insolvent, and finally says the cause was tried upon the theory that Mary E. Gibbins or James P. Campbell owned the mortgage, but that the plaintiffs were entitled to have it surrendered, and then makes the following statement, which seems to have inspired his action:

“I understand that Judge Barnard has intimated that the relief asked for by the plaintiff should be granted, and that the settlement of the findings in such case are pending before him, and that no judgment to that effect has been entered.”

His lawyer made an affidavit which showed that he had ne difficulty in obtaining information. The affidavit of Mr. Lowry was met by a counter affidavit of the plaintiff, Austin P. Gibbins, in which he states that it was not true that his father was insolvent in 1885; that he was at that time connected with him in business, and lived at home in his house, and was thoroughly well acquainted with all his affairs, and that he was worth $150,000, at least, at the time he paid for the land covered by the mortgage in litigation. He further says that it was not ' true that Lowry only discovered, since the trial of the action, that the mortgage in question had been assigned by his sister -to his father, that he told him so himself in the year 1890, his father having died in January of that year, when he was talking with him about having the mortgage cancelled as directed by the will, and that in the course of the conversation respecting the assignment, and in answer to him, Lowry said that he knew of the assignment. He further states that at the time of making the assignment of the mortgage by his sister to Campbell, she handed him the original bond and mortgage and the two assignments-mentioned in Lowry’s affidavit.

That Campbell, the attorney for Lowry, who drew his father’s will, was named as one of the executors, and knew all about the assignment from his sister to his father when this action was commenced, and at the time of the trial; that his sister told him within a year past that she had handed the papers to Campbell, including the assignments. He further says that Lowry knew perfectly well that the mortgage in question had been assigned by his sister to his father, and that he had often talked to him on the subject within the past year, and that he also knew that Campbell held the papers, and explained to him the reason why the assignment to his father was not put on record.

That affidavit destroys the material facts upon which the appellant relies to open his default, and it harmonizes with the facts developed upon the trial. He says that he talked with the executor respecting the cancellation of the mortgage upon the record in accordance with the directions in his father’s will. The will did direct its satisfaction, and it is quite natural that he should inform the executor that the mortgage had been assigned to his father, because that would enable the executor to satisfy it.

Both Campbell and Mary E. Gibbins stated in their answers in this action that the mortgage belonged to Campbell, and it cannot be assumed that they will testify otherwise.

The history of the transaction out of which this mortgage sprung manifests the injustice of the efforts of these defendants for its perpetuation.

Austin Gibbins, the father of the plaintiff, Austin P. Gibbins, purchased the property in question in October, 1885, and paid for it, and took the conveyance therefor in the name of liis son, Austin P. Gibbins, and it stood in his name until 1889, when he conveyed it to his wife, whom he had married in the meantime.

That transaction dissatisfied the father and he instituted legal proceedings for its nullification, which were settled by the surrender of the son. Thereupon, by the direction of the father, the son and his wife conveyed the premises to the sister, Mary E. Gibbins, on the 16th of September, 1889, and she, on the same day, conveyed the same to Austin P. Gibbins, and he, at the same time, executed this bond and mortgage to his sister.

There was no consideration for this mortgage moving at that time. It was executed at the dictation of the father for the protection of the property, he informing the lawyer who drew the papers that he wanted his son, Austin P., to have the property, but he wanted it protected from his debts.

Thus it appears that the father gave the property to the son as far back as 1885, and the mortgage never had any vitality because it was without consideration and made for prudential purposes, ® which were well understood.

Then the father made his will in January, 1890, in which he directed the cancellation of the mortgage.

There is nothing to show that the father had not sufficient property to pay all his debts in 1885 when he made the gift of the property to his son, and there is proof that he was worth $150,000 at the time of his death.

In no view, therefore, could the defense of the executor succeed, and the facts and the equities are so strong in favor of the plaintiffs and of the judgment which has been rendered, that we think it would be inequitable and unjust to permit further litigation in the case.

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

Pratt, J., concurs; Barnard, P. J., not sitting.


author:
Pratt, J.
      Barnard, P. J. Brown, J.

text:
    The Prospect Park & Coney Island Railroad Co., Resp't, v. The Coney Island & Brooklyn Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)
    Specific performance—Agreement between railroads—Change of CONDITIONS.
    Plaintiff and defendant both ran lines between New York ferries and Coney Island; defendant entirely by horse power and plaintiff part of the way by horse power and the remainder by steam. Many of defendant’s passengers were accustomed to leave its cars near plaintiff’s depot and walk the intervening five blocks to take the steam cars. For mutual convenience it was agreed between the parties that defendant should use plaintiff's tracks for the intervening five blocks to said depot and be furnished with terminal facilities, and run its cars according to plaintiff’s schedule; and it was further agreed that in case defendant should use steam on the southerly portion of its road either party might terminate the agreement on six months notice. Subsequently deiendant adopted the use of electricity as a motive power, and plaintiff sold its horse railroad to a rival company, which obstructed defendant’s use of the tracks and terminal facilities. Held, that the use of electricity under the circumstances was within the spirit of the provision of the contract giving either party the right to terminate it, and that the conditions were so changed by the sale of plaintiff’s road that it would be inequitable to decree specific performance.
    (Brown, J., dissents.)
    Appeal from decree of specific performance of a contract, compelling defendant to run its cars to plaintiff’s depot.

      William N. Dykman, for app’lt;

      Geo. W. Wingate, for resp’t.
   Pratt, J.

The plaintiff owned or controlled the following franchises for passenger travel between Brooklyn and New York ferries and Coney Island on and prior to June, 1882. One for a horse railroad from Fulton ferry via Park, Vanderbilt & Ninth avenues to a depot at Ninth avenue and Twentieth street, Brooklyn, generally known as “Culver’s.” The other, also for a horse railroad, from Hamilton ferry via Fifteenth street & Ninth avenue to said depot. The road was built and operated by plaintiff on the former line, called the Vanderbilt avenue line. The latter franchise had not been practically used. From this depot (Culver’s) it carried passengers by an ordinary surface road to Coney Island at West Brighton, its cars being drawn by locomotive steam engines.

The defendant owned and operated two lines of horse cars, one from Fulton ferry, byway of Smith, Jay & Ninth streets, to Ninth avenue, and thence via Ninth avenue to Fifteenth street, where it turned off towards Coney Island, and ran down the old Coney Island road to Coney Island, where it turned westward and terminated near the terminus of plaintiff’s steam road. The other from Hamilton ferry through Hamilton avenue via Fifteenth street to Ninth avenue, where it joined its former line, and thence its passengers were carried over “ the southerly portion ” of its own line to Coney Island.

It is thus apparent that defendant’s line, while in competition with plaintiff’s lines, was, nevertheless, practically limited to city business; for it ran within five blocks of plaintiff’s depot, and its passengers would there leave its cars and take the plaintiff’s “ rapid transit,” getting over the five blocks as best they might. Defendant was, therefore, in a certain sense, a feeder to plaintiff’s steam road, unless it adopted some method of rapid transit on the southerly portion of its line. Plaintiff had made an arrangement with the Iron Steamboat Co., by which its excursion tickets were good over its steam and horse-car road to bring passengers from Coney Island to Fulton Ferry. But the defendant was, nevertheless, bound to make some user of its franchise from Ninth avenue to Coney Island in order to save it, but at little, if any, profit.

It was, therefore, apparent that both parties would be gainers, and the public as well, if defendant was enabled, for the time being at least, to carry its passengers over these five blocks and deliver them at plaintiff’s steam railway depot.

With this idea in view, the two companies entered into the contract which plaintiff seeks now to have specifically performed by our decree. It provides that, from June 1, 1882, for a term of twenty-one years, the defendant may use plaintiff’s tracks on Ninth avenue, from Fifteenth street to its depot (Culver’s), free of all charge for rent, repairs or alterations, but that such license should not interfere with plaintiff’s stands for its own cars or the operation of its own road, by which was intended the Vanderbilt avenue line. The defendant covenanted that it would run its horse cars to this depot, and therefrom to Fulton and Hamilton ferries respectively, by time tables prepared by plaintiff, so far, at least, as the Ninth avenue lines were in common, during the spring, summer and fall months. The plaintiff covenanted to construct certain additional facilities at, or about its depots, for defendant’s exclusive use, and that its own cars should not unnecessarily interfere with defendant’s, and to pay the cost of these additional facilities.

It was also agreed that the tickets issued by the Iron Steamboat Company taken from passengers on plaintiff’s steam trains should be good over defendant’s lines, the plaintiff accounting to defendant for its part of the holder’s transportation. This contract also provided that if defendant at any time used or permitted steam as a motive power on the southerly end of its line, then, on six months notice, the contract should be terminated at the option of either party, and in that event the plaintiff would repay defendant the cost of said additional terminal facilities at the Culver depot.

We think it apparent that the plain purpose of this contract, so far as it affected the parties thereto alone, was to avoid competition for through Coney Island travel, to enable plaintiff to obtain the benefit of defendant’s Hamilton avenue line, with, perhaps, its better facilities from Fulton Ferry, as a feeder for its steam, road, to save the necessity of building its proposed road to Hamilton Ferry; and that it was to continue only so long as the two companies were not competitors for the through Coney Island travel, and that it should terminate when they again came into practical rapid transit competition. True, the power of this limitation is expressed with reference to steam as motive power, but that form of expression, as it seems to us, was used only because steam was then the only means in practical use as a motive power for rapid railway travel. The central thought of these parties in this respect was the avoidance for the time being of competition by ■any means on those portions of their lines which were practically adjacent, viz., “ the southerly portion of defendant’s line as compared with that part of plaintiff’s line which ran from Culver's depot to the island. It can scarcely be said that they intended to •exclude the use of a cable propelled by steam power; for in that ■case the steam would be an active agent in energizing the otherwise inert cable. The distinction between locomotive steam as power and steam as motive power on railroads was recognized so far back as 1871, see chap. 609; see, also, 84 N. Y., 313; 48 Hun, 477, and it is a fact that this distinction had been drawn by the •court of appeals in the Sea View R. R. case in March, 1881, 84 N. Y., 313. And yetdt would occasion quite as much surprise to End that these parties thought of a steam cable system as of electricity when they made this contract. We repeat that the use of the term steam as motive power seems only another form of referring to rapid transit by whatever power accomplished as means of bringing these parties into competition on the southerly part of their lines. In this view it seems to us that the steam used by defendant in generating the electricity used in its trolley or overhead system is fairly within the contemplation of the parties. But, as already indicated, we do not base our judgment on that alone.

Again, we think that the changed circumstances of the parties Tender it inequitable that the extraordinary remedy of specific performance should be applied. While it is true that there is no •covenant on the part of plaintiff to maintain the status quo of the contract, it still plainly contemplated that the plaintiff should continue to operate the Vanderbilt Avenue line and that there should be no greater rivalry for the passenger traffic between the Culver depot and Fulton ferry than that which would naturally result from plaintiff’s desire to work in harmony with defendant, and within the spirit of its covenant, that its cars and track should be ■so operated as not unnecessarily to interfere with defendants. So long as that relation existed the plaintiff was directly interested -to avoid conflict and to be fair in all its terminal arrangements as means to an end, viz., the increase of traffic for its own road ; and this personal interest might well have been relied on by defendant as a means of securing a generous, at least a fair arrangement of running times, departures, arrivals, &c. Indeed, as already remarked, the contract subordinated defendant to time-tables prepared by plaintiff for those five blocks,and that, of course, affected the whole of both its lines. But the plaintiff afterwards sold out its Vanderbilt Avenue line to a rival street railway company; and the evidence pretty plainly shows that the defendant was thereafter materially obstructed in its own terminal facilities at the Culver depot by the acts of this new owner and operator of that line. Without intending any reflection upon the management of this new operator of that line,it was but natural that it should consult its own convenience to a greater degree,or rather thafit should not consult defendant’s convenience to the same extent, as it would have been to plaintiff's interest to do if it had remained tne owner and operator of the Vanderbilt Avenue line. JSTor was this complaint purely technical or insignificant. The evidence fairly shows that defendant’s earnings wer'e materially and immediately decreased after that change, and it is difficult from the evidence to attribute that decrease to any other cause than the preference exhibited by travelers for the Vanderbilt Avenue line arising out of defendant’s inability to start and progress its cars with the same promptness and frequency as when plaintiff controlled the terminal facilities.

We think that the spirit of this contract was that defendant should not be subjected to the temptations of greater rivalry in this respect than that which existed immediately when the contract was made. It subjected its entire business at that point, which had practically become the eastern terminus of both its lines, even to the time table of plaintiff. This was a subordination, having its origin in personal confidence predicated on identity of interest and common purpose. But by this change defendant was subjected to the time table arrangements made by a stranger, a business rival, who was under no restraint, or if under any, it was not predicated upon the same guaranty for fairness. And the best evidence of the change is the decreased earnings of defendant’s business. And it would seem to have been the object of this action to fasten just this subordination upon defendant unless we have mistaken the object of some of plaintiff’s requests for findings.

Thus the plaintiff has deprived the defendant of a material and valuable part of the plain consideration of this restraint, and yet it seeks the extraordinary remedy of specific performance to enforce its side of the bargain when it can no longer give that which it promised, or, at least, created the expectation that it would give.

Perhaps it may be thought that we have gone too far in predicating judgment upon the assumed fact of actual and serious damage to defendant upon these terminal inconveniences and disappointments. But the result will be the same in any view, because defendant requested findings on these points which the court refused manifestly for the reason that it deemed them immaterial. We think they were material, and that if the fact had been found according to defendant’s contention it would alone have been an answer to the plaintiff’s right to require specific performance of such covenants as these were.

We, therefore, direct a new trial, with costs of this appeal to the defendant to abide the event.

Barnard, P. J.

The conditions under which the parties contracted are as completely changed as if the defendant used steam as a motive power. A covenant not to use steam would not be broken by the use of electricity; but when the use of electricity made the roads competing as fully as if propelled by steam, and the use of steam made the contract terminable by either party, the use of electricity is within the spirit of the contract. The conditions are changed in other respects so as to render the specific performance inequitable, by reason of and in consequence of the sale of the plaintiff’s road to the Atlantic Avenue B. B. Co.

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

Brown, J.

(dissenting.)—The contract between the parties, which was dated June 1, 1882, so far as material to the questions presented upon this appeal, provided as follows: (1) The plaintiff granted to defendant the right to use its railroad tracks on Ninth avenue, in the city of Brooklyn, from Fifteenth street to the plaintiff’s depot at Greenwood cemetery, for the term of twenty-one years, free of charge, and agreed to construct, at defendant’s expense, all new tracks, stands, sidings, switches and turnouts necessary to facilitate the operation of defendant’s road. (2) Defendant agreed to operate and run cars to the plaintiff’s depot during the spring, summer and fall months, to connect with all ferryboats at Hamilton ferry, and to run on same tim'e table as plaintiff to Fulton ferry, connecting with all trains at said depot to and from Coney Island. (3) It was mutually agreed that the agreement might be terminated by either party upon six months notice, if, at any time during the term thereof, the defendant should use or permit the use of steam as a motive power on its road between Coney Island, beach and Ninth avenue and Fifteenth street in the city of Brooklyn. At the time of making the agreement the plaintiff owned and operated a steam railroad to Coney Island from Brooklyn, having a depot at Ninth avenue and Twentieth street. It operated a horse road from the depot to Fulton ferry, and also possessed a franchise to construct a horse road fi’om its depot aforesaid to Hamilton ferry. The defendant owned a horse road from Coney Island to Brooklyn, having one terminus at Fulton ferry and another at Hamilton ferry. The agreement was performed by defendant until January 1, 1890, when, having reconstructed its road from Prospect Park to Coney Island so as to operate it with electricity, it ceased running its cars from the ferries to plaintiff’s depot, and ran them all to its own depot at Prospect Park. The court found as a fact that plaintiff had fully performed the agreement on its part, and enjoined defendant from operating any of its cars unless during the spring, summer and fall months of the remainder of the term of the agreement it either ran its cars to plaintiff’s depot, making the connection as provided in the contract, or should run detached or “ jigger ” cars from its main line at Ninth avenue and Fifteenth street to said depot, and so operate them as to connect with cars on the main line, and transport to the depot all passengers who so desired, without delay, inconvenience or expense.

I am unable to agree in the construction put upon the contract by my associates, to the effect (1) that steam used in generating electricity used in defendant’s trolley system is fairly within the meaning of the provision which permitted either party to terminate the contract when defendant should use steam as a motive power on that part of its road between Coney Island and Ninth avenue and Fifteenth street; or (2) that it was within the contemplation of the parties and the fair meaning of the contract that plaintiff should continue to operate the Vanderbilt Avenue Line, and that there should be no greater rivalry for passenger traffic between the Twentieth street depot and Fulton ferry than that which would naturally result from the plaintiff’s desire to work in harmony with defendant

The use of steam as a motive power did not ipso facto terminate the contract. The provision was permissive only, and there is no evidence that defendant ever served the notice required, or ever claimed that the condition was created which permitted the termination of the contract In view of the recent decision of the court of appeals in the case of Hudson River Tel. Co. v. Watervliet Turnpike & R. R. Co., 48 St. Rep., 417, it would seem unnecessary to argue that the propulsion of cars by electricity was not using steam as a motive power. In that case defendant was authorized by law to propel its cars by the use of “ any mechanical or other power except steam.” It adopted and used electricity, applying it by the overhead trolley system, and it was held that it was acting within its authority.

The conclusion that the defendant should continue to operate the Vanderbilt Avenue Line is not based upon any express provision of the -contract, nor do I think it can be fairly implied from anything contained in the agreement or in the situation of the parties at the time the contract was entered into. No greater reason exists for this conclusion than for one that it was contemplated that plaintiff should not sell or operate the Hamilton avenue road. The defendant knew that the plaintiff possessed the Hamilton avenue franchise, and offered to purchase it, and of course it knew that plaintiff was operating the road to Fulton ferry. The sale of the Hamilton avenue franchise was refused, unless defendant purchased both lines. This, it appeared, it was unwilling to do. At the time of making the contract the parties were, therefore, actual' competitors for the travel to and from Fulton ferry, and prospective competitors over the Hamilton avenue route; and, as the contract contains no covenant that plaintiff would not operate both of these routes, it must be assumed that such a contingency was within the contemplation of both parties when the agreement was-made.

The conclusion that the rights of the defendant were impaired by the sale to the Atlantic Avenue Company is opposed to the findings that the sale was made subject to the defendant’s rights, and that plaintiff had fairly performed all its obligations of the contract. These findings have evidence to support them, and, in the absence of a certificate that all the evidence is contained in the case, are not subject to our review. Aldridge v. Aldridge, 120 N. Y., 614; 81 St. Rep., 948. There was no legal obstacle to the sale to the Atlantic Avenue Company, and unless it violates some provision of the contract was not a thing which constituted a defense to this action. That it was not considered as violating or ' impairing defendant’s legal rights under the contract is conclusively shown by the fact that defendant never made any objection to it, but, on the contrary, continued without complaint to perform its contract for four years after the sale was made.

It is also claimed that the contract is not one of which the court should decree specific performance; that the situation has materially changed since the agreement was made, and that the plaintiff should be left to his remedy at law. The discretion which courts of equity exercise to decree or deny specific performance in cases of this character is not an arbitrary or capricious one. It rests upon well settled rules of equity procedure. Where the contract is a fair one, and the situation at the time when specific performance is asked is one which the parties may fairly be said to have contemplated or foreseen, and where performance inflicts no undue hardship on the defendant, and gives no undue advantage to the plaintiff, and where the construction of the instrument is clear, and the breach clear, then performance must be decreed, and the court would not be justified in refusing it. But when, for causes not chargeable to the defendant, an enforcement of the agreement would work an injustice, or defeat the ends contemplated by the parties, or when the surroundings of the property have materially altered, or the situation of the parties with reference to the subject-matter of the contract has so changed that the covenant sought to be enforced is not applicable to the state of things existing at the time of the trial, and would cause no benefit to the plaintiff, and impose a hardship on the defendant, in such a case a decree for performance may be denied, and the plaintiff left to pursue his remedy for damages.

As bearing upon the changes in the situation of the parties to this action two facts are referred to : (1) The sale to the Atlantic Avenue Company of the plaintiff’s horse car lines, and their operation by that company; and (2) the introduction of electricity as a motive power on railroads. The first fact needs no consideration, for the reason, as already pointed out, that it was a thing within the contemplation of the parties at the time of making the contract, and there is no finding that either plaintiff or the Atlantic Avenue Company violated the contract. The introduction of electricity as a motive power operates in this "case solely to benefit the defendant, and affords it no ground to refuse to perform its contract obligation. The parties at the date of the agreement each owned a road between Brooklyn and Coney Island, but, by reason of the defendant’s being a horse road exclusively, it could not successfully compete with the plaintiff. The agreement was beneficial to the defendant, in that by it it was enabled to enjoy part of the travel between the two places. By the use of electricity, defendant is now enabled to successfully operate its road to Copey Island south of Prospect Park, and carries passengers at a less rate of fare than plaintiff does upon its steam road, and it has obtained a large part of the travel which has been diverted from, plaintiff’s road. The decree made in this case does not interfere with this operation of defendant’s road. It is left free to use electricity as a motive power, and to operate its road to Coney Island, and take up passengers along its lines in the city, and carry them to its depot at Prospect Park, but it compels it to deliver at plaintiff’s depot such passengers as use its horse roads in the city, and desire to take the steam road to the island. This it is permitted to do by using transfer or “jigger” cars on Ninth avenue from Fifteenth street to the depot. The evidence of the case discloses no reason why it should not perform that obligation, and to permit it to violate its agreement, and divert all the travel over its horse road to its own electric cars, would give to it all the benefits arising from the use of this new motive power, and impose all the hardships upon the plaintiff. I am of the opinion that the covenant sought to be enforced is applicable to the present situation of the parties, and should be enforced, and, consequently, the judgment should be affirmed, with costs.

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


author: Dykmam, J.

text:
    James E. Wright, Pl'ff, v. Guillaume A. Reusens, Impl'd, Def't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Attorneys—Lien—Mechanic's lien.
    Plaintiff, a contractor whose lien had been filed last, brought action to recover the sum claimed to be due on the contract, but subsequently discontinued the same and began this action to foreclose his lien, making the other lienors defendants. His attorney claimed that when the first action was discontinued the other lienors agreed to pay him a percentage for collecting the money and testified that he refused to discontiue unless he got the percentage, and they said it would be all right, while plaintiff testified that they were silent; and the other persons present testified that they did not hear anything said on the subject, and in this action the other lienors employed other attorneys. Held, that an agreement of this kind could not be implied from silence ; that such agreement was not proved, and that the attorney was not entitled to a lien bn the fund for such payment.
    Appeal by eight of the lienor defendants from a judgment awarding to Silas J. Owens, who was attorney for plaintiff, an attorney’s lien of ten per cent upon the recoveries of the appellants.

      O. W. Horton, for app’lts;

      Silas J. Owens, resp’t in person.
   Dykmam, J.

This action was commenced for the foreclosure of a mechanic’s lien for services and materials in the reparation of a dwelling house of the defendant. The plaintiff was the contractor, and the material men were made defendants.

Prior to the commencement of this lien suit, an action had been commenced in the name of the plaintiff against the defendant, but some of the parties in interest embraced the idea that their rights could not be protected in that suit, and it was discontinued, and the present action was commenced.

The attorney for the plaintiff was the same in both suits, but some of the lienors who were made defendants employed other attorneys.

The action was successful and the defendant paid the money into court. The defendants, who were lienors, recovered their respective claims, and now the attorney for the plaintiff demands a lien for his services against the fund to the extent of ten per cent upon the whole amount.

The demand for ten per cent is based upon an agreement which the attorney claims was made with him by the plaintiff and the other lienors, and which is denied by some of them.

After the interposition of the attorney’s demand for his lien, an order was made by consent that all questions of liens in his behalf should be tried before a justice of this court who took testimony under that order and subsequently decided in favor of the lien, and its enforcement against all the lienors except four.

He also allowed the attorney a trial fee of $30.00. Eight of the lienors have appealed from the order entered upon the decision.

The claim for the attorney’s lien is based upon an agreement, as we have said, and can be valid only against the parties who entered voluntarily into it.

Upon the development of the dissatisfaction with the first action H. P. Dane, a lienor, O. W. Horton, a lawyer, and Owens, the attorney for the plaintiff, went to Sing Sing to consult with Francis Larkin, a lawyer of that place, and the plaintiff Wright gave the following testimony respecting the conversation at that time, and stated substantially that Owens then refused to discontinue the first suit unless he could have ten per cent, for collecting the money, and Owens testified that he then said he would not withdraw the first action unless the parties agreed to pay him ten per cent., and that Horton and Dane said he was sure of the ten per cent, and there would be no trouble about it.

They were the only persons who testified in favor of Owens respecting the interview at Larkin’s office, where he claims the agreement was made, and their testimony fails entirely to prove an agreement

Wright says distinctly that when Owens said he would not withdraw the first action unless he got ten per cent, neither Dane nor Horton said anything.

Such an agreement as the necessities of this case demands cannot be inferred from silence; it requires the meeting of two minds. Ten per cent, cannot be deducted from the claims of these lienors without their consent. Owens was not their lawyer and can make no demand against them for services. His claim must be sustained by agreement or must fail.

So much for the testimony on the part of the claimants. On the part of the defendant, Larkin, and Horton and Dane, all testified that they heard nothing at Larkin’s office about a charge of ten per cent. Larkin is an old lawyer of high honor and integrity, and entirely disinterested. Horton is a young lawyer of high respectability and destitute of interest, and Dane, although interested, is a large lumber merchant in Peekskill and nothing appears against his character.

We cannot disregard the testimony of these witnesses, and it preponderates heavily against the memory of the principal witness.

The evidence fails entirely to establish an agreement by the appellants to pay the claimant ten per cent

An action to foreclose a mechanic’s lien is peculiar. When lienors are made parties defendants they really occupy an affirmative position, and their interests are often antagonistic. When the fund is insufficient for all, the reduction of one inures to the benefit of another. They claim the same as they would do if they were plaintiffs. They employ their own attorneys, and proceed entirely independent of the plaintiff. Therefore, after Owens discontinued his first suit, he represented the plaintiff, and his claim only. When Owens gave up the first suit, he did so without exacting any pay at that time, and these defendants all swear positively they made no agreement to pay him anything. They say they did not like him and employed other lawyers. Under such circumstances, an agreement to assist in the compensation of the plaintiff’s attorney will not be inferred nor found without satisfactory proof, and, as we have seen, the evidence here fails to establish an agreement.

If the claimant can acquire no lien against the appellant except by virtue .of an agreement, as the proof fails of either one, the order should be reversed, so far as the appellants are concerned, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Pratt, J., concurs; Barnard, P. J., not sitting.