text:
    Reuben Doty et al., App’lts, v. Alexander Smith, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Evidence — Book entries.
    The evidence as to a counterclaim based on an alleged sale to plaintiffs of an interest in a claim under a party wall agreement was conflicting, and defendant was allowed to put in evidence a charge upon his ledger of the sum in question against plaintiffs on proof that he kept his own books; was unable to find his journal, but found this ledger and identified the entry. Held, that the admission of this entry was reversible error; that it was not an entry upon a merchant’s books, but an independent entry by a party to the suit of evidence in his own behalf.
    Appeal by the plaintiffs, Reuben Dotv and Joseph Doty, from a judgment entered in Allegany county, November 18, 1892, on the report of a referee.

      William Spargur, for app’lts; Church & Church, for resp’t.
   Macomber, J.

This action was brought upon an open account, and judgment was prayed for the sum of $1,275.58. The defense was a denial, payment, statute of limitations and a counterclaim, with a prayer for an affirmative judgment for $1,621.41. The referee found a balance due to the plaintiff upon the open account of $123.28; for the value of a wagon, $80; and for the value of land sold by the plaintiffs at the request of the defendant, $73.61, amounting in all to the sum of $276.89.

He also found that the defendant should be credited with the sum of $400, which would leave a balance due to the defendant of $123.11, for which, with interest, judgment was directed.

The only question upon this appeal relates to the proof of the counterclaim of $400. The referee found that, between the years 1882 and 1886, the defendant, upon an oral agreement, sold to the plaintiffs all his right, title and interest in a claim which he, the defendant, had to the payment for one-half of the expense in building a partition wall upon his lands and those of one William T. Barnes. In the year 1871, the defendant was preparing to build a brick store upon his lot, and thereupon he and Barnes entered into an oral agreement by which it was agreed that the defendant should erect the northerly wall of his store building on the division line between his lands and those of Barnes, so that one-half of the wall would stand on each lot; and Barnes, when he built on his lot, should pay Smith, the defendant, one-half of the cost. In pursuance of this agreement, Smith built upon the division line a stone cellar wall, extending from the front to the rear of his lot, and a brick wall upon the stone cellar wall, and such wall has ever since been used. Barnes made some preparations to build and to use this wall, but did not, in fact, use the same during his lifetime. The title of the Barnes lot came into the hands of one A. 0. Very, and Mi-. Very was preparing to build a brick store upon the lot, but did not do so, but, shortly thereafter, conveyed the land to one Dr. W. W. Crandall, who erected a store building thereon and used the wall as a party wall, and he is now using the same.

Sometime before this, however, the defendant undertook to recover from the Barnes estate one-half of the expenses of building the wall, but failed in his action solely upon the ground that the condition upon which he should receive such pay had never been fulfilled, inasmuch as neither Barnes nor his grantees had then erected a building and used the wall. But after the erection of the building and the use of it by Crandall this claim was made against the plaintiffs. It is claimed that at the time of making this oral agreement, the plaintiff applied towards the $400 (which was claimed bv the defendant to be the sum agreed upon, although somewhat less than one-half of the expense of building 'the wall) a wagon, of the agreed price of ninety dollars, as part payment for the oral transfer of the claim assigned to the plaintiffs against the estate of Barnes. That estate, however, was hopelessly insolvent, and was believed by the plaintiffs to be insolvent at the time that the defendant claimed this oral agreement was made.

The proof of the defendant's counterclaim rests upon the testimony of himself and that of his wife, taken upon the previous trial of this action. It is, in its nature, quite fragmentary and inconclusive. The bargain and transfer were denied by the plaintiffs, who claimed that the ninety dollars for the wagon was a part of their original account against the defendant.

The case presented a very close question in regard to the principal fact contended for by the defendant, and was one where it is extremely doubtful if the defendant succeeded in bearing successfully the burden imposed upon him by law to establish his counterclaim by a preponderance of the evidence. The defendant testified that he charged, at or about the time of the transaction, the plaintiffs with this sum of $400 upon his books. He says he was keeping his own books at the time; that he was unable to find bis journal, but found his ledger in which this account appeared. He identified the entry upon the ledger, and said: This is the charge. This refers to the matter I have been speaking of. This is the identical matter. This charge was made at the time. This charge was copied from my day book.” Thereupon counsel offered in evidence the $400 charge against the plaintiffs, as the same appeared on page 27 of the defendant’s ledger. This was objected to as incompetent, and the objection overruled, and an exception was taken, but the evidence received.

It is stated in the case that this entry appears on the book under date December 13,1881, in this manner: “R. & J. Doty, to Alexander Smith, Dr., $400.” It is urged upon our attention by the learned counsel for the respondent, that even though it was error to receive the defendant’s ledger in evidence, yet that evidence may be disregarded; for, as he contends, there was abundant other evidence to establish the defendant’s case. That this evidence was incompetent admits of no doubt. It was not an entry upon a merchant’s book, but was, on the contrary, an independent entry, by a party to the suit, of evidence in his own behalf. Its reception by the referee may have turned, and probably did turn, the scales of his decision in favor of the defendant upon this question of fact It is such an error, we think, as requires us to reverse the judgment entered upon the report, and to grant a new trial.

Judgment appealed from reversed, and new trial granted, with costs to abide the event. '

Dwight, P. J., Lewis and Haight, JJ., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    Ludwig Herbst, Resp’t., v. The Vacuum Oil Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Stipulations — Evidence.
    A stipulation made by the parties before the first trial of an action that the evidence in a similar action brought by another party against the defendant “ may be read by either party upon the trial of the above entitled action to the same effect as though said, witnesses were present and examined orally,” is binding and applicable to any subsequent trial so long as the parties are nut relieved from the obligation by an order of court made on an affirmative appl.cation therefor.

      0. Trial — Rejection of evidence.
    The rejection of evidence sought to be brought out on cross examination is not a ground for reversal where it appears that the evidence so called for was subsequently brought out.
    Appeal by the defendant, the Vacuum Oil Company, from a judgment entered in Monroe county on the 6th day of July, 1892, and from an order denying its motion for a new trial.

      M. H. Briggs, for app’lt; George Truesdale, for resp’t.
   Macomber, J.

This action was one of many like actions brought against the defendant to recover damages for personal injuries, received through the explosion of naphtha in the city of Rochester, on the 21st day of December, 1887. The case has been twice tried. On the first trial a verdict of $6,800 was rendered for the plaintiff, which was set aside by the trial judge on the ground of being excessive, and on an appeal from that order to this court the decision was affirmed. On the second trial, now under review, the verdict was for the plaintiff in the sum of $4,000. .

It is not needful to go into the facts of the case, because they do not differ in any material aspect from those so often considered by the courts in other cases arising from the same cause. The verdict clearly was not, in this instance, excessive; and the judgment should be affirmed unless certain errois complained of by the learned counsel for the appellant are of sufficient moment to lead to that result. An exception was taken to the reading of evidence under a stipulation made by the parties in this case before the first trial, which was in the following words: It is hereby stipulated that the evidence of any of the witnesses testifying on either side of the case of Ann Lee, as administrator, etc., v. The Vacuum Oil Company, tried at the June circuit, in the year 1888, may be read by either party upon the trial of the above entitled action to the same effect as though said witnesses were present and examined orally. Either'party to have the right to call in any of said witnesses for further examination. ” This was signed by the attorneys for the parties respectively. The point was made at the second trial, and is now urged upon us, that it. was not competent for the defendant to avail himself of this stipulation and to read the testimony given in the Ann Lee case upon the second trial. The objection was overruled by the trial court and such evidence offered was read, to which an exception was taken.

We find in this stipulation no limitation as to the trial at which the stipulation should be applicable. The language is “ that such testimony may be read by either party upon the trial of the above entitled action, etc.” We have examined each of the several cases to which counsel has directed our attention as to /the construction of stipulations and agreements, but we fail to find any case among them which is an authority for the contention now made. The claim by the defendant does not arise upon an application to the court to the favor to be relieved of the terms of the stipulation, and the question addressed to the circuit and to us is solely one of the construction and meaning of the writing itself ; and we have no doubt but that the learned justice at the circuit was clearly right in holding that the same was binding and applicable to any trial so long as the defendant was not relieved from its obligation by order of the court procured in an affirmative application for that purpose, notwithstanding the notice served by the defendant after the first trial that it would not longer be bound thereby.

Another exception is made to the rejection of certain testimony of Dr. Eider, sought to be adduced upon his cross-examination by counsel for the defendant. Dr. Eider had given evidence designed to show that, among other injuries, was that to the eyes of the plaintiff caused by the flames of exploding gas. It was shown, however, that the plaintiff had been engaged at times, among other things, in pecking and drilling stone, and it was sought to bring out upon the cross-examination of this witness an opinion that the injury complained of might have been inflicted by pieces of stone or steel flying from a chisel in the hands of the plaintiff. The question was, “ Assume that a speck of steel or stone flies and strikes the eye, may it produce such a condition ? Objected to. Objection sustained.

“ Q. I will ask you whether a piece of steel or stone striking the eye ball or any other hard substance will produce similar conditions to those that you saw ? Objection by plaintiff’s counsel. Objection sustained. Defendant duly excepted.”

But the witness did immediately answer that anything that produces an inflammation of the cornea might produce similar specks to those which he had discovered in the eyes of the plaintiff. But the counsel seems to have recurred to the same subject later on, and his persistency was rewarded by procuring from the doctor the opinion which he sought. He said, “ If we have a perfect eye and then a burn and then a scar afterwards, with no other probable cause, no matter what our prejudice or theories are, logic is inevitable. We must assume that which preceded was the cause. If there are two causes which can be assumed in the case, one, the sharp point of an irritating substance, and another, a burn on the white of the eye, no matter how profound, and the condition observed was a minute point of a scar, I should say the scar was caused by the pointed instrument.”

We think, on the whole, that these exceptions, which alone furnished the basis of the oral argument presented by the learned counsel, do not afford any ground for reversing the judgment.

Judgment and order appealed from affirmed.

Dwight, P. J., Lewis, and Haight, JJ., concur.


author: Daly, Ch. J.

text:
    Margaret Hannon, Adm’rx, Resp’t, v. Jeremiah Sheehan, Adm’r, App’lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    Banks — Ownership of deposit — G-ift.
    Defendant’s intestate deposited moneys in a savings bank in the name of herself for her daughter. She subsequently told the bank to change it to the name of herself or sister Julia, plaintiff’s intestate, so that she could draw the money. After the death of both, the bank book was found in the possession of another sister, with whom plaintiff’s intestate lived and through another person came to plaintiff’s possession. Held, that the direction as to the alteration in the title of the account was some evidence of a gift of the deposit to the sister, and this coupled with the fact of her possession of the book, in the absence of evidence that she had acc ss to the effects of defendant's intestate at her death, was sufficient to sustain a judgment in favor of plaintiff for the moneys.
    Appeal from a judgment of the general term of the city court, affirming a judgment of the trial term in favor of the plaintiff, the cause being tried by a judge without a jury.
    The action was originally brought by the administratrix of Julia Barrett against the Emigrant Industrial Savings Bank to recover the money due upon an account standing in the name of “Hannah Sheehan, or sister, Julia Barrett.” The fund being claimed by the administratrix of Hannah Sheehan, she was substituted in place of the bank as defendant in the action; and judgment having gone against her both at trial and at general term, she brings this appeal.

      R. A. Springs, for app’lt; Michael F. McGoldrick, for resp’t.

       Affirming 46 St. Rep., 565

   Daly, Ch. J.

The account with the bank standing in the name of “ Hannah Sheehan, or sister, Julia Barrett,” the bank agreed to pay to either depositor on production of the pass book, and the personal representative of either liad the right to draw the money. The plaintiff has possession of the bank book, and if the question was simply as to the custody of the book or the right to draw the money, the plaintiff would have the right both to book and money. Smith Estate, 17 Abb. N. C., 78.

But the plaintiff alleges that Hannah Sheehan before her death delivered to Julia Barrett the bank book, together with all her right, title and interest in and to the moneys deposited and interest thereon. The answer denies this allegation and sets up title in Hannah Sheehan to the moneys. It was necessary, therefore, for the plaintiff to sustain by proof the allegation of the transfer of the fund from Hannah to Julia during their lifetime.

It was shown that the account was opened on July 20,1882, in the name of Hannah Sheehan, for daughter, Kate A. ; “ that on February 11, 1887, Hannah called at the bank and gave a written direction as follows : “ Erase the name of my daughter, Kate A., and add the name of my sister, Julia Barrett, so that she can draw the moneythat the deposit, with interest, then amounted to $534.06 ; that deposits were subsequently made, but by whom does not appear, until the credit amounted to $858.93, at which amount it stood until the death of Hannah, which took place on January 22, 1890. She left a husband, Benjamin, who, with the defendánt Jeremiah, were duly appointed her administrators. Benjamin died before the commencement of the action.

Julia Barrett survived Mrs. Sheehan but eight days, dying on February 1, 1890. She had been living in One Hundred and Tenth street with a third sister, Ellen Barrett, and after her death Ellen went to live at the house of a Mrs. Foley, where she died within five days of Julia, viz.: on February 6, 1890. This bank book, with two others, was in possession of Ellen when she went to Mrs. Foley’s and was delivered by her to Mrs. Foley before her death, with the statement that all she owned, together with what her sister who died had left, she would like to go to her sister in Ireland. Mrs. Foley gave the books to a nephew of the deceased, who delivered them to his mother, Margaret Hannon (a fourth sister), who qualified as executrix of Julia Barrett and is the plaintiff in this action. The other two bank books were in the names of Ellen Barrett and Julia Barrett, respectively.

Upon this meager evidence the trial court was required to decide to whom the money deposited in the name “ Hannah Sheehan, or sister Julia Barrett ” belonged at the commencement of the action. It was some proof of a gift of the deposit by Hannah to Julia that she directed an alteration of the title of her account so as to erase the name of her daughter and substitute the name of her sister Julia, to enable the latter, as she declared, to draw the money. The evidence also warranted a finding that the pass-book had been transferred to Julia by Hannah, for it was.found in the possession of Ellen, who lived with Julia when the latter died, and so it could fairly be presumed that Julia had possession of the book. Her possession is evidence of ownership. Gfreenl. on Ev., § 84.

It is not shown that Julia had access to the effects of Hannah when the latter died, as was the case with Ellen when Julia died; so that the inference of lawful possession in Julia is not negatived, as in Grey v. Grey, 47 N. Y., 552. As Hannah had formerly invested her with the right to draw the money, it is a reasonable inference, from her possession of the book, that Hannah had given her that also. The intent to give the money and a delivery to make the gift effectual were thus present, and satisfy the requirements of law. Schluter v. Bowery Savings Bank, 117 N. Y., 127; 26 St. Rep., 922. The transfer of the account by Hannah to her own and Julia’s names was a gift of some kind to Julia, and her rights do not rest solely on the delivery of thé book, Mack v. Mechanics & Farmers' Savings Bank, 50 Hun, 477; 20 St. Rep., 247, but as she already had the right to draw the money, the possession of the book gave her complete power to draw it out for herself, and the finding in her favor is sustained by the evidence. Same Case, 479. A gift of the pass book alone would vest the title to the fund in the donee. Penfield v. Thayer, 2 E. D. Smith, 805.

Hone of the authorities cited by appellant conflict with these views, and we cannot say that the court erred in its findings, or that they were against the weight of evidence, or that the proofs preponderate in favor of a contrary result, and so the judgment must be affirmed.

Judgment affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Giegerich, J.

text:
    John A. C. Gray, App’lt, v. The Manhattan Railway Co. et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    Costs — Extra allowance — Elevated railroad cases.
    In an action against an elevated railroad, where no past damages were awarded, but an injunction, to be obviated by the payment of a specified sum, and such judgment is reversed on appeal, there is no basis for an extra allowance, although the complaint contained an allegation of damages, as a basis for injunctive relief.
    Appeal from an order made at special term, granting the defendants an extra allowance.
    The opinion states the facts.

      Edward C. Perkins, for app’lt; Davies & Rapallo, for resp’ts.
   Giegerich, J.

This is an appeal from an order awarding to the defendants an allowance of $400, in addition to the costs of this action. The action was brought to restrain the maintenance and operation of the elevated railroad in front of the plaintiff’s premises, situate at the corner of Ninth avenue and Seventy-first street in the city of New York, The relief demanded was to enjoin the defendants from operating their railway in front of or .past the plaintiffs premises; for an accounting to ascertain the damages already accrued; and for judgment for the amount of the damage. The action was tried at an equity term, where the plaintiff failed to recover any past damages; but an injunction was awarded to him, to be obviated upon payment of eight thousand dollars, and judgment was entered accordingly. On appeal to the general term of this court, the judgment was reversed and a new trial granted. The plaintiff then appealed to-the court of appeals,- and gave a stipulation for judgment absolute in defendants’ favor in case the order was affirmed. The court of appeals affirmed the order on the ground of errors in the admission of evidence. 128 N. Y., 499; 40 St. Rep., 478. The defendants thereafter applied for “ an extra allowance to the costs of five per cent upon the amount claimed in the complaint herein;” and an additional allowance of $400 was awarded, and from that order an appeal was taken. The question is thus presented whether the granting of an allowance was justified under the circumstances.

It is. claimed by counsel for the respondents that the complaint, paragraph 18, contains a distinct allegation of damages amounting to $75,000. Although it is therein alleged that the value of the plaintiff’s rights has been depreciated by the building of the road, the damages so alleged to have been suffered, however, aré not claimed; and the allegation so made is made simply as a basis for injunctive relief.

The complaint merely seeks and asks for an injunction, and for such sum as may be found due to the plaintiff herein on an accounting. In this aspect there is no money basis on which to calculate a percentage. Coleman v. Chauncey, 7 Robt., 578; Spof ford v. Texas Land Co., 9 Jones & S., 228; Conaughty v. Bank, 92 N. Y., 401; Lyon v. Belchford, 8 Civ. Pro., 229.

The respondents contend further, that by procuring an extra allowance of $400, and entering judgment for it, the appellant “ is estopped from denying that it has a legitimate basis in the value of the subject matter of the litigation.” The record, however, shows that the court below did not allow any past damages, but awarded an injunction to be obviated on payment of $8,000.

It also appears from the findings made upon the trial of this action, that “ said premises would not be worth as much as they are now had the said railroad and station not been built.” And the court of last resort decided that the value of the easement taken by the defendants was merely nominal.

It is manifest that the facts in this case, as presented on this appeal, do not afford the basis of an extra allowance; and for the reasons above stated, the order appealed from should be reversed, with costs.

Bischoff and Pryor, JJ., concur.


author: Bischoff, J.

text:
    Otto Kruger et al., Resp’ts, v. Philip Braender, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Mechanic’s lien — Statute of frauds.
    In an action to foreclose a mechanic’s lien, it appeared by the evidence that plaintiffs never entered into any contract with defendant’s contractor to supply him with material, but furnished it on defendant’s promise to pay therefor. Held, that no question under the statute of frauds was involved.
    3. Same — Variance.
    The fact that the notice of lien and complaint alleged a joint contract with defendant and his contractor, while the evidence sustained a finding only of a several contract with defendant, does not constitute a defense as to him, as in either event he was liable.
    3. Same — Action to establish.
    Notwithstanding the discharge of the lien by the giving of a bond, an action to establish the lien, in form as in an action to foreclose it, is proper, though no sale, of the premises affected can be therein directed.
    Appeal from a judgment of the general term of the city court of New York, which affirms a judgment of that court at special term in favor of plaintiffs. Action to foreclose a mechanic’s lien.

      Eugene Otterbourg, for resp’ts; Philip L. Wilson, for app’lt.

       Affirming 48 St. Rep., 936.

   Bischoff, J.

The evidence is conclusively to the effect that plaintiffs at no time entered into any contract with Uckermann,defendant Braender’s contractor, to supply him with the materials for which they claimed a lien in this action, and that they did furnish it upon Braender’s promise to pay therefor. Ro question arises, therefore, as to whether or not Braender’s promise, was collateral to any promise of Uckermann, and void under the statute of frauds because not in writing. Hubbell v. Schreyer, 14 Abb., N. S., 284, 298.

That the notice of lien, and the complaint,, alleged a joint contract with defendants,Braender and TJckermann, under which plaint- • iffs claimed to have furnished the materials, while the evidence sustains a finding only of a several contract with Braender, might have availed TJckermann on a motion to dismiss the complaint as to him, but did not constitute a defense; as to Braender, since he was in either event liable. Hubbell v. Schreyer, 14 Abb., N. S., 284, 300.

Again,that the judgment appealed from may be unauthorized in so far as it undertakes to adjudge the sureties on the bond given to discharge the lien, who were not ■ made parties to this action, liable in an action on the bond thereafter to be instituted against them by plaintiffs herein, can in no sense injuriously affect defendant Braender. If the judgment is justly assailable in the particular mentioned the invalidity of its operation may be asserted by the sureties when they are prosecuted on the bond and the judgment herein is sought to be used to preclude their defense.

So also it has been held by the general term of this court in McGraw v. Godfrey, 14 Abb., N. S., 397, and Hubbell v. Schreyer, id., 284, that, independent of any express authorization of the Mechanic’s Lien Law, personal judgment for the agreed price, or the reasonable value of the services and materials rendered and furnished respectively, against the party upon whose credit they were so rendered and furnished, may be awarded to the extent to which the lienor shall have established a valid lien, and that the authority to award the judgment is incidental to the authority to entertain the action. This view is sanctioned by Schaettler v. Gardiner, 47 N. Y., 404; Darrow v. Morgan, 65 id., 338; Burroughs v. Tostevan, 75 id., 571; Weyer v. Beach, 79 id., 409; Childs v. Bostwick, 65 How. Pr., 146; Lawson v. Reilly, 13 Civ. Pro., 290, and Fay v. Muhlker, 48 St. Rep., 699.

Notwithstanding the discharge of the lien by the giving of a bond as provided in the Mechanic’s Lien Law, Laws 1885, chap. 342, § 24, subd. 6, an action to establish the lien, in form as in an action to foreclose it, was proper, though no sale of the premises affected can be therein directed. Copley v. Hay, 34 St. Rep., 771; Scherrer v. Hopper, 45 id., 638; Brandt v. Radley, Supreme Court, 1st Dept., Special Term, opinion by Patterson, J.

The judgment should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


author: Pryor, J.

text:
    Conrad Kniering, App’lt, v. William F. Lennon, Resp’t.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    Costs — Demurrer.
    A demurrer to one of several counterclaims was sustained, with leave to amend answer on payment of costs herein upon said demurrer. Held, that the clerk properly allowed only twenty dollars trial fee of an issue of law? that full costs could only be recovered on the final determination of the action.

      Appeal from order at special term, confirming taxation of costs.

      Henry Wehle, for app’lt; Thomas C. Ennever, for resp’t.
   Pryor, J.

To a complaint on a plumber’s bill, the defendant, interposed an answer with several defenses and counterclaims. To one of the counterclaims the plaintiff demurred; and the demurrer was sustained, with leave to the defendant “ to amend his answer * * * * upon payment of the costs herein upon said demurrer.” The plaintiff presented a bill of costs, amounting, with disbursements, to sixty dollars and five cents. The disbursements being paid, the clerk taxed the costs at “ twenty dollars, issue of law.” Upon appeal from the clerk’s taxation, it was confirmed ; and we are to determine whether the order at special term be correct.

The cause is on the calendar for trial of the issues surviving the decision of the demurrer.

The ruling of the clerk was right. The successful party is entitled to full costs only on the final determination of the action ; otherwise he might recover such costs twice over. Here is but an interlocutory order; and as it disposes of only one of several defenses, the plaintiff should not recover costs as upon a litigation and disposition of all the issues. Upon the decision of the demurrer he may claim only twenty dollars trial fee upon the determination of the single issue involved. Indeed, the allowance of any costs on sustaining the demurrer was discretionary, Code, § 3232 ; and it is apparent from the terms of the order that the court intended to award costs only “ upon said demurrer.”

If there be a diversity of adjudication on the point, the weight of authority is against the contention of appellant.

Order affirmed, with costs and disbursements.

Bischoff, J., concurs.


text:
    Mary Monell, Resp’t, v. Margaret K. Douglass, App’lt.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    1. Dismissal op complaint — When pbofeb — Res ad judicata.
    Where the general term on a former appeal has determined that the facts pleaded do not constitute a cause of action, it is the duty of the trial court, in the absence of amendment, to dismiss the complaint; and its refusal to do so on request at the opening of the trial is error.
    2. Judgment — Facts determined not pleaded.
    A judgment cannot be sustained on the ground that facts constituting a cause of action, though not the one alleged in the complaint, were litigated and determined, where the defeated party protested against the litigation of a cause of action other than the one pleaded.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for plaintiff rendered at trial term upon a verdict in her favor.
    Action to recover damages for defendant’s alleged breach of covenant against encumbrances in a deed for the conveyance of real property.

      George W. Wilson, for resp’t; Thaddeus D. Kenneson, for app’lt.
   Bischoff, J.

The complaint averred the execution and delivery of a deed by defendant to plaintiff for the conveyance of real property and the grantor’s covenant against encumbrances other than arrears of taxes and two certain mortgages with the accrued interest thereon; and that at the time of the conveyance an action had been begun in the supreme court for the foreclosure of one of the mortgages, in which notice of the pendency of the action was duly filed. It further averred that to secure the discontinuance of the foreclosure action and the cancellation of notice of its pendency plaintiff necessarily expended the sum of $76.25. For the sum so alleged to have been paid by her plaintiff prayed judgment against defendant. The answer denied each of the material allegations of the complaint, except such as referred to the execution and delivery of the deed and the covenant against encumbrances therein. On a former appeal from a judgment for plaintiff, this court, holding neither the foreclosure action nor the notice of its pendency to have constituted encumbrances, and deciding that plaintiff’s alleged payment was voluntary, Hayes v. Nourse, 114 N. Y., 595; 24 St. Rep., 569, reversed the judgment and directed that a new trial be had. Monell v. Douglass, 43 St. Rep., 129. The second trial again resulted in a judgment for plaintiff, from which an appeal was also taken to this court, and at the November, 1892, general term, the judgment was again reversed. A reargument of this last appeal was directed and had.

Searching scrutiny of the record only serves to confirm our first impression that the judgment must be reversed. It is apparent that after this court had on the former appeal determined that the facts pleaded did not constitute a cause of action, it was the duty of the trial court, in the absence of amendment, to dismiss the complaint, and its refusal so to do, when thereunto moved by defendant’s counsel at the opening of the trial and before any evidence was adduced for either party, was palpable error.

Respondent’s counsel insists, however, that if facts constituting a cause of action, though not the one alleged in the complaint, be litigated and determined, the judgment is unassailable if the facts litigated and determined supported the recovery. He alludes to evidence in the record which tends to show that some time before the execution and delivery of the deed defendant, by her duly authorized agent, orally agreed, in consideration of the payment to her of part of the purchase money before the time contractually appointed, to reimburse plaintiff for all such outlays which she might necessarily incur to free her title to the real property subsequently conveyed to her from all objection. The contention is correct with the qualification that the defeated party did not protest against the litigation of a cause of action other than the one pleaded. Knapp v. Simon, 96 N. Y., 284; Fallon v. Lawler, 102 N. Y., 228; 1 St. Rep., 397; Williams v. People's Fire Ins. Co., 57 N. Y., 274; Tyng v. Commercial Warehouse Co., 58 id., 308.

But defendant did protest. The evidence of the alleged oral agreement is to be found in the testimony of plaintiff’s witness, Hibbard. This testimony was specifically objected to by defendant’s counsel. Furthermore, counsel moved the dismissal of the complaint when plaintiff rested, and again when the introduction of evidence was closed on both sides, each time urging as the ground for the motion that the cause of action was not established by the evidence. Then again he distinctly requested the trial court to charge that the jury were not at liberty to find for plaintiff upon any cause of action other than the one alleged in the complaint, which request was refused, and exception taken to the refusal. No amendment of the-complaint was applied for on the trial, and indeed it would have been error to have granted it against the defendant’s objection if the amendment in effect was intended to substitute another cause of action for the one pleaded. Romeyn v. Sickles, 108 N. Y., 650; 13 St. Rep., 864; 1 Silvernail, 594; Baylies’ Code Pleading, 321, etc.

We are constrained, therefore, to hold that there was a total failure of proof of the cause of action alleged, Code Civil Procedure, § 541; Arnold v. Angell, 62 N. Y., 508; Southwick v. First Natl. Bank of Memphis, 84 id., 420; Shrimpton v. Dworsky, 49 St. Rep., 129; and that the trial court erred in its refusal of the several motions for dismissal of the complaint, and again in refusing to charge the jury as requested by defendant’s counsel.

The judgment is reversed, with costs to appellant to abide the event

Daly, Ch. J., and Pryor, J., concur.


text:
    William M. Sayer, Jr, et al., App’lts, v. William Kirchof et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed April 3, 1893.)

    Appeal — Dismissal fob failure to prosecute.
    The general term, of the city court of New York has authority under rule 41 of the general rules of practice to dismiss an appeal for failure to prosecute it with reasonable diligence.
    Appeal from an order of the general term of the city court of New York, which dismisses an appeal to it by plaintiffs from a judgment for defendants, rendered at trial term of the same court, for appellants’ failure to prosecute the appeal with sufficient diligence.

      George Parr, for app’lts; Bernard Metzger, for resp’ts.
   Bischoff, J.

Plaintiffs appealed to the general term of the city court of New York from a judgment of the same court at trial term in favor of defendants. The case and exceptions on appeal were duly settled and filed, but copies thereof were never served upon respondents or their attorney. After delay for upwards of fifteen months, respondents, upon due notice, and an affidavit which set forth the grounds of the motion, applied to the court below at general term for an order striking the cause from the calendar, and for judgment of affirmance for appellants’ failure to serve the papers on appeal, such a motion being provided for by rule 41 of the general rules of practice, and rule 3 of the court below. Neither party had noticed the appeal for argument. The order entered upon the motion dismissed the appeal, with costs, and from that order the appellants below now appeal to this court.

The order is appealable to this court, but only to the extent of permitting us to inquire into the sufficiency of the grounds for granting it, and whether or not there was any evidence in support of those grounds. The right to appeal is a substantial one which the order denies. Furthermore, the order, in effect, determines the action and prevents a judgment from which an appeal might be taken to this court. Code Civ. Pro., § 3191, subd. 3.

Section 17 of the Code of Civil Procedure authorizes the judicial officers therein designated to establish in convention general rules of practice not inconsistent with the provisions of the Code, and declares that the rules so established shall be binding upon all courts of record, of which the city court of New York, by § 2, subd. 15, is declared to be one, except the court for the trial of impeachments and the court of appeals. Like authority to establish rules of practice therein is given by § 193 to the court of appeals, and is interpreted by the last mentioned court to include the power to dismiss an appeal for failure to prosecute it with reasonable diligence (rule 7 of the court of appeals); and as the Code of Civil Procedure nowhere prohibits or specifically regulates the dismissal of an appeal for the cause mentioned, rule 41 of the general rules of practice, established as prescribed by § 17, which concedes the right of the respondent to such relief, cannot be said to be inconsistent with its provisions. See also Brown v. Niess, 46 How. Pr., 465; Hogan v. Brophy, 2 Code Rep., 77; Phelps v. Swan, 2 Sweeney, 696. Section 323 of the Code of Civil Procedure empowers the city court of New York to establish rules of practice therein, but limits the exercise of that power to rules which are not inconsistent with the provisions of the Code, or the general rules of practice established as prescribed by § 17 thereof, and though the rules of the city court of New York do not specifically authorize the dismissal of an appeal for failure to prosecute it with reasonable diligence, the order was nevertheless authorized by rule 41 of the general rules of practice applicable, as above stated, to the city court of New York and all other courts of record alike.

The order appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


author: Herrick, J.

text:
    William Moore, Pl’ff, v. Maria Moore, Def’t.

      (Supreme Court, Special Term, Albany County,

      Filed February 10, 1893.)

    1. DrvoEcn — Discontinuance.
    Where the marriage is not denied, the public has no such interest in the continuance of a divorce case as to justify a refusal of an application by the plaintiff to discontinue.

      3. Same.
    The fact that the wife’s character is aspersed hy the bringing of the action is no ground for denying a discontinuance, as the voluntary withdrawal of the suit is her best vindication.
    3. Samp, — Counsel fee.
    Upon the discontinuance of such an action the wife is not entitled to an allowance for counsel fee.
    Motion to discontinue action for divorce.

      Stedman, Thompson & Andrews, for pl’ff; R. A. Parmenter, for def’t.
   Herrick, J.

This is an application on the part of the plaintiff to discontinue, upon payment of the costs, an action for a divorce brought by him against his wife. The charge in the complaint is adultery. The marriage is admitted, the adultery denied, no countercharge is made. The defendant objects to the discontinuance, and insists upon a trial in open court that her character, assailed by the bringing of the action, may be vindicated. She also asks if the action be discontinued it be upon the condition that, in addition to the taxable costs, a counsel fee be paid. An application to discontinue an action is addressed to the legal, not the arbitrary discretion of the court, and to justify a refusal there must be some facts or reasons upon which that discretion can be based, and if there are none, then there is no room for discretion and the right to discontinue is absolute. “Ordinarily a suitor has a right to discontinue any action or proceeding commenced by him, and his reasons for so doing are of no concern to the court.” 101 N. Y., 309. But in divorce cases it has been held that the public has an interest, and although not parties to the record are parties in interest.

In Winans v. Winans, 124 N. Y., 140; 34 St. Rep., 850, the marriage was denied, and there was consequently a question of legitimacy; the situation of the parties there made the questions involved questions of public importance. Here there is no question rais.ed as to the marriage. No question but that the defendant is a wife and not a concubine. There is no question of legitimacy. The public undoubtedly has an interest in divorce cases ; it has an interest that families should not be broken up; that the marriage relation should not be improperly dissolved, but it has no interest in keeping such litigation alive, or in sundering the marriage ties, but rather the reverse; it seems to me that public policy requires the quiet and peaceable termination of such strife.

A portion of the public may have, some curiosity to know whether the defendant has had illicit intercourse with any one, but it is not a question of “ public interest ” in the legal meaning of these words.

The defendant’s contention that her character, aspersed by the bringing of the action, should be vindicated by a trial in open court, is not a valid contention. The plaintiff could not be compelled to proceed; all that the court could do would be to dismiss the plaintiff’s complaint for failure to proceed upon the case being reached in court.

Further than that, the plaintiff ought to realize that the less the question of a woman’s chastity is mooted, the better it is for her reputation; she ought never to bring before the public the fact that any question has ever been raised as to her virtue. The voluntary withdrawal of the suit is a confession of error; is her best vindication.

I can see no facts or reasons for refusing a discontinuance upon which discretion can operate, 101 M. Y., 310, and for that reason is. seems to me the plaintiff has a legal right to discontinue his action.

As to the terms upon which it should be discontinued; the plainiff offers to pay the costs, and I do not see that anything more can be imposed. While in actions for divorce costs are allowable in the discretion of the court, yet, that discretion is not as to the amount that shall be allowed, but as to whether any at all should be allowed, and thecourt having exercised its discretion and granted costs, the provisions of the Code determine the amount. It is true that in actions for divorce the court may, under certain circumstances, grant to the wife a counsel fee in order to enable her to properly defend herself when prosecuted. This case has been pending some months, she has made no application to the court for a counsel fee to enable her to protect herself, and now when she is no longer called upon to defend her rights there is no reason for the court exercising its discretion in that behalf. Indeed, I doubt whether there is now any foundation for the exercise of such discretion. It is a legal, not an arbitrary discretion, and is only to be exercised to enable a wife to properly prosecute or defend an action for divorce, and when there is no longer any occasion to defend there is no necessity for a counsel fee.

For these reasons the motion of the plaintiff to discontinue should be granted upon payment of the costs to be taxed.

Let an order be entered accordingly.


author: Van Brunt, P. J.

text:
    Henry M. Potter, App’lt, v. The United States National Bank et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Bill of particulars — Conspiracy.
    The complaint in this action alleged that plaintiff’s assignors were the holders of a large majority of the stock of a telegraph company; that they procured a loan from the defendant bank for which they pledged a portion of said stock and other stocks sufficient to secure said loan; that the defendants agreed, colluded and combined together to impair the value of the stock of said company, with intent to impair and destroy the credit . and business of said assignors and impair the market value of said stock, embarrassing the business and causing the destruction of said company; that in pursuance thereof said bank made an unwarranted call for said loan, and caused said stock to be sold at auction for less than its fair value; that the effect thereof was to impair and destroy the credit and business of_ plaintiff’s assignors and the credit and business of said company and to xuin said assignors; and demanded judgment for the difference between the market value of the stock and the loan, and for four million dollars damage sustained by reason of such fraudulent acts. Held, that in view of the allegations of the complaint a bill of particulars giving the nature and facts of the alleged collusion and conspiracy and how the sale of the securities caused the loss claimed was properly ordered.

      Appeal from order granting motion by defendant Logan C. Murray for a bill of particulars showing the alleged market value of each of the securities sold by the defendant bank at the time they were sold, the nature and facts of the alleged collusion and conspiracy and how the sale by said bank of securities of the par value of $65,000 eáused the alleged loss and damage of $4,000,000 to plaintiff’s assignors. The complaint alleged as follows:

      “ That on and before the 15th day of May, A. D. 1884, Anthony W. Dimock and Arthur Y. Dimock were copartners doing business as bankers and brokers at Mo. 2 Wall street, in the city of Mew York, under the firm name of A. W. Dimock & Co. That at the time aforesaid the said Anthony W. Dimock was the president, and said firm of A. W. Dimock & Co. was the principal stockholder of the Bankers’ & Merchants’ Telegraph Company, a corporation created and existing under the law of the state of Mew York, having a capital stock of $3,000,000, with auxiliary companies in the states of Massachusetts, Rhode Island, Connecticut, Mew Jersey, Pennsylvania, Maryland, Ohio, Indiana and Michigan, and also in the District of Columbia and elsewhere. That said Bankers’ & Merchants’ Telegraph Company had prior to said date expended in constructing its line of telegraph, in purchasing franchises and leases, in obtaining contracts, and in maintaining and improving its lines of telegraph, over $4,000,000, and had built up an extensive and prosperous telegr-aph business throughout the territory mentioned, and had become a powerful rival and competitor of the other telegraph companies of the country. That the said A. W. Dimock & Co. had invested in the stock and bonds of said Bankers’ & Merchants’ Telegraph Company over $3,000,000, and on said 15th day of May, A. D. 1884, were the owners and holders of 22,030 shares of said capital stock, of the par value of $100 per share, and of 970 of the bonds of said company of the denomination of $1,000 each; on which day the market price of said stock was about $119 per share, and the market price of said bonds about $800 each. That, owing to the relation between said Anthony W. Dimock and said firm of A. W. Dimock & Co. and said Bankers’ & Merchants’ Telegraph Company, any serious impairment of the financial condition and credit of said firm or of said A. W. Dimock individually, would almost necessarily correspondingly affect the credit and condition of said Bankers’ & Merchants’- Telegraph Company; that on and immediately prior to said 15th day of May, A. D. 1884, there existed a feverish and excited state of the market for stock, bonds and other securities in the city of Mew York, and of the public mind in regard to business, men, corporations and enterprises, by reason of which any circumstance calculated in any manner to affect injuriously the standing and credit of any person, firm or corporation was peculiarly likely and almost certain to have a disastrous effect upon such person or corporation ; that on the 15th day of April, 1884, said firm of A. W. Dimock & Go. had, in the ordinary course of its business, obtained from the defendant, the United States National Bank, a loan of $50,000, which, by its terms, fell due August 18, 1884, to secure which it had originally pledged to said bank 200 shares of the stock of said Bankers’ & Merchants’ Telegraph Company; 200 shares of the stock of the Delaware, Lackawanna & Western Bailroad Company; 200 shares of the stock of the Missouri Pacific Bailroad Company, and $15,000 of Central Iowa Bailroad Company, Illinois Division, first mortgage bonds; but afterwards, and before said 15th day of May, A. D. 1884, had, with the consent of said bank, substituted in place of said 200 shares of Missouri Pacific Bailroad stock $20,000 of the first mortgage bonds of the Ohio Southern Bail-road Company, so that on said last mentioned date said bank held as security as aforesaid all of said securities originally pledged except said Missouri Pacific Bailroad stock, together with said Ohio Southern Bailroad Company’s bonds, the market price and value of which stock and bonds so held was such on said last mentioned day that they constituted and were ample security for said loan of $50,000, and there was no ground or warrant whatever for the call or termination of said loan, or the appropriation or sale by said bank of said stocks or bonds, or any of them, pledged to said bank as aforesaid ; that all the facts and circumstances hereinbefore stated and set forth were well known to all of the said defendants, the said United States National Bank, Logan C. Murray, Evan C. Sherman, and John J. McCook, on and before said 15th day of May, A. D. 1884. That, nevertheless, the said defendants, the United States National Bank, Logan C. Murray, Evan Gr. Sherman, and John J. McCook, on or about said last mentioned date, well knowing all the facts aforesaid, and especially well knowing the probable effect of a forced and public sale of said stocks and bonds so pledged as security for said loan upon the credit, standing and business of said firm of A. W. Dimock & Co., and of said Bankers’ & Merchants’ Telegraph Company, and with the intent and for the purpose of impairing and destroying the credit, standing and business of said firm, and of impairing the market value of the stock and bonds of said Bankers’ & Merchants’ Telegraph Company, of embarrassing its business operations, and of causing its final destruction, maliciously and illegally agreed, colluded and combined with each other and with certain other persons, whose names the plaintiff cannot at present ascertain, to cause, under pretext of an unwarranted call and demand of payment of said loan of fifty thousand dollars by said bank, the public sale and sacrifice of said stocks and bonds so held by said bank, the depreciation of the market value of the same and of the stock and bonds of said Bankers’ & Merchants’ Telegraph Company, the embarrassment of its operation and final destruction and the financial ruin of said firm of A. W. Dimock & Co. That in fact, in pursuance of said malicious and illegal agreement and combination, the said bank did, on or about said last mentioned date, call and demand payment of said loan of fifty thousand dollars, and threatened to sell said stock and bonds of said firm, and did, under the false, unfounded and fraudulent pretext aforesaid, cause said stocks and bonds to be publicly sold at auction, thereby causing said stocks and bonds to be sacrificed for less than their fair value, and impairing the market value of the stocks and bonds of said Bankers’ & Merchants’ Telegraph Company. That the effect of said wrongful, illegal and fraudulent acts of said defendants has, in fact, been not only to cause loss and damage to said firm of A. W. Dimock & Co., by the sacrifice of said stocks and bonds so pledged as security for said loan, but to impair and finally destroy its credit and business, and the credit and business of said Bankers’ & Merchants' Telegraph Company, and the market value of the stock and bonds of the latter, and to ruin said firm of A.-W. Dimock & Co., and cause the permanent suspension of its business. That the fair market value of said stocks and bonds so pledged to said bank was, at the time when they were so sold, not less than $63,800, and said firm of A. W. Dimock & Co. were and are entitled to an accounting by said bank for the difference between that sum and the amount of said loan of $50,000, while the loss of said firm by reason of the impairment, in the manner and by the means aforesaid, of the market value of the stock and bonds of said Bankers’ & Merchants’ Telegraph Company was not less than $3,688,360, and the total loss and damage of said firm caused by the wrongful acts of said defendants was not less than $4,000,000. The said wrongful, illegal and fraudulent agreement, combination and conspiracy between said defendants and others was wholly unknown to said firm, and to each member thereof, on said 15th day of May, A. D., 1884, and was not discovered by either of them until on or about the 28th day of June, A. D. 1890. That on or about the 4th day of June, A. D. 1891, the said Arthur Y. Dimock, by an instrument in writing under seal, and for a valuable and sufficient consideration, duly assigned and transferred all his claim and right of action growing out of the matters hereinbefore set forth to said Anthony W. Dimoclc, and afterwards, and on the same day, said Anthony W. Dimock, by an instrument in writing under seal, and for valuable consideration, assigned all the claim and right of action then held by him, said Anthony W. Dimock, to the plaintiff in this action, who is now the lawful owner and holder thereof. Wherefore the said plaintiff prays that said defendants, and each of them, be required to answer specifically, explicitly, and in detail, all and singular the allegations of this complaint, setting forth the part taken by each of them in each and every of the acts and transactions therein set forth, described or mentioned ; that the facts in regard to each and every of said acts and transactions, and the loss and damage sustained by said assignors of the said plaintiff by reason thereof, be inquired of and ascertained by a referee to be appointed by the court, or by such other means as the court may direct; that said United States ISTational Bank be required to account to the plaintiff for the difference between' the market value of said stocks and bonds so pledged to it as security for said loan, being the sum of $13,800, together with interest thereon from said 15th day of May, A. D. 1884; and that plaintiff have judgment against said defendants for $4,000,000, the amount of the loss and damage sustained by said assignors by reason of the wrongful, illegal, and fraudulent acts and doings of said defendants hereinbefore set forth and complained of, with such other relief as may be just and proper in the premises, including the costs of this action.”

      John G. Ritter (B. C. Chetwood, of counsel), for app’lt; G. H. Yeaman, for resp’t.
   Van Brunt, P. J.

In view of the extraordinary character of the complaint in this action we do not think that.the discretion of the court was abused in granting the motion for a bill of particulars. The order should be affirmed, with ten dollars costs and disbursements.

O’Brien and Follett, JJ., concur.


author: Per Curiam.

text:
    The Globe Sewer Pipe Co., App’lt, v. Ira L. Otis et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    Corporations — Stock subscription — Defense.
    Where the articles of incorporation of a company - recite that it- was formed for a purpose which is legal, it is not competent for a subscriber for stock, when sued on his subscription, to show, by way of defense, that it was orally agreed between the promoters that it was organized for another and illegal purpose, and that this relieves him from his contract and agreement to pay his subscription.
    Appeal from order denying plaintiff’s motion for a new trial, a verdict having been directed for the defendants in an action to enforce the payment of stock subscription.

      Rush Taggart (Robert W. Taylor, of counsel), for app’lt; Martin & Smith (George A. Strong, of counsel), for resp’ts.
   Per Curiam.

This action was brought by plaintiff, a corporation of the state of Ohio, to recover the amount of defendants’ subscription to the stock of the company. The two principal defenses relied upon were that plaintiff had been organized for the unlawful purposes of unduly enhancing prices, controlling and regulating production, and therefore in restraint of trade ; second, that the contract of subscription had been cancelled, which relieved defendants from their obligation to pay the amount thereof. ' At the close of the case, on motion, a direction of a verdict in defendants’ favor was granted, upon the ground that the plaintiff’s organization was unlawful, and that it tended to créate a monopoly ; the testimony tending to show that it was organized for the purposes of controlling and raising prices, of controlling production and output, and of preventing competition in business. Such purposes, the learned trial judge held in directing the verdict, vitiated the corporate organization itself, rendering it impossible for such a corporation, with its inherent illegality, “ to enforce contracts made in aid of its avowedly illegal objects and purposes.” The articles of incorporation recite that the corporation was organized for a legal purpose, viz., “ for the purpose of manufacturing, mining, transporting and dealing in clay and its products, coal, minerals and other commodities.” Upon these facts, the question is presented as to whether it is competent, in an action brought by the corporation to recover the amount of a subscription to its capital stock, for a subscriber to show, by way of defense, that it was orally agreed between the promoters that it was organized for another, a different and illegal, purpose, and that this relieves him from his contract and agreement to pay his subscription. This question has been considered, upon facts presenting the same point, in United States Vinegar Co. v. Schlegel, 51 St. Rep., 453 (herewith handed down).

We regard that case as controlling in principle, and for the reasons therein given the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

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


author: O’Brien, J.

text:
    John R. Phillips, Rec’r, App’lt, v. The Mercantile National Bank of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Bills and notes — Checks to order of fictitious person.
    Checks drawn by the cashier of a bank to the order of fictitious persons, and indorsed by him, are, in effect, payable to bearer, and if presented to a second bank, and paid out of the funds of the first, the latter cannot compel repayment.
    2. Same.
    The fact that there was a resemblance between the names of the payees inserted in checks and indorsed thereon by the cashier to those of customers of the bank, where it was not intended that such persons should become parties to the paper, does not vary the rule applicable to paper drawn in the name of fictitious payees.
    Appeal from judgment dismissing the complaint.
    The action is brought by the receiver of the National Bank of Sumpter, S. C., to recover, with interest, $20,326.77, an alleged balance due on its deposit account with the defendant, and also to recover $212.78, alleged to have been paid by the receiver to the defendant as dividends by mistake of fact. The answer alleges the payment of the amount claimed upon thirteen checks, duly drawn by the National Bank of Sumpter, their dates ranging between January 25, 1886, and January 31, 1887; and, as a second defense, a stated and settled account between the Sumpter bank and the defendant after the payment of all such checks, and their return to the Sumpter bank, and that on such account there was due to the defendant $265.98, which the defendant filed in proof with the receiver. The plaintiff, as receiver, allowed the same, and paid to the defendant on account thereof the amounts alleged as dividends in the complaint. The subject-matter of the controversy is twelve of the thirteen checks mentioned in the answer; one of the checks, namely, that of December 10, 1886,for $5,125.25, having been withdrawn from the plaintiff’s claim.
    It appears from the evidence that on Monday, August 22,1887, the National Bank of Sumpter was compelled to suspend payment on account of insolvency, its cashier, C. E. Bartlett, having absconded the Saturday night previous ; and on August 24th the plaintiff was appointed receiver, and assumed charge of the bank as such about the 5th or 6th of September, 1887; that shortly thereafter the defendant made a claim against the Sumpter bank for an overdraft of $265.98, and that $212.78 was paid on said claim. Four or five months after the cashier’s flight the checks referred to were discovered in the bank, drawn by Bartlett as cashier upon the defendant, seven to the order of Á. S. Brown, and six to the order of G. E. Stubbs, who, it appears, were residents of Sumpter, and customers of the defunct bank. Bartlett would enter on the stubs of these checks the date, name of the payee, and the amount, sometimes the same as the check, and sometimes only a tenth of the same. After these were posted into the ledger by the bookkeeper, Bartlett altered the entries in the stubs and in the ledger, in the case of the false accounts by adding a figure, to make them correspond with the checks actually drawn. These checks were all indorsed “ Pay to the order of Gumming & Russell,” or “E. A. Bigelow & Co.,” or, “Latham, Alexander & Co.,” and the name of the payee, “C. E. Stubbs” or “A. S. Brown,” which indorsements it was stipulated between the parties were made by Bartlett; both Stubbs and Brown testifying that the indorsements were not made by them, but were fair imitations of their handwriting, and were made without their knowledge or authority, and that the first either of them saw of the checks was some months after the cashier’s flight. Bartlett would then forward the checks to the indorsees, who indorsed them “ for deposit,” and deposited them in their bank, which indorsed and collected them from the defendant, and the latter in turn charged them to the Sumpter bank and returned the vouchers. At the close of plaintiff’s case, upon motion of defendant’s counsel the trial judge dismissed the complaint, rendering an oral decision, and from the judgment entered thereupon this appeal is taken.

      Wingate & Cullen (George W. Wingate, of counsel), for app’lt; Charles A. Davison (John H. Bowers, of counsel), for resp’t.
   O’Brien, J.

The question thus presented is, as stated by the learned trial judge, was the Sumpter bank bound by the act of its cashier in drawing the checks and indorsing them, and putting them in circulation so indorsed ? It may serve us in reaching a conclusion upon this question, if we first determine what would have been the position of the Sumpter bank, assuming that the checks had been drawn directly to the order of Gumming & Bussell, or E. A. Bigelow & Co., or Latham, Alexander & Go., through whom they were presented to the defendant. It was the duty and within the scope of the authority of the cashier to draw bills or checks; and, though he had drawn them for his own purposes, intending to defraud his bank, no question could arise but that” the payment of such checks, properly indorsed, out of the funds of the Sumpter bank in the hands of the defendant, would be a good payment, unless there was something in the transaction tending to put the receiver of the checks upon inquiry. Again, if we assume that the names of the payees subsequently indorsed on the checks were fictitious names, knowingly made by the cashier, and indorsed by him, this would, in effect, be the same as though the bill or check was payable to bearer; and if, as in this case, subsequently indorsed and pi esented to defendant, and paid out of funds of the plaintiff, the latter could not compel a repayment. Whether another and different rule is to be applied has been narrowed down to, and necessarily depends upon, the circumstance that the names of the payees which were indorsed on the checks were similar to names borne by customers of the bank. The facts are susceptible, of course, of but one inference, that at the time these names were inserted by the cashier he had no idea of delivering the checks to them; nor were their names used for any purpose other than to ward off the suspicion which might otherwise arise, or the discovery which might follow an examination by other officers of the bank, if checks were drawn in names that were strange to such officers. The purpose in drawing the checks was to place them in the hands of the three firms to whom, after indorsing them, the cashier sent them. In other words, the object of the drawer was to put the drafts in circulation with the names of the payees indorsed upon them ; and whether such payees were purely fictitious, or were similar to the names of persons whom the cashier may have known and used, instead of creating new ones, does not seem to us to change the principle that should be applicable upon the facts presented. As said in Daniel on Negotiable Instruments, 4th ed., § 140 : “If the bill or note is payable to some person who has no interest in it, and was not intended to be á party to it, whether such person is or is not known to exist, thé payee may be deemed fictitious.” And the same author continues : “ But if it be payable to some person known at the time to exist and present to the mind of the drawer when he made it as the party to whose order it was to be paid, the genuine indorsement of such payee is necessary in order to a recovery thereon by an indorsee, even though he had no interest in it, and the drawer knew that fact”

As stated by the learned trial judge:

“ Bartlett, as cashier, was authorized to draw the bills. That was within his power. * * * When he drew the draft, he acted as cashier.” And again: “ The intent of the cashier was the intent of his bank; that is, so far as the New York bank was concerned.” That these views are correct must be apparent from a consideration of the relation of the person drawing the checks to the bank, and the principle applicable thereto, which must obtain, that his act was the act of the bank. Having authority, therefore, to put in circulation the checks, the bank cannot escape liability because, in putting such checks or bills in circulation with the names of the payees indorsed upon them, he adopted, with a view to allay the suspicion of the bank’s officers, the device of selecting names which were similar to those of persons with whom such officers were acquainted. Much stress is placed by appellant upon the case of Shipman v. Bank S. N. Y., 126 N. Y., 318; 37 St. Rep., 376.

That was a case of forgeries by a trusted clerk of principals, who delivered to him checks which they had intended to draw to actual payees, but through the fraud and connivance of the clerk were drawn to payees some of whom were real and some fictitious. It was therein held that negotiable paper, the payee of which does not represent a real person, cannot be treated as payable to bearer unless the paper was put into circulation by the maker with knowledge that the name of the payee does not represent a real person; and in the course of the opinion the court says: “The maker’s intention is the controlling consideration which determines the character of such paper. It cannot be treated as payable to bearer unless the maker knows the payee to be fictitious, and actually intends to make the paper payable to a fictitious person.”

The distinction thus presented between the two cases, we think, is clear. In the case cited the principals did not put paper in circulation with knowledge' that the name of the payee did not represent a real person; whereas, in the case at bar, the bank, through its authorized officer, put in circulation paper with knowledge on the part of the drawer, and with intent to indorse .thereon the names of payees who, for all intents and purposes, were fictitious payees, adopted and resorted to as a device to avert suspicion. A case which has been frequently referred to, and which we think more like this in principle, is that of Hortsman v. Henshaw, 11 How., U.S, 183, which was a case where a bill of exchange had upon it the forged indorsement of the payees, but it-had been put into circulation by the drawers with such forged indorsement already upon it, and it was purchased in the market by a bona fide holder, who presented it to the drawee, who accepted and paid it at maturity, and then the drawers failed. In that case it was held that the drawee could not recover back the money which he had paid to the bona fide holder; and the reason, among others stated by the court in the opinion, was that “ the bill was put in circulation by the drawers with the names of the payees indorsed upon it; and by so doing they must be understood as affirming that the indorsement is in the handwriting of the payees, or written by their authority. And if the drawee had dishonored the bill, the indorser would undoubtedly have been entitled to recover from the drawers, and the drawers must be equally liable to the acceptor who paid the bill; for, having admitted the handwriting of the payees, and precluded themselves from disputing it, the bill was paid by the acceptor to .the persons authorized to receive the money according to the drawers’ own order.”

And it was further said that the English cases most analogous to this are those in which the names of the drawers or payees were fictitious, and the indorsement written by the maker of the bill. So we say that the cases most analogous to the one at bar, and the principles most nearly applicable, are those involving fictitious drawers and payees. In other words, we think that the circumstance that there was a resemblance between the names of the payees used to those of persons who were known to Bartlett, where it was not intended that such persons should become parties in any way to the paper, does not vary the rule or principle which would be applicable if, instead of using such names, he had used those which were purely fictitious. We are of opinion, therefore, that the judgment appealed from should be affirmed, with costs and disbursements.

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


text:
    William J. Pollock, App’lt, v. Richard M. Hooley et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 17, 1893.)

    1. Powers — Presumptive execution oe.
    1 Revised Statutes, 737, § 124, providing that “ every instrument executed by the grantee of a power conveying an estate or creating a charge which such grantee would have no right to convey or create unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein,” refers only to those cases where the grantee executes the instrument, but nowhere refers to the source from which he claims to derive the authority so to do, and does not apply to cases where the instrument shows that he had no intentention of exercising the power.
    2. Executors and administrators — Execution op power op sale — Prior PEED EXECUTED UNDER VOID ORDER OP COURT.
    Where an executor has executed a deed of certain premises under an order of the court, which was a nullity, he may afterwards convey the premises to the grantee by virtue of a power of sale given him by will, of which he was ignorant when he executed the first instrument.
    3. Same.
    Where a general power of sale is conferred on executora at the end of a will, it will not be restricted to the property which passes by the residuary clause, simply because the clause conferring such power is nearer situated to the residuary clause than to another.
    4. Same — Qualification of executor under foreign will.
    There being no provision for the issuing of letters testamentary in § 2703 of the Code, which provides that an authenticated copy of a will of real property situated in this state,probated in another state, may be filed in the office of the surrogate in which the land lies, and be presumptive evidence of the will, the question whether an executor of such a will, filed here, has qualified to exercise a power of sale therein given him, is to be determined by what has been done at the place of probate.
    5. Same.
    A general power of sale, conferred on executors by a will is a personal trusR conferred on them in a capacity distinctly different from their duty as executors, so that their right to convey depends on the will itself, and not upon the issue of letters testamentary in the state of New York, where the will was probated in another state.
    Appeal by the plaintiff from a judgment of non-suit entered upon the report of a referee in an action upon contract.

      Marcus T. Hun, for app’lt; H. R. Beekman, for resp’ts.
   Van Brunt, P. J.

This action was brought for the enforcement of a contract between the plaintiff and Richard M. Hooley, one of the defendants, by which the parties agreed to exchange certain property in the city of New York; the defendant having refused to accept the deed tendered by the plaintiff upon the ground that the title of the executant of the deed to the premises was not a marketable title, because of the want of power of one Jacob R Shotwell, as surviving executor of one Lucy H. Eddy, deceased, to convey the title to said premises which was vested in said Eddy at the time of her decease.

The action was referred, and the facts appearing upon the trial seem to be as follows : The said Lucy H. Eddy, a resident of Rahway, in the state of New Jersey, died seised and possessed of the premises in question in March, 1879,' leaving a last will and testament, and codicil thereto, which were duly admitted to probate in the probate court at Trenton, N. J., and letters testamentary were issued to said Shotwell, who at the time of the conveyances hereinafter mentioned was the sole surviving executor named in said will. Subsequently a copy thereof, duly authenticated as required by law, was recorded in the office of the surrogate of the county of New York, but no letters testamentary were ever issued to said Shotwell by said surrogate’s court. By said will the said Lucy H. Eddy directed all her debts, etc., to be paid by her executors as soon as possible after her decease. She then gave and devised to her executors, the survivors and survivor of them, her store and lot of ground known as “No. 70 South street,” the premises in question, in trust during the lives of L. A. Pollock, wife of W. J. Pollock, and Eddy Shipley; that they should rent the same, and after paying taxes and other charges thereon, to apply the net rents to the use of said L. A. Pollock and Eddy Shipley during their joint lives; and on the death of either of them, leaving the other surviving, and without leaving issue, the whole of said net rents to be applied to such survivor for life, but if leaving issue surviving, then half of the net rents to be applied to the use of such issue ; and upon the death of the survivor, then upon the further" trust that .said executors, or the survivor of them, should convey the said store and lot of land to the lawful issue of said L. A. Pollock and Eddy Shipley per stirpes, in equal shares, or to the lawful issue of such one of them as shall have died leaving lawful issue surviving; but if they should leave no lawful issue them surviving, then in trust to convey the same to the trustees of the Rahway Library Association. The testatrix then bequeathed various sums of money to various persons and corporations, and also provided that if, for any reason, any of the devises or bequests should lapse or fail to vest, then every such devise and bequest should revert to, and form part of her residuary estate. The testatrix then devised certain interests in certain other property to Louis Pollock and disposed of all the rest and residue of her property, both real and personal, whatsoever and wheresoever, to certain persons named in the residuary clause; and by the last clause she appointed four persons, and the survivors and survivor of them, executors of her last will and testament, with full power to sell and convey all her real estate in such manner, and upon such terms, as they might think proper. The testatrix subsequently executed a codicil for this will, which does not bear upon the questions involved in this action. Said Shotwell having executed a written contract with reference to the purchase of the premises in question with one Haynes, in June, 1887, presented to the supreme court of the state of New York, at a special term thereof, his verified petition, asking for an order authorizing him to make sale of the property, No. 70 South street, and to hold the proceeds thereof under the trusts mentioned in said will; and such proceedings were thereupon had that art order was made by the court granting the prayer of the petition. In January, 1888, the said Shotwell, as sole surviving executor and trustee under the last will" and testament of Lucy H. Eddy, deceased, attempted to convey the premises in question, by virtue of the authority conferred upon him by the order of the supreme-court, to said Haynes, and received the consideration named in said deed, namely, $32,500. It having been ascertained that the proceedings taken by the surviving executor were ineffective to confer the power upon him to make the sale attempted to be made to Haynes, said executor, claiming to act under the power of sale conferred by said will, executed a further deed in confirmation and support of the title which he had thus attempted to convey. The learned referee, holding that no authority to convey was conferred by the proceedings of the supreme court, and that, as far as the premises in question are concerned, no power of sale-was contained in the will; and if there was such a power therein contained, there was no valid exercise of such power, dismissed the plaintiff’s complaint, and from the judgment thereupon entered this appeal is taken.

It is conceded upon the argument of this appeal that the proceedings in the supreme court, under the authority of which the executor claimed to have executed the first deed, were a mere nullity. But it is claimed that the deed, given in January, 1888, which recited that it was given in pursuance of the authority conferred by the supreme court, was a valid execution of the power of sale, the claim being based upon the statute, 1 Rev. St, 737, § 124, which reads as follows :

“ Every instrument executed by the grantee of a power, conveying an estate or creating a charge which such grantee would have no right to convey or create unless by virtue of his power, shall be deemed a valid execution of the power, although such power be not recited or referred to therein.”

This claim we do not think to be well founded, but that the statute refers only to those Cases where the grantee executes the instrument, but nowhere refers to the source from which he claims to derive the authority so to do. In a case where a person, in an instrument, expressly states that he proposes to execute a certain power, which he believes to have been given him, and has no-intention of executing another power, which he does not believe-he possesses, it does not seem to us that the statute will hold the instrument executed to bean exercise of a power which the maker of the instrument did not believe he possessed, and had no intention of exercising, as is shown by the instrument itself.

But the question as to the subsequent deed executed by the executor, wherein he purported to exercise the power of sale conferred upon him by the will, stands upon a different basis, and seems to us to be a valid exercise of such power, if such power was conferred. The executor had received the consideration itioney for the premises. He was under obligation to convey by his written contract, and hence could have been compelled, by the person to whom he had attempted to convey, to fulfill his contract, and execute the power of sale, and convey the premises, even though he had not attempted to do so by reason of the proceedings taken in the supreme court. The mere fact that such proceedings had been taken, and it had been erroneously believed that the power to convey had been thereby conferred, in no manner affected the power of the surviving executor to contract for the sale of the property, or to convey the same, if a power of sale had been conferred upon him by the will. The learned referee came to the conclusion that there was no title conveyed by this attempted exercise of the power of sale, because no such power was conferred upon the executor by the will; the power of sale therein referred to being only given to him for the purposes of conversion, and with a view to the distribution of the proceeds of the sale of the realty among the several residuary legatees, and that the premises in question being specifically devised in trust, and there being no necessity for exercising the power of sale upon this property for the purposes of distribution, no right to the exercise of the power existed, citing as authorities Morse v. Morse, 85 N. Y., 59, and Fisher v. Banta, 66 id, 468. An examination of those cases will show that they differ very materially from the case at bar.

In the case of Fisher v. Banta, by a codicil to the will, the testator directed his executors to sell all his real estate; and it was held, in an action for the construction of the will, that, there being no purpose for the sale expressed in the codicil, the fair inference was that it was for the purposes of division, the executors being directed to divide his real estate equally between the sons of the testator. In the Morse case it was held that the power of sale in the will in question was conferred for the purposes of conversion, although not so expressly declared, and this arises from the fact that the executors were required to pay over one sixth of his residuary estate to a trustee, which they could only do by making a division. But in the will in the case at bar there is no direction to divide, no share to be taken out, and nothing which can possibly indicate that the power of sale was to apply to the residuary estate, and not to the other real estate of which the testatrix died seised, except the single fact that in the drawing of the instrument the clause conferring the power of sale is more nearly situated to the residuary clause than to the clause creating the trust which has been spoken of. By the second clause of the will the real estate composing the trust is devised to the executors upon the trusts therein named. By the seventh clause, all the rest and residue of the testatrix’ estate is devised and bequeathed to certain individuals named, with a provision at the end of the clause that, if either of the legatees should not be living at the time of the decease of the testatrix, the share they would have had if living should desend to and vest in their children per stirpes ; and then, in a separate clause, the executors were appointed, and the power of sale conferred. There is no intimation, as already stated, of any idea of division by the executors. The devise of the residuary estate is as direct to the residuary legatees as it possibly could be, and at the very end of the will is given a general power of sale. Now, it was undoubtedly the intention of the testatrix that that power of sale should apply to all her real estate, to be exercised in case any unforeseen contingency might arise. She evidently intended that the residuary devisees should take her real estate under the will, because she talks about the share of a deceased residuary devisee descending to his children ; and to hold that the power of sale only applies to the residuary estate seems to be restricting it in a manner which the testatrix has not only not provided for, but probably did not contemplate

It may be urged that, in the clause creating the trust, there is a provision that upon the termination of the trust the trustees shall convey the property devised in trust to the ultimate beneficiaries. But, in respect to the property devised to the residuary legatees there is no provision whatever for the title vesting in the executors for any purpose whatever, but a mere naked power is conferred upon them. In the one case, they take the title to the property. In the other, they are mere donees of a power. And one would think, if a power of sale was intended to apply to one class of property, rather than the other, it would be that property the title of which was vested in them, rather than to property the title to which it was the apparent intention of the testatrix to confer directly upon the beneficiaries by will.

But it is further urged upon the part of the respondent that Shotwell had no right to act as executor in the exercise of the power of sale conferred by the will over real estate situated in this state. It might be sufficient, in answer to this suggestion, to call attention to the fact that, although there is a provision for the issuing of ancillary letters testamentary in this state in the cases of wills of personal property which have been admitted to probate in other countries, no such provision is made in respect to wills of real property situated within this state.

Section 2703 of the Code provides that where real property situated within the state, or an interest therein, is devised or made subject to a power of disposition by a will, duly executed in conformity with the laws of this state, of a person who was at the time of his death a resident elsewhere within the United States, and such will has been admitted to probate within the state or territory where the decedent so resided, and is filed or recorded in the proper office, as prescribed by the laws of that state or territory, a copy of such will, or of the record thereof, and of the proofs or of the record thereof, authenicated as prescribed by this article, may be recorded in the office of the surrogate of the county of this state where such real property is situated; and such record in the office of such surrogate, or an exemplified copy thereof, shall be presumptive evidence of such will, and of the execution thereof, in any action or special proceeding relating to such real property. There is no provision for the issuing of letters testamentary upon such a will, it evidently being the intention of the legislature that the existence of the power should be evidenced by the record here; and whether the donee of the power had qualified himself to exercise it was to be determined by what has been done at the place of the probate of the will. But, even if this were not so, we think that the surviving executor had the power to execute this power of sale. It would seem that this power was not conferred upon the executors named in the will virtute officii, but that it was a personal trust, and such power was given them in a capacity distinctly different from their duty as executoi's; and therefore their right to convey under the power of sale depended upon the will itself, and not upon the issuing of letters testamentary in the state of New York. This principle is recognized in the case of Mott v. Ackerman, 92 N. Y., 539. It was there held that where the power granted, or the duty involved, implied a personal confidence reposed in the individual, over and beyond what is ordinarily implied by the selection of an executor, the power and duty are not those of an executor virtute offiicii, and do not pass to an administrator with the will annexed. In the case at bar the power of sale was conferred upon these individuals as individuals, and not as executors, and a discretion was reposed in them which could be exercised by nobody else. It therefore would seem that, by the conveyances executed by the surviving executor, a complete title was vested in the grantee in those deeds.

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

O’Brien and Lawrence, JJ., concur.


text:
    James Crawford, Trustee, etc., App’lt, v. Alfred B. Price, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    Case — Appeal.
    Where the case on appeal is not certified and the papers do not show that the parties have stipulated in writing that the papers are copies of the judgment roll and case, the appeal is improperly on the calendar, and should he stricken therefrom.
    Appeal from judgment dismissing the complaint on the merits. Edward W. Brenen (Riley & Miner, of counsel), for app’lt; Austin E. Pressinger, for resp’t.
   Per Curiam.

It appearing that the case has not been certified, and the papers not showing that the parties have stipulated in writing that the papers are copies of the judgment roll and ease, this appeal was improperly upon the calendar, and should be stricken therefrom.

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


author: Sedgwick, Ch. J.

text:
    Maria L. Collins, Pl’ff., v. James A. Jewell, Resp’t.

      (New York Superior Court, General Term,

      Filed April 4, 1893.)

    Abatement and reytvor — Security for costs.
    Where the cause of action survives the death of the plaintiff and the delay of the executor in moving is not great and is not shown to be injurious to defendant, his right to revive ana continue the action should not be conditioned upon giving security for costs.
    The motion was by John Collins for leave to revive and continue this action in the name of John Collins, as executor, etc. The order made was, that the motion be granted upon condition that within ten days after, etc., the said Collin& pay into this court the sum of $250, to be applied to the payment of the costs, etc., or at his election file, etc., an undertaking to the effect that he will pay on demand to the defendant all costs of the plaintiff, not exceeding $250; otherwise the motion is denied.

      A. M. Card, for app’lt; Thomas E. Stewart, for resp’t.
   Sedgwick, Ch. J.

The cause of action stated in the complaint has survived the death of the plaintiff. It is not an equitable action. It is one at common law.

Whether motions of this kind must be granted rests in the discretion of the court, when certain facts are shown; the facts of the case do not justify the denial of the motion. That the cause of action may seem unmeritorious is not of weight on the motion. That is to be determined by a trial. That the action has been for many years delayed to the time of death of plaintiff, on the 7th January, 1892, cannot be considered. The defendant could, if the delay were not justified, have procured a dismissal of the action. Ño effects from the delay could reach the executor. The delay of the executor is not great, and has not been shown to be injurious to defendant. This being the case, I do not think the application should have been denied except upon condition that he give security for costs. Ño reasons having been shown why the executor should not be allowed to continue the action, a condition of his doing so should not have been imposed.

Order reversed and motion below granted, with costs of appeal.

Gildersleeve, J., concurs.


text:
    Court of Appeals.
    Filed February 28, 1893.
    Alfred Roe et al., Ex’rs, Resp’ts, v. Caroline A. Strong et al., App’lts.

      John J. Macklin, for resp’ts; A. A. Spear, for app’lts.
   Judgment affirmed, with costs, on authority of previous opinion of this court, 119 N. Y., 316; 29 St. Rep., 504, and upon the opinion rendered below at special term; the difficulty suggested with respect to the boundaries in the Brewster-Seaton deed is to be satisfactorily resolved, upon careful consideration, in the way suggested by Judge Bartlett. All concur.


text:
    Julia Meneke, Resp’t, v. The Manhattan R. Co., App’lt.

      Geo. J. Greenfield, for resp’t; Samuel Blythe Rogers, for app'lt.
   Judgment affirmed, with costs. All concur, except Finch and Gray, JJ„, dissenting.

Affirming 42 St. Rep., 957.


text:
    Fannie Grossman, Resp’t, v. Cortland H. Dodd, Treasr., App’lt.

      Henry Yonge, for resp’t; John L. Hill, for app’lt.
   Judgment affirmed, with costs, on opinions below. All concur.

Affirming 43 St. Rep., 375.


text:
    Vincent A. Witcher, Resp’t, v. Gilbert E. Jones, Treasr., App’lt.

      Samuel B. Paul, for resp’t; B. F. Einstein, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 43 St. Rep., 151.


text:
    The People ex rel. Jos. Cauffman et al., Resp’ts, v. John Van Buren et al., App’lts.
   No papers.

Motion for re-argument denied, with costs.

See 49 St. Rep., 378.


text:
    Filed March 7, 1893.
    Baldwin’s Bank of Penn Yan, Resp’t, v. Wm. T. Morris, Impl’d, App’lt.
    Motion to withdraw and dismiss appeal.

      Wm. T. Morris, for motion; M. A. Leary, opposed.
   Permission granted to withdraw appeal upon payment of costs in this court, not to include argument fee.

See 42 St. Rep., 585.


text:
    James A. Platt, Resp’t, v. A. H. & G. B. Mickle. Lizzie Mickle, App’lt.
   No papers.

Motion for reargument denied, ten dollars costs.

See 50 St. Rep. 191.


text:
    In the Matter of the Collateral Inheritance Tax of Estate of James T. Swift.
   No papers.

Motion for reargument denied, ten dollars costs.

See 50 St. Rep., 81.


text:
    Annette B. W. Wetmore, Resp’t, v. Wm. B. Wetmore, App’lt.
   No papers.

Motion to dismiss denied, ten dollars costs.

See 49 St. Rep., 916.


text:
    Wm. W. Armfield, Resp’t, v. The Town of Solon, App’lt. Geo. H. Beattys, Resp’t, v. The Town of Solon, App’lt.
   No papers.

Motion for reargument denied, with costs.

See 49 St. Rep., 847, 848.


text:
    Somerville P. Tuck, Resp’t, v. Jerome F. Manning. Henry Amy, App’lt.
   No papers.

Motion to restore case to calendar granted, without costs.

See 44 St. Rep., 391,


text:
    Filed March 14, 1893.
    In the Matter of the Application of The Taylor Iron & Steel Co., App’lt, v. Cecil Campbell Higgins, Attorney, etc., Resp’t.

      Win. P. Fisher, Jr., for app’lt; Cecil Campbell Higgins, resp’t in person.
   Appeal dismissed, with costs All concur.

See 49 St. Rep., 645.


text:
    The People, Resp’ts, v. The New York City Central Underground Railway Co. et al., App’lts.

      David J. Dean, for resp’ts; Edward Winslow Paige and George Hoadly, for app’lts.
   Order affirmed on opinions below, with costs, with leave to defendants to file answer within twenty days after notice of entry of judgment, upon payment of all costs subsequent to the notice of demurrer. All concur.

Affirming 50 St. Rep., 454.


text:
    Patrick Cassidy et al., Resp’ts, v. Joseph McFarland et al., App’lts.

      Thos. C. Ennever, for resp'ts; George A. Stearns, for app’lts.
   Order affirmed, with costs. All concur.

Affirming 50 St. Rep., 199.


text:
    The South Publishing Co., Resp’t, v. The Fire Association of Philadelphia, App’lt.

      Wm. Henry Arnoux, for resp’t; Michael H. Cardozo, for app’lt.
   Order affirmed, with costs, on opinion of Follett, J., below. All concur.

Affirming 50 St. Rep., 29.


author: Per Curian.

text:
    Annie I. Dawson, Trustee of Burrett S. Dawson, et al., Resp’ts, v. John D. Parsons, Impl’d, App’lt.
    Appeal from order of the supreme court, general term, third department, affirming orders restraining defendant fiom using, selling or disposing of partnership property, and appointing a receiver.

      Matthew Hale and Charles J. Buchanan, for app’lt; Edward J. Meegan and Jacob H. Clute, for resp’ts.
   Per Curian.

The court at special term had power and jurisdiction upon the facts appearing to appoint the receiver, and its order made in the exercise of its discretion is not re viewable here.

The appeal should be dismissed, with costs. * All concur.

See 46 St. Rep., 721; 49 id., 916.


text:
    Filed March 21, 1893.
    Wm. G. Slater et al., Resp’ts, v. Hannah McGuire, App’lt.

      Daniel Haight, for resp’ts; Norman A. Lawlor, for app’lt.
   Order affirmed and judgment absolute ordered for plaintiffs on stipulation, with costs. All concur.

Affirming 42 St. Rep., 2


text:
    Deyoe Lohnas, Resp’t, v. Wm. T. Arkell, App’lt.

      Adalbert E. Carroll, for resp’t, T. F. Hamilton, for app’lt.
   Judgment affirmed, with costs, on opinions at general term. All concur.

Affirming 42 St. Rep., 573.


text:
    Wm. M. Martin, Resp’t, v. Bertrand Clover et al., App’lts.

      J. T. Marean, for resp’t; Bertrand Clover, app’lt, in person.
   Appeal dismissed, with costs. All concur.

See 45 St. Rep., 44.


text:
    Geo. W. Hutton et al., Resp’ts, v. Caroline M. S. Weber, App’lt.

      Thomas Nelson, for resp’ts; Edward, Grosse, for app’lt.
   Judgment affirmed, with costs, on opinion below. All concur.

Affirming 43 St. Rep., 56.


text:
    Wm. H. Brandt, Resp’t, v. Lizzie M. Moses, App’lt, Wm. Vernon et al., Resp’ts.

      Geo. W. Carr, for pl’ff-resp’t; Sidney H. Stewart, for app’lt; Thomas C. Ernever, for def’ts-resp’ts.
   Judgment affirmed on opinion below, with costs. All concur.

Affirming 44 St. Rep.,, 885.