author: Pryor, J.

text:
    Edward Kelly, App’lt, v. Josiah Partridge, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 19, 1893.)

    Landlord and tenant—Surrender after destruction of building.
    When, upon destruction of the building, the tenant notifies the landlord that he considers the lease cancelled, to which the landlord assents, and the landlord enters, to make repairs, the fact that, by an independent agreement with the landlord, the tenant keeps his goods on the premises until he can sell them, does not defeat his right of surrender.
    Appeal from judgment of general term, city court, affirming judgment on verdict.
    Action for rent. The opinion states the case.

      Edward W. S. Johnston, for app’lt; George Wilcox, for resp’t.
   Pryor, J.

The verdict, being general, the conclusive inference is that the jury found every issuable fact in favor of the defendant.

In bar of the action the defendant pleaded a surrender pursuant to the provisions of chapter 345 of the act of 1860; and in support' of the defense adduced evidence of the destruction of the building within the operation of the statute. The question in controversy is, whether the defendant seasonably and sufficiently abandoned the premises ? Undoubtedly the tenant must elect between the alternative choice to surrender or to continue the lease; and an unqualified retention of possession beyond a reasonable period after the destruction of the building will preclude him from recourse to a surrender. Here the destruction of the building by fire occurred on the 2nd of May, and the final and complete removal of the defendant on the 13th of the next month. In the absence of explanatory circumstances, so long a possession would involve a forfeiture of the right to surrender. But the evidence is ample to authorize an inference of a prompt and effectual election to abandon the premises, notwithstanding the fact of the prolonged possession.

Shortly after the fire, defendant said to the landlord’s agent;

we consider the lease canceled by the fire ”; to which the agent responded. “Yes, of course, he supposed so.” A few days subsequently it was agreed between the defendant and the agent that, for a proper consideration, the former should be allowed to leave his damaged goods in the building until they could be “auctioned off.”

Meanwhile, the landlord took possession of the premises for the purposes of reparation. The sale of defendant’s goods was completed on the 9th of June. .

The proof was enough to warrant the jury in the conclusion that, pursuant to the notice of surrender, the landlord took possession of the premises; and that the defendant kept his goods there, not by right as tenant, but by virtue of an independent agreement, between the parties subsequent to the cancellation of the lease.

Other circumstances explanatory of defendant’s possession operate to rebut the presumption of the continuance of the tenancy ; for example, the delay in adjusting the insurance.

The appellant contends that the landlord’s agent had no authority to permit the defendant to continue in possession. We think otherwise ; but, at all events, the agreement was communicated to the landlord and we do not observe that she repudiated it

All the facts bearing on the authority of the agent and the surrender were duly submitted to the jury; and we should not be-justified, on the evidence, in disturbing their conclusion. Bassett v. Dean, 34 Hun, 250; Zimmer v. Black, 37 St. Rep., 312. Nor is the verdict upon the issue affected by any error in the charge or the evidence.

The defense being effectual for the defeat of the action, we have-no occasion to consider the counterclaims.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Meyer Foster et al., Resp’ts, v. Edmund T. Oldham, Assignee, App’lt.

      (New York Common Pleas, General Term,

      Filed June 19, 1893.)

    Assignment fob creditors—Liability of assignee for rent—Evidence..
    Linder an assignment for the benefit of creditors the lease of the premises occupied by the assignor passes to the assignee, who becomes liable for rent of the premises for the time he actually occupies them even without a promise to do so, and hence the admission in evidence, in an action for rent, of his promise to pay, is not error.
    Appeal from a judgment of the district court of the city of New York for the seventh judicial district.

      Charles R. Putzel, for resp’ts; Wilbur Oldham, for app’lt.
   Per Curiam.

The action was brought to recover of the-appellant, as assignee of Pearce & Co., four months rent of certain premises claimed to have been occupied by him as assignee, etc. The appellant contends that the justice below _ erroneously admitted the testimony, of certain witnesses tending tey prove a promise by the defendant to pay the rent of the premises occupied by him, and that the justice at the close of the case-erroneously refused to dismiss the complaint.

There was no error in admitting defendant’s promise to pay. Under the general assignment the lease as well as the other property of the assignors was conveyed to him. It is true he was not bound to ratify the lease; but if he occupied the premises he was bound to pay rent for them even without a promise, and therefore the evidence objected to could not have injured the appellant.

As a rale the assignee of a lease is not liable for the rent of the demised premises except for the time he occupied them. 2 Platt on Leases, 416; Taylor on L. & T., § 444. This is as true of an assignee under an assignment as of an assignee of a lease. Litchfield v. White, 7 N. Y., 438; Journeay v. Brackley, 1 Hilt., 447; Stern v. Florence Sewing Machine Co., 53 How. Pr., 478 ; Anderson v. Hamilton, 16 Daly, 18; 29 St. Rep., 712. But he is liable for the time he actually occupied the premises. It is true that in such case it may be that he is not liable under the lease, but on a quantum, meruit. It will however be assumed that the rate agreed to be paid by the assignors to the landlord was a reasonable rent. There being a conflict as to whether the-appellant was in actual possession, it was a question of fact for the court below to determine, and we think from all the evidence-it properly decided that question of fact in favor of the respondents^

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

Bookstaver and Bischoff, JJ., concur.


text:
    Eva Brumfield, Resp’t, v. The Pottier & Stymus Manufacturing Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 19, 1893.)

    Brokers—Commissions—Evidence.
    In an action for broker’s commissions in procuring the letting of real estate, it is open to the defendant to show that some person other than the plaintiff brought about the letting, and the exclusion of evidence to the point is fatal error. The fact that such evidence consisted of conversations between third parties to which the plaintiff was not privy does not render it incompetent, as it is only by transactions between third persons that the fact that another person procured such letting could be proved.
    Appeal from judgment of the general term of the city-court, affirming judgment on verdict.
    Action for compensation of broker’s services in letting property of appellant.

      Brewster Kissam, for app’lt; J. A. Dennison, for resp’t.

       Reversing 48 St. Rep., 516.

   Pryor, J.

The fundamental question is, whether the plaintiff was retained merely to render services in reference to the letting, to be paid for irrespective of their result; or whether her employment was that of a broker to effect a lease. If the former, the judgment is unimpeachable ; if the latter, it cannot stand, because of the exclusion of evidence tending to show that the plaintiff was not the procuring cause of the letting.

It is impossible to doubt that the action was tried and determined as a claim for compensation in effecting a lease of the premises.

The allegation of the complaint, denied by the answer, is, that “the plaintiff rendered services in procuring such rental to be made.” The testimony, particularly of the witness Dennison, demonstrates that plaintiff’s claim was for effecting the lease. •The trial judge submitted the case to the jury upon the issue whether the plaintiff was the procuring cause of the letting, and instructed them that if she was not, the defendant was entitled .to a verdict. And the opinion at general term states explicitly the issue to be whether “ the plaintiff was the procuring cause of the •letting.” At this ultimate stage of the controversy, it is too late for the respondent to undertake to uphold her judgment on a theory not suggested on the trial nor pretended on the appeal below.

Plaintiff’s right of recovery, then, being dependent on the fact that she procured the letting, it was open to defendant on the pleadings to show that, not the plaintiff, but another, brought about the letting; and the exclusion of evidence to the point was fatal error. Goldsmith v. Cook, 39 St. Rep., 56.

The respondent objects that the evidence offered in proof of the fact that another was the procuring cause of the contract, consisting of conversations between third parties to which plaintiff was not privy, was incompetent; but, manifestly, the contention is untenable; for, the negotiations were not adduced as binding the ■plaintiff, but as demonstrating the person by whom the letting was consummated. Not otherwise than by transactions between third parties could the fact be established that another, and not the plaintiff, procured the contract of letting.

We should add that appellant’s point as to the invalidity of the lease is not well taken.

Judgment reversed, and new trial ordered, costs to abide •event.

Bookstaver and Bischoff, JJ., concur.


text:
    The Fire Department of the City of New York, Resp’t, v. John Gilmour, App’lt.

      (New York Common Pleas, General Term,

      Filed June 19, 1893.)

    1. New Yoke city—Violation oe eibe law.
    A determination by tlie fire department of the city of New York, upon the unsworn statement of a subaltern, without opportunity of appearance or defense by the accused party, that he has committed an offense under chapter 463 of the consolidation act, is not conclusive of his guilt.
    2. Same—Evidence.
    In defense of an action to recover the penalty imposed by the statute, the party has a right to contest and disprove the allegation in the complaint that he has violated the statute.
    Appeal from judgment of the second district court. The ■opinion states the case.

      Hector M. Hitchings, for app’lt; William L. Findley, for resp’t.
   Pryor, J.

By § 463 of the consolidation act it is provided that .“the commissioners” (of the fire department), officers or agents, under the direction of said commissioners, or either of them, are hereby empowered to enter into and examine all * * * places where any.merchandize, * * * boards ■* * * or otlier combustible materials may be lodged, * * * and upon finding that any of them are defective or dangerous, * * * may deliver a written or printed notice * * * to remove, amend or secure the same. * * * And in case of neglect or refusal * * *. so to remove, amend or secure the same, * * * the party offending shall forfeit and pay * * * the sum of twenty-five dollars, and the further sum of five dollars for every day’s neglect to remove, amend or secure the same after being so notified.”

In apparent pursuance of this statute, an officer of the bureau of combustibles, under instructions from the fire department, inspected defendant’s premises; and reported that he there found “ packing boxes or cases of wood stored and kept in such quantity as to be dangerous in causing or promoting fires.” Thereupon the department passed the following order: '“You are hereby notified that there exists a violation of chapter 410 of the Laws of 1882, at the premises 87 White street, in the city of Hew York, in that on or about the 16th day of May, 1892, and at the present time, combustible material consisting of packing boxes or cases of wood were and are kept •and stored in an open lot or place at said premises, in such quantity as to be dangerous, and the same is considered dangerous in causing or promoting fires and prejudicial to the safety of life and property, and is in its present condition a violation of law: you are, therefore, directed and required to remove the said violation within five days from the service of this notice, by surrounding said lot or open space on all sides by a wall of brick or stone or other fireproof material, to be approved by the superintendent of buildings, not to exceed eighteen feet in height .above the curb, and said packing boxes or cases of wood must not be piled or stored to a height greater than twelve inches less than the height of said wall or fence to be erected, as aforesaid.”

On defendants refusal, after due service of the order, to comply with its requisition, this action was brought; and judgment has gone against him for the penalty prescribed in the statute.

For affirmative defense the appellant alleged that his business and premises were not obnoxious to the provisions of the statute; and in support of the plea tendered proof that the “premises” and “material ” were not in fact defective or dangerous, “ upon a reasonable construction of the statute.” The evidence was excluded, the court holding, in effect, that it had no jurisdiction to pass upon the reasonableness of the order of the fire department, and that the only question within its province to determine was, whether the defendant had refused obedience to the order. An exception to the ruling duly challenges its correctness.

That the evidence was competent, and its rejection error, is settled by the decision of the court of appeals in Mayor, etc., v. The Dry Dock, etc., R. R. Co., 133 N. Y., 104, 112; 44 St. Rep., 94.

Upon principle the point is clear beyond controversy. That upon the arbitrary fiat of a municipal board, acting upon nothing of legal evidence, a citizen may be punished for an offense against which at no stage of the proceeding he is afforded an opportunity to appear or make defense, is a proposition so repugnant to the principles of free government, and to the prohibition of our own state and federal constitutions against a deprivation of property without due process of law, as to absolve us from the obligation of any other reply than a categorical denial. Health Department, etc., v. Rector, etc., of Trinity Church, 43 St. Rep., 142. Argument to support an axiom involves the concession that it is open to. question; and the principle impugned by the judgment-below is too precious to be exposed to an implication of infirmity.

The defendant had an inviolable right to show his innocence of tiie act against which the statute denounces the penalty; namely, the maintaining his premises in a defective or dangerous condition; but this right the court denied him on the assumption that the ex parte declaration of the board upon the unsworn statement of a subaltern was conclusive of his guilt. That such a conviction is not by “ due process of law” neither argument nor authority is. requisite to demonstrate.

Whether the statute upon which- the fire department proceeded be constitutional is a question which, though discussed by counsel, it is unnecessary to adjudicate.

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

Bookstaver and Bischoff, JJ., concur.


author: Lewis, J.

text:
    The Allison Brothers’ Company, Resp’t, v. Oscar W. Allison, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Patents—Construction of assignment—Right of assignee to improvements.
    Defendant had invented machines for manufacturing cigarettes and improvements in cigarettes, and letters patent had been issued to him. Thereafter defendant and his brother, John, who had become half owner of the patents, and one Clark, formed a co-partnership for the manufacture, of cigarette machines and cigaret'es. Clark put in <§5,000, and in consid-, eration a half interest in the patents was assigned to him. Soon, more money being required, defendant and John assigned to Clark one-sixth of their respective interests in the letters patent and “ any improvements, renewals or reissues " and he put in more money. Thereafter the three assigned to one A. a one-quarter interest in the patents and business for a. certain sum, the agreement reciting that it covered “ new patents, machines, machinery or appliances which may be obtained or used in connection with the business, and all the patents and improvements on the same which may hereafter be made.’’ Thereafter by mutual arrangement between the parties the plaintiff corporation was formed and the entire assets of the firm, including the patents and all interests acquired by the contracts, were transferred to it. J olm died, and defendant resigned as manager of plaintiff and invented improvements in cigarette machines, which were patented, and sold to third parties. Held, that plaintiff had a right to any and all inventions made and patents issued to defendant, at any time, for improvements in cigarette machines.
    Appeal from a judgment entered, in Monroe county, March 22, 1892, in favor of the plaintiff for the relief demanded in the complaint.

      Theodore Bacon, for app’lt; John Van Voorhis, for resp’t.
   Lewis, J.

The plaintiff is a domestic corporation. Its business Is that of manufacturing and selling cigarettes and cigarette machines.

The defendant, prior to the times hereinafter mentioned, had invented new and useful improvements in machines for manufacturing cigarettes. He had also invented improvements in cigarettes. Letters patent had been issued to him for said inventions, and in connection with a Mr. Kimball, of the city of Rochester, he had been engaged in business relating to said inventions.

Thereafter, and in the year 1882, the defendant and his brother, John A. Allison, who had by assignment from Oscar become the half owner of the patents, and Mr. F. De Witt Clarke formed a co-partnership for the manufacture and sale of cigarettes and cigarette machines in the city of Rochester. Clarke put in as working capital $5,000, and the Allisons, in consideration of said advancement by Clarke, assigned to him an interest in said patents. The business was started and in a short time the money invested by Clarke was exhausted, and thereupon a written contract, dated October 9, 1882, was made by the parties, by the terms of which the Allisons, for a good consideration paid by Clarke, each assigned and transferred to Clarke one-sixtli of their respective interests in and to said letters patent “ for an improvement in cigarettes and cigarette machines, and any improvements, renewals or re-issues of said cigarettes and cigarette machines or letters patent, same to be held and enjoyed by said F. DeWitt Clarke for the whole of the United States and to the full end of the term for which said letters patent are granted, and for the term of any extension of any improvements thereof or re-issue or re-issues thereon, as fully and entirely as the same would have been held and enjoyed by us, the Allisons, if this assignment and sale had not been made, meaning hereby to vest in said F. DeWitt Clarke one undivided third of said patents, extensions or improvements thereof, and we do each of us, said Oscar W. Allison, John A. Allison and F. DeWitt Clarke, each mutually agree with the other that neither of us will sell, dispose of, license or grant any portion of our said interest in and to same to any person or persons, or corporation, without the written consent of the other two being first obtained therefor, and any such transfer shall be void in the absence of such written consent being obtained.”

Clarke thereupon advanced the further sum of $10,000, which was put in and used in the business. And the exigencies of the business requiring more money, on the 5th day of February, 1885, the Allisons and Clarke entered into a written agreement with one Frederick P. Allen, by which Allen became the owner of a quarter interest in the patents and business, paying therefor the sum qf $25,000. The agreement recites that, in consideration of that sum paid by Allen, the Allisons and Clarke of the first part “do hereby sell, assign, and convey to the party of the second part (Allen) the machinery, stock, etc., now used and owned by said parties of the first part in the manufacture of tobacco, cigarettes, etc., under the firm name of Allison Brothers & Company, as well as new patents, machines, machínery or appliances which may be obtained or used in connection with said business, and the parties of the first part do hereby covenant and agree to make all proper assignments of patents,, etc., for that purpose whenever desired. The intention of this agreement being that each of said parties of the first part and second parts shall have and hold each respectively an undivided one-fourth interest in all the patents and improvements on same which may hereafter be made, machines, stock and business of the firm of Allison Brothers & Co.”

Allen advanced the $25,000 and the business was continued in the name of Allison Brothers & Company. Clarke and Allen continued to make advances for the benefit of the business until all the advances aggregated about $75,000. Thereafter by mutual arrangement between the parties a corporation was formed by the name of the Allison Brothers Company, being the plaintiff herein, and the entire assets of the firm of Allison Brothers & Company, including the patents and all the interests acquired by the contracts, were transferred to the plaintiff corporation. The capital stock of the corporation was fixed at the sum of $250,000,, which was equally divided amongst the four partners.

During all the times mentioned tire defendant was the general manager of the business and was engaged in inventing improvements in the cigarette machines, and during such time he invented an improvement in the cigarette machine which was duly patented in the name of the plaintiff, and he also prepared plans, for still another improvement which was thereafter patented and was one of the five patents hereafter mentioned. The defendant, was paid a salary by the firm for his services.

The Allisons, soon after the formation of the corporation, sold and transferred to Allen and Clarke the most of their stock in the-corporation. John soon thereafter died and Oscar practically severed his relations with the company, and devoted his attention to. inventing improvements to cigarettes and cigarette machines, and thereafter applied for and obtained five different patents for improvements in said machines in his own name. It was conceded upon the trial of the action that neither of these five patents was an infringement upon any of the prior inventions of the defendant which had been patented. The defendant finally entirely severed his relations with the plaintiff, and after obtaining said five patents he entered into agreements with other parties to manufacture and use his improved machines, and sold said five patents to parties in New York for the sum of $100,000. These patents having been obtained by the defendant after the commencement of this action, an order was granted permitting the plaintiff to serve a supplemental complaint so as to include the said five patents in the relief asked for in the complaint, and the supplemental complaint was accordingly served. In the specifications for each of said five patents Allison states that he had invented new and useful improvements in cigarette machines, and describes the characteristics of the improvements.

The oral evidence quite satisfactorily establishes that it was represented by the defendant, from time to time during the negotiations of the parties prior to executing the several contracts, that the machines were still crude and imperfect, and that the skill and genius of the defendant would be requisite and would be at the service of the company in inventing improvements and perfecting the machines, and that the company should have the use and advantage of the defendant’s inventions in the business, and it is apparent that Clarke and Allen would not have consented to invest in the enterprise the considerable amount of money they did had there not been such an understanding.

The contention of the parties arises over the construction to be given to these various contracts, the plaintiff contending that they not only vest in it the machines and patents in existence- at the dates of the contracts respectively, but that in addition thereto they include any and all patents which might at any time thereafter be obtained for inventions for improvements in cigarette machines or cigarettes, made by the defendant.

The defendant, on the contrary, claims that the contracts only cover the inventions and machines in existence at the date of the contracts respectively. The contracts were unskilfully drawn. The phraseology used does not with entire clearness sustain the construction claimed by the plaintiff. Bead, however, in the light of the surrounding circumstances as disclosed by the evidence, we incline to adopt the construction contended for by the plaintiff, and hold that without reformation or amendment they vested in the plaintiff the right to any and all inventions made and patents issued to the defendant at any time for improvements in cigarette machines.

Giving the construction to the contracts contended for by the defendant, we are not able to see the meaning of the sentence in the contract of date October 9, 1882: And for any improvements, renewals or re-issues of said cigarettes, cigarette machines or letters patent; ” nor the meaning of the sentence in the contract of February 5, 1883, as follows: “ As well as new patents, machines, machinery or appliances which may be obtained or used in connection with said business, and the parties of the first part do hereby covenant and agree to make all proper assignments of patents, etc., for that purpose whenever desired, the intention of this agreement being that each of said parties of the first part, and second parts, shall have and hold each respectively an undivided one-fourth interest in all the patents and improvements on same which may hereafter be made.” If the sentences quoted above are not surplusage, if they have any meaning, they -were intended to provide for any improvements, renewals or rc-issues of patents which might be thereafter made or granted, as well as those already made or granted.

The words “ improvements, renewals and re-issues,” when used in connection with, patents, have a well understood meaning.

The United States Be vised Statutes provide for patenting any new or useful machine, or any new or useful improvement thereof. The applicant is required to state whether he is the inventor of the machine or improvement which he desires patented.

Curtis says in his work on Patents, §§ 8 and 22: “A patent for 4lie improvement oí a machine is the same thing as a patent for an improved machine. Improvement applied to machinery is where a specified machine already exists, and an addition or alteration is made to produce the same effect in a better manner, or some new combination is added to produce some better results. In such cases the patent can only be for the improvement or new combination.”

A machine may be improved by adding to or talcing therefrom one or more of its parts.

The Century Dictionary defines the word improvement: ” “ In patent law, an improvement is an addition to or change in some specific machine or contrivance by which the same effects are produced in a better manner than before, or new effects are produced.”

Bouvier defines “improvement” as “an addition of some useful thing to a machine, manufacture or composition of matter.”

In common parlance, we speak of a machine as an improved machine when there has been added a new device which makes it work more efficiently.

The record shows that machines for the manufacture of cigarettes were in use as early as 1876. The first patents issued for the inventions of the defendant were adapted to and used as adjuncts of the original machine. So were also the five patents mentioned.

There was in the plaintiff’s complaint a count asking for a reformation of the several contracts by adding thereto words more clearly providing that they included patents for improvements issued after the date of the contracts, and a portion of the relief granted included such reformation.

As we have stated, we are of the opinion that the contracts, without amendment, sustain the plaintiff’s contention ; but if not, we think the evidence fully justified the court in holding that they should be reformed. There can be no reasonable doubt that it was the intention of the parties that the contract should carry any and all the inventions of the defendant relating to the improvement of cigarette machines thereafter made. The amendments directed were probably much more voluminous than was necessary in any view of the case, but if the plaintiff was entitled to a reformation of the contracts no injury is caused to the defendant because of the length of the amendments.

The evidence of the witness Clarke was taken conditionally before the trial. Considerable latitude was allowed in taking his evidence. The case was tried without a jury, and we do not find any such errors in the rulings of the court as would justify a reversal of the judgment. Clarke was interrogated as to conversations with the Allisons at times when they were both present. An objection was made that the evidence was incompetent under § 829 of the Code, John A. Allison being dead. Oscar Allison was called as a witness and testified as to what was said at those conversations. This action is between the plaintiff corporation and Oscar W. Allison to compel him to assign these patents to the plaintiff. His brother John had no interest in the patents; it is not apparent how the inhibition of § 829 applies to this case. Oscar was not the executor, administrator or survivor of his brother John. Neither did be derive his title or interest from, through or under John, by assignment or otherwise.

It is suggested by the defendant’s counsel that to hold that the contracts covered all inventions made by the defendant to cigarette machines for all-time would practically result in making a slave of the defendant. We fail to see the force of this suggestion. The defendant for a consideration agreed that the plaintiff should have the benefit and advantage of bis labors and inventions relating to improving cigarette machines and cigarettes only, and in no other field of inventions.

Contracts of a like character are frequently made. The proprietors of a factory may contract to furnish to another the entire product of their factory for a time in the future agreed upon.

It is quite unlikely that the Allisons could have obtained the money from Clarke and Allen without the understanding that the business should thereafter have the benefit of the services and talent of the defendant in that department of invention.

The judgment appealed from should be affirmed, with costs of the appeal.

Macomber and Haight, JJ., concur; Dwight, P. J. not voting.


text:
    George S. Ewart, Pl’ff, v. The Bank of Monroe, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Factors—Bank cannot hold proceeds of sale deposited to factor’s
    ACCOUNT AS AGAINST PRINCIPAL BY VIRTUE OF NOTE DISCOUNTED FOR FACTOR.
    B. sent to F., a commission merchant, a carload of oats which F. had theretofore contracted to sell for B. on commission. "When the oats arrived, F. was confined to his house by sickness, his agent received them, turned them over to the purchaser and received in payment $395.20 in currency. which he immediately deposited with the defendant bank to F.'s account. Shortly thereafter F. died and his estate was found to be insolvent. At the time of F.’s death the bank owned a note of his, not yet due, for which they held collateral security, partly covering the amount. E. notified the bank that he claimed to be the owner of $364.89 of the deposit made by F.’s agent, payment was refused and suit brought. Held, that the bank had no lien upon the money by virtue of being the holder of F.’s note, and that E. was entitled to recover.
    This is a motion for a new trial upon exceptions ordered to be heard at the general term in the first instance, after a verdict directed in favor of the plaintiff.

      L. O. Reed, for pl’ff; Elbridge L. Adams, for def’t.
   Lewis, J.

On the 29th day of July, 1892, the plaintiff shipped to Elmer E. Frye, a commission merchant, doing business in the city of Rochester, a carload of oats, which Frye bad theretofore contracted to sell for the plaintiff on commission. The oats arrived in Rochester on the first of August. Frye was at the time confined to his house by sickness. His agent received the oats, turned them over to the purchaser and received in payment therefor, m currency, $395.20, which he immediately deposited with the defendant bank, and the bank credited Frye’s account with the amount of the deposit. The deposit was made in the ordinary manner, without any notice being given to the bank officials as to who owned the money.

The plaintiff was entitled to $364,89 of the proceeds of the sale, the balance being the commissions, freight) etc., to which Frye was entitled.

Frye died on the 4th day of August following, without paying the plaintiff for the oats. His estate was found to be insolvent.

The plaintiff had made prior consignments of grain to Frye and the custom had been for Frye to sell the property, receive the proceeds of the sale, deposit them with the defendant bank, and immediately'obtain from it a New York draft for the amount coming to the plaintiff and remit the same to him.

Frye kept an account with the defendant and he had a credit balance with the defendant at the close of the business of July 25th, of $2,571.92; July 26tli,-$9,611.92; July 27th, $2,029.22; July 28th, $3,743.41; July 29th, $2,053.67; July 30th, $1,933.67; August 1st, $3,029.86; and August 2d, of $2,199.92. His last deposit was on the second of August, of $547.50. On the second of August the defendant paid Frye’s acceptances and his check for sums aggregating $1,377.64, which left, as we have seen, to his credit in the bank at the close of business on that day $2,199.92. The defendant discounted! for Frye on the first of August his promissory note of $4,000, and credited his account on that day with the proceeds of the discount. The note was given to renew a note of Frye’s then held by the bank, maturing that day. The note discounted on the first of August fell due on the fifth of September following, and has not been paid, or any part of it. The defendant bank held at the time of discounting the $4,000 note collaterals of the value of $3,100. The plaintiff notified the defendant on the 9 th day of August, 1892, that he claimed to be the owner of the sum of $364.89 of the deposit made by Frye on the first of August, and forbid the payment of said sum or any part of it-to the administrators of Frye, and on the thirty-first of August following made a written demand for the payment of the. money of the defendant. Payment was refused, and thereupon this action was commenced.

At the close of the evidence each party asked for the direction of a verdict in their favor respectively. A verdict was directed for the plaintiff for the sum of $364.89.

Plaintiff contends that the net proceeds of the oats belonged to him, and that notwithstanding they were deposited with the. defendant by Frye, they are still his property, and that the defendant is liable to him therefor in an action at law.

The defendant contends that being- the owner of Frye’s note for $4,000 at the time the deposit was made, it had a lien thereon by virtue of being the owner of the note, and it further contends that it was under no legal obligations to pay the money to the plaintiff without the presentation of Frye’s check or of that of his representatives; that in no event can the plaintiff recover in an action at law; that if the plaintiff has any remedy, it is an action in equity, to which Frye’s representatives are a party.

It was Frye’s duty, on receipt of the money for the oats, to remit to plaintiff his part of the proceeds of the consignment. This he probably would have'done had it not been for his sick- ■ ness. It was the plaintiff’s money. It was deposited with the defendant without plaintiff’s consent; Frye’s agent could not deprive the plaintiff of his right to the money by delivering it to the defendant

Judge Andrews, speaking for the court of appeals in Baker v. New York Natl. Ex. Bk., 100 N. Y., 33, says that “ the relation between a commission agent for the sale of goods and his principal is fiduciary. The title to the goods until sold remains in the principal, and when sold the proceeds, whether in the form of money or notes or other securities, belong to him, subject to the lien of the commission agent for advances and other charges. °The agent holds the goods and the proceeds upon an implied trust to dispose of the goods according to the directions of the principal, and to account for and pay over to him the proceeds , from sales. The relation between the parties in respect to the proceeds of sale is not that of debtor and creditor simply. The money and securities are specifically the property of the principal, and he may follow and reclaim them so long as their identity is not lost, subject to the rights of a bona fide purchaser for value.” Merrill v. The Bank of Norfolk, 19 Pick., 32, is to the same effect.

Clark v. Merchants’ Bank, 2 Coms., 380, is not in conflict with this doctrine. The facts in the latter case negative the claim of of the plaintiffs there that the proceeds of the bill were to be remitted to them when received by their correspondent in Hew York. They were deposited with the defendant bank in that case by consent of the plaintiffs.

The plaintiff’s right to the money here could not be affected by the deposit unless the defendant when it received the money, and credited Frye’s account with it, acquired some right to it superior to that of the plaintiff. There was no understanding or agreement between Frye and the defendant that it should have a lien upon Frye’s credit balance in the bank as collateral to any notes of Frye’s which the bank might hold. Frye kept an active account with the bank, depositing and checking daily.

It is true the record shows that it was conceded upon the' trial that if the cashier were present in court he would testify that, the note was discounted by the defendant relying upon Frye’s, apparent ownership of his credit balance in defendant’s bank.. But it is apparent from the character of Frye’s account with the bank, depositing, as he did, daily, and checking at his convenience upon any credit balance he may have had in the bank, that the bank did not in fact rely upon the moneys on deposit as. security for Frye’s paper, but did rely upon the collaterals in its possession at the time, and upon Frye’s personal responsibility. Frye was at liberty to Check out all the money he had in the bank if he so desired, and the defendant could not legally refuse to-pay his check because it happened to hold his paper not then due.

Frye’s probable object in obtaining the discount of the $4,000 note was that he might use the proceeds in his business until the note matured. That purpose would have been thwarted if the bank were at once, upon discounting the note, to have a lien upon the money as security for the payment of the note.

Each party having asked for a direction of a verdict, the question of fact as to whether the hank relied upon the deposits as its security for the note was for the decision of the court, and the court found against the defendant on that question.

It being the plaintiff’s money, his right to reclaim it did not depend upon the presentation of Frye’s check or that of his representatives.

We do not see how the possession and presentation of Frye’s check would have strengthened the plaintiff’s case. It would not have worked an assignment of the money, nor given the plaintiff a cause of action against the defendant. Ætna National Bank v. Fourth National Bank, 46 N. Y., 82.

Then no such defense is pleaded. The defense interposed is that the defendant has a lien upon the money by virtue of being the holder of the $4,000 note mentioned. The defendant claimed and still claims to have a lien upon the money against the plaintiff as well as against the representatives of Frye.

There is nothing in the record tending to show that Frye’s representatives have any claim or interest in the money, and the defendant has neither by demurrer or otherwise raised the question of the non-joinder of Frye’s representatives.

The insolvency of Frye’s estate gave the defendant no lien upon the money. Fera v. Wickham, 47 St. Rep., 866.

The plaintiff made out his cause of action and was entitled to the verdict directed by the court.

The motion for a new trial should be denied, with costs, and judgment entered for the plaintiff on the verdict

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


author: Macomber, J.

text:
    Andrew F. Sheldon, Resp’t, v. Anna G. Mirick et al., Adm’rs, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Limitation—Adjudication as to claim in proceedings for payment of
    DEBTS OF HABITUAL DRUNKARD A JUDGMENT WITHIN CODE, § 376.
    In proceedings upon the petition of the committee of an habitual drunkard for the sale of the real property of the latter for the payment of his debts, an order was made by the county court establishing and adjudging a certain claim to be a valid and subsisting debt against such drunkard and his estate. Held, that such order was an adjudication or a judgment within the meaning of § 376 of the Code.
    Appeal by the defendants, Anna GK Mirick and William P. Mirick, as aclm’rs, etc., of Nelson P. Mirick, deceased, from a judgment entered in Wayne county, September 13, 1892, on the report of a referee, and also from an order of the special term awarding costs to the plaintiff.

      E. W. Hamm, for app’lts; T. W. Collins, for resp’t.
   Macomber, J.

The plaintiff brings this action as the assignee of a claim against Nelson Mirick which accrued to John H. Camp and James W. Dunwell for professional services as lawyers between May 23, 1876, and the 16th day of June, 1884. The value of the whole amount of such services was shown to be $2,906.58, of which $1,756.61 had been paid, leaving due and unpaid the sum of $1,149.99. This balance was assigned by Camp & Dunwell to one Mr. Howell for the sum of $1,075, arid Howell in turn assigned the same to the plaintiff for a like amount, as expressed in the assignment itself. The amount due on the claim, besides interest, was shown to be $1,050, and for that sum a recovery was had in pursuance of the report of the referee. The answer consists of a general denial and the six years statute of limitations. Upon the trial of the action before the referee, the amount of the indebtedness was clearly established, and the same was not disputed, in any respect, by the defendants, who gave no evidence against the correctness of the claim. They relied, however, upon the trial, as well as upon the appeal, upon the statute of limitations to defeat the action.

It appears that Nelson E. Mirick had for several years prior to 1883 been adjudged to be an habitual drunkard, and his estate was placed in the hands of a committee, but this committee was discharged in the year 1883 and Nelson E. Mirick was restored to his property; that on the third day of April, 1884, he was again adjudged an habitual drunkard by an order of the county court of Wayne county, that being the county of his residence, and on the 25th day of April of that year the plaintiff, Andrew F. Sheldon, and William Kreutzer were duly appointed a committee of his person and property, and this committee entered upon the discharge of their duties.

This committee duly instituted proceedings for the sale of certain property of Nelson E. Mirick for the payment of his debts, and such proceedings resulted in an order or decree of the county court, made on the 16th day of June, 1884, establishing certain claims against the estate, and among them was the claim of Camp & Dunwell, which was adjudicated to be the sum of $1,149.99. The proceedings for the sale of the estate of this habitual drunkard are fully set forth in the printed record, and appear, in all respects, to be regular and binding upon all the parties thereto. The claim of Camp & Dunwell was proved by abundant evidence, and it was shown upon the trial resulting in the judgment from which the appeal is taken that no part of the balance so found due them had been paid. This action was begun on the 18th day of November, 1890.

The learned referee has found, among other things, that the adjudication of the claim made by the county court in the proceedings instituted by the committee for the payment of the debts of Nelson E. Mirick was an adjudication or a judgment within the meaning § 376 of the Code of Civil Procedure. We think that the referee was correct in the conclusion; that section provides as follows: “A final judgment or decree for a sum of money, or directing the payment of a sum of money, heretofore rendered in a surrogate’s court of the state, or heretofore or hereafter rendered in a court of record within the United States, or elsewhere, is presumed to be paid and satisfied after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enforce it”

But it is claimed by the counsel for the appellants that this action was not upon the decree of the county court as a judgment, but was for the balance of an open account; but the complaint alleges, in its second subdivision, all the facts necessary, as we think, to bring the case within § 376 of the Code of Civil Procedure. It alleges: “That such proceedings were thereafter duly .had in Wayne county court upon the petition of said Andrew F. Sheldon and William Kreutzer, as committee aforesaid, for the sale of the real property of Nelson R Miriclc for the payment of his debts, that on the 16th day of June, 1884, an order was duly made by said Wayne county court establishing and adjudging said claim to be a valid and subsisting debt against said Nelson R. Miriclc and his estate in the sum of $1,149.99.”

If this view of the case be correct, it is unnecessary to examine the other questions that have been so elaborately discussed in the briefs which have been submitted to the court.

In regard to the allowance of costs, we think that the order of the special term was judiciously made, for it nowhere appears that the amount of the indebtedness was seriously disputed by the administrators. Their reliance being solely upon the statute of limitations, it would seem but right and proper that if they were defeated upon that, costs should be awarded to the prevailing party.

Judgment and order appealed from affirmed.

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


text:
    Walter Allen, Resp’t, v. David Rogers, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Brokers—Commissions—Evidence.
    In an action to recover commissions for the sale of real estate inferences from conversations with a third party as to underhand intentions on the part of the purchaser in aiding the plaintiff to swindle the defendant are inadmissible.
    3. Same.
    In such case, a conversation in regard to a loan of two dollars which the defendant obtained from the purchaser, and having no connection with the plaintiff or money claimed to have been borrowed' of plaintiff by defendant, is irrelevant and inadmissible.
    3. Same.
    In such case, the exclusion of evidence of defendant in answer to the question “Did you at any time know that plaintiff was working for you? ” is proper.
    Appeal by the defendant from a judgment of the county court of Chautauqua county, entered on the 20th day of June, 1890; and also from an order denying the defendant’s motion for a new trial upon a case and exceptions.

      W. B. Hooker, for resp’ts; John G. Record, for app’lt.
   Macomber, J.

This action was an contract wherein the plaintiff claimed the existence of an agreement with the defendant to sell property owned by the defendant in the city of Dunkirk at the price then and there stated by the parties to be $16,000. It is alleged by the plaintiff that after the sale of the property at that price, he was to have three per cent, commission for his services. The defendant denies the existence of any agreement respecting the sale of this property, or that the plaintiff was ever in his employ for that purpose.

The plaintiff further claims, in addition to the making of this contract, that the defendant made hint a payment, partly in cash, and the answer contains a general denial of alb the allegations in the complaint. This appeal is made upon exceptions taken at the trial to certain evidence admitted by the trial court A verdict was brought in for the plaintiff for the relief asked for in the complaint.

As no exceptions were taken by the defendant to the charge of the court, and no request to charge was made by the defendant, nor was any motion made for a nonsuit or a dismissal of the case, it follows that it is for this court to pass judgment solely upon the question whether any errors were committed by the trial court in the admission of evidence.

The case shows several rulings against the defendant, but to which no exceptions were taken, and these of course cannot avail the defendant upon appeal for a new trial. The first exception taken by the defendant occurs in folio 78, where the defendant endeavored to show that he went to a picnic on what he was informed was an invitation from Dotterweich (the subsequent purchaser of the property in question), and that Dotterweich was aiding Allen in his efforts-to swindle the defendant. This was properly excluded by the learned trial justice. The conversation sought to be proved was not with Dotterweich, but with a party whom he had sent after the defendant. Evidence tending to prove that the defendant had negotiated with Dotterweich himself in regard to the sale of the farm would have been proper and admissible; but inferences from conversations with a third party as to underhanded intentions on the part of Dotterweich were clearly inadmissible.

Again,- at folio 84, an exception was given to the defendant upon the exclusion of -the conversation in regard to the borrowing of two dollars by defendant. This conversation was in regard to the loan of two dollars, which the defendant obtained, not from the plaintiff Allen, but from Dotterweich, and had no connection whatever with the plaintiff or the money claimed to have been borrowed of plaintiff by defendant, and hence was irrelevant and inadmissible.

To the exception taken by the defendant in regard to the exclusion of evidence in answer to the question, “Did you at any of the time know that Mr. Allen was working for you ? ” there was no error made. This question was properly excluded as immaterial, and as calling for a conclusion from the witness; it was also indefinite, and inasmuch as by the next question the defendant was permitted to show that at the time the contract was made he did not know that Allen claimed to he working for him, leaving the question of the admissibility of it out of the-question, there was no harm done by its rejection. The only other exception taken by the defendant which calls for decision by us relates to the exclusion by the court of the evidence that persons other than Mr. Smith made claims against the defendant, for selling land. This was rejected as immaterial to the issue. In determining the question at issue between the parties hereto, it‘would be clearly inadmissible, on the grounds of incompetency, to receive testimony to prove the non-acceptanee of the contract by the parties by slipwing that other persons had undertaken the same work as the plaintiff.

There are other exceptions, but the above are the only ones'of sufficient importance for us to pass upon, and having found that no error was committed by the justice in the admission of such evidence under the circumstances, the claims made by the-plaintiff, that the evidence shows a strong-preponderance in favor of the defendant, cannot be sustained. It is unnecessary to go-farther into the questions raised-on the trial, and for this reason it follows that the judgment of the county court should be affirmed, with costs to the respondent.

Judgment of the county court appealed from affirmed, with, costs.

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


text:
    George W. Bennett, App’lt, v. John Taylor, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Justice’s Court—Appeal—Return.
    A justice of the peace cannot be permitted to make an amended return-which will absolutely contradict what is stated in a previous return.
    2. Same.
    If a justice of the peace makes a false return’he is liable for the same-to the injured party.
    Appeal by the plaintiff, George W. Bennett, from a judgment, of the county court of ’Wayne county, entered January 9, 1892, reversing a judgment of a justice of the peace in summary proceedings to recover the possession of demised premises, together with a notice of an intention to bring up for review an order made by the same court, dated January 9, 1892, denying a motion to-correct the return and for a reargument of the case.

      Hopkins Converse, for app’lt; S. B. McIntyre, for resp’t.
   Macomber, J.

The plaintiff, as landlord, instituted summary proceedings to recover possession of certain situated in the village of Palmyra, upon the ground that the tenant, the defendant, was holding over after the expiration of his lease. Upon a trial before a justice of the peace and a jury, a verdict was rendered in favor of the landlord, and -from a judgment entered thereon an appeal was taken by-the tenant to the county court, where, after argument, the judgment was reversed, upon the ground of the admission of erroneous evidence prejudicial to the tenant. The record there showed that the plaintiff was permitted to testify under objection to two several conversations which he had with one Fred. Taylor. That this evidence was inadmissible admits of no doubt, nor is it contended by the appellant here that the same was competent for any purpose. Upon the merits, therofore, of the appeal, the judgment of the county court was clearly right.

But it is contended that the return of the justice to the county court had been tampered with, or made up, in part at least, by counsel for the tenant, and that in truth, and in fact, the supposed erroneous evidence upon which the justice’s judgment was reversed was not, in fact, ever given before the justice of the peace, but was, on objection, excluded. We agree with the learned county judge, who heard the motion for an amended return and for a reargument thereon, that such motion could not be granted, and that a justice of the peace cannot be permitted to make an amended return which will absolutely contradict what is stated in a previous return. Barber v. Stettheimer, 13 Hun, 198 ; Fitzgerald v. Fitzgerald, 25 id., 319. If the justice of the peace made a false return he is liable for the same to the party injured. Houghton v. Swarthout, 1 Denio, 589. But it is claimed that the justice of the peace himself was deceived by counsel for the tenant, and was induced by fraud to sign the false return, and that for this reason the case is taken out of the operation of the general rule above stated. But we have examined the affidavits given upon this subject, and they clearly acquit the counsel of any such alleged impropriety, and that consequently the plaintiff is not entitled to any relief upon this ground.

It follows that the judgment and order appealed from should be affirmed.

Judgment and order of the county court of Wayne county appealed from affirmed, with costs.

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


text:
    Laura B. McGuire, Resp’t, v. Richard D. Richards, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Contract—Agreement on exchange of land to pat surplus oyer
    SPECIFIED AMOUNT ON SALE.
    Defendant conveyed a house and lot for the consideration of $9,000 to plaintiff,_ who paid for the same by conveying to the defendant a house and lot, and in addition paying $5,000. Simultaneously with the delivery of the deeds defendant executed a written agreement that if upon the sale of the house and lot conveyed to him by plaintiff he should realize a sum in excess of $4,000, after deducting repairs and expenses, he would pay the surplus to plaintiff on demand. Defendant conveyed the premises in question to F. without consulting plaintiff for $2,725 and a lot. F. paid $2,000 for the lot deeded by her to defendant and evidence was given tending to> show that it was accounted and taken at that figure. Plaintiff claimed defendant had received $4,725 for the property and sued to recover the excess over $4,000. Held, that plaintiff was entitled to such excess.

      2. Same—Estoppel. \
    In such case defendant is estopped from claiming that the transaction amounted simply to an exchange of property between F. and himself and not a sale; he assumed to convey the property and must account for the proceeds of the sale in money.
    Appeal from a judgment of the county court of Monroe • county entered on the 21st day of December, 1892, and from an order of that court denying defendant’s motion for a new trial made upon the judge’s minutes.

      J. A. Stull; for app’lt; Walter S. Hubbell, for resp’t.
   Lewis, J.

On the 1st day of June, 1892, the defendant conveyed to the plaintiff a house and lot situate on Harvard street, in the city of Rochester, for the consideration of $9,000. Plaintiff paid for the house and lot by conveying to the defendant a house and lot upon Greenwood avenue, in the city of Rochester, and in .addition thereto paid the sum of $5,000.

Simultaneously with the execution and delivery of said deeds, , the defendant executed and delivered to the plaintiff his written agreement reciting that, whereas the defendant had sold to the plaintiff said house and lot for $9,000, and whereas the plaintiff had conveyed to Richards the Greenwood house and premises situate in the city of Rochester, the same making $4,000 of the purchase price of the house conveyed to the plaintiff, Richards agrees that if upon the sale of the Greenwood avenue property lie shall realize a sum in excess of $4,000, after deducting such repairs as he shall put upon the premises, and the necessary expenses •of the sale, that in that event he will pay such surplus to the plaintiff on demand. The defendant thereafter entered into negotiations with a Mrs. Fowler, and tried -in good faith to sell her the Greenwood avenue property. His asking price was $5,000 cash. Mrs. Fowler refused to pay that for the property, and made it a condition of her purchasing the property that the defendant should take in part payment therefor a house and lot which she owned in the city of Rochester, upon Gregory street, and which she claimed was worth $2,000. The negotiations between the parties' continued for a considerable time. The defendant offered to sell Mrs. Fowler the Greenwood avenue house and lot for her house and lot and the sum of $3,500 in money. Mrs. Fowler offered to give her house and lot and the sum of $2,500 for the Greenwood avenue lot. They finally came to the agreement that the defendant would convey his house and lot to Mrs. Fowler for her lot and the sum of $2,725. and the trade was closed upon these terms. There was evidence tending to show that during tho negotiations the plaintiff was informed thereof, and that the defendant was thinking of taking a house and lot in part payment for the premises; but the particulars were not communicated to the plaintiff, and the trade was finally made without her knowledge -or consent.

The defendant expended upon the Greenwood avenue property, before conveying to Mrs. Fowler, in the way of repairs and commissions, the sum of $239.72, and after making the trade he made a statement to the plaintiff of the particulars thereof, and the ■plaintiff thereupon insisted and claimed that the defendant had sold the property, and had received therefor the sum of $4,725, and claimed that after deducting therefrom the $239.72, there was due her $485.28, and demanded payment of that sum, which was refused; and she thereupon brought this action. While it was pending, and before judgment, the defendant sold and conveyed the Gregory street lot for the sum of $1,425, cash. The plaintiff recovered judgment against the defendant for damages, $498, together with costs. The defendant was willing to sell the ■Greenwood avenue property for a less sum than he offered it to Mrs. Fowler, if he could not get his asking price of $5,000. Mrs. Fowler had purchased the Gregory street property but two or three days before the negotiations with the defendant commenced, and had paid therefor the sum of $2,000, and during all the negotiations insisted as a condition of the trade that the defendant should take it at that price; and there was evidence tending to show that it was accounted and taken at that figure by the defendant, although he did claim, and stated to the agent who ■effected the sale, that he did not consider it worth $2,000. The .agent replied the important question was the amount he should receive in money as the difference between the two places, and mot what Mrs. Fowler thought her place worth.

The written contract secured to the plaintiff a contingent, equitable interest in the Greenwood avenue property, and while the defendant did not by the terms of the contract expressly agree that he would sell the property, the parties obviously by their agreement contemplated that the property was to be sold by the defendant. The plaintiff could not in any other way realize anything from the property. Whether the defendant could have refused to sell the property without a violation of his agreement is not necessary for us to decide, for he did not do so. Having disposed of the property, his contract required that he should do so by a sale for cash, unless the plaintiff consented to have it disposed of in some other manner. The time when the sale should occur, and the price at which it should be sold, were left in the discretion of the defendant. ' It was his duty, however, to sell it, and for the best price he could obtain for it ; and.if the amount exceeded $4,000 and the cost of repairs and the expenses of the sale, the plaintiff was entitled to the surplus. He was not authorized by the contract to exchange it for other property. If it was to be disposed of in that manner the plaintiff was ■entitled to be consulted about the sale, and had the right to exercise her own judgment as to the value of any property which ■ it was proposed to take in exchange for it, and the price at which it should be taken, and generally as to the advisability of exchanging it for other property at all. She was willing to trust to the judgment of the- defendant to sell the premises for money, but did not consent to abide by his judgment as to the value or saleability of other real estate taken in exchange for it; and when the defendant conveyed the Greenwood avenue premises .and took in part payment the Gregory street lot without plaintiff’s knowledge or consent, he became liable to account to the plaintiff for the amount at which he agreed to receive it in ■exchange for the Greenwood avenue lot. Whether defendant did before making the sale inform the plaintiff of the conditions of the sale and obtain her consent to the terms of the exchange, and whether he took the Gregory street property at the agreed price-of $2,000, are questions which were properly submitted to the jury, and they upon evidence sustaining their verdict found both questions in favor of the plaintiff. It is the contention of the defendant that the transaction amounted simply to an exchange of properties and not to a sale of the Greenwood property, and he refers to the definition of the word “sale” in the Century Dictionary and Bouvier’s Law Dictionary. Whether these authorities sustain- the defendant’s contention may well be doubted; but we do not deem it important to decide the question, for we think the defendant should be held to be estopped from questioning that the transaction amounted to a sale. He assumed to convey the title to the Greenwood avenue property to Mrs. Fowler, and must account for the proceeds of the sale in money. If our views of the question presented by.this appeal as stated are correct, it follows that the trial court properly disposed of the various requests to charge made by defendant’s counsel.

The judgment and order appealed from should be affirmed..

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


text:
    In the Matter of the application of Benjamin C. Miller, Judgment creditor, for the payment of his claim against the estate of John Morton, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Executors and administrators—Petition to compel payment of claim.
    The verified answer of an administratrix to an order of the surrogate to> show cause why petitioner’s claims against intestate’s estate should not be paid alleged that the claims were on supieme court judgments obtained after the intestate’s death; that the verdicts were omitted therefrom, and no memorandum of his death entered thereon, although the error had been corrected by order of the court prior to the presentation of the claims, and on information and belief denied the legality of the judgments and claims. Held, error foi the surrogate to dismiss the petition, without taking evidence, on the sole ground that the answer set forth facts, showing it to be doubtful whether the claims were legal and valid.
    3. Same—Judgment.
    In such case, the surrogate could not try and determine the question of' the validity of the judgments.
    3. Same—Limitation.
    The judgments were docketed in 1883, the claims presented in 1885, and'. the petition upon which the order was granted filed in 1893. Held, that the statute of limitations had not run against the petitioner’s right to enforce-his claim.
    Appeal from a decree df the surrogate’s court of Monroe county" dismissing the petition of Benjamin C. Miller, a judgment creditor, praying for the payment of his claim against the estate of John; Morton, deceased.

      William E. Davis, for app’lt; Louis H. Jack, for resp’t.
   Lewis, J.

The petitioner, Benjamin C. Miller, presented, to the surrogate of Monroe county, on the 3d day of December, 1892, his duly verified petition, showing, among other things, that John Morton, a resident of Rochester, N. Y., died on the 23d. day •of March, 1883, and that Cordelia R. Morton, of said city, was, by order of the surrogate of Monroe county, duly appointed administratrix, etc., of said deceased, and is still acting as such; that one Mary A. Northrup, on the 10th day of August, 1883, recovered two judgments, aggregating some $600, in the supreme court, Monroe county, against said Morton. The judgments were docketed in the clerk’s office of Monroe county on that day, and thereafter, by proper instruments, the said judgments were duly assigned to the petitioner. The claims were duly presented to the administratrix for payment on the. 5th day of January, 1885, and they were not disputed by the administratrix ; that the petitioner was informed and believed that there had come into the hands of the administratrix, since her -appointment, the sum of $3,540 belonging to the estate of the deceased, and. that there are no claims against the decedent’s estate entitled to equality of payment with, or priority of payment over, the claim of the petitioner, with the exception of funeral expenses, etc., and that there are sufficient moneys in the hands of the administratrix to pay petitioner’s claim without injuriously affecting the rights of persons entitled to priority over or equality of payment with your petitioner.

A citation was issued thereon requiring the administratrix to show cause why a decree should not be made requiring her to pay the claim, and on the return day of the citation the administratrix interposed a verified answer stating that the verdicts in the judgments described in the petition were recovered against the deceased prior to his death; that they were docketed after the death of Morton; that in docketing the judgments the verdict was omitted from each of the judgment rolls, and that there was a failure to enter with the judgments in the judgment book, or to indorse on the judgment rolls, or to note on the margin of the docket of the judgments, the memorandum of the death of the defendant, John Morton, as required in such cases by § 1210 of the Code of Civil Procedure. The answer further alleged that each of said judgments was recovered in actions founded on tort, and claimed that by reason of said irregularities and defects the alleged judgments were irregular and defective, and were ineffectual either as claims to be enforced against the estate of said Morton, or as notice or evidence of debt to the representatives of the estate of the said decedent, and that the estate was because thereof entitled in equity to a discharge and release from any claims arising on paid judgments. The answer further alleged that on the 2d day of November, 1892, the petitioner made application to the special term of the supreme court of Monroe county to have the judgment rolls and the docketing of the same amended and corrected as of date August 10, 1883, by supplying the omissions mentioned, and that an order was made allowing such corrections, with the qualification, however, that the rights acquired by the administratrix by reason of said irregularities should not be prejudiced by the entering of said order.

The answer alleged the publication of a notice to creditors of the estate to present their claims, and that without the knowledge-of the alleged judgments she had paid the claims of all creditors legally presented and proved, funeral expenses, etc., and further stated “ that there are hot funds or property in her possession as administratrix applicable to the satisfaction of the claim of the petitioner herein without injuriously affecting the rights of others.” The answer omitted to state that the claims of the others referred to were, in the language of subdivision 2 of § 2718 of the Code, entitled to priority or equality of payment or satisfaction to the petitioner’s claim.

The answer denied any knowledge or information as to the alleged assignment of the judgments, and further alleged that the-time within which the proceedings could be instituted had elapsed, and denied upon information and belief the validity and legality of the alleged judgments and claims of the petitioner.

The surrogate, upon the filing of said answer, without taking-any evidence, dismissed the petition upon the sole ground that the-answer of the administratrix set forth facts showing it to be doubtful whether the claim of the petitioner was valid and legal, and denied its validity and legality upon information and belief.

Section 2718 of the Code provides that upon the return of a. citation the surrogate must dismiss the petition if, first, the administrator files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal and denying its validity or legality absolutely or upon information or belief; or, second, where it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction.

The dismissal being put upon the first ground mentioned, the* petitioner was prevented from making the proof required by the. second sub-division of said section.

Section 1237 of the Code provides that the clerk upon entering-final judgment after a trial must include in the roll the verdict, report or decision, etc.

Section 1210 of the Code provides: Where a judgment for a

sum of money, or directing the payment of money, is entered against a party after his death-in a case where it may be so taken by special provision of law, a memorandum of the party’s death must be entered with the judgment in the judgment book, indorsed on the judgment roll and noted on the margin of the docket of the j ndgment. Such a judgment does not become a lien upon the real property or chattels real of the decedent, but it establishes a debt .to be paid in the course of administration.”

In entering these judgments the memorandum required by'this section was omitted. The verdicts were also omitted. These irregularities in the record being discovered, on the motion of the claimant an order was duly granted by the special term directing that the omissions in the record be supplied by the clerk as of the date of the entry of the judgments, and the corrections were made prior to the presentation of the claim to the administratrix.

The judgments prior to the making of the order aforesaid were irregular, but the court unquestionably had the power to correct the errors, and when corrected they became valid judgments. White v. Bogart, 73 N. Y., 256.

The judgments were the adjudications of a competent court having jurisdiction of the parties; they imported absolute verity and could not be attacked collaterally, and having been assigned to the claimant- they prima facie established his claim against the estate. McNulty v. Hurd, 72 N. Y., 521.

While the surrogate had the power to inquire and pass upon whether any payments had been made to apply upon the judgments and determine the amount due thereon, and ascertain who was the owner thereof and entitled to the money, he could not try and determine questions regarding their validity. In order to have justified a dismissal of the petition the answer should not only have denied the validity or legality of the plaintiff’s claim, but it should' have set forth facts which showed that it was doubtful whether the petitioner’s claim was valid and legal. Hurlburt v. Durant, 88 N. Y., 121; Matter of Macaulay, 94 id., 574.

This the answer failed to do unless the plea of the statute of limitations is to prevail.

It is the contention of the respondent that the six years limitation applies to a claim based upon a judgment of a court of record the same as to a claim not in judgment

By sub-division 4 of § 414 of the Code, it is provided that the word “action ” contained in the chapter relating to the time for enforcing a civil remedy is to be construed, when it is necessary so to do, as including a special proceeding or any proceeding therein.

By § 415 it is provided that “ the periods of limitation prescribed by said chapter must be computed from the time of the accruing of the right to relief by action, special proceedings, etc., * *to the time when the claim to that relief is actually interposed by the party as a plaintiff or defendant in the particular action or special proceeding.”

It was held before the Code was adopted, and has been held since, that a proceeding like this may be instituted within the time within which actions of the same character are required to be commenced in courts of common law or equity. McCartee v. Camel, 1 Barb. Ch., 453; Smith v. Remington, 42 Barb., 75 ; House v. Agate, 3 Redf., 307 ; Drake v. Wilkie, 30 Hun, 537; Cole v. Terpenning, 25 id., 482; Matter of Depuy, 28 St. Rep., 42; Matter of Kendrick, 407 N. Y., 107; 11 St. Rep., 346.

It is clear that the statute had not run against the right of the petitioner to enforce his claim. The effect of the delay in instituting the proceedings upon the rights of the claimant in the assets of the deceased is another question, but that question is not before us for adjudication.

The answer, we think, failed, to state facts tending to show that the petitioner’s claim, was not legal and valid, and the learned surrogate erred in dismissing the petition.

The decree appealed from should be.reversed, with costs of this appeal to-the appellant, to be paid out of the estate, and the proceeding remitted to that court to proceed thereon.

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


text:
    Frederick Cordas, Resp't, v. James Morrison et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

      ■ Venue—Negligence.
    In an action to recover damages for injuries alleged to have heen sustained by plaintiff in defendants’ mill in Albany county, defendants moved for an order changing the place of trial from Ontario to Albany county,
    • the affidavit containing all the formal requisites, thirteen necessary witnesses for defendants being mentioned, twelve of whom resided in Albany county, the other within two miles thereof, and it was fully stated what was expected to be proved by them., Plaintiff’s affidavit stated that he had been a resident of Albany county/until shortly before the commencement of the action; that he was a poor man, and if the change of place of trial was made, it would' be almost impossible to bring this action to trial, and offered, if the change was not made, to stipulate that the facts which the defendants stated in their affidavit they expected to prove by the witnesses named'therein are true. The defendants’ motion was denied, upon condition that the plaintiff give the stipulation, which he did. Tlie admissions apparently negatived the existence of any claim against defendants. No pretense was made that any witnesses for plaintiff resided in Ontario county. Deld, error; that the place of trial should be changed to Albany county.
    Appeal from an order made at a special term held at Canandaigua, November 5, 1892, denying a motion made on behalf of the defendants to change the place of trial from Ontario to Albany county.

      Charles F. Doyle, for app’lts; Spencer Gooding, for resp’t.
   Lewis, J.

This action was commenced on the 21st day of June, 1892, to recover damages for injuries which the plaintiff alleges in 1ns complaint he sustained by falling into a hole in the rolling mill of the defendants in the city of Cohoes, Albany county, on or about the'5th day of January, 1892.

It is alleged in the complaint that the plaintiff went into the mill on said occasion at the request and suggestion of one of the foremen or managing workmen of the defendant, in the daytime, for a legal and proper purpose, and while so upon the premises he fell as' aforesaid, and charges that the accident occurred and was caused by the carelessness and negligence of the defendants in allowing the hole to remain unprotected and unguarded.

All the allegations of the complaint were put in issue by the ■ defendants’ answer.

Ontario county was designated as the place for the trial of the action. The defendants moved, upon the pleadings and- the affidavit1 of E. N. Page, for an order changing the place of trial from Ontario to Albany county for the convenience of witnesses, íbe affidavit contained all the formal requisites required, for- a change of venue. Thirteen different witnesses were mentioned who would be necessary witnesses for the defendants upon the trial of the action, twelve of whom were residents of the city of Cohoes, county of Albany, and the other residing within two miles of that city in another county.

The affidavit fully stated what was expected to be proved by the different witnesses named, and among other things, that Joseph Bavenscroft and E. N. Page are the only foremen and managing workmen of the defendants and of their rolling mill, and that Andrew Benson is the only foreman of common, unskilled laborers around said rolling mill, or employed therein, and that the plaintiff did not at the request or suggestion of either of said persons enter upon the premises of the defendants for any purpose whatever ; that on the morning of January 4, 1892, the plaintiff came to the rolling mill of the defendants without invitation or suggestion and solicited work in the mill, and that he was informed they did not need help; that he then left the premises without meeting with any accident; that on the succeeding morning, January 5th, he called again and inquired of Bavenscroft for work, and Bavenscroft replied they had none, but said he would go with the plaintiff to Andrew Benson, who had charge of the common, unskilled laborers, and inquire if he needed any help, and that the plaintiff accompanied Bavenscroft to Benson in another part of the mill and was there informed by Benson that they needed no help, and that the plaintiff immediately thereafter went out of the mill and did not receive any injury on that occasion. Three witnesses are mentioned who will testify that they heard the plaintiff say in a conversation in January, 1892, that he had received some slight injuries in defendants’ mill, but that he was not asked or invited by any one to go in the mill or on the premises, and did not go there at the request or suggestion of any one of the foremen or managing workmen of defendants’ mill; that he went there of his own free will and accord, and that he was there without leave, license or authority, and stated that the hole into which he fell was at or near the furnaces used for molting purposes by nine employes of the defendants.

These employes are stated in the affidavit to be necessary witnesses to prove that they were at work for the defendants in the mill on the 5th day of January; 1892, within a very few feet of the opening into which the plaintiff claimed to have fallen, and that if the plaintiff had fallen into the hole ag claimed they would have seen it, and that it did not occur. The affidavit states that Joseph Bavenscroft and E. N. Page are the only foremen and managing workmen of the defendants, but fails to state who were the foremen and managing workmen in January, 1892, at the time of the alleged accident.

The plaintiff’s affidavit was read in opposition to the motion; it stated that for twelve years prior to the 2nd day of March, 1892, he had been continuously a resident of the city of Cohoes, Albany county; that on that day he removed to and became a resident of the village of Canandaigua, Ontario county, New York; that he is a poor map and has no means except what he earns at his daily labor by his trade, and that if the place of trial is changed to Albany county it would be almost impossible to bring his action to trial, for the reason that he is informed and believes that the circuit calendars of Albany county are large and that the case would not probably be reached in that county for at least a year. The affidavit also stated “ that if the trial of said cause is allowed to remain in Ontario county, he is willing to stipulate that the facts which the defendant states, in his affidavit served with the notice of motion here, he expects to prove by the witnesses named therein are true; said stipulation to be used on the trial of said action, and that said defendants need not produce in court any witnesses to prove said facts so stated.”

The defendants’ motion was denied upon the condition that the plaintiff give the stipulation referred to, and thereupon the plaintiff made the stipulation, reciting that a motion having been made to change the place of trial; “ it is hereby stipulated on the part of the plaintiff that the facts which the defendant, E. N. Page, in his affidavit upon which said motion is founded, expects to prove by the witnesses named in said affidavit are true and will be admitted upon the trial of this action if the place of trial be retained in Ontario county.”

If the accident happened on the 5th day of January, 1892, on the occasion when the plaintiff was at the works and met Joseph Eavenscroft, and he fell into the hole described in Page’s affidavit, or if the admissions mentioned in the affidavit as made by the plaintiff were a true recital of what happened at the time of the accident, in either case the plaintiff has no legal cause of action against the defendants, and the trial must inevitably result in a dismissal of the complaint, and there is no justice or propriety in requiring the defendants to attend court at Canandaigua with their counsel to go through the formality of dismissing the complaint

But if, on the other hand, the plaintiff has an undisclosed purpose of fixing the time and occasion of the accident on some other day than the 5th of January, as he would probably have the right to do, as it is alleged in his complaint that the accident happened on or about the 5th day of January, 1892; or if he intends to claim that he was invited to enter the works by some other person than Joseph Eavenscroft, and on some other occasion, and intends to claim that the person who thus invited him was at the time of the accident a foreman or managing workman of the defendants, and that he fell into another or different hole than the one described in Page’s affidavit, in -either such case it would be necessary and important that the defendants should have their witnesses present at the trial to meet such an emergency. If the plaintiff intends, notwithstanding his stipulation, to bring his cause to trial, the defendants would not deem it safe to rely upon the stipulation as their only defense. ,

If after making such broad and sweeping admissions, which apparently negative the existence of any claim upon his part against the defendants, the plaintiff still insists upon going to trial, he manifestly must rely upon some facts or theory not apparent to the defendants, and which we are not ourselves able to discern from the record. We think undue importance was given by the special term justice to the stipulation:

There is no pretense that any witnesses will be needed for the plaintiff residing in Ontario county except himself. The alleged cause of action arose in Albany county. The plaintiff had resided in that county to within about three months of the time of commencing his action.

If the trial of the action is to be had, the convenience of witnesses will be promoted by its being tried in the county of Albany.

The order appealed from should be reversed, with ten dollars costs and disbursements of the appgal, and the motion to change the place of trial from Ontario to Albany county should be granted, with ten dollars costs of the motion to abide the event of the action.

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


author: Freedman, J

text:
    Esther Jacobs, Resp’t, v. Henry B. Sire, App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Breach of promise—Exemplary damages.
    In an action for breach of promise the court charged the jury that if de» fendant had wronged plaintiff purposely and intentionally, if his conduct was malicious, they were bound to give exemplary damages. Held, error; that the question whether exemplary damages should be given should have been left to the judgment and discretion of the jury, and the instruction given deprived the jury of all discretion on that question.
    Appeal by defendant from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Albert I. Sire (Christopher Fine and Chauncey S. Truax, of counsel), for app’lt; Charles W. Brooke and John Lindley, for resp't.
   Freedman, J

The action was brought to recover damages for a breach of an alleged promise of marriage.

In submitting the case to the jury, the learned trial judge charged with a good deal of particularity that, in case of a promise to marry, and a breach thereof, the plaintiff was entitled, in the first place, to recover such damages as would fully compensate her for the loss of marriage, and the items were referred to for which compensatory damages might be given. The jury were further charged that over and above such compensatory damages the plaintiff was absolutely entitled to exemplary damages upon proof to the satisfaction of the jury of certain additional facts. The precise instruction upon this point was as follows, viz.:

“If you find, having ascertained the compensation that she is entitled to, if you find that the defendant under all the circumstances of the case, judging from the evidence, the testimony, and his testimony included, has wronged her purposely and intentionally, if his conduct be malicious, you are bound to give what are called exemplary damages; in the first place, such sum as you think that it is proper for the malice of the conduct; in the secoucl place, if he is guilty, as an example to prevent other men in like ease attempting the same thing.”

This instruction deprived the jury, in case they found the facts referred to, of all discretion upon the question whether exemplary damages should or should not be given. They were told that in that event they were bound to give exemplary damages. Such is not the law.

In actions for breach of contract, with a single exception, the amount recovered is limited to the actual damage caused by the breach. The measure of damages is the same, whether the defendant fails to comply with his contract through inability', or wilfully disregards it. The exception is an action for breach of promise of marriage, in whicheexemplary damages may be given, because, although founded on contract, it is regarded as being somewhat in the nature of an action founded on tort. Johnson v. Jenkins, 24 N. Y., 252; Thorn v. Knapp, 42 id., 474; Chellis v. Chapman, 125 id., 214; 35 St. Rep., 17.

But the cases sustaining the exception go no further than to hold that it should be left to the good judgment'and discretion of the jury whether or not exemplary damages should be given.

Sedgwick and- other text writers on Damages agree upon the proposition that where there is evidence of circumstances sufficient to uphold a verdict for exemplary damages, the question whether they shall be given or not is one for the jury, and it is erroneous to instruct the jury to give exemplary damages, for the plaintiff can never recover them as matter of law.

The decision of the court of appeals in Chellis v. Chapman, 125 N. Y., 214; 35 St. Rep., 17; affirming S. C., 7 N. Y. Supp., 78; 26 St. Rep., 963, seems to have settled this question beyond any doubt, so far as this state is concerned.

Even in actions for torts of an aggravated character, it is within the discretion of the jury to say whether or not exemplary damages, or vindictive or punitive damages, as they are sometimes called, shall or shall not be given, and such discretion is to be exercised upon all the facts and circumstances as a punishrnent to the defendant, and as a protection to society against a violation of personal rights and social order. Voltz v. Blackmar, 64 N. Y., 440.

The conclusion is therefore unavoidable, that the instruction given to the jury in this case upon the question of exemplary damages was erroneous. The errror was a radical one and presumably worked substantial injury to the defendant. Upon a careful examination of the whole case I am unable to say that no prejudice to the defendant resulted therefrom. The case is therefore one in which the general term is called upon to notice the error and to rectify the damage by ordering a new trial. The power to do so does not depend upon an exception duly taken. Cumber v. Schoenfeld, 13 N. Y. Supp., 282; 34 St. Rep., 770; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y., 506; Lattimer v. Hill, 8 Hun, 171; Maier v. Homan, 4 Daly, 168; Mandeville v. Marvin, 30 Hun, 282.

Moreover, the instruction complained of was excepted to, and although the defendant's counsel, in having his exception noted, failed to complain specifically of the use of the word “ bound,” the exception as taken is sufficient, if an exception were necessary. The case therefore falls within the ruling of the court of appeals in Moore v. N. Y. Elevated R. R. Co., 130 N. Y., 523 ; 42 St. Rep., 588, to the effect that a misdirection of the court which inay have prejudiced a party cannot be disregarded on appeal.

The conclusion reached renders it unnecessary to consider any other question discussed on the appeal.

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

G-ildersleeve, J., concurs.


author: Gildersleeve, J.

text:
    Charles B. Hibbard, Resp’t, v. The Commercial Alliance Life Insurance Co., App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Reference—Compulsory—Long account.
    Where a plaintiff’s bill of particulars consists of ninety odd items, each of which is put in issue and will have to be proved by reference to the books of plaintiff or defendant, a compulsory reference is proper.
    Appeal from order granting motion for reference.

      Lucius McAdam, for resp’t; George Wilcox, for app’lt.
   Gildersleeve, J.

This action was begun for the purpose of recovering commissions alleged to be due under a written contract between plaintiff and defendant The complaint sets up the contract, and refers thereto as to the respective rights of the parties; and annexed to the complaint is a schedule, or bill of particulars, showing a long account, upon which plaintiff claims commissions under the contract, and giving the numbers of policies, names of the insured and amounts paid, and the commissions alleged to be due to plaintiff thereon. The answer of defendant is substantially a general denial as to the existence of the contract and as to each and all of the amounts claimed by plaintiff, set forth in his schedule or bill of particulars.

Upon plaintiff’s application, the special term ordered a reference, against the objection of defendant, and from the order granting the motion for a reference the defendant appeals.

The statute, Code, § 1013, provides that “the court may, of its own motion, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact by a referee, where the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law,” etc.

The questions of law expected to arise must be pointed out specifically, and in such manner as to enable the court to determine whether they are of any real difficulty. Patterson v. Stettauer, 39 N. Y. Super.. 413; Millen v. Fogg, 13 N. Y. Supp., 614; 37 St. Rep., 366; Cass v. Cass, 16 N. Y. Supp., 233; 41 St. Rep., 38 ; Salisbury v. Scott, 6 Johns., 329; Dewey v. Field, 13 How. Pr., 439. No questions of law are indicated that may be expected to arise upon the trial, and no contention is made on this appeal under the provisions of the statute on this point.

Under the general denial in the answer it will be necessary, upon the trial of this action, among other things, to examine each and every policy falling under the contract as to its issuance and the payments thereon, and the commissions due thereon. This will involve the examination of a long account on the side of the plaintiff consisting of some ninety odd items. Clearly, where a plaintiff’s bill of particulars consists of ninety odd items, each of which is put in issue and will have to be proved by reference to the books of plaintiff or defendant, a compulsory reference is proper. Canda, v. Robbins, 28 St. Rep., 394. The special term has found in effect that the trial of the issues will require the examination of a long account. We think, upon a full consideration of all the matters alleged in the pleadings and in the affidavits before the special term, that the finding was warranted, and we are not disposed to interfere with the same. Cass v. Cass, 16 N. Y. Supp., 233 ; 41 St. Rep., 38.

The papers upon which the order was granted meet with the requirements of the statute.

Order appealed from is affirmed, with ten dollars costs and disbursements.

Freedman, J., concurs.