text:
    Michael McLoughlin, Resp’t, v. New York Lighterage and Transportation Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)
    1. Negligence—Contractor.
    The rule “respondeat superior ” does not apply where the negligent party is not the agent of the defendant, but an independant contractor.
    2. Bailment—Care.
    A bailee for hire is held to the exercise of ordinary care ón the part of himself and his servants, and he may be made to respond in damages only for the omission to exercise such care.
    Appeal from a judgment for plaintiff, recovered in the district court, in the city of Rew York for the second judicial district Action to recover damages for injuries sustained by plaintiff’s canal boat while in the employ of defendant as charterer thereof

      Charles W. Coleman, for app’lt; Henry W. Goodrich, for resp’t
   Bischoff, J.

Plaintiff was the owner of the canal boat “ H. B. Moore” which he chartered to defendant for the year expiring about January 1st, 1893. Thereafter, at various times during the year 1893, the boat was employed by defendant upon “catch time,” which was defined to mean the time intervening between the first receipt and the last discharge of freight. During the period of the charter, as well as while the boat was employed upon “ catch time,” it was injured while in the tow of tugs which were engaged by defendant to move the boat from place to place. These tugs were severally owned by the Easton & Amboy Rail-' road Company and with others constituted the fleet" of the Perth Amboy Towing Line, which was engaged in the business of towing, and the persons in command of the tugs were the employees of the latter. The evidence adduced on the trial indisputably shows that the injury sustained by plaintiff’s boat was, in each instance, the result of the carelessness or negligence of those in command of the tugs, and that the damages amounted to the sums awarded by the court below. The only question therefore which this appeal presents for our consideration is whether or not the defendant, as charterer or lessee of plaintiff’s boat, should respond in damages for the injuries.

The Perth Amboy Towing Line, being engaged in the business of towing, its relation to defendant was that of an independent contractor. Shearman & Redf. on Neg. §§ 76, etc.; Peck v. Mayor, etc. 8 N. Y. 222; Kelly v. Mayor, etc. 11 N. Y. 432; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181, citing Blake v. Ferris, 5 N. Y. 48; Am. & Eng. Ency. of Law, vol. 3 p. 822; Anderson's Law Diet. p. 251. Hence the Towing Company was not the agent of the defendant, nor the master and crew of the tugs its servants, Sturgis v. Boyer, 24 How. U. S. 110; Jackson v. Easton, 7 Benedict, 191, and the rule respondeat superior does not apply. Broom’s Legal Maxim's 843.

Assuming next, as respondent’s counsel contends, that the relation of plaintiff and defendant, with regard to the former’s boat was that of bailor and bailee for hire, or mutual gain, then the evidence is equally deficient to sustain the recovery. A bailee for hire is held to the exercise of ordinary care on the part of himself and his agents and servants, and he may be made to respond in damages only for the omission to exercise such care. The failure to return the chattel, or its return in a damaged condition, may be prima facie evidence of negligence, but if it be shown that the loss or damage of the chattel was not the result of the carelessness or negligence of the bailee, or of his agents or servants, the bailee is not liable. Claflin v. Meyer, 75 N. Y. 260; Siegman v. Keeler, 4 Misc. R. 530 ; 54 St. Rep. 125. What the effect of an agreement by defendant to return the boat in good condition would have been, it is unnecessary to discuss since no such agreement appears in the case at bar and the cases cited by respondent’s counsel in that respect have therefore no relevancy. No doubt exists of plaintiff’s right to recover against the employees of those in command of the tugs. The Wm. H. Webb v. Barling, 14 Wall. 406; Margaret v. Bliss, 94 U. S. 494.

Of the recovery defendant conceded its liability for twenty dollars for the use of plaintiff’s boat, and the judgment should therefore be reversed unless plaintiff will stipulate to reduce his recovery to twenty dollars with interest and the costs upon such recovery below in which event the judgment, as so reduced, is affirmed without costs. If such stipulation is not filed within ten days from service of the order to be entered herein the judgment is reversed with costs to appellant, and a new trial ordered.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Samuel Haas et al., Resp’ts, v. Mary Green, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    I. Appeal—Conflicting Evidence.
    The decision of a justice, upon conflicting evidence, will not be disturbed on appeal.
    8. Witnesses—Credibility.
    The testimony of interested witnesses are not conclusive.
    3. Evidence—Expert.'
    The competency of an alleged expert witness is a preliminary question of fact to be determined by the court, and its determination is generally conclusive unless contrary to the evidence, or there is no evidence, or no sufficient evidence, to support it.
    4. Same.
    The fact that the witness has abandoned his studies as a chemist and devoted himself to the occupation of a druggist, vending drugs and toilet articles exclusively, does not render him any less competent.
    Appeal from a judgment of the district court in the city of •Hew York for the eleventh judicial district in plaintiff’s favor. Action to recover the agreed price of sundry garments sold and ■delivered to defendant.

      Edw. J. McGanney, for resp’ts; Wm. N~, Cohen arid Benj. Tuslca, for app’lt.
   Bischoff, J.

Plaintiffs sued to recover the sum of one hundred .and ninety-seven dollars the agreed price of sundry garments sold and delivered by them to defendant. Defendant conceded her indebtedness for one hundred and fifteen dollars but disputed plaintiffs’ right to recover the remaining eighty-two dollars, the price of a waist and skirt, on the ground that they had been delivered to her in a damaged condition and that she had tendered a return thereof. The contest on the trial, therefore, was narrowed down to the inquiry whether the waist and skirt were damaged before delivery thereof "to defendant, or thereafter. Concerning the subject matter of this inquiry nineteen witnesses were examined and the court below determined the issue in plaintiffs’ favor upon conflicting testimony. Ho purpose of general interest can be subserved by a discussion of the evidence in detail. It has, however, received our careful scrutiny, and while it may be that if we had been called upon to decide in the first place we would have reached a conclusion at variance with that of the justice below, wé are notwithstanding unable to say that he erred, since it was his peculiar province, no jury trial having been demanded, to determine the degree of credibility to which the statements of the several witnesses were entitled and the superior advantage of the trial justice in this respect, of personally observing the witnesses while under examination, should deter us from substituting our conclusion for his.

Assuming, as defendant’s counsel contends, that the burden of proving delivery in good order was upon plaintiffs, there was sufficient plausible evidence to discharge it, and with the question of the credibility of the witnesses determined in plaintiffs’ favor which we must assume for the purposes of the judgment appealed from, we are unable to say that the decision of the trial justice adversely to defendant was against the weight of evidence. All of the witnesses who testified to the condition of the waist and skirt at the time of, or immediately before delivery thereof to defendant, and those who testified to the custody of the garments after delivery were interested in the issue of the trial, plaintiffs and defendant directly so, and the employees of the former, as those of the hotel where defendant resided, indirectly, to avoid the imputation of carelessness or negligence or worse. Hence the statement of neither of these witnesses was conclusive. Elwood v. W. U. Tel. Co., 45 N. Y., 549; Kavanagh v. Wilson, 70 id. 177; Gildersleeve v. Landon, 73 id. 609: Wohlfahrt v. Beckert, 92 id. 490 ; Honegger v. Wettslein, 94 N. Y., 252 ; Canajoharie Nat'l Bk. v. Diefendorf 123 id. 191; 33 St. Rep. 389. That the egregious stains which disfigured the garments and destroyed their utility for wear were caused by the malicious act of some unknown person before delivery to defendant, because it appeared that two years before a strike had occurred among some of the employees of plaintiffs’ establishment, and that one of plaintiff^’ business cards was found pinned to the garments bearing the words “ dun for now ” in pencil, was conjectural merely and not a legitimate inference. Such a conjecture may afford a possible solution in the absence of accurate explanation. Other conjectures, however, are equally plausible, and neither should therefore, take the place of inference which is the inevitable conclusion reached by a rational mind from facts.

It was shown on plaintiffs’ behalf that between 7.30 and 7.45 o’clock in the evening of May 6th the waist and skirt, with the other garments, were folded and packed in the boxes in which they were subsequently delivered to defendant, and so carried out of plaintiffs’ establishment to the delivery wagon in the street in front thereof, and that at this time the garments were free from any stains. The employees in charge of the delivery wagon testified that the boxes remained unopened while in their custody, and that they were delivered at defendant’s address about 8 o’clock. The employees of the hotel where defendant resided testified to the receipt of the packages at 7.55 P. M., and to the delivery thereof in defendant’s hands at 8 o’clock, five minutes later, untampered with by them. The boxes containing the garments were not stained, and it is inexplicable how the stains could have been made without opening the boxes from the fact that the stains appeared on the exposed side of the garments when in wear, which, however, in packing had been folded in with the lining outside. These facts unquestionably justified the finding that the garments were delivered in good order. Defendant admitted the receipt of the packages at 8 o’clock and asserted that they remained in her room and custody unopened until 10 o’clock, when her maid, having returned at that time, she directed the packages to be opened and for the first time discovered the stains. Defendant further asserted that during the time the packages remained unopened and in her room she was constantly present and that no one had access to them. This fact, if so, refutes plaintiffs’ claim of the delivery of the garments in good order, and with apparently equally reputable witnesses it is difficult to reconcile their statements. It is possible, however, that defendant did leave her room, a fact which she may have failed to recollect, and that during the time of her absence the damage to the garments may have been committed by some unknown person with malevolent intent, or perhaps through carelessness, and from the inconclusiveness of the statements of a party in interest we must infer that the court below so found.

Ho error of sufficient gravity to require reversal of the judgment appears in the rulings of the trial justice. Keyser, a druggist, was examined as an expert witness for plaintiffs to determine the character of the stains. Defendant’s counsel objected to this testimony on the ground that the competency of the witness had not been shown, and after cross-examination moved to strike the testimony out on the same ground. Sufficient, however, appeared to show that the witness bad some familiarity with the subject matter of his examination, and in such a case the appellate court should not reverse. The competency of an alleged expert witness is a preliminary question of fact to be determined by the trial court, and its determination that the witness is competent will be generally regarded as conclusive unless there is no evidence whatever, or no sufficient evidence, to support it, or the determination is contrary to the evidence. Slocovich et al. v. Orient Mut. Ins. Co., 108 N. Y., 56, 62; 12 St. Rep. 806. That the witness had abandoned his studies as a chemist and devoted himself to the occupation of a druggist, vending drugs and toilet articles exclusively, did not render him any less competent. As the court of appeals said in Bearss v. Copley, 10 N. Y., 93, 95, “ There was nothing in the change of employment from tanning hides to the study of law which would necessarily deprive him of the skill acquired in his original trade.” See also Roberts v. Johnson, 58 N. Y., 613.

The trial justice asked the witness, “Do you consider yourself an expert to testify whether a fluid upon a dress or skirt or waist is of carmine or not ? ” This was certainly error as involving the substitution of the witness’ opinion for the fact to be determined by the court, Rogers’ Expert Test. § 17, but however that may be no objection was made to the question.

A card was produced bearing the words legibly in pencil “ Dun for now,” and it was contended that other writing was discernible with a microscope. For the purpose of determining this the defendant’s counsel requested an adjournment, alleging surprise, which the justice refused. This was no error. The subject matter of the proposed inquiry was not one proper for expert testimony and was determinable by the justice from inspection.

The judgment should be affirmed with costs.


author: Giegerich, J.

text:
    William P. McGloin, Resp’t, v. George H. Jones, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Judgment—Transfer of Title.
    A judgment for damages by reason of false representations made upon the sale of a chattel does not, of its own force, transfer the title to the property.
    Appeal by the defendant from a judgment of the district court in the city of New York for the fourth judicial district, rendered by the justice thereof without a jury.
    Action to recover a chattel. The opinion states the material facts.

      Samuel Mullen, for app’lt; Thomas Codey, for resp’t.
   Giegerich, J.

This action was brought to recover < the possession of a sewing machine. The plaintiff claimed and obtained a judgment for the possession of the same, or, if such possession be not given for $28, its assessed value, but upon what theory it is difficult to conceive. The oval evidence received upon the trial consisted solely of an examination of the plaintiff and was to the effect that the defendant had in his possession a sewing machine belonging to such plaintiff valped at $28, that return of the same had been demanded and that the demand had been refused. It further appeared that the chattel in question was the same machine with regard to which an action had been brought by this defendant against this plaintiff and in which action $16 damages and $4 cost had been recovered by the plaintiff therein, this defendant.

The plaintiff testified that he had paid such prior judgment and the justice awarded judgment for him herein, as above noticed. The only evidence received for the defendant was the judgment roll and bill of particulars in the former action and no attempted contradiction of or objection to such evidence appears. By this evidence it appears that the defendant had purchased from the plaintiff the machine in question and had paid for the same the sum of $28, that he had found it not as represented, had offered to return it; the offer was refused and he then brought his action for damages for the alleged false representations which resulted in the judgment for $16 before referred to. There is no evidence in support of the plaintiff's title to the chattel to dispose the title of the defendant, as shown by his evidence of the purchase of the same and payment of the price therefor. The judgment roll in the former action between the parties, received in evidence for the defendant shows merely that damages were awarded this defendant for false representations and no mention of any award of the chattel to the present plaintiff appears from that record. That such a judgment transfers the title to the property by its own force, is a proposition which cannot be seriously entertained.

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


text:
    Michael J. Smith, Resp’t, v. The American Society for the Prevention of Cruelty to Animals, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Negligence—Ambulance.
    An ambulance is entitled to the right of way.
    2. Same.
    An action cannot be maintained to recover for injuries to plaintiff’s wagon caused by a collision with defendant’s ambulance, where the collision was the fault of those to whom the former had entrusted his wagon.
    Appeal from a judgment for plaintiff rendered by the district court in the city of New York for the eighth judicial district.
    Action to recover damages for injuries to plaintiff’s wagon sustained in a collision with defendant’s ambulance through the alleged carelessness of the driver of the latter.

      James F. Higgins for resp’t; Horace Russell and Jabish Holmes, Jr., for app’lt.
   Bischoff, J.

It is indisputable upon all the evidence that the collision of which the plaintiff complains was the result of recklessness or carelessness on the part of the person in charge of his wagon at the time.

Shortly before the accident defendant’s ambulance was proceeding up-town in the up-town or easterly car track on Broadway, between Forty-eighth and Forty-ninth streets, and immediately in the rear of a car. At this time plaintiff’s wagon was coming down-town on the right hand side of the centre of the roadway and about three feet distant westerly from the westerly rail of the westerly or down-town track, and in the full and unobstructed view of the approaching ambulance. Intending to get out of the way of the car, by which the ambulance’s course was obstructed, the driver of the latter crossed the roadway into the westerly or down-town track, the wheels of the ambulance projecting about a foot beyond the rails, along which he continued in an up-town direction to a point where, seeing an approaching down-town car, he attempted to turn again into the easterly or down-town track. In doing so one of the wheels of the ambulance was caught in the rail and the ambulance was swung about violently in a westerly direction just as plaintiff’s wagon had reached a point in its course which was about three feet distant westerly from the westerly rail of the westerly or down-town track and immediately opposite the ambulance. Thus the two vehicles collided.

The ambulance was entitled to the right of way. L. 1879, ch. 186; R. S. vol. Ill, p. 2086, Banks Bros. 7th ed. Hence it was incumbent upon those in charge of plaintiff’s wagon, upon seeing the ambulance approaching in an opposite direction, to deviate from their course sufficiently to enable the ambulance to turn out of the down-town track to avoid its collision with a car approaching toward it on the same track. Instead of so doing, those in charge of plaintiff’s wagon persisted in their course, thus leaving the driver of the ambulance no means of escape but to turn to the right or easterly side of the roadway, which he attempted to do when the collision occurred, as already stated.

The inference, therefore, is irresistible either that, seeing the ambulance, the persons in charge of plaintiff’s wagon disregarded it and its right of way, or that they failed to use the ordinary precaution of persons driving along the public highways or city streets to be on the alert for vehicles approaching in opposite direction, and so failed to see the ambulance. In either case, therefore, the collision was the fault of those to whom plaintiff had entrusted his wagon for the time being and not of the driver of the ambulance.

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


text:
    George F. Eschbach, Resp’t, v. Brian G. Hughes, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    Damages—Landlord and Tenant.
    A tenant cannot recover damages for ill-health occasioned by the landlord’s neglect to repair the,roof of the demised premises under his covenant in the lease.
    Appeal from a judgment of the district court in the city of Hew York for the third judicial district rendered by the justice, without a jury, in favor of the plaintiff.
    Action to recover damages for ill-health alleged to have been contracted because of defendant’s breach of covenant to maintain the premises demised to plaintiff in good repair.

      O. A. 0. Barrett, for resp’t; Wm. H. Ciarle, to the corporation ; Wm. E. Sweetser, for app’lt. v
   Bischoff, J.

Plaintiff, a lawyer, sued to recover damages alleged to have accrued to him by ill-health from pneumonia contracted in consequence of the damp condition of rooms rented to him for office purposes by the defendant, the dampness having been caused by the leaky condition of the'roof of the premises. The mayor, etc., of the city of Hew York defended the action because as lessors of the defendant the corporation was liable over to 1dm upon a covenant to keep the premises in repair. There is no dispute as to the amount of the damages awarded, nor as to the defendant’s duty toward plaintiff to keep the roof of the premises in repair under a covenant in the lease to plaintiff. Ho evidence whatever was adduced for defendant, and this appeal is based upon the ground that the plaintiff did not present a case to justify any recovery, and that defendant’s motion for judgment in his favor should have been granted.

It is unnecessary to consider the question of plaintiff’s alleged contributory negligence since the action must, as matter of law, fail in any event. Defendant’s alleged liability for the damages sought to be recovered of him rests upon the breach of a contractual duty towards plaintiff, the neglect to repair the roof as agreed. It is not therefore one for which damages for ill-health are recoverable. Such damages are too remote. They are not within the reasonable contemplation of the parties at the time of the making of the contract.

Neither are they an immediate or natural result of the breach, Sutherland on Damages, vol. 1, chap. 1, §4, § 48, etc., pp. 99, etc.; and so it was expressly held by this court in a like case, Chadwick v. Woodward, 12 Daly, 400. The judgment therefor should be reversed, and the complaint dismissed, with costs of this appeal, and of the court below, to appellant.


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    George W. Curtis et al., Resp’ts, v. The Saddlery Hardware Manufacturing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 28, 1894.)

    1. Appeal—Presumption.
    The theory of the case adopted by counsel upon the trial will obtain on the appeal.
    2. Same—Motion to Dismiss.
    By failing to move for a dismissal, the defendant concedes that the plaintiff’s proof is sufficient to support his cause of action.
    Appeal by the defendant from a j udgment of the district court in the city of New York for the first judicial district rendered by the justice thereof, without a jury, in favor of the plaintiffs.
    Action for goods sold and delivered. The opinion states the material facts.

      Smith & White, for app’lt, James J. Allen, for resp’ts.
   Giegerich, J.

The defendant ordered from the plaintiffs certain lap robes to be in accordance with samples furnished. The goods were made and delivered to the defendant and were shortly afterwards returned, the ground assigned being that they did not correspond to the samples. These robes as ordered were of two varieties, viz.: “50 No. N Lap Robes and 50 No. 0 Lap Robes.”

Plaintiffs admitted at the time of the return of the goods that the “ N ” robes did not answer to the samples sent and accepted them, crediting defendant with the agreed price therefor, upon the bill which they then sent for the full price of the whole order. Upon this bill appears the statement that the plaintiffs held the “0” robes subject to defendant’s order, and they now sue for the agreed price of such “ O ” robes.

According to the testimony of one of the plaintiffs, the goods in question were as called for by the sample, and in direct opposition to this proof we have the evidence adduced on behalf of the defendant. No motion for a dismissal of the complaint was made and no exceptions were taken upon the trial. The appellant relies upon two grounds substantially: First, that the judgment is against the weight of the evidence; and second, that the order for the goods was, in effect, an entire contract, and that therefore, the defendant was justified in rescinding the whole contract upon finding that one lot of goods was not in accordance with the agreement

This latter ground might, indeed, constituted a good defense if relied upon at the trial, but, under the circumstances of this case, it cannot avail on appeal. From the record it appears that the theory adopted by counsel upon the trial was that the contract was not entire; the whole question litigated being as to the proper performance of that portion of the contract for which payment was claimed and, for the purposes of review, this theory must obtain. Siegman v. Keeler, 4 Misc. R. 528; 24 N. Y. Supp. 821; 54 St. Rep. 125. Moreover, by failing to move for a dismissal, the defendant conceded that the plaintiff’s proof was sufficient to support their cause of action. Carroll v. O'Shea, 21 N. Y. Supp. 956; 51 St. Rep. 579; Gaylord v. Gallagher, 20 N. Y. Supp. 682 ; 48 St. Rep. 704.

As to the merits of the particular lot of goods in question, the determination of the justice must here be conclusive, in view of the character of the evidence. Lynes v. Hickey, 4 Misc. R. 522 ; 24 N. Y. Supp. 731; 54 St. Rep. 120; Schwartz v. Wechler, 2 Misc. R. 67; 20 N. Y. Supp. 861; 49 St. Rep. 145; Weiss v. Strauss, 14 N. Y. Supp. 776; 39 St. Rep. 78.

The determination of this conflict as to facts was pre-eminently for the trial justice, and having the witnesses before him, he was better able to judge of their credibility and of the weight to be given to their testimony than is the appellate court. We are unable to say that the judgment is against the weight of evidence. “ Ponderantwr testes, non numerantur.” The judgment should be affirmed with costs.

Bischoff, J., concurs.


text:
    Elizabeth W. White, Resp’t, v. Jose Balta, App’lt.

      (New York Common Pleas, General Term,

      Filed February 28, 1894.)

    Appeal—Conflicting Evidence.
    In case of a direct conflict of evidence, the determinati on of the justice upon a material question of fact will not he disturbed.
    Appeal by the defendant" from a judgment of the district court in the city of Rew York for the third judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff.
    Action for rent. The opinion states the material facts.

      Jones & Govin, for app’lt; Olcott & Olcott, for resp’t
   Giegerich, J.

The plaintiff sued for rent due on the first day of May, 1893, under the terms of a written lease. There is no dispute as to the due execution of the lease, nor as to the proper demand having been made for the rent in question, nor as to the refusal of payment. The defendant relied upon the terms of a certain letter addressed to him by the plaintiff’s general agent, one Hoffman, and sought to establish thereby, and by his testimony as to the understanding of the parties, the presence of a condition precedent to the contract of lease, which was not incorporated in the instrument. The letter referred to is as follows: “ Jose Balta, * * * Dear Sir.: It is hereby understood that as soon as possible I am to make a direct entrance from the store Ho. 80 Beaver Street, to the street, being the store you have this day leased. Yours truly, Wm. M. H. Hoffman.”

The defendant testified that the understanding was that such door should be constructed by May 1st, the date when he was to have possession of the premises by the terms of the lease; that upon such date the premises not having been altered in accordance with the understanding, he refused to take possession and to pay the rent then due under such lease. The plaintiff’s agent, Hoffman, testified that there was no such agreement as to the date when the door should be put i.n; that the agreement was as embodied in the letter referred to and that the words “ as soon as possible ” had reference to the possibility of procuring the consent of a certain other tenant to the alteration contemplated. Hot an exception appears in the case and not the slightest objection was made to the defendant’s testimony as tending to vary the written instrument in suit. This evidence was therefore to be considered in the determination of the issues. Crane v. Powell, 139 N. Y. 384; 54 St. Rep. 659; and cases cited, but even so, no more than a direct conflict of evidence, upon this question of a condition precedent results and the justice’s determination in favor of the plaintiff is not to be disturbed. Weiss v. Strauss, 14 N. Y. Supp. 776; 39 St. Rep. 78; Schwartz v. Wechler 20 N. Y. Supp. 861; 49 St. Rep. 145 ; 2 Misc. R. 67; Lynes v. Hickey, 4 Misc. R. 522 ; 24 N. Y. Supp. 731; 54 St. Rep. 120. It is by no means to be inferred from the record in this case that the justice was actuated by bias or predjudice in his determination, or that he failed to deliberate upon the whole testimony. The appellant’s burden of showing error in the determination of this question of fact, Boyd v. Fumonte, 4 Misc. 604; 54 St. Rep. 244, has not in this case been undertaken, much less has it been sustained. Moreover the evidence on the trial did not preponderate in favor of the defendant's contention for a condition precedent to the lease. The only fair construction to be placed upon the words “as soon as possible,” appearing in the letter from Hoffman, would be that this possibility could effect the defendant’s enjoyment of the premises only after the period of his occupancy commenced.

The judgment should be affirmed with costs.

Bischoff, J., concurs.


text:
    Benjamin J. Falk, Resp’t, v. Henry Wolfsohn, App’lt.

      (New York Common Pleas, General Term,

      Filed February 28, 1894.)

    I. Evidence—Parol.
    Where the writings do not contain a complete expression of the contract, parol evidence is admissable to show fully what is the agreement.
    8. Contract—Partees.
    Where a person has been in the habit of dealing with another as agent, and. disclosed, in llie particular matter, his agency, the burden is upon the latter, in order to charge him personally, to show that he dealt, in this case, otherwise than formerly or that he interposed his personal liability.
    Appeal by the defendant from a judgment of the district court in the city of New York for the sixth judicial district, rendered in favor of the plaintiff on a trial had before the justice of the fifth judicial district acting in the absence of the justice of said first mentioned district court, without a jury.
    The nature of the action and the material facts are slated in the opinion.

      Benno Loewy for app’lt; B. Lewinson for resp’t.
   Giegerich, J.

This action was brought to recover for services rendered and goods furnished as indicated on the following bill;

“Mr. Henry Wolfsohn, 331 East 14th street.
May 16, 1893, Making plates for etching Miss Van
Stosch.................................... $40 00
500 prints of same................................ 40 00
Making..................................... $80 00"

The negotiations were begun orally in an interview between the defendant and the plaintiff’s manager. Some details, such as time, price, etc., were not settled, and the following letters were subsequently exchanged:

“April 26, ’93.
“Mr. Henry Wolfsohn,
Dear Sir: —We find that it will take at least two weeks to deliver any photogravures, such as you wish to order of Miss Van Stosch. The cost of making the plate will be $40, and the cost of 500 copies will be eight cents apiece, making your entire order $80. Regarding the ownership and possession of the plate, we would say that we cannot depart from our rule in this matter. The property of the plate is ours. The amount that you pay is merely for the cost of making the same. If the above points, are clear and satisfactory to you, please let us know at once and we will proceed with your order.
Very respectfully yours,
FALK.”

To this the following reply was sent:

“Henry Wolfsohn’s Musical Bureau,
Manager for Leading Artists.
New York, April 27, 1893.
B. Falk, Esq.,
Dear Sir : — Received your note. Please go on with the Van Stosch pictures. Very truly,
HENRY WOLFSOHN.”

It is obvious upon the face of these letters that they do not contain a complete expression of the contract and that parol evidence is admissible (it might be said indispensable) to show fully what the agreement was. Beach v. Raritan & Del. Bay R. R. Co., 37 N. Y., 457; Arms v. Arms, 13 St. Rep., 196; 1 Greenleaf on Ev. [10th ed.], § 275, p. 385; § 284, p. 397.

The parties evidently took this view of it on the trial as no objection appears upon the record to the introduction of the oral evidence. Looking therefore to the entire evidence to discover whether the defendant made the contract as agent for Miss Van Stosch or on his personal account, it is found that the plaintiff’s manager admitted on cross-examination that he knew from defendant’s own statements, made to him in the course of their business dealings, that defendant was Miss Van Stosch’s agent and manager.' Furthermore it is shown by the defendant’s uncontradicted testimony that he had, as agent, habitually dealt with the plaintiff in giving orders for similar work; that he had authority from Miss Van Stosch to give this order and that he had disclosed the fact of his agency to the plaintiff. True, the plaintiff’s manager denies that this particular transaction was with defendant as agent. He testifies: “We did not make them for him in any capacity whatever, except for Henry Wolfsohn. His capacity was not concerned in the transaction.” This is nothing more than a loose conclusion of the witness, and nowhere in the record is there any evidence of anything said or done by the defendant, which would warrant an inference that he in this case dealt otherwise than as formerly or that he interposed his personal liability. This should have been shown in order to charge him with liability. Buck v. Amidon, 4 Daly, 126; Hall v. Lauderdale, 46 N. Y., 70.

The judgment is not supported by the evidence, and it should therefore be reversed and a new trial ordered with costs to abide the event.

Bischoff, J., concurs.


author: Daly, C. J.

text:
    Ludwig Ruser Resp’t, v. The Union Distilling Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 5, 1894.)

    1. Attachment—Discontinuance.
    An omission to acquire jurisdiction of defendant by service or publication of summons renders the attachment unauthorized and void, and the attaching creditor a trespasser from the beginning.

      2. Attobney and Client—Assignment.
    An assignment of a claim by a client to his attorney, not with the intent and for the purpose of bringing an action upon it, but to secure an indebtedness of the assignor to him, is not void under § 73 of the Code.
    Appeal by defendant from a judgment of the general term of the city court affirming a judgment in favor of the plaintiff entered upon the verdict of a jury for $1,635 damages, besides costs. The action was for damages for the seizure of the stock in trade, fixtures, etc., of the store of plaintiff’s assignor, Henry Ruser, under a warrant of attachment against him, which was subsequently vacated for failure to serve or publish the summons in the action within thirty days after the granting of the attachment, as provided by the Code, § 638. The defences in the action are discussed in the opinion.

      Samuel M Duffey (S. F. Kneeland of counsel) for app’lt; James A. McOreery, for resp’i
   Daly, C. J.

It being conceded that the attachment was properly vacated because of the failure of the attaching creditors to make personal service of the summons in their action or to commence publication thereof within thirty days after the granting of the warrant, the question raised in the city court and upon this appeal is whether the plaintiffs in the attachment suit were trespassers in procuring the warrant and the seizure under it.

This depends upon whether the omission to acquire jurisdiction of the defendant by service or publication of the summons rendered the attachment unauthorized and void from the begining.

The lawr protects the officer who executes a warrant of attachment which is regular when issued, and provides that if it be subsequently vacated or annulled his duty is to deliver upon demand to the defendant or the person entitled thereto, upon payment of his legal costs, charges and expenses, all the attached property remaining in his hands, or the proceeds, if it has been sold by him, Code §709. But no such protection is extended to the party issuing out the attachment if it fails through his omission or neglect. He procures the attachment to be issued upon condition that he will sustain the jurisdiction he revokes by compliance with the provisions of law in that regard; and if he suffers his process to become invalid by his neglect of the statutory duty imposed upon him he is as much a trespasser as if he had procured a void process in the first instance. That this is so upon principle cannot be questioned, and the liability is established by legislative enactment as well as by judicial authority.

The Code (§ 416) declares that from the time of the granting of a provisional remedy the court acquires jurisdiction, but that, nevertheless, the jurisdiction thus acquired is conditional and liable to be divested in a case where the jurisdiction of the court is made dependent by a special provision of law upon some act to be done after the granting of the provisional remedy. Such special provision of law is found in § 638 already referred to, where it is made imperative that personal service of the summons in or out of the state must be made, or publication thereof must be commenced within thirty days after the warrant of attachment is granted. Where this is omitted the conditional jurisdiction is divested; that is to say, the court is stripped of the power that enabled it to issue the warrant and the process remains as wholly , unauthorized by law.

In Fischer v. Langbein, 103 N. Y., 90 ; 2 St. Rep., 768, it is said that “Void process is such as the court has no power to award, or has not acquired jurisdiction to issue in the particular case, or which does not in some material respect comply in form with the legal requisites of such process, or which loses its validity in consequence of non-compliance with a condition subsequent, obedience to which is rendered essential. * * * In all cases where a court has acquired jurisdiction in an action or proceeding its order made or judgment rendered therein is valid and enforceable and affords protection to all persons acting under it, although it may afterwards set aside or reversed as erroneous.” The distinction is here pointed out between process which is void for want of jurisdiction and process set aside for error committed by the court upon the hearing, but not for any jurisdictional defect. Such was the character of the process in Day v. Bach, 87 N. Y., 56, relied upon by the defendants. The attachment in that case was set aside by the general term on the ground that the affidavits on which the motion to vacate was made answered the charges in the affidavits on which the attachment was issued. There was, therefore, a reversal for error and the setting aside of the attachment on that ground did not deprive the defendants in the case of their justification under it. '

In the case of Blossom v. Estes, 84 N. Y., 617, the attachment failed- for neglect to serve or publish the summons, and the court says: “ The jurisdiction which attached upon allowance of the warrant ceased as to that proceeding, which was as if the statute had been repealed. * * * When challenged by this motion to uphold the attachment it was part of the plaintiff’s case to show the issuing of a summons, and that thirty days, therefore, had not elapsed, or that within thirty days one of the conditions had been performed; failing in that they were no better off than if the statute had not been passed.” Thus, in the strongest language, the court shows the effect of the failure to comply with the conditions upon which jurisdiction depended. The attachment m such a case is to be regarded as issued utterly without the sanction of law. The enforcement of such process would unquestionably be a trespass.

In Waffle v. Goble, 53 Barb. 517, the supreme court says, in a case where the summons was served without the state under a proper order, but more than thirty days after the attachment was granted: “ Up to that time no action had been commenced and none was depending and the warrant of attachment had nothing to support it, but was wholly void and should have been set aside.” These cases support in the most emphatic manner the doctrine contended for by the plaintiff in this action, that by reason of the neglect of the attaching creditors to secure the jurisdiction necessary to uphold their warrant the latter was void. The liability of defendants as trespassers for acts done under a void warrant cannot be questioned and the court properly ruled that they were liable for the levy and seizure of the goods of the plaintiff’s assignor that their warrant of attachment was no justification, and so the original taking of plaintiff’s property was unlawful.

The defendant sets up as a defence to this action the issuing and levy of a subsequent attachment in another action brought by it against the plaintiff’s assignor and a subsequent sale of the attached property. Proof under this defence was properly excluded. The subsequent process was no protection to the defendants. It was not a defence to the whole or any part of the cause of action set up in the complaint. It was not available in mitigation of damages like a subsequent seizure under bone fide process in favor of a third party. “ Where the party who wrongfully takes the property of another procures it tobe afterwards seized and sold under process in his own favor it affords him no protection in any form.”. Wehle v. Butler, 61 N. Y., 245.

A third defence was interposed that the plaintiff, an attorney at law, took the assignment of this cause of action for the purpose of bringing an action thereon and that such transfer is within the provisions of § 73 of the Code, and void. This defence was fully disposed of by th'e jury upon the testimony in the case, showing that the assignment was not taken with the intent and for the purpose of bringing an action thereon, but to secure an indebtedness of the assignor to him.

No errors appear in the record and the judgment must be affirmed.

All concur.


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    Cornelius F. Timpson, Resp’t, v. Henry Allen et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 28, 1894.)

    1. Brokers—Stock.
    The receipt and deposit of a check, drawn to the order of stock brokers and brought to them by their agent, make them liable to account to the drawer for the proceeds, which they cannot safely pay out except under his direction.
    2. Same. *
    Though the account is kept in agent’s name, his orders will not protect them ; they are bound to ascertain what are the actual orders which he received from the owner.
    3. Same.
    In such case, their liability is the same as though they had notice of the facts, which inquiry could or might have elicited.
    4. Same.
    The presumption that the person in whose name the account stands is the party m interest, does not arise, where such person is an employe or agent, and the real party in interest has been disclosed.
    5. Same.
    The principle that where one of two innocent parties must snffer from the act of a third person,-etc., is not applicable, where the brokers, without inquiry, treat the account and moneys as the property of their own agent, thus assisting him to inflict a loss upon the customer.
    6. Same.
    They are chargeable with their own knowledge derived from the receipt of the customer’s check to their order.
    Appeal by defendants from a judgment in favor of plaintiff entered upon the report of a referee. The action was brought for an accounting against defendants as brokers, and for the value of one hundred shares of Tennessee Coal and Iron stock purchased and held by them on plaintiff’s account. The referee found $2,-303.76 due from defendants to plaintiff,'with interest from November 15th, 1892. and gave judgment accordingly.

      Charles H. Brush. (Charles F. Mathewson, of counsel), for app’lts; William, A. Abbott, for resp’t.
   Daly, C. J.

The defendants Henry Allen & Co. were grain and stock brokers in the city of Hew York and W. J. II. Ballard was employed in their office. He was not hired by the firm, but by one Palmeter, an employee of the firm, and received a salary which was paid by the firm, but charged to Palmeter. His employment in and about the office and business of the defendants was ostensibly that of a clerk, or of one connected with the business and transacting it with and for the firm’s customers. He solicited custom and business for the defendants and actually had authority to direct the opening of accounts with customers he procured, his orders in respect thereof and and in the management of the accounts being obeyed by the firm and its employees and his directions for buying and selling given, or transmitted by him to the Board member of the firm were duly executed.

He induced the plaintiff to open an account with the defendants, first for speculations in grain, afterwards in stocks, the latter to be carried on under the name of Ballard A. He received from the plaintiff checks for money to open these accounts, which checks were drawn by the plaintiff to the order of the defendants and received by their' cashier, indorsed by him in their name and deposited to their credit. Ballard directed the accounts to be opened in the name of W. J. H. Ballard A. and his directions were obeyed. Subsequent checks for margins were drawn by plaintiff to defendant’s order and indorsed and deposited like the others. Ballard bought and sold stocks as directed by plaintiff from ti me to time and among other stocks bought by plaintiff’s direction were one hundred shares of Tennessee Coal and Iron. This stock was subsequently sold, without plaintiff’s knowledge, by the direction of Ballard, who also drew and appropriated to his own use moneys from the account in fraud of plaintiff’s rights, with the result that the account showed ultimately an indebtedness to defendants. When the plaintiff, appraised of the misdeeds of Ballard, demanded an accounting, the defendants ignored any interest on his part in the account and claimed to be protected by the orders of Ballard, an ostensible principal in the transactions.

The authority of Ballard, actual and apparent, constituted him the agent of defendants in dealing with the plaintiff, so that the directions of the latter given to Ballard, were, in effect, given to defendants the same as if they had been personally communicated to them. They knew that the account he opened in his own name was the account of a customer and that the customer was the plaintiff; this knowledge being imparted to them by the plaintiff’s check drawn directly to their order with which the account was opened and they assumed the obligation to faithfully carry out plaintiff’s instructions. In buying or selling and paying out moneys on Ballard’s order they took all the risk of his fulfilment of plaintiff’s orders, the same as if such orders had been communicated to one of the firm.

The receipt and deposit of the plaintiff’s check drawn to their order and brought to them by Ballard made them liable to account to plaintiff for proceeds which they could not safely pay out, except under 'the direction of the lawful owner. Sims v. U. S. Trust Co., 103 N. Y. 472 ; 4 St. Rep. 205. The orders of Ballard did not protect the defendants, who were bound to ascertain what were the actual instructions he received from the plaintiff. Had they inquired, it would have been disclosed that the account which Ballard opened with checks in his own name, was the plaintiff’s account, to be known as Ballard A. and that the instructions given to Ballard were given to him as the agent of defendants. As they refrained from making an inquiry, the liability of the defendants is the same as if they had notice of the facts which inquiry could, or might, have elicited.

The several grounds upon which defendant seeks to escape liability will be considered. It is' claimed that the plaintiff instructed Ballard to conceal his interests in the account from the latter’s principals. This contention is founded upon the admitted fact that plaintiff instructed Ballard to open an account under the name Ballard A., because he did not wish it known that he was operating in stocks ; but there is no evidence that he intended the facts to be concealed from the defendants and there was, in fact, no concealment from them ; because the plaintiff opened the account with his own checks drawn to their order; a direct transaction with them in his own name and constituting notice that the money was deposited with them was his money and the account was his account.

Defendants claim the benefit of the presumption that the person in whose name the account stands, is the party in interest, from whom they are justified in taking instructions. Willard v. White, 56 Hun. 581; 32 St. Rep., 151. The case cited was that of an account opened with New York brokers by correspondents in another city; although the correspondents were known to be brokers and presumably acting for third parties, the New York dealers were justified in treating them as principals and acting upon their instructions. But there could be no presumption in this case that Ballard was the owner of this account because he opened it in his own name, for he was the employee and agent of the defendants and he disclosed the real party in interest to his principals by delivering to them the checks of the latter payable to their order with which the account was opened. The defendants also invoke the principle that where one of two innocent parties must suffer from the act of a third person that party must sustain the loss who has enabled a third person to. do injury. The application of the doctrine is entirely against the defendants in this case even if they were innocent parties, which they are not. They knew that the account was opened with the plaintiff’s money and they could not pay it out -without order's, yet they refrained from inquiring for his instructions and treated the account and moneys as the property of their own agent, thus assisting the latter to inflict upon plaintiff the loss resulting from any temptation to which this dealing might have subjected him.

Nor are the remaining objections of defendant to this judgment any more substantial than the others: They claim that they are not chargeable with Ballard’s knowledge of the facts as to the ac-count because he was acting independently and adversely, to ■their interest. The answer is that the defendants are chargeable with their own knowledge derived from the receipt of the plaintiff’s checks to their order. They claim that no notice is to be imputed from the manner in which the checks were drawn because the plaintiff’s actual instructions to Ballard were to place them to Ballard’s account. But the plaintiff gave no such instructions. His direction to Ballard was to place them to plaintiff’s account under the name of Ballard A., which was adopted as a title for the account and in no wise constituted Ballard the owner of the .moneys or property embraced in it. They claim that plaintiff’s own negligence is the cause of his loss in that he opened his accountin the name of an employee of defendant and thus himself opened the door to the fraud and imposition subsequently practiced upon him. This contention is answered by defendants’ own suggestion that the possibility of fraud could have been avoided by calling the attention of the defendants or their cashier to the fact that the account was the plaintiff’s; but this was done in the most effectual manner by the plaintiff’s opening the account with his own checks drawn to the defendant’s order, the legal effect of which was to change them with the obligation of paying out no part of the proceeds without his instructions.

Ho other point made upon this appeal requires the reversal of a judgment founded upon the clearest principles of justice and supported by the able opinion of the referee. As to all questions of fact which the referee was called upon to decide where there was a conflict of evidence, we think the preponderance is clearly with his findings. Where the testimony of Ballard is opposed to that of plaintiff, we do not hesitate to say that it was entitled to no more weight than the referee gave it.

The judgment should be affirmed, with costs.

All concur.


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    William R. Thurston v. E. P. Wilbur Trust Company, as Executor, etc., et al. In the Matter of the Application of the Guardians of the Infant Defendants, E. Coppee Thurston et al., for an Order Directing the Chamberlain of the City of New York to pay over Certain Moneys.

      (New York Common Pleas, General Term,

      Filed March 5, 1894.)

    1. Infants—Disposition of moneys.
    The provisions of §p 744, 747 of the Code are qualified.by the provisions of § 1581, when there is a question of the disposition of moneys belonging to infants, and the latter provisions will govern in such a case.

      H. Same.
    Nothing in the Code limits the power of the court over the investment of moneys paid into court.
    3. Same.
    It has power to direct the infant’s share to be paid over to the general guardian.

      Appeal from an order denying an ex-parte application made at special term of this court that the Chamberlain of the city of New York be directed to pay over to the guardians of the infant defendants'moneys in his hands belonging to them.

      W. Harris Boome, for guardians.
   Daly, C. J.

The infants, E. Coppee Thurston, Joseph Wharton Thurston, William Wharton Thurston and Mary Wharton Thurston were parties defendant in an action of partition in this court and by the final judgment confirming the sale, entered April 17th, 1893, it was directed that their shares be paid over to their general guardian if any should be appointed within sixty days and should have given a bond to be approved by the court within the same period. The share of each infant was $1,610.75.

Within the period specified, general guardians for the inEants were appointed in Pennsylvania; Joseph Wharton guardian of the first three named infants, and Louisa Nina Wharton of the last named. A bond in $60,000 was given by Joseph Wharton and in $20,000 by Louisa Nina Wharton in the Orphans’ Court of Northampton County, Pennsylvania. The bond was never presented to this court for approval. On July 5th, after the sixty days had expired, ancillary letters of guardianship were issued by the surrogate of New York county to the said guardians.

No bond having been presented for approval to the court within the period limited by the judgment, the referee paid the shares of the infants into court and the money was deposited with the chamberlain of the City of New York. The chamberlain, as appears upon inquiry, disposed of the money in the following manner: He used $5,000 towards the purchase of an $8,000 mortgage and used $1,000 towards the purchase of an $18,000 mortgage and retains the balance, $410.79, in cash. An application was afterwards made to the special term upon the affidavit of the guardian ad litem of the infant defendants and of the attorney in Pennsylvania of the general guardians of the infants for an order that the infants’ share be paid over by the chamberlain to the said general guardians. The application was referred to the general term, as the learned judge at special term was in doubt as to the power of the court to grant the application.

The Code provides (§ 1581,) with respect to the distribution of the proceeds of sale in partition, that the court may direct the share of an infant to be invested in permanent securities in the name and for the benefit of the infant, or may direct it paid over to his general guardian when he shall have executed a bond to the infant with two sureties approved by the court; or, if any of the moneys shall have been paid to the county treasurer, on proof that such money has remained uninvested in permanent securities for the space of three months, may direct the same to be paid to the general guardian upon his giving an undertaking in an amount and with sureties satisfactory to the court for the faithful execution of his trust.

The court has never directed the share of these infants to be invested as provided by the section of the Code above referred to, and such investment as the city chamberlain has made was pursuant, as we are informed, to a general permission given him by the comptroller of the state to invest moneys belonging to infants. The comptroller is authorized by the Code (§ 744,) to supervise the administration of all funds paid into court of record and to prescribe regulations and rules for the care and disposition thereof, unless the court having jurisdiction over the same shall make different directions by special order, pursuant to a subsequent section (747). The last named section prescribes that each court may direct that money paid into that court, or any security which represents property belonging to any suit or party, may be transferred, invested, re-invested, or deposited in any manner or form that appears to it best for the interest of the owners thereof; but such directions must be embodied in an order or decree of the court founded upon proper and sufficient evidence satisfactory to the court that such disposition is best for the interest of the owners or parties interested therein.

The provisions of §§ 744 and 747 are qualified by the provisions of § 1581 when there is question of the disposition of moneys belonging to infants, and the provisions of the latter section will govern in such a case. By that section the investment of such moneys must be permanent securities in the name and for the benefit of the infant and if such money has remained uninvested in permanent securities for a space of three months the court may direct the same to be paid to the general guardian of the infants upon his giving the prescribed bond.

No such investment as is contemplated by the Code has been made of the fund in question. The money has been properly, so far as anything appears to the contrary, used by the chamberlain in such a way as to secure a substantial income. It has been mingled with other funds in his hands in the purchase of different mortgages for large amounts ; but, as I am informed, the chamberlain is prepared at short notice to substitute other moneys on deposit with him for any particular fund so employed, and thus converting the latter into cash, hold it subject to the disposition of the court. His investment of the moneys of these infants is therefore of a temporary and not permanent character.

As no “permanent investment in the name” of the infants, as required by § 1581 of the Code, has so far been made, the share of each must be deemed to be still uninvested and subject to the order of the court upon the application of the general guardians, authorized by the said section. The court, therefore, has power to direct such share to be paid over to the general guardian. In thus disposing of the particular case it must not be considered that we have any doubt of the power of the court to order the transfer by the chamberlain to the general guardian of an infant of any permanent security in which the share of such infant has been invested. Nothing in the Code limits the power of the court over the investments of moneys paid into court. By § 747 of the Code already cited, each court may direct that money paid into court or any security which represents property belonging to any suit or party interested therein may be transferred in any manner or form that appears to it best for the interests of the owners thereof. This provision is general and. there is no reason why it should not apply to moneys belonging to infants. In at least two cases brought to our notice precedent for the exercise of such power is found in orders made in the supreme court. Matter of the Holland Trust Co., as general guardian of Lizette Georgi, July 3d, 1893; Matter of Petition of Katherina Bescher, June 8th, 1892. Although in another case, Flynn v. Lynch, 10 N. Y., Law Journal, 1372, an order was denied in the exercise of discretion.

In this case we cannot order a transfer of the securities in which the infants’ money is at present tied up, because such security represents also an investment of other funds; but, treating the infants’ shares as uninvested for that reason the court will, upon a proper application at special term, make an order-under § 1581 for the payment of the infants’ shares to the general guardians of such infants upon their giving undertakings in an amount and with sureties satisfactory to the court for the faithful execution of their respective trusts.

The application to the special term should be in the form of a petition by the general guardians upon notice to the chamberlain and the proposed undertaking should be presented with the petition. An order may be entered accordingly.

All concur.


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    Smith A. Brooker et al., App’lts, v. John Filkins, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 5, 1894.)

      1. Appeal—Dismissal.
    A motion to dismiss an appeal cannot be entertained at the specinl term. 3. Same—Undertaking.
    Where a party has served his notice of appeal in time, but has omitted to give an undertaking, the court in, or to, which the appeal is taken, may, in its discretion, permit the omission to be supplied.
    3. Same.
    Application therefor may be made at the special term of the appellate court.
    Appeal from an order of the special term of this court, granting the defendant’s motion to dismiss the plaintiffs’ appeal from a judgment and order of the general term "of the city court, on the ground that the appeal had not been perfected by the giving of an undertaking.

      Edward Hassett for app’lts; Abner C. Thom,as for resp’t.
   Daly, C. J.

Appeals from the city court are to be taken to the court of common pleas for the city and county of New York (Code § 3191). The appeal must be heard at a general term of the appellate court ( § 3193.) The special term, therefore, has no power to dispose of the appeal. A motion to dismiss upon the ground that the appeal had not been perfected, or for any other reason, cannot be entertained at the special term.

Where a party has served his notice of appeal in time, but has omitted to give an undertaking, the court in, or to, which the appeal is taken, may, in its discretion, premit the omission to be supplied (Code § 1303). The application for such permission may be made at special term of this court, for the court of common pleas is the court in or to which the appeal is taken (3191), and all applications to the Court must be made in the first instance at the special term, unless by staute or rule it is provided otherwise. All the powers of the court, except the hearing of appeals, are exercised by the special term.

In this case, therefore, upon proper proof of the facts the special term may entertain the plaintiffs’ application for leave to supply the omitted undertaking, which is necessary to perfect their appeal, Carling v. Purcell, 22 N. Y. Supp. 558; 3 Misc. R. 55; 51 St. Rep., 835, and opportunity will be afforded to make that motion since the order dismissing the appeal will have to be reversed. Such an order, if authorized in any event, can be made only at the general term of this court.

Order reversed without costs.

All concur.


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    Rachel Richards, Resp’t, v. Samuel Goldberg, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed March 5, 1894.)

    1. Injunction—Secueity.
    Security in the form prescribed by § 611 of the Code is not required, in order to stay the trial of an action to recover a sum of money only, unless issue has been joined therein.
    3. Same—Recital.
    An injunction order, which recites the several acts of the defendant complained of, followed by a statement in the language of the section, contains a sufficient statement under §610 of the Code.
    Appeal by defendant from an order made at special term of this court, containing an injunction against the commission by defendant, during the pendency of this action, of the following acts: (1) Disposing of a lease and contract of purchase of premises 248 East Broadway; (2) Prosecuting an action against plaintiff for rent of part of said premises now pending in the fifth district court; (3) Commencing any action against her for rent or use and occupation, or any summary proceedings to dispossess her.

      Ernest T. Fellows {Arthur B. Wright of counsel) for app’lt; A. B. Berriclc, for resp’t.
   Daly, C. J.

The learned judge at special term properly disposed of this motion upon the merits by continuing the injunction ; for the preponderance of proof, in the affidavits, is with the plaintiff, that when defendant took the lease and contract of sale in his own name, it was in contemplation of a joint interest therein belonging to the plaintiff. He expressly swears that he would not take the lease and contract until his father said he would get a party to take a half interest with him, and that after the instruments were executed his father disclosed the plaintiff as the party to whom he referred, and defendant was informed by his father, and believes and states the fact to be, that the plaintiff knew and desired that the lease and contract should be taken in his name.

These admission clearly establish the interest of plaintiff at the time the instruments were executed, and that defendant acted on her behalf as well as his own in obtaining them; and the terms of the contract in writing, which he subsequently proposed for her signature, reciting that she was, in effect, so interested from the beginning is confirmation of the plaintiff’s contention. The case' of the plaintiff, was, therefore, made out as strongly by defendant’s affidavit as her own, and there was no course left but to grant her motion.

The point is made that the court should have required, as a preliminary to the granting of the injunction, which restrained, among other acts, the prosecution df an action for rent, security in the form prescribed by § 611 of the Code when it is desired to stay the trial of an action in which the complaint demands judgment for a sum of money only, after issue has been joined therein, viz.: An undertaking to pay all damages and costs which may be recovered in that action, and also all damages and costs in the injunction action. It nowhere appears in the record before us, however, that issue has been joined in the action for rent, and, therefore, the provisions of § 611 do not apply.

• Objection is made that the injunction order does not contain a sufficient statement of the grounds of the injunction, as requirer by § 610 of the Code. The order recites the several acts of the defendant complained of, followed by a statement in the language of the section, and that is undoubtedly sufficient. It plainly apprises the reader of the grounds of the injunction.

Order appealed from affirmed with costs. All concur.


author: Yan Wyck, P. J.

text:
    Jacob Cohen et al., Resp’ts, v. William F. Clemons, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Bailob and bailee—Liability fob sebvices.
    The insured is liable to bailees for their care and treatment of his goods, damaged by fire, which have been delivered to them with his consent and request that they should be so treated and cared for, where such services result in his, and not the company’s benefit.
    Appeal by defendant from judgment on verdict.

      Kneeland <£ Stewart, for appl’t; Steele & Dickson, for resp’t.
   Yan Wyck, P. J.

The plaintiffs, who frequently take charge of damaged goods from fires, for the purpose of so caring for and treating them as to save them from further damage, sue to recover for services so rendered to a lot of woolen goods belonging t<j defendant, which was damaged at a fire in defendant’s store in Lispenard street, this .city and which were delivered to them by defendant for such purpose. The title and ownership of these goods was in the defendant when so delivered to plaintiffs, and remained in him until and after their re-delivery to him by plaintiffs. After the fire and before the loss for damage by fire had been adjusted between the insurance companies and the defendant, who had insurance for $24,000, and claimed that his goods were damaged to the extent of $40,000, these goods were delivered to plaintiffs by defendant for the purpose of having them so treated and cared for by plaintiffs as to save them from further damage. The defendant was obligated to the insurance companies to so protect these goods under a clause in the policies, which provides that “If fire occur the insured shall protect theproperty from further damage”. The circumstances under which defendant delivered these damaged goods to plaintiffs are best described by the witness Harris, who was the adjuster for the largest portion of the insurance companies in this loss, and he testified, at folio 141, that he was familiar with the arrangement made between the insurance companies and defendant; that defendant claimed .$58,000, as the estimated value of the goods, and his claim of loss was in the neighborhood of $40,000, and that the insurance paid to defendant, was $24,000; that he went to defendant’s premises and he found thé goods were rather compact, that there was a great deal of water in the cellar, and he told the defendant that, in accordance with the terms of his policy, hé was compelled to protect his goods from further damage, and defendant replied, that he had not room to do it in; that afterwards he had an interview with defendant at his office and suggested to defendant that plaintiffs had an old building upon Pearl street, and- that he should go .and see them and that possibly he could hire their building and do there what the policy provided for; that at the same time he told defendant that it was to his interest to protect the goods, and that if .he estimated their value at $58,000 and the insurance was $24,000 it was to his interest, and that he would give defendant his consent to send them to plaintiffs’ place of business; that he had a conversation with defendant in the presence and hearing of Goldstein, defendant’s adjuster and one of the plaintiffs as follows: “We stated, in order to protect Mr. Clemons, defendant, he having so much more property than the insurance companies, that it was to his interest to take these goods out of the premises, and Mr. Clemons accordingly agreed to send them to Cohen, plaintiff. Then I told Mr. Clemons that if his damage was $40,-'000, and that his insurance was $24,000, Mr. Cohen would get his pay from Mr. Clemons and that was the understanding. I represented the insurance companies and I told Mr. Cohen, that he never could get any pay from the insurance companies, because the property was so much more than the insurance policies, and also the damage claimed was so much over the insurance, and I told Cohen that I never would pay him, and Mr. Clemons did not demur.” The consent, which Harris told defendant he would give, to have the goods removed to plaintiffs’ place, is in writing, signed by the insurance adjusters and the defendant, and is marked in evidence at folio 99, and provides that the goods which defendant delivers to Cohen & Son, plaintiffs, shall be insured and the “ premium therefor to be paid by Clemons, defendant, and that the property delivered to Cohen & Son under the above agreement shall not be deemed an abandonment of Clemon’s property to ■the insurance companies, but is in accordance with the terms and conditions of the policies of the companies interested.” Clemons, the defendant, was not a witness on the trial, and no denial, or contradiction was offered on his behalf, of the conversations, interviews or transactions as described by Harris and Cohen as having been had with him personally, and yet his counsel contends, that he is not liable to Cohen & Son for their care and treatment of his goods delivered to them by him with his knowledge, consent and request that they were to so treat and care for them, and this contention is made upon the ingenuous theory that the rule is “ that expenses follow the salvage.” Where is the salvage in this case? If it is proper to say that there was any salvage in this case, why Clemons got it, for he received everything, his full, insurance of $24,000, and all the property which was saved and not totally destroyed by fire, including his property which plaintiffs’ care and treatment of saved from further damage. Clemons did not, for a single instant, lose his control over, title to or ownership in the goods delivered by him to plaintiffs, and by them so cared for and treated and then returned to him, and is certainly liable on the facts in this case to plaintiffs, for the value of their services in such care and treatment. The judge would have been justified in taking away from the jury every question except as to-the reasonable value of plaintiffs’ services, and the verdict as to this is not against the weight of evidence, and the judgment and order are affirmed with costs.

Newburger, J., concurs.


author: Van Wyck, P. J.,

text:
    Sigmund I. Hoffman, Resp’t, v. Max Richter, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    1. Pleadings—Denial.
    A denial, in the answer, of “ defendant’s individual liability to plaintiff,”' is a mere conclusion of law, where the complaint merely sets forth, facts, which are not denied by answer, from which the law infers his individual liability.
    2. Evidence—Admissions.
    Evidence to contradict admissions in pleadings is inadmissibie.
    3. Same—Estoppel. v
    In an action on a written instrument signed by defendant individually and delivered to plaintiff, the former is estopped from showing that he is jointly liable with others on such contract.
    Appeal by defendant from judgment entered on verdict of jury against him.

      L. Hessberg & M. W. Plalzelc, for app’lt; Hoffman & Hoffman, for resp’t.
   Van Wyck, P. J.,

The complaint alleges in the first paragraph, that about August 5, 1891, the plaintiff and defendant entered into an agreement by which defendant employed plaintiff to manufacture neckties, out of defendant’s material for one year at twenty cents per dozen, and to supply him with 400 dozen every week during the year, and by which defendant agreed to so manufacture such quantities at such price; and in the second paragraph it is alleged that pursuant to the terms of said agreement, plaintiff on said day entered upon performance of the same and so continued up to August 5, 1892. The defendant’s answer does not contain a general denial, nor does it contain a specific or other denial of these allegations set forth in the first and second paragraphs of the complaint, so it follows that the contract between the parties and its terms were admitted, and so too, that the plaintiff entered upon and continued upon his performance of the same. Thus the plaintiff would have been entitled to judgment on the pleadings except for the specific denial in the answer, of the third paragraph of the complaint, which alleged that defendant had failed to carry out his agreement in that he had furnished plaintiff with only one-half of the neckties for manufacture which he was to furnish during the year, while plaintiff was always ready and willing to perform as agreed. And the only issue, as so fixed by the pleadings, and which was to be litigated at trial, was whether the plaintiff bad duly performed and whether the defendant had not, and if not, what was the approximate damages from his breach of the contract. The denial in the sixth paragraph of the answer of “ defendant’s individual liability to plaintiff ” is a mere conclusion of law, and in no sense a denial of any allegation^ of the complaint, for the complaint alleges no conclusion of law as to defendant’s liability, but merely sets forth facts which are not denied by answer, hence are admitted, and from which the law infers his individual liability. The defendant’s effort to introduce evidence as to the persons with whom plaintiff made the agreement, and as to the terms of the contract which he had admitted, was made by him, and in the terms alleged in the complaint, by not denying, was properly excluded by the court at trial. And even if his answer had put every allegation of the complaint at issue, still this evidence offered to show that he was liable jointly with others to plaintiff on contract, should have been excluded, because he was stopped from so showing by the written instrument signed by him individually, and delivered to plaintiff, and which is marked exhibit “A” in the case. The question of fact as to whether it was the plaintiff or the defendant who failed to perform, was hotly disputed, for it was conceded that only about one-half of the quantity of neckties had been manufactured, and it was for the jury to say whether such failure was chargeable to plaintiff or defendant. They answered that the plaintiff was free from fault, by returning him a verdict for the full amount claimed, and their verdict is not against the weight of evidence.

Judgment and order affirmed with costs.

Hewburger, J., concurs.


author: Van Wyck, P. J.

text:
    Heinrich Eckensberger, Resp’t, v. Bernard G. Amend, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Appeal—Failure to move to dismiss.
    Where the defendant does not move for a dismissal, or for a direction of a verdict in his favor, after he has closed his evidence and rested, a verdict in favor of plaintifE will not be disturbed if the proof is sufficient to carry the case to the jury.
    Appeal by defendant from judgment on a verdict returned by the jury against him for damages sustained by plaintiff from personal injuries.

      Chas. G. Nadal, for app’lt; A. & C. Sleekier, for resp’t.
   Van Wyck, P. J.

The plaintiff, a little boy six years old, sued to recover damages for serious and permanent injuries sustained by him from being negligently run over by a horse and wagon owned and controlled by defendant and driven by his servant. The appellant’s contention is that the proof shows that the boy’s injury was the result of a mere accident, not occasioned by any negligence of his driver, and that his motion for a non-suit at the close of plaintiff’s case should have been granted. He did not move for a dismissal or for the direction of a verdict in his favor after he had closed his evidence and rested, and if the proof was sufficient to carry the case to the jury, their verdict should not be disturbed. The plaintiff’s proof shows that the accident occurred on the south side of Eleventh Street about fifty to sixty feet east of the corner of First Avenue; , that this is a tenement house neighborhood, with tenement houses on one side of the street, and a cemetery on the other, and that there are not many wagons going through the street; that plaintiff resided with his parents,'who had éight children, in one of these tenement houses of the neighborhood; that this boy, when he attempted to cross the street, slipped ánd fell from the sidewalk into the gutter of the street and was unable to get up, and then the wagon of the defendant turned around the corner about fifty to sixty feet from where the boy was lying unable to get up, and kept on going after it turned, and ran over his head and ■ shoulders; that when the wagon so turned, the driver was sitting upon his seat in front of the wagon, with his face towards the horse, looking ahead of him, and he tried to stop the horse, but he went too fast for him, and the horse jumped to one side, but the witness did not know whether the driver made him go to one side, or whether the horse went there himself, but he went to one side until he went over the boy; that the driver drove fast; he did not go slow; he went fast; he was going in a fast way ; the horse was running a little too quick; the wagon came around the corner pretty quick, but the boy was down a long time before it came up to him, and if the driver had looked out he would not have run over him. The defendant’s witness, Hendricks, whose business is trucking for himself for six years, says that this was a little delivery wagon, that a single horse and wagon can be stopped when it is upon a fast trot, within fifteen or twenty feet, but if the horse has a heavy load, you can stop him in a shorter space. This proof certainly justified the submission to the jury of the question as to absence of contributory negligence on the part of the plaintiff, and the presence of negligence on the part of the defendant’s driver in not arresting the progress of his horse or turning him aside so as to avoid running over the prostrate boy, who “ was unable to get up,” for if he saw him lying there when he was fifty to sixty feet away from him, it was negligent not to bring the horse to a stand-still before he reached him, for it is in evidence by defendant’s own wdtness, that this little delivery wagon drawn by one horse could be stopped, when upon a fast trot, within fifteen or twenty feet. It is true that the driver gives an entirely different version of the accident, and says that he was not any distance at all from the boy when he fell, but that he fell just behind the horse, and directly in front of the wheel of the wagon, and of course if this was so, the defendant would not be liable, but the jury repudiated this contention, and found for the plaintiff, and their verdict is not against the weight of evidence. There is no merit in defendant’s exceptions, and the judgment and order are affirmed, with costs.

Kewburger and McCarthy, J.J., concur.


text:
    Monroe Miller Company, Resp’t, v. Stokes, App’lt.

      (New York City Court, General lerm,

      Filed March 9, 1894.)

    1. Pleadings—Counterclaim.
    A cause of action for unpaid rent is not the proper subject of counterclaim in an action for conversion of property, unless it arises out of, or is connected with, the subject of the action.
    3. Same.
    A lien is not counterclaim in an action for the conversion of the property upon which the lien exists.
    Appeal by defendant from judgment sustaining demurrer to his counterclaim.

      John Delahunty, for app’lt; Shepard <& Prentiss, for resp’t.
   Van Wyck, P. J.

The complaint is in tort to recover the value of plaintiff’s office furniture, consisting of seventeen specified chattels alleged to have been converted by defendant. The answer alleges by way of counterclaim that defendant let to plaintiff a certain office room; that plaintiff still owes him $800 for two months rent of same ; that the chattels mentioned in the complaint “ were permitted by the defendant to be placed in said office in consideration of the execution by the plaintiff of the lease of such office, and this defendant has a lien on said chattels and is entitled to hold the same as security for the payment of said rent.” To this counterclaim plaintiff demurred on the grounds that same is insufficient in law on the face thereof; does not arise out of or is connected with the subject of the action, and does not state facts sufficient to constitute a cause of action. This demurrer was sustained and this appeal is from the interlocutory judgment thereon. The facts alleged in this plea labeled counterclaim, are sufficient to constitute only a cause of action on an express covenant to pay rent, and such cause is not the proper subject of counterclaim in an action in tort for conversation of property, unless it arises out of or is connected with the subject of the action. The mere fact that the tenant placed these chattels in the premises demised to him by defendant, who converted them to his own use, does not make the landlord’s cause of action for unpaid rent arise out of the tenant’s action in tort for conversion, or connect it with the subject of such action. The allegation that defendant has a lien on the chattels for their owner’s unpaid rei^t, is insufficient in law to constitute a valid counterclaim, for no such lien by a landlord on his tenant’s chattels is authorized by law, and defendant does not set up any facts to show that such lien was provided for by contract, express or implied. And if he did not set up such lien by agreement, it would not be the proper subject of counterclaim. A lien is not a counterclaim in an action in tort for the conversion of the property upon which the lien exists, but constitutes a defense by way of avoidance. 'If defendant had set up facts showing a lien by agreement the same would relate to-plaintiff’s cause of action only as a defense to it, and not as a counterclaim. Rochester Distilling Co. v. O'Brien, 72 Hun, 462 ; 55 St. Rep. 149. Judgment affirmed with costs.

Newburger and McCarthy, JJ., concur.


text:
    Charles E. Bonwell, Resp’t, v. Thomas Auld, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    1. BBOKEBS—COMMISSIONS.
    On exchange of property, neither party can refuse compensation, if it is promised when fully informed that the broker holds the same relation to the adverse dealer.

      2. Same.
    Proof of his employment, amount agreed upon for his commission and that his efforts and negotiations induced and secured the exchange entitle broker to recover.
    3. Appeal—Motion to Dismiss.
    If the defendant does not, at the close of the case, request a dismissal or verdict in his favor, his objection that the verdict is excessive cannot avail, where the judge charges, without objection, that, if the jury find for the plaintiff, it must be for a sum certain, which is the verdict returned.
    Appeal by defendant from judgment against him entered on erdict of a jury.

      Theo. H. Friend, for app’lt; T. J. L. McManus, for resp’t.
   Van Wyck, P. J.

The only exceptions in the case are to the denial of appellant’s motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action made at the opening of the case, and at the close of plaintiff’s evidence, and to the denial of the motion for a nonsuit made after plaintiff rested. None, of these motions were renewed at the close of the case, nor did defendant request the direction of a verdict in his favor. The complaint alleges that plaintiff procured and induced Bradley & Co. to exchange their certain real property in New York for defendant’s certain similar property in Newark, N. J. That the consideration of the property was fixed at $15,000, upon which plaintiff’s commission was to be computed at the rate of two and one-half per cent., amounting to $375; that plaintiff reduced his commission to $350, which defendant agreed to pay, and that he did pay $5 on account thereof.

This complaint sets forth a cause of action even though it did not allege a previous employment of plaintiff by defendant, and as the exchange was finally made with knowledge by defendant of plaintiff’s claim for and efforts in negotiating the same, it would be a conscious appropriation of plaintiff’s services, and the allegation is that he promised to pay a fixed sum for the same, and moreover, the complaint does allege a previous employment by defendant of plaintiff to procure a purchaser for this particular property, and that its exchange was procured and induced by plaintiff in pursuance of such employment. The plaintiff’s proof is complete and abundant as to his employment, amount agreed upon for his commission, that his efforts and negotiations induced and secured the exchange, that defendant agreed to pay him a fixed sum for his commission when fully informed that he was also acting as broker for Bradley & Co. as to their property, which was deeded to defendant in exchange for his. While it may be difficult for a broker to serve with equal efficiency two masters, neither.of them can complain nor refuse compensation if it was promised when fully informed that his agent held the same relation to the adverse dealer. Jarvis v. Schaefer, 105 N. Y. 293 ; 7 St. Rep. 502.

As already shown, defendant did not at the close of the case request a dismissal or verdict in his favor, but acquiesced, without objection, in the submission of the case to the jury; hence his complaint, now, that the verdict is excessive, cannot avail, as the judge charged without objection, that if the jury found for plaintiff “ that the verdict must be for $345,” and such was the verdict returned. Moreover, there really was no dispute as to the amount, for plaintiff’s contention by proof was, that defendant agreed to pay him $350 and has paid him $5 on account thereof, while defendant claimed that he was not liable at all.

The judgment and order affirmed with costs.

ISTewburger, J., concurs.


author: O’Brien, J.

text:
    Mary E. Riley App’lt, v. Ashbel W. Riley et al., Executors, etc., Resp’ts.

      (Court of Appeals,

      Filed February 27, 1894.)

    1. Limitation—Demand.
    Where money is received by one for the use of another party, under a duty to pay it over at once, no demand is necessary before right of action accrues.

      2. Same—Death op Dependant.
    Where, under § 399 of Code, there is an attempt to-commence the action during the life of the defendant, by delivery of process to the officer, and the other steps are prevented by his death before the expiration of the sixty days, such delivery saves the claim against the bar of the statute up to the date of his death.
    3. Same.
    Under such circumstances, the operation of the statute is further suspended for eighteen months by § 403 of Code.

      Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made June 23, 1892, which affirmed a judgment in favor of defendants entered upon a report of a referee.
    This action was brought to recover $2,500, with interest thereon from May 1,1882, which' the complaint alleged belonged to plaintiff and had been received by Ashbel W. Eiley, defendants’ testator. The statute of limitations was pleaded as a defense.
    The facts, so far as material, are stated in the opinion.

      Walter S. Iiubbell, for app’lt; F. L. & J. M Durand, for resp’ts.

       Reversing, 46 St. Rep., 521.

   O’Brien, J.

The plaintiff was defeated in this action upon the ground that the cause of action was barred by the statute of limitations. That ruling presents the only question involved in this appeal. The learned referee deduced that conclusion from the following facts which he found: The plaintiff is the widow and the defendants are the executors of Ashbel W. Eiley, who died on the 3d of April, 1888. 1 The deceased, several years before his death, owned some real estate, for the sale of which negotiations were pending and substantially completed, but the plaintiff, who had a dower right in the same, refused to execute the deed unless a portion of the purchase price was paid or secured to her. It was finally agreed between all the parties in interest that $2,500 of the price should be paid to her, and upon this agreement she signed the deed, which was delivered to the purchaser on the 31st of March, 1882, and on the same day the whole of the purchase price was paid "to the deceased, including the sum belonging to the plaintiff, which was paid to him for her. It does not appear that any part of the money so received was ever paid to the plaintiff by her husband, and this action was brought to recover the same, with interest. On the 30th óf March, 1888, four days before the husband’s death, a summons and complaint, in an action by the plaintiff against her husband for the recovery of the money and interest, was delivered to the sheriff of the county where the parties' resided, with intent that the same should be actually served on the defendant named therein. The sheriff attempted in good faith to make the service, but the physicians in charge of the deceased, in what proved to be his last sickness, did not allow access to him, and so no service was made, as the husband grew rapidly worse and died as before stated. The claim was subsequently presented to the executors, who rejected it, and upon their refusal to refer the same, the present action was commenced against them by the delivery of the summons and complaint to the sheriff for service on October 2, 1889, the defendants appearing January 31, 1890.

It is provided by § 403 of the Code that the term of eighteen months after the death, within the state, of a person against whom a cause of action exists, is not a part of the time limited for the commencement of an action against his executor or administrator. The action was commenced within that time after the death of the testator and, unless the claim was already barred at or before his death, was commenced in time. We must assume upon the facts found that the cause of action accrued when the husband received the money. There is no finding that he held it by virtue of any trust or under such circumstances as would require a demand before suit under the provisions of § 410. So far as it appears it was the ordinary case of money received by one party for the use of another, under a duty to pay it over at once, and no demand was necessary before the right of action accrued. The plaintiff, therefore, could have brought the action as early as March 31, 1882, and the six years’ term of limitation, consequently, expired on March 31, 1888. Wood v. Young, 141 N. Y. 211; 56 St. Rep. 820. But on the previous day the plaintiff caused to be delivered to the sheriff the summons and complaint in an action upon the claim, with the intent of having the same served, and the question here must turn upon the legal effect of that act. By § 399 of the Code an attempt to commence the action is equivalent for every purpose of the statute to its actual commencement. It cannot be doubted that there was in this case an attempt to commence the action as the section referred to contemplates. But in order to secure to the"plaintiff the benefits of this section it is urged that the delivery of the summons to the officer must be followed within sixty days from the expiration of the period of limitation by personal service or the first publication of the summons pursuant to an order. But here the plaintiff made the attempt in good faith and was prevented from doing the other things contemplated by the section by the death of the defendant named in the process four days afterwards. Where, under this section, there is an attempt to commence the action during the life of the defendant by delivery of process to the officer, and the other steps prescribed by the section are prevented by the death of the defendant before the expiration of the sixty days, the attempt is not thereby rendered wholly nugatory for all purposes. To give the statute such a construction would in many cases defeat its manifest purpose. The moment the process was delivered to the officer with intent that service should be made, the operation of the statute was thereby suspended, subject to compliance with the other provisions of the section when compliance is possible. But when such compliance is prevented without any neglect or fault of the plaintiff, who has complied with the law, the attempt should have some effect. In reason and justice it should be held that the suspension of the operation of the statute upon the cause of action, produced by the delivery of the process to the officer, continued up to the time of the death, and that this condition was not changed or affected by the fact that it then became impossible to make service of any kind. Enough was done under the section to suspend the statute to the date when further compliance became impossible, and what was accomplished in this way was not lost by an event over which the plaintiff had no control. The personal representatives of the deceased cannot now, for the purpose of interposing the Statute of Limitations to the claim, get the benefit of the four days that elapsed before the death, and while the process was in the hands of the officer, any ■more than he .could himself had he lived and service had been made upon him on the last day contemplated by the section. The delivery of the process to the officer under the circumstances ■saved the claim against the bar of the statute up to the date of the testator’s death. The operation of the ■ statute was further suspended for eighteen months by § 403, and not till the expiration of that period could the statute begin to run against the cause of action. Hall v. Brennan, 140 N. Y. 409; 55 St. Rep. 792. It follows that the claim was not barred at date of commencement ■of this action, andthat the learned referee erred in dismissing the complaint on that ground.

There are no findings and there is no proof that would warrant the conclusion that the claim was paid before the death of the husband though that defense is pleaded. Nor can it be held, as the case now stands, that there was an agreement to compensate her by will, which was carried out and accepted. It was competent for the parties to adjust the claim in that way. McLaughlin v. Webster, 141 N. Y. 76; 56 St. Rep. 541. But whether they did ■or not was a question of fact to be found upon proof and in regard to which the findings of the referee are silent.

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

All concur.

Judgment reversed.