text:
    Henry McShane Company, Limited, App’lt, v. William Padian, Resp’t.

      (Court of Appeals,

      Filed April 10, 1894.)

    Evidence—Pabol.
    Where the language of a guaranty is clear and presents no ambiguity, pyrol evidence as to the surrounding circumstances to aid in its construction, is inadmissible.
    Appeal from judgment of the general term of the court of common pleas for the city and county of Hew-York, entered upon an order made March 14, 1892, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial before a referee.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      Thomas G. Ennever, for app’lt; William J. Fanning, for resp’t

       Reversing 48 St. Rep. 705.

   Bartlett, J.

The plaintiff seeks to recover of the defendant upon the following guaranty:

“ I, William Padian, hereby guarantee to the Henry McShane Company, Limited, the payment by John P. Wiegers, plumber, to them for any and all materials which they may deliver to John P. Wiegers, I not to be liable for any balance exceeding five hundred dollars which may become due.
William Parian.
“ Witness, Wm. H. Barth.
“ Dated Hew York, March 31st, ’90.”

This case was tried before a referee, who held that the guaranty was susceptible of two constructions, and admitted, to quote from his opinion, oral evidence of the res gestee so as to arrive at the probable intention of the parties.” The evidence was admitted against the objection and exception of plaintiff. Upon conflicting evidence the referee found substantially that the guaranty had reference to certain goods sold by plaintiff to John P. Wiegers, to be used in the performance of a contract named, and that before the commencement of this action Wiegers had paid for them ; he further found that said guaranty was not intended by the parties thereto as a running or continuing guaranty other than for the goods already referred to, and dismissed the complaint, with costs.

The general term of the court of common pleas for the city and county of Hew York affirmed a judgment for the defendant entered upon the report of the referee. The question presented on this appeal is whether the language of the guaranty is so ambiguous as not to furnish conclusive.evidence of its meaning, and entitles the defendant to prove the circumstances under which it was executed, so that the court can construe it in the light of all the facts. If this ambiguity exists the evidence of the circumstances surrounding the execution of this guaranty was properly admitted. Evansville Nat. Bank v. Kaufmann, 93 N. Y. 281, and cases cited; White's Bank v. Myles, 73 Id. 341, and as the findings of the referee were made on conflicting evidence they are not re viewable in this court. Sherwood v. Hauser, 94 N. Y. 626 ; N.Y. Fire Department v. Atlas Steamship Co., 106 id, 566; 11 St. Rep. 113 ; Crim v. Starkweather, 136 N. Y. 635.; 49 St. Rep. 68. We are, however, unable to agree with the learned court below in its construction of this guaranty. We regard its language as clear, presenting no ambiguity, and as creating a continuing guaranty which, by its terms, limits defendant’s liability to any balance, not exceeding five hundred dollars, which may become due, but does not undertake to regulate the amount of John P. Wiegers’ future transactions with the plaintiff. The cases are numerous construing instruments of this character, and it is not always an easy task to determine on,which side of the line separating continuous from limited liability they belong. In Whitney v. Groot, 24 Wend. at page 84, Chief Justice Nelsoh remarks : “It is, in most of these cases, a nice and difficult question to determine whether the guaranty is a continuing one or not. The intent of the party to be derived from the words is the only sure guide ; and, therefore, very little aid is to be derived from the adjudged cases as they turn upon the peculiar phraseology of the guaranty.” In White's Bank v. Myles, 73 N. Y. at page 341, Judge Earl says : “ Precedents do not help much in the construction of such instruments.” In Gates v. McKee, 13 N. Y. at page 234; Judge Denio says: The cases are not entirely harmonious as to the principles of construction which ought to govern in this class of cases, but the weight of authority is .altogether in favor of construing guarantees by rules at least as favorable to the creditor as those which courts apply to other written instruments, irrespective of' the consideration that the guarantor is a surety.”' In the leading English case of Mason v. Pritchard, 12 East, 227, the court said the words were to be taken as strongly against the party giving the guaranty as the sense of them would admit. The supreme court of the United States has also expressed the same views. Drummand v. Prestman, 12 Wheat. 515; Douglass v. Reynolds, 7 Peters, 113, 122; Lawrence v. McCalmont, 2 How. 426.

Applying these principles to the guaranty now under consideration it leads to the construction we have already indicated. The natural and ordinary import of its language discloses an intent on the part of the defendant to guarantee the purchases of Wiegers from plaintiff of any and all materials provided his liability was not to exceed five hundred dollars, on any balance which might become due.

To place upon this instrument the construction contended for by defendant, is to ignore its plain provisions and import into the case an entirely new contract. The defendant contends he was only guaranteeing payment of three hundred and ninety-five dollars worth of specific materials which were to be used in the performance of a certain building contract. On the other hand, the plaintiff states that Wiegers was a young man starting in' business and it was customary to require a guaranty in such cases. The evidence in the case shows that Wiegers, after the execution of the guaranty, made purchases of plaintiff aggregating between six and seven thousand dollars and made payments of between four or five thousand dollars, and owed plaintiffs a balance of twenty-two hundred dollars when this action was commenced. We hold, however, that parol evidence was inadmissible as to surrounding circumstances to aid in construing this guaranty, and rest our decision upon the language of the instrument solely. The answer of the defendant alleges that he was induced to sign the guaranty by the false and fraudulent representations of plaintiff, made through its agents. The proof failed to establish this defense and the referee made no such finding.

The judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    Henry E. Wessels et al., Resp’ts, v. Gustavus Adolphus Boettcher, App’lt.

      (Court of Appeals,

      Filed April 17, 1894.)

    -Stay—Sectioh 779 op Code.
    The stay of proceedings, under § 779 of the Code, does not render a subsequent action brought by the assignee and all proceedings therein void, but only irregular. -
    Appeal from order of the general term of the supreme court in the first judicial department, made the first Monday of December, 1893, which affirmed conditionally an order of ■special term denying a motion to vacate a warrant of attachment.
    The facts, so far as material, are stated in the opinion.

      Noah Cornwell Rogers; for app’lt; J. A. Shoudy, for resp’ts.

       Affirming 56 St. Rep. 885.

   Bartlett, J.

The plaintiff sued defendant for breach of an express contract, and obtained a warrant of attachment on the ground he was a non-resident. The record discloses that defendant is a resident of the West Indies, and appears in this action specially by attorney for purpose of motion to vacate the attachment. This motion was based on four grounds, viz.:

1. Plaintiffs were stayed by reason of non-payment of motion costs in a former action on the same cause of action.

2. Insufficient affidavit upon which the attachment was •obtained.

3. That no notice was served with the summons, as required by § 433 of the Code of Civil Procedure.

é. That personal service of the summons was not made within thirty days after issuing warrant of attachment.

The special term denied the motion and the general term affirmed this order if plaintiffs paid motion costs in former action within twenty days after service of order, otherwise reversed it.

As to the first ground, it appears that the plaintiffs are the assignees of the claim sued on herein; that their assignors had previously sued thereon and obtained an attachment which was vacated by the court granting it, and the order affirmed in this court, 138 N. Y. 654; 53 St. Rep. 931; that this action was brought before said motion costs were paid, and while plaintiffs’ assignors were stayed under the provisions of § 779 of the Code of Civil Procedure. The defendant’s counsel insists that the-effect of this stay was to render the present action and all proceedings therein absolutely void, and that the general term had no power to make the conditional .order referred to. The stay of proceedings, under § 779 of the Code, has no such effect and does not deprive the court of jurisdiction when set in motion by the party resting under a stay. The only effect is to render the proceedings irregular, and when brought to the attention of the court the party violating the stay will be dealt with as may be proper. In this case it was "competent for the general term to deal with the stay of proceedings and its violation in the manner already referred to. The regularity of the attachment was in no way affected by this stay of proceedings and its violation.

As to the second ground alleging insufficiency of affidavit, we . are of opinion that the affidavit sets forth a good cause of action and is sufficient to sustain the warrant of attachment. We have examined the record in the first action brought by plaintiff’s assignors and find that the affidavit in the case at bar cures the defects of the former affidavit.

As to the third ground it appears by the affidavits of Robert M. S.-Putnam and David Gribson that the notice required by §§ 442-3 of the Code was personally served on the defendant without the state. These positive statements under oath override the allegations made on behalf of defendant upon information and belief, and the alleged fact that the notice is not on file with the clerk of the city and county of New York.

As to the fourth ground that the summons was not served within thirty days after warrant of attachment was issued. The attachment was issued July 6, 1893, and David Gribson swears, that on the 25th of July, 1893, atSpanishtown, Island of Jamaica,.British West Indies, he made personal service of the summons on the defendant.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.


author: Per Curiam.

text:
    The Empire State Telephone and Telegraph Company, Resp’t, v. Frank A. Bickford, App’lt.

      (Court of Appeals,

      Filed April 17, 1894.)

    1. Reference—Equity.
    An action to call an agent to account for his conduct, though it may he cognizable in equity, is not necessarily referable.
    •2. Same—Wrongful act of agent.
    Where a recovery is sought for the expense the principal was put to in equipping a new exchange, caused by the wrongful act of the agent in, taking Ike renewal lease in his own name, it is not a matter of account or of equitable cognizance, but renders the whole case an action at law and not one in equity.
    Appeal from an order of the general term of the supreme court in the fifth judicial department, made October 3, 1893, which affirmed an order of special term appointing a referee to hear and determine the issues in this action.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      T. M Courtney, for app’lt; Underwood & Storhe, for resp’t.

       Reversing 55 St. Rep. 243.

   Per Curiam.

The plaintiff characterizes his action as one brought for an accounting by defendant in respect to his transactions as agent of the plaintiff in the management of its Cortland exchange, and the complaint specifies the particulars in which such accounting is asked, as follows:

(1) In respect to receipts and disbursements by defendant of money belonging to plaintiff between the years 1884 and 1893.

(2) In respect to the conversion of certain personal property belonging to plaintiff and intrusted to the possession of the defendant as part of the necessary machinery of the work to be done by defendant.

(3) In respect to the amount of revenue lost to plaintiff by reason of defendant’s neglect of plaintiff’s business, and by reason of defendant’s attempts to establish a competing business at Cortland while in plaintiff’s employ.

(4) In respect to the proportion of the cost of equipment of plaintiff’s new exchange at Cortland, made necessary by defendant’s wrongful acts and omissions properly chargeable to defendant. Among such is the alleged procurement of a renewal lease in his own name of the premises formerly, leased to plaintiff.

. The first item is a proper subject for an accounting, and possibly the second, treating it as misconduct of an agent in relation to property intrusted to him by his principal by reason of'which the whole or part of the value of such property has been lost to-the principal. Such second item is not, however, on that ground necessarily referable. An action to call an agent to account for his conduct may be cognizable in equity without being also and necessarily referable. If it have to do with conduct as to property intrusted to defendant as agent, equity might have jurisdiction without the action itself being also referable. But the other two items of alleged damage do not constitute an account as that word is used in the statute. They involve an inquiry as to damages which plaintiff has sustained by reason of alleged misconduct by defendant while its agent. Such misconduct was not in regard to property of the plaintiff, but on account of defendant’s alleged negligence in attending to his duties, viz., a neglect of plaintiff’s business and his wrongful acts in attempting to establish a competing business.

A recovery is also sought for the expense plaintiff has been put to in equipping its new exchange, caused by the wrongful act of the defendant in taking the lease as above stated.

These are not matters of account and are not properly cognizable in an equitable action. They are not connected with the receipt or disbursement of money of the principal, nor with any fraudulent or other omission of the defendant to charge himself with moneys received by him, or paid out by him, and wrongfully charged to his principal.

We think the chief part of the action is of a common law nature, and it should be treated as a whole and as charging but one cause of action, and that an action at law and not one in equity. After the issues at law are tried, if it then becomes necessary to have an accounting as to the receipts and disbursements, a reference can be ordered to take it.

The questions as to whether the defendant has been guilty of any wrongful acts, and the amount of damages (if any) caused thereby under the second, third and fourth items above stated, and whether there has been a settlement and release or not, should be tried by a jury, unless both parties consent to some other mode of trial.

The order of reference should, therefore, be reversed, with costs to defendant in all courts, and the motion for a reference denied, with costs.

All concur.

Ordered accordingly.


author: Dwight, P. J.

text:
    John Wolfe et al., Resp’ts, v. Courkey Avenue Savings, Aid and Loan Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Loan association—Withdrawal.
    A loan association, where its articles provide that, after notice of withdrawal of shares, the amount thereof “shall he refunded to such member as soon as the necessary funds are in the treasury,” cannot lend any of its funds while withdrawal notices are on file.
    Appeal from a judgment in favor of the plaintiffs.

      J. J. Snell, for app’lt; If. J. Stull, for resp’ts.
   Dwight, P. J.

The action was first tried in the municipal court of Eochester, and, from the judgment there rendered for the plaintiffs, an appeal was taken to the county court. The action was brought to recover the amount standing to the credit of the plaintiffs on the books of the defendant association on the 18th day of March, 1891, on which day the plaintiffs filed with the association their notice of withdrawal of all their shares, with the dividends due thereon. The notice of withdrawal was filed under a provision of the articles of association of the defendant, as follows:

“ Members not having received a loan may withdraw one or more of their shares from the association at any time by giving notice in writing to the board, and the liability to pay further dues, and the right to dividends, shall cease with the filing of such notice. Application for withdrawal shall only be received in the regular order of business, and the principal theretofore paid on such share or shares shall be refunded to such members as soon as the necessary funds are in the treasury. * * * Dividends shall not be paid to any member except upon the final withdrawal of all his shares."1 Article 14, § 2.

The plaintiffs had never had a loan from the association ; and, having given notice of the final withdrawal - of all their shares, they were entitled to receive, with the principal paid on such shares, the dividends due or declared thereon down to the filing of their notice of withdrawal. The amount then standing to the credit of the plaintiffs, including dividends, was the sum of $771.25, for which sum, with interest, judgment was rendered in their favor. It seems apparent that the single test of the plaint-, iff’s right to be paid the amount then standing to their credit, and, consequently, their right to recover in this action, is the question whether, at any time after the filing of their notice of withdrawal, and before the commencement of the action, there were the necessary funds in the treasury of the association to make such payment. Of course, applications for withdrawal were entitled to be honored in the order of their filing, and the necessary expenses of conducting the business of the association must have precedence of payment over any such application. But the undisputed evidence in the case establishes the fact (which is found by the court) that over and above all such previous applications, and the actual expenses of the association during the interval mentioned, there was a balance of moneys, received in the regular course of business, more than sufficient to pay the amount due to the plaintiffs. But the proofs also show that this balance, and much more, was exhausted by loans to members made during the same interval. And here arises the single question in this case, viz., whether the defendant had a right, under its articles of association, to appropriate any of its funds to the making of loans while withdrawal notices were on file which had not been honored. It seems very clear that this question must be answered in the negative. The only pretext for the contrary contention seems to be found in a resolution of the board of directors, adopted some time before the filing of the plaintiffs' notice, to the effect that only one-half of the receipts of the association should be applied to the payment of withdrawals, and the other half should be loaned to members. But the articles of association of every organization for mutual benefit, like the defendant, constitute the contract between the association and the individual member,and no provision of such contract is subject to be abrogated, or its obligation impaired, by any act of the board of directors which is not expressly empowered by the articles themselves. As we have seen, the articles in this case (article 14, § 2, supra), plainly give to applications of withdrawal precedence over all other appropriations of the funds, except, from necessity, the actual expenses of the association. The provision is that such applications shall be paid “ as soon as the necessary funds are in the treasury ; ” and this provision necessarily limits and controls the previous provision for loans, which is as follows: . 1 ‘Article 10, § 1. All moneys received by the association shall be loaned to members, except as hereinafter provided^” This, it seems to us, is all there is of this case. Under the provisions of the articles of association, it was not competent for the board of directors to prefer applications for loans to applications for withdrawals; and but for such preference, as the undisputed evidence shows, there were the necessary funds in the treasury, during the interval between the filing of the plaintiffs’ notice and the commencement of their action, to pay all previous applications of the same character, as well as that of the plaintiffs. The judgment of the county court was therefore right, and must be affirmed.

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

All concur.


text:
    John Zorn, Resp’t, v. Frederick W. Haake, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Trespass—Possession.
    The action of trespass guare clausum fregit can be maintained only by the party in possession.
    Appeal from judgment entered on a verdict in favor of plaintiff, and from an order«denying a motion for a new trial, made on the minutes of the court.

      Stephen Lockwood, for app’lt; Allen & Butterfield, for resp’t.
   Dwight, P. J.

The action was trespass to lands. The parties owned and occupied adjoining lots on the west side of Bailey avenue in the city of Buffalo. John Klin was their common source of title. He took title in 1867, to the entire front of lots Nos. 51 and 52 of the Buffalo Creek reservation, on the Williainsville road (now Bailey avenue), being by description, “20.50 ch., 1353 ft., in length along the west side of Bailey avenue.” The strip was bounded on the south by the south line of lot 51 and on the north by the south line of lot 53. The south line of lot 51 was the centre line of Clinton street, which crossed the Williarnsville road at right angles, and Clinton street was sixty-six feet wide; so that deducting from the entire length of the strip, as given in Klin’s deed, one-half the width of Clinton street, his front on Bailey avenue was, by description 1,320 feet. In the years 1872, 1873, 1880, and 1881, Klin sold off and conveyed several lots, varying from thirty to ninety feet front, all located in succession from the north end towards the south but in each of the conveyances the description commenced at the south-east comer of the lot conveyed which was described as being so many feet from the north line of Clinton street. Thus, of the first lot,—conveyed to Johannah Buse,—the front line was described as commencing in the west line of the Williamsville road (Bailey avenue), 1,260 feet from the north line of Clinton street, and running north sixty feet, which according to the description in Klin’s deed, would bring it to the north line of the strip, or the south line of lot 53. So, in case of each successive conveyance, the width of the lot conveyed was added to that of the lots previously conveyed, and, the sum being dedcted from the whole 1,320 feet front, gave the distance from the north line of Clinton street, at which the description began. This, in effect bounded each lot on the north by the south line of the lot next previously conveyed. The plaintiff’s lot was the seventh in order of conveyance and of consecutive location from the north southward. The six lots previously conveyed had an aggregate front of 350 feet, and the plaintiff’s of thirty feet, and, accordingly, the description in his deed commenced at a point 940 feet north from the north line of Clinton street. The next conveyance was in 1881, to one Martin, of a lot ninety feet front, and the description began at a point 850 feet north from the north line of Clinton street. This was the lot subsequently conveyed to the defendant. The plaintiff took his deed in 1880, at which time there was a fence on the supposed south line of the lot north of him, and he took possession of thirty feet front south of that fence. Within a year or two thereafter he built a fence part way through from the front, on his supposed south line, thirty feet south from the fence above mentioned; and within a year or two of the same time, Martin, the defendant’s grantor, completed the fence through to the rear of their lots, on the same line. The plaintiff testifies that he built his part of the fence on the line which his grantor pointed out to him as his south line, and that he and the defendant’s grantor agreed on the division of the fence between them, substantially as it was built by them at this time. The defendant took his title in 1890, taking possession up to the line of the fence last above mentioned. In January, 1891, he commenced to excavate clay for bricks in the north part of his lot near the fence. He did so without objection from the plaintiff, until the latter became alarmed for the safety of his fence, and objected to his coming nearer the line. Upon the defendant’s persisting, the plaintiff procured a surveyor to locate the line accurately, and was as much surprised as the defendant as to learn that the point 940 feet north from the north line of Clinton street, which, according to the description in both deeds, was the plaintiff’s southeast and the defendant’s northeast corner, fell nine and one-quarter feet south of the fence between their lots; but he proceeded thereupon to bring his action for breaking and entering his close and taking and carrying away the soil of his lot. That action, we suppose could be maintained on the facts stated, for want of possession in the plaintiff; and the objection was taken by the defendant in his motion for a nonsuit on that ground. The action of trespass guare clausum fregit has always been regarded as a possessory action, and one which could be maintained only by the party in possession. 4 Kent, Comm. 10, noted; Campbell v. Arnold, 1 Johns. 511; Tobey v. Webster, 3 Johns. 468; Stuyvesant v. Tompkins, 9 Johns. 61; Frost v. Duncan, 19 Barb. 560. It is true that the possession necessary to the maintenance of the action need not in all cases be actual possession As was said by Chief Justice Kelson in Holmes v. Seely, 19 Wend. 507:

“ The plaintiff must have the actual possession at the time, or, what is deemed equivalent, a possession which the legal title draws after it;”

But the legal title does not draw after it the possession of land which is at the same time in the actual, exclusive, and adverse possession of another, In Van Rensselaer v. Radcliff, 10 Wend. 639, it was held that a party having title to lands though not in the actual possession thereof, may maintain trespass against another, who is not himself in the actual possession of the premises. The language of Judge Savage at pages 652, 653 was: •

“ The possession of the plaintiff was sufficient against a stranger. He showed title to lands which were not in the possession of any other. He was, therefore, in possession, as, in such cases, the possession follows the title.”

See, also, Wickham v. Freeman, 12 Johns. 183, 184. The cases cited by counsel for the plaintiff, to the effect that title to the whole and possession of a part give constructive possession of the whole, do not apply to cases where the possession of the locus in quo is actually in the defendant. In Munro v. Merchant, 28 N. Y. 9, the question was what form of holding was sufficient to constitute an adverse possession in the plaintiff; but here was adverse possession in the defendant. It is impossible that two persons should be in possession of the same piece of land at the same time, unless they are joint tenants or tenants in common. In the case of Society v. Baker, 15 Vt. 119, it was held that “ to maintain trespass quare clausum fregit, the plaintiff must have either title or exclusive possession, and there must be no adverse possession in any other person.” Here the actual, exclusive and adverse possession of the defendant was unquestioned. The principles involved in this discussion were well stated by the supreme court of North Carolina in Dobbs v. Gullidge, 4 Dev. & B. 68, as follows:

“ The action of trespass quare clausum fregit, being a remedy for injury to the possession, cannot be maintained by him who had not possession when the wrong was done. But, when there is no actual possession in another, the law adjudges him in possession who has the property, and this constructive possession is fully sufficient to maintain the action.”

The answer here given to the plaintiff’s present action renders it unnecessary to consider the question which might have properly arisen in the case had the action been one asserting title in the plaintiff, and claiming to recover possession of the defendant. The judgment and order appealed from must be reversed and a new trial granted, with costs to abide the event.

So ordered.

All concur. '


author: Bradley, J.

text:
    John G. Zweigle, Resp’t, v. Maria Hohman et al., Resp’ts. Otto Beck, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Will—Charge.
    The acceptance of a devise, made on condition that the devisee pays certain legacies, renders him personally liable, and and action therefor is not on a sealed instrument.

      2. Same—Limitation.
    The six years’ limitation applies to such action.
    Appeal from a judgment in favor of defendants Hohman on issues between defendants.

      F. F./Iurlc, for app’lt; Wile & Qoff, forresp’t Zweigle; William Q. Jerome, for resp’ts Hohman.
   Bradley, J.

The provision in the will to the effect that the testatrix gave her property to the defendants Hohman upon the condition that they paid the legacies there mentioned did not create a condition precedent to the vesting of the estate in them. They, on acceptance of the devise, were seized, in fee of the premises, and became personally liable to pay the legacies; and, by reason of the condition so expressed in the will, the legacies were made a charge in equity upon the land. Loder v. Hatfield, 71 N. Y. 92. The testatrix was mother of the legatee Otto Beck, then an infant, and in loco parentis to him; and for that reason, and because no other provision was made for him, he was entitled to interest upon his legacy from the time of her death. Brown v. Knapp, 79 N. Y., 136. And the charge of it upon the premises was superior to the lien of the mortgages in question, and was in due time available as such, unless reasons existed which would have enabled the mortgagees to insist, if necessary for their protection, that payment of the legacy should first be sought from those who were personally and primarily liable to pay it. Dodge v. Manning, 1 N. Y., 298. Whether that could have been required of the legatees of the will in question, if they had proceeded in equity to enforce the lien against the realty devised, we are not advised by the evidence, nor is it necessary, in the present case, to consider that question. It may here be assumed that the remedies at law and in equity were concurrent. In such case the statute limiting the time for the commencement of the action at law is applicable alike to both remedies. This was so before there was any statute in that respect relating to suits in equity, and the provisions of the Revised Statutes applying to the latter the same limitation of time for their commencement (2 Rev. St., p. 301, §49) was declaratory of the law as it then existed, (Borst v. Corey, 15 N. Y., 505.) The statute of limitations applicable to an action at law against the devisees of the will to recover the legacy was alike available as a defense to a suit in equity founded upon the charge of it as a lien upon the land. In re Neilley, 95 N. Y., 382, 390; Butler v. Johnson, 111 N. Y., 204, 217; 19 St. Rep., 85. The limitation of six years is alleged by the defendants Hohman as a bar to the charge founded upon the legacy made by the legatee in his answer. His cause of action accrued when he arrived at the age of twenty-one years in 1883—nine years before this action was commenced. Although the will was sealed with the seal of the testatrix, an action to recover the legacy would not be one on a sealed instrument, within the meaning, of the statute. It would be founded upon the implied promise of the devisees to pay, arising from their acceptance of the devise. American Bible Society v. Hebard, 61 Barb., 552; 41 N. Y., 619 ; Loder v. Hatfield, 71 N. Y, 92, 104. Hor is the statutory limitation of ten \ ears (Code, § 888) applicable to an action by the legatee to enforce it as a charge upon the land. That provision is applied only to cases exclusively within equity jurisdiction, and in which there is no concurrent remedy at law. Butler v. Johnson, 111 N. Y., 204; 19 St. Rep., 85.

It follows that the six-years’ limitation statute is applicable to the claim made by the defendant Beck, and, as it does not appear that any partial payments were made upon his legacy within that time next preceding the commencement of the action, it was a bar to relief in his behalf in the action. The question of the alleged payment of it is not here for consideration. Upon that subject there was a conflict in the evidence, and the trial court did not find what the fact in that respect.

The judgment should be affirmed.

All concur.


text:
    In the Matter of the Estate of Edwin F. Frye, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 18, 1894.)

    Executors, etc.—Creditor.
    Where the effect of a transaction between a third party and decedent was a purchase of stock and not a loan to the latter, the former is not a creditor of the latter and, as such, entitled to letters of administration on his estate.
    Appeal from an order revoking letters of administration.

      Geo. A Carnahan, for app’lt; Horace McGuire, for resp’t.
   Dwight, P. J.

Letters of administration were granted to the appellant, on his own petition, as a creditor of the estate. They were revoked by the order here appealed from, on the ground that he was not in fact such creditor. The facts established by the evidence were, briefly, as follows: The decedent, Frye, being engaged in the business of buying and selling grain at Rochester, procured the organization of an incorporated company to purchase the business from him. The organization was in all respects in accordance with law. The proper certificate of incorporation was duly executed and filed, which showed that not less than 10 per cent, of the capital stock was subscribed, and that 10 per cent of the amount subscribed had been paid in cash to the directors, and officers were duly elected, of whom Frye was the treasurer; but the company never became qualified to do business, because one-half of the capital stock was never subscribed. The appellant was an original subscriber for five shares of the stock at the price fixed, of $50 a share, and paid 10 per cent ($25) thereon at the time of the organization. Yery few, if any, subscriptions to the stock were ever made, beyond the 10 per cent, mentioned in the certificate; and the business was never transferred to the company, but, pending the expected transfer, was carried on as before, by Frye, individually. Frye came to be in want of money for the business, and, upon that fact becoming known to Atwood, the latter paid him $975, and took from him a certificate of twenty shares of full-paid stock of the company, of the par value of $1,000, which included the five shares, originally subscribed by him, on which he had paid $25 at the time of the organization. Atwood also received from Frye the promise to pay him the interest on the $975 until the business should be transferred to the company, it being understood between them that Frye would make use of the money in his own business until that time. ■ The certificate given to Atwood bore the names of the president and treasurer of the company, it having been one of a number which w.ere signed in blank by the president for the convenience of the treasurer, in case of the sale of stock.

This was the transaction between Frye and Atwood, out of which, if all, arose the relation of debtor and creditor between them. We think it reasonably clear that the relation was not created thereby. Thé transaction was no doubt irregular, in some respects, but its character was not obscure. It was clearly the intention of Atwood to increase his holding of the stock of the company from five shares to twenty shares, and to pay for the whole of it in full. This it was entirely competent for him to do, and this was undoubtedly the effect of the transaction. He testifies that he dealt with Frye as' the treasurer of the company, and paid him the money as such; and the certificate which he received, if not, in all respects regularly issued to him, was good, at least as a voucher, and entitled him to a certificate for twenty shares of full-paid stock. The money, therefore, paid by him, belonged to the company, and he had no claim to recover it from Frye. It was not paid to him under any mistake of fact, and there is no ground for imputing to him any fraud in the transaction, as between himself and Atwood. All the facts of the case were equally known to both parties, and it-was the intention of both that Frye should use the money in the business until the business should be transferred to "the company. The facts of the case are, we think, equally fatal to the contention of the appellant that he was the creditor of the decedent in respect to the interest which the latter agreed to pay him for the use of the money pending the transfer of the business to the company. Such an agreement was clearly an unlawful one, as being, in effect, if not in intention, a fraud upon the company, to which the money belonged; and, the parties thereto being in pari delictu, neither will be heard to assert a claim against the other based upon that agreement. The views here expressed are based, we conceive, upon elementary principles, and, if correct, they result in the denial to the appellant of the relation of creditor, to any extent, of the decedent, and consequently in the affirmance of the order revoking the letters of administration which were issued to him in that capacity.

Decree appealed from affirmed, with costs to the respondent.

All concur.


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    William C. Benfield, Resp’t, v. Vacuum Oil Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Master and servant—Rules,
    Failure of the master to prescribe rules for the conduct of his servants renders him liable only for the act or neglect of a fellow servant in the same employment.

      2. Same—Instruction.
    The duty of the master to instruct his servants against dangers incident to the. business, discussed.
    3. Same.
    The master is not liable for an injury from a danger which could not reasonably have been apprehended by him.
    Appeal from an order denying a motion for a new trial made on the minutes of the court.

      William N. Cogswell, for app’lt; Charles Van Voorhis, for resp’t.
   Dwight, P. J.

The plaintiff had been in the defendant’s employ for a year and a half, engaged in the same duties and exposed to the same dangers as at the time when the accident occurred from which the injury was received of which he now complains. The accident was the explosion of gas in a tank in which paraffine was being heated, and it was caused by the act of the plaintiff himself in raising the lid of the tank with a lighted lantern in his hand, or hanging on his arm. The gas escaping from the open tank communicated with the flame of the lantern, and the explosion followed, in which the plaintiff was burned and otherwise injured. The paraffine tanks or boilers were outside of the building, and were buried in the ground, except the openings through which they were filled and emptied, and to which the covers were fitted. The tanks were heated by steam, introduced by means of coils of pipe, from which it was the duty of the engineer to shut off the steam when sufficiently heated ; and, at the proper time after that, more of the cold and solid paraffine was added, and the heat renewed. The cold paraffine was brought from the presses inside of the building in a hand cart, and thrown or dumped into the tank, and this was the duty, among others, of the plaintiff. The operation involved the danger of being splashed with the already heated contents of the tank, and to obviate this the men were in the habit of lifting the cover a suitable time beforehand in order to cool down the contents before filling. It was for this purpose only that the plaintiff went to the tank at the time of the explosion. He had no need of his lantern, except to light his way to the tank. He had no occasion to inspect the contents or condition of the tank in any respect, but only to raise the lid; and for this purpose the lantern would have served him as well set down or hung up at a safe distance as carried to the very mouth of the tank. The failure to observe this precaution was the sole cause of the accident, and the only question for the jury was, “Whose fault was it?” or “Was it solely the fault of the defendant? ” For if it was even partly the fault of. the plaintiff there can be no recovery in this action. The plaintiff seeks to charge the fault to the defendant on the grounds (1) that it failed to give the plaintiff the necessary instruction ns to the explosive character of the gases evolved from petroleum in the various processes of its refinement and manufacture; (2) that it failed to provide proper lighting for the tank; (3) that it failed to provide proper rules for the government of its employes.

The second and third of these grounds need not occupy very much of our time. It is plain that the doctrine of the liability of the employer for failure to prescribe rules for the conduct of his servants has application only to charge the employer with responsibility to one servant for the act or neglect of a fellow servant in the same employment. In this case there was only one fellow servant whose act or neglect seems to have borne any possible relation to the accident in question, and the plaintiff does not seek to charge the defendant with responsibility for his act or neglect. That servant was the engineer, whose duty to turn off the steam from the tank at the proper time was well understood by him, but who on this particular evening intrusted that duty to the plaintiff himself; so that, if the steam was not shut off in time, or the tank was opened too soon after the steam was shut off, the plaintiff has only himself to blame.

In respect to the lighting of the tanks it was in evidence that there were some electric lights in the yard—though the plaintiff testified that they were not so situated that he could see at the tank which exploded—and that a new electric light had been put up, within a few days, on the outside of the building, near the tank, which could have been lighted by turning on the electricity by a switch inside; but the plaintiff testified that he did not know of its presence, and that the light was not turned on that night. But we do not consider these facts of much importance, because, as already appears, up to the time of the explosion no light was necessary, except to show the way to the tank, which, after his 18 months’ experience, must have been very familiar to the plaintiff, and plainly did not require that his lantern should be presented at the very opening of the tank.

We are of the opinion, therefore, that the question in the case is narrowed down to the first of the grounds above enumerated upon which negligence is alleged against the defendant, viz.: the failure to give the plaintiff necessary instructions as to the dangers to be guarded against in the performance of his duties, and especially in the use of a lantern in proximity to the paraffine tanks. And in this respsct it seems to us that the verdict, which charges the defendant with culpable negligence which was the producing cause of the accident in question, was against the law and the facts of the case as it was made on the trial under review. In the first place, it is to be observed that the defendant was not required to exercise the highest possible diligence to instruct the plaintiff in every conceivable particular of the circumstances in which he might be placed, or in every possible detail of his conduct in the performance of his duties. The requirement in this respect is only that the master exercise ordinary and reasonable care to see that the servant possesses a competent knowledge of the peculiar dangers to which he is exposed in doing his work, and of the precautions necessary to be taken to guard himself against those dangers; and in the exercise of that care the master has the right to assume that the servant brings to the work ordinary intelligence and powers of observation, and the capacity to learn something from observation and experience. De Forest v. Jewett, 23 Hun, 490, 493; affirmed 88 N. Y. 264. Moreover, the dnty to instruct against dangers incident to the work extends ordy to such dangers as are known to the master himself, or which are reasonably to be apprehended from the nature of the employment. Devlin v. Smith, 89 N. Y. 470, 476; Stringham v. Hilton, 111 N. Y. 188, 195, 196; 19 St. Rep. 621. In this case the plaintiff had had practical experience of a year and a half in the performance of the same dunes as those in which he was engaged on the night of the accident, and it is impossible to believe that he bad not in that time acquired some knowledge of the nature and properties of the substances with which he was engaged; that he had not learned that the products of petroleum, under some conditions, and especially the condition of great heat, are capable of generating explosive gases, and that it is unsafe to bring fire into contact with those gases when they are being evolved.

But the plaintiff testifies that he had been in the habit, during the whole of his experience with the paraffine tanks, of doing the work assigned to him in the same way as on the night in question, and that no explosion had ever before occurred. If this is true,— if he had habitually raised the lid of the tank with his lantern in his hand, or hanging on his arm, and done so with impunity,— then the inference is unavoidable that the conditions present on the night in question were materially different from those which usually prevailed, and the only reason for that difference which is suggested by the evidence is that the heat in the tank was greater than it ordinarily was when the lid was raised, and that this was caused by leaving the steam on longer than was proper, and that the tank was opened too soon after the steam was shut off. This conclusion, if it afford the correct hypothesis to account for the unusual, and indeed unprecedented, explosion, is important in two respects as bearing upon the question of the defendant’s liability; for, first, it tends to show that the danger here encountered was one not reasonably to have been apprehended by the defendant; and, second, it demonstrates either that the negligence of the fellow servant, the engineer, who devolved his own duty upon the plaintiff, or of the plaintiff himself, who undertook the performance of that duty, or of both, contributed to occasion’the accident, and to produce the injury complained of; and in either case there could be no recovery in this action. We think the motion for a new trial, which presented the questions here considered, should have been granted. The order appealed from should therefore be reversed.

Order appealed from reversed, and a new trial granted, with costs to abide the event.

All concur.


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    George W. Bocher, Appellant, v. William N. Stewart, Respondent.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Chattel mortgage—Subjects oe.
    An agreement to work a farm on shares, with reservation of the title to the crops in the owner, until certain advances are fully paid, conveys no interest to the employe which he can mortgage.
    8. Same—Filing.
    Such agreement need not be in writing or filed as a chattel mortgage, in order to such preference.
    Appeal from a judgment entered on a verdict in favor of the defendant, and from an order denying a motion for a new trial, made upon the minutes of the court.

      IS. A. Nash, for app’lt; J R. Strong, for resp’t.
   Dwight, P. J.

The action was trover for an undivided one-third part of a crop of oats raised on the farm of the defendant by one Macauley, who took the farm to work on shares. The plaintiff claimed under a chattel mortgage given to him by Macauley, and the real question in the case is whether, under the agreement of the defendant with Macauley, the latter had any property or interest in the crop which he could transfer by chattel mortgage or otherwise. The -agreement was, as we have said, to work the farm on shares, but with many special provisions; among others, that the defendant should make certain advances to Macauley, to enable him to carry on the work, and that the title to the crops should remain in the’defendant until those advances were fully paid. There was some conflict of evidence in respect to the last-mentioned feature of the agreement, but the jury was abundantly justified in finding, as under the submission of the case to them they must be presumed to have found, that such was the agreement. Under that agreement there seems to be no room for the contention of the appellant. Here was no lease, nor was the relation of landlord and tenant created between the parties. It was, in effect, a contract of hiring to work the defendant’s farm, compensation to be rendered in a share of the crop. Unglish v. Marvin, 8 N. Y. Supp., 283; 28 St. Rep., 68; Reynolds v Reynolds, 48 Hun, 142; 15 St. Rep., 464, and the cases cited. The entire crop belonged to the defendant, except as otherwise provided by the agreement; and by the agreement it was provided that the entire crop should continue to belong to the defendant until he was repaid the advances made by him. This agreement was not in the nature of a chattel mortgage, nor a conditional sale, nor a pledging of the property of the debtor for the security of the creditor, because the property was the creditor’s from the beginning, and was to become the debtor’s only on payment of his debt. The case seems to be entirely within the doctrine of Andrew v. Newcomb, 32 N. Y., 417, which case it closely resembles in its facts. Such being the nature and effect of the agreement, it was not necessary that it should be in writing, nor filed as a chattel mortgage, in order to give it precedence over the chattel mortgage of the plaintiff. Indeed, under such agreement, Macauley had no property or interest in the crop which was capable of transfer by chattel mortgage, and the plaintiff took nothing by the paper executed to him. We find no exception in the case which points to error on the trial, and conclude that the judgment and order appealed from must be affirmed. So ordered.

All concur.


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    Romane Depew, Resp’t, v. Edina Ketchum et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.

    Damages—Landlord and tenant.
    Under a lease reserving the right to the lessor to sell the premises at. any time during the term, the measure of the lessee’s damages, in case of such sale, is the value of the term surrendered.
    Appeal from- a judgment entered, in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.-

      M Hicks, for app’lts; G. W. Kimball, for resp’t
   Dwight, P. J.

The plaintiff took the farm of the defendants to work on shares for a term of five years from the 1st of April, 1891. The contract was in writing, -and contained the following provision:

“ The parties of the first part reserve the right to sell this farm at any time during said term, and the party of the second part agrees to surrender possession of the same on the first day of April in any year of said term, in case said sale is made; and the parties of the first part agree to pay any damages that the party of the second part may sustain by reason of a sale, said damages to be determined, if the parties cannot agree, by each party selecting a man who shall assess the damages.”

Under the right thus reserved, the defendants made a sale of the farm during the first year of the term, and the plaintiff, in performance of the same provision of the contract on his part, surrendered the possession on the first day of April, 1892. Shortly afterwards, he called upon the defendants to select a person, on their part, to act as appraiser of his damages, and, upon their declining to do so, he brought this action. The action was for the value of that portion of the term which was surrendered by the plaintiff; and this, we have no doubt, he was entitled to recover, under the terms of his contract. The defendants' right to sell the farm during the term is reserved on the condition that they pay the plaintiff his damages thereby, and the plaintiff’s agreement to surrender the possession is on the condition that he be paid such damages. The defendants’ obligation, under the contract, to pay damages, is as binding as if it arose from a viola-, tion of the contract on their part. The only question in the case is, therefore, what are the damages to be paid—how ascertained and how measured? The contract says, “any damages that the party of the second part may sustain by reason of a sale.” That means any damages directly or proximately consequent upon, or resulting from, a sale. And that the loss of his term—of the rights and privileges which he would otherwise have enjoyed during the term—is to be mainly the basis of such damages cannot well be doubted. And what are those rights and privileges? Clearly, among others, the right and privilege to work the farm for four years or more, and to make out of it all the grain and profit which it was capable of affording. The measure of the plaintiff’s damages, then, is the' value of the term surrendered; and the value of the term depends upon the capacity of the farm to yield a profit to the man who works it under the contract which the plaintiff held in this case. Granting (what we have assumed) that the liability of the defendants is the same under a contract by which they stipulate to pay damages in case of a sale as it would have been had they made a sale in violation of the contract, then the case of Taylor v. Bradley, 39 N. Y., 129, is authority for the plaintiff’s contention upon nearly every question arising in this case; and its doctrine is, in great measure, reaffirmed in the case of Wakeman v. W. & W. Manufacturing Co., 101 N. Y., 205. Both of these cases were for damages resulting to the plaintiff from a breach of the contract. In the former of them the contract was of the same character as in this case, viz., the letting of a farm to work on shares; and the court held, in an elaborate opinion of Woodruff, J., that the plaintiff was entitled to recover as damages tbe value of his contract, i. e., what such a privilege of occupying and working tbe farm was worth, subject to the conditions of the agreement, and under all the contingencies which were liable to affect the result. “ His damages are what he lost by being deprived of his chance of profit.” Also, that such damages might be recovered immediately upon the refusal of the defendant to perform the agreement. And in the case of Wakeman v. Manufacturing Co., the same rule was applied to the estimate for the breach of a contract to give the plaintiff the exclusive privilege to sell machines in certain territory, and to furnish him the machines for such sales as he should make therein. Both of these cases are very instructive in respect to the limitations to be put upon that rule that speculative and uncertain damages cannot be recovered; and, at least in the latter of them, the admission of evidence was approved, which showed something of the extent and profit of the plaintiff’s business, so far as he was enabled to prosecute it, as tending to show what it might have been in case of full performance of the contract on the part of the defendant, and that the case was not one for expert or opinion evidence as to what machines might have been sold, and what profits made. The rule of the latter case, as to the allowance of prospective profits and the mode of estimating them, was adopted in Dart v. Laimbeer, 107 N. Y., 664; 12 St. Rep. 48. This case was, we think, submitted to the jury in a charge very carefully in accord with the principles established by the cases above cited. The jury was instructed that the profits of the year during which the plaintiff had the benefit of his contract were not to be taken as the measure of the profits which might have been realized in the four succeeding years, but as facts which might aid the jury in estimating the value of the contract, one year with another; and it would seem that, under the careful instructions of the court, the jury did not go very far astray into the region of speculation and conjecture. Their verdict was for $1,500, which fixes the value of the plaintiff’s contract at $375 a year; not an extravagant profit to be realized over and above the expenditures of labor and care, enterprise and responsibility, involved in the management of a farm of 234 acres of fertile and highly-improved land. We find no error in the case which should vitiate this verdict.

The judgment and order appealed from should be affirmed. So ordered.

All concur.


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    Rebecca B. Evans, Resp’t, v. Jennie A. Howell et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Trial—Findings of fact.
    Findings of fact by a referee will be given effect as such, though designated as conclusions of law in his report.
    Appeal from a judgment entered in favor of plaintiff.

      G. W. Daggett, for app’lts; T. J. Qarable, for resp’t.
   Dwight, P. J.

The action was to foreclose a contract of purchase and sale of real estate. The defense was usury. The issue was therefore necessarily one of fact, with the burden of proof on the defendants. But we are not permitted to review the findings of fact, for the reason that the appeal book does not purport to contain all the evidence given on the trial, Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948, nor was there a request by the defendants to find any fact in support of the defense. We are therefore shut up to the inquiry whether the findings of fact actually made support the conclusions of law reported by the referee, and these in turn the judgment directed by him. And here it is to be observed that there is in the findings of fact (so' denominated) no finding upon the question of the corrupt and usurious agreement between the parties which is averred in the answer of the defendants, but all the affirmative facts are found which would entitle the plaintiff to the relief demanded in her complaint. Probably, in the absence of any request to find on the issues raised by the answer, the findings mentioned were sufficient to support the formal conclusions of law, and the direction of judgment in favor of the plaintiff; but in that part of the report which is denominated “ conclusions of law ” we discover findings which amply negative the averments of the answer. They are as follows:

“Second. That the transaction between the plaintiff and the defendant Jennie A. Howell was a purchase and sale, and not a loan, and the same was not usurious; third, that no agreement for the loan of money at a usurious rate of interest was ever made by the plaintiff with the defendants, or either of them; fourth, that no agreement for the loan of money was ever made by the plaintiff with the defendants, or either of them.”

These are, undoubtedly, findings of fact, and will be given effect as such, notwithstanding the designation under which they stand in the report. Sherman v. H. R. Railroad Co., 64 N. Y. 254; In re Clark, 119 N. Y. 427; 29 St. Rep. 682.

Ho exception taken on the trial is presented in the argument of counsel for the appellant, and none seems to require discussion, here.

The judgment appealed from should be affirmed, with costs. So ordered.

All concur.


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    Jennette E. Gardner, Resp’t, v. Charles B. Benedict, as Executor, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Witness—Corroboration.
    The fact that an attorney, with whom his client’s witness testified that he consulted and to whom he stated that he showed the contract after execution, fails to testify in corroboration of such witness, is no ground, for discrediting his testimony.
    2. Trial—Striking out testimony.
    Evidence offered in behalf of plaintiff, which has been stricken out on his motion, may subsequently be re-instated at his instance.
    Appeal from a judgment in favor of plaintiff.

      Bowen & Washburn, for app’lt; M. E. & E. M. Bartlett, for resp’t.
   Dwight, P. J.

The action was on an alleged antenuptial agreement of the defendant’s testator, Henry W. Gardner, with the plaintiff, who is the widow of the deceased. The parties were married in May, 1882, and lived together until the death of the husband, in December, 1891. At the time of their marriage the deceased was a widower, of the age of 78 years, and the plaintiff, of the age of 62 years, was the widow of one Patrick R Gardner, to whom she was married at the age of 17, and who died in 1870. The complaint alleged that Patrick Gardner was the owner at the-time of his death of a farm of 140 acres and “ a large amount of personal propertythat by his last will he gave the use of all his property, real and personal, to his widow, the plaintiff, during her life or widowhood, and provided that upon her death or remarriage the whole of the property should go to his children ; that such provision was made and accepted by the widow in lieu of dower, and that at the date of the contract in question she was enjoying the possession, rents, profits, and income of all the property above mentioned. It is further alleged that when, in March,. 1882, the defendant’s testator proposed marriage to the plaintiff, she informed him of the provisions of her late husband’s will, and of her acceptance in lieu of dower, and spoke of the consequences to her, in a pecuniary point of view, in case she remarried ; and that the deceased thereupon proposed to give her the sum of $3,000 if she would marry him, and to secure that sum to her in a manner satisfactory to her; and that it was agreed between them that the matter of securing the payment of the $3,000 should be arranged by the deceased with the son of the plaintiff, Charles J. Gardner, acting for her; and that on the 9th day of May, 1882, the deceased duly executed, acknowledged, and delivered to the plaintiff an instrument in writing, under his hand and seal, whereby, in contemplation of marriage with the plaintiff, he promised and agreed that, in the event of such marriage, his personal representative should pay to her, or to her personal representatives, the sum of $3,000, 90 days after his death, which she accepted, and in consideration thereof was married to him on the next day, and continued to live with him as his wife until he died.

The only issue made by the answer of the defendant which is discussed by counsel for the defendant on this appeal is the simple issue of fact which is joined by the defendant’s denial, on information and belief, that the promise was ever made, or that the instrument in writing was ever executed by the deceased. A careful examination of the evidence satisfies us that the finding of the learned and experienced referee upon that issue in favor of the plaintiff cannot be disturbed. The case was completely established by the testimony of her son, Charles J. Gardner, if credit is to be given to him ; and, as the case stands on the record, we should have been greatly surprised if credit had been denied him.' The witness, as he is presented by the record, is altogether worthy of credit The testimony he gives is altogether credible in itself, and it is not contradicted in any particular. It is sought to be discredited only by evidenceof declarations of the plaintiff, soon after her husband’s death, that she did not know of any claims against his estate, and that she had none, and by the fact that a person w.ho, it is assumed, might have corroborated the testimony in question, was not called to do so. It is unnecessary to dwell upon the alleged declarations of the plaintiff. The testimony on that subject is given by the defendant and a grandson of his testator. The courts are constantly mindful of the liability of such testimony to be mistaken when the witness is honest, and of the facility with which it may be fabricated if he is otherwise, and it is apparent that the declarations may even have been made, and yet not discredit the testimony of Charles J. Gardner in any degree. It was for the referee to say how far they did so, it at all, in this case.

The. same may, and indeed must, be said in respect to the other alleged ground for discrediting the testimony of the^principal witness, but so much stress is laid upon it in the argument of counsel that it is proper to give it a moment’s attention at this point. Charles Gardner testified that he prepared the written contract for the signature of the deceased, mainly at the dictation of Judge Byron Healey, then, as for many years, county judge and surrogate of Wyoming county. Mr. Gardner had lately ended a second term as county clerk of the county, and at that timé had an office in the courthouse across the hall from Judge Healey’s. He testifies that, having it in his mind to prepare such a contract, he stepped into Judge Healey’s office, to ask his advice how to do it, and that the latter substantially dictated for him the contract which he Wrote., He also testifies that within a few minutes after the contract was executed he took it into Judge Healey’s office and showed it to him. Judge Healey appeared as counsel for the plaintiff on the trial of this action, and himself conducted the examination of the witness Gardner in which these facts were elicited, but he did not, himself, take the stand to testify in the case. It is strongly urged by counsel for the defendant that this fact should have discredited the testimony of Mr. Gardner. The conclusion is by no means a necessary one. In the first place, the testimony of the proposed witness would probably not have been admissible except as to the single fact that the contract was exhibited to him after it was executed, and hardly'then unless he was prepared to verify the signature of the deceased. All that preceded the execution of the instrument was res inter alios, and the fact that Charles Gardner wrote in Judge Healey’s office, and at his dictation, effected no presumption that it was ever executed by the deceased; and the testimony of Gardner does not go far enough to show that Judge Healey had the opportunity to examine the signature, nor that he would have been able to verify it if he had done so. But, besides all this, Judge Healey was counsel for plaintiff on the trial, and, being such, his declining to be at the same time a witness for his client was only consistent with a rule of professional conduct, which could not have been violated with propriety ; so that it was, at the outset, a question of choice with the plaintiff whether she could best dispense with his services as her counsel or refrain from calling him as a witness, if, indeed, he could give any testimony which would be admissible in the case. But, after all, the inference, if any, to be drawn from the omission to call Judge Healy as a witness, was a question for the referee, and the court will certainly not interfere with his conclusion in that respect.

Only one other question was presented by the argument of counsel for the defendant which seems to call for consideration here. That question arises upon rulings of the referee in striking out, and afterwards reinstating (both on motion of the plaintiff), certain evidence in the case which had been introduced by her and objected to by the defendant. The evidence related to the provisions of the will of Patrick Garner, the former husband of the plaintiff, and to the amount and value of the property, the use and income of which the plaintiff was to enjoy during her widowhood. We think it an answer to all the criticism of counsel on the course of the trial in this respect that the evidence was entirely admissible, that it was an excess of caution on the part of the plaintiff to move to strike it out, and that there was no error in its re-admission. The facts involved were, as we have seen, substantially alleged in the complaint. They were treated as issuable facts by. the defendant by admitting them in .part and denying them in part by his answer. They were recited in the written instrument itself on which the motion was brought as inducement and consideration therefor, and as such they are inseparable from the plaintiff’s case. We find no exception in the record which points to error either on the trial or in the findings or refusals to find by the referee. The judgment should therefore be affirmed.

Judgment appealed from affirmed, with costs.

All concur.


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    Henry C. Sherburne, App’lt, v. Edward A. Taft et al., Resp’ts.

      (Court of Appeals,

      Filed April 10, 1894.)

    Trial—Dismissal or complaint.
    The court is not bound to retain a case as against one only of several defendants for the purpose of enabling the plaintiff to prove, against him alone, another and different cause of action from that set forth in the complaint.
    Appeal from supreme court, general term, first department. Action by Henry 0. Sherburne against Edward A. Taft and others for an accounting of the proceeds of sale of express company stock.

      1). M. Porter, for app’lt; Elihu Root, for resp’ts.

       Affirming 49 St. Rep. 771.

   Per Curiam.

We have given this case a good deal of consideration, but, in the view" now taken, it is only necessary to state the conclusions we have arrived at: The evidence and findings of the court show a gross violation of one of the most firmly established principles of law on the part of the two defendants who were trustees of the Adams Company; and they also show that the fruits of such violation were received and partaken of by the other defendant and by the plaintiff with the full knowledge of the illegal and corrupt character of the whole transaction. The court below treated the contract as illegal, and refused its aid to any of- the parties. There is a claim made that, even if the contract were of an illegal character, yet it was so far completed that the only question left was in regard to a proper division of the profits among the parties to the contract, and that in such event the transaction comes within the rule laid down in Brooks v. Martin, 2 Wall. 70. Whether this case comes within that rule, and whether, if it did, the rule itself has been affirmed in this state, it is not now necessary for us to decide. Nor is it necessary to decide as to the power of the6,court to itself refuse to aid where the parties to the transaction do not take the objection. Some of us would hesitate long before deciding either point in favor of the plaintiff. Here, however, we have other facts. The action is brought for a general accounting by all the defendants to and with the plaintiff. The case shows, and the court finds, that there was a full and complete settlement of accounts in regard to the whole 'transaction between plaintiff and Taft, in Paris, which we hold to be a good answer to this action. The plaintiff alleged that the so-called “ settlement ” was only a conditional one, but the court finds against him on that point. He also attempted to prove that it was a settlement induced by fraudulent representations, but he failed in his attempt, and the court finds the settlement to have been valid. This action for an accounting between all the parties cannot, therefore, be maintained ; and the cause of action against the defendant Taft alone, upon the settlement at Paris, is a wholly separate and different one from that set forth in the complaint herein. The proof in this case left that cause of action unproved, in its entire scope and meaning, and the court was therefore right in dismissing the complaint. It was not bound to retain the case, as against one, only, of the several defendants, for the purpose of enabling the plaintiff to prove another and different cause of action against him alone.

We think the judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Dwight, P.J.

text:
    Willis C. Hubbard, Resp’t, v. William C. Rodger et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Bonds—Contractors.
    Section 3, chap. 278 of 1850, refers to the performance of labor by each laborer, and not the completion of the entire contract.
    Appeal from a judgment entered upon a report of a referee.

      Louis Marshall, for app’lts; G. F. Whitcher, for resp’t.
   Dwight, P.J.

The appellants are the sureties in a bond given by the contractors for certain work on the Erie canal, pursuant to the requirements of chapter 278 of the Laws of 1850, (Birdseye’s Ed., p. 390, § 48). The plaintiff is the assignee of the claims of a number of laborers employed by the contractors on the work. All the labor performed by the assignors, and for which the contractors were indebted to them, was completed more than three months before the commencement of this action while as the referee, finds, the entire work under the contract was not completed until less than thirty days before that date. This statement of facts presents two questions of law, which are considered by the referee in his opinion and upon both of which his conclusions are in accordance with the plaintiff’s contention. The questions are (1) whether section 1 of the statute above cited, which prescribes the condition of the bond, creates any liability on the part of the sureties in such bond in favor of an assignee of the claim of laborers ; and (2)whether this action, as against the sureties, was barred by the limitation of time prescribed by section 3 of the same statute. The full text of the statute is as follows :

“ Section 1. It shall be the duty of any canal commissioner or other officer having charge of the letting of any contract for work on any of the canals or other public works of this state, to requi re and take, in addition to the bond now required by law for the security of the state, a bond with good and sufficient sureties, not less than two, conditioned that such contractor shall well and truly pay in full at least once in each month, all laborers employed by him on the work specified in such contract, which bond shall be duly acknowledged before an officer authorized to take acknowledgments of deeds, and filed by the officer taking the same in the office of the clerk of the county wherein such contract or work is to be performed. And when such work shall be partly in two or more counties, there shall be such a bond filed in the clerk's office of each county. Sec. 2. Suits may be commenced on said bond before a justice of the peace, when the amount claimed shall not exceed the jurisdiction of a justice of the peace, and a transcript of such bond, duly authenticated by the county clerk, may be used in evidence in such suit. Sec. 3. The bringing of a suit by one or more laborers, upon such bond, shall not operate as a bar to the bringing of other suits thereon, by any of the parties for whose benefit such bond was taken, and to whom such contractor shall be indebted for labor. Bui no recourse can be had to the sureties upon such bond, unless proceedings shall be commenced within thirty days after the completion of the labor, the payment of which is assured by such bond. But' nothing in this act contained shall prevent or bar a suit against such contractor, within the time limited by law.”

Upon the plain reading of this statute, we think the conclusion of the referee on the second of the questions above stated was erroneous. In order to avoid the application to- this case of the short statute of limitations in favor of sureties, contained in the third section, he construes the words “thirty days after the completion of the labor, the payment of which is secured by such bond,” to intend thirty days after -the completion of the entire labor expended upon the work under the contract; in other words, the labor of all the laborers employed on the work. It is true .that the payment of all this labor is intended to be secured by the bond ; but it is equally true that the bond is, by its express terms as well as by its general tenor, intended as security to each man-individually, and that, as to each man who may have occasion to resort to it, “ the labor, the payment of which is secured by such bond,” is his own labor, and that alone. The single and commendable purpose of the statute is to secure to every laborer on the public works prompt and regular payment of his wages “ at least once in each month.” This purpose would be entirely defeated if each man’s remedy against the sureties in the bond were postponed until every man’s labor on the entire work was completed, which might not be in many months, or even years. The whole - tenor of the statute is opposed to such a construction. It is careful to afford every facility for the prompt and easy enforcement of the remedy provided. It provides for proof at hand in every case, and a ready and inexpensive tribunal, and that each man shall have his own action, unaffected by whatever action has been taken by others. All its provisions indicate the purpose to give an individual security and an individual remedy. It requires security for the payment of every man’s wages at least once in each month. How is this security afforded by a bond which can be enforced only after the completion of the entire work, be the time longer or shorter ? Nor do we find anything in the particular terms employed in the statute which necessitates a construction opposed to the general tenor of its provisions. The criticism which is made upon the use of the word “ completion ” instead of “ performance ” of the labor, etc., seems to- us more nice than forcible. Indeed, there is one view in which the use of the word “completion ” is necessary to the construction which we adopt. Each man’s labor is “ performed ’’daily, and payment for each day’s labor is secured by the bond; but it was evidently not intended that the bond should be enforceable for each day’s wages. Whereas, each man’s labor, for the payment of which security is given, is “ completed” either at the expiration of each month, or—sooner—when his connection with the work ceases. And so, we suppose, it is to the purpose and effect of this statute, and of the bond given in compliance therewith, that if a man’s wages are not paid at the end of every month during which he labors, or at the expiration of his whole time, he has, then, his remedy against the sureties, by bis action on the bond; otherwise, the bond does not afford security for the payment of his wages “at least once in each month,” as by its terms it purports to do. If such is the true construction of the statute, and of the bond given in conformity therewith, then the. thirty days limitation of time, within which proceedings were required to b.e commenced for the enforcement of this bond, as against the sureties therein, had fully run against each of the plaintiff’s assignors before the commencement of this action was barred thereby. This conclusion, which seems to us unavoidable, upon the conceded facts of the case, so completely defeats the plaintiff’s action that we deem it unnecessary to consider the other question proposed, the answer to which is perhaps not so clear. The judgment appealed from should be reversed, and the complaint dismissed.

So ordered.

All concur.


text:
    Edward H. Nies, Resp’t, v. Calvin E. Broadhead et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Evidence—Photographs.
    Photographs of locality may be verified by any eye-witness, as well as the photographer, in order to their competency as evidence.
    2. Trial—Striking out testimony.
    The fact that the answer is not strictly responsive to the question on direct examination does not, necessarily, entitle the party, against whom the testimony is given, to have it stricken out.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes of the court.

      lí. G. Danforth, for app’lts; E. Van Voorhis, for resp’t.
   Dwight, P. J.

The action was for a bodily injury sustained by the plaintiff in being thrown from or in his buggy down a high bank by the side of a temporary road constructed by the defendants to avoid a deep cut by which they had intersected the highway in the construction of a railroad. The motion for a new trial purported to be made “ on all the grounds set forth in § 999 of the Code of Civil Procedure,” but the only ground which seems to have been argued below was an exception to the admission in evidence of several photographs of the locus of the accident, taken from different points of view ; and that is the principal .question made on this appeal. The proofs preliminary to the introduction of the photographs showed that they were taken by a photographer about six weeks after the accident, and that the road and its surroundings had not been changed in the mean time in any substantial particular; and the plaintiff, who accompanied the photographer, and who had himself, after that time, some experience in taking photographs, testified that each of the pictures was a correct representation of the scene, from the point of view of each, at the time it was taken. This testimony was not contradicted. Some time after the protographs were proved, as above stated, and marked for identification, they were offered in evidence by counsel for the plaintiff, whereupon, as we read from the record, counsel for the defendants objected to the evidence “ as incompetent; that there were changes between the time the accident occurred and the time the photographs were taken, and they are not proved by the photographer who took them to be accurate.” The objection was overruled, and the defendants excepted. We think the exception was not well taken. It will be seen that the only real ground of the objection stated was that the photographer was not called to testify to the accuracy of the pictures. It is true that the photographer is often called, and it is very proper that he should be, to answer particular questions, if desired, in respect to his work ; but it is not apparent that he is any more competent-to speak of the accuracy of the picture—that is, we suppose, the correctness of the representation—than any other eyewitness of equally correct vision and powers of observation, and equally interested to observe, the features of the scene depicted. There is no case, we believe, in which the verification of the photographer has been held essential to the competency of the picture as evidence, and there are several cases in which the pictures have been admitted without such verification. Roosevelt Hospital v. New York El. R. R. Co., 21 N. Y. Supp. 205; 50 St. Rep. 456 ; Archer v. Railroad Co., 106 N. Y. 589; Alberti v. N. Y., L. E. & W. Railroad Co., 118 N. Y. 77; 27 St. Rep. 865. In Blair v. Pelham, 118 Mass. 420, it was held, in an opinion by Gray, O. J., that the photograph must be verified by proof that it was a true representation of the subject; not that such proof must be made by the photographer, but, on the contrary, that the question whether it was sufficiently verified was a preliminary question of fact for the court, and its decision was not subject to exception. It seems to be clear that the objection in this case on the ground stated was not tenable, and was properly overruled. We are unable to see that there was any just ground for the objection to the admission of the photographs in this case. It is undoubtedly true that photography has come to be recognized as a most efficient aid in investigations, the subjects of which cannot themselves be brought into court; and nowhere, as we think, have the principles upon which such aid is received been more correctly set forth than by the supreme court of Pennsylvania in 1874, in the case of Udderzook v. Com., 76 Pa. St. 340, where that court said:

“ It is evident that the competency of the evidence in such cases depends upon the reliability of the photograph as a work of art, and this, as in the case before us, in which no proof was made by experts of this reliability, must depend upon the judicial cognizance we may take of photographs as an established means of producing a correct likeness. The Daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation’s experience. It has become a customary and a common mode of taking and preserving views as well as the likeness of persons, and has obtained universal assent as to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light, through the camera, are dependent on the same general laws which produce the images of outward forms on the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likeness.”

Much to the same purpose was the remark of our own court of .appeals in the case of Cowley v. People, 83 N. Y., 464:

“We do nor fail to notice, and we may notice judicially, that all civilized communities rely upon photographic pictures for taking and preserving resemblances of persons and animals, of scenery and natural objects, of buildings and other artificial objects.”

We may add that we have examined the original photographs in this case, which are in the record before us, and find—as, no doubt, the judge in the circuit found—that they bear evidence on their face of the correctness of their representation of the scenes depicted in clearness of delineation, sharpness of outline, correct perspective, and in the just proportion between the various objects depicted. We have no doubt of the competency or of the usefulness of the evidence in question.

The only other exception mentioned in the argument of counsel for the defendants on this appeal was to the refusal of the court to strike out an answer of one of the physicians as not responsive to the question put to him. The question was: Will you state the character of the injury which Mr. Nies received more particularly ? ” The answer was: “A. He had, as I term it, concussion of the spine; and that, if you will allow me to, I will explain to the jury, as well as I can, what follows from that. It is considered by competent medical authority that an injury of that character that don’t immediately make marked improvement, and lead on to a complete cure in a few months, never gets well. In other words, after a patient has passed twelve months without marked bettering of his condition, it shows or argues that there is structural change in the chord there, and it will be permanent.” Defendants’ counsel asked to have the answer stricken out as not responsive. The motion was denied, and the defendants excepted. The fact that the answer of a witness is not strictly responsive to the question on direct examination does not, necessarily, entitle the party against whom the evidence is given to have it stricken out. Ón the contrary, if the evidence embraced in the answer is in itself competent, and such as might be properly deduced by another question, it is in the discretion of the court to let the answer stand; the only ground for striking out being that improper evidence has been put into the case in answer to a proper question, and so without affording an opportunity to the other side to object to its introduction. In this case there was no objection to the evidence on the ground of incompetency, and, if there had been, we think it would have been untenable. It was, no doubt, competent for the plaintiff to give evidence of the probable duration of the injury which he had received, and w'hether it was likely to be permanent. Indeed, these are characteristics of an injury or disease, and were, therefore, in a manner, called for by the question by which the witness was asked to state the character of the injury. There seems to be nothing improper about the answer except the form of the expression, “it is considered by medical authority,” and this was only another form of stating what the science of medicine teaches on the point in question. There seems to be no error in the refusal to strike out, and, as no further complaint of error" is made on this appeal, the judgment and order appealed from should be affirmed. So ordered.

All concur.


text:
    People ex rel. Oscar C. Wood, App’lt, v. Board of Commissioners of Excise of Town of Randolph, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Excise law—Local prohibition.
    Section 41, chap. 401 of 1893, recognizes the right of each town to establish local prohibition by the vote of its electors.
    Appeal from an order dismissing a certiorari.

      William H. Henderson, for app’lt; I). G. Reilly, for resp’t.
   Dwight, P. J.

The return of the commissioners is to the effect that they were elected as no-license commissioners, and that for that reason they felt it to be their duty, “both in a legal and moral sense,” to refuse to grant the license applied for. We think the order of the special term dismissing the proceedings was well based upon such return, and should be affirmed.

Section 41 of the excise law of 1892 (Laws 1892, c. 401) is as-follows: “Local Option. Nothing herein, except section thirty-one shall in any manner apply to any town where the majority of voters have voted for or hereafter vote for local prohibition until such town shall revise by vote, such local prohibition.” . Section 31, referred to, makes it a misdemeanor to sell intoxicating liquor without a license. The section 41, above quoted, is in all material respects a transcript of section 6 of the excise law of 1873, (Laws 1873, c. 549,) with the omission of the words, “ in accordance with any law providing for such voting,” which, in the act of 1873, occur after the words, “vote for local prohibition.” In other words, the act of 1873 recognized and gave effect to the vote of any town for local prohibition only when such vote was given in accordance with some existing law providing therefor; whereas the act of 1892, by omitting the qualification mentioned, apparently recognized the right of each town to establish local prohibition by the vote of its electors, without any special provision of law prescribing the mode of taking such vote. The recognition, if intended, was certainly in accordance with the practical effect which had been given to the existing laws for many years. The act of 1873 was followed in 1874 by the provision for the election in each town of separate officers designated as “commissioners of excise,” to be voted for on a separate ballot, which should be deposited in a separate box, marked “Excise.” Laws 1874, c. 444, §§ 1, 2. The court will take judicial cognizance of the fact as part of the contemporary history of the state that ever since the last-mentioned act became a law the people of the state have given to its provisions (in connection with that before quoted from the act of 1873) the effect of establishing a system of local option; and that, accordingly, ever since 1874, the annual election of commissioners of excise in the towns has been made the occasion of an expression at,the polls of the sentiment of the town for or against the granting of license for the sale of liquor. This has been done by each elector’s casting his vote in favor of commissioners known and understood to be respectively in favor of or opposed to the granting of license. And thus “ local option ” everywhere, and “ local prohibition ” wherever the expressed will of the electors has demanded it, have come ‘to be accomplished facts in this state, known of all men. It would seem, therefore, to be something like an impeachment either of the good faith or of the good sense of the legislature of 1892 to suppose that in re-enacting section 6 of the act of 1873—especially with the significant omission of the qualification above mentioned—it did not intend to recognize the existing, actual and practical system of local option which had been in force throughout the state for nearly a score of years. If we assume that such was the intention of the legislature, then, under the system of local option thus recognized and sanctioned, it was the right of the electors of the town of Randolph to exercise their choice in the election of no-license commissioners'; and, having done so, the commissioners so elected were,—as they have testified they felt themselves to be,—both legally and morally, bound to refuse all license to sell liquor in their town. This view of the meaning and effect of the provision quoted from the statute of 1892 has been maintained with much force in many cases at special term within the past year. See People ex rel. Watkins v. Commissioners of Excise, 24 N. Y. Supp. 739 ; 54 St. Rep. 202; People ex rel. Davis v. Truman, 23 N. Y. Supp. 913; 53 St. Rep. 726. In the latter of these cases, Forbes, J., and in the former, Ward, J., have so elaborated the statement of the grounds of their decision that we deem it only necessary to refer to their opinions for further argument of the questions there presented. ■

But if it should be held that the legislature has not so far recognized and sanctioned the existing system of local option as to give to the vote of the town the force of law, and make it absolately binding upon the commissioners, yet we can have no doubt that the commissioners were justified in giving to such vote a controlling effect in the exercise of their discretion whether to grant or refuse license in their town. People ex rel. Kidd v. Commissioners of Excise, 25 N. Y. Supp., 873; and we find nothing in the return of the commissioners in this case which necessarily opposes the conclusion that they refused the application of the relator in the exercise of a just discretion, based upon a proper consideration of the views and wishes of the electors of the town, as demonstrated .in their own election.

The order appealed from should be affirmed, with costs to the respondents. So ordered.

All concur.