author: Follett, J.

text:
    Ella D. George, App’lt, v. Josephine E. Carpenter, et al., as Executors of Franklin E. James, Deceased, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Partnership—Limited.
    Where the special partner, at the end of the term, leaves his capital and the firm assets in the hands of his solvent general partners and takes their promise to pay, which they do not keep, it does not amount to a withdrawal of capital or assets, within the meaning of the statute.
    Appeal from a judgment dismissing the complaint on the merits.

      Burnett & Whitney (Edward B. Whitney, of counsel, for app’lt; Bangs, Stetson, Tracy & MacVeagh (Charles MacVeagh, of counsel), for resp’ts.
   Follett, J.

The plaintiff seeks to recover on two grounds:

(1) That defendants’ testator withdrew his capital stock, in violation of 1 Eev. St. p. 766, § 15, which provides:

“ No part of the sum which any special partner shall have contributed to the capital stock, shall be withdrawn by him, or paid or transferred to him, in the shape of dividends, profits or otherwise at any time during the continuance of the partnership.”

(2) That defendants’ testator was allowed to claim as a creditor, in violation of 1 Rev. St. p. 767, § 23, as amended by chapter 414 of the Laws of 1857, which provides:

“In case of the insolvency or bankruptcy of the partnership, no special partner shall, except for claims contracted pursuant to § 17, under any circumstances, be allowed to claim as a creditor, until the claims of all the other creditors of the partnership shall be satisfied.”

Section 17, referred to in § 23, provides:

“ He (a special partner) may also loan money to, and advance and pay money for the partnership, and may take and hold the notes, drafts, acceptances and bonds of or belonging to the partnership, as security for the repayment of such moneys and interest, and may use and lend his name and credit as security for the partnership in any business thereof, and shall have the same rights and remedies in these respects as any other creditor might have.”

The referee found, on conflicting evidence, that the limited partnership was solvent on the 13th day of November, 1887, which finding we affirm.

The evidence shows that Charles H. George and Wilson H. George, the general partners of the limited partnership, undertook the duty of settling the affairs of the firm, and that they proceeded so far as to pay off all the debts, except the one owing to the plaintiff, It is asserted that in case a limited partnership expires, and the special partner withdraws, leaving all of his capital and all of the firm assets in the hands of the general partners, upon their agreement to pay to him the amount of his interest in the firm as-settled and agreed upon, which they never do, it amounts to a. “ withdrawal of capital,” within the meaning of § 15, above quoted. This proposition cannot be sustained. Under the statute, the general partners are required to manage the affairs of the firm, and when the special partner, at the termination of the period for which the partnership is formed, leaves all of his capital and all the assets of the firm in the hands of his solvent general partners, and takes their joint promise to pay him his interest in the firm, which they never pay, that does not amount to a withdrawal of capital or of assets, within the meaning of the section. This precise question was decided in Lachaise v. Marks, 4 E. D. Smith, 610. In that case a limited partnership had existed under the name of Lord & Brown, but, before the expiration of the time limited for its duration, the special partner sold to the general partners all of bis interest in the firm, and entered into an agreement dissolving it. Notice of the dissolution was filed, recorded and published, as required by statute. The general partners assumed to pay all of the liabilities of the firm, and gave to the special partner their notes for $17,000 for his interest, signed Lord & Brown,” which was the name of a new general partnership organized to carry on the same business. It was held that the giving of the notes did not amount to a withdrawal of any part of the capital or assets of the firm. The judgment at general term, in the case cited, was written by the late Judge Woodruff, in which all of his associates concurred, and it has never been questioned. In the case at bar the promise, by the new-firm, to pay to the withdrawing special partner the amount of his interest in the limited partnership, did not withdraw any assets from it, nor did it create any obligation against it. The assets of the old firm were left in the custody of the general partners, subject to the claims of the creditors, and the liability created was against Charles H. George and Wilson H. George. The old firm was most effectively dissolved, first, by the lapse of time during which it was to continue, and the agreement of the partners; and, afterwards, November 5, 1888, by the death of Wilson H. George, one of the general partners. Nor have the provisions of § 23 above quoted been violated. Neither the special partner nor his representatives have been allowed any claim against the limited partnership or its assets. The claim presented and compromised was against the estate of Charles H. George, who became liable, by virtue of his promise to pay the sum found due to the special partner, and there is not the slightest evidence that the funds wherewith this compromise was effected were derived, in part or in whole, from the assets of the limited partnership, and the referee has not found that the limited partnership had not sufficient funds on hand at the date of the death of Charles H. George to pay the claim of this plaintiff, nor was any attempt made to establish such a proposition. It is found that Charles H. George was insolvent when he died, which is not equivalent to finding that the limited partnership was then insolvent, which could not be shown without ascertaining whether it had sufficient assets on hand to pay its only liability, the plaintiff’s claim. On this branch of the case the referee found:

‘‘ Twenty-Second. That the entire amount of the capital invested by Franklin E. James in the special partnership remains in the hands or under the control of Charles H. George and Wilson H. George, jointly, or of Charles H. George, solely, from November to June 4, 1889.”

We assume that the date June 4, 1889, is a misprint for June 14, 1889, the date of the death of Charles H. George,

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Daniel B. Halstead et al., as Executors of Caleb D. Gildersleeve, Deceased, App’lts, v. Henry S. Ives et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November, 17. 1893.)

    1. Assignment fob creditors—Power of court.
    The court has no power, on a final accounting by the assignee, to determine that a compounding creditor has released the assignor from all liability on his debt.
    3. Same.
    An adjudication, in such a proceeding, is void.
    S. Same—Compounding.
    An oral agreement between creditors and debtor to compound and discharge their claims is valid.
    4. Evidence—Payment.
    As bearing upon the question of payment, an offer to show that long afterwards the debtor authorized the sale of bonds held as collateral for such payment and directed that the avails be applied upon the debt, is competent.
    A VERDICT for defendants was directed, and a motion to set it aside and for a new trial on a case containing exceptions was ordered to be heard at general term in the first instance.

      Taylor, Thompson & Kaufman, for pl’ffs ; Archibald L. Sessions, for def’ts.
   Follett, J.

The accounting was a special proceeding prosecuted under the general assignment act, from which the court derived its powers. The only provisions in the act relating to compositions with creditors of assignors are found in §§ 20 and 22:

“ Section 20. On a proceeding for an accounting under this act, the county court shall have power: * * ® (6) On proof of a composition between the assignor and his creditors, to discharge the assignee and his sureties from all further liability to the compounding creditors appearing or duly cited, and to authorize the assignee to release the assets to the assignor; provided, however, that if there be any creditors not assenting to the composition, the court shall determine what proportion of the fund shall be paid to or reserved for creditors not assenting, which shall not be less than the sum or share to which they would be entitled if no composition had been made, and may decree distribution accordingly.’.’

Section 22 provides that decrees shall have the same force and effect as though made in actions, and then follow directions in respect to the entry of orders, a reference being made to orders releasing assets to assignors.

We find no warrant in the general assignment act, or in any precedent in the reports, authorizing the-court, on a final accounting, to adjudicate that a creditor, by “ a composition,” or by assenting to the terms of such an instrument, executed by other creditors, has discharged his debtor from all liability. The section quoted authorizes the court by its decree “ to discharge the assignee and his sureties from all further liability to the compounding creditors appearing or duly cited ; ’’ but it does not authorize the court to adjudge that the assignor has been, or that he be, discharged from all liability to such creditors. An agreement by the creditors that the assigned estate be restored to the assignor, and that the assignee be discharged, without providing for the discharge of the assignor from his debts, would be quite sufficient to authorize the court to make the adjudication provided for in the sixth subdivision of § 20. If a creditor executes or assents to a composition executed by other creditors by which his debtor is discharged from his debt, well and good; but the decree of the court that he has so executed or assented is no evidence of the fact. In case an action is brought on the debt, and a discharge thereof is pleaded, it must be established by producing it, if in writing, as in this case. Under subdivision 6, above quoted, the county judge or court has power (1) to discharge the assignee and his sureties from all further liability to the compounding creditors appearing or duly cited; (2) to authorize the assignee to release the assets to the assignor, provided, however, that, if there be any creditors not assenting to the composition, the court shall determine what proportion of the fund shall be paid to or reserved for creditors not assenting, which shall not be less . than the sum or share to which they would be entitled if no composition had been made; (3) to decree distribution accordingly.

Other powers are conferred, which may be exercised upon an accounting, but they do not relate to compositions, and are not germane to the question under discussion. We think it is very plain that no power is conferred upon the court by this statute to determine on a final accounting that a compounding creditor has released the assignor from all liability on his debt, and that an adjudication to that effect, being beyond the power of the 'court, and not within the issues raised by the proceedings, is void and of no effect. It is not. necessary to cite authorities to show that an adjudication which is beyond the power of the court to make, or that a determination of a question not involved in an action or in a special proceeding in which it is made, does not estop the litigants or their privies.

The only evidence offered to show that the plaintiffs’ testator had agreed to release the defendants is found in the recitals in the final decree, which are italicized in the statement of facts, which were not competent, and the plaintiffs’ objection to their reception in evidence should have been sustained. The composition deed was not put in evidence, and we have no knowledge of its terms, except such as we have derived from the recital quoted from the final decree. It was not asserted at the trial that plaintiffs’ testator had executed this or any other composition deed or release, and, as before stated, the only evidence that he assented to the deed contained in the recitals which were not relevant.

The defendants insist that an oral agreement between several creditors and their debtor to compound and discharge their claims is valid. This is true. Fellows v. Stevens, 24 Wend., 294; Chemical Nat. Bank v. Kohner, 85 N. Y., 189. But in this case no legal evidence of any composition or release was before the court. Again, the plaintiffs offered to show, but were precluded from showing, that there was in fact no such agreement. This was error. As bearing upon the question whether the debt had been discharged, the plaintiffs offered to show that long after the entry of the final decree the defendants authorized the sale of bonds held as collateral for the payment of the note, and directed that the avails be applied thereon, which was excluded. This was error. The release of a debt presumptively discharges all collateral securities held by the creditor for the debt released. Cowper v. Green, 7 Mees. & W, 633; Leake, Cont., 926, 625; 2 Chitty, Cont.„ 11th Amer. ed.. 1159. The fact that the defendants recognized the right of the plaintiffs to the proceeds of the collateral was relevant to the question in issue between the litigants. The plaintiffs’ exceptions are sustained, the verdict set aside, and a new trial is granted, with costs to them to abide the event.

Parker, J., concurs; Yaw Bruwt, P. J., concurs in result.


author: Van Brunt, P. J.

text:
    Charles P. Hemenway et al., App’lts, v. Morris F. Knudson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Evidence—Commission.
    A commission to take depositions cannot be granted unless the names' both of the commissioners and the witnesses are given, though they are unknown and cannot, by reasonable diligence, be found.
    Appeal from portions of an order granting a commission to take depositions.

      Geo. A. Black, for app’lts; William M. Ivins (John S. Melcher, of counsel), for resp’ts.
   Van Brunt, P. J.

The orde.r in this case provided— First, for the return to Corvis M. Barry, United States consul at Valparaiso, Chili, or to the officer exercising the functions of consul at that place, of a commission which had been theretofore partly executed; second, for the issuing of a commission directed to J. Y. Merriam, United States consul at Iquique, Chili, or to the officer exercising the functions of consul at that place, as commissioner to examine, on oath, upon written interrogatories to be annexed thereto, T. F. Edmundson, of Caleta Buena, Chili, or such other representative of the firm of James Ingles & Co., whatever his name, etc., and of John Doe, as a witness to certain facts, and also Richard Roe and Thomas Smith, as witnesses to certain -other facts, all of whose names were unknown to the plaintiffs. The defendants appealed from this order upon the .ground that the commissioners are not named, and that the ■commission of Iquique is to examine certain witnesses, whose true names are not given.

It is urged that the statute in regard to commissions should have ■a reasonable construction, and that witnesses may be examined, -though not named, provided the application shows that their names -are unknown, and could not, .by reasonable diligence, be ascertained, and identifies them in a proper manner; and it is claimed by the respondents that certain authorities support this proposition. But, as the authority of the court to award a commission depends solely upon the statute, it is beyond the power of the court to interpolate into the statute that which has been carefully excluded. By § 887 of the Code, it is provided when a commission may issue. The language of the -section is as follows:

“ A commission may be issued to one or more competent persons named therein authorizing them or any one of them to examine the witness or witnesses named therein under oath, upon the interrogatories annexed to the commission.”

This language is too plain for construction. The commissioners must be named, and the witnesses must be named, if the commissioh is to be upon written interrogatories, as in ,the case at bar. It follows, therefore, that these mythical commissioners and mythical witnesses cannot have authority conferred upon them, either -to act or to testify, by the order of the court appealed from, The •order should be reversed in the respects appealed from, with $10 •costs and disbursements.

All concur.


author: Parker, J.

text:
    Jennie B. Woolley, Resp’t, v. William Buhler, Jr., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Broker—Commissions.
    In an action for commissions upon the exchange of property, the fact that the broker was the procuring cause cannot be inferred from the circumstance that the exchange was accomplished.
    Appeal from a judgment in favor of plaintiff.

      Bolton Hall ( George G. Holt, of counsel), for app’lt; W. T. Bird-sell, for resp’t.
   Parker, J.

The judgment appealed from was entered on the report of a referee, and awards to the plaintiff, as assignee of Milton T. Woolley, $920, for broker’s commissions. The referee found that an agreement was entered into between Woolley and the defendant, by which the latter agreed to pay the former a commission of one per cent, on the face value of certain properties, in case he should procure a sale or exchange thereof; that subsequently defendant and one Hawkins exchanged properties; and that Woolley was the procuring cause of such exchange. An attentive examination of all the evidence before the referee has led us to a different conclusion as toso much of his findings as asserts that Woolley was the procuring cause of the exchange, the reasons for which we shall briefly assign. The importance which should be attached to certain evidence, which we are soon to allude to, will be more readily appreciated if the situation of the parties at the time of making ttie contract which plaintiff asserts be presented. The defendant was an extensive dealer in real estate, and accustomed to receive calls from brokers, such as the plaintiff’s assignor, to the number of 25 or 30 a day. To these brokers he would give typewritten descriptions of such properties as he was offering for sale or exchange ; and if such a result, as to any of the properties described, should be brought about through the efforts of any one of the brokers, then that broker was paid a commission. About two months before the exchange of the properties, Woolley, for the first time, called on the defendant, gave him his card, said he had understood that defendant had advertised several properties to exchange, and asked if he was willing to pay brokerage for exchange. Defendant replied that he was, at the same time handing him, as he did the other brokers calling upon him the same day, typewritten descriptions of a number of properties, including those which defendant subsequently exchanged with Hawkins. There remained, then, for the plaintiff to prove, in order to establish his cause of action, that he was the procuring cause of the exchange. Fortunately for the defendant, this cannot be inferred from the fact that there was an exchange, for, if it could be, it would open the door for a recovery by each one of the twenty-five or thirty brokers who was that day given a description of the property, accompanied by a promise that, if either a sale or exchange should be brought about by him, a commission would be paid for his services. Upon the contested question whether Woolley was the procuring cause of the exchange, the plaintiff offered no evidence, except the testimony of Woolley. He testified that he received from the defendant a description of the properties which he had for exchange September 23, 1889. On September 25th, he offered defendant’s properties to Hawkins for exchange. Three days later, he called upon the defendant, and gave him a diagram of the Hawkins property. About a month afterwards, he took Hawkins to defendant’s office, at Hawkins’ request. Defendant not being in, they left without seeing him. October 28th he called on defendant, who informed, him that Hawkins had been in, but nothing had been done ; and then defendant gave him a description of a second mortgage for $50,000 to show Hawkins, which he did. Woolley did nothing else towards bringing about the exchange made, or any other exchange, unless his watchfulness of the announcements of sales and exchanges in a publication known as the " Real-Estate Record, ” for the purpose of ascertaining whether defendant and Hawkins had made an exchange, and his several inquiries of defendant, may be regarded as efforts in that direction.

Standing alone, this evidence might be said to warrant the inference that Woolley was the procuring cause of the exchange, but it does not stand alone. On the contrary, it is opposed, and completely overborne, by the circumstances proven, and the oral testimony adduced. One of the significant facts may be alluded to in this connection. Some time before the exchange was made, defendant made a contract with one C. F. Malcom, by which it was agreed that, if Malcom should effectuate an exchange of this property, his compensation would be $500. This contract was in writing, and after the exchange was made the defendant paid Malcotn $500, as provided by it. This fact stands undisputed,, and tends strongly to convince the mind that before Woolley had demanded his commission, or this suit had been brought, the defendant had no doubt that it was Malcom, and not Woolley, who. had brought about this exchange. A short review of the oral testimony will readily cause it to appear why it was that defendant, was so confident that Malcom had brought about the exchange, as to induce him to pay him for doing it. Several months prior to the exchange, Charles F. Malcom, a real estate broker, and who, like many others, had defendant’s list of properties, inquired of Albert Robinson, another real estate broker, whether he knew of any property which could be exchanged for that of defendant. Robinson was an acquaintance of Hawkins, and at that time had his property for sale or exchange. Thereupon, Robinson brought Hawkins to see Malcom, who proposed an exchange of defendant’s real estate; but the proposition did not prove satisfactory, as. Hawkins desired to make an exchange which would yield him some money, of which he was then in need. Malcolm went to the defendant, and told him the result of his interview with Hawkins, who suggested that he had a $50,000 mortgage, which might form a part of the exchange. This proposition was in turn communicated to Hawkins by Malcom, who thought favorably of it, in case he could induce a creditor named Blackford to take the mortgage. This he was successful in doing, and after considerable time spent in negotiations on September 10th, Malcom testifies that he took Hawkins to defendant, and introduced them. On this occasion there were present Hawkins and the defendant,. Hawkins’ broker, Albert Robinson, and defendant’s broker, Malcom. The negotiations lasted something like four hours, and finally resulted in an agreement to exchange, which was reduced to writing, and duly executed. This, in brief, is the story which is told by Robinson, Malcom, and the defendant. It is contradicted by no one, except in so far as Woolley’s statement to the-effect that he went with Hawkins to introduce him to .the defendant, when defendant was not in, and that defendant told him subsequently that he had seen Hawkins, but nothing had been arranged, may be said to contradict it; and it has support in the circumstances proven, to one of which we have alluded. Further discussion of the evidence seems unnecessary. The judgment should be reversed, and a new trial granted before another referee, to be appointed on order to be entered, with costs to the appellant to abide the event.

All concur.


text:
    David M. Koehler, App’lt, v. Joseph Hughes, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Appeal—Case.
    A statement that the case contains all the testimony is not equivalent to the statement that it contains all the evidence.
    Appeal from a judgment dismissing the complaint on the merits.

      Chas. Ooldzier (David McClure of counsel), for app’lt; Johnston & Johnston (Edward W. S'. Johnston, of counsel), for resp’t.
   Parker, J.

This suit has for its object the subrogation of the plaintiff to the rights acquired by a purchaser, at a tax sale, of certain real estate, alleged to have been held by the defendants, Henry and Joseph Hughes, as tenants in common. Plaintiff, claiming an undivided interest in the premises, either as grantee or mortgagee of Henry Hughes, redeemed them after sale. The defendant Joseph Hughes refused to- repay to the plaintiff any portion of the money thus paid out by him, and the plaintiff thereupon asserted the right to be subrogated as to the rights of the purchaser at the tax sale, and to have the lien enforced for his benefit. If plaintiff’s contention as to his ownership of an undivided interest in the premises were established by the record, the question would be presented whether the payment by the plaintiff in order to redeem the property was a voluntary payment. Were it a voluntary payment, plaintiff would, of course, be without redress. That question could only be answered by an examination of the provisions of the consolidation act, in order to ascertain whether they authorize the owner of an undivided interest to redeem by paying such a proportion of the taxes as his interest bears to the entire estate. But respondent makes the point that we cannot reach that question, because the trial court refused to find, and the record prevents us from determining, that plaintiff has or ever had an interest in the property. An examination of the findings does not disclose any to the effect that the plaintiff had or has an interest in the property as grantee, mortgagee, or otherwise. Plaintiff requested findings of fact which, if found, would have established that he had an interest in the premises which he would be entitled to protect, but every one of such proposed findings was refused. The learned trial judge explains his refusal to find in the closing paragraph of his opinion, but the explanation does not help the situation at all, as the findings and refusals to find must stand, unless we can determine that he erred in such respect. In attempting the consideration of that question, we are confronted with the objection that the record does not contain a statement “ that the case contains all the evidence adduced on the trial.” At folio 165 there is a statement by the attorney for the appellant “ that this case contains all the testimony adduced at the trial.” Under the decisions in Hyman v. Friedman, 18 N. Y. Supp., 446: 45 St. Rep., 636; and Upington v. Pooler, 19 N. Y. Supp., 428; 47 St. Rep., 30, the .statement that a case contains all the testimony is notan equivalent of the statement that the case contains all the evidence. That being so, the general term is precluded from reviewing the questions of fact. Aldridge v. Aldridge, 120 N. Y., 614-616; 31 St. Rep., 948. Hence there is no question for decision.

The judgment "should be affirmed with-costs.

All concur.


author: Per Curiam.

text:
    Giles E. Leach et al., Resp’ts, v. Charles F. Linde, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893 )
    Abbest—Foreign judgment.
    Under section 552 of the Code, an order of arrest may be granted, in an action in this state, on a judgment recovered in another state for false representations.
    Appeal from an order denying a motion to vacate an order of arrest.

      Edward S. Clinch, for app’lt; Oudin & Oakley (Lorenzo Semple, of counsel), for resp’ts. n

   Per Curiam.

October 20, 1891, the plaintiffs recovered a judgment against the defendant in the superior court of Wake county, in the state of North Carolina, for $6,398 damages, caused by the false and fraudulent representations of the defendant. The judgment has not been reversed and remains wholly unpaid, and this action is for the recovery of the amount due on it. An order of arrest was granted, which the defendant moved to vacate on the papers on which it was granted, and so there was no .dispute about the facts. In Baxter v. Drake, 22 Hun, 565; affirmed 85 N. Y., 502, an action was brought in the supreme court of this state on a judgment recovered in the United States circuit court for the eastern district of Tennessee, for damages occasioned by the conversion of property. An order of arrest was issued in the action, and it was held that, under § 552 of the Code of Civil Procedure, it was properly granted. This section clearly authorizes an order of arrest in such a case. It is urged by the appellant’s counsel that Gutta Percha & Rubber Manuf’g Co. v. Mayor, etc., 46 Hun, 237; 11 St. Rep., 302; reversed 108 N. Y., 276 ; 13 St. Rep., 607, is in conflict with the case first cited. In that case it was held that a judgment recovered in another state, it not appearing whether it was founded on contract or in tort, was a “ contract,” within the meaning of § 635 of the Code of Civil Procedure, which prescribes cases in which attachments may be issued. The question decided in the latter case is not germane to the one decided in the former, as the cases arose under different sections of the Code.

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


text:
    Louis F. Martin et al., Resp’ts, v. Eliza Jane Adams et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November, 17, 1893.)

    Appeal—Case—Certificate.
    Where a referee, on settling a case, fails to certify that the case contains all the evidence, it is the duty of the appellant, on a resettlement, to furnish such further testimony as is necessary to enable the referee to make such certificate.
    Motion for a resettlement of the case, so that it might contain the referee’s certificate that the case embraced all the evidence.

      Hugh Porter, for app’lts; John J. Adams, for resp’ts.
   Van Brunt, P. J.

The papers in this case show that it was tried before a referee, who dismissed the complaint on the merits, and thereafter a judgment was duly entered against the plaintiffs, and that an appeal was taken by plaintiffs to the general term of this court, which is still pending. After the case on appeal had been printed, pursuant to notice to the defendants’ and respondents’ attorney, the parties appeared before the referee, for the purpose of having said printed case ordered on file. ’At the end of this printed case was a statement that it contained all the evidence and exhibits, to which statement the attorney for the defendants (respondents) objected that, while the case embraced all the evidence and exhibits as settled by the referee, pursuant to a case proposed on behalf of the appellants and amendments proposed by the respondents, some, evidence taken on the trial, proposed neither by appellants nor respondents, was not inserted, and that, therefore, the referee could not give a certificate that the printed case contained all the evidence and exhibits given and produced on the trial. It further appears that the referee had settled the case, but that it contained no statement as settled that it contained all the evidence in the case given by either party, nor did it, in fact, contain such evidence, and on such settlement the referee was not requested to give any such certificate. Upon the making of this objection, when the referee was requested to sign the case containing this statement, the appellants, on that appeal, consented to print in the case any additional testimony that the respondents might choose to have inserted; whereupon the referee postponed the final settlement of the case to permit the plaintiffs (appellants) to make application for a resettlement, so as to allow respondents an opportunity, if they so desired, to ■ intro-, duce such additional testimony, in order to enable the referee to certify that the case contained all the evidence taken on the trial, so that the appellate court might review the facts upon the appeal. Thereupon the plaintiffs obtained an order to show cause why they should not have leave to have the case on appeal resettled for the purpose of permitting the respondents to add. by way of amendment, etc. This motion was opposed, upon the ground that the respondents were not interested in having the additional evidence inserted in the case, neither were they at all interested in having the facts reviewed, and that, if anybody desired to have the additional evidence in, it was the appellants, and not the respondents. The court, however, granted the motion permitting the respondents to add, by way of amendment, any testimony that might be necessary to enable the referee to make a certificate that it contained all the evidence in the case, and that the referee be required to make such certificate; and from this order this appeal is taken. '

It is certainly difficult to see upon what theory any such order could be made. The papers show that at the time of the settlement of the case the then attorney for -the plaintiffs (appellants) did not desire any such certificate, and did not pretend that he was entitled to the same. Subsequently, there having been a change of attorneys, the substituted attorney found it, necessary, for the purpose of the appeal, to have that certificate. Accord-' ingly, when the referee is asked to order the case on file, he is asked to give this certificate, which, if given, it is admitted on all sides, would have been untrue. The referee having refused, the respondents are called upon to say what they want additional in order that this certificate might be given. It seems that, if the appellants desired any such certificate, it was their duty, and not that of the respondents, to supply omissions ; particularly where, when the respondents’ amendments were submitted, it was not pretended that there was any claim that the case would contain all the evidence.. This, in other words, would be compelling the respondents to make up the appellants' case, a practice which, so l'ar as the knowledge of this court extends, has not yet obtained. The order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

All concur.


text:
    Mercantile National Bank of the City of New York, Resp’t, v. Corn Exchange Bank, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Pleading—Reply.
    The court may, in the exercise of a sound legal discretion, require a re-, ply to he interposed to new matter, in a case where it is not expressly required by the Code.
    2. Same—Judgment.
    Such discretion is properly exercised, where a judgment is pleaded in avoidance, which so far as the pleadings disclose, seems to dispose of the case in defendant’s favor.
    3. Same.
    The fact that such judgment has been appealed from is immaterial in the disposition of such motion.
    Appeal from an order denying a motion to direct plaintiff to reply to the answer.

      Plait & Bowers (John M. Bowers and L. G. Heed, of counsel), for app’lt; Charles A. Davidson (S. B. Brownell, of counsel), for resp’t.
   Parker, J.

The complaint alleges 11 separate causes of action, but all are in the same form, and differ only as to the dates and amounts of the 11 checks which lie at the foundation of the several causes of action. The defenses interposed to each of the alleged causes of action are also in the same form; so that a determination of the question presented, whether a reply should be required to any or all of the defenses set up to a single cause of action, will apply to all the others. The complaint, after alleging the due incorporation of plaintiff and defendant as banking asssociations, avers:

“ Second. That on or about the 28th day of January, 1886, the plaintiff paid to the defendant, upon the defendant’s request and indorsement thereof, a check upon this plaintiff, drawn by the National Bank of Sumter to the order of A. S. Brown, for one hundred dollars ($100), which said check was not indorsed by the said A. S. Brown, the payee thereof. Third. That this plaintiff, supposing the said check to be indorsed by the said A. S. Brown, paid the said amount thereof, to wit, one hundred dollars, to the defendant.”

The answer does not deny any of the allegations of the complaint, thereby admitting their truth, but sets up new matter in avoidance. The first, briefly, is that while the National Bank of Sumter drew the check to the order of A. S. Brown, it never intended that the check should be delivered or paid to him, or his indorsement thereon required, but that it should be payable to the order of Gumming & Bussell, to whom the bank delivered the check after indorsing the same as follows: “ Pay to the order of Gumming & Bussell, A. S. Brown; ” and that after this indorsement the plaintiff paid the check, through the agency of the defendant. The second defense by way of new matter in avoidance is that the National Bank of Sumter, the drawer of “ the said check, had an account with the plaintiff in this action, and moneys on deposit with it, and that when the plaintiff paid the said check it debited the National Bank of Sumter with the amount thereof, and that the accounts between the National Bank of Sumter and the plaintiff herein containing such debit item against the National Bank of Sumter were fully settled between 'the two banks; that said account has never been opened, and that the Mercantile National Bank has never repaid the National Bank of Sumter the amount of said check, which check bore the indorsement of this defendant.” The third defense .set up in avoidance is that the duly appointed receiver of the National Bank of Sumter brought an action against this plaintiff in this court to recover the amount of the deposit which the National Bank of Sumter had with this plaintiff, which action it defended on the ground that it had paid out the amount of the deposit on the checks of such bank, and being the checks mentioned in the complaint in this action, resulting in a judgment in favor of the Mercantile National Bank, by which it was adjudicated that such payments were valid and binding upon the National Bank of Sumter and its receiver. As this constitutes new matter, to which a reply is not expressly required bv the Code, if one is not compelled" by the court, it will be deemed controverted by traverse or avoidance, as the case requires. Code, § 522. But a reply may be required by the court in its discretion. Section 516. The discretion thus committed is a legal one,, which should be so exercised as to prevent surprise and promote the interests of justice. It will not be granted when its only object is to relieve a defendant from the necessity of proving the-facts which he sets up as a defense by way of avoidance. But. where, as in the third defense, a judgment of this court is pleaded in avoidance, which, so far as the pleadings .disclose, seems to have such force and effect as to lead to a judgment in defendant’s favor, it is but just that it should be known how the plaintiff proposes to meet the issue of fact thus tendered; if admitted, how, if at all, it expects to avoid the effect which defendant claims for it; to the end that surprise, with possibly an unjust result upon the trial, may be avoided. Steinway v. Steinway, 68 Hun, 430; 52 St. Rep., 660. It is suggested in one of the briefs that the judgment pleaded has been appealed from. That fact cannot, have weight in the disposition of this question. The judgment stands in full force and effect, and it will not be assumed that the-proceedings leading to it contain error. If it shall turn out otherwise, plaintiff can be relieved from the effect of its reply on motion. We agree with the special term that a reply should not be-required to the other defenses:

The order should be reversed, with $10 costs and disbursements, and the motion granted directing the plaintiff to reply to the third defense.


author: O’Brien, J.

text:
    The People, Resp’t, v. Philip Derringer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Appeal—Chabge.
    On. a trial for manslaughter,- the reference of the court to the statement of a child, made to a third person out of court, as testimony is not prejudicial error, where the jury know that the child had not been examined and are not likely to be led by such mistake.
    3. Same.
    An erroneous charge is not reversible error, where specific requests to-charge upon same point were granted in the very language of the requests.
    Appeal from a judgment of conviction for the crime of manslaughter in the second degree.

      B. P. Ryan, for app’lt; De Lancy Nicoll, Dist. Att’y (Henry it B. Stapler, of counsel), for the People.
   O’Brien, J.

J.— By a jury the prisoner was convicted of the crime of manslaughter in the second degree for having beaten his wife on April 14, 1891, from the effects of which she died on the following day. This conviction is assailed upon the following grounds : First, that he is entirely innocent of the crime charged; second, that the defendant did not have a fair and impartial trial; third, that improper evidence was introduced, and allowed to weigh against the defendant; fourth, that the court in its charge and during the trial erroneously stated the law to the jury, which errors brought about the conviction of the defendant, independent and apart from the evidence in the case; fifth, that the good character of the defendant as against the questionable character of the deceased was not permitted to weigh in his favor.

If the first position is tenable, then the judgment of conviction will necessarily fall; and our attention will be mainly directed to the consideration of this question, which, in its discussion, will involve to some extent an examination of the other grounds urged. The appellant contends that, excepting the testimony o£ relatives of the deceased as to declarations of the prisoner prior to his wife’s death that he would kill her, and subsequent admissions that he had done so, and to which improper weight was allowed to be given, the record fails to disclose any evidence of defendant’s guilt. With respect to prior declarations of his intention to consummate the crime of which he was finally convicted, if made upon a single occasion, or to but one person, who was a relative of the deceased, there might be some force in the suggestion made of bias on the part of such relative, which would invite scrutiny, and which should be carefully weighed before giving full credence thereto. The same remarks are applicable to the declarations and conduct of the prisoner when, after the death of his wife, he was confronted by her relatives and charged with the commission of the crime. It is true that to some he denied it; but to others, if their testimony is to be believed, he either admitted the fact or remained silent when accused of the crime. Thus the record shows that on a number of occasions, and to different members of the family of the deceased, the prisoner frequently stated that he would kill her, and after her death he either tacitly or expressly admitted .that he had done so. But, apart from the number of persons to whom these declarations were made, and all of whom it could not be assumed testified falsely, there is in the case evidence to show that the prisoner’s treatment of his wife was always marked with the greatest brutality and cruelty. If, however, we leave out of consideration all these declarations, and the evidence of his cruel and inhuman treatment of his wife on other occasions, we think that a brief summary of the testimony relating to what occurred on the night preceding her death will amply justify the conclusion reached by the jury. On April 14, 1891, the prisoner and his wife resided on the top floor, back, of the premises 211West Thirty-first street. On the same floor, and across the hallway, lived one Mrs. Denzer; on the floor below, one Mary Pendergast and Gfussie Haug. In the afternoon of that day the wife came up the stairs to her apartments, with her little girl, Lena. She had been seen at 11 o’clock in the forenoon of that day by Mary Pendergast, and at 6 o’clock in the afternoon by Mary Murray, and also at about 6 o’clock by Sarah Bruner and one Peter Cannon ; and all these witnesses agree that she was sober, clean, and neat in appearance when they saw her. This testimony is material and important in view of’ the defense set up that upon returning to his apartments at 8 o’clock the prisoner found his wife in a helpless state of intoxication, and that the falls which, as we shall show, were testified to by the witnesses as having occurred in the room (and one of which the prisoner admits to have happened), were not due to any act or blow of his, but were the result of her intoxicated condition, which caused her to fall from a chair to the floor. On the evening of that day, Mrs. Denzer was in her own kitchen, and was there visited by Mary Murray, Annie Pauley, and Mary Pendergast, all being together in Mrs. Denzer’s room, when the appellant came up the stairs leading to his apartment. What then occurred, though there is a slight variance in the way , in which each of the witnesses told her story, is thus detailed : Mrs. Denzer testifies that she heard Derringer coming up the stairs after 8 o’clock on the evening of April 14tb. She knew his step, because she heard it every night. He went into his room, and dosed the door. She heard him say, “ God damn "son of a bitch, where is my supper ? ” twice, and then there was a heavy fall. The deceased screamed, and said, “ Please don’t hit me,” and then there was another heavy fall. The deceased screamed again, and said “ Billy! Billy! I am dying! I am dying!” The appellant answered, “You God damn son of a bitch, die right there!’’ and another heavy fall was heard. Mrs. Derringer screamed again saying, “Oh, Lena! oh, Lena!” and then everything was quiet. Derringer then sent the little girl, Lena, out of the room. Mary Pendergast testified that she was in the room of Mrs. Denzer on the evening,,of Tuesday, April 14th, at about 8 o’clock. That she heard Dert ringer quarreling with his wife, and heard her fall against the door, and heard her crying. She heard Mrs. Derringer say, “ Oh, please leave me alone,” and heard Derringer say, “Iwill show you.” Annie Pauley testified that on the evening in question she was in Mrs. Denzer’s room. That she heard Derringer’s step, which she knew. That she heard him, when he entered, say, “You God damn son of a bitch,” and then a sound like a slap to right and left in the face, and then a fall. She then beard a second fall, heavier than the first, and heard Mrs. Derringer say, “ Oh, Bill! oh, Bill! T am dying! ” to which he replied, “ You die right there, you God damn son of a bitch.” Mrs. Derringer then cried out, “ Oh, Lena! oh, Lena! my little child!” and the witness heard nothing more, except that she heard Derringer say, before the noise ceased, “ You won’t cook any more supper for me." Mary Murray testified that she was in Mrs. Denzer’s rooms between eight and half-past eight o’clock on the evening of April 14th—Tuesday. She heard quarreling next door in Derringer’s rooms, and in a little while heard a heavy fall. She then heard Mrs. Derringer say, “Oh, Billy! oh, Billy! I am dying! ” He replied, “ God damn son of a bitch, die right there.” She recognized both the voice of Mrs. Derringer and of the appellant. Everything then became quiet. Mrs. Haug, a tenant of the same house, living on the floor immediately below the rooms of the appellant, was out upon her fire escape, taking in her clothes on that evening. She heard Mrs. Derringer crying, and heard him scolding and slapping her, calling her a bitch and a son of a bitch. Mrs. Haug then heard a terrible fall, and heard Mrs. Derringer scream, and afterwards all was still. After this scene, Mrs. Denzer heard Derringer open the door and let out the child, Lena, who went to the residence of her mother’s father, Thomas Finnan, at Ho. 204 West Thirty-second street. After the child had left, the rooms, Derringer went down stairs, and within about five minutes was seen by Mary Murray to return, bringing with him a short, stout young man, whom she did not know. Derringer and this young man entered the rooms, dosing the door behind them. The identity of this third person is placed in doubt by the prisoner’s statement that the only one who entered the rooms that night besides himself was the father of his wife, who, having inquired for his daughter, and being told that she was in bed, did not go into the bedroom, but returned to his own house. Whether the wife, at the time her father called on that evening, was dead or alive, will always be a matter of conjecture, though the prisoner testifies that she was asleep on the bed, where she remained until some time between one and two o’clock, when, having fallen out upon the floor, he got up and replaced her on the bed; and that upon awakening about five o’clock in the morning he found that in the mean time she had died, and that he thereupon went and notified her relatives. On their reaching the house they found the deceased lying on the bed, with one foot hanging out, her hair disheveled and thrown over her face, and her hands thrown up. Her lips were swollen, and smeared with blood. There was a large bruise over the right eye, and the sheet was bloody. The back of her hand was smeared with blood from her wrist to the tips of her fingers, as if she had wiped her mouth with the back of her hand. The prisoner testified that he arrived home at eight o’clock that evening, and on entering, asked his wife if she had any supper for him, and that his child said that she was hungry, and had had no supper yet. That he then turned round and spoke to his wife, then went into the hall, and in the meantime she had fallen from the chair up against the door. That he then sent the child to her grandmother’s, and with that the wife jumped from the floor, and attacked him, when he slapped her on each side of the face. That she then went into the front room from the kitchen, where she stayed a few minutes, “ until I had the child’s hat and shawl on; and then I took her and laid her in the bed, and she went to sleep, and I left her there.” That the child went out, and subsequently came back with his father-in-law. “ He managed to undress the young one, and put her to bed. I went and took off my wife’s shoes. She was breathing regularly. I had no apprehension that she had seriously injured herself when she fell off the chair. Then I undressed, and went to bed. It was about eleven o’clock. I put the light down, and laid in bed then. I guess it must have been one or two when I heard another fall, and found that she had fallen between the crib and the bed. I picked her up, and she went back the same way as she had laid before, and I thought no more of it. * * * I went to and woke next and found her dead.”

The claim advanced, that the evidence of the people’s witnesses, offset by this uncorroborated statement of the prisoner, supports the contention that he is entirely innocent of the crime charged, seems to us to show a failure to apprehend the force and effect of evidence. Here are four disinterested witnesses, all of whom gave testimony from which it could fairly be inferred that on returning home that night the prisoner set upon his wife, striking her in the face with such force that she fell repeatedly against the door and upon the floor, and producing injuries sufficient, as testified to by the doctors to produce cerebral hemorrhage, from which she died. The utmost that could be fairly claimed for the prisoner upon the testimony is that it presented upon conflicting evidence a question of fact; and with respect to the rule that should govern this court upon appeal we have had occasion repeatedly to quote from the opinion of this general term in Carrington v. People, 5 Parker, Crim. R. 342, wherein Daniels, J., says :

“ It is a familiar principle in jurisprudence that the jury shall determine all questions of fact presented in the controversy submitted to their deliberation, even though the evidence upon which they arise may be slight, and in a great measure unsatisfactory. The law regards the court as possessing no superior qualification over the jury for the determination of mere questions of fact.”

It will be seen, therefore, that, apart from the prior or subsequent declarations and conduct of the prisoner, sufficient evidence was given to render it a case which should properly have been submitted to the jury. But when, in addition, we consider these declarations and the conduct of the prisoner in the light of the surrounding circumstances, the conclusion is almost irresistibly forced upon us that the prisoner was responsible for his wife’s death. It is unnecessary to detail all these circumstances, but one in particular, upon which an exception is predicated, requires to be briefly noticed. Mrs. Nolte, a sister of deceased, at about half-past 6 on Wednesday morning, the 15th, went to the residence of her father, where she saw the child, Léna Derringer, and had a conversation with her. This child, at the time, was about four years old. Mrs.. Nolte thereafter went to the prisoner’s rooms, where she found her father and her sister Mary Finnan. The prisoner shortly after-wards came in from the undertaker’s, and the conversation which Mrs. Nolte says then occurred between her and the prisoner is here given in her words : “I cried, and I said, Oh Billy ! you have killed her at last.’ I said ‘ You have often said you would do it.’ He said, 11 did not.’ I says: ‘ Your child Lena, is after telling me over in my father’s how 1 papa beat mamma. He beat her awful hard, Aunt Maggie, and knocked her down, and then threw her on the bed.’ ” To this Derringer made no reply. If this statement is to be credited, it is a strong corroborating circumstance, tending to show the prisoner’s guilt. Here was a statement made by the sister-in-law, charging him with having committed the crime, and basing such charge upon a statement made by his own child that he had beaten the deceased, and thrown her on the bed, where, it is stated, she was, on the following morning, found dead. This testimony was referred to by the learned trial judge in his charge to the jury, and some stress placed upon it, because it was justly regarded by him as significant. In his charge, referring to it, he says:

“ Now, that child was a child of tender years, and a child whose testimony could not be produced in this court, because she was too young to be sworn as a witness in this case; but her testimony is in this case in the form of a conversation had with this defendant. You-are not entitled to give it all the weight and .authority that you would give to it if it were testified to by a person of mature years, but it is something that you can consider in the case, and give it the weight that you think it is entitled to.”

The learned judge, it will be observed, spoke of the child’s 41 testimony ” when he undoubtedly had it in mind to refer to her statement; but we do not think this error sufficient to justify a reversal of the judgment. There can be no doubt that it was entirely competent to have permitted Mrs. ISTolte to testify as to what she said in the presence of the prisoner, and it cannot be assumed that the jury were misled by this statement of the court, because they were aware that the child was not examined, and "they had knowledge of the way in which the statement made by the child to Mrs. Nolte got upon the record.

Another error assigned by appellant is directed to the court’s charge upon the weight to be given to good character. It is insisted that his charge, “It is not because a man’s character is good that juries are entitled to say that he did not commit the act,” is contrary to the rule laid down in People v. McQuade, 110 N. Y., 309 ; 18 St, Rep., 288. Though this criticism be just, the prisoner has no real grievance, because, with respect to this question of character, two specific requests were made as to the weight to be attached thereto and the benefit to be derived from evidence of good character, which, in the very language of the requests, were charged by the learned trial judge.

A number of other grounds of error are assigned, but none of which, in our judgment, affected a substantial right; and therefore, under the provisions of the Code of Criminal Procedure (§ 542), it becomes our duty “ to give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” In this connection, also, it should be remembered that few, if any, of these alleged errors are presented upon exceptions properly taken ; and therefore it would •only be in a case where the appellate court was satisfied “that the verdict against the prisoner was against the weight of evidence or •against the law, or that justice requires a new trial, whether any exceptions shall have been taken or not in the court below,” (Id., § 527), that the court, in the absence of such exceptions, would be justified in ordering a new trial. It is with this provision in mind that we have examined the entire record, for the purpose of determining whether, upon the merits, justice requires that a new trial should be had ; and, with the jury, we are of opinion that the crime as charged was established, and that none of the errors assigned demands that their verdict be disturbed.

The case presents some phases of life which we are glad to think ,are exceedingly rare and exceptional. The prisoner was unfortunate in having been mated to a drunken wife. But any sympathy that might from this circumstance have been extended to him is entirely obliterated when we recall, as the record here «discloses, thqt this was used as a pretext for the most cruel and inhuman conduct towards her, on occasions so frequent that one of the witnesses was led into stating that she heard him beat her every night. This was, no doubt, an exaggeration, but is indicative of the frequency with which, in the presence of his little child, he beat and illtreated the woman he had promised to protect, and towards whom, in his defense, not a single act of kindness was shown, but whose entreaties, when assaulted by him, even though it may have been in her drunken stupor, were met by the vilest and filthiest language that could be addressed by one human being to another. We find no reason for disturbing this conviction, and think that the judgment appealed from should be affirmed.

All concur.


text:
    The People ex rel. Robert Taggart, App’lt, v. Theodore W. Myers, as Comptroller of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Municipal cobpobations—Awabd.
    Where, after the award for street opening in the city of New York, the owner of the premises remains in possession until the time of payment, the city cannot deduct from the award rent for the period of occupation.
    2. Same.
    The city has no power to take possession of premises, the title to which has been acquired in such proceedings, for the purpose of renting them.
    Appeal from an order, denying the relator’s application for a peremptory writ of mandamus.

      James A. Beering, for app’lt; William H. Olark (T. Gonnoly, of counsel), for resp’t.
   Van Brunt, P. J.

This was an application for a pereriiptory writ of mandamus to compel the respondent to pay the relator the sum of $380, the balance of an award made to him for the opening of Bethune street from Greenwich to Hudson, which was retained by the respondent as rent of premises occupied by the relator. The order confirming the report of the commissioners of estimate and assessment was entered on the 6th day of December, 1892, and the report of the referee awarded to the relator for the lot and building known as “593 Hudson street,” occupied by him, the sum of $16,797.75. The comptroller was not prepared to make payment until April 1, 1893, and on that day, when the relator went to the comptroller’s office to receive his money, the comptroller presented a claim and demanded payment or the right to retain therefrom the sum of $380 for rent of the premises from the date of the order confirming the report to April 1st, the date of payment. The relator disputed the legality of the claim, and, upon the comptroller refusing to pay the whole award, accepted the balance of the award, leaving the amount in question to be determined upon a proper application to compel its payment. The relator remained in possession of the premises until the award was paid. The improvement upon the street was not commenced until after, the 1st of April, the date when the payment was made, and the last day for which the city seeks to charge the relator rent.

Upon these facts the relator applied to the court for a writ of mandamus, and as an answer thereto the respondent presented the affidavit of one Rapp, who swore that he was one of the collectors employed by the department of city revenue of the city of New York, and that on the day of the confirmation of the report, in pursuance of instructions received by him, he called at the relator’s place of business, and had a conversation with his son, who was the general overseer and superintendent of his father’s business. Rapp further averred that he informed the son that he called for the purpose of notifying him that the city had acquired title to said property, and was in full possession thereof, and also that the bureau for the collection of city revenue had fixed the rent of the premises occupied by the relator at §100 a month. Rapp further averred that the son stated that he was acquainted with the fact that the city had acquired title to the premises, but he did not think his father was under any obligation to pay the rent demanded until the award made to him had been paid. Rapp further averred that the son was fully advised by him that it was the intention of the mayor, etc., to take immediate possession of said premises, and the notification was given by deponent to said Taggart as an indication upon the part of the city that it did by an affirmative act acquire possession of the premises, and also that it was its intention to collect rent for the same in case the relator desired to remain in possession. Rapp further averred that the son stated that his father would have to stay, as it was impossible for him to vacate the premises, etc. Upon this affidavit the court denied the motion for a mandamus.

It is difficult to see upon what theory the corporation of the city of New York can claim rent for the premises in question. In the affidavit of the affiant Rapp there is not the slightest authority shown from any person having the right to give such authority for his making the visit which he did, and his affidavit is as inconsistent in its statements as it is defective in its law. In one part of his affidavit he states that he notified the relator’s son that the city was in full possession of the premises, and in another that it was the intention of the mayor, etc., to take immediate possession of said premises.

The fact is apparent that the city was not in possession at all, and took no steps whatever to acquire possession. Now, the corporation was only authorized to take possession of this property at the time for the purpose of proceeding with the improvement. Hamersly v. Mayor, etc., 56 N. Y., 534; Detmold v. Drake, 46 N. Y., 318. It had no power to take possession for the purpose of renting. In fact there is no evidence that it ever did take possession for that purpose, or that it ever attempted to do so. The department of the city which is charged with the duty of making this improvement is the department of public works, and not the comptroller; and the comptroller had no more authority to take possession of these premises on behalf of the city than the corporation counsel would have had. He is not clothed with any such duty, and could confer no such authority. Indeed, it may be said that, if the comptroller had authority, the affidavit of Rapp contains no statement that he went by authority of the comptroller.

It seems to be clear, therefore, that even if this son could bind his father as a tenant of the city, in respect to which there is not the slightest evidence (although this man Rapp attempts to swear to that fact also; but it is evident that he had no knowledge on the subject, but was simply swearing to the results of his own imagination), the facts and fancies set out in Rapp’s affidavit do .not constitute the shadow of a defense to the claim presented by the relator, and he should have had the relief asked for.

The order appealed from should be reversed, with costs, and the motion for mandamus granted, with costs.


text:
    Joseph Rafolovitz, App’lt, v. American Tobacco Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Contract—Consideration.
    A contract whereby a manufacturer agrees to allow a dealer commissions on all articles purchased between specified dates, but the dealer is not bound to purchase any definite quantity, is void for want of mutuality.
    ,3. Pleading—Demurrer.
    Where the complaint in an action on a contract undertakes to state the consideration, the rule that, on demurrer, the consideration will lie implied, does not apply.
    Appeal from a judgment entered on an order sustaining a demurrer to the complaint.

      Charles F. Holm, for app’lt; Oudin & Oalcley, for resp’t.
   Parker, J.

This case was well disposed of at the special term, and the argument supporting the disposition made was so fully presented as to render further consideration of the question discussed unnecessary. The appellant now makes a point which does not seem to have been addressed to the special term, and, in order to meet it, it will be necessary to state briefly the conclusion reached by that court. The pleader attempted to allege two distinct causes of action, founded on two separate contracts ; but while there were two contracts, they were in the same form, and but one need .be quoted. As alleged, it reads :

“ On or about the 10th day of April, 1892, Joseph Rafolovitz & Son entered into an agreement or contract whereby and wherein the defendant promised and agreed, in consideration that said Joseph Rafolovitz & Son would purchase and sell a certain cigarette manufactured by defendant, that he, the defendant, would allow and pay them as a compensation or commission for said purchase of cigarettes twenty cents on every thousand of said •cigarettes manufactured by defendant and purchased by said Joseph Rafolovitz & Son between the 10th day of April and the 1st day of October, 1892.”

It seems that Joseph Rafolovitz & Son did thereafter purchase nearly 200,000 cigarettes, upon which purchase the defendant paid the promised commissions. Then it refused to sell to plaintiff .any more cigarettes; hence this action.

The court held that there was no mutuality of contract, and, therefore, not enforceable; that it would have been otherwise had the plaintiff bound himself to have purchased a given quantity of •cigarettes; thát under the agreement as alleged it was optional with the plaintiff to purchase cigarettes or not. If, after making it, he had refused to take any, or, after taking a few thousand, had declined to purchase others, the defendant could not have compelled him either to take cigarettes or respond in damages for not doing so; and as he made no promise, there was no basis for a •consideration for the promise of the other party to the alleged .agreement. In support of such position the court cited Chicago & G. E. Railway Co. v. Dane, 43 N. Y., 240, and Hurd v. Gill, 45 id., 341. Appellant insists that Wells v. Alexandre, 130 N. Y., 642 ; 41 St. Rep., 334, upholds the agreement which he alleges, but we do not so understand it. There the plaintiff proposed to furnish defendant’s steamers, naming them, with coal, at a price named, for the period of one year. The defendant accepted the offer, and thereafter plaintiff furnished to the defendants such quantity of coal as was required for the use of the steamships, until the defendants sold them. It was held that the proposal and acceptance, both of which were in writing, constituted a valid contract ; there being entire mutuality, because one promised to take and pay for all that the other agreed to sell and deliver. The' principal contention of the defendant in that case was that the contract was one for successive deliveries of coal, to be made only when the defendant should give the plaintiff notice that a delivery was required; and, as notice had not been given, the defendants were not in default. It was held that while, at the date of the agreement, the quantity was indefinite, it was nevertheless determinable by the terms of the contract, and therefore within the maxim cerium est quod, cerium reddi polest. The necessity for notice was doubted, and it was asserted that, if notice was required, a covenant on the part of the defendant to give it would be inferred, for otherwise the contract would be unreasonable, and place one of the parties entirely at the mercy of the other. It will be seen therefore, that the questions presented for decision in the two cases are entirely different. The appellant calls our attention to a number of cases in which courts, having in mind the peculiar facts of the cases under consideration, have said that upon a demurrer the consideration will be implied; and another line of cases holding that a consideration may be shown by extrinsic evidence. But those cases are not applicable here, because the complaint undertakes to state the consideration. It avers that the consideration moving to defendant was that Joseph Rafolovitz & Son would purchase and sell a certain cigarette manufactured by defendant. But as stated, there was no on the of Rafolovitz & Son to purchase cigarettes, which was enforceable by defendant, and therefore it did not furnish a consideration for the defendant’s promise. Undoubtedly, if there had been some other consideration for defendant’s promise, moving from Joseph Rafolovitz &. Son, defendant’s agreement could have been enforced, notwithstanding' the absence of an obligation on the part of the plaintiff to purchase cigarettes. So, if the complaint had alleged that the agreement pleaded was founded upon a good and sufficient consideration, some of the cases to which the appellant calls our attention would be applicable. Under such an allegation the plaintiff upon trial would be permitted to show by extrinsic evidence-the consideration for defendant’s promise. Hurd v. Gill, 45 N. Y., 341. This was not done, presumably because it was not the-fact. It must be assumed that the complaint correctly states the-facts, and that presumption attaches to its statement as to what constituted the consideration as well as its allegations in respect to the other features of the agreement. In disposing of the demurrer, therefore, it could not be inferred that some other consideration than that alleged in the complaint existed in fact, or could be proved on the trial. The sufficiency of the alleged consideration was adequately discussed at special term, and with the consideration reached we agree.

The judgment should be affirmed, wit costs, but with leave to the plaintiff, on payment of the costs so far awarded against him, to amend his complaint within twenty days after service of notice of the entry of the order of affirmance.

All concur.


text:
    Thomas Sheffield, Resp’t, v. Edward Early, Impl’d, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Mechanic’s lien—Bond.
    There can be no recovery on a bond, under subdivision 6, section 24, chapter 342 of 1885, until the claimant has obtained a judgment of foreclosure against the property.
    2. Same—Pabties.
    In such action, all persons, who would be proper parties to a foreclosure of the lien if a bond had not béen given, should be made parties defendant,
    3. Same—Lis pendens.
    An omission to file a Us pendens, where a bond has been given, is not a. defense to the action.
    Appeal from a judgment in favor of plaintiff, entered upon the report of the referee.
    This action is for the foreclosure of a mechanic’s lien. John J. Astor, the owner of the premises at the southwest corner of Thirteenth street and Tenth avenue, which were leased by him to Edward Early for twenty years from May 1,1888, and the lessee entered into possession. In August, 1888, Early entered into a written contract with Frederick Robinson, whereby the latter-agreed to erect a building on the premises for $37,000. Subsequently Thomas R Sheffield, entered into an oral contract with Robinson to furnish material for and to do certain work on the building, which was afterwards furnished and performed, and. which the referee found to be of the value of $3,518.85, of which sum $1,500 was paid. February 27, 1889, Sheffield duly filed a mechanic’s lien against the property for the amount unpaid, a copy of which was on the same day served on Early. On the 16th of March, 1889, Frederick Robinson entered into a bond pursuant to subdivison 6, § 24, chap. 342, Laws of 1885 (the Mechanic’s Lien law), “ conditioned for the payment of any judgment which may be rendered against the property, upon which an order was duly made and entered, discharging the property from the lien filed as aforesaid.” The lien not having been paid, this action was begun May 7, 1889, to foreclose the lien. It was alleged in the complaint that more than $3,500 was due from Early to Robinson on the building contract. Two of the defendants, Early and one Edward Tracy, appeared and answered; the other defendants making default. The referee found that when the lien was filed Early was indebted to Robinson in the sum of at least $2,000 on the contract, which Early paid to Robinson subsequent to the filing of the lien, and that he subsequently paid Robinson upwards of $6,000 for work done and materials furnished, and also found all the issues of fact in favor of the plaintiff, and a judgment was' entered adjudging that the amount due on the lien was $2,631.61, together with $406.78 costs, and directing that the property against which the lien was filed be sold, and that the plaintiff be paid the amount of the judgment. The judgment contains the following provision: “ It is further ordered and adjudged that so much of this judgment as directs the sale of the right, title and interest of the defendant Early in the lands and premises and the buildings is in form only, and that the plaintiff have liberty to proceed according to law with the judgment herein for the above-named sum of $3,028.39 damages and costs, and interest from the date of this judgment, against Frederick Robinson, as principal, and ¡Nicholas Murray and Mary Robinson, the sureties upon the bond given upon the discharge of plaintiff’s lien. ■

      Thomas 0. JEnnever, for app’lt; Martin JE. Halpin, for resp’t
   Follett, J.

The appellant asks for a reversal of the judgment on three grounds : (1) That he is neither a necessary nor proper party defendant; (2) that, a notice of lis pendens not having been filed within one year after the filing of the lien, the'action cannot be maintained; (8) that the judgment entered in form against the property is illegal, because the principal contractor, who was the debtor, has given a bond, and obtained an order discharging the lien, pursuant to the sixth subdivision of § 24 of the mechanic’s law. The condition of the bond given is “for the payment of any judgment which may be rendered against the property,” which renders the foreclosure of the lien and a recovery of a judgment against the property necessary before resort can be had to the bond ; and in such an action all persons should be made parties defendant who would be proper parties to an action for the foreclosure of alien in case a bond had not been given. The object of a Us pendens is to give notice of the pendency of the action to persons who may subsequently acquire or seek to acquire rights in the property, but it is not required for the protection of the parties to the action, for they have notice of its pendency, and of the claim made by it. However, this question has been settled against the claim of the appellant in Ward v. Kilpatrick, 85 N. Y., 413. In that case it was held :

. “ It is further said that the proceeding of thé lienor was ineffectual, because he did not show affirmatively the filing of a notice of Us pendens within ninety days succeeding the filing of his claim. That provision under the statute has no application to a case where the lien upon the real estate is discharged by the depositing in court of the amount of the debt, as was done in this case. In that event the lien is shifted to the fund; the controversy ceases to affect the real estate or third persons, and Us pendens becomes necessary.”

That case arose under chapter 379 of the Laws of 1875, the eighth section of which provided:

“No lien, provided for in this act, shall bind the property therein described for a longer period than ninety days after the claim has been filed, unless an action be commenced within that time to enforce the same, and a notice of the pendency of such action filed with the clerk of the county, and an entry of the fact of such notice made on the lien docket.”

This provision is not essentially different from that contained in § 6 of chap. 342 of the Laws of 1885, except as to the time within which the action is to be commenced, and the notice of its pendency filed. The omission to file the notice is not a defense to the action.

No error was committed in ordering a judgment of foreclosure in form to be entered against the property. As before stated, until this is done the claimant has no remedy on the bond. The recovery of a judgment by a claimant against the debtor for the amount of his claim would not entitle him to recover the debt from the obligors on the bond without the recovery of a judgment of foreclosure against the property. People v. Butler, 61 How., 274; Lawson v. Reilly, 13 Civ. Pro., 290; Highton v. Dessau, 19 N. Y. Supp., 395 ; 46 St.Rep., 922 ; Scherrer v. Music Hall Co., 18 N. Y. Supp., 459; 45 St. Rep., 638. In the case last cited the general term of the common pleas said:

“ The claimant, in order to establish a lien upon the property, must show bis right, as against all other claimants, to payment from the fund subject to liens,—viz., the moneys due from the owner to the contractor—and must show that, after the satisfaction of all such claims as are entitled to priority, there is sufficient to satisfy his particular lien, Lien Act, § 1; Gibson v. Lenane, 94 N. Y., 183; and he must show the same facts and right in order to establish a lien upon the bond or deposit, and a right of action against the sureties upon the bond.”

In so far as Bulkley v. Moses, 23 N. Y. Supp., 125, and Heinlein v. Murphy, 3 Misc. Rep., 47; 51 St. Rep., 435, are adverse to this view, they are overruled.

The judgment in this action carefully protected the rights of the owner and provided that it was in form only against his property, and it clearly constitutes no lien upon it. The judgment should be affirmed, with costs.

All concur.


text:
    William M. Tebo, Resp’t, v. Henry Gregory Jordan et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    1. Vessel—Unseaworthiness.
    An unlicensed pilot, if lie is in fact competent, does not render a tug unseaworthy.
    2. Same—Burden.
    Such fact, in case of an accident, casts the burden upon the owner.
    3. Appeal—Charge.
    In an action against the owner of a tug for injuries to the tow, a charge that running upon a well-known obstruction on shore can only be excused by some peril of the sea which rendered the accident unavoidable, with the exercise of skill and good judgment, is proper.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      Wing, Shoudy & Putnam- (J. A. Shoudy and Everett Hasten, of counsel), for app’lts; Goodrich, Deady & Goodrich{W. W Goodrich, of counsel), for resp’t.
   Follett, J.

This action was brought to recover the contract price for services of the steam tug B. T. Haviland rendered between October 26, 1888, and January 8, 1889. The defense interposed is that the tug was unseaworthy, and that by the negligence of its officers and pilot the defendants’ vessels which the tug had in tow were greatly injured. All the questions involved in this appeal except two were disposed of when the case was before this court on the last appeal. Tebo v. Jordan, 67 Hun, 392 ; 51 St. Rep., 319. It is now urged that the tug was unseaworthy, because, at the time of the strandings by which the defendants’ barges were injured, the pilot in charge had not been licensed by the inspectors of steamboats. Section 4401 of the Revised Statutes of the United States provides:

“ Every coastwise seagoing steam vessel subject to the navigation laws of the United States, and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the inspectors of steamboats.”

It was admitted that the Haviland was an enrolled vessel, and not sailing under register.

Section 4427 of the Revised Statutes provides that:

“ The officers navigating such vessels (tugs) shall be licensed in conformity with the provisions of this title and shall be subject to the same provisions of law as officers navigating passenger steamers.”

Tne strandings of which the defendants complain did not occur upon the high seas, but within waters which were in the jurisdiction of the state of Massachusetts. It was conceded that at the time of the accident the tug was not in charge of a licensed pilot, and the court was asked to hold as a question of law that this was a breach of the contract, and a defense to the action. The court refused so to hold, and submitted the question to the jury whether the pilot in command was or was not competent, in a charge to which, in this respect, no exception was taken. The jury found this issue for the plaintiff, and, as we think, upon sufficient evidence. The Haviland, at the time of the accident, was piloted by William H. Barnard, who testified :

“I am fifty-nine years old. Seafaring life has been my occupation. I am a pilot. I pretend to be. Never was questioned before. Have been a pilot ever since I have been master—thirty-six years. I have been master of a sailing vessel thirty-six y.ears. I never held a license from the United, States or any other authorities as a pilot. I have had a license as master. I have had over forty years’ experience in a running over the voyage from New York or Newport News to Boston. I have been over it hundreds of times. I have been coastwise twenty years steady from Cape Henry the whole length of the coast. At the time of this charter party I was familiar with the route from Newport News to Boston. That was the first time I ever towed barges. In all these voyages I acted always as pilot, and never had it questioned before. I know the route and the lighthouse. Am acquainted with the tides and the set of the tides, with Stone Horse ledge and Handkerchief light and Monomoy light and Shovelful light. Am also familiar with the course of the channel and of the lights and tides in entering Boston harbor. Have been traveling over this route for twenty or thirty years.”

No evidence was offered tending to show that the pilot was incompetent, except the fact that an accident occurred. Under this charter party the law implies a warranty that the tug was seaworthy, and a vessel not commanded by competent officers is unseaworthy. Tebo v. Jordan, 67 Hun, 392 ; 51 St. Rep., 319, and cases there cited. But a vessel is not, as a matter of law, unseaworthy because it is navigated by an unlicensed pilot, provided he is competent, even though a statute requires that the vessel should have a licensed pilot in command. Flanigen v. Insurance Co., 7 Pa. St., 306; 1 Pars. Mar. Ins., 385 ; 1 Pars. Mar. Law, 145. The question is not unlike' those arising under statutes or municipal ordinances prescribing the rate of speed beyond which trains shall not be run. In the case of an accident the fact that the train exceeded the prescribed rate of speed is not proof, but evidence, of negligence, which may be rebutted; and in this case the absence of a licensed pilot cast the burden on the plaintiff of showing that the vessel when it was stranded was in command of a competent master or pilot.

•The defendants’ counsel requested the court to charge: “(10) That the fact of running upon a well-known shore is of itself presumptive evidence of negligence.” The court declined to adopt the language of the request, and the defendants excepted, and thereupon asked the court to charge: (11) That running upon a well-known obstruction or shore can only be excused by some peril of the sea which rendered the accident unavoidable, with the exercise of skill and good judgment.” This the court charged. The rule of evidence applicable to the case was correctly expressed' by the eleventh request, and no error was committed in refusing to charge the tenth request. The judgment and order should be affirmed, with costs.

All concur.