text:
    People ex rel. Hannah M. Stevens et al., App’lts, v. Abraham Lott, Surrogate, etc., Res’pt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Surrogate — Power of to permit administrator to pile supplemental account—Code Civil Pro., § 2481, subd. 6--Mandamus—When not GRANTED.
    Where before a final decree was signed on the final accounting of an administrator, but after the referee’s report was confirmed, the administrator made an application to the surrogate to open the decree upon proof that . he had omitted to credit himself with a large sum paid one of the relators. Held, that the surrogate had power to allow the administrator to file a supplemental account and to send it hack to the referee under Code Civil Procedure, § 2481, subdivision 6 and that he cannot be mandamused to make the decree upon the first account.
    Appeal from an order of a special term held in Kings county refusing a peremptory writ of mandamus against the respondent directing him to make a decree upon the judicial settlement of the accounts of an administrator.

      Charles Lyons, Jr., for app’lt; Merritt E. Sawyer, of counsel; Charles G. Patterson, for res’pt.
   Barnard, P. J.

There is no case made for a writ of mandamus. The relators applied to the surrogate of Kings county for a final accounting. The account of Nathaniel Miles, one of the administrators, was the subject of much objection, and the same was referred by the surrogate to Mr. W. S. Cogswell. After a protracted hearing the referee made a report which was confirmed by the surrogate. Before a final decree was signed the administrator Miles made an application to open the decree upon proof that he had omitted to credit himself with a large sum which had been paid to one of the relators, McMillen. The surrogate permitted Miles, the administrator, to file a “supplemental account thereof,” with vouchers, and the same was referred back to the referee to hear and determine the questions arising upon the account, and to report back the testimony. This order was within the statute power of the surrogate. By section 2481, subd. 6, the surrogate has power to open, vacate, set aside or modify a decree, or to grant new trials. His order in such a case is appealable, and. if erroneous, can be corrected by force of the same section. Mandamus is not a remedy by which such an order can be disregarded. The supplemental account involved the opening of the decree so far, and the duty of the surrogate was not a ministerial one to sign the decree, as it would have been if no supplemental account was permitted.

The order should be affirmed, with fifty dollars costs.

Pratt and Dykman, JJ., concur.


source: Caselaw Access Project

author: Barnard, P. J. Pratt, J.

license: Public Domain

text:
    David S. McLaughlin, Resp’t, v. Thomas S. Lester, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1 Fixtures—Sale oe real estate does not convey fixtures which ARE NOT THE PROPERTY OF THE GRANTOR.
    Where a bank bought certain premises and agreed with plaintiff that certain fixtures therein, which could be removed without injury to the building, might remain temporarily in the building and should be plaintiff’s property, and the bank afterward sold the said building to the defendant without any reservation, he believing that he obtained title to the fixtures and refused to allow plaintiff to remove them: Held, that the title to the articles was in plaintiff, and that the unauthorized sale by the bank would not divest him of it.
    2. Same—When they are personalty.
    The question of fixtures is generally one of intention if they can be removed, and when not annexed to be permanently attached, they remain personalty.
    Appeal from a judgment in favor of plaintiff, entered upon a re-trial at the county court of Dutchess county on an appeal from a judgment given in favor of plaintiff in a justice’s court.

      H. H. Hustis, for resp’t; William D. Diclcey, for app’lt.
   Barnard, P. J.

The plaintiff established upon the trial a good title to the personal property in question. It consists of a boiler tank and some steam pipe used in a soap factory. One George Simpson gave a mortgage on a lot of land to a savings bank prior to 1869, and Simpson then erected the soap factory, placing in it the articles in question. Simpson mortgaged by a chattel mortgage the property in question to the plaintiff, and then sold the real estate to the plaintiff. The plaintiff subsequently purchased the personal property of Simpson. The same could be moved from the building without injury, and was put in solely for the purposes of manufacture. In 1873 the plaintiff sold the land and the personal property to one O’Neil. The personal property was sold under an execution against O’Neil and was purchased by the plaintiff at such sale, and subsequently the land was purchased at a foreclosure sale of the old mortgage, and that was bid in by the plaintiff, but he sold his bid to the bank, which took title. It was agreed between the plaintiff and the bank that the articles in question should be personal property, and that the plaintiff might temporarily leave it there in the building. The question of fixtures is generally one of intention, if the same can be removed and was not annexed to be permanently attached, it shall remain personal. Dubois v. Kelly, 10 Barb., 496; Potter v. Cromwell, 40 N. Y., 287; Voorhees v. McGinnis, 48 id., 278.

By any test the property in question was personal; it was not intended to be annexed as a fixture. This is evidenced by the personal mortgage, by the sheriff’s sale and by the agreement between the holder of the real estate mortgage and the purchaser at its sale. *

Upon the merits, therefore, the judgment should be affirmed, with costs. A point was made that the allowance of costs was improper’, because the judgment was reduced more than ten dollars. The case does not show the amount of the justice’s judgment, and the error should be corrected by motion in the county court.

Pratt and Dykman, JJ., concur.

Pratt, J.

The findings of fact made by the county judge are supported by the testimony, and they justify the judgment rendered.

After plaintiff had bidden off the premises at foreclosure sale, and while the bank was negotiating with him for an assignment of his bid, it was agreed by the president of the bank, that the boiler tank and the other fixtures should remain in the building, but should be the plaintiff’s property. This agreement was reported to the bank and acquiesced in by the board, but without any formal entry on the minutes. Plaintiff assigned his bid in pursuance of the agreement. So long as the bank owned the building, plaintiff’s title was not questioned. Later the bank sold the building to defendant without any reservation, he believing that he obtained title to the property in suit.

Upon this state of facts the plaintiff must recover. The title to the articles "was in plaintiff, and the unauthorized sale by the bank could not divest him of it. He should seek his remedy against the bank.

Judgment affirmed with costs.


author: Barnard, P. J.

text:
    Charles Raht, as Ex’r of Julius E. Raht, deceased, Pl’ff, v. Henry Y. Attrill et al., Deft’s.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Mortgage—Receiver of corporation—Power of court to direct him to issue certificates to pay wages due employees.
    A receiver appointed in an action to foreclose a mortgage on the property of a certain improvement company, is not authorized to issue certificates to. pay claims of employees of said company for labor performed before his appointment.
    2. Same—Expenses must be paid out of income.
    It is only the income of the property which courts apply to the payment of current expenses before the mortgage debt is paid, and where there are no earnings there are no receiver’s certificates which have a right to payment before the mortgage.
    8. Same—Deed of trust—Power of trustee to consent.
    Where the trustee in a deed of trust, who was at the same time a stockholder and director in the company, was not a party to the action when the receiver’s certificates were ordered to be issued, he Will not be held to have consented to violate his duty to the bondholders, even if the trustee could represent the bondholders for such a purpose.
    Appeal by certain claimants upon the surplus money in the above entitled action from so much of the order made at a special term held in Kings county, and entered and filed in Queens county, confirming the report of the referee as to said surplus moneys, and directing the distribution thereof, etc.:
    In February 1880, The Rockaway Beach Improvement Company, limited, was organized under the business corporations’ act, chapter 611, Laws 1875. It bought over one hundred acres of land at Rockaway Beach, subject to a purchase-money mortgage for $72,000, made by Henry Y. Attrill to one Littlejohn. Littlejohn assigned to one Raht, whose executor brought this action of foreclosure. On April 1, 1880, The Rockaway Beach improvement Company, limited, executed a mortgage on the same property to William K. Soutter, trustee, to secure the payment of seven hundred bonds of $1,000 each. Twenty-six of these bonds were disposed of for value, the balance pledged at about fifty cents on the dollar, as collateral for loans to the company. The company became embarrassed, and on August'
      •2, 1880, Henry T. Attrill, a large stockholder, began an action against the company on behalf of himself and ah other stockholders who should unite with him, praying for the appointment of a receiver and the dissolution of the company.
    The complaint alleged the organization of the company February 16, 1880, capital stock §700,000; the pledging of $700,000, first mortgage bonds, at fifty cents on the dollar, to secure loans to the company; that there was due for materials $100,000; on contracts for furniture, $130,000; for wages, $60,000; that the men had refused to work; that one-half had left, the others Avere working on promise of payment; that large sums will be necessary to complete the work; that no provision has been made therefor, nor to meet maturing loans on bonds, which will be sacrificed; that delay ensues, depreciating the value of the property; that plaintiff has been unable to get a statement of the affairs of the company, though willing to assist it by large advances; fears that a continuance of the then improvident management will result in serious loss to plaintiff and the company; that the hotel and land are the only resources for the payment of the company’s debts; that in its present condition it is wholly unproductive; that the company is insolvent, or nearly so; that this can only be prevented by intervention of the court and appointment of a receiver; and prays for dissolution of company and appointment of a receiver. Upon this complaint alone Mr. Justice Donohue made an order, August 2, 1880, appointing John A. Bice receiver of all the property and effects of the Bockaway Beach Improvement Company, limited, to take possession of and administer the same for the benefit of all concerned.
    On the 3d of August, 1880, the same judge made an ex parte order on the affidavit of Benjamin E. Smith, the general manager of the company, authorizing the receiver to borrow $100,000 to pay wages due the workmen and issue certificates therefor, and also to borrow $10,000 to purchase materials necessary to complete the hotel
    The affidavit of Mr. Smith was the basis of all the orders for the issuing of receiver’s certificates. It is dated August 3, 1880, and is in substance as follows: The company is in process of building a hotel, having nearly two thousand men employed. Owing to delay in paying, they all, a short time ago, refused to'work, one-half left; about eight hundred were then working under promise of payment; that no provision has been, or can be made, for payment by the company; that if not paid the men will stop work, and this deponent fears a serious disturbance; that it is imperative that the receiver in this cause be authorized to borrow $100,000 to pay the workmen, which can be raised on receiver’s certificates. On the 11th of August, 1880, an ex parte order was made by the same judge, authorizing the issue of receiver’s certificates to the amount of $110,000 to be paid to the employees of the company, said certificates to be a first lien upon all the property of the company, and prior to the mortgage to William K. Soutter, trustee. A similar order was made August 11, 1880, limiting -the amount of certificates at $130,000. Under this Older Dresell, Morgan & Co., Morton, Bliss & Co., and Hatch & Peters took $110,000 receiver’s certificate at par for cash, and they have been awarded the surplus moneys arising out of the sale of the mortgaged premises in preference to the holders of bonds secured by the prior mortgage to W. K. Soutter, trustee. The legality of this decision is the question brought up for review. In addition to the papers before the court, and on which alone it acted, the holders of the receiver’s certificates sought to sustain their claim by introducing extraneous evidence, to the effect that alter the appointment of the receiver and the making of the affidavit of August 3d by Mr. Smith, the workmen were in a state of riot, threatening to fire and destroy the hotel. They refused to take the receiver’s certificates, and mobbed three or four men who had done so. That from this cause the property was in great peril. At a mass meeting of the workingmen they consented that a Mr. McDonald should negotiate $110,000 of receiver’s certificates, which he subsequently did, to Drexel, Morgan & Co. and the others, as above stated. There is no evidence- that this state of facts was brought to the attention of the court so that it could exercise its discretion in the matter. This evidence was admitted over appellant’s objection, and forms the basis of a finding in favor of the receiver’s certificate as an equitable lien.

      Clarence D. Ashley, for app’lts Attrill and Marache; Thomas M. Wheeler, for app’lts Taylor and Hatch; Leivis Sanders, Att’y, in person; Herman Aaron, for app’t West-house; Work & McNamee, for app’lt Daley; Roswell W. Keene, for app’lt Barberie; Edward S. Clinch, for app’lts Browne et at. and De Grauw, receiver; Vanderpoel, Oreen & Cuming, for app’lt Soutter, as trustee; Strong & Cadwalader, for resp’ts Morton, Bliss & Co. et al.

   Barnard, P. J.

One of the principal points involved in this appeal, has since the argument been decided by the court of appeals in the case of Metropolitan Trust Co. v. Tonawanda R.R Co., 2 N. Y. State Rep., 69. In that case as in this the special term made an order that certain receiver’s certificates given for labor performed before the appointment of the receiver, should be preferred to a mortgage lien which existed upon the property. The court of appeals held that there was no principle upon which the claim of employees for labor performed before the receiver was appointed, could be so extended as to impair or postpone the lien of the mortgage. The court of appeals in its opinion calls this class of creditors “mere general creditors with no special equities,” as against prior hens.

The present case differs only in this, that instead of an appeal being taken from the order authorizing the certificates the question is first raised upon the reference as to the distribution of the surplus moneys under the purchase money mortgage. The appellant claims that the certificates awarded preference on claims “with special equities.”

The property was in danger from the passions of unpaid workmen and these certificates were used to prevent its destruction. The court of appeals decision seems to have been made upon a different théory.

In that case the claim was made that the property had been enhanced by the labor of the workmen which was included in the mortgage. The court says in reply to this “it is easy to see that under such a plea the lienor might be entirely defeated and the foreclosure of his mortgage rendered inoperative and useless. Such a result except upon his consent the court have no power to sanction.”

The next question is whether the order was consented to in such a way as to be a formal estoppel against the mortgage lien. The difficulty here principally arises from the fact that Soutter is at once stockholder and director in the company and trustee for the bondholders. As one of the directors he consented to the action to dissolve the corporation, to the appointment of a receiver and he approved of the orders authorizing the certificates in question. This is fairly inferable although he denies in his testimony that he knew of the proceedings except from the publication of the proceedings from time to time in the newspapers. No decree was entered and as he was trustee there is no consent. When the certificates were authorized the trustee was not a party to the action. To hold under this inconclusive proof that the trustee as trustee consented to violate his duty to the stockholders under the mortgage would not be warranted even if the trustees could represent the bondholders for such a purpose. After a careful examination of the case we think that the weight of authority is not for an order which sets aside liens to the advantage of a general creditor. That it is only the income of the property which courts apply to the payment of current expenses before the mortgage debt is paid. That it is not right to entirely displace the lien. Burnham v. Rose, 111 U. S., 782.

There were no earnings and there are no receiver’s certificates which have a right of payment before the Soutter mortgage including the Daily certificates.

The order confirming the report should be reversed and the report set aside and order of reference vacated, costs to the trustee appellant out of the fund and the respondent on his appeal as to the Daily claim, out of the fund.

Dykman, J., -concurs; Pratt, J., nut sitting.


text:
    Benjamin F. Underhill et al. Individually and as Ex’rs, etc., Resp’t, v. Sarah A. Underhill et al., Impleaded with Caleb F. Underhill et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

      1. Partition of real estate—Practice—When land sold in parcels:
    Whether land sold on a partition sale shall be in parcels or not is usually left to the referee to decide subject to the approval of the court.
    2. Same—When ordered where executors have a power of sale.
    Partition is properly ordered where the power of sale in the executors would need the aid of the court to fix the time when it could be exercised.
    " Appeal by part of the defendants from a judgment entered at a special term held in Westchester county, fixing the interests of certain parties in certain lands, and ordering the partition of said lands by sale.

      F. & S. H. Fitch, for resp’ts; Thomas Nelson, for app’lts.
   Barnard, P. J.

This case shows that a farm of land in Westchester county near Tuckahoe, consisting of 128 acres of land, is owned by six persons as tenants in common.

The farm is subject to two legacies of $4,000 each before the owners of the fee take anything. The proof accords with the finding of the judge, that no actual partition can be made without injury to the parties. The only claim made is that the farm may sometime be needed for villa sites, for which at present there is no demand. The parties are not bound to await that period. It is now a farm with proper farm buildings for a farm as an entirety. It will not sell for more in all probability in small parcels than it will as an entirety. The question whether the sale shall be in parcels is one usually left to the referee, subject to the approval of the court, and this is an entirely different question from the question of sale or actual partition. The parties made two issues—one as to any sale, and the other as to actual partition instead of sale if partition were to be ordered. Partitition was properly ordered, because the power of sale in the executors of Caleb F. Underhill would probably need the aid of the court as to the time it would properly be exercised. A sale in this action will give a good title. Considering the nature and use of the property and all the surrounding circumstances, it was proper to direct a sale of the lauds as an entirety.

The judgment should, therefore, be affirmed, with costs. Pratt, J., concurs, Dykman, J., not sitting.


text:
    Maria Thornton, Executrix, et al., etc., Res’pts, v. Isaac Harris, Phœbe Stilwell, Executrix, et. al., etc., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Fraud—What sufficient evidence of.
    Where the defendants who owned a stage route which they sold to plaintiff’s testator, represented that the route was a good paying one, that the reason for the sale was the sickness of one of the owners, that the horses and the stages were good, and the purchasers went to the stable and the horses looked well and they had seen them in the street and they seemed to be in excellent condition. And the defendants assured the purchasers that the route paid nicely, clearing itself all the time. When in fact, the horses were poor and some diseased, the good ones having been borrowed, and the route was a non paying one, etc. Held, that there was sufficient to show fraud.
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the circuit court held in Kings county and from an order denying a motion for a new trial made on the ground that the verdict was excessive and on exceptions and on all the grounds mentioned in Code Civil Procedure, § 999.

      A. W. Bailey, for app’lts; Abram H. Bailey, of counsel; Anthony Barrett, for res’pts.
   Barnard, P. J.

Applying the rule which governs the consideration of the facts upon appeal, this case shows a very strong case of deception and fraud. Harris and Still - well owned a stage route in Brooklyn, and Styles was their employee in its management. Styles applied to the plaintiff’s testator to purchase the property, and in the evening brought Harris, one of the partners. The two represented that the stage route was a good paying one; that the reason for their wish to sell was the sickness of one of the partners, Stillwell; that the horses numbered about forty, and the stages sixteen, and that the stock was all good. The purchasers went to the stable and the horses looked well, and he had seen them in the street, and they seemed to be in excellent condition. Before the purchase was concluded the other partner, Stillwell with "Harris and Styles had an interview with the deceased, and Stillwell appeared at the interview with a “ big coat ” on; he said he should have to go south. At this interview Stillwell made substantially the same assurances. The route paid nicely, clearing itself all the time.” The sale was completed and it appeared that the horses which appeared so well were borrowed from another stable owned by Harris & Stillwell. That the horses belonging to the route in question were poor. Some were diseased and had to be killed to prevent contagion. The stock was old and dilapidated, and the route was a non-paying one. Stillwell did not go south. The case then shows false representations and false appearances calculated to deceive, "caused by the defendants. The vendors falsely represented the facts in respect to the route. They must have known that it was warranted by the true state of the case. The placing of good horses so as to cause the belief that they were included in the sale, was in its effect calculated to deceive, and was without doubt so intended. The reason given for the sale was probably not true, at least the jury could have so found.

There is nothing therefore in the case which calls for a reversal of the judgment.

Judgment affirmed with costs.

Pratt and Dykman, JJ., concur.


author: Bartlett, J. Dykman, J.

text:
    George Schaper, Resp’t, v. The Brooklyn and Long Island Cable Railway Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Railroads—Municipal corporations—Street railroad—Cable railroad—General railroad act—Laws 1850, chap. 140—Laws 1866, chap 697—Consent of city necessary.
    Where (lie defendant company claims to he organized under chapter 697, Laws 1866, relating to cable companies, and also under the general railroad act, for the purpose of operating a cable railroad on certain streets in the city of Brooklyn- Held, that the general railroad act of itself confers noautliority upon any company formed thereunder to build in a city street; that a corporation organized thereunder acquires only the privilege of applying to the municipal corporation for permission to build in or across particular streets, that if this permission is not granted by the city, the road cannot be built there.
    8. Same—Laws 1854, chap 140—Consent of property owners necessary.
    Laws of 1854, chapter 140, prohibits the municipal corporation of the several cities of the state from giving such consent where the railroad begins and ends in the city, unless a majority of the property owners upon the street have also consented A consent given by the municipal corporation in disregard of this limitation is no consent at all.
    3. Same—Brooklyn Charter Laws 873, chap 863, tit. 19, § 83.
    The exception provided for in the charter of Brooklyn (Laws 1873, chapter 863, title 19, § 83) of -‘such other companies as are or may he authorized bylaw,” means those authorized by special act, and the defendant is not so authorized
    4. Same—What laws unconstitutional under amendment of 1875.
    Repealing legislation which should dispense with the existing requirement of consent by the property owners, would be as unconstitutional as affirmative legislation assuming to authorize the building of street railroads without such consent.
    Appeal from a judgment in favor of plaintiff, rendered ' by Mr. Justice Bartlett, at the special term held in Kings county, granting a permanent injunction against the construction of defendant’s road.

      Wingate & Cullen, for resp’t; B. F. Tracy, for app’lt.
   Bartlett, J.

The plaintiff, who owns premises on Boerum place, in the city of Brooklyn, brings this action to restrain the defendant corporation from entering upon that portion of the street opposite his property, for the purpose of constructing its proposed railway thereon. He claims, first, that the defendant has acquired no authority whatever to build its railroad in any of the streets of the city; and, in the second place, that even if it has a legal right to enter upon the streets so .far as the public is concerned, it cannot lawfully occupy that part of Boerum place fronting his land without making compensation therefor.

If the action can be maintained on the first ground it will be necessary to consider the second.

The defendant claims' to be organized under chapter 697 of the Laws of 1866, relating to cable companies, and also under the general railroad act. Its purpose, as stated in its articles of association, is to maintain and operate a railway for public use, in the conveyance of persons and property by means of a propelling rope or cable attached to a stationary power, from South ferry and Fulton ferry, in the city of Brooklyn, to Jamaica, in the county of Queens, upon, over and through certain streets and avenues in Brooklyn, and from East Hew York to Jamaica, over the route of the railway now operated by the Long Island Railroad Company.

Under this organization, the defendant asserts the right to_ construct its proposed railroad in the streets of Brooklyn, without in any manner obtaining the assent of the property owners on the streets through which the proposed line is to run.

Of itself, the general railroad act confers no authority upon any company formed thereunder, to build in a city street. It expressly provides that nothing therein contained shall be construed to authorize the construction of any railroad not already located in, upon, or across any streets in any city, without the assent of the corporation of such city. Laws 1850, chap. 140, § 28, subd. 5; amended by Laws 1880, chap. 133, but unchanged in this respect. So far as the construction of its railroad in a city is concerned, therefore, a corporation organized under this act acquires only the privilege of applying to the municipal corporation for permission to build in or across particular streets. If this permission is not granted by the city, the road cannot be built there. Under the statute, the municipal authorities become the proximate source of power from which the right to construct a railway in the street must be obtained.

In 1854 by chapter 140 of the Laws of that year, entitled an Act relative to the construction of railroads in cities, the Legislature imposed a limitation upon the power of municipal corporations to give the consent provided for in the general railroad act, and expressly forbade the common councils of the several cities of this state from permitting to be constructed in any street or avenue, any passenger railroad commencing and ending in the city, “without the consent thereto of a majority in interest of the owners of property upon the streets in which said railroad is to be constructed being first had and obtained.”

Here we have then a distinct and positive rule laid down, by statute and applicable generally to the cities of the state, to the effect that no passenger railway shall be constructed in the streets without the consent of the municipal corporation, and that the municipal corporation shall not give such consent, where the railroad begins and ends in the city, unless a majority of the property owners upon the streets have also consented.

Proceeding a step further we find still another limitation upon the power of the municipal authorities to consent to the construction of railways in city streets, which limitation relates solely to Brooklyn. The existing charter provides that it shall not be lawful hereafter to lay, construct or operate any railroad in, upon or along any or either of the streets or avenues in the city of Brooklyn, “wherever such railroad may commence or end, unless the majority of the owners of property upon the streets or avenues, along which said railroad is to be constructed, shall first petition the common council of said city therefor; nor unless the said common council shall authorize the construction of such railroad and the grant therefor shall have been awarded and given to the person who will agree, with adequate security, to carry passengers on such railroad at the lowest rate of fare.” Laws 1873, chap. 863, title 19, section 23. The same section excepts various existing and specially-named railroad companies from its operation, and also “such other companies as are or may be authorized by law.” I do not think this latter exception can be held to include the defendant; for, as already shown, the defendant by virtue of its organization under the general railroad act acquired no right to build in a city street, but only the privilege of applying to the municipal corporation for permission to do so. Furthermore, the expression, “authorized by law,” in the section of the charter to which reference has been made, means, in my opinion, authorized by special act, and the defendant is not so authorized.

To sustain the claim of the company here, that it is entitled to build its road in and upon the streets of Brooklyn, without the assent of any portion of the property owners, would be to ignore this plain provision of the charter. I can find no warrant for so doing. The provision clearly limits the power of the common council of Brooklyn to give the consent contemplated by the general railroad act, which is an essential prerequisite to the building of any railroad in the streets of the city by a corporation created pursuant to that act. A consent given in disregard of this limitation must be deemed in the view of the law to be no consent at all; and without the required consent of the municipality it cannot be pretended for a moment that the proposed construction is authorized. It may, perhaps, be said that the proceeding by way of petition on the part of the property owners, for which the charter provides, is cumbrous and puts unnecessary obstacles in the way of obtaining a desired franchise, but that is a matter for the determination of the legislature, which may properly place general restrictions upon the granting of privileges to public corporations. However, I am unable to see that a corporation find much more difficulty in securing the acquiescence of property owners in the form of a petition than in the form of a simple consent.

In my opinion, then, the defendant has not acquired the right to lay down and operate a railroad in the streets of the city of Brooklyn, for the reason that the consent of the common council is not based upon the assent of a majority of property upon the streets through which the railroad is to be constructed, as prescribed by the city charter.

Upon the argument there Avas considerable discussion as to how far the undertaking of the defendant is affected, if at all, by the constitutional amendment of 1875, which declares that no law shall authorize the construction or operation of a street railroad except upon condition that the consent of the property owners be obtained, or the determination of a supreme court commission in lieu thereof. With reference to the bearing of that amendment upon the questions presented in this case, it should be observed that at the time it took effect there was no law authorizing the construction of street railways in Brooklyn without the assent of a majority of the property owners. I have no doubt that the defendant’s proposed railway within the city limits is a street railroad within the meaning of the constitution. The requirement of consent on the part of the property owners which is found in the charter could not be abrogated, therefore, except by an enactment which should comply Avith the constitution by still requiring either such consent or the decision of commissioners as a substitute for it. Repealing legislation which should dispense with the existing requirement of consent by the property owners would be as unconstitutional as affirmative legislation assuming to authorize the building of street railroads without such consent. I may add that while companies organized under the rapid transit and street railroad acts are properly exempted from the charter provisions under consideration here, the validity of the exemption seems to me due to the fact that the legislature in passing both laws obeyed the command of the constitution by requiring the consent of the property owners, or its constitutional equivalent, the favorable decision of a commission appointed by the court.

The intention of the company here to construct its road without the consent of the abutting property owners is sufficiently manifest not only from the admission to that effect in the pleadings, but from the confident assertion on the trial of its right to do so. Its claim in this respect cannot be sustained. Under the authority of Milhau v. Sharp (27 N. Y., 611), therefore, the structure which the defendant proposes to erect is to be deemed a nuisance, and the plaintiff lias satisfactorily made out his right to maintain the action, as a property owner to whom it would be particularly injurious. The allegations of damage in the complaint are not denied by the answer, and may be taken to be true.

There should be judgment for the plaintiff with costs, awarding him an injunction against the proposed occupation by the defendant of that part of the street near his premises.

Dykman, J.

The judgment and order appealed from should both be affirmed on the opinion of the court below with costs.

Barnard and Pratt, JJ., concur.


author: Barhard, P. J. Dykman, J.

text:
    Charles T. Redfield, Resp’t, v. Charles W. Stett, as Ex’r, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Evidence—When incompetent—Code Civ. Pro., § 829.
    An action was brought against an executor on a note given by the testator, which was barred unless interest was paid as indorsed thereon. Held, that plaintiff was incompetent to testify to the indorsement, because if it represented a real payment it was a personal transaction with the deceased, and if not it was a mere declaration in his own favor. Dykman, J., dissenting.
    Appeal from a judgment entered upon a verdict rendered in favor of plaintiff at the Orange county circuit, and from an order denying a motion for a new trial as against the evidence and on the judge’s minutes.

      O’Neill & Bush, for Resp’t; J. Alexander Stitt, for App’lt.
   Barhard, P. J.

On the 25th of September, 1875, the deceased testator gave his note for $500 to the plaintiff. The note had no term of credit. When the testator died, in 1885, the note was barred by the statute of limitations, unless a certain receipt of $60, interest on it, renewed it. This endorsement was made by the plaintiff, April 6, 1880. Upon all the evidence as taken, the verdict in favor of the note is against the weight of the evidence. On the day of the date of this endorsement the deceased paid to the plaintiff seventeen hundred dollars, and took a receipt, “including all accounts in full, excepting the last year, that is 1879.” Two witnesses testify to conversation with the plaintiff after the date of the receipt in which he acknowledged the settlement. The large sum paid supports these witnesses. On the other hand there is a witness whose testimony is confused and uncertain, to the effect that the deceased had paid the interest in 1880, and that the note was still outstanding. ‘6 He said that Mr. Eedfield held two notes; the Jacob Bull note and a note of $500 against him, and that he had paid the interest up until April, some time the 1st of April, 1880.”

Q. How did he fix the day? Did he say anything about a receipt being given ?

A. Yes, the receipt he said he had got a receipt from Mr. Eedfield and two other notes from him.

Q. Two other notes ?

A. Yes, sir; of $500 each, and that Eedfield held two notes against him.

Stett held no note against Eedfield, and there is no payment of interest up to 1st of April, 1880, but as claimed, only one payment of interest in April 6, 1880.

The witness could not have understood the conversation with the deceased, and the receipt is the best evidence of a settlement. The plaintiff was improperly permitted to testify to the endorsement of interest on the note, April 6,1880. It was, if it represented a real payment, a personal transaction which excludes his evidence under section 829, Code.

If the payment was not in fact made, it was a mere declaration in his own favor. Holcomb v. Holcomb, 95 N. Y., 316; Strong v. Dam, 55 Barb., 337.

The judgment should therefore be reversed and a new trial granted, costs to abide event, as well as for the legal error as for the fact that the evidence does not support the verdict upon the whole case.

Pratt, J., concurs; Dykman, J., dissents.

Dykman, J.

(dissenting)—This action was brought upon two promissory notes, but the complaint was dismissed as to the first cause of action stated in the complaint, and there is no appeal by the plaintiff. There was an endorsement of a payment upon the second note to save it from the operation of the statute of limitations, and the plaintiff was permitted to testify to the endorsement and signature of the note. The action was against an executor, and he objected to that testimony as involving a personal transaction between the witness and the deceased.

The proof made by the testimony of the plaintiff does not necessarily imply a personal transaction with the deceased maker of the note, because it may be true without the involution of any personal interview or communication, and its admission was not erroneous. Simons v. Havens, 101 N. Y., 427.

Besides that there was testimony given on the part of the plaintiff by another witness which tended to prove the execution of the note and the delivery of the payment, and the verdict may well stand upon the proof.

The plaintiff gave the deceased man a receipt for $1,700, including all accounts in full except the year 1879, and that bore date April 6, 1878, the same date as the endorsement of the sixty dollars upon the note in question for interest.

The proof of that receipt raised a presumption in favor of the defense which the plaintiff endeavored to overthrow by proof tending to establish a recognition of the note by the deceased as outstanding paper subsequent to the date of the receipt.

All the proof was submitted to the jury with proper instruction, and the finding was in favor of the plaintiff.

The verdict is well sustained by, the testimony, and we find no error either on the trial or in the charge.

The judgment should be affirmed, with costs.


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    Alexander B. Hudson, Resp’t, v. Cornelia J. Kowing, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Practice—Service of summons by publication—Sufficiency of affidavit TO GIVE JURISDICTION—TlME TO CORRECT JUDGMENT FOR IRREGULARITY—Code Civ. Pro., §438.
    Where the affidavit on which an order for service of summons by publication was granted, stated that the defendant is a resident of the state, on information and belief, and further, that the defendant was formerly a resident of a certain county in this state, and that she was then at a certain place in Hew Jersey: Held, that the affidavit showed that no diligence would be able to secure a personal service by reason of the absence of the party, and was sufficient. That it was toe late after judgment to allege an irregularity.
    Appeal from an order made at the Westchester special term, May 29, 1886, denying a motion made by defendant’s administrator to vacate a judgment against his intestate, recovered April 19, 1879, on the ground that the court never acquired jurisdiction over the person of defendant in the action.

      George Bell, for app’lt; Janies B. Lockwood, for resp’t.
   Barnard, P. J.

A judgment was entered in this action in favor of the plaintiff for $713.96, April 19, 1879.

The service of the summons was made by publication, and there was no appearance by the defendant. The claim was one for house rent and coal sold by plaintiff to defendant. By section 438, Code Civil Procedure, the court was authorized to direct the service of thé summons by publication, when the defendant was a non-resident, or the plaintiff with due diligence is unable to ascertain whether she was a resident or not, and in cases where the defendant has departed from the state with intent to avoid the service.

It is too late to allege any irregularity. The affidavit was sufficient to give jurisdiction to the court.

This was an action and the defendant was out of the state. It is true that the order for the order of publication stated that the defendant is a resident of the state as she was informed and believed; that the information came from a receiver of the defendant in New York who was infrequent correspondence with defendant.

The affidavit further stated that the defendant was formerly a resident of Westchester county in this state, and that she was then in Barnegat, New Jersey.

If the allegation that service could not be made in this state be disregarded, it was a fair inference from the facts that the defendant had either gone to New Jersey to avoid service, or that it was uncertain whether she was a nonresident or a resident of New York. It appeared that at the time she was in New Jersey and the teaching of the later cases, is to the effect that if the affidavit shows that no diligence will be able to secure a personal service by reason of the absence of the party, the affidavit is sufficient.

The order should be affirmed, with costs and disbursements.

Pratt, J., concurs.


author: Dykman, J.

text:
    Thomas Halpin, Resp’t, v. The Phœnix Insurance Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed Decemmber 14, 1886.

    Insurance (Fire)-Polict—When building is “vacant or unoccupied.”
    Where a factory was not in active use, but a tenant was being sought for, and all the machinery, tools and fixtures were in the factory, and there was a watchman who lived alongside of the factory: Held, not to be “vacant or unoccupied ” so as to render a policy of fire insurance void, which contained a provision that if the premises were at any time vacant or unoccupied, the policy should be void.

      Appeal from a judgment in favor of the plaintiff entered at special term, Kings county.
    This is an action to compel the defendant to execute and deliver to the plaintiff a satisfaction of a certain mortgage for $5,000, made by plaintiff and his wife to East Brooklyn Savings Bank, and subsequently assigned to defendant; and to deliver up the bond secured by said mortgage. This bond and mortgage were executed September 20, 1872. Prior thereto, in 1870, the defendant insured the premises described in said mortgage for $2,000, and when said mortgage was executed this policy was increased to $2,500, and given to said bank as further security for the mortgage debt. This policy contained the condition that if the insured premises were at any time vacant or unoccupied without consent of the company, the policy should be void. When this policy was transferred to the bank, the parties entered into and indorsed thereon the usual agreement as to subrogation.
    The said premises were also insured by the Williams-burgh City Eire Insurance Company in the like amount, loss payable to the same mortgagee. Prior to July, 1883, all business ceased at the insured premises, and the insured building with the machinery therein having theretofore been occupied as a morocco factory, was closed and locked up, and thus remained till January 4, 1884, when said premises were totally destroyed by fire. At the time of the fire a tenant was being sought for. All the boilers, machinery, tools and fixtures were in the factory; none of them had been removed. John Halpin lived right alongside of the factory, and was a watchman in charge. The agent of the respondent used to go to the premises about every day, and went there with an applicant for its rental a few days before the fire.
    The defendant was never notified or informed in any way of the condition of the insured premises, and never agreed in writing upon its policy that the insured premises might be vacated or unoccupied, nor did it ever agree in any way that said premises might be either vacant or unoccupied. On April 9, 1884, the Williamsburgh Company paid the mortgagee $2,500, which amount was then credited on the bond. The defendant, on April 17, 1884, claiming that no ¿ability existed on its policy to the plaintiff, paid the mortgagee the f u¿ amount of the mortgage debt then existing, being the sum of $2,585.63, and received therefor an assignment of said bond, mortgage and policy, and said defendant is now the owner of said bond and mortgage. On December 31, 1884, plaintiff offered to pay defendant $100, and the expenses incurred by defendant in and about said assignment on condition, and not otherwise, that defendant would execute and deliver to said plaintiff a satisfaction piece of said mortgage.

      John Oakey, for resp’t; B. II. & G. Ingraham, for app’lt.
   Dykman, J.

This action was brought to compel the surrender of a bond and mortgage, and its decision depended upon the determination of a question respecting the validity and force of a policy of insurance against fire issued by the defendant upon the premises covered by the mortgage.

It was the claim of the defendant that the premises became vacant and unoccupied during the period for Avhich the policy was issued, and that by virtue of a condition in the policy against such vacancy, the policy went out of force and became ineffectual and died.

The trial judge found upon evidence sufficient to sustain his finding that the premises were not vacant or unoccupied of the time of the fire, and gave judgment to the plaintiff awarding him the relief sought by his complaint.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs.


text:
    Collis P. Huntington, Resp’t, v. Henry Y. Attrill and William K. Soutter, App’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Corporations—Liability of directors for false certificate—Laws 1875, chap. 611.
    The R. B. I. Co., a business corporation, formed under chapter 611, Laws 1875, on February 6, 1880, elected defendants and others directors for the first year, and April 1, 1880, bought of defendant Attrill certain property, which Attrill had bought less than a year before for $80,000, paying $8,000 and giving a purchase money mortgage for $73,000. The corporation took this property, less twenty-one acres, assumed the $72,000 mortgage, paying Attrill therefor in stock of the corporation, $700,000, all of which (the entire stock of the corportion) was issued to him. On June 15, 1880, plaintifE loanedthe corporation $100,000. After the consummation of the sale of said property to the corporation, on June 30, 1880, the defendants and others subscribed and swore to a certificate of full paid stock, in which they state that the amount of capital paid in full was the sum of $700,000, the full amount of the capital stock of the company: Held, that there was sufficient evidence to show that the property was purposely taken at an excessive valuation and that the certificate was intentionally false. That the verdict of the jury that the defendant was liable was right, under section 21 of said act.
    Appeal from a judgment entered upon a verdict in favor of plaintiff at the Kings county circuit, and from an order denying a motion for a new trial made upon the judge’s minutes.

      Stewart & Boardman, for resp’t; Billings & Cardoza, for appl’t, Attrill; Vanderpool, Green & Cuming, for app’lt, Soutter.
   Dykman, J.

The Rockaway Beach Improvement Company was constituted in pursuance of the provisions of an act of the legislature designed to provide for the organization of business corporations, and passed June 21, 1875.

The certificate of incorporation required by the statute to give life to the company was filed in the office of the Secretary of State on the 18th day of February, 1880, and on the 15th day of June, 1880, the plaintiff in this action loaned to the company the sum of $100,000.

As an evidence of the debt and a promise for its payment the plaintiff received a promissory note for the full amount made by B. E. Smith, payable to the Rockaway Beach Improvement Company (Limited) on demand, with interest at six per cent per annum, and endorsed as follows: “The Rockaway Beach Improvement Company (Limited), by B. E. Smith, General Manager, 189 Broadway.”

The money was received by the corporation and expended for its benefit.

As security for the payment of the loan the plaintiff received $200,000 of the bonds of the company, for which it would seem he realized the sum of $932, and this action is brought for the recovery of the balance due on the loan, and it is based on the following facts: In the month of July, 1879, the defendant Attrill purchased from Littlejohn a plot of land containing about 140 acres for the consideration of $80,000. He paid $8,000 of that sum in cash, and executed a purchase-money mortgage upon the property as security for the payment of the remainder.

The amount of the capital stock of the company was $700,000,. and the defendant Attrill sold and conveyed the premises purchased by him of Littlejohn, minus twenty-one acres, subject to the mortgage of $72,000 which the company assumed, for the consideration of $700,000, and received his pay in the stock of the corporation, all of which was issued to him.

His deed of conveyance to the corporation bears date April 1, 1880; it was acknowledged on the tenth day of April and recorded on the seventeenth day of the same month.

On the 13th day of April, 1880, it was resolved by the company to purchase the property for the sum of $700,000, payable one-half in the stock of the company and the other half in cash, although Attrill testified that he knew nothing of that proposition to pay him one-half of the purchase money in cash until after the delivery of his deed.

No question arises upon these unimportant details, and the counsel for the appellant says in his points that no part of the capital stock of the company was paid in cash, and that it was all issued to the defendant Attrill in payment for the land conveyed by him to the company. So that fact is to be taken as settled.

On the 26th day of February, 1880, the defendants and others were elected directors of the company for the first year.

After the consummation of the sale to the corporation, and on the 30th day of June, 1880, the defendants and others subscribed and swore to a certificate of full paid stock, in which they stated that the amount of capital paid in full was the sum of $700,000, the full amount of the capital stock of the company.

Although that certificate was not literally true, yet it would have been constructively true and permissible under the statute if the property conveyed by the defendant At-trill to the company was received for the use and legitimate purposes of the corporation at its fair value. Section 14 of the law.

So conversely the certificate was false if the property at the time of the conveyance to the company was not fairly worth the sum of $772,000, and that is the claim of the plaintiff; nay more, the charge against the defendants is that they made an excessive valuation of the property intentionally and purposely, and so brought themselves under the condemnation and penalty prescribed by the twenty-first section of the law, reading as follows: “If any certificate or report made, or public notice given, by the officers of any such corporation shall be false many material representation, all the officers who shall have signed the same shall be jointly and severally liable for all the debts of the corporation contracted while they are officers thereof.”

These defendants are brought precisely within that section, and if they wilfully and intentionally fabricated a false certificate of full paid stock, as the plaintiff insists they did, then this action against them may be maintained on that ground.

So the question upon which the liability of the defendants was suspended was the intentional falsity of the certificate, and that depended upon the question in its rear, whether the property was purposely taken in at an excessive valuation. Most of the evidence adduced on the trial was aimed at that question, and a review of the testimony discloses but little encouragement to the defendants.

It would seem to require a jury possessed of almost infantine credulity to find that these defendants and their associates, endowed with intelligence and under control of their faculties and their experience, could honestly believe that the property conveyed was fairly worth the enormous sum of $772,000.

The charge of the trial judge was favorable to the defendants, and imposed upon the plaintiff a burden which was heavy almost beyond the requirements of the law-, but which he sustained so successfully as to obtain the verdict of the jury under the pressure of its heavy weight, and the verdict is well supported by the evidence.

The scheme conceived by these defendants and their associates, and partially carried into execution, is almost beyond the imagination of prudent men and verges on to folly, and if courts and juries fail to allow them credit for honest motives the failure results from inherent difficulties which seem to be insurmountable. The result may be unfortunate for these defendants, but their difficulties seem to be radical and beyond remedy.

We cannot interfere with this judgment. We have examined all the exceptions of the defendants disclosed by the record, with a care commensurate with the importance of the case, and we discover no error.

The judgment should be affirmed, with costs.

Barnard and Pratt, JJ., concur.


text:
    Susan W. Bryan, App’lt, v. Abram Viele, impleaded with Cornelia K. Viele, his wife, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Insurance—Fire—Premiums—Agent not liable for unearned.
    Plaintiff gave a note for the premiums of certain policies of fire insurance to defendant, who was the agent, and afterward delivered up the policies to the agent, demanding that they should be canceled and the unearned premiums returned, or that the loss should be made payable to 0., as trustee, to whom plaintiff had transferred the property. The agent had power to do so, and the policies provided that one or the other should be done, under the state of facts existing. The agent retained the policies- and refused to give them up on request. The defendant paid the note and obtained judgment against plaintiff for the amount which plaintiff asks to have satisfied. Leld, that she had no cause of action against the insurance agent, and the complaint was properly dismissed on demurrer. The insurance companies are alone responsible.
    Appeal from a final judgment entered upon an order made at a special term, Orange county, sustaining a demurrer on an amended complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action.
    The important allegations in the complaint are: The defendant, Abram Viele, an insurance agent, issued and delivered to plaintiff several fire insurance policies, and for a portion of the premiums thereon the plaintiff made and delivered to the defendant, Abram Viele, her promissory-note, payable to his order. That before the maturity of this note the plaintiff assigned and transfered her right, title and interest in the said subject of insurance, or the principal part thereof, together with the said policies, unto Henry J. Cullen, Jr., trustee, and afterward the plaintiff and Cullen delivered the policies to said Viele and requested him to note the transfer or cancel the policies, and return the unearned premium, which the agent, Viele, refused to do.
    That after such assignment, and at or about the time of the agent’s refusal to comply with the request as to the policies, the plaintiff sent to said Viele a renewal note and the interest upon the original, which renewal note said Viele refused to accept, but did not return. The complaint also alleges that after the maturity of the renewal note the Commercial National Bank of Saratoga Springs brought an action upon it against this plaintiff as the maker and said Viele as the endorser, and afterward entered a judgment therein, which judgment the said Abram Viele claimed to have paid the bank and have had assigned to his wife.
    The complaint asks to have this judgment satisfied of record on the ground that the plaintiff was injured by the refusal of Agent Viele to comply with her and Mr. Cullen’s request, and that the notes were without cons'deration.

      Wingate & Cullen, for app’lt; Elias H. Peters, for resp’t.
   Barnard, P. J.

No cause of action is set forth in the complaint. The defendant demurring is an insurance agent. As such he issued certain policies to the plaintiff. A note was given to the agent, I presume as an individual, for the amount of the premiums. This note was renewed in some way, and was unpaid. The note had been put in judgment by a bank which had discounted it before it was due. Before this first note became due, the plaintiff assigned the subject of the insurance or the principal part thereof to Henry I. Cullen, Jr., as trustee. The plaintiff and Cullen delivered up the policies to the agent, and demanded that the policies be cancelled and the premiums returned or that the corporation issuing ¿he policies should make the loss payable to said Cullen as trustee.

The agent had the power to do either act, and the policies provided that one or the other should be done.

The defendant, Viele, retains the policies and refuses to give them up on request.

The plaintiff has no right to the action against Viele. The first note was given for a good consideration. The second was a substitute for it. The corporations were bound to perform their agreement, and are alone responsible if they do not. If Viele endorsed the note first given and the renewal note, he simply in legal effect lent his individual credit to the plaintiff to borrow money to pay his debt.

There is, therefore, no basis upon which to correct the judgment which he paid upon recovery upon a debt as to which he was plaintiff’s surety.

The judgment should be affirmed, with costs.

Pratt and Dykman, JJ., concur.

Pratt, J.

The first note given by defendant was made for a good consideration.

Defendant does not allege that any agreement existed by which upon a transfer of the insured property she should be entitled to a repayment of the unearned premiums. Nor does she allege that Viele ever received any of the unearned premiums or in any way profited by the cancellation of the policies.

For all that appears Viele may have paid to the company and they may yet retain the whole sum "for which judgment was recovered against defendant.

Furthermore, by her assignment of the policies to Mr, Cullen, any supposed right to recover the unearned premiums was vested in him.

The second, or renewal note, is the only one upon which a-recovery has been sought.

Whatever Viele may have said as to his willingness to accept the renewal note, it is plain that it was in fact accepted.

The decisions below were right, and the judgment should he affirmed, with costs.


author: Dtkman, J.

text:
    Bridget Collins, as Adm’r, Resp’t, v. New York, New Haven and Hartford Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Negligence at railroad crossing—When for jury.
    Where there was a conflict of evidence as to the possibility of intestate’s seeing the approach of the train by which he was killed, and as to whether the signals required by law were given: Held, that it was properly left to the jury, and that their verdict will not be disturbed.
    Appeal from a judgment entered on a verdict in favor of the plaintiff at the circuit court of Kings county and f 'om an order denying a motion for a new trial on the judge’s minutes.
    This action was brought to recover damages for the" death of plaintiff’s husband resulting from injuries received at defendant’s railroad crossing on the West Farms high road in Westchester county. The intestate Thomas Collins was driving a carriage and span of horses at an ordinary gait on the 11th of February, 1885, along the West Farms road which crosses the defendant’s tracks at a very acute angle. For some distance before reaching the crossing where the accident occurred the defendant’s tracks descend by a heavy grade through a deep rock cut in which they cannot be seen from the highway until they emerge within a few feet from the crossing. At the time of the accident the triangle between the railroad and the highway was, according to plaintiff’s proof, entirely overgrown with a thick growth of trees and bushes varying from five to twelve feet in height running along by a stone wall and extending from the top of the bluff quite down to the track itself, so that by a traveler descending the hill to the crossing as Collins was doing, a tram approaching from the north, as the one in this case was, could not be seen at all until he was right upon the crossing. This was disputed by defendant who had had the trees and bushes cut down since the accident. One driving a carriage, in order to obtain any view towards the north, is obliged to look over his shoulder and behind him. There was considerable evidence that the whistle was not blown nor the bell rung as required by law, but this was disputed by defendant. There was no flagman kept at this crossing. And there was evidence that Collins was seen trying to see if there was a train.

      William E. Barnett, for app’lt; Frederic W. Adee, for resp’t.
   Dtkman, J.

The husband of the plaintiff was killed by a collision with a train of cars on the defendant’s railroad at a highway crossing in the town of Westchester in Westchester county and this action is for the recovery of the damages she has sustained by reason of his death.

A trial has been had and the plaintiff has received a verdict for $5,000 and the defendant has appealed from the judgment.

The negligence charged against the defendant was the omission to sound the whistle or ring the bell of the locomotive for the highway crossing where the accident befell, and there was testimony competent for the consideration of the jury to sustain the claim and there was also testimony tending to show a compliance with the requirements of the statute in that respect.

It was also charged against the plaintiff that her deceased husband contributed negligence which aided in bringing on his misfortune, and upon this allegation there was testimony also, but the question respecting his negligence depended mostly upon inferences to be drawn from facts and surrounding locations and circumstances, and so at the close of the testimony on both sides the case was one eminently proper for the jury, and it was given to that body in a charge which was free from error.

Being so, the case is one presenting but little scope for the interference of an appellate tribunal. If the jury found the facts and drew the inference, in favor of the plaintiff as we must now assume, then the verdict is sustained and we cannot disturb the same for want of proof.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


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    John J. Barton, Resp’t, v. William Govan, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Physician and surgeon—When liable for want of skill.
    Where the defendant, who was a physician and surgeon, so .set and treated a fracture of the thigh hone that the plaintiff’s leg was shortened two inches, and there was evidence that if properly set and skillfully treated the leg would not have heen shortened: Held, that the verdict of the jury giving plaintiff damages would not he set aside.
    Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury at the circuit court held in Rock-land county, and from an order denying a motion for a new trial on the minutes of the justice.

      Alonzo Wheeler, for app’lt; Crammond Kennedy, for resp’t.
   Barnard, P. J.

The plaintiff accidentally broke his leg. The defendant is a physician and surgeon who was called upon to set the fracture, which was an oblique one, in the upper part of the thigh bone.

The plaintiff was a man of sixty-nine years of age. The fractured bone united, but the leg was shortened two inches in its whole length. The plaintiff had received a fracture of his other leg in 1861, and a rib in 1850, and he received a fracture in the same leg below the knee in October, 1866. This was a tranverse fracture. The oblique fracture took some four months to unite and the latter one took about one month. The transverse fracture is more readily healed and is less liable to contraction of the leg, for the reason that the broken parts in the transverse fracture slip on account of the muscular contraction and the parts of the broken bone are not opposite. The leg must be extended so as to bring the broken parts exactly together, and there must be counter extension of the leg until the fracture heals. In the present case the broken parts of the bone were not brought together, or if that was properly done they were suffered to slip back, so that the final union was made with the bones overlapping one and a quarter inches, making a marked deformity and shortening the leg more than was necessary. The overlapping ends of the bone were not parallel, but at an angle, causing an unnatural prominence to the outward thigh and a like depression as to the inner parts of the thigh. There was considerable contradictory proof given as to the probable cause of the defect in the case, but none in the facts of the shortening of the leg and as to its present condition. The whole question was one of fact, where the evidence is not so preponderating as to justify an appellate court in reversing the finding of the jury. As to the hypothetical question put to Drs. Baily and Crary, the papers do not show that the questions were not based upon some evidence of the facts assumed in the question. There was so much of the testimony as was given by illustration from an apparatus before the jury, and which is not explained by the witnesses so as to be understood on appeal.

The question put Dr. Churchill and received under defendant’s objection as to his opinion of the treatment of the case by defendant, where the answer was stricken out as not responsive, would not justify a reversal. The same witness was subsequently permitted to give his opinion upon all the alleged defects in the treatment of the fracture by the defendant. No part of the answer stricken out was permanently left out of the case.

The judgment should therefore be affirmed, with costs.

Pratt and Dykman, JJ., concur.


text:
    Julia Frear, App’lt, v. Franklin Sweet et al., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Mortgage—What sufficient to release, from lien of.
    One F. 0., executed and delivered to F. S., a deed of a farm for $3,000, $500 of which was paid in cash, and the balance secured by the mortgage in question by F. S. to F. C., and at the same time F. 0. executed and delivered a release to F. S. of five acres of said farm from the operation of his mortgage, and F. S. and wife, executed a deed of said five acres to O. S., for $150, which was paid in cash and went to make up the $500 paid to F. C. Held, that the five acres was not included in the mortgage, and although the description included it, and the release was informal, still an innocent purchaser of the mortgage for value, could not enforce the mortgage against the five acres.
    Appeal from a judgment of the special term of Dutchess county exempting certain lands included in the land described in a mortgage from the lien of the mortgage.

      A. M. and G. Card, for app’lt; Esselstyn & McCarty, for resp’t.
   Dykman, J.

On the first day of May, 1873, Francis Creed, Franklin Sweet and his wife, and Clement Sweet, assembled themselves together at a certain place in Dutchess county for the consummation of a transaction in relation to real estate. What they did in that assembly was this: Francis Creed executed and delivered to Franklin Sweet a deed of conveyance for a farm of land, for the consideration of $2,500, $500 of which was paid in cash, and the balance was secured by the execution of the mortgage in question by Franklin Sweet to Francis Creed. Francis Creed executed and delivered a release t.o Franklin Sweet of about five acres of the same land from the operation of his mortgage, and Franklin Sweet and his wife executed and delivered to Clement Sweet a deed of conveyance for the five acres so released, for the consideration of $150, which was paid in cash, and went to make up the $500 paid in cash to Franklin Sweet.

The mortgage for $2,000 has come to the plaintiff by several mesne assignments, and this action is brought for its foreclosure, and the claim of the plaintiff is, that it covers the whole of the premises which it describes, and includes within its grasp the five acres conveyed to Clement Swreet.

The trial court decided that the five acres never were included in the mortgage, and the plaintiff has appealed.

Our views coincide easily with the decision of the special term. The transaction between the parties was an entire one, and free from all intricacy, and the law will write up the legal result. Francis Creed evinced no intention or expectation of holding the five acres within his mortgage, and Clement Sweet paid his money for the same on the delivery of his deed of conveyance, in the full expectation that his title was perfect, and all the other parties coincided in that belief. If his release was informal it was not invalid. He received the money paid by Clement Sweet, and with that money in his pocket, and his release in the hands of his mortgagor, it would be quite inequitable to permit him to gainsay and avoid the same.

. The plaintiff is in the place of the original mortgagee, and received by her assignment no more than he had to bestow. She is subject to all the equities that controlled him.

The judgment should be affirmed, with costs.

Pratt, J., concurs._


text:
    Matter of the Application of John A. Wells, Ex’r of the Last Will and Testament of Graham Wells, Deceased

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

      1. Decedents estate—Phoof of claims against—What is not sufficient.
    Where the executor of testator was his son, who had lived upon his premises for many years before the death of the father and had been engaged in the butcher business, but upon what principle does not appear as between the father and son, and no agreement having been made by the father with the son as to rent, and no account having been kept'between them of meat or money received by the father, until about twelve years prior, when only an account of money was kept, and the executor having forgotten the book in which such an account was kept, produced a transcript containing charges covering a half year. Reid, that it was not sufficient proof of an account against the estate of the deceased.

      2. Same—Contract—Services by one living as one of a family.
    Where, at the request of the testator, his grand-daughter left her husband to keep house for him and performed domestic services for him. Reid that she did not form one of the family, but that she stood on contract, and was entitled to compensation.
    Appeal from a decree of the surrogate of Orange county rejecting a claim of the appellant against the estate of the testator, and allowing a claim of the executor against said estate, and directing the sale for payment of testators debts, of real property, devised by the testator to the appellant and from an order directing such. sale.

      D. F. & H. Oedney, for app’lt, Elizabeth K. Bell.
   Barnard, P. J.

The claim which was allowed by the executor seems to be very imperfectly proven. He was the son of the testator and had lived on his premises for many years before his father’s death. A butcher business had. been carried on there and it is impossible to tell upon what principle as between father and son, from the testimony of the son. The father made no agreement for the rent with the son. He was to have what meat he wanted and what money. No account was kept of either meat or money until twelve years ago and then of money only. There was no new agreement made then and no reason given why any change was made in respect to the money. The executor testifies that he kept a book for twelve years of the money, but the book is forgotten by him and a transcript is produced and the record shows the following:

Q. You have said that the paper is a transcript from your book?
A. Yes.
Q. Amounting to $116.91.
A. Yes, sir. ■
Q. That’s never been paid to you or any part of it?
A. No, sir.

This is all-the proof in respect to this bill and the transcript covers a period of half a year from December, 1883, to May, 1884. I do not consider the account proven. The claim of. Mrs. Bell was fairly proven for some amount.

She was a grand-daughter of the deceased and had been brought up in his family.

The testator was old and feeble and his deceased wife’s sister kept house for him.

She died and the testator requested his grand-daughter to come and take care of him.

She was married and left her husband to go and keep house for the deceased.

Her husband visited her occasionally at the house of the deceased. The services she rendered were to a helpless old man of the very highest value. He had near him a person he loved and she did what only one so near to him would do.

The case is not unlike Markey v. Brewster, 10 Hun, 16; 70 N. Y., 607. There a daughter left her family to attend her father and make one of his family equally with Mrs. Bell, but she was decreed to stand upon contract and not to form one of the family.

Upon both grounds the judgment should be reversed with costs to appellant out of the estate.

Dykman and Pratt, JJ., concur.


author: Per Curiam.

text:
    FIRST DEPARTMENT, GENERAL TERM.
    Filed December 30, 1886.
    JAMES NASER, Respondent, v. FIRST NATIONAL BANK, Appellant.
    Appeal from judgment entered at circuit.

      F. A. Baker, for appellant; 8. Untemeyer, for respondent.
   Per Curiam.

We think the opinion formerly delivered in this case is contro'.ling.

The judgment should therefore be affirmed.


text:
    BENJAMIN C. THAYER, Appellant, v. JOHN DEMPSEY, Respondent.
    Receiver—When order appointing should be vacated.
    Appeal from order of the special term.

      Geoige W. Lord, for appellant; John MaGrone, for respondent.
   Per Curiam.

Upon an examination of the record and a consideration of all the facts and circumstances bearing upon the subject, we think that the court below was quite justified in vacating the order appointing Mr. Guiteau, receiver.

We quote with approbation, so far as they are applicable to the facts and circumstances referred to, the remarks of Justice Lawrence in the case of Fraser v. Hunt (Daily Register, Dec. 19, 1882).

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


text:
    WILLIAM H. CATLIN v. ADIRONDACK CO.
    Execution—Not set aside when decisions are conflicting.
    Appeal from order denying motion to set aside execution.

      W. H. Arnoux, for appellant; M. P. Stafford, for respondent.
   Per Curiam.

The application in this case depends upon what are urged as conflicting decisions made upon the point by the court of appeals. It is for that court, if the first decision is to be overruled in consequence of this conflict, to so determine and not for this general term.

The order should be affirmed.


author: Davis, P. J.

text:
    DAVID LEVY and another, Respondents, v. RUDOLPH MOELLER, Appellant.
    Attachment—Vacation of.
    Appeal from an order of the special term denying motion to vacate attachment.

      8. F. Kneeland, for appellant; Kurteman <Ss Veaman, for respondents.
   Davis, P. J.

This case involves the same questions presented in Hamburger v. this appellant, submitted and decided at the present term. The opinion of Mr. Justice Daniels in the last named case disposes of every question presented in this case, and is therefore controlling of the disposition to be made in this appeal.

Daniels and Brady, JJ., concur.


author: Brady, J.

text:
    WILLIAM MORRIS, Appellant, v. EMILY W. EMMONS, Respondent.
    Counter claim—When admissible—Code Civil Procedure, § 801.
    Appeal from an interlocutory judgment overruling the plaintiff’s demurrer to .the counterclaim interposed by the defendant.

      ■7. H. Whitelegge, for appellant; Frank E. Smith, for respondent.
   Brady, J.

The complaint in this case is very justly criticised in the opinion. of the court below because of its complex character. The plaintiff’s cause of action seems to have originated in a lease bearing date the 24th of March, 1885, between himself and the defendant, and by which he was to pay for' the premises demised, the annual rent of twenty-four hundred dollars, in equal monthly payments in advance. And it is alleged that the execution of the lease by him was accomplished by fraudulent devices, and further that he demanded possession, which was withheld. And by reason of these deceits and wrongs he claims damages. The counter-claim, it clearly appears, is one for the rent agreed to be paid by the lease mentioned. No doubt can be well entertained on that subject.

Assuming that to be a correct view of the outcome of the pleadings there can be no doubt that it is connected with the subject of the action, and, therefore, admissible. Code, § 501. We concur, therefore, in.tlre views expressed by the learned justice in the court below, and think that the judgment should be affirmed with costs, but with liberty to the plaintiff to reply.

Davis, P. J., and Daniels, J., concur.


text:
    THE JESSUP & MOORE PAPER CO., Respondents, v. WILLIAM H. COX AND STEPHEN H. SMITH, Appellants.
    New trial—When will not be granted.
    Appeal from judgment and order denying new trial.

      Roderick Robertson, for appellant; E. tí. Converse, for respondent.
   Brady, J.

The issue in this case was submitted to the jury by the learned judge presiding, in strict accordance with the views expressed by the general term when this case was before it ■ heretofore. The charge was clear and explicit, and no exception was taken to it, and no request to charge made. The verdict, upon the legal propositions ennunciated as suggested, is sustained by the evidence, and the exceptions taken during the trial furnish no reason for disturbing the judgment. In other words, unless the ruling of the general term is erroneous, the liability of the decedent’s estate is beyond doubt, on the finding of the jury made herein.

For these reasons the judgment must be affirmed, with costs.

Davis, P. J., concurs.


text:
    HENRY WELSH, Respondent, v. JOHN TAYLOR, Appellant.
    Streets and alleys—Assertion oe rights granted eorty years ago— Adverse possession.
    Appeal from judgment of the special term.

      S. Riker, for appellant; M. 7. Keogh, for respondent.
   Davis, P. J.

This action was brought by the plaintiff as the owner of certain lots of land bounding on Franklin street in this city, to establish his right to the use of the alley between his lots and certain lots owned by the defendant, and to compel the removal of all obstructions to such use, and especially the removal of a four-story brick building erected by the defendant in the year 1878, on the southerly portion of the alley extending across its full width and entirely covering the southerly twenty feet thereof. At the time of the erection of the building, the premises now owned by the plaintiff were owned by Smith Harriott, Frederick B. Harriott and Estelle Harriott, and by Mary N. Campbell, their mother, through or from whom the plaintiff subsequently acquired his title to such lots. The court below found that neither of the owners of these lots had any knowledge as to the defendant’s building upon the alley until after said building was completed. That finding seems to have been against the evidence in the case.

Smith Harriott, one of the owners of the lots now owned by the plaintiff, testified that he was informed by his mother at the time Taylor and Wilson were putting up the building in the rear of the lot that such building was being erected, and that he made no objection to the erection of the building, and that none of the owners or occupants of the premises objected to the erection of such building to his knowledge. Mrs. Campbell, the mother of Smith Harriott, was the owner of No. 145 Franklin street, and the life tenant of 143 Franklin street; and this testimony shows that she knew of the fact, and so informed her son Smith Harriott, and the finding in this regard should have been in accordance with this evidence, instead of the finding that neither of the owners of 143 or 145 Franklin street had any knowledge of said defendant’s building upon said alley until after said building was completed. The suit being an equitable one, a finding in accordance with the evidence in this respect would certainly have been of importance at least in determining the question of costs in the action, for it would have shown some degree of bad faith in permitting the defendants to proceed with the erection of the building without any objection or assertion of their rights on the part of the then owners. The court found at the request of the defendants that “ during the last forty years at least, the owners of 139 and 141 Franklin street have paid all the taxes and assessments which have been laid on the said alley, and have paved and kept the same in order at their expense. During such period neither the owners nor occupants of 143 and 145 Franklin street have paid any part of such taxes, assessments or expenses for paving and repairs.”

The right to use the alley granted to the owners of lots No. 143 and 145 Franklin street was expressly subjected to the bearing and paying of a just proportion of the expenses of regulating and repairing the said alley, and of such taxes and assessments as might be imposed upon the same. The evidence strongly tended to show that for the purpose of avoiding the performance of that obligation, the owners of 143 and 145 Franklin street had purposely refrained from making any use of the alley under the granting of the right to use the same contained in their deed, and have left the owners of the lots on the other side of the alley to bear the entire burden of the expenses of regulating and repairing the alley and of paying all taxes and assessments imposed upon the same. This fact found by the court was a very important one when taken into connection with certain other facts, the finding of which was requested but refused, one of which was “ that the alley had not been used by theowners or occupants of 143 or 145 Franklin street, the property of the plaintiff, since 1842. In 1846 there was a gate across the alley at Franklin street, and such gate was continuously maintained until 1879, when it was torn down by the plaintiff without the defendant’s consent;” and “ that since 1842 the premises, 143 and 145 Franklin street, have been separated from the said alley by a high, close-board fence, through which there was no gateway or passage to the alley.”

The fact that such close-board fence was erected upon the line of these lots, and between them and the alley for a very considerable portion of the distance, was clearly established, and that there was no gate or regulary constructed passageway through the fence to the alley; but at some time late in that period a hole was broken through by some tenant of the property to go thence into the alley to get water at a hydrant therein. That was certainly not such a use of the alley as was contemplated by the grants. By whom the hydrant was constructed does not appear. It was placed there doubtless to accommodate the tenants of property facing on the alley and constructed on the rear portions of property now owned by the defendant. No proof is given that the tenants of 143 and 145 Franklin street had the right to use the hydrant, and their entrance upon the alley by breaking a hole through the fence for the purpose of getting that water was not the kind of user contemplated by the original grants.

We think upon the evidence the court ought to have found substantially as requested by the defendant in respect to the non-user by the owners or occupants of 143 and 145 Franklin street, and this fact, taken in connection with the fact found that neither the owners nor occupants of those lots had paid any part of the taxes, assessments or expenses for paving and repairs, would go very far to establish the defendant’s claim that the right to use the alley had been abandoned for the long period of about forty years for the purpose of escaping the burden of maintaining and paying taxes upon the alley. If these facts had been in accordance with what seems to be the weight of the evidence, then the questions raised by the defendant would have been "presented in a shape very different from that which they now assume. It is hot necessary for us at this time to decide that they would have been abso- ' lutely controlling of the right to recover, as asserted by the plaintiff, or would have constituted a complete defense to his demand. If the evidence called . for the findings asked for by the defendant, such findings should have been , made in order that the case might be presented under its real aspects to the ' appellate tribunal. The learned court seems also to have erred in finding that the alley on Franklin street was eight feet four inches in width. The deeds described it as an alley of about seven feet, and the map or plan accompany- . ing the deeds seem to indicate it at seven feet nine inches, and the evidence does not seem to have justified the finding that it was eight feet four inches at . that point although wider in other parts. This, however, was an error which could have been corrected by modifying the judgment, and allusion is made to it for the reason that on another trial all doubt on that subject can be removed. The defendant, at the time the plaintiff took his deed under which he claims the right to the use of the alley and to compel the plaintiff to remove ¡ the brick structure which he had erected upon twenty feet of the rear of the same, was in possession of that portion of the alley covered by his four-story ; building, claiming the right to hold it in hostility to the alleged right thus granted to the plaintiff. The right to use the alley depended altogether upon grant, and was not an appurtenant in the nature of a running stream crossing the premises, nor in the nature of a right in a public highway belonging to the adjacent owner. In other words, it was something dependent entirely upon the grant executed by a prior owner, and therefore we think that it is very questionable whether the defendant, under the statute, could not assert his adverse title against the validity of the deed to the plaintiff made while he was in possession of that portion of the alley, claiming it adversely to any such right. That, however, is a question which need not now be definitely decided, because it will necessarily arise at some future stage of the case and it only affects such portion of the claim to the use of the alley as is actually covered "by the brick building. The natural equities of this case are by no means, as we think, with the plaintiff, who is seeking to assert rights granted in an alley by the owner of the property more than forty years ago, without any offer to do equity by paying any portion of the taxes or assessments or expenses in maintaining the alley during that long interval; and we think the case ought to go back for a new trial for the purpose of having the facts more definitely determined on the questions above referred to, in which the court refused to find in accordance with what seems to us to have been the substantial weight of the testimony.

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

Daniels and Brady, JJ., concur.


author: Daniels, J.

text:
    IN THE MATTER OF THE ESTATE OF JOHN B. PAGE, Deceased.
    Administration—When decree or order appointing public administrator WILL NOT BE VACATED.
    Appeal by the widow and next of kin of John B Page, from an order denying a motion to vacate a decree or order, and set aside letters of administration issued to the public administrator in the city of "New York.

      Alfred B. Page, for appellants; L. S. Arnold, for respondents.
   Daniels, J.

The intestate died in the city of New York, the owner of policies of life insurance, forming part of his estate. He left no person resident there, entitled to letters of administration upon his estate, and an application was therefore made for the issuing of letters to the public administrator. Notice of this application was published, as that was required to be done by the law, and on the day assigned for the appearance of the parties, counsel appeared before the surrogate on behalf of the widow and heirs-at-law of the intestate, but as the case was not upon the calendar for that day, it was not called, neither was any disposition made of it by the surrogate. It accordingly stood over ready to be heard whenever in the ordinary course of the busines; of the court it should be brought to the attention of the surrogate.

After this failure to bring on tlie case on the day assigned for its hearing, an" interview took place between the counsel representing the different parties, in which an effort was made to agree upon some day when the case should be. heard, but no agreement was made, and in the absence of the counsel representing the widow and next of kin, and on the 1st day of May, 1886, the case was brought to the attention of the surrogate, and an order was made direct-. ing letters of administration to be awarded and issued to the public administrator of the city. And it was to vacate this order or decree and obtain a hearing of the application, that the motion was made which was denied by the order from which the appeal has been brought. It was not designed in support of the application to vacate the order, that the widow, or either of the . next of kin, should take out letters of administration upon this estate, but it was proposed by the counsel who1 secured the appointment of the public administrator, that the next of kin or widow, might apply to the surrogate for letters of administration on this estate. That, however, was not done, neither was any indication given that it would be done if the proceeding then pending before the surrogate was continued to some definite later day. What the appellants desired and designed, was not to secure another or different appointment, but to resist the application made for the appointment of the public administrator. His appointment was secured at the instance and for the benefit of creditors of the intestate in the city of Hew York, and to revoke it would - have a tendency to derange or defeat their rights. There was no meritorious . ground disclosed in support of the application. But it appeared to be dependent more on technical objections to the appointment of the public administrator, than prompted by a desire to secure the settlement of the estate through the intervention of any relative to whom letters of administration might lawfully be issued. The surrogate considered that this would not justify a further hearing, or discussion, of the case, and in that he seems to have been right, and the order should be affirmed with costs.

Davis and Beady, JJ., concur.


text:
    JANE H. COWDREY, Appellant, v. AMBROSE R. ELY, Respondent.
    Stock—Offer to purchase—Withdrawal op oppeb
    Appeal from judgment entered on report of referee.

      D. H. Chamberlain, for appellant; Freling S. Smith, for respondent.
   Davis, P. J.

The learned referee disposed of this case in the following brief opinion: “ When Lambert offered Corse 1,000 shares of the Minnesota stock at sixty, Corse replied that he would take 500 shares at fifty-five. Ho con- ■ tract was made until Cowdrey accepted this offer of Corse. This offer could be withdrawn at any time before acceptance by Cowdrey, and I am satisfied that it was so withdrawn by Corse before any acceptance by Cowdrey.

The letter of Lambert, of October 30, could not have the effect of making • any contract when all proceedings had been terminated by Corse.

This conclusion renders it unnecessary to discuss the other defenses urged in this case.'’

Upon the facts as found by the referee, this disposition was clearly correct, and the only question before us is whether there was sufficient evidence to justify his findings. A careful examination of the case satisfies us that the ■: findings and conclusions of the learned referee are abundantly sustained by the evidence.

The testimony it is true leaves the question as to the precise point of time at which the offer of the defendant’s testator to purchase the 500 shares of stock was withdrawn, somewhat in doubt, but a careful analysis of it shows that the withdrawal of the offer preceded its submission to and attempted acceptance by the plaintiff’s testator.

The judgment should be affirmed.

Daniels and Beady, JJ., concur.