author: O’Brien, J.

text:
    Jennie E. Maddock, Resp’t, v. George Steele, App’lt.

      {Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Partnership—Nominal partner.
    Where the parties enter into a partnership agreement, in order to avoid the effect of § 363 of the Penal Code, it is no defense to an action by the nominal partner to wind up the alleged partnership that she had no interest in the business.
    2. Same—Construction.
    The agreement, in this case, was construed to constitute a loan to a member of a firm a partnership liability.
    Appeal from a judgment in favor"of plaintiff.

      A. W. Kent, for app’lt; P. W. Hinrichs, for resp’t.
   O’Brien, J.

To present the questions intended for review, the defendant has submitted a double record, substantially the same, but in form different, the one being a case and exceptions on a motion for a new trial, and the other a case on appeal from interocutory judgments. As, in either of these ffirms, every question that the defendant seeks to raise, is before us for review, we shall consider them, without reference to the distinct form in which they are presented, as though embodied in a single record. Though the main question, as to the status of plaintiff and her right to maintain this action, was directly passed upon when this case was before this court upon a former appeal from an order continuing an injunction and appointing a receiver (see 68 Hun, 522; 52 St. Rep. 754), we are asked to review the question anew in the light of what are claimed to be some additional facts, and a reference to the statutes affecting the use of copartnership names, which counsel says were not brought to his notice at the time of the former argument dr decision.

It appears that a firm, of which plaintiff’s husband was a member, had conducted for many years prior to 1887, the business of importers of and dealers in earthenware in New York, to which business the plaintiff’s husband, by the retirement of the other member, succeeded in 1887. After continuing it until the fall of 1889, he determined to retire from business ; but with a view to preserving the same, which had been found to be a business of profit and value, until such time as his son Sidney should become of age, in January, 1893, he (and subsequently the plaintiff herself), entered into certain agreements with the defendant, who up to that time had been acting in the capacity of a clerk. Some of these agreements are alleged to have been oral, and° three are in writing, defining the terms, conditions and limitations under which the business was to be conducted. Of the written agreements, the first is dated September 1, 1889, and is as follows:

“Articles of agreement made on the first day of September, eighteen hundred and eighty-nine, between Henry Haddock .’and George Steel, both of Brooklyn, New York. For the considerations hereinafter set forth, Henry Haddock agrees: To sell and transfer unto George Steel, on the first day of January, 1890, the good will of the business now carried on by Henry Haddock in the city of New York; also, the right to use the name of Haddock, either alone or jointly with his own name (so far as such right may be legally exercised), in conducting said business. To secure to George Steel from January first, 1890, the exclusive agency of Hessrs. John Haddock & Sons, of Staffordshire, England, for the sale of their products within the United States, on terms substantially similar to those now enjoyed by Henry Haddock. To lend to George Steel the sum of ten thousand ($10,000) dollars in cash, to be used as capital in the business, and to lend to him also such additional moneys from time to time as may be required, in the judgment of Henry Haddock, to properly conduct the business, and to indemnify George Steel against any losses in 'said business, to the extent of one-half of such losses. For the consideration hereinbefore set forth, George Steel agrees: To contribute ten thousand ($10,000) dollars in cash as capital, exclusive of said loans, to continue the business substantially as now conducted, and to devote his entire time thereto. To pay Henry Haddock interest at six per cent. (6%) per annum on his advances semiannually. To employ Sidney Haddock in the business from the first day of January, 1890, and to pay him, for his services, sums of money equal to one-half of the net profits, after deducting interest on capital at six per cent, per annum, which profits shall be determined yearly; and to admit him as an equal partner on the 26th day of January, 1893, upon his contributing to the capital a sum in cash equal in amount to that contributed by George Steel,'and then standing to his credit on the books. . That he will not lend the funds, credits, or effects of the business for private accommodation. It is mutually agreed: That George Steel and Sidney Maddock may, if they so desire, anticipate yearly profits to the extent of twenty-five hundred ($2,500) dollars each, and may draw that sum in monthly installments. That the usual books of account shall be kept, which shall be open always to the inspection of either party, and Sidney Maddock also. That the partnership name shall be Maddock & Steel. That in the event of the death of George Steel or Sidney Maddock the business shall be continued by the survivor, and the interests or profits which would have been enjoyed by the deceased hereunder shall be paid to his legal representatives from time to time until • the termination of this agreement; provided, however, the survivor shall receive in' addition to his share of the profits three thousand ($3,000) dollars yearly for his personal services, which amount shall be charged to general expense account, and no profits shall in such case be anticipated.
“ Witness the hands and seals of the parties hereto in the city of New York.
“ Executed in duplicate. Henry Maddock. [l. s.J
“ George Steel. [l. s.J
“In presence of-.”

The other two in writing are both dated December 20, 1889, and are as follows:

“New York, Dec. 20th, 1889.
“ Whereas, it is the desire of the parties to the foregoing agreement that the business therein set forth shall be conducted under the name of Maddock & Steel; and, whereas, it is .doubtful whether the name of Maddock can be legally used until Sidney Maddock attains his majority and becomes a partner, in 1893; and, whereas, Jeanie E. Maddock, wife of Henry Maddock, has consented to become a partner in the meantime: Now, therefore, for the purpose of enabling George Steel to carry on the business under the name of Maddock & Steel, Jeanie E. Maddock is hereby constituted a partner under said agreement until January 26th, 1893, and her interest is hereby declared to be one-half of the compensation provided in said agreement to be paid to the said. Sidney Maddock. “Henry Maddock.
“George Steel.
“Agreed to. . “Jeanie E. Maddock.”
“New York, December 20th, 1889.
“All differences arising under the foregoing agreements, of date September 1 and December 20th, 1889, shall be determined by arbitration.- Two arbitrators shall be appointed,—one by George Steel, and the other by Henry Haddock,—and, in the event of their failure to agree, such arbitrators shall select a third arbitrator, whose decision shall be final, and binding upon the parties to the controversy.
“Henry Haddock.
“George Steel.
“Jeanie E. Haddock.”

Subsequent to the date of this last agreement of December 20, 1889, each party arranged to carry out the terms of the agreements, and as a result the business and assets of the old firm were transferred to the new, so that the latter was in a position to begin business on the 1st of January, 1890, which was the date agreed upon by the parties. All the assets and good will of the old firm were turned over; the $10,000 agreed to be loaned by Henry Haddock was advanced; and the $10,000 additional, which the defendant was to contribute to the capital, was borrowed from his attorney, who had procured the same as a loan also from Henry * Haddock. The business was thereafter carried on under the firm name of Haddock & Steel until the son became of age, at the time fixed for the termination of the relation between plaintiff and the defendant, when the son declined to become a partner; and, the affairs of the business being unsatisfactory, the plaintiff commenced this suit, claiming to be a partner, and asking for the appointment of a receiver, an accounting and the winding up of the business.

The defendant insists now, as throughout the litigation, that the plaintiff was not a partner, and therefore had no status to maintain the suit; claiming, in effect, that her status was but that of a nominal partner, or at least a trustee with the defendant for the purpose of preserving the business until the coming of age of her son, when a partnership was to be formed. This theory, that the relation was that of trustee, is sought to be strengthened by reference to the allegations of the complaint, wherein it was charged that it was “intended by and orally agreed between the parties to said instrument that said Steel should simply conduct the business after said Henry Haddock’s retirement, on January 1, 1890, and during.his said son’s minority,-in order to preserve the same, and should hold the same meanwhile in trust for a partnership to be formed of said defendant, Steel, and said ■ Sidneys Haddock, when the latter should have reached majority.” In this view, it is insisted that there could not be a complete determination of the rights of the parties without the presence of Henry Haddock and the son Sidney, and that for this, and the additional ground that it is an anomaly for one trustee to sue the other for the purpose of dividing between them the property of their cestui que trust, «he judgment should be reversed. This argment of the appellant is founded upon a narrow and restricted view taken of the relations between • the parties, and of the- rights that were conferred upon the plaintiff by virtue of the agreements themselves. If there were only the original agreement of September 1st, there . paight be some force in appellant’s position, because, although that speaks of a partnership, it is evident that the parties, thinking that the minority of the plaintiff’s son was an insuperable obstacle to his entering into a partnership, determined to accomplish what could have been achieved by a partnership in another way, leaving a half interest in the business in such a condition that the son would succeed to the same upon his majority, and that during the interval the business would have the benefit of the name of Haddock as part of the firm title. The error of this last assumption was discovered when attention was called to the statutes preventing the use of fictitious names, and then followed the subsequent agreements, which we have given in full. It would be of no advantage to analyze and determine the exact relation established by the first agreement, because, in view of all the facts appearing, it is undisputed that a change was effected in the original arrangement by the agreements subsequently executed, and to determine what was the relation of the parties on the 1st of January, 1890, an examination is necessary of all the agreements, with the light thrown thereon by the surrounding circumstances and the conduct of the parties. That the plaintiff and defendant were not trustees to preserve the property itself is evident from the nature ■of the business, which involved the sale of stock and the constant replenishing thereof, but the intention was to constitute an arrangement between the parties by' which they could continue the business in such a way that the defendant would have a half interest and the Haddocks the other half interest until the son became of age, when he could enter into possession as a full partner with the defendant. In the meantime, both by the terms of the agreements themselves and the position of the parties with respect to creditors, it is clear, both upon the facts and the law, that their status was that of partners. As stated by this general term upon the former appeal (68 Hun, 524; 52 St. Rep. 754): “The question as to the right of the plaintiff to maintain this action does not depend upon the interest that she may have in the assets of this copartnership, but it does depend upon the fact as to whether the relation existing between herself and Steel was that of copartners. This rests upon what was agreed between these partners. For the purpose of avoiding the penalties of the statute preventing the use of the names of partners who were not interested in the business, this subsequent agreement was made, as appears upon its face, and business was conducted under it. How, after the parties have agreed between themselves, for the purpose of avoiding a prohibition contained in a statute, that they are partners, certainly they cannot come into a court of equity, and claim that, because the interest was not sufficient, therefore no copartnership existed."’

notwithstanding the argument based upon the wording of the statute relating to the use of fictitious names, and the claim that a nominal partnership complies with the statute, we find no reason for departing from our former view, which is strengthened and enforced by resort to the history of the statute in question. The original statute was chapter 281 of the Laws of 1833, and was the basis of § 363 of the Penal Code, which reads: “A person who transacts business, using the name as a partner of one not interest with him as partner, or using the designation ‘and. Company’ or Co., when no actual partner or partners are represented thereby, is guilty of a misdemeanor.’’

The original law of 1833 read: “No person shall hereafter transact business in the name of a partner not interested .in the firm.”

And the change in the language in the Penal Code from “not interested in the firm ” to “ not interested with him as a partner” seems clearly to be aimed against the evil of nominal partnership. Upon the law, therefore, there is no escape from the conclusion that the plaintiff was an actual partner. Apart, however, from this, and upon the facts, it appears that, while she did not take an active part in the affairs of the business (being represented by her husband, who did), nevertheless she was recognized throughout as the one who, together with the defendant, had the legal title to the assets and good will of the business. Thus, her status, as correctly held by the judge at special term, gave her the right, upon proof of the acts complained of, and in view of the condition of the firm, to maintain the suit for a dissolution, and the relief accorded was the natural sequence. In such an action neither Henry Haddock nor his son Sidney was a necessary party to a complete determination. Henry Haddock never had or claimed any interest other than that.of a creditor; and though the word “trust” is used in the complaint, and spoken of by the parties as relating to the son Sidney, it must be taken in connection with the conceded facts as to its meaning. There was no intention, expressed or implied, to constitute the plaintiff and defendant trustees for the son Sidney; the purpose being to constitute a partnership between them, to the end that the business might be continued, and, upon his majority, that Sidney might take his mother’s place as a partner in the firm. The son, as a matter of law, never acquired any actual interest in the assets or good will of the firm, nor had he any claim that he could enforce until he became of age; and what claim he then might have had it is not necessary to determine, because it is eliminated from our consideration by the fact that when that event occurred, upon which any rights of his might be vested, he declined to take advantage of the agreement in his favor, entitling him to enter into the firm as a partner, and therefore had no interest that would embarrass an adjustment of the affairs of the copartnership between those who alone were interested, as between themselves and the creditors, in having it wound up.

A more serious question presented is as to whether or not the moneys advanced by Henry Haddock, in the shape of a loan, were to the defendant personally, or to the copartnership. The original agreement provides for a Joan to defendant of the sum of $10,000 “ to be used as capital in the business, and to lend to him also such additional moneys, from time to time, as may be required, in the judgment, of Henry Haddock, to properly conduct the business.” The language thus used must be interpreted in the light of the situation of the parties at that time. This first agreement, of September, was directed to a situation in which there was an identity between the firm or business and the defendant personally; and, though it provided that the partnership name should be Haddock & Steel, it is coriceded that it was not then contemplated that any of the Haddocks should enter as a partner, but that the son should enter the employ of the firm at a compensation equal to one-half of the net profits. As there was but one person having legal title to the assets and business, there was in reality no copartnership. This, however, was cured, as we have attempted to show, by the subsequent agreements between the parties; and when the identity between the defendant and the firm was severed, and he no longer constituted the entire firm, it is not logical to contend that the language applicable to the first condition is not to be construed in the light of the other agreements, which effected a change in the condition itself. In other words, when the defendant had the entire business, a loan to him, to be used as capital in the business, was practically the same thing as a loan to the business; and that it was never contemplated that these should be personal loans becomes evident from the language that follows, which shows that the amounts in addition to the first that were to be advanced by Henry Haddock depended upon his judgment as to their being essential for the proper conduct of the business. So far, therefore, as the $10,000 is concerned, and the other amounts advanced from time to time, we think the learned judge below was correct in holding that they were advanced to the partnership, and that Henry Haddock is a creditor of the firm, and not of the defendant personally.

In regard, however, to the $10,000 borrowed by the defendant of his attorney, and placed in the business as a contribution to the capital, a different view is to be taken. Ho matter where the attorney got it —whether from Henry Haddock or not—it was a loan made by the attorney to the defendant, for which he was not responsible to Henry Haddock, and which Haddock could not claim, as against the defendant or the business, but which was borrowed by the attorney, as it appears, upon security, and has since been paid to Haddock, and was contributed by the defendant, after procuring it, as his part of the capital. As to this amount, therefore, he is entitled to credit; and to that extent, and that only, do we think the findings should be corrected.

In addition to the principal questions which we have discussed, there are numerous exceptions pressed upon our attention, relating to the admission or rejection of evidence, to findings and refusals to find, to refusals to dismiss, and finally an exception to the refusal of the court to grant a postponement of the trial. It is unnecessary to go over in detail each and all of these, some of which are technically good, but not of sufficient importance to justify a reversal of the judgment, which, upon the facts appearing, was right; and, if all that is claimed by the appellant were allowed, it would in no way affect the result. For instance, if any serious question had been presented as to the effect of plaintiff’s testimany, if produced upon the trial, there might be some strength in the exception taken to the refusal of the court to grant a postponement of the trial in order to enable the defendant to produce and examine her., Assuming, however, that the defendant was not guilty of loches,—which is by no means clear,—but considering the other question, as to the materiality and influence of anything that the plaintiff could testify to, the concession made by the plaintiff’s attorney that she did not, in person, participate in the business of Haddock & Steel, coupled with the finding upon the evidence that she did not personally contribute any capital, strengthened as much as her evidence could have done appellant’s contention that she was but a nominal, as distinguished from an actual, partner. In this state of the record, her testimony was not very material, and as the defendant had not secured her attendance upon the trial, or taken her testimony by commission, he had no legal ground of complaint.

Upon the records, therefore, we think that the motion for a new trial should be denied, and the judgment affirmed, with costs, and appeal from original judgment dismissed, without costs.

All concur.


source: Caselaw Access Project

author: Kellogg, J. Herrick, J.

license: Public Domain

text:
    Hiram Tompkins v. Cornelius Sheehan.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    Evidence—Declarations.
    A conversation between the agent who made the sale of stock, the plaintiff and the other owners of stock, before the sale was comtemplated, to the effect that none of such owners would sell unless all sold, is not admissible upon the issue as to whether the sale of stock included shares owned by the plaintiff.
    Reargument.

      J. W. Crane [JSdwin Countryman, of counsel), for app’lt; Charles S. Lester, for resp’t.
   Kellogg, J.

The one question upon the trial was: Were the 200 shares owned by plaintiff included in a sale to defendant of shares in the Congress Spring Company consummated December 19, 1890 ? At that date 1,785 shares were delivered to defendant, and paid for by him. These 1,785 shares were owned, before sale to defendant, by other parties than plaintiff. The plaintiff claims that the sale in fact included his 2Ó0 shares, and made the number of shares actually sold 1,985. The plaintiff’s shares were not delivered with the others, nor were they paid for: The sale was negotiated on the part of the. owners by Mi: Bockes, acting for himself, as owner of a number of the shares delivered, and as agent for the other owners,—each owning and holding his stock in severalty; The agency of Bockes was wholly created by authority from each owner separately, obtained by direct communication with each a short time prior to the delivery of the 1,785 shares, and after the proposal to buy made to him by defendant through his agent, Mr. Crane. This is the testimony of Mr. Bockes, and is undisputed. None of the owners of stock other than Bockes were present at, or have any knowledge of, the negotiation leading up to the sale, or of the terms of the sale. This .simple question of fact was before the jury: Was this sale a sale of 1,985 shares or a sale of 1,785 shares ? Obviously, it should have been determined by what was said and done between Bockes on one side and defendant, Sheehan, and his agent, Crane, on the other, and the knowledge each was chargeable with of existing pertinent facts.

On the trial, Bockes, as witness, gave in substance his version bf what was said and done. He was flatly contradicted by witness Crane and Sheehan as to all, or most, of the material matters tending to establish plaintiff’s claim, and in a degree, perhaps, contradicted by his own written memoranda, and by plaintiff’s telegram one day after the delivery of the 1,785 shares. To corroborate the testimony of the witness Bockes, or to add to its weight and credit in the minds of the jury, the plaintiff offered -to give in evidence a conversation between witness .Bockes, the plaintiff and the other owners of stock, had long anterior to the sale, and long before any sale to defendant was contemplated, to the effect that none of these owners would sell his stock unless all sole. A serious struggle, and a prolonged one, as the printed case shows, took place in the presence of the jury over the admission of this testimony. The conclusion is not unreasonable that the jury were led to believe that this evidence was of great weight, perhaps the turning point in the case. A juryman’s natural course of reasoning, respecting this conversation, would be: “ This witness says there was a conversation between the owners of the stock at some time. No one disputes it. Neither Crane nor Sheehan can dispute it. They were not present. The conversation amounted to an agreement that neither owner would sell unless all sold. That means, that if either broke this agreement, he would become liable in an action for damages brought by the injured one. Is it likely that Bockes would.take that risk, subject himself to such an action by the plaintiff? ”

Without instruction that such agreement had no binding force, —was absolutely void for lack of consideration, if for no other reason,—our common experience teaches that the effect of such evidence upon the minds of a lay jury would be very great, and in the line indicated. But suppose the jury had been instructed that such an agreement could be only binding upon the conscience, then does not the conscience of this witness become the subject of inquiry to determine how much weight by probabilities this jury ought to attach to it? “ He would not have sold the 1,785 shares because in conscience he was bound not to sell unless he sold 1,985 shares.” This is the plaintiff’s argument, with the court’s approval. Suppose, now, defendant had offered to show that the witness in fact had no conscience, and the argument ought not for that reason to have any weight. Would the trial court have permitted it? Certainly not.

But plaintiff’s counsel says that the witness communicated this conversation to defendant. What was said to defendant is competent ; for that the defendant could either admit or deny. But this could furnish no ground for giving a conversation had when defendant was not present, though it were the same conversation ; for that the defendant could not deny. If communication to defendant could furnish ground for admission of such testimony, even that ground is hardly furnished here. We are pointed to this question and answer to show such communication to defendant : “ Q. What did you ever say to Judge Crane or Mr. Sheehan in regard to the arrangement that no one would sell the stock without the others? A. I told him that at the time the stock was delivered, and he paid for it. That was the only time I ever spoke to Mr. Sheehan on the subject.”

It clearly appears from this that nothing was ever said by witness to defendant on the subject before the delivery and payment

It should be borne in mind that this conversation, so objected to and admitted, bad no remote connection with the authority of Bockes to make a sale. It did not create the agency, and did not qualify or limit such agency. He testifies his agency was wholly created at another time. Nor did this conversation impress any binding conditions upon the stock, its ownership or disposition ; and, even if it had been communicated to defendant, it must be presumed that both parties knew it presented no legal obstacle to a separate sale by either owner. I think the admission of this conversation in evidence was error so material and prejudicial to defendant’s case that a new trial should be granted, with costs to abith the event

Mayham, P. J., concurs in result.

Herrick, J.

(dissenting).—This is an appeal from a judgment entered upon the verdict of a jury in favor' of the plaintiff and against the defendant, and also from an order denying a motion for a new trial upon the exceptions in the case. The plaintiff in his complaint alleges that he, together with one William H. Bockes and three others, were owners in December, 1891, of 1,985 shares of the capital stock of the Congress Spring Company, of which amount the plaintiff owned 200 shares; that on or about the 19th day of December, 1891, the said William H. Bockes, acting for himself and as agent for the plaintiff and the other owners of said stock, entered into an agreement with the defendant whereby he promised and agreed to sell to the defendant the said 1,985 shares of the capital stock in said company, and that it was then specially understood and agreed with the parties owning such stock that they would not sell any portion thereof unless the purchaser would agree to purchase and pay for the whole thereof at the price mentioned in said agreement; that, pursuant to said agreement, Bockes, for himself and as ageiit for the other owners, delivered to the defendant 1,785 shares of such capital stock, and agreed to deliver the other 200 shares as soon as the certificate could be found, which certificate at the time of such agreement was mislaid. He further alleges that the defendant received and accepted the said 1,785 shares of stock, and paid for the same; and that soon thereafter the plaintiff tendered to the defendant the other 200 shares of the capital stock, showing the certificate of title therefor and that the defendant promised and agreed to accept such stock, and pay for the same, according to the agreement. Then follows the allegation that he neglected and refused to accept-and pay for such stock, as lie had agreed to do, and a demand for judgment.

The defendant, for answer, admits the purchase of 1,785 shares of the stock, “ being two hundred and ninety-seven from said Hanson, four hundred and ninety-six from said Richards, four hundred and ninety-six from said Gage, and four hundred and ninety-six from said Bockes, and that he paid said persons, for said shares, the amount stated in the complaint; ” and, as a second answer, denies all the allegations in the complaint, except as first admitted.

It will be observed that the complaint charges the sale of a block of stock owned by several parties in different amounts, and that there was an agent acting for all the owners, with the understanding and agreement that the block of stock should be sold as a whole; and the theory of the plaintiff evidently is that the contract was for the sale of the 1,985 shares of stock as an entirety, and that by the acceptance of a portion of such stock, and payment therefor, the defendant bound himself to take the whole amount. The defendant’s theory evidently is that it was a separate contract with each owner for the number of shares of stock held by him. The only questions argued by the appellent upon this appeal are those, arising upon the admissibility of evidence offered by the plaintiff, and received by the court, over the defendant’s objection.

The plaintiff was permitted to show conversations between the plaintiff and the agent, Bockes, and the other owners of the stock, in the absence of the defendant, in which it was agreed between such owners that no one would sell his stock unless the others did; that they would all stand together, and all keep the stock, or all sell it at the same time, for the same price; and that this argreement was communicated to the defendant before the sale of the stock to him. The evidence to prove such agreement was objected to as immaterial and incompetent,—that the conversations were in the absence of the defendant. And it was argued that any such agreement was not binding in any way upon the defendant; th.at it was evidence made by the plaintiff in his own behalf, and, having been made in the absence of the defendant, that it could not be received as evidence corroborating the testimony of the agent, Bockes, as to what the agreement actually was between himself and the defendant. I do not think that the exception to the admission of testimony to prove such agreement is well taken. In determining that question the allegation of the complaint must be kept in mind. That the agreement was to sell the entire block of stock; that no part of it was to be sold unless all was sold ; and that one of the owners was acting as agent for all of them ; that the contract that he was making was one that would inure to the benefit of each one of the stockholders in proportion to the number of shares owned by him ; that the conversation he was testifying to was one that related to the question of his agency. The agreement testified to by him, and which he says was communicated to the defendant, was a limitation of his agency. Under it he could not sell any portion of the stock.unless he sold the whole thereof; and therefore it seems to me that the proof was strictly in accordance with the allegations made in the complaint, and -is also admissible as a statement of his authority as agent, made to the defendant prior to or during the negotiation of the sale of the stock. It does not present the same question that would be presented in the case of a separate and distinct contract for the sale of plaintiff’s stock alone.

The question is raised upon this appeal that the plaintiff’s agent did not communicate this agreement between the owners of the stock to the defendant, or his agent, until after the delivery of the other stock, and the payment therefor, to the defendant. According to the testimony of the plaintiff’s agent, the plaintiff, at the time the agreement to sell this block of stock was made, was in Chicago. His agent telegraphed to him the proposed agreement to sell, to which the plaintiff replied that he would sell, if the rest did. That thereafter plaintiff’s agent went to the office of defendant, and there met the defendant, and made a delivery of all the certificates of stock that he had in his possession, and then and there told him that he could not deliver him plaintiff’s stock because he could not find it. “And that, as soon as he found it, it would be delivered to them, for the purpose of having them pay for it; that it was included in this sale. I said they must take that stock, although I could not deliver it. It was part of the original bargain, and they were to buy the whole. I said they must take that stock when it could be delivered.” •

Further on, he was asked this question - “ Q. What did you say to Judge Crane or Mr. Sheehan in regard to the arrangement that no one would sell the stock without the others ? A. I told him that at the time the stock was delivered, and he paid for it. That was the only time I ever spoke to Mr. Sheehan on the subject.”

After making this answer, the defendant’s counsel moved to strike out the testimony of the witness as to the interview between the plaintiff; Thompkins, Gage, and Hanson, the other persons who had sold their stock to defendant, “ on the ground that there is no proof that what was said there was communicated to the defendant or his agent.” The motion was overruled by the court. It will thus be seen that the defendant did not raise the question that the communication was not made until after the other stock had been delivered and paid for, but simply raised the question that the conversation had not been communicated to the defendant or his agent at all, whereas, in truth, the witness had just sworn to such communication, and from his answers to the question propounded to him, takes in connection with his other testimony, the jury might have fairly inferred that he had communicated such conversation before the other stock was delivered and paid for, although at the same place and during the same interview.

For these reasons, I can see no error in the admission of the testimony in question, or the refusal of the court to strike it out. The judgment therefore should be affirmed, with costs.


author: Herrick, J.

text:
    Ambrose Best, Resp’t, v. Levi Zeh, Individually and as Executor, etc., Impleaded, etc., App’lt.

      {Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    Pleadings—Complaint—Misjoinder.
    A complaint against a devisee and mortgagee of a testator for partition and to have the devise and mortgage declared void does not improperly join causes of action.
    Appeal from a judgment in favor of plaintiff.

      Brownell & Cochrane (A. V. /S. Cochrane, of counsel), for app’lt; A. Frank B. Chace, for resp’t.
   Herrick, J.

The plaintiff, in his complaint, by appropriate allegations, in substance, alleges that one Henry Best, deceased, was, in his lifetime and at the time of his death, the owner of several parcels of real estate, which he describes in the complaint, located in the county of Columbia ; that on the 3d day of June, 1891, be executed what purported to be his last will and testament, whereby he gave and bequeathed all his property, both real and personal, to his sister Emma Zeh, wife of the defendant Levi Zeh, and appointed Emma Zeh executrix of said last will and testament; that the said Henry Best had an aged sister, named Julia Best, who, on the 6th day of January, 1891, executed her last will and testament, whereby she gave and bequeathed to her sister, the defendant Emma Zeh, all her property, both real and personal, and appointed the defendant Levi Zeh, the husband of the said Emma Zeh, executor of her last will and testament. It is further alleged that at the time Henry Best executed his last will and testament, and the mortgage hereinafter referred to, the said Julia Best was in feeble health and condition, weak both mentally and physically, and was not expected to live but a short time. The plaintiff further alleges that on the 3d day of June, 1891, and at the same time the last will and testament of Henry Best was signed, he executed and acknowledged several other instruments in writing, dated that day,—one purporting to be a mortgage of and upon all the real estate described in the complaint, to the said Julia Best, and another instrument, dated the same day, purporting to be a second or subsequent mortgage of and upon all the real estate described in the complaint, to the defendant Levi Zeh (the execution of other instruments in writing, conveying property, is also alleged, but none of them relate to the real estate described in the complaint); that Henry Best died on or about May 9, 1892, and Julia Best on or about June 28, 1892. The plaintiff further charges that the said Henry Best, at the time of the execution of what purports to be his last will and testament, and what purport to be mortgages as above mentioned, was, and for a considerable time prior thereto had been, an imbecile, aged, infirm, sick, both physically and mentally weak and diseased, of feeble mind, incapable of governing himself or managing his affairs, and by reason thereof incapable and incompetent to make, execute, acknowledge, or deliver such instruments, or either ,or any of them, and that at the time he signed, acknowledged, and delivered such several instruments he had not sufficient mind to comprehend and understand the nature of such transactions, or the mattei-s connected therewith, and did not understand the same, and that the execution thereof was obtained and procured by fraud, imposition, and undue influence, and that the said several mortgages were given by the said Henry Best without any just, valid, or legal consideration; that the said Levi Zeh and Emma Zeh had each of them acquired such an undue influence over the said Henry Best as to exercise entire, control of his mind and of his business matters and affairs, and that while he was so enfeebled and weak in body and mind, as above described, he was unduly, fraudulently, and improperly influenced by the defendants Levi Zeh and Emma Zeh, or one of them, or by other persons, unknown to the plaintiff, acting for them and in their interest. to make and execute the instruménts purporting to be his last will and testament, and purporting to be mortgages; that neither of such instruments purporting to be mortgages were recorded in the lifetime of Henry Best, but that the existence thereof was fraudulently suppressed and concealed, as part of the fraudulent scheme entered into by the defendants Levi Zeh and Emma Zeh, or others acting for them and in their interest, to obtain, by and through such instruments, at the death of Henry Best and Julia Best, the title to all the property of the said Henry Best for the use and enjoyment of the defendants Levi Zeh and his wife, Emma Zeh. The complaint then sets forth by name the several heirs of Henry Best, so far as known, and their interests in the property, and asks that such instrument, purporting to be the last will and. testament of Henry Best, and the instruments purporting to be mortgages of the real estate described in the complaint, be declared void and invalid and of no effect; that the same be set aside and canceled of record,—and asks for judgment directing a partition of the property described in the complaint, and, if no actual partition can be had, that the same be sold, and the proceeds divided among the parties interested therein, according to their respective rights and interests.

The defendant Levi Zeh interposed two demurrers,—one in his own behalf, and one as executor of the last will and testament of Julia Best,—on the grounds that the complaint, on the face thereof, does not state facts sufficient to constitute a cause of action against the defendant demurring, and that causes of action have been improperly united in the complaint. As to the second ground of demurrer,—-that causes of action have been improperly joined,—the defendant specifies, in substance, as follows: That the complaint alleges a cause of action against the heirs at law of Henry Best, deceased, for the partition of real estate owned by him at the time of his death, and alleges an apparent devise of said real estate to the defendant Emma Zeh, and that such apparent devisé is void, and that it also contains an alleged cause of action against Levi Zeh, as executor of the last will and testament of Julia Best, deceased, to have a certain bond and mortgage executed by the said Henry Best to the said Julia Best, covering such real estate, declared null and void. It also sets forth an alleged cause of action against Levi Zeh, individually, who is not an heir at law of the said Henry Best, deceased, to have a certain bond and mortgage executed by the said Henry Best to Levi Zeh, covering the said real estate, declared null and void. Said demurrers were each overruled, and judgments entered thereon in favor of the plaintiff, and against the defendant Levi Zeh. From the judgments so entered, the defendant Levi Zeh appeals to this court.

I think the judgment should be affirmed. Under § 1537 of the. Code of Civil Procedure, “a person claiming to be entitled by reason of his being an heir to the possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise to another by the decedent, and possession under such a devise. But in such an action the plaintiff must allege and establish that the apparent devise is void.’’ The plaintiff commenced his action in partition by virtue of the provisions of that section, and alleges that the devise of the real estate in question is void. Except for the provisions of § 1537, his allegations as to the .execution of the will would constitute a separate and distinct causp of action, which he would have to maintain before he could have his action in partition. Conceding his allegations as to the two mortgages, and his demand to have them declared void, to be each separate and distinct causes of action, they arise out of the same transaction as the will. And being permitted under said section, to bring into his action of partition the cause of action to set the will aside, I do not see why he cannot unite with it other causes of action arising out of the same transactions ; the acts which give rise to such other causes of action constituting liens upon all the real estate sought to be partitioned, if they are not declared invalid. To fully establish all the rights that the plaintiff and his coheirs have in the real estate in question, it is necessary to determine, not only the validity of the will, but also the validity of the mortgages, and I do not think the plaintiff should be compelled to bring a separate action upon each instrument. The claim of the plaintiff is that the execution and delivery of the will and of the several mortgages were all procured in pursuance of a scheme fraudulently designed and carried out, by undue and improper influence, exercised upon an imbecile, sick, and infirm old man, incompetent to manage his affairs, and not understanding the nature of the transactions in question, for the purpose of securing and appropriating all his property1 to their own use- and benefit. That, in effect, constitutes one charge and one cause of action, although composed of several distinct and separate acts; and the establishing and maintaining of that one cause of action •clears away all the clouds upon the title to this real estate, created by the several instruments executed in pursuance of the fraudulent scheme alleged in the complaint. While the records disclose a devise to only one of the defendants Zeh, together with a mortgage to that same one, and a separate and distinct mortgage to her husband, thus apparently giving him a separate and distinct interest in such real estate, which would constitute a separate and distinct cause of action, yet the allegations of. the complaint charge a. common interest in the securing and execution of said will and said mortgages, in pursuance of a common scheme, so that, instead of the defendant Levi Zeh having no interest in the cause of action to set aside the mortgage given to his wife, Emma Zeh, and Emma Zeh having no interest in the proceedings to set aside the mortgage executed to her husband, Levi Zeh, each is in fact chaiged by the complaint with having an interest in, and being a party to, both mortgages and the will, and of being interested in procuring the execution thereof. The action is one in equity, and equity tries to prevent a multiplicity of suits; and, where the court has-once acquired jurisdiction, it tries to afford complete relief, even to the determination of conflicting claims to the title or possession of real property. Weston v. Stoddard, 137 N. Y. 119-124; 50 St. Rep. 169. Here all claims to the possession of or lien upon the property in question by the defendants Levi Zeh and Emma Zeh can be determined in this action by an investigation and determination of the truth as to what took place on the 3rd day of June, 1891, when Henry Best executed wdiat purports to be his last will and testament, and what purport to be the mortgages executed to Levi Zeh and Emma Zeh. His mentid and physical condition at that time, and the influence exerted upon him by said defendants, are the questions in issue, and in the determination of such questions the defendants Levi Zeh and Emma Zeh have a common interest. They in fact constitute one party to such issues, and the plaintiff and bis coheirs the other party. And for the purpose of clearing the title to the property in question, and to prevent a multiplicity of actions,'all of such questions should be-permitted to be determined in one action.

In addition, it seems to me that the defendant Levi Zeh can be made a party to the action under § 1539 of the Code of Civil Procedure:

“The plaintiff may, at his election, make a tenant in dower, by the courtesy for life or for years, of the entire property, or a creditor, or other person having a lien or interest, which attaches, to the entire property, a defendant in the action.”

Under that provision of the Code, it is my opinion that not only a person who actually has a lien or interest, but one who apparently has or claims to have a claim or interest, upon the entire property sought to be partitioned, may be made a party. It seems to me that the several provisions of the Code, from §§ 1537 to 1543, inclusive, indicate an intention on the part of the legislature to authorize all persons having or claiming to have an interest in or lien upon real estate to [>e made parties to actions in partition, and to authorize the hearing and determination of such conflicting interests in such actions, so that, when the real estate-involved is divided or sold, all clouds upon the title thereof may be removed, and the title thereto settled.

Let the judgment be affirmed, with costs.

Mayham, P. J., concurs in result: Putnam, J., concurs.


author: Putnam, J.

text:
    Robert T. Skelton, by Guardian, etc., Resp’t, v. Matthew Larkin, Jr., App’lt.

      0Supreme Gourt, General Term,, Third Department,

      Filed December 4, 1894.)

    1. Negligence—Obstruction on sidewalk.
    The placing of a flagstone against a tree in the sidewalk in front of one’s premises, without permission and in violation of a city ordinance, renders him liable for injuries caused by it, though so placed by a contractor , under him.
    2. Evidence—Negligence—Ordinance.
    In such case, the city ordinance is competent evidence on the question of defendant’s negligence.
    Appeal from a judgment in favor of plaintiff.

      A. T. Clearwater, for app’lt; D. M. DeWitt, for resp’t.
   Putnam, J.

We think the question of defendant’s negligence was properly submitted to the jury. It was said in Kunz v. City of Troy, 104 N. Y. 344-348; 5 St. Rep. 642, “ The death of plaintiff’s intestate, caused by the falling of the counter, demonstrated that if was a dangerous obstruction on the sidewalk.” So, in this case, the slipping of the stone and the injury to plaintiff was evidence, tending to show defendant’s negligence, proper to be submitted to the jury.

So, also, the question of contributory negligence was for the jury. The plaintiff was non sui juris. In the case last cited, it was held that it was not, per se, negligence for a parent to allow children to play in the street. “It mayor may not be negligence, depending upon circumstances. It was, we think, for the jury to determine whether the father of the intestate was guilty of negligence.” McGuire v. Spence, 91 N. Y. 303. So in this case.

It is claimed, however, by the defendant, that the stone which caused the injury was placed where it was by an independent contractor under defendant a few days before the accident, and hence defendant was not liable. But there was evidence tending to show that the stone had remained in the position in which it was at the time of plaintiff’s injury for over a year. The jury, from the testimony, could have found that such was the case. If this obstruction in the street, although placed there in 1883 by McLaughlin, a contractor under defendant, was allowed to remain by the latter, after the completion of the contract, over a year, no doubt could be entertained as to his liability, if the stone was negligently placed.

If we were to assume the fact to be, as the witness Purvis testified, that the latter placed the stone which caused the injury to plaintiff only two or three days before the accident, such assumption would not call for a reversal of the judgment. The obstruction was in one of the public streets of the city of Kingston, in violation of a city ordinance; and it was not claimed that it was so placed by permission of the municipal authorities, or that defendant was authorized by the city to disturb the street. Hence, it was in fact a nuisance in the street, and defendant was liable for damages in consequence of its being put where it was, although so placed by a contractor under him. Creed v. Hartman, 29 N Y. 591; Storrs v. City of Utica, 17 N. Y. 104, Turner v. City of Newburgh, 109 N. Y. 301-306; 15 St. Rep. 93; Brusso v. City of Buffalo, 90 N. Y. 679.

lhe ordinance of the city of Kingston was competent evidence on the question of defendant’s negligence. Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488.

We think the case was properly disposed of by the learned trial court, and can discover no errors that should cause a reversal of the judgment. The various questions raised on this appeal are so ■old, and have been so often considered by the courts, that we do not deem it necessary to write at length in the case.

Judgment should be affirmed, with costs.

All concur.


text:
    Lydia A. Glasier, App’lt v. Town of Hebron, Resp’t.

      (Supreme Court, General Term,, Third Department,

      Filed December 4, 1894.)

    Highways—Barrier.
    The mere absence of a barrier from an embankment, where the highway is seventeen feet wide, level and smooth, does not establish negligence on the part of the highway commissioners.
    Appeal from a judgment of nonsuit.

      J. M. Whitman (Potter & Lillie, of counsel), for app’lt; Hdgar .Hull {L. H. Northup, J. &. HAmoreaux, and C. H Sturges, of •counsel), for resp’t,
   Putnam, J.

The defendant has sought to be made responsible in this action for damages sustained by plaintiff in consequence •of alleged negligence of its highway commissioners in omitting to place barriers on the side of a highway in said town, in consequence of which plaintiff received the injuries cpmplained of. We think the trial judge did not err in granting the motion for a nonsuit. .Even if he was mistaken in holding that the case, as far as the evidence of the plaintiff was concerned, was substantially ■as it was on the former trial, and hence that it could not be submitted to the jury under doctrines laid down in this case by the ■court of appeals (131 N. Y. 447; 43 St. Rep. 319), yet under the law as established in the subsequent case of Lane v. Town of Hancock, 142 N. Y. 510; 60 St. Rep. 112, the trial court was compelled to dismiss the complaint.

The negligence charged against the defendant’s highway commissioners was in not erecting barriers on the side of the highway .at the place where the accident occurred, and where there was a perpendicular descent to the water of the pond below. In Lane v. Town of Hancock, supra, the evidence tending to show negligence on the part of the highway commissioners of the town of Hancock was stronger than in this case. In that case the road was built along the side of a steep hill, with a retaining wall on the lower side, and was but 12 to 15 feet wide, sloping from the upper to the lower side 18 inches. Water flowing over the road made it slippery. There had been guards at the lower side of the road over the retaining wall, but the road had become filled up to the top of such guards, so that, when the plaintiff’s intestate was killed, there was in fact no barriers there. The deceased was riding on a load of lumber placed on a pair of bobsleighs. 3STo negligence was imputed to the driver. When he came to the place where the accident occurred, without any fault or negligence on his part, the rear bob slipped over the retaining wall, there being no barrier at that place for a space of 25 feet, and a perpendicular descent of several feet. The sleigh was overturned, and plaintiff’s intestate was killed. The court o£ appeals held, under all the circumstances, that the proof was not sufficient to establish negligence on the part of the highway commissioners of the town of Hancock, and that the trial court should have nonsuited the plaintiff. In this case, the highway, at the place where the plaintiff was injured, was 17 feet wide, level and smooth, and there was no fact indicating negligence except the mere'absence of a barrier. We think, under the law as settled in Lane v. Town of Hancock, supra, there was no question as to the negligence of defendant’s highway commissioners that could have been properly submitted to the jury.

The judgment should be affirmed, with costs.

All concur.


author: Putnam:, J.

text:
    William H. Gray, App’lt, v. Guardian Assurance Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Wiled December 4, 1894.)

    1. Insurance—Fire—Condition—Incumbrances.
    A policy is rendered void by the breach of a condition against incumbrances and cannot subsequently acquire validity, so as to cover merchandise thereafter placed in the store.
    2. Same—Waiver.
    Such breach is not waived by the adjuster’s direction to the insured to prepare proofs of loss, where he did not know of the breach at the time and, after discovery, disclaimed any liability on the part of the company.
    Appeal from a judgment, entered on a verdict directed by the court in favor of the defendant.

      Kellas & Munsill (John P. Kellas, of counsel), for app’t; A. H. Sawyer, for resp’t.
   Putnam:, J.

The defendant, by its policy of insurance dated March 31, 1892, insured Davis Bros., to an amount not exceeding $1,000, on their stock of merchandise contained in their store at Malone, IST. Y., for the period of one year. On the 18th of June, 1892, Davis Bros, executed a chattel mortgage on the property insured to one Henrietta Briggs, to secnre the payment of $500. The policy provided that “ this entire policy shall be void if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage.’’ It requires no citation of authorities to show that, on the execution of the chattel_ mortgage in question, the policy under which plaintiff seeks to recover in this case at once became void. Being void, it could not subsequently acquire validity, so as to cover merchandise thereafter placed in the store of Davis Bros. On the execution of the mortgage the policy, by its terms, ceased, and could .not thereafter have any force, unless revived by some act or by consent of the defendant. Mead v. North Western Ins, Co., 7 N. Y. 530.

We think the only serious question in the case is whether there was a waiver by defendant, after the loss, of the clause in the policy rendering it void if the merchandise insured became incumbered. by a chattel mortgage. It is urged by the learned counsel for the plaintiff that, after the fire by which the property insured was destroyed, Oongdon, the adjuster of defendant, with full knowledge of the execution of the chattel mortgage, directed Davis Bros, to prepare proofs of loss, and send the same to the defendant, and that, in pursuance of his direction, Davis Bros, afterwards did prepare and send such proofs, at an expense of two dollars. We think the evidence in this case fails to establish any waiver by defendant. “ To establish a waiver of a forfeiture, the proof must show a distinct recognition of the validity of the policy, after a knowledge of the forfeiture, by the person by whom it is claimed the forfeiture is waived.” Weed v. London & L. Fire Ins. Co., 116 N. Y. 106-118; 26 St. Rep. 414. Assuming that there was testimony given from which the jury could have properly found that, at the interview between Davis Bros, and Oongdon, the adjuster of defendant, after the loss, the latter told the former to make out proofs of loss, it was shown by the testimony of four witnesses that at the interview at which Oongdon made that remark, after he learned that the insured property was covered by a chattel mortgage, he denied the liability of the company, and claimed that the policy became void because of said mortgage. He did not recognize the validity of the policy after he found out the fact of its existence, but, on the contrary, asserted its invalidity. Daniel F. Davis, as a witness, did not deny that Oongdon made such a statement. He only said: “ I don’t remember any such statement. That is all I will say about it.” On this testimony the trial judge was justified in assuming as clearly proved that Oongdon, defendant’s adjuster, on learning of the existence of the chattel mortgage, denied the liability of the company, and refused to proceed further in the matter of the adjustment. Under the circumstances, if he did at the same time tell the plaintiff to make out proofs of loss, such remark should be' deemed rather advisory than as a request on bis part on behalf of the company. In any event, Oongdon, after learning of the chattel mortgage, made no distinct recognition of the validity of the policy, as held necessary in all the cases, but, on the contrary, asserted that it had become void, and declined to proceed further with the adjustment Under all the circumstances, we think the plaintiff failed to establish a waiver on the part of the defendant’s adjuster. See Ronald v. Mut. Reserve F. L. Assn., 132 N. Y. 378; 44 St. Rep. 407. But it is not shown that Oongdon was a general agent or officer of the defendant. He was a special agent and adjuster. At the time of his interview with Davis Bros., the policy under which plaintiff claimed was forfeited. It was, by its terms, void. Congdon, as special agent and adjuster, was not shown to have had power to waive the forfeiture. Weed v. London & L. F. Ins. Co., 116 N. Y. 106; 26 St. Rep. 414.

We conclude that the trial judge properly nonsuited the plaintiff, and hence that the judgment should be affirmed, with costs.

All concur.


author: Putman, J.

text:
    Elizabeth A. Cagger et al., Resp’ts, v. Rhoda Shultes, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    Parties—Bringing in.
    An allegation in a petition, upon information and belief, that other persons have, since the commencement of the action, acquired an interest, will not sustain an order making them defendants, where they deny any interest.
    Appeal from an order of substitution, which also added parties defendants and authorized the substituted plaintiff to issue a supplemental summons and serve an amended complaint.

      William Youmans, for app’lt; Hun & Johnston (Russell M. Johnston, of counsel), for resp’ts.
   Putman, J.

The petition states, upon information and belief, that, since the commencement of the action, Cyrus S. Shultes and Philena Shultes have acquired rights in the premises in the complaint in the action described, and are now in possession of said premises, or some part thereof. No other proof appears in the papers that said parties, or either of them, have any interest in the premises in question, or are in occupation thereof. The case contains the affidavits of the said Cyrus and Philena Shultes, in which they each positively deny that they, or either of them, are the owners of, or have any interest in,, or are in possession of, the premises described in the complaint. The allegations in the petition thus made on information and belief being positively denied by the affidavits of Cyrus • S. and Philena Shultes, I do not think the court should have granted an order making said persons defendants in the action. Without some satisfactory proof showing that they are proper parties, they should not, against their will, be made defendants in the action, and thus subjected to the expense and trouble of the litigation. Under all the facts and circumstances of the case, I see no reason to doubt that the discretion vested in the special term was properly exercised in directing the substitution of Henrietta Church as plaintiff in the action. If new defendants are not brought in, there can be no objection to allowing the order of reference granted by consent of the parties to stand. The order should be modified by striking out the clause directing “that Cyrus S. Shultes and Philena Shultes be, and they are hereby, made parties defendants herein, and that the plaintiff Henrietta Church be, and is hereby, authorized to issue a supplementary summons in this action, directed to the said Cyrus S. Shultes and Philena Shultes, so made defendands herein,” and, as so modified, affirmed, without costs to either party.

Mayham, P. J., concurs; Herrick, J., not acting.


text:
    Eliza Sands, Resp’t, v. Derrick W. Sparling et al., as Administrators, etc., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Husband and wipe—Services op wipe.
    A wife, who takes boarders upon her husband’s promise that she might have the pay, may recover for such board.
    2. Witness—! 829.
    A husband, who promised his wife that, if she would take decedent to board, she might have the compensation therefor, is not an assignor of such claim within the meaning of § 829 of the Code.
    3. Evidence—Opinion.
    When a description of the board furnished -is given by one witness only, uncontradicted and consists of but one sentence, it is not error to allow witnesses to testify as to the value of ordinary board and that the kind furnished to decedent, as stated by the first witness, is ordinary board,
    4. Appeal—First instance.
    To raise the question of the impropriety of such testimony, the specific objection that the question was not a hypothetical one, should be interposed at the trial.
    Appeal from a judgment on the report of a referee in favor of plaintiff.

      William Lounsbery, for app’lts; Charles Irwin, for resp’t.
   Putman, J.

This action was brought for board furnished by plaintiff to defendants’ intestate for 47 weeks from 1884 to 1890. The claim was presented to defendants as administrators, disputed by them, and referred under the statute. On the trial it appeared that the board was furnished by plaintiff at her home, where she lived with her husband, She carried on no separate business. A witness testified without objection that deceased boarded with plaintiff during the time mentioned,-and to conversations between deceased and plaintiff indicating that deceased expected to pay plaintiff for her board; and plaintiff’s husband testified that, at the time of the first conversation between plaintiff and deceased in reference to-board, he told his wife, if she did the work, she should have the pay; that he had no interest in it whatever. The referee held that plaintiff was. entitled to recover for 35 weeks’ board, and, on his report, judgment was entered accordingly.

While, ordinarily, when the wife lives with her husband, and has no separate business, a claim for board in the family would belong to the husband, yet it has been determined that a contract between the husband and wife, by which he allows her to board a party and receive compensation therefor, is valid. In re Kimmer 14 St. Rep. 618; Burley v. Barnhard, 9 St. Rep. 587; Bowers v. Smith, 28 St. Rep. 346; 8 N. Y. Supp. 226. See Birkbeck v. Ackroyd, 74 N. Y. 356. We think, under the evidence in the case, the referee was justified in determining that the plaintiff was the owner of the claim for the board and services for which the action was brought

It is urged by the learned counsel for appellants that the referee erred in overruling the objections to testimony of plaintiff’s husband as to personal transactions had by him with deceased ; that such testimony was incompetent, under the provisions of § 829 of the Code of Civil Procedure. But the witness was not the assignor of the claim against deceased, under which the action was brought. He never had any legal interest in such claim. Under the evidence in the case, the plaintiff was the only person who ever had any demand against the deceased; hence, the provisions of § 829 of the Code of Civil Procedure did not apply. Burley v. Barnhard, 9 St. Rep. 587; Porter v. Dunn, 43 id. 193.

It is further urged by the defendants that the court erred in receiving testimony as to the value of the board furnished the deceased. On the trial, Austin Sands, the husband of plaintiff, in answer to the question, “ What kind of board was furnished for that period?" answered: ‘‘Beefsteak, ham and eggs, pie and cake, vegetables,—and sometimes something extra,—coffee, tea, bread and butter, and ordinary table board.” On cross-examination by defendants’ counsel, the following question was asked: “In speaking of board, you have said, ‘ Milk, potatoes and ordinary board ?’ ” to which the witness answered, “Yes, and beefsteak.” This is the only evidence given on the trial descriptive of the kind of board furnished, and it was not contradicted. The plaintiff, immediately after the giving of such testimony, produced two witnesses who testified that five dollars per week was the value of ordinary board; that the board furnished deceased, as testified by Austin Sands, was ordinary board,—which is another way of stating that the kind of board which Austin Sands had testified was furnished deceased was worth five dollars per week. Doubt-, less, the more proper way to have shown the value of the board would have been to have proposed a hypothetical question, in which the board furnished was described as sworn by the witness. Reynolds v. Robinson, 64 N. Y. 589; Link v. Sheldon, 136 id. 1; 48 St. Rep. 820; People v. McElvaine, 121 N. Y. 250; 30 St. Rep. 977. But in a peculiar case like this, where a description of the board furnished was only given by one witness, was uncontradicted, and consisted of but one sentence, we do not think that the referee erred in the ruling he made. We are of opinion that in this case the doctrine laid down by Danforth, J., in Seymour v. Fellows, 77 N. Y. 181, applies. The learned judge, in delivering the opinion of the court, used the following languge: “In Reynolds v. Robinson, 64 N. Y. 595, the question was subject to the same objection. The witness had heard the testimony of two physicians, and had heard read the evidence of another. He was then asked for his opinion. It is obvious that it must be made up, if at all, upon the weight of evidence, the comparison of testimony, ,and his estimate of the accuracy and reliability of the witnesses from whose narration he was to form an opinion. He was required to consider the evidence detailed by a group of witnesses, and eliminate what to him seemed material from the irrelevant. But none of these objections exist in this case. The question directed the attention of the witness to the testimony of a single witness upon a single subject, and was not other, in effect, than it would have been if the counsel had recited the statement of services rendered by the party, and, on that statement, asked an opinion of their value. As was held in McCollum v. Seward, supra, 1 This was equivalent to a question, assuming that the services rendered were as described by the witness, what they were worth.’ ” See, also, McCollum v. Seward, 62 N. Y. 316.

We are also inclined to believe now that, if it was improper for the referee to allow the witness to express an opinion based on what he had just heard the witness testify, the specific objection that the question was not a hypothetical one should have been interposed. Winters v. McMahon, 23 W. Dig. 119, 120.

We conclude that the judgment should be affirmed, with costs.

All concur*.


text:
    Ethan Akin, Resp’t, v. The Water Commissioners of Amsterdam, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed, December 4, 1894.)

    Eminent domain—Waivék. "
    By agreeing upon commissioners to assess damages and appearing and proceeding before them, a party in condemnation proceedings waives his right to trial by jury, and is estopped from afterwards objecting that the court had no authority to appoint the commissioners.
    Appeal from an order confirming an award of damages in favor of claimant, and from an order denying defendant’s motion to set aside and vacate an order appointing commissioners of assessment.

      C. S. Nisbet, for app’lts; Z. S. Westbrook, for resp’t.
   Herrick, J.

The commissioners to appraise the claimant’s damages were appointed without objection. The defendants, appearing by counsel, consented to an adjournment of the said motion for the purpose of agreeing upon the commissioners, and, upon such adjourned day, counsel for defendants again appearing, the commissioners were appointed without objection on the part of the defendants, the personnel of the commissioners having been apparently agreed upon. The defendants, by their counsel, appeared before the commissioners upon the assessment of damages, participated in the hearing, cross-examined the claimant’s witnesses, produced witnesses of their own, and at no time raised any objection to the authority of the commission to make the assessment of damages. After the commission made its award, the defendants, for the first time, so far as the record shows, raised objections to the authority of. the court to appoint such commissioners, and the authority of the commissioners to appraise claimant’s damages, by making a motion before the court for an order to set aside and vacate the order theretofore made appointing such commissioners to appraise and assess the claimant’s damages.

1 think the objection comes too late. The question of jurisdiction should have been raised in the first instance. By going into court •and consenting to the appointment of commissioners, it seems to me that the defendants thereby foreclosed themselves from thereafter raising any question as to the power and authority of the court to make such appointment; and by thereafter going before the commission, and participating in its proceedings without objection, and taking the chances of a favorable result, they should not be permitted, upon being disappointed in their expectations, to raise the question of lack of authority or of any irregularity in the proceedings. Cowenhoven v. Ball, 118 N. Y. 231; 28 St. Rep. 870; Russell v. Randall, 123 N. Y. 436; 34 St. Rep. 110. If tire defendants had any right to have the question of the claimant’s damages determined by a common-law jury in an action at law, they waived that right by their participation in the proceedings in the manner I have stated. They had the right and the power to waive their constitutional and statutory rights, if any; and, having once done so, they cannot subsequently claim them. In re Cooper, 93 N. Y. 507; Russell v. Randall, 123 id. 436; 34 St. Rep. 110; Sentenis v. Ladew, 140 N. Y. 463; 55 St. Rep. 831; Mayor, etc., of New York v. Manhattan Ry. Co., 143 N. Y. 1; 60 St. Rep. 352.

The order appealed from, denying the motion to set aside and vacate the order appointing commissioners, should, therefore, be affirmed.

Upon the question of damages, there was a conflict of testimony before the commissioners ; and, while the preponderance of ■evidence appearing upon the record is rather in favor of the defendants, yet the commissioners viewed the premises alleged to ■have been injured, and are, therefore, much better able to determine what estimate of the damages was the nearest to being fair and just than the court can possibly be; and, while this court is not necessarily governed by the fact that the commissioners have made a personal inspection of the premises alleged to have been injured, yet that fact, together with the other one, that the damages awarded do not appear to be grossly excessive, it seems to me, calls for an affirmance of their decision, and of that of the special term, which confirmed their award.

The appeals from both orders have been conducted and argued as one appeal. But one set of papers has been printed for both appeals. But one bill of costs is allowed. Let both the orders appealed from be affirmed, with costs and disbursements as of one appeal.

All concur.


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    In the Matter of Caroline J. Dewey, App’lt, v. George Edward Barber et al., Resp’ts.

      (Supreme Court, General Term,, Third Department,

      Mled December 4, 1894.)

    Wills—Bequest of interest. ■
    A bequest of the interest of a certain sum, not setting apart any sum for its payment, is a gift of an annuity equal to the interest of said sum.

      Appeal from a decree settling the accounts of the executors.,

      George M. Wright (Lemuel B. Pike, of counsel), for app’lt; R, Corbin, for resp’ts.
   Herrick, J.

This is an appeal by Caroline J. Dewey from the decision of the surrogate in settling the accounts of George E, Barber and Martin Y. B. Stetson, as executors of the estate of Silas H. Dewey, deceased. Silas H. Dewey, about a year prior to his death, made and executed his will, in which, among other things, are the following provisions : “ Third. I give, devise and bequeath to my said wife, Caroline J. Dewey, the interest upon the sum of twelve thousand dollars, to be paid to her annually during the period of her natural life by my executors hereinafter named; said sum to be in lieu of her dower interest in my real estate. Fourth. I direct my executors to pay to my sister, Almira Sawyer, during the term of her natural life, a sum sufficient for her support and maintenance, and suitable to her condition and circumstances in life ; such sum to be determined by my executors. Sixth. I give, devise and bequeath all the rest, residue and remainder of my property, after the payment of the legacies, charges, bequests and devises hereinbefore mentioned, to my daughter, Elizabeth E. Barber, wife of George Edward Barber, and, in case of her death before my own, to the heirs of her body. Seventh. I hereby designate and appoint, as my executors to carry the provisions of this will into effect, Martin Y. B. Stetson, of Champlain, H. Y., and George Edward Barber, of Plattsburgh, H. Y, with leave to sell or dispose of my real and personal property, not otherwise disposed of, as in their judgment may-seem best.”

• It the time of his death the testator was substantially out of debt. He owned a farm of over 200 acres, for which it appears he had been offered the sum of $11,000 about the time of the making of his will; his stock and farm implements were of the value of about $2,200; and he also owned mortgages to the amount of about $3,300. His- family consisted of his wife, who was of the age of fifty-nine years, his sister, Almira Sawyer, of the age of eighty-one years, and- his daughter, Elizabeth E. Barber. ■ Only a portion of the real estate has ever been sold by the executors. The major portion remains unsold. At no time since her husband’s decease has the widow, the appellant, received the full amount of the interest of $12,000. All that has been paid to her has been the balance of the income arising from the farm and personal property, after deducting taxes, insurance, repairs and various other farm expenses.

A bequest of the interest of a certain sum, not setting aside any fund for its payment, is a gift of an annuity equal to the interest of said sum, and is not chargeable with any tax, expense of management, or other deduction, by the executor. Brimblecom v. Haven, 12 Cush. 511; Swett v. City of Boston, 18 Pick. 123. I have not been referred to any case in this state that is precisely in point. In the case of Whitson v. Whitson, 58 N. Y. 479, the testator’s will read as follows: “I give and bequeath to my beloved wife, Elizabeth 0. Whitson, the life use of the sum of ten thousand dollars, directing my executors to semi-annually pay to her the lawful interest of the said sum of ten thousand dollars, from the day or date of my death ; and, after the decease of my widow, this ten thousand dollars to descend and pass to any heir or heirs my said wife should have by me; and, if no such heir or heirs, I hereby give and bequeath the same to my son, Oliver Whitson.”

Justice Grover, in passing upon that case, used the following language: “ The question in this case is whether the bequest to the respondent was the use and income of ten thousand dollars during her life, or an annuity of seven hundred dollars, payable semiannually, for the same period. If the former, the taxes upon the fund, and expenses of the trust, must be paid out of the income. * * * If the latter, it is equally clear that that sum must be paid to her from the estate, without any deduction on account of taxes imposed upon the fund producing the annuity, but these must be paid out of the estate. There is no conflict of authority upon this,point.”

So, in this case, the question is whether the testator intended to grant to his widow an annuity of $700, payable out of the estate, or whether it was simply the use and income of $12,000. If the first was his intention, then the expenses of managing the estate—the taxes, insurance, cost of repairs to the property—are not to be deducted, and the amount payable to her diminished by the expenses of managing the testator’s estate. In the Whitson Case, it will be observed that a specific sum, of $10,000, was set aside, and it is first provided that the widow shall have the use of that sum; subsequently, it is provided that the executors shall pay to her, semiannually, the lawful interest of the said sum of $10,000; then he provides that this specific sum of $10,000 shall go to his son. It was held there that it was not the intention of the testator to give his wife an annuity of $700 per year, without any abatement for taxes, insurance, etc.; he had given her the use of $10,000. And it would also appear that in that case the testator did not intend that any portion of the principal sum of $10,000 should be used to pay annuity to his wife, because he made a bequest of the whole of that sum, to take effect after the death of his wife. In the case of Delaney v. Van Aulen, 84 N. Y. 16, the testator, after making a few specific bequests, devised all his estate to his executors, in trust, to receive the rents, issues, and profits thereof, and out of such rents, issues, and profits, certain annual sums were to be paid to various beneficiaries. In the case of Pierrepont v. Edwards, 25 N. Y. 128, the testator, by his will, gave his entire estate to his executors, in trust, directing them to convert into money any of the estate, real or personal, which might be unsafe or unproductive, and invest the proceeds in safe and productive securities, and that, out of the income of the estate thus invested, they should pay the sum of $8,000 to his wife, or, in case the testator should not leave a child or children by her, $7,000, so long as she should remain his widow ; the balance of the income to be divided in equal portions between his brother and two unmarried sisters. The income of the estate in fact fell below $7,000 a year, and the executor was compelled to pay out a portion of it for taking care of unproductive property, and the question there arose whether the executor was compelled to pay the widow her annuity of $7,000, when the income was insufficient. It will be seen that none of these cases are similar to the one at bar, and that no principle can be extracted from them which is decisive of this case. In speaking of the authorities bearing upon the question under consideration, in the casé of Pierrepont v. Edwards, the court said: “ It will be seen, by an examination of them, that no positive rule, of ready application to every case, can be laid down, but that each case will depend upon a consideration of all the material provisions of the-will to be construed, and of the extrinsic circumstances respecting the testator’s family and estate which may be fairly brought to bear upon the question of intent. The leading principle of the cases is that when the testator bequeaths a sum of money—or, which is the same thing, a life annuity—in such a manner as to show a separate and independent intention that the money shall be paid to the legatee at all events, that intention will not be permitted to be overruled merely by a direction in the will that the money is to be raised in a particular-way, or out of a particular fund.”

Provisions in a will, intended for the support of a wife, should receive the most favorable construction to accomplish the purpose intended. Thurber v. Chambers, 66 N. Y. 42; Slimson v. Vroman, 99 N. Y. 80. The language of the will, together with the circumstances of the testator and of his estate, lead me to the view that he intended to grant to his wife an annuity of $700 a year. He had not set aside any portion of his estaté which was to produce such annuity, as in the case of Whitson v. Whitson. Neither did he provide that it should be payable out of the income of his estate, as in the case of Delaney v. Van Aulen. It was not to be drawn from any specific source, nor was any specific sum set apart to produce it. His whole estate was given into possession of his executors, and the primary purpose to be accomplished by them was the payment of this annuity to the widow. The sum of $12,000 was not set apart, but it was simply used as a measure of the amount of the annuity to be paid to her. The will does not provide for the paying over this $12,000 to any one else upon the death of the widow, as in the Whitson Case, but bequeaths all the residue of his property, “ after the payment of the legacies, charges, bequests and devises hereinbefore mentioned.” And these bequests and charges consist in a direction to pay his sister, who was then 81 years of age, a sum sufficient for her support and maintenance, and the legacy of $200 to a grandnephew. His estate, he had every reason to believe, would amount to more, by not an inconsiderable sum, than $12,000. His wife was somewhat advanced in years; he had but one child, married, living with her husband; and it was but natural that his first thought should be for the care and comfort of his wife, during her widowhood. He measured the amount that he judged necessary for maintaining her, and, if necessary to comply with that intention, the principal of the estate, I think, under the circumstances, may be resorted to. Neither is that annuity subject to decrease by the taxes and expenses of maintaining the estate ; so that the whole sum of $12,000 may be kept intact for the residuary legatee. She is to have a sum equivalent to the interest on $12,000, payable out of the estate,—not out of the income alone. There is no direction to the executors to preserve any particular sum for the residuary legatee, but only what is left after providing for his sister, paying the legacy of $200, and theannuitytohis widow. In the case of Pierrepont v. Edwards, supra, the court said: ‘Tf we were to hold that the widow was to have nothing unless the property or securities in which the estate happened to be invested yielded income, and that she was not to be paid the full seven thousand dollars per annum directed to be paid to her, unless the investment should happen to yield that sum, .we should, in my opinion, sacrifice the substance and primary intention of the will l'or the sake of an incidental provision inserted for the convenience of the estate, and not intended to limit or control, or to render uncertain or conditional, the provision in her favor.”

The other objections of the appellant to the decree are not sustained, but for the errors indicated in this opinion the decree of the surrogate is reversed, and a rehearing ordered, with costs of this appeal to be paid out of the estate.

All concur.


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    Samuel S. Evans, Jr., in Behalf of Himself et al., Resp’ts, v. Edward H. Sims et al., App’lts.

      (Supreme Oomt, General Term, Ihird Department,

      Filed December 4, 1894.)

    1. Fraudulent conveyance—What is.
    A sale by which, an insolvent debtor, for the avowed purpose of securing creditors to a greater extent than is lawful under the provisions of chap. 503 of 1887, transfers all his property to assignees of insufficient responsibility, substantially on credit and, for all the purchase price he is to receive, takes the notes of the assignees on long time, may properly be found to have been made with an intent to hinder and defraud creditors.
    2. New trial—Equity actions.
    In an equity action, a new trial will not be granted for errors in the admission or exclusion of testimony, if the case has been decided upon sufficient and competent evidence.
    Appeal from a judgment in favor of plaintiff.

      William W. Morrill, for app’lts Sims and Young; Merritt & Ryan, for app’lt Iler; Hale, Bulkeley & Tennant, (Matthew Hale, of counsel), for resp’t.
   Putnam, J.

On the 1st day of August, 1891, the defendant Edward H. Sims was insolvent. He owned property consisting of goods, accounts, 'and assets in his store in Troy, N. Y., of the value of over $70,000, and was indebted to an amount exceeding $123,000. Shortly before the date above mentioned, being unable to meet his obligations, he had a consultation with his brother, Calvin R Sims, his bookkeeper, Fred H. Young, and one McNutt, his attorney. At that interview a general assignment was suggested to said Edward, but he wished to prefer debts to the amount of $50,000 (over one-third of his property), which he could not do in an assignment, and therefore the following plan was adopted and carried out on the 1st day of August, 1891: A partnership was formed between said, Calvin B. Sims and Fred H. Young, under the name of Sims & Co. Edward, by a bill of sale, thereafter transferred his property to the said firm for the following consideration, viz. : An alleged debt of $17,874.51 due Calvin B. Sims; the assumption by the firm of Sims & Co. of debts which Edward wished to secure, to the amount of $33,293.60, and the notes of said firm for $22,569.07, payable in 12, 18, 24, 30, 36, 42, and 48 months. The referee finds, on sufficient evidence, that Calvin B. Sims was of very little pecuniary responsibility, and Fred H. Young of none, at the time of the assignment. It was only claimed that Calvin was worth about $7,500, and hence he was of insufficient responsibility to meet the large claims assumed in the bill of srde. Of the alleged debt of $17,874.51 due Calvin B. Sims, mentioned in the bill of sale, $10,000 was for a note made by Edward, and indorsed by Calvin B., and which the latter had not paid. Hence, the referee could properly find, on the evidence, that Edward H. Sims, being .hopelessly insolvent, and unable to meet his obligations, and wishing to prefer creditors to a greater amount than could be done by a general assignment, made the bill of sale in question, wherein he transferred all his property to irresponsible parties for an alleged consideration of $74,737.18, of which $65,862.67 consisted of the unsecured obligations of such irresponsible assignee to pay the $10,000 bank note, the $33,293.60 of assumed claims, and the $22,569.07 of notes; such notes, which were the only property of Edward remaining after the execution of the bill of sale, being payable in equal semiannual installments, running from one to four years. After a careful reading of the voluminous testimony contained in the appeal book, we are satisfied that it sustains the findings of the referee, that: “The said bill of sale by Edward H. Sims to said Calvin B. Sims and Fred H. Young furnished no protection or assurance or guaranty of payment to the creditors of said Edward H. Sims, or of the application of the proceeds of the property therein mentioned to the payment or liquidation of their claims; * * * and it was executed and accepted with intent to hinder and delay the creditors of said Edward H. Sims, and with intent of dividing the property of said Edward H. Sims among his creditors in violation of chapter 503 of the Laws of 1887.”

A statement of the facts of the case seems to be all that is necessary to be said. Such a sale, by which an insolvent debtor, for the avowed purpose of securing creditors to a greater extent than is lawful under the provisions of chapter 503 of the Laws of 1887 (declining to make a general assignment), transfers all his property to assignees of insufficient responsibility, substantially on credit, and, for all the purchase price he is to receive, takes the notes of the assignees, on long time, the referee could properly.find was made with an intent to hinder and defraud creditors. All the property Edward H. Sims received in the transaction consisting of notes payable in from one to four years, the necessary effect of it was to delay and defraud creditors. It has been held that the mere sale by an insolvent debtor, upon credit, to one having knowledge of his circumstances, does not, per se, establish fraud. Loeschigk v. Bridge, 42 N. Y. 421. In the case cited the vendee was a person of responsibility, fully able to meet his obligations for the purchase price of the goods he bought. Under such a state of facts, however, as was shown in this case, we have no doubt that the referee was justified in his above finding. It is difficult to see how he could have reached any other conclusion. See Hendricks v. Robinson, 2 Johns. Ch. 287, 299, 300; Downing v. Kelly, 49 Barb. 547. In Hendricks v. Robinson, at page 299, Chancellor Kent remarked : “ The whole of this immense debt created by the sale of the real estate at its fair value was thus left to rest upon the personal promise of H. F., without any other security, real of personal.” “I cannot resist the impression that this sale carried, on the very face of it, strong indications of fraud, or, in the words of the statute, of a 1 purpose and intent, to delay, hinder or defraud creditors.’ ”

The above'quoted remarks of Chancellor Kent may be applied to this case. But here there was a sale on credit, to parties of insufficient responsibility, of all the property of the insolvent debtor. After the bill of sale, the only resource of creditors of Edward was in the notes and obligations of parties who, in said instruments, have become obligated to pay over $65,000, and together were, at the time of its execution, worth $7,500. We are of the opinion that tliese facts, together with other circumstances shown on the trial, indicating fraud, and which we will not attempt to discuss, justified the foregoing finding of the referee.

We also think the referee did not err in his conclusion that: •“ The execution and delivery of said bill of sale and assignment and notes constituted, and were parts of, a single transaction, scheme, or purpose for disposing of the property of said Edward H. Sims, and with intent thereby to hinder, delay and defraud his creditors, and to evade the provisions of chapter 503 of the Laws •of 1887; and the defendant William F. Iler, at the time of the execution of the said assignment, had knowledge of such purpose and intent.”

There was testimony given tending to show that the assignee, Iler, knew before the assignment that the bill of sale was in fraud of the rights of the creditors, and made with intent to hinder and defraud them. On the day of the execution of the bill of sale, a circular was sent to the creditors of Edward H. Sims, with a view of inducing a compromise. After the execution of the assignment, Iler (the assignee) and Young were actively engaged in an effort on behalf of Edward H. Sims to bring about a compromise with his creditors, and Sims & 0o. paid their expenses, amounting to over $1,600. The referee finds that the assignee. Iler, after the assignment, commenced a collusive action against Edward H. Sims, Calvin B. Sims, and Fred H. Young to set aside the bill of sale, but that the action was never proceeded with. It appeared that the defendant Edward, after the execution of the assignment, left the State, and remained outside of its limits, so that his creditors could not serve process upon him. The evidence also tended to show that he afterwards voluntarily came within the state to allow the summons in the action commenced by Iler to set aside the bill of sale to be served on him, and that such action was collusive. Had it been commenced in good faith by Iler, he would have proceeded with it, and would at once have applied for an injunction and receiver to protect the property attempted to be transferred by the bill of sale. On the contrary, Iler took no steps to preserve the property in question during the litigation, and failed to prosecute the action. These were most significant facts, and tended to show, with other circumstances appearing in the case, that Edward, the members of the firm of Rims & Co., and Iler were acting together to prevent creditors from attacking the bill of sale to bring about a compromise, and hence to show that the assignment was a supplement to, and part of, the scheme to hinder and defraud creditors, which commenced with the execution of the bill of sale, and ended with the said assignment.

It is urged in behalf of the appellants that an error was committed by the.referee, on the trial, in overruling objections on the' part of defendants to the reading of the deposition of Edward H. Sims, taken on supplemental proceedings; that this deposition was competent as against Edward H. Sims, but not against the other defendants, and the objections made on behalf of the latter should have been sustained. Scofield v. Spaulding, 54 Hun, 523; 28 St. Rep. 108; Petrie v. Williams, 68 Hun, 589; 52 St. Rep. 587. Assuming that the referee erred in overruling the objections of appellants to the reading of the deposition, and objections to other depositions which were read by the plaintiff, we think such assumption does not necessitate a reversal of the judgment. The-same witnesses whose depositions were so read were afterwards examined on the trial, and substantially the same facts as those proved by the depositions were shown by the oral testimony of such witnesses. It is well settled that, “in an equity action, a new trial will not be granted for errors in the admission or exclusion of testimony, if the case has been decided upon sufficient and competent evidence. Code Civ. Proc. § 1003.” Marsh v. Pierce, 21 Wkly. Dig. 51; Wright v. Dugan, 15 Abb. N. C. 107; Baldwin v. Short, 125 N. Y. 553, 557, 558; 36 St. Rep. 138. The findings of the referee were clearly sustained by competent oral testimony produced on the trial.

Other exceptions were taken by the appellants, upon the trial, which have been carefully considered. It will not be necessary to discuss those exceptions, and we think that neither of them requires a reversal of the judgment.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., not acting.