author: McCarty J. The Court. The Court. The Court.

text:
    David H. Carroll, Resp’t, v. Arthur Tucker et al., App’lts.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Appeal— Charge.
    A failure to charge fully a party’s request is cured where the general charge substantially covers the matter of such request.

      Chas. P. & Wm. W. Buckley, for app’lts; Lyman L. Seltel, for resp’t.
   McCarty J.

This is an appeal from a judgment in favor of the plaintiff.

The action was for brokers’ commission on sales of real estate. The sale of the property for the price mentioned and the main. question was whether a broker named Thompson whom defendants employed to sell their real estate was authorized by them to employ this plaintiff as a sub-broker to sell the property in question.

There was evidence given of such authority and corroborated by a witness, but this was positively denied by the defendant Clarence Tucker and Thompson. This then raised an issue of fact and was properly submitted to the jury, who under the evidence found for the plaintiff. Ho motion on any ground was made to set aside the verdict. This appeal then comes to us on exceptions taken at the trial. They are as follows: The defendants’ counsel: We ask the court to charge that the only evidence in this case upon which they can find a verdict against the defendants is the alleged admission by Clarence Tucker to Mr. Settel that Thompson had' authority to employ another broker.

The Court.—I have not followed the testimony closely enough to be able to say whether or not that is so, but I do charge the jury that if that is all the evidence, the jury cannot infer any other; in other words they cannot indulge in any presumption or supposition.

The defendants’ counsel excepts to the refusal of the court to charge as requested.

The defendants’ counsel also asked the court to charge that if Clarence Tucker did not say to Mr. Settle that Thompson had authority to employ another broker, then their verdict must be for defendants.

The Court.

If there is no other evidence in the case except that.

Defendants’ counsel.—I ask your Honor to charge as requested.

The Court.

Iwill decline to do so, for the reason stated before, that I have not followed the evidence closely enough to be be able to state. Defendants except.

We think the court in substance charged as defendants requested, but if the justice did not, it was certainly cured by the following: '

The Court.

But I will charge you again, gentlemen, that the obligation is on the plaintiff in this case to establish by the weight and preponderance of proof, that Thompson had the right to employ the plaintiff or any other broker to sell the house for the defendants, and that that authority was derived from the defendants themselves. Defendants’ counsel.—You mean by that, authority to employ at the defendants’ expenses ? The Court.—Yes. The defendants’ counsel.—And if they are not satisfied that that is the case, they must find for the defendants. The Court.—Yes; and if you find, gentlemen, that the testimony is evenly balanced, your verdict should be for the defendant; or, if you find that the testimony preponderates negatively, in favor of the defendants. You are to take into account all the evidence in this case.

We find no error, and think the question was fully and fairly submitted to the jury, and judgment should be affirmed with costs.

Yah Wyck and Newburger, JJ., concur.


source: Caselaw Access Project

author: McCarthy, J.

license: Public Domain

text:
    William H. Weaver et al., Resp’ts, v. Joseph T. Farrington, Impleaded, etc., App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Bills and notes—Consideration.
    Part payment and the giving of a renewal note for a less amount in place of the former note constitute a good consideration for an indorsement of such renewal note.

      Nelson S. Carr, for respt’s; Samuel C. Mount, for appl’ts.
   McCarthy, J.

This is an appeal by defendant from a judgment entered herein in favor of the plaintiffs, and against the defendants upon the verdict of a jury, rendered at the direction of the court.

The action was brought to recover the sum of six hundred and twenty-five dollars ($625) with interest, from the 8th day of March, 1893, on a promissory note dated at the city of New York, March 8, 1893, made by one George Blair, payable to the order of Joseph T. Farrington and endorsed, transferred and delivered by the latter to the plaintiffs for value. The note is duly-pleaded in the complaint.

The answer substantially avers that the note in suit was endorsed by defendant Farrington without a consideration, and was diverted by his co-defendant Blair, from the purpose for which it was intended. The defendant Blair failed to appear in this action. The" part payment and the giving of another note of lesser amount, in place of the $700 note, was a good consideration for the transfer of the note in suit. Newman v. Frost, 52 N. Y., 424; Meyer v. Heidelbach, 123 id., 332, 339 ; 33 St. Rep., 610. There was sufficient consideration for the endorsement of this defendant. See National Bank of Gloversville v. Place, 86 N. Y., 444.

Andrews, J., at page 447, says : “It is claimed, however, that, assuming the genuineness of the indorsement of the note of May 24th, there was no consideration to uphold the indorsement of that note, nor consequently of the note given in renewal. We think this point is not tenable. The oral contract made between the bank and Wooster, in December, 1875, to carry the indebtedness of Wooster, arising out óf his indorsements for the Burrs, for one year, was to be performed by his giving short paper, indorsed by the defendant Place and others,- which the bank was to renew from time to time, as it fell due. The note of May 24th was given to renew paper taken by the bank under this arrangement. This prior paper was due or about due when the note was given. The bank could have sued that paper when due, and proof of the agreement to carry the debt, and that new notes had been tendered in renewal, would not have been a defense. The proof of the contract to carry would not have been admissible to control the legal effect of the promises contained in the notes, to pay at a ■ fixed time.

“ The bank, if it had refused to perform its agreement to renew, would, I think, have been liable for the breach, but only on the theory that the promise to carry the debt was a collateral promise independent of the written contract contained in the notes. It would have constituted no defense to an action upon the notes falling d ue within the year. At most it would have constituted a counterclaim to the extent of the injury sustained by its breach. In this view there was ample consideration for the indorsement by the defendant Place of the note of May 24th. The bank, upon taking that note, cancelled the prior paper and extended the payment of the debt. The note in suit was indorsed to be used at the bank to take upon the note of May 24th. This was understood by Place, and it is immaterial, upon the question of consideration at whose request this indorsement was made.” This case is exact in point and controlling. See Young v. Lee, 12 N. Y., 555 ; Phœnix Ins. Co. v. Church, 81 id., 218, 222.

We find no error on the part of the trial justice, and judgment should therefore be affirmed, with costs.

Van Wyck and Newburger, JJ., concur.


author: Ehrlich, J.

text:
    John Snaith, Resp’t, v. George D. Smith, App’lt.

      (City Court of New York, General Term,

      Filed October 20, 1893.)

    Mechanic’s lien—Certificate.
    Where the contract makes the architect’s certificate conclusive evidence of the builder’s right to recover, the giving of such certificate by the architect establishes such right, unless its effect is vitiated or destroyed by the evidence.
    Appeal from judgment rendered by the trial judge on trial without a jury.

      Shepard & Prentiss, for app’lts ; Wilmot & Sage, for resp’t.
   Ehrlich, J.

This action is to foreclose a mechanics’ lien, under a building contract, which by its terms, makes the architect’s certificate, conclusive evidence of the builders right to the final judgment. The architect gave the required certificate, and there was not evidence offered to vitiate or destroy the effect, which the contract provided it was to receive, so that by the terms of the contract, and according to the unbroken line of authorities in this state, the plaintiff’s right to recover was clearly established.

We find no error in the rulings, and the judgment appealed from must be affirmed, with costs.

McCarthy, . J., concurs.


text:
    Charles W. Swain, Resp’t, v. Denman Thompson et al., App’lts.

      (New York City Court, General Term,

      Filed December 8, 1893.)

    1. Appeal—Conflicting evidence.
    The terms of an agreement, where the evidence concerning them is conflicting, are a question of fact for the jury.
    2. Contract—Statute of frauds.
    A contract to employ for a certain number of weeks, perhaps a year, is not within the statute of frauds.

      3. Evidence—Custom.
    Evidence of a contract and the the terms thereof made with different persons is not the proper way of proving a custom, usage or understanding in a profession or business, so as to be binding or form part of the contract.

      Browne & Sheehan, for appl’ts; Dittenhoefer, Gerber & James, for resp’t.
   McCarthy, J.

—There is a marked dispute between the parties as to the terms and conditions of the contract. It is conceded that an agreement was made between them, but they differ widely as to its details. When the evidence is conflicting, it becomes a question of fact for the jury, and all the circumstances were submitted to the jury under proper instructions by the trial justice. They, by their verdict have found that the contract is as claimed by the plaintiff, and we cannot disturb this finding unless for some error of law. The question of the Statute of Frauds has been determined adversely to the appellants, in the able opinion of Bischoff, J., in Haines v. Thompson, 21 N.Y. Supp., 991; 51 St. Rep.,221, and this we must follow. The objection sustained to evidence of a contract and terms thereof made with different members of the company was certainly correct. It was not the proper way of proving a custom or understanding in the profession so as to be binding or form part of a contract. See Walls v. Bailey, 49 N. Y., p. 463, 468 and 470. Each of these witnesses testified, that the two weeks’ notice was specially agreed by each of them and this was simply an effort to show that the defendant had made contracts with others, this was immaterial and not binding on the plaintiff. The question here is what was the contract between the plaintiff and defendant and whether there was custom or usage in the profession as to a notice and right of the defendant to terminate such engagements and was the contract made with reference to or with knowledge of this custom or usage. The evidence proposed and objected to, did not as said before tend in that direction.

After a careful review and examination of the points suggested by the appellants, we are of the opinion, that no error has been committed, and that this judgment should be affirmed with costs.

Ehrlich, Oh. J., concurs.


text:
    William Fiss et al., Resp’ts, v. Henry M. Warren, Imp’ld, etc., App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Trial—Affirmative.
    The defendant, by claiming and being allowed the affirmative, admits, in effect, that the plaintiff has proved, in all its essentials, a prima facie case by which he is compelled to prove his defense, if any.
    Appeal from a judgment in favor of plaintiffs.

      Edward B. La Fetra, for- resp’t; Strong, Hannon & Matheson, for app’lts.
   McCarthy, J.

The defendant, Warren, is the only one who defends. By the pleadings, Warren, who was the maker of the note in question admitted the making of the note and the delivery to Lowe, and that before maturity he endorsed same and delivered to Carroll, but denies it was for value, and asserts he has no knowledge sufficient to form a belief as to the endorsement and delivery of the note to the plaintiff. As a second and further defense he asserts as follows :

“ He further alleges that the said note referred to in the corn-paint was wholly an accommodation note, and was given by this defendant to the defendant Lowe under the following circumstances :

On and prior to the 31st day of December, 1892, the defendant, Joseph Carroll, was the owner, as this defendant is informed and believes, of a certain lease, stable business, horses, carriages, etc., covering and located at Nos. 124 and 126 East 121st street, in the city of New York, and conducted under the name of the Sylvan stables, that an agreement was entered into on or about said date between this defendant, the defendant Lowe, and the defendant Carroll, in and by which said defendant Lowe purchased from the defendant Carroll, a one-half interest in said business, and stock for the full consideration of $5,500. $5,500 advanced by this defendant to said Lowe, and by the latter paid over to said Carroll $2,500 in cash, and the balance by three promissory notes made by this defendant to the order of defendant Lowe for $100 each and payáble three, four and five months respectively from January 1, 1893; the second of said notes is the note specified in the complaint herein; that as the moving consideration for said purchase, a copartnership was simultaneously formed between said defendants, Carroll and Lowe, to continue until the first day of October, 1897, for the purpose of conducting the business theretofore carried on by defendant, Carroll, under the said name of the Sylvan stables, as by said copartnership articles and the contemporaneous agreement will more fully appear that the said money and promissory notes were advanced by this defendant to said Lowe as aforesaid in reliance upon the representations of the defendant Carroll to this defendant as well as to the defendant Carroll, that said stable business was highly prosperous and successful, and that he, the said Carroll, would devote his time and energies to the furtherance of said business as required by the copartnership articles, and that thereby the defendant Lowe would be enabled to repay from the profits of said business the amount advanced to him as aforesaid by this defendant in money and notes, said Carroll agreeing to extend said notes from time to time to enable said Lowe so to do; the defendant Carroll, after the formation of said copartnership did not observe, but in many ways and particulars broke, the articles of copartnership existing between him and the said Lowe, and endorsed and contrived by various ways and means to destroy and injure' the business of said Sylvan stables, with a view to forcing the defendant Lowe from said partnership, and did not devote his time and energies to said copartnership business as required by the articles of copartnership, and did in fact, as early as the month of April, 1893, destroy and force a dissolution of said partnership between himself and said Lowe, and that by his wrongful acts, resulting in the injury and depreciation of said partnership, the defendant Carroll has destroyed the consideration upon which said notes were delivered to him, to an extent in excess of the amount of said three notes, with the interest thereon, and that the consideration, if any at any time existing both between this defendant and the defendants Lowe and Carroll, and also between the defendant Lowe and the defendant Carroll has wholly failed.

“That said Joseph Carroll, as this defendant is informed and believes, at or prior to the date of the maturity of said note, deposited the same with the plaintiffs for collection to the account of the plaintiffs; and the plaintiffs did "not become the holder, thereof for value received and without notice, and that plaintiff, as this defendant is advised and believes, took and holds said note as an agent of the defendant Carroll, and. subject to all the equities and defenses existing as between this defendant and the defendant Carroll.

“ Wherefore, this defendant demands judgment that the complaint herein be dismissed as to him with costs.

Strong, Harmon & Mathewson,

Attorneys for defendant Henry H Warrent

45 William street, Hew York city.”

“City and County of New York, ss.:

Henry H. Warren, being duly sworn, says, That he is the defendant above named; that he has read the foregoing answer and knows the contents thereof; that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true.

“ H. M. Warren.”

“ Sworn to before me, this 15th ) day of May, 1893. j

“John Davis,

Notary Public. N. Y. Co.”

At the trial, the defendant Warren claimed and was allowed the affirmative. This in effect admitted that the plaintiff had proved in all its essentials a prima facie case by which the defendant was forced to prove his defenses, if any. It seems to us, from the admissions contained in the pleadings and an inspection of the second defense, that there was a good and valuable consideration and that the plaintiffs were bona fide holders for value and that no defense is presented by this defendant. We think the trial justice was correct in directing a verdict for the plaintiff.

Judgment should, therefore, be affirmed, with costs.

Van Wyck and Hewburger, JJ., concur.


text:
    James Riley, Resp’t, v. The Western Union Telegraph Co., App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.

    1. Telegraph companies—Contract.
    A statement by the company of the terms upon which messages will be transmitted over its lines, and the knowledge of acceptance of these terms by the sender, constitute a valid contract as the terms upon which the message is sent.
    2. Same—Conditions.
    A condition that the company is not, in any case, liable for delays arising from unavoidable interruption in the working of its lines or for errors in cipher or obscure messages, is reasonable and not against public policy.
    3. Same—Damages.
    Unless there is some evidence of willful misconduct or gross negligence on the part of the company, the sender’s damages even though the company is negligent, are limited to the amount paid for sending the message.
    Appeal from a judgment in favor of the plaintiff.

      L. J. Morrison, for resp’t; Hush Taggart, for app’lt.
   McCarthy, J.

This is an action brought to recover damages for injuries sustained September 13th, 1892, by a sailing yacht, resulting, as is alleged, from the negligence and carelessness of the defendant, the Western Union Telegraph Company, a corporation organized under the general statutes of New York, in not' promptly delivering a message written upon one of the defendant’s regular message forms and intrusted by the plaintiff to it for transmission to James R. Mack, at Bath Beach, Long Island, as follows: “ Ask Garry take boat to clubhouse, going to storm. Riley.” The defendant while admitting that it received the message at one of its offices, 233 Grand street, in the city of New York, and that plaintiff paid the sum demanded for the service, twenty-five cents, denies all negligence, carelessness and want, of, skill in the transmission of the message, and by way of special defense and in mitigation of damages alleges that said money was received by it under the terms of a special contract between plaintiff and defendant whereby plaintiff agreed that defendant should not be liable for mistakes or delays in the transmission or delivery or for non-delivery of any unrepeated message, beyond the amount received for sending the same, and further alleges that plaintiff’s said message was an unrepeated message, and was delivered to defendant to be transmitted as such, and was paid for as such unrepeated message. Defendant also alleges that all delay which may have occurred was due to atmospheric disturbances and causes beyond human control, and not from any negligence or unskillfulness on its part. The plaintiff offered evidence tending to prove that plaintiff delivered the message in question at one of the defendant’s offices at 233 Grand street in the city of New York at 12.15 o’clock in the afternoon of September 13, 1892, that it was written upon one of defendant’s regular message blanks, and that the plaintiff at the time knew of the conditions upon the face and back of the blank; that it was delivered by the defendant’s messenger at the Grange in Bath Beach to one Annie Hutton for the addressee, who receipted for it at 2.45 o’clock on the same day; that Miss Mack, daughter of the addressee, received the message from a little girl between 3.05 and 3.30 o’clock; that Miss Mack handed it to a daughter of the plaintiff; that Pauline Grumbrede, a daughter of plaintiff, received it from Miss Mack “ about 3.30 P. M.,” and that she took it down to the pier and gave it to Garrett Van Cleef about ten minutes after she received it. Mr. Van Cleef testified he received it about 4 P. M. to the best of his recollection, and that at the time he received it Mrs. Grumbrede asked him if he could take the boat to the yacht club, and answered, “If I had had the dispatch an hour ago I could have done so, but not then ; it was impossible for me alone to take it then.” The storm came up about noon, increasing in violence throughout the day. The boat went ashore some time during the night after seven or eight o’clock in the evening.

On the part of the defendant the testimony showed that the message was sent from the Grand street office in the usual course of business, and was received at the main office of the defendant, 195 Broadway, Uew York city, before 1 o’clock, at which time the operator “ called ” the Bath Beach office, but could not “ raise ” it, and she made a note to this effect on the back of the message. Similar attempts were made, with like result, to communicate with the Bath Beach office at 1.15, 1.25, 1.30, 1.40, 1.50, 2 and 2.10 P. M., all of which were noted on the back of the message.

The message was sent at 2:10 p. M., was received at Bath Beach at 2:22 o’clock and was sent out for delivery in the usual course of business about 2:40 p. iff. It further appeared that the telegraph wire between Uew York city and Bath Beach was grounded ” or “ dead ” from 12 o’clock noon to 2:22 p. M. of that day. It was delivered, at the “Grange,” where it was addressed at 2:45 P. ir. as shown by plaintiff’s witnesses. The jury found for plaintiff in the sum of two hundred and thirty-four dollars and fifty cents ($234.50).

Defendant moved for a new trial, which was denied, and judgment was entered for the amount of the verdict and costs aggregating three hundred and sixty dollars and eighty-seven cents ($360.87). Defendant appeals from both the order denying the motion for a new trial and from the judgment. The statement of the terms by the defendant upon which messages would be transmitted over its lines and the knowledge and acceptance of these terms by the plaintiff constitutes a valid contract as to the terms upon which the message in question was sent. Young v. Western Union Telegraph Co., 65 N., Y. 163, 165. This message was not repeated and one of the terms of this contract was that the defendant would not be liable for mistakes or delays in the transmission or delivery or for non-delivery of any unrepeated message beyond the amount received for sending the same, * * * nor in any case for delays arising from unavoidable interruption -in the working of its lines or for errors in cipher or obscure messages. These condi tions are reasonable and not against public policy; on the contrary, they subserve it to cany- out the objects for which telegraphic associations are created and especially to secure the receipt of a" message in the words in which it is written and delivered for transmission and under their general power the defendants are authorized to prescribe such regulations as they deem necessary, to guard against errors or- delays, by reason of the negligence or omission of their employees in the transmission or delivery of messages and to declare that a party who fails to comply therewith, should assume all risks and losses resulting from such errors or delays. Breese v. U. S. Telegraph Co., 48 N. Y., pp. 138, 139 and 141.

Unless then there is some evidence of willful misconduct or gross negligence on the part of the defendant, the plaintiff’s damages even if the defendant is negligent, are limited to the amount paid for sending messages. For all the authorities declare in case where no contract has been made and where the message is sent unconditionally, that mere delay unexplained is prima facie evidence of negligence, but not so in view of the terms of the contract, in order to entitle plaintiff to recover any greater sum than provided for by the contract. Allen, J., in Baldwin v. The U. S. Telegraph Co., 45 N. Y., pages 751, 752, says: “But an error in transcribing the direction, and a consequent misdelivery, axe prima facie evidence of neglect and want of care in the operator, and cast the burden upon the company of explaining the erro.r and showing that it occurred without fault. This is upon the supposition that the message is received for transmission unconditionally. For the purpose of this appeal, it is assumed, but not decided, that this message was not subject to the terms and conditions ordinarily ' attached to the receipt of messages for transmission, but that the defendant is subject to all the liability which legally results from a receipt of a message and a naked agreement to transmit the same to its destination- for a reasonable compensation paid thereof. If the terms and conditions, ordinarily imposed were a part of the contract, the question would arise whether the defendant would not be protected against liability for the “ error and delay ’’ in the delivery of the dispatch. See Mac Andrew v. Electric Tel. Co., 17 C. B., 3 ; Ellis v. American Tel. Co., 13 Allen, 226. It is conceded that the day on which the message was sent, was a stormy one, which began at 11:30 o’clock A. M. and increased in violence toward the night. It appears by the testimony that besides this, the operator in the general office in New York city, made repeated efforts to transmit, said message between one and 2:20 P. M., and that the wire was “ grounded ” or “ dead ” and thus the defendant was unable to send any message until 2.20 o’clock p. M., when for the first time secured communication.

That the operator at Bath Beach at about 12:45 o’clock p. M. discovered his wire connecting with New York City was in trouble or “grounded,” or “dead,” and he prevented from transmitting any messages over the same. He endeavored to transmit messages between that time (12:45 P. M.) and 2:20 o’clock P. M., when he received the one in question. That he kept testing between the intervals of ten and fifteen minutes until he finally received this message. Seepages 25-34 of case. Thus it seems that this interruption and delay was not willful nor was it due to any gross negligence.

The authorities recognize a distinction in the degree of negligence by the degree of care required. Bouvier’s Law Dictionary, vol 1, page 225, as follows: “ Thus in the first class, the bailee is req uired to exercise only slight care and is responsible of course only for gross negligence. In the second, he is required to exercise “ great care and is responsible even for slight neglect.” In the third, he is required to exercise “ordinary care and is responsible for ordinary neglect.” Gross negligence is therefore the want of slight care.

We have examined the testimony carefully and cannot find any evidence showing a want of slight care and when such arises, it then becomes a question of law for the court, and it is error for the court to submit the case to the jury. They cannot be permitted to speculate or conjecture, nor to determine the question by bias, prejudice or passion. There must be some foundation as well as substance in the evidence upon which they can act.

The defendant did all that could be done under the circumstances, and the delay was not unreasonable. It was undoubtedly for the purposes of guarding against such occurences as the present that the contract contained in the blank message was made. Pearsall v. W. U. Tel. Co., 124 N. Y., 266, 267 and 269 ; 35 St. Rep., 307; Kiley v. Western Union Tel. Co., 109 N. Y., 235 and 236; 14 St. Rep., 816. Allen, J., at page 236, says: “It is not the case of a message delivered to the operator, and sent by him from his office. This certainly would be gross negligence.” Daly, Ch. J., in Sprague v. Western Union Tel. Co., 6 Daly, at page 203 (affirmed in 67 N. Y., page 590 on opinion below), says: “ The expenses to which the plaintiff was necessarily put through their neglect is not embraced by any of the stipulations limiting their damages to the amount received for sending the message. “ This was not a mistake or delay in the transmission or delivery, or a non-delivery, but an entire breach of the contract by a neglect to send the message at all, and which rendered them liable for such damages as were the direct natural and proximate consequences of their total neglect to do what they had to do. De Rutte v. The N. Y. Telegraph Co., 1 Daly, 547. Here, in our judgment, is a clear and decisive explanation of what is wilful misconduct or gross negligence. The cases cited by the respondents have been carefully examined, and we find that they do not apply. They are either, where the contract was not as bread as the one at bar, or, in other words, not containing the same limitations, or was as in Milliken v. Western Union Tel. Co., 110 N. Y., 403; 18 St. Rep., 328, on a new contract without limitation made with the person to whom the message was to be sent or delivered. There being no evidence of willful misconduct or gross negligence, the trial justice erred in not granting the defendant’s requests. That the court direct a verdict for the plaintiff not to exceed twenty-five cents, the amount paid for the telegram or message. That the court charge the jury that there is no evidence from which they can find that the defendant was guilty of any negli-r gence in failing to deliver the message, or in delay as to the delivery.

For these reasons, judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event

Newburger, J., concurs.


text:
    August Gemunder et al., Resp’ts, v. Isidor Hauser, App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    1. Brokers—Compensation.
    It is not necessary that the broker should know the purchaser; if he is found through the efforts and instrumentality of the broker, the latter is entitled to compensation, though the owner negotiates the sale.
    3. Same.
    Nor is it, in such case, indispensable that the purchaser should be'introduced to the owner by the broker.
    Appeal from a judgment entered upon a verdict, and from an order denying a motion for á new trial.

      Townsend, Dyett & Einstein, for app’lt; Ullo, Buebsamen & Cochran, for resp’ts.
   McCarthy, J.

In the latter part of the month of March, 1891, the defendant who was the owner of a very rare violin known as an Antonio Stradivarius, called at the store of the plaintiffs, who are dealers and makers of violins. The conversation turned on this violin, with which the defendants were familiar by reason of an endorsment which they had given as to the genuiness of the instrument The defendant having informed the plaintiffs that the violin was still unsold, they suggested that the instrument should be placed in the hands of one house who would undertake to advertise it, and thus bring it before the musical public in the proper business way; also saying to the defendant that he would never be able to sell it if he kept bringing it from dealer to dealer. The defendant stated that he was willing to sell it for $3,500, but the plaintiff said that it should be sold for not less than $4,000 and ought to bring $5,000; and that, if the instrument wag placed in the hands of one dealer for about a year, that on those conditions his firm would undertake the sale, if the defendant should select them. And that if the-defendant decided to let them have the sale of it, that he should bring them the history as they were about to issue a circular in April. And they agreed also to notify defendant when the circulars were to be issued. Subsequently, and on April 18, 1891, the plaintiffs wrote to the defendant requesting the date and history of the violin, so that it could be entered in their list In reply to this latter, the defendant called on the plaintiffs and brought them the history requested. He was then told that it was too late for the regular list, but that a special circular would be issued for this violin. And it was agreed that the price was to be $5,000, of which the plaintiffs were to receive ten per cent, commission. Plaintiffs issued a circular containing a history of the violin, and requesting that all correspondence regarding it should be addressed to them, at their place of business in the city of Hew York, and stating that they had “ sole control of the sale of the instrument.” The plaintiffs caused copies of the circular to be sent to the defendant, and to be distributed in various cities, and among various musical people, and also published a notice about the violin in several musical newspapers in this country and in England. In October, 1891, plaintiffs became acquainted with Miss Van Stosch, the famous violinist, and called her attention to the instrument, discussed its merits with her, and promised to introduce her to defendant that she might see it. Before the plaintiffs had an opportunity to perform his promise, she became acquainted with a friend of the defendant, who spoke to her about a' violin of which his friend was very proud, and asked her if she would not like to see it, as it was a very magnificent instrument She then went to defendant’s house where she met the defendant himself and saw the instrument referred to. Defendant informed her that it was the instrument that was reported to belong to Yieuxtemps. She immediately remarked “ this must be the violin of which Mr. Gremunder has talked so highly.” Defendant replied that it was and that Mr. Gremunder had circulars out for sale of the instrument

Miss Yon Stosch told defendant that Mr. Gremunder had spoken highly of the instrument, and called her attention to it; and that it was an instrument of which she knew nothing at the time of her going to Mr. Gfemunder’s. She was also allowed to try the instrument, but nothing was said by the defendant about selling it to her. The next day she saw Mr. Gremunder and told him all that occurred the previous day. The plaintiffs immediately wrote to the defendant informing him that they had been negotiating with Miss Yon Stosch about the instrument, and requesting that she might be' allowed to play on it at the Arion concert, and that if she liked the instrument they would endeavor to have her wealthy friends purchase it for her. The plaintiff also saw the defendant about the loan of the instrument to Miss Yon Stosch and told him that Miss Yon Stosch was to play on a violin of their own make, but that they would withdraw in his favor, as there might be a chance of selling the violin to her. Miss Yon Stosch subsequently played on defendant’s violin at the concert referred to. The plaintiff urged the value of the violin on Miss Yon Stosch and persuaded her to induce some friends to buy it for her.

A few weeks after she met a Mr. McKay who talked to her of the violin which she was playing on, and asked if it was the only one she had ? She replied it was, and to his further inquiry if she knew of a better one, she told him of the Stradivarious of the defendant.

Mr. McKay told her if she could buy the instrument to do so at once, and that he would send a check as soon as the matter was decided. She then went and saw the defendant and the transaction was closed a few days later for five thousand dollars ($5,000). While Miss Yon Stosch was negotiating the sale with defendant, he requested her not to go near the plaintiffs. On her replying that she had already seen them, defendant was put out, and told her that he had sent her a dispatch telling her not to go near them. She said that she did not see why she should not tell Gemunder, why it should be kept a secret. He also said that plaintiff would never get any commission out of him, and that he would rather sell it to another man for four thousand five hundred dollars. The jury returned a verdict in favor of the plaintiffs for the sum of five hundred and twenty-five dollars, the amount claimed and interest.

The defendant now appeals to this general term of this court from the judgment entered on the verdict, and also from the order denying the motion for a new trial. By the pleadings, it is conceded that the violin in question was sold for $5,000 and purchased by one Gordon McKay. The employment of the plaintiff as well as the rendering of any services are denied by the defendant. It is also denied that the plaintiffs effected this sale or was the procuring cause of the same. The evidence on these points being conflicting, was properly submitted to. the jury, and they have found that there was an employment and services rendered as claimed. The only serious question to consider is, was the sale of this violin made through the instrumentality of the plaintiff, and he the procuring cpuse of such purchase or sale. We think, from a careful examination of the facts in this case, that the plaintiffs were the procuring cause of this sale. It was not necessary for them to know the purchaser, if he was found through the efforts and instrumentality of the broker, for the broker then is entitled to compensation, although the owner negotiates the sale himself. Lloyd v. Matthews, 51 N. Y., 124, 133.

Mor is it indispensable that the purchaser should be introduced to the owner by the broker, nor that the broker should be personally acquainted with the purchaser. Sussdorff v. Schmidt, 55 N. Y., pp. 319, 322 and 323. The facts in Sussdorff v. Schmidt are indeed very similar to those of the case at bar. In Levy v. Coogan, 9 N. Y. Supp., 535; 30 St. Rep., 553, Bischoff, J., says: “ If through the instrumentality of the broker, the buyer and seller meet and negotiations are thus opened between them which continuing without withdrawal by either party therefrom culminate in a sale. * * * I can see no equitable ground in support of the claim that the broker has not been the procuring cause of the sale, and has not for that reason earned the commissions.” See Sibblard v. Bethlehem Iron Co., 83 N. Y., 382. See King v. Bauer, 8 N. Y. Supp., 446-468; 29 St. Rep., 414.

We find no error on the part of the trial justice.

For these reasons judgment should be affirmed, with costs.

Ehrlich, Ch. J., and Mewburger, J., concur.


author: McCarthy, J. Van Wyck, J. (dissenting).

text:
    Eva L. Goldenson, Resp’t, v. Chester B. Lawrence, App’lt.

      (New York City Court, General Term,

      Filed December 8, 1893.)

    1. Appeal—Record.
    Where the record does not show that a motion to strike out a defense and the evidence in support thereof was passed upon, the appellate court is bound by the record and has no right to assume that the motion was granted.
    2. Warehousemen—Conversion.
    Where a party stores goods with a warehouseman as the owner, and another person afterwards demands them and presents the warehouse receipt with the claim that he is the person named as the bailor therein, but there is no transfer of such receipt to him and no explanation of his right to it except the mere possession, the question as to whether he is the owner should be submitted to the jury.
    Appeal from a judgment entered upon a verdict directed by the court from an order denying a motion for a new trial.

      David Leventritt, for resp’t; Goodrich, Deady & Goodrich, for app’lt.
   McCarthy, J.

This is an appeal from a judgment entered upon a verdict directed by the court and from an order denying a motion for a new trial.

Action to recover damages for the conversion of sixteen casks of soda ash valued at five hundred dollars ($500). By the amended answer the appellant interposed several defenses which appear thereby. By a stipulation which accompanied the amended answer, it was provided that upon failure to prove certain things, the whole of the seventh paragraph should be stricken out at the end of the testimony, and also that all of the evidence which might have been given to sustain the allegations in the seventh paragraph. But, however, it was further provided that, if at the close of the testimony evidence should appear upon the minutes of the court to sustain a finding that the plaintiff received the transfer of said casks of soda ash with knowledge or notice of the facts connected with the purchase or procurement of the said casks by said Seligman from the firm of Welch, Holme & Clark, then the question shall be submitted to the jury as to whether the plaintiff had such knowledge or notice at such time, but with the charge that if they find that plaintiff had not such knowledge or notice at such time, and also find that said Seligman transferred to the said plaintiff said casks of soda ash for full value theretofore received by him from her, then and in that event they must find a verdict for the plaintiff.

The defendants are warehousemen, and as such received the sixteen casks as stated in their warehouse receipt. The “ Mr. E. L. Goldenson ” named in said receipt was proven to be the plaintiff’s brother Solomon Seligman, although he represented himself to defendant to be Mr. B. L. Goldenson.”

The case contains voluminous testimony for the defendants in support of their allegations in paragraph 7 of the amended answer. At the close of the testimony the plaintiff, by her counsel, moved to have the said paragraph 7 of the amended answer stricken out, and all of the evidence of the defendants in support of the allegations therein also stricken out. The record shows that the court did not grant the motion. The motion was opposed by appellants’ counsel, who also requested the court to submit certain questions to the j ury upon the evidence in support of that paragraph, and also to charge the jury on certain propositions relative to the defenses of the seventh paragraph, and the proofs in support thereof. The court permitted the seventh paragraph of the amended answer, and all the evidence in support of it, to stand. However, the trial judge, “under the stipulation entered into between the parties,” directed a verdict for the plaintiff for the full amount claimed by her, although the said allegations and proofs in support thereof were not stricken out. To "the said direction of a verdict, and also the refusal of the trial judge to submit the questions to the jury, the appellants excepted.

Of course the defendants must be held to the stipulations made.

At the close of the case the plaintiff’s counsel moved as follows:

In the light of the stipulation I move to strike out paragraph seventh of the ansiver interposed by defendant under and in pursuance of the terms set forth in the stipulation in evidence/ and I move to strike out all the testimony that has been offered under said seventh subdivision, that is, the testimony regarding all the representations that ivere made by said Seligman with reference to the purchase of goods by him from Welch, Holme & Clark, and also the statement that he made subsequently with reference to said statements, or to their truthfulness or their falsity, and all the statements that he made thereafter to Mr. Smith, the attorney, at the interview in his office.

Also the statements claimed to have been made by Mr. Sherrill and in the hearing and presence of Mr. Kuschewsky ; and all statements made to any of the witnesses regarding the purchase of the property in question and the manner in which he became possessed of it.” The court did not pass on this motion, and after a series of requests by defendant’s counsel, the court said: “ Under the stipulation entered into between the parties to this action marked plaintiff’s exhibit Ho. 1, I direct a verdict for the plaintiff for five hundred and fifty dollars ($550). In accordance with this direction the jury found a verdict for this sum. We must be bound by the record of the trial and have no right to assume that the motion to strike out was granted, any more than we can say, in a case where an objection has been made and overruled, and no exception appears to be taken, that it was the intent of the party to take an exception. The trial justice had the right if he saw fit to direct a verdict for the plaintiff on the ground that with all the testimony presented it came within the provision of the latter part of the stipulation and that there was no question to go to the jury. We must, therefore, dispose of this case on all the testimony presented, and if there was any evidence to go to the jury on any material fact, then the trial justice erred in directing a verdict. This was not the case of a bailor claiming or demanding his property from the bailee, but the resisting of the claim and demand of a mere stranger to the bailee.

It appears that one Religman, the brother of the plaintiff, stored the property in question in the name of Mr. E. L. Groldenson, and said that this was his name, and stated that he was the owner and had purchased it for himself. Besides, he gave reasons why he wished the property stored with the defendants temporarily, and signed the main receipt stub B. L. Goldenson, stating it was his name. It is in evidence that, during all the trial, Seligman, the brother, was in court, but was not called to contradict or explain this evidence. Therefore, for the purposes of this case, it not being contradicted, we must assume it to be true. The bailor, so far as known to defendant, was Seligman, who, during the trial, was pointed out in court as having represented himself as the owner and that his name was Mr. E. L. Goldenson, and in the presence of others signed the name B. L. Goldenson. He did not deny this, although it was important. Seligman could have owned this property and stored it in any name he pleased, as well as call himself by any name he wished, but having done so, could not, if he was the real owner, release himself from his liability.

The plaintiff thereafter presented herself at defendant’s place of business, and having the storage receipt, demanded this property and said she was the person stated therein as Mr. B. L. Goldenson, and the owner of the property. There was no assignment or transfer of this receipt from Mr. B. L. Goldenson to the plaintiff, and no explanation of her right to it, except the mere possession of the same. Nor was Seligman with her to sustain her claim or to waive whatever rights he might have as original bailor. The plaintiff cannot succeed unless she is the bailor or owner. We think that there was sufficient evidence to go to the jury on the question whether Seligman transferred to the plaintiff the property in question for full value theretofore received by him from her and thus as requested by defendants’ counsel, whether the alleged purchase by Mrs. Goldenson from Seligman was a bona fide purchase or not. If not, she was neither bailor nor owner and not entitled to the property.

Warehousemen are not only liable for losses occasioned by their negligence, but for those which arise from innocent mistakes in the delivery of goods to persons not entitled to receive them. Bank of Oswego v. Doyle, 92 N. Y., page 42. So far as anything appears in this case except the uncorroborated statement of plaintiff, Seligman, known as Mr. E. L. Goldenson, is still the bailor and owner. While a bailee who permits the property of the bailor to be taken by a stranger, may excuse himself by showing that he yielded to the power of legal process, it does not follow that a seizure under such process after the bailee has negligently allowed the property to pass into the hands of trespassers or persons who have no right to it, will be any protection to him in action by the owner. If Seligman, known as B. L. Goldenson, is still the bailor and owner, then Eva L. Goldenson has no cause of action. Roberts v. S. S. D. Co., 135 N. Y., pages 65, 66 and 67 ; 33 St. Rep., 175. This is not the case where a bailee seeks to avail himself of the title of a third person for the purpose of keeping the property himself from the bailor, but rather where the bailee is endeavoring to protect and defend against a stranger and trespassers. Western Transportation Co., v. Barber, 56 N. Y., pages 544, 552 and 553; Ouderkirk v. G. N. Bank, 119 N. Y., pages 266, 267 ; 29 St. Rep., 573; see Blivan & Mead v. Hudson River R. R. Co., 36 N. Y., pages 403 and 406. Here the title of this plaintiff is impeached.

Earl, C. J., in Ball v. Linney, 46 N. Y., page 12, says: “ It is undisputed that, the plaintiff owned the goods which were stored with defendant. Indeed no effort was made on the trial to impeach his title."

Again at page 13. “ It does not appear that he prosecuted any inquiries as to the title of the property and it does not appear that he had any reason to believe that it belonged to Gregory, who was admitted to be the agent of the plaintiff, for when the latter brought it to the warehouse, he simply claimed to be agent and marked his name on the property as agent.” See Kowing v. Manly, 49 N. Y., pages 192, 196. In the case at bar everything was to the contrary.

The question of Iona fide ownership of the plaintiff should under the stipulation as well as under the defense previous to the seventh have been submitted to the jury and for this reason judgment should .be reversed, and a new trial ordered, with costs to abide the event.

Newburger, J., concurs.

Van Wyck, J. (dissenting).

— The defendants’ attorneys stipulated that this case was not to be submitted to the jury unless at the close of the testimony the evidence was sufficient to sustain a finding.

“ That the plaintiff received the transfer of the said casks of soda as referred to in the complaint herein, with knowledge or notice of the facts connected with the purchase or procurement of the said casks by said Seligman from said firm of Welch, Holme & Clark."

There is no evidence whatever in the case from which the jury could find that plaintiff bad such knowledge or notice hence the trial judge was compelled under the stipulation to direct a verdict for plaintiff.


author: Newburger, J.

text:
    W. D. Wilson Printing Ink Co., Limited, App’lt, v. Austin E. Ford et al., Resp’ts.

      (New York City Court, General Term,

      Filed December 8, 1893.)

    Tender—Interest.
    In order to keep a tender good, the deposit in court must include inter est on the amount admitted to he due up to the day of deposit.

      Philip Carpenter, for pl’ff and app’lt; W. Lane O'Neill, for def’t-resp’t.
   Newburger, J.

This is an appeal from a judgment in favor of the defendant and against the plaintiff, after a trial before the court without a jury.

This action was brought on a promissory note given by the defendants. The answer is a tender. The tender was made on the 10th day of July, 1890, and the amount tendered at that time Was one hundred and fifty-three and 50-100 dollars ($153.50), which was paid into court on August 19, 1890. The deposit in court should have at least been accompanied by the interest up to the time the deposit was made, for the defendant had the unrestrained use of the money up to that time. Murphy v. Gold Stock Co., 3 N. Y. Supp., 804-806; 24 St. Rep., 123 ; City Court, 1889.

In the case at bar, interest to date of deposit did not accompany the deposit, therefore, the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

Ehrlich, Oh. J., concurs.


text:
    William Risk, Resp’t, v. Richard Uffelman et al., App’lts.

      (New York City Court, General Term,

      Filed December 8, 1893.)

    1. Attachment—Vacation.
    A justice of the district court can, on the return day of the summons or at any other time to which the action is adjourned, vacate a warrant of attachment and dismiss the action.

      % Same—Sureties.
    In such case, the defendant therein has a right of action against the sureties on the undertaking on attachment.
    Appeal from a judgment in favor of plaintiff.

      Uriah W. Tompkins, for app’lts; James R. Angel, for resp’t.
   McCarthy, J.

The justice of the district court had jurisdiction and control over all processes issuing ont of his court and could on the return day of the summons, or at any other time to which the action was adjourned, vacate the warrant of attachment and dismiss the action. Section 2916, 2917, Code of Civil Proc. The original summons and papers in the case of Tilly Seligman v„ Risk were not returned to the court on the morning of the return day of the summons, but the defendant who had been served with a copy of the summons and papers on the attachment voluntarily appeared and answered, and during the regular proceedings of the court, the justice, on motion of defendants’ attorney, called the parties to the action, and plaintiff failing to appear, vacated the attachment and dismissed the action. This was done on the copy summons and other papers and he had the power to do so. When the attachment was vacated and the action dismissed, the plaintiff therein had a right of action against the sureties on the undertaking on attachment The questions, as to whether a levy had been made, and as to whether the property was sold by the marshal, or under his directions, were disputed ones, and were therefore properly left to the jury, and on such questions their finding is conclusive.

We find no material error in the case and judgment should, therefore, be affirmed, with costs.

Ehrlich, Ch. J., concurs.


text:
    Willard Richards, App’lt, v. Nathaniel A. Reed et al., Resp’ts.

      (New York City Court, General Term,

      Filed December 8, 1893.)

    Pleadings—Counterclaim.
    A demand against the plaintiff and another jointly is not a legal counterclaim. •

      Oayley, Bancus & Fleming, for pl’ff and app’lt; Warren F. Sammis, for def’ts and resp’ts.
   Newburger, J.

This is an appeal from so much of an interlocutory judgment herein as overrules a demurrer interposed by the plaintiff to a defense set forth in the answer. The action is brought upon a promissory note made by the defendant Reed to the order of the defendant Yandewater, and indorsed by the latter. The plaintiff sets forth that the note was duly transferred, sold and delivered for value to the plaintiff herein. The answer interposed by defendants alleges: First, that the indorsement by the defendant Yandewater was without consideration, and for the accomodation of the defendant Reed, the maker of the note, and one Anna Richards, the wife of the plaintiff. Second, alleges certain facts arising out of a real estate transaction between the plaintiff and his wife, parties of the first part, and the defendant Reed, alleging a breach of said contract on the part of the plaintiff, and that the defendant Reed sustained damages by such breach in the sum of $2,000, which damages the defendants counterclaim against the plaintiff’s claim herein. The plaintiff demurred to the answer, and the justice at special term sustained the demurrer as to the first defense, but overruled the demurrer as to the second defense. The demurrer as to the second defense should have been sustained. Upon an examination of the pleadings it is apparent that the second defense and counterclaim, as they are set forth in the joint answer of the defendants, are not available to both "of the defendants. The contract for the breach of whjch the counterclaim is interposed is a joint obligation of the plaintiff and his wife. It is not a claim against the plaintiff individually. It was not a demand against the plaintiff alone, but against the plaintiff and another jointly bound with him.

The judgment herein must therefore be reversed, and the demurrer sustained, with leave to defendant to answer upon payment of costs of demurrer and appeal.

Ehrlich, Oh. J., concurs.


text:
    James E. Nichols, et al., Resp’ts, v. Herman Bauman, App’lt.

      (New York City Court, General Term,

      Filed December 8, 1893.)

    Guaranty—Revocation.
    A continuing guaranty can be revoked by the guarantor upon proper notice to the guarantied' party, if, at the time of such notice, all sums due have been paid.
    Appeal from a judgment in favor of the plaintiffs.

      Henry D. Hotchkiss, for pl’ff and resp’ts; Barker & Wilson, for def’t and app’lt.
   Newburger, J.

This action is brought on a written guaranty by the defendant running to the plaintiffs, to the effect that one Hirsh Bauman would pay for all goods sold to him by the plaintiffs, defendant’s liability not to exceed $200. The claim of the plaintiffs is for the full amount guaranteed, the complaint setting up sales of merchandise to Hirsch Bauman between the 25th day of February and the 7th day of March, 1891, exceeding two hundred dollars ($200) in value. The defendant set up as an affirmative defense, an allegation that after payment in full by the debtor, he notified plaintiff that he would withdraw his guaranty, and that all subsequent sales by them to the debtor would be on the responsibility of the latter alone, and that the guaranty was cancelled by the act of the parties.

At the opening of the trial, defendant admitted all the allegations of the complaint and was allowed the affirmative. The defendant testified that in the latter part of January, 1891, he had a conversation with one Bowers, a salesman of the plaintiffs, whom he told that he would withdraw his guaranty. Mr. Bowers declined to receive this notice and told the defendant to go over to the cash window and make his request there. That defendant then went over to the cash window and told the party there that he withdrew his guaranty. The person at the window told the defendant to put his notice in writing, which defendant claims he did. The goods sued for were subsequently sold and delivered. At the close of defendant’s case, the plaintiff moved for a direction of a verdict, and the defendant asked to go to the jury upon the testimony as to a written notice. The trial justice directed a verdict for the plaintiff. The defendant excepted to this direction as well as to the court’s refusal to submit to the jury. We think the case should have been submitted to the jury as to the question whether the defendant had given written notice of his revocation. While it is true that the guaranty by its terms is a continuing one, it could be revoked by defendant upon proper notice to the plaintiff, if at the time of such notice all sums due had been paid. There is no evidence to show that at the time of the notice, there was any sum due, and the trial justice should have submitted to the jury whether notice had been given and was the notice served on a person authorized to receive such notice.

The judgment must therefore be reversed, a new trial granted, with costs to appellant to abide the event.

Ehrlich, Oh. J., and McCarthy, J., concur.


author: O’Briept, J.

text:
    Jane E. McLaughlin, App’lt, v. Edward Webster et al., as Ex’rs, etc., Resp’ts.

      (Court of Appeals,

      Filed January 16, 1894.)

    1. Payment—Legacy.
    Where parties agree that an unliquidated debt shall be deemed paid by a provision in a will in favor of the creditor, and such provision is made and the creditor has received the benefit of it, the facts may be shown under a plea alleging payment or satisfaction generally.
    ¡3. Pleadings—Amendment.
    A referee has power to allow an amendment, which is but an amplification of the plea of payment originally set up, by stating the manner in which it was made, or, in such case, to conform the pleadings to the proof.

      3. Witness—Section 839.
    Section- 839 of the Code does not prohibit an executor or administrator, who is a party to a suit, from being examined in favor of the estate touching a personal transaction or communication with the deceased, when the adverse party is present participating, and when it is otherwise competent.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made June 23, 1893, which affirmed a judgment in favor of defendants entered upon the report of a referee.
    This action was brought to recover upon a claim for work, labor and services alleged to have been rendered by plaintiff for Robert Sherman, defendants’ testator, during a period of thirty-eight years.
    The facts, so far as material, are stated in the opinion.

      William A. Sutherland, for app’lt; J. A. Stull, for resp’t.
   O’Briept, J.

The defendants are the executors of the will of Robert Sherman, who died on the 26th of December, 1890. About the year 1844 the plaintiff, then a girl less than eleven years of age, went to live in the family of the deceased, her father having died some years before, and her mother in that year. During the first four years she attended school a part of the time.. In the year 1856 the decedent’s wife died, and subsequently his two only children, who were born - after the plaintiff became a member of his household. After the death of the children the family consisted of the decedent and the plaintiff and such other hired help as became necessary in the conduct and management of a small farm. The plaintiff, during all the time up to' the déath of the testator, was treated by him and by her friends and acquaintances as a member of his family. He paid to her, from time to time, various small sums of money, and during the last six months of his life, in different amounts, the sum of $1,000. She seems to have been a saving and prudent woman, for at the time of the death of the testator she had on deposit to her credit in bank the sum of $3,000. During the life of the decedent she kept no books of account, made no demand for compensation, and nothing appears to indicate that the parties occupied any such relations to each other as master and servant or debtor and creditor. The plaintiff is described by the testator in his will as his adopted daughter, and in that instrument he made for her the following provision: The sum of $1,000 absolutely, the income on $8,000 during her life, and the use, during her life, of the homestead and land, consisting of one and a half acres, where he lived and died, together with the household furniture, fixtures, provisions and family supplies, and also the right, at her election, of burial in the family lot in the cemetery. These bequests not only show that the deceased intended to and did make substantial provisions for the comfortable support of the plaintiff, in view of his condition and circumstances in life, but also that the relations between them were regarded as that of parent and child rather than that of master and servant. The plaintiff brought this action against the executors to recover the value of her services for thirty-eight years, from the year 1852 to the year 1890, when the testator died, and the various sums received by the plaintiff, from time to time, are treated as payments upon the debt sufficient to avoid the statute of limitations. The "answer, besides putting in issue all the material facts upon which the claim is based, and interposing the statute of limitations as a bar, alleged payment, and set up the provisions of the will as a defense. The learned referee before whom the cause was tried reported in favor of the defendants, and found, as a fact, that prior to the death of the testator it was mutually agreed between him and the plaintiff that the bequests and devises in her favor contained in the will, added to the payments and benefits received from him during his lifetime, should be in full payment, discharge and acquittance of all claims and demands by her for compensation for any labor or services rendered by her during the period stated in the complaint, except upon the contingency which both plaintiff and decedent stated that they feared might happen, that for any reason the will and codicil might fail to be admitted to probate. The will was admitted to probate, and the plaintiff claims all benefits under it, as well as the right to a recovery in this action. Assuming that this finding is warranted by the evidence, it imports that the plaintiff and the deceased agreed and intended that the provisions of the will, if they became operative, should discharge any debt that existed in her favor, and that no independent claim as a creditor should survive against the estate. Sheldon v. Sheldon, 133 N. Y., 4; 44 St. Rep., 260. These provisions having taken effect according to the intention of the parties, they furnish a complete defense to this action. We think that the finding was not only warranted, but was a reasonable and just conclusion from all the facts and circumstances disclosed upon the trial. The two persons who knew most about the actual facts could not testify.The mouth of one was closed by death and the other by the statutory disqualification, and the referee had to base his conclusions upon a variety of facts and circumstances that appeared in the case, as well as upon the testimony of several witnesses who were able to give more or less light in the progress of the inquiry. It is not necessary to comment upon the evidence or to point out the inferences which could properly be drawn from it. It is sufficient to say that, in our opinion, it amply justified the view taken by the referee as to the facts, and under the limitations which the law has imposed upon the power of this court over the facts in controversy, the finding must be deemed conclusive.

The record contains numerous exceptions, many of which have been pressed by the learned counsel for the plaintiff, as grounds of reversal, with much force and earnestness. Most of them are obviously untenable, but a few are of sufficient importance to require some notice. The first objection is that the finding of fact upon which the referee based his legal conclusions in favor of the defendant was outside the pleadings. It is doubtless true that a material fact found by a court or referee must not only be sustained by proof but by pleading as well. But the defendants had pleaded payment generally, and under that defense were entitled to give proof of any agreement between the parties in the lifetime of the testator that operated to discharge the debt. It is not necessary generally to state the particular manner in which the obligation was extinguished. Any valuable consideration moving from the debtor to the creditor which the parties agree shall operate to satisfy that debt will be given that effect, in the absence of fraud or mistake, especially in the case of debts unsettled and unliquidated. When parties agree that a debt shall be deemed paid and satisfied by a provision in favor of the credi- ■ tor in a will, and that provision is made and the creditor has received the benefit of it, I see no reason to doubt that the facts may be shown under a pleading alleging payment or satisfaction generally. But the referee at the trial, on the application of the counsel for the defendant, permitted the answer to be amended by alleging the agreement to compensate the plaintiff by provision for that purpose in his will, and another of the exceptions challenges the power of the referee at the trial to allow such an amendment under the Code (§§ 721, 722, 723). This amendment made no substantial change in the nature of the defense. It was but an amplification of the plea of payment originally set up by stating the manner in which it was made, and while perhaps unnecessary, the referee had power to allow it. The plaintiff’s counsel complains that this was done after the proofs were all in, upon some other theory. If the power existed the time and manner of its exercise was within the discretion of the referee, and it cannot be doubted that power existed to conform the pleadings to the proofs. Code, §§ 539, 540, 541. There was no claim that the plaintiff was in any way prejudiced by the amendment in the production of her proofs, and it does not appear that she made any application to open the case and give further proof, which was clearly within the power of the referee to grant. It is further urged that the answer, even as amended, or the proofs given, do not show that the provisions of the will were equivalent to the debt then due. The parties had the right to agree between themselves what was the plaintiff’s just due. The claim was unliquidated and of such a character that it could be legally discharged by such an agreement as the referee found, and this agreement having been executed by the decedent and accepted by the plaintiff it operates to extinguish the claim. The agreement not only provided for-the manner of payment, but in legal effect liquidated and adjusted the amount of the debt. The finding fairly implies that the nature, character and extent of the provisions for her benefit contained in the will were known by or communicated to the plaintiff before the death of the testator, and that with such knowledge she agreed to accept them in satisfaction of her claim. No change having been made in the will the plaintiff has now just what she agreed to take, and I see no reason why such an agreement does not bind her in law and equity.

At the trial one of the executors, defendants, who was also a residuary legatee under the will, was called and examined as a witness for the defense. He testified that in the early part of the month of October, before the death of the testator, he had a conversation with' the deceased, in the presence of the plaintiff, in which, among other things, he told the witness what provisions he had made in his will in favor of the plaintiff, and also that she had accumulated already, by living in his family, four or five thousand dollars. This testimony was objected to by plaintiff’s counsel as incompetent under § 829 of the Code. The referee overruled the objection and the plaintiff excepted. The objection was not well taken. The witness gave testimony and was examined, not gainst but in favor of the personal representatives of the deceased, concerning a personal transaction or communication between him and the deceased, in the presence of the plaintiff. The executor was examined in his own behalf with respect to the conversation, and such testimony is not prohibited by this section of the Code. The plaintiff then became a competent witness to testify in her own behalf in regard to the same transaction and to deny or explain the testimony of the executor if she could. This section prohibits parties from giving testimony in their own behalf or interest against the personal representatives of a deceased person, concerning a personal transaction or communication with the deceased, but it does not prohibit an executor or administrator, who is a party to the suit, from being ■examined in favor of the estate touching such a transaction, when the adverse party was present participating, and when it is otherwise competent. It opens the door for the admission of testimony from adverse parties that would otherwise be excluded, but if the personal representatives of the deceased elect to take such risk they have the right to do so. This applies not only to the exception mentioned, but to some others appearing on the record, and it is, therefore, unnecessary to discuss them specially. The plaintiff’s counsel offered to show by a witness that a person sitting at a table in the sitting room could not hear the conversation on the porch in front of the room between the deceased and the executor which the latter testified to. The referee excluded the proof offered and there was an exception. We do not think that this ruling presents such an error of law as calls for a reversal, for the reasons: (1) The plaintiff could have been sworn on this point, and could of course have settled the question, so far as she was •concerned, whether or not she actually heard the conversation or was present as the witness said she was. (2) The location and distances were fully described, and the referee could draw the conclusion as well as the witness. The question called for an opinion which depended upon so many conditions that it could not be regarded as anything more than mere speculation. (8) The testimony of the executor was that she was actually present, or at least at a door leading to the porch closed only by a wire screen, and the opinion of a witness as to whether she could or could not hear the conversation when located at another and more distant point in the room was not admissible. It is unnecessary to discuss the other exceptions in the case. They were correctly disposed of in the court below, and even if some of the rulings against which they were directed were open to criticism, the plaintiff could not possibly have been prejudiced thereby.

The judgment should, therefore, be affirmed, with costs.

All concur, except Bartlett, J., not sitting.

Judgment affirmed.