text:
    John T. Becken, Resp't, v. William J. Weeks, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Bototo abibs.
    In an action for trespass it appeared that the lands of the parties were unfenced and uncultivated, the boundary between them being the town line. This line was surveyed in 1886 so as to leave the locus in quo on defendant’s side. It was claimed by plaintiff that there had been a previous location of the line, the evidence as to which consisted of matters occurring forty years ago and which rested only in the memory of men from seventy to eighty years of age, and which showed that a road, fence and marked tree were regarded as monuments of a boundary. Held, that the evidence was sufficient to warrant a submission of the question to the jury, and that their verdict would not be disturbed.
    Appeal from judgment in favor of plaintiff, entered upon verdict

      A. A. Spear, for app’lt; George F. Stackpole and Timothy M. Griffing, for resp’t.
   Pratt, J.

—This was an action of trespass which involved a dispute as to the -boundary line between two farms in Suffolk county. The plaintiff’s west line and the defendant’s east line, as appears from the deeds put in evidence, was the boundary line between the towns of Brookhaven and Riverhead.

The line has been recently surveyed and established so as to take in the land upon which the trespass is claimed to have been committed as a part of the defendant’s land; so that if this new line is to be regarded as the boupdary between the two farms, then the defendant is the owner of the land upon which the alleged trespass was committed, and the verdict was wrong.

The plaintiff’s answer to this contention is that many years since there had been a practical location of the line by the respective owners of the farms, and that such location placed the land upon which the trespass was committed upon the plaintiff’s side of the line between the two farms.

The evidence of this location is not as satisfactory as could be wished, but it was undoubtedly sufficient to warrant a submission of that question to the jury, which was done under a charge remarkably clear and impartial, and a verdict was rendered for the plaintiff.

The dispute involved uncultivated land that had never been fenced, and the evidence consisted of matters occurring forty or more years ago which rested only in the memory of men from seventy to eighty years of aga

Considering all the facts and circumstances, we think the jury were justified in finding that the plaintiff was the owner of the land upon which the trespass was committed, and, therefore, the verdict must stand unless some error was committed upon the trial.

This being unfenced and uncultivated land, it was very difficult to establish title by either side by adverse possession, but the declarations of the parties and their acts plainly show that the road and lop fence and a marked pine tree were regarded as monuments of a boundary between the two farms.

We have carefully examined the exceptions and find no error sufficient to warrant setting aside the judgment

Judgment affirmed, with costs.

' Barnard, P. J., and Dykman, J., concur.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    Joseph Hegeman, Resp’t, v. Christina S. Moon and Morse Burtis, Ex’rs, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Decedent’s estates—Claims against—Direction to executors to pay.
    Plaintiff advanced certain monies to testatrix’ son for the account of himself and her, and took the son’s note therefor. Subsequently testatrix paid a portion of the indebtedness, received the note, and in consideration of plaintiff’s agreement to accept the balance without interest, executed and delivered to him a paper directing her executors, one year after her death, to pay to plaintiff a specified sum, “ being the balance due him for cash advanced at various times by him to my son and others as per statement rendered by him.” Held, that the instrument created a valid claim against her estate.
    Appeal from order overruling demurrer to complaint

      Benjamin G. Hitchings, for app’lts; Woodward & Buckley, for resp’t.
   Dykman, J.

—The complaint in this action states that, at various times between the 1st day of November, 1863, and the 1st day of May, 1867, the plaintiff lent and advanced to his nephew, Adrian Hegeman, for his own account and the account of his mother, Cornelia W. Hegeman, various sums of money, amounting in all to about $3,075, which Adrian Hegeman promised to repay to the plaintiff. That on or about the 1st day of January, 1869, there was due and owing by Adrian Hegeman to the plaintiff, for such money loaned and interest, about $3,363.41, for which Adrian Hegeman made his promissory note to the plaintiff, whereby he promised to- pay to the plaintiff the sum of $3,363.41 on demand, with interest.

That on the 8th day of February, 1871, Cornelia W. Hegeman paid to the plaintiff a bond of the Wabash Railroad' Company, of the par value of $1,000, on account of such indebtedness, and on the same day the plaintiff surrendered and delivered to her the said note of Adrian Hegeman, and extended the time for the payment of the money, and thereupon, in consideration thereof, and of the plaintiff's agreement to accept the principal of the amount due, without interest, and of other sufficient considerations, the said Cornelia W. Hegeman made and delivered to the plaintiff her certain draft or order in writing, of which the following is a copy:

“$1,976.90. Brooklyn, February 8, 1871.
One year after my death, I hereby direct my executors to pay to Joseph Hegeman, his heirs, executors or assigns, the sum of nineteen hundred and seventy-six dollars and ninety cents, being the balance due him for cash advanced at various times by him to Adrian Hegeman, my son, and others as per statement rendered by him this day, without interest
“ Cornelia W. Hegeman.”

Then the complaint states further that Cornelia W. Hegeman died about the 3d day of December, 1888, leaving a last will and testament which has been duly proved, that the defendants Moon and Burtis are the executors named in the will and that they have qualified and now are such executors, and the whole amount is due and owing.

The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

The demurrer was overruled by the trial court, and the defendants have appealed from the judgment entered upon that decision, and the question presented is whether the instrument set out in the complaint constituted a valid claim against the estate of the deceased which the executors were bound to pay.

It is easily gathered from an examination of the paper that the plaintiff rendered a statement to the testatrix of the amount due him for money advanced to her son and that she undertook to pay the same without interest, and executed the paper for that purpose, and while she inserted in the instrument no promissory words, yet the language employed was intended to raise a legal obligation to pay the money, and that is sufficient to create a liability. Barney v. Worthington, 37 N. Y., 112.

The instrument was not of a testamentary, character, but was negotiable or assignable. It was payable one year after the death of the maker and that was sufficiently definite because it was certain to come, and there is no time limited beyond which obligations may not be made payable

It is true the obligation matured after the death of the testatrix, but considered as a liability upon contract, which we think is a justifiable conclusion, the facts constitute no objection to the claim, for all instruments imposing liability are as valid against the estates of the makers as they were against the makers during their life.

Our conclusion is that the judgment should be affirmed, with costs.

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


author: Barnard, P. J.

text:
    John Eylers and John Hogan, Resp’ts, v. Mary Coen, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Negotiable paper—Consideration.
    Plaintiffs were sureties on a contract of defendant's husband with the city, which he failed to complete. Upon notice by the city that it would be taken out of his hands if not completed, plaintiffs took an assignment of the contract, and defendant gave them two notes to pay for labor and material on said contract to finish the work No money was raised on the notes, nor was the work completed. Held, that, as between the parties, the note was a mere promise to be security for money to be raised to complete the contract, and was without consideration.
    Appeal from judgment of the city court of Yonkers, entered on verdict for plaintiffs, for the sum of $872.40.
    Action on a promissory note for $800.

      F. X. Donoghue, for app’lt; John C. Donohue, for resp’ts.
   Barnard, P. J.

—The defendant’s husband was a contractor to do certain work for the city of Yonkers. The plaintiffs were his sureties for the performance of the work. The contractor failed to complete the work or to continue it, and the city notified the sureties that, if the contract was not finished, it would be taken out of Coen’s hands Coen then assigned his interest in the contract to the plaintiff Eylers, and promised to complete the work. In order to raise money Mrs. Coen “said she would sign a note, and to make up a note between the three of us to pay for the labor and materials on her husband’s contract.” This transaction was between the sureties and Mrs. Coen. A note for $500 was given by her to the plaintiffs to pay for labor and materials to finish the work under her husband’s contract. On the 17th of May, 1890, she gave a note for $300 for the same purpose, and on December 3, 1890, she gave the note in full for $800, to include the two notes of $500 and $300. Hogan, one of the plaintiffs, states the transaction to have been a little different; that the defendant promised at her giving of the first note that, as long as the contract was in her name, the sureties should not lose.

The defendant differs from the plaintiffs, but the judge has found a consideration, and the question must be whether a consideration is established by the plaintiffs’ testimony. It does not appear that the notes ever passed out of the plaintiffs’ hands; that any money was ever borrowed upon them, or either of them. No consideration was made out. As between the parties to this suit the defendant was a surety to the plaintiffs. She had no interest in the contract and only lent her name, so that the sureties could raise money to complete the work. In the hands of a bona fide holder for value the note would have been upheld. As between the parties, it is a mere promise to be security for money to be raised by the surety to enable him to complete the contract of their principal, and is without consideration.

The contract is not finished, and the case shows that the $500 note was given upon the expressed condition that' it was to pay for labor and materials “ to finish Poplar street ” under her husband’s contract, where the plaintiffs were “ sureties for the same contract”

The subsequent note, $300, was, no doubt, given under the same condition or understanding.

The note was not given for the benefit of the separate estate of the wife, and does not charge such estate in the note itself.

The judgment should be reversed and a new trial granted, costs to abide event

Dykman and Pratt, JJ., concur.


text:
    Theophilus D. Olena, Resp’t, v. Austin Huntington, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Master and servant—Wrongful discharge.
    In an action for wrongful discharge of an employe, the answer alleged misconduct and incompetency on plaintiff’s part in justification of such discharge. The evidence as to such misconduct was conflicting. Held, that the question was one for the jury, and that a verdict for plaintiff would not he interfered with.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion to set aside the verdict and for a new trial.

      Hornblower, Byrne & Taylor, for app’lt; Donald F. Ayres, for resp’t.
   Dykman, J.

—This is an appeal by the defendant from a judgment entered against him in favor of the plaintiff, upon a verdict rendered at the circuit, and from an order denying a motion for a new trial upon the minutes of the court

The action was brought to recover the damages sustained by the plaintiff for the breach of a contract between the parties by which the defendant employed the plaintiff as a salesman from the twenty-fifth day of January, 1890, until the twelfth day of July, 1891, at a salary of sixty dollars a week, with some contingent right to the profits of the business.

The plaintiff entered upon the performance of his duties under the contract and continued in the service of the defendant until the twenty-fifth day of May, 1890, when he was discharged.

The defendant undertook to justify the discharge of. the plaintiff under allegations of incompetency and misconduct, and at the trial considerable testimony was introduced by the defendant to substantiate the defense and by the plaintiff to show that it was unjustifiable, and the determination of the case depended upon the justice or injustice of the discharge.

That being a question of fact which was sharply contested, and upon which there was testimony on both sides, it was for the determination of the jury alone.

Such was the view of the trial judge, and he submitted the case to the jury in a fair and careful charge and the plaintiff obtained the verdict.

We must assume, therefore, that the questions involved were decided in favor of the plaintiff and his testimony, and that assumption justifies the verdict

We find no error, and the judgment and order appealed from should be affirmed, with costs.

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


text:
    The People ex rel. Robert Wallace, Resp’t, v. Thomas S. Ryan, Town Clerk, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Elections—Printing ballots.
    No matter what the body of voters may have called themselves, if a ticket is nominated and filed according to law the clerk should print the ticket for the popular vote. An objection that the ticket was made by an irregular body and is not a nomination of the regular party, is frivolous.
    2. Same—Mandamus.
    A mandamus will lie to compel the printing of such ticket, although the clerk has not passed on the objections filed. It was not the intent of the statute that the clerk should make an order on the objections before the court could make an order.
    Appeal from order directing a peremptory mandamus to issue commanding appellant, as town clerk of the town of Westchester, to print and distribute ballots containing the names of alleged republican nominees for offices to be filled at a town meeting to be held March 31, 1891.

      H. C. Henderson, for app’lt; David H. Hunt, for resp’t.
   Barnard, P. J.

—The papers showed that a convention was held in the town of Westchester, on the 20th of March, 1881. There was a call for a primary meeting of republicans of the town publicly posted on the 7th of March, 1891. A ticket was nominated, duly certified and filed with the town clerk.

Objections were filed to the ticket, and the relator testifies that the town clerk was about to refuse to print the ticket The town clerk admits the filing of the ticket and that objections were made to it, but says that he will not refuse to print the ticket “ if he decides the objections are not well founded; that he had sent notices to the persons named in the ticket objected to, and that he is ready and willing to decide, after reasonable opportunity is given to the parties interested to be heard. The only objection to the ticket is, that it was made by an irregular body, and was not a nomination of the regular republican party. The peremptory writ was properly granted. By § 13 of chapter 262, Laws of 1890, the clerk is excused from passing upon* the objections if an order shall be made by a court of competent jurisdiction on or before Wednesday preceding the election. The object of the law was not that the town clerk should make the order upon the objection before the court could make an order. This would defeat the law in some instances. The clerk might delay his decision until it was too late to print the ticket The objection taken was entirely frivolous. No matter what the body of voters may have called themselves, if - a ticket was nominated and filed according to law, the clerk should print the ticket for the popular vote.

The judgment is affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


author: Pratt, J.

text:
    Jerusha Vaughn, Resp’t, v. The Village of Port Chester, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Municipal corporations—Assessments—Voluntary payment.
    Plaintiff had contracted to sell certain land free from all assessments, etc. At the time there were assessments on said land which are now conceded to have been void. While plaintiff was sick a constable was sent to notify her that the -property would be sold unless the assessments were paid. Defendant refused to accept a deposit of the amount thereof until the validity of the assessment could be determined, or to delay the sale, and directed the treasurer to sell under the warrant then in the hands of the receiver of taxes. She then paid the assessment under protest. Held, that the payment was made under coercion and duress, and was not a voluntary one.
    Appeal from judgment in favor of plaintiff.

      Maurice Dillon, for app’lt; Wilson Brown, Jr., for resp’t.
   Pratt, J.

—This is an appeal from a judgment entered upon a trial at special term, which declared certain assessments upon the plaintiff’s property to be illegal and void, and for a return of the money paid with interest upon such assessments by the plaintiff, upon the ground that such payment was made involuntarily and under threats and coercion which amounted to duress.

It will be seen, therefore, that the only question in the case is, whether the proofs warranted the finding of fact below, “ That such payment was against her will and was not a voluntary payment on her part and plaintiff was obliged and compelled to pay the same by reason of the coercive action, threats and statements of the defendant, its officers and agents, to deprive her of her property if she did not pay the said assessments,” it being conceded that the said assessments were illegal and void.

At the time of such payment the plaintiff was under a contract to sell her lands upon which- such assessments had been levied, and give a good title thereto.

The defendant refused to accept a deposit of the amount of the assessment as indemnity, or delay the sale until the validity of the assessment could be determined, and passed a resolution directing its treasurer to advertise her property for sale under a warrant then in the bauds of the receiver of taxes of said village.

At this time the receiver of taxes had published notice and demanded of plaintiff payment of these assessments and sent a constable to notify plaintiff that her property would be sold unless said assessments were paid. '

The plaintiff,- at the time of the payment, was prostrated with a serious illness and was in no state of mind to contend with public officers armed with a warrant valid upon its face, but naturally thought and had a right to think they would make their threats good and deprive her of her property.

That the assessment was not paid voluntarily may be inferred from the fact that it was paid under protest and after various efforts to avoid payment or put off the sale.

We think the case may fairly fall within the principles laid down in the cases of Bowns v. May, 120 N. Y., 357; 31 N. Y. State Rep., 700, and People ex rel. Warren v. Carter, 119 N. Y., 557; 30 N. Y. State Rep., 114.

We think, taking into view all the facts and circumstances of the case, that they fully sustain the finding that the assessment was paid under coercion and duress.

The facts seem to bring the case within the definition of an involuntary payment as laid down by Dillon on Municipal Corporations, vol 2, § 943, to wit: “ The coercion or duress which will render a payment of taxes involuntary must in general consist of some actual or threatened exercise of power possessed, or believed to be possessed, by the persons exacting or receiving the payment over the person or property of another from which the latter has no other means or reasonable means of immediate relief except by making payment."

The defendant had the physical power to sell plaintiff’s property and threatened to do so and made their authority seem legal and absolute by exhibiting the warrant. It is like the case of threatening to turn off water by city authorities if an illegal license fee is not paid, which has been held to be compulsion.

We think the proofs sustain the findings and that the conclusions of law are the logical result of such findings.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Charles J. Quinby, Resp’t, v. John Claflin et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Costs—Code Civ. Pbo., § 3234.
    A defendant does not so "recover” as to entitle him to costs under § 3234 of the Code unless an affirmative judgment is rendered in his favor.
    Appeal from orders of special term, one affirming the refusal of the clerk to tax defendants’ costs in the action, and the other' denying defendants’ motion for an extra allowance.
    The complaint in this action set up two causes of action.
    In April, 1876, the plaintiff brought his action against the defendants, composing the firm of H. B. Claflin & Co., to recover upon two separate causes of action separately stated in his complaint. Upon the first cause of action the plaintiff claimed to recover the sum of $2,987.73, being the amount in the aggregate of twenty notes and acceptances made by divers parties, which it was claimed were in the hands of the defendants under an agreement by which the defendants were to collect the same and apply the proceeds to the payment of the purchase-money of certain property bought by plaintiff of the defendants. The first cause of action continues further, that the defendants have ever since retained the said notes and acceptances, and such parts thereof as have been collected and have never accounted for the same to the plaintiff.
    The answer of the defendants to the first cause of action avers that at the times alleged in the complaint the defendants were not in the possession of any of the twenty certain notes or acceptances, and, further, that all of said notes and acceptances, so far' as they could be collected, have been collected and credited and allowed to the plaintiff on account of his indebtedness to them, and, further, that such as were not collected and credited and allowed to plaintiff were utterly worthless.
    The plaintiff’s second and separate cause of. action was brought to recover the sum of $3,197.15, being the value of certain property and assets of the late firm of Stoll, Webb & Co., of Charleston, South Carolina, which were purchased by the plaintiff, and which, on the 12th day of April, 1873, were in the custody of one A. G-. Goodwin, at Charleston, in said state. Plaintiff claims that certain of these assets, consisting of notes, drafts, and acceptances and cash, amounting in the aggregate to $3,197.15, were not delivered to plaintiff as they should have been, but were brought to New York by Goodwin and delivered to the defendants, and that the defendants have never in any manner delivered them to plaintiff or accounted therefor.
    . The defendants in answer to the second cause of action, after denying the allegations of the complaint, aver that the notes, drafts and acceptances mentioned did come to the possession of the plaintiff through his agent Stoll, and the proceeds thereof were remitted by Stoll to the defendants in accordance with an agreement and-were credited upon the indebtedness of the plaintiff to the defendants.
    Defendants further aver that in a prior action in the supreme court, wherein these defendants were plaintiffs and the plaintiff was defendant, a full accounting was had of all such notes, drafts and acceptances, and the matters complained of in the complaint were fully adjudicated and passed upon and determined, and judgment entered in these defendants’ favor in that action on the 11th day of March, 1876.
    A judgment in this action in favor of the plaintiff upon the first trial was reversed by the general term on the 13th of September, 1881. An order of reference theretofore granted in this case was in said order vacated and set aside. Thereafter, by consent, the case was again referred to .another referee, Hon. Isaac N. Mills, as sole referee to hear and determine.
    The referee made his report and decision in September, 1890, and found in favor of the plaintiff for a part of the sum claimed in the first cause of action, to wit, for $2,249.42, with interest
    Plaintiff thereafter served his bill of costs and made a motion for an allowance. His costs were adjusted and an extra allowance allowed him. Defendant thereafter served his bill of costs, claiming to tax the same in his favor pursuant to the provisions of § 3234 of the Code of Civil Procedure, and also made a motion for an extra allowance in addition to costs upon the amount claimed in the second cause of action.
    Upon the taxation the defendants read the pleadings in the action and an affidavit. The clerk refused to tax defendants’ costs and an appeal was taken to the special term where the ruling of of the clerk was affirmed. At the same time, defendants’ motion for an extra allowance was denied.

      Vanderpoel, Green & Cuming (Henry Thompson, of counsel), for app’lts; M. M. Silliman (Wm. P. Fiero, Of counsel), for resp’t.
   Pratt, J.

—The language of the Code is not entirely clear, and much diversity is found in the decisions to which it has given rise. But the weight of authority seems to be that a defendant does not so “ recover ” as to entitle him to costs unless an affirmative judgment is rendered in his favor.

The special" term adopted that construction as it seems to be supported by most of the decisions.

The order appealed from should be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Jeronemus S. Underhill, Resp’t, v. Samuel Collins, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Bab—Former adjudication.
    In an action for rent of premises after defendant had quit them, the answer averred that defendant did not have quiet and peaceable possession and a surrender and plaintiff had judgment. Held, that such suit was not a bar to an action for subsequent instalments of rent.
    Appeal from judgment in favor of plaintiff on a verdict directed by the court
    Action for rent of the premises No. 50 Broad street in the city of New York.

      P. Q. Eckerson, for app’lt; Deming & Logan (Arthur E. Walradt, of counsel), for resp’t.
   Barnard, P. J.

—The plaintiff let to the defendant premises in New York for three years and seven months at the monthly rent of seventy-five dollars, payable in advance until May, 1887, and after that time at $100 per month. The lease was given the 30th of September, 1886. Defendant took possession of the premises and occupied them until May, 1888. The rent was paid up when the tenant left the premises. In January, 1889, the plaintiff brought an action to recover the instalments due under the lease. The answer averred that defendant did not have quiet and peacable possession and a surrender of the premises. The plaintiff recovered judgment in the action. This action is brought for the subsequent instalments and the same defenses are pleaded, with the additional one of a former suit in bar. The court ordered a verdict for the plaintiff. The former suit was not a bar. An action upon an instrument payable by instalments may be brought for each instalment as it became due, but the action must embrace all which are due when the action is commenced. Lorillard v. Clyde, 122 N. Y., 41; 33 N. Y. State Rep., 303.

The former suit did establish that there had been no surrender and no eviction and that the defendant was not justified in leaving the premises. No new surrender after the former action was proven and none which was not within the evidence given in this action. Of course there, was no new eviction, for the defendant had left the premises before the first action was commenced and no new possession had been taken by defendant.

There was no question as to the amount of the rent. The defendant asked a reduction from the amount as called for by the lease, and it was allowed.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Aloys Steffen, Resp’t, v. Frank Schaefer and Joseph Gerard, App'lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Slander—Pleading.
    Matters of special defense and in mitigation must be pleaded in order to be admissible in evidence in defense to an action for slander, and when pleaded cannot be stricken out as irrelevant.
    Appeal from order striking out certain defenses set up in the answer as irrelevant.

      B. W. Downing, for app’lts; Albrecht J. Lerche, (Augustus N. Welles and Thomas F. Byrne, of counsel), for resp’t.
   Dykman, J.

—This is an appeal from an order striking out the ninth, tenth and eleventh defenses set up in the answer of the defendant in this action.

The action is for slander and the ninth clause of the answer set up facts upon which the defendants intend to claim that the words spoken were privileged, while the tenth and eleventh clauses in the answer set up certain facts which the defendants desire to. prove in mitigation of damages.

The matters set up in these three clauses of the answer were all special defenses, and it was necessary to set them up by way of answer to secure their reception in evidence on the trial. In fact, in this class of actions all circumstances in mitigation and all matters of special defense must be set up in the answer in order to be admissible in evidence. Willover v. Hill, 72 N. Y., 36.

Under § 165 of the former Code and § 536 of the present Code the defendant may prove at the trial facts not amounting to a total defense tending to mitigate or reduce the plaintiff’s damages, provided they are set forth in the answer, but only such as are pleaded can be proved. Ball v. Evening Post, 38 Hun, 16; Blanchard v. Tulip, 32 id., 638.

Under the prevalent rule of pleadings in actions of libel and slander it was essential to set up the facts contained in the ninth, tenth and eleventh clauses of the answer in order to enable the defendants to prove them, on the trial, and if they are stricken out they can introduce no evidence in mitigation of damages.

These considerations lead us to the conclusion that the order was erroneous and should he reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars costs.

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


text:
    Cornelia Wheeler, Resp’t, v. Edward W. Simmons, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Bankruptcy—Discharge—Subsequent payments.
    A promise by which a debt discharged in bankruptcy can be renewed must be an express and distinct promise, and cannot be implied from subsequent payments alone.

      (Laurence v. Harrington, 122 N, Y., 408; 33 N. Y. State Rep., 717, followed.)
    Appeal from judgment in favor of plaintiff, entered on a trial by the court without a jury.

      W. Farrington, for app'lt; Collins Sheldon (S. H. Brown and John Hacked, of counsel), for resp’t.
   Pratt, J.

—This action was commenced July 5, 1890, upon a promissory note for $2,000, dated September 22, 1874.

The answer set up the statute of limitations and a discharge in bankruptcy dated 12th day of February, 1879, which discharged the defendant from all debts existing on the 4th of September, 1877.

Several payments had been made upon the note from January 9, 1879, up to 1886.

These payments were relied on to take the case out of the statute of limitations and the court found as a fact that these having been made prior to the statute of this state passed June 8, 1882, constituted a new promise and, as matter of law, that the claim was not barred.

There is no evidence to sustain a new promise except the payments, and, therefore, the question is clearly raised whether a payment after a discharge in bankruptcy revives the debt

This question has been recently passed upon by the court of appeals in the case of Lawrence v. Harrington, 122 N. Y., 408; 33 N. Y. State Rep., 717, where it was held that a promise by which a debt discharged in bankruptcy can be renewed must be an express and distinct promise, and that such a promise cannot be implied from merely proof of partial payments.

The finding of fact in the present case has no evidence to support it, except the payments.

It follows that the judgment must be reversed and a new trial granted, costs to abide the event.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    Andrew J. Shiels et al., Resp’ts, v. Sigismund B. Wortmann et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.

    Costs—Extra allowance.
    Plaintiffs, as distributees under a will, brought this action against defendants, as executors, to recover damages for their misconduct. They submitted to a non-suit, which was afterwards opened, and after defendants had accounted again submitted to a non-suit. Held, that defendants were entitled to an extra allowance.
    Motion for reargument The facts appear fully in the opinion handed down on the former hearing.

      William J. Gaynor, for motion; Johnston & Johnston, opposed.
   Pratt, J.

—We see no reason to change the opinion expressed upon the former argument of this appeal. 30 N. Y. State Rep., 173.

It seems clear that the ordinary bill of costs does not compensate defendants for the expenses imposed upon them by the action.

Nor do we find any reason why the plaintiffs should not be held to the ordinary liability of litigants.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion may be renewed at special term.

Barnard, P. J., and Dykman, J., concur.


text:
    The People ex rel. Charles V. Morgan, Resp’t, v. The Board of Supervisors of Westchester County, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Costs—Additional allowance—Taxpayer's action.
    An action brought by a taxpayer to restrain the board of supervisors from levying a tax of $25,000 to pay illegal appropriations made by a town auditing board, involving considerable work in procuring affidavits, arguing motions and preparing for trial, is a difficult and extraordinary one within the meaning of § 3253 of the Code, and an allowance of $1,000 to plaintiff’s attorney is proper.
    2. Same—Attorney and client—Stipulation.
    A stipulation by a defendant’s attorney for the entry of judgment and the granting of an allowance to plaintiff is within his authority, and must be held binding unless impeached for want of power.
    Appeal from that part of a judgment which gave to plaintiff’s attorney costs and an extra allowance of $1,000, and from order denying motion to retax costs.
    The plaintiff began an action under the statute for the protection of taxpayers to restrain the defendant from levying $25,000 of taxes illegally and fraudulently appropriated by the town meeting of Eastchester, for highway purposes, upon the town of Eastchester.
    Upon the summons, complaint and affidavits an injunction was granted, which was made permanent
    A new board of supervisors was subsequently elected and called together to pass the illegal and fraudulent appropriations, on the theory that the injunction did not bind them, and the plaintiff was obliged to and did obtain a new and further injunction, which was made permanent, and William J. Marshall, Esq., the attorney for the defendant, stipulated that the facts alleged were true, and consented that final judgment should be entered therein, with costs and allowance of $1,000 to plaintiff’s attorney.
    The court granted an allowance of $í,000, and the costs were inserted as per stipulation at $102.09, and judgment was entered therein on or about January 23, 1890.

      Wm. Romer, for app’lt; Henry W. Bates, for resp’t.
   Pratt, J.

—The bills of costs and allowance complained of were taxed and allowed on consent of the attomies, and, under all the circumstances, we think the court below was justified.

The bill of defendant's attorney has been audited and allowed, and the litigation ended under the stipulations made by the attornies.

The defendants have been guilty of laches in moving to correct the judgment, and if their attorney exceeded his authority or committed any wrong by which they were damnified, their remedy is against the attorney.

The judgment seems to be satisfactory to defendants except the items of costs and allowance, and it seems to be a case where the ■defendants wish to avail themselves of the benefits of a judgment while avoiding the stipulation under which it was entered.

If the services of Marshall were worth $500, and, as said before, his claim has been allowed, then the services of plaintiff’s attorney were well worth $1,000.

The defendants assumed to defend the suit and they were proper parties and must pay any costs legally awarded.

The plaintiff was obliged to institute the suits, and the amount involved was $25,000; besides, there was considerable work in procuring affidavits, arguing motions and preparing for trial

We think, under the construction given to the Code upon this subject, the case was difficult and extraordinary.

The suit was meritorious and by it an expenditure of $25,000 was saved.

It has been held that an allowance can be made upon a discontinuance before trial and that in a suit to restrain a tax an allowance is proper. Coffin v. Coke, 4 Hun, 616; Robins v. Gould, 1 Abb. N. C., 133; McDonald v. Mallory, 46 N. Y. Supr., 58; Comins v. Supervisors of Jefferson Co., 3 T. & C., 296.

The stipulation of defendants’ attorney was within his authority and must be held binding unless impeached for a want of power. Palen v. Starr, 7 Hun, 422; Ferguson v. Crawford, 86 N. Y., 609.

When we consider that no fraud is alleged, that the judgment was consented to and acquiesced in by defendants, and all the other facts and circumstances, it seems that the judgment and order ought to be affirmed.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Moses W. Redding, Resp’t, v. Abbey Louise Redding, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Divorce—Setting aside decree—Condonation.
    Plaintiff obtained an absolute divorce from defendant in July, 1886. The parties had previously separated, and defendant had returned to Vermont to live with her parents, who lived on a farm belonging to plaintiff. On an application made in 1888 to set aside the decree on the ground of subsequent condonation and cohabitation, the affidavits were conflicting, but it appeared that defendant had written letters at different times between June, 1886, and July, 1887, showing knowledge of the decree and asking plaintiff to take her back, and it also appeared that plaintiff necessarily staid at the farm in Vermont when there. Held, that the evidence was insufficient to justify setting aside the decree.
    Appeal from order of special term, denying motion to set aside a decree of divorce formerly rendered in favor of plaintiff.

      Geo. C. Brainerd (Thos. J. Ritch, Jr., of counsel), for app’lt; B. W. Downing ( W. T. B. Milliken, of counsel), for resp’t.
   Barnard, P. J.

—The parties were married in Vermont in 1878. Subsequently they moved to Brooklyn and continued to live together there as man and wife until February, 1886, when the parties separated and the wife went back to Vermont to her parents. They lived on the husband’s farm in Highgate, Vermont. The parties had no children. On the 26th of May, 1886, the plaintiff commenced an action against his wife to procure an absolute divorce. The - summons was personally served on the defendant on the 27th of May, 1886, at 207 West Forty-fifth street, N. Y. The defendant‘did not appear in the action, and the action was referred to take proof of the acts of adultery charged against the defendant The proof was full and complete, and on the 7th of July, 1886, the court granted a decree for an absolute divorce to the plaintiff. On the 1st of June, 1888, the defendant made a motion to set aside the decree. She alleges in support of her motion that the • plaintiff after the service of the papers in the divorce action stated that the papers had been served against his orders; that they were of no importance, and that he would proceed no further. That the parties continued to live together as man and wife in Vermont until November, 1886, when the plaintiff returned to New York, and that the parties cohabited together in New York as late as March, 1887.

The case presents great contradiction between the parties and those who support them by affidavits. The letters of the defendant offered abundant proof that she knew of the decree immediately on its being made. In August, 1886, she wrote: “ to him who was once ” my husband. The communication is in verse and directly mentions the decree which freed him from -her. Other letters to the husband were sent; one in June, 1886, asking him to take her back and others addressed to the same end; one as late as July, 1887. The plaintiff moved again in June, 1888, and in one of the letters the defendant alluded to her husband as contracted to another. The facts now alleged by defendant cannot be made to agree with these letters and there is nothing in the admitted facts as to condonation which conflicts with the plaintiff's assertions. He supported the defendant until after the divorce. He owned the farm at Highgate and necessarily staid there. Assuming the divorce to- have been obtained without fraud all con-donation based upon subsequent cohabitation fails as no such cohabitation existed; but I think from the letters that the separation was absolute from February, 1886, to the present time.

The order should, therefore, be affirmed, with costs and disbursements.

Dykman, J., concurs; Pratt, J., not sitting.


text:
    In the Matter of the Probate of the Will of James Stewart, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Will—Testamentary capacity.
    On application for probate it appeared that by a former will testator gave his property to his three sons, with the exception of a small legacy to 33., whom he afterwards married; that by the will in question he gave his widow one-fourth of his estate in lieu of dower and placed the share of one of his sons in trust. The subscribing witnesses testified that the will was read slowly to testator, who was eighty-four years old, and he said it was exactly as he wanted it and that it was duly executed. Some evidence was given of instances of loss of memory, repetition and slowness of comprehension on the part of testator, but it was also ’ shown that he attended to his business and understood and knew what he wished to accomplish. Held, that the finding of the surrogate that he had not sufficient testamentary capacity was "erroneous.
    Appeal from decree of the surrogate of Kings county, refusing to admit to probate a will of James Stewart alleged to have been made in 1887 and the codicils thereto alleged to have been made in 1888, and admitting a will made in 1881, and codicils thereto made in 1884.

      W. B. Maben (George E. Reynolds, of counsel), for app’lt; William D. Veeder and Daniel W. Northup, for resp’ts.
   Barnard, P. J.

—On the 12th of March, 1887, the deceased made a will, and subsequently two codicils thereto. This will of 1887 contained a radical change in the disposition of testator’s property, and the question litigated on the trial was, whether the testator had capacity to execute the same and the codicils thereto. By the former will and .codicil the property had been divided equally between the testator’s three children. These papers were executed in 1881 and 1884. Between the dates of the codicils made in 1884 and the will of 1887, the testator had married Eleanor Ely, who had been provided for by a small annuity in the old will, and by the will of 1887 she takes one-fourth of the estate, some $75,000, in lieu of dower. The share of one of the sons is put in the hands of trustees for his benefit for life, with remainder to his children. The surrogate found that the testator had not sufficient capacity to execute the will of 1887 and "the codicils thereto, but admitted his will of 1881 and the codicils thereto of 1884. The widow appeals. The will of 1887 was executed in the presence of Paul H. Kretzschmar and Gustavus R Cooper. These witnesses were both called and examined. One had known the testator twelve years and the other for twenty years. The testator was eighty-four years -of age. The will was read over slowly to him, and he said to the witnesses that it was exactly as he wanted it He then signed the instrument, and declared it to be his last will, and requested the witnesses to sign it as such, which they did, in his presence and in the presence of each other. James E. Allaben, the attorney for the testator, was present at the time; also Mrs. Stewart, the widow. The codicils were executed in the following year, 1888, in the presence of John Murphy and 0. B. Skiff. Each of these witnesses were called and testified to a full and apparently free and capable execution of the codicils. A large number of witnesses were called by each party.

The contestants show instances of loss of memory not at all unusnal for an old man entirely rational; instances of repetition; instances where the comprehension of the testator was not so quick as is usual with young men. His dress was not as neat and well ordered as it should be. Many of the contestants’ witnesses say there was nothing incoherent or disconnected in the testator; and all, or nearly all, say that the conversations were about business which he continued to do for himself until after the last codicil. The witnesses called by the proponents show an entirely rational and understanding testator who did his own business, made loans, collected money, examined houses and made repairs thereon. He remembered names and persons of old acquaintances whom he had not seen for a considerable time; he remembered engagements. He understood his business, and knew what he wished to accomplish.

The evidence is such that the decree of the surrogate should be reversed, and issues properly framed and sent to a jury of Kings county. The question of costs to await the disposition of the trial by jury.

Dykmah and Pratt, JJ., concur.


text:
    James R. Wright, App’lt, v. Guillaume Reusens, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    1. Costs—Mechanic's lien—Additional allowance.
    An additional allowance under § 3252 of the Code cannot he granted in an action to foreclose a mechanic’s lien. Such action does not fall within the description of an action to determine a claim to real property.
    8. Same—Teem pees.
    Term, or calendar fees, are not taxable for the Westchester Saturday special term, as such term has no calendar.
    3. Same—Disbursements—Referee’s report.
    Charges for copying the report and opinion of the referee in a lien foreclosure are not taxable as disbursements.
    4. Same—Witness fees.
    Charging a witness as an expert, in the absence of proof, will not increase the witness fees beyond the general rate for other witnesses.

      Appeal from order affirming taxation of plaintiff’s costs. Action to foreclose a mechanie’s lien. The clerk on taxation disallowed the following items contained in plaintiff’s bill of costs:
    For cause on special term calendar, May 25, 1889, and adjourned by defendant......................... $10 00
    For cause on special term calendar for June 1,1889, and not disposed of................................ 10 00
    Application for order of reference at a special term of this court, June 15, 1889, to appoint Isaac N. Mills, Esq., and order of reference, June 15, 1889......... 10 00
    Order for judgment............................... 10 00
    Order for final distribution per judgment............. 10 00
    Order confirming referee’s report of distribution of proceeds per judgment............................. 10 00
    Ten per cent upon two hundred dollars, plaintiff’s recovery ............ 20 00
    Five per cent upon four hundred dollars additional, plaintiff’s recovery........ 20 00
    Two per cent upon one thousand dollars additional, plaintiff's recovery.............................. 20 00
    Plaintiff’s Disbursements.
    For making copies of referee’s report and opinion, fifty-one folios, at five cents per folio (typewritten) to be served upon Billings & Oardozo, defendant’s attorneys ......................................... 2 55
    For do. to serve upon Travis & Smith, defendant’s attorneys ......................................... 2 55
    Do. for sendee upon O. W. Horton, defendant’s attorney ........................................... 2 55
    Do. plaintiff’s attorney to keep and file............... 2 55
    For copies of judgment, 35 folios, 5 cents per folio, to serve upon Billings & Oardozo, Esqs.............. 1 75
    Do. on 0. W. Horton, attorney..................... 1 75
    Do. on Travis & Smith............................ 1 75
    Do. for plaintiff’s attorney to keep and file............ 1 75
    Do. for referee to sell............................. 1 75
    Disallowed on costs....................... $120 00 “ on disbursements............... 36 35
    Total............................... $156 35

      Silas J. Owens, for app’lt; Michael H. Cardozo, for resp’f.
   Barnard, P. J.

—The statute fee of sixty dollars as an allowance additional to the costs, under § 3252 of me Code, was properly refused. An action to foreclose a mechanic’s lien is not mentioned in that section, and it does not fall within the description of an action to determine a claim to real property. That section has a definite meaning, and refers only to proceedings directed to the end that a party should assert his claim to a title to land or be barred.

The calendar fees for the special term were not taxable. The Saturday special term in Westchester county has no regular calendar I infer from the decision. The papers do not show the contrary. The motion fees rejected were improper. No order is shown by which the motion fee was given directly or provisionally.

The charge for copying the report and opinion of the referee was not a legal one nor the copies of notices of lien.

The Code fails to allow anything therefor, and such charges must be deemed to be within the general costs which are given upon a trial and which were allowed by the clerk.

Charging a witness as an expert, in the absence of proof, will not increase the witness’ fee beyond the general rate for other witnesses.

The order should, therefore, be affirmed, with costs and disbursements.

Pratt, J., concurs; Bykman, J., not sitting.


text:
    James R. Wright, Resp’t, v. Guillaume Reusens, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Mechanic’s lien—Wrongful refusal of certificate.
    In an action to foreclose a mechanic’s lien, it was found on sufficient evidence that after work entitling plaintiS to the two first instalments had been done, the architect wrongfully refused to give him a certificate; that defendant wrongfully refused to pay the amount due, and afterwards wrongfully discharged plaintiff and refused to permit him to complete performance of the contract. Held, that these findings disposed of the question involved, and that plaintiff was entitled to recover.
    Appeal from judgment in favor of plaintiS, entered by direction of Barnard, P. J., on the report of a referee.

      Michael H. Cardoza, for app’lt; Silas J. Owens, for resp’t.
   Dykman, J.

—This is an action to foreclose a mechanic’s lien by the plaintiS, who was the contractor, and other lienors are made parties to the action.

The cause was tried before a referee and he reported in favor of the plaintiS, and the appeal is by the owner from the judgment entered upon his report.

After the plaintiS had performed considerable work under his contract with the appellant and had been paid $1,500, he was discharged, and the decision of this case hinges upon the legality of such discharge, and that again depends upon the question whether any money was due to the plaintiS under his contract at that time.

The contract provided that the plaintiS should receive $5,244.50 for the work he undertook to do under it, to be paid in instalments as follows:

$1,000 when certified by the architect

$1,500 “ “ “ “

$1,744.50

$1,000 “ “ , “ “ “ on entire completion of contract ; $300 if fully completed on December 1,1888, as per section 8, provided that in each of said cases the architect shall certify in writing that all the work upon the performance of which the payment is to become due as aforesaid has been done to his satisfaction.

It is to be collected from this portion of the contract, therefore, that the payments were to be made in instalments as the work progressed and became due upon the performance of the work, and the architect was to certify in writing when the work was done upon the performance of which the payment was to become due.

The referee has found upon sufficient proof that prior to the 1st day of December, 1888, the plaintiff had performed work in execution of the contract which entitled him to the first two payments under the contract, amounting to $2,300, and that the architect unreasonably and wrongfully refused to give the plaintiff a certificate for such amount and that the appellant wrongfully and unreasonably refused during the month of December, 1888, to pay the plaintiff $1,000, and that the appellant wrongfully and without just case discharged the plaintiff on the 7th day of January, 1889, and refused to permit him to complete the performance of his contracL

We think those findings are justified and dispose of the only question involved.

The record discloses no error and the judgment appealed, from should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Edward Haynes, Resp’t, v. Edward Hatch, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 2, 1891.)

    Depositions—Examination before trial.
    Plaintiff instructed defendant to purchase certain stock for him and furnished him the money to pay therefor. Defendant loaned the stock with plaintiff’s assent and afterwards made an assignment. It appearing from the affidavit that the particulars of the transaction were wholly within defendant’s knowledge, Held, that he might properly he required to submit to an examination before trial to enable plaintiff to frame his complaint; that the fact that some of the testimony sought to he elicited might subject him to criminal prosecution was no answer to the application for such examination, as there were facts which he might disclose with impunity, and he could claim his privilege when examined.
    Appeal from order denying motion to vacate an order for the examination of defendant before trial
    The affidavit on which the order for examination was granted stated as follows:
    “ The nature of this action is an action brought by plaintiff against defendant to recover certain stock owned by plaintiff and entrusted to defendant, or the proceeds thereof, if the same has been converted by the defendant, together with all dividends or other profits arising thereon, or if the defendant did not purchase said stock, then to recover the moneys which plaintiff gave him for such purpose. The form of judgment demanded is that the plaintiff recover said stock, being one hundred shares of Jersey Central- stock, or the proceeds thereof, if the same has been converted, together with all dividends or profits arising thereon, or if the said stock was not bought by the defendant, then to recover the moneys which plaintiff gave him for this purpose.
    “ In case of the conversion of said stock, the damages demanded would be in a sum which plaintiff is unable to fix at the present time, inasmuch as all the facts connected with such transactions are wholly within the knowledge of the defendant, except as herein stated, and for this reason, among others, this examination is desired.

      “ The facts constituting the cause of action are as follows : In the fall and winter of 1886 plaintiff directed the defendant, who was a stockbroker and a member of the firm of Bell & Hatch, to buy one hundred shares of Jersey Central stock, and plaintiff furnished to the defendant the money therefor in full Defendant reported to plaintiff that he had purchased said one hundred shares, that the same was fully paid for, and that he held the same subject to plaintiff’s order. Plaintiff has never seen said stock. Subsequently defendant stated that as said stock was rising in value it could be advantageously loaned to brokers who were short of the market; that these brokers would pay for the use of said stock ; that there would be no risk, because on loans of stock the broker borrowing the same is always obliged to deposit with the person loaning the stock its value in cash, at the market rate on the day of the loan, and that if during the loan the stock should advance in value, the person loaning on .the same could always require the borrower to deposit sufficient additional moneys to secure the advance value.
    “ The defendant further said that if plaintiff would allow these one hundred shares of Jersey Central stock to be so loaned, he, the defendant, would attend to it for him; would charge for his trouble one-half the interest or profits arising on the loans, and would account to plaintiff for the other one-half.
    “ On these representations plaintiff gave defendant permission to loan said stock, upon the express understanding that the stock should not be sold; that defendant should always procure from the borrower its full value in cash, and should keep the cash in place of and as representing said stock, and equally with said stock this cash should be the property of the plaintiff during the pendency of any and all loans.
    “ Thereupon, from time to time, until some time in the year 1888, the defendant would render the plaintiff statements showing amounts of interest received on loans of said stock, and would pay to plaintiff one-half thereof; but whether or not actual loans were made, and whether or not defendant had actually purchased said stock so as to have it in his possession, plaintiff is unable to say.
    “ Some time in the year 1888 the said Bell withdrew from said firm, and the defendant, the said Hatch, continued such business alone, and plaintiff permitted him to retain control of said stock for the purposes aforesaid, and during the year 1888, and as late as January, 1889, defendant continued to render similar statements, and paid plaintiff moneys claimed to be profits on loans of said stock.

      “ Defendant represented in said fall and winter of 1886 that he had purchased said stock for plaintiff, and plaintiff paid him therefor the sum of five thousand four hundred dollars. Said stock gradually rose in value, and in the early winter of 1889 was worth in the market at least nine thousand six hundred dollars, and plaintiff had continued to hold said stock as a paying investment, and has never given instructions to sell the same or dispose of the same.
    “ On February 18, 1889, the defendant Hatch failed in business and made a general assignment to his former partner, Bell. ¡Neither at that time, nor subsequently, has the defendant turned over to plaintiff the said stock, nor its value, though he has been requested so to do; nor has he paid to the plaintiff the value of said stock in cash (if said stock had been loaned out prior to said failure). Plaintiff has requested from the defendant an explanation of the fact of his failure so to do, and defendant has failed to inform the plaintiff of the facts relating thereto.
    “ The only information which plaintiff has been able to gain on the subject, after long inquiries, is the following:
    “ On March 12, 1891, the said Hatch told the plaintiff that he had loaned the said stock prior to his failure; that he had received its cash value from the borrower, and that instead of keeping this cash intact he had used it, prior to the failure, for his own purposes, and hence he was then, and now is, unable either to take up the loan of said stock, to deliver the said stock to me, the plaintiff, or to pay me, the plaintiff, the money which he, the said Hatch, had received from the borrower as a special deposit to secure said stock. The said Hatch failed to give me any further particulars in regard to this matter, and plaintiff has been unable to ascertain.”
    It also alleged that plaintiff was wholly without knowledge of the following matters, all of which were within defendant’s knowledge and are material and necessary for plaintiff to know in order to properly frame his complaint: whether the defendant ever actually purchased said stock; and if so, when and at what price and of whom; if it was so purchased, whether or. not it was held for plaintiff between the fall of 1886 and February, 1889, (except as it was loaned out), or whether defendant did not sell said stock and appropriate the proceeds, and if so, when was it sold, to whom and for how much ; if it was held until February, 1889, the time of the failure, whether defendant then held the stock and appropriated it or sold it; if it was loaned out at the time of the failure, whether or not defendant received from the borrower the cash value thereof, and how much this was, who was the borrower, when the loan was made, for how long and on what terms, and if defendant secured such cash value why such stock was not redeemed at the expiration of said loan and said stock turned over to plaintiff, and whether defendant used for his own purposes such moneys either before or after the failure, and also whether or not defendant has now the possession of said stock.

      Henry Tompkins, for app’lt; Deming & Logan (Charles M. Demond, of counsel), for resp’t.
   Dykman, J.

—This is an appeal from an order denying a motion to to vacate an order for the examination of the defendant before trial to enable the plaintiff to frame his complaint

It appears from the affidavit upon which the order for the examination was based that the defendant, who was a stock broker, was instructed by the plaintiff to purchase for him 100 shares of the stock of the New Jersey Central Bailroad, and was furnished with the money to pay for the same. Thereafter the defendant loaned the same with the assent of the plaintiff and subsequently failed and made an assignment of his property for the benefit.of his «'editors.

This action is based upon that transaction, but whether the complaint will charge the defendant with a conversion of the-stock after its purchase, or with embezzlement of the money received for the purchase of the stock, or with embezzlement of the money received on a loan of the stock, will depend upon facts, within the knowledge of the defendant and unknown to the-plaintiff.

The affidavit is full and sufficient and states that the deposition of the defendant is necessary to enable the plaintiff to frame his complaint and for use at the trial, and states facts from which it is. readily seen that such statement is true and that the examination is necessary.

It is urged in opposition to the order that the testimony sought, if elicited upon the examination, might subject the defendant to a criminal prosecution, but we can readily perceive that there are-many facts within the knowledge of the defendant which he can disclose with impunity.

And if he desires to plead his privilege he can do so upon the examination.

The case of Kinney v. Roberts, 26 Hun, 166, is not an authority adverse to this view, because -in that case there was no testimony sought to be elicited from the party except such as would subject him to a criminal prosecution or fender him infamous.

The affidavit being formally correct and the facts sought being entirely with the knowledge of the defendant, we think the order for his examination was proper and valid.

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

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


author: Martin, J.

text:
    In the Matter of Jane Sanford, a Lunatic, and of the Application of Epenetus Howe and Twenty-three others, to have their compensation as Jurors on the Inquisition fixed and directed to be paid.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    'Ltotact—Jurors’ pees.
    Jutots on an inquisition of insanity are only entitled to twenty-five cents, and are not entitled to a per diem, allowance.
    Appeal from an order of the Tioga special term, directing the appellants to pay the respondents the sum of eight dollars and twenty-five cents each for their compensation as jurors, and ten dollars to the respondent, Horton, for the use of a room in which the inquisition was held, and ten dollars costs of the motion, amounting in all to the sum of one hundred and ninety-eight dollars.

      IIorace L. Bronson, for app’lts; Roswell R. Moss, for resp’ts.
   Martin, J.

—This was a proceeding under title 6 of chapter 17 of the Code of Civil Procedure for the appointment of a committee of the person and property of an alleged lunatic. A commission was issued out of this court to inquire into the competency of the alleged lunatic to manage herself or her affairs. The respondents were the jurors procured on the execution of the commission to make such inquiry. They found that the alleged lunatic was incompetent Upon their discharge all but four were paid one dollar each. Four received nothing.

Subsequently a motion was made for an order requiring the appellants to pay all the respondents the legal fees for, their services, and to pay the respondent Frank J. Horton ten dollars for the use of a room in which the inquisition took place. Upon that motion the court held that each of the jurors was entitled to receive two dollars for each day he served and twenty-five cents trial fee, mating the compensation of each eight dollars and twenty-five cents, as the trial occupied four days, and allowed the respondent Horton ten dollars for the use of his room, and also allowed ten dollars costs of the motion to the respondents.

The principal and practically the only question discussed upon the argument of this appeal was as to the correctness of the order in allowing the respondents as jurors each the sum of $8.25. We think no other question need be considered by us.

It is admitted by all the parties to this appeal that the compensation which jurors are to receive in such a proceeding is regulated by the provisions of the Code' of Civil Procedure, but the difference between them arises as to the proper construction of the provisions pertaining to that subject

Section 2333, which relates to the expenses of such a commission, provides: “ The jurors are entitled to the same compensation as jurors upon the trial of an issue in an action in the same court" Section 3313 declares: “A trial juror, in an action or a special proceeding, in a court of record, is entitled, except as otherwise specially prescribed by statute. in a particular court or a particular county, to the following fees: twenty-five cents for each cause in which he is empanelled * * * .”

An examination of these provisions seems to indicate quite clearly that the legislature intended that a juror in such a proceeding should receive only the same compensation that a juror would be entitled to for serving as such in a court of record in a case in which he was empanelled. It may be observed that while the word compensation ” is used in ■§ 2383, and the word “ fees " in § 3313, the provision of § 2833 is not that jurors are entitled to the same compensation as persons attending the same court to serve as jurors, but is limited to the same compensation as jurors upon the trial of an issue in an action in the same court.

The compensation of a juror upon the trial of an issue in a court of record is twenty-five cents for each case in which he is empanelled, unless in the particular court or county in which it is tried it is otherwise specially prescribed by statute. We find no special statute upon this subject relating either to Tioga county or to this court. We, therefore, conclude that the only compensation the respondents were entitled to as jurors was the sum of twenty-five cents each.

This conclusion is strengthened when we consider the fact that § 3316 provides that a trial juror sworn in the special proceedings therein named shall receive only twenty-five cents, and that prior to the adoption of the Code the fees of such jurors were only twelve and one-half cents.

We cannot think it was the intent of the law-makers that in such a proceeding the petitioners therein should be required to pay the jurors suminoned not only the fee to which jurors are entitled on the trial of an issue in an action, but also the additional sum allowed to grand or trial jurors for their attendance at a term of court which is allowed and paid by the county. Nor do we think the language of the statute justifies such a construction.

Moreover, if it were to be held otherwise the order could not be sustained, as the papers show that the respondents were each allowed twenty-five cents, and two dollars per day in addition thereto, while there was no proof whatever as to any direction by the supervisors of Tioga county that any sum in addition to the fees prescribed by § 3313 should be allowed to jurors attending courts of record in that county, as may be done under the provisions of § 3314. It follows tnat the order appealed from should be modified.

Order modified by allowing each of the respondents the sum of twenty-five cents only for his services as a juror, and to the respondent Norton the sum of ten dollars in addition for the use of his room, and as modified order affirmed, with ten dollars costs and disbursements to the appellants.

Hardin, P. J., and Merwin, J., concur.


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    Jehiel Hymes, Resp’t, v. Mynderse Van Cleef, Adm’r with the Will Annexed of Joseph Esty, Deceased, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Deed—Covenants—Admissions by record.
    In an action for breach of covenant of quiet enjoyment contained in a deed by reason of the fact that a portion of the premises conveyed was a part of a public street, the deed given by defendant’s intestate and the map referred to therein were introduced in evidence to show that fact. Defendant claimed that the map showed that the portion of the premises where the street exists was not included in the lot in question. The court offered to submit that question to the jury if defendant requested it, but there was nothing to show that defendant so requested. Held, that the fact that the street occupied a portion of the premises described in plaintiff’s deed must be regarded as practically admitted by defendant.

      2. Same—Evidence—Declarations.
    Evidence of declarations of intestate made while in possession of the premises and after his conveyance thereof, to the effect that they extended across the street, is admissible in such a case.
    3. Same—Damages.
    The measure of damages in such actions is such part of the original purchase price as bears the" same ratio to the whole consideration that the value of the land to which the title failed bears to the value of the whole premises.
    4. ApReal—Notice.
    In his notice of appeal from a judgment, the appellant stated that he intended to bring up for review, upon such appeal, the order granted subsequent to the judgment denying a motion for a new trial. Held, that although appellant’s practice was irregular, the statement was sufficient to constitute an appeal from said order.
    Appeal from a judgment in favor of the plaintiff for $812.30 damages, and $1,141.20 costs, entered March 31, 1891, in Tompkins county, on the verdict of a jury.
    The appellant’s notice of appeal contained the following statement : “And the appellant intends to bring up for review upon such appeal the order dated the 24th day of July, 1891, denying the defendant’s motion for a new trial.” The respondent noticed a motion for the term at which this case was argued, to have that portion of the notice of appeal stricken out The motion was argued with the appeal

      Almy & Bouton, for app’lt; F. E. Tibbetts, for resp’t.
   Martin, J.

—This action was to recover damages for the breach of a covenant contained in a deed of certain premises situate in the city of Ithaca, 1ST. Y., given by the appellant’s testator to the respondent’s grantor April 30, 1869. The covenant was for quiet enjoyment In an action which was subsequently commenced against the plaintiff by the then village of Ithaca, it was held that a portion of the land claimed by the respondent under such deed was in and constituted a part of one of the public streets or highways of that village, and the respondent was perpetually restrained from interfering with its use and enjoyment as such.

The alleged breach of covenant was the eviction of the plaintiff by the village of Ithaca from the portion of the lot which had been appropriated, before conveyance, as a part of a public street.

The case has been three times tried. Upon the first trial the plaintiff had a verdict. The defendant thereupon moved for a new trial, which was granted. The plaintiff then appealed to the general term, and the order granting a new trial was affirmed upon the ground that the fact that a part of the land conveyed was at the time a part of a public highway openly used was not a breach of the covenant

Upon the second trial the plaintiff was nonsuited, which was affirmed by the general term. From the judgment entered on this decision of the general term an appeal was taken to the court of appeals, where it was held that the fact that a part of the land conveyed with a covenant of warranty was at the time of the conveyance a highway, and used as such, was not a breach of warranty, but that this rule does not apply where the purchaser has no notice of the existence of such highway and there was no indication of its existence, and the judgment was reversed on the ground that it was a question of fact whether the street was open and visible or its existence known to the purchaser when the premises were conveyed by the defendant’s testator.

Upon the last trial substantially the only question litigated was, whether the plaintiff or his grantor knew of, or the situation of . the premises was such at the time as to indicate, the existence of a street across the premises. Much evidence was given upon this question. That of the plaintiff tended to show that the existence of the street was unknown to him and not indicated by the situation of the premises; that of the defendant was to the contrary. The question was fairly submitted to the jury, and it found for the plaintiff. The verdict was justified by the evidence.

On the trial the plaintiff introduced in evidence the deed from the defendant’s testator to one Todd, the plaintiff’s grantor, and a deed from Todd to the plaintiff, together with the map referred to in the description of the premises contained in those deeds. The plaintiff testified that he had had a survey of the premises made, starting from a center stone at the comer of Mill and Tioga streets; that he measured from the corner between his premises and those of Wilson sixty-six feet, and it ran over the bank into the creek three feet We do not find that this evidence is seriously contradicted. The defendant’s only claim was that the map indicated that, the portion of the premises where the street exists was not included in the lot in question. The court offered to submit that question to the jury if the defendant desired, but we find nothing in the appeal book to indicate that the defendant made any request or expressed any desire to have that question thus submitted. We think the fact, that the street occupied a portion of the premises described in the plaintiff’s deed, must • be regarded as practically admitted, in view of the course pursued by the defendant at the trial.

The appellant contends that the court erred in admitting the declarations of his testator. The plaintiff introduced the evidence of Growen Todd taken on a former trial wherein he, among other things, testified: “ I proposed to Mr. Bsty to buy the lot and went with him and we looked it over; he gave me a statement of the size; he said it was sixty-six feet front; I don’t recollect the depth ; to get the whole sixty-six feet it carried the north corner some few feet into the creek; I could not say how many feet; we could not establish the corner; Mr. Bsty did not know where the corner was and we did not measure it; he said it went over into the creek; he could not tell me any distance it went into the creek.”

This evidence was objected to as incompetent, irrelevant and immaterial, that parol proof was incompetent to extend or vary the description in the deed and that the preliminary negotiations were merged in the deed. These objections were overruled, and the evidence was admitted for the purpose of showing whether the person who negotiated for the purchase of the premises was informed as to the existence of the highway.

The plaintiff was permitted to prove other declarations of the testator, while in possession of the premises, and also subsequent to his conveyance of them, to the effect that the lot in question extended across the street and into the creek.

This evidence was objected to as incompetent, immaterial and irrelevant. The objections were overruled and the defendant excepted. We find no error in these rulings that would justify an interference with the judgment. The admissions proved were the admissions of the defendant's testator, both while in the possession of the premises and subsequent to the conveyance to the plaintiff’s grantor. The declarations of a person in possession of lands are competent evidence against himself and all persons claiming under him for the purpose of showing the character of his possession and by what title he claims. Pitts v. Wilder, 1 N. Y., 525; Chadwick v. Former, 69 id., 404; Spaulding v. Hollenbeck, 35 id., 204; Abeel v. Van Gelder, 36 id., 513. The declarations of the testator made subsequent to his conveyance were against his interest and therefore admissible against his personal representative. Lucky v. Odell, 46 Supr. Cf. (14 J. & S.), 548 ; Howell v. Taylor, 11 Hun, 214. Indeed, by reason of the privity by representation which existed between the defendant and his testator, his declarations were admissible in the same manner as they would have been against the testator. 1 Green! on Ev., § 189.

, The plaintiff was allowed to prove the value at the time of the eviction of the corner of his lot taken, as compared with the whole premises, assuming them to be worth $1,650 at that tima This was objected to as “ incompetent, irrelevant, immaterial and without foundation in the proof of this action.” The objections were overruled and the defendant excepted. It is quite manifest from the rulings and charge that the court adopted and submitted the true rule of damages to the jury. The measure of damages in actions of this description is such a part of the original purchase price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole premises. Hunt v. Raplee, 44 Hun, 149, 155; 7 N. Y. State Rep., 783. It seems to have been assumed on the trial that the consideration for the purchase of the whole premises was $1,650, and proof was allowed as to the value of the land taken, assuming the value of the whole to have been that sum. The court charged the jury that if it found that there was less of the land taken than was asserted by the plaintiff, it would then take such proportion of the value as it thought proper and deduct from the amount The value of the land as found by the jury seems to have, been $174, while the proof of the value of the whole corner of the plaintiff’s lot was $250. We find no error in this which would justify a reversal. We think the judgment should be affirmed.

This leaves for consideration the respondent’s motion to strike from the notice of appeal the words, “ and appellant intends to bring up for review upon such appeal the order dated the 24th day of January, 1891, denying the defendant's motion for a new trial” It is not apparent to us how the determination of this motion in the respondent’s favor would improve his condition on this appeal, as all the exceptions argued by the appellant were brought up by his appeal from the judgment

The correctness of the appellant’s practice is more than doubtful. The Code of Civil Procedure, § 1300, provides the manner of taking an appeal from a judgment dr order, except in cases of an interlocutory judgment, or intermediate order. ■ When the appeal is from an order other than an intermediate one, there should be a written notice of appeal to the effect that the appellant appeals from the order or some part thereof. The notice of appeal in this case is not in strict conformance with the provisions of § 1801, which relate only to an intermediate order. That the order denying the defendant’s motion for a new trial in this case was not an intermediate order, is quite manifest An intermediate order is one made between the commencement of • an action and the entry of the judgment from which the appeal is taken. Baylies on New Trials, 49.

This order was made long after the entry of the final judgment appealed from. Therefore the correct practice was to appeal from the order rather than to specify in the notice of an appeal from the judgment that the order would be reviewed as though an intermediate one. This case is clearly distinguishable from Brumfield v. Hill (28 N. Y. State Rep., 362), as in that case the motion was made on the minutes of the trial judge and before the entry of judgment. These considerations lead us to the conclusion that the plaintiff’s motion should be granted, or at least the appeal should be treated as an appeal from the judgment only, unless-the language employed in the notice of appeal can be treated as a notice of appeal from the order denying a new trial.

As we have already seen the requisites of a notice of appeal are, that it shall contain a written notice to the effect that the apf ellant appeals from the judgment or order or some part thereof. n this notice the appellant states that he intends to review on the appeal the order dated January 24, 1891, denying the defendant’s motion for a new trial. While the practice of the appellant in this case is not to be encouraged and is not strictly correct,- still, we are disposed to hold that the statement in the notice of appeal was sufficient to constitute an appeal from the order sought to be reviewed. It follows that the plaintiff’s motion should be denied ; but in view of the irregularity of the notice no costs should be allowed.

Motion denied, without costs.

Judgment and order affirmed, with costs to the respondent.

Hármit, P. J., and Merwin, J., concur.


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    In the Matter of the Judicial Settlement of Irvin A. Williams et al., Ex’rs of Abijah J. Williams, Deceased, Resp’ts. Jane M. B. Heath, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Legacy—Advancements.
    Testator, by Ms will, gave to appellant $25,000 absolutely, and subsequently, in Ms lifetime, gave her $10,000 in bonds. Held, that a finding by the surrogate on conflicting evidence that such bonds were given to her as an advance upon and in part satisfaction of such legacy would not be disturbed.
    Appeal from an order or decree settling the accounts of the executors of the last will and testament of Abijah J. Williams, deceased, made by the surrogate’s court of Oneida county, and entered on the 28th day of July, 1890. The appellant appealed only from so much of such decree as adjudged that five Utica & Black River Railroad bonds for $1,000 each and five railroad equipment bonds for $1,000 each should be charged to the appellant in the executors’ account as a part of a legacy of $25,000 given to her absolutely by the last will and testament of the testator, and that such bonds were delivered to the appellant by the testator in his lifetime as and for an advancement to her upon and as a part of and satisfaction to the extent of $10,000 of such legacy, and were properly charged to her in the executors’ account as a part of such legacy, and from so much of said decree as settles the executors’ accounts by charging her with said $10,000.

      W. W. Goodrich and W. A. Matteson, for app’lt; William Kernan, for resp’ts.
   Martin, J.

—The testator, by his will, bequeathed to the appellant absolutely the sum of $25,000; of this sum $10,000 was invested in a house in Brooklyn, H. Y, purchased for her by the testator, thus leaving the sum of $15,000 of such legacy to be paid otherwise. Afterwards, and during the lifetime of the testator, he delivered to the appellant ten bonds of the value of $10,000.

The only question litigated in the court below, or presented upon this appeal, was whether the delivery to the appellant of the $10,000 in bonds was in satisfaction of the legacy to the appellant pro tanto, or whether the bonds were an absolute gift, so that, notwithstanding their delivery, the appellant was still entitled to $15,000 of such legacy.

The learned surrogate found: “ That the said bonds were delivered to the said Jane M. B. Heath by the testator in his lifetime, on or about the 28th day of October, 1885, as and for an advance to her upon and as a part of and satisfaction to the extent of $10,000 of the legacy of $25,000, given to her absolutely in and by the fifth clause of the said last will and testament of the said testator.” We have carefully examined the evidence contained in the appeal book, and while there was some conflict therein, still we think it was sufficient to fairly justify this finding of the surrogate, and that it should be upheld.

As conclusions of law, the surrogate held : 1. “ That the said executors are entitled to charge and have properly charged in said executors’ account to the said Jane M. B. "Heath, the said ten bonds for $1,000 each, as a part- of the legacy of $25;000, to the amount of $10,000, given to her absolutely in the fifth clause of the said last will and testament of the said deceased. 2. That the said executors’ account as filed and herein modified be, and the same hereby is, in all things, confirmed and allowed.” To these conclusions of law, the appellant excepted. We do not think the exception well taken. The bonds in question having been delivered to the appellant by the testator in his lifetime in satisfaction of her legacy pro tanto, it follows that the court properly held that she should be charged with the amount thereof as a part payment of suóh legacy.

As no other questions were raised by the appellant, it follows that the portion of the decree of the surrogate appealed from should be affirmed.

Decree affirmed, with costs.

Merwin, J., concurs; Hardin, P. J., not voting.