text:
    Frederick Loeser, App’lt, v. Heman Liebmann et al., Resp’ts.

      (Supreme Oourl, General Term, Second Department,

      Filed May 11, 1891.)

    1. Landlord and tenant—Lease—Fixtures.
    A lease of store property contained a provision “ that all improvements placed in said building by the lessees, viz.: elevators, boilers, heating apparatus, &c., shall be deemed fixtures not to be removed.” The lessees had placed in the premises a small engine, a duplex Worthington pump, and a pressure tank to operate "an electrical apparatus for lighting their store and adjoining buildings and to operate an elevator in an adjoining building. Held, that the word “improvements” was limited by the videlicet clause following, and the “&c.” did not enlarge its scope further than to clearly indicate that it was the intention of the parties to include within its terms articles directly connected with those specified, and that none of the articles in question were so attached to the building as to be improvements thereto.
    2. Same.
    By another lease, made for eleven years, it was agreed that all fixtures, counters, shelving, boilers, machinery, elevators, lighting and heating apparatus in the building at the expiration of the lease, should be the property of the lessees, in case they should be called upon to erect certain party walls; but, if not, then such fixtures, etc., should become the property of the lessor at such expiration. There were no limitations as to sub-letting or assigning, or as to the character of the business to be carried on. Held, that the lease should not be construed as meaning that the fixtures should remain in the building until the expiration of the lease, but that it limits the articles which shall become plaintiff’s property, in case he shall not demand the erection of the party walls, “ to those in said building at the expiration of the lease.”
    3. Same—Injunction.
    All the articles in question were not fixtures but personal chattels, easily removed without injury to the buildings, and their exact money value could be readily determined. Held, that in such a case, a court of equity would riot interfere by injunction, as there was no proof that the threatened injury would be destructive to the freehold, or produce irreparable injury.

      Appeal from judgment of special term of Kings county, dismissing plaintiff’s complaint on the merits and from orders granting defendants additional allowance amounting to $250 in action No. 1 and $50 in action No. 2.
    The two actions were tried together. The property in dispute was of the respective values of $15,000 and $1,000.

      Wilson & Wallis, for app’lt; Freling H. Smith, for resp’ts.
   Dykman, J.

—These two actions, which were tried together, were brought to restrain defendants from removing certain articles of personal property from two stores on Tillary street in the city of Brooklyn. The complaints were dismissed on the merits at the trial and these appeals are from the judgments of dismissal and from the orders granting in each case an additional allowance.

It appears that on May 1, 1880, Ernilie Loeser leased to the co-partnership firm of Frederick Loeser & Co. the premises known as Nos. 14 and 16 Tillary street for ten years from that date. Both the plaintiff and the defendants, Herman and Louis Liebmann, were members of that firm and continued to be until February, 1887. In May, 1884, the plaintiff became the owner of the premises. The lease contains a provision “ that all improvements placed in said buildings by the lessees, viz.: elevators, boilers, heating apparatus, etc., shall be deemed fixtures not to be removed.”

The lessees had placed in said premises a small engine, a duplex Worthington pump, and a pressure tank, for the purpose of operating an electrical apparatus for lighting their entire dry goods •establishment, which consisted of the above and several other adjoining and neighboring buildings, and for operating passenger elevators in an adjoining building. As the lease was about expiring they proposed to remove these three articles, and the plaintiff thereupon brought one of the actions, claiming that under the above •quoted provisions of the lease they have become his property.

Hnless they come within the terms of the provisions above quoted, it is clear the defendants have the right to remove them. The only improvements which the plaintiff is entitled to claim are elevators, boilers and heating apparatus, and those things so connected with, as to form a part of them. The word “ improvements ” is thus limited by the videlicet clause which follows. The office and purpose of such clause is to define and particularize that which before is general. Gleason v. McVickar, 7 Cow., 42.

The “ etc.” at the end of this clause does not enlarge its scope further than to clearly indicate that it was the intention of the parties to include within its terms articles directly connected with those specified. Lathers v. Keogh, 109 N. Y., 583 ; 16 N. Y. State Rep., 178.

But the evidence shows, what is tolerably obvious without proof, that none of the articles in question are here specified or so connected with as to form part of them. None of them are so attached to the building as to become fixtures or in any proper sense improvements thereto.

The other action, which is designated number 1, grows out of certain provisions in a lease now owned by defendant of the adjoining premises, known as Nos. 10 and 12 Tillary street, made by plaintiff to said firm for the term of eleven years from May 1, 1884; these provisions are as follows:

“And it is further mutually agreed between the parties hereto that all fixtures, counters, shelving, boilers, machinery, elevators, lighting and heating apparatus in said buildings at the expiration of this lease are to become the property of the lessees, in case the lessees shall be called upon to erect the party walls hereinbefore contemplated to be built, but in case the lessor shall not demand the erection of said party walls, then the said fixtures, counters, shelving, boilers, elevators, lighting and heating apparatus to become the property of the lessor at such expiration.”

The plaintiff claims that the defendants threatened to remove these fixtures from the building and insists that they have no right to remove any of them until the end of the lease, and then only in the event of his electing to require them to erect the party walls referred to, although more than five years of the term remain unexpired.

There is no limitation in the lease as to subletting or assigning the lease, nor as to the character of the business which shall be carried on, excepting as to business deemed extra hazardous on account of fire. In view of these facts and the length of the term, the language of the clause in question should be very clear, to justify the construction that trade fixtures once placed in the building, should remain there for eleven years or until the expiration of the lease, and thus practically deprive the defendants of their right to change the nature of their business, or to sublet the premises, and, in short, in a great measure deprive them of their beneficial enjoyment. The language of this clause will not bear such an interpretation. It limits the articles which shall become plaintiff’s property in case he shall not demand the erection of the party walls, to those “in said building at the expiration of the lease.” This is plain and definite, and accords with the evident intention of the parties and the other provisions of the lease. If, however, there is doubt as to the meaning of the words used they should, under well-settled rules, be construed most favorably to the lessees., Windsor Hotel Co. v. Hawk, 49 How. Pr., 257; Clifford v. Presbyterian Society, 56 Barb., 114; McAdam on Landlord and Tenant, p. 182.

But we think the plain intention of the parties was, and the correct interpretation of this clause is, to leave the lessees freedom of use of the demised premises, and of the trade fixtures they shall place therein during the term of the lease.

There are various other reasons urged by the respondents, which lead to the affirmance of the judgment in both these actions. It is a well and long-established principle of equity, that unless the threatened injury will be irreparable, the court will leave the party to his remedy at law. R. R. Co. v. R. R. Co., 86 N. Y., 107; Jerome v. Ross, 7 John. Ch., 315.

It appeared on the trial by undisputed evidence, and was so found by the court, that all the articles in question are not fixtures but personal chattels, easily removed without injury to the buildings, and their exact money value can be readily determined. In such case a court of equity will not interfere. Thompson v. Matthews, 2 Edw. Ch., 212; Balcom v. Julien, 22 How. Pr., 349.

In order to entitle the plaintiff to injunctive relief, it was incumbent upon him to prove that the threatened injury would be destructive to the freehold or produce irreparable injury, Ewell on Fixtures, 402 ; Taylor’s Landlord & Tenant, § 695, neither of which he has done, but, as we have seen, the evidence discloses a contrary state of facts. Furthermore, it appears that the defendants had not intended or threatened to remove any of the trade fixtures from 10 and 12 Tillary street excepting an elevator, which would be rendered useless and walled up by the construction of the party wall which the plaintiff required to be erected pursuant to the provisions of the lease of 1880.

Whether this wall is the only one provided for in the lease of 1884, as to which considerable evidence was given at the trial, it is unnecessary now to determine, as the above views lead to an affirmance of the judgment in each action.

Ho reason is shown for the reversal of the orders granting the allowances. The title to the property in dispute was in issue and the amounts awarded were reasonable.

The judgments and orders appealed from should be affirmed, with costs.

Barnard, P. J., concurs.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    The People ex rel. Mansfield Compton, App’lt, v. Elbert Hegeman, County Treasurer, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Taxes—Redemption—Lease —Mandamus.
    Where land is bought in by the town and after the time to redeem has expired one has succeeded to all the rights of the original owner pays the full amount of the tax, interest, costs and charges to the county treasurer, who receives the same in full payment and discharge of the tax, and marks the premises redeemed, the person making such payment is not entitled to a lease of the premises from the county treasurer for the term for which they were sold, under Laws 1878, chap. 226, § 18.
    Appeal from an order of special term, Queens county, denying a motion' for a mandamus against respondent, as county treasurer of Queens county, to compel him to execute and deliver to relator a lease of certain premises sold for unpaid taxes. Relator claimed to be entitled to such lease under Laws 1878, chapter 226.

      Mansfield Compton, for app’lt; A. N. Weller, for resp’t.
   Dykman, J.

—This is an appeal from an order denying a motion for a peremptory writ of mandamus which th.e relator desires against the county treasurer of Queens county to compel him to execute and deliver a lease of certain premises sold for unpaid taxes.

The land in question was assessed to one Hegeman in the year 1885, and he was then the owner thereof, but the taxes were not paid. On the 7th day of June, 1887, the land was sold by the county treasurer for those" taxes, and was struck off to the town of Hempstead as the purchaser, the same being in that town.

On the 11th day of February, 1889, the relator who had succeeded to all the rights of the original owner paid the full amount of the tax, interest, costs and charges to the county treasurer, who received the same in full payment and discharge of such tax, and marked the premises upon his books as redeemed.

No forfeiture was claimed, and there is now nothing upon the records to support or justify a lease for the premises, and the issuance of a lease would falsify the record and be an idle and useless ceremony.

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

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


author: Pratt, J.

text:
    William Nicoll, App’lt, v. Charles G. Sands et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Contract—Water companies—Construction op.
    Chapter 369, § 5, Laws of 1889, provides, in regard to water companies, • “ that it shall be the duty of such corporations * * * to contract with the authorities * * * of any town or village through which the conduits or mains of such corporations may pass * * * to supply any of such inhabitants or authorities with pure and wholesome water.” Under this law a water company made a contract with the authorities of the town of Islip to lay its street pipes. In the company’s petition for the same, it says “for a privilege to supply the inhabitants and authorities with pure and wholesome water,” but nowhere in the contract was this expressly provided for; but" it contained a provision that the company should erect and operate two pumps of appropriate size, each having a capacity of pumping 1,000,000 gallons in every twenty-four hours. Meld, that the contract should be construed as one to furnish water to the town, and not simply one to erect water works.
    Appeal by plaintiff from judgment of special term, Suffolk county.
    The opinion of Hon. Edgar M. Cullen at special term, referred to in the opinion of Pratt, J., below, is as follows:
    “Although this contract-between the town and water company is inartificially drawn, I am clear after a careful study of its provisions that it is to be construed as a contract to furnish a supply of water, not as one for the erection of works merely. There are many provisions which show that it was contemplated that the company should furnish the water, but there is one that in my opinion imperatively makes it the duty of the company so to do:
    ‘ Pumps. There shall be erected and operated two pumps of standard manufacture of appropriate size, each having a capacity of pumping 1,000,000 of gallons in every twenty-four hours.’ This agreement to operate the pumps is an agreement to deliver 2,000,000 of gallons every twenty-four hours. That the agreement does not provide for the delivery of water for other purposes than fire does not render it invalid. The statute authorizes the town authorities to contract for other purposes, but it is not obligatory on the town so to do. They may contract for any or all the purposes prescribed in the statute. The other questions raised were disposed of on the trial.
    “ Judgment for the defendants, with costs.”

      Joseph Wood (George A. Black, of counsel), for app’lt; Timothy M. Griffing, for resp’t, Great South Bay Water Company; Wilmot N. Smith, for resp’ts Brown and L’Hommedieu; Herbert W. Smith, for resp’t Smith; Harry G. Clock, for resp’t Jones.
   Pratt, J.

—We concur in the views of the learned trial judge who at trial term substantially held that notwithstanding all inaccuracies the agreement in question, taken as a whole, indicated the purposes of the contracting parties, namely, to supply water to the town in specified quantities through pipes and other means to be provided by the company for the lawful use mentioned in the statute under which the company was organized.

It has been found that the agreement was made in good faith ; in other words, that there was no fraud in the transaction. We think this conclusion was clearly sustained by the evidence. ■ Hot only so, but that a finding of fraud would have been against the clear weight of evidence. The terms of the agreement were all agreed upon before the question of commissioners’ compensation was mentioned.

Under these circumstances it becomes quite unnecessary to decide the question of the legality of the rate of compensation which was ultimately agreed on. It is obvious that the officers in negotiating the terms of the agreement could not have been influenced by the matter of their fees.

We find no other question which seems to require attention. We therefore affirm the judgment, with costs.

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


author: Barnard, P. J.

text:
    The Ackerly & Gerard Co., Resp’t, v. Charles Partz, App’lt

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Supplementary proceedings—Order—Title of court.
    Section 2434 of the Code of Civil Procedure gives a county judge power to institute proceedings supplementary to execution in an action in the supreme' court in the county to which an execution may he issued, and an order made by a county judge that the defendant appear and make discovery concerning his property was properly entitled as of the supreme court.
    Appeal from an order of Queens county court, denying a motion to dismiss supplementary proceedings begun before that court.

      George A. Stearns, for app’lt; Charles E. Seward, for resp’t.
   Barnard, P. J.

—A judgment was recovered by the plaintiff against in the supreme court. The judgment roll was filed in Queens county. The defendant resided in that county and an execution therein directed to the sheriff of Queens county was returned unsatisfied. Upon an affidavit entitled in the supreme court, showing these facts, an order was made, also entitled in the supreme court, that the defendant appear and make discovery concerning his property. The order was made by the county judge of Queens county and the examination was required before him.

The defendant claims that the proceeding is in the supreme court and not before the county judge. By § 2434 of the Code, a county judge has power to institute proceedings supplementary to execution in action in the supreme court in the county to which an execution may be issued. The affidavit was properly made in the supreme court action. The judgment was still in existence, and this proceeding was a special proceeding to enforce its payment

If the application had been made before a judge of the supreme court the title of the judgment would have appeared as it does at present without valid objection. Where application is made to the county judge the affidavit must set out the judgment and the issue of an execution and its return unsatisfied, and that the judgment is unpaid. The power of a county judge in the proceedings is the same as a judge of the supreme court. Code, §§ 348, 349. His orders are reviewed like orders in the supreme court. Code, § 774.

There is no difference between a case of an order in supplementary proceedings and orders in other cases. The general rule is that a county judge may sign certain orders in the supreme court. Code, |§ 354, 435, 440, 472, 556, 606, 862, 872, 889.

If the proceeding was an original one, begun before the county judge, the title would be surplusage. The affidavit and order will be supported by the facts contained in'them.

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

Dlemán and Pratt, JJ., concur.


text:
    Lewis R. Stegman, Resp’t, v. Henry S. Hollingsworth, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

      1. Bond—Consideration—LXck of seal no objection.
    A bond executed by an under sheriff with sureties upon his appointment to the office, conditioned for the faithful performance of his official duties, shows a good consideration, and the sureties are bound by his default, and cannot object to its want of a seal.

      2. Under sheriff—No right to retain honey.
    An under sheriff has no right to keep money for which the sheriff is liable until he is assured that the latter will pay it over to the proper party.
    Appeal from a judgment and order of special term, Kings county, overruling a demurrer to the complaint.

      Fernando Solinger, for app’lt; A. M. & G. Card, for resp’t.
   Barnard, P. J.

—The paper set forth in the complaint rests upon a good consideration. It was given upon the appointment of Francis S. Hodgekinson as under sheriff of Kings county by the plaintiff, who was the sheriff. It recites that it is sealed but in fact it was not. It was not given for a past consideration but the entire official duty of the under sheriff thereafter was to be secured by it An agreement of indemnity is good by parole. The consideration was original and direct as between the-, sheriff and the defendant. The appointment depended on it and the promise rested on the appointment. The paper covered moneys received after the sheriff’s official term was ended. The business out of which the claim arises was placed in the sheriff’s hands and through him into the hands of the deputy sheriff. Code, § 184.

The surety was bound by a failure to pay over money even if the sheriff be not called upon to pay the same. Willet v. Stewart, 43 Barb., 98.

The under sheriff has no right to keep the money for which the sheriff is liable until he is assured that the sheriff will pay it over to the party entitled thereto.

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

Dykman and Pratt, JJ., concur.


text:
    Henry C. Griffin, App’lt, v. John C. Todd, Resp’t

      (Supreme Court, General Term, Second Department,

      Filed May, 11, 1891.)

    Appeal—Cannot eaise objections not made below.
    Where parties go to trial on the pleadings, without objection, upon appeal the objection cannot be raised that there was not a specific denial of the allegations of the complaint. That point should have beefi. raised upon the trial when, if necessary, the defendant might have been allowed to amend.
    Appeal from a judgment dismissing complaint, entered upon the decision of the court, at Westchester county special term.

      Henry C. Griffin, for app’lt; J. S. Millard, for resp’t
   Pratt, J.

—This appeal involves only questions of fact decided below upon conflicting testimony.

The judge who saw the witnesses and heard them testify was better qualified to pass upon their credibility than an appellate court can be merely from reading their testimony.

There seems to be evidence to sustain all the findings of fact and the conclusions of law are appropriate to such findings, and the judgment must, therefore, be sustained.

The parties went to trial upon the pleadings without objection: evidence was adduced to contradict the plaintiff’s complaint and evidence, and in support of the allegations of the answer. Under such circumstances it was the duty of the court to render a proper judgment upon the merits without reference to the fact that there was not a specific denial of the allegations of the complaint. That point should have been raised upon the trial, when, if necessary, the defendant might have been allowed to amend.

This contention is without merit upon another ground, and that is the fact that the answer substantially set up a denial by asserting facts which controvert the allegations in the complaint

We think either party had a right to repair the street to make it convenient and safe for "both, to travel upon, and the evidence fails to establish any unlawful acts on the part of the defendant which caused injury to the plaintiff, on the other hand, it clearly appeared that the defendant had greatly improved this highway without detriment to any right of the plaintiff.

J udgment affirmed, with costs.

Barnard, P. J., concurs.


text:
    John J. Mulligan, Resp’t, v. The New York & Rockaway Beach R. Co. et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Master and servant—When liable for servant’s torts.
    Plaintiff was a passenger on defendant’s road; lie"paid his fare with a five dollar bill, received his change and passed out upon the platform., The defendant’s ticket agent came upon the platform and wrongfully charged the former with passing a counterfeit bill, and procured his arrest. Held, that the defendant was liable.
    Appeal from a judgment entered on the 7th day of June, 1890, upon a verdict rendered at Kings county circuit, in favor of plaintiff, and from an order denying a new trial on the minutes.

      Hinsdale & Sprague, for appl’ts; Charles J. Patterson, for resp’t.
   Barnard, P. J.

—The plaintiff was a passenger on the defendant’s road. He had paid his fare and passed out upon the platform to take the train. He paid his fare with a five dollar bill and had received the change. The defendant’s ticket agent, who had received the bill, and while the plaintiff was upon the platform, charged the plaintiff with passing upon him a counterfeit* bill, and directed and procured the arrest of the plaintiff therefor. The charge failed because the bill was good. ■ The defendant is liable. The ticket agent was acting directly within the lines of his duty to the defendant. He was to take good money only and passengers were to give good money only. If a fraud was committed upon him by the passengers, the agent was acting for defendant in his attempt to prevent and punish such offenses. This liability of the defendant for his act is established in the case of Lynch v. Metropolitan El. R. R. Co., 90 N. Y., 77.

It is no answer to the claim of the plaintiff to say that the agent had no authority to cause the arrest. He attempted to per-' form a duty which he believed to be within the scope of his employment, and which was manifestly for the interest of the railroad company, which employed him. •

The ticket agent’s act was a willful one, under the case of Stewart v. Brooklyn, etc., B. B. Co., 90 N. Y., 588.

The arrest was a trespass; it was made without a warrant, and the justification which would be furnished by proof of a criminal act failed before the magistrate. The arrest was, therefore, a wholly unjustifiable assault on the passenger. Davis v. American Society, 75 N. Y., 652; Burns v. Erben, 40 id., 465.

The damages are not excessive. The arrest was publicly made in a crowd of people and upon a public charge of felony. The plaintiff was taken a mile through the streets of Brooklyn to the Seventeenth precinct station house. There was finally quite a crowd who followed the prisoner to the station house. There his imiocencé was made plain and he was discharged. There could scarcely be be a greater indignity put upon an innocent man. The jury were very moderate in their view of the damages.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Winfield S. Velsor, Resp’t, v. James W. Eaton, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Contract for building—Broken by owner—When action lies.
    Where a building contract is broken by the owner’s refusal to allow the contractor to proceed, the clause in the contract which provided that all dispute as to the construction of the work should be settled by the architect, and as to value of extra and omitted work should be settled by arbitration, ended with it, and the contractor, being free from fault, may bring his action for work done and materials furnished.
    Appeal from a judgment entered upon the report of James H. Tuthill, Esq., referee.

      Fishel & Reid, for app’lt; Wilmot M. Smith, for resp’t.
   Barnard, P. J.

—The plaintiff made an agreement with the defendant on the 1st of March, 1887, to erect and furnish for him, in a good workmanlike manner, a building at Babylon, for the sum of $6,789. The work was to be done under the supervision of an architect, who was to give a certificate of strict performance,. to entitle the builder to the several payments. The building was to be completed by the 1st of January, 1888. In the early part of March, 1887, the defendant took possession of the house in an unfinished state; $1,500 had been paid upon the work, and it was proven that it would take $726.11 to finish the building, and that there was omitted, by the defendant’s request, work valued at $930.07. The balance due on the contract was $3,663.11, if the-defendant was not justified in stopping the work. There was no certificate of the architect given, but this would not justify the defendant in preventing a performance of the contract. The case is quite voluminous, and is addressed to many minor issues. The chief issue tried was, whether the delay in the building was caused by the omission of the architect to furnish details of the work with sufficient promptness, to enable the plaintiff to finish the corn tract within the time.

The referee finds that the plaintiff had men and materials sufficient to complete the work, and that the delay was occasioned by an omission of the architect. A careful reading of the testimony leads us to sustain the findings on these questions. It follows, that the contract was broken by the defendant, and the consequences which follow are to be attributed to his violent action.

The contract was at an end, and the clause in the contract that all dispute as to the construction of rhe work should be settled by the architect, and all dispute as to-value of extra work and omitted work should be settled by arbitration, ended with it. The plaintiff, if free from fault, could bring his action to recover for work done and materials furnished, to be proven in the ordinary way, before a court having jurisdiction to try such an action.

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

Dykman and Pratt, JJ., concur.


text:
    Henry F. Keenan, App’lt, v. Joseph G. Bird et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Contract—Receiver—Mutual mistake.
    Plaintiff purchased agricultural land oí defendants by a contract which described it as containing ‘"about sixty acres -more or less” and referred to the deed under which defendants obtained title, and which contained the same description. After the contract was executed plaintiff had the land surveyed and found it to contain forty-eight and one-half acres. Held, that there was a mutual mistake as to quantity, and that, as the land was purchased for agricultural purposes and the deficiency so great, the plaintiff would be relieved from his purchase.
    Appeal from a judgment of the special term, Westchester county, dismissing the complaint on the merits.

      Richard V. Boyd, for app’lt; Arthur T. Hoffman, for resp’ts.
   Barnard, P. J.

—On the 14th day of May, 1889, the defendants by a written agreement under seal covenanted to convey a title to certain premises particularly described in the complaint. The deed was to be delivered on the 14th of June, 1889. One hundred dollars was paid on account of the purchase price and the balance, $5,900, was to be paid at the delivery of the deed to -plaintiff. Before the time for the delivery of the deed the plaintiff caused a survey to be made of the land and found that the description in the contract contained a trifle over forty-eight and one-half acres. The contract contained no detailed description, but referred to the deed thereof given by the sheriff upon a foreclosure sale thereof in 1862 with a specific reference to the record of the deed in the register’s office of Westchester county. This deed was in the possession of plaintiff’s attorney before the contract was executed, and the contract was drawn from it. The sheriff’s deed gave a general description of the land, mainly bounded by the premises of adjoining properties, “containing by estimation sixty acres, be the same more or less.” The contract drawn by plaintiff’s attorneys contains a still more general description of the land, but refers to the sheriff’s deed for a more particular description and states the amount of land to be “ about sixty acres more or less."

The representation made by the owners was that the sheriff’s deed “ called for sixty acres of land.” “ That the property overrun that amount, and they considered it to contain about sixty-seven acres." The land was a very irregular piece of land. There is nothing in the case to justify a finding of fraud. The vendors sold by the piece, and the statement of quantity in the sheriff’s deed was accurately given as well as the deed itself for examination of title. The negotiations were all conducted on this deed, and its accuracy of description and its estimates of quantify. The finding that there was no fraud was right. Is the plaintiff without relief ? The contract was not executed, and the parties were mutually mistaken as to quantity. The variance is so marked, and the purchase being of agriculturing land, that the case seems to be covered by Paine v. Upton, 87 N. Y., 327. Words such as “more or less,” or “containing by estimates” certain quantities do not deprive a vendee of relief where the variance is so material as to show that the risk of quantity was not one of the elements of the contract. The evidence shows clearly a mutual mistake in the case, and that the land was purchased for agricultural purposes, and that the deficiency is so great that it would be inequitable to the vendee to compel him to bear the loss.

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

Pbatt, J.,' concurs.


author: Barnard, P. J

text:
    Amanda Palmeri, Resp’t, v. The Manhattan Elevated Railway Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    1. Master and servant—Servant’s torts—Corporation—Slander.
    Plaintiff purchased a ticket of defendant’s agent, giving him a silver quarter, receiving twenty cents change, and then went upon the platform; the agent then went to her and demanded another quarter, alleging the one she had given him was counterfeit; she refusing to pay over again he denounced her as a counterfeiter and a common prostitute, and detained her in the station some time awaiting an officer to arrest her, which was . not done. Meld, that the defendant was liable, both for the abusive language and the false imprisonment by its servant, as the injury was one growing out of the same transaction and happened at the same time.
    2. Witness—Impeachment—Contradiction.
    When a witness states a fact, he may be asked if he has not made a statement at war with his testimony upon a particular occasion, and to a particular person, and if he deny it, proof may be given that he did make such statement.
    3. Same—Habitual litigation no ground.
    The fact that a witness is an habitual litigant is not recognized as an impeachment.
    Appeal from a judgment entered upon a verdict of a jury, rendered at the Kings county circuit, April 9, 1890.

      Davies & Rapallo, for app’lt; Baldwin F. Strauss, for resp’t.
   Barnard, P. J

—The rule is established by the court of appeals that a carrier of passengers undertakes to protect the passengers against the neglect and. wilful misconduct of its servants while engaged in performing the duty which the carrier owes to the passengers. Lynch v. Metropolitan Elevated R. R., 90 N. Y., 77 ; Stewart v. Brooklyn, etc., R. R., id., 588 ; Dwinelle v. N. Y. Central R. R., 120 id., 117 ; 30 N. Y. State Rep., 578.

The facts proven were that the plaintiff purchased a ticket of one Dayton, the agent of the defendant, at its station at Forty-seventh street and Third avenue, New York. She paid the agent a quarter of a dollar and received twenty cents change. She had some trouble in getting the change as her right to it was disputed by the agent and finally it was given so rudely that part of. it fell upon the floor. The plaintiff picked it up and deposited her ticket in the box and went upon the platform. The agent then went to her and demanded another quarter alleging 'that the one she had given him was counterfeit. She asserted her belief in its being good coin and refused to return the change. The agent then detained her for over half an hour and during this interval called her a counterfeiter and a passer of bad coins and that she was a common prostitute. Assuming these facts to be true the plaintiff can maintain her action against the company. The jury has passed upon the facts and the evidence given by the agent and two other persons who were present is not such as to call for a reversal. The agent states the plaintiff’s money was bad and that she was detained “ from ten to fifteen minutes.” The money was not produced the agent testifying that he “ threw it into the stove.”

One of the persons who were present did not see the plaintiff give the quarter to the agent. The other witness, Olson, testifies that the agent told the plaintiff when she left the quarter that it was not good, and she said it was good and received the ticket. All the other witnesses agree that she received the change and ticket before any objection was made to the genuineness of the "money.

The principle established by the cases is broad enough to include not only the false imprisonment but the language used while she was under duress. The injury is one; it grew out of the same transaction; it happene'd at the same time. The arrest was made by the same agent who uttered the bad- language, and this was spoken, while the plaintiff was detained against her will and helpless. The cases above cited, and the cases cited in the opinion, include insult as well as actual violence. The complaint therefor properly set forth the arrest and the incidents thereto, and the proof given on the trial, which included this bad language, was properly received. The cases cited therefor, which show that a corporation cannot utter slander unless it authorizes slander, or the same is spoken by an agent within the general scope of bis authority, have no relevancy to the case presented by the appeal.

There was a contract for the carriage of the plaintiff as a passenger. The jury had found that she’paid her fare and was given a ticket by which she was allowed to go upon the platform to be carried when the train came. She was prevented solely by the unwarranted act of the agent of the defendant Dayton was a witness for defendant. He was asked if he had not requested one Murphy “ to help him out,” and to that end to give in his name as a witness to the defendant or to the agent Murphy was permitted to so testify, and this -was properly received as an impeaching question. When a witness states a fact, he may be asked if he has not made a statement at war with his testimony upon a particular occasion and to a particular person. If he deny it, or "if he do not remember it, proof may be given that the witness did make such statement. Thus the witnsss goes to the jury with his evidence weakened, it may be, by the impeachment. This rule of evidence is applied in a large proportion of trials of issues of fact. The proof that the plaintiff was a habitual litigant was properly rejected. It was not an issue in the action, and it can only be admitted as tending to impeach the plaintiff as a witness. A love of litigation is not recognized as an impeachment of a witness. It cannot be assumed without proof that the numerous litigations which the plaintiff has had with parties other than the defendant were not meritorious. An admission of such testimony would involve an inquiry into each litigation, and even then the evidence would be inconclusive. A party may bring an action without merit, and that fact of itself would involve no turpitude.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.


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    George V. Brower, Receiver, Resp’t, v. Joseph D. Baucus et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Injunction—Receiver—Multiplicity op suits.
    Where a suit is pending, brought by a judgment creditor to set aside mortgages of its assets, made by an insolvent domestic corporation, and the receiver of the same brings a similar action, an injunction will be granted upon application of the receiver, staying the former suit, as he represents all the creditors, and his action will fully settle everything and prevent a multiplicity of suits.
    Appeal from an order continuing a temporary injunction, restraining judgment creditors from bringing actions to set aside mortgages given by an insolvent corporation, granted at a special term, Westchester county.

      Edgar T. Brackett, for app’lts; Josiah T. Marean, for resp’t
   Barnard, P. J.

—The plaintiff is the receiver of the Ridgewood Ice Company, an insolvent domestic corporation. A receiver was appointed for this company in October, 1890. Joseph D. Baucus, an assignee of a judgment recovered against the company by the Citizens' National Bank of Saratoga, commenced an action in Saratoga county in aid of the judgment, and asking in his complaint that certain mortgages given by the ice company to Husted and to Downe be decreed void. The receiver was not a party to this action- commenced by Baucus.

In November, 1890, the receiver was made a party thereto. The action was at issue and noticed for trial for the Saratoga circuit, held in January, 1891. In November, 1890, Alfred J.' Yoyer, an assignee of another judgment against the ice company, commenced a similar action to the Baucus action in.Albany county. This action was at issue and noticed for trial for the Albany circuit, in January, 1891. Under this state of the facts the plaintiff, as successor of an original receiver, commenced an action to set aside the Downe mortgage and .the Husted mortgage, and also a mortgage to the Brooklyn Trust Company, to secure 150 bonds of $1,000 each. The complaint asked for an injunction against the plaintiffs in the two actions in the judgments, and also against the Brooklyn Trust Company.

The insolvent ice company had its principal office in the city of Brooklyn. A temporary injunction was granted against Baucus, Yoyer and the Brooklyn Trust Company. Baucus and Yoyer appeal from the order continuing the same. The order was right. The case is not one where the relief sought for by the receiver can be obtained by a defense in the individual actions of the judgment creditors. The receiver represents all the creditors and the creditors’ action is not based upon a refusal by the receiver to commence an action in their behalf. The result interests a large number of creditors and all should be heard through the receiver, who acts for all. The individual action will not settle the question presented by the receiver. All the actions should not be tried. The receiver’s action will fully settle everything and it is within the power of a court of equity to compel all parties to litigate in one action. Schuehle v. Reiman, 86 N. Y., 270 ; Travis v. Myers, 67 id., 542 ; Babcock v. Arkenburgh, 22 Wk. Dig., 478 ; Erie Railway v. Ramsey, 45 N. Y., 637.

The order should be affirmed, with costs.

Pratt, J., concurs.


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    James F. Gillen, Resp’t, v. Hamlin Babcock, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Question op pact.
    Defendant and two others employed plaintiff to grade and pave certain streets and agreed to pay their pro rata of the cost when the work was completed and accepted by the department of city works. This was done, and defendant, not paying his share, a mechanics’ lien was filed by plaintiff against defendant’s property,and this action was brought to foreclose the lien. Proof was given that the work was done under direction of the city engineer and in accordance with the usage of the department. Held, that the question of fact was properly disposed of at the trial.

      Robert L. Harrison, for app’lt; J. Stewart Ross, for resp’t.
   Barnard, P. J.

—The plaintiff, under two several contracts with the defendant and others, furnished material and paved, graded and guttered a section of Himrod and Stanhope streets, in the city of Brooklyn. The amounts of each of the persons who had the work done was served by the agreements. The plaintiff sought to enforce a lien as against the Babcock property, but failed to prove title on the trial and the relief by enforcement of lien was denied. The case then became one of contract, under chap. 342, Laws of 1885, § 15, and the question tried was, whether the plaintiff had performed the same. The contracts were to be executed by the plaintiff under plans and specifications of the department of city works. The work under each of the contracts was accepted as completely performed by the plaintiff. Some question was made as to the gutter stones being of less ■ than the contract length, also, that the paving was done with small, inferior stones. Proof was given that the work was done under direction of the city engineer; that there were short gutter stones used at the corners, of necessity ; that the work was doné in accordance with the usage of the city works department, and that it was well and sufficiently done. The question of fact was properly disposed of at the trial.

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

Dykman and Pratt, JJ., concur.


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    The People of the State of New York, Resp’ts, v. Henry A. Cassidy, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.

    1. Arson—Evidence—Surroundings of house burned.
    Upon the trial of a person charged with arson in the first degree it is competent and proper for the prosecution to show the situation and surroundings of the house alleged to have been burned.

      % Evidence—Admissions to police officer—Code Grim. Pro., § 395.
    Voluntary admissions made to a police officer in response to questions may be received in evidence unless they were made “ under the influence of fear produced by threats,” and the question as to whether they were so made is one proper for the jury to pass upon.
    3. Same—Witness—Impeaching.
    Defendant’s father denied on cross-examination that he had been previously discharged by the owners of the burned building, or had made charges against his successor. Held, that a letter written by him contradicting these statements was inadmissible as impeaching his credibility as a witness.
    4. Same—Previous fires.
    In such a case, evidence that fires had occurred at the same place, not confined to the period of defendant’s father’s employment or at a time prior to the fire alleged, is incompetent.
    Appeal from judgment of the court of sessions of Westchester county convicting defendant of arson in the first degree, in setting fire in the night time to the house of the Mew York Catholic Protectory, used as a lodging place for their employees, and so occupied on the night of the fire.
    The People were allowed to show that there were four houses in a row, occupied by families in the employ of the protectory, and that the houses were connected. Inspector Byrnes was allowed to testify to admissions made by the prisoner, who was requested to be brought before him, and which were made voluntarily, and in which he stated that his father was responsible for the crime.
    His father had been discharged from employment in the protectory as gas manager, and testified that he had made no complaint and had not been discharged. He also denied that he had stated that the employee who succeeded him did not understand his business, and that the place would blow up, etc. A letter written by him containing charges against his successor and complaining of his own discharge was admitted under objections.
    A fellow workman of the prisoner’s father who had been employed in the gas works for many years, was asked how many fires there had been at the protectory, but the evidence was excluded as immaterial.

      W.Popham Platt, for The People, resp’ts ; Fred'k. Wm. Sherman and Frederick W. Clark, for app’lt.
   Pratt, J.

—The defendant was indicted, tried and convicted for setting on fire a dwelling house, in the night time, at the time occupied by human beings.

The case was submitted to the jury under a charge conspicuously clear and comprehensive, to which no exception was taken, and the verdict is amply sustained by the evidence.

Indeed, the proof of guilt was so abundant and conclusive that no other result could reasonably have been expected. There are, however, numerous exceptions that require notice.

It was competent and proper for the prosecution to show the situation and surroundings of the house alleged to have been burned. Such evidence was not only a part of the res geske, but had a bearing upon the question of motive.

Another answer to this exception is that the proof showed that all the houses inquired about constituted but one ■ dwelling, and , the proof was confined to a description of that one structure.

The admissions of the defendant were properly admitted.

The question raised by the testimony of the defendant whether the admissions were made voluntarily or under fear, for compulsion or duress, was fairly submitted to the jury.

. At the time the admissions were received as evidence there was no proof to bring the admissions within the exceptions contained in § 395 of the Code of Criminal Procedure.

In the present case the defendant was not taken before a magistrate or sworn, but the statements made by him seem to have been voluntarily made; therefore, it was not within the rule laid down in The People v. Mondon, 103 N. Y., 211; 2 N. Y. State Rep., 713 ; but rather within the case of The People v. McGloin, 91 N. Y., 241.

. It is not difficult to imagine that the conduct of the police officers was well calculated to impress the defendant with fear, considering his age and the poor intellectual capacity he has been shown to possess, yet that question was distinctly passed upon by the jury and we cannot say that any legal error was committed in that regard.

• The letter of the father was competent as tending to impeach his testimony.

The answer to the exception to the exclusion of proof that other fires had occurred at the Protectory is that no time was fixed as to their occurrence. Had the inquiry been directed to the time when the defendant’s father was employed there, or at a reasonable time prior to the fire alleged, it would have been competent under the proofs already submitted.

We have examined the whole case and find no error sufficient to warrant a reversal of the judgment

Conviction affirmed.

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


text:
    Daniel W. Tallmadge, Resp’t, v. The Press Publishing Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    1. Trial—Remarks op judge.
    It is the privilege and duty of a judge at the circuit to control the trial and restrain the testimony within reasonable bounds, and exclude inquiries into remote and collateral subjects, and it would require an extreme case to justify a reversal for improper comments made by the judge upon the defendant’s case and evidence in the presence of the jury.
    2. Same—Right to open and close.
    Where in an action for damages for slander, the admissions in the answer are not such as to enable the jury to give a verdict for the plaintiff for the amount claimed in the complaint; the burden of proof is upon the plaintiff and he has the right to open and close.
    Appeal by defendant from judgment entered upon a verdict for $6,500 in favor of the plaintiff, rendered by a jury at the Kings county circuit, and from an order denying defendant’s motion for a new trial on the minutes.
    Lowery, Stone & Auerbach, for app’lt; James D. Bell, for resp’t.
   Dykman, J.

—The defendant is a domestic corporation, organized for the purpose of publishing the newspaper in New York city called the World, and this action is brought for the recovery of damages for .the publication of a libel in that newspaper.

The cause was tried at the circuit before a jury, and the plaintiff obtained a verdict. The defendant has appealed from the judgment, and from the order denying a motion for a Hew trial upon the minutes of the court

The article published in the World, upon which the action was based, was libelous, and its publication furnished the plaintiff with a cause of action against the defendant

Upon the merits, therefore, the action is justified, and upon the testimony the verdict is sustained, and if the verdict discloses no error in the proceedings upon the trial, the judgment must be affirmed.

The defendant asks for a reversal of the judgment and a new trial upon four assignments of error, which we will examine in the order of their presentation.

The first claim is, that the judgment should be reversed for improper comments of the trial judge upon the defendant’s case and evidence in the presence of the jury, and for the prejudice and bias against the defendant’s case exhibited throughout the trial, whereby the defendant was prejudiced.

The specifications under this charge refer to remarks of the judge in assigning reasons for the exclusion or admission of testimony, and it would require an extreme case to'justify the reversal of a judgment on that ground.

We have examined with care all the remarks to which exception was taken, and we discover nothing beyond the ordinary range of a trial. It is the privilege and duty of a judge at the circuit to control the trial and restrain the testimony within reasonable bounds, and exclude inquiries into remote and collateral subjects, and that seems to have been the effort of the judge upon, this trial.

We find nothing in the remarks complained of which are beyond the privilege and discretion of a trial judge or which could legitimately have produced any injurious impression or effect upon the jury-

It is next insisted that the judge erred in the admission and exclusion of testimony, and there are fifteen specifications of error under this general point

It is sufficient for us to say that a careful examination of the record shows most of the objections to be frivolous and none of them valid.

The next insistence is that the judge erred in refusing to allow the defendant to open the case to the jury and to reply in summing up, and it is erroneous to refuse the party holding the affirmative of an issue of fact upon a trial the right to open and close. Murray v. Ins. Co., 85 N. Y., 236.

Yet the state of the pleadings in this action did not entitle the defendant to the affirmative. The admissions in the answer were not such as to enable the jury to give a verdict for the plaintiff for the amount claimed in the complaint. It became necessary for the plaintiff to furnish the jury with some testimony upon which a verdict could be based for substantial damages. He had the right to give evidence for the enhancement of his damages beyond such as would be deemed nominal, and for that purpose it was competent to show his general surroundings and his position in society. Morey v. Morning Journal Association, 123 N. Y., 210 ; 33 N. Y. State Rep., 49.

It was proper, therefore, to give the affirmative to the plaintiff upon the trial.

It is lastly insisted that a new trial should be granted for errors committed by the judge in his charge to the jury, and upon this point also we deem it unnecessary to go over the specific claims of the defendant. We find no errors in the charge. The judge was careful to say that all the facts were for the jury, and that the parties had the right to the unbiased view of the jury without any influence from the court.

Upon the whole case we find nothing to justify a reversal. The objections raised are all technical and leave the merits untouched.- The action was fairly tried and submitted to the jury, and the judgment and order should be affirmed, with costs.

Barnard, P. J., concurs,


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    William I. Thorn, App’lt and Resp’t, v. Oliver T. Beard, App’lt and Resp’t.

      (Supreme Court, General Term, Second Department;

      Filed May 11, 1891.)

    Attorney and client—Compensation—Guardian ad litem.
    An agreement by a father with an attorney, who appears as guardian ad litem of his minor children, for compensation for services, where their interests are not identical with those of the father, would be contrary to public policy.

      Appeal by both parties from a judgment in favor of plaintiff entered upon the verdict of a jury rendered at the Dutchess circuit.
    At the trial of this action brought to recover for professional services as an attorney, it appeared that part of plaintiff’s services consisted in acting as guardian ad litem for defendant’s minor children, in the surrogate’s court, in proceedings where defendant’s interests were not identical with those of his children. The court at circuit excluded such services from the consideration of the jury. Plaintiff also claimed for services rendered in a suit for the construction of a will, as to consultation upon accounts, etc., and testified that he prepared an action for obtaining possession of certain dredges, and took steps towards preparing the claim, and before it was finally prepared the parties separated. The jury rendered a verdict in favor of plaintiff for such employment for $1,800.

      Homer A. Nelson, for pl’ff; John T. Barnard (Frank B. Lown and Oliver T. Beard), of counsel, for def’t.
   Pratt, J.

—The legal objection to plaintiff’s recovery from defendant for services rendered in the proceedings before the surrogate was placed by the circuit judge on the proper ground.

In those proceedings plaintiff was guardian ad litem for defendant’s children. Their interests were not identical with those of their father, and any agreement of the father to compensate the guardian would be contrary to public policy.

The evidence does not show that any service was rendered before the appointment as guardian.

As to the one item on which plaintiff was allowed to go to the jury, we find no error.

There was a question of fact upon which the verdict was decisive.

Judgment affirmed. No costs.

Dykman, J. concurs.


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    William Hughes, Rec’r, Resp’t, v. Marian L. McKenzie et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Supplementary proceedings—Receiver—Action by—Injunction—Complaint MUST STATE AMOUNT OF JUDGMENT.
    Where, in an action brougnt by a receiver in supplementary proceedings, an injunction is asked to restrain the disposition of money on deposit in a bank, it is necessary that the amount of the judgment should be stated in the complaint, or some allegation showing that the matter in controversy ought to be heard in a court of equity.
    Appeal from an order continuing an injunction pendente lite, granted upon the ex parte application of the plaintiff restraining defendants Alexander C. McKenzie and Marian L. McKenzie from withdrawing a certain fund alleged to amount to $2,075.88, or any part thereof, on deposit with the defendant the Brooklyn Savings Bank, in the name of Alexander C.. McKenzie, as trustee for his son William H McKenzie.

      Morrison & Kennedy, for app’lts; Philip Orgler, for resp’t
   Pratt, J.

—This is an appeal from an order made by Mr. Justice Bartlett restraining the disposition of money on deposit in the Brooklyn Savings Bank during the pendency of this action.

The money on deposit was credited to Caroline McKenzie, who died January 19, 1890.

The defendant, Alexander C. McKenzie, her husband, was appointed administrator of her estate. He immediately had the money on deposit transferred, without withdrawal, to himself as trustee for William H. McKenzie, his son.

He thereafter withdrew part of the money, used it for his own purposes without in any way charging himself as administrator, or making the same a part of his wife’s estate.

The complaint is defective in that it does not state the amount of the judgment or the claim that plaintiff has against Alexander C. McKenzie; neither does the affidavit state the claim. .

It is true that no issue is made upon that subject, but it is plain that the plaintiff is only entitled to impound sufficient of the money in question to pay his claim and costs.

If by fair inference from the paper it appeared what sum was due, it might be sufficient, but all that can be inferred from the allegations of the complaint is that at least twenty-five dollars is due, from the fact that defendant was examined in supplementary proceedings.

Had the defendants made the point below, the court would undoubtedly have permitted the plaintiff to amend in this respect.

Under the old practice in equity, where it did not appear from the face of complainant’s bill itself that the matter in controversy was beneath the jurisdiction of the court, the defendant could neither demur or move to dismiss the bill. It was sufficient that the bill ordered that the subject in controversy exceeded one hundred dollars. Section 189, Rule in Chancery. However, under the Code, we think there ought to be a statement 'of the amount claimed, or some allegation showing that the matter in controversy ought to be heard in a court of equity.

Therefore, if this injunction is held and the plaintiff is given an opportunity to amend, it ought to be upon condition of his paying the costs of this appeal.

If the affidavits . submitted by the defendants are true, the money sought to be impounded belongs to W. H. McKenzie; but that is a question that cannot well be tried upon affidavits.

The order is affirmed to the extent of plaintiff’s claim, upon plaintiff paying costs of this appeal and amending his complaint so as to state approximately the amount due him from Alexander McKenzie.

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


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

text:
    William T. Blatz, App’lt, v. John Rohrbach, Resp’t.

      (Supreme Court, General Term,, Second Department,

      Filed May 11, 1891.)
    Civil damage act—Intoxicating liquors.
    In an action brought under the civil damage law, chap. 646, Laws of 1873, to recover damages suffered by plaintiff for loss of his father, who committed suicide while intoxicated, it was proven that he went home intoxicated about Ü p. m., and was found dead next morning; that he spent a portion of the evening at defendant’s saloon, and that he drank while there two glasses of a mild form of lager beer, and left perfectly sober about 10 p. M. There was proof given that this mild form of beer called " spenk beer" will not intoxicate. Held, that there was no proof sufficient to be submitted to the jury that the defendant sold the deceased any intoxicating liquor.
    Appeal from a judgment of the Westchester county circuit, dismissing the complaint.

      Charles H. Noxon, for app’lt; L. L. Van Allen, for resp’t.
   Barnard, P. J.

—The complaint was properly dismissed.

The lather of the plaintiff committed suicide on the 3d of March, 1885. He went home intoxicated about 11 p. if. and was found dead next morning. He was proven to have passed a portion -of the evening of March 3d, 1885, at defendant’s saloon, and that he drank while there two glasses of a mild kind of lager beer. He was perfectly sober while there and perfectly sober when he left the defendant’s premises at about 10 p. M. There was proof given that this mild form of lager beer, called “ spenk beer,” will not intoxicate. Upon this evidence the jury could not give a verdict that the intoxication which induced the suicide was occasioned in whole or in part by the defendant.

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

Pratt, J.

—This is an action brought under the civil damage law, chap. 646, Laws of 1883, to recover damages suffered by plaintiff for loss of his father, who committed suicide while intoxicated.

It is a sufficient answer to this appeal, that there was no proof sufficient to be submitted to the jury, that the defendant .sold the deceased any intoxicating liquor. Blatz v. Rohrbach, 116 N. Y., 450; 27 N. Y. State Rep., 484.

It seems to be conceded 'by both sides, that if the plaintiff had proved that defendant sold any intoxicating liquor to the deceased, it would have been a proper question to submit to the jury, whether the suicide was caused by the liquor or intoxication.

We cannot concur in the view that such proof, standing alone, is sufficient to warrant a submission of that question to the jury. Undoubtedly, death might be inferred from intoxication, where a party has died with no intervening apparent cause, like one who has drank himself to a stupor and died; or where, from accident; like falling overboard, or under the cars, or exposure to cold when drunk, or in any other manner, where it is clear the intoxication has some logical relation to the cause of death.

But where a party deliberately commits suicide, how can it be said or inferred that it was the result of intoxication? Indeed, without some evidence that the deceased when drunk, had exhibited some tendency to melancholia or mental depression, why should a jury be permitted to speculate, and infer that intoxication caused the idea which, earned into execution, resulted in suicide.

If we are to reason from our experience, is it not true that , liquor has an exhilarating, rather than depressing, effect upon a person.

x In this case it cannot be urged that because the father committed suicide when under the influence of liquor that intoxication may be assumed to be the cause for the reason that he had often been drunk before and no such attempt had ever been made or indicated.

_ In no view can it be said in this particular case that intoxication had any influence in causing death.

There was an utter failure of proof upon that subject, and there was nothing either in the peculiar history of the deceased or from a standpoint of science or human experience to indicate that liquor had any influence in inducing the death.

If statistics of suicides could be considered pertinent I think it will be found that 5,000 suicides occur where the person is sober to one where the party is intoxicated.

If it was an issue of an assault made by the deceased upon another person it might well be assumed it was induced by intoxication, because human experience shows that liquor makes some people ugly and quarrelsome, but there is no experience that indicates that intoxication tends to suicide, but rather to the contrary.

So far as the proof in this case indicated, it was utterly impossible for any one to point out any reasonable cause for the suicide, or any logical connection of intoxication with it. We think, in such case, it is not competent to permit a jury to speculate upon the matter and render a verdict for which there is no just foundation in science, experience or reason.

If it was the first time the party had ever been intoxicated, or if the previous history of the man had shown that liquor bad a depressing effect upon him, or that surrounding facts and circumstances pointed to intoxication as the cause, it might present a different question, but to say that the bare fact that a drinking man had become intoxicated was the inducing cause of a deliberate intention to commit suicide, has no foundation in law or reason.

A verdict to be valid must be a logical inference from the facts adduced upon the trial.

Judgment affirmed.

Dykman, J.,


text:
    Henry Schwenk, Resp’t, v. William Widemeyer, App’lt

      (Supreme Court, General Term,, Second Department,

      Filed May 11, 1891.)

    Judgment—Res ad judio at a—When a bar.
    Plaintiff was a wagon-maker and made two wagons for the defendant, and brought action to recover an alleged balance due on the contract price. Defendant offered in evidence a judgment roll in an action of replevin brought bv him against plaintiff, in which he obtained possession of one of the wagons, withheld on the ground of non-payment, the other having already been delivered. Held, that the replevin judgment only settled the right of the defendant to the one wagon, and did not settle what was due on both, and that the judgment roll was properly excluded in the second action.

      Appeal from a judgment of Richmond county court in favor of plaintiff, and from an order denying a motion for a new trial.

      John Widdecombe, for app’lt; W. J. Powers, for resp’t.
   Barnard, P. J.

—The trial of this action developed a single question of fact. The plaintiff was a wagon-maker and had made two wagons for the defendant. The only point of difference between the parties was whether the contract price of the two was to be $350, as claimed by plaintiff, or $290, as claimed by defendant. The jury found in favor of the plaintiff upon the issue. The defendant was a grocer and had furnished the plaintiff with groceries to the amount of $182.66. There were other credits for articles bought for the wagons and paid for by defendant which left a balance of $98.87; the interest added made the verdict $103.86. The verdict is final unless some error was committed on the trial. It seems that the defendant had brought an action against the .plaintiff before this action was commenced and had then obtained a judgment. The pleadings in that action are not given. It seems that this judgment was pleaded in bar of this action. It seems also thht the judgment roll was offered and rejected because the judge decided that “that judgment was not a bar.” The judgment roll is not given and we cannot say that it was a bar. ' It seems that the judgment roll was for the possession of the second wagon, which the present plaintiff refused to give up until he was paid. It seems that in the replevin action before Justice Hitt the defendant paid in a certain sum of money which he claimed was the balance. The replevin judgment only settled the right of the then plaintiff to have possession of the wagon. It did not settle what was due the plaintiff upon both wagons. This question could not have been litigated in an action of replevin where the issues were whether the second wagon should be delivered to the then plaintiff (now defendant).

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

Dykman and Pratt, JJ., concur.


author: Dykman, J. Barnard, P. J. (dissenting).

text:
    In the Matter of the Probate of the Will of Ann Forbes, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Will—Mistake in drafting, will not invalidate.
    The probate of a will was resisted because the name of one of the ahilaren of the deceased was not inserted as a recipient of a portion of the income of the trust estate created by the will, and the claim was that such omission was a mistake, and that it was the intention of the testatrix to have such name so inserted. Held, that mistake alone will not justify the rejection of a will.
    Appeal from a decree of surrogate’s court of Kings county, admitting a will to probate.

      John E. Simpson, for app’lt; Charles J. Patterson, for resp’t.
   Dykman, J.

—This is an appeal from a decree of the surrogate, of Kings county, admitting to probate the will of Ann Forbes, deceased.

The probate of the will was resisted because the name of Edwin. Eorbes, a‘ son of the deceased, was not inserted as a recipient of a portion of the income of the trust estate created by the will, during its continuance and the claim was that such omission was a. mistake, and that it was the intention of the testator to have such name so inserted.

We can find neither principle nor authority that will justify the rejection of a will for such a cause, and "the introduction of such a rule would be productive of dangerous litigation and destroy many wills.

There are many reported cases where proof has been introduced in controversies over wills of the expression of testamentary intentions which were not carried out in the instrument Such testimony has usually been introduced upon the question of undue influence, but we find ho case where such proof has been received to destroy a will on the ground of mistake alone and we can easily perceive-that such a doctrine would be fraught with danger.

Testamentary dispositions of to-day may be revolutionized tomorrow, of the next day or the next, and the scrivener who prepares the will may or may not be informed of the change, but it is the written instrument and the solemnities surrounding its execution which manifests the intention of the testator as it is finally fixed in his mind and his purposes must be sought for and discovered in the will, and not in external circumstances or previous-declarations.

In actions for the construction of wills or where those instruments have been called in question in other actions, statements and provisions which they' contained have, been held void for uncertainty and mistake as in the case of Kalbfleisch v. Kalbfleisch, 67 N. Y., 360, where it was held that the numeral eight was used mistakenly. But such presumption and construction is indulged for the purpose of upholding a will, and not for its destruction ; to avoid intestacy and not to decree it.

The decree should be affirmed, with costs.

Pratt, J., concurs. •

Barnard, P. J. (dissenting).

—The facts are very clear. The testatrix made a will some four years before her death. This will exhibited an estrangement between her and one of her children. This child was deprived of a share in the estate, which was about $26,000. A few days before her death she sent to her attorney, Mr. O. J. Patterson, who had drawn her will. Mr. Patterson was in Europe and one of his clerks in his office responded to the call. He saw the testatrix and was instructed to draw a will and make this disinherited child even with the others. The clerk made such changes as he supposed would do this, and he read the will over to the testatrix, and she executed it. She was about eighty-four years old, and died four days thereafter. The will did not in point of fact carry out the intention of testatrix.

■ The formal execution of the will, under these circumstances, should not be deemed to establish an execution by a free and capable testator who understood its contents. The changes were misleading when made, and the essential change to carry out the testatrix plan was not made at all. She relied on her lawyer and did not have sufficient mental power, from her age and from her mortal sickness, to comprehend the will. It was executed under a mistake. If the whole will was not understood, all of it fails, even if the bequests in it were .intended when given to other persons than this disinterested son. The will is an entirety, although the surrogate’s court in Hew York admitted a will to probate, striking out that portion executed under a mistake. Burger v. Hill, 1 Bradf., 360.

I think the will ought not to be admitted to probate. The former will is proven to have been destroyed and revoked thereby.

The will should be refused probate and letters of administration issued, as in case of intestacy, with costs to both parties out of the estate.

Decree affimed, with costs.


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    George C. Tidden et al., Resp’ts, v. William Raab et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)
    Evidence —Weight of—Review.
    In an action brought to recover for stained glass furnished by the plaintiffs for a house erected for R. by a contractor, the defense was'that the glass was sold to the contractor and not to the defendant. The evidence tended strongly to show that it was selected and ordered by the brother and sister of R. with her knowledge and approval, and that the amount was deducted from the contractor’s bill, and that R. said she would pay it to the plaintiffs. Held, that the verdict was well sustained and justified by the evidence.
    Appeal from a judgment of Kings county circuit, entered on a verdict of a jury.
    Action brought by George 0. Tidden and others against Barbara Raab. She dying during the pendency of the action, William Raab and Wilhelmina Raab, her executors, were substituted as defendants,, and they appeal. ;
    Kellogg, Rose & Smith, (Abram J. Rose, of counsel), for app’lts Frank W. Arnold, for resp’ts.
   Dykman, J.

—This action was commenced against Barbara Raab, who died after it was begun, and her executors were substituted as defendants.

The suit was brought to recover §248.99 for stained glass furnished by the plaintiffs for a house erected for Miss Raab by Mertz, and the defense was, that the glass was sold to Mertz, the contractor, and not to Miss Raab. That question was contested upon the trial and proof was offered by each party in support of their respective positions. There was considerable contradiction in the testimony, and the whole case was submitted to the jury by a charge which was plain and fair, and the plaintiff obtained the verdict, which is well sustained and justified by the evidence, and we think any other verdict would have been inconsistent with the proof.

The glass was furnished by the plaintiffs and used in the building, and the value was undisputed, and the testimony tended strongly to show that it was selected and ordered by the brother and sister of Miss Eaab, with her knowledge and approval, and as between her and the plaintiffs she became their debtor for the glass. There was also testimony that the amount was deducted from the bill of Mertz, and that Miss Eaab said she would pay it to the plaintiffs.

The judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs.

Barnard, P. J., concurs.


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    Ludlow W. Valentine, an Infant, by George W. Bergen, his Guardian ad litem., App’lt, v. Matilda Richardt, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Trust—Constructive—Purchase money fraudulently obtained.
    In an action to impress a trust upon certain real estate conveyed to defendant for a nominal consideration by her husband, prosecuted on the theory that the husband purchased and paid for the. premises in question with money which he obtained by fraud and under influence fiom plaint - ■ iff’s mother, it appeared that defendant’s husband became the physician of plaintiff’s mother; that soon after illicit relations existed between them; that she became a changed woman; they lived together; the house door was kept bolted and no one permitted to enter, and that he had complete dominion over her until her death; that when he took possession of the woman and her home she had $13,000 in bonds, and when she died they were not to be found, and he had invested about that amount in real estate. Held, that a trust would be impressed on the real estate in favor of the plaintiff.
    Appeal from a judgment of special term, Kings county, dismissing the complaint.

      Connell, Secor & Page (Horace Secor, Jr., of counsel), for app’lt; William C. Beecher, for resp’t.
   Dykman, J.

—It is the object of this action to impress a trust upon certain real estate conveyed to the defendant for a nominal consideration by her husband, Dr. Herman T. Eichardt.

It is charged in the complaint, and the action is prosecuted upon the theory that the husband of the defendant purchased the premises in question, and paid for the same with money which he obtained by fraud and undue influence from Catharine A. Valentine, the mother of the plaintiff.

A trial has been had before a judge without a jury, which resulted in a dismissal of the complaint, and the plaintiff has appealed from the judgment.

In the examination of the case, the testimony introduced is to be taken as true, and is to be viewed in the light most advantageous to the plaintiff, and he is also entitled to the most favorable inferences deducible from the facts and circumstances disclosed. If such inferences are not certain, or if different minds might reach different conclusions upon them, then the question is one of fact to be determined by the court or jury. Weil v. D. D., etc., Co., 119 N. Y., 147 ; 28 N. Y. State Rep., 944. And if the evidence examined in the light most favorable to the plaintiff would justify and sustain a verdict of a jury in his favor, then a nonsuit is erroneous. Thompson v. Lumley, 50 How. Pr., 105 ; aff’d 64 N. Y., 631.

The husband, of the defendant became the physician of Mrs. Valentine and her family, and after that he was with her alone in her bed room daily for hours at a time, with the door locked. Prom that time she was a changed woman. Before that she was pleasant and sociable with her mother and her family, and after that she secluded herself from them. She was a church member and attended upon religious services, and after that time she ceased to do so and refused even to see her clergyman. The doctor said he was a mind reader and she was a weak Eve. She told him she loved him in her mother’s presence and that he loved her, when at the same time he was a married man with three children.

The doors of the house were bolted and no one was permitted to enter, and the family went in and out at the basement.

In the latter part of 1883 a lawyer called by appointment with Richard to obtain the signature of Mrs. Valentine to a legal paper, and a girl came to the basement door and saw him and then opened the front door after drawing the bolts. Eichardt came down and read the paper and then went out and came in with Mrs. Valentine, who entered the room with a downcast look, signed the paper and retired without having raised her eyes or uttered a single word.

These facts and circumstances manifest the illicit relations of Eichardt and Mrs. Valentine and his complete dominion over her.

All this transpired in 1882 and 1883, and in the fore part of the latter year she.had at least $10,000 in bonds, and at the time of her death, in January, 1888, they had disappeared, and his supremacy over her was complete during all of that time.

In September, 1885, Eichardt purchased real estate and paid in money $13,000, which was about the sum for which the $10,000 of bonds of Mrs. Valentine would have sold in the market at that time. When Eichardt took possession of the woman and her house she had $10,000, and when she died they were not found, and he had invested about that amount in real estate. The motives which actuated the man were plainly avaricious and vile, and it is easily inferred from his whole course that he would pursue his design without restraint. His disposition- to appropriate these bonds corresponded with his opportunity, and his investment shows that he received money about that time from some unexpected source. When he went into the house, so to speak, the bonds were there, and when he came out they were not there, and he was the only person who could control them, except their owner, and she had surrendered all to him.

If we pause here and ask what impression these facts make upon the mind of a reasonable person, we think the answer must be unfavorable to the defendant, and that the conviction would be forced upon the common mind that the grantor of the defendant obtained possession of the bonds of Mrs. Valentine wrongfully, and invested the proceeds in the premises in question. Evidence which satisfies the mind is sufficient to sustain a judgment.

The case of the Ferry Co. v. Moore, 18 Abb. N. C., 118; 1 N. Y. State Rep., 374, is similar to this in many respects, and the remarks of Judge Earl, who wrote the opinion of the court of appeals in that case, are pertinent here. He says: “ This evidence so far as it tends to show a misappropriation by Moore of plaintiff’s money is mainly circumstantial. Some of the circumstances are not very strong, and standing alone would be quite inconclusive and insufficient as the basis for any judgment. But they all point in one direction, and combined they furnish great probative force. They do not exclude every hypothesis but that of Moore’s wrong doing, but they all harmonize with that of guilt. His innocence may be possible. But courts in weighing evidence and reaching conclusions do not deal with possibilities. * * * No more certainty in proof should be required than is ordinarily practicable.”

The facts and circumstances disclosed in this case are inconsistent with the innocence of Richard, and they are all consistent and harmonious upon the theory of his guilt and render it highly probable that he took the bonds in question and appropriated their proceeds to the purchase of the property in question.

Moreover, this is a case where the doctrine of constructive fraud may be applied with augmented force. The relations between Richardt and Mrs. Valentine, his overmastering influence, and her weakness render it probable that unfair advantage has been taken of her, and his dealings with her are presumed to be fraudulent and void. Cowee v. Cornell, 75 N. Y., 100. He was her physician and more, and courts of equity are always ready to interpose their benign jurisdiction to prevent and correct wrongs and frauds perpetrated by persons sustaining such confidential relations as physician and patient.

So we have the case with every inference from the evidence actual and circumstantial, drawn in favor of the plaintiff and every presumption against the defendant, and while more satisfactory evidence is desirable, we cannot say there is none.

The facts and circumstances impress upon us the belief that the premises in question were, purchased with the proceeds of the bonds fraudulently obtained by Ricliarclt, and as the defendant is his wife and voluntary grantee, she occupies no better position than he would'if the transfer had not been made.

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

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


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    Oliver Downs, App’lt, v. Maria Wells et al., Adm’rs, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)
    Limitations—When statute begins to bun.
    In 1864, one T. gave his note to W. for the benefit of plaintiff, W. and others. W. was to collect the same and divide the amount among those entitled. In 1871 W. died, without bavins paid to plaintiff his share of the note, and in 1885 an action was begun against his administrators to recover plaintiff’s share. Held, that the claim was barred by the statute of Imitations

      Appeal from a judgment of Suffolk county court dismissing the complaint.

      Daniel W Reeve, for app’lt; Payne & Benjamin, for resp’ts.
   Dykman, J.

—In the month' of January, 1864, Phineas Tut-hill made a promissory note for $112.50, which was left with the defendants’ intestate, who with four others, including the plaintiff, were equally interested in the note.

The defendants’ intestate died in September, 1871, and they were appointed his administrators soon after his death. Phineas Tuthill died in August, 1883, and this action was commenced about two years thereafter for the recovery of the plaintiff’s share of the Tuthill note.

A trial was had in the county court of Suffolk county, and the plaintiff recovered a verdict. From the judgment entered upon the verdict the defendants appealed to the general term of this court, where the judgment was reversed and a new trial ordered. A new trial has now been had, and at the close of the plaintiff's case his complaint was dismissed upon the ground that the action was barred by the statute of limitations, and the plaintiff has again appealed to this court.

The case shows plainly that the claim is barred by the statute of limitations, and the judgment should be affirmed, with costs.

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


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    George E. Russell et al., App’lt, v. Frederick E. Bardes, Resp’t.

      (Supreme Court, General Term. Second Department,

      Filed May 11, 1891.)
    1. Partnership—Prior contract.
    In an action by plaintiffs, for work done and materials furnished by them, as copartners, for defendant, it appeared that the plaintiff R. was indebted to defendant, and agreed t,o do the work in payment of his indebtedness, but before entering upon it, and without defendant’s knowledge, he entered into a partnership with defendant M, and the work was performed by them. Held, that plaintiffs could only recover the amount due after deducting the debt of R. to defendant.
    2. Costs—Mutual account.
    Plaintiffs recovered judgment for $40.20, the amount due after deduct- • ing defendants’claim against R., and judgment given defendants for costs. Held, that it was not a case of mutual accounts, and the balance only, after deducting the amount of R.’s indebtedness to B., constituted the matter in controversy.
    Appeal from a judgment of Richmond county court, entered on a verdict of a jury, and also from the taxation of costs.

      George Widdecombe, for app’lts; George J. Greenfield, for resp’t.
   Pratt, J.

—This is _ an appeal from a judgment entered upon the verdict of a jury in the county court of Richmond county. There is also an appeal from the taxation of costs.

The jury, in effect, found that the claim for which the suit was brought arose under a special contract between the plaintiff Russell individually and the defendant, and the evidence supports that finding.

If there was a special contract that Russell should do the work specified in payment of a debt which he then owed the defendant, and also ih payment of such further advances in merchandise as the defendant might sell Russell, whatever arrangement the latter might make with another person, could not affect such contract.

Undoubtedly, the main consideration of employing the plaintiff Russell by the defendant was to secure the payment of Russell’s indebtedness, and especially so must have been the trusting of him for more goods.

The jury probably thought it would be a fraud to allow the plaintiff to recover upon the ground that he had a partner and thus avoid the payment of his just debts.

Assuming there was a partnership it was not entered into until after the contract was made with the defendant so that at that time Russell’s services were pledged to the defendant and the work was all done under that contract. To allow Russell now to rescind that contract and recover upon the ground that he had a partner would be a gross fraud upon the defendant. Story on Part., §§ 132-133; Lindley on Part., 269.

The case was fairly submitted to the jury and no exception to the charge discloses any error sufficient to warrant a reversal of the judgment. We also think the defendant was entitled to costs.

It was not a case strictly of mutual account, but as fast as the plaintiff Russell earned anything it was a payment pro tanto on account and the balance only, after the amount of the payments are deducted, constitutes the matter in controversy, which did not amount to a sufficient sum to oust the jurisdiction of a justice’s court. Brisbane v. Bank of Batavia, 36 Hun, 17 ; Burdick v. Hale, 13 Abb. N. C., 60 ; Matteson v. Bloomfield, 10 Wend., 555.

1 It is clear under the proofs that $174 of defendant’s claim against Russell was a liquidated claim as it was an old account which had Been presented to and admitted by Russell and which he had promised to pay, so that deducting that amount from Russell’s claim the balance of the contested items did not exceed $400. It was not a case of mutual accounts.

The order allowing costs must, therefore, be affirmed.

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


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    In the Matter of the Probate of the Will of William Watson the Younger.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)
    Winns—Capacity—Intoxicants.
    Probate of a will was sought, to be revoked on the ground of incapacity, fraud and undue influence. The only evidence tending to sustain the allegations was that the testator was addicted to the use of intoxicating liquors to such an extent that it produced feebleness of body. Affirmative evidence showed that this habit had not affected his mind, and that when the will was executed he was sober. Held, that there was no ground for revocation of the wül.

      On reargument.

      C. A. S. Van Nostrand, for app’lt; Harrison S. Moore, for resp’t
   Barnard, P. J.

—The original decree of the surrogate, admitting the will to probate, was entered 23d of January, 1888. An infant party was brought in and she raised a new issue upon the construction of the will. The surrogate, on J une 4, 1888, again admitted the will to probate, and this decree also construed a clause in the will in respect to a power of disposition in the will. This decree was not appealed from.

The present proceeding was initiated by petition, and this recited the two decrees and specifically referred to the construction of the will made by the decree of june 4, 1888. The grounds stated in it for a revocation of the probate were based upon allegations of incapacity, fraud and undue influence. The surrogate denied the application and this appeal brings up the order denying revocation.

The petitioners argued at great length the question of the construction of the will, and if the probate was properly granted the error of the construction would not be sufficient of itself to revoke probate, yet so far as that question entered into the application to revoke probate, it was considered and passed upon by the general term. The opinion expresses our conclusion as to the general capacity of testator, his freedom from restraint or fraud, as well as a concurrence with the surrogate in his construction of the will. This was not, it is true, directly presented by the appeal; but it was so strenuously argued as a reason for revocation that it was examined and no reason was found in the construction why a revocation should be had.

Motion denied, with ten dollars costs.

Dykman and ÍPratt, JJ., concur.


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    In the Matter of the Estate of Clarissa Darling, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)
    Executors—Liability for costs.
    M. was abroad at time of testatrix death in 1871. He was named as executor, but permitted persons interested in the estate to take the property and divide it and pay the debts, taking their receipt on his return. He never made an accounting, but in 1886 brought a suit as executor on a note which was held barred by the statute of limitations, and judgment for costs entered against him as executor. Held, that such costs should be paid by the estate, but having never accounted, and it appearing that deceased left ample means, the executor must be presumed to have funds to meet the costs.
    Appeal from an order of Suffolk county surrogate’s court, in proceedings to compel an executor to pay a judgment for costs in an action brought by him as executor.

      Thomas J. Ritch, Jr., for app’lts; George F. Stackpole, for resp’t.
   Pratt, J.

—It has been laid down as a principle in some cases that where a suit is brought for the benefit of a fund that the fund to be benefited by the suit ought to pay the costs in case of defeat. Columbian Ins. Co. v. Stevens, 35 How. Pr., 107.

This seems to be a proper case for the application of spch a principle.

The plaintiff brought a suit for the benefit of the estate of which he was executor, in which he was defeated and costs awarded against him, and it is only just that the estate should be made to pay such costs.

This imposes no real hardship upon the plaintiff in that suit, as he could have secured indemnity before commencing his suit from the parties to be benefited by a judgment in his favor.

The circumstances under which the estate was settled and distributed does not constitute a valid defense to this claim, as there has never been any accounting by the plaintiff as executor.

He seems to have permitted persons interested in the estate to take the property and divide it and pay the debts. Such an arrangement was valid as between them, but it did not bind creditors nor relieve the executor from doing his duty under the law. Having never accounted, and it appearing that the deceased left ample means, the executor must be presumed to have funds to meet costs incurred in a suit brought for the benefit of the estate.

Order reversed and case sent back to surrogate for further proceedings.

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


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    David Miller, Resp’t, v. Benjamin Wright et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed May, 11, 1891.)
    Appeal—Waiver.
    Where an appellant, after taking his appeal, collects costs and extra allowance granted him in the judgment appealed from, and consents that the other defendants receive their share under it, he has waived his appeal.
    Appeal from a judgment of special term, Kings county, in favor of plaintiff. Defendant Wright appeals.

      Taylor & Ferris, for app’lt; F. P. Bellamy, for resp’t David Miller; I. N. Sievwright, for resp’t Lucy E. Miller; Samuel Keeler, for respt’s Ezra W. Miller and others: James B. Lockwood, for resp’t, guardian ad litem.

   Barnard, P. J.

—There is nothing in the printed case which calls for a reversal of the judgment appealed from. The case does not contain all the evidence, and so states. The error is fatal. Porter v. Smith, 107 N. Y., 531 ; 12 N. Y. State Rep., 479.

The appeal is from the entire judgment, and the points allege erroi as to one share only, that of Cínarles E. Miller. The complaint of plaintiff alleges title to this share to be in his heirs. The plaintiff was himself one, and so was Benjamin Wright, the appellant. Wright’s answer set up advances to Charles E. Miller-in his lifetime, and while the nominal title in trust was held by him, to the Charles E. Miller, third. The plaintiff denied this. The answer of Wright was served on the other heirs of Charles E. Miller, and they made no reply. The issue thus formed did not admit the advancements to Charles E. Miller. The plaintiffs reply put the averment in issue for all the parties interested. in the share of Charles E. Miller. What was decided in respect to these advancements by the first report of the referee does not appear. There was allowed $794, with interest from January 3, 1885, besides commissions out of the general fund. The evidence returned does not show that any portion of the supposed trust funds were advanced to Charles E- Miller. As the trust was void after 1871, and these advances were made within two or three years thereafter, the claim is barred by the statute of limitation. The appellant, by collecting his costs since appeal, and by consenting that two-thirds of the estate be paid out under the judgment, has waived his appeal. Carll v. Oakley, 97, N. Y., 633 ; Alexander v. Alexander, 104 id., 643 ; 5 N. Y. State Rep., 499.

The general charges against the trust estate under the deed from Hannah E. Byerson and the commissions of David Wright, were taken out before any distribution.

If these are now increased, there is but the Charles E. Miller •share out of which they can be paid.

The appeal should, therefore, be dismissed, with costs of motion, and judgment affirmed, with costs.

Dykman, J.,