text:
    Harlow S. Austin, App’lt, v. George W. Wauful, James Casler and Sylvester Waterman, Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Replevin—Estoppel.
    A deputy sheriff levied under execution upon certain property of plaintiff which he claimed to he exempt; but after such levy plaintiff gave to the deputy a receipt for the property, agreeing to deliver it on demand or pay the amount of the execution, and thereafter remained in possession. In an action of replevin brought against the sheriff and the judgment creditor, Held,, that the receipt estopprd the plaintiff from denying that he had possession of the property at the commencement of the action, and that he was not entitled to recover.
    2. Appeal—Waiver.
    On motion for nonsuit the court held that plaintiff could not recover as the complaint then stood, and plaintiff then asked permission to amend and that the case go over the term. The court gave him thirty days to amend and pay costs, in default of which the complaint was. ordered dismissed. Held, that although plaintiff excepted to the conditions imposed, yet as he accepted the portions giving him the right to amend and to postpone the trial, he could not he heard to attack such order, and that his only relief was to amend and proceed to trial.
    Appeal from a judgment entered in Jefferson county dismissing the plaintiff’s complaint, with costs.
    The action was replevin brought to recover the possession of certain personal property levied upon by the defendant Waterman as deputy sheriff, under an execution issued upon a judgment in favor of the defendant Wauful against the plaintiff. The action was based on the ground that the property levied upon was exempt from levy and sale on execution. The proof given on the trial showed that the property was not taken from the possession of the plaintiff, but was in his possession when this action was commenced and that he had given the sheriff a receipt therefor. Upon the trial, after these facts had appeared, the defendant moved for a non-suit. The court intimated that the action could not be maintained. The plaintiff thereupon asked permission to amend his complaint and to put the case over the term. This was granted on condition that he pay twenty dollars costs, the defendant’s witness’ fees, and serve an amended complaint within thirty days, and that in default thereof judgment should be entered-dismissing the complaint, with costs. The plaintiff failed to amend his complaint or pay the costs within the time allowed, and judgment was thereupon entered dismissing the complaint, with costs. From the judgment so entered this appeal was taken.

      James A. Ward, for app’lt; E. C. Emerson, for resp’ts.
   Martin, J.

That this was. an action of there can be no doubt. The complaint was in replevin, and on the trial the plaintiff in effect admitted that such was the action. A party cannot so frame his complaint that if he fails to recover possession of the property, he can recover damages for its conversion.. Seymour v. Van Curen, 18 How., 94.

The object of the action of replevin is the recovery of specific personal property. It belongs to the same general class of cases as trespass and trover, but is a possessory action and unlike either. “ In order to maintain replevin the plaintiff must show a right to have delivery of the property at the time of the commencement of the suit. The proceeding is partly in rem, and unlike trespass or trover which seeks damage only.” Wood v. Orser, 25 N. Y., 351.

If the property sought to be recovered by the plaintiff in tnis action was in his possession when it was commenced it is difficult to perceive any ground upon which he could maintain an action to obtain that which he already possessed. In Barnett v. Selling, 70 N. Y., 496, Allen, J., said: “ If the tobacco had, by any means, come to the possession of the plaintiff, the action of replevin would not lie, although trespass or trover might for the original tortious taking or detention. Whenever the plaintiff admits the possession of property there can be no occasion for an action to recover the possession.” That the plaintiff had the actual possession of the property in question when this action was commenced is clearly manifest It was upon the ground that he had such possession that the court in effect held that under the pleadings and evidence as it stood at the close of the trial the complaint should be dismissed.

On the trial the plaintiff proved that one of the defendants who was a deputy sheriff levied upon the property in question by virtue of an execution against the plaintiff, that the plaintiff claimed that the property levied upon was exempt from levy and sale under an execution and also proved facts showing that it was. exempt. But it was also shown that after such levy was made the plaintiff executed and delivered to the deputy sheriff who made such levy a receipt whereby he acknowledged that he had received of such sheriff the property in question and for value received promised to deliver the same to him, when he should demand it, at Pinckney, or in default pay the amount of the execution' with the fees and interest thereon. The plaintiff also testified that the property in question remained in his possession. The receipt given by the plaintiff estopped him from denying that he had the possession of the property at the commencement of the action. Dezell v. Odell, 3 Hill, 215: Diossy v. Morqan, 74 N. Y., 11.

The case of Clark v. Weaver, 17 Hun, 481, in no way aids the plaintiff. In that case the plaintiff gave a receipt upon the assurance that it would not prejudice his rights and that no advantage would be taken if the property was present when wanted for sale. The sheriff afterwards came to sell it, and was informed by the plaintiff where it was. The sheriff then returned the receipt to the plaintiff, and commenced selling the property when an action was brought to recover the possession of it. It was held that the plaintiff was not estopped from claiming title to the property. In that case the officer had resumed possession and commenced a sale of the property. Nothing of the kind is shown in the case at bar. When this action was commenced the plaintiff was in the possession of the property, and the receipt was in full force. ■ We think the court properly held that the plaintiff could .not recover in this action upon the complaint and proof herein.

There is another ground that appears to be fatal to the plaintiff’s success on this appeal. After the evidence was closed a motion fór a nonsuit was made, and the court in effect held that the plaintiff could not recover as the complaint then stood. The plaintiff then asked to be permitted to amend his complaint, and that the case be allowed to go over the term. In pursuance of this application, the court made an order giving the plaintiff thirty days within which to make and serve an amended complaint changing the cause of action as he might be advised, on paying the defendant twenty dollars costs and witness’ fees, and in default of such payment, and service of an amended complaint, the complaint in'the action to be dismissed, with costs. While the plaintiff excepted to the ruling of the court granting a nonsuit, he availed himself of the order permitting him to amend his complaint and postponing the trial, at least so far that the trial was postponed, although he did not serve an amended complaint, nor pay the costs imposed as a condition of the amendment.

In Weichsel v. Spear, 47 N. Y. Supr. Ct. (J. & S.), 223, the court on the trial directed the complaint to be dismissed unless the plaintiff amended his complaint, and gave him leave to amend in four days on the payment of costs. The leave to amend was given on the request of the plaintiff, but he claimed that it was «erroneous to grant the leave on the condition that he should pay «costs. On appeal from a judgment entered on plaintiff’s default to amend and pay costs, the court said that as the costs were to be paid in four days, and the plaintiff took that delay, he had some advantage from the leave to amend, and was bound by the order made. He might have refused to take the order. Instead of an absolute dismissal, the dismissal was at his, own request made conditional upon plaintiff’s not amending, and the only relief he was entitled to was to amend and then proceed with the action. This case was affirmed by the court of appeals. 90 N. Y., 651. The doctrine of the case cited was followed by this court in Driscoll v. Downer, 9 N. Y. Sup., 129; 29 N. Y. State Rep., 609, and affirmed by the court of appeals. 35 N. Y. State Bep., 995.

In the case at bar the plaintiff, at the close of the trial, instead of standing upon his exceptions to the rulings of the court and permitting it to dismiss the complaint, and then relying upon the questions of law in the case, asked leave to amend his complaint and that the trial should be postponed. The court allowed him to amend and postponed the trial at his request. As a condition to such amendment and postponement, the court required the plaintiff to pay twenty dollars costs and witness’ fees, and directed that in default of an amendment and payment of costs that his complaint should be dismissed. While the plaintiff excepted to the conditions imposed upon granting the order, he did not refuse to accept the order which postponed the trial and gave him the right to amend. The effect of this procedure was, we think, to effect an abandonment of the proceedings had on the trial, and leave the order as though it had been made before any trial had been had, and hence that the only relief the plaintiff was entitled to was to amend his complaint and then to proceed to trial.

We think the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., concurs; Merwin, J., concurs on the last ground stated.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Henry D. G. Carr and Philip H. W. Jones, App’lts, v. Hector B. Johnson, as Sheriff, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Fraudulent conveyance—Burden of proof.
    Where the possession of the goods included in a bill of sale is allowed to remain in the vendor, the burden of establishing that the sale was in good faith and without intent to defraud creditors is upon the purchaser, although a good consideration is proved, and in this respect § 5 of tit. 3 of chap. 7, part 2 of the Revised Statutes did not change the rule established by § 5 of tit. 2 of said chapter.
    2. Same—Direction of verdict.
    Where, on such a sale, there is no actual change of possession and there is no proof to show a good consideration or that it was made in good faith and without intent to defraud creditors of the vendor, as to such creditors it is conclusively fraudulent, and the court is justified in directing a verdict accordingly.
    Appeal from a judgment entered in Onondaga county upon the verdict of a jury directed by the court in favor of the defendant

      T. D. Brewster, for app’lts; N. G. Watson, for resp’t.
   Martin, J.

This action was for the conversion of a quantity of furniture, consisting of twenty-four hall racks and six cases or cabinets, of the value of $571.05. The plaintiffs claimed title under a bill of sale given them by the owners December 11,1889. The property in question was never delivered to the plaintiffs, but remained in the actual possession of their vendors until it was levied upon and sold by the defendant as sheriff of Onondaga county. It was taken and sold under and by virtue of an execution duly issued upon a judgment rendered in this court on December 19, 1889, against the plaintiffs’ vendors.

On the trial the plaintiffs introduced their bill of sale in evidence and proved that their vendors were indebted to them in the sum of about $550, but there was no proof that the bill of sale was taken in payment or discharge of such indebtedness; on the contrary, the evidence showed quite clearly that it was not

At the close of the plaintiffs’ evidence the court directed a verdict for the defendant The propriety of such direction is challenged by the appellants, and presents the only question involved on this appeal It was admitted by the plaintiffs that the property in question was in the possession of their vendors at the time of the levy and sale by the defendant The sale to the plaintiffs was, therefore, presumed to be fraudulent and void as against the creditors of the vendors, and was conclusively fraudulent, unless it was made to appear that the sale was made in good faith and without any intent-to defraud their creditors. Such is the mandate of the statute. 2 R. S., chap. 7, title 2, § 5. The burden was upon the plaintiff to make it appear that the sale was made in good faith and without any intent to defraud creditors. Siedenbach v. Riley, 111 N. Y., 560, 568; 20 N. Y. State Rep., 120.

The appellants contend that the statute above referred to is modified by § 5 of title 3 of chap. 7, part 2 of the Revised Statutes, which provides that the title of a purchaser for a valuable consideration shall not be affected or impaired unless the purchaser had notice of the fraudulent intent of his immediate grantor, and hence that the burden of proving the fraudulent intent was cast upon the defendants whenever the plaintiffs proved that they were purchasers for a valuable consideration. This court has recently held otherwise. In Wallace v. Nodine, 32 N. Y. State Rep., 657, it was held that where there was no actual and continued change of possession, the burden of establishing that the sale was in good faith and without any intent to defraud creditors or purchasers was upon the plaintiff, although a valuable consideration was proved, and that in that respect § 5 of title 3 did not change the rule established by § 5 of title 2.

Moreover, the evidence in this case fails to show that the appellants were purchasers for a valuable consideration. As we have seen, there was no evidence which tended to show that the bill of sale was given or received in payment of the debt owing the plaintiffs by their vendors. We do not think this contention of the appellants can be sustained.

The appellants also claim that the question whether the sale was fraudulent was a question of fact for the jury, and that the court erred in directing a verdict. This, perhaps, presents a more difficult question. The statute provides that the question of fraudulent intent in cases arising under the provisions of the statute relating to fraudulent conveyances shall be deemed questions of fact and not of law. 2 R. S., chap. 7, title 3, § 4. It must be admitted that in a case where the statutory presumption of fraud arising from the continued possession of the vendor stands upon one side, and upon the other there is evidence which tends to repel that presumption, the question is one of fact for the jury, and should not be taken from them and decided by the court as a question of law. Such is not this case. In this case there was no proof which tended to rfepel the presumption of fraud, and by the provisions of the statute, unless it shall be made to appear that the sale was made in good faith and without intent to defraud, the continued possession of the vendor becomes conclusive evidence of fraud.

We are of the opinion that where on sucn a sale there is no actual change of the possession, and no proof to show a good consideration, or that it was made in good faith and without any intent to defraud the creditors of the vendor, as to such creditors it is conclusively fraudulent, and a court is justified in directing a verdict accordingly. Stevens v. Fisher, 19 Wend;, 181; Tifft v. Barton, 4 Den., 171; McCarthy v. McDermott, 10 Daly, 450.

We think the court was justified in directing a verdict for the defendant, and that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., concurs; Merwin, J., concurs in the result.


author: Martlet, J.

text:
    Jerome B. Palmer, Resp’t, v. William H. Stryker, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Contract—Patrons of cheese factory—Tenants in common.
    Ev.en though the patrons of a cheese factory might he considered tenants in common of the cheese made from the milk furnished by them, the sale of the cheese and separation of the fund derived therefrom is a complete termination of such tenancy in common, and anyone of them may sue to recover his share.
    3. Same—Counterclaim.
    In an action to recover for plaintiff’s share of the proceeds of cheese sold, the defendant counterclaimed for damages alleged to have been sustained by plaintiff’s refusal to deliver milk for the entire season. There was proof sufficient to justify a finding that there was no contract for the season, or that the milk was not correctly weighed. The court charged that if the contract was for the season, defendant was entitled to recover any damages he sustained, unless plaintiff was justified in refusing to deliver his milk because it was not correctly weighed. Held, that this was as favorable to defendant as he had a right to ask.
    Appeal from a judgment, entered in Herkimer county, upon the verdict of a jury for $54.44, April 15, 1889, and from an order denying a motion for a new trial, made upon the minutes of the trial judge.
    The action was brought to recover a balance of $54.60 and interest from September 1, 1888, for cheese sold by the defendant, which was made from milk brought by the plaintiff to the defendant’s factory. The defendant was the owner of a cheese factory, made cheese for the patrons of the factory, sold it, and from the proceeds deducted the expense of making, and divided the balanee among the patrons in proportion to the number of pounds of milk furnished by each. After a sale of the cheese the defendant made out and delivered a statement to each patron, together with a check for the amount due him.
    The plaintiff worked a farm owned by Mrs. Wood on shares. The avails of the cheese was to be equally divided between the plaintiff and Mrs. Wood at the cheese factory. On account of the milk delivered by the plaintiff to the defendant’s factory the defendant made out two statements, one for the plaintiff and one for Mrs. Wood, each showing in detail the amount of chees'e sold, price for which it was sold, the net price per pound, the number of pounds of milk delivered by the plaintiff, and the net proceeds. The net proceeds were divided to give one-half to Mrs. Wood and Mr. Palmer owned the other half of the milk. Mrs. Wood sent no milk to the factory except what plaintiff brought there.
    The plaintiff received $25.01 from the defendant for cheese sold from June 10 to June 24, and received nothing after that. The defendant made out and delivered statements for Mrs. Wdod covering the period from June 24th to the time plaintiff stopped taking milk to the factory, and the last statement and check were delivered by the defendant to the plaintiff’s wife for Mrs. Wood. According to the statements made by the defendant to Mrs. Wood, her share of the proceeds of the cheese sold after June 24, 1888, was $54.60. The plaintiff’s share was the same. The defendant refused to pay the plaintiff his share when demanded.

      Malteson & Harvey, for app’lt; Steele & Prescott, for resp’t.
   Martlet, J.

We think the complaint was sufficient to justify the recovery in this action. Conaughty v. Nichols, 42 N. Y., 88.

The evidence given on the trial discloses that the defendant, who was the owner of a cheese factory, and a cheese maker, agreed with the plaintiff and several other of his neighbors that he would receive the milk that should be delivered to him by each, and for the price of one dollar and ten cents per hundred would manufacture it into cheese, furnish everything necessary for that purpose (except each should furnish such rennets as he should have), take care of it until ready for market, then sell it, receive the money, and after deducting the expense of making, figure up and determine the amount that was due to each for the milk furnished by him and pay him that amount. We think the contract made was between the defendant and each of his patrons severally, and the court committed no error in so instructing the jury.

If we were to assume (which we do not decide) that after the cheese was manufactured, and before the sale, the parties furnishing the milk from which it was manufactured were tenants in common of the cheese, it does not follow that after it was sold and converted into money and the share of each determined by the defendant, that the other patrons of the factory had any interest in the portion belonging to the plaintiff. The sale of the cheese and the separation of the fund derived therefrom were a complete termination of any tenancy in common that might have existed between such patrons. When this was done it was the defendant’s duty to pay to the plaintiff his share. That he refused to dp. By this action he was compelled to perform the agreement he made with the plaintiff. The judgment in this case is both equitable and just, and we have found no sufficient reason for overthrowing it.

The defendant’s counterclaim, based upon the plaintiff’s refusal to deliver his milk for the entire season, was disposed of by the trial judge as favorably to the defendant as he had a right to ask. It was submitted to the jury with instructions that if the contract was for the season, the defendant was entitled to recover any damages he sustained, unless the plaintiff was justified in refusing to deliver his milk because it was not correctly weighed. The proof was sufficient to justify the jury "in finding either that there was no contract for the season, or that the milk was not correctly weighed. In either event the defendant was not entitled to recover damages for the plaintiff’s refusal to deliver his milk for the remainder of the season.

The proof also shows that the plaintiff offered to draw his portion of the cheese and that he delivered to the defendant all the rennets that he had that season, and hence, the defendant was entitled to no deduction upon either of these grounds.

We have examined the various rulings of the trial court on the reception and rejection of evidence, but have found no error prejudicial to the defendant or which would justify a reversal We think the judgment was right and should be affirmed.

Judgment and order affirmed, with costs.

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


text:
    Charles T. Redfield, Adm’r, Resp’t, v. Lewis H. Redfield, Jessie A. Redfield and Louis Marshall, App’lts, Margaret T. Smith et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Will—Annuity—Charge on realty.
    By testator's will he devised certain real estate to his daughters M. and J. and his son L., Subject to the payment of an annuity to his wife from whom he had separated, which was charged on the real estate, if she should execute a release of dower and interest in the estate. By a codicil he altered this provision by striking out the names of J. and L., and giving the premises to M., alone, subject to the same provisions and the payment of an annuity to L. By another codicil he again amended it by giving the premises to Bf. and L., and releasing M. from the payment to L. Feld, that the provision of the original will making the wife’s annuity a charge on the property remained unchanged, and that the annuity remained a charge thereon, as well as a charge against M. personally.
    Appeal from a judgment entered in Onondaga county upon the decision of a special term, adjudging that an annuity given by the will of Lewis H. Redfield, Sr., to his wife, in lieu of dower, was a charge upon a store and lot devised by the testator to Lewis H. Redfield and Margaret T. Smith. The defendants, Lewis H. Redfield, Jessie A. Redfield and Louis Marshall, only, appealed.

      Jenny, Marshall & Huger, for app’lt Marshall; Samuel JD. Solomon, for app’lts Redfield; Tracy, McLennan & Ayling, for resp’t Redfield; Knapp, Nottingham & Andrews, for resp’t Smith.
   Martin, J.

Prior to 1853 Lewis H. Redfield and Anna M. Redfield were husband and wife. While that relation existed between them Lewis H. Redfield became the owner in fee of the real estate described in the complaint known as number twenty-one in block ninety-four, in the city of Syracuse, N. Y., and remained such owner and in possession thereof until his death. He died at Syracuse July 14, 1882, leaving Anna M. Redfield, his widow, him surviving. He left a last will and testament dated May 16, 1874, with several codicils thereto.

Ón September 30, 1882, this will, and the several codicils thereto, were duly admitted to probate by the surrogate’s court of Onondaga county.

His widow died intestate June 18, 1888. December 4, 1888, letters of administration of her estate were duly granted by the surrogate’s court of Onondaga county to Charles T. Redfield, the plaintiff.

In November, 1853, articles of separation were entered into between Lewis H. Redfield and his wife, whereby she was to receive the sum of four hundred dollars annually for her support during the term of her natural life. They lived separate for the remainder of their lives.

The third article of the testator’s will was as follows: “ Third. I will and devise to my daughters, Margaret T. Smith and Jane L. Redfield, and to my son, Lewis Hamilton Redfield, Jr., all that ' other parcel of land, being part of said block, No. 94, in said city, as conveyed to me by Augustus James, extending from Water street to the Erie canal, being also about twenty-one feet front and. known by street number twenty-one, and also occupied by said Ashley P. Johnson, to have and to hold the same as joint tenants, and if either shall die, then the interest and the portion of the one so dying will go to the survivors or survivor, and the said premises and said legatees or their survivor or survivors are hereby charged with, and this legacy and bequest is made subject to the payment of an annuity to my wife, Mrs. Anna Maria Redfield, of one hundred and fifty dollars quarter-yearly from my death during her natural life, if she shall execute, acknowledge and deliver to my executors a proper release of her right of dower and interest in my real estate, and this provision for her is hereby declared to be in full discharge of such right of dower, and also in discharge of my agreement to pay her four hundred dollars annually, and of all undertakings or obligations on my part for her • benefit or support, and of all her interest in my property and estate.”

On April 25, 1877, the testator made a codicil to his will, which so far as applicable to the questions in this case was as follows : “ First. Strike out and I revoke from the second and third lines in article third in said will these words: And Jane L. Redfield and to my son, Lewis Hamilton Redfield, Jr., so that the legacy and bequest in said article will be to my said daughter, Margaret, and not to her and said Jane L. and Lewis Hamilton, and yet subject to the same provisions and conditions as in said article contained, to be kept and performed by said Margaret alone, instead of my three children, as in said article contained; and my said daughter Margaret is further required to and she will assume to and pay to and for the benefit of my said son, Lewis H. Red-field, the sum of seventy-five dollars quarter-yearly from the proof of my will, and for the term of twelve years or only until his death, if he shall die within that time; but she will not recognize any assignment of or order for said sums, and she will pay the same to him personally only, and she may pay the same before or after they become due, and to any person she may think best.”

The testator by a sixth codicil to his will, dated July 1, 1881, provided as follows: “ Second. I further alter article third in my said will and article first in my codicil of 25th April, 1877, by, and I hereby will and devise to said Margaret T. Smith and Lewis H. Redfield equally, and as tenants in common, the store and lot therein described as lot or store No. 21, in Block No. 94, and the said Margaret is released from paying to said Lewis H. and his heirs the payments therein provided."

On April 13, 1883, and after the probate of the will of the testator, his widow executed, acknowledged and delivered to Charles T. Eedfield and James L. Bagg, the executors named in said will, who had qualified as such, a release of all her right, title and claim to dower in, and to any and all real estate owned by the testator, or in which he had any interest at his death or at any time during his life. The release' executed by the widow of the testator was executed with the intent on her part to comply with the condition upon which the annuity of $150, payable quarter-yearly, was made p'ayable to her by the third article of the will of the testator, and was an acceptance on her part of the provision for her made by the will.

Immediately after the death of the testator the defendants, Margaret T. Smith and Lewis H. Eedfield, took possession of the real estate in question, and have since received the rents and profits thereof. They refused and neglected to pay the annuity provided for by the testator’s will, or any part thereof, to his widow during her life, or to the plaintiff, who is her administrator, since her death. Such annuity at the death of said Anna M. Eedfield amounted to the sum of $3,550. Mo demand was made upon the defendants, Margaret T. Smith and Lewis H. Eedfield, for the payment of such annuity by the plaintiff’s intestate during her life. Certain articles of personal property belonging to the estate of the testator were by the appraisers set apart for his widow, under the statutes, and were afterwards received by her, but such setting apart was after the acceptance by her of the provision made for her by said will. The .foregoing facts were found by the learned trial judge, and were fully sustained by the evidence.

The court held that the annuity mentioned was a charge upon the premises described; that the premises came to the defendants, Margaret T. Smith and Lewis H. Eedfield, subject to and charged with the payment of such annuity, and that Margaret T. Smith became personally liable for the payment of the same. Judgment was thereupon ordered adjudging that the sum of $3,550 with interest from the commencement of the action was due to the plaintiff, and directing a sale of the lands in question to satisfy said amount and the costs of such sale, and further adjudging that the defendant Margaret T. Smith pay the deficiency, if any.

That the testator by the provisions of his original will intended to charge the premises devised to Margaret T. Smith, Jane L. Eedfield and Lewis H. Eedfield, Jr., with the payment to his wife during her natural life of an annuity of $600, is manifest from the language of the will. It is likewise manifest that it was his intent that the legatees named should also be personally liable for the payment of such annuity. The express provisions of the' will were that the premises mentioned and the legatees named were thereby charged with and the devise was subject to the payment of such-annuity, upon her executing to his executors the release mentioned.

The effect of the codicil of September 25, 1877, was to revoke this provision of the will, so far as it was a devise of the property in question to Jane L. Redfield. and Lewis H. Redfield, Jr., and to leave it as a devise of the property to Margaret T. Smith alone, but subject to the same provisions and conditions as were contained in the original will. It also imposed upon her the burden of paying Lewis H. an annuity of $300 a year for twelve years, or until his death. As the will stood after this codicil was executed, Margaret was the sole devisee of the property in question, and the payment of an annuity of $600 to her mother was made both a charge upon the property and against her personally. Such was the testator’s will when the codicil of July 14, 1881, was made:

That the testator by this last codicil did not intend to revoke the-provisions of his original will as modified by the codicil of April 25, 1877, is rendered quite manifest by the language employed. The language is: “I further alter ” the will and codicil “by," etc. This language is totally inconsistent with the idea that all the provisions of his will and former codicil were to be revoked and a new and substituted disposition of his property made. It is perhaps true that what follows renders this provision of the codicil somewhat ambiguous, but we think when the provisions of the will and codicils are considered together the intent of the testator is readily discovered. This property had been originally devised to three of the testator’s children and the annuity to'the mother had been made an express charge upon the property and against the several devisees. The will was subsequently changed by revoking the devise as to two and leaving it a devise to one alone, with the charge of the mother’s annuity remaining, and creating an additional charge of an annuity of $300 a year payable to Lewis H., one of the former devisees. Again the will is altered by making the devise to Margaret and Lewis as tenants in common instead of Margaret alone, and by relieving her from paying the annuity to Lewis, her co-devisee. Such was the purpose of the last codicil. We think that was its only purpose. Surely there is nothing in the last codicil to show any intent on the part of the testator either to release Margaret or the premises from the provision of the will giving his widow an annuity and making it a charge upon the property and against the devisees. By this codicil Margaret was expressly released from the charge to pay an annuity to Lewis, and we think it may fairly be presumed that if the testator had intended to release her or the property from the charge of his wife’s annuity it would have been expressed therein. “It is a general rule that an expressed intention to make an alteration in a will in one particular, negatives by implication an intention to alter it in any other respect.” Church, Ch. J., in Wetmore v. Parker, 52 N. Y., 462.

We think when this last codicil is considered in the light of the provisions of the will and former codicil it shows that the intent of the testator was to alter the provisions of his will and codicil by devising to Margaret and Lewis H. the store and lot in question as tenants in common and relieving Margaret from the charge of the annuity to Lewis, and that this was the only purpose of that codicil, so far as the question before us is concerned. If correct in this construction, it follows that the provisions in .the original will making the wife’s annuity a charge upon the property remained unchanged, and that the annuity remained a charge thereon, as well as a charge against Margaret personally, as it is also a general rule that a codicil will not operate as a revocation beyond the clear import of its language. 1 Redfield on Wills, 362 and note; 1 Jarman on Wills, 160, note 2; Brant v. Willson, 8 Cow., 56; Wetmore v. Parker, 52 N. Y., 462.

These considerations lead to the conclusion that the judgment appealed from was as favorable to the appellants as they had a right to ask. The widow’s annuity was a charge upon the real property in question. It being an express charge thereon, the devisees, upon accepting the devise, became personally bound to pay such annuity, and its payment could be enforced by a suit in equity against the real estate or by an action against the devisees upon the promise to pay implied by the acceptance of the devise. Brown v. Knapp, 79 N. Y., 136; Gridley v. Gridley, 24 id., 130; Stoddard v. Johnson, 13 Hun, 606; Bushnell v. Carpenter, 28 id., 19; aff’d 92 N. Y., 270; McCorn v. McCorn, 100 id., 511; Bartholomew v. Adams, 28 N. Y. State Rep., 535.

It would seem that as both Margaret and Lewis had taken possession of the property under the testator’s will the plaintiff was entitled to a judgment adjudging the annuity a lien thereon, that the property be sold for the payment thereof, and in case of deficiency that both Margaret and Lewis should be liable to pay the same. But as the respondents, who are the only persons interested in holding Lewis personally liable, have not appealed, the judgment should not be disturbed because it did not contain a provision making him personally liable with Margaret for any deficiency that might exist.

As no question is raised by either of the appellants, in their briefs, as to the statute of limitations, that question must be deemed abandoned and need not be considered.

We think the evidence shows quite conclusively that the widow of the testator executed, acknowledged and delivered the release provided for by the testator’s will and accepted the provisions thereof. Her subsequent acceptance of certain articles of personal property set apart to her by the appraisers did not, we think, change her rights, which had become fixed.

We think the judgment should be affirmed.

Judgment affirmed, with costs. •

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


author: Bischoff, J.

text:
    Julius Bien et al., Resp’ts, v. Henry E. Abbey et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Contract—Performance—Charge.
    A complaint alleged that plaintiffs performed services at defendants’ request, and furnished materials of an agreed price, consisting of lithographic sheets, and that a balance was due to them thereon. Defendants denied performance of the work, alleged an agreement by which they were to accept such only as they might require, and that they had paid for those taken. The written contract produced on the trial showed that the sheets were to "be “ as per sketches.” EM, that as the complaint did not set out all of the contract of employment, defendants were entitled under their denial to put in evidence the part omitted, and that the work performed by plaintiffs was not the work for which defendants agreed to pay; and hence that it was error for the court to refuse to charge that if the jury found that the lithographs were not according to the sketches, plaintiffs could not recover. '
    Appeal from judgment and order of the general term of the city court of New York, affirming a judgment entered upon the verdict of a jury and an order denying a motion for a new trial in an action brought to recover for work, labor and services and materials furnished.

      A. J. Biitenhoefer, for app’lts; Franklin Bien, for resp’ts.
   Bischoff, J.

The judgment appealed from should be reversed, and a new trial ordered. The complaint alleged that plaintiffs at the special instance and request of the defendants performed work, labor and services, and furnished materials together of the agreed price of $800, and that the same consisted of lithographic sheets designed for use in a theatrical play known as “Antony and Cleopatra; ” that defendants were entitled to a credit of $328.96, and were indebted in a balance of $471.04. Defendants denied the performance of such work, labor and services, and the furnishing of such materials, as well as any indebtedness due the" plaintiffs whatever, and as a further and specific defense alleged an agreement whereby defendants were to accept and pay for such of the lithographs mentioned in the complaint as defendants in their discretion might require; that under said agreement defendants received $328.96 worth of such lithographs, which sum was duly paid.

Plaintiffs based their right to recover on the following contract, which they offered in evidence :

“ 1889
“ Offices of Abbey, Schoeffel & Q-rau, )
“ 1212 Broadway, New York. j
Central Litho. Co.
“ Gentlemen—Please furnish five thousand each three full sheet lithos., in four printings, as per sketches, at 8c. each, to be paid for as used in one year.
“Abbey, Schoeffel & Grau,
“Per G. A. Schroeder."

And they were on the trial permitted to show that the lithographs made corresponded to the sketches' submitted, and that defendants had expressed their approval of the work.

Defendants, on the other hand, sought to prove, and introduced evidence to that effect, that the work done was not in accordance with the sketches, and that this was conceded by the plaintiffs. At the close of the trial defendants’ counsel requested the court to charge the jury, “ that on the evidence introduced both by the plaintiffs and defendants, if the jury find that they (the lithographs) were not according to -the -sketches, the plaintiffs cannot recover even under that agreement,” to which the trial justice replied : “ That I shall decline to charge upon the ground that there is no such issue.” To this refusal an exception was duly taken.

Defendants were entitled to the instruction requested and the refusal to submit to the jury the question whether or not the work sued for was done in compliance with the sketches was tantamount to a refusal to submit the question of plaintiffs’ performance or nonperformance of the agreement sued upon. The complaint did not set out all of the contract of employment, and under their general denial the defendants were entitled to put in evidence the part omitted. Marsh v. Dodge, 66 N. Y., 533.

That having been done, performance in the manner required by the contract became a condition precedent to plaintiffs’ right of recovery, and under their general denial the defendants were entitled to show that the work performed by plaintiffs was not the work for which defendants had agreed to pay. A general or specific denial does not authorize proof of new matter constituting a defense, but under it the defendant may give in evidence anything which shows or tends to show that the evidence relied upon by the plaintiff to establish a fact necessary and material to his recovery is untrue. Schaus v. The Manhattan Gas-Light Co., 45 How. Pr., 481; O'Brien v. McCann, 58 N. Y., 373.

The error above pointed out is sufficient to entitle defendants to a reversal of the judgment appealed from and renders the discussion of other exceptions unnecessary.

Judgment and order appealed from reversed, and new trial ordered, with costs to abide the event.

Daly, Oh. J., and Pryor, J., concur.


text:
    Louis H. Franchi, App’lt, v. The Brunswick Balke Collender Co., Resp’t.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Contract—Performance—Delay.
    Defendant contracted to make certain improvements in the plaintiff’s building, to be completed in September, but they were not finished until December. In an action to recover the damages caused by such delay, it was claimed by defendant and denied by plaintiff that the completion of the work had been prevented by the delay in the laying of a tiled floor for which plaintiff had contracted with other persons, and which was only finished three or four days before defendant completed its work. Held, that a verdict in defendant’s favor would not be disturbed; that if the delay in laying the floor prevented defendant from completing until December the excuse for the delay extended throughout the entire period from the time of making the contract, and was a defense, although the work was not actually commenced until after the time stipulated for its completion.
    Appeal from a judgment in favor of defendant entered on the verdict of a jury rendered in an action to recover damages alleged to have accrued to the plaintiff by reason of delay on the part of defendant in the performance of a contract for services and material, and from an order denying a new trial in said action.

      Herbert S. Ogden, for app’lt; Peter A. Hendrick, for resp’t.
   Bischoff, J.

This case presents but a single exception, that to the denial of defendant’s motion for a new trial upon the ground that the verdict is against the weight of evidence and the grounds specified in § 999 of the Code of Civil Procedure. We are, therefore, only called upon to ascertain whether or not the facts, as they were developed upon the trial, justified the result. It appeared without contradiction that plaintiff and the defendant entered into an agreement in writing whereby the defendant undertook to make certain improvements in plaintiff’s place of business, stipulating that such improvements were to be completed by September 20, 1887, and that by a subsequent agreement, also in writing, the time of performance was extended to September 25th of the same year.

On the trial plaintiff claimed that in violation of its agreement defendant did not complete the work until about the 10th day of December; that by reason of the delay he was deprived of the profits of his business from September 25th to December 10th and subjected to expense for rent, license, watchman, etc., resulting altogether to his damage $1,280, which he sought to recover of the defendant. The defendant, on the other hand, contended that plaintiff had contracted with other parties for a tiled flooring in the premises, and that defendant’s own work could not be completed until after the tiling had been completed, and that because of the delay in the tiling it was prevented from performance on its part for the period for which the plaintiff sought to recover damages.

It appeared by defendant’s witnesses, Moreda, Mendell and Kraemer, that most of the material for the improvements was removed to plaintiff’s place of business some time in the month of October, and that the making of the improvements had progressed to a point where further work towards completion was rendered impossible until after the tiling was done; that the tiling was not completed until some time in December following, and that within three or four days thereafter the defendant fully completed the work agreed to be done by it. The plaintiff on rebuttal claimed that the delay in putting down the tiled flooring did not in any wise hinder the defendant from proceeding with the making of the improvements, but did not deny that the tiled flooring was not completed until about the time stated by defendant’s witnesses. Upon this conflicting testimony it was manifestly proper for the court to submit to the jury the question whether or not defendant’s delay was excused, and we cannot say that their finding adversely to the plaintiff is either contrary to the law or without evidence to support it, or against the weight of evidence. Neither can we say that because the jury chose to accept the state of facts sworn to by defendant’s witnesses as true, the plaintiff has suffered ah injustice which would call upon this court to set the verdict aside and to direct a new trial. Such a direction where there is nothing more than a mere conflict of evidence would render a trial by jury farcical.

Appellant’s counsel contends that because it appeared on the trial without contradiction that defendant did not commence work upon the improvements agreed to be made by it until some time in October, and therefore subsequent to the time specified for the completion of the work, defendant’s liability in this action was without question, but it is obvious that if the delay in putting in the tiled flooring prevented the defendant from completing its contract until December 10th, it must of necessity also have prevented performance on the defendant’s part at the time originally contracted for, and therefore the excuse for defendant’s delay extended throughout the entire period, from the time of making the contract with the plaintiff until actual performance in December following.

The judgment and order appealed from should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


author: Per Curiam.

text:
    Ellen Carter, Resp’t, v Mary Anderson et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 2, 1891.)

    Restitution.
    On the reversal of a judgment awarding possession of premises to plaintiff, restitution cannot be awarded to the defendants where the premises are actually in the possession of one not a party to the action under a lease for a term of years which is unexpired.
    Motion for restitution. For decision on the appeal from judgment see 34 ISI". Y. State Bep., 756.

      Hoe & Macklin, for the motion; William P. Burr, in opposition.
   Per Curiam.

As it appears by the moving papers that Hugh C. McGrown is in possession of the premises under a lease which is not to expire until May 1, 1893, restitution cannot be awarded. Code Civ. Pro., § 1323; Costar v. Peters, 4 Abb., N. S., 53; but the petitioners must be remitted to their remedy by action. Market National Bank v. Pacific National Bank, 102 N. Y., 464; 2 N. Y. State Rep., 58.

Motion denied, but without costs.

Allen, Bischoff and Pryor, JJ., concur.


author: Van Brunt, P. J.

text:
    Hugh N. Camp, Pl’ff, v. Charles Cronkright, Deft.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Will—Construction of—Vesting of estate.
    One 0., by his will, gave his real estate to his wife for life, and upon her death gave the same to his children, share and share alike, the child or children of any deceased child_ to take the share which his, her or their parent would have taken if living. One of the children conveyed his share to the defendant’s grantor, and subsequently died during the life of the widow leaving surviving his wife and three children. Held, that by i £1 xv, undivided interest in the premises was vested in said jy1 £, divested by his death in the lifetime of his mother; that the deeds to defendant did not convey any greater interest, and that .l‘ ueath of said child the title to said share became vested in his children.
    Submission of controversy upon agreed state of facts.

      S. P, Nash and G. F. Bemarest, for pl’ff • Chas. A. Flammer, Wrn. Stone and P. F. Olwell, for def’t
   Van Brunt, P. J.

Charles M. Connolly died seized of certain premises, leaving him surviving Isabella S. Connolly, his widow, and the following children, his only heirs at law: James A. Connolly, Washington A. Connolly, Thomas B. Connolly, Charles M. Connolly, Jr., and Jane Y. Chalán, all of full age. He left a will bearing date the 28th of June, 1865, which was probated before the surrogate of the county of New York on the 2d of June, 1869, by which he devised the premises in question as follows:

“ Fifteenthly—I give and devise unto my beloved wife, Isabella S. Connolly, all the lands and grounds now occupied by me at Fort Washington. To have and to hold the same, with the tenements, hereditaments and appurtenances, to her during the term of her natural life, and upon her death then I give and devise the same unto my children, share and share alike, absolutely and forever, the child or children of any deceased child of mine to take the share which his, her or their parent would have taken if living.’’

By deed dated December 18, 1873, and duly recorded January 5, 1874, Washington A. Connolly, one of the children and heirs at law of Charles M. Connolly, deceased, and Louise I. Connolly, his wife, purported to convey to Thomas C. Ecclesine an undivided one-fifth interest in the premises in question in fee. Through various mesne conveyances the estate conveyed by said deed afterwards became vested in the defendant, Charles Cronkright Washington A. Connolly died in August, 1875, leaving him surviving his widow, Louise I. Connolly, and three children, Marie Louise Connolly, Washington A. Connolly and Bianca Connolly.

In December, 1880, Isabella S. Connolly, the widow of said Charles M. Connolly, the testator, died. In December, 1885, the defendant, Cronkright, claiming to be seized in fee of said one-fifth interest in said premises, commenced an action in the supreme court against Thomas B. Connolly for the partition of the premises in question. The children of Washington A. Connolly, deceased, were not made parties. Such proceedings were had in said action that judgment was pronounced in favor of the plaintiff, for partition and directing the premises to be sold by a referee. The referee sold the premises to the defendant, Charles Cronkright, and Philip dwell, and. conveyed the same to them by deed, dated the 25th of January, 1886. Philip dwell died in March, 1889, leaving a will, by which he appointed Philip L. dwell executor thereof with a valid power of sale over his real estate, including the premises in question.

The questions submitted to the court upon this case are as follows:

1. Did the will of Charles M. Connolly vest in his _son, Washington A. Connolly, an undivided fifth interest in fee in the premises in question, subject to be divested by the death of the said Washington A. Connolly in the lifetime of his mother, Isabella S. Connolly ?

2. Did the deed by Washington A. Connolly and wife to Thomas C. E. Ecclesine, dated December 18, 1875, vest any title in the grantee other than an estate in remainder, subject to the life estate of Isabella S. Connolly, and subject to be divested by the death of said Washington A. Connolly before his mother, Isabella S. Connolly ?

3. Upon the death of said Washington A. Connolly before his mother, did the title to an undivided one-fifth interest in the premises in question become vested in Marie Louise Connolly, Wash-' ington A. Connolly and Bianca Connolly, only children and heirs-at-law of Washington A. Connolly, deceased, as devisees under the will of Charles M. Connolly, deceased, subject to the life estate of Isabella S. Connolly, widow of said Charles M. Connolly ?

The question presented is not free from difficulty, but we think it was the plain intention of the testator to devise to his son Washington A. Connolly an undivided fifth interest in fee in the premises in question subject to be divested by his death in the lifetime of his mother, the life tenant.

A large number of authorities have been cited upon both sides •of this question which do not seem to be entirely harmonious. But as in the construction of every testamentary instrument the will of the testator must be adopted, it necessarily follows that it is seldom that any adjudication can be found which is exactly parallel in its facts to the case being considered. So we find in many of the cases cited by the defendant that there are no limitations over in case of death, as is the case in Byrnes v. Stilwell, 103 N. Y., 458; 4 N. Y. State Rep., 241, where it was held that under a devise to A. for life and from and immediately after the •death of A. a devise unto the lawful child or children of A. his or her heirs forever, each child named took an absolute fee subject to be diminished by the birth of other children, as tenants in common. And in the case of Vanderzee v.Slingerland, 103 N. Y., 47; 2 N. Y. State Rep., 732, it was held that where there is a •devise or bequest to one person, and in case of his death to another, the words referred to a death in the lifetime of the testator.

But in the case at bar there is a devise over in case of death; ■and that this devise over depends upon a death occurring during the lifetime of the life tenant is apparent from the language of the will.

The life tenant is to hold the premises during the term of her natural life, and upon her death then the testator devises the same unto his children share and share alike, absolutely, the child or ■children of any deceased child to take the share which his, her or their parent would have taken. How, it is apparent that the testator referred to the period of the death of the life tenant in providing that in case of the decease of one of his children the child •or children of such deceased child should take the share which his, her or their parent would have taken if living. And the rule that in ordinary cases where death is referred to it means death ■during the life of the testator cannot apply, because it seems to have been the intention of the testator to have this limitation extend down to the period of the death of the life tenant. His words are: “ Upon her death then I give and devise the same to my children, share and share alike, absolutely and forever, the •child or children of any deceased child to take the share which his, her or their parent would have taken if living.” It is the same as though the testator had said: “ And upon her death I give and devise the same to my children then living, share and share alike, absolutely and forever, and to the child or children of any child of mine who may then be dead, such child or children to take the share his, her or their parent would have taken if living.”

This was the intention of the testator, and he has expressed it in language reasonably clear, and which should not be perverted from its plain meaning in order to give effect to the rule in reference to the vesting of estates.

Under these circumstances, it could not be determined until the death of the life tenant as to who should finally become vested with the fee of the premises in question.

It follows from what has been said that thq first question should be answered in the affirmative, the second in the negative and the third in the affirmative; and that the plaintiff is entitled to judgment.

Brady and Daniels, JJ., concur.


author: Brady, J.

text:
    Marietta L. Lane, Ex’rx, Resp’t, v. Malvina De Mets, Impl’d,. App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    1. INSUEANCE (LIFE)—BeNEFICIABIES.
    A company promised to pay the amount of an insurance policy to Elvina A., wife of Maltby G. Lane, the insured, for her sole use if living, and if not living to the children of the insured, or if there were “ no such children surviving,” then to the executor, etc., of the insured. Held, that the wife Elvina, having died before the insured, acquired no interest in the moneys.
    2. Same.
    The provision relative to the children was one made for them as a class; was for the benefit of those and of those only who survived the insured, and that they would take all.
    3. Same.
    Grandchildren of the insured, their parent having died before the insured, would not have taken as against his executors.
    Appeal from a judgment rendered at special term.
    This is an appeal from a judgment declaring the respondent as. executrix of Richard H. Lane entitled to one-half of certain insurance moneys. The action was brought for a judicial construction of two policies of insurance upon the life of Maltby G. Lane. The policies were issued by the New York Life Insurance Company on December 31, 1870.

    At the time the policies were written the family of the insured, consisted of the following named persons:
    His wife, Elvina A. Lane; a son, Richard H. Lane; a daughter, Malvina A. De Mets.
    The wife died April 18, 1886. The son died July 1, 1886, leaving a widow and two children, and an after-born child, also of Richard H. Lane, who survived the insured. The son did not die intestate, but left a last will and testament whereof the plaintiff is sole executrix. The insured died July 1, 1889, leaving him surviving as heirs-at-law and next of kin a daughter, Malvina A. De Mets, defendant in this action, and three grandchildren, the issue of Richard H. Lane, the son of the insured.
    All the material facts set forth in the complaint are substantially admitted by the answer; and the only question for the court to determine is whether or not the view of the apportionment of the moneys payable under the policies entertained by the insurance company be correct in law. The insurance company, upon the proofs of death, determined and stood ready to pay the amount due upon the two policies in equal proportions to the daughter, Mrs. De Mets, and to the executrix of the last will and testament of the son.
    The words of contract embodied in the policies and submitted "to the court for equitable construction are as follows: “ And the said company doth hereby promise and agree to pay the amount of said insurance, at its office in the city of Mew York, to the assured under this policy, to wit: Elvina A, wife of Maltby Gr. Lane, for her sole use if living, in conformity with the statute, and if not living to the children of said person whose life is hereby insured or their guardian, for their use, or if there be no such children surviving, then to the executors, administrators or assigns of said person whose life is hereby insured, in sixty days after due notice and satisfactory proof of the death during the continuance of this policy of the said person whose life is hereby insured as above, deducting therefrom all indebtedness to the company.”

      Coles Morris, for app’lt; G. S. Hastings, for resp’t
   Brady, J.

It is claimed that the appellant Malvina A. Dc Mets having survived her father Maltby Gr. Lane as well as her mother, became entitled at his death to the whole of the moneys under the policies in question. It is not doubted that Elvina A., a wife of the insured and mother of the defendant, did not take a vested interest in these moneys, her right to them depending upon the contingency of her survival of her husband. It is apparent from the provision in the policies that such money was to be paid to her if living, which meant living at the time of the death of the insured, at which time the policies matured and not before. According to the terms of the policies, if the wife of the insured was not living at the time of his death the amount of the insurance was to be paid to the children of the insured or their guardian for their use. And if there were no such' children surviving, then it was to be paid to the executors, administrators or assigns of the insured, i. e., to the executors, administrators or assigns of Maltby Gr. Lane.

From this phraseology the conclusion seems to be inevitable, that the children of the insured had not or had either of them a vested interest during the life of the insured, it being expressly provided by the policies that if there should not be any surviving children of his, the insurance money should go to his executors, administrators or assigns. It was a provision that was exclusively for the children of the insured who should survive him, and not for his grandchildren, a result conclusively indicated hy the declaration that in case there were no surviving children, it should be paid to the representatives of his estate or assigns, and the absence of any provision for the payment of it or of any part of it to the personal representatives of a deceased child.

It is contended on the part of the appellant that by the well settled principles of construction in analagous cases these insurance moneys if they should become payable to the children of the’ insured would be payable to them as a class and those of the class would take it who were in being when the policies became payable. This proposition would necessarily include after born children of the insured of his second wife if there had been any as participants of the fund. In a case in which a legacy of £2,000 in equal shares was given to the children of a deceased sister of the testator of whom there were three at the date of the will, but one of whom had died in his lifetime, it was held that the two survivors were entitled to the whole ■ sum. Viner v. Francis, 2 Brown’s Chancery Cases, m. p., 658; see, also, Doe v. Sheffield, 13 East'., 526.

This rule is recognized and approved by the court of appeals in U. S. Trust Co. v. M. B. L. I. Co., 115 N. Y., 158; 24 N. Y. State Rep., 1, and in Downing v. Marshall, 23 N. Y., 374. Independently, however, of this rule a proper construction of the language employed in the clause in the policy which embraces the subject under consideration removes all doubt that by the words- “ surviving children ” the insured meant “ his children only who-should survive him.”

The construction contended for on behalf of the plaintiff, if the' appellant had not survived the insured, would have made the moneys under consideration payable to her personal representatives, and not to those of the insured as expressly provided for in the policies in case there should be none of his children surviving. The adjudications upon which the plaintiff depends are not. applicable to the facts and circumstances of this case. In Whitehead v. N. Y. L. I. Co., 102 N. Y., 143; 1 N. Y. State Rep., 344, the policies were issued in consideration of a sum stated paid by the wife of the insured, and the amount of the policy was to be' paid to her or her personal representatives. In one of the policies it was specified “that in case she died before the insured, the insurance should vest in the heirs of the insured,” and in one of the other two policies, in case of such death, the insurance was to vest in his children. In the U. S. Trust Co. v. M. B. L. I. Co., 115 N. Y., 152; 24 N. Y. State Rep., 1, the policy was issued on the life of a husband for the sole use of his wife, in which it agreed to ¡aay to her or her executors, administrators or assigns, after the death of the husband, the sum insured, and, in case she should die before him, that then the amount should, after his death, be payable to their children, or to their guardian, if under age. It will have been observed that in neither of these cases, as very justly remarked by the learn'ed counsel for the appellant, is there a contingent limitation to the personal representative of the husband in case there should be no surviving children of his as in the case in hand, thus showing an absolute intention that the children should enjoy the amount of insurance if they survived father and mother. And it will be perceived upon a perusal of the case in 115 N. Y., that the court of appeals expresses the opinion that upon the death of the wife before her husband, the policy was payable to her children as a class, and those of the class would take, and they only, who were in being at the time when the policy became payable; that is to say, the whole policy would be payable to the survivor of the class. It appears, therefore, to be an express authority for the proposition that the appellant being the surviving child of Maltby Gr. Lane at .the time of his death was entitled to the whole fund in question.

These views are not antagonistic to the decision in the case of Continental L. Ins. Co. v. Palmer, 42 Conn., 60, in which it appeared that the wife insured the life of her husband for her sole and separate-use and benefit, the sum insured, however, to be paid to the wife,, if living, and if not, to their children, inasmuch as there was no contingent limitation to the personal representatives of the husband in case there should be no surviving children at the time of his death. The intention of Maltby Gr. Lane, the insured, seems to have been briefly stated as follows: If my wife survives me, she is to have the whole of the insured sum; if not, my children,, if they survive me, shall have it If they do not either of them survive me, it shall form a part of my estate, to be distributed either as I shall direct by my last will and testament or according to the laws of the state of New York. It is my design to-provide for my wife and my children, and none others, through the instrumentality of these policies. For these reasons it is thought that the judgment appealed from was erroneous and should be reversed, and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., and Daniels, J., concur.


text:
    John O’Brien, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Evidence—Expert testimony in negligence cases.
    While a physician may give evidence as to the present condition of bodily suffering or injuries, or of their permanence and as to their cause, he cannot upon such a question testify as to the mere possible outbreak of some new disease or suffering having their cause in the original injury. So held, as to a question as to what, in the witness’. opinion, would .be the probable effects of the wounds upon the future health of the plaintiff.

      (Atkins v. Manhattan R. Co., 32 N. Y. State Bep., 214, followed.)
    Appeal from a judgment entered upon a verdict given for personal injuries received by the plaintiff through the negligence of the defendant’s servant.

      Henry W. Taft, for app’lt; W. Bourhe Cochran, for resp’t
   Brady, J.

In the case of Atkins v. The Manhattan Railway in 32 N. Y. State 214, and which was an action "brought to recover damages for personal injuries alleged to have been sustained by reason of the negligence of the defendant, it appeared that the following question was asked of one of the medical witnesses by the plaintiff’s counsel, namely:

“ Tell the jury what results are likely to flow from the injuries from which Mrs. Atkins was suffering on the 3d of January, 1888.” The question was objected to and overruled and exception taken, and the learned presiding justice, in writing the opinion, said: “ This form of question has been so often condemned that it seems somewhat remarkable that it should still be persisted in,” referring to a number of cases bearing upon the subject In this case the same question in effect was objected to but allowed and an exception duly taken. The question put was: “From your knowledge of the case, from your examination of the wounds when they were comparatively fresh and your knowledge of the case generally, are you able to state to this jury what in your opinion will be the probable effects of these wounds upon the future health of the plaintiff? ” There is no difference of substance in these questions. The only difference is verbal; the use of the word “probable" was made instead of “likely,” and they are the same. The word “likely” means “probable,” and “probable” “likely.” (See Century Dictionary.) If the question had been such as that considered in Griswold v. N. Y. C. & H. R. R. R. Co., reported in 115 N. Y., 61; 23 N. Y. State Rep., 729, it would have been admissible"; but it was not. The distinction suggested by that case and others, to which the learned justice in writing his opinion referred, seems to be that while a physician may give evidence as to the present condition of bodily suffering or inj uries, or of their permanence and as to their cause, he cannot upon such a question testify as to the mere possible outbreak of some new disease or suffering having their cause in the original injury. The court said in that case that there was “ an obvious difference between an opinion as to the permanence of a disease or injury already existing capable of being examined and studied and one as to the merely possible outbreak of new diseases or sufferings, having their cause in the original injury.
“ In the former case that disease or injury and its symptoms are present and existing, their indications are more or less plain and obvious and from their severity or slightness a recovery may reasonably be expected or the contrary; while an opinion that some new and different complication will arise is merely a double specuulation, one that may possibly occur and the other that if it does it will be a product of the original injury instead of some other new, and perhaps unknown cause.” This is somewhat complicated, it must be admitted, but it seems to suggest that in cases of this character the result sought to be ascertained and established by the question objected to must be developed by a different mode of procedure, and one by which speculative and conjectural elements are either dispelled or so limited or controlled as to insure the defendant against merely speculative or conjectural theories, whether this view be correct or not as to the modus operandi suggested no difference is discovered between the question asked in the Aildns case and declared to be improper and the question asked in this case and objected to. The judgment of the court in the Atkins case seems to make it imperative upon us to reverse the judgment herein and to grant a new trial, with costs to the appellant to abide the event.

Daniels, J., concurs; "Van Brunt, P. J., concurs in result.


author: Daniels, J.

text:
    Milo Howell, Resp’t, v. The Joseph Edwards Dredging Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Corporations—Contract.
    Although a contract to he binding upon a corporation must be made, upon its part, by a person permitted by it to exercise such authority, and while a person suing upon such a contract must show this, yet positive proof of such authority is not in all cases required and its existence may be inferred from facts and circumstances.
    Appeal from judgment on the verdict of a jury, and from an order denying a new trial. ,

      W. J. Curtis and Alfred Jareizki, for app’lt: Hatch & Warren, for resp’t.
   Daniels, J.

The verdict was recovered for the amount found owing from the defendant to the plaintiff, on an employment for the rendition of personal services. The defendant was engaged in the business of using and operating dredges in and about the harbor of the city of New York, and the plaintiff had been in its service in the year 1887. As he was about to leave that service near the close of that year, an interview took place between himself and his brother, who had been and then was the superintendent, concerning his employment for the season of 1888. This was ,not definitely arranged at that time, but on the 26th of January, 1888, his brother, with the approval of the manager of the company, wrote to the plaintiff to come on the Monday following, adding, wages as usual, next spring, $125. The plaintiff thereupon repaired to the city of New York, and there again entered the defendant’s service, and continued to perform his duties without objection from any person until the 16th of March, when he received a letter from the president of the company, dismissing him from its employment. He was paid up to the 1st of April, and in the year 1889 commenced this action for his monthly compensation for the other months of the season. The defendant objected that it was not liable for the reason that no contract of employment for the season had been made under its authority with the plaintiff.

But while the by-law of the company adopted in 1887 vested the power of employment in the executive committee, it was proved by the evidence of the president that he had reserved a negative over that authority. And he, as well as the manager, had assented to the act of the superintendent which requested the plaintiff to proceed, as he afterwards did. to New York, and enter into the service of the company, but at no greater monthly compensation than $100 per month. As to the rate of compensation, there was a conflict between them and the superintendent. But as to the fact of employment under their authority there remained no serious ground for dispute. And that the employment was with the assent of the company even under the power confided to the executive committee, could well be inferred by the jury from all that was proven to have been said, and the acceptance of the plaintiff, and the performance of his services, in the month of February and for the first half of the month of March. And whether the employment was only monthly as the defendant contended was the fact, or for the season, was equally the province of the jury to decide. The understanding between the plaintiff and his brother, the superintendent, was that the employment was for the season, and the fact that the business was done by, and extended through the season, empowered the jury to consider, whether the employment was monthly, or for the season. There was surely nothing said by the manager, or the president that it should be monthly, and it could be very well inferred from the proof that the season was what was intended by all.

It is without doubt the law that a contract whether of employment or otherwise, to be binding upon a corporation, must be made with a person permitted by it to exercise that authority. And that fact must be maintained by the party insisting upon the benefit of the agreement Adriance v. Roome, 52 Barb., 399; Risley v. R. R. Co., 1 Hun, 202; DeBost v. Albert Palmer Co., 35 id., 386.

But positive proof of the authority has not been required. Its . existence may be inferred from facts, as other conclusions in the course of the administration of the laws are allowed to be drawn. And the facts of this case were such as to sustain the inference that this authority had been confided to the superintendent, which was exercised in employing the plaintiff. Wilson v. Kings Co. E. R. R. Co., 114 N. Y., 487; 24 N. Y. State Rep., 81; Jourdan v. Long Island, etc, Co., 115 N. Y., 380; 26 N. Y. State Rep., 138.

Exceptions were taken in several instances to evidence received to prove the authority as well as the employment. But it was all pertinent to one or the other of these objects,- and lawfully received by the court.

The evidence, of the plaintiff as to his inability to obtain other employment satisfied the jury, as it very well might, of the existence of that inability. And upon the whole case they were warranted in concluding that the plaintiff had been employed for the season, but at the rate of compensation of $100 a month. The case in all its inquiries presented by the evidence was for the jury. And the judgment entered on their verdict and the order appealed from should be affirmed.

Van Brunt, P. J., and Brady, J., concur


text:
    Maria L. Kendall, Resp’t, v. Sarah E. Mellen et al., App’lts.

      (Supreme Court, General Term, First Department

      Filed February 11, 1891.)

    1. Fbaudulent conveyance—Action to set aside.
    Where an assignee for the benefit of creditors is in collusion with the assignor and the fraudulent grantee of his property, a creditor of the assignor may maintain an action to set aside the fraudulent conveyance without first requesting the assignee to do so.
    3. Same—Laws 1889, chap. 487.
    Chapter 487, Laws 1889, amending Laws 1858, chap. 314, was not intended to do more than to allow a creditor at large of a deceased insolvent debtor to sue in certain cases without having obtained a judgment upon his demand.
    Appeal from interlocutory judgment overruling demurrer interposed by the infant defendants through their guardian ad litem,.

      II. Daily, Jr., for app’lts; Q. Hill, for resp’t.
   Van Brunt, P. J.

In the year 1887 Abner Mellen died seized and possessed of certain real estate, leaving him surviving his widow, a son, Abner Mellen, Jr., two married daughters and a grandson. He left a will, by which he devised all his real estate to his widow and children, share and share alike. Immediately after the death of the testator the will was admitted to probate and letters testamentary issued. In September, 1888, the widow died intestate. In November, 1888, Abner Mellen, Jr., conveyed to his wife through one Lawrence E. Ellis his share in said real estate. On the 30th of November, after said deeds were made, Sarah E. Mellen commenced an action in this court for the partition of the real estate. In April, 1889, nearly six months after the deeds were made, Abner 'Mellen, Jr., made a general assignment to the defendant Gordon McKay for the benefit of his creditors, without preferences, On the 6th of March, 1890, Abner Mellen, Jr., died, leaving him surviving his widow and three infant children, who through their guardian ad litem, have demurred to the complaint herein.

This action was brought to set aside said deeds made before the assignment as fraudulent, the plaintiff claiming to be a creditor of Abner Mellen, Jr., and from the prayer of the complaint it appears that she intends the action to be in aid of the assignment.

There is no allegation that before the commencement of the action she requested the assignee to commence this action to set aside these deeds and that he refused so to do. The complaint, however, contains an allegation that the assignee, although fully acquainted with the facts, has taken no steps to set aside the deeds and that he has been aiding and assisting the wife in her endeavors to uphold the conveyance, and that he had been in collusion with her and the assignor to prevent the creditors from collecting their claims, employing as his attorney the same person as the wife ’employed in her partition suit, and that the assignment was contrived as a scheme for keeping at bay the assignor’s creditors, etc.

To this complaint a demurrer was interposed upon the grounds: First: That it appears upon the face thereof that the same does not state facts sufficient to constitute a cause of action against these defendants, viz.: the three infant children of Abner Mellen, deceased. Second : That it appears upon the face thereof that the plaintiff has no legal capacity to sue, in that she can only sue in the name of Gordon McKay as assignee for Abner Mellen, deceased, for the benefit of his creditors and for the benefit of the assigned estate.

This demurrer was overruled upon two grounds: first, that it being alleged that the assignee is in collusion with the fraudulent grantee, aiding and assisting her in maintaining the transfer, and such fact being admitted under such circumstances, a creditor may maintain an action of this description without first requesting the colluding assignee to bring it; and, secondly, because the action was not brought until after the death of Abner Mellen, Jr., the plaintiff could maintain the same under the provisions of chapter 487 of the Laws of 1889 without previously requesting the assignee to bring it, even if it were not alleged that the latter is acting in collusion with the fraudulent grantee.

The first ground upon which the learned court based its decision is undoubtedly well founded. In Bank v. Leggett, 51 N. Y., 552, it was distinctly held that if the assignee is in complicity with the fraudulent parties the action may be maintained by the creditor directly, and such has been the rule always in respect to persons who stood in a representative capacity. If it appears from the evidence in the case, or from the allegations in the complaint, that from the relations of the parties to the fraud there is no use asking the representative to commence the action, it may be maintained without making such demand.

As to the second ground upon which the demurrer was overruled, without discussing at length the question there involved, lest by not mentioning the fact we might be deemed to have concurred in the conclusion of the learned court below, we think it does not seem to have been the intention of the legislature to have done more by the amendment of the act of 1858 than to allow a creditor at large to sue in certain cases without having obtained a judgment upon his demand.

The judgment appealed from should be affirmed, with costs, and with leave to the infant defendants to answer within twenty days after notice of the entry of judgment of affirmance herein upon payment of the costs of the appeal, and the costs of the court below.

Beady and Daniels, JJ., concur.


text:
    Nellie Fowler, an Infant, Resp’t, v. The Broadway & Seventh Ave. R. R. Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891.)

    Negligence—Damages.
    The plaintiff was injured, as alleged, by defendant’s negligence. She was a working girl. She was receiving $30 per month and her board. The doctor who attended her was paid $205. She was in bed a month and it was a year before she could earn any thing; during which time she suffered at intervals more or less pain. Held, that a verdict of $1,500 was not excessive.
    Appeal from a judgment on verdict.

      Boot & Glarh, for app’lts; Tilbtson & Kent, for resp’ti
   Brady, J.

This action is one brought to recover for personal injuries sustained through the negligence of the defendant. The issue was properly presented to the jury and they found for the plaintiff awarding her $1,500 damages. The defendant appeals and make this point only: “ The defendant contends that upon the whole case a new trial should be granted because the damages awarded by the jury were excessive.”

The learned justice presiding in the court below gave a summary of the plaintiff’s injuries, loss and the elements of damages to the jury in his charge to which no exception was taken. A" perusal of that which is hereto attached is a sufficient answer to the point stated.

If you find for the plaintiff, you will then have to consider the amount of damages. In the form of this complaint on which the action is brought I have held, and I charge you, that the plaintiff can recover only the damage that she sustained prior to the bringing of the action. There is no charge here in the complaint, nor is there any evidence to sustain it, that any injury was occasioned to the plaintiff after the commencement of the action. You are limited, therefore, to the time prior to the 1st of January, 1888. In actions of this kind the amount of damages is left very largely to the discretion of the jury. There are general rules that the courts are able to state, that should apply in determining the damage, but outside of these general rules it is a matter very largely -within your discretion. As I said before the defendant is not to be punished; the plaintiff is not to receive anything except compensation. If the defendant is liable the plaintiff is entitled to fair compensation. There are certain items of pecuniary damage that she claims to have sustained in consequence of this injury. She says that her clothes which she had on cost her seventy dollars, and they were comparatively new, and were totally-destroyed by the glass cutting them and by the blood. If you believe that, she is entitled to recover the value of the clothes, whatever that was. She also says that she incurred certain obligations for doctors’ bills, amounting in the aggregate as I. understand it to about $205. The doctors have testified that was their charge, and' that it was a fair and reasonable charge. The plaintiff also claims that she is entitled to recover the wages she would have earned if she had not been injured. She says she was receiving twenty dollars a month and her board, and that the injury prevented her from earning any wages, as I understand it, for about a year prior to the commencement of the action. Her sister has testified that the board would be worth $2.50 a week, which would be ten dollars a month, which together with the wages would amount to thirty dollars a month.

These items should be taken into account by you, and if the defendant is liable, and you believe these obligations were incurred, that her clothes were spoiled, that she would have earned this-money and would have received her board, she would be entitled to recover what she lost up to the time of the commencement of the action. But, in addition to that, she is also entitled to recover compensation, so far as money can compensate a person, for the pain that she has suffered during this time. You have heard her story. She says that for all this period she was unable to work; she was a month in bed; it was the 17th of March before she left the house, and since that time she has always had more or less pain and suffering from the injury. She is entitled to recover a fair sum to repay her for that suffering, if she is entitled to recover at all. It should not be exorbitant, but it should be considering her circumstances in life and her condition and surroundings, the work that she did, and under all the circumstances, in your discretion, you are to say what would be a fair sum to compensate her for the pain she suffered, and generally for the injury which the accident caused her, and adding that to the pecuniary loss which you may believe she suffered in consequence of the injury, you will then find a verdict for the plaintiff for that amount, providing, as I said before, that this accident was caused solely by the negligence of the defendant.

The plaintiff, though an infant, was nineteen years of age, was lacerated, her system shocked, and she was exposed to the results of the injuries received, which might have been serious, according to the medical testimony, and would have been had it not been for the medical skill by which she was treated.

The sum given by the jury would doubtless have been more had it not been for the very careful and conservative charge of the learned court, and it is thought that the defendants have naught to complain of.

The judgment, for these reasons, should be affirmed, with costs.

Yan Brunt, P. J., and Daniels, J., concur.


author: Brady, J. Daniels, J.

text:
    The People ex rel. Patrick Bohan, App’lt, v. Charles F. MacLean et al., Com’rs, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 11, 1891)
    Municipal corporations—Police—Removal
    Relator was charged with intoxication. It was shown that, having fallen in pursuit of an offender-and soiled his clothes, he entered a saloon tó clean them, but it was not shown that he drank anything there. He appeared excited, and on arriving at the station house the officers state he was so much intoxicated as to be unfit for duty. Other witnesses testified that he was not intoxicated. Relator testified that he had not eaten anything that day, and had taken medicine given him by a doctor, who swore that it was composed of alcoholic extracts. Held, that there was sufficient in the evidence to justify the conclusion that he had added to the effect of the medicine by the use of liquor, and that the decision of the commissioners would not be disturbed.
    (Brady, J., dissents.)
    Certiorari to review the removal of the relator.

      Louis J. Grant, for app’lt; Wm. H. Olark, for resp’ts.
   Brady, J.

(dissenting).—The evidence seems to be sufficient to establish prima facie the charge of intoxication, but the response is satisfactory and presents a preponderance of proof in favor of the relator. He was not examined by any physician, or by any expert, unless members of the force can be so regarded. It appears from the record that he was in pursuit of an offender who ran into and through a car. In the pursuit he fell and soiled his clothing, to clean which he was invited by a saloon keeper into his saloon, accepted the invitation and did the cleaning. There is no proof that he drank anything there, although the saloon keeper was examined as a witness. He was much excited, partly from his exertions in pursuit of the offender and the fall, and partly from other causes which will be discussed below, and he seemed to his brother officers to be under the influence of liquor.

His statement was that he had not drunk any liquor in two ' years and none upon the day of the occurrence, that he had been ill and sought the attendance of a Dr. Both, who prescribed for him, that on the day charged he had not eaten anything, that he had taken the capsules prescribed by the physician and was suffering from a pain in his head. It also appeared from the testimony of Dr. Both that he had been ill and that the medicine given him was composed mostly of alcoholic extracts, and would, taken by a person who had not eaten for some hours, produce a ■condition like that of intoxication. Some of the citizens who saw him would not say he was drunk and others said he was not.

The apparent inebriety seems to have been accounted for and explained ; the result of the whole evidence leads to no other controlling conclusion than that the relator was under great excitement, the primary cause of which was the medicine he had taken, which was increased by the chase in which he was engaged in pursuit of an offender actual or fancied. The power to reverse under such circumstances is two-fold, the condition being explained and there being a decided preponderance of proof in favor ■of the relator. See People ex rel. Hogan v. French et al., 119 N. Y., 496, 497; 30 N. Y. State Rep., 67; People ex rel. McAleer v. French et al., 119 N. Y., 507; 30 N. Y. State Rep., 72.

Judgment reversed and relator restored.

Daniels, J.

The evidence of the persons who observed the relator as he was taken to, and after his arrival at the station house was that he was so much intoxicated as to be unfit for duty. He did not at the station attempt to excuse himself on account of the effect upon him of the medicine he had been taking, and that tended to subject his evidence to discredit. The fact that other witnesses did not consider him intoxicated did not avoid the effect of the evidence of these officers. Their evidence tended to prove that he had not been affected by any stimulant whatever, which was opposed to that given by himself and Dr. Both. The verdict of a jury would not be set aside on these conflicting statements. While it is true that he obtained and used the medicine as it is stated he did, it is not probable that it would produce the condition in which the officers found him. But he probably added to the effect by the use of intoxicating liquors. There was sufficient in the evidence to justify that conclusion. And when that may be the fact, the case of People v. French, 119 N. Y., 493; 30 N. Y. State Rep., 67, does'not support a reversal of the proceedings. But upon the evidence adduced, they should be affirmed in this case.

Van Brunt, P. J., concurs.