author: Van Wyck, J.

text:
    Samuel J. Lanahan et al., Resp’ts, v. Edwin Drew, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1892.)

    Motions and orders—Reargument.
    The right to a reargument of a motion to open a default is not lost because plaintiffs have consented to a resettlement of the original order, received the costs awarded therein and excepted to the sufficiency of the; sureties to the undertaking required to secure their recovery.
    Appeals from two orders by defendant.

      Thomas I). Robinson, for- resp’ts; R. W. Hawlceswarth, for app’lt
   Van Wyck, J.

These are appeals from two orders entered by

plaintiff. The plaintiff sued upon a note made by defendant to the order of plaintiff. The defendant .was in default by reason of his failure to answer in time and moved originally to open the. default and set aside the judgment entered thereon, upon affidavits showing that his default was 'due to mere mistake and excus.able neglect, and on his proposed answer by which he denied the making and delivery of the note, and alleged that if he did make •it, the same was duly paid at maturity, and that plaintiff’s cause ■of action on the note was barred by the statute of limitations. This motion was granted upon condition that defendant pay ten •dollars costs and give an undertaking to secure plaintiff’s recovery. Defendant entered an order thereunder which was subsequently resettled by consent so as to' conform to the decision, whereupon •defendant paid the ten dollars to, and served the answer and undertaking upon plaintiffs’ attorneys. The plaintiffs then moved for a rehearing and reargument of the original motion upon all .the papers used on the motion, and on affidavits setting forth new and additional facts, and in which their counsel averred that he had returned the ten dollars and the answer to defendant’s attorney, who, however, denied the same, but admitted that the ten dollars had been offered to him and left by plaintiffs’ attorney upon his office desk, but was again returned. The judge who had heard the original motion granted a rehearing and reargument to.be heard on November 9th, and the order of October 14th, which is one of the orders appealed from, was duly •entered thereon, but against which defendant fully objected. The rehearing was had as ordered and the order of November '9th, the other order appealed from was entered and so modified the original order as to preclude the defendant from pleading the statute of limitations.

The defendant’s counsel concedes that the court had the undoubted right, under the original motion, to grant defendant’s application to the favor and discretion of the court upon condition that he would not plead the statute of limitations. This right rests in the discretion of the court, and when exercised at special term, •either by imposing or refusing to impose such inhibition as a-con■dition for opening a default, will be respected and sustained at general term, and thus it sometimes happens that in such cases judges of the same court rule differently at special term, yet each are sustained at general te^m. At common law the right of the •court to rehear discretional motions was absolute, and is so now. The rule as to discretionary motions is correctly stated by Judge •Clerke, in White v. Munroe, 33 Barb., 654, when he says: “It is entirely in the discretion of a court to hear a renewal of a motion or not. They can, as they may deem it advisable, hear it on precisely the same papers.” This case is cited with absolute approval in 52 Barb., 643, by the judge there writing, who makes the most complete and masterly review of the authorities upon this subject that is found in our reports. Of course there are some orders which are -conclusive, not as to a fact which might have been litigated, but ■only as to one which actually had been litigated, and on which there had been a full hearing, but a party may, upon leave, renew .a motion upon a different state of facts, or by supplying defects in proof. These two orders appealed from were discretionary, and moreover, the application for a reargument was based on affidavits ■showing a different state of facts than was disclosed on the original motion, and also supplying defects in proof. The appellant’s

counsel contends that the right of the judge who heard the original motion to grant a reargument and rehearing to plaintiffs had been lost, because the plaintiffs had consented to a resettlement of the original order, and had accepted the benefits of the order by receiving the $10 and the answer, and by excepting to the sufficiency of the sureties to the undertaking. The successful party-to a motion may enter the order, but if he fails to do so, the adverse party may enter the same without in any way impairing his right to appeal therefrom, and so, too, if the order as originally entered by the successful party does not conform to the decision, the adverse party may move for a resettlement, which, if granted, will not deprive him of appeal, nor of his right to move for a reargument of the motion, and why should he be deprived of either of these rights simply because he submits an order to his-adversary, who, admitting his own fault in entering an improper-order, consents to the order submitted, and which, in order to have-entered without notice, the party aggrieved must consent to, and. especially when the order, as resettled in this case by consent, recites that the motion was granted against plaintiffs’ objection. All that these plaintiffs have consented to by reason of such resettled order is, that it is in conformity with the original decision by which he is aggrieved, and to which he has the right of continuing his objection by appeal if the order is appealable, and if not, then by leave to reargue even upon the original papers alone, and whether appealable or not, for leave to reargue upon new or additional papers which show a different state of facts than those litigated in the original motion. The defendant’s counsel contends with great vigor that the acceptance by plaintiffs’ counsel of the ten dollars and the answer (although returned as averred by plaintiffs’ counsel) precludes him from asking and obtaining a rehearing and reargument of the motion opening the default and directing the payment of the ten dollars, and robs-the court of its inherent power to grant such rehearing, and which power is expressly recognized by § 776 of the Code, which provides how, when an order has been granted, “ a subsequent-application in reference to the same matter, and in the same stage-of the proceedings, shall be made.” And in support of this contention he relies upon the decision in Platz v. City of Cohoes, 8 Abb. N. C., 393, which was affirmed in 7-9 N. Y., 620, and which undoubtedly lays down the correct and established practice as-to appeals to the general term, for it held that where on plaintiffs’ motion a verdict against defendant was set aside on the-ground of inadequacy and upon condition that he pay defendant seventy-five dollars, which was paid and accepted, this was a waiver of defendant’s right to appeal therefrom, even though he had offered to return to it

This case does not hold even that defendant could not be-relieved from “ his mistake, inadvertency, surprise or excusable-neglect” in submitting to the order taken against him, but. held that his practice was wrong, and that he could not seek nor find such relief at general term by appeal. Of course that-is good law, and the best practice, for he should have sought. .relief by a rehearing and reargument from “ the same judge or the court,” as provided in § 776 of the Code, which means the •court which heard the original motion, and not the general term, and if he, his counsel or the court entertained any doubt as to the right of relief under that section, why they could have turned to § 724 of the Code, that monument to mercy erected in recognition of the fallibility of man, and ample authority would have been found to relieve him from his mistake or excusable neglect. It was to this section that the defendant, the appellant in the case at bar, turned and sought ■ and found relief from his mistake and excusable neglect, and .as it served him, so let it serve his adversary.

The orders appealed from are affirmed, with ten dollars costs -of each motion.

McGrOWJsr and Fitzsimons, JJ., concur.


source: Caselaw Access Project

author: McGown, J.

license: Public Domain

text:
    Pasqual Antonia Riche, Resp’t, v. Lawrence Martin, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1892.)

    ‘Trial—Improper remarks of counsel.
    A judgment will not be reversed on account of improper remarks of counsel in summing up to the efEeot that defendant had offered judgment for part of the claim, where the court told the jury that the remarks should not influence their verdict, especially where the verdict is for the whole sum claimed.
    Appeal from a judgment entered herein upon the verdict of a jury on November 13, 1891, in favor of the plaintiff for $747.57, .and from an order denying a motion for a new trial entered on the 23d day of November, 1891.
    The complaint alleges:

      First. That defendant made a promissory note to the order of the plaintiff, dated New York, March 25, 1891, and delivered the ■same to the plaintiff, and thereby promised to pay the sum of $632 thirty days after said date at the Twenty-third Ward Bank in the city of New York.

      Second. That at maturity and before the' commencement of this action, said note was presented for payment at the said bank and •.same was refused.

      ■Third. That the plaintiff was and ever since the making and •delivery of said note has been the holder and owner of said note, and that no part thereof has been paid.

      For a first defense: The defendant in his answer admits the •signing of a note similar in some respects to that set up in the •complaint; that he has no knowledge or information sufficient to form a belief as to' the allegations in the second and third para•graphs of the complaint.
    Denies each and every other allegation not hereinbefore specifically admitted or denied.

      For a second defense: That prior to the commencement of this action he paid to the plaintiff on account of and in payment of the said note the sum of $330.

      For a third defense: That the said promissory note is absolutely null, illegal and void.
    That said note was given upon the usurious agreement, that the ■defendant would pay fqr the use of the money mentioned in said note a greater rate of interest than the legal rate of interest in this .state, to wit, at a greater rate than 100 per cent per annum.

      A. C. Astarita for resp’t; Kellogg, Bose & Smithy for app’lt
   McGown, J.

Upon the trial herein and upon the cross-examination of the defendant by plaintiff’s attorney, the following question was asked:

'■ Q. Why did you make a note for $612, if you had already paid him ? ”

Whereupon defendant’s attorney stated: “We are willing to pay him the amount of the note, except what we have paid him. I shall not insist as to anything on account of usury. We had this money, and we paid him $329.75, and for the balance of .$282.25, with interest from the date of this note, we are willing he should have judgment for.”

By this admission the defense of payment as set up “ for a second defense ” in defendant’s answer was the only issue before the •court to be passed upon by the jury, and this being an affirmative defense, the burden of proving payment was upon the defendant ■to establish such defense by a preponderance of evidence.

The defense upon the- cross-examination of plaintiff having brought out the matter of the payments plaintiff’s attorney undoubtedly had the right to ask on his re-diredE examination the •questions as to such payments, and the court in reply to a .statement made by defendant’s attorney said: “As I understand it, he got $229.75 in cash; $129.75 he said he gave to the labor•ers, and the other $100, he said Mr. Martin told him was on account of his wages, and the balance due, he said he would pay him .as soon as possible. If all these things are so, the money so paid •cannot constitute a counterclaim.”

To which defendant’s attorney replied: “ There is no question .about that.”

Certain payments were made by defendant to the plaintiff, and the defendant had a perfect right to direct the application of these •payments, and i-n the absence of such direction the plaintiff could ;apply such payments to any indebtedness then existing on the part of the defendant to him.

The amount of such payments, the directions, if any, made by the defendant at the time of such payments, were questions of fact to be passed upon by the jury, upon all the evidence submitted, :and the court will not disturb the verdict of a jury rendered upon conflicting evidence, where the law of the case is properly passed upon by the court, unless the verdict is contrary to the evidence, or contrary to the law, or the jury was influenced by passion, prejudice or other improper motives or conduct in arriving at their verdict

The trial justice in his charge to the jury fully, clearly' and fairly presented the issues to be passed upon herein to the juryt and evidently to the satisfaction of, and with the approval of the defendant’s attorney, as no exceptions were taken by him thereto, and we think, after a careful examination of the whole case, that the verdict was fully warranted by the evidence submitted to them.

The defendant’s attorney, in the third point of his brief, claims that .a remark made by plaintiff’s attorney while defendant’s attorney was summing up was improper, and that the verdict, rendered should not for that reason stand.

Plaintiff’s attorney, while defendant’s attorney was summing-up, openly remarked, “ That the defendant had offered judgment for the sum of $322,” which remark defendant’s attorney then declared “ was improper,” and was objected to by him, whereupon the trial justice “rebuked the counsel for the same, and told the-jury that the remarks should not influence their verdict.”

The jury’s verdict for the whqle amount claimed we think shows conclusively that it had no effect upon their verdict.

In Holmes v. Moffat, 120 N. Y., 159; 30 St. Rep., 779, improper evidence was admitted, objected to, and a motion made to-strike it out which was denied. The court subsequently came to the conclusion that the evidence should not have been admitted,, and^in the charge to the jury stated: “I withdraw it from your-consideration, as I do not believe it to be proper or material. * * * I think it my duty to say to you that that particular-portion of the answer to the seventh interrogatory * * * is-not before you as evidence at all.’

Parker, J., in&is opinion (at p. 162) stated:

“ It is now settled that if the mistake be immediately discovered,, and the evidence properly stricken out, the error will be deemed cured, and the exception to its admission deprived of all potency.”* Citing Gall v. Gall, 114 N. Y., 109; 22 St. Rep., 746, and further states; “ They (the jury) were informed that the objectionable-testimony was not before them as evidence at all, and we are of the opinion that such instruction, coupled with the positive directions to disregard it, must be deemed to have been effectual for the purpose intended.”

In such cases the remedy of the party is to ask for instructions-to the jury to disregard it. Platner v. Platner, 78 N. Y., 90; Pontius v. The People, 82 id., 339.

We have the exceptions taken by defendant’s attorney, and find that they were not well taken.

The judgment and order appealed from must be affirmed,' with, costs to the respondent

Yak Wyok, J., concurs.


author: McGrown, J.

text:
    Herman Schuler, Resp’t, v. The Third Avenue R. R. Co., App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1892.)

    1. Negligence—Evidence.
    In an action for injuries caused by negligence the plaintiff may be properly allowed to testify to the present condition of the injured part:

      .3. Same.
    Where the plaintiff has testified positively that he is still suffering pain, evidence of a physician that he complained of shooting pains, while not competent as being hearsay, is harmless, as it will he presumed that the jury in rendering a verdict for plaintiff believed his testimony.
    -3. Same—Permanence op injury.
    In such a case the physician may be allowed to testify as to the permanency of the injury, although the same was not alleged in the pleadings.
    •4. Same—Damages.
    A verdict for $300 for an injury to plaintiff’s eye from which he suffered pain for nearly three years, is not excessive.
    Appeal from a judgment entered herein on the verdict of a jury in favor of the plaintiff on the 6th day of June, 1891, for the .sum of $433.22, and from an order made herein on the 8th day of June, 1891, denying defendant’s motion for a new trial.
    This action was brought to recover damages alleged to have been sustained by plaintiff while a passenger on one of the cars of •defendant's road.
    The complaint alleges in substance that on the 22d day of August, 1888, he was a passenger on one of the cars of defendant’s road, then in the care of defendant's servants, viz.: a conductor and driver, who had the management and control thereof: that while plaintiff was in the act of alighting from the car said defendant and its servant, the driver, so carelessly and negligently managed the said car that the handle of the brake of .said car forcibly struck the plaintiff, “ whereby the said plaintiff was greatly injured, to wit: * * * Whereby said eye became closed, and for several weeks remained wholly or partly ■closed, and wholly useless; and that by reason thereof the said plaintiff suffered intense pain, and is still suffering fain, and for .a period of three weeks since the said 22d day of August, 1888, was sick and disabled and injured in health, was prevented from ^attending to his business, and was subjected to expense in attempting to cure himself, to his damage, as he is informed and believes, in the sum of five hundred dollars.
    “ Wherefore plaintiff demands judgment for the wrong and injury aforesaid, and that it pay damages to plaintiff to the amount -of five hundred dollars, besides costs and disbursements."
    Defendant in its answer admitting its incorporation, denies upon information and belief that plaintiff on the 22d day of August, 1888, received any injury, etc., by, through or on account of, the negligence or carelessness of the defendant, its agents or servants, each, every, or all of them.
    This action came on for trial before the court and a jury on the 4th day of June, 1891, and the jury rendered their verdict in favor of the plaintiff in the sum of $300.

      Solomon, Dulon & Sutro, for resp’t; Iioadley, Lauterbach & Johnson, for app’lt.
   McGrown, J.

The plaintiff, in his complaint, after setting forth the injuries sustained by him, states: That by reason '.thereof the said plaintiff suffered intense pain, and is still suffering ■intense pain, and for a period of three weelcs * * * was sick and disabled and injured in health, prevented from attending to his business, and subjected to expenses in attempting to cure himself.”

At the request of defendant’s counsel the trial justice charged the jury that,

“ 15. If the jury concludes that the plaintiff is, entitled to recover, then they can only award him such damages as will compensate for his pain and suffering.

16. The jury can award him nothing for his expenses for medical attendance, or for loss in his business, as no pecuniary damage to him was proved from those sources,” and stated to the-jury that there was no evidence showing that plaintiff paid doctor’s bills, or for medicine, or that his time was valuable, and that, therefore, they could not “ render a verdict for any money for diese things,” but only “ for the pain and suffering which you believe the plaintiff suffered in this case, in case you believe he is entitled to a verdict at all,” and the fair presumption is that the jury, in considering their verdict, regarded the instructions of the court, thus leaving as the only question of damage that for pain and suffering.

The plaintiff testified “ that he suffered pain about three weeks, after the accident.”

The following questions were then asked plaintiff:

Q. After the expiration of those three weeks, did you continue to suffer pain ?

Objected to on the ground that the pleadings refer to injuries within a specified - time, and not subsequent to three weeks, and also on the ground that it is a surprise to the defendant to have such evidence offered.

Question allowed. Defendant excepts.

A. Yes, sir.

Q What is the condition of your eye at the present time ?

Objected to on the same grounds.

Question allowed. Defendant excepts.

A. I have always got pain; * * * I have pain inside; as-to the'bone surrounding the eye, I have pain inside.

The rulings of the trial justice, we think, were correct, as whenever the bodily or mental feelings are relevant, declarations of the-person himself, as to his present condition, ills, pains and symptoms, to whomsoever made, are competent as part of the res gestee; and in Curtis v. The Rochester & Syracuse R. R. Co., 18 N. Y., 534, it. was held that

“ The damages recoverable for bodily pain and suffering by a. person injured by the negligence of another, are not limited to that incurred before the trial, but extend to such future suffering as the evidence renders it reasonably certain must necessarily result from the injury.”

During the examination of James A. Bailey, a witness examined, on the part of plaintiff who testified that he was a physician, knew the plaintiff, recollected seeing him about two years or more ago,, that he came to him for an injury * * * that he noticed the-condition of his eye, that he came to have his eye attended to,. that he had examined the eye of plaintiff, the injured eye, ■within the last three or four months, the question was asked the witness:

Q. Will you state what the present condition of the eye is? o

Objected to on the grounds that the pleadings are confined to the injuries within the period of three weeks following the accident. Also on*the ground that the evidence is a surprise to the defendant.

Question allowed. Defendant excepts.

A. As far as I can judge, there is nothing to be seen except the scar, but he complains of pains shooting up.

Defendants’ counsel moves to strike out latter part of answer as irresponsive, irrelevant and incompetent.

Motion denied Defendant excepts. While the part asked to be stricken out, viz.: “ but he complains of pains shooting up,” may not have been competent evidence, as corroborative of plaintiff’s testimony as to the extent of his pains, as being hearsay, and as testifying to a statement made by plaintiff three years after the injury; yet considering the fact that plaintiff had testified positively to the fact that he was “ still suffering pain,” we do not ■think, considering the fact that the jury rendered their verdict in favor of the plaintiff, and in doing so, must have believed the testimony of the plaintiff, that the admission of the testimony asked to be stricken out could have affected the minds of the jury in rendering their verdict.

The exception taken to the ruling of the trial justice, on the ■question asked at folio 61, as to the present condition of plaintiff’s injured eye, we do not think well taken, for the reasons hereinbefore stated.

The witness was then asked :

Q. Have you any opinion as to the permanency of that injury?

Objected to on the ground that it is not pleaded, and it is in the nature of a special damage which is not warranted by the pleadings.

Question allowed. Defendant excepts.

A. In my judgment, from the nature of the injury, I should judge that the injury was permanent, etc.

We find no error in the above rulings of the trial justice. See Curtis v. The Rochester, etc., R. R., 18 N. Y., 534, above cited. And in Ehrgott v. The Mayor, 96 N. Y., 264, almost precisely, the same question arose as to the admission of evidence upon the trial under the pleading ; the evidence was admitted under objection, and the objection was overruled.

Earl, Justice, in his opinion, says: “If defendant desired the complaint to be more definite, he should have moved to have it made so, or for a bill of particulars.”

As to the question of contributory negligence on the part of the plaintiff, and of negligence on the part of the defendant, the trial justice in his charge to the jury stated that before they could Tender a verdict in favor of the plaintiff they must be convinced by the weight of evidence that the injury * * * “was brought about solely and entirely by the negligence of the defendant, and that there was no negligence or carelessness on the part, of the plaintiff which contributed to that injury,” and also fully and fairly charged the jury in his charge upon the question of contributory negligence on the part of plaintiff, and of negligence on the part of the defendant, and no exception was taien by defendant’s counsel to the charge, and also in charging the requests made by defendant’s counsel as to contributory negligence, and negligence on the part of defendant.

We have carefully considered all the testimony herein, and all the exceptions taken by defendant’s counsel, and find no error which requires a reversal of the judgment herein.

As to the amount of the verdict rendered, considering the fact, that the injury complained of occurred on the 22d day of August, 1888, and that the plaintiff still suffered pain at the time of the-trial on June 4, 1891, and for a period of nearly three years, without considering the permanency of such pain, we do not think the verdict rendered excessive.

Judgment herein and order appealed from must therefore be. affirmed, with costs to the respondent.

Van Wyok, J., concurs.


text:
    John Harmans Fisher et al., Resp’ts, v. George H. Moller, App’lt.

      (City Court of New York, General Term,

      Filed February 8, 1892.)

    1. Evidence—Stocks.
    In an action by stock brokers to recover the loss on a transaction it appeared that they had represented to their customer that a certain price could be obtained for a portion of the stock, and he thereupon gave them an unlimited order in writing to sell, and that they sold a portion for the price named and the balance for a less price. Held, that as it appeared that the whole contract was not reduced to writing it was error to refuse to allow defendant to testify that he verbally limited plaintiffs to sell at. the price named.
    2. Same.
    Plaintiffs’ agent who had the interview with defendant admitted that the latter limited plaintiffs’ right to sell to the price named or a fraction thereof. Held, that a direction of a verdict for plaintiffs was erroneous.
    Appeal from a judgment in favor of the plaintiffs for $893.56, rendered by a jury by direction of the court after trial, and from an order denying a motion for a new trial.
    This action was brought to recover the sum of $880.20, with interest from ¡November 19, 1890, being a balance claimed to be due plaintiffs upon the purchase and sale of certain securities for the defendant’s account.
    The complaint sets forth that the plaintiffs, engaged in business as stock brokers in the city of Baltimore, purchased for the defendant under the name of Holler & Co., at his request, certain bonds of the state of Maryland, known as Maryland three sixty-fives of the face value of $16,225, at a cost of $17,448.72, the same being advanced by the plaintiffs on said bonds ; they agreeing to carry the same for the defendant at his risk and subject ■to his order, and for which the defendant agreed to pay on ■demand.
    That on December 6, 1890, the defendant requested the plaintiffs to sell said bonds, agreeing to pay any loss which might be incurred thereupon. That thereafter and at the earliest possible moment the plaintiffs duly sold said bonds in different parcels at highest prices obtainable therefor, resulting in a loss of $880.21 for which defendant thereupon became liable, and which he agreed to pay.
    The answer denies all the material allegations of the complaint. As a separate defense it alleges the purchase of the bonds substantially as set forth in the complaint, but further alleges that on or about December 6, 1890, upon the plaintiffs’ representation that they had an offer for apportion of said bonds at 105, the defendant authorized the sale of said bonds by a certain order, in which no price was mentioned, but with the understanding and agreement that said plaintiffs should sell as many of these as they could at not less than 105, or at a small fraction below that amount, and that they would carry on the remainder for a reasonable time thereafter, unless 105 could be obtained for all the remainder of •said bonds.
    That relying upon such understanding the order to sell was given only on condition that such bonds should be sold at 105 or a small fraction below that amount.
    That in violation of such understanding the plaintiffs sold a few of said bonds at 105, but the bulk thereof at about 101, of which sale defendant had no notice.

      Leopold Wattach, for app’lt; Strong & Cadwalader, for resp’ts.
   McGown, J.

The defendant, in his answer, having admitted the purchase of the bonds by plaintiffs at defendant’s request, and .also the price paid therefor, and alleging, as a defense, that the order to sell was given on the distinct understanding and agreement that the bonds should not be sold for less than 105, or a •small fraction below that amount, and that plaintiffs, in violation of that agreement and of defendant’s instructions, and without notice to defendant, sold the bonds at 101, thus creating the greater part of the loss, leaves, as the only issues to be passed upon, what was the agreement between the'plaintiffs and defendant as to the sale of the bonds ? Were there any restrictions as to the sale, and if so, was a definite price fixed below which said stock should not be sold without defendant’s consent ?

John D. Howard, a witness called on the part of the plaintiffs, testified as to a demand for payment as follows: “ After that, date further demand for payment, I think, was made of Mr. Moller •once or twice; I had a personal interview with Mr. Moller after that, on the 9th day of December, at his house at Kingsbridge, Highbridge, Hew York; I saw Mr. .Moller; Mr. Moller expressed great regret at the occurrence of any difficulty; said that he was very much obliged to Mr. Fisher for his kindness in not pressing it any more than he had done; that it was entirely owing to sickness and sickness in kis family that it had not been taken up long ago; I asked him to give me a letter authorizing the sale, and to make a deposit with our correspondents in New York, covering the amount due us which he was lacking in margin; at that interview Mr. Moller gave me the note now handed me.”

Paper referred to offered in evidence. Received and marked “ Plaintiffs’ Exhibit B.”

Exhibit B.

Office of Mollee & Co.,

Investment Securities,

11 Pine Street.

New York, December 6, 1890.

Mess. J. H. Fisher & Son:

Gentlemen.—You have our authority to sell $16,225 state of Maryland three sixty-fives bonds which you purchased for us and are now carrying. As soon as I am able will deposit $500 with Messrs. Hallgarten & Co. to cover any loss you may make on it.

Should there be any balance due us it is to be returned, and we are to pay you in case the $500 does not cover the balance-due you.

Yery resp’y,

Mollee & Co.

Upon cross-examination he stated: “Of course I have not. given the entire conversation with Mr. Moller on the 9th of December, at Kingsbridgeand at folio 57 the following question was asked:

Q. “Did he not limit your right to sell to a certain price equal to 105, or a fraction of that amount?
A. “ Most certainly he did.”

Defendant testified in his own behalf:

“ I remember this transaction of Maryland three sixty-fives. 1 don’t dispute the purchase at prices that have been given here. I remember the interview with Mr. Howard, the last witness, on the 9th day of December. Mr. Howard called at my office, I was confined at home by sickness on that date, and said they were very anxious to be relieved from carrying those-bonds, as the money market was very active and they were-maturing; he requested that I give them permission to sell 'these bonds as money was very active and they did not car© to carry them any longer. I asked him what the market, price was. He said 105" He said the bonds at that rate there would be a loss, he did not know how much, whether $500, more or less, or it would be thereabout, and he wanted to know if I would make a deposit of that amount with Hallgarten & Co. to cover the loss. I told him I had no means at home, as I was confined at home, to know what the loss was, and that when I was able I would make the deposit. He said that he had an order from some lady customer. I understand him a lady customer, for the amount of twelve hundred and odd dollars of bonds;. that they would not force the balance of the bonds on the market but would sell them at 105, or near as they could get on it, but would not make any more loss for me than they could help. I. therefore gave him an order to sell the bonds without specifying-any limit, as my relations with them had always been of the-pleasantest, and T put no restriction in it.
“ Q. What, if anything, was said on the subject of price at which, they were to be sold?
“ Plaintiffs’ counsel objects.
“ The Court: I will sustain the objection because the proposed evidence tends to vary the written instructions of the defendant..
“ Q. What, if anything, was said at the interview between you. and Mr. Howard as to the price at which those securities were to be sold ?
“ Plaintiffs’ counsel objects on the ground that the interview has resulted in a written order which speaks for itself.
“ Objection sustained. Defendant excepts.
“ Defendant rests.
“ Plaintiffs’ counsel: I ask your Honor to direct a verdict for
the plaintiff for the full amount.
“ Defendant’s, counsel: I ask your honor to submit the question-to the jury.”

By direction of the court the jury rendered a verdict in favor of the plaintiff for $893.56.

Defendant’s counsel excepts to the direction, and to the refusal: of the court to allow the case to go to the jury.

The witness Howard testified as to what took place at his interview with defendant on December 9th, and stated that he had not-given the entire conversation, and that defendant at that interview limited plaintiffs’ right to sell to a price equal to 105, or a fraction-of that amount. The defendant also testified as to what was said, at that interview, and that a price was mentioned at that time. It does not appear that either of the witnesses testified as to the-whole of the conversation at the two interviews.

Considering the testimony above referred to, and the fact that the authority to sell (Ex. B.) hereinbefore referred to, was silent as to the price at whicli said bonds should be sold, we think it was an error on the‘part of the trial justice in refusing to allow the evidence sought to be obtained by the two questions above referred to.

Such evidence if admitted would not have had a tendency to-vary or contradict the written instrument (Ex. B.), but might have assisted the jury in determining what was the real intention, of the defendant in authorizing the sale.

The law is well settled that where part only of a verbal contract is reduced to writing, paroi proof of the rest of the contract-is competent.

In Routledge v. Worthington Co., 119 N. Y., 592 and 595; 30 St. Rep., 195, Gray, Justice, in his opinion says: “In the exclusion of evidence to show that the plaintiffs on their part agreed to-reduce the trade-price of the books which the defendant had agreed to purchase, the learned trial judge committed an .error which is fatal to this judgment.

“ The instrument upon which plaintiffs seek to charge the de■fendant with liability to them resulted from a previous agreement between the parties for the sale and purchase of these set of Dickens’ sheets.

“ Some arrangement had been agreed upon between them respecting the transaction, and subsequently, in consequence of a request -on behalf of the plaintiffs for a formal order, this writing was .sent to them by defendant.

“ There is no doubt or dispute as to its sufficiency to charge the defendant; but it represented only a part of the whole contract.

“ Its execution is not denied, but the defendant’s claim and allegation were that the plaintiffs, at the time the contract was entered into, engaged to do something on their part, and have failed to keep their agreement

“ The defendant's undertaking's shown by the writing signed by it, but the plaintiffs’ lay wholly in paroi. * * *

“The defendant is concluded prima facie as to its promises in writing, but whether the plaintiffs promised something more than ■can be inferred from that writing, and which may constitute a ¡separate undertaking leading to the defendant’s order, and what they did at the interview when the bargain was arranged, must be ¡shown by a resort to the conversation.

“The testimony which the defendant sought to elicit bore upon the transaction, and was offered with a view of proving what then was said and done about the matter of a sale.”

We think that the exceptions taken by defendant’s counsel at folios 64, 65 and 66 were well taken, as appears herein.

'The evidence on behalf of plaintiffs given by the witness who had personal charge of the transaction is as follows:

“ I told Mr. Moller (the defendant) I knew I could get an order for a small portion of the bonds at 105.
“ Q. Did you not tell him that you could sell some at 105 ?
“A. I told him that we can sell a small lot, mentioning the actual amount.
“ Q. What was said by Mr. Moller in regard to selling the rest?
“A. Simply gave me a letter; nothing more was said.
“ Q. Did he not limit your right to sell to a price equal to 105, ■or a fraction of that amount? A. Most certainly he did.”

This testimony, we think, shows that plaintiffs had no right to sell the bonds at about 102 1-8, when they were limited to 105 or a fraction of that amount, for if he lost $880, the average selling price obtained by him was only about 102 1-8.

Thus the conclusion must be reached that a verdict for $880 should not have been directed for plaintiffs against the defendant’s objection, and that a judgment entered upon such a verdict so directed should be reversed, and a new trial granted.

For the reasons hereinbefore stated, the judgment and order appealed from must be reversed, and a new trial ordered, with, costs to the appellant to abide the event

Van Wyck, J., concurs.


text:
    Hyman Schnitzer, Resp’t, v. Sabina E. Husted et al., App’lts.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Bills and notes—Usury—Estoppel.
    To estop parties to a note their representations in respect to its consideration and validity must he outside the face of the note. If such statements-appear in the note, they will fall with the instrument because of the statute of usury, which would annul the instrument.
    Appeal from a judgment entered upon a verdict in favor of plaintiff.

      David Leventritt, for resp’t; Howard Y. Stillman, for app’lts.
   Van Wyck, J.

This is an action upon two promissory notes made in 1889 by the defendant, Sabina E. Husted, to the order of and endorsed by her husband, the other defendant, and by him. transferred to plaintiff before maturity. In the body of each note, above the maker’s signature, is contained the following statement: “ And it is hereby agreed that this note shall be chargeable to-my separate estate, which has received the benefit thereof; value received.” The defense was usury, and the conditions under which it was transferred to plaintiff by the payee husband are in dispute; the plaintiff contending that the payee represented to him that they were made by his wife, endorsed by him and delivered to workmen for labor performed on the Hew England Hotel in the Bowery, which was a part of her separate estate, and that he wanted them discounted for these workmen, and plaintiff testified that he paid to the husband in cash the full face thereof, less the legal interest; while the husband payee testifies that he made no-such statements, but merely asked plaintiff to discount his wife’s, notes, which plaintiff did, receiving interest at the rate of twenty-four per cent per annum, and that neither his wife nor her separate estate received any consideration or benefit from him, the. notes or their proceeds.

Thus it became necessary for the jury to determine the following disputed questions of fact: Whether the maker or her separate estate had received the benefit of the notes, or their proceeds,, and if the jury answered this affirmatively, then the verdict must have been for plaintiff; but if in the negative, then they would be called upon to determine whether the plaintiff had been paid such unlawful interest, and if they had determined that he had not, still their verdict should have been for him; but if they should have concluded that he had received such unlawful interest, then the verdict should have been for defendants, provided that neither the maker nor her separate estate had received such benefit as aforesaid. It has been held that a wife who makes a. note to the order of her husband, without consideration, is liable to one who purchases it for its face value before maturity from the husband, on the theory that the note not being a valid contract as between the husband and wife, no 'contract, therefore, springs into existence until the purchaser for full value becomes the holder of the paper,- and then the contract runs directly ■from the wife, maker, to such holder, and hence comes within the first section of the act of 1884, and not within the exception of § 2, whicli provides that the act shall not apply to any contract that shall be made between husband and wife. Bowery Nat.Bk. v. Sniffen, 7 N. Y. Supp., 520; S. C., 27 St. Rep., 10; and this case is followed in Queens Co. Bank v. Leavitt, 31 id., 195; S. C., 10 N. Y. Supp., 193.

But it has not been, nor can it be, held that a note made under ■such conditions can have any validity in the hands of one who purchases it from such payee husband for enough less than its lace value as to give the purchaser more than legal interest. The record of the case now under consideration shows as follows:

“ Plaintiff’s counsel: I ask your honor to charge the jury that if the maker of the note, Mrs. Husted, had received the benefit of that note before she delivered it, that then and thereafter the note could be sold at any rate, and it would not be usury,” and ■the court so charged.

, Bemembering these words in the notes, “ and it is hereby agreed that this note shall be chargeable to my separate estate, which has received the benefit thereof, value received,” it would seem that the court erred in charging the jury as follows: “ I charge that whenever these words appear in a promissory note of a married woman, that she was estopped from denying the words or their legal effect,” which means that this wife defendant was estopped from denying that her separate estate had received the benefit ■of the notes, or that the notes were not given for value received. Such is not the rule of law under the doctrine of ■estoppel. In Mechanics' Bank v. N. Y. & Y.H. R. R. Co., 13 N.Y., 638, Judge Comstock writing says: “But to say that he is estopped by the instrument itself simply because he has made it, and a third party has dealt with it,_ is only asserting in another form that fraud, mistake, duress, ’ illegality or want of consideration is no defense." Mrs. Husted, the maker, had the right to deny that her separate estate had received the benefit •of the notes, and that they were given by her for value received, and if the jury believed her denial, she was entitled to a verdict, if plaintiff had deducted more than lawful interest' from the purchase price of the notes, for then the transaction would be a usurious loan of money, for the plaintiff could not purchase notes which had no owner; in other words, which had no legal existence until they came to his hands. If the very words of a contract are to be taken as a representation which estops the party who makes the obligation from interposing a defense inconsistent with that representation, then all contracts must be deemed valid which appear to be so on their face, and not only usury, but duress and fraud, can no longer be alleged. Clark v. Sisson, 22 N. Y., 312.

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

Ehrlich, Oh. J., concurs.


text:
    Ellwood S. Hand, Resp’t, v. The Society for Savings of Cleveland, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    1. Appeal—Case.
    If tlie case omits the statement that it contains all the evidence, no questions of fact will be reviewed, but only questions of law.
    "2. Jurisdiction—Foreign corporations.
    The city court of New York lias jurisdiction of actions by residents or domestic corporations against foreign corporations for every cause of action over Which it has jurisdiction against residents or domestic corporations. This broad jurisdiction was not possessed under § 427 of the old Code, but was acquired under § 1780 of the new Code.
    -S. Pleading—Sufficiency of complaint—Foreign corporations.
    In an action brought, for breach of a contract made without this state against a foreign corporation the plaintiff need not allege his residence.
    -4. Same.
    A complaint which sets forth in full such contract, not under seal, and alleges that the same was made and executed by defendant is good, even. though the contract does not recite that it is made by defendant and is simply signed “ S. H. Mather, Prest.,” for under such pleading it may be shown that the person so signing is the president of defendant and executed the same with the authority of and for the defendant corporation.
    Appeal from judgment entered on a verdict for plaintiff and from an order denying defendant’s motion to vacate an attaclir ment.

      Chas. DeHart Brower, for resp’t; W. M. Safford, for app’lt
   Van Wyck, J.

This action is for the recovery of damages for breach of a contract made at .Cleveland, Ohio. The complaint •sets out in full the contract, which does not recite that it was made by the defendant corporation and is signed simply “S. H. Mather, Prest.” Howhere in the appeal book is found a statement that it contains all of .the evidence, and our appellate authority, following Aldridge v. Aldridge, 120 N. Y., 616; 31 St. Rep., 948, has held in Claflin v. Flack, 36 St. Rep., 728, Judge Pryor writing, that if the case omits the statement that it contains all the eviolence, then that they are precluded from inquiring into the facts by the presumption, in support of the judgment, that the proof was sufficient to carry the case to the jury and to warrant the •verdict.

This general term in obedience to the rule of practice as laid down in the Aldridge case will not consider or discuss the facts, in the absence of such a statement.

The court of appeals in the Aldridge case says: “ This rule does not exist in the Code, but is so well established that a respondent may rely upon it. And after a case lias been made in a manner appropriate only for a review of questions of law, to reverse a judgment upon the facts would be an injustice to the respondent, who has a right to rely upon the court enforcing the rule it has announced for the guidance of litigants.”

Hence we must assume that every fact was proved on the trial which was necessary to justify the verdict, and shall now consider only questions of law which are up for review.

Appellant’s objection to the complaint for its insufficiency was-raised at trial and such objection was then properly impressed upon the record, and the same will now be considered as if a demurrer to the complaint upon the grounds of want of jurisdiction, and that it does not state facts sufficient to constitute a cause of action. First, as to jurisdiction.

At common law in the absence of a statute, corporations organized under the laws of one state could not be sued .in the courts of another state. This was upon the theory that they were artificial beings having no existence or being beyond the "jurisdiction creating them. Of course this did not apply where the action was in the nature of an action in rem. However statutes were passed giving certain courts under certain circumstances jurisdiction against foreign corporations, and such is §427 of the old Code, which gave the supreme court and the superior and court of common pleas of New York city jurisdiction of actions by a resident against foreign corporations for any cause of action, and under § 1780 of the new Code this jurisdiction is extended to the city court of New York, but before this the marine court and the city court of New York had jurisdiction over foreign corporations as-to some causes of action. In the absence of any allegation in the complaint that the plaintiff is a non-resident of the state, and therefore disqualified to sue a foreign corporation by reason of § 1780 of the Code, such non-residency will not be assumed in support of a demurrer on the ground of want of plaintiff’s capacity to sue. Leslie v. Lorillard, 18 W. Dig., 288.

Now, as to whether the complaint states facts sufficient to constitute a cause of action. The defendant’s contention is, that as-the complaint sets forth in full a contract which did not recite that the defendant made it, and was simply signed “S. H. Mather, Prest,” therefore the allegation that defendant made and executed the contract was not enough, but that it should have been further alleged that S. H. Mather was the president of defendant and had executed the same by authority of and for defendant. Where a contract is in writing or by paroi (not under seal), in the name of the agent and within his authority, the principal can enforce the-same, and is liable thereon; but a different rule prevails as to sealed instruments. Nicoll v. Burke, 78 N. Y., 580. The contract set out in the complaint was not under seal, and the allegation that the defendant made and executed the contract, when it appears to have been signed by another party, necessarily includes-the allegation that such other party was duly authorized "to make the contract in behalf of the defendant, and under it proof can be-given, and would be requisite, to establish that it was, in fact, the contract of the defendant, by proving the authority of “ S. H. Mather, Prest, ” to make the contract in defendant’s behalf. Moore v. McClure, 8 Hun, 557.

He who acts through another acts himself, and an allegation that he acts" himself is good pleading where he acts through-.-another, and permits of proof of the authority of the latter. It is conceded that the same questions are involved in the consideration of the appeal from the order refusing to vacate the attachment.

The judgment and order appealed from are affirmed, with costs.

Ehrlich, Oh. J., and Fitzsimons, J., concur.


text:
    Ebenezer T. Baker, Resp’t, v. D. Edgar Codding et al., App’lts.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Statute of fbauds—Cohtbacts not to be pebfobmed within- a yeab.
    An oral contract of employment, invalid by the statute of frauds, because by its terms it is not to be performed within one year from the making thereof, is not taken out of the statute by part performance.
    Appeal from judgment entered on a verdict for plaintiff.

      Geo. Carlton, for resp’t; John B. A. Mullally, for app’lts.
   Van Wyck, J.

The plaintiff admits, and his reply to defendants’ letter (plaintiff’s exhibit B.) and their reply to him (plaintiff's exhibit C.) clearly show that up to the time when he visited defendants at Attleboro no contract of employment had been agreed upon between him and them. The plaintiff testifies that the visit was the last of November, 1889, and that on that occasion he and defendants entered into an oral contract, by which they agreed to employ him as salesman for the term of one year from the middle ■of December next and his employment to terminate the middle of December, 1890.

He further testified, that he was unjustifiably discharged from such employment on March 5, 1890, and his action is to recover damages sustained by him by reason of such breach. The contract, as testified to by plaintiff himself, is certainly rendered void by the Statute of Frauds, which provides that “ every agreement that by its terms is not to be performed within one year from the making thereof ” shall be void, unless in writing, etc., and the record shows that defendants’ motion to dismiss the complaint on the ground that the contract was oral, and not by its terms to be performed within a year from the making thereof, was duly made and exception taken to its denial, and so this ruling is properly up for review.

The fact that plaintiff entered upon his employment in December and performed under the contract until the following March ■cannot avail him, for part performance within the year cannot help his case, and to hold that part performance will take the case out of the statute would be a nullification of the statute. Wahl v. Barnum, 116 N. Y., 98; 26 St. Rep., 457. Plaintiff’s counsel insists that “ defendants’ answer neither sets up the statute nor denies the contract,” and if this contention was justified by the allegations and denials of the answer an affirmance of the judgment would follow, for under.such .conditions the rule is that if defendants admit the contract, and do not plead the statute of frauds, or insist upon it in their answer, they are deemed to have renounced the benefit of it. Duffy v. O'Donovan, 46 N.Y., 223. However, this rule cannot be invoked in aid of the plaintiff in the case at bar, for the second and third paragraphs of the-complaint allege a contract which by its terms is not to be performed in a year, and plaintiff’s part performance thereunder,, while the first paragraph of the answer specifically denies the-allegations contained in the second and third paragraphs of the complaint," and although the fourth paragraph of the answer alleges the malting of another and different contract of employment with the plaintiff, which by its terms would be enforceable by action, even though made by word of mouth, still the plaintiff was put to his proof of his alleged contract on defendants’ specific denial thereof, and hence it was not necessary for defendants to-plead the statute in order to enable them to avail themselves of its benefit; but this they could and did do, as soon as it appeared by plaintiff’s own testimony that the contract was not, by its terms, to be performed within one year from the making thereof,, as alleged in the complaint, and that it was not in writing.

This judgment must be reversed and plaintiff’s complaint dismissed, with costs and costs of appeal, and judgment ordered for the defendants.

Ehrlich, Oh. J., concurs.


author: Ehrlich, Ch. J.

text:
    The State Bank of Rock Valley, Resp’t, v. Wallace C. Andrews, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    MarufacturingsCOmpahies—Liability of directors.
    The liability of the directors of a manufacturing company for its debts, is an origin£d,one, and is joint and several. Efforts to collect from the company ismot a condition precedent, and a single director , or the entire board may be sued.
    Appeal from judgment directed in faavor of plaintiff on demurrer.

      James W. Hawes, for app’lt; M. P. Stafford, for resp’t.
   Ehrlich, Ch. J.

The facts alleged are admitted by the demurrer, and under the liability there charged “ every director-shall be personally liable for all debts incurred by the corporation, etc., to an amount not exceeding $5,000.”

Under this provision the director becomes an original debtor under a contract liability. Corning v. McCullough, 1 N. Y., 47, 61; Harger v. Same, 2 Denio, 119; Moss v. Same, 7 Barb., 279, 295; Wiles v. Suydam, 64 N. Y., 173; Merchants' Bank v. Bliss, 35 id., 414.

Efforts to collect from the company is not a condition precedent. Miller y. White, 50 N. Y., 141; Rorke v. Thomas, 56 id., 565; Esmond v. Bullard, 16 Hun, 65; McHarg v. Eastman, 7 Rob., 137.

The liability is joint and several, and a single director or the entire board may be sued, Bank of Poughkeepsie v. Ibbotson, 24 Wend., 473; Weeks v. Love, 50 N. Y., 570; Bartlett v. Drew, 57 id., 587; Roach v. Duckworth, 95 id., 399, and the remedy maybe invoked by a single creditor. Wiles v. Suydam, 10 Hun, 578; Weeks v. Love, 50 N. Y., 568; Bartlett v. Drew, 57 id., 587; Roach v. Duckworth, supra.

These principles applied to similar acts are alike applicable here.

The creditor was not obliged to go into equity.

The common law remedy is sufficient for his purpose.

The defendant might, perhaps, invoke equitable relief if he needed it, or might plead in defense that he had discharged other liabilities up to the statutory limit of $5,000.

Upon the pleadings, the judgment was properly directed in favor of the plaintiff and must be affirmed, with costs.

Van Wyck and Fitzsimons, JJ., concur.


text:
    John Claffy, Resp’t, v. Edward S. Farrow et al., App’lts.

      (City Court of New York, General Term,

      Filed March 10, 1892.)
    1. Bills and notes—Pbooe ob title.
    A judgment roll entered upon default against subsequent endorsers of a note is not admissible against a prior endorser to show title to the note in plaintiff. The proper way to prove title by endorsement denied is by offering note with proof .of the genuineness of the signatures of the endorsers.
    2. Same.
    When the maker or endorser of a note has shown that the note was obtained from him by duress, or that he was defrauded of it, the. plaintiff should bo required to show under what circumstances and for what value he became the holder.
    Appeal from judgment entered on verdict directed by the court against defendant Farrow.

      Nichols & Bacon, for app’lts ; Kellogg, Rose & Smith, for resp’t.
   Van Wyck, J.

This action is upon a promissory note made by the defendant, Worth, to the order of defendant, Farrow, who endorsed the same payable to the order of the defendant, Barnegat Co., by whom it was endorsed, as well as by the defendant, Flew York Improvement Co., and the plaintiff claimed to have subsequently acquired the same before maturity and for value. It appears that the two defendant corporations were duly served with the summons herein in March, 1891; that the Improvement-Co. failed to plead; that the Barnegat Co., although answering, suffered an inquest to be taken against it; and that thereupon on April 18, 1891, a judgment was • entered against them by default. The defendant, Farrow, who was served October 13, was the only defendant who appeared at the trial, which was had on December 18, and which resulted in a verdict being directed by the court in favor of plaintiff for the full amount of note and interest. Every allegation of the complaint, except as to the incorporation of the two defendant corporations, was put at issue by the answer of Farrow, which also set up an affirmative defense. At the trial plaintiff offered in evidence this judgment-roll, filed on April 18 in this case against these two defendant corporations, “ as to the title to this note, which comes through them. The other side denies that we are the owners of the note, ” and it was admitted against the objection of counsel for Farrow, the only defendant defending, and exception. was taken. This was error, for the proper way to prove title by endorsement denied is by offering the note with proof of the genuineness of the signatures of the endorsers. Plaintiff’s counsel contends that this was harmless error, because the note was subsequently offered in evidence and purported to be regularly endorsed by all of these defendants, and as he contends was admitted without objection although an exception appears to have been taken to its admission during a colloquy between the court and defendant’s counsel had at that very moment, and at the close of which plaintiff’s counsel immediately moved to dismiss on the ground “ that there was no evidence that the title to the note is in this plaintiff.’’

It does seem that although this exception may not be strictly regular, yet, viewed in the light of this mutual discourse between the court and counsel as appears by the record, it should be deemed available to defendant in so far as to have required proof of the genuineness of the endorsement of the Barnegat Company as appearing on the note, for, as already said, the judgment roll did not prove the genuineness of the same. The genuineness of this endorsement was material, for it must be remembered that defendant Farrow, the payee, had endorsed the note payable to the order of the Barnegat Company, which precluded the passing of title thereof by delivery alone and required the endorsement of that company in order to permit of plaintiff acquiring title thereto. However, there is another and further reason why this judgment should be reversed. The plaintiff neither gave nor offered any affirmative proof of the bona fides of his holding of the note, but the plaintiff, assuming that the note and the endorsements were properly proven and in evidence, simply relied upon the legal presumption raised thereby. Of course, upon the production in court of a note, with endorsement properly proven, the presumption of law is raised not only that the plaintiff is the holder of it, but that he was the holder thereof before maturity and for full value, but this presumption is overcome by proof on behalf of a defendant that the note has been diverted from the purpose for which it was delivered, or that it was obtained from the defendant by fraud or theft.

A witness for defendant Farrow was allowed to testify, without objection from plaintiff, as follows: “I am the partner of Mr. Farrow in the banking businessI remember his giving this note to me; it was some time in September, 1890; I had it with a number of others in my desk, at No. 40 Wall street, New York; I never parted with possession of it; it was stolen from my possession I never parted with title to it; after the note was stolen from mv desk, the next I heard of it was this gentleman, who introduced himself as Mr. Claffy (the plaintiff), came to our office, No. 40 Wall street, and asked me about the note, and I served notice upon him that the note was stolen from me; that the parties that endorsed it never received any value for it whatever, and he was not entitled to it; that was after he purchased the note, but before maturity.”

The defendant had testified that the last he saw of the note was when he handed it to his partner, and he was asked by his counsel this question : “ Did it ever pass out of your personal possession later.” “ Objected to. Objection sustained. Exception.” This evidence on behalf of defendant certainly put the plaintiff to affirmative proof of the bona fides of his holding. The rule as to the shifting of the burden of proof under such circumstances is aptly stated by Judge Rapallo in First National Bank v. Green, 43 N. Y., 300, as follows: “A plaintiff suing upon a negotiable note or bill purchased before maturity is presumed, in the first instance, to be a bona fide holder. But, when the maker has shown that the note was obtained from him under duress, or that he was defrauded of it; the plaintiff will then be required to show under what circumstances and for what value he became the holder. The reason for this rule, given in the later English cases, is that where there is a fraud the presumption is that he who is guilty will part with the note for the purpose of enabling some third party to recover upon it, and such presumption operates against the holder, and it devolves upon him to show that he gave value for it.’ ” This rule applies with equal force in favor of a payee who endorsed the note payable to the order of a particular person, as did the defendant in this action, and therefore the plaintiff could not simply rely upon the presumption arising from the production of the note, but was called upon “ to show under what circumstances and for what value he became the holder,” which, however, he failed to do, and hence it was error to direct a verdict in his favor.

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

Eitzsimons, J., concurs.


author: Fitzsimons, J.

text:
    Samuel Pyne, Adm’r, Resp’t, v. The National Steamship Co., Limited, App’lt.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Costs—Depositions op plaintiff.
    The expense of taking the testimony of the original plaintiff during a dangerous illness, which testimony was necessary to enable her administrator to recover, may be allowed as a disbursement on taxation of costs.
    Appeal from order retaxing costs.

      John Chetwood, for app’lt: Richards & Brown, for resp’t.
   Fitzsimons, J.

This is an appeal from an order retaxing costs.

This action is for value of goods lost by defendant, owned by Mary Pyne, who commenced the action. During its pendency she became dangerously ill; her testimony was absolutely necessary in her behalf to enable her administrator to recover judgment herein.

Because of her said illness a commission was issued to take her testimony, which was done. Subsequently and before the trial she died from said sickness, and her testimony taken under the commission was used upon the trial, by her administrator, the present plaintiff.

The special term justice allowed as an item of plaintiff’s expenses the sum of twenty-five dollars, the amount paid the commissioner who took said Mary Pyne’s testimony, and from such order this appeal is taken.

Under the circumstances the allowance of said item was proper. As mentioned, her testimony was essential to plaintiff’s success : without it judgment could not have been rendered for plaintiff.

The testimony was not taken to suit plaintiff’s convenience, but because it was absolutely necessary to do so and in the manner in which it was done; no other course could have been pursued.

Order appealed from affirmed, with costs.

Ehrlich, Ch. J., and Yah Wyck, J., concur.


text:
    Julius E. Mosheim et al., App’lts, v. Charles Pawn et al., Resp’ts.

      (City Court of New York, General Term,

      Filed March 10, 1892.)

    Bill of pahticulabs.
    The power to order a hill of particulars should be exercised in furtherance of justice, and no person should be required to do that which it is impossible for him to do, under penalty of having his pleading stricken out.
    Appeal from order requiring plaintiffs to furnish a bill of particulars.

      F. Bien, for app’lts; D. McMahon, for resp’ts.
   Ehrlich, Ch. J.

The authority of the court to order.a bill of particulars and to determine its extent is not questioned.

But the power should be exercised in furtherance of justice, and no person should be required to do that which it is impossible for him to do, under penalty of having his pleading stricken out. Ammidon v. Century R. Co., 39 St. Rep., 350; 14 Supp., 768.

Some of the things the court below has ordered the plaintiffs to do they swear they cannot do, and their reasons why are given.

The excuse seems satisfactory. The order appealed from should be modified by affirming the order, in so far as it directs the plaintiffs to give to the defendants the specific dates showing the year, month and day when the payments were made, the separate amounts paid aggregating $6,340.88, and to furnish an account of the lot numbers, the goods sold and the amounts realized at the auction sale.

In other respects the order appealed from will be reversed, without costs.

Van Wyck and Fitzsimons, JJ., concur.


author: Macomber, J.

text:
    Jeannie T. Hard et al., Adm’rs, Resp'ts, v. Leurendus B. Ashley et al., Impl’d, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    1. Evidence—Declaration of deceased—Evidence of fbadd.
    A mere declaration of a deceased person that he had perpetrated a fraud, unsupported by direct evidence, is not competent to establish the fact .of fraud, so as to avoid for fraud in its inception a written obligation sued upon by his personal representatives.
    2. Same.

      The' declaration of a deceased party to a written instrument, made to a third person prior to the execution of the instrument, and offered to be proved at the trial for the purpose of impeaching and annulling that instrument for the fraud of the deceased, but which was not communicated to the other parties, is but hearsay evidence, and when standing alone is incompetent to destroy the validity of the writing.
    3.. Attobney and client—Pbivileged communication—What is not.
    Where two or more persons consult an attorney for their mutual benefit, the conversation between them in his presence is not a privileged communication under § 835 of the Code.
    Appeal by the defendants, Leurendus B. Ashley and Susan M. Ashley, his wife, from a judgment entered in Monroe county, on the 12th day of ■ September, 1891, on the report of a referee; and also, from an order of the Monroe special term granting to the plaintiffs an additional allowance of costs, under § 3253 of the "Code of Civ. Pro.

      P. M. French, for app’lts; W. A. Sutherland, for resp’ts,
   Macomber, J.

This action was brought to obtain an accounting by the executor of the last will of Isaac Ashley, deceased; and for the payment of such moneys to the plaintiffs as administrators, etc., as were bequeathed to their intestate, William M. Ashley, by the will of Isaac Ashley, and such other sums coming from such estate by virtue of a written agreement bearing date the 26th day of May, 1884, made between the plaintiffs’ intestate, William M. Ashley, and the appellants, which was executed in settlement of a contest before the surrogate of Monroe county over the probate of the will of Isaac Ashley.

William M. Ashley, deceased, Leurendus B. Ashley and Susan M. Ashley the appellants, were legatees and devisees under the will of Isaac Ashley; but the share of the decedent’s estate going to William M. Ashley, under the will, was small compared with that going to the appellants. Objections were made to the probate of the will in behalf of William B. Ashley, and others, and a controversy in respect thereto had been carried on for sometime in the surrogate’s court when, at the date named, these parties entered into an agreement, by which William M. Ashley was to be paid by the executor of Isaac Ashley’s will the sum of $20,000 out of the first moneys received from the estate, and by which there was to be divided between William M. Ashley the one-half part, and Leurendus B. Ashley and Susan M. Ashley the other half part of all other money or property which should be realized by them or either of them from the estate of Isaac Ashley, after paying all costs and expenses of acquiring such money or property.

As the result of the above agreement, further contest over the probate of the will of Isaac Ashley was withdrawn by William M. Ashley and the will was admitted to probate. Soon thereafter William M. Ashley died intestate; and thereupon the appellants, Leurendus B. Ashley and Susan M. Ashley, repudiating this written agreement, claimed that the executor of the estate of Isaac Ashley should distribute the property in his hands according to the terms of the will, and not in accordance with the agreement which they had entered into. Hence,- the bringing of this action for an accounting and for distribution of the estate as above stated; and it is defended by the appellants upon the ground that the contract in question was procured from them by the fraud, false and fraudulent representations of William M. Ashley.

On the former trial of this action, for the purpose of proving such false representations, Leurendus B. Ashley and Susan M. Ashley were each called as a witness by the other, and each testified to overhearing a conversation between the decedent and the other, and each was asked to give the conversation. That evidence was then objected to, but was received by consent of the parties, subject to a motion to strike it out. The contemplated motion, however, to strike out the evidence was not made. Leurendus B. Ashley and Susan M. Ashley were, respectively, asked if they believed and relied upon such representations, the evidence of which had already been given by them and which stood in the case. This was objected to and excluded, and an exception was taken. The court of appeals decided such ruling to be error, and granted a new trial, holding that inasmuch as the testimony calling out facts given by these witnesses had been allowed to stand in the case, the additional testimony as to their reliance upon such representations should have been allowed to be proved, and to have its usual and natural weight in the case, and that it was not within the prohibition of § 829 of the Code of Civil Procedure. Hard v. Ashley, 117 N. Y., 606; 28 St. Rep., 601.

The question now presented, however, in respect to the matters embraced in this appeal, is quite different from that formerly under review in the court of appeals. Upon this trial the evidence of these witnesses in respect to each overhearing declarations made to the other by William M. Ashley, deceased, was objected to and excluded. That this evidence was properly excluded can admit of no doubt. The contract between the parties was joint and not several. The representations were set forth in the answer as made to the appellants bjr William M. Ashley. Ho allegation is contained in the answer that the representations, whatever they were, were made separately to the appellants.

On the contrary, the allegation is that the representations were made to them, and the evidence in substance shows, so far as it was permitted to go, that any declarations uttered by the deceased, William M. Ashley, not only concerned the joint rights of these two appellants under the will of Isaac Ashley, but were mainly made to them when together; and whatever was offered to be proved affected the pecuniary interest of each one of them. In these circumstances, the evidence was clearly incompetent under § 829 of the Code of Civil Procedure, which excludes, among other things, the testimony of a party to an action, concerning declarations and transactions occurring between such party and the deceased, as against the personal representatives of the latter. Matter of Will of Dunham, 121 N. Y., 575; 31 St. Rep., 858; Erwin v. Erwin, 54 Hun, 166; S. C., 26 St. Rep., 759; Matter of Will of Bartholick, 35 id., 730.

If the above conclusion is correct, there follows, as a necessary corollary thereto, the further conclusion that the other testimony offered to be given by these witnesses, namely, that they relied upon the representations which a witness by the name of Turner testified had been made to him by William M. Ashley, was also correctly excluded. Turner was permitted to testify, in substance, that William M. Ashley said to him sometime prior to the actual execution of the contract, that if Leurendus and his wife should ask him (the witness) if certain. persons had agreed to release their shares in the residuary estate of Isaac Ashley, that Turner should tell them that they had ; and that thereupon William M. Ashley added: “I have already told them so.” There was no other proof of the representation made by William M. Ashley. Hor was there any evidence that the witness Turner communicated . to the appellants what William M. Ashley had said to him. On the contrary Turner testified, that he did not disclose such statement to them. Consequently, the question put to the appellants, whether they believed and relied upon the statement made by William M. to Turner, was properly rejected, because an affirmative answer thereto would necessarily involve, if truthfully made, the further fact that such representation had actually been made by William M. Ashley to them. This, as it appears to us, was a sufficient reason for the rejection of such testimony.

But there is a more radical objection to the testimony of Turner; and that is, that the whole of it relating to this matter of the representations made by William M. Ashley is, at best, but hearsay evidence, and for that reason not sufficient, standing alone, to destroy this written and sealed instrument.

In order to avoid the terms of the written contract in question, it was necessary for the appellants to show affirmatively that their signatures were obtained to it through the fraud and misrepresentations of William M. Ashley. The testimony to the effect that William M. Ashley admitted that he had made such representations to the defendants is not evidence of that fact in an action brought upon that instrument by his personal representatives. The evidence of an admission by a deceased that he had committed a fraud would be competent to be given in corroboration of other and direct evidence of such fraud. But proof that the fraud was actually perpetrated must in some manner be shown. A mere declaration of a deceased person given in evidence that he had perpetrated a fraud, unsupported by direct evidence, is not competent to establish the fact of fraud, so as' to avoid for fraud in its inception a written obligation sued upon by his personal representatives. The declaration of a deceased party to a written instrument, made to a third person prior to the execution of the instrument, and offered to be proved at the trial for the purpose of impeaching and annulling that instrument for the fraud of the deceased, but which was not communicated by the witness to the other parties, is but hearsay evidence, and that too of an extremely dangerous character, and when standing alone, and not merely in ‘aid of direct evidence, is incompetent to destroy the validity of the writing.

Another ground of error urged upon our attention relates to the final rejection by the learned referee of the testimony of the appellant, Leurendus B. Ashley, who was called to give his version of a conversation which occurred between himself and William M. Ashley at the office and house of Alfred Ely, an attorney at law. Mr. Ely was permitted to give his testimony, under objection and exception by appellants’ counsel. It is claimed that this conversation was a privileged communication within § 835.of the Code of Civil Procedure, which prohibits the disclosure by an attorney of any communication made by his client to him, or his advice given thereon in the course of his professional employment. Irrespective of the question of the admissibility of Mr. Ely’s testimony, it seems to be now established by many decisions that where a disinterested person has given his version of a transaction between a deceased person and a party to the action, the bar raised by the statute, § 829 of the Code of Civ. Pro., is not removed so as to permit the party interested in the action to give his version of the same transaction. Ward v. Plato, 23 Hun, 402; Pinney v. Orth, 88 N. Y., 447; McKenna v. Bolger, 49 Hun, 259; 17 St. Rep., 102; Rittenhouse v. Creveling, 38 id., 280.

It is also urged by the counsel for the appellants, that the judgment should be reversed for the error in receiving Mr. Ely’s testimony upon the ground that it was privileged under § 835 of the Code as above mentioned. But the case shows that Mr. Ely was not the attorney for Leurendus B. Ashley. William M. Ashley and Leurendus B. Ashley went to Mr. Ely after the execution of the written agreement, and talked together with him in reference to certain matters pertaining to the estate. So far as appears, they were equally interested in the subjects discussed in the presence of the attorney and in the advice which was given. In these circumstances, the testimony given by Mr. Ely was not privileged within the authority of Hurlburt v. Hurlburt, 128 N. Y., 420; S. C., 40 St. Rep., 436. It has generally been held, as is shown by the opinion in the last entitled case, that the privilege secured by this statute, and by the former common law rule of evidence, does not apply to a case where two or more persons consult an attorney for their mutual benefit, and it cannot be invoked in any litigation which may thereafter arise between such persons. See the cases cited in the opinion of Earl, J.

In respect to the observance by William M. Ashley of the terms of the agreement by which he was to abandon further contest of the probate of the will, we fully agree with the decision of the learned referee, who finds not only that there was a serious and protracted contest over such probate, but that William M. Ashley, after the agreement, abandoned such contest and the will was afterwards admitted to probate. If the rulings of the referee in respect to the testimony above considered were -correct, there was really no evidence of any false representations made by William M. Ashley, and, consequently, there was a failure on the part of the defendants to establish the defense set up in their answer.

The order of the special term granting the plaintiff’s motion for .an additional allowance of costs under § 3253 of the Code of •Civil Procedure seems to have been well supported by the affidavits used upon the motion and should be affirmed. The subject matter involved was the enhanced share of William M. Ashley in Isaac Ashley’s estate, which was obtained through the agreement between him and these appellants. While it is true that the appellants are not required personally to pay over this .additional amount of property to the plaintiffs, yet the judgment requiring the executor of Isaac Ashley so to pay the money to the plaintiffs rather than to these appellants, establishes the -amount in controversy. This litigation has been caused solely by the unsuccessful defense set up by the appellants, and it .seems to be right that under the circumstances they should be required to pay the:costs, rather than that they should be charged upon the estate represented by the executor of Isaac Ashley.

Judgment and order appealed from affirmed, with costs.

Dwight, P. J., and Lewis, X, concur.


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    M. Le Frone Merriman, Resp’t, v. The Keystone Mutual Benefit Association, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

      1. Benefit societies — Requirement of notice of mortuary assessment.
    A notice sent to an insured by a mutual benefit insurance association stated that the mortuary assessment due should be paid “ within thirty days from date of notice, otherwise your policy will be forfeited.” The notice failed to reach the insured until after the thirty days had expired; he then sent the amount due, which the association refused to accept and ■declared the policy forfeited. Held, that the notice was insufficient under chapter 3-11 of the Laws of 1876, as amended, in that it failed to notify the insured that all payments made would become forfeited, and failed to notify him that the policy would be void.
    3. Same—Proof of receipt.
    In the absence of proof of a contract making the mailing of a notice for a mortuary assessment of the same force and effect as the mailing of a notice for a premium, the insurance company must make common law •proof of the receipt of the notice before a forfeiture of a policy can be legally claimed.
    Appeal by the defendant from a judgment entered in Steuben •county April 11, 1891, upon the report of a referee.

      George T. Spencer, for app’lt; Daniel L. Benton, for resp’t.
   Macomber, J.

The plaintiff brings this action as assignee of a policy of insurance, which was issued to one Seth H. Merriman by the defendant on the 26th day of February, 1881. On the last named day, the defendant, in consideration of the sum of $9.25 paid to it by Seth H. Merriman, delivered its policy to the latter on his life, by which, in consideration of such sum and of the annual payment of $6.25 for the next succeeding four years, and thereafter the further sum of $3.25, annually, for five years, together with the payment of mortality assessments according to the charter and by-laws of the defendant, the latter promised to pay to said Merrirnan in nine years from date of said policy, or ninety days, after his death, if death occurred prior thereto", to his executors, administrators or assigns, the sum of $1,000. The insured paid to the defendant all the sums required to be paid by the terms of the policy, including mortality assessments upon said, policy, from. the issuing thereof to the 2d day of January, 1888.

A loss by death having occurred to the company prior to January 2, 1888, an assessment was duly made upon Merrirnan and others; and Merriman’spro rata amount thereof was $1.98. On that day, to wit, the 2d day of January, 1888, the defendant mailed the printed notice of such death and of the cause thereof with such assessment, which notice required the insured to remit to the office of the defendant, by draft, postal order or check, or pay to its authorized collecting agent such assessment within thirty days-from the date of said notice, and that otherwise the policy would be forfeited. This notice, as the evidence shows, and as the learned referee has found, did not reach the assured until the 7th day of February, 1888, owing to some unexplained derangement, of the mail at Hornellsville, M. Y. Immediately on the actual receipt of the notice Merrirnan sent the proper sum of money for that assessment, and for another one of which he had been notified by mail February 1, 1888. But the defendant refused to receive such payment, and insisted that the policy was forfeited, and that the company was no longer bound by the terms thereof.. On the 26th day of January, 1888, the defendant sent to Merriman by mail a notice that his annual premium upon the policy of $3.25 would be payable on the 26th day of February, 1888.

On the 1st day of February, 1888, the defendant notified Merriman by mail of the death of another member of the association and of an assessment against him therefor of $1.98, with directions to forward the same, as in former notices. The notice of January 2, 1888, to pay the mortuary assessment contained the statement that the assessment would fall due on the 1st day of February, 1888.

The learned referee has held, in a very interesting opinion delivered by him, that the fact that the defendant mailed the second mortuary notice on February 1, 1888, was either a waiver of the forfeiture, which had been worked by the failure actually to pay the assessment of January 2nd, or that it was at least, a waiver of the company’s notice to the insured that it would insist upon such forfeiture. While it seems to us that the company, on the 1st day of February, 1888, knowing that the insured had all of that day in which to pay the assesment of January 2nd, was not obliged to wait to see if there was a failure in making such payment; but might proceed with its ordinary and customary business on the assumption that the assured would fulfill his part of the contract; yet we are not disposed to overrule the views of the referee in this particular, as we think that there are other grounds upon which the affirmance of the judgment may be rested without now passing upon this one.

The statute, chap. 341 of the Laws of 1876, as amended by chap. 321 of the Laws of 1877, requires, among other things, the following: “ Such notice shall further state that unless the said premium or interest then due shall be paid to the company or to á duly appointed agent or other person authorized to collect such premium, within thirty days after the mailing of such notice, the said policy, and all payments thereon, will become forfeited and void. * * * Provided, however, that a notice stating when the premium will fall due, and that if not paid the policy, and all payments thereon, will become forfeited and void, served in the manner hereinbefore provided, at least thirty and not more than sixty days prior to the day when the .premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.”

The notice of January 2, 1888, which is now relied upon to work a .most unconscionable forfeiture, does not conform to this statutory requirement. The notice was to pay “ within thirty days from the date of notice, otherwise your policy will be forfeited.”

It failed (1) to notify the assured that all payments which had been made thereon would become forfeited ; and (2) it failed to notify the assured that the policy would be void. Doubtless a person skilled in legal proceedings might infer from this notice that if the company took steps to forfeit the policy, the prior payments made as premiums and mortuary assessments might be forfeited also. But the notice does not say so. Having regard for the intelligence and technical knowledge of the class of persons to whom such insurance is made most attractive, we are unable to say that the notice as actually served conveyed any such idea to the assured. We content ourselves by holding that it did not necessarily convey such idea, and that the assured might, and probably "did, understand from its language that before he could be actually deprived of the benefit of the policy, some step would be necessary to be taken by the company, and that such action might and probably would involve the repayment to him of the premiums and mortuary assessments already disbursed .by him. Phelan v. Northwestern Mut. Life Ins. Co., 113 N. Y., 147; 22 St. Rep., 305.

But there is a further question in this case, and that is whether conformity to our statute in relation to service of notices for the payment of premiums is applicable to the payment of mortuary assessments. The statute was undoubtedly passed for the purpose of requiring insurance companies to jog the memory of persons who, in ordinary matters, are conclusively charged with knowledge of the time when their obligations mature. There seems to have been no further purpose in the enactment than that. The legislature, doubtless for a wise public policy, determined mot to permit a forfeiture, although accomplished by means of the terms of the contract, unless within the period named the-party should be actually notified of his obligation to pay.

But in the case of the mortuary assessments, the insured is not charged directly or indirectly with knowledge of them, because from the very nature of the case they are uncertain both in number and in time. On principle there exists no reason why, in the-case of mortuary assessments, the insurance company should not be driven to common law proof of notice to the policyholders of an assessment before a forfeiture of a policy can be legally claimed. This position finds some verification in chapter 328 of the Laws of 1885, which was supplementary to the statutes above mentioned.- By this law it was enacted that the previous statute-should not apply to policies issued upon monthly or weekly instalments of premiums, provided the notice therein mentioned should be waived in the application for such policies, or in the-additions to such application.

The policy before us required the payment of the mortality assessments according to the charter and by-laws of the association,, and the terms stipulated in the application upon which the policy was issued. But what the charter is, what its by-laws and what, the terms in respect thereto in the application for the policy are, we are not informed, because these matters were not put in evidence before the referee and are not returned to us upon this appeal. We are of the opinion, therefore, in the absence of proof of a contract that should make the mailing of a notice for a mortuary assessment of the same force and effect as the mailing of a notice for the premium, that the defendant must be driven to its. common law proof and must stand or fall thereby. It is showm. that the notice of such an assessment was properly mailed from-the home office of the defendant in the state of Pennsylvania.. From that fact a presumption would arise that the notice which was shown to have been properly addressed to the assured, reached-him in due course of mail. But this presumption has been absolutely overcome by positive evidence which resulted in the finding of fact by the referee, that the letter mailed on the 2d day of January, 1888, did not reach the party addressed until the 7th day of February of that year on account of the derangement of the mails, and not by reason of any act of the plaintiff. It is not shown thát'the plaintiff had any knowledge outside of such notice that an assessment at that time had been made. In the absence,, therefore, of some positive agreement which would enable insurance companies, by mailing a letter in a foreign state containing; a notice of mortuary assessment, to insist upon a forfeiture of a. policy that had continued for seven years out of the nine years, for which it was issued, we think under these proofs that the defendant failed to notify the assured of the assessment mentioned in its notice of January 2, 1888.

For these reasons we think that the judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.