text:
    WILLIAM P. CLYDE and BENJAMIN F. CLYDE, Respondents, v. AMOS ROGERS, Appellant.

      Subpcena for production of books — when it should not be set aside.

    In this action, brought to recover moneys alleged to have been taken from the plaintiffs’ firm by the defendant, while employed by it as a bookkeeper or clerk, the latter alleged that the moneys were taken in pursuance of an arrangement made with one Clyde, who was then the senior partner of the plaintiffs’ firm, by which the defendant was to have one-fourth of the profits. The defendant having subpoenaed one of the plaintiffs to produce the • books of the firm, the subpoena was thereafter set aside on the application of the plaintiffs, based upon an affidavit of one of their attorneys, stating that he believed that the subpoena was served with a view of annoyingthe plaintiffs, and that the books called for were from forty-five to fifty in number.

      Held, that the court erred in granting the application ; that if the subpoena was too broad, the court should have required the plaintiffs to allow the defendant to inspect the books, or have compelled them to produce copies of such portions thereof as were material to the issues.
    Appeal from two orders made at Special Term, one setting aside a subpoena duces tecum, issued on behalf of the defendant to the plaintiffs, and one denying a petition presented by the defendant for leave to inspect and take a copy of the books and documents set forth in the said petition.

      Benjamin F. Tracy, Asa Bird Gardner, Robert L. Reade, for the appellant.

      Samuel Boardman, for the respondents.
   Barnard, P. J.:

It was tbe right of the defendant, before the enactment of the present Code (§ 867), to have the evidence in question. The complaint was for moneys improperly taken from the plaintiff’s firm by defendant, who is averred to have been at the time clerk and book-keeper. The defendant in answer states that one Thomas Clyde was. the senior partner and manager before the time of the taking of the moneys, and that the arrangement made between defendant and Thomas Clyde, on behalf of the firm, was that defendant was to have one-fourth of the profits. The plaintiffs deny this fact. The defendant subpoenas one of the plaintiffs to produce the books of the firm. IJpon an affidavit of one of the attorneys of plaintiff that he believes that the subpoena was served “ with a view of annoying the plaintiff,” and upon an affidavit that the books called for are from forty-five to fifty in number, application was made to set aside the subpoena. An order was made that the witness, upon whom the subpoena was served, “be relieved from the obligation thereof.”

This order cannot be sustained upon the ground that it was issued for annoyance. The defendant denies that fact; Ids'answer, which is sworn to, sets up a fact in defense which, if true, would naturally show the books to be necessary for him on the trial. The defendant swears to this necessity for the books, both personally and by advice of counsel. The order depriving a party of his evidence under the proof before the judge, would be a bad precedent, and the practice should not prevail.

If the subpoena duces tecum was in good faith, then the court should have substituted an inspection, or copies of portions of the books in the place of their production, by the witness.

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

Application was made after the granting of the order in question that leave should.be given to inspect the books. The defendant made a very full affidavit showing the materiality and necessity for the application.

The plaintiffs made affidavit that the books were not material and the order permitting inspection was not granted. This order should not be upheld. It is not proper that the court at Special Term, upon the evidence given, should determine the materiality of evidence. The case to be tried in such a case is stifled without a trial The materiality of evidence should be determined at the trial, where an exception is possible to a ruling of the judge before whom the trial is had. In this case, if the books are material, there is no remedy.

This order should, therefore, be reversed, with costs and disbursements.

Dykman, J., concurred; Gilbert, J., not sitting.

Order of 6th November, 1880, reversed, with costs and disbursements. Order of October 13, 1880, reversed, with costs and disbursements.


source: Caselaw Access Project

author: Barnard, P. J.:

license: Public Domain

text:
    ISAIAH S. CORWIN, Appellant, v. ARLETTA CORWIN, Respondent.

      Dedication of am alley to the me of purchasers of lots from a common grantcrr — right of one to acquire title to a pa/i't of the alley by adverse possession.

    The owner of a tract of land for the purpose of selling the same, caused it to be surveyed and divided into lots, streets and alleys, and made and filed a map thereof from which he sold lots to various persons. The streets and alleys were laid out and dedicated for the use and enjoyment of the purchasers of the lots and their grantees, but were never accepted by the public as such.

      Meld, that where the purchaser of one of the said lots had erected a building extending to the centre of an alley upon which his lot was bounded, and had there maintained it for over twenty years, the right of the purchaser of one of the other lots to maintain an action to have the building removed as an obstruction of the alley, was barred by the statute of limitations.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    In 1832 James Tuthill, owning the land where the village of Jamesport now is, caused it to be surveyed and laid out in building lots, streets and alleys, and had a survey and map made, and sold lots and gave' deeds bounding by the streets and alleys, and sometimes referring to the map. Among others he laid out on said map an alley twenty feet wide, parallel with Main street, and ninety feet westerly from it leading from Front street to Peconic Bay, and bounded the lots on each side of the alley by the alley.
    The plaintiff’s premises are on the northwest corner of Main street and Front street, fronting on Main. The defendant’s premises are on the southwest corner of Main and Front, fronting on Main and bounded west by the said alley.
    The defendant on the rear of her lot has a large building extending more than half way across the alley, which has stood there for over twenty years, and a smaller building which has stood there about two years.
    This action was brought to enjoin the defendant from so occupying the alley, claiming that it obstructs the plaintiff’s right of travel and his view, and shuts out the sea breeze.

      D. W. Reeve, for the appellant.

      N. D. Petty, for the respondent.
   Barnard, P. J.:

The alley in question was never a public highway. It was never accepted by the public as such. The case in this respect differs from Bridges v. Wyckoff (67 N. Y., 130). In that case the commissioners of highways had, before the dedication made, as in this case, by maps duly filed and by conveyances referring thereto, declared the street to be a public highway. In the present case there is but the map filed and the conveyance referring thereto. There is not and never has been any acceptance. The defendant by his deed took the fee of the alley to its centre, subject to the rights of the other grantees of the mapped property to have the alley open for all. (Perrin v. N. Y. Central R. R. Co., 36 N. Y., 120.) Before acceptance of the dedication by the public the parties interested might have revoked the dedication, but this has never been done, except that the defendant’s grantor built on the alley more than twenty years ago a house which is now complained of as an obstruction. Although this was not a formal revocation by all the parties, in legal effect it bars all claims against the defendant. The grantees of other lots had a right of action to remove this obstruction when erected. The alley not being a public highway, was not subject to the rule of law that the trespass was a continuing one, and that prescription from lapse of time gave no right as against the public. It was solely a matter of private right, and as such must be enforced within twenty years after action accrued, and not after that time if there was an adverse holding. The court has found this fact from the evidence, which fully warrants the finding. The defendant has therefore strictly made out a defense. The plaintiff’s right of action has not accrued within twenty years, and therefore the complaint was properly dismissed.

Judgment should he affirmed, with costs.

Gilbert and Dykman, JJ., concurred.

Judgment affirmed, with costs.


text:
    ANDREW McCABE, Respondent, v. THE FATHER MATTHEW TOTAL ABSTINENCE BENEFIT SOCIETY, OF SOUTH BROOKLYN, Appellant.

      Benevolent associations — power of, to make provision for sick members — rights of members may he taken away hy an alteration of the constitution — no notice of such proposed alteration need he given — meetings may he held on Sunday.

    Tlie defendant was incorporated as a charitable and benevolent association, its objects being to promote the cause of temperance, discourage drunkenness, and guard against the consequences thereof, and provide for the widows and orphans of any member of the said society who might thereafter die. At the time the plaintiff joined the society, an article of the constitution provided for the payment of a certain weekly sum to sick members. Thereafter that article was, in pursuance of a resolution offered and adopted, as provided by the. constitution for the amendment of the constitution and by-laws, suspended. The meetings of the society were, as provided in the by-laws, held on Sunday evening.
    The plaintiff having fallen sick, after the article providing for a weekly payment to sick members had been suspended, brought this action to recover the amount which he claimed should have been paid to him thereunder.

      Held, that the society had power, under its charter, to provide for weekly payments to sick members.

      That the right of the plaintiff to receive such payments was liable to be taken away by an alteration or suspension of the article providing for them.
    That the resolution of suspension was not rendered invalid by the fact that it was adopted at a meeting held on Sunday.
    That no notice of its proposed adoption need be given to him.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover five dollars a week for sick benefits, during a sickness of the plaintiff, extending from August 24, 1878, to November 15, 1879, a period of sixty-four weeks, which amounts to $320. His claim rested on an alleged contract with the defendant society, entered into when he became a member, which was embodied in its constitution and by-laws, with a printed copy of which he was then furnished. The initiation fees, dues and assessments, paid by the members, constitute a fund for the payment of sick benefits.
    The answer admits the incorporation of the defendant, its object, the sickness of the plaintiff, the non-payment of sick benefits, and that when he became a member there was in force a by-law obliging it to pay to a sick member five dollars a week during the continuance of his sickness. It is also admitted that the plaintiff has paid his dues, assessments, etc., and has kept himself in good standing.
    The defendant claimed at the trial: 1st. That the contract to pay benefits to sick members is ultra vires, and not binding. 2d. That the by-law in. force when plaintiff became a member, was not in force when the action was commenced, because it had been amended by reducing the amount of sick benefits to three dollars a week, and because the society had passed resolutions suspending the payment of sick benefits, and, therefore, that the plaintiff was not entitled to be paid any sum whatever, or at all events not more than at the rate of three dollars a week. The plaintiff, on the other hand, maintained that a contract, such as that sued upon, is within the scope and spirit of the object of the society, and that the extent of the liability of the society to the plaintiff is to be measured by the contract mutually agreed upon when he became a member, the same not having been modified or rescinded by his assent, nor even without his assent at a lawful meeting.
    The court directed a verdict for the plaintiff.

      B. F. Tracy, for the appellant.

      Wm. Sullivan, for the respondent.
   Barnard, P. J.:

Whatever contract there was between the plaintiff and defendant arose under the charter, constitution and by-laws of the defendant.

The charter provided that the objects of the society were to promote the cause of temperance in the said city of Brooklyn; to discourage drunkenness and to guard against its numerous and destructive consequences; to rescue those addicted to the use of spirituous liquors from a life of disorder and evil associations, which is the .foundation of misfortune, and to provide for thé widows and orphans of any of the members of said society who may hereafter die and leave such widow and orphans unprovided for.”

The constitution and by-laws provided for the payment of certain weekly sums to sick members. I entertain no doubt but that such a provision was fully within the charter.

By the tenth article of the constitution, the society provided for a recision of any article of the constitution (except seven and eight, which do not refer to the subject under consideration), and to any change in the by-laws by resolution, in writing, presented to the society at least one week before action taken upon it. The by-laws provided that the society should meet every Sunday at seven p. m. and that it should adjourn at nine p. m. It does not appear when the plaintiff became sick. The complaint states it to have been on the 21th of August, 1878. The evidence is thus taken:

Q. How long have you been sick ? A. Since I sued the society; I never was sick only three weeks before this suit.

The summons was issued in November, 1879. On July 1, 1877, a resolution was duly passed reducing the weekly payment to such member from five dollars to three dollars per week. On the 2d of September, 1877, the society, to relieve its financial embarrassments, suspended the by-law granting any weekly payments for twelve months from that date.

On the 1st of September, 1879, a new resolution was proposed extending the suspension twelve months further, and on the 8th of September, 1879, it was carried unanimously, and subsequently on September fourteenth reconsidered, and on the 21st of September, 1879, carried continuing the suspension of the by-law for six months from October 1, 1879.

The plaintiff was bound by these changes. The charter gave no right of action. The constitution and by-laws were liable to change. The changes were made in the way pointed out by the constitution and laws.

The plaintiff cannot object that the changes were made on Sunday. It is so provided by the laws, and a society for the purely benevolent purposes provided by the charter could act on Sunday. It is a pure charity to relieve sick members, and the passage of such a resolution on Sunday would be unobjectionable. It could be changed for sufficient reasons on .the same day even if there were no by-laws.

No notice was required to be given to plaintiff. The by-laws provide for none, and they do provide for a change by resolution proposed one week before it could be passed. It was doubtless designed that this delay would operate to give notice to all persons interested. A notice to all the members would be a great burden.

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

GilbeRt and DykmaN, JJ., concurred.

Judgment reversed and new trial granted, costs to abide event.


text:
    In the Matter of the Petition of WRIGHT HALL, Trustee of the Estate of EDGAR HATFIELD.

      Tmi — when invalid — only the trustee of an express trust can apply to the court for leave to resign.

    One Hatfield executed an instrument under seal, whereby he sold and conveyed all his property, both real and personal, to one. Hall, “in trust, nevertheless, for my use, benefit and advantage; that is to say, the said Wright Hall shall manage and control the same in his discretion, and shall, from time to time, give me therefrom such sum or sums as I may need or require, and he shall deem reasonable and prudent, for my comfort, support and interest, and shall pay therefrom such debts as I may contract and desire him to pay, and he shall deem it just and prudent to pay.” Thereafter Hall, having received money upon the sale of real estate belonging to Hatfield, applied by petition for leave to resign the trust and for the appointment of a successor.

      Held, that as the trust was not authorized by the Revised Statutes, Hall was not a trustee within the meaning of the statute (1 R. S., 730, § 69) authorizing the court to accept the resignation of a trustee.
    That the application should be denied, and the money in Hall’s hands be ordered paid over to Hatfield, as being his property.
    Appeal front an order made at Special Term, relieving and discharging the petitioner from his office of trustee.
    On June 28, 1817, one Edgar Hatfield executed and delivered to one Wright Hall an instrument, under seal, whereby he sold, assigned, conveyed and set over unto him “ all my property, both real and personal, and all my rights in action, equitable interests and effects of every name, nature and kind, to have and to hold unto the said Wright Hall forever, in trust, nevertheless, for my use, benefit and advantage; that is to say, the said Wright Hall shall manage and control the same in his discretion, and shall, from time to time, give me therefrom such sum or sums as I may need or require, and he shall deem reasonable and prudent, for my comfort, support and interest, and shall pay therefrom such debts as I may contract and desire him to pay, and he shall deem it just and prudent to' pay. And I hereby nominate, constitute and appoint the said Wright Hall my true and lawful attorney, irrevocable, to do or perform all acts and things pertaining to my property which he shall deem it right, just, wise and prudent to do for my interest and advantage, without interference or molestation on my part; and I hereby ratify and confirm all my said attorney may do in the premises.”
    On June 4, 1880, Hall, having theretofore received the sum of $1,444.51 for the sale of an interest owned by Hatfield in a farm, applied to the court to have his accounts passed and to be discharged from his duties as trustee.

      I. T. Williams, for Edgar Hatfield, appellant.

      M. M. Silliman, for the trustee, respondent.
   Barnard, P. J.:

The petitioner was not a trustee of an express trust under 1 R. S., 728, | 55. Edgar Hatfield conveyed to Hall all his property, both real and personal, “ in trust, nevertheless, for my use, benefit and advantage.” Hall was to manage and control the estate “ in his discretion, and shall, from time to time, give me therefrom such sum or sums as I may need or require and he shall deem reasonable and prudent for my comfort, support and interest, and shall pay therefrom such debts as I may contract and desire him to pay, and he shall deem it just and prudent to pay.” This trust is within neither of the four classes of trusts authorized by section 55. The section (1 R. S., 730, § 69) which permits a court of chancery to accept a resignation of a trustee upon his petition, has reference only to such trusts as are known, as express, under the statute.

As between the parties to the deed the order should not be upheld. There being no legal express trust the money belonged to Edgar Hatfied and should have been paid to him.

The order should be modified, without costs, and money ordered to be paid to Edgar Hatfield.

Gilbert, J., concurred; Dykman, J., not sitting.

Order so modified as to direct the money to be paid to Edgar Hatfield; order to be settled by Barnard, P. J.


text:
    CHARLES CHRISTAL and WILLIAM B. MARSH, as Executors, etc., of ALEXANDER HOAG, Deceased, Respondents, v. BERNARD KELLY, Appellant, Impleaded with CORNELIUS A. BUNNER.

      The surety to an undertaking given to release property from, an attachment — cannot otyeot to an a/mencknent of the summons and complaint, Try consent, in the original action.

    In an action upon an undertaking given to secure the release of property belonging to a firm, from an attachment issued in an action commenced against two of the partners, the surety cannot set up as a defense that the summons and complaint in the original action were, after the giving of the undertaking and before the entry of the judgment, amended, by consent, by the addition of the > name of a third partner.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.
    On 16th July, 1870, the plaintiffs, as executors, commenced an action in this court against William Ohristal and Joseph Struthers to recover the sum of $6,798.52, with interest from 1st January, 1870, being the amount of a promissory note made and delivered to the executors by the firm of Ohristal & Struthers, of which William Ohristal and Joseph Struthers were members. On 18th July, 1870, a warrant of attachment was issued in that action against the property of William Ohristal as a non-resident. On 20th July, 1870, the defendants herein gave their undertaking in discharge of the attachment, which undertaking was approved by a justice of this court on 21st July, 1870, and the attachment was thei’eupon discharged. The defendants in the action answered and set up the non-joinder therein of Charles E. Ohristal, who they alleged was a member of the firm of Ohristal. & Struthers. Thereafter, and on 12th August, 1870, a stipulation in writing was entered into between the attorneys in that action, that the summons, complaint, and all papers, pleadings and proceedings therein might be amended by adding Charles E. Ohristal as a defendant therein, and that the plaintiffs might, within ten days thereafter, serve an amended complaint. On 20th August, 1870, the plaintiffs, without procuring any order of the court therefor’ served upon the attorneys for the defendants, 'William Christal and Joseph Struthers, an amended summons and complaint in which Charles E. Christal was added as a defendant. The three defendants answered the amended complaint. On 2d February, 1872, the attorneys for the defendants in that action gave a written notice to the plaintiffs’ attorneys of the withdrawal of the answer, and on 3d February, 1872, judgment was entered against the defendants therein as by default for $7,918.63. An execution was issued on this judgment against the property of the defendants on 3d February, 1872, and was returned wholly unsatisfied on 21st February, 1872.

      Benjamin M. Stilwell, for the appellant.

      Edward S. Clinch, for the respondents.
   Barnard, P. J.:

A surety upon an undertaking given to release an attachment cannot, after judgment, object to an amendment to the complaint made by consent and without the order of the court adding a defendant. It may w'ell be questioned whether in point of fact the additional defendant made any change in the condition* of the parties. The action was against the members composing a firm, upon a note made by the firm as such and under the firm name, and the omitted defendant was one of the members of the firm.

The omission to obtain the order permitting the amendment is cured by the statute. (2 R. S., 425.)

The objection that by the addition of this defendant without the consent of the sureties the sureties were discharged, is equally without weight. The action was commenced by attachment. The original complaint stated only two persons as being members of the firm sued.

The undertaking in question was given by the two defendants, or at their instance, to release the property levied on. The undertaking took the place of the property. The appellant agreed to pay whatever judgment was recovered against the defendants. Judgment has passed against these two defendants as partners, and also against an additional defendant who was one of the firm and was added for that reason. If the property had still remained subject to the levy, it could not be claimed that it was released because of this addition. There was no new action. It was the same action and upon the same cause of action, and if there had been no objection made by the defendants who were sued, no amendment would have been needed. That the sureties cannot question the regularity or merits of the judgment as settled. (Scofield v. Churchill, 72 N. Y., 565.). That an undertaking given to pay a judgment, to be recovered in an action, binds the sureties to a judgment against any and all the parties. (Gilmore v. Crowell, 67 Barb., 64; Cockroft v. Claflin, 64 id., 464.) The undertaking itself, reciting the fact of the issuing of the attachment, estopped the defendants from questioning the fact of its issue. The objection therefore to the admission of the copy of the attachment on file was harmless. The same can be said as to the admission of the judgment roll. It included the original summons and complaint, and also the amended summons and complaint. If the roll should only have contained the amended pleadings, the annexation of the unamended did not injure the sureties as evidence in this action.

The judgment should therefore be affirmed, with costs.

Gilbert and Dykhan, JJ., concurred.

Judgment and order denying new trial affirmed, with Costs.


text:
    WILLIAM R. McCULLOUGH and BERNARD REILLY, as Sheriff, etc., Respondents, v. GEORGE CARRAGAN, Appellant.
    Attachment— when wages cannot he levied upon under.

    Wages due to a debtor for services rendered within a period not exceeding the sixty days prior to the levy of an attachment, which are necessary for the support of his family, are not the subject of levy under such attachment.
    Appeal from a judgment adjudging the plaintiffs to be entitled to a fund which had been deposited in court, entered upon the withdrawal by the defendant of a portion of his answer after a demurrer, interposed by the plaintiffs to the residue thereof, had been sustained.

      The action was brought to recover a debt attached by the sheriff in a former action brought by the plaintiffs against the defendant.
    W. IT. Seheiffelin & Go. were the original defendants and appeared, deposited the money in court and asked that George Carragan be substituted as defendant in their place. The court granted the application.

      Theron C. Strong, for the appellant.

      John Reynolds, for the respondents.
   Barnard, P. J.:

There is no force in the objection taken by plaintiffs that there is a judgment by default as for want of an answer. The plaintiffs brought this action to recover moneys claimed by defendant upon the ground that the same was his personal earnings within sixty days, and were necessary to the support of defendant’s family. A former suit was commenced by attachment against defendant. A debt from Seheiffelin & Co. to Carragan was attached, and it is this debt which this action is brought to collect. Seheiffelin & Co. having deposited the wages to abide the judgment, Carragan answers denying the attachment and the seizure under it, and also setting up the exemption of the money attached. This part of the answer was demurred to and sustained. The only answer left was a denial of the attachment and this answer the defendant withdrew. Judgment was entered up on the complaint and the overruled portion of the pleading.

The part of the answer demurred to was improperly overruled. If the plaintiff had obtained a judgment, against defendant, the court, upon supplementary proceedings, were expressly forbidden from directing tne judgment to be paid from the ordinary personal earnings of the debtor, made within sixty days next proceeding the order, when the debtor has a family dependent upon him for support. (Code, § 29Y.) The intent of the legislature is plain. A man’s duty to his family is recognized so far that the personal earnings of such a debtor shall not be seized for debt provided the earnings do not extend back beyond sixty days. In other words that a debtor having a family may always have sixty day’s back earnings exempt. If a chattel be exempt by statute no attachment or execution can take it. This debt is not the subject of levy. It could not be taken under a judgment under proceedings supplementary to execution. An attachment can go no further, although the word attachment is not used in the section which exempts personal earnings from the order in supplementary proceedings. It would be an inharmonious result if the debt were exempt from one form of seizure and not from the other. The--, intention of the legislature was that no personal earnings of a debtor, with a family supported by him and to whose support the earnings were necessary, could be deprived by judgment from his earnings within sixty days. Whatever cannot be taken by the judgment cannot be taken by the attachment which precedes the judgment and holds the property for it.

The order sustaining the demurrer should be reversed and an order granted that the demurrer be overruled, with leave to plaintiff to withdraw his demurrer and try the issue upon payment of costs, and within twenty days.

Dykman, J., concurred; Gilbert, J., not sitting.

Order sustaining demurrer reversed and order granted overruling the demurrer, with leave to plaintiff to withdraw his demurrer and answer within twenty days on payment of costs.


text:
    CHARLES R. CRISFIELD, Appellant, v. WARREN BANKS and MARY BANKS, Respondents.

      Married woman — liability of, for property purchased by her.

    When a married woman purchases provisions upon her own credit and taires the title thereto, she is liable for the price thereof though she have no other separate property, and her liability therefor is not affected by the use to which the property may be applied.

    Appeal from a judgment in favor of the defendants, entered upon the report of a referee. The action was brought to recover the .price of meat sold by the jilaintiff to the defendant, Mary Banks, a married -woman, at various times, between May 5, 1873, and July 14, 1876, and for wbicli she had promised to pay him. She was at the time living with the defendant, her husband, and the meat was delivered at their residence.

      S. H. Thayer, for the appellant.

      John H. Clapp, for the respondents.

       See Salmon v. McEnany, 23 Hun, 87.

   Barnard, P. J.:

Mary Banks, although a married woman, became legally liable to pay for goods which she purchased of the plaintiff. That she did purchase the same is a fact established by the evidence and found by the referee. It is not necessary that a married woman have other separate property when she acquires property by purchase. If that which was acquired by purchase was the only separate property she had, she would still be liable to pay for it. By the purchase she created a separate estate, so far as the purchased property made one, and no principle of justice will permit her to escape liability for the payment of the purchase-price. (Cashman v. Henry, 75 N. Y., 103.) Assuming the purchase of the property to have been made by the wife upon her own credit, and that she took the title to it, it was quite immaterial when it was used, or for whose benefit it was applied. Warren Banks is not liable ; he did not purchase the property; no one purchased it for him as his agent; he was the husband of Mary Banks who purchased the property. He would not be liable if the same was applied to the support of his family. He did not become liable by reason of the letters introduced in evidence, whereby he offered to pay the claim in monthly installments. There is no consideration for this promise and it was not accepted.

Judgment reversed and new trial granted, with costs to abide event and order of reference vacated.

Gilbert and Dtkman, JJ'., concurred.'

Judgment reversed and new trial granted, costs to abide event.


text:
    THEODORE FREAN, Respondent, v. THOMAS GARRETT, Appellant.

      Execution issued aftm‘ the lapse of five years from the entry of judgment — when the court will refuse to set it aside— Oode of Oiril Procedure, § 1877.
    Where upon the hearing of amotion to set aside an execution because issued for the first time more than five years after the entry of the judgment, it appears that the facts are such as would have required the court to have granted leave to issue it, if an application therefor had been formally made, it is not an abuse of judicial discretion for the court to refuse to set it aside.

      Qucere as to what constitutes the return of an execution “ unsatisfied or unexecuted,” as those terms are used in section 1877 of the Oode of Civil Procedure.
    Appeal from an order denying a motion to set aside an execution issued in August, 1880,-upon a judgment recovered in May, 1870.

      N. J. Wyeth, for the appellant.

      Thomas G. Swartwout, for the respondent.
   Barnard, P. J.:

Tbe issuing of an execution upon a judgment more than five year's after the recovery of the judgment for the first time, does not of necessity render the execution void. (Bank of Genesee v. Spencer, 18 N. Y., 150.)

It is not disputed but that the judgment is valid and has never been paid in whole or in part. In such a case it is discretionary with the court to refuse to set aside the execution. Where it appears that the facts would require leave to have been given if formally ashed for, it is not an abuse of judicial discretion to refuse to set aside an execution issued without leave. In this case there is the additional important fact appearing that the plaintiff did issue an execution within the five years, and that it was returned by the sheriff “ withdrawn,” without the authority of the plaintiff or his attorney. It is doubtful under the present section of the Code of Civil Procedure (1377), which permits an execution after five years, in case one was issued within five years of the recovery of tbe judgment if returned unsatisfied or unexecuted,” whether in this case the execution was not properly issued without leave of the court. The execution was not executed unless a return of “ withdrawn ” by the sheriff leaves it as if never issued. This is a question not necessary to be decided, as upon the facts of the case there is no reasun why the execution should be set aside.

Order affirmed, with costs and disbursements.

GilbeRt and DyekaN, JJ., concurred.

Order affirmed, with costs and disbursements.


author: Gilbeet, J.: DtKMAN, J.

text:
    MARGARET SWEENEY, an Infant, etc., Appellant, v. APPLETON STURGIS, Respondent.

      Evidence — order for the examination of a <gmty before trial — when it is the duty of the judge to grant the oi’der. ■

    This action was brought by the plaintiff, an employe of the “ Eagle Mill,” to recover damages for injuries alleged to have been occasioned by the negligence of the defendant, who was alleged to be its proprietor; this latter allegation being denied by the answer. After issue joined, the plaintiff applied for an order directing the defendant to appear and be examined, upon an affidavit stating the facts above mentioned, and that the testimony of the defendant was material and necessary to enable her to prove her cause of action, and stating that she desired to prove what interest the defendant had in the said Eagle Mill, and to ascertain whether the said mill was a corporation or a co-partnership.

      Held, that the affidavit was sufficient and that the order should have been granted. (Dykman, J., dissenting.)
    Where the affidavit, presented upon an application for an order for the examination of a party before trial, contains all the facts which the Code of Civil Procedure and the general rules require to be stated therein, it is imperative upon the judge to grant the order.
    Appeal from an order vacating an order made herein by Hon. Justice CooKE, requiring the defendant to appear and submit to an examination before trial, pursuant to section 8JO of the Code of Civil Procedure.
    The order was made returnable on the 16th day of November, 1880, at chambers of the Supreme Court, in the city of New York, before one of the justices of said court; and on said day Hon. Chakles E. DoNohue was holding chambers at said place, and the defendant appeared, and his attorneys objected to said examination, and moved to vacate said order upon the ground that said order was improperly granted, for the reason that the affidavit upon which it was granted did not make out a case entitling the plaintiff to such an order, in that said affidavit did not comply with rule eighty-nine of this court by setting forth the facts and circumstances which show that such examination was necessary and material.
    The said justice thereupon made an order vacating and setting aside the order to examine the defendant as aforesaid.
    The action was brought against the defendant to recover damages for personal injuries, alleged to have been occasioned by his negligence while the plaintiff was employed in the “ Eagle Mill,” the complaint alleging that the defendant was the proprietor of the said mill.
    The affidavit stated among other things “ that the testimony of defendant is material and necessary on the part of the plaintiff, to enable her to prove her cause of action herein and prepare for trial, and that the facts and circumstances which show that the testimony and examination of the defendant before trial, pursuant to the Code of Civil Procedure, is necessary and material as aforesaid, is as follows:

      “ Plaintiff alleges in her complaint that the defendant was, at the time she received said injuries, the proprietor of the Eagle Mill,’ in Water street, city of Brooklyn, and the defendant in his answer denies the allegation, and deponent wishes to examine the defendant to prove what interest the defendant has in said ‘ Eagle Mill,’ and to ascertain whether the Eagle Mill ’ is a corporation or a co-partnership, and deems it necessary so to do in advance of trial of this action, for the purpose of obtaining admissions of said facts in issue, and to prevent surprise upon the trial herein, and to dispense with the necessity of procuring witnesses to establish facts which may be admitted by the plaintiff on' such examination. Deponent further alleges that all the facts above alleged, upon which such examination is sought, are all within the personal knowledge of the defendant.”

      Morris & Pearsall, for tbe appellant.
    Tbe examination of a party to an action before trial, under section 870 of tbe Code of Civil Procedure, is a matter of absolute right and no longer rests in discretion. (Code of Civil Procedure, § 873; Ludwig v. Pariser, 54 How. Pr., 498 ; Gorlett v. De Comean, id., 506; Webster v. Stochwell, 3 Abb. N. 0., 115; Hynes v. MeDermott, 7 Daly, 513 ; Ha/rróld v. The New Yorh Elevated H. H. Co., 21 Hun, 268.)

      Thomas H. Hubbard, for tbe respondent.
    Tbe courts have recently construed tbe provisions of section 873 of tbe Code of Civil Procedure, and it has been settled by authorities. That tbe examination of tbe adverse party before trial is not a matter of absolute right. (Code of Civil Procedure, §§ 872 and 873, as amended in 1879; General Rule No. 89; Chapin v. Thompson, 16 Hun, 53; Bedeh v. The Mayor, 14 id., 79; Levy v. Loeb, 5 Abb. N. C., 157; Greer v; Allen, 15 Hun, 432.)
   Gilbeet, J.:

One of tbe issues in this case arises upon tbe denial in tbe answer of every allegation in tbe complaint not admitted by the answer. Tbe allegation in tbe complaint that “ the defendant was tbe proprietor of tbe Eagle Mill,” is one of those which tbe answer thus puts in issue. That tbe fact co averred by the plaintiff and denied by- tbe defendant is material, and indeed indispensable to be proved on tbe trial, is incontrovertible. The plaintiff clearly has a right to establish such fact by tbe testimony of tbe defendant. (Code Civ. Proc., § 82S.) That being so, he is entitled to examine tbe defendant for that purpose upon or before the trial, provided be complies with the prerequisites prescribed by law. (Id., § 870.) It is no doubt tbe duty of tbe judge to determine that the affidavit presented upon an application for an order for tbe examination of a party before trial, contains all tbe facts which tbe Code arid Rule 89 of 1877 (Rule 83 of 1880) require to be stated therein, before granting tbe order for such examination. But if tbe affidavit be sufficient it is the duty of the judge to grant the order. Tbe power thus vested in the judge is for tbe promotion of justice, and in a proper case suitors may insist on the exercise of it as a matter of right. A strict grammatical construction of ,the Code gives such right, tbe language being “ tbe judge must grant an order,” etc. It flows also from tbe principle of tbe common law, tbat when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized to exercise the authority when the case arises, and its exercise is duly applied for by a party interested and having the right to make the application. (Macdougall v. Paterson, 11 C. B., 755; People ex rel. Otsego Co. Bank v. Sup. of Otsego Co., 51 N. Y., 406, and cases cited.)

Some of the adjudged eases contain expressions of judges which at first blush might be deemed inconsistent with the rule stated, e. g., that “the examination is not a matter of absolute right,” that “the order for it ought not to be granted for inquisitorial purposes,” whatever that may mean; that “ the application must be made in good faith; ” that “ when made after issue joined it must be made to obtain-testimony to be used on the trial,” etc., etc. But in truth there is no inconsistency whatever. The expressions. ref erred to were used in reference to applications wherein the affidavit did not conform to the legal requirement, or in reference .to motions at Special Term to vacate the order for the examination. In either of these cases such expressions are perfectly correct, for an affidavit which falls short of the legal requirement creates no right, and when the right exists, but an abuse of it is shown by affidavit, an order for the examination of a party may no doubt be vacated by the court, after due notice of a motion for that purpose. But we think that when a sufficient affidavit is presented the judge is not justified in refusing the application, unless the affidavit also shows that the party is privileged from giving the testimony sought. The provisions of the Code on this subject have taken the place of the practice of the Court of Chancery relative to bills of discovery. (Glenney v. Stedwell, 64 N. Y., 120.) A cardinal rule of such practice was that the defendant must answer to all facts material to the plaintiff’s case. He was not bound to answer questions of law, nor was he bound to answer questions of fact, unless material not only to the issue but to the plaintiff’s case, for the plaintiff had no right to harass him with idle or impertinent inquiries. On grounds of general policy also, a party was not required to discover matters which would tend to criminate him or to expose him to a penalty or forfeiture, or privileged communications. Subject to such exceptions the law required a defendant to discover the truth of the plaintiff’s claim. (Adams’ Eq. Oh. 1.) I know of no better test to apply in cases of this kind than that which governed the determination of demurrers to bills of discovery under the practice of the Court of Chancery.

In the case before us the affidavit shows that the examination is sought for the purpose among others of proving what interest the defendant has in the Eagle Mill. As before stated, such proof is material and necessary, for without it the action cannot be maintained. The defendant must know what interest he has in the mill, and no good reason for excusing him from disclosing that fact has been shown. A denial in his answer that he is the proprietor of the mill certainly does not excuse or disqualify him from testifying on that subject. He may still be called and examined upen, that subject on the trial of the action as a witness in behalf of the plaintiff, and we think that the right of the plaintiff to have such an examination before, the trial is equally clear. The effect of the testimony may be to disprove the plaintiff’s case. Nevertheless he has a right to examine the defendant, for it cannot be foretold what his testimony will be. A denial in a pleading affords no exemption to the party who made the denial from being examined as a witness to prove the fact denied, for it is the denial only which renders such proof necessary.

"W"e think that it was proper to require the defendant to attend before one of the justices of the city of New York. (Code C. P., § 886.)

The order appealed from must be reversed, with ten dollars costs and disbursements.

Barnard, P. J., concurred.

DtKMAN, J.

(dissenting):

An order was made by one of the justices of the Supreme Court of the second district for the examination of the defendant in this action after issue joined, before himself or one of the justices of this court at the chambers thereof in the county court-house, city of New York. On the return of the order the defendant appeared and objected to the proceedings and applied to vacate the order. The motion was granted and this appeal is from that order. The motion to vacate was based on the insufficiency of the affidavit which, after reciting the case and the pleadings, simply says that the testimony of the defendant is material and necessary on the part of the plaintiff to enable her to prove her cause of action herein and prepare for trial. This is all, respecting the materiality of the testimony. Then it is stated that the facts and circumstances which show that the testimony and examination -of the defendant before trial is necessary and material, are that the plaintiff alleges in her complaint that the defendant was the owner of the Eagle Mill, and the defendant in his answer denies the allegation, and deponent wishes to examine the defendant to prove what interest he has in the Eagle Mill, and to ascertain whether it is a corporation or a co-partnership, and deems it necessary so to do in advance of the trial, for the purpose of obtaining admissions of the facts in issue and to prevent surprise on the trial, and to dispense with the necessity of procuring witnesses to establish facts which may be admitted by the plaintiff on such examination.

The plain object of this examination, as disclosed by this affidavit, is the procurement of information to enable the plaintiff to prepare for the trial of the cause, and especially to ascertain whether the action is properly brought against the defendant. Our view of the Code provisions on this subject is, that they contemplate a deposition of the party in a case like the present to be used as testimony on the trial of the action, and that the affidavit used to obtain the order must not only state in obedience to the requirements of subdivision four of section 872, that the testimony is material and necessary for the party making such application for such purpose or for the prosecution or defense of such action, but must also, in obedience to the requirements of Rule 89 of 1817 (Rule 83 of 1880) of this court, specify the facts and circumstances which show in conformity with subdivision 4 of section 872, that the examination of the person is material and necessary for use on the trial of the cause.

There is no statement in this affidavit that the testimony of the defendant is necessary or desirable for the plaintiff, but only that the same is material and necessary on the part of the plaintiff to enable her to prove her cause of action and prepare for trial, or in other words to enable her to procure testimony to pi’ove her cause of action and prepare for trial. It certainly seems contrary to the spirit of the law to allow a party to harass his adversary with an examination before trial, for the purpose of ascertaining whether he has a cause of action 'against him and, if so, what' testimony he must procure to substantiate the same. Such a practice might open the door to great abuses, and become the fruitful source of oppression and wrong. This affidavit neither states nor shows that the testimony of the defendant is necessary or material for the prosecution of the action, but does show an intent to force from the defendant information which would facilitate the plaintiff in the procurement of testimony to be used against him. The decisions in the cases of Beach v. The Mayor (14 Hun, 79) and Chapin v. Thompson (16 id., 55) meet our approbation, and we think it the duty of the courts to see to it that this power of examination be not perverted to misehevious and unjust purposes.

The power to make the order appealed from is beyond question, and the same was properly exercised.

The order must be affirmed, with costs.

Order reversed, with costs and disbursements.


author: Barnard, P. J.: Gilbert, J.

text:
    PETER W. SCHMITZ, Appellant, v. MARIA L. LANGHAAR, as Executrix, etc., of JOHN LANGHAAR, Deceased, Respondent.

      Guaranty of collection — what proof of inability to collect is sufficient.

    The defendant herein set up as a counter-claim that the plaintiff had transferred to her testator a claim against the estate of James B. Taylor, by an assignment providing, among other things, that “incase the money received by me from John Langhaar cannot be collected from the representatives of James B. Taylor, I agree to pay the same to John Langhaar, with interest,” and sought to recover ' the money so paid by John Langhaar on the ground that she had been unable to collect it from Taylor. Upon the trial it appeared that the claim was presented to and allowed by the executors of the Taylor estate, and afterwards again allowed by a receiver of the said estate, with the exception of one item which was disallowed because the article had never been delivered by the plaintiff ; that the estate was the subject of long protracted litigation, and that the greater part of it was thereby used up and consumed; that the defendant did not incite and could not stop the litigation; that finally a dividend of twenty-five per cent was received upon the claim by the defendant and the other creditors.

      Held, that it sufficiently appeared that the claim could not “be collected,” and that the court properly allowed the defendant to recover upon the counterclaim. (Gilbert, J., dissenting.)
    Appeal from a judgment in favor of tbe defendant.
    This case came on for trial before Mr. Justice Cooke and a jury, at Circuit, on the 29th day of April, 1880, and at the close of the testimony the court directed the jury to find a verdict for the plaintiff, counsel for both parties stipulating that the court could direct judgment for the defendant, if on consideration it was found that it was not indispensable to the right of the defendant to recover, that her testator should have proceeded to judgment and execution against the Taylor estate.
    The court subsequently, on the 11th day of May, 1880, directed that the verdict for the plaintiff be set aside, and ordered judgment for the defendant, to which the plaintiff excepted.
    On the 19th day of January, 1871, the plaintiff sold to the defendant’s testator his claim against the estate of James B. Taylor, deceased, amounting to $7,338, for the sum of $6,650, and assigned such claim to the defendant’s testator by an instrument in writing, in which he guaranteed that in case the money received by him from John Langhaar could not be collected from the representatives of James B. Taylor, he agreed to pay the same to John Langhaar, with interest. The claim was presented to the executors of James B. Taylor, and allowed by them.
    A receiver was appointed of the estate, also a referee to pass upon the claims against the estate in 1874. This claim was presented to the referee and was allowed, with the exception of an item of a mirror, $1,500, which was disallowed, upon the ground that it had never been delivered, and upon the claim as allowed a dividend of twenty-five per cent was paid and received, which was the same per centage received by all creditors, even those who commenced actions against the estate, obtained judgments, and had the receiver appointed.
    The defendant’s claim is resisted; by the plaintiff, on the ground “that said John Langhaar failed to use due and diligent effort to collect the claim against tbe estate of James B. Taylor, deceased, from his representatives.”

      Winchester Britton, for the appellant.

      F. F. Marbury, for the respondent.
   Barnard, P. J.:

The claim of the plaintiff against the defendant is undisputed. The only question is upon the legality of the counter-claim claimed by the defendant. The plaintiff had a claim against the estate of James B. Taylor. He sold this claim to the defendant’s testator and in the assignment it was provided as follows: In case the money received by me from John Langhaar cannot be collected from the representatives of James B. Taylor, I agree to pay the same to John Langhaar, with interest.” The assigned' claim was presented to the executor of the estate and admitted by the executors. Subsequently a receiver was appointed for the estate and a referee appointed to pass upon the claims, and then the claim in question was presented again to the referee, who ordered $1,500 deducted for a mirror not delivered to Taylor in his lifetime, but which continued in the possession of Schmitz, plaintiff. The estate of Taylor was the subject of several protracted and expensive litigations and was in great part eaten up and consumed in costs. The defendant’s testator did not incite this litigation and could not stop it. At the end of the litigation there was but twenty-ñve per cent left for the creditors, although the estate was a large one. This seems sufficient proof that the bill cannot be collected from the representatives of James B. Taylor.”

The defendant did everything required bylaw. The bill'was presented and proven, and became by these means of the same force as if a judgment had been obtained. No execution could issue on the judgment without leave of the court and then only for the distributive share.

While the litigation was pending which would determine the amount of such share, it would probably not have been permitted that -execution should issue. Certainly no charge of negligence can be found on an omission to apply for leave to issue execution. The creditor received bis distributive share, being twenty-five per cent; be would have received no more if he had issued his execution.

It seems to me that the right to recover back the money is clear, and the judgment should, therefore, be affirmed.

DyKMAN, J., concurred.

Gilbert, J.

(dissenting):

The only questions presented relate to the defendant’s counterclaim. The plaintiff promised to pay the defendant’s intestate the money which he had received from the latter, in case such money could not be collected from the representatives of Taylor. That is a conditional promise. It is not in form a guaranty, but in legal effect the liability of the plaintiff is the same as if he had guaranteed the collection of the demand against Taylor’s executors. Counsel for both parties have so treated the contract. It became, therefore, a condition precedent to a right of action on that promise, that all proper legal remedies against Taylor’s executors, to collect the demand against them, should have been prosecuted with due and reasonable diligence, and that such remedies had been ineffectual. Evidence m pais, that such proceedings would have been useless, it seems, does not excuse the omission of them. (Craig v. Parkis, 40 N. Y., 181; McMurray v. Noyes, 72 id., 523; Northern Ins. Co. v. Wright, 76 id., 446.) In Newell v. Fowler (23 Barb., 628) the rule above stated was applied, although the principal debtor had died. The court held the guarantor discharged, because the remedies against the principal debtor a/nd his estate had not been exhausted. In the case before us, the demand, the collection of which was guaranteed, was one against executors. It was assigned to the defendant in January, 1871. He caused it to be presented to the executors, and it was allowed by them. No other step toward thé collection of the demand appears to have been taken until after March, 1876, when the defendant received as his distributive share of Taylor’s estate a sum amounting to twenty-five per cent only of the amount of his demand, and it appears that other creditors of the same class were paid in the same ratio. Perhaps it was not necessary to prosecute a suit to judgment against the executors and obtain the return of an execution tbereon unsatisfied. Assuming that such acts were not essential, it certainly was incumbent upon the plaintiff to use diligence to compel an accounting by the executors of Taylor, and a due administration of the assets belonging to his estate. The evidence tends to show that the amount of such assets exceeded $250,000, but it does not show satisfactorily in what manner those assets were disposed of. Witnesses speak of a receivership in this court in administering which from $150,000 to $200,000 were absorbed in expenses of litigation. But that loose kind of testimony is unavailing to show that the demand against the executors could not have been collected. That fact could have been legally established only by recourse to the means provided by law for enforcing the payment by the executors of the demand due from the deceased debtor.

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

Order setting aside verdict, and judgment, affirmed with costs.


author: Gilbert, J.:

text:
    JOHN ROTHERY and WILLIAM ROTHERY, Respondents, v. THE NEW YORK RUBBER COMPANY, Appellant.

      Power of the court to restrain the unlawful erection of a dam — extra allowance in action for — upon what amount it must be computed, — surveyor’s charges.

    •When a party has wrongfully erected a dam to such a height as to set the water hack upon another’s mill, the court may relieve the injured party hy granting an injunction restraining the continuance of the nuisance or hy ordering the dam to be lowered to such a height as will abate it.
    In an action to compel the defendant to lower the height of a dam and to recover the damages already occasioned thereby, any extra allowance which may be
    . granted in the action must be computed upon the amount of the damages allowed, and not upon the value of the plaintiff’s property.
    In such an action the plaintiff cannot be allowed to include in his bill of costs the amount paid to a surveyor for making a survey and plans to be used upon the trial.

      Appeal from a judgment in favor of the plaintiffs, entered upon tbe .trial of this action by the court without a jury, and from an order denying a motion for a retaxation of the costs.
    This action was brought to recover the damages occasioned by reason of the defendant’s setting the water of the Fishkill creek back upon the plaintiffs’ premises, and also for a judgment or decree directing the defendant to take down its dam to such an extent as to leave the water in said Fishkill creek to pass through and by the plaintiffs’ premises the same as the water flowed in said creek before the building of said dam.
    The court decided that the defendant’s dam was built fifteen inches higher than they had a right to build it, and ordered and decreed that it be taken down to that extent, and fixed plaintiffs’ damages nominally at fifty dollars.
    The defendant objected to the insertion in plaintiffs’ bill of costs of an item of “ ninety-four dollars for surveys, maps, profiles, and making levels,” etc., and also to the granting of an extra allowance of $250.

      Cassidy & Brown, for the appellant.

      H. H. Eustis, for the respondents.
   Gilbert, J.:

The rules of law governing this class of eases are perfectly well settled. The defendants had no right to erect their dam to such a height as to set the water back upon the plaintiffs mill so as to materially interfere with the running thereof. Such a dam is a nuisance, and a court may grant relief to the party injured by granting an injunction restraining the continuance of the nuisance, or by ordering the dam to be lowered to such a height as will abate the nuisance. (Mann v. Wilkinson, 2 Sum., 276; Farnam v. Blackstone Carnal Co., 1 id., 46; Pixley v. Clark, 35 N. Y., 521; Corning and others v. The Troy, etc., Nail Factory, 40 id., 192.)

A decree ordering the defendants within a specified time to lower a dam to a prescribed height, and an injunction restraining them against continuing the dam above such a height after that time, accomplish precisely the same result. There can be no question of the jurisdiction of the court to grant relief in either mode.

With respect to the extent of the relief granted, the necessity of it is wholly a question of fact. There is abundant evidence to sustain the finding of the court below, that the defendants erected their dam fifteen inches higher than they had a legal right to do. Nor am I able to discover any error in the rejection of the eighth, ninth, tenth and eleventh findings which the defendants proposed. The fact that the dam set the water back upon the plaintiffs’ premises from twelve to fifteen inches, was satisfactorily proved. Ocular demonstration is entitled to more weight than theory or argument. The facts contained in those proposed findings being contradictory of the evidence referred to, such proposed findings were properly rejected for that reason alone, for the court is not required to find a fact unless it has been established by uncontradicted evidence. (Beck v. Sheldon, 48 N. Y., 369.)

I think that five per cent on the amount of the recovery was the utmost extra allowance which the court was authorized to make. The subject-matters involved in the action were the nuisance and the damages caused thereby, not the plaintiffs’ property. (Atlantic Dock Co. v. Libby, 45 N. Y., 499; The People v. New York and Staten Island Ferry Co., 68 id., 72.) The item of ninety-four dollars in the bill of costs was improperly allowed. (Haynes v. Mosher, 15 How. Pr., 216; Hanel v. Baare, 9 Bosw., 682; Provost v. Farrell, 13 Hun, 303; Code of Civil Procedure, § 3256.)

The order appealed from should be reversed and the motion granted, with ten dollars costs of the motion and ten dollars costs of the appeal from the order.

The judgment should be modified by reducing the costs accordingly, and as so modified it should be affirmed, with costs.

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

Judgment modified by reducing the costs ninety-four dollars, and as modified affirmed, with costs. Order granting allowance reversed, with ten dollars costs of appeal, and ten dollars costs of motion.


author: Dykman, J.: Barnard, P. J.:

text:
    GEORGE A. SPRING, Appellant, v. ANSONIA CLOCK COMPANY, Respondent.

      Contract to render services to the satisfaction of another — when it may be terminated by the lattes' without assigning any cause therefor.

    The plaintiff and defendants entered into an agreement by which the former agreed to work for the latter for the term of one year for the sum of $1,200, payable in equal weekly installments, and the defendants agreed to pay therefor, “provided his work and services should be to their satisfaction. Should there be any disagreement the installments are to be paid only to the time of such disagreement, unless an amicable settlement can be arranged.”

      Held, that the employment of the plaintiff was only to continue during the pleasure of the defendants, and that the latter might discharge him at anytime without assigning any reason therefor.
    Appeal from a judgment in favor of the defendants, entered upon an order dismissing the complaint, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      L. K. Church, for the appellant.

      Frederick H. Man, for the respondent.
   Dykman, J.:

The plaintiff and defendants entered into the following agreement: “New York, August 17, 1879. I, George Spring, agree to work for the Ansonia Clock Company, as clock case maker, for one year from this date, for the sum of $1,200, payable in equal weekly installments; and the Ansonia Clock Company agrees to pay said Spring as above, provided his work and services shall be to their satisfaction. Should there be any disagreement the installments are to be paid only to the time of such disagreement, unless an amicable settlement can be arranged.”

Under this agreement the plaintiff performed services from its date to the first day of December following, when he was discharged without the assignment of any cause, except he was not the man the company wanted.

This action is brought to recover the damages sustained by the plaintiff by reason of such discharge, and at the close of the plaintiff’s testimony on the trial the complaint was dismissed.

The plaintiff complains of this disposition of the case, and insists that under the contract some cause should have been assigned for his dismission, and that the contract bestowed on the defendant no power to discharge him without the assignment of a reason. We cannot yield assent to such construction. Without the provision for that purpose introduced in the contract, the law secured to the defendant the right to discharge the plaintiff at any time for cause, and it must be assumed that the provision on that subject was inserted in the contract to enable the defendant to exercise more power in discharging than could have been exerted in its absence. The contract of the defendant to pay is subject to the proviso that the services shall be to its satisfaction, and that fact is subject to no determination but the will of the company expressed through the proper agency. The determination of the question whether the services of the plaintiff under this contract were satisfactory, belonged entirely to the company, subject to no control from the courts. The will of the company is the only tribunal to which the question can be referred.

These views are sustained by the case of Tyler v. Ames (6 Lans., 280), in which it was held that a contract to employ an agent for a year, if he “ could fill the place satisfactorily,” might be terminated by the employer when in his judgment the agent failed to meet that requirement of the contract, and it was there stated that the word “satisfactory,” referred to the mental condition of the employer, and not to that of a court or jury.

In the case of Hart v. Hart (22 Barb., 606), where a son agreed to maintain his father during life, and covenanted that if at any time the father should become dissatisfied with living with him the son would pay all reasonable charges for the board of the father, it was held that the father had the right to quit the family of the son whenever he became dissatisfied, without showing any good excuse for leaving, and it was there said that the terms of the contract made the feelings of the father the sole judge of the matter. A similar question has sometimes arisen under chattel mortgages containing a clause authorizing the mortgagee to take possession of the mortgaged property at any time he deems himself unsafe, and the courts have equally held that the question of insecurity was for the determination of the mortgagee, and that he was under no requirement to prove circumstances justifying his feeling of insecurity.

Our conclusion, therefore, is that the defendant was justified under this contract in the discharge of the plaintiff, and the complaint was properly dismissed at the trial.

Judgment affirmed, with costs.

Barnard, P. J., and Gilbert, J., concurred.

Barnard, P. J.:

The fair import of the agreement in writing between the parties was, that the hiring was to be for one year, provided the plaintiff suited the defendant as a workman. The paper did not leave the reason for the discharge open to dispute. In case the defendant should be dissatisfied with plaintiff’s “work and services,” then the right upon plaintiff’s part to wages .should cease. In other words the employment was during the pleasure of the defendant. The complaint was, therefore, properly dismissed and the judgment should be affirmed, with costs.

Gilbert and Dtkman, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.


text:
    ADA L. STARR, Respondent, v. MARY B. G. CRAGIN, Appellant.

      Action for conversion — value of articles must be proved — the hostile feeling of a witness to a party may be proved.

    In an action for conversion the value of the articles must he proved, whether denied in the answer or not.
    Where the plaintiff has testified in her own behalf, the defendant should be allowed to prove statements made by the plaintiff that she would get even with both the defendant and her husband.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover the sum of $781 as damages for the conversion by the defendant to her own use of money, jewelry and other articles of property belonging to the plaintiff.

      Theodore Arnold, for the appellant.

      C. Frost, for the respondent.
   Gilbert, J.:

Upon the question of conversion we think there was sufficient evidence to sustain the verdict. But the courts below committed an error in rejecting evidence of a threat made by the plaintiff against the defendant and her husband to get even with both of them. The competency and materiality of evidence to prove the existence of hostile relations between a witness and the party against whom he is called is well settled. (Newton v. Harris, 2 Seld., 345; Patterson v. People, 12 Hun, 110.) The charge that there was no dispute about the value of the articles converted was erroneous. Yalue must be proved whether denied in the answer or not. (Connoss v. Meir, 2 E. D. Smith, 314.) The exception on this point is vague, but perhaps it is sufficient according to People ex rel. Dailey v. Livingston (79 N. Y., 279). The verdict being a general one, we cannot say that it was not founded upon the conversion of the articles in respect to which there was no evidence of value.

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

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

Judgment reversed and a new trial granted, costs to abide event.


text:
    GILBERT POTTER, Respondent, v. THOMAS R. SHARP, Receiver, etc., of The Long Island Railroad Company, Appellant.

      Negligence — when a bill of lading does not relieve the carrier from the consequences of

    A hill of lading which provides that live stock will only he taken at the owner’s risk of injury during the loading thereof, unless specially agreed to the contrary, does not exempt the carrier from liability for injuries sustained hy a horse while being put upon the car, if the injury he occasioned hy the negligence of the carrier in furnishing unsafe and insufficient accommodations for receiving it.
    Appeal by tbe defendant from a judgment entered upon a verdict, and from an order denying a motion for a new trial made upon the minutes of tbe justice before whom tbe action was tried.
    Tbe action was brought to recover tbe value of plaintiffs borse, which was killed while plaintiff’s agent was endeavoring to lead tbe borse into one of defendant’s cars for shipment; tbe plaintiff claiming that tbe death of tbe borse was due to tbe defendant’s negligence in failing to provide proper accommodations for shipment of horses, and also to tbe negligence of tbe engineer in allowing steam to escape from tbe engine and thereby frightening tbe borse.
    It appeared on the trial that plaintiffs agent, before undertaking to put tbe borse aboard, paid tbe freight and took from defendant’s station agent a receipt or bill of lading conditioned as follows: “Live stock * * * will only be taken at tbe owner’s risk of * * * injury during tbe course of transportation and tbe loading or unloading thereof, unless specially agreed to tbe contrary.”

      Edward E. Sprague, for the appellant.

      Charles JR. Street, for the respondent.
   Gilbert, J.:

We think that tbe case was properly disposed of at tbe Circuit. Tbe borse was killed while being delivered on board tbe car and not in tbe course of transportation. Tbe rule of liability is not as stringent before tbe delivery is complete, as afterwards. Tbe duty of the carrier is to furnish accommodations for the delivery of freight, animate and inanimate, which are reasonably sufficient for that purpose if used in a reasonable way. (Loftus v. Union Ferry Co., 22 Hun, 33.) The case was submitted to the jury in accordance with that principle. The evidence is not before us, but it is stated in the case that the plaintiff gave evidence to show that the accommodations for loading the horse were insufficient; that there was a lack of care and prudence on the part of defendant’s agents in respect thereto; that the accident happened without fault or negligence on the part of the plaintiff, and that the defendant gave contradictory evidence. It is needless to say that the verdict of the jury has settled those questions of fact.

The defendant, however, insists that the acceptance by the plaintiff’s agent, who attended to the delivery of the horse, without objection of a bill of lading with printed conditions on the back of it, one of which was that “ live stock will only be taken at the owner’s risk of injury during the loading thereof, unless specially agreed to the contrary,” exempted the defendant from liability, except for personal negligence. The answer to this argument is that the verdict of the jury establishes the fact that the loss happened in consequence of actual negligence on the part of the defendant, in providing accommodations for receiving the horse which were insufficient, because they were unsafe. Nothing short of an express agreement will release a common carrier from liability arising from negligence. Assuming that the receipt of the bill of lading created a contract between the parties (Hill v. S. B. and N. Y. R. Co., 73 N. Y., 351), yet the defendant gave no consideration for the exemption claimed, nor did the contract refer in express terms to a loss happening by reason of insufficient accommodations for loading the horse. A stipulation exempting the defendant from liability arising from such a cause will not be implied from the general language which is contained in the contract between the parties. (Mynard v. S. B. and N. Y. R. Co., 71 N. Y., 180, and cases cited.) In this case and in the case of Cragin v. New York Central Railroad Company (51 N. Y., 61), the contract provided that the animals should be transported at a reduced fare, and it referred to the particular injury which caused their death. Such a contract is quite different in language and in legal effect from the one before us.

These remarks 'render a discussion of particular exceptions unnecessary.

The judgment and order should be affirmed, with costs.

Dtkman, J., concurred; Barnard, P. J., not sitting.

Judgment and order denying new trial affirmed, with costs.


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    ABRAM WEEKS, Respondent, v. GEORGE HART, Appellant.

      Juror — may dissent from a verdict at any time before it is recorded.

    Upon the polling of a jury one of them stated that he was not satisfied with the verdict. Having stated, in answer to a question put by the court, that he had agreed to the verdict, the court, against the objection of the defendant’s counsel, directed the verdict to be entered.

      Held, that this was error, that the right of a juror to dissent from a verdict to which he has before agreed, is not lost until the verdict has been recorded.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Reginald Hart, for the appellant.

      J. S. Millard, for the respondent.
   Gilbert, J.:

When the jurors were polled one of them responded that he was not satisfied with the verdict. The court asked the juror if he had not agreed to the verdict, and the juror responded that he had. The defendant’s counsel objected to the entry of the verdict, the court overruled the objection and the defendant’s counsel excepted. Whereupon the court directed the verdict to be entered. That direction was clearly erroneous. The jury should have been sent back for further deliberation. The right of a juror to dissent from a verdict to which he had before agreed, is not lost until the verdict has been recorded. Any expression of dissent before that has been done, destroys the unanimity which is essential to make a verdict valid. (Labar v. Koplin, 4 Coms., 550, and cases there cited; 3 Waite’s Pr., 192.)

This error being decisive it is unnecessary to consider the other questions presented.

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

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

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


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    WILLIAM GODDARD, Appellant, v. ROBERT C. TRENBATH, Respondent.

      Settlement of action — an attoi'ney cannot continue the action simply to enforce his lien for colts, without an order of the court.

    Where a defendant in an action has in good faith settled the same with the plaintiff without knowledge or notice of any lien of the plaintiff’s attorney for costs; and has keen fully released and discharged from the cause of action and the costs thereof, the plaintiff’s attorney cannot continue the action for the purpose of enforcing his alleged lien without having first obtained an order of the court allowing him so to do.

    Appeal from an order vacating proceedings had in this action after a settlement thereof, and directing that the same be discontinued.
    The action was commenced on May 29,1879, to recover damages for a conversion of the plaintiff’s goods. On August 25, 1879, the parties settled the action and agreed to discontinue the same. Thereafter the plaintiff’s attorney, the defendant being in default for want of an answer, procured the appointment of a referee to assess the damages, and subsequently applied for leave to enter judgment on his report. Thereafter upon the defendant’s application these proceedings were set aside.

      William H. Mundy, for the appellant.

      Edwin M. Wight, for the respondent.

       See Wilber v. Baker, ante, page 24.

   Gilbert, J.:

Nothing has been shown to impeach the bona fides of the settlement of the claim in this suit by the parties themselves. The defendant had no notice of the lien claimed by the plaintiffs attorney. The only notice proved was one to the defendant’s attorney, and that bears date three days after the defendant had been fully released from the cause of action and costs. It is at least doubtful whether a notice of lien given to an attorney binds his client, but if it does the notice in this case was too late. The defendant having settled the claim against him and obtained a release therefrom, and from the costs of the action fairly and in good faith, together with a promise to discontinue the action, that transaction should be upheld, notwithstanding the alleged lien of the attorney, for the reason that as between the parties it affords a complete bar to the further prosecution of the action.

The remedy of the attorney must be sought by affirmative action in his own behalf, on proper notice to both plaintiff and defendant, to establish his alleged lien, and to set aside the release..

In a proper case the court may give effect to the attorney’s lien notwithstanding .the release, but the attorney has no authority to prosecute the action for the purpose of enforcing his lien, unless he has previously obtained an order of the court authorizing such a proceeding. Much less has he a right to enforce the demand set up in the action in excess of his lien as was done in this case.

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

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order affirmed, with costs and disbursements.


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    JOHN T. HARROLD, Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY, Appellant.

      Damages — in an action for negligence — when the verdict will not be set aside as excessive.

    Upon the trial of this action brought to recover damages for personal injuries alleged to have been occasioned by the defendant’s negligence, evidence was given tending to show that the plaintiff, a man about forty years old, in the full vigor of health, was suddenly injured by the shock of a collision which occurred upon the defendant’s railroad; that besides many lesser injuries the accident produced a concussion of the spine, the result of which has been chronic inflammation of the membranes which envelope the spinal chord; that the disease was a progressive one; that it had already largely impaired his faculties, both mental and physical, and that it would probably progress until paralysis and premature death ensued.

      Held, that a verdict in the plaintiff’s favor for $30,000 would not be set aside as excessive.
    Appeals from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from parts of the order made at Special Term, on the 27th day of May, 1880, denying the motion to set aside the verdict, on the ground of alleged irregularity in drawing a jury and of alleged excessive damages, and from that part of said order making an extra allowance to the plaintiff and from a Special Term order made on the 8th day of July, 1880, denying a motion to set aside the verdict “ because it is for excessive damages,” and from an order made on the 8th day of July, 1880, denying the defendant’s motion for a new trial, and to set aside the verdict because there had been a mis-trial.
    This action was brought to recover damages for personal injuries received by the plaintiff, a passenger for hire on the Elevated Railroad, then owned and operated by the defendant, on the 25th day of March, 1879, at or near Forty-second street and Third avenue, in the city of New York.
    Hpon the trial evidence was given tending to show that on the last mentioned day the plaintiff (a builder) took passage over the said road at Franklin Square, to go to another station on that road at or near Eightieth street, in said city; that he entered one of the defendant’s passenger cars of the “ np trains ” for that purpose ; that when the plaintiff’s train was approaching Forty-second street, and owing to the defendant’s carelessness and negligence, one of the defendant’s “ down trains ” was switched off from the down track upon the up track and collided with the train in which the plaintiff was a passenger, causing a great destruction of the engine and cars, injuring several passengers and severely and permanently injuring the plaintiff.

      William Dorsheimer and John H. Bergen, for the appellant.

      A. H. Dailey and Homer A. Nelson, for the respondent.
   Gilbert, J.:

Neither of these appeals seems to rest on any tenable ground.

I. The appeal from the judgment depends upon the exception taken to the refusal of the judge to charge the jury in the terms of the fifth request of the defendant’s counsel. We think that such refusal was proper for two reasons: 1. The request involved a proposition of fact and not one of law. 2. The proposition of fact stated, depended upon inferences which might be drawn from contradictory testimony.

II. We think that the evidence is insufficient to show that the name of the juror Weber was not called when the jury were impanneled. Mr. Webb was then serving as a juror in another case. The ballot containing his name could not then have been regularly in the box from which the jury in this case was drawn. The mistake probably arose from the omission of the clerk to deposit the ballots containing the names of the jury, ou which Mr. Webb was serving, in the box provided for that purpose, before the jurors in this case were sworn. However that may be, it is enough that the juror Weber was in fact called when the jury was impanneled and served throughout the trial without objection.

III. The right of the plaintiff to recover was not disputed. The amount of damages to be awarded, depended upon the degree of credence which the jury should give to the testimony of the experts on the respective sides. No question of the competency of these witnesses was raised. They were all of them gentlemen of high professional repute; and yet on the turning point, namely, whether the plaintiff had sustained a permanent injury, the opinions expressed by the defendant’s witnesses were diametrically opposed to those to which the plaintiff’s witnesses testified.

This contrariety of opinion ought, certainly, to add to the accumulating distrust of the testimony of experts in cases of this kind. Still the determination of the effect to be given to the testimony belonged exclusively to the jury. The whole subject was submitted to them in an unexceptionable manner. The amount of the verdict shows very satisfactorily that they gave credit to the testimony of the witnesses for the plaintiff.

The case, therefore, is this: A man forty years old, in the full vigor of health, was suddenly injured by the shock of a collision which occurred upon the defendant’s railroad. Besides many lesser injuries, the accident produced a concussion of the spine, the result of which has been chronic inflammation of the membranes which envelope the spinal chord. That disease is a progressive one. It has already largely impaired the plaintiff’s faculties both mental and physical, and it will probably progress until paralysis and premature death ensue. We are unable to say that a verdict of $30,000 in such a case is excessive. That amount, surely, is not more than a liberal compensation for the injury inflicted upon the plaintiff. No bias, prejudice or partiality has been imputed to the jury. The justice who presided at the trial approved the verdict, and we have discovered no reason for setting it aside.

The judgment and order must be affirmed, with costs.

Present — Barnard, P. J.; Gilbert and Dykman, J J.

Order of May 27, 1880, affirmed, with costs and disbursements. Order of July 8, .1880, denying motion to set aside verdict for excessive damages, affirmed. Order of July 8, 1880, refusing to set aside verdict because there had been a mis-trial, affirmed.