text:
    Mary Mahoney, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Master and servant—Negligence.
    Plaintiffs intestate was a brakeman in defendant's employ, and was-killed while coupling cars. He had, at Albion, coupled eleven cars loaded with stone to the train. These cars were uncoupled at Lockport to allow other cars to be taken out, and upon attempting to recouple them he was crushed by the cars coming together, the drawhead of one of the stone cars being forced under it by reason of the loss of the iron washers or plates intended to prevent such an occurrence. There was no proof as to-when they came off the rod, and intestate had not reported the car as out of order. Defendant’s inspectors had examined the car on its way to Albion and found it all right. Held, that plaintiff failed to make out a case against defendant, and should have been nonsuited, or a verdict directed against her.
    Appeal from a judgment entered in Niagara county, December 28, 1891, in favor of the plaintiff against the defendant, for $4,-445.07 damages and costs, and also from an order of the special term denying defendant’s motion for a new trial on case and exceptions.

      Charles A, Pooley, for app’lt; Richard Crowley, for resp’t.
   Lewis, J.

The deceased was in the defendant’s employ as a brakeman upon a freight train at the time he received the injuries which caused his death.

On the morning of the 15th of April, 1890, he left the city of Rochester upon a freight train for the city of Buffalo, by way of Albion and Lockport.

At the village of Albion there was attached to the train eleven cars loaded with stone for Buffalo.

The deceased coupled these cars onto the train.

When the train arrived at Lockport, he uncoupled the stone cars taken on at Albion, and took out of the train some cars ordered left at Lockport.

In attempting to again couple on the Albion cars the deceased was caught between the bumper of one of the cars and the draw-head of the other car, and was crushed so that he died in a short time.

Upon investigation, it was found that the drawhead on the end of the stone car, which the deceased had coupled onto the train at Albion, and which he was again attempting to couple to the other cars at Lockport when he was injured, was out of order.

Forming part of this drawhead, as originally constructed, were four iron washers or plates.

Bach of these plates was about two inches in thickness.

An iron rod, forming part of the drawhead, passed through these plates and was attached to a timber under the car.

The office of the plates was to prevent the drawhead from being forced too far under the car when it should come in contact with the drawhead of another car being coupled to it.

These plates were found to be missing from the rod.

The result was, when the two sections of _ the train came together, the defective drawhead was forced so far under the car as to permit the two cars that were being coupled to come so near together as to crush and kill the deceased, he having stepped in between them to effect the coupling.

It is somewhat doubtful if the plaintiff proved the deceased free from negligence contributing to his injuries.

Assuming, however, that the jury was justified in finding the deceased free from negligence contributing to his injuries, we think a new trial must be granted because of the failure of the plaintiff to establish that the defendant’s negligence caused the death of the intestate.

When the plaintiff rested her case, the only evidence she had adduced which it can be claimed tended to show negligence on the part of the defendant was, that the drawhead was found immediately after the accident to be out of order as stated.

There was no evidence showing or tending to show when or how the plates mentioned got off the rod.

Mahoney had that same afternoon, at the village of Albion, coupled this same drawhead, which was found to be out of order at Locbport, to the train.

If it was then out of order, it was his duty to immediately report it to the conductor of the train.

It is a reasonable inference that the plates were in their proper-place when Mahoney effected the coupling at Albion, and if so,, they must have been forced off after the coupling was effected at Albion that afternoon.

These plates were subjected to the severe strain of drawing-eleven heavily loaded cars.

The car originally had a drawhead at each end constructed, alike.

The plates upon the drawhead at the other end of this crippled car were found in good condition after the accident.

The foregoing is a brief statement of the evidence adduced by the plaintiff when she rested her case, and the defendant moved for a non-suit.

The proof of these facts, we think, did not throw upon the defendant the burden of showing how the defect in the drawhead occurred. 2 Thompson on Negligence, 1053. “ In an action by

an employee against his employer for injuries sustained by the former in the course of his employment, from defective appliances, the presumption is that the appliances were not defective, and. when it is shown that they were, then there is a further presumption that the employer had no notice or knowledge of this fact and was not negligently ignorant of it. Therefore, in such actions-the onusprobandi is upon the plaintiff to negative these presumptions in order to make out suprima facie case.”

It is stated in De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y., 125, that: “An employee in the service of a railroad corporation assumes the risks and dangers incident to the business in which he is engaged, and while the company is bound to furnish suitable and safe machinery and appliances for his use, having done-so, it is not liable for an injury resulting from their breaking or failure, unless it is shown that the corporation has been guilty of negligence in regard thereto.”

To the same effect is Painton v. The Northern Central Railway Co., 83 N. Y., 12, and C. C. & I. C. R. W. Co. v. Troesch, 68 Ill., 546.

The authorities referred to by the respondent’s counsel as holding a different doctrine are eases of injuries to passengers, where a very different doctrine obtains.

The defendant’s motion for a non-suit at the close of the plaintiff’s case being denied, the defendant introduced evidence tending' to show that it was the duty of a brakeman to report to his conductor any defect he may at any time find in the cars of a train, and that the deceased did not report this drawhead as out of condition; this defective car was not ' owned by the defendants, but was being used by it on this occasion ; it was taken into the defendant’s repair shop at Rochester on the 6th of March, 1890; one of its draft timbers being out of order, it was then bolted up; the car was otherwise in good repair at that time; after being thus repaired it was sent east to Lyons, and delivered to the Fall Brook Railroad Company; it returned on the 7th of April and passed through Rochester to Albion ; as it passed through Rochester it was inspected by a corps of inspectors employed by the defendant in that city, and was not reported out of order; had it been out of condition, it was the duty of the inspectors to thus report it; when it came into defendant’s use it was accepted by the defendant’s inspectors as in good condition; it was four or five years old; this car, with others, was taken from Rochester to Albion on the 7th day of April, 1890; and was there loaded with stone; it remained at Albion until it was taken on the day in question with ten other cars loaded with stone to Buffalo.

To discover the absence of these plates it was necessary to look under the car.

If the burden of proof was upon the defendant to show that the car had been properly inspected and was in good condition when taken at Albion, it must be held, we think, that it furnished the requisite evidence to establish these facts.

It was, as-we have seen, inspected at Rochester, when on its way to Albion.

It • was there loaded with stone, and was apparently in good condition when coupled to the train at Albion for Buffalo the day of the accident.

The drawhead in question being subjected to the strain of drawing the eleven heavily loaded cars, the only reasonable conclusion is that these plates were crushed by this severe strain, or in some way forced off the rod.

No other explanation of the defect would seem to be justified by the evidence.

We find nothing in these facts justifying the jury in holding that the defendant was guilty of negligence.

The respondent suggests that it was the duty of the conductor of the train to examine cars, and that he neglected his duty in that regard on this occasion.

Conductors, as well as brakemen, are expected to keep a general supervision of their trains, to see that crippled cars are cared for, and are not used when in a dangerous condition.

The conductor testifies that he performed his duty in that regard on the day in question, and there was no evidence contradicting his testimony.

But if a conductor or hrakeman neglect his duty in keeping watch of cars, and a co-employee on the train is injured in consequence of such neglect, he would have no cause of action against the company, for it would be the negligence of a co-employee that caused the accident. We think the plaintiff failed to make out a cause of action against the defendant, and that she should have been non-suited or a verdict directed against her, and that the judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.

Dwight, P. J., and Macomber, J., concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Charles Jones, Resp’t, v. Orin S. Bacon, Ex’r, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Indemnity—Evidence.
    In an action on an alleged agreement by defendant’s testator to protect certain notes of plaintiff’s son-in-law which testator induced plaintiff to endorse and to save him harmless therefrom, the only witness to the transaction who survived besides the plaintiff was the son-in-law. Plaintiff was permitted to give evidence to show that testator and said son-in-law speculated in hops, and that testator refused to accept a good offer for the hops which would have paid off all the notes. Held, error; that such evidence was foreign to the issues, and was calculated to excite sympathy for plaintiff and his son-in-law in the minds of the jury.
    Appeal by defendant from a judgment entered upon the verdict of a jury in Ontario county • against the defendant for $16,369.69 damages and costs, and from a special term order denying the defendant’s motion for a new trial made upon a case and exceptions.

      Henry M. Field and Frank Rice, for app’lt; William H. Smith, for resp’t.
   Lewis, J.

We think a new trial should be granted in this case because of the admission of improper evidence.

Plaintiff’s cause of action as stated in his complaint is that on or about the second day of April, 1885, one Sherman Kingsbury was indebted to the firm McKechnie & Company, who were bankers in the village of Canandaigua, New York, in the sum of $15,000.

That the firm was composed of James McKechnie, now deceased, Alfred Denbow, now deceased, and Jessie McKechnie. That on the 2d day of April, 1885, the said James McKechnie, who was then a member of said banking firm, applied to the plaintiff to endorse a promissory note made by Kingsbuiy for the sum of $15,000.

The note was to be discounted by this banking firm for the benefit of Kingsbury. The plaintiff at first refused the request. That thereupon McKechnie stated, promised and agreed that if the plaintiff would endorse said note and such renewals thereof as might be required from time to time by Kingsbury in his business, and also endorse such other notes as might thereafter be made by Kingsbury in his business and discounted by the bank, and such renewals thereof as might be required by Kingsbury in his business, that he, James McKechnie, would protect the plaintiff and save him harmless from all loss or liability incurred by the .plaintiff by reason thereof.

That, relying solely upon said agreement of McKechnie, he endorsed said $15,000 note, and thereafter he endorsed renewals of the said $15,000 note.

That, relying upon such promise and agreement, he endorsed other notes and renewals of said other notes, amounting to the sum of $12,000.

And that thereafter in the month of July, 1888, James Mc-Kechnie again applied to the plaintiff and requested him to endorse Kingsbury’s note for $20,000, dated July 12, 1888, payable to McKechnie & Company, in renewal of the aforesaid note of $15,000, and covering other indebtedness of Sherman Kingsbury to the bank; that the plaintiff at first refused to endorse it; that thereupon McKechnie represented that Kingsbury was all right, and liis paper was all right, and agreed with the plaintiff that if he would endorse the note he would never have the same to pay or have any trouble or expense by reason of his endorsing the same, but that he, said James McKechnie, would pay the same and take it up and save the plaintiff harmless from all payments, loss or damage caused or incurred by reason of his having endorsed said note.

That the plaintiff, relying upon the promise, did endorse the note.

Then follow allegations that Kingsbury was at the time insolvent, to the knowledge of James McKechnie, and that the plaintiff thereafter, at the request of McKechnie, and upon his promise to save the plaintiff harmless therefrom, executed and delivered to the bank mortgages upon Ms real estate and chattel mortgages to secure the payment of the notes so endorsed by him.

That Kingsbury did not pay the notes and McKechnie failed and neglected to pay or take care of them.

That by reason of the failure of Kingsbury to pay said notes, and the failure of McKechnie to keep his agreement, the mortgages given by the plaintiff were foreclosed by the firm of Mc-Kechnie & Co., and that plaintiff’s real estate was sold thereon and was lost to the plaintiff, to his damage in the sum of $30,000.

That on the 12th day of December, 1889, James McKechnie died, leaving a last will and testament, whereby he appointed the defendant Crin S. Bacon and Alfred Denbow his executors; that Denbow died on the 5th day of February, 1890, leaving the defendant Crin S. Bacon a surviving executor under the will.

The defendant’s answer put in issue all of the allegations of the complaint as to the agreements of James McKechnie. All of the notes comprising the debt to the bank were discounted for Kings-bury’s benefit.

Jones was an accommodation endorser of some of the notes and an accommodation maker of the balance.

The alleged agreements upon which the plaintiff relied to establish his cause of action were claimed by the plaintiff to have been made in the immediate presence of himself, Kingsbury, McKechnie and Alfred Denbow, and of no one else. •

Plaintiff’s cause of action, if he had one, accrued before the death of McKechnie and Denbow.

His action was not brought until both McKechnie and Denbow had died.

The witness upon whom plaintiff mainly relied to prove what occurred at the time the alleged agreements were made was Kingsbury.

Under the circumstances, his testimony is justly subject to suspicion and criticism.

Other witnesses were called' by the plaintiff to corroborate Kingsbury’s testimony, but their evidence did not materially strengthen the plaintiff’s case.

At the time of the making of the contract, in July, 1888, on which plaintiff mainly relies to sustain his cause of action, he was liable to the bank as endorser upon the notes of Kingsbury to the amount of about $18,000.

His claim is that McKechnie by his promise to plaintiff obligated himself to indemnify and save him harmless from his liability as such endorser.

That in effect McKechnie became Kingsbury’s endorser.

If he made such an agreement, his estate is bound to perform it.

There is much in the evidence which tends to excite grave suspicion as to the bona fid.es of the plaintiff’s claim. Kingsbury testifies that McKechnie stated when urging the plaintiff to endorse the notes that it was a mere matter of form; that he wished plaintiff to endorse because the rules of the bank required an endorser on paper before it would discount it, but that Mc-Kechnie would take care of the paper and save plaintiff harmless, etc.

Yet the plaintiff claims that after being told this, and on the 19th day of January, 1889, more than six months after his endorsement of the $20,000 note, upon the mere statement of Kings-bury that the bank required him to give a mortgage upon his real estate as collateral security to his endorsements, he consented and gave a mortgage upon his farm, and again, on the 20th day of March thereafter, he gave to the bank a mortgage upon his home in Canandaigua for the same purpose, and these were followed by chattel mortgages upon his personal property as collateral to three notes of $1,000 each, which he gave for the accommodation of Kingsbury, and which were discounted by the bank.

It is difficult to reconcile the giving of these mortgages with the claims now made by the plaintiff.

Such a claim should be established by very satisfactory evidence.

It should be carefully scrutinized and admitted only on very satisfactory proof. Kearney v. McKeon, 85 N. Y., 139.

Evidence of a doubtful or improper character should be carefully excluded.

Kingsbury is plaintiff's son-in-law. He married plaintiff’s daughter and only child twenty-three years before this trial, and during all that time plaintiff was a member of Kingsbury’s family.

The defendant objected to Kingsbury testifying to what occurred at the time of the making of the alleged agreement because of the death of McKechnie. Thereupon plaintiff’s release of all claims against him, etc., was read in evidence. While he may have been a competent witness, he was practically an interested witness.

The plaintiff was permitted, under the objections and exception of the defendant, to show that during the time the events mentioned were transpiring Kingsbury was engaged with James McKeehnie and Alfred Denbow speculating in hops.

Plaintiff offered in evidence a written contract made on the 7th day of February, 1889, between James McKeehnie, Alfred Ben-bow and Sherman Kingsbury, which recited that in the month of April, 1885, the parties to the contract entered into a paroi contract for the purchase of hops; that McKeehnie and Denbow were to furnish the money to pay for the hops. Kingsbury was to make the purchases and. furnish storage for them.

The hops were to be and remain the property of McKeehnie and Denbow, and were to be sold at their option; and as compensation for the services of Kingsbury and for the use of his storehouse, he was t'a receive, when they were sold,- one-half of the net profits arising out of the transactions.

The contract was received in evidence over the objection and exception of the defendant.

Plaintiff gave evidence tending to show that there had been purchased a large quantity of hops under the agreement mentioned ; that they were in Kingsbury’s storehouse; and he offered to show that the parties had an opportunity to sell the hops at a very large profit.

The evidence was objected to by the defendant as incompetent, immaterial and improper.

Thereupon the plaintiff asked the witness Kingsbury: “ Was there an occasion when you received a telegram which you showed to McKeehnie ?”

The question was objected to, and plaintiff stated that he proposed to show that Mr. Kingsbury received a telegram offering forty cents a pound, there being a large amount on hand in the storehouse; that he went with it directly to McKeehnie; that McKeehnie said: “ Hold on ; I want to send and get farther information from Hew York.”

A friend with him at the time advised Mr. Kingsbury to sell, and Mr. McKeehnie declined to permit him to sell.

A few days subsequently this friend who was with McKeehnie met him, and said to him: “ I think you made a mistake in not permitting Mr. Kingsbury to sell those hops at forty cents,” and his reply was: “Yes, perhaps I did. Hops have gone down. Perhaps I made a mistake in not letting him sell; but I shall take care of Sherm,” (meaning Kingsbury) following it by saying (figuring it up with this friend), “ that if he had been, allowed by him to have made the sale at forty cents it would have paid all of Kingsbury’s indebtedness, and he would have had something left beside.”

By the Court: That is, if he had been allowed to sell the hops? Mr. Smith: At forty cents a pound it would have cleared up Mr. Kingsbury entirely of his indebtedness. That this was prior to the date of the giving of the mortgage before the endorsement of the $20,000 note, in July, 1888.

The Court: Do you propose to follow it up by showing by outside parties that he agreed at that time to take care of this indebtedness? Mr. Smith: Yes, sir.

The Court: I do not receive it as having any bearing upon that contract. If I receive the evidence it will be for the purpose whether it threw any light upon the reasons why he made this agreement with Mr. Jones. I think I will receive it. Exception. Offer withdrawn.

The plaintiff thereupon asked the witness (Kingsbury) tostate whether he showed Mr. McKechnie a telegram?”

The defendant' objected to the evidence as incompetent and immaterial.

The objection was overruled and defendant excepted, and the witness testified that he did ; that he read him the telegram; that the telegram was lost; that the telegram read making an offer of forty cents a pound on all the hops we had, cash, to pay for them as fast as they were taken out of the warehouse. That David C. Ben ham was present; that McKechnie replied that he would hold on; wouldn’t sell. He wanted to hear from some Hew York party in regard to them. He decided he wouldn’t sell; they would do better; I insisted on selling. I wanted to sell the hops. Plaintiff was permitted to prove by Benliam, under the objection • and exception of the defendant, the receipt of the telegram about the sale of the hops and that Mr. McKechnie refused to allow them to be sold and afterwards stated to the witness Benliam that he was sorry, but that he was going to stand by Kingsbury, and that if he had allowed the sale to have taken place it would have paid all of Mr. Kingsbury’s debts. The evidence fails to show when this offer to purchase the hops was made. Benliam testified that he thought it was in 1887, 1888 or 1889, but was not certain. If it was in 1889, it was after both contracts were made, and necessarily could not have any bearing. The admission of this evidence as to the offer of forty cents a pound for the hops is sought to be justified upon the theory that it threw some light upon the motives of McKechnie in making the promise to indemnify the plaintiff. The plaintiff was not in any way connected with the hop contract.

The obvious purpose and intent in the introduction of this evidence was to get before the jury’s mind the fact that the refusal of McKechnie to accept the offer for the hops insulted in the failure of Kingsbury to realize a large profit out of the transaction, a sum large enough to have paid all of his indebtedness, and thereby relieving the plaintiff from his liability as Kingsbury’s endorser. It naturally excited in the minds of the jury a sympathy for Kingsbury and the plaintiff, and' a prej udice against McKechnie.

It is apparent to any one familiar with the trial of causes before juries that it probably had a serious and damaging effect upon the defendant’s case. Jurors not accustomed to intelligently discriminate as to the legitimate bearing of facts in the decision of causes might well have • failed to discriminate between an apparent equitable claim of Kingsbury for damages arising out of the transaction, and the right of the plaintiff to such damages.

This evidence was foreign to the issues that were being tried.

It afforded an opportunity for the jury to speculate upon and use it as a basis for their verdict.

It was, we think, incompetent evidence and prejudicial to the defendant’s case.

And, because of its admission, the judgment and order appealed from should be reversed and a new trial granted, costs to abide the event

Dwight, P. J., and Macohber, J., concur.


text:
    John O’Day, App’lt, v. Byron Chaffee, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Bills and notes—Bohemian seed note—Fraud—Evidence.
    In an action upon a Bohemian seed note, given in payment for seed oats, evidence that the vendor company failed to deliver the oats is competent as bearing on the question of fraud.
    2. Same.
    A question to defendant as to whether another note given on the same transaction, but to another person, was delivered up without any payment, is incompetent and improper.
    Appeal from a judgment of the supreme court entered in the office of the clerk of Brie county, October 19, 1891, and from an order denying the plaintiff's motion for a new trial.

      Richard Crowley, for app’lt; Frank C. Laughlin, for resp’t.
   Lewis, J.

This action was brought to recover upon a promissory note made by the defendant, on the words and figures following : “ Clarence, N. Y., October 17, 1889. On the first day of December, 1890, I promise to pay to W. J. Curtiss, or bearer, for seed grain, one hundred dollars, at Tabor & Wiltse’s, of Akron, N. Y. Value received, with interest.”

The defendant admitted the making of the note, but denied that the plaintiff was a bona fide holder thereof, and claimed that it was obtained from'him by fraud. The note is what has come to be known in the rural districts of this state, and to the courts, as a Bohemian Seed note. It was obtained from the defendant by Mr. W. J. Curtiss, who claimed to be acting ns the agent of a corporation by the name of the Pennsylvania Seed Company, Limited. The note was given by the defendant in part payment for twenty bushels of oats to be delivered to the plaintiff at the price of fifteen dollars a bushel.

It is not necessary to rehearse the scheme and plan of opera-tians of this seed company, through whose agent this and similar notes have been obtained, for the main and principal features thereof were fully explained to the defendant before he consented to give the note. He fully comprehended them, and evidently thought he discovered an opportunity to make some money, provided the company carried out its agreement witli him. There was, however, sufficient evidence given upon the trial that a fraud was practiced upon the defendant by the seed company’s agent in obtaining the note, so that the burden of proof was put upon the plaintiff of satisfying the jury that he was a bona fide holder of the note for value.

The circumstances.under which the plaintiff came into possession of the note, as related by him, were such as to justify the jury in finding that he was not a bona fide holder for value. His uncertainty while testifying as to the amount that he claimed to have paid for the note, the fact that he purchased it just before it fell due and so long after it was given, and other circumstances disclosed in his testimony, tended to throw doubt in the minds of the jury as to his having in fact ever purchased the note. The evidence that the company failed to deliver the oats was competent as bearing upon the question of fraud on the part of the company; for if it did not intend, when it made the agreement, to deliver the oats to the defendant, it was guilty of a fraud.

The declaration of Mr. Dancer that “ the company had bursted up and was a swindling operation,” was not competent evidence; it was the statement of a third party, made long after the giving of the note in suit; but the error of its admission was cured, for when it came to be known when the statement was made, and it was made to appear that it was made long after the giving of the note, upon motion of plaintiff’s counsel it was stricken out of the case.

It had appeared upon the trial that at the time of the making of the note in suit the defendant executed and delivered to Mr. Dancer a promissory note for the sum of $200, which, with the hundred dollar note in suit, was in full payment for the twenty bushels of oats. The question propounded to the defendant by his counsel, “Did Mr. Dancer afterwards surrender up to you the two hundred dollar note held by him, without any payment,” was incompetent and improper. Its vice consisted, not in the fact that Dancer delivered the note to the defendant, but that he surrendered it without its being paid. The answer was, “He did deliver the note to me.” He did not testify that it was surrendered- without payment.

We have examined all the exceptions raised by the appellant’s counsel and fail to find anything in them justifying a reversal of the judgment.

We think there was sufficient evidence to sustain the verdict of the jury, and the judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


author: Fursman, J.

text:
    The People, Pl’ffs, v. The Ulster County Savings Institution, Def’t.

      (Supreme Court, Special Term, Ulster County,

      Filed April, 1892.)

    1. Banks—Resumption op business by insolvent savings bank.
    The court has power, in a proper case, where the assets of a savings bank have, from any cause, shrunk below its liabilities, to allow it to resume by scaling down its liabilities.

      2. Same.
    Where a long established savings bank meets with losses by the misappropriation of funds by its treasurer, so that a deficiency of 15 per cent, of its deposits results, and it appears that so far as can be learned it is the universal desire of the depositors that its business may be resumed by scaling the deposits to that extent, a proper case for the exercise of such power is presented.
    Application for leave to resume business.

      Kenyon & Sharpe (A. Schoonmaker, of counsel), for deft; L. K. Maynard, deputy att’y-gen, for pl’ff; C. M. Preston, bank sup’t, in person; John E. Van Etten, for certain depositors; Linson & Van Buren, for receiver.

       Affirmed by the court of appeals on this opinion. See 45 St. Rep., 933.

   Fursman, J.

The defendant was incorporated as a savings institution by act of the legislature, passed April 12, 1851. Laws of 1851, chapter 152.

It has accumulated up to the commencement of this action deposits to an amount exceeding two millions of dollars. Its business affairs have been managed by thirteen trustees, except that by death and resignations the number at this time is reduced to ■eleven. The treasurer and assistant treasurer were appointed in 1867, and have held their respective offices continuously from that time down to the time of their removal in September and October last, respectively. About the 17th of September, 1891, a defalcation, resulting from the misappropriation and abstraction of its funds on the part of the treasurer and assistant treasurer, was discovered. Thereupon, at the instance of the trustees, the superintendent of the banking department began an official examination of the affairs of the bank, and afterwards the bank was closed and a report of its condition made to the attorney general pursuant to statute. Afterwards, this action was commenced by the attorney general for the dissolution of the bank and the appointment of a receiver, and such proceedings were had that a temporary receiver was appointed, who duly qualified and entered upon the discharge of his duties.

A careful and accurate examination of the affairs of the bank by the superintendent disclosed that on the 1st day of November last its liabilities were $2,474,465.89, and its assets $2,108,547.39, thus leaving a deficiency of $365,918.50. This deficiency is less than fifteen per cent of the liabilities of the bank, and it is now ■claimed and insisted that the bank can resume business as a solvent institution upon a basis of eighty-five per cent of its liabilities, and application is made to this court for permission to do so. ’

This application is made upon petitions on the part of all the trustees of the bank, and of the receiver and by depositors representing upwards of $900,000 of deposits.

The petitions show that the total number of depositors is in the neighborhood of 6,000, and that of those who are not petitioners a large number of depositors represent small amounts, who are widely scattered over Ulster county, some of whom reside in other counties, and also in other states, and that deposits to the amount of upwards of $150,000 are represented by persons whose residence and address cannot be ascertained. The petitions also show that so far as can be learned it is the universal desire of the depositors that the business of the bank shall be resumed, and it is asserted by counsel, and remains undisputed, that no depositor has expressed any unwillingness.

A careful study of the situation as presented by the petitions, by the official certificate of the superintendent of the banking department, and by the various arguments and suggestions of counsel, induces in my mind the belief that such a course will be beneficial to all parties in case it is found that there is power in the court to authorize it. Such a course will continue in existence a long established and hitherto useful institution, which has only now been impaired by the extraordinary misconduct of its treasurer and assistant treasurer. It will save to depositors a large amount of their funds, which must necessarily be consumed in expenses in case the action proceeds or the bank is put in liquidation and its assets distributed ratably among its creditors; it will save, moreover, to a large number of persons who are debtors to the institution the loss that cannot be avoided from shrinkage in values, resulting from forced collections of mortgages, and will probably result in assisting to sustain generally the credit of business men who have at this time deposits in the bank.

It has been the policy of this state for a long series of years to permit savings institutions, whose assets from any cause have shrunk below their liabilities, to resume business wherever it could be done upon a solvent basis, and this course.has been uniformly, so far as I have been able to ascertain, recommended by the banking department. In 1879 this course was taken by bank superintendent Henry L. Lamb in the case of the Oswego City Savings Bank, and the supreme court permitted that institution, under like circumstances, to scale down its liabilities to depositors ten per cent, and thereupon to resume business. Since that time the bank has been prosperous and its deposits have steadily increased. In 1883, bank superintendent A. B. Hepburn, in his annual report to the legislature, approved the policy thus pursued by superintendent Lamb. In that report he says: “No one can make a study of the failed savings banks without perceiving how much better it would have been for depositors in many instances had the deposits been scaled so as to render the bank solvent, and they have been allowed to continue business. This department, and the courts, now have bylaw sufficient power over the ten are of office of savings bank managers to secure, the removal of incompetent or unfaithful men. With the funds still in the bands of trustees, under the direction of the court and subject to the supervision of the superintendents, the depositors would have realized much more money, and the expensive management and costly and interminable litigation which succeeds insolvency as the night the day would have been avoided. It seems that our courts now have the power to reduce each individual deposit to an amount sufficient to render an insolvent savings bank solvent, and authorize the managers of the bank to charge against each separate depositor such amount”

Bef erring to the Oswego Savings Bank, he adds: “The eminent success attending the scaling process in the only instance in which it has been tried in this state is a strong practical argument in favor of providing by statute for carrying out what seems to be a law already.”

In 1885, superintendent Willis S. Paine expressed his approval to the legislature, as follows : “ In the single instance in the history of the savings banks of this state in which the scaling process has been resorted to as a possible means of saving depositors from ultimate loss, the experiment has met with such marked success it is probable that in the future this remedy will be applied in preference to placing the affairs of temporarily embarrassed banks in the hands of receivers for liquidation.”

It will thus be seen that the opinion of those most familiar with the savings banks of the state, and whose duty it has been to exercise a supervision over their affairs, so far as the same has been expressed, indicates the propriety of permitting savings institutions to resume business wherever it can be done upon a solvent basis.

The remaining question is one of power. The statute which authorizes the institution of actions like the present provides that “ the court before which such proceedings shall be instituted shall have power to grant such orders, and in its discretion from time to time modify or revoke the same, and to grant such relief and render such judgment as the facts or evidence in the case and the situation of the parties and the interests involved shall seem to require.”

The power thus conferred seems to be sufficient to enable the court to make such orders and such disposition of the institution and its affairs as may appear to be for the best interests of the institution, its creditors and depositors. Savings banks are quite unlike ordinary banks. Commonly banks are business corporations, have-stockholders and paid officers, and conduct their affairs with a view to profit. Their relation to their depositors is in no sense one of trust. They receive deposits to be paid upon the chock or draft of the depositors without interest or addition. Their profits, if any, are distributed among the stockholders, and its losses fall upon them, and their property is subject to sequestration at the suit of any creditor. A savings bank is an institution of quite a different character. Its relation to its depositors is in a large sense one of trust and confidence. It has no slack and no stocleholdcrs. Its depositors are not entitled to draw checks against it. It does not receive deposits to be paid upon demand simply, but for investment on securities taken for the benefit of the depositors. Its assets are held for distribution among its depositors ratably, and its losses fall in like manner upon its depositors, and no creditor or depositor can by diligence in the pursuit of any legal remedy obtain any advantage over any other creditor or depositor. Its profits and its losses fall upon each depositor according to his just proportion, and no depositor has a right in the distribution of its assets to obtain or receive his deposit in full at the expense of the other depositors.

The assets, after deducting the necessary expenses, are held ■simply as belonging to and as security for all the deposits. It would seem therefore that no depositor has any just cause of complaint if he is not permitted to receive his deposit in full in case the assets are insufficient to pay all the depositors in full. Nor would the trustees be justified in exhausting or even impairing the assets of the institution in payment in full of diligent depositors, and thereby leaving those who are less vigilant to receive a less sum than would be theirs if a just and ratable distribution were had. Under the circumstances, the assets of the bank being held for all the depositors and the losses sustained by all, and there being no right in any depositor to insist upon the payment of his own claim in full at the expense of others, it is clear that the loss already sustained may and should be thus distributed, and the bank, if possible, permitted to resume business for the benefit of all depositors alike, that in the end each depositor may receive as much as possible.

In the case of the People v. The Mechanics & Traders' Savings Institution, 92 N. Y., 7, the action was brought by a creditor (other than a depositor) to compel the receiver to pay certain judgments in favor of one Sistare, and it was substantially held that all creditors of savings banks, including depositors, stand upon an equal footing. The court says: “ Upon insolvencj' the assets and property of the corporation is a trust fund for the payment of creditors, and depositors, we think, stand as other creditors, having no greater but equal rights to be paid ratably out of the insolvent estate.”

In the case of Huntington v. Savings Bank, 96 U. S., 388, speaking of savings banks, the court says: “It is not a commercial partnership, nor is it an artificial being the members of which have property interests in it, nor is it strictly eleemosynary. Its •purpose is rather to furnish a safe depository for the money of those members of the community disposed to intrust their property to its keeping. It is somewhat of the nature of such corporations as church wardens for the conservation of the goods of a parish, the college of surgeons for the promotion of medical science or the society of antiquaries for the advancement of the study of antiquities. Its purpose is a public advantage without any interest in its members.

“It is, like many other savings institutions incorporated in England and in this country during the last sixty years, intended only for provident investment, in which the management and supervision are entirely out of the hands of the parties whose money is at stake, .and which are quasi benevolent, and most useful because they hold out no encouragement to speculative dealing or commercial trading.

“ Yery many such exist in this country. Among the earliest are some iñ Massachusetts, organized under a general law passed in 1834, which contained a provision that the income or profit of all deposits shall be divided among the depositors, with just dedxxetion of reasonable expenses. They exist also in Wew York, Pennsylvania, Maine, Connecticxxt and other states. Indeed, until recently, the primary idea of a savings bank has been that it is an institution in the hands of disinterested persons, the profits of which, after deducting the necessary expenses of conducting the-business, enure xvholly to the benefit of the depositors in dividends or in a reserved surplus for their greater security.”

Courts of equity in other states have exercised the power here sought. In the case of the Newark Savings Institution, 28 N. J. Equity, 552, the power to scale down deposits and authorize the resumption of business by savings institutions was distinctly declared and exercised. The chancellor says: “This coui’t has jurisdiction over all trusts, as well where the trust is held by a. corporation as where the trustee is an individual. A savings" institution, such as the petitioner, is a mere trustee. It has no stock. It receives the money of depositors for investment and invests it on securities taken for the general benefit of the depositors. It is merely a large incorporated agency for receiving and loaning money on account of those to whom the money belongs. The interest received upon investments is to be ratably divided among the depositors.

“The depositors (in the absence of fraud on the part of the-managers, from which personal liability would arise) have no recourse whatever for repayment of their principal or interest to anything except the general investments of the institution. The institution now before me was incorporated for the sole purpose of receiving and investing deposits. The design of the legislature in granting the charter was to promote industry and frugality, and preserve and husband the fruit of honest toil. It contemplated no benefit to the managers, but looked only to the security and advantage of the depositors. The trust thus created is a general or public trust. Uo depositor has, under the charter or in equity, any right to any particular security in the hands of the institution for his deposit, more than any other depositor. All the assets, after deducting the necessary expenses, ai’e held as a common fund for the security of all the depositors. It follows that no depositor’ has any reason for complaint if he is not permitted to receive his deposit in full, if there be even any xxncertainty as to whether there will be assets enough to pay all the others in full. It follows also that the institution ought not under sxxch circxnnstances to be permitted to exhaust such of its securities as are immediately convertible into cash without loss in the payment in full of clamorous or alert depositoi’s, and leave for those who are less vigilant, or’ who may be less informed of the situation, securities which are less available and on which such loss may be sustained as that the-latter may fail to realize the full amount due them. In other words, the vigilant depositor ought not to be permitted to devolve-all the losses of the trust on the others who are as much entitled, to payment in full as they are. To insure j'nstice to the helpless-is one of the most valuable prerogatives of this court. Equality in the present case is equity. I have no doxxbt as to the j'urisdictian of this court over the subject, and I have no hesitation whatever in exercising it. Under the circumstances I deem it my duty to see to it that the assets of this trust in the hands of the institution are not inequitably administered.

“ The course now taken in regard to this institution is not without precedent in this court. In the case of the Hoboken Bank for Savings (1874) like measures were taken by me under similar circumstances with salutary effect and most beneficial results to the depositors.”

In 1871 a similar proceeding for scaling down the deposits of a .savings bank was taken in Connecticut. In that case a sum equal to twenty-four per cent, of the deposits then in the bank was .scaled by the trustees themselves, and a joint resolution was subsequently passed by the legislature ratifying their action. Afterwards an action was brought by one of the depositors to recover ■the difference between his deposit and the amount to which i.t was .scaled, and the supreme court, without giving any effect to the resolution of the legislature, held' that the action of the trustees in thus scaling down the deposits was lawful and proper, and that the depositor could not recover. Like proceedings have been had in New Hampshire, where there is a statute authorizing them. In Massachusetts, in the case of Lewis v. Lynn Institution far Savings, 148 Mass., 235, the rule laid down in the Connecticut case was approved and applied. At page 244 the court says: “But to the depositors themselves the undertaking of the corporation is that it will receive and combine the deposits, and manage .and use them to the best practical advantage according to the judgment of the trustees, and give to the depositors in just proportion among themselves the benefit" of the result of such management. There is no absolute promise to repay to any depositor the full amount of his deposit. Such a promise to one depositor would imply that in case of loss he should be repaid out of the .deposits of others. The promise or undertaking of the corporation is the same to' all. There is no promise to pay one at the ■expense of others. The promise is, in effect, to pay each depositor in full with his dividends, provided the assets are sufficient, and if they are not sufficient, then to pay each one his proportionate share.”

It seems, therefore, that the application now made is supported by the provisions of the statute above quoted, and by well considered adjudications in this and other states. I think the power of the court is clear, and that the present presents a proper case for its exercise.

Application granted.


author: Bischoff, J.

text:
    Jane Bennett, Resp’t, v. Jacob Levi, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Appeal—Question not raised below.
    A party cannot for the first time on appeal raise the objection that the facts did not warrant tlicir submission to the jury, and that the verdict is without evidence or against the weight of evidence.
    :2. Civil damage act—Damages.
    Where it appears that prior to frequenting defendant’s saloon plaintiffs husband was a thrifty and industrious mechanic, who supported his family in ease and comfort; that within fifteen months he has become habitually intemperate, and his capacity and usefulness as a means of support have become impaired and are likely to continue so for some time, entailing upon her greater exertions, mental and physical, in the care of the family, a verdict for $1,000 cannot be deemed excessive.
    3. Same—Charge—Liability of landlord.
    Where the landlord defendant admits in his answer his ownership of the premises, and that he let them with knowledge that they were to be used for the sale of liquor, a charge that if the jury find a verdict for the plaintiff it should be against both defendants is correct.
    4. Same.
    Where the charge limits the recovery to compensatory damages, it is not error to refuse to charge, on request, that “ for the plaintiff to recover exemplary damages against the defendant, the lessor, she must prima facie’ make out a case against him.”
    Appeal by the defendant, lessor, from a judgment against both defendants and from an order denying a motion for a new trial. Action by a wife against the lessor and lessee of a liquor saloon, pursuant to the provisions of the civil damage act (Laws of 1873, chap. 646), to recover damages for injury in her means of support occasioned by the habitual intoxication of her husband.

      Frank Moss, for resp’t; Isaac M. Aron, for app’lt.
   Bischoff, J.

Defendant, Levi, having by answer expressly admitted that he is the owner of the premises 1567 First, avenue, and that he let them knowing that they were used and to be used by the defendant, Picker, for the sale of intoxicating liquors, it only remained upon the trial to ascertain whether the habitual intoxication of plaintiff’s husband was in whole or in part occasioned by the use of intoxicating liquors supplied him. •by the defendant Picker, and to what extent, if any, plaintiff was injured in her means of support by her husband’s intemperate habits, since under the provisions of the civil damage act (Laws of 1873, chap. 646) the owner or lessor who knowingly or lets permits his premises to be used or occupied for the sale of intoxicating liquors is made equally liable with the lessee or occupant for damages resulting to the wife from an impairment of her means of support by the intemperance of her husband, induced by the lessee or occupant’s supply to him of such liquors.

Upon the trial it abundantly appeared from the testimony of witnesses examined on plaintiff’s behalf, that for upwards of fifteen months immediately preceding the bringing of this action plaintiff’s husband habitually frequented Picker’s saloon, that before that time he was a thrifty, prudent and industrious mechanic, that he supported his family consisting of wife and five children, out of bis daily earnings of from four to four dollars and a half, in comparative ease and comfort, but that within the short, period mentioned he became addicted to the habitual use of intoxicating beverages, idle, shiftless and indifferent concerning the-health, welfare and prosperity of those dependent upon him, so-that they, in the absence of other means of support and because-of his change of habits, were reduced almost to a state of beggary, ;at times compelled to rely for the necessaries of life upon the ¡scanty earnings of plaintiff's minor son and the succor of friends .and neighbors.

These facts were in no wise disputed, the defense being exclusively devoted to the attempt to show that subsequent to plaintiff’s caution to Picker that her husband should no longer be furnished with drink, its supply to him was discontinued. The testimony to that effect adduced for the defendant is in conflict with plaintiff’s statement that she saw her husband drinking in Picker’s •saloon on several occasions after the caution had been given.

Assuming, therefore, that there was sufficient evidence that Picker supplied plaintiff’s husband with intoxicating liquors on the occasions of his visits to the saloon, the facts admitted by the pleadings and established upon the trial amply support a verdict .for the plaintiff against both defendants.

It is, however, urged for reversal of the judgment and the order ■denying the motion for a new trial that, while the evidence may .show that Picker supplied plaintiff’s husband witli drink, it does not appear that such drink consisted of intoxicating liquors, and for that reason it cannot be said that Picker’s conduct contributed towards the husband’s intemperance. Assuming that the inference that the drink supplied was intoxicating liquor, which the evidence seemingly justifies, is not well applied in the present case, it is nevertheless a complete .answer to appellant’s contention that the sufficiency of the •evidence in this respect was conceded by the failure to move fora nonsuit, or the direction of a verdict for defendants, the motion for a nonsuit as to the defendant Levi having been distinctly placed upon the sole ground that it did not appear that he knew of the use of the premises for the sale of intoxicating liquors, a fact which he had admitted by answer, as hereinbefore pointed--out. Having taken his chances with the jury for a favorable verdict, a defendant is precluded from successfully asserting for the first time on appeal that the facts did not warrant their submission to ilie jury, and that the verdict rendered is without evidence, or .against the weight of the evidence. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628, 632; Sickels v. Gillies, 45 How. Pr., 95; Rowe v. Stevens, 44 id., 10; Caspar v. O'Brien, 47 id., 80.

Nor are we prepared to say that under the peculiarly aggravating circumstances "of the case a verdict for the plaintiff in the .sum of $1,000 was excessive.

" The statute which confers a right of action of this nature im-, poses no limit to the amount of recovery, and both direct and consequential damages are allowable. Volans v. Owen et al., 74 N. Y., 526. Bearing in mind, therefore, that her husband’s habitual intemperance has largely deprived plaintiff of the benefit of his former earning capacity and usefulness as a means of support, .and that it was likely to continue so to do for some time at least, thus entailing upon her greater exertions, mental and physical, in the care and maintenance of herself and her dependent infant -children, it would seem even more than arbitrary for us to impose our own notions of plaintiff’s injury as the limit of her recovery against the good sense of the jury, and a reversal upon the ground of excessiveness of the damages awarded, or a reduction of the latter, would be an unjust imputation that the jury were moved to make the award by considerations other than those prompted by a sense of duty.

The learned trial judge charged the jury that “ the law makes the owner of premises equally guilty with the tenant, and if you find a verdict for the plaintiff in this case, your verdict should be against both of the defendants,” to which defendant excepted. Upon the facts of the case we perceive no error in the charge. The statute enables the person injured to proceed against the owner, or lessor, jointly with the lessee, or occupant, upon proof that the owner, or lessor, knowingly let, or permitted, his premises to be occupied for the sale of. intoxicating liquors; and as the defendant Levi had by answer admitted his ownership of the premises and his letting thereof to the defendant Picker with such knowledge, it followed as a matter of course that if the evidence warranted a finding against Picker, plaintiff was entitled to a verdict against the defendants jointly.

An exception on behalf of the defendant Levi was taken to the trial judge’s refusal to charge “that for the plaintiff to recover exemplary damages against the defendant, the lessor, she must prima facie make out a case against him but as the charge as made plainly limited plaintiff’s recovery to compensatory damages only and excluded from the jury’s consideration any clement of exemplary damages, the request to charge presented a mere abstraction, which was properly refused. Hence, this exception was not well taken. Priebe v. The Kellogg Bridge Co., 77 N. Y., 597.

Other exceptions appearing upon the record refer to rulings in the admission and exclusion of evidence. These have been severally examined by us and found insufficient to reverse the judgment and order from which the appeal was taken.

The judgment and order should be affirmed, with costs.

Daly, Ch. J., concurs.


author: Daly, Ch. J. Pryor, J.

text:
    Ephriam C. Gates et al., App’lts, v. Arthur H. Dundon resp’t.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Bills and notes—Duress—When cannot be shown.
    The answer to an action on a note alleged want of consideration; false representations as to the amount of materials furnished to the contractor and not paid for, the allegation being that defendant was willing to pay the amount'that the contractor was actually indebted for such material; that being deceived by such representations, and plaintiffs stating they would file a lien unless the amount was paid, defendant signed the note upon an agreement that he might thereafter correct the amount thereof and show that it did not correctly represent the indebtedness, and that its amount exceeds such indebtedness. Held, that the defense of duress was not set up in the answer, and that having expressly admitted willingness to pay and that the note was made upon the agreement stated, defendant could not be permitted to show that he was acting under duress.

      Appeal by the plaintiffs from a judgment of the general term of the city court of New York affirming a judgment entered-on the verdict.of a jury in favor of defendant Dundon. The action is brought on a promissory note made by Dundon, together with one Soule, to the plaintiffs for $383.59, dated September 11, 1890, and payable six months after date.

      G. W. Stephens, for app’lts; Wm. B. Ellison, for resp’t.

       Reversing 42 St. Rep., 660.

   Daly, Ch. J.

The defendant Soule contracted to build for the defendant Dundon a house in Bordham, New York, and abandoned the work before it was completed and after he had been overpaid for what he had done. The plaintiffs Bphriam 0. Gates & Co. had sold lumber to Soule for this house, and the note in suit was given in payment for such material. The answer of Dundon set up (1) want of consideration ; (2) false representations by plaintiffs as to the value of the material supplied by them and used in the house and not paid for, the allegation being that defendant was willing to pay plaintiffs the price or value of the material actually supplied and for which Soule was indebted; (3) that being willing as aforesaid and deceived by such representations, and plaintiffs stating that they would file a lien on said property unless the amount claimed was paid, defendant signed the note in suit upon the express agreement that he might at any time thereafter correct the amount thereof and show that the same did not' correctly represent the indebtedness of Soule; and that the amount of the note grossly exceeds the amount due from Soule to the plaintiffs.

These allegations, although stated as separate defenses, show but one, namely, partial failure of consideration; and the issue to be tried was, therefore, the making of the alleged representations and agreement, and the amount for which Soule was actually indebted to the plaintiffs for materials used by.him in the construction of defendant Dundon’s house. The plaintiffs would be entitled to recover for the amount actually due. Forman v. Wright, 11 C. B., 481. Testimony was given upon these questions, and they were left to the jury; bu-t the jury were also instructed that the note was void for duress, if at the time the note was made the plaintiffs threatened to file a lien against the premises which would cause other people who had done work to file liens, and that when those liens were filed the parties from whom Dun-don was getting money would, .in turn, refuse to make the advances or loans which they had agreed upon. The plaintiffs excepted to so much of the charge as permitted the jury to find a verdict in favor of the defendant upon the ground of duress. The verdict was for the defendant.

The defence of duress was not set up in the answer, and was, besides, wholly inconsistent with the tenor of that pleading. Defendant expressly averred that he was willing to pay the amount which Soule owed the plaintiffs for material actually used in the construction of his house, and that the note was given upon the understanding, and agreement, that if such amount should be found to be less than the face of the note, the latter should be ■corrected accordingly. Defendant’s willingness, and the agreement for his protection, dispose of any claim of duress. The defence was not only not pleaded, but was not proven, for defendant’s testimony substantially supported the allegations of his answer.

The defendant having expressly admitted in his answer that he was willing to pay what was due, and that when the note was made it was upon the agreement substantially that it should be good for such amount and no more, he could not be permitted to show that he was acting under duress, for that would be to contradict an admission in his pleading, which is not permitted unless an amendment be ordered. 1 Greenleaf, 27; Van Dyke v. Maguire, 57 N. Y., 429; Fearing v. Irwin, 4 Daly, 385-96.

It is claimed that no objection was made by plaintiffs to the evidence contradicting the admission. ‘ The evidence was given by defendant Dundon in his narrative of the occurrences prior to and at the time of making the note, all of which were competent under the allegations of his answer respecting the representations and agreement. Plaintiffs were not bound to object at that time. When the case was submitted to the jury on the question of duress the plaintiffs duly excepted, and tin's saved their rights, as no motion to amend the answer had been made, and the admission in the pleadings was, therefore, conclusive.

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

Bischoff, J., concurs.

Pryor, J.

I concur, but without conceding that a threat to file a lien would be duress.


author: Pryor, J.

text:
    Daniel J. Mc Laughlin, Resp’t, v. The Great Western Insurance Co., App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Insurance (Marine)—Undisclosed owner of interest insured may sue.
    An action upon an open policy of marine insurance on account of whom it may concern and payable to one who is in fact the agent of the owner of the interest insured, may be maintained by such owner.
    2. Same—Former adjudication.
    A former adjudication in an action to recover for loss of freight is binding and conclusive upon the defendant in an action for loss of vessel as to every defense open and available to it in such previous action.
    Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial.
    This action is brought upon a policy of marine insurance to recover $3,000 and interest upon one-third of five-eighths of the British bark “ Brothers’ Pride,” which was the plaintiff's share in the vessel. British vessels are divided in sixty-four parts, each sixty-fourth being called a share. The plaintiff was the owner of thirteen shares.
    The policy was issued January 6, 1879, and the material parts of it will be found at folio 156, Exhibit 101, by which the defendant insured “P. I. Nevius & Son, on account of whom it may concern, in case of loss to be paid to 0. A. Palmer,” against the usual perils of the seas, etc., including barratry of the master and mariners, for a voyage “ at and from Cardenas to and at Cienfuegos, and other port or ports in Cuba, and thence to a port north of Hatteras, with liberty of cargo coal over registered tonnage.”
    The vessel sailed from Cardiff with a cargo of coal to Cienfuegos, sailed from there to Cardenas in ballast, where she took aboard a cargo of melado and started for New York. She left Cardiff about the 6th of January, 1879. She arrived at Cardenas about the middle of April, 1879.
    The vessel was totally lost by one of the perils of the sea on the voyage from Cardenas tó New York, on or about May 7, 1879.
    In 1880, an action was' commenced in the superior court of the city of New York, by Acalus L. Palmer, Charles A. Palmer and Daniel J. McLaughlin, against the defendant, to recover for the loss of the vessel and her freight under three policies of insurance, of which the policy in this suit was one, a second policy being for $2,000; each of these being on the hull of the vessel, and the third being a policy of $5,000 upon the freight. The entire vessel was owned by these three plaintiffs, and the first action was brought with the intention of saving multiplicity of suits, but before the trial of that action, which occurred in October, 1885, the plaintiffs, finding that the defendant was unwilling to waive the objection that the claims upon the three policies could not be made the subject of one action (because while the plaintiffs could sue on the freight policy as owners of the entire vessel they could not jointly sue on the separate shares of McLaughlin and Acalus L. Palmer), new actions were commenced, one by Acalus L. Palmer upon the policy which covered his share of the vessel, and the other, which is the present action, by Daniel J. McLaughlin, to recover upon the policy upon his share of the vessel.
    The action in the superior court upon the freight policy was tried and resulted in a verdict in favor of the plaintiffs. An appeal from the judgment was taken to the general term of the superior court, which affirmed the judgment of the trial term, and from that judgment an appeal was taken to the court of appeals, which also affirmed the previous judgment. The judgment was affirmed by the court of appeals in December, 1887.

      Treadwell Cleveland, for app’lt; Wm. W. Goodrich, for resp’t.
   Pryor, J.

Of the many grounds of defense taken at the trial, appellant now relies and insists upon four only; namely, that plaintiff had no insurable interest in the vessel; that he was not a party to the policy in such sense as to be competent to maintain an action on it; that the trial judge erred in holding the judgment of the superior court to be res adjudicata upon the issues covered by it and here in litigation; that he committed error in his rulings upon evidence.

I. That the plaintiff was owner of thirteen-sixty-fourth shares of the vessel was established by evidence so clear and conclusive. that the learned trial judge rightly assumed it as an incontrovertible fact in the case.

II. The policy runs “ P. I. Nevius & Son, on account of whom it may concern; in case of loss to be paid to C. A. Palmer.” The evidence is ample to authorize the inference that the insurance was of plaintiff’s interest, and that the loss was payable to Palmer for and on behalf of plaintiff.

Counsel for appellant is mistaken in the assumption that the learned trial judge ruled the point as matter of law; for, in express terms, he said to the jury: ‘‘ The question is for you whether in the issuing of the policy the insurance was taken on account of this plaintiff, as the person concerned in it, and whether it was taken out for him to insure his interest, or whether the condition that it was payable to Palmer did not indicate that it was Palmer’s interest that was insured.” In accordance with the clear weight of evidence the jury found that the insurance was of plaintiff’s interest and for his benefit; and this being so, plaintiff is perfectly competent to maintain the action.

At common law an undisclosed principal might assert and enforce his interest in a simple contract made in the name of another but for his benefit; and, in this state, by express provision of statute, “ every action must be prosecuted in the name of the real party in interest,” except that it is allowable, but not imperative for a trustee to bring the suit. Nothing in the law of marine insurance takes the case at bar out of the operation of the rule. Finney v. Bedford Ins. Co., 8 Metc., 350; Pacific Ins. Co. v. Catlett, 4 Wend., 75.

Appellant confidently cites Cone v. N. F. Ins. Co., 3 T. & C., 33; 60 N. Y., 619, as enunciating a contrary doctrine; but there the policy was not expressed to be on account of whom it might concern, and the loss was payable to Cone “ as his interest may appear; ” and so the ease is plainly distinguishable from the present.

III. As to the defense of res judicata, we do not perceive how the fact that in the superior court the insurance was of t\\e freight .and here is of. the vessel, is operative to avoid the estoppel of the former judgment.

In conformity with the settled law of“ this state, we hold that j udgment to be res judicata not only of all issues that were actually agitated, but of every question that might have been litigated under the pleadings. Hence, every defense open and available to appellant in the previous action is concluded against him in the present action.

In his argument, counsel for appellant implies that, conceding the estoppel of the former judgment, he was not precluded in this action from maintaining the following defenses: That the vessel was unseaworthy; that the policy was voidable for fraud, and that the loss was not by a peril insured against. We do not assent to this restricted operation of the estoppel of the prior judgment ; but be it so, and still the evidence is ample to support the verdict upon every issue.

IV. The only plausible exception to evidence is to the admission of statements not made in the presence of defendant’s representative ; but those statements were of the res gestae, as coincident with the fact of the insurance and the issuance of the policy, and. identifying the interest and the party insured.

The record discloses no error ; and the judgment and order are affirmed, with costs.

Bischoff, J., concurs.


author: Per Curiam.

text:
    In the Matter of Ann Eliza Owens.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Lunacy—Supersedeas.
    The court has no power alter the death of a lunatic to supersede the commission of lunacy on the ground that she had been restored to reason.
    3. Same—Traverse—Cloud on title.
    But a grantee'whose conveyance is invalidated by the inquisition may traverse it notwithstanding such death, and it is possible that the cloud on the title can be removed by an action for,that purpose against all her heirs at law.
    Appeal by the Church of St. Francis Xavier from order denying motion to confirm report of a referee.
    Proceeding to annul an adjudication of idiocy.
    In 1873, Ann Eliza Owens was adjudged an idiot, and a committee appointed, who never in fact acted. On July 1, 1890, she conveyed certain real estate to the appellant and died in August following. ‘This proceeding was referred and the referee reported that at the time of such conveyance “ she was mentally capable of acting arid fully understood and comprehended its effect, ” and recommended that the prayer of the petition be granted and the-adjudication annulled and set aside.

      George Bliss, for app’lt; W. Tazewell Fox, for resp’t.

       Affirming 44 St. Rep., 306.

   Per Curiam.

We have examined the papers and testimony in this case with care, and while we are convinced that the grantor in the deed in controversy was of sound mind when she made it, yet we think the reasons given by the learned judge who denied the motion are conclusive. In addition to the remedy suggested by the judge at special term, it is possible that the cloud upon the title may be removed by an action brought for that purpose, in which all the heirs at law are made parties.

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

Daly, Ch. J., Bischoff and Pryor, JJ., concur.


author: BISCHOFF, J.

text:
    Francois X. Dietlin, Resp’t, v. Thomas D. Egan, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Attachment—Motion to vacate—Affidavit of party.
    Od motion to vacate an attachment, the court may properly refuse to credit an affidavit of the defendant disproving the plaintiff's cause of action, although only denied generally and not specifically, as it is that of a party in interest.

      Appeal from an order of the general term of the city court, affirming an order of that court, at special term, denying defendant’s motion to vacate an attachment against his property, granted at the instance of the plaintiff.

      Edmond Huerstel, for resp’t; Arthur R. Robertson, for app’lt.
   BISCHOFF, J.

No claim is made on this appeal that plaintiff’s affidavit, upon which the attachment was granted, did not, prima facie, present sufficient facts for that purpose, or that plaintiff’s proceeding was in any respect irregular, but the sole ground upon which the propriety of the denial of defendant’s motion to vacate the attachment is questioned is that the traverse by defendant’s affidavit of the facts assigned in support of plaintiff’s allegation of a valid and subsisting cause of action, which was necessary to support the attachment, left such alleged cause of action disproved.

Plaintiff's affidavit set forth that on or about January 26,1891, he loaned and advanced to the defendant §1,600, for the repayment of which the latter gave him his promissory note, whereby he promised to repay the sain loaned with interest twenty days after the date thereof, but that at maturity the note remained unpaid. Defendant’s affidavit, made in support of his motion to vacate the attachment, besides denying the making of the loan as alleged by the plaintiff, set forth that the note referred to by the plaintiff is one of a series of renewals of a promissory note made by defendant and given by him for an alleged usurious loan, the history of which down to the note in question he proceeded to narrate with much elaboration and detail.

In answer to defendant’s affidavit, plaintiff submitted a further one, by which he denied, in the most general way, that he had made any corrupt and usurious agreement with the defendant relative to the note mentioned in his first affidavit, and omitted to deny specifically any of the facts and circumstances narrated by the defendant. This last affidavit, defendant contends, was insufficient to call the facts sworn to by him in question, and that these must, therefore, be taken as admitted, and plaintiff’s alleged cause of action deemed disproved; hence, that the attachment should have been vacated.

We may agree with the defendant that plaintiff’s last affidavit was deficient for the purposes of a denial, and assume that the facts narrated by the defendant, if established by competent and credible evidence, make out a complete defense to the note upon which this action is brought, and yet reach the conclusion that it was within the province of the justice of the court below, at special term, to deny defendants’ motion to vacate the attachment, and being so, that the exercise of his discretion is not reviewable by us.

In proper and sufficient support of defendant’s claim that plaintiff’s alleged cause of action was disproved by the facts narrated by the defendant and not denied by the plaintiff, it should appear that they were presented to the justice at special term by evidence so conclusive that his refusal to credit it was error in law. Can such be said to be the case here ? The rules of evidence governing the testimony of witnesses upon the trial of a disputed question of fact are the same, whether the trial be had upon oral testimony or the depositions of the witnesses; and, though these rules will not permit the uncontradicted testiomony of a witness whose credibility is unimpeaehed and unaffected by inherent improbability of its truthfulness to be disregarded, there is an exception where the testimony is that of a party in interest, and the judge or jury who are called upon to determine a fact-upon the testimony ’of witnesses may properly refuse to credit the testimony of a witness who is a party in interest, though it be wholly uncontradicted and his credibility not otherwise impeached. Elwood v. The Western Union Tel. Co., 45 N. Y., 549, 553; Gildersleeve v. Landon, 73 id., 609; Honegger v. Wettstein et al., 94 id., 252, 261.

It follows from the foregoing that defendant cannot successfully claim as matter of right that his affidavit should have been credited by the justice at special term, and if the justice erred in the exercise of his discretion, the affirmance of his order denying defendant’s motion to vacate the attachment by the general term of the court below is final and conclusive upon us.

The appeal should be dismissed, with costs.

Daly, Ch. J., concurs.


author: Bookstaver, J.

text:
    Hartwell Abbey, Resp’t, v. Levi H. Mace et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Contract—Time for performance.
    Where no time is fixed in the contract itself, the thing to be done must be performed within a reasonable time. What is a reasonable time is a question of law, unless the facfs are disputed; but where there is a dispute, the question as to whether there has been a failure to perform is properly left to the jury.
    2. Same—Damages.
    In an action for breach of a contract by which defendants were to furnish plates to plaintiff, who was to decorate them by machinery, on account of a failure to deliver the plates, a verdict for the amount expended by plaintiff in the preparation of the machinery and die, and for his time expended thereon at the rate which he had been earning theretofore, cannot be considered excessive.
    3. Trial—Errors in charge.
    A judgment will not be set aside on the ground of errors in the charge, where such errors did not mislead the jury, and they did not act upon, them.
    Appeal from a judgment rendered on the verdict of a jury at trial term, and from an order denying a motion for a new trial.

      Martin J. Keogh, for app’lts; William A. Abbott and Albert A. Abbott, for resp’t.
   Bookstaver, J.

This action was brought to recover damages for alleged breaches of a contract entered into between the plaintiff and defendants on the 5th of January, 1891, whereby the defendants agreed to deliver to the plaintiff ready for decoration 2,000 dozen bread boards, to be decorated by him with such designs as defendants might select, for which defendants were to furnish the die, if it did not exceed in cost thirty-five dollars. The agreement further provided that the work of decoration should he done in a proper and satisfactory manner, or if not, that the agreement should be cancelled; and that meanwhile the plaintiff should not furnish decorations on bread boards in any design to any one else than the defendants.

The work to be done by the plaintiff under this agreement was to be by machinery, and was somewhat experimental in its character, as nothing of the kind had before been attempted. It took him some time to prepare the machinery for this work, and how much time he took was one of the questions in dispute, plaintiff claiming that he had his machinery in working order as early as-March, while the defendants claimed it was much later. There was contradictory evidence upon this subject; but, nevertheless, it is clear that the defendants also had difficulty in preparing the-plain wooden plates which were to be delivered to the plaintiff for decoration. Various experiments were tried to turn them by hand and by machinery so as to make them uniform in size and uniform as to the bevel of the edge, which was necessary in order to properly decorate them; but they all failed. The evidence, however, shows that the work could have been done by a skillful workman with an ordinary lathe, although this would have taken a longer time.

When the plaintiff rested his case, the defendant moved to dismiss the complaint on the ground that the contract by its terms, fixed no time for performance on the part of either party, and it. was necessary in order for plaintiff to recover, to show that he had limited the time for performance by giving the defendants notice-that they must do so within a fixed time which had expired; and second, on the ground that no breach of contract had been shown. It is true that the contract does not fix the time within which the work was to be done, but it by no means follows that the plaintiff was bound to give the defendants notice to perform. It was always their duty to do that without notice, and where no time is fixed in the contract itself, the thing to be done must be performed within a reasonable time. Bottum v. Moore, 13 Daly, 464; Wright v. Bank of Metropolis, 110 N. Y., 237; 18 St. Rep., 92; Colt v. Owens, 90 N. Y., 368; Hedges v. Hudson River R. R. Co., 49 id., 223; Both v. Buffalo, etc., R. R. Co., 34 id., 548. It is quite tnm that the question as to what is a reasonable time is a question of law unless the facts are disputed. See Both v. Buffalo, etc., R. R. Co., supra. But in this case there was a wide divergence in the testimony as to when the plaintiff was ready with his machinery to do the work, and when he requested the defendants to deliver the plain plates, and also as to,whether or not the plaintiff agreed to wait until the defendants should give him notice that they were ready to furnish the plates. Under these circumstances we do not think the court erred in refusing to decide as a matter of law that there had or had not been any breach of the contract or whether defendants had or had not furnished'the plates within a reasonable time, but properly left both of these questions to the jury.

On the coming in of the verdict, the defendants moved to set it aside and for a new trial, because it was contrary to the evidence. As before stated, there was a conflict of evidence on the vital points in the ease, all of which were supported with more or less testimony by both parties; and on a careful review of it, we do not think there is such a preponderance of evidence in defendants’ favor as would warrant us in setting aside the verdict, especially as there does not appear to have been any passion or prejudice exercised on the part of the jury, or any improper influence used on them in obtaining their verdict

The motion for a new trial was also based on the ground that the verdict was for excessive damages ; but from plaintiff’s testimony, which was apparently believed by the jury, it appears that he had spent at least $500 in the preparation of machinery, power, space and die for doing the work, and that he had devoted 156 working daj^s in getting ready for the work and in and about the business, and that before that time he had been earning three dollars a day, which would make $468, or a total of $968, time and money, actually expended upon the work, and interest on that from the commencement of the action to the rendering of the verdict makes the sum- of $997.04, the amount found by the jury ; which demonstrates that they allowed nothing whatever for profits or for other expenses; and we think it was a just and proper amount under the circumstances.

It is true that at the request of plaintiff’s counsel the jud'ge, after charging the jury that the plaintiff before entering upon this contract was earning three dollars a day, and it would be proper for them to allow that amount for his services for the time actually spent in attempting this contract, subsequently charged in effect that he being an expert mechanic they might allow him more. This, we think, was error, but it is manifest from what has been said that it was an error which did not prejudice the decision, as the jury only allowed plaintiff three dollars a'day for his services; and the court in charging the jury was careful to state to them that they could allow only for the time actually employed in attempting to fulfill his part of the contract.

So, too, it was error to charge that the total sum for which they might find a verdict was $1,274.31. But the judgment of the court below should not be set aside on this ground, for it is manifest that the charge did not mislead the jury and that they did not act upon it.

There was no error in the admission or exclusion of evidence. The question asked of plaintiff as to whether or not “'from a time in March when the design had been made and approved, and the •die manufactured and ready', down to the commencement of this action, were you or not at all times ready to perform the contract which has been put in evidence on your part?” was not objectionable on the ground of assuming facts not previously proved, be•cause all of the facts therein intimated had been proved before that time, although it is true that other dates had also been mentioned. The objection to the question asked of the plaintiff as to what Mr. Mace had said to him during the trial of the action, was not well taken.

It was a statement as to his feeling in regard to the matter which could have been contradicted by him at the time if it were untrue, and we do not think the answer could in any way have affected the jury in rendering the verdict they did. Instructions given by the defendants to their workmen, not in the presence of the plaintiff, were properly excluded.

The judgment should therefore be affirmed, with costs.

Bischoff and Pryor, JJ., concur. •


author: Daly, Ch. J.

text:
    Michael Noonan, Resp’t, v. The Mechanics & Traders’ Bank, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    Honey received—Liability of assignee to return balance.
    Plaintiff, who was indebted to various parties, assigned his claim against the city under a contract to defendant, for the purpose of paying such indebtedness. He had previously assigned portions of the claim to his other creditors, who all joined with defendant in assigning the claim to an attorney, with whom plaintiff joined in an action against the city, and who retained a balance after paying off said claims. No agency as between defendant and said attorney was shown. Held, plaintiff's right of action to recover such balance was against such attorney, and not against defendant.
    Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of plaintiff for $1,610.02,, damages and costs, entered upon verdict directed by the court.

      Thomas J. McKee, for app’lt; L. Laflin Kellogg, for resp’t.

       Reversing 44 St. Rep., 768.

   Daly, Ch. J.

The plaintiff, Michael Noonan, having a contract, dated October 24, 1878, with the mayor, aldermen and commonalty of the city of New York for regulating and grading, curbing and flagging the Eleventh avenue boulevard, from One Hundred and Fifty-fifth street to Kingsbridge, and for the construction of sewers, etc., made an assignment on August 22,1879, to the Mechanics & Traders’ National Bank (to whose rights and obligations this defendant, the Mechanics & Traders’ Bank of the city of New York, has succeeded) of all the moneys due, and to grow due, under said contract as collateral security; and this-action is brought to recover from the defendant the sum of $1,000, with interest from May 4, 1884, alleged to have been collected and retained by the bank under such assignment in excess of the sum which it was intended to secure.

It appears that the plaintiff Noonan had previously, on May 3, 1879, made an assignment of the same moneys to John H. Strahan, and in the years 1880, 1881 and 1884 he assigned part of the same moneys payable under the contract to several other persons. All the assignees afterwards assigned their respective interests in the fund to one McKee, who thereupon, as co-plaintiff" with Noonan, brought an action in the supreme court against the mayor, aldermen and commonalty to recover the balance due under said contract, compensation for extra work and damages. Judgment was recovered in that action against the city for the whole amount claimed, viz. : $126,221.98, principal, interest and -costs, and under the provisions of the judgment that amount was paid to McKee, who was adjudged entitled to receive it as .assignee and sole owner and holder of the cause, or causes, of ^action. McKee paid to each of the parties to whom plaintiff had .assigned, as aforesaid, the amounts to which they were respectively entitled, among others paying to the Mechanics & Traders’ .Bank $21,299.48, the exact sum due them, and no more. After all such payments there was $1,000 left, and McKee retained it; and it is that sum for which Noonan now sues the-bank.

It would seem from the mere statement of the facts that the claim of the plaintiff is against McKee, and that he has no cause •of action against the bank. If the latter, under the assignment ■originally made to it by Noonan, were obliged to account to him, 'the subsequent transfer by it to McKee of all its right, title and interest, which transfer was made with Noonan’s knowledge and assent, relieves it from any such obligation. The knowledge and assent of Noonan appears, among other proofs, by his letter of dixections to McKee, dated February 12, 1884, directing him how to dispose of the fund after paying the claim of the bank; by his joining McKee as co-plaintiff with himself in the action against the city, claiming'that McKee, as assignee of Strahan of all the causes of action, was vested with the title to all the sums due; and by the judgment in their joint action, by virtue of 'which McKee collected such sums; which judgment, if not conclusive upon the plaintiff, is the fullest ratification of the substitution of the latter in place of the bank, or of Strahan, as assignee of the whole fund.

Plaintiff seeks to hold the defendant liable upon the theory that McKee was its agent to collect the moneys under the several assignments. If such agency were established, the action, of course, would be maintainable; but there is nothing in the case to show agency; on the contrary, the plaintiff, in his letter of instructions to McKee, above referred to, treats him as the assignee, trustee or depository of the whole fund, and not as the agent of the bank, and specifically states what sum he is to pay the latter, viz.: $20,665.91, as “the claim of the bank” on four notes signed •or endorsed by him. This is wholly inconsistent with the claim mow made that McKee was bound to account to the bank for the whole sum collected under the judgment, $126,979.80, and that the bank is to account to the plaintiff therefor.

The judgment should be reversed and a new trial ordered, with •costs to the defendant to abide the event of the action.

Bischoff and Pryor, JJ., concur.


text:
    Thomas Brennan, Resp’t, v. Chester W. Chapin, App’lt.

      (New York Common Pleas, General Term,

      Filed June 6, 1892.)

    1. Statute of frauds—Promise by husband to pay for keep of wife’s PROPERTY.
    A promise by a husband to pay for the keep of Ins wife’s horses is one to answer for the debt, default or miscarriage of another, and is void under the statute unless in writing.

      2. Same—Parties.
    If such promise was made as the agent of the wife, or for her benefit, she and not the husband was the proper person to be sued.
    ■3. Contract—Implied.
    A recovery for the shoeing of horses cannot be had where the same has been done without a request or a promise to pay for the same.
    Appeal from a judgment rendered in the district court of the oity of Mew York for the seventh judicial district.

      William J. Kelly, for app'lt; Samuel G. Adams, for resp’t.
   Bookstaver, J.

This action was brought to recover the sum of ,$203.90, which the plaintiff claimed was due him for feed and care of certain horses, alleged to belong to the defendant, between February 11, 1891, and May 11, 1891, and also to recover the value of eight pigs which plaintiff claimed he had purchased from defendant and which he had failed to deliver; also, the cost of shoeing a team of horses, and for services in removing defendant’s furniture.

From the return it appears that the plaintiff owned certain premises on Bose street, in this city, and Amelia W. Chapin, the wife of the defendant, owned a farm at Bed Bank, M. J. A contract was made on the 12th February, 1891, for the exchange of these properties, and by its terms the deeds were to be delivered on the 12th March, 1891; this time, however, was subsequently extended until the 16th of that month, when the deeds were delivered.

Plaintiff’s action seems to have been based on the theory that after he signed the contract on the 12th February, 1891, he was entitled to possession, because, as stated in his bill of particulars, he charged for boarding the horses from that time. Of course a mere contract to purchase or exchange property gives no right to possession before its completion by the delivery of the deeds, without an express agreement to that effect, either in the contract itself or out of it. But no such agreement was proved upon the trial. It is true the plaintiff testified that he did take possession on the 12th February, but he showed no agreement to allow him to do so, nor did he show any acts of possession except visiting the property on two or three occasions, which seem to us to have been rather in pursuance of a license to do so than an agreement that he might take possession ; ■ because all of the servants employed on the premises until the 16th March were under the direction and control of the defendant or his wife, and their services were paid for by the latter. There was no visible change of ■ownership. Clearly, therefore, the plaintiff was not entitled to recover for the keep of the horses before the latter date; and on the argument of this appeal it was claimed by the respondent that the court below only allowed for the board of the horses after the 16th March. But it appears from the return that these horses were without doubt the property of Mrs. Chapin and not of the defendant. There is nothing in plaintiff’s testimony to dispute this fact Although the plaintiff testified that the defendant promised to pay for their keep, this is denied by the defendant, and even if he made the naked promise, it was to answer for the debt, default or miscarriage of a third person, and was not in writing and, therefore, void under the statute. Neither was it shown that in making the promise the defendant acted as the agent for his wife or was authorized by her to make it, and even if it had been made for her benefit then she and not the defendant should . have been sued for the board of the horses. We are also strongly inclined to the opinion, from the evidence, that the horses were kept on the farm in New Jersey at the request of the plaintiff and were used by him for such work as they were fitted to do, and that it was the intention of the parties that this should be in full payment for their keep ; and it further appears that the defendant or his wife frequently sent for them before they were delivered to her or her agent

^ As to the the pigs, it is true that the contract of sale called for the delivery of live stock on the premises at the time of its execution, with certain exceptions, and there is some evidence on the part of the plaintiff that at that time he and another counted twenty-one pigs. But there is no evidence as to whether or not these pigs were at the time all on the premises to be exchanged for the Bose street property, or belonged to Mrs. Chapin or her husband.

There is nothing' in the return to show but that the shoeing of the horses was a voluntary act on the part of the plaintiff. He does not show a request from Mr. Chapin or anyone else that it should be done, or a promise to pay for the same.

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

Bischoff, J., concurs.