text:
    Central Trust Co. of New York, App’lt, v. New York City and Northern R. R. Co, Impleaded with George Slessman Scott, App’lt, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

      1. Practice—Power of court to order a reference to take testimony AS TO FACTS AND TO REFUSE TO ENTER AN INTERLOCUTORY judgment—Code Civ. Pro., § 1221, sued. 3, § 1001.
    An action was brought to foreclose a mortgage given by the defendant railroad company upon its property to secure an issue of bonds. The right of the plaintiff to this relief was resisted by the railroad company and others contesting the legal validity of the bonds. The bonds were held to be voidable at the election of the railway company with the exception of those which had passed into the hands of holders for value without notice. After reaching this conclusion an order of reference was made directing the referee to inquire who were the holders of the bonds in controversy, for what they had been acquired and what consideration had been paid for the bonds by the then or their preceding holders. Held, That it was discretionary with the court upon toe determination of the controlling rights of the parties in the litigation whether to allow an interlocutory judgment embodying findings of fact, etc., to be entered then or to require the parties to wait until the return of the report of the referee and then enter a final judgment.
    2. Same—Such order is appealable—Code Civ. Pro, § 1347, sued. 4.

      Held, That the order affected a substantial right and was revlewable upon the merits upon an appeal taken under subdivision 4 of section 1347 of the Code of Civil Procedure.
    3. Same—Reference—When court may order—Code Civ. Pro., § 1013— When it affects a substantial right—Code Crv. Pro., § 1347.

      Held, That the court was authorized under Code Civ. Pro., § 1013, to direct a reference either before or after an interlocutory or final judgment, this being in effect an accounting. And'that under Code Civ. Pro., £ 1347, the order of reference could be appealed from as it affected a substantial right.
    Appeal from an order directing a reference and denying an application for a settlement, and making of findings of fact and law, and motion by respondent to dismiss the appeals.

      William Allen Butler, Julien T. Davies and Edward Lyman Short, for app’lts; James C. Carter and Lewis Cass Ledyard, for resp’ts.
   Daniels, J.

This action was brought to foreclose a , mortgage given by the railway company upon its property to secure an issue of bonds amounting to the sum of $4,000,000. The right of the plaintiff to this relief was resisted by the railway company and others contesting the legal validity of the bonds. The result of the trial of the issues, including these subjects, was the conclusion of the court that the bonds had been unlawfully issued, and that they were voidable at the election of the railway company, with the exception of those which had passed into the hands of the holders for value, without notice. After reaching this conclusion the order of reference was made directing the referee to inquire who were the holders of the bonds in controversy, and for* what they had been acquired, and what consideration had been paid for the bonds by their present or preceding holders. Other subordinate directions were given, but it was for the object of more especially and fully obtaining information upon these subjects that the reference was ordered. This order of reference has been resisted on the ground that when the court reached the decision that it did, an interlocutory judgment should have been entered embodying findings of fact and law which might be reviewed by the parties by way of an appeal or a motion for a new trial. But the system of practice now existing has not required that an interlocutory judgment shall be entered as the result of such a decision. Neither was the practice mandatory in this respect as it previously existed in courts of equity in this state, for they were at liberty to hear the case fully and completely, and determine it by a final decree; or, which was the more ordinary system followed, to direct an interlocutory decree, when that should be proper, providing for further proceedings to ascertain details for the relief before a master. The jurisdiction of the court sanctioned either one of these two proceedings, as they might be deemed the most practicable or advisable. And the present system of practice has made no change in this respect in trials of these issues of fact, for it contains no direction that an interlocutory judgment shall be entered upon the. determination of the court as to the controlling rights of the parties in the litigation. The Code has been framed in such language as to permit, without requiring, an interlocutory judgment, and to provide for exceptions to be presented and filed, and a review to be had, either by way of appeal or a motion for a new trial; and these provisions will be found to this effect in sections 1200, 1349, 1001 and 1231. But even such an appeal or motion is not indispensable for the review of the judgment, for that may be had upon an appeal from the final judgment when the intention tó review on such appeal the interlocutory judgment shall be expressed in the notice. Code, §§ 1230, 1301, 1316 and 1350. But neither of these sections has been so framed as to require an interlocutory judgment to be entered in the action in which a trial may be had before the court or a referee; but they at most regulate the practice authorized to be pursued when such a judgment shall have been entered in the action. The mandatory provisions directing that a report shall be made and filed relate only to the determination of the whole issue in the action. And they are contained in section 1012 and subd. 3 of § 1221. Such a report or decision, then, becomes indispensable for the determination of the controversy in. the action.

That it was not intended to be obligatory upon the court to make and file this decision before the final determination of the action is further evident from the latter portion of section 1013 of the Code, which permits the court of its own motion, in an action triable without a jury to direct a reference to a referee to report his finding upon one or more specific questions of fact involved in the issue. That must necessarily be done before the complete decision of the action. And it is after that, and when the remaining issues in the case have been tried, that it has been provided by section 1226 for the entry of the judgment. And the reference ordered in this case seems to be within the language of this section.

By section 1015 also, the court has been authorized of its own motion to direct a reference to take an account, either after an interlocutory, or final judgment, or when it is necessary to do so for the information of the court. And under tins authority this reference seems to have been provided for. And that was suggested as correct practice in Camp v. Ingersoll (86 N. Y., 433). This authority, it is true, is restricted to the taking of an account; but this language includes more than the mere adjustment of items, charges, credits and figures. It permits inquiries to be made in this matter where details are to be obtained and settled, and such was the practice which has been followed in courts of equity. Story Eq. Jur. [5th ed.], §§ 441, 453. In the last of these sections it is stated: that “in virtue of this general jurisdiction in matters of account, courts of equity exercise a very ample authority over matters apparently not very closely connected with it, but which natually, if not necessarily, attach to such jurisdiction.” What the court required in this case was a statement of the bonds which the railway company had attempted to issue, under the mortgage, and that was, strictly speaking, a matter of accounting, as inquiries of this nature have been set on foot and followed in courts of equity. And as incidents of that accounting, it was within the authority of the court to to direct proof to be taken, as to the manner in which the bonds had passed into the hands of the parties holding them, and the consideration for which they had been received. The inquiry as to all these subjects was within this broad authority, allowing a court to direct a reference to take the account. The plain object was to furnish the data upon which the details of the action might be determined, and when the report of the referee shall be made and heard, that, as well as his conclusions, are subject to be reviewed, corrected or set aside as the case may require, under the authority of section 1232 of the Code.

To enable the referee intelligently to take proof upon, and hear and report concerning the subject of the reference, no other statement of that subject was required than that which was contained in the order. An interlocutory judgment was not necessary for this purpose. The action still remained before the same court, although the proof upon the essential issues, as the pleadings presented them, had been concluded, and the court on that part of the case had reached what was considered a final decision. But it was not in a condition finally to determine or declare the particular rights of the parties. This further information to be sought through the intervention of a reference was to complete the trial, and when it shall have been obtained the court will be in a condition to proceed and determine the case by a final judgment. And before that can be entered conclusions of fact and law will be required to be settled and filed, presenting what shall be deemed to be the results of the evidence and the rights and obligations of the parties. And it will facilitate this determination to obtain the proof and report contemplated by the order, and place the action in a condition in which upon an appeal all the questions arising in it may be finally decided, and the rights of the parties fixed and determined.

If an interlocutory judgment had been provided for, no more than this would have been accomplished through its intervention, for the ultimate and final decision of the action would, if the views of the trial court should be sustained, still await the hearing and accounting directed by this order.

The order does affect substantial rights in the action. And it is the subject of an appeal under subdivision 4, of section 18ifí of the Code. And while it was regular for the court to make the order within the authority of the sections of the Code already mentioned, it is still reviewable under this subdivision and subject to correction, if the inquiries directed by it should be held to be broader than the court had the power to give. Whether the decision made by the court upon the effect of the evidence produced before it is erroneous or not, is not now to be considered. That subject has not been -discussed by the counsel, but the suggestion has been made on behalf of the plaintiffs that a day should be assigned for an argument of the merits of the controversy; and if that is still to be insisted upon by the counsel, the case may yet, as the order is applicable, be brought before the consideration of the court for the determination of the questions arising upon the evidence. But probably the more judicious course o£ proceeding will be to complete the hearing before the referee and then bring up these questions for review after final decision and judgment in the action shall have been entered. For the present, however, it will be sufficient to hold that the reference was authorized, if the court was warranted in the conclusions upon which the order proceeded. The parties affected by the order were entitled by their appeal to bring it before the court for its consideration and decision; hut to avoid any conclusive effect from it hereafter, the order should he modified, declaring that the reference is without prejudice to the consideration of any question arising upon the trial whenever any legal action shall be taken for their review in the subsequent progress of the litigation. With this modification the order of reference, as well as that denying the application for findings of fact and law, should now, subject "to the plaintiff’s right to bring on the merits of the appeal, be affirmed, and the motion made to dismiss the appeals should be denied, without, costs to either party.

Davis, P. J., and Brady, J., concur.


source: Caselaw Access Project

author: Daniels, J,

license: Public Domain

text:
    John H. Burke, Resp’t, v. The Mayor, etc., of the City of New York, Appl’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Assessment—Honeys paid under void assessment may be recovered BY ACTION.
    Where an assessment is wholly void it is not necessary that it should he vacated by an order of the court to entitle the plaintiff to recover back the amount paid upon the assessment, but the proceeding through which it was made may be wholly disregarded and an action brought against the city to recover back the money.
    2. Same—Demurrer—Demand for judgment.
    In such an action a demurrer having been interposed it is no objection to plaintiff’s right to maintain the action that the demand for judgment may have included more than the amount of the assessment.
    Appeal from a judgment recovered on an order overruling a demurrer to the plaintiff’s complaint as frivolous.

      George 8. Coleman, for app’lt; Elliot Sandforcl, for resp’t.
   Daniels, J,

The object of the action was the recovery of the sum of $219.90, with interest thereon which had been paid upon an assessment for a local improvement in the city of New York. The objection chiefly taken to the right of the plaintiff to maintain this action, was placed upon the effect of section 891", of chapter 410, of the Laws of 1882. But this action is not controlled by this section, for the reason that it appears by the complaint, that the assessment itself was void, and that the payment was coerced under its apparent authority. That it was void, was held in Matter of Deering (85 N. Y., 1). And being wholly void, it was not necessary that it should be vacated by an order of the court to entitle the plaintiff to recover back the amount paid upon the assessment. But the proceeding through which the assessment was made, could be wholly disregarded, and an action brought against the city to recover back the money. People ex rel. Hays v. Brooklyn, 71 N. Y., 495; Bruecher v. Village of Port Chester, 31 Hun, 550; affirmed, 101 N. Y., 240.

It was no objection to the right of the plaintiff to maintain the action that more than this may have been included in the demand for judgment, for as the facts were admitted by the demurrer, the plaintiff was entitled to recover this sum of money. There could be no dispute as to the defendant’s liability, and the order overruling the demurrer was rightly made. The judgment should be affirmed with costs.

Davis, P. J., and Brady, J., concur.


author: Per Curiam.

text:
    Gotthold Haug, Resp’t, v. Christopher Rissner, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Master and servant—Duty of master.
    A master is bound to use all reasonable care, diligence and caution in providing for the safety of those in his employ and furnish for their use in his work safe, sound and suitable tools, implements, appliances and machinery in the prosecution thereof and keeping the same in repair. The master cannot exempt himself from liability for the omission of this duty by delegating its performance to another.
    2. Same—Ignorance not a defense in suit for damages.
    Ignorance on the part of the master of the defects in the instrumentalities used by his servants in performing his work is no defense to an action by an employee who has been injured by them when by the exercise of proper care and inspection the master could have discovered and remedied the defects or avoided the danger incident thereto.
    Appeal from judgment on verdict.

      Kurtzman & Yeaman, for app’lt; S. B. Levy, for resp’t.
   Per Curiam.

This action was brought to recover for injuries received by the plaintiff, an employee of the defendants, while engaged in working a press for stamping tin plates for oil cans. A portion of the plaintiff’s thumb and fingers were cut off and mutilated by the falling of a die or stamp while he was engaged in running the machine and it was claimed on his part that the injury occurred by reason of the machine being out of order and not in a suitable condition to be worked which fact was not known by him.

On the part of the defense it was claimed that the machine was in good order and that the accident occurred by the negligent act of the defendant in placing and leaving his hand where the stamp fell upon his fingers.

There was such conflicting evidence upon this question of fact and it was properly as we think, submitted to the jury.

The case was submitted by the learned judge in a very plain and impartial charge in which the jury were well instructed as to the true ground upon which to determine the case.

The role governing such case is stated by Rugeb, 0. J., in Benzig v. Steinway (101 N. Y., 547). “The rule is unqualified that a master is bound to use all reasonable care, diligence and caution in providing for the safety of those in Ms employ and furnishing for their use in Ms work safe, sound and suitable tools, implements, appliances and macMnery in the prosecution thereof, and keeping the same in repair, for it is the master’s duty and he cannot exempt himself from liability for its omission by delegating its performance to another.” And again in the course of his opinion he says: “ Ignorance by the master of the "defects in the instrumentalities used by his servants in performing his work is no defense to an action by an employee who has been injured by them when by the exercise of proper care and inspection the master could have discovered and remedied the defects or avoided the danger incident thereto.”

Under these rules of law which are abundantly sustained by authority the evidence on the part of the plantiflc if accepted by the jury did we think establish facts justifying the verdict in this case and as we think no material error occurred in the rulings during the trial or in disposing of the the requests tó charge, we think it our duty to affirm the judgment.


author: Brady, J.

text:
    Josephine Koush, Resp’t, v. Joseph Ketzlik, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Partnership—Dissolution—Accounting—Interlocutory judgment— Question op pact.
    In an action for an accounting of a partnership existing between the parties and for a dissolution of the same, the trial court having determined upon conflicting evidence that such partnership had been formed between the parties and an interlocutory judgment having been ordered dissolving the partnership and directing an accounting: Held,, that the conclusions based upon the evidence being correct the judgment should be affirmed.
    Appeal from a judgment and interlocutory decree dissolving a partnership and directing an accounting.

      Joseph E. Newberger, for app’lt; Charles Sleekier, for resp’t.
   Brady, J.

This action was commenced for the purpose of enforcing an accounting of the partnership existing between the parties and for a dissolution of the same.

The learned, justice in the court below, upon evidence that is in some respects conflicting, determined in favor of the plaintiff the only question at issue between the parties on the pleadings, namely, whether or not a copartnership existed between them. The learned justice was impressed with the truth of the allegations on that subject upon the trial, and the subsequent examination of the evidence taken before him led to the confirmation of his convictions; and he declared, therefore, that a partnership had been formed between the parties, and that the dissolution sought should be granted and an accounting ordered.

A careful perusal of the testimony justifies us in declaring—if it does not require us so to do—that the conclusions arrived at in the court below are not only correct but must be sustained. The learned justice has expressed his views in an elaborate opinion, containing evidence of a thorough appreciation of all the facts and circumstances and stating conclusions and results which are entirely satisfactory.

The record presenting only a question of fact for consideration, it is not deemed necessary to express the views entertained more elaborately, and we, therefore, affirm the judgment, with costs.

Davis, P. J., and Daniels, J., concur.


author: Daniels, J.

text:
    Levi M. Bates et al., App’lts, v. James C. McNulty et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

      1. Practice—Finding of fact—Upon general evidence—Circumstances justifying.
    In a judgment creditor’s action to set aside an assignment for the benefit of creditors as fraudulent because it included partnership property out of the proceeds of which the assignor’s individual indebtedness was first directed to be paid, it was found by the trial court that the assignor was the surviving partner of the firm and that he had purchased the interest of his deceased partner. Held, that the fact that the witness who testified to this * had been called and examined by the party assailing the assignment, and he having had an opportunity to examine precisely as to the circumstances under which the interest was acquired, his failure so to do strengthened the very general evidence supporting the conclusion and justified the court in so finding.
    2. General assignment by partner having purchased interest of deceased PARTNER MAY DIRECT PAYMENT OF INDIVIDUAL DEBTS BEFORE PARTNERSHIP DEBTS.

      Held, there being nothing to show that the business was at the time of the purchase insolvent, and that the embarrassments leading to the assignment arose subsequent to the decease of the other partner, and the purchase having been made in good faith, that the surviving partner might execute and deliver a general assignment of the form now in controversy.
    Appeal from a judgment recovered on trial before the special term.

      John W. Bootliby, for app’lt; William Stone, for resp’t.
   Daniels, J.

This is a judgment creditor’s action to set aside a general assignment executed by the judgment debtor NcNulty to the defendant Byrne for the benefit of creditors. The assignment upon its face appears to be formally accurate, but it' has been assailed as fraudulent for the reason that it included partnership property, out of the proceeds of which the individual indebtedness of the assignor was first directed to be paid. But this objection was considered to be unavailing at the trial, for the reason that McNulty was the surviving partner of the firm, and had purchased the interest of his deceased partner in the property. And that this purchase had been made was found as a fact by the court at the trial. This finding has been urged to be unsupported by the evidence given upon the trial. And it is true that the evidence relating to the fact was very general, but the answer to the objection is found in the circumstance, that the witness giving the testimony was called and examined by the counsel for the plaintiffs, who was evidently indisposed to require any thing more precise on this subject than was elicited from the witness. He stated that he did put money into the business, to buy out the interest of the widow of the deceased partner, and a small balance over what was due to her. If the counsel for the plaintiffs had. not been contented with this very general evidence, he should have interrogated the witness further, and obtained from him the facts and circumstance precisely, under which the interest in question, and his failure to do so strengthened this very general evidence, and justified the court in acting upon it as proof of the fact it tended to establish, and that was, that the surviving partner had become the owner of the interest of his deceased partner in the property after the period of his decease.

There was no evidence in the case from which it could be inferred that the business was at the time of this purchase insolvent, but the testimony given by the same witness indicated the fact to be otherwise, and that the embarrassments of the business leading to the assignment arose subsequent to the time of the decease of the other partner. Neither was there any evidence of bad faith on the part of McNulty in purchasing the interest or making the assignment. And under this state of the case the principle has now become very well settled that the surviving partner who has acquired the right and interest of the deceased partner in the firm property, may execute and deliver a general assignment in the form of that now in controversy. This was held by this court upon the decision of an appeal from an order vacating an attachment against the property of this assignor, and it has since been sanetioned as the law in Stanton v. Westover (101 N. Y., 265), as it had also been previously declared in the same court.

Evidence was excluded upon the trial which in strictness ought to have been received, but as the controlling facts were sustained by the proof which was received, the judgment should not be reversed on this account. There was, for a similar reason, no error in the refusal of the court to find the facts as requested on the part of the plaintiffs.The case was disposed of as it should have been by the proof which was presented, and the judgment should be affirmed, with costs.

Davis, P. J., and Brady, J., concur.


author: Brady, J. Davis, P. J.

text:
    Anna A. Baird, App’lt, v. Elizabeth B. Richardson, Adm’rx, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Negligence—Contributory—Discrimination -as to infants.
    In an action brought by a father to recover damages resulting from & loss of services through injuries received by his infant son, twelve years of age, in the employment of defendant’s decedents, who were copartners, in the printing business, both of whom died subsequent to the injury. Held, that while it is true that persons of tender years are not held to such strict accountability upon the doctrine of contributory negligence as persons of maturity, yet the discrimination in that respect relates to the submission of the question to the jury; so that what might be considered in older persons evidence of contributory negligence requiring the court to reject the claim made on that ground would, in cases where the injured person was of tender years, require the submission of it to the jury and its consideration of it with all the facts and circumstances surrounding it.
    8, Same—Survival of cause of action.
    Whether the cause of action in this case survived. Quaere.

    Appeal from a judgment entered on the report of- a referee and order of the special term.

      Roe & MacMin, for app’lt; Gerard Irvine Whitehead, for resp’t.
   Brady, J.

This action was commenced for the purpose of recovering damages resulting from a loss of services through injuries received by Harry N. Baird, the plaintiff’s son, while in the employment of the defendants’ decedents, who were copartners carrying on the business of printing under the firm name of Richardson & Poos, both of whom died subsequent to the injury. The claim was rejected by the administratrix and referred under the statute.

Upon the close of the plaintiff’s testimony, the defendant’s counsel moved for a dismissal of the complaint, on the grounds that no negligence had been shown on the part of the decedents; that there was contributory negligence on the part of the injured person, and that the cause of action did not survive. The motion was granted and the complaint dismissed. The learned referee held not only that the action did not survive, but that upon the merits the plaintiff was not entitled to succeed, inasmuch as the claim was not supported by any evidence of neglect by the decedents or omission by them, or either of them, or any of their employees.

On application to confirm the report at special term, the learned justice there presiding held the referee to have been in error in proclaiming that the action did not survive, but right in Ms determination that the plaintiff was not entitled to succeed upon the merits.

We entertain no doubt that the cause of action survived, but do not design to discuss that question, leaving it upon the opinion rendered at special term, inasmuch as the conclusion at wMch we have arrived in considering the merits renders it unnecessary to do so.

The plaintiff’s son, who was employed by the decedents, was, at the time the accident occurred, between twelve and thirteen years of age. He had been employed for some time in the decedent’s printing establishment, and according to the evidence, his own included, had been instructed in various tMngs, among others in the manner of feeding different printing presses, varying in size, but all having the same action. He knew, therefore, from actual experience, the working of these machines, having fed them in the course of his employment, and, therefore, he must be supposed to have had knowledge of any danger attending the performance of that labor. When injured he was feeding the largest press. He had on former occasions fed the same or a similar machine, but Ms labor had been superintended or overlooked by another person under whose orders he was acting, while on the occasion of his injury he was working unattended, running the press alone, and for which it was supposed he had the necessary capacity. The process, however, of feeding the machine is not so clearly stated as to advise the court of the attendant danger, and no explanation of the precise mode in wMch the accident occurred is given by the witnesses. The court is left to the conjecture that the machine, in the hands of an inexperienced or inattentive person, might cause injuries in the act of feeding it, as it is termed, but why or in what respect, or for what particular reason, does not clearly appear.

The plaintiff it is true called as a witness a person of experience, who testified that it was injudicious to employ a person of the tender years of the plaintiff’s son to attend the machine which he was feeding when he was injured, and that it was his habit, in the management and conduct of his business, not to permit a person under fourteen to perform that work. But the testimony of the plaintiff including several persons in the employment of the decedents and fellow workmen, is to the effect that he could do it with safety ; that he was a bright, intelligent boy and had been sufficiently educated to understand not only how he could successfully discharge the duties he was called upon to perform, but in perfect safety. And the presumption from these facts seems to be that he must have been inattentive or careless, and therefore, subjected himself to the very great misfortune of disabling one of his hands for life.

It is true he says the motion of the machine was irregular; but the evidence on that subject elicited from one of his own witnesses, is to the contrary, namely, that the machine was in good order.

It is true, as suggested by the plaintiff’s counsel, that persons of tender years are not held to such a strict accountability upon the doctrine of contributory negligence as persons of maturity. But the discrimination in that respect relates to the submission of the question to the jury, in this case to the referee, so that what might be considered in older persons evidence of contributory negligence requiring the court to reject the claim made on that ground would, in cases where the injured person was of tender years require the submission of it to the jury and its consideration with ah the facts and circumstances surrounding it. McGovern v. N. Y. C. and H. R. R. R. Co., 67 N. Y., 417; Dowling v. N. Y. C. and H. R. R. R. Co., 90 id., 670; Barry v. N. Y. C. and H. R. R. R. Co., 92 id., 289. And this seems to be all there is of the difference between the application of the rules govering that legal proposition. Here the whole case was considered.

The result of the examination of this appeal in all its aspects therefore, is that the judgment should be affirmed.

Daniels, J., concurs.

Davis, P. J.

As said by my brother Brady, it is not necessary in this case to determine the question whether the cause of action survived. That question is not passed upon by the court now. With that understanding, I concur that the judgment should be affirmed.


text:
    Susan F. Platt v. Annie R. Platt et al.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Practice—Partition of real estate—When distribution of money derived FROM SALE OF REAL ESTATE WILL NOT BE STAYED.
    Where on the partition of real estate an order was made declaring, in conformity with a judgment in an action, that a certain attorney had no claim on the proceeds of said real estate. Held, that the distribution of the proceeds will not be stayed pending an appeal from said judgment where there is no ground disclosed upon which it can be affirmed to be probable that on appeal a different disposition of the case would be made than that directed by said judgment. f

    Appeal by the defendant Annie B. Platt, and the petitioner Edwin N. Martin, from an order denying a motion made to stay the distribution of the proceeds of real estate derived under sales made in partition.

      Aaron J. Vanderpool,.for app’lt; Marsh, Wilson & Wallis and Payson Merrill, for resp’ts.
   Daniels, J.

The order was made upon the hearing of a petition and affidavits sustaining it, upon which it was claimed that the petitioner E. N. Martin, was entitled under an agreement, made with William B. Martin, to a portion ■of the proceeds directed to be distributed. This was opposed by affidavits showing precedent proceedings, in which it had been determined that no such claim had a legal existence. It has been before the courts in various forms and miiformly determined against the claimant. It further appeared in one of the proceedings, that William B. Martin, the assignor of the petitioner had received upwards of $60,000 out of the estate, which he claimed to be entitled to for his legal services, but that claim was rejected, and the amount of his fees and allowances reduced to the sum of $40,000. An action had also proceeded to judgment, affirming the claim made to be without foundation, and this determination, together with the one made in the action of Edwin M. Martin, against Spencer 0. Platt, and others, seems to follow from the construction given to the will of the testator Nathan 0. Platt, in the case of Cooke v. Platt (98 N. Y., 35), for the contract under which William B. Martin made, the claim was with the executors of the estate, in whom no title vested, and who were without authority to bind it by their agreement.

Neither in the petition, nor the affidavit supporting it, has any ground been disclosed upon which it can be affirmed to be probable that on an appeal from the judgment recovered in the action of Martin v. Platt there can be any different disposition made of the case than that which has been directed by Mr. Justice Van Voest. Beported in 5 N. Y. St. Bep., 284. The facts as they have been found, the reasons assigned in support of the conclusions, together with the preceding litigation in which the demand made has been brought forward for controversy, have all discredited it to such a degree as to render a stay of proceedings under the petition which was presented entirely improper and without authority. The controversy has been carefully considered by different judges in entirely different proceedings, and the asserted claim has been condemned as incapable of being sustained. And on this state of facts the court would not be justified in interfering with the order from which the appeal has been taken, and making an order directing the stay which was applied for, alone on this petition and affidavit. The order was right, and it should be affirmed, together with the usual costs and disbursements.

Two motions were submitted with this appeal, and those which have already been considered taken from the other orders to dismiss the appeals for the want of service in proper form of the printed papers. But as the notices of the motions with the affidavit on which they were proposed to be made, were served by mail when that service does not appear, to-be authorized by the practice, these motions should be denied, but, as the facts are made to appear, without costs.

Davis and Brady, JJ., concur.


text:
    Charles L. Weller, receiver, etc., Resp’t. v. J. B. Page Tobacco Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30,1886.)

    Practice—Answer—Irrelevant matter stricken out.
    In an action brought to obtain a judgment requiring a transfer on the corporate books of the defendant of 273 shares of its stock claimed to be owned by the plaintiff, the answer, among things, set forth by way of de- ■ fense the manner in which and the laws under which the corporation was organized, and that there was an agreement as to who should manage the company, etc., and that the interference of a California receiver as stockholder of record of a majority of the stock, and so electing trustees and officers, would be an interference with apd.inconvenience to Hew York citizens and stockholders by a foreign receiver not permissible in a court of equity, etc. Held, that this matter was entirely irrelevant and properly stricken out.
    Appeal from an order striking out certain portions- of the defendants answer as irrelevant.

      William A. Jenner, for app’lt; Robert L. Harrison, for resp’t.
   Daniels, J.

The action has been brought to obtain a judgment requiring a transfer on the corporate books of the defendant of 273 shares of its stock claimed to be owned by the plaintiff. Various matters were set forth in the answer by way of defense, but those which, have been directed to be stricken out include averments of facts, a brief synopsis of which is contained in the points of the defendant’s counsel. This synopsis sets forth substantially the ground work of so much of the defense as was considered by the court to be irrelevant to an action of this description. The facts- as they are collated which these portions of the answer contained are briefly as follows:

The first defense, in substance, that the defendant was organized in February, 1882, as a manufacturing corporation under the New York general law, expressly for the purpose of operating the J. B. Page factory, at Richmond, Va., which had been purchased for defendant by Esberg, Bach-man and Ehrmann, and conveyed by them to defendant; that the New York stockholders of defendant took their stock upon an agreement with Esberg, Bachman and Ehrmann, that the latter should take a majority of the stock, and control and manage the company, giving it the benefit of their experience and facilities, and upon that understanding the company was organized, $300,000 of capital contributed, the factory bought, 400 men employed, and the business actively and prosperously carried on; that the interference of a California receiver, as a stockholder of record of a majority of the stock, and so electing trustees and officers, would be an interference with and inconvenience to New York citizens, the company and its stockholders, by a foreign receiver, not permissible in a court of equity in this state, especially as there was no finding in the California action that any body other than Esberg, Bachman & Company, had any interest in said 273 shares. And it is entirely clear from them, as well as the much more elaboration of them contained in the answer, that they are entirely irrelevant to the controversy which the action has been brought to settle. They afford no legal reason why the stock should not be transferred, or the plaintiff permitted to maintain the action, not contained within the other portions of the answer. They were very clearly irrelevant, and the order made directing them to be stricken from the answer was right, and should be affirmed with the usual costs and disbursements.

Davis and Brady, JJ., concur.


text:
    Mary Jones, Resp’t, v. Morgan Jones and Ann Jones, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Will— Publication—What proof of, will justify the submission of THE QUESTION TO THE JURY—No FORMAL STATEMENT NECESSARY.
    Mr. Einigan, a lawyer, having been advised by one Sheridan that John Jones wished him to draw his will, called upon Jones in the afternoon and it was agreed that the will should be drawn and executed at seven o’clock in the evening of the same day, at which time the witnesses were to be present. Einigan, Jones, Furlong and Sheridan met on that evening, and the will was then drawn from instructions given by Jones and in hi s' presence and read to him by Einigan. He said it was correct, but would rather have Sheridan read it over to him, which he then did carefully and slowly. He then signed it, and Mr. Einigan said to him, “I will sign it as a witness and then Sheridan,” to which he answered, “ All right;” and when Furlong signed it he said, “Put your residence there; don’t forget that.” In an action of ejectment impugning the validity of defendant’s title acquired under said will, the will was offered in evidence and rejected on the ground that there was not sufficient evidence of due execution. Held, that the court erred in refusing to admit the will in evidence; that the question as to its due execution should have Tbeen submitted to the jury.
    Appeal from a judgment rendered by a jury at circuit. Exceptions to be heard in the first instance at the general term.

      Jacob F. Miller, for app’lts; John E. Parsons and D. B. Ogden, for Resp’t.
   Brady, J.

The plaintiff sought in this action to obtain possession of one-ninth of the property described in the complaint, her claim resting upon the allegation that she was one of the heirs at law of John Jones, who died seized of the premises.

The defendant Morgan Jones averred his ownership,of the estate under and by virtue of three deeds, duly executed and acknowledged by his brother, John iones, and by which it was conveyed, to him. The plaintiff assailed the validity of these instruments by evidence tending to establish their invalidity by reason of the mental incapacity of the grantor when they were made. The defendant Morgan Jones essayed to establish his title to the premises also by the will of his brother which was offered in evidence, but rejected on the ground that there was u not sufficient evidence of due execution.”

The jury having the issue as to mental capacity then before them only as to the deeds found for the plaintiff generally. The defendants moved for a new trial on the minutes and the exceptions taken by them, which motion was denied, and the exceptions by the order entered upon the decision of that motion were ordered to be heard in the first instance at the general term.

The learned justice, in declaring the result of his deliberation, said that it was a matter of great doubt whether there was sufficient evidence on the part of the plaintiff to go to the jury, but that as there were one or two pieces of evidence properly presentable to them, the verdict might not be disturbed, and he, therefore, ordered the exceptions to be heard as stated. Nothing was said upon the value of the exceptions, or any one of them, the learned justice having mainly, it would seem considered the motion in relation to the weight of evidence.

The wifi was an important element in the- defendant’s case, for the reason not only that it gave the defendant Morgan Jones the property in controversy, but in effect confirmed the previous transfers which the plaintiff sought. to destroy; and, if it were improperly treated as a part of the defendant’s case, a new trial must follow.

A careful examination of the evidence bearing upon its execution and publication results in the conviction that the question at issue on that subject should, at least, have been submitted to the jury. It was drawn by Mr. Finigan, a lawyer. He was advised that John Jones wished his will drawn, and he went to see him. At that interview, which took place in the afternoon, it was agreed that the will should be drawn and executed in the evening, and they were to meet at seven o’clock, with the witnesses necessary for that purpose. Mr. Jones suggested Mr. Furlong, who was then present, as one of them. In the evening, Messrs. Finigan, Furlong, Sheridan and Jones met as contemplated. The will was then drawn from the instructions given by Jones, and in his presence, and read to him by Mr. Finigan. He said it was correct, but would rather have Mr. Sheridan read it over to him, which Mr. Sheridan then did, carefully and slowly. Mr. Sheridan, it must be borne in mind, also, was the person who went to Mr. Fnigan at the request of Mr. Jones to get him to draw the will. He then signed it, and Mr. Finigan said to him, “I will sign it as a witness, and then Mr. Sheridan,” to which he responded, “All right;” and when Mr. Furlong signed it, he said, “Put your residence down there; don’t forget that.” The meeting arranged for the evening was in reference to the presence of the necessary witnesses chiefly, it would seem; and the evidence is not disputable as showing, or at least tending to show, that they knew not only what the paper was, but that they assembled to witness its execution, and that it was declared by the testator to be all right* he suggesting as a part of the necessary formula to Furlong that his residence should be added. Ño other conclusion can be reasonably entertained from these facts and circumstances than that the testator sufficiently declared the will to be his, and requested the witnesses to attest it. Two of them, Sheridan and Finigan, by instructions from him, knew what was to be done in the evening, namely, his will drawn, and it was so drawn in the presence of these witnesses, read twice to the testator, declared to be all right, and then signed by him and the witnesses. The attestation clause was full and complete.

In Wooley v. Wooley et al. (95 N. Y., 231), cited on behalf of the plaintiff, witnesses did not see the testatrix sign the paper, did not know it was a codicil, and there was no acknowledgment of it as such. It was signed as a paper purporting something the witnesses knew not what, and it was expressly said, as one of the reasons controlling the judgment pronounced, that there was no proof that the testatrix acknowledged her signature to the witnesses, and that there was nothing from which it could be properly inferred that she did so. Here, as will have been perceived, the will was signed in the presence of witnesses, who knew what it was, after it had been read over twice to the testator, once by each of two witnesses, and declared by him to be all right.

In the Matter of the will of Cottrell (95 N. Y., 335), many of the cases bearing upon this subject were considered, and it was said that the precise force which should be accorded a full attestation clause regularly authenticated, was not clearly defined in the cases, but that they all agreed in the conclusion that it was entitled to great weight in the determination of the question of fact involved. And, further, that such a clause, duly signed and corroborated by circumstances surrounding the execution, had been held sufficient to establish a will signed by the testator, even against the positive evidence of the attesting witnesses to the contrary. Indeed, it had been previously held that a will duly attested upon its face, the signatures to which were genuine, might be admitted to probate, although none of the subscribing witnesses were able to swear from recollection that the formalities of the statute were complied with, and even, although some of them should swear positively that they were not, if the other evidence warranted the inference that they were. Orser v. Orser, 24 N. Y., 52.

In Mitchell v. Mitchell (16 Hun, 97, and affirmed in 77 N. Y., 596), to which reference is made in Wooley v. Wooleysupra, the deceased produced a paper and said, “This is my will, and I want you to sign it, and the witnesses complied with the request; whereupon he took it, after saying, “I declare this to be my last wiE and testament,” delivered it to one of the witnesses for safe keeping, but there was no acknowledgment that what purported to be his signature was in fact made by him, which was held to be necessary and was quite distinct from his declaration of the nature of the instrument. It differs, therefore, from the case in hand, for the testator signed Ms wiE in the presence of the witnesses. See Willis v. Mott, 36 N. Y., 486.

The decision of this court in the Matter of Beckett (42 Hun, 447) seems, however, to be controlling in favor of the defendants. It was there said that no formal declaration of the paper executed as a last will and testament was necessary; no form of words was essential. It was only required that the witnesses should be given to understand by words or acts of the decedent that the proposed paper was intended as a will. And that ca'se in its facts is no stronger on the subject than this.

The doctrine of Remsen v. Brinckerhoff (26 Wend., 325, 332), approved in Gilbert v. Knox (52 N. Y., 125), was referred to, in which the chief justice said, “I agree that no form of words will be necessary; that the legislature only meant there should be some communication to the witnesses indicating that the testator intended to give effect to the paper as his will. ”

It is not deemed necessary to pursue this subject further. It is quite apparent, for reasons already assigned, that the question as to due execution, if any doubt were created, should have been submitted to the jury, and it was error, therefore, to exclude it.

For these reasons the judgment must be reversed and a new trial ordered, with costs to the defendants to abide the event.

Davis, P. J., concurs.


text:
    Fall Brook Coal Company, Resp’t, v. Richard Hecksher, Jr., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Practice—Contempt—Supplementary proceedings—Code Civ. Pro., §S 2281-1'284—Actual loss or injury must be proved, to support a FINE TO INDEMNIFY THE PARTY INJURED, IMPOSED UNDER THIS SECTION.
    The defendant failed to appear and answer, as he was required to do by an order made in supplementary proceedings, and the failure was repeated on a second occasion. On the return of an order to show cause why he should not be punished for his contempt, which cider was accompani.d by affidavits which showed the contempt, an.order was entered reciting that his misconduct did actually defeat, impede or prejudice the ri hts of the above named plaintiff. Held, that it did not follow from that circumstance alone that he was liable to be fined the amount of the judgment which had been recovered against Mm. The degree of punishment to be inflicted is I.mited by Code of Civil Procedure, section 2 .'84, to a fine sufficient 1 o indemnify the aggrieved party for th1 actual loss or injury produced by the misconduct, and to sustain tlie imposition of a fine for loss or injury, the fact of the e .istence of the loss must first be proved by legal evidence.
    2. Same—Proper order in such cases—Code of Civ. Pro., § 2285.
    The court should have fined the defendant by way of punishment, there being no proof of actual loss, in a sum not exceeding $250, in addition to the plaintiff’s costs and expenses, and then have directed his imprisonment, as prescribed by Code of Civil Procedure, section 2285, until he should appear and submit to an examination concerning Ms property, and pay the fine with costs imposed upon him.
    8. Same—When a fine imposed under section 2281 cannot be changed ON APPEAL TO A FINE FOR PUNISHMENT.
    No fine having been imposed upon defendant by way of punishment, but wholly for the purpose of indemnity, the general term could not reduce the fine in this instance to the amount or any portion of the amount which under section 2284 might have been prescribed by way of punishment for the defendant’s misconduct.

      Appeal from an order adjudging the defendant in contempt, and fining him the sum of $834.63, with ten dollars costs.

      James L. Bishop, for app’lt; Crane & Lockwood, for resp’t.
   Daniels, J.

The defendant failed to appear and answer as he was required to do by an order made in supplementary proceedings, and that failure was repeated on a second occasion. It was for that he was required to show cause why he should not be punished for his contempt. And as he was shown by the affidavits to be clearly in contempt, he was legally liable to punishment for that cause. But while the order recited that his misconduct did actually defeat, impair, impede or prejudice the rights of the above named plaintiff, as it was required it should do, by section 2281 of the Code of Civil Procedure, it did not follow from that circumstance alone that he was hable to be fined, as he was, the amount of the judgment which had been recovered against him. For the degree of punishment to be inflicted has been limited, by section 2284 of the Code, to a fine sufficient to indemnify the aggrieved party for any actual loss or injury produced by the misconduct. And as it was not proved by the affidavits that the plaintiff had sustained actual loss or injury, or had been deprived by the misconduct of the amount of his judgment, there was no foundation for imposing this large fine upon him. To sustain the imposition of a fine for loss or injury the fact of the existence of the loss must first be proved by legal evidence. Without such proof no authority exists for fining the delinquent party to compensate such loss. DeJonge v. Brenneman (23 Hun, 332). And the fine in this case was imposed, not by way of punishment, but wholly by way of indemnity, and for that it is devoid of all legal foundation.

The court had the further power in addition to that authorizing a fine for indemnity, to impose a fine upon the defendant by way of punishment not exceeding the sum of $250 in addition to the costs and expenses.

But that power was not exercised in this case. No fine was imposed upon him by way of punishment for his misconduct, but it was wholly for the purpose of indemnity and the court accordingly cannot reduce the fine in this instance to the amount, or any portion of the amount, which, under this part of the same section, might have been prescribed by way of punishment for the defendant’s misconduct.

A reduction in the fine in a proper case may undoubtedly be made, as was done in Erie Railway Company v. Ramsay (45 N. Y., 637, 655), and DeJonge v. Brenneman (supra). But there the fines which were imposed were in part supported by the facts, while here the fine is wholly unsupported by the facts made to appear upon the hearing. For it was entirely devoted to the object of indemnifying the plaintiff against loss or injury, when no loss, or injury whatever was made to appear. What the court should have done in this condition of the evidence was to have fined the defendant by way of punishment in the sum not exceeding the amount of $250, in addition to the plaintiff’s costs and expenses, and then direct his imprisonment, as that has been prescribed by section 2285 of the Code, until he should appear and submit to an examination concerning his property, and pay the fine with the costs imposed upon him. That authority was not exercised in any form, and accordingly the case presents no ground for modification, but it is one wholly for reversal.

The order which was made should be reversed, with the' usual costs and disbursements, and the case should be remitted to the special term for a further hearing, there to be proceeded with in conformity with this opinion.

Davis and Brady, JJ., concur.


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    Matter of the custody of Alma Nichols.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    1. Criminal law—When females may be sent to House of Mercy, etc. —Commitment—Not to be held invalid for ant imperfection or DEFECT IN FORM.
    Under the statute, Laws 1882, chapter 410, section 1466, as amended by Laws 1886, chapter 353, providing for the commitment of certain females to House of Mercy, etc., a commitment which recites the facts upon which it is based cannot be held to he invalid by reason of any imperfection or defect in form.
    2. Same—When petitioner should be bemanded.
    Upon habeas corpus where the commitment recites the several facts necessary to show jurisdiction and the conviction upon sufficient evidence of the alleged charge, the court should remand ihe petitioner even though there be some slight imperfection or defect in its form.
    Appeal from an order of special term, New York county, dismissing a prisoner on habeas corpus.

    Alma Nichols, a female, aged twenty-two years, was found on the 28th day of July, 1886, in a reputed house of prostitution, in company with prostitutes in the city of New York; was arrested and taken before a police magistrate, and by him committed to the House of "Mercy, upon proof of the facts above stated, under section 1466 of chapter 410 of the Laws of 1882, as amended by chap. 353 of the Laws of 1886.
    Writs of habeas corpus and certiorari directed respectively to the House of Mercy and the committing magistrate, were allowed by Mr. Justice Peckham, and the matter having come on to be heard before Mr. Justice Potter upon the returns, no traverse or demurrer having been interposed, the writs were sustained and the prisoner discharged. The commitment was as follows:
    POLICE COURT, THIRD DISTRICT.
    State of New York, ) . City and County of New YorJe, J is"

    By John J. Gobman, Esq., one of the police justices of the city of New York.

      To any one of the Policemen of the City of New Yoi'h:

      Whereas, Alma Nichols, a female, actually and apparently over the age of twelve years, to wit, vf the age of twenty-two years, was he etofore on the 28th day of July, 1886, duly brought before me for examination, charged before me upon the allegation under oath of Dennis Cahill,11 that she tue said female, Alma Nichols, on the 28th day of July, 1886, at the city and county •aforesaid, was found by said Dennis Cahill, the complainant, at premkés No. 74 Forsyth street, a reputed house of prostitution, and when found the said Alma was in company of prostitutes who are inmates of said house, in violation of the provisions of chapter 410 of the Laws of 1882. as amended by chapter 353 of the Laws of 1886 of this state. And I, having in due form of law examined the sail complainant and the witnesses before me produced, and also the said female, who was duly produced for my personal inspection pursuant to law, and it appearing and having been proven to me to my satisfaction, by competent te.timony and evidence, that the said female is, and on the day last aforesaid was, actually and apparently over the age of twelve years, to wit, of the age of twenty-two years, and on the day last aforesaid, at the city and county aforesaid, was found in said premises, No. 74 Forsyth street, a reputed house of prostitution, and is, and on the day last aforesaid was in danger of becoming morally depraved, in violation of the laws aforesaid. Now, therefore, I do hereby adjudge that the several allegations above set forth and stated to have been proved are true, and that said female is embraced within the provisions of the laws aforesaid, and that it is for the welfare of said female that she be placed in a reformatory, and that said female ¡s a proper object for the care and instruction of the reformatory institution known as the 'Protestant Episcopal House of Mercy, New York. .Now, therefore, in the name of the people of the state of NewYoik, you are hereby commanded immediately to take charge of the said female, and to deliver the said female without delay to the said Protestant Episcopal House of Mercy at its house of reception in the city of New York, to_ which reformatory institution such female is hereby committed, under and in pursuance of the provisions of the laws aforesaid, to be and remain under the guardianship of the said institution during a term of six months, unless sooner discharged by the trustees or managers thereof. And for so doing this shall be your sufficient warrant.
    Given under my hand and seal at the City of) New York, this 29tli day of July, 1886. J
    JOHN J. GORMAN, [seal.]

      Police Justice.

      Randolph B. Marline, dist. att’y, for People; Thomas B. Osborne, for resp’t; John B. Pine, for House of Mercy, app’lt.
   Per Curiam.

The proceedings before-the magistrate in this case appear to have been in conformity to the statute. The commitment recites the several facts necessary to show jurisdiction, and the conviction upon sufficient evidence of the alleged charge. Under such circumstances the court should have remanded the petitioner to the custody of the House of Mercy. The statute expressly provides that no commitment made under this act, which shall recite the facts upon which it is based, shall be deemed or held to be invalid by reason of any imperfection or defect in form.

We see no error in the proceedings which justified the court in discharging the petitioner upon the writ of habeas corpus.

The order must be reversed and the petitioner remanded.


text:
    Charles Z. Pond, as Executor, etc., Resp’t, v. The Metropolitan and Manhattan Railway Companies, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886)

    1. Railroad—Easement of light from a street—Abutting owners RIGHT TO RECOVER DAMAGES FOR INTERFERENCE WITH IT.
    Plaintiff brought this action to recover damages to a four story brick building belonging to him, s tuated on the corner of McDougal and West Third str ets, in New York city, resulting from the construction of an elevated road in West Third street, by the defendant, the Metropolitan Elevated Railway Company, and from the operation of the same by the defendant, the Man íattan Railway Company, which had become the lessee of the same, in 1879. Held, that while the defendant did not own the fee of the street, he had an easement of light therefrom, and such easement entitled him to maintain an action to recover the damages occasioned by any interference with, or interruption of the passage of the light from the street to his property. Following Gtorj v. New York Elevated Railroad, Company, 90 N. Y., 122.
    2. Same—What to be considered in determining the amount of damages.
    In determing the amount of the damages, the operation of the road as an entirety must he considered, and as the running of trains constitutes an essential part of the operation of the road, the interruption of the light occasioned thereby is to be considered as arisi. g from the structure and its uses, and as forming a part of the disturbing cause.
    3. Same—when one erecting and leasing road is liable for damages' RESULTING FROM THE RUNNING OF TRAINS BY LESSEE OF THE ROAD.
    The Metropolitan Railway erected the structure and equipped it for use, and on May 29, 1879, leased it to the defendant, the Manhattan Railway Company. Held, that such leasing did not prevent judgment from being given against both, as the first company by leasing it, when equipped for use, to the other defendant, continued the wrong complained of.
    Joint appeal by both defendants from judgment entered in plaintiff’s favor upon the findings and opinion of Justice Barrett after a trial at circuit without a jury.

      Edward Rapallo, for app’lts; Inglis Stuart, for resp’t.
   This is an action for damages to property of plaintiff’s testatrix by the defendants.

Susan J. Clark, plaintiff’s testatrix, owned the premises Ho. 136 MacDougal street, a four-story brick dwelling house, fronting twenty feet on MacDougal, and with its whole length, fifty-eight feet, lying along West Third street (more commonly called Amity). This street was laid out in 1823, pursuant to the general street opening act of 1813, and plaintiff's predecessor in title, Ireland, paid an assessment for such opening.

In front of these premises on West Third street, the defendant, the Metropolitan Elevated Railway Company, in 1876, built the present structure, and in 1878 commenced running trains thereon past the windows of this house, and in 1879, leased its property to the Manhattan Railway Company, which was operating it at the time this action was begun by Mrs. Clark in November, 1883.

This structure stands on a level with the second-story windows, and about twelve feet from them, and cuts off sunlight from the basement, parlor, and, to a certain degree, second floor windows. The trains of cars, which stand about ten feet higher than the structure, cut off or interfere with all the light entering from the Amity street side, the basement, parlor and second floor windows. They throw a flickering flashing light into these windows.

It was shown that the interference by defendant’s structure and operations with the easement of light was very materially to injure the value of the premises. Upon the trial the plaintiff abandoned his claim for damages to the easement of air and access, and rested his claim for compensation solely upon the damages to the easement of light, as caused by the structure and operations of the railway.

Judge Barrett assessed the damages at $2,500, and directed judgment for that sum and costs.

Brady, J.

The court of appeals, in Story v. N. Y. E. R. R. Co. (90 N. Y., 122), as it is understood, determined that an abutting owner, for an injurious interference with, or interruption of light from the street, was entitled to remuneration. It was an easement, to the unobstructed enjoyment of which he was entitled. There are many cases cited in the prevailing opinion delivered in that case by Justice Danforth, illustrative and declarative of the rule.

The substantial objection urged with great zeal by the learned counsel for the defendants, is that the legislature, having the power, duly authorized the construction of the. defendants’ road, and the abutting owner, who does not own the fee of the street, cannot claim any compensation from any inconvenience resulting from the éxercise of the right conferred, if the street still remains open and practicable for the ordinary use of the public. But this proposition, expressive though it may be in cases to which it is properly applicable, seems to be formulated upon the dissenting opinion of Earl, J. in the Story case, although sustained by other citations. Whatever may have been or may be the rule as to surface roads per se, that which governs the rights of the abutting owner from structures above the surface has been defined for this case by the adjudication to which reference has been made.

The issue, therefore, which was presented herein to the learned justice presiding at the trial was, whether the defendant’s structure and its use invaded the realm of light which, in common with others, belonged to the plaintiff, and diminished it. Upon that subject the evidence may be said to have been in collision, if not in conflict, and, after due delibertion, to have been regarded as more favorable, to the plaintiff. This applies as well to the issue mentioned as the amount of damages which should be awarded to the plaintiff for the deprivation to which he was subjected; and as the evidence must be said to be sufficient to sustain both conclusions arrived at, the judgment cannot, on the questions of fact, be disturbed. The rule of damages adopted, namely, the difference in value with the full and unobstructed use of the easement and the value without it, was the proper one. Matter of N. Y. C. and C. Co., 15 Hun, 63, 67, 69; Matter of Lackawanna and W. R. R. R. Co., 29 id., 1; N. Y. W. S. and R. Railway Co. v. Sutherland, 35 id., 260.

These cases also establish the proposition that the operation of a road as an entirety must be considered in the estimate of damage, and, therefore, the running of trains constitutes an essential part of it—indeed, the most important—for without them it would be useless. Whatever interruption of light, therefore, they occasioned was a part of the interference arising from the structure and its uses and legitimately a part of the disturbing cause. See also Story’s case {supra). The evidence relating to them was properly received, therefore.

The further proposition that judgment could not be given .against both defendants for the reason that the structure was not used by the defendant, the Metropolitan Railway, after May 20, 1879,_ when it was leased to the defendant, the Manhattan Railway, is not regarded as sound. The first defendant named erected the structure and equipped it for use, and subsequently leased it to the second defendant named, and thus continued the wrong complained of.

This case has been frequently examined, and although the extended, exhaustive and able brief of the appellant’s counsel presents a fine field of refinements and invokes discussion, it is nevertheless simple, starting with the proposition that the obstruction of light may not be indulged in without affording proper indemnity. No error in its disposition has been discovered, and the judgment must be affirmed, with costs.

Daniels, J., concurs.


author: Davis, P. J.

text:
    George C. Genet, Ex’r, et al., App’lts, v. Mary R. Hunt et al, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Trust deed—Power of alienation—When not suspended.
    R., by a deed to certain persons as trustees, created a trust for one year if she did not marry within that time and during coverture. She did so marry. She married within the year and died while covert. Held, that the estate created by the deed to the trustees did not suspend the absolute power of alienation.
    Appeal from the judgment of the special term dismissing the complaint.

      Albert R. Genet and Win. B. Crosby, for appl’ts; Franklin Lord, for resp’ts.
   Davis, P. J.

The question presented in this case has been passed upon in another action by two special terms of the superior court adversely to the contention of the appellants. The special term of this court seems to have felt bound by those decisions and to have acted with due regard to the unseemly conflict that would exist if different judgments were given upon substantially the same controversy in two courts of concurrent jurisdiction. This court being an appellate tribunal is at liberty of course to consider the question as not res adjudicata by reason of the decision of either special term; but we cannot fail to observe that unless we are convinced that the judgment of the superior court is manifestly erroneous, it is more judicious to follow it than to subject the parties interested in the respective adjudications to the necessity of carrying to the court of last resort two conflicting decisions of substantially the same question.

Wo are by no means free from doubt as to the correctness of the ruling of the special term, that the will of Mrs. Riggs was merely the execution of a power granted to herself by her antenuptial conveyance to the trustees of her estate. The trust created by her deed was for one year if she did not marry within that time, and during coverture if she did so marry. Having married within the year, the grant was during coverture and not for life. She died while covert, and the coverture ended with her life, and there was no point of time when the estate conveyed to her trustees created a trust for her own life or the life of her husband, though the death of either would have terminated the estate. In fact, the estate granted to the trustees lasted for her life, but that was the result of accident and not of any provision or limitation of the grant. Nor did the estate created by the deed to the trustees suspend the absolute power of alienation. “Such power of alienation is suspended when there are no persons in being by whom an absolute fee in possession can be conveyed.” 1 E. S., § 14, p. 11, chap. 1, title 2.

An absolute fee could have been conveyed by the joint action of Mrs. Riggs and her trustees co-operating to that end, for under the married woman’s act of 1848, as amended in 1849, the disabilities of coverture were so far removed that a married woman could “take by inheritance, gift, grant or devise from any person other than her husband, and hold to her sole and separate use, and convey and devise real and personal property and any interests, and the rents, issues and profits thereof with like effect as if she were unmarried;” and by the second section of the act of 1849 express provision was made for the termination of trusts for the benefit of a married woman and the conveyance to her by her trustees of all the property held in trust “for her sole and separate use and benefit.” There was, therefore, in our opinion, no such absolute suspension of the power of alienation during the life of Mrs. Riggs as affects in anywise the questions involved in the case.

The trust deed provided that in case of the decease of Mrs. Riggs during her coverture the trustees shall “ grant bargain, assure and deliver all and whatsoever shall remain of the trust estate unto such devisee or devisees in such share and proportions as she, ” etc., “by her last will and testament she may direct.” In default of such disposition by will the trustees were to convey the trust property unto such person or persons living at the death of Mrs. Riggs as should be her heir or heirs at law entitled to take the same by d >scent from her. Those “ persons ” were the children of Mrs. Riggs bom during her coverture and living at her decease; and the principal question of this case is whether they take under the provision of the deed last referred to, as her heirs entitled to inherit from her by our laws of descent, or under the devises of her will. The will puts the property in trust for the use and benefit of the children during their lives and disposes of the remainder in fee. It is contended by the respondents that the will of Mrs. Riggs was, and could only be executed under a power created by the trust deed; and that in executing that power she could not create a trust estate for the benefit of her children which operated to prevent the absolute alienation of the real estate in fee for any period because her children, the beneficiaries of the trust, were not in being at the time the power was created. Of course, the children being the fruits of the marriage were not in esse at the time of the execution of the deed of trust. The arbitrary rules of the statutes invoked are those that declare that “ The absolute of alienation shall not be suspended by any limitation or condition whatever for a longer period than during the continuance of not more than two lives in being at the creation of the estate.”

This rule would be complied with by the fact that the children who are beneficiaries under the will of Mrs. Biggs were in being at the time her will took effect to create the trust estate in their favor. But another rule declares that The period during which the absolute power of alienation may be suspended by an instrument in execution of a power shall be computed not from the date of such instrument, but from the time of the creation of the .power.” The power contained in the deed of Mrs. Biggs to her trustees was created at the execution of that instrument prior to her marriage, and if the period of the suspension of alienation under the trust created by her will is to be computed from that date, then it is not limited by two lives in being at the time of the creation of the estate within the requirement of the statute. We have grave doubt whether this case is within these statutory rules, but we shall not further pursue the subject because as we assume, the question will soon receive the consideration of the court of appeals, and be finally determined, and we think .our better course is to' dispose of it by affirming the judgment.

The judgment should, therefore, be affirmed with costs of the appeal to all parties out of the fund.

Brady and Daniels, JJ., concur. ,


text:
    Matter of the probate of the last will, etc., of Winifred Austin, deceased.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Evidence—Testimony oe counsel as to communications had with a DECEASED PERSON WHOSE WILL HE DREW—ADMISSIBILITY OE—CODE Civ. Pro., §§ 835-836.
    Upon an application for the probate of a will which was resisted upon the ground of undue influence, the counsel of testatrix, by whom the will and codicils were prepared under her direction, and who as such counsel superintended their execution and publication, being called as a witness to show what transpired between the testratrix and himself at the time he was called upon to prepare the will and codicils: Held, that an objection to such testimony, as inadmissible under sections 835 and 836 of Code of Civil Procedure, was properly overruled. That even if this were not so it should not defeat the probate of the will in this case, because if the testimony so far as objected to were eliminated from the case, the evidence remaining would not be sufficient to justify a finding that the will and codicils were made by the decedent under what the law recognizes as undue influence.

      Appeal from the decree of the surrogate’s court admitting to probate the will and three codicils thereto of Winifred Austin.

      W. S. Logan and George Bliss, for app’lts; Henry A. Sprague and Theodore W. Dwight, for resp’t;. James J. Thompson, guardian ad litem, for resp’ts.
   Davis, P. J.

The decree of the surrogate admits to probate the will of the decedent and three codicils thereto. Mrs. Austin, the testatrix, was the widow of William Austin, and by the will of her husband she was the devisee and legatee in trust of all his property, real and personal, for her own use during her life, with power by her last will and testament to appoint and divide the same amongst their four sons and Jane Oakes, their daughter, and the children of a deceased son, in such shares and proportions as she might direct. The will and codicils in controversy dispose of the corpus of the trust amongst the children and grandchildren, and also the property of the testatrix derived and saved from the income of the trust in her favor. The due and proper publication of the will and codicils by Mrs. Austin was fully established, and no evidence was given on the part of the contestants controverting her testamentary capacity. It was, however, asserted, and is still insisted on their part, that her will and codicils were induced by and resulted from undue influence exerted and used over her by her daughter, Mrs. Oakes, and the children of Mrs. Oakes, who are. the chief objects of her bounty under such will and codicils. Upon this question the contestants held the affirmative. It was for them to show by satisfactory evidence that the will and codicils were so far the result of undue influence, that in judgment of law they are to be regarded not as the will and codicils of Mrs. Austin, but of the persons who had wrongfully subdued and controlled her mind and its volition to their own purposes and objects. It does appear on the face of those instruments that Mrs. Oakes and her family receive a large and apparently excessive share of the property, of which they make disposition; but that is by no means enough to affect the validity of the gifts, the will stands for the reason, and courts cannot out of their real or supposed superior testamentary capacity undertake to rectify or disturb any apparent or fancied inequalities or injustice. The intention of the testatrix controls, as expressed by the will, until it be shown that what is expressed was not her intention, but the unlawful design and intention of another. The learned surrogate has examined this question in an opinion of great clearness and force, and has reached the conclusion that, the contestants have not, within the established rules governing such cases, shown that the will and codicils, or either of them, are the the result of the alleged undue influence. He had the opportunity to see the witnesses and their demeanor on the stand, and hear their testimony, and observe their manner in giving it, as well as the degree of intelligence, and the animus with which it was given. With those advantages he reached the same conclusion to which the printed record of their testimony, as sent up to us, leads our minds; and under such circumstances our duty is properly performed by affirming his conclusion upon the opinion pronounced by him, and for the reasons he assigns. There is but a single question of law presented by the return, which in our judgment, requires any comment. It is enacted by section 835 of the Code of Civil Procedure, that

“ An attorney or counseller shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employment.”

And section 836 declares that

“ The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or their client.”

‘ ‘ There is no doubt” says the learned judge, who delivered the opinion in Westover v. The Ætna Insurance Company (99 N. Y., 56), “ that whenever the evidence comes within the purview of the statute it is absolutely prohibited and may be objected to by any one unless it be waived by the person for whose benefit and protection the statutes were enacted.”

Mr. Underhill, the counsel of Mrs. Austin, by whom the will and codicils were prepared, under her direction, and who superintended, as such counsel, their execution and publication, was called as a witness to show what transpired between the testatrix and himself when he was called upon to prepare the will and codicils, and in the process of their preparation and publication. His testimony was objected to as prohibited by the sections of the Code above quoted. The objection was overruled and the testimony was taken by the surrogate. It is contended by the appellants that the evidence of the attorney and counsel, so far as it was objected to, was “within the purview of the statute” as construed by the court of last resort.

The object of the new' section was chiefly to declare the effect of a waiver of the statutory rule, and by whom such waiver might be made.

Section 835 of the Code was intended to do no more than clarify by codification the well known rule of the common law. See 1 Throop’s Code notes to section 835; Hebbard v. Haughian, 70 N. Y., 54; Armstrong v. The People, 70 id., 38.

Communications by a testator to an attorney or solicitor employed to prepare a will with reference to the will and its trusts are not privileged. This has been settled in many cases. Russel v. Jackson, 15 Jur., 1117; Nourse v. Finch, 1 Ves., 342; Duke of Bedford v. The Marquis of Abercorn, 1 Mylne and Craig, 312; Blackburn v. Crawford, 3 Wall U. S. Rep., 175.

It will be unfortunate for the testators if the communications they make to counsel for the purpose of enabling the latter to draft their wills are held to be so far within the provision of the Code now under consideration as to prevent their use on behalf of the executors to sustain the wills. The object of the privilege is to make sacred that class of communications made by clients to attorneys or counsel for the purpose of enabling them to give advice with a full and correct knowledge relating to the transaction upon which such advice is sought in suits and actions, civil and criminal, a disclosure of which, if allowed, might be prejudicial to the client or his interests.

If the construction of the statute claimed by the contestant were allowed, it is not perceived how any will could be proved by the attorney who drew it and supervised its publication, for he could not open his mouth as a witness without disclosing something in the nature of a communication made to him by his client. The Code does not place such a weapon fcr the defeat of wills in the hands of any one seeking to overthrow a will propounded for probate, which, presumably, it was the intention of the testator, should be sustained by the testimony of his counsel and adviser who prepared it. We think there is no merit in the objection. But if it were well taken it should not defeat the probate of the will in the case because the testimony of the counsel, so far as objected to, may be eliminated from the case, and still the evidence remaining would not justify a finding that the will and codicils were made by the decedent under what the law recognizes to be undue influence.

The decree should be affirmed, but, under all the circumstances, without costs of the appeal.

Daniels and Brady, JJ., concur.


author: Per Curiam

text:
    The People ex rel. Hy. D. Nicoll v. Infant Asylum.

      (Supreme Court, General Term, First Department,

      Filed December 30,1886.)

    Appeal—When dismissed because copies oe case not pboperly served.
    Where no properly certified copies of the case have been served and the papers served were returned with objections, on a motion to dismiss, the respondent is entitled to succeed unless appellant is relieved on terms.

      Motion to dismiss appeal.

      Clark Bell, for motion; Cray & Davenport, opposed
   Per Curiam

The affidavits on the question whether or not the notices of appeal were served in due time are directly conflicting, and it is quite difficult to say which side is mistaken in that important fact. It is certain that the attorneys for the relator intended to comply and to serve notice in due season, and that he believed it to have been done, but whether such service was made or not was put in grave doubt by the affidavits on the other side. We are inclined to think under the circumstances that the better course is to regard the notice as having been properly served.

It appears that no properly certified copies of the case have been served, and that the papers served were returned with objections. On that branch of the motion the respondent is entitled to succeed unless the appellant is relieved on terms.

We think the motion should be granted unless duly certified copies of the case be served within ten days and ten dollars costs be paid. _


text:
    Edith Storm et al., Resp’ts, v. Thomas and Walter Storm, Executors and Trustees, and another, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Will—When provisions op, void because op suspension op power op ALIENATION.
    The testator, by his will, after making certain bequests, gave the remainder of his estate, real and personal, to his executors in trust, to pay to his wife for life, in lieu of dower, one-third of the net annual income of the real estate, and to pay to his two sons the income of the whole of the personal estate, if any be left after paying off the incumbrances on the real estate, and also two-thirds of the net income of the real estate, during their respective lives, to be increased on the death of their mother to the whole of such net income; the trust to continue on the death of either for the benefit of his issue till the death of the survivng son; the property to be divided equally among the testator’s grandchildren. Held, that though under this trust the wife could take nothing greater than she was entitled to as dower, yet she having elected to take it in lieu of dower, the provision op.rates, unlike dower right, to prevent alienatien during the life of the trust; therefore the provisions of the will are void so far as they affect the real estate of the decedent, because they operate to suspend the power of alienation beyond two lives in being.
    Appeal from judgment of the special term.

      S. L. H. Ward, for resp’ts; William A. Boyd, for ex’rs and other def’ts; William Storm, for def’ts Lilla and Walter Storm; Ip. W. Diehl and O. W. Carr, guardians ad litem, for infant def’ts.
   Davis, P. J.

This suit was brought to obtain construction of the will of Stephen Storm, deceased. The first clause of the will directs that the testator’s personal estate, except as afterwards specifically bequeathed, be applied to the payment of the bonds and mortgages of his real estate existing at his decease. The second clause bequeathed to Jane Maria Storm, wife of the testator, certain household property in his residence at the time of his decease. The third clause of the will gave, devised and bequeathed to his executors, executrix and trustees all the real and personal estate of whatsoever nature of the testator except the property given to his wife by the second clause upon trusts declared as follows:

“In trust to collect the rents, income and interest arising therefrom, and to apply one equal third part of the net annual income of my real estate from time to time, as collected, to the use of my said wife during her natural fife, this provision for my said wife being intended by me to be received by her in lieu and satisfaction of all her dower rights and thirds in and to my estate, real and personal, and upon her death the trust as to the said one-third of the net annual income of my real estate shall cease, and the said portion then become merged into, and form a part and parcel of my estate.

Fourth. Upon the further trust to apply the income of my estate, real and personal, to the use and benefit of my sons, John Graham- Storm and Thomas Storm, share and share alike, during their natural lives, excepting, however, the part reserved to my wife during her life, by the third clause of this will.

Fifth. Upon the further trust that upon the death of either of my said sons, John Graham Storm, and Thomas Storm, leaving lawful issue him surviving, such issue to receive the portion of the income of my estate to which the parent would have been entitled if living. If more than one issue, such part to be divided equally among them, until the death of my surviving son, when the whole of my estate, subject to the part reserved to my wife during her life, by the third clause of the will (If she shall still be living), shall be divided into as many equal parts as there may be grandchildren of mine surviving at that time, and the same set oft, apportioned or paid, as may be deemed best for the interests of my estate, to such of my grandchildren as shall have arrived at the age of twenty-one years, and to the others of my said grandchildren, as soon as they shall have respectively attained that age, to hold and to have the same to their own use forever.”

It was held by the court below, and is now contended that these provisions of the will, are void so far as they affect the real estate of the decendent because they operate to suspend the power of alienation beyond two lives in being. There is no trust of the personal estate for the benefit of the wife, the trust in her favor is limited to the net annual income of the real estate ‘1 from time to time as collected ” and is expressly declared to be in lieu and satisfaction of all her dower rights and thirds,” in and to the estate, real and personal. Under this trust in her favor the wife could take nothing greater than she was entitled to as dower; but the devise cannot be treated as dower, because it gives to her an estate or interest far different in character. The dower of a widow does not operate to suspend the power of alienation. She can grant and convey it at any moment after its admeasurement; and to the fact that a widow has dower of lands devised in trust, for two lives in being, subject to her dower, cannot be said to suspend the power of alienation beyond the two lives in being. But a different question arises when a trust is created in lieu of dower, although it be of no greater interest than the dower estate might be, in the enjoyment of which the wife takes, not as dowress, but as cestui que trust. If she elect to take such a provision in lieu of dower, the devise in trust if valid supersedes all questions of dower, and operates to suspend the power of alienation during the fife of the trust as though the beneficiary stood in any other relation than wife and widow of the devisor. Under the provisions of this will, so far as relates to the testators real estate, it must be held that the trust in favor of his wife, she having elected to take that in lieu of dower, does operate to prevent alienation during the period of her fife. Upon her decease the testator directs that “ the trust as the said one-third of the net annual income of his real estate shall cease, and the said portion then become merged into and form a part and par-' eel of any (his) estate.”

By the fourth clause of the will he creates a further trust fco apply the income of his estate, real and personal, to the use and benefit of his two sons, share and share alike, during their natural lives, excepting, however, the part reserved to his wife during her life by the third clause of the will, and by the fifth clause, upon the death of either of the sons leaving lawful issue, such issue is to take the income of the estate in trust until the death of the surviving son, when the whole estate is to be divided into as many equal parts as there may be grandchildren of the testator then surviving, and be set off, apportioned and paid to them.

By these provisions of the will a trust was created in favor of the two sons in the whole of the personal estate, if any were left after paying off the incumbrances on the real estate, as directed by the first clause of the will, and in two-thirds of the net income of the real estate during their respective lives, to be increased .on the death of their mother to the whole of such net income, and to continue on the death of either for the benefit of his issue, till the death of the surviving son. The trust created is practically a single one, and under it the trustees take the entire income of the property in order to execute the trust as directed by the testator. It is severable only for the purpose of ascertaining the respective interests of the several cestuis que trust in such income. In administering the trust they are to separate the income of the real estate from that of the personal estate, and to ascertain the net income of the real estate, and thus determine the one-third thereof which they are to pay over to the widow of the testator; and then they are to apply the remainder of that income, together with the whole net income of the personal estate to the use of the sons named in the fourth clause. To execute the provisions of the will according to the intent of the testator, it is necessary that the fee of the real estate shall be vested in the trustees, and upon settled rules of construction it is so vested by the will. Tobias v. Ketchum, 32 N. Y., 319. If the will be valid to create the trust, the fee of the real estate is not only so vested in the trustees, but it must continue through life of the widow and the lives of the two sons; for it is not until the death of the survivor of the sons that the fee of the real estate or absolute ownership of the proceeds, if sold under the power of sale, can vest in any of the grandchildren of the testator. The fact that a power of sale is given by the will to the executors makes no difference with the question we are considering, because the proceeds would be still held in trust under the will charged with the duties and obligations imposed by the trust.

The necessary effect of the provisions creating the trust is, therefore, to tie up the power of alienation of the real estate of the testator for the period of three lives in being, and those provisions were, therefore, void by our statute.

It is not so as to personal estate, for that is given in trust only for the lives of the two sons, but we do not understand this to be a material question in the case.

The result is that the judgment of the special term should be affirmed. The costs of this appeal of all the parties to be paid out of the fund. J

Brady and Daniels, JJ., concur.


author: Per Curiam:.

text:
    Margaretha Furman, Resp’t, v. Julius Hinz, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 30, 1886.)

    Counterclaim—In action by executor or administrator—What allowed as.
    It is provided by Code of Civil Procedure, section 506, that in an action brought by an executor or administrator in his representative capacity, a demand against the decedent, belonging, at the time of his death, to the defendant, may be set forth by the deiendant as a counterclaim. Held, that the exclusion of such a demand in a case so brought was erroneous.
    Appeal from judgment of special term.

      L. Sanders, for app’lt; C. Mehling, for resp’t.
   Per Curiam:.

The learned, judge in the court below erred in excluding the counterclaim interposed in this case. It is expressly provided for by section 506 of the Code. See Bathgate v. Haskin, 59 N. Y., 533; S. C., 63 id., 261.

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