text:
    The People ex rel. Nellie A. Cronin, Resp’t, v. James W. Coffey, Comptroller, App’lt

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Schools—Tboy—Payment of salaries of teacheks.
    So long as the hoard of school commissioners of the city of Troy does not exceed the amount appropriated by the common council, it may make contracts for teachers, etc., at its discretion, and may, if it deems best, employ teachers at higher salaries and for a shorter term than had been in the previous year, and the comptroller has no r ght in such case to refuse to countersign the draft given for salary of a teacher so employed by the board on the ground that if drafts of similar amount should continue for the full year the appropriation would be exhausted.
    Appeal from order directing the issue of a peremptory mandamus commanding the comptroller to countersign a draft issued in favor of relator.

      William J. Roche, for app’lt; Warren, Patterson & Gambell (Charles E. Patterson, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from an order directing the issue of a peremptory mandamus.

At the regular meeting of the school commissioners of Troy, held February 27, 1891, a resolution was passed that certain teachers, naming them, be elected from March 1, 1891, to March 1, 1892, “provided there be sufficient money properly set apart to pay them for that period, and if there be not sufficient money for that purpose, for such portion of that period as the money so set apart shall be sufficient.” Under that resolution the relator was appointed third assistant in the intermediate department of school No. 10. Her salary was, at the same meeting, made sixty dollars per month. She served as such assistant the month of April, and duly presented her bill for payment. This was properly audited by the board, and- a draft on the chamberlain for the amount was -duly issued. It is necessary that the comptroller should countersign the warrant, and this he refused to do.

The ground of his refusal is as follows: On the 5th of February, 1891, the common council, having previously received the ■comptroller’s estimate of the amount of money necessary to carry on the city government for the ensuing year, made the regular appropriations. Among these the common council appropriated for the board of school commissioners, among other specific items, for salaries of superintendent, cleric, messenger and teachers, and allowance to orphan asylums, in addition to income from nonresident pupils, $105,350.”

In making up this estimate thus adopted by the common council "the comptroller had estimated the various salaries at the amount paid the previous year as for a full school year. The board of school commissioners at the aforesaid meeting increased many of these salaries, among them that of the office held by the relator, which the board increased from fifty dollars to sixty dollars. If ■such increased salaries should be paid for the full school year they would be in excess of the amount appropriated as above stated. The board, it is claimed, is prohibited from incurring debts beyond that amount. Hence, it is said that it would be necessary to close the schools when the appropriation should be exhausted, and that that would be before the end of the ordinary school terms. The total increase thus made by the board is about $11,000.

There are two questions of importance in this case which might be considered. The first is whether the board of school commissioners is limited in making its contracts so that it may not exceed the amount previously appropriated by the common council.

The second is, if the board does not exceed that amount, whether it may make contracts for teachers, etc., provided they are to be performed within the current fiscal year.

We will consider the second question, because that only is necessarily presented here. The board of school commissioners has not as yet exceeded the amount appropriated by the common council Nor does it necessarily follow from its action in respect to the relator that it will do so. Its action contained a proviso that there should be sufficient money set apart to pay the teachers for the whole year, and if not, then the appointment was only for such portion of the time as the money was sufficient for.

It is not disputed that this board has the authority to contract, with teachers and employ them and to pay their wages. Laws of 1873, chap. 126, § 14. A restriction is perhaps placed on the board by the Laws of 1887, chap. 6, § 4. That restriction, assuming that it applies, forbids the board from exceeding the amount “ estimated and allowed ” by the board of estimate. But the resolution of the board under consideration seems to have regard to that resolution to avoid violating it

Within that restriction, it seems to us, that the statute has left the matter discretionary with the board. If the board decides that it is best to use the money which is within its control by employing teachers at higher wages and for a shorter term than had been in the previous year, it. cannot be that the comptroller may reverse their action. His position is, that inasmuch as the estimate made by him and adopted by the common council was made on the basis-of so many teachers for so many weeks at such salaries, therefore, the board of school commissioners could not contract for fewer weeks and for higher prices. This would give the comptroller power to regulate the action of the board.

The comptroller argues forcibly that if this board can lawfully act as they have done, then the fire commissioners might so increase the salaries of their employees that the money set apart for the fire department would be exhausted in ten months and the city left defenceless against fire for the remaining two of the year. There are undoubtedly some difficulties which may arise under the plan of government of the city of Troy. When money has-, been appropriated in a general way for salaries or for any other class of expenses, it seems necessary that some officer or some board should make the specific application. That duty is not entrusted to the comptroller. In this branch of the government it is entrusted to this board. Until they attempt to draw drafts beyond the amount appropriated or to apply the money to unlawful purposes, it seems necessary that the board should use its discretion. We cannot remedy any suggested difficulties by depriving the board of school commissioners of the power given them to make contracts for teachers. This power necessarily means that they may agree upon the salaries. And when the teacher has done the work under such agreement he is entitled to his pay. That is the case before us. And unless we deny the power of the board, the relator has earned the salary agreed upon.

The position taken by the comptroller, if sustained, would authorize him to refuse to countersign any draft, on the ground that if other drafts to a large enough amount should be issued, the’ money appropriated would be exhausted. For that is really his position now. He says: “ If the board shall continue to issue drafts of the same amount with this and other similar drafts for the full fiscal year, there will be no money to pay them all,” and therefore he refuses to countersign this.

As there is money in the city treasury appropriated to the payment of the salaries of teachers, we think it is not for the comp-trailer to say how the board of school commissioners shall make ■contracts payable therefrom.

The order is affirmed, with costs.

Landon and Mayham, JJ., concur.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    Fred. Keefer, App’lt, v. Lewis Greene, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Conversion—Demand.
    A demand and refusal are not a condition precedent to an action for conversion where the defendant did not come into possession lawfully.
    2. Chattel mortgage—Conversion.
    S. and wife gave to plaintiff a chattel mortgage on hives of bees belonging to the wife to secure his guaranty of a note which he was afterward obliged to pay. The mortgagor placed the hives in the field of one B. a^d moved away. Defendant took possession of the same, claiming to do so under a bill of sale from the wife of S. Held, that the mortgage and default gave title to plaintiff, which he did not lose because of the mortgagor’s removal; that no demand was necessary before suing for conversion, and that a nonsuit was improperly granted.
    Appeal from judgment entered on nonsuit on a new trial had in county court.

      Barlow & Greene (D. Cady Herrick, of counsel), for app’lt; William R. Tanner, for resp’t.
   Learned, P. J.

This action was commenced in a justice’s court. The plaintiff recovered. An appeal was taken to the county court, where the action was re-tried. A nonsuit was granted and the plaintiff appeals.

The action was for the alleged wrongful conversion of a number of hives, or skips, of bees, claimed by plaintiff to belong to him and to the possession of which he claimed to be entitled.

Aaron Snyder and wife in May, 1888, mortgaged to plaintiff twenty-five hives of bees, claimed to belong to her, to secure him ■against his guaranty of a note of $200 made by the mortgagor, •dated May 19, 1888, payable in six months. The mortgagor did not pay the note. Plaintiff did in May, 1889.

In the spring of 1889 Snyder took the hives from the place where they had been stored in the winter and put them in a lot belonging to Blodgett. Defendant came and took them away, or some of them. Defendant seems to have claimed them under a certain bill of sale executed to him by Rachel Snyder, wife of Aaron, in April, 1887.

There was a good deal of evidence in the case on the question whether the bees which defendant took were those sold to him or those mortgaged to plaintiff. And the plaintiff requested to go to the jury on the question of ownership and other questions.

The court nonsuited on the ground that at the time of the taking the plaintiff was not in possession and that the property was not in possession of the mortgagors, they having moved away; that defendant took under claim of title and that there had been no demand for the property by the plaintiff.

The mortgage contains the usual clause that upon default or if he choose to demand the goods the mortgagee may take possession and sell the goods, and that while the goods remain in the possession of the mortgagor such possession shall be that of an agent of the mortgagee.

The mortgage had become due. The mortgagee was entitled to possession and the mortgagor had no leviable interest. Leadbetter v. Leadbetter, 125 N. Y., 290; 34 St. Rep., 929; Manchester v. Tibbetts, 121 N. Y., 219; 30 St. Rep., 721; Burdick v. McVanner, 2 Den., 170.

The defendant took the property and converted it to his use. He did not come into possession lawfully. A demand and refusal are necessary where the defendant has come into the possession of the property lawfully. For in that case he cannot be shown to have converted the property to his own use until he has refused to surrender it.

If the bees were originally the property of Eachel Snyder then the mortgage and the default gave title to plaintiff. And he did not lose title because, as is said, the mortgagor had moved away from their house. The property was his in Blodgett’s field as much as it would have been elsewhere. This is not a case of property lost by the owner and found by some person. In that case it may be said that the finder comes into possession lawfully. But the defendant knew that these were Snyder’s bees. He claimed that they were such as had been sold to him. Whether he was right in that or not should have been decided by the jury.

Judgment reversed, new trial granted, costs to abide event

Landon and Mayham, JJ., concur.


text:
    Alfred Humphreys, Resp’t, v. The Prudential Insurance Company of America, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Malicious prosecution—Want op probable cause—Insurance agents.
    Plaintiff was appointed assistant superintendent of the defendant and required to act under the direction of the superintendent, by whom he claimed to be authorized to pay the rent of the office out of moneys received for the company. On his discharge and settlement with the success >r of the superintendent he retained a sum paid by him for rent. This was reported to the company, which authorized the superintendent to demand the money, and if not paid to arrest the plaintiff. Complaint was then made against him for larceny and he was arrested and, after trial, discharged. In an action for malicious prosecution, Held, that a finding of want of probable cause for the arrest was sustained by the evidence.
    Appeal from judgment of $1,151, damages and costs, in favor ■of plaintiff, entered on the verdict of a jury, and from order denying motion for a new trial.

      Henry J. McCormick, for app’lt; Isaiah Fellows, Jr., for resp’t.
   Learned, P. J.

This is an appeal by defendant from a judgment on a verdict and from the order denying a new trial. The motion for a new trial was not decided pro forma. It was carefully considered by the learned justice and an opinion was written by him, giving a full examination of the defendant’s points.

The action was one for malicious prosecution. And the charge of the learned justice was as favorable to the defendant as it could desire. It may, perhaps, be inferred from his opinion that if he had been the, jury the verdict would have been different. These matters are important because they indicate that the trial was thoroughly fair towards the defendant.

The plaintiff was appointed an assistant superintendent of agents of the defendant, October 22, 1888. In July, 1889, Mr. Allez, the superintendent of the Troy district, notified him that his employment as such assistant superintendent would cease July 13th. On that day plaintiff handed over to Allez his papers, Among them were a check for $93.27, a receipt for fifteen dollars salary for the week and a receipt for $65.74'rent paid by him for the office. Allez told him he knew nothing about office rent; that if that was an agreement with the company, plaintiff would best send the account to them. Plaintiff did so. Five days afterwards Allez made a complaint before the recorder of Cohoes against plaintiff, for larceny in stealing notes and coin of the United States of the value of $65.74, property of said company, and the plaintiff was thereupon arrested. On the 1st of August plaintiff was discharged.

In considering the question before us it is important to notice a clause in the agreement above mentioned. Plaintiff was “to act under the control and instructions of my superintendent.” One Schmeltz was his superintendent before Allez; and the plaintiff claims that Schmeltz authorized him to pay the rent of the office, which he occupied, out of moneys received by him for the company. It is not disputed that he did pay this rent. He testifies that the office had been used by the company for a year before he was appointed; and that he himself never hired the office.

He testifies that two weeks after signing the agreement he told Schmeltz that he wanted some way to show the company that he was retaining the money for the office rent; and that Schmeltz said: “That is not necessary, you have my authority; the agreement between you and me is that you are not to pay office rent.”

He testifies that he was directed by Schmeltz not to send his vouchers for the rent to the company. This testimony is given to explain the fact that in his weekly accounts sent to the company he had not deducted the sums paid by him for the rent.

We have above seen that when plaintiff settled with Allez he made the claim that he should be allowed this $65.74 paid by him for rent and that he gave a check for the balance, deducting this allowance for rent; and that Allez then received from him the company’s papers. He also took from him the key of the office. -The check received by Allez was paid and received by the company. Allez wrote to the company. They replied authorizing him to make a demand for this money and if he did not get the money to have plaintiff arrested. No demand of this money was made on plaintiff after the interview above mentioned with Allez and before his arrest; nor did Allez see him.

The question here is not whether the plaintiff owed the defendant the amount of money which he had paid for rent and which he retained; nor is it solely whether his retention of that money was criminal. It is whether the- defendant had probable cause for causing his arrest. We do not think it necessary to decide whether the verbal agreement between Schmeltz and the plaintiff, testified to by him, was binding on the company. If such an agreement was made, as the jury must have found, it certainly was very material on the question of the plaintiff’s intent when he retained the money. And if the plaintiff honestly believed that his alleged agreement with Schmeltz authorized him to apply defendant's money to the rent of the office we do not think his retention could be larceny. To require him to decide, at the peril of being a criminal if he decide wrong, whether the subsequent verbal agreement with Schmeltz was valid or not would be unjust. A felonious intent is necessary to constitute the crime. McCourt v. People, 64 N. Y., 583; People v. Pollock, 51 Hun, 613; 22 St. Rep., 64; People v. Moore, 37 Hun, 84; People v. Stevens, 109 N. Y., 159 at 163 ; 14 St. Rep., 808.

It appears that plaintiff was to pay the money he collected to the superintendent. If the superintendent, as he testifies, told him to apply this money to payment of the rent of the office, that was strong evidence to show that he had no felonious intent in this application. And this would be so, even if such application were contrary to the written agreement. Then when he was discharged by the defendant, and Allez came to him for a settlement, he made an open statement of his account, claiming his salary and the office rent paid by him, and giving his check for the balance. This circumstance also was for the consideration of the jury on the point whether the defendant had probable cause to accuse plaintiff of a crime. And the question must be whether the apparent facts were such that a discreet and prudent person would be led to the belief that a crime had been committed by the person charged. Carl v. Ayers, 53 N. Y., 14; Hazzard v. Flury, 120 id., 223; 30 St. Rep., 906.

The court had charged, without exception, that if Schmeltz made the alleged contract, it was the company contract. If the jury then believed the plaintiff, they could have found that the defendant made the arrangement as to the payment of rent by plaintiff out of money received by him.

Allez testified that he wrote to the company after his interview with plaintiff, and “informed them of the matter.” That they answered back, authorized him to make a demand, and if he did not get the money to commence criminal proceedings. He obeyed these directions, except that he made no demand.

So far as appears, then, the only facts before the defendant were that plaintiff retained a certain sum of money on a claim that, by the authority of the defendant’s superintendent, he had applied it on rent of the office, which they or their agent had previously used, and which plaintiff used. And the question is whether, on those facts, there was want of probable cause to arrest plaintiff for larceny. The jury thought there was.

It is claimed further that Allez merely stated the facts to the recorder, and that the defendant is not bound by the deductions made therefrom by the recorder. Thaule v. Krekeler, 81 N. Y., 428. But if we examine Allez’ affidavit we find much more than a mere statement of the facts. His affidavit states that on or about the 18th day of July the plaintiff, with force and arms, did feloniously steal, take and carry away divers United States treas^ ury notes and national bank notes and coins, the property of the company. .Further, that on that day he had said notes and money in his possession as assistant superintendent of said company and appropriated them to his use and refused to return the same. Here it is evident that the affidavit is much more than a mere statement of facts. If Allez had stated the facts, viz., that plaintiff had collected certain money and claimed to have applied it to a debt of the company by authority of its superintendent, it is quite doubtful whether any warrant, without a further affidavit, would have been issued.

But when insurance companies use criminal proceedings for the purpose of collecting money which they claim, there is sometimes a lack of careful statement of facts. ít is easier to make a general charge of larceny with force and arms, than to give the simple truth. The very facts as' claimed by plaintiff, which showed either a lawful, or what was thought to be a lawful withholding of the money, were concealed. And we think that the defendant cannot throw the blame upon the magistrate. The learned justice in his opinion called this paper “ a false affidavit.’’

It is said in several cases that the question of probable cause is one for the court, when the facts are not disputed. Stewart v. Sonneborn, 98 U. S. (8 Otto), 187. But the court was not asked to decide that question in this case, except by the motion for a non-suit.

Upon the whole we are of opinion that this case was properly disposed of. We are urged by the defendant to review the finding of the jury upon the facts. We have examined the testimony, as the learned justice did who tried the case. The jury might have disbelieved the plaintiff’s testimony. It was a fair question for them to decide, who saw and heard him,- whether he was truthful or not. And we cannot say that the verdict shows passion or corruption. The arrest of the plaintiff was not made in the interest of public justice, or to punish for crime. It was-made to force the payment of a disputed sum; to compel the plaintiff to yield his claim in order to escape the mortification of a criminal proceeding. Such conduct on the part of the defendant was reprehensible. Where there has been a wilful embezzlement of property by an agent, it is right that punishment should follow. But where the agent makes in good faith a claim to the m-oney, though that claim be incorrect and plainly wrong, it is unjust that he should be treated as a criminal. And a hasty resort to criminal proceedings without notice to him is to be condemned.

Judgment and order affirmed, with costs.

Landon and Mayham, JJ., concur.


author: Van Wyck, J.

text:
    Robert Fulton, App’lt, v. Garret P. Lydecker et al., Resp’ts.

      (City Court of New York, General Term,

      Filed December 17, 1891.)

    1. Carriers—Conversion—Demand.
    A common carrier who receives goods to carry and deliver to a person designated by the bailor becomes liable as for a conversion the moment he makes an unauthorised delivery of the goods to another than the person so designated, and when he admits that he has made such mis-delivery, but insists that it is a rightful delivery, no demand is necessary to fix the conversion or to maintain an action in tort.
    2. Same.
    Defendants were employed by plaintiff to deliver certain goods to his vendees, who claimed that they were not delivered, and they and their receiving clerks so testified. Defendants’ driver testified that he took the goods to the place of business of the vendees, called up the speaking tube and deposited the goods under the stairway of the elevated road opposite as directed by two boys in their shirtsleeves who said ihey were employed by the vendees, but he failed to identify said boys among the employees of the firm. Held, that the question of delivery should have been submitted to the jury.
    Appeal from a judgment dismissing the complaint by direction of the court at the close of the case.

      Joseph H. Williams, for app’lt; William B. Ellison, for resp’ts.
   Van Wyck, J.

This action is for the conversion of a ton of wrapping paper. The plaintiff had orally agreed to sell and deliver to Cook & Smith, at No. 23 Park Place, New York City, the paper for ninety dollars. The title of this property undoubtedly remained in the plaintiff until such delivery was so made. The defendants, common carriers, admit that they received the paper from the plaintiff for the purpose of delivering the same as aforesaid. The plaintiff when first informed by Cook & Smith that they had not received the paper, immediately communicated this information to defendants, who still insisted that they had duly delivered the same by one of their drivers, and sent this driver, with plaintiff, to the establishment of Cook & Smith, for the purpose of having him identify the persons to whom he had made the delivery. The driver was brought into the presence of all the employees of Cook & Smith and given every facility, but failed to identify anyone as the persons to whom he had made the delivery.

The defendants, however, still insisted that they had rightly made the delivery to Cook & Smith, and informed plaintiff that they did not have the paper in their possession, but had so delivered. it, and plaintiff, on the other hand, claimed that it had not been so delivered and demanded of the defendants the paper or a settlement for the same. The defendant, Lydecker, testified that “ before this action was brought, Mr. Britton (defendant’s bookkeeper), spoke .to me in regard to Mr. Fulton’s demand of this paper; I also remember that Mr. Williams, plaintiff’s counsel, spoke to me in regard to the paper and the goods delivered, etc., and asked me for a settlement of the claim.” The plaintiff produced both members of the firm of Cook & Smith and their receiving and assistant receiving clerks, all of whom testified that the paper had never been delivered, nor had they ever heard of any attempt to deliver the same until the controversy about the delivery thereof arose. The only evidence by defendants as to the rightful delivery was given by Edleman, their driver, whom they had deputed to make the delivery, and he was allowed to testify, against plaintiff’s objection and exception, that he took the paper in his wagon to the sidewalk in front of No. 23 Park Place, the fourth floor of which was occupied by Cook & Smith, and as follows : “I hollered up the hatchway to Smith & Cook and got no answer, and looking around I saw a speaking tube leading from the hatchway to their floor with their name over the top of it; I whistled through the tube and got an answer ‘hallo,’ and I said ‘ hallo, I have got some paper down here for you;’ I received an answer ‘ all right,’ and I said, ‘ hurry up’ I want to get-away,’ ” and he further testified that in a few minutes thereafter, two boys in their shirt sleeves came down and “when I asked them if they were employed by Smith & Cook, they simply told me yes,” and that they told him to take the paper from the wagon and place it underneath the stairway of the elevated railway station, which was directly in front of the doorway of No. 23 Park Place, and that these two boys and a strange carman who happened to be there gave him a helping hand to pile the paper underneath the stairway.

Now, even allowing this testimony as to the statements and acts of these two boys to stánd as properly admitted and as tending to prove delivery, it must be remembered that the evidence given by Cook & Smith, and their clerks,; that neither of them had authorized these boys to receive the paper, or had sent them down, and that neither of them had ever heard of this delivery or attempted delivery, raised a disputed question of fact as to whether the paper had been delivered or not, and the driver himself, after ample opportunity, failed to identify any of the employees of Cook & Smith as either of these boys. This disputed question should have been submitted to the jury. At the close of the evidence the court granted a motion to dismiss “ upon, the ground that there is no demand proven,” to which plaintiff duly excepted. The defendant Lydecker testified that before this action his bookkeeper had informed him of plaintiff’s demand for the paper and that plaintiff’s counsel had spoken to him in regard to the paper, and asked him for a settlement of the claim. Was this not a sufficient demand in this case if any was necessary ? It was conceded that at the time when the plaintiff and his counsel demanded the paper or a settlement of the claim the defendants did not have the paper, but had parted with the possession thereof, for they expressly claimed that they had delivered it to Cook & Smith. No demand was necessary to fix the conversion, for if they had so delivered it no demand could render them liable as for a conversion, but if they had left it with strangers in the street they would, the very moment they so left it, become liable as for a conversion, and any subsequent demand would be mere idle form, and especially since no claim is made that they had recovered it, and since they insist that they have never since seen or heard of the paper. The defendants having admitted that they had parted with and never regained possession of the paper confided to them to be delivered to a person designated by plaintiff, the only issues to be tried were, whether they had delivered the paper rightfully or wrongfully; whether to Cook & Smith or to strangers whom their driver had met in the street, and the determination of these issues should have been left to the jury, whose verdict should have been for plaintiff, provided they should have determined that no delivery had been made to Cook k Smith, and that the defendants had delivered the paper to two strange boys and a carman whom their driver had met in the public highway.

A common carrier, who receives goods to carry and deliver to a person designated by the bailor, becomes liable as for a conversion the moment he makes an unauthorized delivery of the goods to another than the person so designated, and when he admits that he has made such misdelivery, but insists that it is a rightful delivery, no demand is necessary to fix the conversion, or to maintain an action in tort. The judge writing in Syeds v. Hay, 4 T. R., 260, says: “ If one man who is intrusted with the goods of another put them into the hands of a third person, contrary to orders, it is a conversion.” This case is an old and leading authority, and Chief Justice Church, writing in Laverty v. Snethen, 68 N. Y., 525, after citing this case, says : “ This case has been repeatedly cited by the courts of this state as good law, and has never, to my knowledge, been disapproved.”

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

Fitzsimons and McCarthy, JJ., concur.


text:
    Bernard Katz et al., Resp’ts, v. Catharine Atfield, App’lt.

      (City Court of New York, General Term,

      Filed December 17, 1891.)

    New trial—Newly discovered evidence.
    The court has no power upon a motion for reargument of a motion for a new trial under § 999 of the Code to grant an order for a new trial on the ground of surprise and newly discovered evidence. The court at trial term has no power to grant a new trial on these grounds, hut the motion therefor must he made at special term.
    Appeal from an order entered on a motion at a trial term, granting a new trial on the ground of newly discovered evidence.

      Henry Daily, Jr., for resp’ts; E. W. S. Johnston, for app’lt.
   Van Wyck, J.

This cause was tried at trial term béfore judge and jury and resulted in a verdict of thirty dollars for plaintiffs, whereupon plaintiffs’ counsel immediately moved “to set aside the verdict lipón all the grounds stated in § 999 of the Code,” which was denied and excepted to on April 21st, the day of trial. Two days thereafter plaintiffs obtained from the judge who had presided at the trial an order for defendant to show -cause on the next day before him, at the trial term, why the motion for a new trial should not be reargued and a new trial granted on the judge’s minutes, or for such other and further relief,” etc., and recited: “It is further ordered that the plaintiffs have leave to use on the argument of the motion such further material and affidavits as they may be advised, copies thereof to be served on defendant,” etc.

On the return of this order to show cause,' and the hearing of the motions thereby noticed, the plaintiffs were allowed to use .and read an affidavit made by their agent, setting forth that since the trial he had found certain receipts which would prove the delivery of the goods, the price of which was sued for, and that he had since found the address of one of plaintiffs’ drivers, who could give evidence of such delivery at a new trial herein, “ and that he is informed and believes that the signatures to said receipts were signed by the defendant’s intestate and that it can be so established at the trial of this action.” This seems to have been an ingenious effort to turn a motion to reargue and rehear the motion to set aside the verdict on the judge’s minutes into a motion for a new trial on newly discovered evidence. And that such effort was successful is clearly evidenced by the recitals in the order which was entered upon the decision granting the motion and which is the order granted on May 21st, and from which defendant takes this appeal, for this order recites first that a motion was made on the day of trial, upon the judge’s minutes, which was then denied, and secondly, that “ a motion having been made before said justice on April 24 for reargument of said motion and why a new trial should not be granted on said grounds and on the further ground of newly discovered evidenceand it further recites that on reading and filing the order to show cause of April 21, and the affidavit of Ike Kind (the plaintiffs’ agent above referred to) verified on May 4, “ in support of said motion for a new trial,” and continues : “ It is ordered that said motion for a new trial herein be and the same is hereby granted. It is further ordered that said verdict be set aside and a new trial had herein.” It would seem that the trial judge had heard, considered and determined the motion as one for a new trial on the ground of newly discovered evidence. and that plaintiffs’ counsel had so intended that he should, for the affidavit of Ike Kind was drawn and presented by him and so too the. final order appealed' from, which contains the recitals as above described. For the purposes of this hearing the order appealed from must be considered as an order granting a new trial on the ground of newly discovered evidence, and thus is reached the consideration of the question whether it is proper to make such a motion at trial term, or whether such application should have been made at the special term.

The court had no power upon a motion for a reargument of the motion by the plaintiffs for a new trial under § 999 of the Code to grant an order for a new trial on the ground of surprise and newly discovered evidence, and the court at trial term had no power to grant an order for a new trial upon these grounds. The Code is specific upon this question, and a reference to § 1002 thereof will show that the motion must be made at special term and not at trial term as it was. It must also be made upon a case prepared and settled.

The supreme court in Argall v. Jacobs, 21 Hun, 114, affirmed in 87 N. Y., 110, held, that a motion for a new trial on the ground of newly discovered evidence cannot be made on the judge’s minutes. The court says in respect to a motion to set aside a verdict on the ground of surprise : “ It is sufficient to say that the learned judge who held the circuit was right in holding that he had no right to entertain a motion of that kind at circuit.”' And § 1002 of the Code prescribes in substance: “ That in a case not specified in the three preceding sections a motion must in the first instance be heard and decided at special term.”

In Newhall v. Appleton, 46 N. Y. Supr. Ct., 6, the court says: “A motion for a new trial on the.ground of surprise or of newly discovered evidence must be made at special term.” The Code is not changed in the old provision requiring a motion of this kind to be made on a case at special term, which case should show all that transpired at the trial. Sproul v. Resolute Fire Ins. Co., 1 Lans., 71.

In Russell v. Randall, 30 St. Rep., 452, the court, Dwight, P. J., says: “ Where it is imperative that a motion for a new trial on the ground of newly discovered evidence be made,, it can only be made on a case which presents the facts given on the first trial, and so enables the court both in the first instance and on review, to show whether the newly propounded evidence is cumulative or not, and whether it is relatively of such weight and importance as probably to change the result of the trial. The rule seems to be without exception in practice and it is embodied in positive enactment in Code of Civil Procedure, § 997.” In this case as in the case at bar, the motion was not made in a case prepared and settled, and the court says : “ That the judge at special term, being the same who presided at the circuit, relied upon his own recollection of the evidence given at the trial, that means of information is not available to the court sitting in review of the order. It is not found in the record and it is not subject, of course, to review.” And the court, reversed the order granting the motion for a new trial.

The decision at trial term of the case of Argall v. Jacobs, as reported in 56 How. Pr., 167, shows that the motion was made at. the term during which the trial was had, “on the minutes and upon the ground of surprise,” and that the trial judge distinctly stated that a motion for a new trial on the ground of surprise must be made at special term.

The order appealed from should be reversed, with ten dollars costs, but that none of plaintiffs’ rights may be disturbed, leave is given them to apply at special term upon a case made and settled, and upon affidavits if so advised, for a new trial upon the ground of newly discovered evidence, or upon such other grounds as they may be advised, and as the special term may have authority to pass upon.

Fitzsimons, J., concurs.


text:
    William H. Talmage, Resp’t, v. Antonio Gieger, App’lt.

      (City Court of New York, General Term,

      Filed December 17, 1891.)

    Money loaned—Agreement to take payment in board.
    Although the agreement upon a loan of money is that it is to he hoarded out, yet where the borrower insisted upon payment of the hoard as it accrued and refused to apply it on the debt, and after the lender leaves the house signs an acknowledgment of the loan on being requested to do so, the parties will he deemed to have changed the agreement so as to make the loan payable in money and not in board.
    Appeal from a judgment entered on verdict of a jury in favor of plaintiff.

      Campbell & Murphy, for resp’t; T. Mitchell Tyng, for app’lt.
   Van Wyck, J.

The complaint alleges that plaintiff’s assignor lent $625 to defendant. The answer is a general denial, and contains an affirmative defense that the money was lent, not by plaintiff’s assignor, but by another person under an agreement to be repaid only when defendant was able, and that she has not since been able to do so. Plaintiff’s assignor testified that she lent the money with an understanding that she was to board it out with defendant, and she further testified as follows: “The reason I did not board out this money was because she (defendant) would not let me board it out, she made it so unpleasant for me, she insisted on my paying every week, and I did pay. I lived with her during this year and a half and paid my board, and it was during that time, as I understood it, that I was to board this money out, and I paid her without any deduction. I paid my board regularly, twenty-five dollars a week,” and that defendant made it so unpleasant for her that she left the house, and that five or six months after she left she requested a written acknowledgment of the loans from defendant, who signed and gave her exhibit “ A,” which reads: Received from Mrs. E. Sanderson the sum of $250, $200, $100 and $75, in all $625.”

The defendant, in her testimony, adheres closely to her alleged defenses,and says that the money was not to be boarded out by plaintiff’s assignor, and that all, except fifty dollars, was loaned by a person other than plaintiff’s assignor, only to be repaid when defendant was able to do so. At the close of the case defendant moved for a dismissal of the complaint on the ground that, according to plaintiff’s assignor’s testimony, the money was to be repaid in board and not in money; that there is no promise to pay as the pleadings require; and there being no demand or no claim whatever for the right to board it out shown, there is no cause of action shown against the defendant. This motion was denied and excepted to, and the case submitted to the jury, who found for plaintiff, which it seems was eminently proper under the circumstances. The fact that plaintiff’s assignor boarded with defendant for a year and a half at twenty-five dollars a week, which defendant would not permit to be applied on account of the loans, although these weekly payments aggregated more than three times the amount of the loans, would seem to clearly indicate, in conjunction with the written acknowledgment of the loans given as requested subsequent to these weekly payments, and at the time that plaintiff’s assignor says she was forced from defendant’s house by reason of ill treatment, that the parties had waived and changed the original agreement in so far as to make the loans payable in money and not in board, for it cannot be said that the defendant, who had received nearly $2,000 for board of plaintiff’s assignor for the very period during which she was to repay these loans of $625 by such board, will be permitted to insist that the contract to so repay the same by boarding plaintiff’s assignor is still in force, since she has forced plaintiff’s assignor to pay these weekly sums during that period instead of allowing her to apply them on account of these loans, and thus to have fully repaid the same.

The plaintiff’s judgment should not be disturbed and is, therefore, affirmed, with costs.

McCarthy, J., concurs.


text:
    Samuel P. Ferry, Resp’t, v. James G. Wilson. App’lt

      (City Court of New York, General Term,

      Filed December 17, 1891)

    Contract—Advertising—Performance.
    Plaintiff wrote to defendant offering to put his advertisement in certain magazines for October for a certain rate. Defendant replied accepting the offer, adding that if he could get a rebate he would continue until April. Plaintiff answered acknowledging receipt of the order and offering space in said magazines for six months for a specified sum, payable in January. This was accepted bv defendant. In November plaintiff sent a bill for the October insertions and requested a remittance. The publications-of the advertisements continued until March. Held, that the contract for the October insertions was senarate and distinct from the other; that the contract for six months was indivisible and as the publication thereunder continued only five months plaintiff was not entitled to recover.
    Appeal from judgment upon verdict of a jury in favor of plaintiff.

      Robinson, Bright, Biddle & Ward, for resp’t; Francis Forbes, for app’lt.
   Van Wyck, J.

The complaint alleges “that between the months of October, 1888, and March, 1889, both inclusive,” the plaintiff published in ten specified magazines an advertisement for defendant, for which he agreed to pay $168. The answer as amended alleges that the agreement was that such advertisement should be so published in such magazines “ for the term of six months from and including November 1, 1888,” for the agreed sum of $168, and denies that plaintiff did so publish said advertisement as he agreed to do. The only witness called on behalf of the plaintiff testified that no negotiations were had with the defendant about publishing his advertisements except by letter, and so plaintiff’s case rests on certain written exhibits, except as to the proof of publication, and as to that plaintiff makes no proof that the advertisement was published in the magazines for April, 1889, which is the last month of the six months term during which the defendant alleges that the advertisement was to be published.

In order to intelligently consider this appeal it will be necessary to quote quite freely from the letters marked in evidence. The first is from plaintiff to defendant, and is dated. September 29, 1888, saying: “We will insert this advertisement in all of the journals on enclosed list for October, giving you a quarter page, for $35.” The defendant’s reply, dated October 1, 1888, says: “I have yours of 29th ult., at hand. I accept your offer to insert my ad. in your list of 10 mags, for $35, to occupy ¿ page. If you will give me a good position and make a rebate for 6 insertions in the monthlies and 2 in the quarterlies, I may continue till April”

Upon receipt of this letter the minds of plaintiff and defendant met as to the insertion of the advertisement in the magazines for October, and a contract then attached by which the plaintiff was legally bound to so publish such advertisement in said magazines for October, and the defendant was lawfully obligated to pay the thirty-five dollars immediately upon such publication being made. That plaintiff duly received this letter is evidenced by this reply to defendant: “October2, 1888. Iam in receipt of your favor of the 1st and the accompanying order, and thank you for the same. I can give you the top of a white advertising page for six months for both quarterlies and monthlies, 48 insertions in all, for $16, payable January 1, 1889.”

The first sentence of this letter shows that plaintiff was very careful that there should be no misunderstanding about the existence of a binding contract as to the advertisement in the magazines for October, and clearly indicates that he desired to be understood as considering the second sentence of defendant’s letter of October 1st as an acceptance of the offer contained in plaintiff's letter of September 29th, to insert the advertisement in the magazines for October, and as separate and distinct from any other propositions contained in defendant's letter of October 1st, for the second sentence of this letter is construed by him in his letter of October 2d as “ the accompanying order ” for which he thanks defendant.

The next letter is from defendant to plaintiff: “ October 3, 1888. I have your favor of yesterday, but your estimate is not perfectly plain to me. * * * Do you mean $161.” To this plaintiff replied: “ October 4, 1888. I have your favor of the 3d. My previous letter should have read 48 insertions for $168,” and to which defendant replied: “October 5, 1888. I accept your offer, provided you place my ad. on top pages in all cases and send me copy of the books each issue.”

As there was a separate and distinct contract between the parties for the insertion of the advertisement in the ten specific magazines for October 1888, for $35, and as they were only published once a month, it was clearly the intent and meaning of the parties that for the additional gross sum of $168 the plaintiff was to insert the advertisement in the magazines for the further term of six months beginning in the publications of the magazines for November, following the month already provided for at the gross sum of $35. That such was the meaning and intent of the parties is further shown by defendant’s exhibits 1, 2 and 4. Exhibit 4 is a letter from plaintiff to defendant, dated October 5, 1888, in which he says: “ I am in receipt of your favor of the 5th, accepting my offer for six months’ advertising. I enclose contract for same, which you will kindly sign and return,. I also enclose contract for advertisement in October issues,as per your orderpf October 1st.” The contracts enclosed in this letter are exhibits 1 and 2. Number one is addressed to plaintiff and reads; “I hereby authorize the insertion of my advertisement in the Nineteenth Century, to occupy the space of one-quarter page, from November ’88,” and then follows the names of the other nine magazines, and continues, “ for the term of six months; six times in monthlies; twice in quarterlies; for which I agree to pay the sum of one hundred and sixty-eight dollars.- Terms payable in cash January 1, 1889.” And number two is similarly addressed and reads, “ I hereby authorize the insertion of my advertisement in the Nineteenth Century, to occupy the space of ¿ page,” and then follows the names of the other nine magazines, after which it continues, “ for the October issues, for which I agree to pay thirty-five dollars. Terms payable on receipt of all journals containing adv.” Although these two contracts were sent by plaintiff to defendant for his signature, it nowhere appears in evidence that they were executed. Eemembering plaintiff's letter of October 2nd, offering to insert the advertisement for six months, for a price “payable January 1, 1889,” and the contract exhibit No. 1, which says, “ Terms payable in cash January 1, 1889,” it becomes material to refer to defendant’s exhibit No. 3, which reads, “ November 27, 1888. J. Gr. Wilson, Dr. To Leonard Scott Publication Co. (name under which plaintiff traded): For advertising ¿ page in Nineteenth Century for month of Oct., ’88,” and then follows the names of the nine other magazines, and continues “ $35. Please remit.” The presentation of this bill to defendant on November 27, with the request to “ please remit,” clearly indicated that plaintiff then considered that he had two separate and distinct contracts with the defendant ; one to publish his advertisement for the month of October, for which the payment of $35 was then due, and the other to publish for six months, beginning with November, but under which no payment would become due until January following.. This was the condition of the case when plaintiff rested and defendant moved for a nonsuit, for all of these exhibits of defendant were offered and received in evidence while plaintiff’s only witness was under cross-examination, and the subsequent proceedings did not better plaintiff’s case. This second contract to publish for six months in ten journals for an agreed gross sum of $168 was entire and indivisible, and plaintiff was required to perform the same in its entirety by publishing the advertisement as agreed for the full term of six months, beginning with and including November, 1889, and this he did not do, for the proof shows that the same was published for only five months of the term and he makes no excuse for his failure to publish for the last month of the term. The only reason which can be inferred from the record for plaintiff’s failure to complete the publication is, that he was fearful of his pay, but if defendant had defaulted in making payment at the time agreed upon, the plaintiff should have either discontinued the publication and sued for what work he had already performed under the contract and for such damages as he had sustained by reason of the breach thereof, or completed the publication as agreed and brought his action on the contract But he has done neither, for he brings his action on an alleged contract which his proof not only fails to establish, but shows that another and different contract existed, which his proof further shows has not been substantially performed by him, as it cannot be said that publication for five-sixths of an agreed term is any more a substantial performance of the contract than would be publication for the full term in five-sixths of the designated magazines.

In Dauchy v. Tutt, 19 Wk. Dig., 490, it is said: “ The advertisements were not inserted within the stipulated time and in the full number of papers, nor published the full agreed time in a great many of the papers, nearly five-sixths of the papers published short time,” and held that the plaintiff could not recover. And Judge Yan Brunt says, in Hazzard v. Hoxsie, 25 St. Rep., 50, that a contract to publish an advertisement in the programmes used at three designated theatres is not substantially performed by publication in the programmes used at two of such theatres.

It would seem that justice requires that upon the whole case the judgment and order appealed from should be reversed, and a new trial granted, with costs to appellant to abide the event, and it is so ordered.

Fitzsimons and McCarthy, JJ., concur.


text:
    James S. Virtue & Co., Resp’t, v. John Beacham, App’lt.

      (City Court of New York, General Term,

      Filed December 17, 1891.)

    1. Bill of particulars—Insufficiency.
    The mere fact that a bill of particulars served on demand fails to refer to one of the causes of action set forth in the complaint is not ground for a dismissal of that cause of action. If the bill of particulars is insufficient the defendant should move for a further or additional bill.
    2. Contract—Sale.
    An order for goods requested shipment of certain articles named, and proceeded: “ And if you please you can send me at the same time” other articles. Held, that under this order plaintiff could recover for the articles first named although he did not ship those mentioned in the second sentence.
    Appeal from judgment entered on verdict of jury in favor of plaintiff.

      Tecumseh Sherman, for app’lt; P. Q. Eckerson, for resp’t.
   Van Wyck, J.

At the opening of the trial defendant moved to dismiss the first cause of action set forth in the complaint, on the ground that on demand plaintiff had served a bill of particulars which left out everything referring to the first cause of action. This motion was denied, and properly so, for if the bill of particulars served was insufficient the defendant should have moved for a further and additional bill. The defendant then •demanded that plaintiff elect as to which cause of action he desired to go to trial on, and plaintiff so elected the first cause of action and withdrew entirely his second alleged cause. The plaintiff had marked in evidence this order from defendant to plaintiff: “ Will you please ship me H. M. A. 100/1, 75/2,50/3-4, 5, 50/6-7, 8-9-10. And if you please you can send me at the •same time 50/1-2, 3, 4, 5 of Colonial.” The plaintiff shipped to fendant the books called for by the first sentence of the above •order and sued for their value, but did not ship the books referred to in the second sentence of such order. The defendant contends that plaintiff was compelled to ship all of the books referred to in said order, and that in default thereof he could not recover for those shipped. The two sentences of this order are so worded as to allow the plaintiff to either ship the books called for by the first and recover for their value, or to ship and recover for all the goods called for by both, but he would not be permitted to ship the goods mentioned in the second sentence and recover therefor without also shipping those called for by the first, for those mentioned in the second were to be shipped “ at the same time ” as those requested by the first The evidence to sustain plaintiff’s cause, although somewhat meagre, is ample to justify the verdict in his favor, and the same should not be disturbed.

Judgment affirmed, with costs.

Fitzsimons, J., concurs.


text:
    Mary J. Rudolph, Resp’t, v. James McCaldin et al., App’lts.
    (City Court of New York, General Term,

      Filed December 17, 1891.)

    Negligence—Loss of vessel.
    Plaintiff’s evidence tended to show that she chartered a scow to defendants through their manager; that it was lost while being towed in a gale by a small boy in a row boat, who had been employed by defendants for that purpose, and that one of the defendants had admitted that it was lost by their fault and offered to replace it by another. Defendants’ manager denied that he chartered the scow, but the testimony as to the admission was not denied. The case was submitted under a proper charge. Held, that a verdict for plaintiff would not be disturbed.
    Appeal from judgment entered on verdict of jury in favor of plaintiff.

      Stewart & Macklin, for resp’t; Arch. L. Sessions, for app’lts.
   Van Wyck, J.

The record does not disclose any objection or exception whatever except to the denial of the motion, on the minutes, for a new trial, and this appeal is from the order entered thereon and the judgment. The plaintiff’s evidence shows that she chartered a scow to defendants ; that the same has never been returned to her; that it was lost in the New York bay while being towed by a very small boy in a row boat; that this boy was employed by defendants to so tow the scow; that the person "through whom the scow was so chartered was Mr. Donegan, the manager of defendants. Plaintiff’s son testified that Donegan had so chartered it, which, however, he denied, and the son further testified that after the boy had started out to so tow the scow in a heavy gale he had succeeded in saving himself but the scow was; lost, and that thereafter one of defendants (copartners) admitted that the scow was lost by their fault and offered to replace it by giving his mother another one, which she refused, and this was not contradicted by defendants.

The case was carefully submitted to the jury, who were instructed to first determine whether the scow had been chartered to defendants, for whom they must find a verdict if they concluded, that it had not been, but if they found that it had been, then they must ascertain whether its loss was caused by the careless and negligent management of the same by defendants, and if so, then what was its value. The verdict returned for $100 for plaintiff should not be disturbed and is affirmed, with costs.

McCarthy, J., concurs.


text:
    Catharine Garrick, Resp’t, v. Edouard B. Menut, App’lt.

      (City Court of New York, General Term,

      Filed December 17, 1891.)

    1. Pleading—Defect of parties defendant.
    Objection to a defect of parties defendant must be taken by demurrer or answer, otherwise will not be considered on trial.
    2. Landlord and tenant—Term of tenant holding over.
    Under a letting from May to May the tenant holding over thereafter is liable for rent for another year, whether the lease was in writing or by paroi.
    Appeal from judgment entered on verdict for plaintiff directed by the court.

      Johnston & Johnston, for resp’t; Benner & Benner, for app’lt.
   Van Wyck, J.

This action is by the landlord to recover unpaid balance of June rent and rent' of July, 1891, for premises let to defendant at the annual rental of $2,200, payable monthly. The plaintiff herself testifies that about April 1, 1891, she had a. conversation with defendant, who had been a yearly tenant in occupation of these premises for several years at a yearly rental of $2,200, when it was agreed that he was to lease the premises for another year from May following at the same rental. Mr. Slattery, a witness on behalf of plaintiff, testified that defendant had" occupied the premises for several years as tenant of plaintiff; that he had collected the rent during all the time that defendant was there as tenant; that during the last year of his occupancy defendant paid $2,200; that he paid on account of the year beginning May 1, 1891, the first month’s rent for May of the new year,, and that he gave a check for $120 on account of rent for j une, 1891, signed by him in the name of E. B. Menut & Co. The defendant then moved to dismiss the complaint on the ground that the action was against defendant personally, while the testimony of plain tiff showed nothing whatever on the subject of a lease, and that the testimony of Mr. Slattery showed no lease, but is that he received a check of E. B. Menut ’& Co.

This motion was properly denied, and then the defendant testified as follows: “ I am the senior member of the firm of E. B. Menut & Co. That firm is composed of Mr. G. Hilton Scribner and myself. We both had an interest in the business, and he occupied the building as much as I did I did not at any time, from about last April to last May, make a personal arrangement with Mrs. Garrick to occupy these premises to the first of next May or any other time. During the time that I was in these premises I was in there merely as one of the firm of E. B. Menut & Co. I never had any personal hiring of these premises of any kind. I did not make any verbal lease with Mrs. Garrick, simply held on according to the old lease we had, but I never made any personal agreement. I did not say anything to her, because I did not see her. She did not say anything to me. She simply sent around the collector every month,, and I paid by check as usual. The collector did not say anything either. I have complained on several occasions that the rent we were paying was excessive, but I did not have any occasion to complain, especially at the time she describes, because I did not have any personal lease myself for the premises. I do not recollect having seen her about the first of April; and I am certain I did not make any personal arrangements for the building.” The foregoing is all of defendant’s testimony verbatim, and is all of the evidence offered on his behalf. At the close of this testimony the court assumed control of the case and directed a verdict for plaintiff, and the defendant excepted to this direction, but made no request to be allowed to go to the jury on any specified alleged disputed questions of fact. The answer was simply a general denial and contained no plea making objection to the nonjoinder of defendant’s copartner or in any way calling attention to the existence of such partner, or of any copartnership whatever.

The substance of defendant’s evidence is simply an effort to defeat plaintiff’s recovery on the ground of the nonjoinder of defendant’s partner as a party defendant, but this cannot avail him, as the Code of Civil Procedure, § 488, provides that when such defect of parties, plaintiff or defendant, appears on the face of the complaint, objection may be taken by demurrer, and § 498 provides that when such defect does not appear on the face of the complaint the objection may be taken by answer, while § 499 provides that: If such objection is not taken, either by demurrer or answer, the defendant is deemed to have waived it” This express language would, even in the absence of any judicial authority, nullify this defendant’s effort to defeat plaintiff's recovery by reason of the nonjoinder of his partner as a party defendant, but there is a long line of decisions under §§ 144, 147 .and 148 of the old Code, which correspond with the above mentioned sections of the new Code. Zabriskie v. Smith, 13 N. Y., 337 ; Hosley v. Black, 28 id., 444; Merritt v. Walsh, 32 id., 689; Patchin v. Peck, 38 id., 39; Roberts v. Johnson, 58 id., 616, and Davis v. Bechstein, 69 id., 443. This principle of practice is absolutely settled and would not be further discussed except for a misapprehension which seems to have existed as to the meaning of § 452 of the Oode, which provides for the bringing in of additional parties “ where a complete determination of the controversy cannot be had without the presence of other parties.” This section has reference more particularly to equity suits, partition, foreclosure suits, etc., where the parties sought to be brought in have some interest, fixed or contingent, in the subject matter of the controversy, such as that of the inchoate right of dower of a wife of whose existence nothing was known until the trial, and the rights as tenant by the curtesy of a husband whose existence was first discovered at trial, and whose interest formerly was of some substance, but is now shadowy and subject to be defeated by the wife’s conveyance, either by deed or will, or where an injunction is sought, say against a copartnership firm, and where, at the trial, it is discovered that a person not a party is a member of such firm, and so illustration after illustration could be given showing that §452 has application only to conditions entirely different from those existing in the case now under consideration.

It must be confessed that this plaintiff’s case was not as fully presented as it could have been, for a half dozen well-directed questions addressed to the defendant, while on the witness stand, must have brought forth statements of the true conditions attending his entry into possession, and his continued occupancy of the premises. The exhaustive brief of plaintiff’s counsel has, however, treated her meagre case in such an able manner as to convince the court that the trial judge was justified in directing the verdict. For eliminating the testimony of the plaintiff herself from the case, sufficient is left to establish as an undisputed fact that the defendant was a hold over tenant of the premises under the same conditions as to rent, etc., as those under which he held possession of and occupied the premises for the previous year ending May 1, 1891, for, as above stated, he will not be allowed to defeat plaintiff’s recovery because of the non-joinder of his partner as a defendant. The defendant does not deny the evidence of the witness Slattery that he occupied the premises under a yearly letting for the year ending May 1, 1891, at the yearly rental of $2,200, payable monthly, but simply denies that he made the verbal agreement testified to by Mrs. Garrick as made in April, and expressly admits that he held over under the old lease, under which he had occupied the premises for the previous year, for his testimony is: “I did not make any verbal lease with Mrs. Garrick, simply held on according to the old lease we had. I never made any personal agreement.”

If he had informed the plaintiff by his answer that he had a partner liable with him for the rent, she would have undoubtedly amended her complaint accordingly.

The firmly established law of this state is, that a tenant occupying premises under a letting from May to May, who holds possession after the expiration of the term, can, at the election of his landlord, be held liable for another year’s rent at the same rate and under the same conditions of the previous letting. Schuyler v. Smith, 51 N. Y., 309; Ackley v. Westervelt, 86 id., 448; Laughran v. Smith, 75 id., 205, and Coudert v. Cohn, 118 id., 309; 28 St. Rep., 684. The plaintiff’s judgment must be affirmed, with costs.

Fitzsimons and McCarthy, JJ., concur.


author: Barnard, P. J.

text:
    The Willson & Adams Co., of Mount Vernon, Pl'ff, v. Henry A. Schorpp, et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Reference—Report—Rule 30.
    Rule 30, which makes a referee’s report absolute in eight days, does not deprive the court of the power to cancel the report for good cause. So held, where the report showed a balance of moneys in the referee's hands which did not in fact exist.
    Appeal by defendants, Henry A. Sohorpp and Lucia S. Schorpp, from order denying motion to compel the “referee to sell” to deposit surplus moneys, and also from order overruling exceptions to the referee’s corrected report,

      Milo J. White, for app’lts; Charles F. Irwin, referee in person.
   Barnard, P. J.

The plaintiff obtained a judgment for the sale of certain real property in the village of Mt. Vernon, to satisfy a lien which they had filed upon the property. A referee was appointed to sell the right, title and interest of the defendants therein. The referee was required by the terms of the judgment to pay expenses of sale, also taxes and assessments which were liens, and then to pay the plaintiff’s judgment. Any surplus was to be paid by the referee to the treasurer of Westchester County. The bid at the sale was $4,000 and all incumbrances were to be deducted. There were mortgages to nearly that sum, but the bidder advanced enough to pay the lien, judgment and costs and it was paid. The referee deducted that amount from the amount of the incumbrances and reported the part of the mortgage as reduced by the advance made' by the bidder as surplus. There was no surplus and the reduction of the mortgage was irregular and unauthorized and is probably to be explained by the fact that the bidder subsequently gave the defendants fifty dollars for a deed of the property subject to the mortgages and allowing the advance made to pay the plaintiff’s lien. The defendants applied to compel the referee to pay in the surplus apparently in his possession under his report and the county judge permitted an amended report to give the true facts. More than eight days had expired from the filing of this report. The rule which made the report absolute in eight days did not deprive the county judge of the power to cancel the report for good cause. It would be unjust to use the rule so as to compel a referee to pay over a large sum of money which he never received.

Order affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Francis Dent, App’lt, v. The Society of the Friars Minor of the Order of St. Francis, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Depositions—Intebbogatobies.
    Questions not pertinent or relevant to the issue should not be permitted to be inserted in the interrogatories to be annexed to a commission.
    Appeal from order disallowing certain cross-interrogatories to witnesses to be examined on commission at Rome, Italy.

      Francis Dent, app’lt in person; Bliss & Schley, for resp’t
   Dykman, J.

This is an appeal from an order of the special term disallowing certain. cross-interrogatories to witnesses to be examined on commission at Rome, in Italy.

The action is for the recovery of damages for the deprivation of the plaintiff of his support and maintenance as a priest and of his rights and privileges as a member of the Custodia of Buffalo of the Order of Friars Minor of the Strict Observance, incorporated as the Society of Friars Minor of the Order of St. Francis, and a perusal of the pleadings shows plainly that the rejected interrogatories are immaterial to any question which can be litigated upon the trial of this action.

Under the provisions of the Code either party must be allowed to insert in the interrogatories to be annexed to a commission for the examination of witnesses any question pertinent to the issue which he proposes, and the converse of this rule is easily deduced, that a party must not be allowed to insert in such interrogatories any question not pertinent to the issue.

It is true the question of relevancy and materiality might be reserved until the trial, but it is equally true that impertinent and irrelevant interrogatories should never be propounded.

An examination of the questions disallowed at the special term shows them to be objectionable in many respects, and we thinlc they were properly rejected. ,

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

Barnard, P. J., and Pratt, J., concur.


author: Pratt, J.

text:
    The Chester Rolling Mills, Resp’t, v. The Vessels “ Hopatcong,” etc., App’lt. The Phœnix Iron Co., Resp’t, v. The Vessels “ Hopatcong,” etc., App’lt

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Costs—Vessels—Laws 1862, chap. 482.
    An extra allowance may be granted in an action brought under chap. ¿82, Laws 1862. The provisions of the old Code in relation to costs were incorporated in the act by a reference thereto, and the act in that respect was not affected by the repeal of the Code.
    Appeals from orders granting an extra allowance of five per cent in each case.

      Actions to enforce claims against the vessels under chapter 482, Laws 1862.

      Abbett & Schmitt, for app’lt; Harvey Weed, for resp’ts.
   Pratt, J.

These proceedings are based upon the act of 1862, and the allowances from which these appeals are brought were such as were authorized by that act

The costs and allowances granted by that act were not set forth bodily in the statute. They were incorporated into it by a reference to the Code of Procedure then in existence, and became a portion of the act as effectually as if they had been set forth in words.

The subsequent repeal of the Code of Procedure did not affect the act of 1862. That stands as it did before.

The allowances made were therefore proper, and are affirmed.

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


text:
    Albert Howe, App’lt, v. Thomas J. Learey, App’lt, and Jessie Learey, his Wife, Resp’t

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Depositions—Examination before trial.
    Where facts and circumstances are shown which justify an examination of a party so that a pleading may be framed for the trial of an issue, the order should be granted.
    2. Same—Foreclosure.
    An affidavit made by a wife, who is a defendant in an action of foreclosure, showing that the assignment of the mortgage to plaintiff was paid for by her husband, and that he has ill treated her and threatens to deprive her and their child of his property, is sufficient to authorize an order for the examination of her husband and the plaintiff in order to enable her to frame her answer.
    Appeal from order denying motions by plaintiff and the defendant Thomas to vacate order for their examination to enable defendant, Jessie Learey, to frame her answer.
    Action to foreclose two mortgages acquired by plaintiff by assignment from the Irving Savings Institution.
    The affidavit on which the order for examination was granted, in addition to the particulars required by § 872 of the Code, proceeded as follows:
    “ That the plaintiff and the defendant, Thomas J. Learey, are conspiring and colluding together to defraud deponent of her rights in the land described in the complaint, and that this action is collusive, and an attempt to defraud deponent and to deceive the court and to use the machinery of justice to effect a wrong and a fraud.
    “ That the plaintiff is not the real owner of the alleged bonds and mortgages; that the same were bought expressly for the purpose of bringing this suit; that the money of the said Thomas J. Learey was used to purchase the same and not the money of the plaintiff; that the assignment of the same ought equitably to be treated, so far as this defendant is concerned, as a satisfaction thereof.”

      The affidavit also specified, among others, the following facts and circumstances to show that the examination was material and necessary:
    That her husband, Learey, had manifested hostility to her, threatened to leave all of his estate which the law would permit to his children by a former wife, and attempted to induce her to release her dower.
    That interest on the mortgages in suit was paid January 1st last, the assignment of them to Howe made on April 9th, and this suit commenced the following day, April 10th last.
    That Howe, the plaintiff, and Learey, the co-defendant and husband of Mrs. Learey, are, and have long been, friends.

      Thomas F. Donnelly, for pl’ff., app’lt; Fromme Bros., for app’lt Learey ; Arnoux, Ritch & Woodford (Edward M. Grout, of counsel), for resp't.
   Barnard, P. J.

This action is brought to foreclose mortgages on real property owned by the defendant, Thomas Learey. The mortgages were acquired by the plaintiff by assignment from the Irving Savings Institution. The mortgages were on the property when Learey bought. The defendant, Jessie Learey, obtained an order to examine the plaintiff and her husband. The order was obtained before answer. The affidavit upon which the order was granted was sufficient under § 872 of the Code, subd. 4. No objection is made to the affidavit in any other respect than that no defense is proven to the action and no sufficient facts and circumstances are established to justify an order for the examination. There is a defense shown, if true. Learey has conspired with the plaintiff to assert the validity of the mortgages which were acquired with Learey’s money for the purpose of cutting off the rights of his wife therein. If Howe merely holds the title to the mortgages by an assignment when the same are paid in fact by the owner of the title, it will make a defense on the trial if proven. The husband is on ill terms with his wife; treats her with cruelty; is attempting to obtain her signature to a mortgage to cut off her dower. While he is of substantial means, he supports his wife and children with great meagerness. He threatens to cut off his wife and children from his estate so far as permitted by law. These facts and circumstances are sufficient -to justify the order. The wife is entitled to know the particulars of the transaction so as to frame her answer. The rigid rule that if a party do not actually know the facts which make the defense no order to examine can be granted would render the section of the Code in question of little practical use. The section shpuld have a broader scope. Where facts and circumstances are shown which justify an examination of a party so that a pleading may be framed for the trial of the issue, the order should be granted.

The notice of the defense and the facts and circumstances to show that an examination is material and necessary are sufficiently stated, and the order should be affirmed, with costs.

Dykman, J., concurs ; Pratt, J., not sitting.


text:
    Edward Haynes, App’lt, v. Edward Hatch, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Contempt—Service op order.
    To authorize the maintenance of proceedings for contempt in failing to appear pursuant to an order it must he shown that the order was served upon the party; service on his attorney is not sufficient.

      (MeCaulay v. Palmer, 40 Hun, 38; 2 St. Rep., 600, followed.)
    Appeal from order denying motion to punish the defendant for contempt
    On April 27, 1891, Mr. Justice Bartlett made an order requiring defendant to appear on May 6, 1891, before Charles A. Peabody, Jr., Esq., for examination before trial.
    This order was served personally on defendant
    On May 2, 1891, Mr. Justice Cullen made an order to show cause, returnable on May 5, 1891, why said order of April 27 be not vacated, with a stay of plaintiff’s proceedings until the hearing and decision of the motion to vacate.
    On May 8, 1891, Mr. Justice Pratt made an order denying said motion to vacate said order of April 27, with a stay of plaintiff’s proceedings pending defendant’s appeal to the general term from such order.
    On July 8, 1891, an affirmance by the general term of said order of Mr. Justice Pratt was duly entered.
    This order was served on defendant’s attorney. It was not served on defendant
    On July 8, 1891, an order was made by Mr. Justice Cullen requiring defendant to appear on July 10, 1891, before said Charles A. Peabody, Jr., Esq., the referee named in the original order of Mr. Justice Bartlett
    This order was served on defendant’s attorney. It was not served on defendant
    On May 6, said referee adjourned the examination of defendant to May 13, later to May 27, later to July 10, 1891.
    The defendant has never appeared before the referee. His attorney has not appeared except once, on J uly 10, 1891, and then only to object to the sufficiency of the service of the order of Mr. Justice Cullen requiring defendant to appear before the referee on July 10, 1891.
    On July 13, 1891, Mr. Justice Cullen made an order to show cause why defendant be not punished for contempt for failing to appear for examination on the aforesaid dates.
    On J uly 24, 1891, Mr. Justice Cullen made an order denying said motion to punish defendant for contempt

      Deming & Logan (Chas. M. Demond, of counsel), for app’lt; Henry Tompkins, for resp’t
   Pratt, J.

We think the court below correctly held this case to be controlled by McCaulay v. Palmer, 40 Hun, 38; 2 St Rep., 600.

It follows that the order appealed from must be affirmed.

After an attorney has appeared in an action it may well be that a service upon him should be sufficient upon which to base proceedings for contempt against the client. But such change in the practice must be made by the legislature.

Order affirmed, without costs.

Barnard, P. J., and Dykman, J., concur.