text:
    Mary O’Toole, Resp’t, v. The Central Park, N. & E. R. R. R. Co.. App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Negligence—Street railroads.
    Plaintiff was injured while standing on the sidewalk in front of defendant’s depot, and between two of its tracks, having with her a baby and a little girl. Her testimony tended to show that two cars were approaching rapidly, and deeming herself in danger she motioned the driver of one to stop, but he did not do so and she was knocked down. Defendant’s testimony was to the effect that both cars had come to a stop, and that plaintiff crossed the track, and seeing a car coming ran back and against the car in question and was thereby injured. Held, that a verdict in favor of plaintiff would not be disturbed.

      2. Same—Contblbutoby negligence.
    Plaintiff had a right to stand upon the sidewalk, although it was in front of the depot, and contributory negligence could not be predicated from the fact that she stood there.
    Appeal from judgment entered on verdict of a jury and from order denying motion for new trial.
    Vanderpoel, Green & Cuming, for app’lt; J. F. Higgins, for resp’t.
   Van Brunt, P. J.

The accident out of which this action arose occurred on an afternoon in March, 1888, in front of the depot of the defendant at Fifty-third street and Tenth avenue.

It appears from the evidence in the case that at this point the cars of the defendant ran upon a curve over the sidewalk for the purpose of entering the depot.

Desiring to enter a car the plaintiff stood in front of the depot between two of the tracks of the defendant, having her baby in her arms and a little girl alongside of her waiting for a car. As she stood there she saw two 'cars approaching, one of them according to her testimony coming very swiftly. Finding herself exposed to danger she motioned to the driver to stop, which he did not do and she was knocked down by the car and injured.

Upon the part of the defendant testimony was offered tending to show that at the time of the happening of the accident both cars had "actually come to a stop, and that instead of the cars running into the plaintiff, she first attempted to cross the track and seeing a car coming ran back and ran into the car and by the shock was knocked down upon her knees, and that is the manner in which it is claimed by the defendant the plaintiff was injured, if at all.

The defendant by the witnesses examined by it certainly offered strong evidence to show that the plaintiff must have been mistaken in her version of the cause of the accident; but this fact would not have justified the court in taking the case from the jury.

If the plaintiff’s evidence was true then the jury would have been entitled to find that the defendant was guilty of negligence and also that the plaintiff had not been guilty of negligence in any degree contributing to the happening of the accident.

It would appear that the accident happened upon the sidewalk in front of the depot. The plaintiff had a right to be there; the defendant did not own the sidewalk. It was a proper place for her to stand and she had a right to assume that the railroad company in housing their cars by crossing the sidewalk would show some respect at least to the rights of foot passengers. Therefore from the fact of her standing upon this sidewalk, although it was in front of the depot, no claim of contributory negligence could be predicated. Being rightfully in this position with her two infant children she is compelled to act because of what she believed to be the danger she was placed in by the rapid approach on the curve going into the depot of two of the cars of the defendant, a danger if her story is correct not imaginary but actual; and if she failed to pursue the very best course which under the circumstances she might have done, if the defendants were guilty of negligence in the management of their cars, it does not deprive her of her right to recover.

Jt is urged upon the part of the defendant that the supposed peril in which the plaintiff was placed was not actual or real, but merely fancied or visionary. But this assertion depends for its support upon the acceptance of the testimony upon the part of the defendant that the car had come to a full stop and that the driver was in full control of his car and horses.

W"e think the jury had a right to adopt a different version of the evidence, in view of the testimony given on the part of the plaintiff, and this court cannot interfere with the conclusion arrived at.

It is urged that the court refused to charge various of the defendant’s requests, and error was thereby committed. But upon an examination of the record it will be seen that in the charge all these requests, so far as the defendant was entitled to have them charged, was covered by the language of the court, and it was not necessary that the court should repeat propositions which it had already submitted to the jury.

We cannot say that the damages were excessive. The evidence upon the part of the plaintiff showed injury for which she was entitled to compensation, and the verdict was not of that character which showed passion or prejudice, and unless such fact appears because of the unreasonableness of the verdict, it cannot be set aside upon the ground that the damages are excessive.

The judgment should be affirmed, with costs.

Daniels and Brady, JJ., concur..


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Emil Oelbermann et al., Resp’ts, v. William R. Jarman et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Sale—Delivery on memorandum.
    In an action for the value of goods delivered to defendants on memorandum, and which were stolen from them, the evidence as to the meaning in the trade of the word memorandum was conflicting, plaintiffs’ testimony tending to show that goods delivered in this way were at defendants’ risk, and defendants’ tending to show the contrary. But it also appeared that one of the defendants spoke to the plaintiffs’ agent of other goods delivered by other persons in the same manner a!s having been bought, and his testimony showed that he understood that their insurance covered these goods. Held, that a finding that the delivery in this manner was not a mere bailment, but that the goods were at defendants’ risk, was proper.
    3. Same—Pleading—Bailment.
    The complaint alleged a delivery of these goods on memorandum, to be held and returned by defendants at their risk during a reasonable time, and if not returned within such time to pay the value thereof. Held, that these allegations did not tend to establish a bailment, and did not estop plaintiffs from proving a sale.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      E. M. Bliven, for app’lts; C. E. Hughes, for resp’ts.
   Van Brunt, P. J.

I.— This action was brought to recover for the value of certain goods delivered on memorandum by the plaintiffs, to the defendants, and afterwards stolen from the defendants” store; the question involved being whether the goods were in the possession of the defendants at their own risk or at the risk of the plaintiffs. It appears that shortly prior to the 27th of September, 1882, an employe of the plaintiffs, named Girond, went to defendants’ store in Brooklyn and saw one of the defendants. The plaintiffs’ employe, after looking through the stock of shawls of the defendants’, suggested that there were no shawls of a particular kind amongst them. The defendant replied that the season was pretty-well over for selling that kind of shawl and he did not think they would be able to sell them.

The plaintiffs’ employe said “ Why don’t you let me send over-some Stellas and mix with the others ? ” The defendant replied that he could not sell any Stellas, but the employe insisted, “ Suppose I send them over anyway on memorandum; you need not. pay for them until the goods are sold.” And on the same day or the next the merchandise in question was received by the defendants from the plaintiffs, accompanied by a paper which was called a memorandum bill. After, the goods had been in the possession of the defendants for some weeks, they were stolen and payment, -was demanded by the plaintiffs. The defendants denied their legal obligation, but promised to pay as soon as they were able.

Evidence was offered to show what 'was meant by the word “ memorandum ” upon the bill of goods, both on the part of the plaintiffs and of the defendants. It is called throughout the case proving a custom. The evidence on the part of the plaintiffs tended to show that goods delivered in this way were at the risk of the defendants, and the evidence on the part of the defendants-tended to show the contrary.

Under this conflict of evidence the question was submitted to-the jury who found a verdict for the plaintiffs, and from the judgment and order thereupon entered this appeal is taken.

It is clear that the plaintiffs had the right to offer evidence-tending to explain what was meant in the trade by the word “ memorandum ” in a bill of that- kind. If they succeeded in establishing to the satisfaction of the jury a general understanding amongst dealers in that class of goods in respect to the meaning of such a term, then the parties to this contract are supposed to have acted- in the light of such an interpretation of the word. This was a question which the jury alone could determine upon the conflicting evidence. And upon an examination of the case it would appear that they came to a conclusion which was not inconsistent with the interpretation which the defendants themselves had placed upon this memorandum. The defendant who-was examined was- asked whether the plaintiffs’ agent had asked them to insure these goods, and he answered “I cannot positively answer now. He probably asked me whether we were sufficiently insured to cover these goods; and if he had asked me the question I should have told him, yes.”

How this evidence seems clearly to show that the insurance on. the defendant’s property would cover the goods in question. If they were at the plaintiff’s risk, how could this possibly be?

There is another piece of evidence which seems to indicate that the defendants placed this interpretation upon goods delivered on memorandum.

The witness was testifying in regard to the call of plaintiffs’ employe, Mr. G-irond, and he stated: “ We had just started in business; I had gotten from another house in town, James Mc-Creery & Co., by request, a consignment of India shawls on memorandum. Mr. Grirond had evidently seen our advertisement in. regard to them and called on me. He felt hurt that I had passed him in the matter. I told him J did not find his shawls as salable as the shawls I had bought from other parties, and for that reason I had passed him.” The witness evidently considered that the shawls delivered by McCreery & Co. on memorandum had been bought. It seems clear, from this evidence, that the jury were right in finding that the delivery, under the circumstances shown upon this trial, was not a mere bailment or Consignment, but that the goods, according to the understanding of the defendants themselves, were at their risk.

It is not necessary to discuss the question whether they were bailees or factors. It is clear that if they were simply bailees or even factors they were only liable for reasonable care in the custody of these goods. They were not claimed to be held for negligence as bailees, but on the contrary that, by the terms of the contract between them and the plaintiffs, the goods while in their possession were at their risk. They had an option to return them within a reasonable time, but if they did not return them they were liable for the price.

It is not necessary to discuss the evidence at length ; but there seems to have been sufficient for the jury to find, as they did, that the goods were at- the risk of the defendants.

It is urged that the plaintiffs are estopped from proving a sale by their admissions in the pleadings which implied a bailment and not a sale: and that this admission cannot be contradicted on the trial.

We have examined the pleadings in vain to find such an estoppel. The complaint alleges a delivery of these goods on memorandum to be held and returned by the defendants at their risk during a reasonable time and if not returned within a reasonable time to pay the value thereof. There are no allegations establishing a bailment contained in the complaint, but on the contrary it alleges the delivery of goods under a contract whereby the defendants were to pay for or return the same within a reasonable time.

There are no exceptions contained in the case which seem to demand discussion, and the judgment and order appealed from should be affirmed, with costs.

Daniels and Brady, JJ., concur.


text:
    The People ex rel. August Schwab, App’lt, v. Hugh J. Grant, Mayor, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Municipal corporations—New York—Auctioneer’s license.
    The mayor of the city of New York is not hound, in all cases, on tender of a sufficient bond, to grant an auctioneer’s license. He has power, in a. proper case, to refuse to grant such license, and whether proper cause existed for such refusal in a particular case cannot he reviewed on application for mandamus.

    Appeal from order denying motion for peremptory mandamus.

      F. J. Bischoff for app’lt; H. B. Twombly, for resp’t.
   Van Brunt, P. J.

Some time in April or June, 1890, the relator applied for a license as auctioneer in the city of New York, presenting an apparently sufficient bond. The mayor refused to grant the license upon the ground that since 1888 Schwab had acted as a public auctioneer without a license and had therefore-been guilty of a misdemeanor under the Revised Statutes, and that in other respects his character was not entirely above suspicion.

The question submitted upon this appeal seems to be, whether or not the mayor upon the tender of a sufficient bond by an applicant for an auctioneer’s license is bound in all cases to grant the same.

We think there can be but one answer to this proposition.

It is clear that an auctioneer cannot lawfully conduct his business without having obtained a license, and the fact that the mayor has power to issue the license implies the power on a proper occasion to refuse to issue the same. U. S. Life Ins. Co. v. Poillon,, 27 N. Y. State Rep., 899.

In the case cited the principle is established that where prior to-the doing of a thing an application for leave to do the same is a condition precedent, the power to refuse such leave in a proper case is necessarily implied. That this power of refusal exists, as has been pertinently suggested in the opinion of the judge who heard the application in the court below, appears from the provisions of the law relating to licensing auctioneers, because the mayor, under certain circumstances, is given the power to revoke a license because of the misconduct of the licensee, and the sole result of such revocation, if the relator’s theory is true, would be that the next day upon the presentation of a proper bond the mayor would be required to reissue it. N o such absurd results could ever have been contemplated.

Indeed, if for no other reason, it would be clear that it was the intention of the legislature that the mayor should exercise a discretion in the issuing of the license and that it might be refused for proper cause. Whether . or not proper cause existed for the refusal of the mayor in the case at bar cannot be reviewed upon mandamus; because mandamus will not issue unless the relator shows a clear legal right to the writ. And questions as to the weight of evidence or as to whether the refusal of the mayor has been arbitrary or not must be brought to the attention of the court in a different manner in order that it may obtain jurisdiction to review the same. ■

Our attention has been called to the fact that the Law of 1853, which was commented upon by the learned judge in his opinion, was repealed by the Laws of 1866. But this in no manner affected the reasoning of the opinion, because the pertinent provisions of the Law of 1853 had been re-enacted in the consolidation act and are still in existence.

We are of the opinion, therefore, that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Bartlett and Barrett, JJ., concur.


author: Barrett, J.

text:
    Henry Woods, Resp’t, v. Henry Gledhill, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Criminal conversation—Bill op particulars.
    In an action for criminal conversation, the complaint alleged that defendant alienated the affections of plaintiff’s wife by means of “gifts, presents, promises, threats and seductive and deceitful arts and wiles.” Defendant moved for a bill of particulars on an affidavit denying the charges generally and stating that he does not know and cannot surmise what in particular plaintiff intends to charge him with. Held, that a case for a bill of particulars was made out.
    Appeal from an order denying defendant’s motion for a bill of particulars of the plaintiff’s claim.

      Purdy & McLaughlin, for resp’t; De Lancey Nicoll, for app’lt.
   Barrett, J.

This is an action for criminal conversation. The plaintiff originally pleaded specific acts of adultery. Since then he has amended his complaint, omitting the specific charge of adultery, and simply alleging that the defendant has alienated his wife’s affections by means of “ gifts, presents, promises, threats, and seductive and deceitful arts and wiles.” Upon this the defendant moved for a bill of particulars. The motion was founded upon the defendant’s affidavit denying the charges generally, and declaring that he does not know and cannot surmise what in particular the plaintiff intends to charge him with. Upon this state of facts the motion should have been granted. It was no answer to say, as the plaintiff did in his affidavit, that all the particulars were more intimately within the knowledge of the defendant than they were within that of the plaintiff This argument proceeds upon the assumption of the defendant’s guilt, which is denied, and so far unproved. The defendant has a right to know what specific matter he will be called upon to meet. It will not do for the plaintiff to say to him: “ You have alienated my wife’s affections, and you know how.” He is entitled to know what acts or doings of his, the plaintiff charges, caused the alienation. It is a plain case for a bill of particulars within the principles enunciated in Tilton v. Beecher, 59 N. Y., 176; Stiebeling v. Lockhaus, 21 Hun, 457, and many other cases.

The order should be, therefore, reversed, with ten dollars costs and disbursements, and the motion granted so far as to require the plaintiff to particularize the “ gifts, presents, promises, threats, and artful and seductive wiles,” by which it is claimed that his wife’s affections were alienated, together with the times when and places where these means were employed.

Van Brunt, P. J., and Bartlett, J., concur.


author: Brady, J. (dissenting)

text:
    William Benson, Survivor, Resp’t, v. Charles A. Gerlach, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Bills and notes—Fbaud.
    In an action on a promissory note, brought by the endorsee and holder thereof, the defendant alleged and proved that the note was obtained from him by the payee through fraudulent representations and without consideration. The complaint did not allege, nor was there proof, that plaintiff became a holder of the note for value without notice. Held, that in the absence of such allegation and proof a direction of a verdict for pilaintiff was error.
    (Beady, J., dissents.)
    Appeal from a judgment in favor of the plaintiff directed at the circuit and from order denying motion for new trial.

      Hamilton R. Squier, for app’lt; C. G. Patterson, for resp’t.
   Brady, J. (dissenting)

The action was brought to recover $1,633.34 and interest, being the amount of a promissory note made by the defendant to the order of S. P. Benson, and by him endorsed to the plaintiff’s firm. The defense was that the note was obtained by the payee through fraudulent representations and was without consideration as between the original parties to it.

It appeared upon the trial, although the evidence relating to its development was objected to by the plaintiff’s counsel upon the ground that the answer did not contain sufficient facts and circumstances to warrant the interposition of the defense of fraud, that Benson and Herdic were the owners of a franchise or patent for certain coaches and of the right to run them in the city of Buffalo.

To induce the defendant to become interested in a plan by which he was to organize a company in Buffalo for the use of the coaches mentioned and their employment in that city, the plaintiff Benson, the payee óf the note, and Herdic represented to him that they were running thirty-five coaches a day in Washington, with an average income of nearly $400 a day from them, and they showed him a peculiar form of deposit slip which they claimed they were making use of in their deposits in the bank at Washington. This paper was shown to be false in every particular. It was never used, but was printed at the suggestion of Peter Herdic, as to which testimony was given by Mr. Eberly, the bookkeeper of the bank at Washington, and which was corroborated by the evidence of A. G. West and that of William Selby, a teller in the bank. It was also said by Benson, the payee, apparently for the same object, that they had organized a company in Elmira, giving its name. This statement was shown to be falso; and consequently two distinct statements of fact, both calculated to impress the defendant with the value of the franchise mentioned for Buffalo, were made, and both of them were false. They were also of a character which the persons making them must have known were false. And all this was done under a pretense of very great friendship for Mr. Grerlach, toward whom Mr. Herdic, according to Mr. Benson’s statement, had taken a great liking, the latter telling him, preparatory to the giving of the several notes including the one in suit, that he was going to make him the richest man in Buffalo and that it wouldn’t cost him a cent. This was said with a great show of interest and in a spirit of enterprise rarely equalled and never excelled, Benson telling the defendant that he and Herdic had been sitting up all night on the business, and also stating : “ I never sleep; a young man like you ought never to sleep; I keep awake all night long.”

That interview, which was the result of a call by Mr. Benson, and so early that he awakened the defendant from his sleep, ended in the presentation of a paper by which the defendant saw that he must give $5,000 for the privileges they were to bestow upon him in reference to the patent for the coach already mentioned; whereupon he asked, “ What does this mean ? ” stating, “ I am not worth $5,000.” To which the answer was given, “ I know that; I have got to go to California, and turn you over my property. If you don’t organize the company those don’t amount to anything; your notes are no good; I know that. How do I know that you are not going to sell that out ? ” However, after a little parley the notes were signed. In reference to them the defendant says that, in consequence of this interview between himself and Benson and Herdic, “I did not consider that they were of any value.” After that it appears that the first further suggestion in regard to the note in suit was when the defendant received a notice of protest; whereupon he wrote to Benson, the payee, about it, and also saw Herdic in Buffalo after the note was protested and had a conversation with him about the notes. He called his attention to the fact that the notes had become due and that other notes had been given to take them up and renew them, and said, “What does this mean ? Here comes one of these notes for collection; ” whereupon Hardic said: “ That is all right; that is a mistake. ” “ And I said, ‘Come to the bank,’ and I introduced him to the cashier and I said to him, ‘ This note has come through your bank for collection and here is Mr. Herdic.’ ” Mr. Herdic then said, “That is all right; you send that right along.” I said, “I am getting suspicious of you.” And then the defendant says he went over to his office and wrote a receipt, in which Herdic guaranteed his heirs and assigns from any damage, which Herdic signed; and this paper was put in evidence over the objection of the plaintiff’s counsel to its receipt. It contains a recital of four notes, one being the note in suit, and also a pledge by Herdic for himself, his heirs and assigns to obtain these notes and return them to Grerlach, the defendant, without further charge.

When the case was closed, this evidence standing as stated and no response being made to it, the defendant’s counsel moved the court for a, direction in favor of the defendant on the grounds stated, which was denied and exception taken. He then asked the court to direct a verdict for the defendant on the whole case. That motion also was denied and exception taken. He thereupon asked to be permitted to go to the jury on all the questions of fact in the case. The motion was denied and exception duly taken. The plaintiff’s counsel then moved that a verdict be directed in favor of his client for the amount of the note and interest ; which motion was granted and the defendant excepted.

Assuming for the purposes of this appeal all the facts and circumstances stated to have been sufficiently established by competent evidence, they do not assist the defendant in escaping the responsibility incurred by making the notes, for the reason that the plaintiff on the evidence must be regarded as a bona fide holder without notice, and therefore unaffected by any of the facts and circumstances detailed. The same view was taken of this transaction in Benson v. Gerlach, 4 R Y. -Supp., 273 ; 20 R. Y. State Rep., 939.

The judgment must therefore be affirmed, with costs.

Daniels, J.—The evidence was sufficient to justify a jury in concluding that the defendant was induced to give the note by •means of fraudulent representations. And that subjected the plaintiff to the obligation of proving that himself and the deceased endorsee became holders for value without notice, before a recovery could legally be directed in their favor. First. National Bank v. Green. 43 R Y., 298; Harger v. Worrall, 69 id., 370. That proof was not given, neither did the complaint allege that the note had been transferred to them for value, nor did the answer admit that to be the fact. That the fraud was reasonably well established, has been shown by the opinion of Mr. Justice Brady. And it was necessary before a recovery could be directed that this other proof should have been added. The exception to the direction of a verdict, as the case then stood, was well founded. The judgment, therefore, should be reversed, and a new trial ordered, with costs to the defendant to abide the result.

Van Brunt, P. J., concurs.


author: Brady, J.

text:
    Elizabeth Lawton et al., Ex’rs, Pl’ffs, v. Samuel G. Corlies et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Will—Construction on.
    A testator By his will directed that his estate he divided among his heirs-at-law in accordance with the laws of the state applicable to persons who die intestate, and that no bond he required of his executors. Held, that the words heirs-at-law included those who, had he died intestate, would take under the statute of distributions, and also those, if any, to whom his real estate would descend, and that the giving to the persons forming each of these classes whatever of the estate would go to them under the laws of the state would be such a division as the testator contemplated.
    Appeal from judgment of the special term, construing a will in accordance with the prayer of the complaint.

      Rufus L. Scott, for infant def’ts, app’lts; Wilson M. Powell and Chas. H. Russell, for resp’ts.
   Brady, J.

The uncertainty which presents itself to the plaintiffs in the contemplated discharge of their duties arises upon the following clause in the will involved herein:

Secondly. I order and direct that my estate be divided amongst my heirs-at-law in accordance with the laws of the state of New York applicable to persons who die intestate and that no bond or security whatever be required of my executors hereinafter named, in the settlement and distribution of my estate, real or personal.

The will itself contains three clauses, the first, the direction for his executors to pay his debts and funeral charges as soon as may conveniently be done; the second, the one already mentioned and from which the uncertainty springs; and the last the one nominating and appointing his executors. There is nothing, therefore, in its contents which throws light upon the intention of the testator, and hjs meaning must be determined from the form and substance of the will.

The learned justice in the court below thought there was no difficulty whatever in ascertaining the intention of the testator as expressed in the clause mentioned. He was of opinion that the design was to dispose of the property as if the deceased had died intestate both as to realty and personalty, and that the sole object in view in the making of the will was to secure the appointment of executors. It will have been observed that the direction of the intestate was that his whole estate should be divided, in accordance with the laws of the state of New York applicable to persons who die intestate, among his heirs-at-law, and the learned justice, upon a consideration of the subject presented, thought the natural ” and reasonable view to be that he meant his estate to be divided and distributed, according to its nature, as the law provided in case he made no will; that is to say, that the realty, if any, should follow the statute of descents as it exists in this state, and the personalty the statute of distributions, by the latter of which representation in collaterals would not extend beyond brothers’ and sisters’ children. Although many cases have been referred to and the subject is susceptible of a considerable display of adjudications, it is nevertheléss thought that the decision in the case of Woodward v. James, 115 N. Y., 346; 26 N. Y. State Rep., 147, substantially disposes of this appeal. There the words considered were “legal heirs,” and "the court was required to determine whether by that class the testator intended to designate the individuals merely who should take, or to fix also the quantity of interest which should devolve upon each; and the determination was that the plaintiffs took no interest in the personal estate, inasmuch as under the statute of distributions representation extends no further than brothers’ and sisters’ children ; and the rule of intestacy applying as to the quantity of interest to be taken, it resulted that the statute deprived the plaintiff, who was a grandchild of a brother, of all interest in the personal estate.

The interpretation placed upon the clause in question by the learned justice in the court below seems to be unassailable, if we to the of the used the testator. He directed that his whole estate should be divided, in accordance with the laws of the state applicable to persons who die intestate, among his heirs at law. The language which seems at once to suggest this view is the words “heirs at law.” Who, it may be asked, would be embraced, however, within that term if he had died intestate ? The answer to this query is that it would include those named by the statute of distributions existing in this state, which designates the persons who should receive his personal estate and in what proportions, and also those, if any, to whom his real estate would descend. And giving to the persons forming each of these clases whatever of the estate would go to them under the laws of the state, would seem to be such a division of his property as he contemplated when he made his will. As already suggested there is nothing to indicate any other purpose. It is precisely as if the téstator had said: I do not intend that there should be any dispute over my estate. I mean to declare that the persons who are recognized by the law of the state of New York as entitled to a portion of it shall have it to the extent the law declares. My real estate shall be divided amongst those to whom it would, descend and iny personal estate shall be distributed to those who would be entitled to it, just as if no will had been made. And I made this will only for the purpose of securing the co-operation of the executors whom I have named to take charge of my estate and protect it.

For these reasons the judgment appealed from should be affirmed.

Van Brunt, P. J., and Daniels, u., concur.


author: Daniels, J.

text:
    Mary S. Benner, Ex’rx and Individually, App’lt, v. Charles H. Benner et al., Impl’d, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Pleading—Pasties—Action to constele will.
    An action for the construction of a will must be brought by the executors or trustees, and cannot be successfully prosecuted by one alone for her individual benefit, although the other is not pecuniarily interested in the proceeds of the litigation, if successful, and the failure to make the co-executor a party is a ground of demurrer.
    2. Same—Costs.
    Where a demurrer is sustained only in part, each party virtually succeeds in part, and no costs should be allowed.
    Appeal from an interlocutory judgment in part sustaining and in part overruling a demurrer to the complaint.

      J. A. Shoudy, for app’lt; C. Bainbridge Smith, for resp’ts.
   Daniels, J.

So much of the demurrer was sustained by the judgment as was placed upon the objection that the defendant, Frank M. Bonta, who was an executor of the estate, had not been joined as a party plaintiff. It was not alleged that his consent could not be obtained to join him as a plaintiff, and on that account, if he united in interest with the executrix, in the subject of the action, he should by § 448 of the Code of Civil Pro. have been joined with her as plaintiff. The defect, if it existed, appearecl by the complaint itself, and accordingly furnished ground of demurrer.

It is clear enough from the complaint that the executor, Frank M. Bonta, had no pecuniary interest in any proceeds of the litigation resulting from a favorable determination of the action. But, whatever they might be, they would be to the advantage of the executrix, who is .the sole plaintiff. But whether she can maintain her claims to the extent that she has made them against the estate must depend wholly upon the construction which should be given to the will of the testator. The property of the estate is in the undisputed possession of the executrix and executor, so far as it may be affected by the action. But there was devised to her for her occupation and that of the minor children until they respectively attained their majority, in her lifetime, or she should remarry, a house and lot of ground owned by the testator at the time of his decease, which she might in writing select, together with useful and ornamental furniture that should be necessary, to be occupied and enjoyed by her and his minor children during their respective minorities, or until her decease, or she should marry again.

The house and lot No. 46 East Seventy-ninth street was so set apart and occupied by her until it became necessary for her to live more economically, and from that time she rented the house and stored the furniture, and claims that rent to the 9th of January, 1889, when the youngest child became of age, being a period of about nine years.

The will also directed that there should be set apart or invested the sum of $30,000, or one-third of the appraised value of the personal estate, as the plaintiff should elect, and the income, interest, profits and earnings thereof paid over to her in half yearly payments as long as she lived. She elected the investment of $30,000, which, with $10,000 more, was put into four per cent United States bonds, in November, 1878. These bonds were sold in November, 1888, at a profit' over the purchase price of $11,187.50, of which she claimed to be entitled to three-fourths. And the respondents questioned that right.

A question also arose as to her title to one-fifth of the share devised by the will of the testator to a deceased grandchild. And she has asked judgment for the construction of the will so far as it affects these claims and disputes. And whatever that construction shall be, it will dispose of her rights in these parts of the estate. And no further action of the court has been, or need be, invoked on her part, concerning these demands. If the construction shall be favorable to her, then she will retain these amounts out of the estate. If it shall be adverse, then nothing whatever will remain to be done. A complete end will be placed upon this part of the litigation by the construction that shall be adopted. That will meet the full extent and scope of the litigation.

Other claims are set forth in her behalf as executrix, as well as individually, not included in, or to be disposed of by the construction of the will. But excluding these claims, as that may properly be done, for the reason that so much of the complaint as relates to them, was not held to be demurrable, then the case depends wholly upon the construction of the will.

And to obtain that construction, it is very well settled that the action must be brought by the executors or trustees, and it cannot be successfully prosecuted by her alone for her individualhenefit. She might, of course, have sued to recover these amounts, if her right to them had been denied by the executor, and as an incident to that action the will would be construed. But that dispute has not arisen, and if it had, the action has not been brought in the form including that redress. But its object as to these claims is the construction of the will. And the right to maintain it in that form has been uniformly held to be vested in the executors, or trustees. Bailey v. Briggs, 56 N. Y., 407; Monarque v. Monarque, 80 id., 321; Weed v. Weed, 94 id., 243; Anderson v. Anderson, 112 id., 104; 20 N. Y. State Rep., 344. And in bringing that action this executor should have either been joined as plaintiff or made a defendant in case he withheld his consent. In obtaining a construction of the will for the proper administration of the affairs of the estate under it, he was equally interested with her. And the omission to include him in either way was a ground of demurrer.

As to the other portions of the complaint, the decision resulting in the interlocutory judgment has not been questioned by the appeal. At the trial of these issues of law each party virtually succeeded in part. The defendants expressly on the objection that the executor should have been a plaintiff, and the plaintiff by a clear implication, as the complaint was no farther pronounced defective, so far as the remainder of the complaint was included in the demurrer. The case in this manner was nearly equally divided, and it was, therefore, not one for costs, or if costs were to be allowed, then each party was equally entitled to them. But it was not equitable to give costs to one of the parties against the other, on this disposition of the case. And fo rectify the case in this respect, so much of the judgment as includes directions for costs, or for their payment as a condition to the right to amend, should be reversed and stricken out. And as thus modified the judgment should be affirmed, without costs of the appeal to either party. And the plaintiff should have leave to amend her complaint within twenty days.

Van Brunt, P. J., and Brady, J., concur.


text:
    Frederick J. Frowein et al., App’lts, v. Moses Lindheim, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Discovert—Inspection oe books and papers.
    When a prima facie case is made out by the petition and a reason apparently just assigned and sufficiently established is presented in seeking to enforce the right to an inspection, the order will be granted without reference to the merits of the controversy, especially when the application is made for the purpose of enabling the party to frame his pleading. Whether or notbe has a cause of action which he can maintain cannot be investigated on affidavits.

      Appeal from order granting discovery of plaintiffs’ books.

      Strong & Cadwallader, for app’lts; Emanuel J. Myers, for resp’t.
   Brady, J.

This action was brought by the plaintiffs, who were co-partners and tobacco merchants of Arnheim, .against the defendant, who was formerly their agent in this city, to recover a balance being the net proceeds of sales of tobaccos belonging to the plaintiffs made by the defendant as such agent. The defendant seeks to set up a counterclaim for a violation of the contract of agency, and in order to obtain the necessary facts to prepare and state that defense made application to this court for an inspection of the plaintiffs’ books of account.

The first application was denied upon the ground apparently that it did not appear that the plaintiffs kept books of account; whereupon the counsel for the defendant obtained by correspondence with the counsel for the plaintiffs an admission that they did keep books of account in which they kept all sales made by them to parties in the United States and Canada, the time of such sale, the description and price and amount of goods sold between certain .-dates and the payments made by purchasers of their goods so sold by them, upon which the application was renewed and granted.

In the petition presented the defendant set up his employment by the plaintiffs as their sole agent for the sale of tobaccos in the United States and' Canada, on or about the 20th of April, 1889, ■and upon a commission of five per cent on all sales of tobaccos made by them in those countries; that the plaintiffs, contrary to their agreement, made sales in the United States and Canada, upon which sales he was entitled to a commission of five per cent; that the plaintiffs kept books of account in which the particulars of ;such sales were entered; the source from which he obtained the information as to the existence of these books of account; that •only a small and insignificant part or portion of the transactions had come to his knowledge; that the books and papers containing the same were not in his possession, and that his counsel could not prepare and frame his defense and answer, and could not properly interpose a counterclaim without the discovery and inspection, with a copy of each and every of the said entries and statements relating to each and every of the transactions, and of all bills, ac- ■ counts, invoices and papers thereunto relating, all of which, as suggested, were regarded as indispensably necessary to prepare the answer.

The plaintiffs opposed the granting of the motion upon the ground that the contract, which was in writing, was conditional and limited the right of the defendant to commissions; that the petition did not state facts sufficient to warrant the court in arriving at the conclusion that a cause of action was set up; and that in such an action as this, under the circumstances detailed, a court of justice would not grant the discovery asked for.

Whether the defendant has or has not a cause pf action which he can maintain cannot be investigated on affidavits. Livingston v. Curtis, 12 Hun, 122. It is only necessary therefore in that respect for it to appear that there is sufficient in the petition, assuming the facts stated to he true, to warrant the conviction that a cause of action has been stated. There is at least a prima facie demonstration of that fact, and as well that the inspection desired is necessary, for the reason that the defendant does not possess the requisite information which naturally and absolutely, if existent, appears upon the hooks of the plaintiffs.

The learned justice in the court below doubtless for these reasons granted this order appealed from, and it is thought it was properly disposed of. The cases affecting the question of discovery are numerous, each one of them having some distinct feature differing from others, indeed from all of them, but none of them interfering with the genteral rule that when a prima facie case is made out and a reason apparently just assigned and sufficiently established is presented in seeking to enforce the right to an inspection, it is granted without reference to the merits of the controversy; and particularly when the application is made for the purpose of enabling the party to frame his pleading. If after the information sought has been given, the pleading being a counterclaim is defective in not presenting facts constituting such a defense, the remedy is by demurrer. Here, as already suggested, a, prima facie case is made out, and it is quite clear from all the papers considered that the information upon which the defendant relies to prepare his answer is not all in his possession, but in that of the plaintiffs, and hence the order appealed from should be sustained.

Ho objection is taken to the form of the order, and it ought not to be interfered with, as it allows a verified abstract from the hooks, and should therefore render an absolute inspection of them unnecessary.

The order appealed from should be affirmed, with ten dollars costs.

Van Brunt, P. J., and Daniels, J., concur.


text:
    The American Rapid Telegraph Co., App’lt, v. Jacob Hess et al. Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Constitutional law—Laws 1884, chap. 534; 1885, chap. 499; 1886, CHAP. 503; 1887, CHAP. 716.
    The statutes in relation to electrical subways, Laws 1884, chap. 534; 1885, chap. 499; 1886, chap. 503, and 1887, chap. 716,,are not unconstitutional. Such acts do not permit the violation of any contract plaintiff may have with the city nor deprive it of its property or subject it to any unlawful expense, hut its object is to clear the streets of unsightly, obstructive and dangerous apparatus, and that is an appropriate subject for legislative interference.
    3. Injunction—Removal op telegraph poles.
    Plaintiff having failed to comply with notice to remove its poles and wires from the streets containing subways, the commissioner of public works proceeded under said acts to remove them. Held, that an injunction to restrain such action should not he granted.
    Appeal from a judgment of the special term.

      William G. Wilson, for app’lt; D. J. Bean, for resp’ts.
   Daniels, J.

The chief object of this action is an injunction to restrain the mayor of the city of Hew York, the commissioner of the department of public works, and the members of the board of electrical control, their agents and servants, “ from cutting, pulling down, removing, or otherwise injuring any of the lines of. telegraph poles and wires ” owned by the plaintiff in the streets ■of that city.

The apprehension exists on the part of the officers of the plaintiff that the removal of its poles and electrical wires from the streets, so far as it has not been already done is designed to be made under the authority of the act of the legislature of'this state, known as chap. 716 of the Laws of 1887.

Subways have been constructed under this act and chap. 499, ■of the Laws of 1885, and chap. 503, of the Laws of 1886, for the reception of the wires of this and other companies in the streets of the city of Hew York. This has been done through the instrumentality of a subordinate company brought into existence for that object. And the plaintiff has been notified of that fact, and required to place its electric wires therein, but it has neglected ' to do so, and it is because of such neglect that the officials of the ■city have in part removed, and intend to remove, from the streets in which the subways have been constructed and prepared, the poles and wires of the plaintiff. And that removal they have been empowered to make by § 3 of the act of 1887, as they previously also had been by § 3 of chap.' 534, of the Laws of 1884.

But for the purpose of maintaining the action, the plaintiff has ■alleged its right to resist these acts, especially that of 1887, as in conflict with certain restraints created by the constitution of this state and by the constitution of the United States. It is not, however, any part of either of these acts to permit or promote the violation of any corporate contract existing in favor of the plaintiff, nor to deprive it of any of its property, or to subject it to any unlawful expense. The object, on the contrary, is to secure the removal of the poles and the wires suspended upon them from the streets in which the subways were to be and so far have been constructed, and to place the wires in the subways under ground. It is to clear the public streets of unsightly, obstructive and dangerous apparatus. And that is an appropriate subject for legislative interference. It is fully empowered by the broad grant of legislative power, delegated by the constitution of the state, and in no way abridged by anything contained in the constitution of the United States, to provide for the unobstructed safety of the public streets of the cities of the state, and no more than that has been attempted by this legislation. The plaintiff does not appear to have acquired any right to the use or occupancy of these streets for its poles or wires in the least conflicting with the ■exercise of this authority over them. And § 3 of the act of 1887 has provided and declared, in case the owners and operators of suspended wires in the streets shall not cause them to be removed from the streets mentioned in the notice served requiring their removal, “ that it shall he the duty of the commissioner of public works of said city to cause the same to be removed forthwith by the bureau of incumbrances, upon the written order of the mayor of said city to that effect”

The plaintiff having failed to comply with the notice served by removing its poles and wires from the streets containing the subways, the commissioner of public works under the order of the mayor has in part caused that removal to be made and probably intends to make their removal complete as that may be lawfully done under the authority of the act of 1887. That act in its scope and effect is a police regulation as that has been declared by express language contained in it and as this power has been defined in other cases. Kidd v. Pearson, 128 U. S., 1; People ex rel. Electric Lines Co. v. Squire, 107 N. Y., 593; 12 N. Y. State Rep., 832; U. S. Illuminating Co. v. Hess, 19 id., 883.

It has been no part of the intention to deprive the plaintiff of its property in its poles and wires or to appropriate them to the use of either of the defendants. But the design has been to remove them as unlawful incumbrances, as they had in fact become under the law, from the streets. If the plaintiff desires to repossess itself of the removed poles and wires it is entitled to take other means for that object. An injunction is not the remedy which has been provided for that end. The judgment was fully authorized and it should be affirmed, with costs.

Van Brunt, P. J., and Brady, J., concur.


author: Daniels, J. Brady, J. (dissenting).

text:
    In the Matter of Susan H. Bowles, Adm’rx.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Executors and administrators—Compensation of attorney.
    Appellant was employed by the former administrator to bring an action for the wrongful killing of the intestate, agreeing to pay him therefor fifteen per cent, of the recovery, and appellant procured the issue of letters of administration in this state. Subsequently, there being a disagreement, the compensation was increased to twenty-five per cent. The fofmer administrator died and appellant procured letters to be issued to the present administratrix and had her substituted as plaintiff and recovered a judgment in the action. He now claimsextra compensation for procuringtheissuing of letters in each instance. Held, that the agreement as to compensation must be considered as covering the services in procuring letters to the former administrator, but the services in procuring the issue of letters to the present administratrix were in a different proceeding from the action itself and were not included, either expressly or constructively, within the operation or effect of the agreement, and that he was entitled to compensation for the latter service.
    (Brady, J., dissents.)
    Appeal from an order denying a motion made for the payment to A. Walker Otis of his bill for services rendered in the surrogate’s court of the county of Orleans. v

      Joseph A. Shoudy, for app’lt; Charles B. Collier, for resp’t
   Daniels, J.

The appellant in his capacity of an attorney brought an action in favor of James R. Bowles, as administrator, against the Rome, Watertown & Ogdensburgh Railroad Company to recover compensation for the wrongful killing of the intestate. The plaintiff in the action was a resident of the city of Philadelphia, and had obtained letters of administration there upon the= estate of the intestate. But as those letters supplied him with no authority for maintaining the action, an application was made to the surrogate of the county of Orleans, of which the intestate was a resident, for letters to be issued to him there. These letters were issued at the instance of, and were obtained by, the attorney Mr. Otis. The action was afterwards, and on the 18th of November, 1886, commenced against the railroad company. And after that an agreement was entered into between the administrator and the attorney by which the latter was to receive in the way of compensation, exclusive of the costs, the sum of twenty-five per cent of the recovery which should be had, and that was made an express lien upon the cause of action.

The plaintiff in the action died in November, 1888, and a further application was then made on behalf of Susan B. Bowles for letters to be issued to her as the administratrix of the estate. And these letters were obtained from the surrogate in her behalf by Mr. Otis.

The action proved to be successful, and the twenty-five per cent, mentioned in the agreement was received by him. But he made a further claim for the sum of $125, with interest thereon, for his services in taking out the first letters of administration, and the further sum of $50.00 for obtaining the second letters issued, and the further sum of $50.00 for his services in. taking out full letters. The court at the special term considered that these services were incidental to the employment for which the twenty-five per cent, was to be received, and denied the application, and from that order the appeal has been brought.

For the charge for procuring the letters of administration to James R Bowles there seems to be no legal foundation. Those services had been fully performed before the agreement was made by which the attorney was to be compensated through this sum of twenty-five per cent. No reservation was then made or intimation given that any other charge or claim existed in favor of the attorney than for the services then rendered, and to be by him afterwards rendered in this action. If it had been intended to make the services rendered in obtaining the first letters of administration an additional charge against the plaintiff, or the recovery in the action, it is no more than reasonable to presume that it would in some form have been mentioned or brought forward or provided for at the time when this agreement was made, for its object was definitely to declare the rights and obligations of the administrator and his attorney. In the construction of the agreement the court is authorized to consider the circumstances under which it was made. The attorney was then proceeding with the prosecution of the action. He had become dissatisfied with a preceding agreement which had been made restricting his compensation to fifteen per cent., and at his instance this further agreement was made by the plaintiff in the action. And that was to pay him, or allow him to retain out of the proceeds of the action, twenty-five per cent of the recovery. And if this preceding service had not been intended to be compensatecl by this proportionate part of the recovery, it is to be presumed that it would have been made an exception from the language of the agreement. And that not having been done, the inference is warranted that the twenty-five per cent should compensate the attorney for all his past, as well as his prospective services in the action, and that those rendered in obtaining the letters should form no exception in his favor.

But as to the other services, they were rendered after this agreement had been made, and to which consequently it could not apply. They were services in a different proceeding from the action itself, and not included, either expressly or constructively, within the operation or effect of the agreement. As to those services it was entirely inapplicable, and the attorney in no manner thereby deprived himself of his right to compensation for their performance.

¡No controversy has been presented drawing in question the propriety of the extent of these two charges of fifty dollars each. And as they were in no manner affected by this agreement, or any inferential construction to which it should be subjected, he is plainly entitled out of the money which has been deposited to meet this controversy to payment of these two items. The order, therefore, should be modified by directing payment to him of the sum of $100 out of the money on deposit with the Trust Company, and the residue should be paid over to the administratrix, and neither party should recover costs upon this appeal.

Van Brunt, P. J., concurs. I

Brady, J. (dissenting).

This action was commenced in 1885, by James E. Bowles, as administrator of Amelia Boos, against the Eome, Watertown & Ogdensburgh Eailway Company, said Bowles having been appointed by the surrogate of Orleans county. Hr. Otis was the attorney of Bowles in procuring letters of ad-' ministration and in the prosecution of the action. In ¡November, 1886, an agreement relating to the compensation of Mr. Otis was entered into between him and Bowles, administrator, and which is as follows :

It is agreed that the compensation of A. Walker Otis, for fees as attorney and counsel for plaintiff herein, shall be twenty-five per cent (exclusive of costs) upon the recovery herein, whether by verdict, decision or compromise, no compromise to be made, however, without the sanction of said A. Walker Otis, and I hereby charge my cause of action herein with an express lien for the performance of this agreement superior to any settlement between the parties hereto, and not to be affected thereby as against the rights of said A. Walker Otis. • •

James E. Bowles.

In November, 1888, Mr. Bowles diedletters of administration de bonis non were issued to Susan H. Bowles ; the action revived in her name; and the result was a recovery, of which twenty-five per cent, has been paid to Mr. Otis pursuant to the agreement already mentioned. Mr. Otis now prefers a claim against the estate for an additional sum of $260.75, consisting of three items, $125 for taking out the letters of administration for James R Bowles, $100 for taking out letters de bonis non, already referred to, and $35.75 by way of interest to the charge of $125 already mentioned.

It will be observed that the agreement set out was made after the commencement of the action. On the 31st of July, 1889, a. dispute having arisen as to the. propriety of the charge of $260.75, Mr. Otis deposited that sum with the American Loan & Trust Company subject to the adjudication of his rights by this court. On the application made these facts appeared, and Justice Barrett held that the services covered by the items herein set out were incidental to the action, and were undoubtedly covered by the agreement which is already set out; that the effect of that agreement was to make him part owner of the claim, and that it was to his interest to secure the appointment of Bowles in order that the suit should proceed and to secure the appointment of his successor for the same reason and his twenty-five per cent, if successful.

This view of the agreement seems to be unanswerable. After the death of the original administrator it was absolutely necessary in order to proceed that some person should be appointed in his place; just as necessary as it was to revive the action for the same purpose. And although it may be that the death of the original administrator was unforeseen, yet it was an incident that might take place, and subject to which the engagement was necessarily made.

Ho other construction of the contract would be reasonable, particularly as the appointment of the administrator and his successor was absolutely necessary to the proper prosecution of the action. All incidental professional services were, therefore, covered by the agreement mentioned.

For these reasons the order appealed from should be affirmed.

Order modified as directed in opinion of Daniels, J., and as-modified affirmed, without costs.


author: Daniels, J. Brady, J. (dissenting.)

text:
    The Metropolitan Concert Co., Limited, Pl’ff, v. Howard A. Sperry et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

      1. Costs—Liability of third persons carrying on action—Code Civ. Pro., § 3247.
    It is only where the action has been carried on by a person who owns the cause of action by transfer or otherwise, or who has some beneficial interest in it, that § 3247 of the Code subjects him to liability for the costs.
    2. Same.
    Respondents were sureties on plaintiffs’ bond given upon obtaining an. order of_ arrest in the action. The complaint was dismissed for want of prosecution, and thereupon respondents applied to the court to set aside the default, and permit them to prosecute the action, which motibn was granted. On appeal to the court of appeals, it was held that plaintiff was "not entitled to recover, and a judgment for costs was recovered. Held,
      that the respondents were not beneficially interested in the cause of action, nor did it, by transfer or otherwise, become their property, and hence were not liable for costs under § 3347 of the Code; that defendants’ remedy, if any, was upon the bond.
    (Brady, J., dissents.)
    Appeal by the defendants from an order denying a motion for an order to require Theodore Heilman and Emil Carlbaeh to pay the costs which had been recovered by the defendants by the judgment in this action.

      Howard A. Sperry, for app’lts; Eugene Seligman, for resp’ts.
   Daniels, J.

The action was commenced by the plaintiff to recover the value of certain property, and an order of arrest was made under which the defendants, or one of them certainly, was held to bail This order was afterwards vacated, and the complaint in the action was finally dismissed for the want of prosecution. These two sureties after that applied to the court to set aside the default and to permit 'them to prosecute the action. That order was made and they proceeded from that time with the prosecution of the suit. It finally reached the court of appeals, where it was held that the plaintiff was not entitled to recover, and a judgment for the costs was recovered in the action.

The plaintiff,was then insolvent, and this motion was made to require these two sureties to pay the costs which had been recovered, under the authority of § 8247 of the Code of Civil Procedure. But the motion was denied for the reason that the cause of action had not been transferred to them and they did not become beneficially interested therein. And that appears by what had taken place to have been their situation. No transfer of the cause of action, or any interest in it, was made to them. They did not become beneficially interested in it in any form, nor did it, by transfer or otherwise, become their property. And it is only when the action may be carried on by a party sustaining one -of these relations to it, that this section of the Code has subjected him, or them, to liability for the costs. By no fair construction of the language of any part of the section can it be held to include the case of these sureties. What they did in the way of prosecuting the action was to protect themselves against liability on their undertaking and not to secure any advantage or interest whatever in the recovery.

The remedy of the defendants, if they are entitled to recover these costs from the sureties in the undertaking, must, therefore, be by an action upon that instrument. It was given in compliance with § 559 of the Code of Civil Procedure, and it bound these sureties, if the defendants should recover judgment, to the effect that the plaintiff would pay all costs which might be awarded to the defendants. And if the plaintiff shall fail to pay, as it is probable it may because of its insolvency, then, according to this section, the defendants may have an ample remedy against the sureties upon the undertaking. That is the provision that has bfeen made in their favor, and it is .under that, if they can secure indemnity at all, that they must proceed for the recovery of these costs. The order, therefore, was right and it should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., concurs.

Brady, J. (dissenting.)

An order of arrest appears to have been granted in this case and Theodore Heilman and Emil Carlbach were the sureties on the undertaking given on obtaining the order.

On March 24, 1885, the complaint was dismissed on the default of the plaintiff to appear and judgment was taken against it in April following. In November, 1885, proceedings were commenced by the sureties to set aside the default, the attorney representing them and who made the application affirming that he was acquainted with the facts in the case and verily believed it could be successfully prosecuted. The result was an order that the motion be so far granted as to permit the sureties to try the issue raised by the pleadings upon certain conditions. Messrs. Seligman were by the order substituted for the plaintiff’s attorney, and they noticed the cause for trial as attorneys for the plaintiff and sureties. The trial resulted in a judgment for the plaintiff, which on appeal was reversed by the general term and a new trial ordered; and the respondents- having appealed to the court of appeals by their attorneys, judgment absolute was directed in favor of the defendants, which was duly made the judgment of this court, and the costs taxed at $354.59, being those which accrued from the time of the order granting the sureties leave to try the issue.

Upon these facts the defendants made an application for an ■ order directing the sureties to pay the costs of this action, and that an execution should issue against them on the judgment for costs just mentioned.

The learned justice before whom the motion was argued thought that under § 3247 of the Code the motion could not be granted. His view was that the sureties were neither plaintiffs nor transferees and that the action was not brought or continued by any other person beneficially interested therein. It is true that the sureties were not original parties. It is also true that the cause of action, if any existed, was not transferred to them, but it seems to be an erroneous view that they wére not beneficially interested in the cause of action. The learned justice said, in the course of his opinion, that the plaintiff commenced the action for its own benefit and that the sureties would receive no advantage if the plaintiff had succeeded. This is an error. If the plaintiff had succeeded, the plaintiff being insolvent, they would have been protected by the judgment in its favor; and it was with that design the application was made when they applied for leave to prosecute it. As before suggested, it was stated by one of the attorneys for the sureties that he was acquainted with the facts of the case and verily believed it could be legally prosecuted.

There is little room for doubt that if the action had been successful the sureties, on a proper application, would have been protected in reference to any responsibility assumed by them by an appropriation of so much of the judgment as was necessary for that purpose. They were beneficially interested, therefore, in the prosecution of the action, and being beneficially interested were clearly liable for the costs which accrued from the time they took charge of and continued the controversy.

In Ward v. Roy, 69 N. Y., 96, it was decided that in an action, brought in the name of another, by an assignee of any rights of action, or by any person beneficially interested in the recovery in such action, such assignee or person would be liable for the costs; And it was then said, resting upon authority, that when an action has been virtually carried on by a creditor in the name of the receiver, he has been held liable, and justly so. In this case the plaintiff appears to have suffered a default, and the sureties, apparently in hostility to its act, and alleging that it was insolvent, made application for leave to prosecute, and on an assertion that success could be attained. Section 8247 of the Code expressly provides that when the action is brought in the name of another by a transferee of the cause of action, or by any other person who is beneficially interested, he should be liable for costs that may be awarded against the plaintiff in name. And this was clearly intended to include the person who, after the cause of action was commenced, and was substantially abandoned by the plaintiff, interposes as a substitute insisting upon the validity of the cause of action set forth in the complaint. And it is equally clear that in any action- marked by such circumstances as Have been disclosed affecting this case, the sureties are, for the purposes of the action or its continuance, to be justly and properly regarded as beneficially interested. If this be not so then there is no person from whom the costs can be collected, because it is manifest that the plaintiff had nothing whatever to do with the proceedings which originated with and were conducted by the sureties. No such construction as this should be put upon § 3247 of the Code, unless it was absolutely compulsory, inasmuch as it would cause injustice by depriving the successful party of the costs awarded, and which were intended should be paid by the unsuccessful litigant.

For these reasons the order appealed from should be reversed, with ten dollars costs, and the motion granted.

Order affirmed, with ten dollars costs and the disbursements.


text:
    Isaac B. Newcombe et al., Resp’ts, v. William A. Lottimer et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    1. Pleading—Parties—Executors and administrators.
    In an action brought by the pledgees of certain bonds to procure their transfer to them, as against the claim of executors to title to the bonds as part of the estate, the executors are properly made parties, both in their representative capacity and individually, as their acts as executors may result in individual liability.
    2. Same.
    One H., who was an executor of an estate, pledged certain bonds to plaintiffs, and thereafter became insolvent. Defendants, who were the co-executors of H., published a notice declaring that the bonds belonged to the estate, and the railroad company refused to register the bonds. In an action to compel a transfer of the honds^ hut not to determine the ultimate ownership of them, Held, that H. was not a necessary party.
    Appeal from interlocutory judgment overruling demurrer to the complaint.

      James Thomson, for app’lts; A. H. Joline, for resp’ts.
   Van Brunt, P. J.

This is the second time that this case has been before the general term, and the facts sufficiently appear in the opinion heretofore filed on the 10th of January, 1890. 28 N. Y. State Rep., 716.

Upon that appeal the demurrer was sustained in certain respects, and the complaint has been amended and a new demurrer put in, which was overruled at the special term, and from the judgment thereupon entered this appeal is taken.

It is not necessary to discuss the questions which were disposed of by the former appeal, some of which are presented again to our attention. We shall confine ourselves to a brief consideration of the objections made by the appellants to the complaint in question.

It is urged that the amended complaint does not' state facts sufficient to constitute a cause of action against Lottimer and Blood-good individually. And this objection is founded upon the fact that Lottimer and Bloodgood, as executors of William Lottimer, deceased, are also made parties defendant; and that it is alleged that as executors they claim title to the securities which form the subject matter of this action.

It is well settled that the acts of executors in respect to the estate of which they are the trustees, which acts may be proper in themselves, may result in an individual liability of such executors ; and that in the course of the administration of an estate the acts done by the executor are his individual acts for which he is individually responsible, although the acts done may relate to the business of the estate.

Applying this rule to the notices given by Lottimer and Blood-good to the railroad company in reference to these securities, although they claimed to be acting as executors, they have been individually liable therefor. It was because of the impossibility . of determining always from a given state of facts as to whether an individual or representative liability was created, that the provisions of the Code were enacted enabling a party to make executors both individually and respresentatively parties, and upon the final facts to determine as to whether to hold them as individuals or as executors.

It is also claimed that there is a defect of parties defendant to this action in the omission of James L. Hill.

This objection is not tenable, because here, as in the former action, the plaintiffs do not seek to have the ultimate ownership of these securities determined. All that they claim is that as against the claim of the defendants Lottimer and Bloodgood, either individually or as executors, they have a right to have these securities transferred to their names, and to collect the coupons which have become due thereon.

This question can be determined with the parties now before the court. Whether James L. Hill had any title to these securities or not is a matter which is entirely immaterial. If the plaintiffs are not bonafide pledgees of these securities they cannot recover. If they are, then, notwithstanding any claim that the defendants Lottimer and Bloodgood may have upon these securities, they have a right to hold them, to have them transferred and to collect the moneys which have become due upon them. Hill is not a necessary party to the controversy as between Lottimer and Bloodgood and the plaintiffs. What may be the ultimate fate of these securities is another question. But as pledgees the plaintiffs are entitled to exercise all the rights of owners, and to have the same transferred to their names and to collect the amount due upon them. It would be a curious state of the law if a man could give notice to a debtor not to pay an obligation which was held as a pledge, the pledgor having fled from the country, that because the pledgor could not be served with process the pledgee would be remediless and unable to enforce any of his rights as pledgee. We do not think that any such state of affairs, exists. ’

The objection that there has been a misjoinder of causes of action was disposed of upon the former appeal and need not be again discussed.

1 It would seem, therefore, that the various grounds upon which it is sought to sustain the demurrer are not tenable, and the judgment appealed from must be affirmed, with costs.

Daniels and Brady, JJ., concur.


author: Daniels, J. Van Brunt, P. J. Brady, J., (dissenting).

text:
    Edward Dickson et al., Resp’ts, v. Mark Mayer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Attachment—Affidavit—Insolvent cobpoeations.
    An affidavit for an attachment alleged that defendant, a corporation, was about to transfer or assign its property in contemplation of insolvency by means of judgments recovered against it. It appeared that all the judgments were recovered the same day, and that executions had been levied on defendant’s property, but it was not shown, except as to one in favor of' the president’s wife, that any of the judgments had proceeded from any act of any officer of defendant. As to said judgment it was alleged on information and belief that it was recovered at the instance of the president, and that it appeared from statements made by him and the attorney, the substance of which were not given, and also alleged a statement of the attorney in the president’s presence that he had been authorized to bring the suit by the president in the name of his wife, but it did not state that the president admitted or denied the truth of the statement. Held, that the affidavit was not sufficient to prove a violation of the statute or support an attachment on the ground stated.
    (Beady, J., dissents.)
    Appeal from an order denying a motion to vacate an attachment for the reason that the papers on which it was granted were insufficient.

      A. Blumenstiel, for app’lt; Kneeland, Stewart & Epstein, for resp’ts.
   Daniels, J.

The defendant was a corporation existing under the laws of this state, and the action was brought by the plaintiff for goods sold and delivered to the company upon which the amount claimed to be due was the sum of $2,556.56. This amount was stated in the affidavit of one of the plaintiffs to be due to them over and above all counterclaims known to him or to the plaintiffs.

The ground upon which the attachment was issued was that the defendant had assigned, disposed of and secreted property, or was about to do so, with intent to defraud its creditors. And the affidavit of one of the plaintiff’s attorneys was chiefly relied upon as proof of this intended disposition of the defendant’s property. It was not stated or shown in the affidavit that any of the defendant’s property had been directly disposed of in this manner, but it was affirmed that judgments had been recovered against the defendant under which this disposition of its property was intended to be made. What was charged was in substance that the defendant was about to transfer or assign its property in contemplation of its existing insolvency in violation of § 4, title 4, chap. 18 of part 1 of the Revised Statutes. The manner in which that was to be done was by the recovery of these judgments and the levy which had been made under executions issued upon them on all the property of the defendant. But as to all the judgments not recovered by the wife of Mark Mayer, who was the president of the corporation, no facts whatever were disclosed, or sustained by the affidavits, proving that they had proceeded from any act of this, or any ■other, officer of the corporation. All that appeared as to those judgments was that they had been recovered on the same day, and executions had been issued and levied on the property of the defendant. And as to them this was not sufficient to prove that the defendant was about to transfer or assign any of its property in contemplation of its existing insolvency. Varnum v. Hart, 119 N. Y., 101; 28 N. Y. State Rep., 262.

But as to the judgment recovered in favor of Dessa Mayer on the same day as the others were recovered, the facts were more favorable to the right of the plaintiffs to an attachment. But they ■still failed to prove that the president of the corporation, who was the husband of this plaintiff, had officially interfered in any manner to induce the commencement of the action, or to secure the Tecovery of the judgment in favor of his wife. That her judgment was recovered at the instance of her husband was alleged in the affidavit to have been the fact according to the belief of the person who made it, but that was clearly no proof that this, or ■either one of the other officers of the corporation had directly interfered to induce the commencement of the suit or the recovery of this judgment; for mere belief is no evidence.

The attorney did also swear that it appeared from statements of Schlesinger and Mayer at the creditors meeting that Mark Mayer, the president of the corporation, had personally procured the commencement of the suit on behalf of his wife. But this part of "the affidavit is entitled to no weight or effect on account of the (omission of the statements. from which the inference is to be drawn. They should have been set forth, if anything more had taken place than what is afterwards stated in the affidavit, to afford the court an opportunity of determining whether this conclusion was maintained by any statements made by either of these persons. It is probable that it was not, for at the conclusion of the affidavit it is added that Schlesinger further stated at the meeting, in the hearing of Mark Mayer, as follows:

Q. You are attorney for Mrs. Mayer in the suit against Mark Mayer? A. Yes, sir.

Q. Did Mr. Mayer authorize you to commence this suit in the name of his wife ? A. He authorized me in the name of Mrs-Mayer.

But this did not prove the fact that Mayer did give this authority, for it is no more than the statement of the attorney himself. And it does not appear whether Mayer admitted or denied the truth of this statement, or that he acquiesced in its correctness by omitting to make any response to it whatever. In these respects the affidavit is materially defective, for it does not prove the fact to be, and which it was for the plaintiffs to prove, that Mayer did direct this suit to be commenced in the name or for the benefit of his wife. Without that direction there was not sufficient to present a case of a violation of the statute restraining the action of corporate officers in assigning and disposing of the property of the corporation in contemplation of insolvency. The order therefore should be reversed, with $10 costs and the disbursements, and the attachment should be vacated.

Van Brunt, P. J.

I concur in the result. I cannot see any reason which prevented the husband of Mrs. Mayer from directing the commencement of the action which resulted in the judgment.

Brady, J., (dissenting).

The application for the attachment rested upon the allegation that the defendant had assigned, disposed of and secreted property, or was about to assign, dispose of and secrete with intent to defraud its creditors.

The affidavits upon which the attachment was granted allege that the defendant is a corporation and array the recovery of several judgments through the alleged connivance of the defendant, and particularly one in favor of Dessa Mayer, the wife of Mark Mayer, as to which it is alleged that the defendant Mark Mayer authorized the attorney by whom it was procured to commence the suit in the name of his wife. This was an affirmative act on the part of the corporation. It set in motion the legal process by which a judgment was to be obtained against it, and in that respect differs in some respects from the case of Varnum v. Hart, 119 N. Y., 101; 28 N. Y. State Rep., 262. In that case, although the badges of fraud were considered to be ample in the court below, the court of appeals held that whilst the corporation did no affirmative act, they were not subject to the charge of having violated the statute, R. S., part 1, chap. 18, title 4, § 4, which prohibits incorporated companies from making any transfer or assignment in contemplation of insolvency. It was there said that the officers of a corporation were under no legal duty in the case of its insolvency to take measures to procure a disposition of its property, without preference, among all its creditors. They might, like an insolvent person, permit the creditors to take hostile proceedings and allow those to obtain preferences who are the most vigilant.”

Furthermore, it was said that the “ statute contemplates affirmative action on the part of the corporation, and it cannot be violated by mere silence or omission to act on its part or the part of its officers.” And, again, that an insolvent corporation is not obliged to defend any suit brought against it for the sole purpose of defeating a preference, and it may, in such case, suffer default and thus allow a judgment to be obtained against it, knowing that the creditor designs to obtain, and will thus obtain a preference. Such conduct on its part does not constitute a transfer or assignment of its property, and there is nothing in the statute which condemns judgments thus obtained.

And further, it will be observed in that case that as to one of the j udgments the directors held a meeting and resolved that an attorney should be authorized to appear in the action and offer judgment to the amount claimed. In disposing of that feature of the controversy, the court said that that judgment was obtained in consequence of the affirmative action of the corporation taken for the express purpose of giving the judgment creditor" some advantage in its property, and the court assumes, without deciding, that that judgment was in violation of the statute and therefore void, referring to the case of Kingsley v. The First National Bank, 31 Hun, 329

The principle recognized in that decision is that any affirmative action on the part of the corporation by which the judgment is obtained is sufficient to render it invalid, as violative of the statute referred to ; and that principle applies to the judgment in favor of Dessa Mayer, which was obtained through the direct agency of the corporation, Mark Mayer having employed the attorney and authorized him to prosecute it; and was an unlawful preference over the other creditors of the company. Kingsley v. First Nat. B'k, supra. It was indeed a more affirmative act than the act of directors in passing a resolution authorizing the attorney to defend and to offer judgment for the amount claimed.

Without looking farther into the affidavits to see whether there are any other allegations of import and upon which the attachment might be sustained, it is thought the order appealed from should be maintained, the circumstances attending the procuration of the Dessa Mayer judgment being quite sufficient to uphold it. It was an unlawful attempt to transfer so much of the defendant’s property as would be necessary to pay the judgment, and thus to establish an unauthorized preference. It has not been required that it shall be made to appear that the defendant has removed or disposed of all his property with intent to defraud creditors, but they may proceed by attachment against him when he has disposed of a part of it with that intent. Nyman v. Kapp, 22 W. Dig., 310.

For these reasons the order appealed from must be affirmed.

Order reversed, with ten dollars costs and the disbursements,. and attachment vacated.


text:
    William M. Hall, App’lt, v. Susan L. Roberts et al., Ex’rs, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Limitation—Debt to become due on the happening op a cebtain event.
    Plaintiff and defendant’s testator in 1864 entered into a written agreement by which the-testator admitted himself indebted to plaintiff in $30,000 which was to be due and payable when the testator sold a steamship, but no part of the sum was to be due until the sale and transfer of the steamship was perfected, in which event the testator agreed to notify plaintiff of her disposal and with ten days thereafter to pay the full amount in lawful currency of the United.States. The ship was sold in 1864. This action was begun in 1888. The testator never notified plaintiff of the sale. He learned it of one of defendant’s executors first in 1887, although he had made frequent inquiries about the matter before that. Held, that the action was not barred by the statute of limitations; that it was a condition of the sale that the testator notify plaintiff of the sale, and the money was not due until ten days after such notification; hence plaintiff’s right to sue did not accrue until 1887.
    Appeal from a judgment rendered at the circuit dismissing the complaint.

      George F. Betts, for app’lt; Almon Goodwin and John Yard, for resp’ts.
   Brady, J.

This action was brought to recover the sum of $80,000 with interest upon a written obligation in which Marshall O. Roberts, the defendant’s testator admitted himself indebted to the plaintiff in the sum mentioned and which was to be due and. payable when the steamship Illinois, of 2500 tons burthen, should be disposed of by sale, gift or loss, and which he held to sell and dispose of and from the proceeds pay the plaintiff the amount named. But in that instrument it was agreed between Messrs. Roberts and Hall that neither the whole nor any part of the sum mentioned should be due and payable until the sale and transfer of the steamship was perfected, in which event Roberts promised and agreed to notify Hall of her disposal and within ten days-thereafter pay the full amount in lawful currency of the United States as stipulated.

It was conceded on the trial that this action was not commenced until the 2d of August, 1888. After the learned counsel for the plaintiff had presented in his opening the facts and circumstances attending and surrounding the claim, the defendants moved to dismiss the complaint. The motion, after the admission stated, was predicated of the counsel’s opening, from which it appeared that Mr. Roberts had died in the year 1880; that the-plaintiff had made inquiries of him as to the sale of the vessel, and that Mr. Roberts had denied that the vessel was sold; but that after the death of Mr. Roberts he had employed persons to ascertain whether the Illinois was sold, but was unable to obtain information until 1887, when he learned from Mr. Patterson, an executor of Mr. Roberts, that it had been sold in 1864, about, eight months after the contract was made, and further that the-bill of sale was not registered nor recorded in the custom house until 1865. It thus appears that up to the year 1880 inquiries were made by the plaintiff of Mr. Roberts as to the sale of the vessel, but that no information of that circumstance was given him, and that he did not learn of the sale of the vessel until 1887, less than two years prior to the commencement of this action, and. notwithstanding that he had employed persons to discover whether the sale had or had not taken place.

When the motion to dismiss the complaint was made, and after the admission which has been referred to, the learned justice presiding asked the counsel for the plaintiff if he had any acknowledgment in writing, or any evidence further than what he had. stated to take the cause of action out of the operation of the statute of limitations; and his answer was “Ho, sir.” Whereupon, the motion was granted, and the plaintiff duly excepted.

It will be observed upon an examination of the agreement that, neither the whole nor any part of the sum of $30,000 to be paid should become due or payable until the sale and transfer of the vessel was perfected, and until within ten days after the notification of such sale by Mr. Roberts; a notification which was never-given ; and therefore the statute of limitations had not begun to run under the terms of the contract. The money was neither due nor payable until the expiration of ten days after the notification mentioned. This was not only an appropriate, but a very reasonable provision in the agreement, inasmuch as it appears from a, previous part of it that the vessel was held by Mr. Roberts to sell and dispose of, and he was to pay to the plaintiff from the proceeds of the sale, if one were made, the sum mentioned in the agreement.

The conclusion expressed as to the notice to be given seems to be a very plain proposition, although no authorities have been found upon the precise question presented. The nearest approach to it that has been found is the case of Keller v. The West, Bradley & Cary Mfg. Co., 39 Hun, 348. There it appeared that the defendants were to render an account on or before the 10th day of each and every month, and that the payments should he made-within ten days after the making of such return, the account relating to the number of pounds of wire hardened and tempered by the use of a patented invention. The returns were made regularly down to and including the 30th of September, 1871, but from that day to the 24th of August, 1872, no returns were made' as contemplated, and they were refused, although the use of the' invention was continued. The action was commenced on the 22d of August, 1878, and the statute of limitations was interposed as a defense. It was rejected, however, upon the ground that the omission of the defendant to render monthly accounts for the period mentioned prevented the running of the statute against its obligation to make the payments within ten days after making the returns, inasmuch as no returns having been made the period of ten days had not set in motion, the statute had at no time commenced to run, and could not under the agreement as long as the returns were not made.

There is no difference in principle between that and the present case. Here no part of the $30,000 could become due and payable until the expiration of ten days after notice of the sale of the vessel by Mr. Roberts, in whose custody the ship was placed for that purpose, and the plaintiff had a right to relv upon Mr. Roberts’ performance of the contract in accordance with its terms.

He seems, however, to have been more vigilant than the contract required, inasmuch as he made frequent inquiries of Mr. Roberts from the time of the making of the agreement until 1880, and it would seem up to the death of Mr. Roberts, as to whether or not a sale had been accomplished, and was advised by him that none had been made.

In the one case there were no returns made, and consequently the statute did not apply; in the other no notice was given and the statute therefore did not commence to run. As already stated, we can discover no difference in principle between the' cases.

The learned counsel for the respondents seems to think that the decision of the question in regard to the statute of limitations was not concurred in, in that case, by a majority of the court; but this is an error.

The learned counsel for the appellant has urged upon the consideration of the court the doctrine of estoppel, and has cited a number of cases bearing upon the misleading statements of Mr. Roberts, and also upon the proposition that the statute of limitations has no application to this case, for the reason that Mr. Roberts was the trustee of an expressed trust. It is not, however, deemed necessary to proceed to the consideration of either of these propositions, and for the reason stated. The statute of limitations did not begin to run at most until Mr. Hall ascertained, namely, in 1887, that the vessel had been sold, the obligation to give notice resting upon Mr. Roberts and his representatives. The statements made in regard thereto are binding upon the defendants because the dismissal of the complaint was made upon the opening of the counsel for the plaintiff, which contained a statement of the facts and circumstances creating the claim, and characterizing and explaining the delay in the bringing of the action. The case is one which should have been submitted to the jury. The dismissal of the complaint was therefore erroneous, and the judgment must accordingly be reversed and a new trial ordered.

Van Brunt, P. J., and Daniels, J., concur.