author: Davie, S.

text:
    In the Matter of the Judicial Settlement of the Accounts of Samuel W. Hoag et al., as Administrators of Candace Mallory, Deceased.

      (Surrogate’s Court, Catteraugus County,

      Filed July, 1895.)

    1 Witness—Section 829.
    Where the claim of an administrator against the estate is presented and litigated on the judicial settlement of his accounts, his wife is a competent witness and is not to any extent disqualified by the provisions of section 829 of the Code.
    2. Executors—Disputed claim—Amount.
    Where the claimant has furnished board to the deceased under an agreement that he should receive therefor whatever she had left at her death, he is entitled to retain the entire residuum, without proof of the extent or value of such maintenance.
    3. Same—Husband and wife—Right thereto.
    The right to recover for board furnished in a married man’s household belongs to him, where his wife has no separate business or interests of her own and the expenses of the house have been sustained by him, though the contract therefor was made with her and the promise was to pay her and her husband.
    4. Same—Agreement for board.
    The evidence, in this case, was held to establish an agreement for the payment of board by the decedent.
    6. Same—Proof.
    The principle that claims, which have been withheld during the lifetime of the alleged debtor and are sought to be enforced against his estate, should be carefully scrutinized and allowed only upon clear and satisfactory proof, has no application to a case where, by the terms of the agreement between the parties, no right of action exists until the death of the debtor.
    Proceeding for the judicial settlement of an administrator’s account.

      Geo. E. Spring and W. G. Laidlaw, for administrators; =7 H.

      Waring and W. W. Waring, for contestants.
   Davie, S.

Candace Mallory died, intestate, December 15, 1893, leaving an estate of about $500 after payment of debts and expenses of administration. On the 11th of January, 1894, letters of administration upon her estate were issued to Samuel W. Hoag and Mary L. Hoag, his wife, who was a sister of the deceased. Deceased never married, and for many years prior to-her death resided with the family of the administrators, a portion, of the time boarding with the family, occupying rooms in the house of Mr. Hoag, and at times boarding herself. She was a seamstress by trade, and occasionally was employed away from home. Her income was very limited, and her entire estate was personal, the most of which she derived upon the distribution of her father’s estate. She had several brothers and sisters, but was not on intimate terms with any of them except Mrs. Hoag. The ■administrator, Samuel W. Hoag presents a claim against the estate of deceased for her support and maintenance, the validity -of which is controverted by the next of kin or their assignees. It is urged on the part of the contestants that the relations existing between the deceased and the claimant were of such a character that such support and maintenance as he provided for her must be presumed to have been provided gratuitously ; that the claim can not be maintained without satisfactory proof of a positive agreement on the part of the deceased to make compensation, and that the claimant’s case fails to meet this requirement.

Ordinarily, where one receives the beneficial services of another, the law implies a promise to pay what such services are reasonably worth, in the absence of an agreement for compensation; but it is undoubtedly true that such presumption may be entirely overcome by the circumstance of a particular case. The legal presumption of an obligation to pay is very weak where the services rendered are of such a .character that, from the relations existing between the parties, they evidently were prompted by motives of affection and reciprocal obligations. If the circumstances are such as to lead to the conclusion that the services were rendered gratuitously, the law will not imply an obligation to pay. It has been distinctly held that, however valuable the services, one cannot render them with a tacit understanding that no pecuniary charge was to be made therefor and aftewards recover upon the quantum meruit. Moore v. Moore, 3 Abb. Dec. 303; Williams v. Hutchinson, 3 N. Y. 312; Ross v. Ross, 6 Hun, 182. It is quite apparent that the claimant is not entitled to recover anything in consequence of any services or maintenance prior to the year 1882. Such claim is fully barred by the statute of limitations. Moreover, Mrs. Hoag testified, upon her cross-examinatian, that prior to that date they were maintaining the deceased without compensation. Although the deceased had on various ■occasions expressed a desire to compensate her sister and husband for what they had done for her, the first distinct negotiations relative to compensation took place in 1882. The evidence bearing upon this question comes from the claimant’s wife. She was a «competent witness, and not to any extent disqualified by the provisions of section 829 of the Code of Civil Procedure. Porter v. Dunn, 131 N. Y. 314; 43 St. Rep. 193.

This witness testified:

“ I said that we could not keep her as we had before. She said she was willing to pay, and I asked her how much. She said she was willing to pay a dollar a week besides what she did. 1 said that was all right; I was satisfied if she was. My husband was present when this conversation took place. Before that she had said, if she ever had anything, and could pay us for what we were -doing for her, she wanted to pay us.”

This arrangement continued during the years 1882 and 1883, the deceased in the meantime paying the stipulated price of one dollar per week. In the year 1884 another conversation took place between the parties, concerning which Mrs. Hoag testified as follows:

She (deceased) said she didn’t think she could pay as she had been paying the two years back; but, if she had anything at her death, she wanted we should have it. We said if we could have it, so we could get our pay if she had anything left at her death, it was all right, and we were satisfied. She could have the use of ■it while she lived. She wanted to stay. She thought she couldn’t pay as she had been paying, but if she had anything left at her death, and we were living, she wanted we should have it. Then Mr. Hoag said she could have the rooms, and stay with us when she wished, and, when she didn’t, she could stay in her own rooms.”

The evidence of Mrs. Hoag is corroborated to some extent by that of the witness McNall. He was a cousin of the deceased, and testified to having had a conversation with her in 1893, in which ■she said that “ there was an arrangement between her, Sam, and Mary. That the arrangement was that, if she died before Mary did, Mary was to have what was left of her property. She said that she had some money; that she had talked with them about giving her a home; and that she calculated that Mary should have whatever she left.”

The contestants call attention with much earnestness to certain circumstances disclosed by the " evidence, and to declarations alleged to have been made by the claimant, inconsistent to some extent with an understanding on his part that he was to be compensated for what he had done for the deceased. Yet the evidence ■of Mrs. Hoag is entirely uncontradicted. It is entitled to credit We are not at liberty to disregard it It establishes the fact, beyond question, that the conversation detailed by her actually took place in 1884. What, then, is its legal effect ? If the deceased, in declaring that Mrs. Hoag should have whatever estate she might possess at the time of her death, simply designed to express an intention of making a testamentary disposition of her property beneficial to Mrs. Hoag,—a mere voluntary declaration, or even a recognition of a moral obligation,—it is not sufficient to vest title to the residuum of the estate in either Mr. or Mrs. Hoag. An action cannot be predicated upon a contract that rests in intention solely. Even if Mr. and Mrs. Hoag were induced in consequence of these declarations to expect or to hope that the deceased would make a disposition of her property at her death favorable to them, it is not enough. Collver v. Collver, 113 N. Y. 449; 22 St. Rep. 723. The transaction must have a wider scope, and possess all the elements of a contract. In view of the fact that for two years prior to the conversation of 1884 the deceased had been making a certain stated compensation for her maintenance, it can hardly be claimed that after that time it was the design or understanding of either party that such maintenance should be continued gratuitously. The only purpose of that conversation was to modify the terms of the agreement entered into in 1882. The deceased distinctly stated to Mr. and Mrs. Hoag that, if they would furnish her a home during the balance of her life, they should have as a compensation therefor whatever property might belong to the deceased at the date of her death. This offer was accepted by Mr. Hoag. . He undertook, upon his part, to furnish such maintenance as the deceased might require. This makes a complete contract,, —an agreement to render services on the one part, and an agreement to make compensation on the other. Assume, for the sake of argument, that the estate of the deceased, at the date of the conversation in 1884, had consisted entirely of a mortgage for $500, and she had said to Mr. Hoag that, if he would furnish her a home during her life, at her death he should have such mortgage ; the validity of such an arrangement has been recognized and upheld. Gesckeidt v. Drier, 44 St. Rep. 481. The terms of the agreement in the case at bar are equally as definite and certain as in the case cited. The parties evidently had a full appreciation of the scope and extent of the agreement. The deceased had resided with the claimant so long a time that he was fully appraised as to the probable expense of her future maintenance. He also understood the nature and extent of her estate, as well as the possibilities oE its being increased or diminished. Under all the circumstances, it vías entirely competent and proper for the parties to make ah agreement of the character claimed to have been made ; and, from a careful consideration of all the evidence in the case, 1 am of the opinion that the parties designed and intended by the conversation in 1884 to enter into an agreement to the effect that Mr. and Mrs. Hoag should furnish the decedent a home during life, and, as compensation therefor, they should have whatever estate might belong to decedent at her death; that both parties thereafter acted upon the belief and understanding that a valid contract was existing between them to that effect Mr. Hoag has fully performed this contract on his part, and he is entitled to recover thereon.

The right to recover in this case belongs to the husband, and not to the wife. The fact that the conversation regarding compensation took place between the deceased and the wife, and that the promise of the deceased was to the effect that Mary, or Mary and her husband, should have what property she left, does not change the situation. In the case of Porter v. Dunn, above cited, the arrangement for compensation was to the effect that the testator should make the wife of the plaintiff a legatee under his will to the extent of $5,000; yet the court held that the right of action to recover for the wife’s services belonged to the husband. Whatever services were rendered to the decedent by Mrs. Hoag were performed in the household of her husband. Such privileges and advaptages as the deceased contracted for were to be received by her in the family of the claimant. Mrs. Hoag bad no separate business or interests of her own, and the expense of the maintenance of the deceased was sustained by Mr. Hoag. It is entirely apparent that, whatever part Mrs. Hoag took in the negotiations for compensation, she was acting, not for herself, but for and subordinate to her husband. The legislation of this state relative to the rights of married women has only changed their common-law status to the extent set forth in the various statutes. They have not deprived the husband of his common-law right to avail himself of a profit or benefit from the services of the wife. Reynolds v. Robinson, 64 N. Y. 589; Coleman v. Burr, 93 id. 17; Porter v. Dunn, supra; Stamp v. Franklin, 144 N. Y. 607; 64 St. Rep. 251.

Having determined that the services in this case were rendered under an express agreement for compensation, its remains to be ascertained what the measure of such compensation is,—whether the claimant is entitled to retain the entire residuum, without regard to the value of his services, or whether he must recover upon the quantum meruit. The principle is elementary that in these cases where the parties, by the terms of their contract, have fixed the measure of damages or agreed upon a method of determining the same, such agreement is controlling. In this case the parties have agreed that the measure of compensation should be the estate left by deceased. 'The evidence showing, as it does, that the claimant continued to maintain the deceased to the extent desired by her during her life, I am of the opinion that he is entitled to retain the entire residuum, without proof of the extent or value of such maintenance. In the case of Porter v. Dunn, supra, the testator having failed to provide the wife with the $5,000 legacy, an action was brought against the executor to recover the value of the wife’s services, and a judgment was obtained therein to the amount of $7,599.52. On appeal the general term directed a modification of the judgment by reducing the recovery to $5,000, upon the theory that the parties, by their agreement, had fixed that sum as the measure of compensaeion ; but on appeal to the court of appeals the order and judgment of the genera] term were reversed, and the original judgment entered upon the report of the referee affirmed, the court saying: “ The difficulty in the way of sustaining the modification by the general term upon the facts is in the very absence of facts to support the theory expressed in their opinion of an agreement or obligation limiting a recovery.” See page 319, 131 N. Y., and 43 St. Rep. 193. The distinction between the cases cited and the one at bar is that in the former the parties, by their agreement, had failed to establish a measure of damages, for, as the court says, “neither party seems to have considered that there was anything which amounted to an agreement limiting the amount of compensation” (page 318, 131 NI Y., and 43 St. Rep. 193); but in this case the parties have distinctly fixed the amount of compensation, not, it is true, in dollars and cents, not a certain amount by the week or month, but the property which deceased might possess at the time of her death.

But, if it is insisted that the claimant can recover only upon the quantum meruit, even the claim is satisfactorily established by the evidence. Mrs. Hoag testified with a considerable degree of particularity in_ regard to the portion of time that deceased took her meals with the family, and as to the necessaries furnished to her at such times as she boarded herself. She -says that during the time intervening between the conversation of 1894 and the death of the deceased she would take her meals with the family for six weeks at a time, and at other times three or four days, and would then furnish her own meals for a time. Mrs.Hoag testified that she had been a married woman twenty-eight years, and had kept house and had the management of the household matters; that she knew the value of board; and that the accommodations furnished to the deceased were worth $1 per week. Other witnesses, who were inmates of the claimant's household for considerable periods of time prior to the death of deceased, and who knew the nature of the privileges accorded to the deceased, testified that her board was worth $2.50 per week. Mrs. Hoag’s estimate covers the entire period, whether the deceased was taking her meals with the family or boarding herself; that is, $1 a week on the average for the entire time. The estimate of the other witnesses at $2.50 was for steady board by the week, from the conversation in 1884, to the beginning of the final illness of the deceased,— 503 weeks. Her last sickness continued three weeks. Mr. Hoag and wife nursed and cared for her during that time, and their services in so doing was worth $2 per day, making the aggregate of the claim for the entire time $545,—a sum greater than the residuum of the estate.

It is undoubtedly true that claims withheld cluring the life of the alleged debtor, and sought to be enforced against his estate, should be carefully scrutinized, and allowed only upon clear and satisfactory proof. Kearney v. McKeon, 85 N. Y. 139. But this principle, from its very nature, can have no application to a case where, by the terms of the agreement between the parties, no right of action exists until the death of the debtor. Mr. Hoag was not in a situation to demand compensation from the deceased during her life time. That was not the agreement or understanding between them. I am convinced that the claimant’s right to retain the entire residue of this estate is fully established by the evidence, and, accordingly, the decree entered will direct the administrators, after the payment of commissions and the. expenses of the accounting, to pay whatever balance may remain to the claimant, Samuel W. Hoag, in satisfaction of his claim against the estate of the deceased.

Ordered accordingly.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Robert Goelet et al., App’lts, v. Frederick N. Roe et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    1. Summary proceedings—Execution op new lease.
    A landlord, by executing to another person a lease to begin on the termination of an existing lease, does not lose his right to institute summary proceedings against a tenant of the former lessee, wrongfully holding over after the expiration of the first lease, to recover the possession of the demised premises.
    2. Same—Renewal.
    Where a lease contains no covenant for renewal, the right of the landlord to the possession of the premises at the end of the term is not affected by a subletting by the tenant with covenant of renewal."
    Appeal from a final order, denying the landlords’ possession.

      George D. Be Witt, for appl’ts; P. O. Taiman, for resp’ts.
   Bischoff, J.

The unchallenged facts are that on October 16> 1893, the petitioners let the premises 402 Fourth avenue, in the city of New York, to Frederick N. Eoe for one year from May 1, 1894, without provision of any kind for a renewal of the lease; that Frederick N. Eoe thereupon sublet the premises to the respondent, Mary Y. Yost, for the same period, and covenanted to renew the lease for one year from the expiration of the first; and that in September, 1894, the petitioners let the premises to Adeline Y. Eoe, the wife of Frederick N. Eoe, for one year, commencing May 1, 1895. These proceedings for the removal of Frederick N. Eoe, and all persons in possession of the premises claiming under him, were instituted by the petitioners on May 3, 1895, three days after their lease to the said Frederick N. Eoe had expired. Only the sublessee Yost defended, denying the petitioners’ right to possession, and asserting that the lease to Mrs. Eoe was in furtherance of a corrupt understanding between the petitioners, or their agent, and Mr. and Mrs. Eoe, to prevent the enforcement of Mr. Eoe’s covenant of renewal. An attempt was made upon the trial to substantiate the fact of such a conspiracy, but the justice below directed a verdict for the sublessee, and thereupon made a final order in her favor upoh the specific ground that the petitioners had, by their lease to Mrs. Eoe, parted with the right to immediate possession of the premises upon the expiration of the lease to Mr. Eoe, and that they could not, therefore, maintain the proceedings. No point was made upon this appeal, for the respondent, with regard to her attempted defense of a conspiracy. Indeed, we are at a loss to understand the theory underlying the defense, or the principle of law which it aimed to invoke. The petitioners could not in any wise be affected by Frederick N. Eoe’s covenant of renewal. Neither could their right to refuse his further tenancy, and to accept other tenants in his stead, be thereby impaired, even assuming that the design of the lease to Mrs. Eoe was as claimed by the respondent. Possibly, if it appears that the husband is the real party in interest under the lease to the wife, a court of equity would grant relief as against them in the appropriate action. Mitchell v. Reed, 61 N. Y. 123; Hackett v. Patterson, 40 St. Rep. 813.

It is clear beyond controversy, however, that the justice’s ruling that the proceedings were not maintainable by the petitioners was an error. Their right to institute and maintain the proceedings existed by force of the statute for such cases made and provided. Section 2235 of the Code of Civil Procedure in express terms authorizes the “ landlord or lessor of the demised premises ” to maintain proceedings for removal of the persons in possession after expiration of the term ; and in Irnbert v. Hallock, 23 How. Pr. 456, it was specifically ruled by the general term of this court that the landlord or lessor was not disabled from maintaining the proceedings because he had given a lease to a third person, to commence at once upon the expiration of the lease of the person in possession. The case relied upon by the justice below, Insurance Co v. Scott, 2 Hilt. 550, clearly is not to the contrary. No more was there held than that the landlord does not impliedly covenant to protect his tenant against the intrusion of third persons, and that he is not bound to secure their removal. So in People v. Andrews, 52 N. Y. 445, cited by the respondent’s counsel, it is plain that the proceedings were held to have been improperly maintained, because it appeared that the person proceeded against was in possession as tenant of the petitioner under an unexpired lease. Neither does the dictum of Nelson, C. J., in Gardner v. Keteltas, 3 Hill, 330, help the ruling made below in the case at bar. It is to the effect that the statute authorizes proceedings by a lessee against a former lessee in possession, as an assignee of the landlord; but it is not to be concluded therefrom, that the learned judge meant to be understood as entertaining the view that the landlord or lessor could not also maintain such proceedings. The remaining cases to which.we are referred by counsel for the respondent are to the same effect as Insurance Co. v. Scott, supra, and so are equally inapposite. Trull v. Granger, 8 N. Y. 115, holds that the new lessee may maintain an action of ejectment against the lessee in possession whose term has expired; but, obviously, this is not at variance with the ruling of the court in Imbert v. Hallock, supra. Other errors are presented .by the record, but for the oñe discussed the order appealed from must be reversed, and upon a new trial such other errors may not again appear.

Order appealed from reversed, and new trial ordered, with costs of the appeal and of the court below to the appellants, to abide the event. The date for such new trial may be fixed in the order to be entered hereon.


text:
    Edward McCullough, Resp’t, v. Harris Shapiro et al., App’lts.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Appeal—Conflicting- evidence.
    Where the evidence in an action for the price of goods sold is conflicting, a finding that they were as represented will n®t disturb on appeal.
    Appeal from a judgment in favor of plaintiff.

      Albert L. Phillips, for app’lts ; William J. A. Gaffrey, for resp’t.
   Bischoff, J.

Plaintiff's claim was for the agreed price of a pump, furnished by him to the defendants, and the value of work done at their request, together with some small items for fittings. It is contended that the pump did not accord in quality with the agreement. As to this there is merely a fair conflict of evidence, with which we have not to do. A point is made that plaintiff was bound by a certain admission that he had agreed to remove the pump, should it be declared by “an expert’’ to be otherwise than as represented. The declarations of the “expert” relied'upon are those of a witness, called at the trial by the defendants, by whose testimony the plaintiff’s evidence as to the quality of the pump was contradicted ; such witness having been called upon by defendants to examine the pump for the first time within one or two days before the trial. It is not at all clear that the justice was bound to find this witness “an expert," nor to credit his testimón)', as against the plaintiff’s. Moreover, it was but reasonable to infer that the plaintiff’s statement, above noted, intended, at least, that the expert’s identity and the time of the examination should have been disclosed to him in advance of the trial, and the expert’s opinion made the basis of a demand that the pump be removed. Again, it is contended that the labor sued for was expended in installing the pump, which service was to have been rendered without payment. The express testimony of the plaintiff, however, appears in support of the finding that this work was done entirely apart from any connected with the pump. The record is found to uphold the recovery with regard to the value of each item sued for, and, no other questions appearing in the case, the judgment must be affirmed, with costs.


text:
    Progressive Power Company, Resp’t, v. Wrought-Iron Bridge Company, App’lt.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    'Corporation—Foreign—District court.
    A foreign corporation cannot maintain an action against another foreign corporation in a district court, without showing that the case falls within the conditions of section 1780 of the Code.
    Appeal from a judgment in favor of plaintiff.

      Arthur H. Smith, for app’lt; James P. Lowry, for resp’t
   Bischoff, J.

The evidence adduced with regard to the contract sued upon supports the plaintiff’s recovery, and the sole point in the case involves a question of jurisdiction. In our view, this question is to be solved favorably to the appellant. It is conceded that the plaintiff is a foreign corporation, not doing business within the state, and that the defendant is also a foreign corporation, but having an office for the transaction of business within the jurisdictional limits of the district court wherein the trial was had. There is no question as to the situs of property in" the case, and the record is silent as to the place where the contract was made, or where the cause of action arose. Hence, under the provisions of section 1780 of the Code of Civil Procedure, the action was not to be entertained by any court of this state. The fact that the parties were foreign corporations being shown, the restrictions contained within the statute (Code Civ. Proc. § 1780) presented conditions upon the existence of which the power of the court to determine the action was dependent. Perry v. Erie Transfer Co., 46 St. Rep. 185. Thus, failing any proof that this case met one of these conditions, the court was necessarily without jurisdiction to adjudge the rights of the parties. Section 3215 of the Code, which appears to be relied upon by the respondent, merely cedes jurisdiction to the district courts of an action against a foreign corporation having an office within the city. That section certainly does not by implication repeal section 1780 of the Code, for the purpose of granting greater jurisdiction to the district courts .than may be exercised by courts of record; Under section 3215, the district courts obtain a limited jurisdiction over actions against foreign corporations; the statute obviously intending the maintenance of an action against such a corporation in these courts only when the defendant has an office for the transaction of business in the proper locality, and when the plaintiff may bring suit, under our statute, within this state. The courts of record, under section 1780 of the Code, are not confined jurisdictionally to actions against foreign corporations doing business within sovereign or municipal limits, the conditions expressed in the statute being fulfilled. The necessary jurisdictional facts may possibly be brought out upon a new trial.

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


text:
    Henry Zeimer, Resp’t, v. Herman Stearns et al., App’lts.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Appeal—Removal of action—Refusal.
    A refusal to remove an action from the district court to the common-pleas, under section 3316 of the Code, will not be reviewed, where it does-, not appear when the application was made.
    Appeal from a judgment in favor of plaintiff.

      Henry Manne, for app’lts; Herman Fox, for resp’t. •
   Bischoff, J.

In this action plaintiff claimed and recovered the sum of $100 as compensation under a contract whereby, for such consideration, he had agreed to obtain a lease of a certain portion of a store for the defendants. The evidence which appears in support of the judgment establishes the fact that the contract in question had actually been entered into, and that there had been due performance upon the plaintiff’s part. It was also shown that the defendants had refused the plaintiff’s demand for payment under the agreement. Upon the mere conflict of evidence presented by the defendants’ denial of the plaintiff’s testimony the jury’s verdict must conclude under the well-settled rule, and the record would not justify our holding that the defendants were prejudiced by the determination reached upon the facts. By stipulation of counsel we are advised that the justice, after having heard the evidence adduced, and within eight days following the termination of a former trial of the action, ordered a trial before a jury, the record of which is the one submitted to-us. Appellants’ contention that the justice’s direction of the jury trial was unwarranted must be due to some oversight. Section. 1872 of the consolidation act (chapter 410, Laws 1882, as amended-by chapter 878, Laws 1891) expressly authorizes the practice followed by the court below. - We are further advised by the stipulation that the justice refused an application on the defendants’ part for' removal of the cause to the court of common pleas for trial, and that the ground of such refusal was that the damages claimed did not exceed $100, the plaintiff’s claim being for $100, “with interest.’’ The stipulation and the record, however, are. silent with reference to everything tending to show that the application was made after issue was joined, as required by the Code of Civil Procedure (section 3216) and section 1287 of the consolidation act (chapter 410, Laws 1882). Hence, assuming that the ground assigned for the justice’s refusal was error, we are without facts from which to conclude that the application for such removal should have been granted, and so that the error was-prejudicial to the defendants.

Judgment affirmed, with costs.


text:
    Edwin C. Burhorn et al., App’lts, v. Henry C. McDonough et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    1. Appeal—Conflicting evidence.
    A decision of the justice, upon conflicting evidence, will not he disturbed on appeal, where there are no surrounding circumstances of significance in favor of the appellant, which will justify the appellate court interfering with the judgment as being against the preponderance of evidence.
    2. Same—Exceptions.
    Where no ground of objection is stated, an exception to the admission of evidence is of no avail.
    Appeal from a judgment in favor of defendants.

      Robert H. Wilson, for def’ts; Robert Van Iderstine, for resp’ts.
   Bischoff, J.

This action was brought to recover damages for the breach of a certain contract whereby defendants had agreed to perform work in the erection of a smoke stack for the plaintiffs-in Ithaca, at an agreed price of $137. Defendants interposed two defenses,—one, that the contract had been induced through misrepresentations as to the weight of the stack, and had been promptly rescinded upon discovery of the facts; the other, that after defendants refused to carry out the agreement a new contract had been entered into discharging that in suit. They further interposed a counter-claim growing out of this new contract. The justice gave judgment in favor of the defendants for costs, and the plaintiffs now claim that the weight of the evidence was against his decision. This we cannot hold to be the fact Ho reason appears why the testimony of the defendants should not have been fully credited by the justice, and this testimony furnishes ample proof that the contract was made upon the express representation that the stack was to weigh but five tons. Thereby it was also made to appear that the measurements given by plaintiffs were not sufficient to enable defendants to calculate the weight of the stack, and that they relied upon the representation, which was most material, and which went to the-essence of the contract. Defendant McDonough testified that he discovered, while proceeding to Ithaca, that the weight of the stack was nine tons, his information being derived from the shipping receipt, and that he forthwith notified the plaintiffs of his refusal to carry out the contract now in suit. These facts were, in general, directly contradicted by the plaintiffs, but we find in the case no more than a conflict of evidence, without surrounding circumstances of significance in favor of the appellants which could justify our disturbing the judgment as being against the preponderance of proof. In view of the justice’s opportunity of observing the witnesses and of noting their demeanor upon the stand, the appellate court must, in the furtherance of justice, accord greater weight to his determination of the facts where the ■evidence is in conflict; and something more than the defeated party’s confidence as to the verity of his own allegations is required in order that such determination may be successfully assailed upon questions of fact. To contradict the defendant’s evidence with regard to the weight of the stack, the plaintiff Burhoru, called as a witness, identified a certain paper as being a copy of the particular shipping receipt from which the defendant’s information was obtained. In this paper the weight was stated to be six tons. But what of it? The justice was not bound to base his judgment upon this copy as identified by the witness, and, moreover, the record would support a finding that a deviation of one ton from the represented weight was sufficient to justify the defendants’ repudiation of the contract. Indeed, the plaintiffs appear to have recognized the fact that defendants had ground for the action taken, since, upon receipt of the notice sent by the latter, they requested, by letter, that the work be performed nevertheless, and stated, “We will help you out on the cost of erection.” This letter was made the basis of the defense that a new contract had been entered into, but we find the evidence unsatisfactory with regard to defendants’ acceptance of or performance under its terms. However, no recovery upon defendants’ counterclaim having been •allowed, this “new contract” is not in question, since, upon the first defense pleaded, the judgment is to be supported as shown.

Appellants rely upon four exceptions appearing in the record, but this reliance is clearly unfounded. As to the first, no ground of the objection to the evidence admitted .was stated; hence the exception was of no avail. The second was taken to the admis-' sion of evidence with regard to the representations inducing the contract. This evidence bore directly upon the main issue raised by the pleadings, and it would have been error to exclude it. The third exception followed a discretionary ruling, and the fourth is probably urged through an oversight, since the ruling was in •appellants’ favor.

The judgment must be affirmed, with costs.


author: Giegerich, J.

text:
    Boston and Providence Dispatch Express Company, Resp’t, v. Metropolitan Street Railway Company, App’lts.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    Hegmseiífce—Contbibtjtoby,
    In an action against a street railway company for damages resulting from a collision, the plaintiS was held to be guilty of such contributory negligence as to preclude him from a recovery.

      Appear from a judgment in favor of plaintiff.

      Henry A. Robinson, for app’lt; Moms W. Hart, for resp’t.
   Giegerich, J.

This action was brought to recover the value of a horse which was injured so as to be worthless in a collision with a Broadway cable car. 'The plaintiff’s servant was driving the horse, which was attached to an express wagon at the time, eastward along Bleecker street, and the accident happened just as the horse was upon the easterly or so-called “ up track ” of the Broadway line. The jury brought in a verdict for the plaintiff in the sum of $250, the full amount claimed. Mo explaination was given by the driver of the'plaintiff’s wagon why he failed to see the approaching car, except the remarkable one that “this car was going so fast that it would be impossible to see it.” This, taken in connection with his statement 'that he waited for a down-town ■car to pass before he attempted to cross, and the testimony of the gripman of the upward-bound car which caused the injury, and of the passenger Miller, who was riding on the front platform, that the horse appeared suddenly upon the track before them immediately after the down-town car had passed, convinces us that the driver did not exercise such care in looking for the approach of cars as prudence demands at such a dangerous crossing us this intersection of two busy thoroughfares is conceded to be. From the facts shown it is plain that he hastened immediately behind the downward-bound car, and had driven his horse upon the up track before either he or the gripman of the approaching car had .any opportunity to perceive that a collision was impending. This -contributory negligence should, of course, preclude any recovery ¡by the plaintiff.

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


text:
    Thomas Martin, Plaintiff, v. Harry A. Lynch, Defendant.

      (New York Common Pleas, Special Term,

      Filed August 27, 1895.)

    1. Arrest—Note.
    A creditor who, with knowledge of his debtor’s fraud accepts his note for the claim, cannot afterwards aid the enforcement of such claim by the arrest of the debtor.
    2. Same—Maturity op cause op action.
    The cause of action, in such case, is in abeyance until the maturity of the note.
    Motion to vacate an order of arrest.

      D. B. Luclcey and J. C. McEachen (Frederick K. Ciarle, of counsel), for pl’ff ; Byram L. Winters, for def’t.
   Giegerich, J.

The motion is made upon the original papers. Hence, as upon a demurrer, the facts alleged are to be taken as true. Evans v. Holmes, 46 How. Prac. 515. However, assuming the defendant’s fraud to have been shown, it is clear, from the plaintiff’s own statement that he was aware of the facts in questian when he accepted the defendant’s promissory note for the sum now sought to be recovered, the legal effect of which acceptance was to change his claim for a wrong into a debt. Alliance Ins. Co. v. Cleveland, 14 How. Prac. 408. Until the note became due the cause of action was in abeyance (see case last cited), and yet the summons upon which the order was founded was served seven days before the date of maturity. For these'■reasons the motion should be granted, with $10 costs to the defendants, to abide the event.


text:
    James Monagan, Resp’t, v. Leigh Valley Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed August 22, 1895.)

    1. District court—Removal of cause.
    A defendant, who complies with the provisions of section 3216 of the Oode, is entitled, as of right, to a removal of the action from the district court to the common pleas.
    2. Same—Refusal to approve bond.
    The justice’s refusal, for an insufficiect reason, to approve the undertaking tendered in such case, presents error to he corrected upon appeal from, the judgment.
    Appeal from a judgment in favor of plaintiff.
    ’ Alexander & Creen, for app’lt; T. C. Campbell, for resp’t.
   Bischoff, J.

Plaintiff brought this action to recover for injuries to his property, alleged to have been sustained through defendant’s negligence, and claimed $250. Upon the return day of the summons, defendant moved that the cause be removed to the court of common pleas, and presented an undertaking, theretofore prepared, in the usual form, the sureties, respectively, binding themselves in the sum of $500. No question was raised as to the sufficiency "of these sureties, nor as to the form of the undertaking, but the justice denied the motion for the reason as indorsed upon the summons, that “ the same was executed before the court had made its order.” To this ruling the defendant duly excepted.

In the case of Scherer v Hopkins, 42 St. Rep. 189, this court ruled that such a ground as that assigned by the justice in the case at bar presented no reason for the denial of the motion, the granting of which is made mandatory by the statute, if its conditions are fulfilled. Code Civ. Proc. § 3216. See, also, note to Warren v. Campbell, 87 St. Rep. 762. True, in the case cited the justice had gone through the form of “fixing” the amount of the undertaking, whjle such fact does not here appear. But the justice’s refusal, for an insufficient reason, to approve the undertaking, by which approval the sum would be “fixed ” (Scherer v. Hopkins, supra; Dunseith v. Linke, 10 Daly, 363), presents error to be recognized and corrected upon appeal from the judgment. O'Connor v. Moschowitz, 48 How. Prac. 451; People v. Fourth Dist. Court, 13 Civ. Proc. R. 137). The undertaking offered was sufficient in amount, since such amount was the greatest which the justice had the power to exact, and it was not required that the undertaking should be executed by the defendant. Code Civ. Proc. § 3216. As was done”in the Scherer Case, we must reverse the judgment, and remit the cause to the district court, to be proceeded with as if no trial or adjournment of the action had taken place after issue joined, with costs of appeal to the appellant


author: Keeler, S.

text:
    In the Matter of Proceeding to Subject the Estate of J. Wesley Stilwell, Deceased, to Taxation under the Transfer Tax Law.

      (Surrogate’s Court, Schuyler County.)

    Tax—Transfer—Exemption.
    The exemption in the Transfer Tax Law in favor of persons, to whom the decedent has stood for not less than ten years in the mutual acknowledged relation of parent, includes a person who, though not formally adopted, has heen for the specified period recognized and treated as a child.
    Proceeding to subject the estate of J. Wesley Stilwell, deceased, to taxation under the transfer tax law.

      0. P. Hurd, for contestants.
   Keeler, S.

It is claimed, and so found in the report of Owen Cassidy, Esq., appraiser, that the devise in the will of the testator to Charles P. Spaulding is wholly exempt from taxation, and the legacy to Mrs. Greorgia A. Tunison is only subject to a tax of one per cent., upon the ground, as to each of these persons, that for more than ten years prior to his death the testator stood towards them in the mutually acknowledged relation of parent, within section 2, ch. 399, Laws 1892. It has been recently decided by the general term, supreme court, first department, in Re Hunt's Estate, 66 St. Rep. 812, Van Brunt, J., writing the opinion, that none but illegitimate children of the “ decedent, grantor,” etc., are entitled to the benefit of this exemption. We should consider ourselves bound to follow this decision were it not that the general term, second department, in Re Butler, 58 Hun, 400; 34 St. Rep. 189, has taken a different view of the statute in question. With these two departments of the supreme court in opposition, we may treat it as an original question. We think the more reasonable construction, and the better reasoning, is that of Dykman, J., in the Butler Case, and that of Surrogate Kennedy in Re Spencer's Estate, 21 St. Rep. 145. Surrogate Kennedy argues that the word “ acknowledged ” as used in the statute, means to “ admit or recognize ” and that such recognized relation may be proven by agreement in writing or by paroi, by declarations of the parties, and by their acts and conduct. In Butler's Case, Dykman, J., says (page 413, 58 Hun; 34 St. Rep. 189): “The word < mutual ’ in the statute has no abtruse signification. It means and requires reciprocity of action, correlation, and interdependence, and finds its best illustration in the relations existing between parents and children, which are always mutual.” Surrogate Kennedy’s decision in Spencer's Case is discussed and approved. Van Brunt, J., in Hunt's Case, does not notice these cases, nor any of the numerous reported cases upon the question. He argues that the word “ acknowledged ” is only used in relation to a ‘‘ fact," and claims that the “illegitimate” child is the “fact.” He says you can only prove the “ mutually acknowledged relation ” by showing secret illegitimacy, and ten years’ acknowledgment by each. This, he argues, makes it mutual, and a fact. The statute-says that “ mutually acknowledged relation” is the fact. How it shall be proven is not stated in the statute. The “mutual acknowledgment” does not make or change any “fact.” The child is not thereby rendered legitimate. Why we should try to-extract some hidden, out of the ordinary, meaning from the words used, or why the legislature should have used such a roundabout form of expression, if they meant to be understood as Mr. Justice Van Brunt argues, we cannot understand, nor does he make it plain to our comprehension. Why does the statute use the words “ any person ”? The learned justice says, 66 St. Rep. 812 : “That the question of legitimacy was in the minds of the framers of the statute is manifest from the next clause of the section in question,” referring to the clause as to “lineal descendants born in lawful wedlock,” etc. It was no doubt in the minds of the framers of the original statute, but the exemption in favor of adopted children and that in favor of the “ mutually acknowledged ” child were not in the original act of 1885 (chapter 483). These exemptions were created by the act of 1887 (Laws 1887, ch. 713), and the only material change made by that act, as to exempt persons, was the adding of the adopted child and the mutually acknowledged relation. The limitation in the exemption of lineal descendants to those born in lawful wedlock had been already-in the original act. The repeated portions in the act of 1887 are not to be considered as re-enacted, but as having been the law from the first, and the new provisions are considered to-be enacted at the time the amended act took effect. Ely v. Holton, 15 N. Y. 595. The original act (1885) exempted two classes : Those who might under the statute of descent and distribution be-entitled to share in the estate of a decedent, and “ the wife or widow of a son, and the husband of a daughter,”—-relatives by blood, and those of affinity by marriage. Danforth, J., in Re-Miller, 110 N. Y. 222; 18 St. Rep. 226. The act of 1887 exempted another class,—the adopted child, and the child that for a certain long period had been recognized and treated as an adopted child, although there had been no formal writing, etc., as required by statute. The authors and framers of the legislation for this class do not seem at all to have had in mind any question of legitimacy or blood; hence the adopted child or children; hence adoption- not under state laws, but in conformity to the laws of this state; hence the mutually acknowledged were exempted by the same act, and in the same paragraph, with the adopted child; hence the words “ or any person ” were appropriately used. Therefore ten years was fixed upon as the time of its continuance. As some time must be arbitrarily named, the long time would guard against imposition and fraud. But supposed we take Judge Van Brunt’s interpretation,—after the person claiming the exemption has satisfactorily proven himself or herself the illegitimate child of the “decedent, grantor,” etc., why the necessity or reason of a mutual acknowledgment, continuing for ten years, or any number of years? The opinion further says, 66 St. Eep. 812 : “ It is significant that the words 1 lawful wedlock' are used in respect to the matter of lineal descendants immediately after the mutual acknowledgment and that it had not been at all considered necessary to refer to it when a child or children were spoken of in the previous part of the section. It is evident that it was intended to limit the exemption of illegitimate descendants to the child, and not to extend the same to the descendants of such child.” As we have stated,, the “born in lawful wedlock” clause was in the original act,, but. the “mutually acknowledged” part was not enacted until two-years later. Possibly this is not material in considering the strength of the argument. If we actually comprehend the reasoning of the learned justice, it is strong to prove that the term “child or children” spoken of in the previous part of the section included the illigitimate as well as the legitimate child. The argument is that the word “child,” etc., is not limited by words “born in wedlock,” which words prevent the exemption extending to the illegitimate descendants of the child. The reasoning has no weight in support of the construction claimed. It has not yet been decided, so far as we are aware, that it is not the correct interpretation of the statute that the word “child” includes the illegitimate child. But, in that view, what was the necessity or reason of this long “mutually acknowledged” clause, if its purpose be only to exempt the illigitimate child? We doubt if courts can assume that in all cases legislators study a lexicographer as to the language employed in framing laws; still, it is legitimate argument. The word “acknowledged” is not always used in the sense of admitting some secret truth or fact. The lexicographer cited by Judge Van Brunt gives the following as the definition of the word: “(1) To own or admit the knowledge of; to recognize as a fact or truth; to declare one’s belief in; as, to acknowledged the being of God. ‘I acknowledged my transgressions.’ Ps. li. 3. iFor ends generally acknowledged to be good.’ Waverly. (2) To own or recognize in a particular character or relation ; to-admit the claim or authority of; to give recognition to. ‘In all thy ways acknowledged him.’ Proyr iii. 6.” The quotation of’ the learned justice is from the “synonyms,” contrasting the word “acknowledged” and the word “recognize. ” The testator never had any children. There were two (Charles P. Spaulding and Georgia A. Tunison) taken into the testator’s family and home when respectively about seven years of age. They each became, in all respects except blood, as children of the family. The testator educated and clothed and provided and cared for them in sickness and in health, and they each rendered to the testator and his family the usual services and filial attention, affection, and obedience of a child, without any expectation of pay on either side. The girl usually addressed the testator as “papa,” and he always spoke of her as his daughter and child; and as to the boy. Spaulding, the testator said that he regarded him as his own child, and intended to do by him as he would do for his own ■child. We think the facts bring these two (devisee and legatee) within the meaning and intent of the exemption clause in question. That much property otherwise taxable is unjustly escaping taxation through the elastic qualities of the statute as thus construed is an argument to be addressed to the legislature rather than to the courts.


author: Per Curiam. Ward, J.

text:
    Fannie Sprague, App’lt, v. City of Rochester, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    Municipal corporations—Sidewalks—Notice.
    Under the charter of the City of Rochester, notice of a defective sidewalk to the chief inspector of sidewalks and repairs, who is a subordinate of the superintendent of streets, is not notice to the city.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      John Van Voorhis, for pi’2, A. J. Bodenbeck, City Atty., for def’t.
   Per Curiam.

Motion for new trial denied, upon authority of Smith v. City of Rochester, 79 Hun, 174; 61 St. Rep. 215.

Ward, J.

(dissenting).—On the 14th of October, 1892, plainti2, in passing along a sidewalk in the city of Rochester on Hamilton place near the corner of South avenue, stepped into a hole in the sidewalk, and was seriously injured. On the 3d day of the previous September one Williams, as street inspector of the city, gave notice in writing to one Moore, who was chief inspector of sidewalks and repairs thereof of the territory embracing the point ■of injury, and had been so for many years, that the sidewalk at that point was in bad repair. There was evidence tending to show that there was no street superintendent for the city at the time, but his duty was discharged by the chief inspectors of sidewalks and repairs in their several districts, to the knowledge and with the approbation of the executive board of the city. When there was no street superintendent, his duties were discharged by the inspectors of the several districts in their districts. The duties of the chief inspector of sidewalks and repairs were to examine the condition of the sidewalks in his district, cause the same to be repaired, and report the expense thereof to the executive board. The contention of the defendant is that the notice to Moore was not notice to the city officers having charge of the highways, under the city charter, which provided as follows:

“The city of Rochester shall not be liable for any injury caused by such sidewalk or any roadway being out of repair or unlawfully obstructed or dangerous from snow or ice unless actual notice of the unsafe or dangerous condition thereof has been given to the city officers having charge of the highways, a reasonable time before the happening of such injury.”

The charter also provides:

“'The said executive board, superintendent of streets or other ■officer or body having charge of the highways within said city ■shall have the power to repair any sidewalk where the owner of the property shall neglect or refuse to repair the same," etc.

The charter thus recognizes the office of superintendent of streets or other office having charge of highways, and impliedly creates a power in the executive beard to delegate their duties to inferior officers. The executive board is charged with many duties aside from those relating to highways,—indeed, with the substantial management of the affairs of the city government. They have certainly recognized in Moore an officer who had direct duties in connection with this sidewalk and its repair, and the question should have been submitted to the jury, from the evidence presented, whether Moore was not such officer and exercising such powers. As the executive board imposed these duties upon Moore, or he exercised them with the consent of the executive board, he represented the board in that regard. The executive board, under their general powers, had the right to appoint Moore to perform these duties, and notice to him was notice to the board. At least, that was a question for the jury. As there was no street superintendent, the chief inspectors of sidewalks and repairs in their several districts were acting superintendents therein.

The defendant claims that this court in Smith v. City of Rochester, 79 Hun, 174; 61 St. Rep. 215, have -settled the legal questions involved upon this motion in favor of the defendant. There the plaintiff was injured upon the sidewalk, and the offer was to prove that the street inspector had passed along at the point where the sidewalk was defective, and observed its condition, and that his knowledge was the knowledge of the defendant, and a notice to it of such defect. The court lays stress upon the- fact that the executive board could appoint and at pleasure remove a superintendent of streets, fix his compensation, and describe his duties, and the court adds:

“ Under these provisions' of the charter, it is clear that this inspector was not a superintendent of streets appointed by the executive board, but he was, as a description of his duties necessarily implies, a subordinate,” etc.

The, question presented here, therefore, was not before the court in that case. In this case there was no superintendent, in existence, and his duties were performed by acting street superintendents, of which Mr. Moore, who received this notice, was one. A second trial was had in the Smith Case, and there the plaintiff undertook to prove actual notice to the city by showing that a member of the executive board had passed over the street at the point where the plaintiff was injured, before her injury, and should have •observed its condition. This official swore, however, that he had no actual knowledge of the defect complained of, and the court (Lewis, J., 79 Hun, 175; 61 St. Rep. 215) say:

“ It was not sufficient for the plaintiff to show that Mr. Arbruster (the city officer) was negligent in not discovering the defect, but, under the provisions of the charter, in order to have been entitled to go to the jury with the case, the evidence must have tended to show that Arbruster had actual knowledge of the defect. This we think the evidence failed to establish, and that being a condition to the plaintiff’s right to recover, she was properly nonsuited.”

In the case at bar there was actual notice to Moore more than a month before the injury. As before said, it was for the jury to say whether the city had reasonable notice as to the condition of this sidewalk. It was for the jury to say whether, under all the evidence, Moore was pot a city officer having charge of the sidewalks and the repairs, in the place of a city superintendent that the executive board had not appointed, and who was discharging the duties of such superintendent. It was error in the trial court to take this case from the jury, and the motion for a new trial should be granted, with costs to abide the event


author: Brown, P. J.

text:
    The People ex rel. Peter H. Rump, App’lt, v. Board of Supervisors of Kings County, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 26, 1895.)

    Mandamus—Titlb to public okbtce. ,
    A writ of mandamus will not be granted upon the application of one claiming title to an office, when there is a serious question in regard thereto and another person is holding and exercising the functions of the office.
    Appeal from an order, denying an application for a peremptory writ of mandamus.

      Paul P. Be Fere, for app’lt; H. B. Hubbard, for resp’t.
   Brown, P. J.

The material facts set forth in the petition in this proceeding are as follows: In the spring of 1894, William Y. B. Bennett was elected supervisor of the town of Gravesend, in Kings county, to filian unexpired term, and duly qualified and entered upon the discharge of his duties, and was acting as such officer on May 3, 1894. At the same election he was chosen for the next term, beginning with 1895. By chapter 449, Laws 1894, which took effect May 3, 1894, the town of Gravesend was annexed to the city of Brooklyn, and became the thirty-first ward of said city. Section 6 of said act provided : That the supervisor of the town of Gravesend and the several justices of the peace of said town, duly elected, qualified and acting at the time this act shall take effect shall continue to hold their office for the term for which they were respectively elected.” The petitioner claims to have been elected supervisor for the thirty-first ward of said city, at the general election in November, 1894, for a term beginning with 1895 ; and alleges that he presented himself to the board of supervisors and took his seat therein, and entered upon the discharge of his duties, and was thereafter by said board unseated, and said board refused to allow him to take his seat or discharge his duties. The affidavit of the clerk of the board was to the effect that Bennett, on November 19, 1894, filed a certificate of election as supervisor for the term beginning with. 1895, that his name was placed up®n the roll of members, and that he had acted and was acting as such. The annexation act made no provision for an election of a supervisor for the new ward, but provided generally that the territory annexed should be subject to and governed by the same laws and ordinances, and entitled to the same rights, franchises, etc., as the said city of Brooklyn, as constituted when the act took effect. By provision of the charter of the city, vacancies in the office of supervisor are filled by the common council.

We are of the opinion that the right of the petitioner to the office in question cannot be determined in the proceeding. The rule is established in this state that a writ of mandamus will not be granted upon the application of one claiming title to an office for the purpose of determining the validity of his claim, when there is a serious question in regard thereto, and another person is holding and exercising the functions of the office. People v. Stevens, 5 Hill, 628; Morris v. People, 3 Denio, 396; People v. Lane, 55 N. Y. 217; In re Gardner, 68 id. 467; People ex rel. Wren v. Goetting, 133 id. 569; 44 St. Rep. 503; People v. Brush, 146 N. Y. 60; 65 St. Rep. 753. Upon a motion of this character, the question as to the right to the writ must be determined upon the assumption that the averments in the opposing affidavits are true. People v. Board of Apportionment, 64 N. Y. 627; People v. Brush, supra. We must assume, therefore, in this case, notwithstanding the allegations of the petition, that Mr. Bennett is in possession of the office and exercising the functions thereof. In such a case, the remedy of the person claiming the office is by quo warranta. That writ lies when the party proceeded against is either a de facto or de jure officer in possession of the office. People v. Common Council of Brooldyn, 77 N. Y. 503.

The claim of the appellant that the office was vacant on January 1, 1895, and therefore mandamus was the proper remedy, is clearly unsound. It is clear that Bennett became supervisor of the thirty-first ward by force of the annexation act on May 3,1894. His claim now is that the petitioner’s election was irregular; and, on that assumption, he either held* over under the public officers’ act (section 5), or else he was in possession under the election for the full term. At all events, he was performing the functions of the office, basing his claim of title upon one of these two grounds. He was therefore a de facto officer in possession, and cannot be deprived of the office without an opportunity of being heard. The appellant refers us to the case of People ex rel. Clancy v. Board of Supervisors, 139 N. Y. 524; 54 St. Rep. 837. But that case has no relevancy to the questions here presented. The petitioner in that proceeding claimed to have been elected supervisor of the fourth ward of the city of Yonkers. There was no other claimant to that office, and no one in possession performing its functions. The sole question was as to the constitutionality of the statute creating the office. If that act was valid, and the office existed, the petitioner was entitled to it. The case was one, therefore, w here quo warranta would not lie, and mandamus wast he proper proceeding.

The order appealed from must be affirmed, with costs.

All concur.


author: Andrews, Ch. J.

text:
    Luther Kountze et al., App’lts, v. Edward S. T. Kennedy, as Executor, etc., Resp’t.

      (Court of Appeals,

      Filed October 8, 1895.)

    1. Deceit—Misrepresentation.
    The misrepresentation, upon which an action for deceit is based, must be shown not only to have been false and material, but that the defendant when he made it knew that it was false, or, not knowing whether it was true or false and not caring what the fact might be, make it recklessly, paying no heed to the injury which might ensue.
    2. Same—Actual fraud.
    Actual, intentional fraud, as distinguished from a mere breach of duty or the omission to use due care, is an essential factor in an action for deceit.
    3. Same—Corporate stock—Written statement—Omission of liabilities.
    Where, in an action against the president of a manufacturing corpotion in inducing parties to purchase stocks and bonds of such corporation, which fails soon after the purchase, it appears that the purchase was made upon his application and a written statement furnished by him at their request, which purported to contain the entire assets and liabilities of the company, but upon which there was in fact omitted a claim against the company which was then in suit and subsequently resulted in a judgment against the company, the fraudulent intent is lacking and the charge of deceit fails, if the non-disclosure of the claim was attributable to an honest belief, upon reasonable grounds, that the claim was not valid and could not be enforced.
    4. Same—Statement—Personal knowledge of officer.
    Where such written statement relates to the affairs of a large corporation, widely extended and having agencies in a large number of cities throughout the country, the mere fact that the defendant was president of the company and furnished the statement as a statement cf the entire assets and liabilities, is not enough of itself to warrant the inference that the defendant represented that the statement was true of his own knowledge.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a judgment in favor of defendant entered upon the report of a referee.
    This was an action to recover damages for fraud and deceit alleged to have been practiced' by John P. Kennedy, by which plaintiffs claimed to have been induced to purchase certain bonds and stock of the Howe Machine Company from that company. The action vías originally brought against John P. Kennedy. He died before this appeal was taken, and his executor was substituted as defendant in his stead.
    The Howe Machine Company was a corporation organized under the laws of the state of Connecticut, having its principal place of business at Bridgeport, in that state, and was engaged for many years, and up to September 26, 1885, in the manufacture of sewing machines.

      Wheeler H. Peckham and George W. Van Slyck, for app’lts j William R. Bronk, for resp’t.

       Affirming 55 St. Rep. 353.

   Andrews, Ch. J.

The plaintiffs on this appeal are met by the serious difficulty that the finding of the referee, affirmed by the general term, exonerated the defendant’s testator from the charge of fraud in making the representations upon which the plaintiffs relied in purchasing the bonds and stock of the Howe Machine Company. If this finding has support in the evidence it ends all controversy upon the merits here, because, although it was found that the statement of the liabilities of the company presented by Kennedy to the plaintiffs, upon the faith of which the purchase was made, was grossly inaccurate, and largely understated the actual liabilities of the company, nevertheless, if Kennedy be-' lieved the statement to be a true exhibit of the affairs of the company and was guilty of no dishonesty, the action must fail. The principle stated by Croke, J., in 3 Bulstrode, 95, in respect to actions for damages for deceit, that “fraud without damage, or damage without fraud, gives no cause of action, but when these two concur an action lies,” has ever since been recognized as the true rule governing the subject. The cases are numerous. The principle has been obscured by the use by judges of the phrase “legal fraud,” which has sometimes been interpreted as meaning fraud by construction, and as indicating that something less than actual fraud may sustain an action for deceit. The gravamen of the action is actual fraud, and nothing less will sustain it. The ’ representation upon which it is based must be shown not only to have been false and material, but that the defendant when he made it knew that it was false, or not knowing whether it was true or false and not caring what the fact might be, made it recklessly, paying no heed to the injury which might ensue. Misjudgment, however gross, or want of caution, however marked, is not fraud. Intentional fraud, as distinguished from a mere breach of duty or the omission to use due care, is an essential factor in an action for ddceit. The man who intentionally deceives another to his injury should be legally responsible for the consequences. But if through inattention, want of judgment, reliance upon information which a wiser man might not credit, misconception of the facts or of his moral obligation to inquire, he makes a representation designated to influence the conduct of another, and upon which the other acts to his prejudice, yet, if the misrepresentation was honestly made, believing it to be true, whatever other liability he may incur he cannot be made liable in an action for deceit. The law affords remedies for the consequences of innocent misrepresentation. A contract induced thereby may, in many cases, be avoided, and the equitable powers of courts are frequently interposed for the recission of contracts or transactions based upon mistake or innocent misrepresentation. While the common-law action of deceit furnishes a remedy for fraud which ought to be preserved, we think it should be kept within its ancient limits, and should not by construction be extended to embrace dealings which, however unfortunate they may have proved to one of the parties, were not induced by actual intentional fraud on the part of the other. We have referred to a representation made without knowing whether it was true or false, and where the party making it was indifferent whether it was true or false, as sufficient to sustain the action if the representation was in fact untrue. The making of a representation to influence the conduct of the person to whom it is made, carries with it an assurance, necessarily implied from the situation, of the belief of the party making it in the truth of affirmation. As was said by Maulé, X, in Evans v. Edmonds, 18 C. B. 777, “he takes upon himself to warrant his own belief of the truth of that he asserts, and a man who makes a representation which hp neither knows nor cares whether it is true or not, can have no real belief in the truth of what he asserts and is justly guilty of deception.” So, also, it has been held that one who falsely asserts a material fact, susceptible of accurate knowledge to be true of his own knowledge, and thereby induces another to act upon the fact represented to his prejudice commits a fraud which will sustain an action for deceit. This is not an exception to, but an application of the principle that actual fraud must be shown to sustain such an action. The purpose of the party asserting his personal knowledge is to induce belief in the fact represented, and if he has no knowledge, and the fact is one upon which special knowledge can be predicated, the inference of fraudulent intent in the absence of explanation naturally results. We shall refer to the subject again when we come to consider one of the points made by the plaintiffs.

In the present case the plaintiffs invested more than $100,000 in the bonds and stock of the Ilowe Machine Company in April, 1884, and the company went into the hands of a receiver in the fall of 1885, and the plaintiffs practically lost their whole investment. They purchased upon the application of Kennedy, who was president of the corporation, and the statement of assets and liabilities furnished by Kennedy at their request after the application and before the purchase, showed that the assets, real and personal, as valued in the statement, exceeded one million dollars, and that the liabilities were five hundred thousand dollars. And the referee found that the statement was presented to Kennedy as a statement of the entire assets and liabilities. The voluminous record before us is taken up to a large extent with the evidence on the one side to show the untruthfmlness of the statement both as respects the assets and liabilities, and of circumstances which as was claimed tended to establish that the defendant’s testator knew of its falsity when he presented it to the plaintiffs, and on the other side with evidence in rebuttal and by way of explanation of the discrepancies between the value of the assets as given in the statement and what was realized therefrom, and between the actual liabilities and the liabilities as represented, and also evidence bearing upon the good faith of the defendant’s testator in making the representation. The evidence was taken before an intelligent and able referee, and we are satisfied that his conclusion that the defendant’s testator acted in good faith, and that the statement, although in material respects untrue, was believed by him to be true, is supported by evidence. The facts were fully considered in the opinion of the general term, and a recapitulation here to •any considerable extent is unnecessary.

The learned counsel for the plaintiffs insists that the omission from the statement of liabilities of the claim against the Howe Machine Company in favor of the Credit Company, Limited, of England, was upon the undisputed facts a fraudulent concealment. The claim originated in or prior to 1878, and was based on acceptances alleged to have been made by the Howe Machine Company of drafts drawn by one Stockwell upon the company, accepted by his brother, the secretary and treasurer, in the name of the company. It seems to be conceded that the acceptances were made without authority of the company, and that the proceeds were used by the Stoekwells in stock speculations in London on their own account. Suit was brought against the company on the drafts in the state of Connecticut in 1878, and as in all cases in that state were commenced by attachment. The company defended the action. In the fall of 1883 the facts were reported, and in 1886, two years after the plaintiffs had purchased their bonds, the court rendered judgment in the action against the Howe Machine Company for the sum of $62,475, the chief justice dissenting. The existence of this claim was not disclosed to the plaintiffs and was not embraced in the items of liabilities mentioned in the statement. It was claimed on the part of the defendant Kennedy that this item was omitted for the reason that the company was advised by counsel that the acceptances did not bind the company and that it could not be made liable in the action, and evidence was given that neither the company nor its counsel regarded the claim as a valid obligation of the company. The referee further found that the defendant Kennedy and the other officers and directors of the company “ had reasonable cause to believe that said company was not liable on said claims,” and he refused to find the request of the plaintiffs, “ that the said defendant (Kennedy) knew of said claim and suit and concealed and intended to conceal the same from the plaintiffs.’ The defendant’s testator was bound to include in the statement all liabilities of the company known to him. He was not required to include claims made which were not valid or enforcible obligations. The defendant omitted this claim from the schedule because he be-lived it was not a liability of the company. It may be admitted that he was blameworthy in not calling the matter to the attention of the plaintiffs, leaving them to determine whether it constituted a reason for declining the transaction. But if the non-disclosure was attributable to an honest belief that the claim was not valid and could not be enforced, the fraudulent intent is lacking and the charge of deceit fails. The recent case of Derry v. Peck, 14 App. Cas. 337, decided in the House of Lords, contains a very full discussion of the principles governing the action for deceit and of the adjudged cases. The action was brought against directors of a company for damages for a false representation contained in a prospectus issued by them, to the effect that the company had authority to use steam motor power on its tramway, whereby the plaintiff was induced to buy shares of the company. The judges-who gave the opinion united in asserting that actual fraud, that is, fraud in intention, and not constructive or implied fraud, was necessary to be shown to uphold the action, and applying this general principle they held that if the defendant believed the representation made by him to be true, although without reasonable cause for such belief, the action would not lie. It is not necessary to go to this extent to uphold the present judgment, for the referee, as has been stated, found that the belief of Kennedy that the claim of the Credit Company, Limited, of London, was unfounded, was based on reasonable grounds.

The plaintiffs requested the referee to find that the representations of Kennedy to the plaintiffs were so made as to convey the-impression that he had actual knowledge of their truth and the referee refused to find as requested. This, it is urged was error requiring a reversal of the judgment, It must be assumed that the referee found that the representations contained in the statement presented by Kennedy were not made, or understood by the plaintiffs to have been made, by him upon his personal knowledge. The evidence and the circumstances support this conclusion. Kennedy testified that when the plaintiffs requested a statement of the assets and liabilities of the company, he informed them that he would request the secretary to prepare it, and after the statement was delivered to the plaintiffs, Luther Kountze, at Kennedy’s request, went to Bridgeport to examine the property and while there the items of the statement were gone over between him and Mr. Parmly, the person having the principal management of the business, and the referee found that the inquiries of Mr. Kountze were truthfully answered. It cannot be assumed from the mere form of the statement that the assets and liabilities were given upon the personal knowledge of Kennedy. It related to the affairs of a large corporation, widely extended and having agencies in a great number of the large cities of the country. It would ordinarily be understood that a statement furnished by the president or director of the company of its assets and liabilities would be furnished upon information derived from-the books and other sources. Certainly the mere presentation of such a statement, without more, would not amount to an affirmation that the statement was true to his knowledge. There was conflicting evidence upon the trial upon the point whether outside of the statement such an affirmation was made, but that issue was decided against the plaintiffs. Their claim, therefore, that Kennedy represented that the statement was true of his own knowledge, rests solely on the facts that he was president of the corporation and that he furnished the statement as a statement of the entire assets and liabilities. The most that the plaintiffs could claim was that it became a question of fact, hut we are of opinion that the evidence was wholly insufficient to have warranted a finding that Kennedy asserted the truth of the statement as of his own knowledge.

Upon a full examination of all the questions presented by the .plaintiffs we have reached the conclusion that there was no material error committed on the trial and the judgment should, therefore, be affirmed.

All concur, except Bartlett, J., who dissents on the ground that it is not proper for an officer of a corporation making a written statement, of its indebtedness to a proposed purchaser of its stock to omit therefrom the amount involved in a pending action against the company for the reason that he is of opinion that the company will not be held in final judgment; that it is the manifest duty of such officer to inform the proposed purchaser of stock of the existence of this contingent liability, and the failure to do-so is a fraud. Beckham, J., not voting.

J udgment affirmed.


author: Bartlett, J.

text:
    In the Matter of Peter J. Garvey, Resp’t, to Strike from the List of Registry of Voters of the Second Election District of the Thirteenth Assembly District in the City of New York, the Names of John Neilson Barty et al., App’lts.

      (Court of Appeals,

      Filed October 8, 1895.)

    Elections—Residence of voter—Student.
    Under the provisions of section 3, art. 2 of the state constitution, to entitle a student, whose legal residence has been previously in another district, to vote in the election district in which the seminary he attends is situated, it is essential that the intent to change his legal residence be manifested by acts which are independent of his presence as a student in the new locality.
    Appeal from order of the general term of the supreme court in the first judicial department, which affirmed an order of the special term striking from the registry list of voters in the city of New York the names, among others, of the appellants, John Neilson Barry, Henry Mesier, George Gunnell, J"r., and Thomas Henry Yardley.

      George F. Canfield and William H. Arnoux, for app’lts; Franklin Bien and P. T. Kimball, for resp’t.

       Aff’g in part and rev’g in part, 66 St. Rep. 1.

   Bartlett, J.

This is an appeal from an order of the general term, first department, affirming an order of the special term, made on the 23rd day of November, 1894, striking from the registry list of voters in the city of New York the names, among others, of the appellants, John Neilson Barry, Henry Mesier, George Gunnell, Jr., and Thomas Henry Yardley.

The question as to where students of any seminary of learning in the city of New York are entitled to vote has given rise to much litigation and, not unfrequently, led to unseemly proceedings on the days of registration and election.

Before considering the cases of the present appellants, it is-proper to call attention to the rule laid down by this court in the Matter of Goodman, 146 N.Y. 284; 66 St. Rep. 617, where Judge Finch wrote the opinion.

In that case it was conceded that Bainton, the appellant, was a resident of the state and of the county and entitled to vote in the city of New York, but it was denied that he acquired any right to vote in the election district in which the seminary, which he entered and in which he took rooms, was situated. It was admitted that he could have registered in another district, which was his residence prior to his removal to the seminary, and would have been a qualified voter there, and, as Judge Finch puts it, “the precise contention being that he did not lose his residence there by removing to the seminary, nor gain a new residence in the seminary district by his presence in it as a student.”

This contention was upheld and the order affirmed declaring the appellant to be a voter in the district where he last resided prior to his removal to the seminary.

Judge Finch, in his opinion, further says:

“We do not mean to say that a voter may not change his legal residence into a new district in spite of the fact that he becomes a student in an institution of learning therein, but the facts to ■establish such a change must be wholly.independent and outside of his presence in the new district as a student, and should be very clear and convincing to overcome the natural presumption. In the present case there were no such facts. Presumably rooms in the seminary rented to students are to be occupied only during, the prescribed period of study, and not permanently as a residence ,and there was nothing before the court to show any change of residence beyond the temporary presence at the institution for the prescribed period of study. This construction obeys literally the constitutional mandate, and does not necessarily disfranchise a ■single citizen. It merely recognizes and applies the admitted truth, acted upon at every election, that the voting residence may be in one place and the actual abode in another. Usually, perhaps always, the voting residence remains unchanged until a new residence is actually acquired, but there can be no such acquisition merely by an abode as a student in an institution of learning. Something else, beyond that fact and wholly independent of it, must occur to effect the change. The intention to change is not alone sufficient. It must exist, but must concur with and be manifested by resultant acts which are independent of the presence as a student in the new locality."

In the light of this rule we will consider separately the cases of these appellants, as each presents its own peculiar facts.

Article two, section three, of the Constitution of this state, as it -existed in November, 1894, and exists now, reads as follows in regard to the question under examination, viz.:

“For the purpose of voting no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States, * * * nor while a student of any seminary of learning.”

It will be observed that the Constitution explicitly provides that residence cannot be gained or lost by reason of presence or absence of a student of any seminary of learning.

It is, therefore, in harmony with this provision to require that the intent to change the legal residence must be manifested by acts which are independent of the alleged voter’s presence as a student in the new locality.

The appellant John Neilson Barry made affidavit on the 16th day of November, 1894, that two years before that time he moved to the city of New York with the intent and purpose of making that place his permanent residence; that he went at once to No. 175 Ninth avenue where he took up his residence, it being a part of the property of the General Theological Seminary of the Episcopal Church, and entered upon his course as a student.

Harry went to the city of New York from the state of Virginia, where he had resided and voted, and on the 19th of November, 1892, he addressed the registrar of Warrenton, Va., a letter, in which he notified him that he had changed his residence to the city of New York and that his name should no longer remain on the list of registered voters and requested him to take it off.

On the same day he addressed a letter to Bishop Henry 0. Potter of the city of New York, in which he said : It is not my intention to resume my legal residence there (Warrenton), “or at any other place in, Virginia. On the contrary, my intention is to reside and vote in New York—clearly my legal residence is not at Warrenton, Virginia. As to my actual residence, if the term as •used in the canon has any different meaning from the term legal residence, I consider that I am in point of fact an actual resident of New York city. My ecclesiastical residence is here, my legal residence is here, and I am actually living here without any present intention of assuming a residence legal, ecclesiastical, or actual, any where esle. * * * Hoping that this statement of facts will satisfy you as to my being a resident of this diocese, and that you will receive me as a postulant, I am,” etc.

It will be observed that these letters were written immediately •after the general election of 1892, and relate to the ecclesiastical status of Barry and his right to be received as a postulant by reason of his residence in the diocese of blew York.

We think Barry's case clearly discloses the intent to change his •legal residence by acts which were independent of his presence as a student in the seminary; there was a full compliance with the rule laid down in the Goodman case, and it follows that Barry’s name was improperly stricken from the registry list.

The appellant Henry Mesier made an affidavit which disclosed the following facts, among others, viz. : He had resided in the ■ city of New York since October, 1889, and from November, 1892, to May, 1893, he lived in a boarding house at No. 52 West 21st street in the city of New York; in the summer of 1893 he spent his vacation on Long Island, and the following September lie entered the General Theological Seminary as a student and took a room in the seminary building, No. 175 Ninth avenue, and entered at once upon his studies. Mesier swears that his intention to remain in New York is not conditioned upon or limited to the duration of the seminary course which he is pursuing, nor is he required to give up his residence at the seminary at the termination of such course, but that he can occupy his room indefinitely so long as he finds it convenient to pursue the study of theology.

Under the rule laid down in the Goodwan case Mesier did not lose his residence at No. 52 West 21st street, his last place of residence before entering the seminary, and he has at all times been legally entitled to register and vote in the election district in. which that house is situated.

The order appealed from in his case must be affirmed.

The appellant George Gunnell, Jr., places before us the following material facts, viz.: He was a resident of Pennsylvania, but in 1887 he came to this state to attend Hobart- College at Geneva; in 1891 he settled in the town of Sodus Centre, in this state, with the purpose and intent of becoming a resident of that town; in September, 1892, he entered the General Theological Seminary in the city of New York as a student and occupied a room at No. 175 Ninth avenue ; while a student he engaged in the business of bookselling and was a lay reader in the Church of the Heavenly Best; he is not obliged to give up his room at the seminary at the termination of his present course of study, and it is his intent to take up his residence in the seminary.

We do not think these facts are sufficient, in connection with the sworn intent) to' established a change of residence from the-town of Sodus Centre to the seminary building in the city of New York. The facts that Gunnell sold books and was a lay reader are incidental to his course as a theological student; no acts independent of his presence in the seminary as a student are disclosed.

We think Gunnell during his course as á student at the seminary remains a resident of the town of Sodus Centre and is entitled to vote there precisely as if be was employed in the military service of the United States and stationed at some frontier post.

-The order appealed from in his case must be affirmed.

The appellant Thomas Henry Yardley relies upon the following material facts, viz.: He was living with his mother in Bhode Island in 1888 when he. went to college first in Connecticut, then in Massachusetts, and again in Connecticut, where he remained until the year 1892 ; in the fall of 1892 he entered the General Theological Seminary in the city of New York as a student, occupying a room at No. 175 Ninth avenue, in the seminary building ; his occupation is student and teacher, and he can keep his room so long as he shall find it convenient to remain there for the purpose of studying theology; his intent is to establish his residence at the seminary.

We do not think there are acts disclosed independent of Yardley’s presence as a student at the seminary which establish his legal residence there. During his entire college and theological course he has remained, in contemplation of law, a resident of Bhode Island at his mother’s home.

The order appealed from in his case must be affirmed.

We have to say in conclusion that unless the rule laid down in the Goodman case and followed in the»case at bar is rigidly enforced the constitutional provision now construed will be nullified.

It may be urged that the enforcement of this rule will render it. well nigh impossible for a student to establish a residence in a-seminary of learning, but the very obvious answer is that the letter and spirit of the constitution contemplate such a result; the sojourn of the student is assumed to be temporary, and the law preserves to him his former residence, notwithstanding his absence therefrom.

The order appealed from is reversed as to John Neilson Barry, with costs, and affirmed as to Henry Mesier, George Gunnell, Jr., .and Thomas Henfy Yardley, with costs.

All concur.

Ordered accordingly.