author: HARDIN, P. J.

text:
    John C. Koons, App’lt, v. Lewis J. Wilkin et al., Resp’ts.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed Feb. 7, 1896.)

    1. Administeatob—Disputed claim—Limitation.
    An action on a claim against a decedent’s estate, though for funeral expenses, must be commenced within six months after the claim was rejected.
    8. Same. .
    The object of section 1833 of the Code, in prescribing a short limitation, is as applicable to claims arising after, as to debts arising before, the death of the decedent.
    Appeal from a. judgment on an order overruling demurrer to the answer. ■

      H. G. Harpending and George F. Youmans, for app’lt; D. A. Marsh and James Spicer, for resp’ts.
   HARDIN, P. J.

Plaintiff is assignee of a claim for casket and funeral services furnished for the burial of one Slum non, at the instance of his daughter. Subsequent to the burial the defendants were appointed his administrators, with the will annexed, and received personal assets of his estate. They caused to be published a notice for the presentment of claims, and plaintiff elected to present his claim to the defendants, who rejected the same ; and this action was brought more than six months after the claim was so rejected, and the defendants set up as a defense the short statute of limitations. It does not appear that “ a written consent was filed * * * that said claim may be heard and determined” by the surrogate- upon the judicial settlement of the accounts of the administrators, as provided by section 2743 of the Code of Civil Procedure. Section 1814 of the Code of Civil Procedure provides that an action against an administrator “without describing him in his representative capacity cannot be enforced against the property of the decedent, except by special direction of the court.” Section 1815 of the Code of Civil Procedure provides for an action against an executor or ••administrator personally, “and also in his representative capacity,” in certain enumerated cases, one of them being where the complaint “states facts which render it uncertain in which capacity the cause of action exists against him.” The complaint in the case in hand does not allege an express contract by the defendants in their personal or representative, capacity, and the pleader may have framed his complaint' under the provisions just quoted. It may be assumed, upon the facts stated, that the law implies a promise upon which a recovery may be had, and that the assets of the decedent’s estate are liable for the expenditures sought to be rejovered. Patterson v. Patterson, 59 N. Y. 574. Plaintiff seems to have elected to make his “claim” against the estate represented by the defendants. The language of section 1822 of the Code of Civil Procedure seems to be broad enough to apply to such a case. It says:

“Where an executor or administrator disputes or rejects a-claim against the estate of a decedent, exhibited to him, either before or after the commencement of the publication of a notice requiring presentment of claims, * * * the claimant must commence an action for the recovery thereof within six months after the dispute or rejection. * * * ”

The object of this section seems, in prescribing a short limitation, to be to facilitate the early settlement of estates, and is as applicable to claims arising after the death against her estate as to the debts arising before. The provision allowing the parties to file á written consent that a claim may be heard and determined by the surrogate at the time of the settlement of the estate, pursuant to section 2743, as well as the provisions of this section that the decree to be made “must direct the payment and distribution” of whatever of funds are ready for distribution, to the persons entitled, according to their respective rights, favors this construction of the statute. The foregoing views, as well as those expressed in the opinion of ADAMS, J., delivered at the circuit, lead us to affirm the the judgment overruling the plaintiff’s demurrer to a portion of the answer.

Judgment affirmed, with costs.

All concur, except ADAMS, J., not sitting.

The opinion of Mr. Justice ADAMS at circuit was as follows:

The portion of the answer demurred to is that which sets up the short statute of limitations as a bar to the plaintiff’s cause of action. The action is brought to recover the purchase price of the burial casket furnished, and the value of the services rendered at the funeral of one Daniel Shannon, by Amanda Green, an undertaker, the claim therefor having been assigned to this plaintiff prior to the commencement of this action. The defendants are the duly-appointed administrators, with the will annexed, of the estate of Daniel Shannon, deceased; and the claim in question, properly verified, was duly presented to and rejected by them, in their official capacity, except the sum of twenty dollars, which they admit is still unpaid upon said claim, and this amount they offer to allow and pay. By virtue of the provisions of chapter 456 of the Laws of 1890, any executor or administrator is permitted, at any time after the granting of letters testamentary or of administration, to advertise for the presentation of claims against the “deceased”; and section 1822 of the Code of Civil Procedure provides that, when the executor or administrator “rejects a claim against the-estate of the deceased, the claimant must commence an action for the recovery thereof against the executor or administrator within six months after such rejection or be barred from maintaining such action.” It is insisted that this demand, being one which arose subsequent to the death of Shannon, is not a claim against his estate, but against the defendants individually. That the courts were disposed at one time to take this view of the question is quite clear. Ferrin v. Myrick, 41 N. Y. 315; Austin v. Munro, 47 id. 360-366. And I think that such is unquestionably the rule still, so far as it relates to contracts made with ex■ecutors upon a new and independent consideration, although made in the interest and for the benefit of the estate they represent, but the later cases seem inclined to make an exception as to claims arising upon account of funeral expenses. By the terms of section 16, c. 6, tit. 2, of part 2 of the Revised Statutes, an executor is permitted to pay the funeral expenses of the testator, even before taking out his letters testamentary. These expenses, while, in one sense, not a debt against the estate, are treated, as a charge upon the estate ; and, as such, it is quite proper that they should be assumed and paid by the personal representatives of the decedent, whose duty it sometimes becomes to see that proper futieral services are rendered. This view of the question' is quite clearly. presented in the case of Patterson v. Patterson, 59 N. Y. 574-585, and has been adopted by the general term of this department as the correct and proper one. Dalrymple v. Arnold, 21 Hun, 110; Laird v. Arnold, 25 id. 4; 42 id. 136. That the plaintiff entertained the same idea is apparent by the fact that he represented the claim in suit to the defendants, as administrators, insisting that it was a demand against the estate of their testator which they were bound to pay; and if the authorities last cited áre to be followed, rather than those which adopt the contrary rule,—Tracy v. Frost, 32 St. Rep. 907; Murphy v. Naughton, 68 Hun, 424; 52 St. Rep. 756,—I can see no reason why he was not justified in taking this position. At all events, having elected to treat the claim as one against the estate, and, when it was rejected, having neglected to bring suit against the administrators within six months thereafter, it would seem as though,he ought now to be precluded from any right to maintain an action thereon against the defendants individually. The demurrer is therefore overruled, with' costs 'to abide the event of the action.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Richard Taylor Company, App’lt, v. Mott D. Cannon, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 26, 1896.)

    Assumpsit—Proof.
    The evidence, in this case, which is an action for the price of work and material, was held insufficient to show a contract with plaintiff.
    Appeal from a judgment in favor of the defendant
    Daniel S. Decker, for app’lt; B. B. Kenyon, for resp’t
   PER CURIAM.

The action is for work and material furnished. The order was given to" Richard Taylor .about October, 1894, when he owed the defendant $317 for professional services,. and the understanding had between them was that the value, of the work and material was to be credited on this bill. The defendant did not know the plaintiff corporation, nor did he intend to contract with it, his purpose being to secure payment of some part of his account. Taylor died during the performance of the work, and on his death the work, though unfinished, ceased.. He never disclosed any agency, nor had the defendant any reason to suspect there was one. In view of the judgment rendered by the justice, he must have found, as matter of fact, that Taylor did not contract in the capacity of agent, but as principal, and that, if any of the labor or material came from the plaintiff corporation, the defendant was unaware of it at the time, and it must have been so furnished under some arrangement by which Taylor should pay the plaintiff for it. There are circumstances giving color to this theory.

Upon the record the judgment must be affirmed, with costs.


author: McADAM, J.

text:
    Charles C. Rives, Resp’t, v. Conrad Michaels et al., App’lts.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb’y 26, 1896.)

    1. Partnership—Third persons.
    A person cannot be held liable as a partner of one, who has contracted a debt, on the mere statement of such debtor, if made in the absence of the person sought to be charged.
    2. Same.
    To render a person liable on the ground that he has been held o.ut as a partner, two things must concur: First, the holding out must have been either by him or with his consent, express or implied ; second, before giving the credit, it must have been known to the persons seeking to establish liability.
    8. Same.
    A person cannot be so charged merely because of his acts and declarations subsequent to the contracting of the debt.
    Appeal from a judgment In favor of plaintiff.
    Martin & Weil, for app’lt; James R. Angel, for resp’t.
   McADAM, J.

The action was against the defendants, as part ners, for the recovery of $50, the balance due upon a contract made with the plaintiff for the sale of 1,000 copies of the Financial Review, containing an advertisement of the Central Park Storage Warehouse Company. The price agreed upon was $100, and the order was given by the defendant McKenna, who has not appealed. The question to be determined is whether the defendant Michaels was a partner of McKenna, and therefore jointly liable with him for the debt. It is apparent from the testimony that the defendants were not partners as between themselves, and this leads to the inquiry whether, by their conduct, they became partners as to the plaintiff. The order given to the plaintiff was in writing, signed “ John J. McKenna, Manager.” Michaels’ name in no manner appeared in the order, which did not disclose a partnership; nor was there any sign or cards indicating that Mc-Kenna had a partner, or that the appellant had an interest in Mc-Kenna’s business. There is no proof that Michaels did or said anything prior to the contracting of the debt or delivery of the papers to lead the plaintiff to suppose that he was a partner, or that.he shared to any extent the profits or losses of McKenna’s business. The proof relied upon to make out a partnership .is furnished by the statement McKenna made to the plaintiff’s son that his uncle (Michaels) owned the largest shave in the firm, and that he (McKenna) was manager; and by the testimony of Frederick B. Davis, plaintiff’s collector, that he saw McKenna and Michaels together; that Michaels, after consulting with McKenna, gave him a check for $50, which was paid on account of the bill ; that the papers delivered by .the plaintiff were found on the floor of Michaels’ saloon; and that at one time Michaels- said to the witness : “ You see McKenna about it. He has charge of these things.” Michaels testified that he had no interest in the business carried on by McKenna; that the building belonged to him, and he had let it to McKenna ; and that he (Michaels) was engaged in an entirely different enterprise. McKenna testified substantially to the same facts. The admission of the latter that his uncle was a partner in no manner bound Michaels, who was not present at the time. Kirby v. Hewitt, 26 Barb. 607. There is no doubt that a person holding himself out as a partner, thereby induciug others to act on the faith of appearances, is liable as if he were in fact a partner; the real ground of liability being that a credit has been thereby gained. But no person can be fixed with liability on the ground he has' been held out as a partner unless two things concur, viz.: First, the holding out must have been either by him or with his consent, express or implied ; second, before giving the credit, it must have been known to the person seeking to establish liability. Lindl. Partn. (2 Am. ed.) 42, 43; Burnett v. Snyder, 76 N. Y. 344; Brookman v. Stetson, 18 Misc. Rep. 132; 68 St. Rep. 77. The record before us does not disclose such a state of facts. If Michaels had, prior'to the giving of the credit, made any declaration or representation to the plaintiff, whereby he led plaintiff to believe that he was a partner of McKenna, and had in consequence induced the plaintiff to bestow labor or part with property, he would, on equitable principles, have been es-topped from denying as to the plaintiff that he held such partnership relation. But there is no such proof in the case. The acts of Michaels, even if regarded as of any significance, were all subsequent to the contracting of the debt.

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


text:
    Thomas Balmford, as Administrator, etc., v. Grand Lodge of Ancient Order of United Workmen, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb'ry 26, 1896.)

    1. Process—Service—Fraternal corporation.
    Where the duties of the grand foreman of a fraternal corporation are to preside in the absence of the grand master workman, the service of a summons upon him is valid within subdivision 3, section 431 of the Code.
    S. Same.
    To render the service of the summons, in such case, valid, it is only required that the person served should sustain such responsible and representative relations to the corporation as will secure notice to it of the commencement of the action.
    Appeal from an order of the general term of the city court affirming, without opinion, an order at the special term denying a motion to set aside the service of summons,
    Isaac B. Barrett, for app’lt; J. Baldwin Hands, for resp’fe
   PER CURIAM.

The application below was to set aside the ¡service of a summons, upon the ground that Mr. Burnham, the person on whom it was served; was not a director or other official of the defendant, within the meaning of Code, section 431, subd. 3. The defendant is a domestic, fraternal corporation, and Mr. Burnham is its grand foreman. In the affidavits in ' support of the motion, it is stated that there is no secretary, treasurer, director, cashier, clerk, or managing agent of the defendant. It is no doubt true that there are no officials in the corporation that are given the titles of office specified eis nominibus in the Code ; but, being a corporation, it necessarily has officers to perform corresponding duties and manage its affairs. Thus, the grand master workman is practically the president or head of the corporation; the grand recorder, the secretary or clerk; and the grand receiver, the treasurer. The duty of the grand foreman,' as provided in the constitution of the order, is to assist the grand master workman, and, in his absence, preside over the lodge. In short, the grand master workman is president, and the grand foreman vice president of the defendant. Webster defines a “director” to be one “who or that which directs; especially one of a body of persons who manage the affairs of a corporation.” That Mr. Burnham was one of the persons who managed the affairs of the defendant is clearly shown,by the section of the constitution and by-laws of the defendant copied in the opposing affidavits. The article referred to provides that the defendant shall be constituted and, composed of the following members, viz.. Grand master, grand foreman, and several others. It is therefore' clear that the business of the defendant is managed by several officers, members of the defendant, of whom the grand foreman is one, and the ser* vice upon him was proper and sufficient. In Palmer v. Pennsylvania Co., 35 Hun, 369, the court, at page 371, said, “Every object of the service is attained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made.” This was affirmed in 99 N. Y. 679, and was followed in Ives v. Met. Insurance Co., 78 Hun, 32, 33; 60 St. Rep. 495. We think that service upon the vice president of a domestic corporation sufficiently satisfies the requirements of the adjudicated cases. In Barrett v. Am. Tel. & Telegraph Co., 138 N. Y. 491; 53 St. Rep. 86, the general superintendent was served ; and though such an officer is not named, under section 431 of the Code, as one upon whom service can be made, the court nevertheless held the service good. At page 493, 138 N. Y., and 53 St. Rep, 86, the court said: “ The design of the statute was to secure notice of the commencement of a suit to the corporation, and it is very apparent from the description in the statute of the persons upon whom service might be made, that the legislature intended to facilitate such service, and only required that the person served should sustain such responsible and represcntative relations to the corporation ” as would secure notice to it of the commencement of the action. In Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 48 Hun, 109; 15 St. Rep. 686, service was made upon a division superintendent, and this was held to be sufficient; he being, so far as his division was concerned, a managing agent.

We think the commencement of this action has been brought as fully to the attention of the corporation as is possible. See, also, Stillman v. Lace Makers’ Co., 14 Misc. Rep. 503; 70 St. Rep. 715. And the order appealed from must be, therefore/affirmed, with costs.


text:
    Freudenheim et al., App’lts, v. Raduziner, Resp’t.

      (Supreme Court, Appellate Term, First Department,

      Filed Febr’y 26, 1896.)

    Appeal—Return—Amendment.
    An order, made by a justice of the city court, allowing the return on appeal from the common pleas to the appellate term of the supreme court to be amended by setting forth cerain matters and things which were not before the general term of the city court, and which were consequently not in the return made by that court on the appeal to the common" pleas, is improperly granted in order to permit a rehearing, •
    Appeal from an order amending a return on appeal from the city court, and for rehearing, or for leave to go to the appellate division on questions of law.
    A H. Berrick, for motions; Edward Clark and W. E„ Severance, opposed.
   PER CURIAM.

An appeal was taken from an order of the. general term of the city court, which affirmed a judgment entered Upon a verdict directed in favor of the defendant. The appeal was heard at the last November general term of the court of common pleas which court filed its decision December 27, 1895, reversing the order and judgment appealed from, with costs of appeal to the appellants, and a new trial was directed, unless, upon 4he objection of either party, the court below should strike the cause from the trial calendar. In order to meet the objections round against the judgment by the general term of the court of common pleas, the defendant, since the reversal by that court, has obtained from one of the justices of the city court an order permitting the return on appeal to this.court to be amended by setting forth certain matters and things which were not before the general term of the city court, and which were consequently not in the return made by that court on the appeal to common pleas.

To allow such an amendment at this stage of the case would be to introduce a practice not heretofore countenanced. The common pleas was required to pass upon the record that the general term of the city court had before it, and that is what was done. The amendment proposed would introduce into the record matter which was not before the general term of the city court, and which could not, therefore, have influenced it in arriving at the result found by the common pleas to be erroneous. The motion to amend must therefore be denied, with $10 costs.

The second motion, viz. for a reargument, or leave tó go to the appellate division, is also without merit. The authorities referred to by the defendant were not overlooked, nor is-there any great principle of law involved which would warrant us in sending the case to the appellate division for its consideration. The defendant has failed to bring herself within any of the established rules which would entitle her to the relief' sought, and this motion must also be denied, with $10 costs.


text:
    Theodore Katz, Resp’t, v. Pauline Wolf, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    1. Appeal—Conflicting evidence.
    The finding of a justice, on conflicting evidence, will not be disturbed on appeal.
    2. Same—Motion to dismiss.
    Where the defendant fails to make a motion to dismiss the complaint, he cannot urge on appeal that the plaintiff did not make out a prima facie cause of action.
    3. Contract—Breach—Damages.
    Where the plaintiff is guilty of a breach of an uncertain and indefinite agreement to deposit money with another on furniture which he was to purchase upon the happening of a certain event, no damages can be proved nor legally measured for such breach until the event occurs.
    Appeal from a judgment in favor of plaintiff!
   McADAM, J.

— The plaintiff furnished an estimate to do certain work on the defendant’s house for seventy-five dollars. He testified that he did all the work agreed to be doné, and received thirty dollars on account. The justice gave judgment in favor of the plaintiff for forty-five dollars, the balance due. ' Plaintiff also claimed eleven dollars for extra work, but this the justice disallowed. The question of performance was-decided on conflicting testimony; the plaintiff testifying oneway, and the defendant’s agent the other. The finding of the justice upon that disputed question of fact is sufficiently sustained by the evidence, and cannot be disturbed. Frankel v. Wolf, 7 Misc. Rep. 190; 57 St. Rep. 536. The defendant made no motion to dismiss, and cannot now urge that the plaintiff did not make out a prima facie cause of action. Frankel v. Wolf, supra; Carroll v. O’Shea, 2 Misc. Rep. 437; 51 St. Rep. 579.

The defendant claims that the justice erred in declining to allow her counterclaims. The first of these, for six dollars was properly disallowed, because the claim belonged to Fernback, defendant’s agent, and not to herself. The second arises out of a writing signed by the plaintiff, “whereby he agreed to deposit fifteen dollars with the defendant on furniture” which he was to purchase from her when he got married. The plaintiff was guilty of a breach of his agreement to deposit, but no damages arising therefrom were proved, nor could they be legally measured. ’The contract does not specify either the quantity or quality of the furniture, or its value in dollars and cents, or the character of the goods; and much would, in the nature of things, depend upon the motion, fancy, and requirements of the plaintiff when the event for which the furniture was intended should occur, and it has not yet occurred. The justice could not have allowed anything on such an uncertain and indefinite agreement. No error is disclosed by the record, and the judgment must be affirmed, with costs.


text:
    Ida M. Newcombe, as Executrix, etc., Resp’t, v. Samuel P. Hyman, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 26, 1896.)
    1. Appeal—Harmless error.
    Where, in an action for professional services, the books of the firm are received in evidence under objection and exception, and merely show the rendition of the services, 'which were practically conceded by the defendant, their admission, even though erroneous under the preliminary proofs offered, did him no injury, and the exception to their admission is of no importance.

      2. Evidence—Valid.
    The mere rendition of a billfor services does not conclude either party on the question of value.
    3. Same—Admissions.
    An offer by defendant in settlement of a bill for services and an agreement upon a certain amount, are available to the plaintiff as an admission against interest made by the defendant, though the action is on a quantum meruit, and not to recover the agreed compensation.
    4 Witness—Credibility—Partner.
    A partner of the defendant is not a disinterested witness so as to require the jury to believe his testimony, though uncontradicted and in no way discredited.
    5. Same—Party.
    The testimony of a party, though uncontradicted, is not conclusive. So held as to the testimony of defendant, though uncontradicted, as to payment, where, on the trial, neither the absence of a receipt for such payment nor the check on which the money to make the payment was claimed to have ■' been procured, was satisfactorily accounted for, and defendant admitted that the date of the payment as sworn to in his answer was false.
    Appeal from a judgment of the general term of the city court, affirming a judgment for plaintiff entered on a verdict
    Epstein Bros, for app’lt; Booraem, Hamilton, Beckett & Hansom, for resp’t
   McADAM, J.

The action was to recover $500 for professional services rendered to the defendant by the late law firm. of Donohue, Newcombe & Cardozo. Bv reason of the death of Mr. Newcombe, the firm dissolved July 26, 1891; and, in settling the affairs of the partnership, the claim in suit was transferred to the widow of Mr. Newcombe as his executrix, and in that capacity she sues to recover the sum claimed.

The bill representing the claim is in these words:

“15 April, 1889-

“S. P. Hyman, Esq., to Donohue, Newcombe & Cardoza, Dr. “1888. August, September and October.

“To professional services in the matter of your' accounting as assignee of J. S. Cohen & Co.; attendances on references and motions; your arrest; proceedings in district attorney’s office and before grand jury; negotiations for settlement; taking releases; assignments; and final adjustment........................$500.”

No items other than those which appear in the bill were furnished, nor do the books of the firm give much more information. The books of the firm were received in evidence under objection and exception. They merely showed, the rendition of the services,' and, as that was practically conceded by the defendant, their admission, even if erroneous under the preliminary proofs .offered, did him nO injury, and the exception to their admission is of no importance.

The only serious objection in the case is that taken to the absence of proof of reasonable value. The charge made in the books was merely theestimate of value which Mr. Newcombe placed upon his services, to the accuracy of which the defendant does not seem to have in any manner assented. The mere rendition of the bill did not conclude either party on the question of value. Williams v. Gleny, 16 N. Y. 389.

The defendant claims that, though he never formally objected to the bill, he never assented to the. amount of the charge. He testified (without objection) that he called upon Mr. Newcombe, and offered him $250 in settlement of the bill, and that they finally agreed .on $300. This is the only evidence establishing value in the case. It is available to the plaintiff as an admission against interest made by the defendant (Cook v. Barr, 44 N. Y. 156); and this though the action is on 'a quantum meruit, and not to recover the agreed compensation (Fells v. Vestvali, *41 N. Y. 152; Goetz v. Van Au, 12 Civ. Proc. R. 104, and note; American Encaustic Tiling Co. v. Reich 34 St. Rep. 64).

The defense was payment. In the answer the defendant swore that the payment was made on or about April 15,1889, and on the trial testified that the time was February, 18.91, and that what he had sworn to in the answer was false. There were other statements in his story which made it .improbable; and, being interested in the result, the jury were under no obligation to believe his testimony. Mr. Maas, who undertook to corroborate the statement as to payment, was a partner of the defendant, and not disinterested to such extent as to require the jury to believe the evidence he gave. Kavanaugh v. Wilson, 70 N. Y. 177, and kindred cases. It is only where a witness is disinterested and in no way discredited testifies to a fact within his knowledge, which is not of itself impropable or-in conflict with other evidence, thatt his testimony must be believed. Arms v. Arms, 13 St. Rep. 196; Lomer v. Meeker, 25 N. Y. 361; Elwood v. Telegraph Co., 45 N. Y. 549; Kelly v. Burroughs, 102 N. Y. 93. Considering the fact that neither the check upon which the money to pay the bill is said to have been procured, nor the receipt claimed to have been given by Mr. PTeweombe when the alleged payment was made, was produced or its absence satisfactorily accounted for, the value of the testimony adduced by defendant was seriously impaired. It was certainly not of that demonstrative or impressive character likely to carry conviction to the minds of jurors, or which they are bound as of course to credit and adopt. The lips of the party to whom the alleged payment was made were sealed in death, and the defendant was allowed every conceivable latitude to make out his defense, even to the extent of giving his own version of the transaction alleged to have been had with the testator in his lifetime. The case essentially one for a jury to determine, in the light of all the surrounding circumstances, giving proper weight to the interest of the parties .testifying and the inherent probability or improbability of their stories. It was not one where the court could have directed a verdict. The jury had to reach a result from the evidence; they found against the defendant; and the trial judge and the general term of the court below have approved of the finding. We will assume, therefore, that the agreed $300 was not paid.

The difficulty with the verdict, however, is that the jury found in favor of the plaintiff for the entire amount of the bill ($500, with interest), instead of the value of the services as legally established. To correct this error, the judgment appealed from will have to be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless within ten days the plaintiff stipulates to reduce the damages recovered in the court below to $300, with interest, in which event the judgment, as modified, will be affirmed, without costs upon this appeal.

Allconeur.


text:
    James Butler, Resp’t, v. Third Avenue Railroad Company App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb'y 26, 1896.)

    Appeal—Affirmance.
    Where, in an action for personal injuries, the evidence is conflicting, but is sufficient to warrant a finding that the injuries complained of were the result of the defendant’s negligence and that plaintiff was free from fault, the judgment for plaintiff will be affirmed.
    Appeal from a judgment in favor of plaintiff.
    Hoadly, Lauterbach & Johnson, for app’It; John H. Rogan, for resp’t.
   PER CURIAM.

The return shows the usual conflict of evidence found in negligence cases. The evidence was sufficient to warrant the justice in finding that the injuries complained of were the result of the defendant’s negligence, and that the plaintiff was free from fault. The damages allowed were fully substantiated. We find no error.

Judgment affirmed, with costs.


author: BISCHOFF, J.

text:
    William C. Hespe et al., Resp’ts, v. Edward B. Wyman, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb’y 26, 1896.)

    Appeal—Conflicting evidence.
    A judgment, on conflicting evidence, will not be be disturbed on appeal as against the weight of evidence.
    Appeal from a judgment in favor of plaintiffs.
    George L, Hoffman, for app’lt; Patrick J. O’Beirne, for resp’ts.
   BISCHOFF, J.

This action was brought to recover for work labor, and services and materials furnished at the defendant’s instance and request, and a recovery of $72.50 was had. There can be no question as to the value of the services in suit, since the defendant himself admitted in court that their value was in the amount above stated; but the appeal is based upon the claim that the defendant, in making the contract for the work, acted as agent for a corporation, and that the weight of the evidence is in his favor upon this defense. A consideration of the record makes it apparent, however, that there was merely a conflict of evidence touch this point, and the probabilities are not against the plaintiffs positive evidence that the defendant acted as an individual, pledging his own credit, in the course of the transaction. It may be as contended, that the plaintiffs had reason to be cognizant of the claim that the defendant was acting as agent; but this was subsequent to the contract and performance, if at all, and the plaintiffs were not restricted to an action against the concealed principal, when finally discovered. The question of the weight of evidence must be resolved impartially by the appellate court, and cannot be determined merely as a reflection of the appellant’s reliance upon the value of his allegations and proofs.

Judgment affirmed, with -costs.


author: ADAMS, J.

text:
    The People ex rel. John Laird, Resp’t, v. John W. Hannan, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Information—Sufficiency—Contempt.
    An information, upon the oath of a person, “that, on divers days within the last, two years, at the town of Brighton, in this county, divers persons whose names are unknown, wrongfully and unlawfully did catch and take certain fish, to wit, bass, perch and pickerel, in a° manner and by means other than angling, to wit, with nets, in violation of the game laws of this state,” is not sufficient to give the justice, before whom it is laid, jurisdiction.
    8. Same.
    In such case, the justice cannot commit for contempt a person subpoenaed thereon as a witness who refused to testify.
    Appeal from an order discharging relator on habeas corpus.
    On or about the 31st day of May, 1895, one Edwin I. Brooks made complaint before Edwin C. Smith, a justice of the peace in and for the town of Brighton, Monroe county, that the game laws of the state had been violated within the county by divers persons to him unknown, and asked that subpoenas be issued for certain persons named in the information sworn to by him. The relator was not one of the persons so named. The justice thereupon issued subpoenas to various persons, one of which was served upon the relator, and pursuant thereto he duly appeared before the justice on the 4th day of June, 1895. " After being sworn as a witness in a “criminal action .prosecuted by the people of the state of Hew York against John Doe and others,” the relator was asked the following question : “ Have you, within the last two years, seert any person using any gill net, or any illegal devices, for the purpose of taking fish in Irondequoit Bay or Creek, other than yourself.” The witness declined, under the advice of counsel, to answer the question, upon the ground -that his answer might tend to incriminate him, whereupon the justice directed the witness to answer the question, and upon his refusal so to do, adjudged him guilty of a criminal contempt, and on the 5th day of June, 1895, sentenced him to imprisonment in the jail of Monroe county for the term of thirty days. On the following day a writ of habeas corpus was issued by the special county judge of Monroe county, directed to the sheriff of Monroe «county, requiring him to produce the relator in court, and after hearing counsel for the relator and the people, an order was made discharging the relator from imprisonment.
    H. H. Widner, Asst. Disk Atty., for app’lt; Werner & Harris, for resp’t.
   ADAMS, J.

Section 679 of the Code of Criminal Procedure makes a refusal to testify a criminal contempt, the punishment for which is provided by section 852 et seq. of the Code of Civil Procedure. It is likewise provided, by section 2034 of the Code of Civil Procedure, that upon a return to a writ of habeas corpus, the judge or court shall not inquire into the legality of any mandate, judgment, decree, or final order; but subdivision 2 of section 2032 expressly excepts from the operation of the former section an order to punish for contempt, and the criminal contempt defined in section 8, and oeferred to in subdivision 3 of section 2032, relates only to courts of record. The judge was therefore at liberty to inquire into the validity of the proceeding before the magistrate in which the relator was committed, and a careful examination of the record shows very clearly that the information upon which the justice acted was wholly insufficient to confer jurisdiction upon him, and that, consequently, he was without authority either to subpoena the relator, or to compel him to testify, or to commit him for contempt. This feature of the case is commented upon so fully by the learned judge who granted the order as to leave no opportunity for this court to add anything thereto.

The order appealed from should be affirmed, with §10 costs and disbursements.

All concur. •

The opinion of Special County Judge CARHAHAH was as follows:

The relator in his habeas corpus proceeding was committed to jail for contempt in refusing to answer a question propounded to him before a justice of the peace of the town of Brighton. An information, so called, upon the oath of Edwin I. Brooks, had been laid before the justice, charging, upon information and belief, “ that, on divers days within the last two years, at the town of Brighton, in this county, divers persons, whose names are unknown, wrongfully and unlawfully did catch and take certain fish, to wit, bass, perch, and pickerel, in a manner and by means other than angling, to wit, with nets, in violation of the game laws of this state.” Thereupon the justice issued subpoenas to a number of persons, and, among othérs, to the relator. In response to the subpoena the relator appeared before the justice on the 4th day of June, 1895, whereupon he was asked the following question : “ Have you, within the last two years, seen any person using any gill net, or any illegal device, for the purpose of taking fish in Irondequoit Bay or Creek, other than yourself ?” The relator, "having declined to answer the question, was committed.

Passing by certain minor-objections to the commitment, which do not seem to me to be well taken, the main question remains, whether the justice had jurisdiction, upon the information laid before him, to take any proceedings. It was claimed upon, the argument that the subpoena was issued upon the information, and upon certain, depositions of other persons taken before the justice on the 1st day of June. It does not appear, however, whether the subpcena was issued before or after those depositions were taken , and that this claim was an afterthought appears from the the recitals in the commitment, wherein it is stated that the relator was subpoenaed pursuant to the said information. Section 145 of the Code of Criminal Procedure defines an information as “ the allegation made to magistrate that a person has been guilty of some designated crime.” Section 148 of the Criminal Code provides that when an information is laid before a magistrate, of the commission of a crime, he must examine upon oath the informant., or prosecutor, and any witnesses he may procure, etc. For the purpose of examining such witnesses, the magistrate has power to issue subpoenas. There may be two stages in the proceeding for the arrest of a person charged with an offense; the first stage consisting of the investigation preliminary to the issuing of the warrant, and the second the issue of the warrant upon the original information, supplemented by the depositions of witnesses taken. While the Code provides that an information shall allege that a person has been guilty of some “ designated1” crime, yet it is clear that it does not contemplate that the information shall in all cases show all that is necessary to authorize an arrest. But there should be sufficient particularity to at least point to the commission of a “ designated ” crime, and to make it probable that further investigation would lead to the discovery of a “ designated ” crime; and a crime is not designated within the language of this section of the Code by simply naming a class of offenses. Some item of the approximate place or the approximate time of the commission of an offense should be given, or an indication of the supposed offender.

The information in question does not answer these requirements, as it does not designate any crime or any of the elements of a particular crime. It amounts only to a statement of the belief of Bro.oks that, at some indeterminate time within two years, at some indeterminate place in the town of Brighton, by some person unnamed and undescribed in any way, an offense against the game laws was committed. It is, of course, quite possible that there have been breaches of the game laws in the town of Brighton, as in other towns of the country. Likewise, it is probably a fact that, within the last two years, the crime of petit larceny has been repeatedly committed iffithe city of Rochester, and has not been punished; but, would a magistrate, that allegation having been laid before him under oath, have power to investigate the entire city of Rochester ? If the contention of the defendant in this case is correct, then any man may lay an information before a magistrate, charging that it is his belief that some particular class of crimes has been committed within the period of statutory limitation within a particular locality. He need have no basis for his belief other than his experience of the frailties of human nature; and yet, upon such information, a magistrate could, by compulsory process, drag every citizen of that region before him to tell whether he has any knowledge of the commission of any such crime; and it seems to me apparent that some such dragnet method of investigation was adopted in this case, else why was such a broad question put to the relator? Undoubtedly, the officers charged with the due execution of the game laws have arduous duties to perform. Quite probably it is very difficult to discover evidence upon which to make arrests and gain convictions. But I do not think they should be allowed this method of surmounting their difficulties. While it is of great importance that the laws should be enforced, it is of just as great importance that the exercise of inquisitorial power should be prevented.

The defendant, to sustain his position, cites the case of People v. Hicks, 15 Barb. 153. But in that case the comptroller of the city of New York made oath that, from the examination of documents in his possession in his official capacity, criminal frauds had been committed upon the public treasury of the city, and he stated the particular character of one of the frauds charged as a specimen of the nature and character of others shown in the documents. Such an information would be amply sufficient to authorize further investigation, and the case cited is an authority for the proposition that such proceedings as are above described in this case should not be tolerated.

The information in this case was insufficient to give the justice jurisdiction of the subject-mater of any crime, orto authorize him to conduct any investigation. He was, therefore, wholly without authority to subpoena the relator, or to examine him under oath, or to compel him to answer. The relator should be discharged from custody.


text:
    Gaetano Delise et al., Resp’ts, v. Joseph Palladino, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 26, 1896.)

    1. Credibility—Interested party.
    The brother-in-law of a party, who aided him all he could in the trial, is not a disinterested witness whose testimony, when unoontradicted and unimpeached, must be believed in preference to the testimony of an adverse party.

      2. Parties—Partnership.
    A person entitled merely to a share in the profits of a firm as compensation for his services is not a partner, so as to render him a necessary party - to an action by the firm.
    Appeal from a judgment in favor of plaintiffs.
    Louis Hess, for app’It; D. Humphrey, for resp’ts.
   McADAM, J.

The main objection urged against the recovery is that Antonio Oapuano, who the defendant alleged was a partner of the plaintiffs, should have transferred to them his interest in the balance of $75.59, claimed herein, before they could maintain action thereon. But the evidence' shows that Oapuano had no such interest. The firm composed of the plaintiffs 'did business in Brooklyn, and had a branch office in Jersey City. The money in question, though advanced by Oapuano, belonged to the plaintiffs, came from their Jersey Oity office, and was advanced on their account. It was claimed that Oapuano had an interest in the Jersey Oity branch office, and that he was an equal partner in the firm. In fact he so testified at the trial as a witness on the part of the defendant, The plaintiffs testified that he was not a partner in their firm, had no capital invested in the business, and merely received á share of the profits for his services. Though the plaintiffs were interested in the result,'they were not more so than Oapuano f who is a brother-in-law of the defendant, and did all he could to aid him upon the trial • The justice was therefore called upon to determine which of the interested parties was telling the truth. He found for the plaintiffs, and was justified in so> doing. If, as the justice found, Gapuano was not a member of the firm, he was entitled only to a share of its profits in the Jersey branch for his services. He was not a necessary party to any action brought by the firm, and it needed no assignment from him to maintain the action. This is clear upon principle as well as authority. Beudel v. Hettrick, 35 N. Y. Supr. Ct. 405; Adee v. Cornell, 25 Hun, 78; Cassidy v. Hall, 97 N. Y. 159; Richardson v. Hughitt, 76 N. Y. 55; First Nat. Bank of Jersey City v. Staples, 34 St. Rep. 503. The item of $14.50 was clearly established, and the amount of the note practically admitted. The facts as found by the justice entitled the plaintiffs to the judgment rendered. We find no error, and the judgment must be affirmed;, with costs.


text:
    Emily A. Long, App’lt, v. Benjamin F. Poth, Resp’t.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb’ry 26, 1896.)

    1. Lease—Agent—Action.
    Though a lease is made in the name of an agent, without describing himself as such, and although the principal is unknown to the tenant, the latter is entitled to sue and maintain summary proceedings thereon, and the instrument may be resorted to for the purpose of ascertaining the terms of the agreement.

      2. Fraud—Breach of contract.
    Fraud cannot be predicated on a breach of promise to perform an act.
    8. Statute of frauds—Agent—Validity.
    A lease for a term exceeding one year, made by an agent of the owner of the premises, who has mere oral authority to execute a lease, is not binding on the owner.
    4. Same—Ratification..
    Where the statute of frauds requires the original authority to bobs writing, it requires the ratification to be made with equal ceremony.
    5. Same.
    Ratification, in order to bind the principal, must be made with knowledge of all the facts
    6. Same.
    The rule that it will be presumed that an agent discloses to his principal, within a reasonable time, all the material facts that come to his knowledge while acting within the scope of his authority, cannot be extended to imply that a special agent, whose powers are limited to making a lease for one year, informed his principal, that he had transcended his authority and made two leases in violation of duty for longer terms.

      7. Estoppel—Equitable.
    In order to create an estoppel by conduct, it must appear that the party sought to be estopped did acts with the intention that the other party should act upon them, or might act upon them, and that the other party was thereby induced to, and did, act upon them.
    8. Same—Silence.
    Where a party knows nothing of the wrongful acts until too late to prevent them, it cannot be claimed that he remained silent when he should have spoken.

      9. Same.
    Where a husband, authorized to make a lease of the wife’s property for one year, executes a lease in his own name for two years, the wife is not estopped from denying the validity thereof by the fact that she failed to notify the lessee of her ownership, where the property stood in her name of record, though the lessee, in making the lease, and in paying rents thereunder to the husband, supposed that the husband owned the property.
    Appeal from a final order on a verdict awarding possession to the tenant.
    De Grove & Riker (Wm. King Hall, of counsel), for app’lt; Jerolmau & Arrowsmith, for resp’t.
   McADAM, J.

A summary proceeding was commenced on May 14, 1895, by Eriiily A. Long, as landlord, to remove Benjamin F. Poth, as tenant, from the possession of .the premises known as No. 319 West Thirty-Seventh street, in the city of New York, on the ground that the tenant’s term expired on May 1, 1895, and that he held over, and continued in possession of the premises, without her permission as landlord, aftér the expiration.of the term aforesaid. The tenant denied the allegations contained in the petition, and set up, by way of affirmative defense, that he was in possession of the premises under and by virtue of a written lease, which had not, as yet, expired.

To maintain the proceeding, the landlord put in evidence a number of conveyances through which the estate became vested in her.as owner in fee, by record title, several years before the execution of any of the leases hereafter referred to. "She then offered in evidence a lease, dated February 1, 1894, between John F. Long, of the first part, and Benjamin F. Poth, of the second part, whereby said Long demised to Poth the premises in question for the term of twelve months from May 1,1894, at the yearly rent of $840, payable as follows: $643.10 on the execution of the lease, and $196.90 on January <1, 1895. She then proved that Poth had taken possession under this lease, that John F. Long, the lessor named therein, was her agent, possessing oral authority to make a written contract, not under seal, for one year, and rested her case." She claimed, as she lawfully might, that, though the lease was made in the name of her agent, without describing him as such, and although she was "unknown to the tenant, ■ she was entitled to sue and maintain summary proceedings thereon, and that the instrument might be resorted to for the purpose of ascertaining the terms of the agreement. Nicoll v. Burke, 78 N. Y. 580; Briggs v. Partridge, 64 id. 357, 362, 364. In his defense, the tenant offered in evidence two leases, made by the said John F. Long to him, bearing date April 7, 1894, by the firpt of which Long demised to him the said premises for two years from May 1, 1894, at the yearly rent of $840, to be paid in advance on the execution of the instrument; the second demising the same premises for the term of three years from the 1st day of May, 1894, at the rental sum of $840, payable, for the three years, in advance, excepting the sum of $200, to be paid on January 1, 1895. The landlord objected to the introduction of these leases, upon the ground that they were for a term exceeding one year, and therefore not binding upon her. The justice overrulled the objection, admitted the two leases in evidence, and the landlord excepted. The tenant then proved that he had paid all the rent called for by said two leases, and attempted, but failed, to prove that these rents went into the possession of the landlord, and that she ratified the acts of her agent, who was her husband, thus making the leases binding upon her.

As between the parties to the instruments, the leases were no doubt valid obligations; but, when used to charge the plaintiff, they became inoperative, because the estate was in her, and not in her husband, who had nothing to lease, and the tenant took nothing by the instruments. The statute provides that:

“No estate or interest in land other than leases for a term not exceeding one year "* * * shall hereafter be created, granted,” etc., “unless by act or operation of law,-or by deed or conveyance in writing, subscribed by the party, creating, granting * * * the same, or by his lawful agent thereunto authorized by writing.” 2 Edm. Rev. St. 139, § 6.

Ratification is equivalent to original authority, and nothing-more; and, where the statute requires the original authority to be in writing, it would, on principle, require the ratification to be made with equal ceremony. Haydock v. Stow, 40 N. Y., at pages 370, 371; Whitlock v. Washburn, 62 Hun, at page 374; 43 St. Rep. 4; Stetson v. Patten, 2 Me., at page 360; McDowell v. Simpson, 3 Watts, 129; Parrish v. Koons, 1 Pars. Eq. Cas. 95; Videau v. Griffin, 21 Cal. 389. So that the ratification, if it had been proved, would not have made the two leases binding upon the landlord as the act of a legally authorized agent. Besides, ratification, in order to bind a principal, must be with knowledge of all the facts, Trustees v. Bowman, 136 N. Y. 521; 49 St. Rep. 820; and there is no evidence in the case showing that the landlord had any timely knowledge of the existence of the two leases in question, or ever knowingly received any benefit under them. True, it will be presumed that an agent discloses to his principal, within a reasonable time, all of the material facts that come to his knowledge while acting within the scope o£ his authority (Hyatt v. Clark, 118 N. Y. 563, 570; 29 St. Rep. 851; Krumm v. Beach, 96 N. Y. 398, 404, 405; Bank v. Davis, 2 Hill, 451); but this rule cannot be.extended to imply that a special agent, whose powers are limited to making a lease for one year, in-, formed his principal that he had transcended his authority, and made two leases in violation of duty for longer terms. Express Co. v. Trego, 35 Md. 47. Even if such a presumption were to be indulged, the evidence of the landlord establishes that no such information was imparted to her, and that she had no knowledge of any of the three leases until a short time prior to the commencement of this proceeding, when she undertook to dispossess the tenant as a squatter, on the' supposition that he had no lease.

The tenant also claimed that the landlord permitted her husband to deal with the property as his own, and thus enabled him to perpetrate a fraud upon an innocent party, who, acting upon appearances, parted with his money in good faith. There is no evidence that.Mrs. Long permitted her husband to act otherwise with her property than any agent could have acted under the same authority. The property stood in her name upon the public records, and by proper examination the tenant could have discovered the fact. He made no effort to And out who owned the property. He supposed it belonged to Mr'. Long, and all inquiry upon his part ceased with that belief. The landlord had never, by her presence, acts, or declarations, contributed to the creation of this belief, and in no manner estopped herself from asserting her rights as owner of the property. She was under no obligation to notify the tenants in the house that the property belonged to her; and, even if she had been neglectful in this regard, there would have been no estoppel, so far as the questions now involved are concerned. In People v. Bank of North America, 75 N. Y., at page 562, the court said:

“The negligence alleged is simply that Raines did not use ordinary care to discover and prevent tie frauds of Phelps; and there is n'o authority for holding that such negligence can work an estoppel. If it could, merchants, bankers, and other business men, having numerous clerks, would frequently hold their property by a precarious tenure.”

In order to create an estoppel by conduct, it must appear that the party sought to be estopped did acts with the intention that the other party should act upon them, or might act upon them, and that the other party was thereby induced to, arid did, act upon them. Bigelow, Estop. 480. But the record is destitute of evidence that Mrs. Long ever did or said anything which misled the tenant to his prejudice, or that she'ever intended'or led him to believe that the property belonged to her husband. It cannot be claimed that she remained silent when she should have spoken, for she knew nothing of the wrongful acts until to late to prevent them. The doctrine of estoppel by silence is, therefore, in no way applicable.

The alleged payments to the husband were evidently advances made to him for his own purposes, and he might as well have atr tempted to mortgage or convey her property to the tenant by way of security as to lease it for terms beyond his limited authority and in violation of the statute. Since John F. Long had no estate in the premises, the leases executed by him created no incumbrance thereon, and conferred upon the tenant no right of occupancy, except as to the lease for one year, in respect to which nó authority in writing was required.

Without considering the charge of the justice, in which he submitted to the jury propositions at variance with these views, it follows that the final order appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


author: HATCH, J.

text:
    James F. Darmour, Resp’t, v. Robert R. Chapman, Impleaded, etc., App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 18, 1896.)

    Refobmation-AIutuai, mistake.
    The instrument was held to have been properly reformed so as to show the condition to be entered into an indemnity bond, where plaintiff offered evidence as to what it was, and that by mutual mistake it was omitted, and defendant did not offer evidence to contracted it.
    Appeal from a judgment in favor of plaintiff,
    George W. Stephens, for app’lt; G. Wasbbourne Smith, for resp’ts Hammond and Tracy; Joseph Fitch, for resp’t Ficth, trustee; Nelson Smith, for resp’t James F. Darmour,
   HATCH, J.

This action was brought to reform a trust agreement and enforce the same. The plaintiff was a contractor, engaged in the erection of barracks at Willett’s Point, Queens county, for the federal government. As such contractor, and about September 20, 1893, he entered into a contract with one Charles J. Worth to do the mason and carpenter work for the erection of the barracks and furnish the material therefor. Under this contract, Worth prosecuted the work, and furnished materials there-" for, until about the 20th day of April, 1894, when he failed. Thereupon plaintiff, Worth, and Chapman agreed that Chapman should go on, take the materials which. Worth had furnished, and the building as it then stood, and complete the same for a specified sum, and pay the obligations which Worth had contracted in the construction. Plaintiff and Chapman, in pursuance of this agreement, entered into a written agreement. This agreement contained no clause that Chapman should pay Worth’s debts. In view of the conclusion reached, we do not deem this fact important. Chapman fulfilled the contract and completed the barracks. At the time of Worth’s failure he was indebted to the defendant Hammond for brick furnished at the barracks, to Tracy for laying brick, and to certain other persons for labor performed, now represented by defendant Fitch. After the barracks was completed, plaintiff, Chapman, and Fitch met for the purposé of an accounting and settlement, when it was found that plaintiff was indebted to Chapman in the sum of $7,664.77. It was thereupon agreed that plaintiff should pay to Chapman $3,673.93, and the balance, $3,990.84, should be hold by plaintiff, for the benefit of , Hammond, Tracy, and Fitch, as trustee, until their claims, which Chapman questioned, could he adjusted by him. Thereupon the following “declaration of trust,” so called, was drawn:

“Long Island City, October 4th, 1894.

“Received of James F. Darmour settlement of contract to build barracks at Willetts Point in the following manner: Check $3,= 673.93 ; check (held by Joseph Fitch until indemnity bond produced), $1,538.06; balance, $2,452.78, to be held by James F. Darmour until disputed claims of E. J. Hammond ($1,536.03) and Richard Tracy ($916.75) have been adjusted by me.

“ Robert R. Chapman.”

“The foregoing is the original receipt delieved to me this day, and I hold the moneys as above set forth.

“James F. Darmour.”

This paper was written by Chapman, and delivered at that time, and in his answer he admits its execution. Subsequently, a bond was delivered by Fitch to defendant Chapman, conditioned for the payment of any amounts shown due on the claims represented by Fitch; but the same was -never executed by Chapman, and no bond of indemnity was ever executed or delivered by him. Before this action was commenced, plaintiff requested *Chapman to adjust the accounts mentioned in the agreement, and he refused. The money, which was retained by plaintiff, in pursuance of the settlement, was deposited in Queens County Bank in the name of plaintiff’s wife, Julia Darmour. After the démand was made upon Chapman to adjust the accounts, he brought an action against'the plaintiff, his wife, and the bank to obtain an injunction restraining defendants from disposing of, or otherwise interfering with the fund on deposit, and obtained a preliminary injunction therein. This resulted in a judgment making permanent the temporary injunction, with leave to Darmour to move to vacate the same, unless, within 10 days after the payment of certain costs, Chapman, adjusted the claims of Hammond and Tracy, or instituted litigation to determine the rights of the parties with respect to the money. Thereupon this action was brought, and has resulted in a judgment reforming the declaration of trust by inserting1 the conditions in the bond of indemnity running to Fitch, and deciding that the respective parties named-in the declaration are entitled to the several amounts therein expressed, and directing that checks be made out by Julia Darmour, and delivered to the respective parties, and the injunction is yacated so far as to allow the Queens County Bank to pay the same. It- is now.earnestly argued that this judgment may not stand and several reasons which require examination are assigned therefor.

The complaint alleged that the agreement between plaintiff and defendant did not contain the clause that Chapman should pay Worth’s debts, and asked for its reformation in that respect. But it is clear that this allegation was not regarded as important, in yiew of the evidence, and the court made no finding thereon, nor did the decision of the court reform the agreement in this respect. Consequently, much of defendant’s argument in this regard is without force. The real question presented, and the one upon which the court, passed, was the defect in the declaration of trust. With respect to that the complaint alleged that, by mutual mistake, it did contain the condition to be entered in the bond of indemnity to be delivered to Fitch. The court found, as a fact, that it did not, and the respect in which it failed. This finding was clearly correct. The declaration itself provided for the giving of a bond, and it is evident that some condition was contemplated which the bond should contain, else it would be ineffectual for any purpose. The natural inference which arises is that, as the claims which Fitch represented were to be adjusted by Chapman, and the sum of money being limited in amount, the condition of the bond would be to pay the amount found clue upon adjustment, not exceeding the specified sum. This is substantially what the evidence tends to establish, and defendant, although sworn, did ■not deny it, while Gregg, who was sworn, for him, testified with respect to who was to draw the bond, but lie did not claim that the evidence given was wrong respecting its conditions. A case was therefore presented which required reformation,within the doctrine of the most extreme cases, as it was clear beyond mistake. Southard v. Curley, 134 N. Y. 148; 45 St. Rep. 778.

What transpired before the declaration of trust was executed is not of importance here, whatever may have been the original agreement. It is certain, beyond dispute, that Chapman recognized some liability for the claims mentioned in the declaration of trust, and that liability was to be determined by an adjustment of the claims, while the fund stood as security. It became Chapman’s duty to adjust them, and in this he failed. All that was necessary in this action was to determine their amounts. The evidence is abundant to establish the claims of Hammond and Tracy for the full amount of the sum stated in the declaration. The evidence is less satisfactory respecting the parties whom Fitcli represented. But we think it sufficient. The claim due Owen, of $435, which formed a part of the amount, has been stipulated by the parties, and paid since the trial. The other claims are all set out in the answer of the defendant Fitch, with the respective amounts. The testimony of plaintiff is that the amounts represented by these claims were contained in a list of indebtedness which present when the agreement to complete the building was made, and which Chapman was to pay. Fitch states that the amount of these claims represented the amount of the check. It is objected that the list was not produced; but the objection was not taken upon the trial, nor was any objection urged to the oral statement of what it contained. Defendant Chapman nowhere in bis testimony denies or puts in issue the amount of these claims. His whole effort was directed to establish that he never agreed to pay ,any of them. While the burden undoubtedly was upon Fitch to establish the. amount of the claims, yet the issue which Chapman tendered was not as to the amount due upon the claims from somebody, but a denial that he was liable for any sum whatever. In this view, we think the claims were sufficiently established to upon the finding of the court.

The discussion respecting the extent to which the building had progressed, and the amount of indebtedness assumed of Worth’s debts, we think, is aside of the questions presented on this appeal. The agreement made provides for the payment to the parties named of whatsoever sum should be found due them, up to a specified amount; The only issue, therefore, was to the amount of the claims. This has been found to be, upon sufficient evidence, the sums specified; and, whether we call the paper a declaration of trust, or an assignment, or whatever we call it, it amounts to a setting a part of certain moneys, which, upon the happenings of a contingency, should belong to the parties named. That contingency has happened, and a legal inquiry has adjudged that the money be paid to the parties entitled.

We think the judgment is right, and should be affirmed, with costs.

All concur.


text:
    Morton P. Hutchinson, Resp’t, v. Frank Walter, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb’ry 26, 1896.)

    Statute ot mauds—Memorandum.
    The statute of frauds requires the note or memorandum of contract to be subscribed by the party charged therewith. So held where, upon an alleged sale of blue-striped bags, a note left by the vendor for the purchaser, stated that all the bags he had on hand were red-striped, whereas those shown the purchaser had a blue stripe, and requested the purchaser to notify him whether they would be satisfactory.
    Appeal from a judgment in favor of plaintiff.
    E. T. Payne, for app’lt; A. A. McGrlashan, for resp’t.
   McADAM, J.

The action was to recover damages for failure to deliver 10,000 potato bags at the agreed price of 5J cents per bag, and for special damages incurred by plaintiff, with defendant’s knowledge, in consequence of the breach. The defense was that, as the price exceeded $50, and none of the provisions of the statute of frauds (2 Rev. St. p. 136) was complied with, there was no valid contract, and hence no cause of action. It appears that on July 24,1895, plaintiff called at defendant’s place of business, and interviewed defendant’s representative, Mr. Yetter, regarding the purchase of some potato bags, and 'offered to buy 10,000 at 5J cents a bag. He was told to call next day, and receive his answer. He did so, and an agreement was entered into between plaintiff and defendant that plaintiff would buy and defendant would sell 10,000 blue-stripe potato bags at 5J cents a bag; defendant to notify plaintiff when bags were ready for shipment, and receive from plaintiff shipping directions. The plaintiff sought to meet the requirements of the statute by offering in evidence certain writings, which will be referred to in their order.

On July 26, plaintiff wrote to defendant as follows:

“Hew York, July 26, 1895.

“ F. Walter, Esq. — Dear Sir: Please notify me by mail when you are ready to have me receive the 10 M potato bags bought of you July 25th, at 5J. “M. P. Hutchison.”

On the following day this letter was returned to plaintiff with a pencil memorandum written at the botton, not signed, in these words:

“ The bags shown you had blue stripe, and on going over our stock we find we have only red-stripe bags. These are precisely «like, except stripe. Will this be satisfactory ? If so, kindly give the shipping instructions.”

Later, on the same day, another memorandum was left on plaintiff’s desk by defendant’s agent. This memorandum was subscribed, referred to the unsigned memorandum of the morning, and was as follows s

We left a memo, on desk this a. m. This stated that we had only red-striped bags on hand. (When we opened the bales which we thought contained blue bags, it was discovered that they were red bags.) A party wants these bags, and we told them they may have them if you do not want them. Kindly let us know at once, as other party are waiting for answer; and oblige.

Frank Walter,

“Mr. M. P. Hutchison.” “ W. J. V.”

The memorandum written at the end of plaintiff’s letter is insufficient to meet the requirements of the statute, and does not bind the defendant on the contract. The statute requires the note or memorandum of the contract ’to be subscribed by the party to be charged therewith. 2 Rev. St. p. 136, § 3; James v Patten, 6 N. Y. 9; McGivern v. Fleming, 12 Daly, 289; Coe v. Tough, 116 N. Y. 273, 277; 26 St. Rep. 661. The signed writing sent by defendant to plaintiff does not bind him, for it is in no sense a contract or a memorandum of. a contract. The alleged contract was for 10,000 blue-stripe bags. Defendant’s memorandum speak of red-stripe bags (a different subject-matter) of which the defendant had only 8,000, and these plaintiff refused to accept. Hence there is nothing in the signed memorandum which aids the previous writings.

There being no valid contract, the defendant was not liable to plaintiff, and the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event,

All concur.


text:
    Louis Steinweg, Resp’t, v. Abraham Biel, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    Negligence—Water leaking through floor.
    A person in possession of the floor of a building from which water leaks to a lower floor is not liable for the damage, when it is shown that the overflow was caused not by some negligence on his part, but by rata making a hole in the water pipe under the floor, during the night.
    Appeal from a judgment in favor of plaintiff,
    A. H. Berrick, for app’lt; Myers & Bronner, for resp’fe,
   McADAM, J.

The action was to recover damages caused to the plaintiffs property by water coming during the night from the fourth loft of premises No. 346 Canal street, in possession of the defendant, into thatoccupied by the defendant immediately below. The more fact of the overflow established no wrong nirainst the defendant. Spencer v. McManus, 82 Hun, 318; 63 St. Rep. 500; Clarke v. Anderson, 2 City Ct. R. 115, 229; Loeber v. Roberts, 42 St. Rep. 687; affirmed, 138 N. Y. 606; 51 St. Rep. 932; Bernhard v. Reeves (Walsh.) 33 Pac. 873. The plaintiff was bound to go further, and establish that the overflow was caused by some negligence on the part of the defendant; and this he failed to do. He undertook to show that the cause of the damage was a leak in a pump supplying the closet on defendant’s loft with water, but the preponderance of evidence establishes that the causo was a hole made in the pipe during the night by rats,—, a thing which according to the plumbers testimony, occasionally happens in such cases. The water rushed out of this hole (which was under the floor) with force, and as soon as the plumber soldered it the trouble practically censed,—a circumstance which makes defendant’s theory signiiicant, if not almost incontrovertible. The dripping from tile pump continued, but no damage came from it, as the quantity was .too small to do harm. The defendant inspected his premises before lie left them for the evening, and found nothing out of order. • It does not appear that he omitted any precaution that a reasonably discreet man would have adopted. There is certainly _ no evidence establishing negligence, the gravamen of the plaintiffs case. The damage evidently came from a cause unexpected, and not generally guarded against even by prudent persons. It follows that the judgment must be reversed, and a new trial granted, with costs to the appellant to abide the event. .... -

All concur.


text:
    Justin Ulmer, App’lt, v. Leopold Minister, as President, etc., Resp’t.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    Benevolent associations—Constitutions.
    A provision in the constitution of an unincorporated benevolent association, which is composed of the employes of a firm, that., should any member of tlie association be discharged “for any reason whatever” from the employment of the firm, his membership shall cease, is binding on all the members and will prevent a recovery by a member for sick benefits after his discharge, though he was discharged on account of liis sickness.
    Appeal from a judgment in favor of defendant. ■
    Edward Mandel, for app’lt; M. B. Blumenthal, for resp’t.
   McADAM, J.

It was conceded upon the trial that the plaintiff was a member in good standing of the unincorporated society known as the “L. Strauss & Sons Benevolent Association”; that lie became sick March 9, 1895, and was on that account discharged from the employment of L. Strauss & Sons on March 15, 1895. On the following day the defendant paid the plaintiff the sick benefits for the preceding week, but declined to make any further payments. The action is to recover benefits after such discharge and during liis entire illness. Section 15 of the defendant’s constitution and by-laws provides that: “Should any one, being a member of this association, be discharged from the employment of L. Strauss & Sons, for any reason whatever, or leave of his own accord, his membership shall forthwith cease.” The defendant being a voluntary, unincorporated association, composed of the employes of the firm after which it is named, and the plaintiff having subscribed to the conditions and by-laws on becoming a member, he is bound by them, however unreasonable they may seem. Elsas v. Alford, 1 City Ct. R. 123. Since the plaintiff bad ceased to be an employe of D. Strauss & Sons, and his membership in the association had thereby terminated, before the benefits for which the action was brought accrued, it follows that the defendant owed him nothing, and that the justice properly so decided. The judgment must therefore be affirmed, with costs.


text:
    Thomas J. Gleason, Resp’t, v. Charles W. Thom et al., App’lts.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb’ry 26, 1896.)

    Sale—Pkoof.
    In an action for the price of blank books ordered by defendants of plaintiff, to be made according to sample and to be covered with leather like a sample “Approved,1 and to “look as good,” in this regard, as the sample book, Which was covered with a different quality of leather, it was held that there was some evidence to support a verdict for plaintiff, though the evidence tended strougly to show that the hooks tendered were quite inferior to said sample, and that the court did not err in refusing a nonsuit at the trial, . , .
    Appeal from a judgment affirmíñg'a judgment entered on a verdict in favor of plaintiff.
    Julien T. Davies and Brainard Tolies, for app’lts; L. J. Morrison, for resp’t.
   BISCHOFF, J.

This action was brought to recover the agreed price of goods manufactured under a contract between the parties, the defendants having refused acceptance, claiming nonperformance upon the plaintiff’s part. The contract was entered into in June, 1893, and called for the furnishing of 1.000 blank books, to be made according to sample, and delivered “as soon as possible, which will be about August 1st.” These books were to be covered with leather of a kind according to a sample which: defendants had marked “Approved,” and were to “look as good”| in this regard as the sample book which was covered with a different quality of leather. About the 10th of August delivery was made of 200 books, which were rejected by the defendants, principally, it appears, because the covers were not satisfactory, and also because the pages were not numbered. This last defect the plaintiff offered to remedy at once, but the defendants still refused to accept the delivery. Üp to this date no question as to the time of performance had - been raised, and the plaintiff’s readiness to correct the defect of paging before the time for performance had expired, according to the parties understanding of what that period was, could be taken as a substantial performance so far. Miller v. Benjamin, 51 St. Rep. 750. What attitude was taken as to the time of delivery could have been inferred from the defendant’s letter of August 22d in which they said :

“We want you to send for the books, as we told you and Mr. Wakeman both, as we will not take the books unless as agreed, and up to sample.”

It was thus inferable that the defendants had looked upon the time of performance, at that date, as unexpired, and since they then would not accept the books as tendered, the plaintiff could consider the contract broken, cease further delivery, and recover damages if he could maintain his position that the books were according to sample and “ looked as good ” as the model in the way of binding. Soltau v. Vulcanite Co., 12 Misc. Rep. 131; 66 St. Rep. 734. There was evidence that the covers of these books were actually of the same leather as the sample which had been marked “ Approved ” by the defendants, and whether or not the appearance of the goods was as pleasing as that of the sample book, the court and jury below had an opportunity to discover, since there was an ocular comparison at the trial.

The evidence contained in the record tends very strongly to show that the books furnished were quite inferior to the sample in appearance, this being caused by the effect of the binding process upon the cheaper leather; but there is some contradiction as to this in the plaintiff’s denial that he would call the sample book better than his own production. Our conclusion must be that there was some evidence in support' of the plaintiff’s cause of action, and that the court did not err in refusing a nonsuit at the trial. This is as far as we may look into the facts of the case (Claflin v. N. Y. Standard Watch Co., 7 Misc. Rep. 669; 58 St. Rep. 380), whatever may be our view of the "justice of the verdict as based upon the preponderance of proof.

Judgment affirmed, with costs,

All concur.


text:
    Morris Schoenholtz, Resp’t, v. Third Avenue Railroad Company, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    Trial—Charge—Assumption of facts.
    A request to charge, which assumes a fact that it is for the jury to determine, is improper.
    Appeal from a judgment of the general term, affirming a judgment of the trial term in favor of plaintiff
    Hoadly, Lauterbach & Johnson (H. L. Scheuerman, of counsel), for app’lt; M. Strassman; for resp’t
   McADAM, J.

The action was to recover for injuries to the plaintiff and to a wagon and the property contained therein, sustained through a collision between the wagon, which the plaintiff was driving, and one of defendant’s cable cars, at Third avenue and Fifty-Third street. The trial judge, in his charge, instructed the jury that before the plaintiff could recover he was bound to satisfy them by a preponderance of proof that he was entirely free from fault himself, and that the occurence was the result solely of the negligence of the defendant or its servants, and left these questions to them on all the evidence for their determination. The charge itself is unobjectionable, and the grounds urged by the defendant for reversal are based almost entirely on charges made at the request of the plaintiff’s counsel, who undertook to improve on what the trial judge had said by making twenty-eight separate requests; defendant’s counsel modestly contenting himself with seventeen. Ten pages of the printed record are devoted to these instructions, which need not be gone over in detail. It is sufficient to say that the plaintiff insisted on putting specific requests, incomplete in themselves, not being properly connected, or made dependent on other facts, and in this way the jury were directed in a fragmentary manner as to what constituted negligence and contributory negligence, and what did not constitute such want of care in this particular instance. The requests charged which áre particularly objectionable follow :

“ Eighteenth. If the jury believe the gripman failed to give the plaintiff a reasonable opportunity to cross the tracks, and ran him down in consequence thereof, then the plaintiff is entitled to recover, provided he himself did not contribute to the negligence.”

This assumes that the gripman saw the plaintiff in time to avoid him, and, instead of avoiding him, ran him down. A request to charge is improper which assumes a fact that it is for the j ury to determine.

“ Twenty-First. If the jury believe that the gripman of the car saw the wagon on the track while in the act of crossing it, it was the gripman’s duty to keep his car under control, and to allow the wagon to cross in safety.”

The propriety of this request depends upon whether the jury believed the plaintiff's version of the collision; and irrespective of that, it implies negligence on the part of the gripman.

“Twenty Fourth. The plaintiff may recover notwithstanding his own negligence exposed him. to the risk or injury, if the grip-man, after becoming aware of the plaintiff’s danger, failed to use ordinary care in preventing the collision.”

This might be so if the gripman, on observing the plaintiff’s danger, could have avoided the collision by the use of ordinary cave. The last impression which was made upon the jury by these directions was misleading, and constitutes error. Nicholson v. Connor, 9 Daly, at page 278.

It was said on the argument that the stenographer was more liberal in allowing the defendant exceptions than he ought to have been ; but that is matter which should have been settled in in the court below, and with which we have nothing to do. We must deal with the exceptions found upon the record returned to us for review. 1

It follows that the judgments of the trial and general terms must be reversed, and a new trial ordered, with costs to the appellant to abide the event. •

All concur.


text:
    Marie S. De L. Wyse, Ayp’lt, v. Walter P. Russell et al., Resp’ts.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb'ry 26, 1896.)

    Landlord and tenant—Eviction.
    Where a lessor, before the expiration of the term, of the lease, makes a violent verbal and physical attack on one of the lessees, and the lessees • then give nolice of their intention to terminate the tenancy, and the lessor expresses her determination that they “ mast go” and ilie premises are abandoned at the end of the month in which the notice was given, up to which time the tent had been paid in advance, there is a constructive eviction of the lessees by the lessor.
    Appeal from a judgment in favor of plaintiff,
    R H. Ohanning, for app’lt; Thomas 0. O’Sullivan, Robert D. Petty and Gilbert D. Lamb, for resp’ts.
   BISCHOFF, J.

The defendants are husband and wife, and, tegether, occupied rooms in the plaintiff’s house, under a written lease; but, having left the premises prior to its expiration, this action was brought to recover the rent claimed to have thereafter accrued. The defenses litigated were eviction and a cancellation of the contract, and the justice below found in favor of the defendants. The record satisfies us that this conclusion was not incorrect, since, while there was the customary conflict of evidence as to the main facts, ample grounds for finding a constructive eviction appeared. It appears, according to the defendants’ evidence, which the justice was authorized to credit, that the plaintiff, who resided continuously upon the premises, was a person of hasty temper, prying and officious, and rendered the condition of tenancy, through unreasonable demands and repeated discourtesy, undesirable, it" not unbearable. The culmination of the difficulties was reached during the last month of the defendants’ occupancy, when a violent attack, not only verbal but physical, was made by the plaintiff upon Mr. Bussell. Thereupon notice was given of the defendants’ election to terminate the tenancy. The plaintiff expressed her determination that they “ must go,” and the premises were abandoned at the end of that month, up to which time rent had been paid in advance. Upon this state of facts, if there were not a good defense of constructive eviction, through the lessor’s breach of the covenant of quiet and peaceable enjoyment, that covenant might have been omitted from the lease in question. The case falls most fittingly within the ruling of Cohen v. Dupont, 1 Sandf. 268, which was, indeed, a case not so strong for the tenant as the present, since there no actual violence was indulged in by the landlord, a series of minor annoyances alone being held to constitute an eviction. See, also, Sully v. Schmitt, 147 N. Y. 248; 69 St. Rep. 527.

Judgment affirmed, with costs.


text:
    John Stewart, Resp’t, v. Simon Arendt, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 26, 1896.)

    Contract—Interpretioh.
    Where the parties have definitely particularized the terms of the contract, an apparently inconsistent general statement in the same regard must yield. So held, where the general provision of a contract for the sale of land states the consideration to he a certain sum, and the terms of the contract, which, in explanation of the method of payment, are expressly definite and particular, show the consideration to be greater than such sum.
    Appeal from a judgment in favor of plaintiff.
    Daniel P. Mahony, for app’lt; Howard A. Sperry, for resp’fc.
   BISCHOFF, J.

In form, the action is for the recovery of money paid under a mutual mistake of the parties as to the requirements of a contract for the exchange of real property. The claim involved no question touching a reformation of the contract, and the action may perhaps be taken asoné for money had and received, since the fact of any mutual mistake was certainly refuted by the defendant. For argument, then, we so view the canse of action, bearing in mind the informal method of pleading and procedure obtaining in thedistrict courts. The plaintiff was awarded by the court below the difference between $108.000 and $108,235, on account of the transaction in question; the contract in evidence showing that the first-named sum was expressed as the consideration, but was to be payable in different steps, as thereafter expressly provided. These provisions called for an exchange of properties “ at an estimated value,” and the reciprocal assumption of certain mortgages, together with the payment of interest and taxes upon the properties respectively exchanged. That the difference between these expenses and the amount stated as the consideration was represented by the amount in suit, is not in controversy ; but that, under the exact terms of the contract, this difference was chargeable against the plaintiff, is also apparent, unless the general statement that the consideration was $108,000 should be held to control. Treating the question as one of law, however, as we should, in view of the contravention of the possible mutual mistake, and upon the statement made by the justice below that any evidence contradicting the contract would be disregarded, it appears that the issue is actually whether the general provision of the contract that the consideration was $108,000 should overweigh those terms which, in explanation of the method of payment, were expressly definite and particular; and it is elementary that, where the parties have definitely particularized the terms of the contract, an apparently inconsistent general statement in the same regard must yield. Elmendorf v. Lansing, 5 Cow. 468. There was no question of fraud in the case, and, failing any mutual mistake, the question was merely as to the proper interpretation of the contract, upon general principles, aside from any inquiry into the jurisdiction of the court below to entertain the action.

Judgment reversed, with costs. A new trial is not ordered, since, upon the contract in evidence, recovery by the plaintiff in this action is impossible.


text:
    John A Eckert, Resp’t, v. Percy W. Clark, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 26, 1896.)

    1 Estoppel—Pleading.
    Where, in the action at law for money had and received, the defendant admits that he has in his possession a specified sum for payment to plaintiff, he cannot thereafter defeat plaintiff’s recovery by claiming want of jurisdiction, on the ground that the action involves partnership accounts, though the fund in his possession represents plaintiff’s interest in a partnership between the parties and third persons, who are strangers to the record.
    3. Same.
    Where the defendant has been sued as an individual, upon a personal liability, and has chosen to admit the claim for the purpose of receiving some expected benefit from a counterclaim, he cannot recede from his position and point to a supposed demand which strangers to the record may make upon him, touching the fund.
    Appeal from a . judgment in favor of plaintif£

      John M. Ward, for app’lt; Spronell, Hanner & Spronnell, lor resp’t.
   BISCHOFF, J.

The action was for money had and received to the use of the plaintiff, the claim being admitted by stipulation in the record as follows:

“ It is stipulated herein, and the defendant admits, that he has received to the use of this plaintiff the sum of $82.50, which the defendant received on or about the 1st day of February, 1895, and which he now holds for the plaintiff herein : being plaintiff’s share in the interest of defendant in the firm of Flyer & Clark for the month of January, 1895.”

The issue litigated was solely as to the defendant’s counterclaim for services. Upon the first trial of this action, judgment was rendered in favor of the defendant for the excess of the counterclaim over and above the plaintiff’s admitted cause of action for money had and received. This judgment was reversed by the court of common pleas, the ground of the decision being that, by the terms of the copartnership agreement between these parties and two other persons, it appeared that the services for which the counterclaim was made were performed as part of the defendant’s duties, and that, therefore, the claim could not prevail in the absence of a special agreement. Eckert v. Clark, 14 Misc. Rep. 18; . Upon the second trial no further evidence was brought out, the parties simply submitting the minutes of the first trial, and the present record is the same as that reviewed by the court of common pleas. The justice below, following the decision of the appellate court, rendered judgment for the plaintiff upon the admitted demand; and the defendant now claims that the court was without jurisdiction over the cause of action, since it arose out of a partnership transaction,—the basis of the contention being that the accounts were involved, and that the action could not be maintained at law. It appears, however, from the admission of libility in-evidence, that the claim in suit consisted of liquidated profits received by the defendant for payment to the plaintiff, and that payment had not been made. Demand and refusal were also verbally admitted. The question, therefore, had no bearing upon the partnership accounts, was solely one of an admitted legal liability as between these parties, and whether they were partners or hot' is quite immaterial. First Nat. Bk. of Champlain v. Wood, 128 N. Y. 35; 38 St. Rep. 422; Matter of Bingham, 82 Hun, 51; 63 St. Rep. 367; Bank of British North America v. Delafield, 126 N. Y. 410; 416; 37 St. Rep. 864. So, too, the question as to the rights of the other partners is not in the case. The defendant, having been sued as an individual, upon a personal liability, and having chosen to admit the claim for the purpose of receiving some expected benefit from his counterclaim, cannot now recede from his position, and point to a supposed demand which strangers to the record might make upon him, touching this fund. The defendant’s, contention that the judgment cannot bind the partnership in this action at law is undoubted ly correct, but it is sufficient that it binds him upon his admitted individual promise to pay the sum received to the plaintiff.

The judgment should be affirmed, with costs.