text:
    Leroy Rundell, Appl’t, v. George H. Downing, as ex’r, etc., et al, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886).
    1 Will — Probate contested — Determination op surrogate on conflicting evidence — In what case sustained on appeal.
    Probate of the will of the testator was objected to by the appellants on the ground that testator was of unsound mind, and not capable of making a will, and the instrument presented for probate was not his will.
    The will was dated August 24th, 1883, testator died the following January, at,the age of 82 or 83 years. At two different times, namely, about harvest time 1882 and in the latter part of May, 1883, deceased had had two attacks of illness, spoken of by his family as paralysis, after which his physical condition was much impaired, his articulation indistinct, and occasionally he failed to recognize acquaintances, either from failure of sight or lack of recollection, and his mind was in all probability to some extent impaired. Held, That if the only inquiry in the case were the abstract question whether at the time of the execution of the instrument propounded as his, will, the deceased had sufficient mental capacity to comprehend its provisions, upon their being fully made known to him, the conclusion reached by the surrogate upon conflicting testimony, admitting it to probate as the will of the deceased, might be regarded as satisfactory.
    2 Same — Evidence op unsound mind op testator — Burden op proof THROWN ON PROPONENTS.

      Held, That the evidence being such as to raise a serious doubt as to whether the provisions of the will were so made known to the deceased, as that in his enfeebled and impaired condition of body and intellect, he comprehended their import, the ordinary presumptions flowing from formal execution did not obtain, and that the burden of proof was thrown upon the proponents of the will, to show clearly that the testator fully understood the nature and consequences of his testamentary act.
    Appeal from a decree of tbe surrogate of Cayuga county, admitting to probate an instrument purporting to be tbe last will and testament of Lockwood Rundall, deceased.

      Howland & Wheeler for appl’ts; Hull Greenfield, for resp’ts.
   Smith, P. J.

Of tbe objections filed by the appellants to tbe probate of tbe will, those relied on at tbe hearing were, that tbe testator was of unsound mind and not capable of making a will, and that tbe instrument presented for probate was not his will. Tbe same objections are insisted upon here.

Tbe testimony bearing upon the condition of tbe testator’s mind at the time of the execution of the will is conflicting. The will is dated tbe 24th of August, 1883. The testator died in the following January, aged 82 or 83 years. He was a farmer by occupation; his family consisted of his wife, who was 78 years of age, his son Nathaniel, aged about twenty-five years, Avho was married and lived with the deceased on the farm of the latter, in Genoa, Cayuga county, and worked it on shares, his son William, a widower, who, Avith his son Fred, also lived Avith the testator, his sons David and Leroy, the former of whom lived on a farm in Genoa, and the other in the State of Iowa, and a daughter, Elizabeth Whitman, living in Moravia.

The deceased had had two attacks of illness, which were spoken of by members of the family as shocks of paralysis, one about harvest time in 1882, the other in the latter part of May, 1883.

The testimony leaves no room to doubt that after those attacks, the physical condition of the testator was much enfeebled and impaired, so that he walked with difficulty ; his articulation was imperfect and indistinct, at times some of the features of his face were distorted, he was unable to feed himself at table, and. occasionally he failed to recognize his acquaintances, either from failure of sight or lack of recollection. That his mind was also affected to some extent, can hardly be questioned.

The theory of the contestants was that his mind was so far impaired by the same or other causes, that in August, 1883, he was incapable of making a will. That theory was combated by the proponents of the will, and upon that issue much testimony was introduced by each party. To that testimony we do not think it necessary more particularly to advert. If the sole inquiry in the case were the abstract question, whether at the time of the execution of the instrument propounded as his will, the deceased had sufficient mental capacity to comprehend its provisions, upon their being fully and distinctly made known to him, we would not be prepared to say that the conclusion 'reached'by the surrogate is not a satisfactory solution of the problem presented by the mass of conflicting testimony which he was called upon to weigh.

' But there are several circumstances in the case, which raise a serious doubt iii our minds, as to whether the provisions of the will were so made known to the deceased, as that in his enfeebled and impaired condition of body and intellect, he • comprehended their import. Among those circumstances are the following:

1. The will gives nothing to the wife of the testator, and she is not mentioned in it. He and his wife had lived together nearly sixty years, in harmony, for aught that appears, and were so living when the will was executed. What makes the omission of her name the more remarkable is, that in December, 1882, the deceased made a will, in which he gave to his wife'the use of all his property, during her life. She had no property of her own except such as the law gives her as his widow.

2. The will was not executed at the house of the testator, but he was carried, for the purpose, by his son Nathaniel, to the residence of Mr. Downing, the executor named in the will, about a mile from testator’s residence, and there the will was drawn by Mr. Greenfield, who had been procured by Mr. Downing to come there to meet the deceased. Neither the widow nor any member of tbe testator’s family, except Nathaniel and his wife, who are the principal legatees, was informed of the purpose for which the testator was taken to Downing’s house.

8. There is no evidence that Mr.'Greenfield, the draftsman of the will, received any instructions from the testator as to how the will should be drawn, and none that the will was read over by the testator, or to him, or that he was in any manner made acquainted with its contents. The subscribing witnesses, and the only witnesses who testified as to what took place on that occasion, were Mr. Greenfield and Mrs. Downing, the wife of the executor. Mrs. Downing testified that no part of the will was read over to the testator while she was there, or in her hearing. Mr. Greenfield did not testify that the will or any part of it was read to or by the testator, or that its contents were made known to him. On the contrary, he testified that the testator was unable to write his name, saying that he had not his glasses with him, and could not see very well; from which it is to be inferred that he could not see to read writing. The witness also testified that he saw no paper, memorandum or letter, other than the will, there, at the time, showing that he had no written. instructions to guide him in drawing the will. He did not testify that the testator told him to draw the will; on the contrary, while he stated, in general terms, that the testator had something to say about his wife, Nathaniel and his wife, William his son, and Frederick his grandson, the witness did not state what the testator said about either of them, and subsequently he testified that, on reflection, he did not remember whether anything was said about Ms son, Nathaniel. Yet the paper drawn by the witness makes Nathaniel and his wife the principal legatees. The witness used the expression, “ He,” the testator, “ did not talk about his property aside from the mere disposition of it, that I know of; nobody talked about Ms property in his or my presence except himself, and he only in regard to the disposition of it in his will; ” but aside from tMs allusion to the subject there is no statement in the testimony of the witness that the testator said anything about the disposition of his property, and absolutely none as to what he said, if anything, on that subject.

In view of all the circumstances disclosed by the evidence, we are of the opinion that the ordinary presumptions flowing from the fact of formal execution do not obtain, and that the burden is thrown upon the proponents of the will, to show clearly that the testator fully understood the nature and consequences of his testamentary act. (Wier v. Fitzgerald, 2 Bradf., Sur. R., 69; Mowry v. Silber, id., 133; Van Pelt v. Van Pelt, 30 Barb., 134; In re Will of Clausmann, 24 N. Y., W. Dig., 226.)

That burden has not been satisfactorily met. We therefore reverse the decree appealed from, and direct the trial, by a jury, of the material questions of fact, arising upon the issues between the parties, namely, whether at the time of the alleged execution of the instrument proposed for probate, the testator was mentally capable of making a will, whether he was free from undue influence, and whether he was fully aware of the contents of said instrument and comprehended its effect. The trial to be had at a circuit court in the County of Cayuga. The appellants to have the costs of this appeal, to be paid out of the estate, in case they finally succeed in opposing probate of said instrument.

Barkek, Haight and Bradley, JJ., concur..

So ordered.


source: Caselaw Access Project

author: Smith, P. J.

license: Public Domain

text:
    Edward A. Nealon, Resp’t, v. The Grand Trunk Railway of Canada, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)

      1 C.ommon cabbieb — Negligence — Liability of forwarding agent DOES NOT EXTEND BEYOND ITS OWN LINE.
    The complaint alleged that defendant was a railroad corporation engaged as a common carrier in the transportation of passengers and their baggage for hire oyer its railway from Toronto to Buffalo; that about May 6th, 1884, it received into its cars plaintiff and his wife and their trunk with its contents to be carried from T. to B., and that by the negligence of defendant and its servants the trunk and contents were lost. It appeared on the trial that defendant’s road extended only as far as Suspension Bridge; that at that point it connects with the N. Y. E. & W. R. R., over which defendant sells tickets to B. as agent of the latter company, and that the fact was stated on the tickets purchased by plaintiff. Held, That defendant in contracting to carry the trunk beyond its own road, acted merely as the agent of the connecting company,and of that fact plaintiff was advised by the notification printed on his ticket. That he was also advised thereby that the baggageman in undertaking that his trunk should be carried over the E. road, from S. B. to B. was acting merely within the authority which the Canada Company possessed as agent of the E. company, and that defendant’s liability was discharged when it delivered the trunk at the station of the E. company at S. B.
    2 Appeal — New trial — Case must be treated on appeal as it was on THE TRIAL.
    Defendant’s motion for a new trial having been denied by the Special Term on the ground that whether or not the baggageman had authority to contract to deliver the trunk at B., his statement to plaintiff that it was checked for that point, if unauthorized, misled plaintiff, and was an act of negligence which was imputable to defendant. This point not having been litigated or suggested at the trial, Held, That it could not be considered on appeal. The case must be treated on appeal as it was treated at the trial.
    Appeal from an order oftbe Erie special term denying defendant’s motion for a new trial on a case.

      N. Morey, for applt., P. W. Lawler, for respt.
   Smith, P. J.

The complaint alleges, in substance, that the defendant is a railroad corporation engaged as a common carrier in the transportation ■ of passengers and their baggage, for hire, over its railway from Toronto to Buffalo; that about the-6th of May, 1884, it received into its cars the plaintiff and his wife and their trunk containing wearing apparel, etc., to be carried from Toronto to Buffalo; and that by the negligence of the defendant and its servants, the trunk with its contents, “was' lost.

The plaintiff testified that on 6th of May,' 1884, he presented said trunk at defendant’s baggage room in Toronto, producing’ his passage tickets-at the same time, and asked the baggage master or a person acting in that capacity, to check the trunk to Buffalo; that the baggage master replied “ All right.” and gave him a check marked “ Gr. T. R’way, 28020 ; that when plaintiff arrived at Buffalo, he demanded his trunk at the depot' and did not receive it, and that some time after the commencement of the suit he saw the trunk at the Erie depot in Buffalo, but did hot then demand it.

It appeared at the trial that the defendant’s road extends no further than to Suspension Bridge: that at that point it connects with the New York, Erie and Western Railway, over which road the defendant sells tickets to Buffalo as the agent of the Erie company, and that fact was stated on the tickets purchased by the plaintiff. "

The testimony given by the plaintiff as to what was said to him by the baggage man when the trunk was checked -was controverted, and evidence was given on the' part of the defendant tending to show" that the person who had the trunk .checked was not the plaintiff, but his father-in-law, Mr. Mulquinn; that the baggage master checked" it for Suspension Bridge, and that he told Mulquinn that it was checked' for that point and he must look after it there and pass the customs inspection. It was also shown that by an act of Congress, all baggage of passengers imported into the United States from any contiguous, foreign country, with' certain exceptions which do not affect this case,' is required to be unladen in the presence of, and inspected by, a customs.officer, at the first port of entry-or customhouse in the U. 'S. where the same shall arrive, and the owner or person having such luggage' in charge may be required by the’officer to open the same or deliver to him the proper key, for the purpose of such, inspection. - ’ ' - ' -i '

. The trial judge left it to the'jury to find whether the defendant contracted with the plaintiff to deliver the trunk at Buffalo ; and he instructed them that if the defendant did so' contract, the plaintiff was entitled to recover, otherwise, not. ;

It appears that the person who checked the trunk was an- assistant baggage-master, having the checks of the company in his possession, and that it was his business to check baggage. The plaintiff, dealing with him, had the right to infer that he possessed the powers usually assigned to the position which'he'occupied. (Isaacson v. N. Y. C. H. R. R. R. Co., 94 N. Y., 278.)

But tbe defendant, in contracting to carry the trunk beyond the terminus of its own road, acted merely as the agent of the connecting company, and of that fact the plaintiff was advised, at the time, by the notification printed upon his ticket, which he had purchased and had in his possession several days before he delivered his trunk at the defendant’s station.. He was also advised thereby, that the baggage man in undertaking that his trunk should be carried over the Erie road from Suspension Bridge tojluffalo, was acting merely within the authority which the Canada company possessed as the agent of the Erie company. In other words, the contract made in that regard, was made by the Erie company and not by the defendant, and the defendant’s liability was discharged when it delivered the trunk at the ¡station of the Erie company at Suspension Bridge.

The motion for a new trial was denied at special term on the ground that whether or not the baggage man had authority to contract to deliver the trunk at Buffalo, his statement to the plaintiff that it was checked for that point, if unauthorized, misled the plaintiff and was an act of negligence which is imputable to the defendant; that proposition does not appear to have been .litigated or suggested at the trial; on the contrary, the judge instructed the jury, as has been said, that if the defendant did not contract to deliver the.trunk at Buffalo, the plaintiff can not recover. The case must be treated on appeal, as it was treated :atthetriaL (Weeks v. R. R. Co., 72 N. Y., 50, 55; McKechnie v. Ward, 58 N. Y., 541, 546.)

Order reversed, and a new trial ordered; costs to abide event.

BarKee, and Bradley, J J., concur; Haight, J., not sit-ling.


text:
    Edward T. Stevens, as Adm’r, etc., Resp’t, v. John S. Seibold, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    :1., Evidence — Handweiting — What knowledge wild bender a witness COMPETENT TO TESTIFY AS TO.
    Plaintiff’s intestate, on June 19th, 1860, recovered judgment against this .defendant; in an action on the judgment, defendant pleaded the Statute of Limitations; and the plaintiff relied on letters alleged to have been written ;by defendant, sufficient to take the case out of the Statute. A witness ■called by the plaintiff testified that he had seen defendant’s handwriting; ■two papers were shown him purporting to be letters signed by defendant ■and addressed to plaintiff’s intestate; he testified in substance that he ■thought he knew defendant’s signature; should judge the signatures were his; liad not seen his signature made in a few years; was familiar with it four or ■five years ago; wouldn’t swear positively it was his original signature or a copy, it looked like his; it might be some one else’s. Beld, that these statements were- sufficient to render him competent to testify, provided the signature ■with which he was formerly familiar was genuine. There being no testimony on that point except the general statement that he was familiar with defendant’s signature at that time, it might he that the evidence was sufficient to warrant the inference that the signature referred to by the witness was known by him to have been the genuine signature of defendant, and as the competency of the witness was for the court and hot the jury, the ruling might be upheld on that ground. That the omission of defendant to cross-examine the witness on his statements, might be regarded as strengthening the inference as to the genuineness of the signature.
    2. Statute op Limitations — Acknowledgment op debt barred by— What necessaky to bevive debt.
    The letters were addressed to plaintiff’s intestate and referred to the claim in suit, but contained no express promise to pay the debt. By one, however, defendant acknowledged himself to be in debt to plaintiff’s interstate, and said that whenever it might be possible he should relieve himsélf of such debt. Held, that an acknowledgment was not enough to renew or continue the debt, unless it were evidence from which a promise to pay might be inferred, and to raise that inference, the acknowledgment must be unconditional, and one which implied a willingness to pay. That at most a conditional promise to pay when defendant was able might be inferred.
    3. Same — Conditional pbomise to pay — Happening op condition, a QUESTION POB JURY.

    Some two years after the date of the letter, defendant’s mother died, leaving a will by which a part of her estate was to be divided among her five children equally; that the executor paid defendant’s share to his wife on being notified that it belonged to her. Held, that it was a question for the jury whether a promise could be implied, and if such promise was conditional, whether the condition had happened.
    4. Vebdict — When eebob to direct.
    At the close of plaintiff’s evidence defendant not offering any proof, the court directed a verdict for plaintiff. Held, that this was error, that it was for the jury to say, under proper instructions, whether the slight evidence as to handwriting satisfied them that the letters were written by defendant and whether the proof established a promise to pay which revived or continued the debt:
    Appeal from a judgment entered on a yerdict ordered by the court at the Erie circuit.

      Frank C. Ferguson, for appl’t; Rdward O. Randall, for resp’t.
   Smith, P. J.

Action upon a judgment against the defendant recovered in this court by George Smith, the plaintiff’s intestate, on the 19th of June, 1860. The defendant pleaded the statute of limitations, and the plaintiff relied upon certain letters, alleged to have been written by the defendant, as containing a promise or acknowledgment sufficient to take the case out of the statute

A question is raised as to the sufficiency of the evidence relied upon by the plaintiff to show that the letters and the signatures thereto were in the handwriting of the defendant. William H. Seibold, called as a witness for the plaintiff, testified that he was a brother of the defendant, and had seen more or less of his handwriting. Two papers were then shown to the witness, purporting to be letters signed by the defendant, and addressed to the plaintiff’s intestate, one dated “ Newark, N. Y., May 8th, 1877, the other, “ Buffalo, August 10, 1883.” The witness tes-tifie d, in substance,'that be thought he knew his brother’s signature ; should judge the signatures were his; had not seen his signature made in a few years; was familiar with- it four or five years ago ; wouldn’t swear positively whether the one produced was his original signature or a copy; it looked like his; that is all he could swear ; -it might be some one else’s for all he knew. The defendant’s cqunsel objected to the proof of the hand writ-, ihg,' on the ground that the witness had not. shown himself competent to speak on the. question. . The objection was overruled, the defendant’s counsel: excepted, and the letters were read in evidence. ' :

The exception brings up the question whether the witness was shown to have the proper knowledge of the defendant’s handwriting to be permitted to express his opinion or belief in regard to the genuineness of the writing in question. That a witness must, in some way, have acquired a knowledge of .the ; general character of the party’s handwriting, before he can he qualified to-testify on-that-subject/is undisputed. If he has seen the party write, even but once, and then only his name, the .proof, though it may be very light, is admissible. (Gr. Ev., § 577.) If he has not seen the party write, he must have seen genuine specimens of his handwriting; and the 'fact that they were genuine, must be proved. It is not enough that they puN port to come 'from the person whose handwriting is in question. (Cunningham v. Hudson River Bank, 21 Wend., 557.) The authenticity of the specimens may be established by presumptive', as well as direct' evidence, as; when letters are directed to a particular person on business, and answers are received in due coinke, a’fair inference arises that the ans wers" were' written, -by the person from whom they purport .to come. . ■ : - t

In-, the' present 'cáse,', the ‘witness did not testify, .in:express terms, that he had ever seen the defendant write. He stated, hbwévér,- that hé was familiar' with the - defendant’s' signature, four or five years before-the trial, and .that: statement, was suffi-o Gient to render him competent to testify, provided the signature with .which he was formerly familiar was . genuine.. Upon that* point there is no evidence whatever, except the. general state-ment of the witness, that .he was familiar .with the. defendant’s', signature at that time. It may be that the evidence .was suffi-5 dent to warrant-the",inference that thé signature referred to by the witness as'having been familiar to him was'known by him: to be the genuine signature of the defendant; .and, as the ques-.. tion.of the competency .of the witness was for the court and not ■ for the- jury to decide, the . ruling may .be upheld on that ground. It was competent for the defendants counsel.to cross-. ex'ainine the witness as to the grounds of his statement that'the: signature with which he was formerly familiar, .was that .of the -defendant, and his omission to do so/perhaps strengthened the inference above suggested. On tbe whole, we think the ’trial court properly allowed the evidence of handwriting- to go to’ the jury to be weighed by them. ’ '

The effect of the letters is to be considered. The evidence fairly establishes that they were addressed to the plaintiff’s intestate, and that they refer to the claim in suit, but they contain no express promise to pay the debt. The nearest approach to such a promise is to be found in the following words contained in the first letter, to wit: “ It is one of my daily burthens that I owe you and have contributed to your life’s difficulties, and, no matter when or how long it may be, whenever it shall be possible, I shall certainly relieve myself of such a debt.” At most, that was but evidence from- which a conditional promise to pay when the defendant was able, might be inferred. In regard to the defendant’s subsequent ability to pay, it appeared that some two years after the date of the letter, the mother of the. defendant died, leaving a will by which a part of her estate was to be divided among her five children equally;. that the amount divided was “something like 5,000 or 6,000 dollars; ” and-that .the executor paid defendant’s share tp his wife' on being notified that it belonged to her. Whether the transfer of the bequest to the wife was a gift from her husband, or in payment of a debt, legal or equitable, which he was owing her, does not appear. !

That the letters acknowledge an indebtedness from the writer to the person to whom they are addressed, is apparent from' the reading of them. But an acknowledgment is not enough to renew or continue the debt, unless it is evidence from which a promise to pay may be inferred. And to‘raise, that inference, the acknowledgment must be unconditional, and one which implies a willingness to pay. (Bloodgood v. Bruen, 4 Seld., 362.) The first letter precedes the words already quoted, with a very earnest declaration of the writer’s destitution and his inability tp pay. In the second, the writer speaks of his “ hard struggle to live ” and support his family, and of his hope to be sometime “free from all obligations,” including that of the intestate,-but he expressly declines to make any promise or engagement till he sees “ a fair possibility ” of meeting his debts. It is apparent from the letters that they were written in reply to letters from the intestate, but the latter were not put in evidence. The rules above stated in respect to an acknowledgment are applicable to an acknowledgment in writing, under the statute. . (Code C. P., § 395.) It was, therefore, a question upon all the evidence, including that contained in the letters, whether a promise to pay could be implied, and if such promise was conditional, whether the condition had happened. Those were questions for the jury. ■ ■ • • ' - - - -.

This leads us to what we conceive to be a vital error in' the case. At tbe close of the plaintiff’s evidence, the defendant not offering any proof, the court, at the request of the plaintiff’s counsel, and against the exception of the defendant’s counsel, directed a verdict for the plaintiff. In that, we think the court erred. It was for the jury to say, under proper instructions, first, whether the slight evidence as to handwriting satisfied them that the letters were written by the defendant, and next, whether the proof established a promise to pay, which revived or continued the debt. The defendant did not waive his right to have those questions left to the jury.

We think the judgment should be reversed and a new trial ordered, costs to abide the event.

Barker, Haight and Bradley, JJ., concur.

So ordered.


author: Bradley, J.

text:
    First National Bank of Union Mills, Appl’t, v. Judson H. Clark, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1. Bills and Notes — Certificate of Deposit — Implied obligation to pay.
    A certificate of deposit given by tbe defendant was as follows: “Deposited by said W. with J. H. C., Banker, Scio, N. Y., Dec. 5th, 1882. Discount $34,12.50, F. M. B.; assuming that F. M. B. represented the defendant in making the certificate it was held, that the instrument was prima facie evidence, that the amount stated in it was received by the defendant as a deposit, and therefore the certificate furnished the evidence of an implied obligation of the defendant to pay the amount to the depositors and those succeeding to their rights.
    2. Same — Transfer of.
    A transfer of such a certificate would have the effect to transfer all the right possessed by the depositors against the defendant in respect to the deposit. No formal words of transfer are necessary, it may be inferred from the evidence.
    3. Deposit — Check — Equitable assignment.
    A check drawn upon a bank when the drawer has a deposit, but not by its terms drawn on a particular fund, does not operate as an equitable assignment of the deposit.
    Appeal from judgment entered on nonsuit at Allegany circuit.
    The defendant was a private or individual banker at Scio, N. y. The evidence tends to prove that on the 5th day of December, 1882, Sliney and Whelan endorsed and presented a note made by Knox Bros, for $8,500, to the defendant’s bank for discount, and that it was there discounted with the oral understanding that the proceeds should not be paid until the 15th of the month. . And thereupon the defer dant’s cashier gave to Sliney and Whelan a deposit check or certificate in the following form: ,

      “ Deposited By Sliney & Wbelan with Judson H. Clark, Banker,
    Scio, N. Y., Dec. 5th, 1882. Discount $3,412,50.
    F. M. Babcock.”
    That on the same day this deposit check was delivered by Sliney and Whelan, to the plaintiff at its bank, and with it a check drawn by them upon the defendant, payable to their own order, ten days after its date, and endorsed by them for $3,412, was also delivered to the plaintiff; that the plaintiff then advanced, or paid to them that amount, less interest for thirteen days; that on the 7th December the two checks, were enclosed by the plaintiff to the defendant in letter, asking return in New York exchange, and on the 19th they were returned by the defendant to the plaintiff with the statement that there “ were no funds to meet it.” And that afterwards the defendant refused on presentation of the checks, and demand to pay the amount to the plaintiff. It also appeared that after the deposit check was made, and prior to the 15th December, Knox Bros, and Sliney and Whelan failed, and made general assignments for the benefit of their creditors.
    The defendant’s motion for nonsuit on the ground that the plaintiff had failed to show an assignment of the claim from Sliney and Whelan to it was granted, and the plaintiff excepted.

      Ansley & Davie, for appl’t; Rufus Scott, for resp’t.
   Bradley, J.

The question presented here is whether the evidence was sufficient to permit the conclusion that the plaintiff derived from Sliney and Whelan, title to the alleged claim against the defendant for the amount of the deposit. Assuming that Babcock represented the defendant in making it, the certificate was in effect an acknowledgment by the latter that the sum mentioned had been deposited in his bank in the manner so indicated. This certificate contains ho express promise to pay, and it is therefore contended that it is nothing more than a mere receipt in its legal import and effect.

In Hotchkiss v. Mosher (48 N. Y, 482), it was remarked by Leonard, J., that “ a simple certificate ” (like the one there in question) “ is not th'e basis of an action like a promise in writing, but would be evidence like a receipt to raise an implied promise to pay in an action for money had and received.” And Daniel in his work on Negotiable Instruments has adopted the same proposition (§ 1704). In that ease the action was. brought to recover for the alleged conversion of some promissory notes, to which -the plaintiff claimed title. One question raised was whether the plaintiff had paid the defendants for the notes. -

It appeared that for a portion of the sum claimed to have been paid, the defendant had given the plaintiff a certificate to the effect that he had- deposited such amount with the defendant. And it was held that.parol evidence was competent to prove that the money for which the certificate was made, was in fact received in ..payment for the notes. The learned judge there said, the certificate “ contained no' promise on the part of the defendants, and if it had, the portion' which operated as a receipt or money, was quite as capable of separation from that part which evidenced a contract, as in the case of a bill of lading,”

' The question whether a promise would be implied in such a Certificate to pay was not in Hotchkiss v. Mosher. So far as it contained the elements of a receipt merely as such, it was treated as subject to explanation and modification by parol evidence; and this was clearly right as there illustrated. Meyer v. Peck, 28 N. Y., 590; Abbe v. Eaton, 51 N. Y., 410.

But the instrument here is prima facie evidence that the amount stated in it was received by the defendant as a deposit, and therefore the certificate furnished the evidence of an implied obligation of the defendant to pay the anioünt to the depositors or to those succeeding to their rights.

In Payne v. Gardiner (29 N. Y. 146, affirming S. C. 39 Barb, 634); an action was supported upon a certificate containing no express promise-to pay; and see Pardee v. Fish (60 N. Y. 265, affirming 67 Barb., 407).

In none of these cases was the question here nécessarily cón-sidered, although it was somewhat involved in the-facts, upon which Payne v. Gardiner, was determined.

In Long v. Straus recently decided by the supreme court of Indiana (reported in 6 N. E. Reporter, 123, 7 id. 763, and in 34 Alb. Law Journal, 71, 142), it was held, that a mere certificate of deposit was a contract having the effect of an acknowledgment of receipt of money, and a promise to pay it although no promise was expressed. And in Smiley v. Fry (100 N. Y. 262), the character of a certificate of deposit as distinguished from a promissory note, and a deposit as distinguished from a loan are considered. We-think the certificate -in question prima facie represented an underaking on the part of the defendant to pay the sum mentionéd in it to the depositors-.on demand. It declares that, they have deposited such amount with the defendant. The law supplies by implication such undertaking. . In that view a transfer of the certificate would have the effect to transfer all the right possessed by the depositors against the defendant in respect to the deposit. But without treating the' certificate as a contract to pay on demand, there was sufficient in the evidence to send; the..case .to the jury.: It was necessary to the support of the action to find a transfer to the plaintiff of the claim against the defendant. The check drawn by Sliney and Whelan and delivered to the plaintiff, not having by its terms been drawn on a particular fund, did not operate as an equitable assignment of the claim within the law of this State. Attorney-General v. Continental Life Ins. Co., 71 N. Y. 325. The rule is otherwise in some of the other States when the .check or draft in fact . covers and corresponds in amount with the entire fund in the hands of the drawee. The evidence given of the transactions between the depositors and the plaintiff was susceptible of a construction and permitted the conclusion, that a transfer of the claim was made to the plaintiff in any view which may be taken of the nature of the certificate of deposit. It is sometimes designated in the evidence as a deposit check.

The member (Sliney) of the firm who did the business, says he took this deposit check to the plaintiff, ánd gave the firm check on the defendant banker to it; that at the time he transferred the claim to the plaintiff, he transferred the deposit check to it, and the plaintiff’s cashier gave him the money on it. ' And on his cross-examination he is asked : “By transferring this deposit check, you mean you simply.delivered it to Mr. Sill? Ans. — Yes sir; I got the money on it. Ques. — Did you do anything more ? Ans. — I gave Mm the check on Mr. Clark’s bank.”

And Sill the plaintiff’s cashier says that Sliney came to him at the bank, talked about a claim he had against the defendant’s bank, produced the deposit check, and said that he had so much money in his bank, the proceeds of a note discounted there, had. agreed to wait ten days, and wanted to use the money, and wished to have the plaintiff “ discount those papers, and I let him have the money.” And, then follows : Ques. — “-What did you discount, the claim, or the chéck? Aks. — The claim. Ques.— Then you purchased the claim that he then stated he had against Clark ? Ans. — Yes, sir. • Ques. — What was the check given for ? Ans. — To draw the money.”

There Avas sufficient to enable the jury to find that the intention of- the .parties to- the transaction was to make and take a transfer of the claim against the defendant, and that it was consummated by.them,. No formal words of transfer,were requisite to produce such result. It will answer if the transaction was characterized by the evidence as such. The plaintiff paid substantially the full amount of the claim. The money advanced did not necessarily purport to be a loan to Sliney and Whelan, but may be construed as payment for the claim represented by the deposit; the delivery and taking the certificate of deposit as the evidence it furnished of the claim,, and the check as the means to enable the plaintiff to draw the amount of it from the defendant’s bank.

At all events the jury were authorized to so infer. It appears sufficiently for that purpose by the evidence of both Sliney and Sill, that they assumed that the claim was transferred to the plaintiff, and that the latter took title to it. The united understanding of those parties to that effect in view of the purpose and circumstances of the transaction, was sufficient to fairly present that question. And the evidence may be so construed as to permit the conclusion that their minds met at the time in that respect and produced such result. And for that purpose effect is to be given to the transaction itself as well as to the words used, to ascertain what they intended to and did accomplish. All which, as well as the matter of credibility of the witnesses, were for the jury. Risley v. Phœnix Bank, 83 N. Y. 318.

The evidence wás also sufficient to permit the jury to find that the person who received the note at the defendant’s bank, and made the certificate of deposit, was authorized to do so, and represented the defendant in what he did, and that the certificate was that of the latter for the purposes for which it purported to have been made.

These views lead to the conclusion that the case should have gone to the jury on the evidence as it stood when the motion for nonsuit was made and granted.

No facts now appear to render the failure and consequent insolvency of the makers and indorsers of the note alleged to have been discounted by the defendant, important.

Other considerations might arise if the discount of the note had not become perfected before such failure, but existed in ex ecutory agreement until after it occurred. Benedict v. Field, 16 N. Y., 595, affirming S. C., 4 Duer., 154. But on the evidence presented by the record, there is no support for the contention that the agreement to discount the note, and give credit for the proceeds, remained in executory agreement of the parties to that transaction at the time of such failure, and it is unnecessary to give that question any consideration.

The judgment should be reversed and a new trial granted, costs to abide the event.

Smith, P. J., Babkek and Haight JJ., concur.


text:
    Hannah E. Almy, Resp’t, v. Orange W. McKinney, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1. Lotteries — What is within meaning of, 1 R. S. p 667, § 32 — action against.
    The Revised Statutes (1 R. S. p. 667, § 32) provide that any person who shall purchase any share, interest, ticket, certificate, of any share or interest or part of a ticket, or any paper or instrument purporting to be a ticket or share or interest in any ticket or' purporting to be a certificate of any share or interest in any ticket, or in any portion of any illegal lottery, may sue for and recover double the sum of money, and double the value of any goods or things in action which he may have paid or delivered in consideration of such purchase, with double the costs of suit. Defendant was engaged in selling lottery tickets and policy tickets or policy numbers in lotteries, the purchasing, of which was termed “policy playing.” The purchaser in consideration of a sum of money paid by him, was permitted to select certain numbers which if drawn in the lottery designated, entitled him to a larger-sum. Held, That this species of gaming or dealing in chances, was in the nature of a lottery and within the prohibition of the Statute.
    2. Same — Action may be brought by person dealing through an AGENT.
    In most of her dealings with defendant, plaintiff acted through her husband who had authority from her to invest her money for the purpose. Held, that she might recover therefor. That the agent had no right of action.
    3. Same amount must be shown with reasonable certainty.

      Held, That in order to recover under the Statute the precise sum and exact date of each payment need not be proved, that it might be enough to show the aggregate amount paid during a specified period, but such amount should be proved by satisfactory evidence with reasonable certainty.
    4. Referee. — Judgment entered upon report of — When reversed on QUESTION OF FACT ORDER SHOULD SO STATE.
    In a case when an appeal was had from a judgment entered on the report of a referee, Held, that in event of the reversing of the judgment on a question of fact the order of reversal should so state.
    Appeal from a judgment on the report of a referee.

      Jacob iSpaJm, for appl’t; Daniel Wood for resp’t.
   Smith, P. J.

This action was brought under the statute, (1 R. S., p. 667, § 32,) to recover double the sums of money alleged to have been paid by the plaintiff to the defendant, for lottery tickets or policy numbers.

The statute provides that any person who shall purchase any share, interest, ticket, certificate of any share or interest, or part of a ticket, or any paper or instrument purporting to be a ticket or share or interest in any ticket, or purporting to be a certificate of any share or interest in any ticket, or in any portion of any illegal lottery, may sue for and recover double the sum of money, and double the value of any goods or tilings in action, which he may have paid or delivered in consideration of such purchase, with double costs of suit.

According to the findings of the referee, the defendant was engaged, at the city of Rochester, in selling lottery tickets and policy tickets or policy numbers in certain Kentucky lotteries, the purchasing of-which was termed .“policy playing.” The. purchaser, it seems, in consideration of a sum of money paid by him, was permitted to select certain numbers, which, if drawn in the lottery designated; entitled him to a much larger sum. That species of gaming, or dealing in chances, has been held to be in the nature of a lottery, within the.prohibition of the statute. (Wilkinson v. Gill, 74 N. Y., 63; The People v. Noelke. 94 N. Y., 137.)

The evidence shows that in most of her transactions with the defendant, the plaintiff acted through her husband, who, it is claimed, had authority from her to invest her moneys for the purpose referred to. The appellant’s counsel contends that the plaintiff cannot recover for moneys paid by her agent, but can only recover for moneys paid by herself personally. We think the position is untenable. ■ The statute gives the -right of action to the purchaser of the ticket. The agent has no right of action, and unless his principal can sue, the vendor of the ticket-is not liable.

. The referee found that at various times from the 28th of March, 1881, to the'28th of March, 1884, the plaintiff purchased numerous policy tickets or policy numbers, of the defendant..or. his agents, and paid therefor the following sums: From March 1, 1881, to August 1, 1881, $50; from October 1, 1881, to May 1, 1882, $350; and from May 1, 1882, to October 1,1882, $100, making a total of $500, for double of which sum he held the. plaintiff was entitled to recover, with double costs of the action. .

The appellánt’s counsel contends that" there is no satisfactory evidence to support these findings as to the specific stuns mentioned therein. The only testimony on the subject is that of the plaintiff and her husband, George F. Almy. They were married in September, 1881. From October 1, 1881, to about May 1, 1882, George F. Almy was an agent of the defendant. The following is an extract from the testimony of the plaintiff herself as stated in the case: .

Q. State what you have paid personally from October. 1880, to August. 1881 ? • '
A. About $200 I have paid him.
Q. The next date is from October 1, 1881, to October 1, 1S82, at $1.50 per day; state how much of that you paid ? . .
A. I think I paid it all.
Q. Who did you pay the money to, to his agent ? .
A. To my husband, Mr. Almy,
Q. To any one- else ?
A. No, sir.
Q. How- much ?
A. $1.50 per day, sometimes $5; I averaged $1.60,
Q. Can you tell what you paid during that date, 1881 to 1882 ?
A. Between $1400 and $1500.
Q. Did you average $1,50 per day ?
A. Yes, sir.
Q. State what you did pay ?
A. Sometimes I paid $5 a day, sometimes nothing.
Q. During that year ?
A. I paid $1000.
Q. That is as near as you can get at it ?
A. It may he a good deal more.
Q. State to your best recollection ?
A. It might not amount to that; I can safely say $600 or $100.”

The plaintiff also testified that from October 1,1880, to August 1, 1881, and from October 1, 1881, to October 1, 1882, she had no dealing with the defendant personally; her dealings were with his agent; that she kept no memorandum of the transactions, or any written account of the sums paid, but that she estimated them from recollection. She also testified that from October 1, 1881, to October 1, 1882, she had as much as |800, but in answer to particular inquiries she testified that she feould not tell how much it was ; that she said she had $300 because her husband was earning it; that she had, in that time, $50 of her own, and the balance was her husband’s earnings ; that she did not know how much her husband earned during that year; that she didn’t know how much it cost her husband and herself to live ; and that she did not remember how much of her husband’s earnings' she spent on an average, in playing policy, during that year. '

George F. Almy testified that about the first of May, 1881, and the first of August, 1881, he played policy for his wife, about $50, with Ira W. Andrews, her son by a former husband, who, as the witness testified, was also an agent of the defendant, and that it was taken by Ira to the defendant. Witness also testified as follows : .‘‘From October 1, 1881, to about May 1, 1882, I was agent for O. W. McKinney myself, and played at least $350. On some days it; would be more and some less ; from May 1,1882, to October 1, 1882,1 played about $75, might have been a little-with her son Ira; during the same time I played about $25 in McKinney’s own office; that is all the playing I can call to mind that I- have done for the plaintiff.” The following is a further extract from the testimony of this witness :

Q- The first money you had from Mrs. Almy to play with was given you when ?
A. About the first of May, 1881.
Q. Do you know how much that was ?
A. I think it was five cents.
Q. In the month of May, 1881, did Mrs. Almy give you any money to play for her ?
A. Yes, sir.
Q. What was the amount ?
A. I can not tell you; in the neighborhood of $15 or $16 — little more.
Q. Why do you think it was in the neighborhood of that ?
JL Because she said all she had in the world was-$50. I know that in the months of May, June and July, all the playing that was done for her, I did for her.
Q. Was this $50 expended during those months playing policy ?•
A. Tes, sir.
Q. Prom May 1, 1881, to 'Oetober 1, 1881, she played about $50 ?
A. From May 1, 1881, to October 1, 1881, she played about $50.
Q. Then she didn't play until October?
A. No, sir.
Q. What was the amount she played then ?
A. I don’t remember.
Q. How much did she play in that month?
A. I can’t tell you.
Q. Tou don’t remember how much she played in the month of October, 1881?
A. Between $60 and $‘70.
Q. How do you know it was that ?
A. From October 1,1881, until May 1, 18S2,1 cleared about $350, writing in the office.
Q. How does that enable.you ?
A. I gave her every=cent I made, and outside of our living expenses it was all played into policy.
Q. What did it cost you to live on the average per day?
A. Not over $2.50 per week, outside of the rent, that was $5 per month.
Q. Tou had no other source of income than writing up the books-for Mr. McKinney ?
A. I had not.
Q. The money that was played was your money?
A. Tes, sir.
Q. It was money that you had earned ?
A. Tes, sir.
Q. And you played it?
A. Not until it had been handed to my wife.
Q. What was the process ?
A. Whenever I gave her money, if she wanted to play, she sometimes gave me the money to make her plays.”

The foregoing extracts show the nature of the testimony on which the findings are based. With some slight exceptions, there is not to be found in the entire case, any proof of the payment of the specific sum on any particular occasion. The testimony consists of estimates based upon averages, the data for which are loose and unsatisfactory. We do not suppose that in order to recover under the statute, the precise sum and the exact date of each payment must be proved; it may be enough to show the aggregate amount paid during a certain specified period, but such amount should be proved by satisfactory evidence with reasonable certainty. Perhaps there- is enough in the present ease to sustain the findings as to the sums of fifty and one hundred dollars, although, as to them, it is apparent that the testimony of the witnesses is to some extent an estimate. But it is difficult to find any valid support for the finding as to the $350. The statement of Mrs. Almy, that from October 1st, 1881, to 1882, her payments averaged $1.50 a day, is, apparently, hardly more than a guess. Sometimes, she says, she paid $5 a day; sometimes, nothing. On how many days she paid nothing, or on how many she made payments of any amount, she does not state, she kept no accounts. She undertakes to state the aggregate paid by her, during that year, putting it first, at between $1,400 and $1,500, next at $1,000, lastly at $600 or $700. Finally, her testimony and that of her husband, lead to the conclusion that she had no means to pay with during that period except $50, of her own money, and what remained of her husband’s earnings, after deducting their expenses of living. His earnings did not exceed $850, at the most, and as to the cost of living, the only evidence is amere estimate, which shows it to have been at the rate of $190, a year, at the least. The wife testified that she earned something during that period, by sewing, but it did not appear how much she earned, except that she stated it was less than $100. Again, when asked if she had as much as $300, from October 1st, 1881, to October-1st, 1882, she replied in the affirmative, but in the next breath said she could not tell how much it was, and gave as the reason why she said she had $300, that her husband was earning it. We think the finding as to the $350, cannot be upheld. There is no such satisfactory proof in support of it, as should be required under a statute which authorizes a recovery to double the amount paid.

We have examined the several exceptions in the ease, but find no difficulty in the way of affirming the judgment, other than the one above pointed out.

Our conclusion is that the judgment should be reversed and a new trial ordered before another referee, costs to abide the event, unless the plaintiff will stipulate to reduce the judgment to $300, in which case the judgment so reduced is affirmed without costs of this appeal to either party.

In case an order of reversal is entered, it should state that the judgment is reversed upon a question of fact.

Barker, Haight and Bradley, JJ., concur.

So ordered.


text:
    Hiram V. Eldredge, Resp’t v. George D. Smith, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    1. CONTRACT OP EMPLOYMENT — CONSTRUCTION OF — BREACH — DAMAGES.
    Plaintiff was employed by defendant by a special contract in the business of selling for him, organs, etc., and obtaining for him customers for the same. By the contract defendant agreed to pay plaintiff for his services a sum “ equal to one-third of the net profits resulting from the business.” . . . “ Meaning by the term, ‘ net profits ’ as ‘ used therein ’ one-third of the entire proceeds of the business. . . After deducting the entire cost and expense of said business.” The sales in a large part were made on the instalment plan upon monthly payments, the title remaining in the vendor until full payment of the purchase price. Plaintiff-was discharged before the end of the term of his employment, and at the time there remained unpaid on such installments several thousand dollars. In an action- to recover damages for breach of the contract of hiring.

      Held, That the sums unpaid on such conditional contracts should be included in fixing the amount of the net profits.
    2. Same — Bad faith — Will not be presumed.

      Held, That if plaintiff negligently, or in bad faith, sold to irresponsible persons, he was liable to defendant for his damages as thus caused, but as no claim to recoup on that ground was made, no such cause of action should be presumed..

      Appeal'from á judgment on the report of a referee.
    Geo. H. Humphrey, for, appl’tRoberts, Alexander Messer, for r.esp’t.
   Smith, P. J.

Action to recover for services 'rendered by the plaintiff to defendant under a special contract, in the business of selling for him, in the city of Buffalo, organs, -pianos and other musical instruments and music; and obtaining for him customers for the same. The term originally stipulated was four months, beginning on October 20, 1884; it was afterwards continued for another four months; and on June 10, 1885, the plaintiff, having served from the commencement of the term,' was dischargéd by the defendant. By the contract, the defendant agreed to pay the plaintiff for.his services, a' sum' equal to one third of the net profits resulting from the business,” ... . “ meaning by the term ‘net profits’'as used” therein “one third' of the entire proceeds of .the business.after deducting the entire cost and expense; of. said business.” "

The referee found that the amount of the - net profits of the business,-from October 28;-1884, at which time: plaintiff entered upon the--business, to June 10, 1885, was $2,678.70; that the' plaintiffs share of the same was $892;90, and that he had been paid thereon $520.72, leaving a balance due him of $872.18, for which sum, with interest from June 10,1885, the referee held the plaintiff was entitled to judgment., v

It appears that the business-consisted,-in large part, of the sale of organs and pianos on the installment plan; Upon monthly payments, the title remaining in the vendor until full'payment -of the purchase price, and that-at the time when the plaintiff was discharged, several. thousand dollars remained unpaid on. such-installments. The' referee included the sums unpaid oh such' conditional contracts, nr a large portion thereof;-in fixing" the amount of net profits. The appellant’s. counsel contends that in so doing, the referee erred,. We think the contention- is untenable. The agreement evidently contemplated that theplaihtiff should be entitled to full compensation for .his services, at the expiration of the term agreed upon by the parties. And as Iris compensation was to be one' third ■ of the entire proceeds of the business, after deducting its entire cost and expense, all the avails of the business as they existed at the expiration of his term were to be taken into account, in ascertaining the amount of net proceeds. ' That method of compensation would include amounts due on leases and conditional contracts of sale, as well as cash realized. - -

This, we think, is the fair interpretation of the language of the” contract. "It is "supported’ by' .one or two extraneous, circumstances. In the first place, it is. evident that both parties contemplated when they entered into the contract that sales might be made upon the installment plan. The defendant had theretofore conducted his business on that plan; and, at the time when the plaintiff entered into his employment, the assets of the defendant in his store at Buffalo, of which the plaintiff took charge, consisted partly of musical instruments outstanding upon contracts of that nature. The plaintiff took charge of those contracts, collecting pay on them, and he continued to make sales upon that plan with the knowledge and assent of the defendant or his authorized agents. In the next place, the conditional contracts or leases made by plaintiff while in defendant’s employ were accepted by the defendant, when he discharged the plaintiff, and were thereby recognized .and treated by the defendant as part of the proceeds of the business. Lastly, in the inventories made by the defendant or his agents, at the beginning of the plaintiff’s employment, at the close of the first term of four months, and after the plaintiff was discharged, the conditional contracts were included as assets.

The result of adopting the defendant’s contention would be, that at the time when the plaintiff was discharged, his right to compensation was limited to one third of the cash proceeds of the business, after deducting expenses, and that as to the balance of the proceeds his right to compensation would be postponed till they were collected in. We do not think the contract can properly be so read.

The appellant’s counsel suggests that this construction of the contract, compels his client to bear all the losses that may occur upon the outstanding contracts. Presumably, the defendant can protect himself against loss, by resorting to his legal remedies for the collection of the installments due upon the contracts as they mature, or by retaking possession of the property. If the plaintiff negligently, or in bad faith, sold to irresponsible persons, he is doubtless liable to the defendant for his damages thus caused, but as no claim to recoup on that ground is made in the present action, it may be presumed that no such cause of complaint exists.

It is true that the usual meaning of the word “ profits,” is the excess of receipts over expenditures ; and as between partners, moneys earned ought, ordinarily, to be treated as profits in the year in which they are paid, and not as profits of the year in which they are earned. But the parties to the present controversy were not partners; as their agreement expressly declares. And in the present case, the contracting parties have, as we conceive, by their agreement and acts, given to the word “ profits ” the meaning above indicated, as it was competent for them to do.

It appears that two pianos and one organ, which were contracted to be sold by the plaintiff, were returned to the defendant, after tbe plaintiff was discharged, the purchasers being unable to pay for them, and that they were then of less value than when they were contracted for. The appellant’s counsel contends that the referee erred in including those contracts in the amount of assets. We fail to find any evidence in the case showing that they were so included. But if they were included, the evidence as to the property having been worth less when returned than when contracted, is conflicting, and the referee has not found that it was depreciated. The un contradicted testimony is to the effect that a part of the purchase price was paid. The plaintiff rendered services in respect to the articles in ■question as required'by his agreement; he contracted to sell them, with the knowledge and assent of the defendant or his .agents, as is to be inferred from the evidence, and, as is also to be inferred, at the time when he was discharged, the contracts -were accepted by the defendant, and treated as part of the assets.

The finding that the net profits amounted to $2, 678.70, is •challenged by the appellant’s counsel, as being without evidence •to support it. The witnesses on that subject differ, but the testimony of the expert, Mr. Hamilton, seems to support the finding, and indeed would have authorized the referee to find a somewhat larger sum:

' These views'meet all the positions taken by the appellant’s ■counsel, and lead to an affirmance.

Barker and Bradley, JJ., concur • Haight, J., not sitting.

Affirmed.


text:
    Eugene Lewis, as Ex’r, etc., Resp’t, v. Enos Merritt, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    .1. CONVERSION — Promissory notes — Decision op higher court conclusive ON A LOWER COURT WHERE THE SAME STATE OP FACTS EXIST.
    This action was brought to recover damages for the conversion of certain promissory notes executed by defendant to testator. Defendant by his answer admitted execution and delivery of the notes to the deceased; and alleged that before and at the time of her death he was rightfully in possession of them, they being his property and not that of thedeceased. Plaintiff in his own behalf testified that the notes in suit were, for some time previous to his mother’s death, kept inatrunk beneath the bed in the room occupied by her and that he saw them there on the morning before she died, and .that on examining the trunk on the following morning, he found that the motes had been abstracted. Testimony was given by another witness that the notes were afterward fouud in defendant’s possession who, upon ■demand made,- refused to surrender them. Plaintiff'also testified to facts .showing the• presence of defendant in the room where the notes were kept ■during the last hours of his mother’s illness, and the opportunity thereby afforded him to obtain unauthorized possession. of them. Evidence substantially the same 'having been recounted in the opinion of the court of appeals on a former trial of the ease and* that court having held, that the ■evidence tended to establish ownership- of the notes by the testatrix by ■creating a presumption arising from the fact of possession, and by inference, ■to controvert the probability that the defendant came rightfully, into possession of the notes by means of a prior disposition of them by her. Held, tha t the decision of the court was conclusive on the question.

      2. EVIDENCE — TRANSACTION WITH DECEASED — CODE ClV. PEO., § 829.
    Defendant in his own behalf testified that the notes came into his possession a week before the death of the deceased, his sister was present at the time, she called him into the room where deceased was lying sick. He was then asked to state what occurred in reference to any transaction between himself and deceased, concerning the notes, after he went into the room. Plaintiffs counsel objected that the question was improper under Code Civ. Pvo.,§ 829. Defendant’s counsel stated that he offered the testimony on the ground that the executor had testified in reference to the matter, and that he allowed the opposite party to come in and testify. The objection was sustained. Held, that the question'and offer were broad enough to include evidence of a gift of the notes to the witness by deceased, or taking of them by him with her consent on the occasion referred to, which was prior to the time when plaintiff testified that he saw the notes in the trunk. That the objection was rightly sustained. That while testimony might be competent to repel an inference arising from a fact testified to by the opposite party, that offered for the purpose of establishing an affirmative defence resting in a transaction not adverted to in the testimony of the opposite party, was not competent.
    3. CHARGE TO JUEY — EVIDENCE NECESSARY TO PBOVE A GIFT WHEEE THEBE ABE CIRCUMSTANCES OF SUSPICION.

      Held, that a charge delivered to the jury by the trial judge that the defendant in order to hold the property by virtue of a gift must establish it beyond a suspicion, was proper. That where there are circumstances attending tlie alleged gift which reasonably excite suspicion as to whether there was a gift in fact, the proof must be such as to remove the suspicion.
    Appeal from a judgment on a verdict rendered at tbe Yates circuit.

      D. Morris, for appl’t; C, S. Baker, for resp’t.
   Smith, P. J.

Action for the conversion of certain promissory-notes executed by the defendant to the testatrix, who was the sister of the defendant and the mother of the plaintiff.

The defendant, by his answer, admitted the execution and delivery of the notes to the deceased; alleged that before and at the time of her death, he was rightfully and lawfully in the possession of the notes, and they were then his property, and denied that they were the property of the deceased at the time of her death.

The action has been tried three times, each trial resulting in a verdict for the plaintiff. The first verdict was set aside and a new trial granted on the ground of newly discovered evidence. The judgment on the second verdict was reversed by the court of appeals, for the improper exclusion of evidence. (98 N. Y., 206.)

The notice of the present appeal purports to be from an order denying a motion for new trial, as well as from the judgment, but no such order appears in the case. The only questions to be considered, therefore, are thóse presented by exceptions.

The appellant’s counsel contends that there is no evidence of a wrongful taking. The statement of the evidence on that point, contained in the opinion of Huger, C. J., on the review of the second trial (98 N. Y., 207-8), may be adopted as an accurate summary of the evidence given on tbe last trial, and is substantially as follows:

The plaintiff, as a witness in his own behalf testified, in substance, that the notes in suit were, for some time previous to his mother’s death, kept in a tin trunk under the bed in the room occupied by her, and that he saw them there on the morning before she died, and that upon examining the trunk on the following morning, he found that the notes had been abstracted. Another witness testified that the notes were afterwards found in the possession of the defendant, who, when they 'were demanded of him, refused to surrender them. The plaintiff also testified to facts showing the presence of the defendant in the room where the notes were kept during the last hours of his mother’s illness, and the opportunity thereby afforded him, to obtain unauthorized possession of them. The learned chief judge, speaking for the majority of the court, said that the evidence thus ■ tended both to establish ownership of the notes by the testatrix, by creating a presumption arising from the fact of possession, and by inference, to controvert the probability that the defendant came rightfully into possession of the notes, by means of a prior disposition of them, by her. As the testimony upon the point is substantially the same now as it was then, the decision of the court of last resort is conclusive upon the question.

The defendant, as a witness in his own behalf, testified that the promissory notes in question, came into his possession a week before the death of the deceased; his sister, Mrs. Cassner, was present at the time; she called him into the room where the deceased was lying sick. . He was then ‘asked to state what occurred in reference to any transaction between himself and the deceased concerning the notes, after he went into the room. The plaintiff’s counsel objected that the question was improper under section 829 of the Code. The defendant’s counsel stated that he offered the testimony upon the ground that the executor had testified in reference to the matter, and that allowed the opposite party to come in and testify. The objection was sustained. It is contended that the ruling was erroneous.

We think otherwise. The offer, as we understand it, was to give affirmative evidence of a personal transaction between the witness and the deceased, in regard to which no evidence had been given by the plaintiff. The question and the offer were broad enough to include evidence of a gift of the notes to the witness by the deceased, or a taking of them by him with her consent, on the occasion referred to in the question, which was several days prior to the time when the plaintiff testified that he saw the notes in the trunk.

It is contended by the defendant’s counsel, that the testimony offered, even if it involved a personal transaction between witness and deceased, was competent to repel tbe presumption arising from the testimony of the plaintiff that the deceased was the owner of the notes, and that they were taken from her by the defendant. And it is contended that this precise question was decided by the court of appeals, in favor of the defendant, on the former appeal. We do not so understand that decision. The question there arose upon the exclusion of an offer to show by the defendant that he did not take the notes from the trunk, or from any person, and that at the time of a conversation between the testatrix and Mrs. Merritt, which he testified occurred in his presence some two days before the death of the testatrix, he had possession of the notes. The court of appeals held that the testimony thus excluded was competent, as tending to repel the presumption arising from the facts testified to by the plaintiff as above stated, that the deceased was the owner of the notes the day before her death, and that the defendant wrongfully took them from her possession. But the testimony then excluded was received on the last trial. The defendant was permitted to testify that he did not take the notes in question, or any notes out of the trunk; that the notes came into his possession a week before the death of the testatrix; and that they remained in his possession from that time until the time of the death of the testatrix.

The distinction between testimony competent to repel an inference arising from a fact testified to by the opposite party, and testimony offered for the purpose of establishing an affirmative defence resting in a transaction not adverted to in the testimony of the opposite party, is pointed out by Judge Huger in the opinion referred to, (p. 209).

The trial judge charged the jury that the defendant, in order to hold this property by virtue of a gift, must establish it beyond a suspicion. To that instruction, the defendant excepted. The charge accords with the rule stated by Peckham, J., delivering the opinion of the court, in Grey v. Grey, (47 N. Y., 552.) That was an action on a promissory note given by a son to his father, on settlement of accounts, payable one year from date, with interest. The'father died about four months after the note was given. The suit was brought by his personal representatives. On the trial, the defendant produced the note with his name torn off; he testified that he had it in his possession prior to his father’s death; that he never took the note from the drawer of his father, and he did not know of any third person owning or possessing the note; that he never paid it, or transferred or delivered to intestate any property, nor was the intestate indebted to the defendant since giving the note. It appeared that the defendant had means of access to his father’s papers. In that case, as in this, it did not appear affirmatively how the defendant became possessed of the note. Judge Peckbam said, “ If any presumption of title or of payment prevail by mere possession, it is only where the possession is free from suspicion,” (p. 555). And after stating that the law does not presume a gift, he said, “ if this was claimed as a donatio mortis causa, then the rule is still more rigid that the clearest proof on the part of the claimant is required. It must be established beyond suspicion.”

This can hardly be regarded as a mere dictum, as suggested by the appellant’s counsel. There being no proof of the manner in which the defendant became possessed of the note, it was pertinent to consider the case in all its aspects, and as the hypothesis of a gift mortis causa was consistent with the evidence, its consideration was not so far foreign to the ease, as that what was said respecting it can be regarded as a mere passing remark lacking authority.

It is contended that the authorities cited by Judge Peckham, do not sustain him. They are Walter v. Hodge, 2 Swanst., 97; 2 Kent, 444, 8th, Ed.: Coutant v. Schuyler, 1 Paige, 316. The latter case holds that claims of this kind are admitted with great caution, and all agree that the evidence must be satisfactory, by which is meant, doubtless, that the evidence must be satisfactory in view of the circumstances of each case. Thus, where there are circumstances attending the alleged gift which reasonably excite suspicion as to whether there was a gift, in fact, the proof must be such as to remove the suspicion. We think the rule laid down by the trial judge was not more stringent than the circumstances disclosed by the evidence warranted.

Some other exceptions were taken by the defendant’s counsel, but they have not been argued, and we do not consider them.

The judgment should b'e affirmed.

Barker and Bradley, J J., concur, Haight, J., not sitting.

Affirmed.


text:
    Albert Gilbert, Jr., et al. Appl’t, v. Warren D. York, et al., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886.)
    County court — Jurisdiction — Complaint in action must allege RESIDENCE OE DEFENDANT IN COUNTY — OMISSION IS GBOUND OF DEMUBREB.
    In an action brought in the County Court to recover money due for price of goods sold and delivered, the complaint alleged that the defendants as well as the plaintiffs were engaged in business in the county, but contained no averment as to the residence of either of the parties. Upon demurrer to the complaint because not containing an allegation that the defendants were residents of the county, Held, that lack of an allegation of residence in the complaint was a jurisdictional defect, and properly the subject of demurrer.
    Appeal from a judgment of the Chautauqua county court sustaining a demurrer to the complaint.

      J. A. Parsons, atty. for applt’s.; John Woodward, of counsel; Record § Hooker, for respt’s.
   Smith, P. J.

Action to recover tbe sum of $ 57.50, tbe price of a quantity of flour alleged to bave been sold and delivered by tbe plaintiffs to tbe defendants. Tbe complaint alleges that the defendants, as well as tbe plaintiffs, were engaged in business in tbe County of Chautauqua, but it contains no averment as to tbe residence of either of tbe parties. The lack of an averment that the defendants were residents of tbe county of Chautauqua, at the time of the commencement of the action, is tbe ground upon which the respondent’s counsel contends that the demurrer should be sustained.

The appellants’ counsel insists that as it does not appear upon the face of the complaint, that the defendants are not residents of the county, the demurrer is not well taken, and that if they do not reside in the county, their remedy is to set up the fact in their answer, as a defence.

It is true that a demurrer will not lie to a complaint, except for objections appearing upon the face thereof, (Code C. P., § 488,) and where the ground of demurrer does not appear on the face of the complaint, the objection may be taken by answer. (Id., §. 498.)

The question is, therefore, whether the omission of an averment that the defendants are residents of the county, makes the complaint demurrable on its face. And that question will be answered by determining whether the fact of residence within the county is essential to the jurisdiction of the county court. For, if it is, the omission to aver it, is a fatal defect, apparent on the face of the complaint, inasmuch as the complaint must allege every fact necessary to a good cause of action!

Under the constitution of 1846, it was held that the county courts have not a general jurisdiction, as had the courts of common pleas, which they superseded, but that they are new courts with a special, limited and statutory jurisdiction, (Frees v. Ford, 2 Seld., 176.)

The constitution, now in force, continues the county courts as they existed under the constitution of 1846, and provides that they shall have the powers and jurisdiction which they possessed thereunder, and shall also have original jurisdiction in all cases where the defendants reside in the county, and in which the damages claimed shall not exceed one thousand dollars, (Art. VI. §. 15.) A provision corresponding to the latter, has been enaeted-by the legislature. (Code C. P., §. 340, subd. 3.)

There is authority for saying that the provisions above referred to make the fact of the defendant’s residence within the county, a requisite to jurisdiction, not only of the person of the defendant, but also of the action.

In Frees v. Ford, (supra.) which was an action in a county court, the complaint did not contain any allegation as to the residence of the defendant. The defendant pleaded that the causé of action was not subject to the jurisdiction of-the county court. The plaintiff demurred to the plea, and it was adjudged in his favor. The supreme court affirmed, but on appeal to the court of last resort, the judgment was reversed, on the ground that the fact of residence was jurisdictional, and it not appearing on' the record, the defect was fatal.

There are analogous decisions to the same effect. In Burckle v. Eckhart, (3 Comst., 132.) • a question of jurisdiction arose under a provision of the Revised Statutes, which declared that every circuit judge within the limits of his circuit, shall, concurrently with the chancellor, have and exercise, all the original jurisdiction and powers vested in the chancellor, in all cases and matters in equity, where such causes and matters shall have arisen within the circuit of such judge, or . . . where the defendants or persons proceeded against, or either of them, reside within such limits, (2 R. S., 168, §. 2.) It was held that hi a case under the latter clause, the residence of a defendant within the limits of the circuit is a jurisdictional fact, and where that is wanting, the mere appearance of the defendant does not cure the defect. GaudiNER, J., speaking for a majority of the court, said: “ The residents of a defendant within the limits of the circuit, according to the 3d subdivision of the the 2d. section of the statute above quoted, is a jurisdictional fact which must exist before the court can act at all, either by issuing process or accepting the appearance of a defendant. It is necessary to give jurisdiction of the cause, not of the person” (p. 137).

Wheelock v. Bee, (74 N. Y., 495,) was an action- commenced in the city court of Brooklyn, the jurisdiction of which was held to be limited to cases in which the cause of action arose within its "territorial limits, and cases in which the subject of the action was situated, or the party proceeded against resided, or was served with process, within those limits. It was also held that some one or more of these elements of locality must exist to confer upon the court jurisdiction of the cause ; and that where no other ground of jurisdiction exists, the service within the county is a jurisdictional fact. “ Its omission,” said Rapello, J., speaking for all the members of the court who took part in the decision, “ is not cured by an appearance, for the objection is not simply that the court has not jurisdiction of the person of the defendant, but that it has not jurisdiction of the cause.”

The same doctrine was reiterated in the recent case of Davidsburgh v. Ins. Co., (90 N. Y., 526,) which, also, was an action brought in the city court of Brooklyn. The defendant was a domestic corporation. The summons was served upon the seeretary of the corporation, in the city of Brooklyn, where he resided. The defendant appeared generally in the action and answered, and in no manner before trial complained that it was not regularly in court, or that the court had not jurisdiction. On the trial, it appeared that the defendant was established and transacted its general business in the city of New York, and at the close of plaintiff’s case, the court, on motion of the defendant’s counsel, dismissed the complaint for want of jurisdiction. The court of appeals held, no error; that the court could not acquire jurisdiction of the action by consent, and might, whenever its attention was called to the matter, refuse to exceed the powers conferred upon it by the statute. “ There are, no doubt,” said the court, “ many cases where the court having jurisdiction over the subject-matter may proceed .against a defendant who voluntarily submits to its decision, but where the State prescribes conditions under which a court may act, those conditions cannot be dispensed with by litigants, for in such case the particular condition or status of the defendant is made a jurisdictional fact.” (p. 530).

Judge v. Sail, (5 Lans., 69.) decided by the general term in the old. fourth department, is an adjudication in point, in the defendant’s favor.

There is another class of cases, in which it has been held, or dicta have been uttered, to the effect, not that the fact of residence is not jurisdictional, but that it relates to jurisdiction of the person of the defendant, and not of the action, and therefore, that the objection that such fact is not alleged in the complaint, may be waived.

An expression at the close of the dissenting opinion of Welles, , J., in Frees v. Ford, (sup.) seems to present that idea.

The case of Holbrook v. Baker, (16 Hun. 176,) cited by the appellant’s counsel, is to that effect. The counsel contends that it overrules Judge v. Hall, (supra.) It is true, the reporter has so noted it, and the opinion is there expressed that Judge v. Mall, was erroneously decided. But it seems to us that the two cases are not necessarily in conflict. In Solbrook's case, the complaint alleged that at the several days and times thereinafter mentioned, “ the above named defendant was a resident of the village of Sing Sing in the county of Westchester.” The action was brought in the county court of Westchester. The court in the second department inclined to the opinion that the complaint showed on its face that the county court had jurisdiction of the person of the defendant but did not determine the point. We think the decision might well have been put upon the ground that the allegation was sufficient to give jurisdiction. (Burns v. O'Neil, 10 Hun, 494.) But, in another respect, the case differs from the one before us. The defendant, instead of demurring, answered on the merits, and went to trial, and after a jury bad been impanelled raised tbe objection for tbe first time, by a motion to dismiss tbe complaint. Tbe general term evidently took the view that tbe objection went only to the jurisdiction of tbe person, and that tbe conduct of tbe defendant was a waiver. In that view, tbe case does not conflict with Judge v. Hall in respect to tbe proposition that an allegation of residence is requisite to jurisdiction of tbe person. Upon that point, it is in accord with Dake v. Miller, (15 Hun, 356,) where tbe opinion was written by tbe same judge who wrote in Judge v. Hall.

In Heenan v. N. Y., W. S. & B. R. R. Co., (34 Hun., 602,) also cited by tbe appellant’s counsel, tbe allegations in tbe complaint as to residence were held sufficient, and tbe point decided, was, that tbe defendant, by appearing and controverting those allegations and setting up the fact of non-residencé in his answer, did not waive the objection to tbe jurisdiction. And in that case, it was said by the court^ that “ tbe question is not one of jurisdiction of tbe person of the defendant merely. It is one as to tbe limitation of tbe power of the county court” (p. 605).

All the cases, to which our attention has been called, are agreed that tbe lack of an allegation of residence in the complaint is a jurisdictional defect-, tbe only point of difference being, whether it goes to tbe jurisdiction of the cause of action, or only to jurisdiction of the person of tbe defendant, in which case it may be waived.

But even tbe latter view of tbe matter does not aid the plaintiff, for in this case there has been no waiver. The defendants have simply availed themselves of their remedy by demurrer, and that they have done promptly.

The judgment should be affirmed with costs, with leave to the plaintiffs to amend in twenty' days on payment of the costs of this appeal -and of the demurrer.

Haight and Bradley, JJ., .concur; Barker, J., taking no part.

So ordered.


text:
    George H. Phelps, Appl’t, v. Lewis Emery, Jr., et al., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October, 1886).
    CONTRACT — CONSTRUCTION OF.
    Plaintiff wrote to defendants saying he understood they had a claim against W, Bros., and that if they would send a representative to his office he would point out a way of collecting their claim which would be approved by any good lawyer. That if his advice should prove of value he should expect to be paid, otherwise not. Held, that the advice and suggestion could not prove of value except by leading to the collection of defendant’s claim, and that the statement that no pay would be expected unless they proved of value, by fair construction applied to services rendered in the attempt to, collect, as well as the advice that such attempt be made.

      Appeal from a judgment on a verdict rendered at tbe Cattaraugus circuit.

      J. IT. Waring, for appl’t; Chas. JS. Brown, for respt’s.
   Smith, P. J.

The defendant had a claim for hardware and oil well supplies, furnished to Wiser Bros, who were operating an oil lease in the fore part of the year 1884. After the materials were furnished, Wiser Bros, executed a chattel mortgage on their leasehold and the well and other property upon it, and after-wards failed in business and were insolvent. Subsequently, and on the 25th of July, 1884, the plaintiff, who is an attorney at law, at Olean, wrote to the defendants a letter, in which he said: “ I represent a claim against Wiser Bros, for labor, in putting down wells on the property recently transferred to Perrin & Young. I understand that your firm have a demand for oil well supplies upon this same property to the extent of 18,000, which you are in despair of being able to enforce, which claim accrued for material furnished largely, if not wholly, since Feb. 4th, 1884. Now if that is the case and you have sufficient interest in the matter to come or send an authorized representative to my office, I will point out to you a course which any good lawyer will advise you, will result in getting your pay out of property in the hands of Perrin & Young, notwithstanding the recent transfer to them. If my advice and suggestion to you should prove of value, I shall expect you to pay, otherwise not. Think of this.”

It appears in evidence that on the receipt of that letter, the defendants sent an agent to the plaintiff, who had an interview with him, and a proceeding was commenced by the plaintiff for the collection of said claim, but the evidence was conflicting as to whether the defendants employed or authorized the plaintiff to institute such proceeding. The proceeding was begun by filing a notice under the lien law, but the defendants not having furnished the plaintiff with the items of their claim, to enable him to prepare a bill of particulars, the proceeding went no further. The plaintiff also instituted and prosecuted a like proceeding for the enforcement of a like claim in behalf of another party, which latter proceeding was determined adversely to the claimant. (Broman v. Young, 85 Hun, 173.)

On the trial of this action, the judge charged the jury that if the plaintiff was employed by the defendant, and the employment was under the proposal contained in the letter, the plaintiff cannot recover.

The appellant’s counsel contends that the charge was erroneous, inasmuch as the letter contemplated the'giving of advice merely and not the performance of services, and that for services actually rendered by the plaintiff at the employment of the defendants, he is entitled to reasonable compensation, whether the services were successful or not. We do not concur in that view of the matter. The advice and suggestion referred to in the letter could not prove of value, except by leading to the collection of the defendants’ claim, and the statement that no pay would be expected unless they proved of value, by fair construction, applies to the services rendered in the attempt to collect, as well as the advice that such attempt be made.

There is no appeal from the order denying the motion for a new trial. The question above considered is the only one raised by exception.

The judgment should be affirmed.

Babees, & Bradley, JJ., concur; Haight, J., not sitting.

Affirmed.