author: RUMSEY, J.

text:
    Chambers & McKee Glass Company, App’lt, v. David H. Roberts, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Attachments—Vacating—Affidavits.
    Where a motion is made to vacate an attachment upon contesting affidavits, and the only question presented is whether, upon all the facts, the. plaintiff has a cause of action, and that question is one offaet and not of law, the question should not he decided upon affidavits but be left for determination. at the trial.
    8. Same.
    The right to move upon new affidavits to vacate an attachment, involves-a corresponding duty on -the part of the court to decide the question upon a fair preponderance of the evidence, as given by the affidavits.
    8. Same—Intent.
    To enable the plaintiff to procure a warrant of attachment on the ground that the defendant had intended to defraud his creditors, it is not sufficient that he should prove simply that he has a cause of action against the defendant and that the defendant has gone out of the state. He must prove-that the defendant took his departure with the actual existing intent to defraud creditors.
    4. Same.
    Such intent will not be inferred, as a presumption, from the simple act. of departure, but requires that the plaintiff should show other facts and circumstances by which the intent shall be established.
    6. Same.
    Where the intent with which an act is done is one the existence of which the law infers from the doing of the act, the fact that the person who does it is a lunatic will not relieve him from the civil liability for the damage which the act causes.

      <1 Same.
    Where it is necessary to prove, om the part of the lunatic, an actual intent, the existence of which is not inferred from the act itself, the fact of lunacy may be sufficient, to disprove the existence of the intent.

      % Sams.
    It is sufficient if there is made to appear a state of insanity so great that the court would have a right to infer that the insane man did not form the Intent charged against him; and, in such case, the court is justified in concluding, as a matter of fact, that the plaintiff had not shown the existence of the fraudulent intent which is required to authorize the granting of a warrant of attachment.
    Appeal from an order granting a motion to vacate the attachment,
    John 0. Coleman, for app’lt; Otto Horwitz, for resp’t,
   RUMSEY, J.

— The action was brought to recover a sum of money only, and a warrant of attachment against the property of (she defendant was granted upon the sole ground that He had departed from the state of Hew York with intent to defraud his ■creditors. The motion to vacate the attachment was made by the defendant, upon affidavits, under the authority of section 683 of the Code of Civil Procedure, and it was opposed by new- proof on the part of the plaintiff, by which it was made to appear that a cause of action existed against the defendant. While, strictly Speaking, the proof upon that subject was not admissible under the provisions of the Code which permit new proof to be offered by the plaintiff to sustain any ground for the attachment recited in the warrant, and no other, yet the affidavits were received without objection, so far as appears from the papers, and it was therefore proper for the court to consider the facts stated in them tending to sustain the attachment. Godfrey v. Godfrey, 75 N. Y. 434. Upon considering all the affidavits, it is quite clear that a cause of action existed against the defendant, and for that reason the decision, upon the motion of the junior attaching creditor, to vacate this warrant as against him, which was made at the February term, does not apply.

The question presented by the affidavits upon which this motion was heard is whether, upon the whole case, it could be said that the defendant departed from the state with intent to defraud his creditors. The decision of that question required the court to pass upon the question whether or not the proof showed that the defendant, when he left this state, was insane, so that he was not able to form any intent, and therefore that the ground stated for granting the writ did not, in fact, exist. This did not involve, in any aspect of the case, the merits of the action, which was brought simply to recover a debt. Where a motion is made to vacate an attachment upon contesting affidavits, and the only question presented is whether, upon all the facts, the plaintiff has a cause of ■ action, and that question is one of fact, and not of law, it has . been held that the question should not be decided apon affidavits, but be left for determination at the triaL Kirby v. Colwell, 81 Hun, 385; 63 St. Rep. 134. Upon this-state of facts, the court said that this attachment should not be-vacated; but he left it to stand or fall, as the result of the determination, at the trial, of the main question presented by the issues, which is also the question presented by the motion to vacate. But that is not this case. The decision of this motion can have-no effect upon the merits of the action, because it does not involve any question which is presented by the- issues raised, /‘upon the pleadings. The only thing to be decided, therefore, is-whether the facts shown upon the motion warrant the granting of the attachment. The Code gives to the defendant the right to-move to vacate the warrant upon new affidavits upon which both parties are at liberty to present all the facts to enable the court to-decide whether the grounds upon which the warrant is issued in. fact exist. The right to move upon such papers involves a corresponding duty on the part of the court to decide the question, upon a fair preponderance of the evidence, as given by the affidavits. This is the rule where a motion is made to vacate an order of arrest (Levy v. Bernhard [Sup.; Feb. term), *and the-same reasons require that the same rule should be held to exist in motions to vacate a warrant of attachment. It was the duty, therefore, of the court, to examine the case, and see whether or-not the defendant’s condition waá such that it could be said that he had intended to defraud his creditors when he left the state.

To enable the plaintiff to procure a* warrant on that ground, it. is not sufficient that he should prove simply that he has a cause-of action against the defendant, and that the defendant has gone-out of the state. He must prove that the man took his> departure with the actual existing intent to defraud Creditors. Hertz v. Stuart, 3 N. Y. Wkly. Dig. 332. That intént will not be inferred, as a presumption, from the simple act of departure, but requires-that the plaintiff should show other facts and circumstances by which the intent shall be established. The facts and circumstances connected with the departure from the state were clearly shown in this case. It was made to appear, by an overwhelming preponderance of evidence, that, when the defendant left the state, he was in a condition of insanity almost amounting to mania; and upon the proof it was left very doubtful whether he was competent, to devise any scheme, or have any intent whatever. Where the-intent with which an act is done is one the existence of which the-law infers from the-doing of the act, the fact that the person who-does it is a lunatic will not relive him from the civil liability for the damage which the act causes. But where it is necessary to* prove, on the part of the lunatie, an actual intent, the existence of which is not inferred from the act itself, the fact of lunacy may be sufficient to disprove the existence of the intent. Such is the-case where it is sought to charge the lunatic with exemplary damages (McIntyre v. Shotly, 121 Ill. 660), or to establish an intent with the view to punish him for a crime. The same considerations apply here. It is not necessary to say that the mere fact of insanity operates, as a matter of law, to disprove the intent. It is sufficient if there is made to appear a state of insanity so great that the court would have a right to infer that the insane man did not form the intent charged against him; and, if that did appear, it would justify the court in concluding, as a matter of fact, that the plaintiff had not shown the existence of the fraudulent intent-which was required to authorize the granting of a warrant of attachment.

The facts in this case were certainly sufficient to warrant such a conclusion, and for that reason the order vacating the warrant, must be affirmed, with $10 costs and disbursements.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Judson S. Todd, App’lt, v. George D. Eighmie, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Estoppel—Mortgage—Recitals.
    The heirs of a mortgagee are estopped by a recital in the mortgage that-the mortgagee had previously conveyed the premises to the mortgagor, from denying the existence of such deed.
    2. Same.
    Such recital as against the mortgagee and all persons privy to him operates as conclusive proof that the deed mentioned in it has " actually been made and-delivered.
    3. Record—Notice.
    The record of such mortgage is not notice to a subsequent purchaser of the existence of the deed.
    4. Deed—Seals.
    Though a deed without seals dbes not convey a legal title it confers on the grantee as against the grantor an equitable right to a legal title.
    5. Same—Notice.
    Such a deed may lawfully be recorded, and, when so recorded, is notice-to all persons dealing with the property that the grantor has conveyed the property.
    6. Same—Consideration.
    The recital of a consideration in the deed is prima facie proof of the payment by the grantee therein named of a valuable consideration for tli® premises.
    Appeal from a judgment entered on a verdict for defendant.
    George W. Van Slyck, for app’lt; R. EL Underhill, for resp’t.
   RUMSEY, J.

the 25th of February, 1893, the parties to-this action made a contract by which the defendant agre'ed to sell to the plaintiff certain premises in the city of New York for the price of $29,000, to be paid by the plaintiff, and upon which, at the time of the execution of the contract, the plaintiff paid $1,000. After the contract was made, the plaintiff caused the title to be examined at an expense to him of $500, and thereupon he declined to complete the contract, and take a conveyance of the premises, alleging as a reason that the defendant did not have a marketable title to the property. Ete then brought this action to recover the amount of the deposit and the expense to which he had been put in the examination of the title. The action was tried at the circuit, and a verdict was ordered for the defendant, upon which the judgment appealed from was entered.

It is conceded by both parties that Ely Moore was the owner in - fee of these premises down to December, 1827, and the defendant claimed title under Ely Moore. He produced, however, no deed from Ely Moore directly, but endeavored to establish the fact that a deed had been executed and delivered in the following way: He produced and put in evidence a mortgage from one Job Furman to Ely Moore, dated the 10th day of December, 1827, and properly recorded, mortgaging the premises in question to Moore to secure a sum of money, and containing the following recital • “Being the same premises which were conveyed by said Ely Moore and Em-aline, his wife, by their indenture bearing even date-herewith, as by reference thereto will more fully appear.” There was no other proof made of the existence of a deed by Ely Moore to Furman. The defendant deduced his title by a series of mesne conveyances from Furman. These conveyances were all properly recorded. In addition to that, the defendant produced a conveyance from the heirs of Ely Moore to one Motley, dated the 1st day of December, 1864, and recorded in January, 1865, reciting a consideration of $1,000 paid to the grantors. He also produced and put in evidence a deed from the heirs of Ely Moore to one Callaghan, dated in March, 1868, and recorded on the 22d? day of April, 1868 ; and he produced and put in evidence a conveyance from Motley to Callaghan, and conveyances from Callaghan; through divers persons, to himself. This was the title upon which the defendant relied. It is quite apparent that, so far as the' heirs at law of Ely Moore were concerned, these several conveyances gave to the defendant a perfect title to the premises. Ho element of proof was lacking to complete that title. Although the deed from Ely Moore to Furman was not produced, yet the recital in the Furman mortgage that the property had been conveyed by Moore and wife to Furman is sufficient proof of the deed which Moore had made to Furman, and the heirs of Moore were estopped to question the existence of that deed. Carver v. Jackson, 4 Pet. 1, 83; Dock Co. v. Leavitt, 54 N. Y. 35. That recital as against Moore and all persons privy to him operated as couclusive proof that the deed mentioned in it had actually been made and delivered. Torrey v. Bank, 9 Paige, 649. Therefore, except for the recording act, the title of the defendant was good as against all persons making an adverse claim to this property through Ely Moore. The plaintiff, however, insists that the outstanding conveyances which he claims are a cloud upon the defendant’s title take- precedence by virtue of the terms of the recording act, and for that reason the defendant could not convey a good title: At the foundation of the opposing title is a deed made by Ely Moore through his attorney to one Horton in 1848, and recorded on the 2d day of May, 1868. The power of attorney by virtue of which this deed was made was recorded at the same time with the deed. There are some defects in this power of attorney which it is not material to notice here, Norton conveyed to Hawkes by a deed which was also recorded on the 2d of May, 1868, and Hawkes mortgaged the property for a substantial amount, and that mortgage is still outstanding. The plaintiff claims that the record of the deeds from Furman by mesne conveyances to the defendant was not operative as against the deed to Norton, because, as there was no conveyance on record from Moore to Furman, these deeds did not give any notice that Furman derived his title from Moore. The rule undoubtedly is that the record of the mortgage from Furman to Moore, although it contained a recital of the deed from Moore to Furman, was no notice, under the recording act, to a subsequent purchaser, or the existence of the deed from Moore to Furman, which was mentioned in the recital. Wade, Notice, § 207; Losey v. Simpson, 11 N. J. Eq. 246; Veazie v. Parker, 23 Me. 170. If that were all there was of the title of the defendant, it might be that the outstanding title would be the better one, because of the provisions of the recording act, which are that every conveyance not recorded shall be void as against any subsequent purchaser in good faith, and for a valuable consideration of the same estate, whose conveyance shall be first duly recorded. 1 Eev. Sft p. 756, § 1. The defendant, however, seeks to supply this defect by a reference to the deeds from the heirs of Ely Moore, each of which was recorded before the deed to Norton. The plaintiff says, however, that these deeds -are neither of them effective. He claims that the deed of December, 1864, is inoperative either to convey property or to" serve as notice to a purchaser whose deed is subsequently recorded because it had no seals. In this claim he is mistaken. Although that deed was not effective to convey the legal title, it was nevertheless good as between the parties to it, to vest in the grantee an equitable right to the property which would entitle him, as against the grantors, to have the legal title conveyed to him by a proper instrument. Tarbell v. West, 86 N. Y. 280; Todd v. Union D. S. Institution, 118 id. 346; 28 St. Rep. 697; Grandin v. Hernandez, 29 Hun, 399. It was held in that case that such a deed might lawfully be recorded, because it affected the title to real estate (1 Rev. St. p. 762, § 38), and that, being so recorded, it was notice to all persons dealing with the property that the grantors had conveyed the property. If that be so, clearly Norton’s grantee, Hawkes, when he took his conveyance, had constructive proof by the record of this deed that the heirs of Ely Moore had conveyed the property away, and therefore he could not have been a purchaser in good faith. But, if that were not so, still this deed, in conjunction with the deed from the same parties executed in March, 1868, was clearly sufficient to vest the legal title in the defendant. While the deed of December 1, 1864, was not operative to pass the legal title, yet it was, as we have seen, effective, as between the parties, to convey to the grantees named in it all the equitable rights which were necessary to entitle them to compel a conveyance of the naked legal title from the grantors. As such a conveyance it not onlv vested the grantees with the equitable interest in the property, but the recital of a consideration in it was prima facie proof of the payment by the grantee therein named to the heirs of Ely Moore, of a valuable consideration for the premises. Wood v. Chapin, 13 N. Y. 509; Jackson v. McChesney, 7 Cow. 360; Lacustrine Fertilizer Co. v. Lake Guano & Fertilizer Co., 82 N. Y. 476. When, therefore, the heirs of Ely Moore made the subsequent, conveyance in March, 1868, by which their title vested in Callaghan, who at the same time became the owner of the equitable interest transferred by their deed of December, 1864, they simply did what the law would have compelled them to-, do ; that is, to-transfer to the person holding the equitable right, which they had conveyed, a legal title which was necessary to perfect their conveyance. When that was done, Callaghan became the owner of the perfect legal title by two deeds, one of which passed the title, and the other, by its recitals, prove that he was a purchaser in good faith ; and, those deeds being thus recorded, make a perfect title as against any conveyance from Ely "Moore subsequently recorded. The result of all these deeds together was that, the defendant showed a title from the heirs of Ely Moore to a purchaser in good faith, fully protected by the recording act, on. the 22d day of April, 1868. This title was conveyed to the defendant, and he then was the owner of these premises, not only by virtue of the Furman title, which- was effective as against, everybody except á subsequent purchaser whose deed was first recorded, But by virtue of the title from the heirs <?f Moore, which was recorded before the deeds under which Hawkes claims. There was, therefore, no defect in the defendant’s title in -any aspect in which it can be viewed. All the facts upon which this-title depended appear by the record, and are necessarily established when the record is put in evidence. For that reason the-title was not only a good one, but it was marketable (Fleming v. Burnham, 100 N. Y. 1), and the judgment dismissing the complaint was proper, and should be affirmed, with costs. ^

All concur.


author: INGRAHAM, J.

text:
    Gorham Manufacturing Company et al., App’lts, v. Charles Seale, as Assignor, etc., et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)
    1. Appeal—Case—Certificate.
    The affidavit of the plaintiffs attorney, annexed to the case settled by the judge, that the case contains all of the evidence taken upon the trial, cannot take the place of a statement by the court which is made a part of the case.
    2. Same.
    In the absence of an express certificate of the trial court that the case as. settled contains all the evidence upon which the court acted in determin. ing a question of fact, such determination cannot be reviewed on appeal.

      3. Same—Evidence.
    Where there is a mere inference to he drawn from hooks, on one side, which is contradicted by the positive oath of a party, on the other, a question is presented for the determination of the trial court.
    Appeal from a judgment dismissing the complaint.
    George Carlton Comstock, for app'lts; John 0. Robinson, for resp’ts.
   INGRAHAM, J.

The action is brought to set aside an assignment for the benefit of creditors as fraudulent, and made with the intent to hinder, delay and defraud creditors. The assignor was in business as a retail jeweler in New York, and the foundation of the plaintiff’s claim seems to be the disappearance of 159 articles of jewelry, valued at $18,280, which, according to the assignor’s books, should have been in his possession at the time of his failure, but of which there were received by the assignee sixty-one pieces, inventoried at the nominal value of $1,178.75. This discrepancy is claimed to have been shown from an examination of the books only. There was testimony as to the estimates of the condition of the assignor’s stock of persons visiting his store during a period of three or four months prior to his assignment ; but the extent of this stock in his store was explained by the fact that he had on hand for sale a large amount of goods that did not belong to him, and, which were returned to the owners pior to the assignment. The books were introduced in evidence, and two witnesses were examined for the plaintiffs, who testified to an examination of the books and their contents. The trial justice found as a fact that the assignment was not made with the intent to hinder, delay, and defraud creditors, and the only question that is presented is as to the correctness of that finding of fact.

There is no statement in the record that the case as settled contains all the evidence before the court upon the trial. There is annexed to the case an affidavit of the plaintiff’s attorney that “ the foregoing is all the evidence taken at the trial of the action m question.” The opinion of the court states that there was an analysis of the books, which are not before us, submitted by the defendants, which explained the apparent discrepancy between the property received by the assignee and that which it is claimed by the plaintiffs the books showed should have been received by the assignee, but which he did not receive. It is clear that, the books not being before us, and this analysis being before us, it is impossible for us to review the finding of the judge upon this question of fact. The affidavit of the plaintiff’s attorney annexed to the case settled by the judge, that the case contains all of the evidence taken upon the trial, cannot take the place of a statement by the court which is made a part of the case; and we wish to emphasize the rule that, in the absence of an express certificate of the trial court that the case as settled contains all the evidence upon which the court acted in determining a question of fact, such determination cannot be reviewed on appeal. It is for the court to say what evidence was before it in determining the question submitted; and it is upon that evidence only that we can review the determination of the facts. The appellant, who brings the question before us, and asks to review the findings of fact, prepares the case, and it is in his power to insert in it all - the evi- • dence bearing upon the question of fact the determination of which he seeks to review, and he cannot complain that the court refuses to review the facts if his case, as prepared by him and settled by the judge, does not contain all the evidence bearing upon the question of fact.

A point is also made by the appellants that the trial judge erred in going outside the record in deciding the case. There is not, however, the slightest evidence presented by the record that the judge considered any fact not in evidence before him. The record shows that the books were in evidence before him. In his opinion, he states that the counsel for the defendants analyzed these books ; but a consideration of an analysis of evidence before the court is not “ going outside of the record.”

The sole foundation for the plaintiff’s attack upon this assignment is this alleged discrepancy between the stock of goods that should have been on hand according to the assignor’s books and. what the assignee received under the assignment; and from that the court is asked to draw an inference of an intent on the part of the assignor to reserve for his own use these articles which according to his books, he should have had on hand, but which he did not deliver to the assignee. To meet that, the assignor was called, and swore positively that all of the property that he had in his ' possession at the time of the assignment' was delivered to the assignee, and various explanations were given as to this discrepancy appearing on the books. That queátion was purely a question of fact for the court,depending entirely upon the correctness of the books, or the analysis of the books made by the plaintiffs' witnesses; and in the face of the evidence of the assignor, it was for the trial court to say whether the inference to be drawn from the books was sufficiently strong to overcome the direct oath of the assignor, and thus prove fraud. Even if we should assume to pass upon, this question of fact from this record, we do not think that we would be justified in reversing the determination of the court beloW on this question. There is not a particle of evidence, except this discrepancy before noted, that tends to show in any way that the assignor retained in possession or under his control any property which should have been delivered to the assignees after the assignment; and where there is a mere inference to oe drawn from books, on one side, which is contradicted by the positive oath of the assignor, on the other, a question is clearly presented for the determination of tne trial court. We, however, affirm this judgment upon the distinct ground that the record as made up does not present to ns the evidence before the trial judge.

The judgment appealed from is therefore affirmed, with costs.

All concur.


author: GAYNOR, J.

text:
    Jane Wells, Pl’ff, v. City of Brooklyn, Def't.

      (Supreme Court, Kings Trial Term,

      Filed March, 1896.)

    1. Municipal corporation—Streets—Obstruction.
    Where the city has not given a permit to the owner of adjourning premises to place or maintain an obstruction on the sidewalk, it is not liable for it as a nuisance of its creation.
    3. Same.
    In such case, its liability is for breach of its duty to remove an obstrucion, and it cannot be held liable unless such breach of duty caused the in. jury.
    3. Same.
    Negligence in failing to remove an encroachment upon a street may only be predicated upon an encroachment essentially dangerous, or likely to become dangerous.
    Motion for a new trial
    A. H. Darby, for pl’ff; W. G-. Cooke, for def’t.
   GAYNOR, J.

I think it better that the verdict stand, and be reviewed by the appellate division. It ■ was the duty of the city to keep the streets clear of encroachments and incumbrances (Brooklyn Charter, tit. 15); and - this action is maintainable only for a breach of such duty. It follows that the defendant may not be held liable unless such breach of duty caused the injury to the plaintiff. Did it? The show case was standing upon the sidewalk close to the curb, securely fastened to a post, so that it could not fall over. It was not at all dangerous as it was. But a cart-man, delivering goods next door, backed up against it in the evening, and knocked it over, breaking it from its fastenings. It was set up again by him or its owner without being fastened, and the next day the wind blew it over upon the plaintiff. The time which had elapsed wat insufficient to impute notice of its dangerous condition to the city. Can the accident be said to have been caused by the neglect of the city, when it could nob- have happened excepting for the show case having been broken down by ■the cart? It seems to me not, unless the existence of. the show case, securely fastened as it was, would in the exercise of reasonable attention and prudence by the city’s officials, have been considered dangerous, in that such a mishap as befell it with the cart was to be anticipated. If that was the case, then the neglect of the city was the cause of the accident; otherwise, not. The proposition involves a question of fact, which was submitted to the jury. The city did not give a permit to the owner to place or maintain the show case, and is therefore not liable for it as’ a nuisance of its creation (as in Cohen v. Mayor, 113 N. Y. 532; 23 St. Rep. 509), any more than it would be for any obstruction placed or kept in the street without its participation. Its liability is for breach of its duty to remove an obstruction, and it may not be held liable unless such breach of duty caused the injury. “The basis of the claim which the injured individual has against a city for damages which were occasioned by a defect or obstruction in a public street is, in every instance, the negligence of the corporation, acting through its officers.” Tied. Mun. Corp. § 350. The learned author uses this language in marking the distinction between the liabilities of a city for neglect of duty in respect of the streets, and for a nuisance created or maintained therein by it, or under a permit or license from it. Negligence in failing to remove’ an encroachment upon a street may only be predicated upon an. encroachment essentially dangerous, or likely to become dangerous. Hume v. Mayor, 74 N. Y. 264; Rehberg v. Mayor, 91 N. Y. 137. In other words, the duty is to use reasonable diligence to keep the streets safe for travel, and if that diligence be exercised, there can be no liability. The question of fact in the present case was whether, the use of reasonable official care and foresight, this show case would have been seen to be dangerous, in that it was likely to be knocked from its fastenings, as it was; and this the jury answered in the negative.

The motion for a new trial is denied.


author: PER CURIAM.

text:
    New Rochelle Coal and Lumber Company, App’lt, v. Frederick J. McGraw, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed March 7, 1896.)

    Attachment—Vacation.
    TJpon a motion to vacate an attachment, hearsay statements, which ara denied by defendant, are unavailing to sustain it, where the persons . who made such statements' are accessible and it is not shown that their affidavits could not he procured.
    Appeal from an order vacating and setting aside an attachment issued in the action.
    Charles T. Terry, for app’lt; Norman A. Lawlor, for resp’t.'
   PER CURIAM.

The action is to recover the amount of three promissory notes, made by the defendant to the plaintiff, and also the value of goods sold and delivered on an open account. The ground on which it was sought to obtain the attachment was that! the defendant made a false statement, in writing, of his financial! responsibility and standing, for the purpose of procuring an ex-! tension of credit. It appears that the notes had been delivered, by and the goods sold to the defendant before the alleged false' statement on his part. The false statement claimed to have beend signed by him is the implied warranty or assertion of title contained in an assignment to the plaintiff of a mechanic’s lien filed by the defendant against certain real property, and in an order directing one Keating to pay the plaintiff the sum of $600, and! deduct the same from the last payment due the defendant for work on Keating’s house. The only evidence to show that nothing was due from Keating to the defendant at the time of the order was .the declaration made by Keating to the plaintiff’s agent, and the only evidence of the invalidity of the mechanic’s lien was an allegation in the answer interposed in a suit by the plaintiff to enforce the mechanic’s lien that the defendant had previously assigned his interest therein to his wife, Elizabeth McGraw. No affidavits by Keating or by Osiecki, the defendant in the mechanic’s lien suit, were produced. The affidavits on the part of the plaintiff show that Keating and Osiecki are entirely accessible, and no reason is given why affidavits from those parties were not obtained. The affidavit by the defendant avers the validity of his claims against both persons, and denies the assignment of the mechanic’s lien to his wife. In this denial the defendant’s wife, by her affidavit joins. We think the order below was correct. If it be conceded that these two instruments executed by the defendant were, within the meaning of the Code, statements in writing under his hand of his title to the choses in action assigned, and also of the existence and validity of such choses in action, still the only proofs tending to establish the falsity of such statements were the hearsay statement of Keating and the allegation of Osiecki’s answer. These -statements are unavailing certainly when denied by defendant, because it was not shown that the persons from whom they were ob-. tamed were absent, or that their depositions could not be procured. Yates v. North, 44 N. Y. 271; Bank v. Alberger, 78 id. 252.

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


text:
    Joseph A. Iasigi, Resp’t, v. Clara Rosenstein, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    Sale—Delivery—Custom.
    A broker’s note of a sale of canary seed, “ March steamer shipment from Turkey, goods to be taken from, dock on arrival of steamer,” indorsed, “ Name of steamer Aleppo. No arrival, no sale,”—does not require delivery in New York by the Aleppo, where it appears that no steamer ever takes goods directly from Turkey to New York, but that the universal custom, known to the parties, is to transship at Liverpool.
    Appeal from a judgment in favor of plaintiff.
    H. Aplington, for app’lt; David Keane, for resp’fc.
   INGRAHAM, J.

The main question in this action was settled "by the court of appeals on a former appeal (see 141 N. Y. 414; 57 St. Rep. 756), in which it was held that, under the contract as •made, a shipment by the steamer Aleppo from Rodosto was all that was required; that it was no part of the contract that the goods should arrive at the port of New York by the same steamer; -and the mere fact that the goods were transshipped at Liverpool, and brought from Liverpool to New York by another steamer, did not necessarily allow the defendant to refuse the goods upon their arrival. The court say :

'“The steamer of arrival is not identified. It may or may not-be the one first mentioned, or another and different one. If it must mean the Aleppo, and can mean no other, the general term was right; but if may mean the steamer of arrival, even though not the Aleppo, then there is an ambiguity, a doubt about the-real contract intention, which may be solved by proof of custom and usage. I think that is the truth. * * * There are two elements provided: First, the property bought is to be ‘good merchantable Smyrna canary seed ; ’ and, second, ‘ March steamer shipment from Turkey.’ That ends the description of what was-agreed to be bought, for the note goes at once to the question of price and other details of the contract. Plainly, for some reason, the parties contented themselves with saying simply ‘shipment from Turkey,’ and omitted to add ‘to Hew York,’ or other words indicating a direct or unbroken voyage; and this omission, occurs in the formal description of the goods, and where it was not to be expected if a direct voyage was meant. * * * The moment it is shown that there was no steamer sailing direct fromTurkey to Hew York, that all importations from that country by steam came first, to Liverpool (or some other intermediate port), -and were there transshipped, and that the goods bought, if transported by steam, must come and could come in no other way, and that, both parties and their broker knew the fact, all doubt and ambiguity disappear.”

It was proved upon the trial that the Canard Steamship Company dispatched a steamer frorn Turkey during the month of March, 1887, which sailed from Rodosto in the month of March for Liverpool; that no steamer was dispatched from Turkey taking goods directly for Hew York during the month of March, 1887: that the usual and customary mode of shipment of merchandise by steamer frorn Rodosto to Hew York is always by trans* shipment at an.intermediate port, and that that intermediate pon is Liverpool, England; that no steamer took goods from Rodost»for Hew York during the year 1887; that the goods in question were shipped by the Aleppo to Liverpool, and transshipped at, Liverpool to the steamer Aurania, and delivered in Hew York;. that no steamer ever took goods from Rodosto to Hew York direct,, but always with transshipment for Hew York at Liverpool; and that the steamer Alleppo was used on regular routes between Rodosto and Liverpool. It was also proved that the goods in question arrived in Hew York by th,e steamer Aurania, and were tendered to the defendant, who refused to receive them, on the ground that the goods had not arrived in the vessel named in the contract. And it was proved by the broker in Hew York w.ho made the-sale that the custom in the shipment of goods from Turkey was. by steamer to England, and to transship them from there to Hew York. The defendant offered evidence tending to show 'that, when a contract is silent as to whether a shipment shall be direct or indirect, a direct shipment was intended. But there is no evidence to show that during the year 1887 there was. any line of steamships sailing from Turkey to New York, or that in the spring-of that year it was possible to procure a direct shipment by steamer from Eodosto to New York. The court left it to th’e jury to say whether it was the custom or usage of the trade in Turkey to carry goods to Liverpool, or an intermediate port, and there transfer them to a steamer for New York, and instructed them that, if they found such custom and usage to exist, the parties to the contract are to be presumed to have been contracted with regard to that usage; and if they found that such usage was not known to the trade in New York, then they should find a verdict for the defendant, but, if the jury should find that the usage and custom exissed, and that it was known in New York, then the-parties are presumed to have entered into this contract with reference to that custom, and the plaintiff was entitled to recover. We think that under the decision of the court of appeals that was an error in favor of the defendant, and that the finding of the jury was sustained by the evidence.

There were several exceptions to the admission of evidence, but none of them appears to be of substance. The plaintiff was allowed to read an admission made by the defendant upon a former trial, and to this defendant excepted. This is, however, immaterial, as all the facts included in the admission were proved upon, the trial, and were not disputed. The other exceptions do not require notice.

We think no error was committed upon the trial, and that the judgment should be affirmed, with costs.

All concur.


author: PATTERSON, J.

text:
    Cero Mastro Paolo, App’lt, v. James Hunter, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Master and servant—Instruction.
    Where the master, aware that there is a dangerous place at which his-servant will be put to work, allows the servant, who is ignorant of the danger, to go to that place, fails to inform him or notify him in any way of the extreme risk he will run and negligently f orbears to caution him in any way or to give him the opportunity to decline the service, and the-servant is injured in consequence, he is liable.
    3. Same.
    A complaint, alleging such facts, is not demurrable as showdug that the risk was an open one and one of the ordinary risks of the employment, or that the accident resulted from the negligence of a fellow servant.
    Appeal from an interlocutory judgment entered on an order sustaining a demurrer to the complaint.
    Daniel J. Goughian for app’lt; A. H. Smith, for resp’t.
   PATTERSON, J.

This is an appeal from an interlocutory-judgment entered on an order sustaining a demurrer to the complaint herein, the ground of the demurrer being that the com-1 plaint does not state facts sufficient to constitute a cause of .action. The plaintiff seeks, to recover damages for injuries sustained by him while at work as a laborer employed with others by the defendant in making an excavation in one of the public streets of the city of New York. It is averred in the complaint that “on and prior to the 12th day of July, 1895,the plaintiff was employed as stated, and that on that day “the -foreman of the above named defendant directed a driver to hitch , four horses to a stone to pull it out from its place for the- purpose -of making the aforesaid excavation, which the driver did; and this plaintiff was directed by the aforesaid foreman to go behind the stone, and assist the horses in moving the stone; and that this plaintiff, having no knowlege of the extreme danger to his person of lifting behind the stone, obejrnd the direction of the foreman, and took the place assigned to him behind the stone and against the wall of earth, and, when the stone moved, the wall of earth fell -updn this plaintiff, crushing him, etc. The plaintiff “alleges that the place where the plaintiff was put to work was dangerous in the extreme, which danger was known to the defendant and .was unknown to this plaintiff, and that no instruction was given to this plaintiff by the defendant as to the extra danger incurred in obeying the direction of the defendants." Two grounds were assigned by the learned'judge below for sustaining the demurrer: •First, that the plantiff assumed the ordingry risks of his employment, among which was that of being injured in helping to remove the stone for the purpose of excavating — a risk, it is said, that must have been patent to the observation of the plaintiff and of every one else—and that there was no duty owing by the master “ to instruct ” the plaintiff; and, second, that, in any -event, the -defendant is not liable, because the negligence resulting in the injury was that of a fellow servant of the plaintiff, and not of the defendant himself. No fault can be found with the general expression of views of the court below on the abstract rule of lia-, •bility controlling in cases of this kind, and which in all likelihood-may be found to be applicable when the plaintiff’s evidence is all in; but the learned court has disposed of the matter by anticipating what may appear on the trial, but what is not contained, either directly or inferentially, in the complaint. All the allegations of fact being admitted by the demurrer, it stands conceded that the plaintiff was put to work in a dangerous place, or, as the complaint ■charges, a place of extreme danger It is also conceded that the danger was unknown to the plaintiff, and that it was known, not to the foreman only, but to the defendant personally, and that no information of the unsafe character of the place was given to the plaintiff. Therefore the facts are that the defendant, aware that there was a dangerous place at which his servant would be put to work, allows that servant, ignorant of the danger, to go to that place, fails to inform him or notify him in any way of the extreme risk he will run, negligently forbears to caution him in any way,- or to give him an opportunity to decline the service, and the servant is injured in consequence. The allegations are not such asl to make the facts speak for themselves to show that the danger was apparent to any one. It is an inference of the court’s that the work was not of such a kind as to call for “ instruction ” by the employer to his servant. The averment is that the servant was in complete ignorance of the danger, and it cannot be ignored. The allegation as to “instruction ” does not relate to tuition how to work, or how to avoid injury at a dangerous place, as the court ■below evidently interprets it, but instruction in the sense of conveying information so that the plaintiff would have knowledge of the fact that the place he was ordered to work at was one of -danger. The demurrer admits the servant did not know it, and ■hence that he did not see it. The court assumes he must have done so despite the admission by the demurrer that he did not. According to the plaintiff’s statement, he was sent to this, to him unknown place of danger, directed -to do something extremely perilous, he having the right to assume he would be sent to a safe place. That is enough, in connection with the allegation of the defendant’s personal knowledge referred to, to show a failure of duty on the part of the employer “A master owes the duty to his servant of furnishing * * * a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his duties.” Pantzar v. Mining Co., 99 N. Y. 372. That is the theory of the plaintiff’s cause of action. Whether it will stand the test of evidence can only be seen on the trial. The court assumed that the work of removing the bowlder was part of the work of excavating, and by so doing brought the case within the ruling in Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359. The complaint suggests, although it does not ■distinctly state, tin t it was work preparatory to excavating, and the court’s assumption is scarcely justified by the simple averment that the plaintiff, on and before the day named in the complaint, was employed “ for the purpose of making an excavation in the street.” Nor can it be said that the complaint shows on its face that the accident was caused by the negligence of the fellow servant The facts are not stated as definitely as could be desired, but the meaning of the complaint is that the master himself, knowing the place was dangerous, failed in his duty to the plaintiff by neglecting “to instruct ” him that such was the condition. It charges a direct violation of duty on the master, the whole extent of which cannot be ascertained’ until all the evidence is before the court. As above stated, the error is in disposing of the case on demurrer by assuming what does not now appear oh the face of the pleading, and without giving due effect to the allegations of the complaint, construed, as the law requires, liberally, with a view to substantial justice between the parties.

The interlocutory judgment should be .reversed, and the demurrer overruled, with costs, with liberty to the defendant to withdraw the demurrer and answer on payment of the costs of this appeal and in the court below.

All concur.


author: BROWN, P. J.

text:
    People ex rel. Cornelius Byrne, Resp’t, v. Alfred E. B. Brugman et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 14, 1896.)

    1. Parent and child—Custody.
    The right of a surviving husband or wife to the custody of an infant child cannot be afiected by any testamentary disposition of the child by the decedent.
    2. Deposition—Deceased witness.
    The deposition of a witness, which was taken to be used in one action, cannot be read in another action after the death of the witness.
    Appeal from an order, awarding the custody to plaintiff.
    J. C. Julius Langbein, for app’lts; William L. Snyder, for resp’ts.
   BROWN, P. J.

— The controversy between the parties to this proceeding relates to the custody of Arthur Byrne, an infant of the age of about four years, and a son of the petitioner. The appellants are the maternal uncles of the infant, and claim tu be entitled to retain custody of him, on the ground (1) tuat they ,are his testamentary guardians, under the last will and testament of his mother, and (2) that the petitioner is not a fit and proper person to have the custody of his son. The learned judge who heard the case at special term overruled both of these claims, and we concur with his conclusions.

The appellants wholly failed to show anything in the character of the petitioner, or in reference to his conduct towards the infant or its mother, which would have permitted the court to have denied to him the care and custody of his son. The appellants acquired no right in reference to the child, under its mother's will. The petitioner had the legal right to have the custody of his son, and the attempt upon the part of Mrs. Byrne to dispose of his custody during his minority, by her last will and testament, created no right whatever in the appellants as against the petitioner. At common law, the father had the legal right to control his minor child, and was entitled to its custody absolutely,'to the-exclusion of -its mother. This rule has been modified by the statutes of this state, and the course of legislation upon the subject appears in 2 Rev. St. p. 150, § 1; Laws 1871, c. 32; Laws 1888, 454; Laws 1893, c. 175. In the last statute cited, every married women is declared to be the joint guardian of her children with her husband, with rights and duties in regard to them equal toiler husband; and upon the death of either parent the survivor is given the right, by deed or will, to dispose of the custody of such child or children during their minority, or for any less time. This statute is still in force, and the petitioner, being the surviving parent, has the sole right to appoint the testamentary guardian of the child, and his right to its custody is absolute, assuming hi in to be a fit person. In re Schmidt, 77 Hun, 201; 56 St. Rep. 772.

It appears that the petitioner and his wife were married in 1890 and in May, 1892, Mrs. Byrne commenced an action in the court of common pleas in the city of New York to obtain a separation from her husband, on the ground of cruel treatmenL The petitioner appeared, and put in an answer in the action. The case, however, was never brought to-trial, and was pending, undetermined, in August, 1895, when Mrs. Byrne died. Prior to her death, her deposition was taken in the action de bene .esse, and was filed May 1, 1894. In this deposition she testifies to acts of cruel treatment upon the part of her husband towards her. Upon the hearing of this proceeding, this deposition was offered in evidence by the appellants, and, upon the petitioner’s objection, was1 excluded, to which their was an exception. The learned counsel for the appellants strenuously contends that this ruling was erroneous. We are of the opinion, however, that the deposition was properly excluded. The question is controlled by section 830 of of the Code of Civil Procedure. This section limits the admission of the testimony of a deceased witness, given tipon the trial of an action or the hearing of a special proceeding, to a new trial or hearing of the same action or proceeding in which the testimony was given. The ruling excepted to was therefore clearly correct, and the order musí? be affirmed, with §10 costs and disbursements.


text:
    Samuel D. Merrill, as General Guardian, etc., Resp’t, v. Henry Bischoff, Impleaded, etc., App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 14, 1896.)

      1. Mortgage—Foreclosure—Parties.
    A mortgagee, who has assigned the debt and mortgage, is a proper, though not necessary, party to an action by the assignee to foreclose.

      H. Same—Answer.
    Where such mortgagee admits the allegation in complaint that he has assigned and transferred the bond and mortgage, such answer constitutes no obstacle to the rendition of judgment in favor of plaintiff,
    3. Same—Costs.
    No costs should be awarded to the plaintiff, on an answer admitting the assignment, where no relief is asked against him.
    Appeal from an order in favor of plaintiff.
    Ira Leo Bamberger, for app’lt; John Brunnemer, for resp’t.
   PER CURIAM.

The complaint demanded no relief against the defendant Henry Bischoff. It stated facts showing that he was the original mortgagee, to whom the bond and mortgage were delivered; that, subsequently, he entered into an agreement with the defendant Herman Reiners, to whom the property had been conveyed, whereby he extended the time for the payment of the moneys secured by the mortgage; and that, still later, and on or about the 18th day of December, 1894, by a deed of assignment bearing date on that day, he duly “ assigned said mortgage, together with said bond or obligation, to this plaintiff, and therein covenanted that the sum of $3,000, with interest thereon from November 1, 1894; was unpaid and owing thereon.” There is no allegation in the complaint in relerenoe to the appellant

By his answer, the defendant Henry Bischoff admitted that’ he assigned and transferred the bond and mortgage as alleged in the complaint. It was, doubtless, the object of the plaintiff, in making him a party, to procure this admission, either expressly ¡ in the answer, or by the failure of the defendant Bischoff to plead at all. For this purpose he was a proper party to the action, although not a necessary party. His admission of the allegation that he had assigned and transferred the bond and mortgage, as alleged in the-complaint, left him without any defense to the plaintiff’s cause of action ; and the court at special term was therefore right in holding that the answer .constituted no obstacle to the rendition of judgment in favor of the plaintiff. We are of the opinion, however, that the order should not have awarded any costs to the-plaintiff, inasmuch as the answer was a benefit instead of an injury to him.

Order affirmed, except the provision as to costs, which is reversed. ^ No costs of appeal


author: CULLEN, J.

text:
    Arthur W. Palmer, as Guardian, etc., Resp’t. v. Noyes E. Palmer, Individually and as Administrator, etc., App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 14, 1896.)

    Executor—Disputed claim.
    - A personal claim by an administrator against the estate of his decedent: cannot be determined on motion, in an action for partition of decedent’s-land, to direct a referee to take proof thereon, but must be determined by the surrogate in the regular course of adminstration.
    Appeal from an order denying a motion to modify an interlocutory judgment.
    William E. 0. Mayer, for app’lt; Cyrus Y. Washburn, for resp’t.
   CULLEN, J.

After the trial of the issues in this action, which is brought for a partition of certain cemetery lots, and the entry of an interlocutory judgment herein, the appelant moved to modify that judgment by directing the referee to take proof of the claims of the appellant, as a general creditor of the deceased ancestor,, through whom all parties derived their title to the premises in suit. The application was denied "‘by the special term. We think this, was the proper disposition of the application. More'than threevears had elapsed since letters of administration had been granted. It is therefore probable that, under section 2750 of the Code, the-property had become relieved from the lien of the debts of the-deceased owner. The provisions of the Code relative to a sale of a decedent’s real estate for the payment of his debts have been so* entirely changed since the time of Mead v. Jenkins, 95 N. Y. 31, that there is little or nothing in the decision in that case applicable to the present state of the statute. However that may be, it is plain that the amount and existence of any claim of the appellant against the estate of the decedent should not be determined in the mode provided by law. Hogan v. Kavanaugh, 138 N. Y. 417; 52 St. Rep. 884, was an action to direct the sale of real estate-for the payment of legacies charged upon it. One of the parties to the action claimed a lien upon the lands, as a general creditor of the testator, alleging insufficiency of personal assets. This lien was allowed to the party. On appeal the judgment was reversed, the court holding that such claims against the real estate of a deceased person could only be established in the regular process of administration, before the tribunal provided by law to administer upon the estate. This rule applies with particular force to the present appellant He is the administrator of the deceased. By the statute his claim can only be determined by the surrogate. He has had entire control of the proceedings of administration. As to him there is no reason why, if he has a claim against the estate of his intestate, that claim should not have been established before thei surrogate, his accounts as administrator passed, and, if there was a deficiency of personal assets to pay the charges against the estate, that fact be judicially established by the decree of the surrogate.

The order appealed from should be affirmed, with $10 costs and disbursements, ' ' '

All concur.


text:
    Walter E. Switzer, Resp’t, v. James Norton, as Sheriff, etc., App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)
    1. Trial—Request for verdict. '
    It is not the rule that a trial court is authorized to withdraw a case and' direct a verdict, in cases where both parties ask for a direction in their favor.
    2. Same.
    It is only when no request is made to go to the jury that the party will be compelled to have waived such right.
    Appeal, from a judgment in favor of plaintiff
    Thomas F. Magner, for app’lt; James Flynn, for resp’t,
   BROWN, P. J.

This action brought to recover the value of two horses, one T-cart, one buggy, and one set of double harness alleged to have been converted by the defendant. The plaintiff’s-proof tended to establish that the property had been in use at a-livery stable at Lawrence Beach Hotel on Long Island in the summer of 1892, and was sent from there by the plaintiff to the stable of James Wood, at Garden City; and that, while in Wood’s stable, was levied upon by the defendant under an execution issued upon a judgment rendered against one Rufus W. Leavitt, and that subsequent to the levy the property was taken away from Wood’s stable and sold. It was the claim of the defendant that after the levy had been made the property was taken from his possession by John J. Walsh, who had been duly appointed the receiver of said Leavitt by an order of the court which antedated the execution, and had been sold by said receiver. The deputy sheriff who made the levy testified that he did not remove the property from Wood’s possession, but that, after he was notified of the receiver’s appointment, and demand was made for the property, he relinquished the levy. The defendant offered in evidence a copy of tire order appointing the receiver, which was excluded,, and the court also excluded all evidence as to the receivership, and limited the proof to the question of Leavitt’s ownership of the property levied upon. To which rulings the defendant excepted. The plaintiff’s testimony also was that one of his horses sent to Wood’s stable was a sorrel and one a bay, While the testimony on the part of the defendant was that both horses levied upon were bays, and that the T-cart was not found at Wood’s, but at sale stable a mile from Wood’s stable. Upon the question of value the plaintiff’s evidence was that the property was worth $600, while the evidence on the part of the defendant was that its value was much less. At the close of the testimony the defendant moved that the court direct a verdict in his favor on the ground that the proof showed that he had relinquished the levy, and that, as he had not taken the property from the possession of Wood, he was not responsible for its loss. The plaintiff at the same time asked that a verdict be directed in his favor. The court thereupon stated that, as both parties had moved for a direction,- he directed a verdict for the plaintiff for $500. To this ruling the defendant excepted, and asked to go to the jury upon the facts, which request was refused.

We are of the opinion that the judgment must be reversed. It is not the rule that a trial court is authorized to withdraw a case from the jury, and direct a verdict, in cases where both parties ask for a direction in their favor. Parties may consent that the court shall pass on all questions, both of law and fact; and, if they do, they will be bound' by their election; and when both, parties ask a direction, and neither requests to goto the jury, it will be presumed that such consent was given. Such was the case of Adams v. Lumber Co. (recently decided by this court). But' every party is entitled to present to the court for its decision such-legal questions as he thinks arise upon the testimony, without be-ing subjected to the penalty of losing his right to have the case* submitted to the jury. And it is only when no request is made to go to the jury that he will be held to have waived that right. If the rule were otherwise, it would never be safe to ask for a direction of a verdict. By so moving, a party might lose his righif io have the case submitted to the jury; and by failing to so move he would be held to have waived the point on appeal. We are aware that there are cases which apparently hold that, where both parties move for a verdict, the court may draw "the necessary inferences of fact from the testimony, and decide the whole case. But the court of appeals has settled the rule as we have stated it. Shultes v. Sickles, 147 N. Y. 704; 69 St. Rep. 712. In this case the defendant requested a direction in his favor on the sole ground that he had relinquished the levy. That motion was properly denied because assuming that fact to be true, a trespass was proven, and the defendant was liable at least for nominal damages. But, assuming that'the levy had not been relinquished, there were ■other important questions of fact to be determined before a ver•dict could be rendered for the-plaintiff. ’The question of plaintiff’s ownership was supported by no testimony but his own. It was not conclusive, and the jury were permitted to disbelieve it if they chose. Moreover, there was testimony to the effect that Leavitt had had sole charge of the livery stable at the Lawrence Beach Hotel, where the property in' question had been in use during the summer of 1892 ; that he rented out the horses and carriages, and .received the money therefor; and that the plaintiff was unknown to the guests of the hotel. This testimony bore upon the question •of the ownership of the property, and its weight was for' the jury to determine. The identification of one of the horses and T-cart levied upon was also in dispute. The question of value was also one exclusively for the jury to determine. It is plain, therefore, that in asking a direction of a verdict on the ground that he had relinquished the levy and surrendered the possession •of the property, the defendant did not waive the question of ownership and value, or his right to have such questions submitted to the jury. Upon the denial of his motion he promptly requested that these questions should be submitted to the jury, and it was error to refuse that request.

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

All concur.


author: HATCH, J.

text:
    Mary Emma Wood, Resp’t, v. Robert T. Powell et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 14, 1896.)

    1. Partition bale—Lire tenants.
    In partition between life tenants, a receiver of one of such tenant's property-, appointed in supplementary proceedings, and who represents judgments aggregating more than the value of his life estate, is entitled to file a consent to take a sum in gross, in lien of the income from defendant’s share in the proceeds of the partition sale.

      % Same—Remainderman.
    A remainderman cannot object to an order, allowing a receiver of the property of the life tenant to make such election, on the ground that it would prejudice the estate in remainder.

      3. Same.
    Where, in such case, the receiver failed to file a consent to accept & gross sum in lieu of the income of such tenant’s interest in the proceeds off the partition sale, at the time of the filing of the report of sale, on account, of his belief that the life tenant would file such consent at such time, the-court may properly allow the filing to be made subsequently.
    Appeal from an order making the receiver of the goods and chattels of a life tenant, a defendant in the action, and authorizing him to file a consent to accept a sum in gross in lieu of the-life estate of said life tenant in the lands in partition.
    A. N. Weller, for app’lt; Edward E. Sprague, for resp’t Onderdonk.
   HATCH, J.

Charles Powell, by his will, devised an undivided one-third of certain premises to his son Robert T. Powell for hist life, with remainder over to hi* issue. Robert S. Powell is the only child of Robert T., and takes as remainder-man under the devise. The plaintiff is the daughter of the testator, and also took a life-estate in one-third of the premises under the will. She brought this action to partition the lands. An interlocutory decree was-entered therein, by virtue of which the premises were sold, .and the proceeds, less expenses, were paid over to the county treasurer of Queens county. Prior to the commencement of the partition actions, judgments were recovered by Richard Brower and Gleorge Willets against the life tenant Robert T. Powell, and the-judgment creditors were made parties defendant therein. While-this action was pending, proceedings supplementary to execution were instituted against the life tenant, upon said judgment, and Onderdonk was duly appointed receiver. The interlocutory decree in the partition action provided that, unless the life tenant, should file his consent to accept a sum in gross, on or before the filing of the report of sale, the one-third of the net proceeds of the sale should be paid into the court to be invested, and that, in case such consent be filed, the value of the life estate be ascertained and paid into the court as a separate fund, subject to its further-order. The life tenant failed to file his consent to receive a gross sum, and, the proceeds of the sale having been paid over to the-county treasurer, the receiver applied to the court to be admitted, as a party to the action, and for leave to file his consent as receiver, and, as the person upon whom the life estate had descended, to receive a gross sum in lieu of the income. The application was granted, and from the order entered thereon the life tenant, and the remainder-man bring this appeal.

The judgments which the receiver represents more than equal the value of the -life estate. Consequently, with the disposition of -this appeal the life tenant has little concern. . By virtue of his. appointment, the receiver became vested with all the right, title, ¡ and interest of the'life tenant in the estate (Powell v. Waldron, 89 N. Y. 328; O’Connor v. Bank, 54 Hun, 272; 27 St. Rep. 1), and became, by his appointment, literally, a tenant pur autre vie (2 Bl. Comm. 123); and whether he be permitted to take ^ gross-sum, or is to be remitted to the -income to be derived by investment, the life tenant is not prejudiced, for in either event his life estate is gone beyond recall. He-is therefore with substantial interest upon this appeal.

By section 1569, Code Civ. Proc., it is provided that, where the estate of a life tenant is converted into money, he becomes entitied to receive from the proceeds a gross sum, to be fixed according to the principles of law applicable to annuities, in satisfaction of such interest. In order to accomplish this result the life tcnant is required to file a consent in writing to receive such gross sum, which consent must be acknowledged and certified in like manner as a deed to be recorded, at the time of or before the filof the report of sale. If such consent is not filed then, the proceeds of the sale must be invested for the benefit of the life tenant. In the present case the life tenant made and filed no consent to accept a gross sum, and it is now claimed that the court is without power to allow the receiver to file a consent to take a sum in gross, for the reason that it is a personal right, resting in the life tenant, and does not pass to the receiver, and, further, that it is in derogation of the property rights of the remainder-man.

As to the first claim, it is not contended but that the whole interest in the life estate passed to and vested in the receiver. He became, in fact and in law, the life tenant, and we think, he succeeded to all the rights and privileges which the life tenant possessed in the property, and could exercise any right with respect thereto which the life tenant might have exercised. We are unable to see that the remainder-man is prejudiced by this ruling. He takes the estate under the devise, subject to this contingency of election. Consequently, in no legal sense is he deprived of any property or right. The,receiver has added no burden to the remainder-man’s estate, nor subjected it to any other or greater or different change than; it was subject to. in the hands of the life tenant. When the gross sum is taken, the estate of the remainder-man is left to accumulate during the existence of the life tenancy. At the expiration of that period, in the eye of the law, 'the estate will then equal in value what it was when the gross sum was carved therefrom. At common law the right of succession of a life estate was recognized, and the successor in interest took the entire estate and rights of the life tenant. The Code provision has. not changed any property right in this regard. It has provided a remedy to meet existing conditions and simplified methods of determining property right under such circumstances. There is no difference in principle, that we can discover, between reaching the life estate, which obtained in this proceeding and proceeding by forms of law to reach the dower interest of a widow, which authority has sustained. Payne v. Becker, 87 N. Y. 153. We readily concur in the suggestion that there may be circumstances where the court would not permit a creditor, who had succeeded to the life interest, to take a gross sum from the proceeds of the estate, or permit the life tenant to do so. Such case would be presented where its allowance would defeat the intent of the testator, or where it appeared that the life tenant could only survive for a short period, and it would be manifestly unjust to the remainder-man. It is sufficient, now, to say that we are presented with no such case.

As to the claim that the right of election must be made when • the report is filed, we are of opinion that it was clearly within the power of .the court to grant relief therefrom. Code Civ. Proc. § 783. There was evidence from which the court: could find that the receiver was led to believe that the life tenant would file the necessary consent at the proper time, and that he omitted to take affirmative steps to produce this result on account thereof. Consequently, a case was made in which it was proper for the court to grant relief.

It follows that the order appealed from should be affirmed, with $10 costs and imbursements.

All concur.


author: HATCH, J. CULLEM, J.

text:
    Elizabeth A. Culliford, Resp’t, v. Theodore C. Walser et al., App’lts.

      (Supreme Court, Appellate Division Second Department,

      Filed April 7, 1896.)

    1. Bail—Release.
    Where. bail undertake to pay the judgment recovered against their principal or render his body amenable to process, they are. not discharged from liability because a surety on a subsequent appeal bond paid the judgment to relieve himself from liability and with no intent to discharge the bail.
    3. Same—Subeogation.
    In such case, a surety on the appeal bond'became subrogated to all the right which the plaintiff had or could enforce against the primary debtors.
    3. Same.
    The judgment and undertaking are not affected by the act of the surety in releasing himself.
    4. Same.
    The payment by the surety, in such a case, of a portion of the judgment, leaving the costs on appeal still unpaid, under agreement that the plaintiff shall prosecute the action against the bail for the joint benefit of the surety and himself, does not prevent the further .prosecution of- the action against the bail in his own name, though in fact he will not-receive any of the amount recovered from the bail. ,
    Appeal from a judgment in favor of plaintiff, on a trial without a jury.
    John A. Grow, for app’lts ; F. Spiegelberg, for resp’t.
   HATCH, J.

Plaintiff instituted an action against one Mont-, gomery Gadd, and procured "to' be issued therein an order of arrest, upon which -the person of.Gadd was taken in custody byi the sheriff. For the purpose of procuring his release from custody, defendants executed an undertaking of bail, in the sum of $1,000, whereby they jointly and severally undertook, pursuant to the statute, that the said Gadd should at all times render himself amenable to the process of the court during the pendency of the action, and would at all times render himself amenable to any mandate which might be issued to enforce final judgment against him in the action. Final judgment was obtained against Gadd, and duly entered. From this judgment he appealed to the general term, where the same was affirmed, and judgment of affirmance, with costs, entered. 44 St. Rep. 222. From this determination he appealed to the court of appeals. This appeal was dismissed for fraud in the undertaking given to stay proceedings, and a judgment for costs was entered upon the dismissal. Subsequently he filed a new notice of appeal to the court of appeals, and procured the execution of ■ a new undertaking staying proceedings. ° This appeal was heard upon the merits, and resulted in a judgment of affirmance,- with costs, and judgment was duly entered thereon. Intermediate the dismissal of the appeal and the perfecting of the new one, property executions were issued upon the three judgments first referred to, and all were returned unsatisfied. Upon the affirmance of the judgment in the court of appeals, a property execution was issued upon the judgment entered therein, which was returned unsatisfied. Thereupon the plaintiff issued executions upon all of the judgments .'against the person of Gadd, and they were each returned by the sheriff as “ Not found.” Upon the first appeal to the general term, Gadd procured to be executed an undertaking staying proceedings, with Cornelius 0. Ellis and Franklin Wand as sureties therein. On the day before the last appeal was perfected in the court of appeals by the filing of the undertaking, plaintiff commenced an action against Ellis and Wand as sureties upon this undertaking. Service of the summons therein was made only upon Ellis. He made default, and judgment was entered against him for the amount of the recovery against Gadd, together with the sum entered in the judgment of affirmance at the general term and the costs of the action. This judgment was obtained and entered during the pendency of the last appeal in the court of appeals, and now remains wholly unsatisfied of record. None of the judgments obtained against Gadd have ever heen paid and the same now remain undischarged of record. Prior to the affirmance of the judgment in the court, of appeals, and while the appeal was pending therein, plaintiff issued an execution upon the judgment recovered against Ellis, under which a levy was made upon his real property, and the same advertised for sale. Thereupon Ellis made a motion to open his default, and for leave to file an answer. The motion was denied, but an order was entered providing that, upon payment by him of this judgment, with interest, disbursements, and sheriff’s fees upon the •execution, the plaintiff assign the judgments against Gadd, entered on the recovery and upon affirmance at the general term, together with any cause of action the plaintiff may have, against the present defendants, upon the undertaking now the subject of consideration. . Both parties disregarded this order, and thereafter the attorney for Ellis paid to plaintiff’s attorney a sum of money about 'equaling the judgment entered against Ellis, and the parties agreed that the action then pending, upon appeal, against Gadd, should be prosecuted to a final determination for the benefit of Ellis, and that thereafter this action should be brought by and in the name of plaintiff, for her and Ellis’ benefit, and that plaintiff should account to Ellis for all moneys received by her. Thereupon the sheriff was directed by plaintiff’s attorney to withdraw the executions, and, upon the payment by Ellis of the expenses and fees, the same was withdrawn, and the levy released.

However involved and complex the various steps and proceedings which have been had make this case, it appears with absolute clearness that the primary liability to pay rested upon Gadd, and when judgment was rendered against him it was the contract of defendants that they would render his body amenable to process, or, in default thereof, pay the judgment, not exceeding the sum stated in the undertaking. This was the primary liability as between the parties hereto. Code Civ. Proc. § 575; Metcalf v. Stryker, 31 N. Y. 255-257. And the fact remains that, up to the.present time, neither Gadd nor the defendants have paid anything, although the judgments against the former remain in full force and vigor, and defendants have at no time produced his body, amenable to process. When plaintiff proceeded against the sureties in the undertaking on appeal, it did not affect the liability of Gadd to pay the judgment, and defendants, by virtue of their contract as bail, were under the same obligations to pay, after their liability became fixed, to the extent of their undertaking. When Ellis paid it did not work a discharge of their liabiltv, or affect their undertaking, or discharge the debt of Gadd, unless it was so intended. There was no privity between Ellis and the defendants. He paid to relieve himself from liability on the judgment, not to discharge the judgment against Gadd or relieve defendants. This position finds support in Madison Square Bank v. Pierce, 137 N. Y. 444; 51 St. Rep. 175, Bank v. Hazard, 13 Johns. 353.

It is said that these cases do not apply to the present case for the reason that the question arose between principal and surety, and not between surety and bail, and a distinction is sought to be made between sureties and bail. But it has been said that “bail are sureties, with the rights and remedies of sureties in other cases.” Toles v. Adee, 84 N. Y. 222. The facts found and the evidence disclosed that there was no intention upon the part of plaintiff or Ellis that his payment should operate as a discharge of defendants from liability. The intention to work such a result must be clear; otherwise, the liability remains where it primarily belongs. Bank v. Hallett, 8 Cow. 192; Dunford v. Weaver, 84 N. Y. 445; Mullen v. Eno, 14 id. 597-605. When Ellis paid, he undoubtedly became subrogated to all the rights which plaintiff had or could enforce against the primary debtors. The judgment and undertaking were not affected by the act of Ellis in releasing himself. They survived, and remained as available to him as to the plaintiff in the action. Townsend v. Whitney, 75 N. Y. 425.

We quite agree with the claim that plaintiff “cannot have two -satisfactions.” But, because plaintiff cannot have this advantage, it does not relieve the defendants from paying once the amount they have contracted to pay. Upon the facts, it is quite clear that plaintiff is not to be paid twice. She has not assigned any judgment, nor her right of action against the defendants, nor has either --she or Ellis assumed to discharge defendants from liability. What has been done is this: She has accepted some money from Ellis, .and has agreed with him that she will prosecute this action for the joint benefit of both, accounting to him for what she receives in the end. Both • have an interest. It appears that she has never been paid her judgments for costs on the dismissal and costs on rthe affirmance of the judgment in the. court of appeals, and they were not mentioned in the order requiring her to- assign. These judgments remain undischarged, and, so far as appears, unimpaired by any agreement with Ellis. The liability of defendants is continuous for any judgment that may be obtained against Gadd, to the extent of the undertaking. Appleby v. Robinson, 44 Barb. 316. She has, therefore, a direct interest in the prosecution of this action. It may be, as stated, that she has received all the money that she is likely to receive; but that is not equivalent to saying that she is without interest. 'Because a part of the money is to go in payment of legal expenses does not deprive her of interest, as the presmmption is that she is personally liable for the expenses •of her lawsuit. In any event, whether she prosecutes for herself, or as trustee for Ellis, or as she does, in fact, in both capacities, •she is brought within the provisions of the law authorizing her to maintain the action. Code Civ. Proc. § 449; Madison Square Bank v. Pierce, 62 Hun, 493; 42 St. Rep. 832.

Defendants are not prejudiced by this result. By the terms of their undertaking they are required to pay $1,000 and no more. 'They are required to pay but once. When they have done that, they erect a complete barrier to any further demands upon them on account of this undertaking. Whether plaintiff gets the whole, ■a part, or nothing, is of no consequence to them, and is a matter in which they have no interest. As between plaintiff and Ellis, ■questions may arise; but that is ho concern of defendants, as they ■cannot be injured thereby.

We have examined the other questions raised by appellants but -find no error therein.

The judgment appealed from should be affirmed, with costs.

BROWN, P. J., and PRATT and BARTLETT, JJ., concur.

CULLEM, J.

(concurring).—I think it clearly settled, in this state, that a payment by the surety to a creditor does not satisfy the debt; but the debt itself remains outstanding, to be enforced by the surety against all persons from whom he may obtain satisfaction, except those whose ■ equities are paramount to his own. This action can, therefore, be maintained by this plaintiff, not only for the amount still due her on her judgment, but also for the (benefit of the surety on appeal, who has paid her a part of that judgment, provided that the equities of the surety are greater • than those of the bail. Bail, in one sense, are sureties. This is settled by authority. Rathbone v. Warren, 10 Johns. 587. The general rule ¡is that, as between earlier sureties and later sureties whose suretyship has caused a stay of proceedings, the later sureties are primarily liable. So, in Hinckley v. Kreitz, 58 N. Y. 583, it was held that the sureties on an undertaking to the court of appeals were liable to pay the judgment appealed from, as against the sureties on the undertaking to the general term. In Burns v. Bank, 1 Pen. & W. 395, it was held that a surety who gave-bail to obtain a stay of execution on a judgment against the principal was liable, as between him and the sureties on the original obligation of the principal. So, also, in the.case of a joint judgment entered against principal and surety, where another person, became surety to stay execution against the principal, it was held the original surety was entitled to subrogation to .the judgment, and might recover against the surety on the stay. Schnitzel’s Appeal, 49 Pa. St. 23. The ground of this rule is stated by the-court of appeals, in Hinckley v. Kreitz, supra:

“The later surety suffers no injustice in being obliged to do-what he has agreed, and -his equities are subordinate to those of the original surety, because his interposition may have been the-means of involving the first surety in the ultimate liability to PaJ-”

1 . . Under this rule, I am not prepared to say that, in certain cases, bail or other sureties on obligations pending the action may not have superior equities tq those of the subsequent sureties on appeal from final judgment. The undertaking of bail, under subdivision 2, § 575, is that the defendant will deliver the chattel and any sum recovered against him. From that obligation the bail can only be discharged by the satisfaction of the final judgment,, either by themselves or their principal. Any stay obtained by their principal would, therefore, necessarily extend the duration? ¡ of their liability. But other bail, under section 591, can at any! time exonerate themselvrs by a surrender of their principal. The! stay on appeal, obtained by the undertaking, nowise limits or, prevents the exercise of this right. ;

The only case that I can see in which bail might be injured by, the stay would be one where the principal would be inaccessible, ¡ yet might have property from which the bail could realize the" amount of their "liability on the judgment. In Rathbone v. Warren, supra, it was held that an agreement by the creditor that he-would not issue execution against the body of the debtor before a. specified' time discharged the bail from liability; but that decision,; as I understand it, was based on the particular facts of the case,— that by the extension the defendant had been enabled to escape? to a foreign country. It is not authority for the proposition that, an agreement to forbear the issue of process for a specified time, will discharge the bail. I am therefore of opinion that, to relieve the bail from liability to a surety on appeal who has paid the judgment, it is necessary for the bail to show affirmatively, by proof, that they have been damaged by the delay caused by the stay. As no proof to that effect was given on the trial, the defendants were justly held liable.

The judgment appealed from should be affirmed, with costs.


text:
    Eleanor Flynn, Resp’t, v. The Kings County Elevated Railroad Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Evidence—Expert—Elevated railroad.
    In an action against an elevated railway company for injuries to abutting property, an expert witness cannot give his opinion as to the specific damage inflicted upon a particular piece of property.
    3. Same—Fee value.
    No compensation should be allowed for damages to the fee merely or-account of the loss of rents.
    Appeal from a judgment in favor of plaintiff,
    Russell, Poste & Percy, for app’lt; Charles H. Hodges, for resp’t»
   PER CURIAM.

This is the usual action of an abutter against, an elevated railroad company to recover damages for injuries to-the rental and fee values. The principal error urged npon this-appeal relates to the admission of testimony. The following question was put to the expert witness produced for the plaintiff? “Assuming that as soon as defendant’s road came into Fulton-street, opposite these premises, at the corner of Fulton and Cumberland streets, their values, rental as well of fee, declined, and assuming that at the same time there was no such decline in the-value of premises in the neighboring side and parallel streets-where there was not an elevated railroad, what, in your opinion, occasioned such decline in these premises? ” Against the defendant’s objection and exception, the witnesses, with one .exception, answered: “ To the elevated railroad.” The excepted witness-answered : “Two reasons,—one, the elevated railroad; the other, a general depreciation.” At times it is extremely difficult, following the many decisions of the court of last resort as to the competency of evidence in this class of cases, to determine whether particular-opinions of witnesses are or are not admissible; but we think the-testimony objected to in this case has been condemned by all the-authorities. In Peyton v. N.Y. E. Railroad Co., 62 Hun 536; 42 St. Rep. 843, the witness was asked: “To what do you ascribe this change in the character of the tenants or dwelling portions of the premises on Third avenue, which you stated took place?” The witness answered: “To the elevated road.” The admission of this-evidence was held error, and the judgment reversed. In McGean v. Man. Railway Co., 117 N.Y. 219; 27 St. Rep. 337, it was held: “The opinions of witnesses as to the causes which occasioned the decrease of rental value, as well as to the amount of damages done thereby, was clearly improper.” In Roberts v. N. Y. E. R. R. Co., 128 N. Y. 455; 40 St. Rep. 454, it was held improper to ask an expert witness to what extent the rental fee values of the premises had been damaged by the elevated railroad. The question put to the witness in this case was substantially the same as that in the case last cited, for the decrease in rent had been already established by other witnesses, and an answer that such decrease was caused by the elevated railroad was the same, in effect, as a statement that the rental value had been damaged by the railroad to the amount testified. We find nothing in the Hunter v. Man. R. Co. Case, 141 N. Y. 261; 57 St. Rep. 400, overruling or limiting the previous decisions, or justifying the admission of this testimony. In that case the opinions of experts were admitted upon the question whether the existence of such a structure as an elevated road would affect the rental and fee values of abutting premises generally, and also whether there was anything in the condition of adjacent streets which wonld induce a different course of values in those streets than the one on which the elevated railroad was con•structed. But the case is not an authority for the proposition that an expert witness may give his opinion as to the specific damages inflicted on a particular piece of property. In the McGrean Case, supra, the judgment was not reversed on account of the admission of the objectionable testimony referred to; the court being satisfied that the defendant was not harmed by the evidence in question, the fact testified to having been established abundantly by other ■competent evidence, and the case having been tried, on both sides, on the theory that such evidence was admissible. We cannot say that here the error has been harmless. The ■ evidence tends to show that for the last few years there has been a decline in the value of real estate generally in the city of Brooklyn, which, of ■course, has been occasioned by other causes than the construction of an elevated railroad. The evidence of the plaintiff’s own experts concedes this, despite the fact that, by their answers to the «questions quoted; they have referred all such decline in this case to the construction and operation of the railroad. Therefore, the vital inquiry in this case was, what part of the decline was to be attributed to the defendant’s road ? and the improperly admitted «evidence went right to this inquiry.

Nor are we entirely satisfied with the result of the decision of the learned referee. Cook, who seems to be the most reliable of the plaintiff’s witnesses, being a real estate agent of large experience and long in the business, testified that the fee value of the lot itself of plaintiff’s property, without the building, had increased since the erection of the road. If this be the fact, we are at a loss to see how there could be any fee damage to the improved prop-erty, in the absence of any proof or claim that the improvement was of a character not fitted for the land since the erection of the a’ailroad. It may be that part of the diminution of the rental value of the flats above the store is due to the annoyances and inconveniences of an elevated railroad. It is also entirely possible that during the transition period, which occurs after the construction of such a road, the rents of abutting property may be injured and dimished. For these an abutter would be entitled to compensation, even though the fee value had not been diminished; but no compensation should be allowed for damages to the fee merely •on accouns of the loss of rents, or unless it was shown that the market value of the fee was depreciated. In the case of Jamieson v. Railway Co., 147 N. Y. 322; 69 St. Rep. 688, a strict rule has been laid down as to the effect of the admission of improper evidence in this class of cases. We cannot say that here the defendant has not been'prejudiced by it, and therefore the judgment .should not stand.

The judgment should be reversed, and a new trial ordered, and the reference vacated; costs to abide event.