author: Mayham, J. Landon, J. Learned, P. J. (dissenting).

text:
    Frances E. Williams, Resp’t, v. The United States Mutual Accident Association, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Insurance (Accident)—Inferences to be drawn by the jury whether A DEATH WAS CAUSED BY SUICIDE OR ACCIDENT.
    A policy of insurance insured against injuries through external, violent and accidental means. It excepted suicide, whether the person were sane or insane, voluntary exposure to unnecessary danger and intentional injuries. The insured started to cross a track about twenty-five feet ahead of a slowly approaching train. The„place was well lighted. The engineer testified that if the insured had kept on walking he would have crossed before the engine could reach him; that instead of this, the insured “ squatted down ” in a kneeling position, was struck and killed. Meld, that the jury must say whether the deceased committed suicide or whether he stumbled, slipped, or from any cause fell in such manner that his injury was unintentional and was the result of accident.
    (Learned, P. J., dissents.)
    Appeal from a judgment entered upon the verdict and order denying a motion for a new trial upon the minutes of the judge.
    The action was upon an accident insurance policy issued by the appellant to Alonzo 0. Williams, payable, in case of loss, to his wife, who brings this action.
    The policy insured, subject to the conditions contained in it, against personal, bodily injury during the continuance of membership through external, violent and accidental means, designating the sums allowed for certain specified injuries, and providing that “ if death shall result from such injuries alone, and within ninety days, the association will pay $5,000 to Frances E. Williams, his (insured’s) wife, or to the survivor of them, or in the event of her prior death, according to the by-laws.”
    The policy also provided, among other exceptions, that “ The insurance under this certificate shall not extend or cover * * * •suicide, felonious or otherwise, sane or insane; sunstroke or freezing, riding or driving races; voluntary exposure to unnecessary danger, nor extend to or cover intentional injuries inflicted by the insured or any other person, or where the accident, injury or death happens while the insured is under the influence of intoxicating drinks or narcotics, or in consequence thereof, or while or in consequence of violating the law of any company or corporation, or while employed in mining, blasting or wrecking, or in the manufacture, transportation or use of gunpowder, or any other explosive compound (unless insured to cover such occupation), standing or riding upon the platforms of any conveyance using steam or electricity as a motive power, or entering or attempting to leave such conveyance while, the same is in motion, or walking on the road-bed or bridge of any railroad, are hazards not contemplated or covered by this insurance.”
    The answer set up that the injury complained of occurred in consequence of acts of the insured within some of the above •exceptions.

      The evidence shows that between six and seven o’clock in the evening of the 22d of November, 1890, the insured was struck by a locomotive engine on the Adirondack R. R at the crossing on Church street in the village of Saratoga Springs and injured to such an extent that he died from the injury in a few hours.
    The railroad track crosses on Church street on grade at the point where the injury occurred, and immediately before the injury the insured crossed the railroad track going in an easterly direction and about 100 feet from the railroad on the east side met two men who were going in the direction of the railroad track, and in a conversation with them said: “ Boys, look out for the engine, maybe he will catch you,” to which one of the persons addressed replied: “ I am not afraid, my life is insured.”
    A train of cars was then slowly approaching from the south; deceased started east and the persons whom he met proceeded west across the track.
    The engineer running the train testified in substance that “ as his north bound train approached Church street at a rate of speed of about four miles per hour, and when about twenty-five feet from the crossing, the deceased started and went on the track and if he had kept on walking he would in all probability have gone across, but the next I saw of him he was squatted down like that (showing, witness kneeling), and as quick as I saw him I got off my seat and reversed the engine.”
    The witness describes the manner in which deceased was struck; at the time the track and street were lighted up from the locomotive headlight and the electric light at the crossing.
    The evidence also discloses that the deceased was on the day of the injury in good health, was of reliable and temperate habits, industrious, honorable and of no evil associations; that there was never insanity or want of entire mental soundness in him or his family and that he was a life long member of the Methodist church ; that on the day of his death he was negotiating a contract for an agency of himself and wife for one year at a salary respectively of fifty dollars a month and expenses.
    There was some evidence offered by the defendant that at the time of the injury the deceased was under financial embarrassment
    The jury rendered a verdict for the plaintiff for $5,190.

      Winsor B. French, for app’lt; Edgar T. Brackett, for resp’t.
   Mayham, J.

It was insisted by the learned counsel for the appellant that there is no evidence in the case that the insured came to his death by accidental means, within the intent and meaning of the policy; but that the uncontroverted proof is that the injury from which he died was occasioned by his own voluntary act and that his death was suicidal.

If, from the evidence, this contention can be maintained then it was wrong for the learned trial judge to submit the case to the jury, and his refusal to nonsuit was error, for which the judgment should be reversed.

But if, on the contrary, the evidence is open to two construetions, either of which might fairly be found, from the evidence, then it becomes a question of fact for the determination of the jury.

That the death was caused by personal bodily injury effected during the continuance of membership through external, violent means is not questioned.

Was it “accidental? ” This question was either for the court or for the jury to answer.

Accidental is that which happens without design or expectation; as applied to an insurance policy, it has been defined by the court of appeals as'follows: “An accident is the happening of an event without the design and aid of the person and which is unforeseen.” Paul v. Travelers Ins. Co., 112 N. Y., 478; 21 N. Y. State Rep., 624.

This definition excludes the idea of design and makes the event wholly involuntary.

The opposite to accident would therefore be design, volition, intent

If the insured turned back after crossing the railroad track and stood on the track with the intent and purpose of being hit by the locomotive, then the collision was not an accident, but the result of design, and as such collision would naturally and almost necessarily produce death, the insured would, in law, be presumed to intend the consequence of his own voluntary and intentional act

But if, on the other hand, the insured turned back on the public street, recrossing the railroad track and going to some point beyond and while -attempting to cross unintentionally stumbled, slipped, or from any other cause fell and was overtaken and hit -by the engine, then the injury was the result of accident and provided for in the policy.

It therefore becomes a question of intent, and the intent with which the insured went upon the track where he received the injury is an inference to be drawn from the circumstances; and was therefore a proper subject for the determination of the jury. Stimson v. Wrigley, 86 N. Y., 337.

If this death had happened by the intentional taking of a fatal dose of poison by the insured or by his intentional suspension of his body by a rope about his neck, the act would have so unmistakably indicated the intent of the deceased as to have presented only a question of law for the trial court

But the passing by the insured across a railroad track upon a public and much travelled street in a village was an usual and ordinary act followed by an unusual result; this is within the definition of an accident: “ An unusual and unexpected result attending the performance of an usual and necessary act” Albany Law Journal, vol. 8, p. 85.

But it is urged by the learned counsel for the appellant that it was shown that the insured was at the time of the injury under mental depression from overwhelming financial embarrassment

On the other hand it is shown that he had just completed or was in negotiation for an advantageous business engagement.

These considerations were urged to the jury on either side to establish the theories of the respective parties, and were proper subjects for their consideration as bearing upon the question of the probability of accident or suicide and furnish evidence of the fact that the question of accident and intent were in dispute on the trial.

In Goldschmidt et al. v. The Mut. L. Ins. Co., 35 N. Y. State Rep., 121, the deceased was found dead in bed, and there was proof of odor of hydrocyanic acid and some appearance of poison in the stomach of the deceased at the autopsy. Held, that the question of suicide should have been submitted to the jury. We think the question in this case was properly submitted to the jury.

The conduct of the insured was capable of the construction given it by the jury, and while they might have found for the defendant upon this issue, yet, having found for the plaintiff upon a question which was properly submitted to them and upon evidence sufficient to sustain their verdict, the judge was right in refusing to set it aside.

But it is urged by the learned counsel for the appellant that the injury to the insured was occasioned “by his own act, or by voluntary exposure to unnecessary danger or intentional injuries inflicted by himself upon himself,” and that the injury, therefore, came within the exceptions in the policy.

As we have seen, the evidence .shows that the deceased attempted to cross the railroad track in front of the approaching engine and was hit by it, but it also shows that he had time to have passed in safety.

Why he did not, as we have seen, was for the jury to determine; as he had time to pass, the jury might find that his attempt to do so was not a voluntary exposure to danger or an intentional injury to himself.

As was said by Martin, J., in Peck v Equitable Accident Association, 52 Hun, 255 ; 23 N. Y. State Rep., 465, “It was not to be presumed that his injury was self-inflicted.”

From the evidence the jury may have adopted the theory urged by the learned counsel for the respondent that the insured was at the time of the injury humanely directing his efforts to rescue from supposed danger the persons whom he had just met and cautioned against the danger of the approaching train.

If that were so, it would not be exposing himself to unnecessary danger within the case of Tucker v. Mutual Benefit Life Co., 50 Hun, 50; 23 N. Y. State Rep., 957; 121 N.Y., 718; 31 N.Y. State Rep., 998. We think this was also a question of fact for the jury.

The appellant insists that the trial court erred in his charge, and his refusal to charge, and that the judgment should for that reason be reversed.

We have carefully read the charge of the learned judge and find no error or misdirection in the main charge, and no exception to the same for which the judgment should be interfered with. Some exceptions were taken to the charge and refusals to charge as requested ; but we think that no error was committed by the judge in charging, or refusing to charge as requested.

Onthe whole, we think the judgment should be affirmed.

Judgment affirmed, with costs.

Landon, J.

I doubt as to this verdict; but it was reached as

the sequence of methods which the law prescribes.

If a new trial was granted, I suppose the only way in which a different verdict could be obtained would be for the court to encroach upon the functions of the jury.

I cannot advise such a method, and, therefore, concur.

Learned, P. J. (dissenting).

The railroad running about north and south crosses Church street on grade. There is an electric light at the crossing. The railroad train was moving northward about four miles per hour.

Deceased was on Church street west of the track. He crossed over, and about 100 feet east of the track met two men going westward, to whom he said: “Look out, boys, the engine will catch you.” They continued to walk westward, and he went eastward. But he must soon have turned and walked westward toward the crossing. For half way between the corner of the fence and the tracks he was seen. There he stopped, looking in the direction of the approaching engine. The bell was ringing, o and whistle was biown. When the train was about twenty feet from the crossing he started and walked westward upon the track. As he got between the rails he sank down in a stooping position or squatted. In that position he was struck by the engine, and he died as the result

On these undisputed facts I cannot think that this verdict should stand, when the certificate of insurance excepts suicide and voluntary exposure to unnecessary danger. There is no evidence that the two men who had crossed the track and were some thirty feet west of it had any intention of coming back, or that there was any necessity for the deceased to go on the track for their protection. And nothing is shown to excuse the deceased for putting himself into the place of imminent danger.

If the deceased did not commit suicide, then I think he voluntarily exposed himself to unnecessary danger. There is no evidence that the sinking down or squatting down proved on the trial was not voluntary. And the going upon the track in front of the approaching train was unquestionably voluntary. Even if it were not dangerous to go on the track, it was certainly dangerous to remain there.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    Walter V. Wilson, Resp’t, v. The City of Troy, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Municipal cop.pobations—Negligence.
    The water works of Troy belong to the city, and are controlled by commissioners, whose rules forbid any person except the superintendent and his employes to tap a main. An owner who wished water introduced into her house employed certain plumbers, who applied to the superintendent to make the connection. This was done, and his charge therefor was-paid by the plumbers. Held, that the city was liable to the owner of a horse which fell into an excavation dug by laborers'in the employ of said commissioners in order to make said connection, and which hole had been left by them insufficiently guarded.
    2. Same—Interest.
    In an action against a city for negligence, causing permanent injury to a horse, the jury may give interest upon the sum found by them as the depreciation in its value.
    3. Same.
    Where, however, a city charter (Laws of 1877, ch. 129) required the presentation of a claim against the city to its comptroller and gave the latter sixty days in which to audit it, Held, that in an action for a tort no interest could be recovered upon the claim until the expiration of sixty days from its due'presentation.
    Appeal from judgment in favor of plaintiff, entered on verdict and from order denying motion for a new trial.

      William J. Roche, for app’lt; Levi Smith (Orin Gambell, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from a judgment on verdict in favor of plaintiff and from an order denying a new trial.

The action is to recover damages for injury to two horses occasioned, on the evening of November 19, 1879, by their falling into a ditch in South street, in Troy, alleged to have been dug by the city authorities.

On the trial, however, the litigation and the recovery were confined to one horse, the stallion. Mrs. Sleight was having a building repaired on the north side of South street She employed Dodds & Ferguson, plumbers, to connect her building by means of a lateral pipe with the water main in the street. The water works of Troy belong to the city. They are managed by a board of water commissioners. Laws 1832, chap. 51, § 6; Laws of 1855, chap. 58. The commissioners can make ordinances and regulations for the use and control of the water. Section 6, law last cited. By one of these ordinances it is declared: “ It shall not be lawful for any person or persons, except the said superintendent and those employed by him or by the water commissioners, to tap or make any connection with the main or distributing pipes of said water works, or to permit the same to be done except as aforesaid.”

Dodds, one of the firm above named, went to the superintendent or his clerk and told him that he wanted men to open the street and fill it up again at that place, for the purpose of putting the water into the house. Men were accordingly sent there by the water commissioners, or the superintendent, who were afterwards paid by the water commissioners for the work. Dodds & Ferguson paid the water commissioners. These laborers were accustomed to be sent all over the city by the water commissioners to dig trenches, and were paid by them. And Dodds & Ferguson knew, by their own experience, that the water works commissioners always had such work done by their own men.

Gray, who was working for Dodds & Ferguson, pointed out to, the men the place where the lateral pipe was to go, and after the; ditch had been dug by them he put in the lateral pipe.

The three men sent by the water commissioners began work in the morning and dug a trench across the sidewalk and to the centre of the street, about twenty-five feet The trench was from-two and a half to three feet wide and six feet deep; the earth thrown on each side. The trench was also dug about four feet along the main and two feet wide to give room to tap the main. The lateral pipe was laid in and the trench was filled up from near the main to the fence. The part over the main and some four feet north of the main remained open; being, as one witness says, about four feet square and five or six feet deep. The laborers quit work at six, and put an old wooden saw-horse three feet long and two feet high alongside the ditch. No other barrier was placed and no lamp put there.

On the same evening one Wilson, not the plaintiff, was driving a team of horses up South street and, as he testifies, the first thing he knew his horses had gone out of sight. They had fallen into the hole above described; the stallion first and the other upon him. The night was very dark and neither moon or stars shining. With much difficulty the horses were extricated by the use of ropes and by digging a trench towards the south. For the injury thus done to the stallion the recovery was had.

It seems to us plain that the ditch was dug by laborers in the employ of the city; and that the city mm - be liable for any negligence-causing damage. The water commissioners properly would not allow the main to be tapped except by their own workmen. They might have insisted that the person for whom the pipe was to be inserted should dig the ditch, and might have reserved to themselves only the making of the connection. But probably they found it to be convenient to do both. And, at any'rate, they did adopt that course, and in this case did, as a matter of fact, dig this ditch. And it was none the less their work because Dodds & Ferguson afterwards paid them. Dodds & Ferguson did not control the workmen, but only pointed out the place where the lateral pipe was to be laid.

The case of Pettengill v. Yonkers, 27 N. Y. State Rep., 531, seems to apply directly to this case, holding that the city was liable for negligent acts of the water commissioners, and also recognizing the duty of the city to guard and protect improvements, public or private, in a street so as to prevent travellers from receiving injury. To the same effect is Turner v. City of Newburgh, 109 N. Y., 301; 15 N. Y. State Rep., 93; Russell v. Village of Canastota, 98 N. Y., 496. It hardly seems to need argument to show that a city which digs a pitfall in a street and does not guard it is liable for damages to a traveler who is injured thereby. Ehrgott v. The Mayor, 96 N. Y, 264. And certainly this ditch was not guarded, and was in the highest degree dangerous, i The defendant urges that, as the present value of the stallion was testified to be $250, the verdict could have been only $2,750. But the same witness who testified that the present value was ¡$250, also testified that before the accident the value was $5,000. 'Therefore the verdict was not contrary to the ordinary rale of damagés. The defendant next insists that the damages were excessive. The stallion was kept for breeding purposes, and was shown to be a fast horse. Since the accident the proof shows that he is stiffened across the shoulders and back; that when speeded he becomes lame. Witnesses who had experience in the breeding of horses testified that they would not like to breed from a horse thus injured. There was no testimony as to the amount of the damages given by defendant. So that we may justly assume the correctness of that given by the plaintiff. And from the account given of the accident it is plain that the injury might have been very great We cannot say under the evidence that the damages were excessive.

The complaint demanded judgment in respect to the horse for $3,000 and interest from the date of the verdict. The jury gave a verdict for $4,761, which was $3,000 and interest, as above stated. It is urged by defendant that interest could not be allowed. The court had charged that the jury might allow interest and the defendant excepted.

On this question of the allowance of interest we think that many of the decisions in actions of contract do not give much light. But even in an action of contract,.where certain property was to be delivered at a certain time, it was held that, as a matter of law, the plaintiff was entitled to interest. Dana v. Fiedler, 12 N. Y., 40. So in an action of trover for conversion, interest from the time of the conversion should be given. Andrews v. Durant, 18 N. Y., 496. This same rule is reaffirmed in McCormick v. Penn. Central R. R. Co., 49 N. Y., 303, at 315. The reason given is that interest is as necessary a part of a complete indemnity as the value itself, and is not in the discretion of the jury. This was the doctrine also in Hyde v. Stone, 7 Wend., 354; Bissell v. Hopkins, 4 Cow., 53. Now, evidently the reason for this rule is that the injured person has been, from a certain time, deprived of property which was actually in his possession and enjoyment. To pay him back simply the value several years afterwards would not be an indemnity. For if the property had not been taken from him he would, during all the intervening time, have had the use and enjoyment of it. And this he has been deprived of by the wrongful act of the defendant

In White v. Miller, 78 N. Y., 393, there is a compilation of most of the recent cases, which, the court says, shows the uncertain state of the law. The cases cited are all actions on contract, as was that case itself. That case was a breach of warranty on the sale of cabbage seeds for some small price. It is quite possible that if the recovery had only been for the price paid, interest on that price would have been allowed; but the damages allowed were the difference in value between a crop of cabbage raised from the seed sold and a crop which would ordinarily have been raised from seed such as these were warranted to be. And the court held that interest on such damage could not be allowed. It will be seen, then, that the damages were in themselves speculative, and that no property in the plaintiff’s possession was taken away or injured. The court recognizes in that case the rule as to trover and trespass de bonis asportatis, as above stated; that is, that interest is a matter of legal right in those cases. Now what possible difference in principle can there be between a case where a defendant forcibly carries away my horse and a case-where he injures my horse so much that it is valueless ? If, by defendant’s violence, he breaks my horse’s legs so that he is good, for nothing, I have lost my property just as much as if defendant had stolen it And to compensate me I ought to have interest on the damages done up to the time of recovery. The wrongdoer ought not, by delaying to compensate me, have the use of the money which should have compensated me at the time of the injury. In cases like the present the defendant is to blame, and the plaintiff is innocent. And the culpable defendant should make full compensation. He does not do so unless he pays-interest.

The action in the present case is on the common law liability for negligence. In Sargent v. Inhabitants of Hampden,. 88 Me., 581, the action was on statute, and the decision rested on the language of the statute which limited the recovery to “the amount of the damage sustained.”

The defendant urges that the plaintiff has been the possessor of the stallion ever since and has used it. But the jury have found that by this injury the value of the stallion was at once-reduced by $3,000. That sum is not speculative, but actual damages accruing at the time of the injury. Let us suppose that by the accident the plaintiff’s wagon had been broken to pieces; but that one wheel remained uninjured. Would it be any answer to> the claim for interest to say that the plaintiff has had the wheel ever since and has made some use of it? We think not.

The question of interest arose in a similar case to the present. Parrott v. Knick Ice Co., 46 N. Y., 361. That was an action for damages to a sloop, caused by a collision with a propeller. - It was tried before a referee, and he allowed interest. The court said that in trover, replevin and trespass, interest is allowed for the purpose of complete indemnity, and it was difficult to see-why on the same principle interest on the value of property lost or destroyed by the wrongful or negligent act of another may not. be included in the damages. This is the doctrine of Sedgwick on, Damages, p. 385.

In Reiss v. N. Y. Steam Co., 35 N. Y. State Rep., 86, the superior’ court in an action for damages to personal property held that the jury might give interest, but that the plaintiff was not entitled to-interest as a matter of law. The case of Mairs v. Manhattan R. E. Ass., 89 N. Y., 507, relied upon in that case, was an act for damages to land by flooding the same. So was Walrath v. Redfield, 18 N. Y., 457.

It is, perhaps, not necessary to hold in this case that the plaintiff is entitled to interest as a matter of right, although we believe that to be the true rule in such cases.

The court charged the jury: “ You cannot go beyond $3,000,. and the interest on that from the time,” etc. .

The defendant’s counsel requested the court to charge that no interest is allowable, citing White v. Miller. The court declined. The jury rendered a verdict for $3,000 and interest Then the court said that the jury must compute the interest They did so, .and allowed in all $4,761.

’ Therefore the court left to the jury the question whether they would, or would not, "allow interest; while the position of the defendant was that the jury had no right to allow interest.

But we do not see, as a matter of principle, why the allowance of interest in such a case is not a matter of right for the purpose -of complete indemnity, as much as it is of trover.

There is another question of some novelty in respect to interest. The charter of Troy, Laws of 1872, chap. 129, title 6, § 10, says that no action shall be maintained in a case like the present, unless it shall appear that the claim was presented to the comptroller, and that the comptroller did not audit it within sixty days. This accident happened November 19, 1879. The claim was presented April 5,1881. The action was commenced October 5, 1886. Now it is said that interest cannot be allowed from the time prior to the filing of the claim and the refusal to audit. We are of opinion that this is so. The statute makes the presentation and the refusal to audit pre-requisites to the right of action. And it would seem reasonable that, in an action for damages for a tort, interest should not begin to run until the right of action has arisen. The language of this charter is not like that of chapter 572, Laws of 1886. And this provision of "the charter seems to be intended to provide that the city shall not be liable until the claim has been presented and its comptroller has had time to examine and to determine whether or not to pay.

In this view no interest was recoverable from November 19, 1879, to June 3, 1881. This view requires a deduction of $292 for the interest

With this deduction the judgment is affirmed, without costs to •either party.

Landon, J., concurs; Mayham, J., not acting.


author: Mayham, J.

text:
    In the Matter of the Alleged Will of Samuel Westurn.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    Will—Where draftsman is sole beneficiary—Fraud and undue influence.
    A testator, whose next of kin were the children of a brother, devised all his property to B., who drew the will. B. was r, magistrate and had some charge of the testator’s affairs. No proof was -given that the will was read over to or by the testator, or that he knew its contents, or that he had ever said he intended to leave B. his property, nor was it shown that he gave any such directions when the will was drawn. Some time after it was executed he wrote to a niece that he wanted her to make his house her home after his death. Held, that in addition to the usual proof, the proponent, B., must show that the testator understood the provisions of the will and that it was not the subject of artifice, fraud or undue influence.
    This is an appeal from the decree of the surrogate of Warren county, admitting to probate an instrument in writing offered as and for the last will and testament of Samuel Westurn, late of Warren county, deceased.
    The deceased left no wife or children, his only heirs and next of kin being the children of a deceased brother, who appear as qontestants to the probate of the will and appellants on this-appeal.
    Lewis Burgess, the proponent and sole executor named in this instrument, drew the same and. is the sole legatee and devisee named in the body of the instrument. On the margin is a note directing a cheese factory to be given to Seymour L. Westurn.
    The property devised and bequeathed in the will is valued at from $40,000 to $50,000.
    The will was admitted to probate by the surrogate and letters testamentary were issued to the proponent, and the contestants appeal to this court.

      A. Armstrong (John C. Keeler, of counsel), for app’lts; H. A. Howard, for resp’t.
   Mayham, J.

The position which the contestants seemed to-take before the surrogate, that the testator was wanting in testamentary capacity, upon which subject considerable evidence was; taken, does not seem to be urged here, except as his physical and mental condition can be made to bear upon the question of deception or undue influence, claimed to have been practiced by the-proponent upon the testator in' shaping the provisions of the will.

It is quite apparent from all the evidence that the testator was-not wanting in testamentary capacity to make a valid testamentary disposition of his property, and if this instrument was the free and! voluntary act of the testator, with a knowledge of its provisions at the time it was made, it must be upheld as his will.

It is urged by the contestants that the confidential relations that existed between the proponent and testator, the fact that the will was drawn by the proponent in his own handwriting, and that he is made the sole beneficiary, to the exclusion of the kinsfolk of the "testator, who are the more natural objects of his bounty, and the failure of the proponent to prove that the will was read over to the testator, or by him, or that he knew its contents, raise the legal presumption of fraud or undue influence, or both, that such presumption is not overcome by evidence on the part of the proponent, and that the probate of the instrument as a will should for that reason be denied.

The evidence discloses that the business relations between the proponent and testator in his lifetime had been close and somewhat of a confidential character; they had been partners in business years before, and the proponent, although not an attorney, was a magistrate and accustomed to drawing business and legal papers, and to some extent had charge of testator’s business, there-being no practicing lawyer in that town or vicinity.

While the relation of attorney and client did not exist between Westurn and Burgess, still it is apparent from the evidence that, the former regarded the latter as a trusted business assistant, and to some extent confidential adviser, in matters of a legal and business nature.

It is most natural that the testator, in the absence of a lawyer to whom he could apply for the transaction of this important business, should select this proponent, who' had been accustomed to do his business for him, and who to a certain extent had had charge of his business and who, as appears from the evidence, was the substitute for the lawyer in that community. Had not the proponent been named in the will as the principal beneficiary, no question could have arisen out of such a situation.

But when we find that the trusted friend and draftsman of this will is made in it not only the sole executor, but devisee and legatee of this entire estate to the exclusion of all of the next of kin and heirs-at-law of the testator, we are called upon to inquire and determine whether, in the light of rules of law governing the testamentary disposition of property, the proponent has, by his proof, overcome the legal presumptions that arise out of the circumstances of this case.

In pursuing this inquiry we must start with the concession and assertion, of the testator’s absolute legal right and power to dispose of his property by will as he pleases, without regard to any supposed claims founded upon kinship or ties of consanguinity or affinity.

These relations can only be considered as bearing upon the question "of the probabilities of the instrument offered for probate being the free and voluntary will of the testator.

But the fact that a will is drawn by one who is a principal beneficiary in it has always been regarded as a suspicious circumstance tending to cast doubt upon the validity of the instrument.

By the civil law such a will, drawn by a legatee, is absolutely void.

But the rule of the common law in England and this state has not followed the civil law, and while regarding it as a suspicious circumstance, it has not alone been regarded as ground for declaring a will void.

In Marvin v. Marvin, 3 Hun, 141 n., Mason, J., in discussing this question, uses this language: “Yet the better rule to be adduced from the adjudged cases is that a presumption of undue influence shall be indulged in against them when the testator is feeble, weak and in advanced old age.

“ I do not mean to say that such legal presumption will be indulged in, in every conceivable case, but the rule to be deduced from the adjudged cases in our own courts will fully justify this charge in its application to the case at bar.”

In that case the one who drew the will was a lawyer and acted as the legal adviser of the testator.

In Newhouse v. Godwin, 17 Barb., 236, the testator left a wife and sister in comparatively destitute circumstances, and gave the bulk of his estate to his counsel, who drew the will and whose influence over the testator extended beyond professional matters

There being no evidence to show that it was in accordance with previous directions or that the testator had previously designed to give anything to him, and it being proved that the testator in consequence of illness was in a state of mind in which he readily yielded or assented to the suggestion of others, it was held that the will was invalid as having been obtained by undue influence, and the decree of the surrogate refusing to admit the will to probate was affirmed by this court on appeal

In this case the will was read to the testator, which does not appear to have been done in the case at bar.

In that case Strong, J., delivering the opinion of the court, says: “ The appellant drew the will; there is nothing to show that it was in accordance with previous directions or that any directions were given.

“ It is true that it was read to the testator and that he must have assented to it.

“His assent does not prove that it was his will, as the evidence shows that he readily assented to whatever was proposed to him.

“ This peculiarity, coupled with the entire absence of any proof that the testator had previously designed to give anything to the appellant, or that he had given him any instructions to draw the will, lead strongly to the inference that it was the will of the appellant and not of the testator.”

It is true that the case from which we have quoted differs from the one we are considering, in this, that the will was in that case read to the testator; but that in consequence of mental and physical weakness the will of the draftsman was deemed to dominate that of the testator; but in the case at bar, where it does not appear that the will was read by or to the testator, or that he knew its contents, and where the draftsman was the principal beneficiary, the conclusion is quite as irresistible that this was the will of the draftsman, and not of the testator, as in the case from which we last quoted.

In this case, as in that, there is no evidence of previously expressed intention by the testator to make his will in favor of the proponent, or of any direction or instruction by the testator to the draftsman as to the disposition of the property under the will.

In this case, as in that, the draftsman is a beneficiary under the will.

It is, perhaps, worthy of note in this connection that, while the evidence discloses no previous expression of intent on the part of the testator to make the proponent the recipient of his property, there is in letters and correspondence of the testator with his brother Seymour and his wife and daughters such a cordial recognition of kinship as to raise a presumption that he intended them, or some of them, as the objects of his bounty, in one of which he expresses a wish that a niece make his home her home after his death.

It is true that this letter was written long after the date of the will, but as that instrument could take effect only at his death it may furnish some slight evidence of his understanding of the provisions of that instrument, especially when considered in connection with the last clause before the attestation clause in the will, which reads as follows:

“And I nope and believe that the said Lewis Burgess will use and dispose of my said property according to my wishes, to him made, and to the best of his judgment.”

. While it is not, as we have seen, the province of the court to interfere with a testator’s right to exercise his free volition in the testamentary disposition of his property, the court may, in determining the question of fraud, or undue influence, consider the relations existing between the testator and the natural objects of his bounty, and, judging from the ordinary motives actuating men, inquire whether the will is unnatural and apparently contrary to the testator’s previously fixed and detérmined purpose, and in such case to scrutinize closely with a view of ascertaining whether the act was free, voluntary and intelligent

In McLaughlin v. McDevitt, 63 N. Y., 213, it was held that to establish fraud and undue influence in such a case it is not necessary that the precise mode of committing the fraud should be proved; if it appears that the beneficiary, under the will, had an intent to defraud the testator in order to procure a personal advantage to himself in the will, and had the opportunity to practice deception, and a result was produced in his favor contrary to the known wishes and purposes of the testator, and no satisfactory explanation of the change is furnished, the will should be declared valid.

It will be observed in this case that the will as presented and probated before the learned surrogate is entirely inconsistent with the express request of the testator in his letter to his niece of November 13, 1888, unless the testator had confided to the proponent some direction or instruction in reference to his property which he supposed the proponent, who is named as executor, would carry out as a part of the will of the testator.

It is urged by the appellant that this provision of the will quoted above is evidence upon the face of the instrument itself of the fraudulent design of the proponent in drawing the instrument to practice upon the credulity of the testator, by inducing the belief in his mind that some private instructions not written in the will could be carried out by proponent as executor, which he knew at the time of drawing the same could not be engrafted upon the same, or in any way affect the devise and bequest of the entire estate to him; and while there is no evidence aliunde the instrument in support of that theory, it is, perhaps, worthy of consideration in the case in determining whether, under all the facts and circumstances, the proponent can stand upon the prima facie case made by him of testamentary capacity and due execution, or whether the contestants have not cast enough of suspicion on the prima facie case to so shift the onus upon the proponent as to require explanation of him.

The proponent insists that if the draftsman of a will takes a legacy under it it is suspicious only in connection with other circumstances indicative of fraud or undue influence, and in support of that proposition cites Coffin et al. v. Coffin, 23 N. Y., 1. In that case Comstock, J., upon that subject cites with approbation the language of Baron Parke in 1 Curteis’ Ecc. R., 637, as follows:

“ All that can be truly said is, that if a person, whether an attorney or not, prepare a will with a legacy to himself, it is at most a suspicious circumstance of more or less weight, according to the facts of each particular case, in some of no weight at all, as in the case suggested, varying according to circumstances; for instance, the quantum of the legacy, the proportion it bears to the property disposed of and numerous other contingencies.”

In Coffin v. Coffin, supra, the draftsman of the will, who was a nephew of the testator, took the same amount bequeathed to other nephews of the testator, and it was held not to vitiate the will.

The learned counsel for the proponent insists that before the will can be assailed where the draftsman is a beneficiary some other facts must be established by the contestant tending to show fraud, or undue influence ; and in support of that contention cites Post et al. v. Mason, 91 N. Y., 53-9.

In this contention he is supported by the last case cited, where, as in Coffin v. Coffin, supra, the attorney and the draftsman receives a small share of the estate, and shares with other relatives in an equal degree, whereas in another class of cases, such as Nexsen v. Nexsen, 2 Keyes, 229, where the draftsman and attorney receives as a legacy a considerable portion of the estate, he is required to explain the transaction by more than usual formal proof.

In this case Davis, J., in discussing the duty of a beneficiary under such circumstances, at page 252, uses this language: “ It casts upon him in addition to the ordinary burden of a proponent of a will the additional one of establishing it by testimony of a more clear and satisfactory character.

“ The courts demand in such case satisfactory proof that the party executing the will clearly understood and fully intended to make that disposition of his property which the instrument purports to direct”

It is true that in this case the will was admitted to probate, but it was upon the explanatory evidence of the draftsman, who testified to all the circumstances of the execution and of the testatrix’ knowledge of the contents of the will, which had been in her possession for some time before its execution.

But it is urged by the learned counsel for proponent that the legal presumption obtains and exists in support of his contention that the testator knew the contents of the will, and cites Matter of Coleman, 111 N. Y., 227; 19 N. Y. State Rep., 501, upon that point.

That was a case where the admissibility of attorneys who drew the will as witnesses to its execution, where objections were made under section 835 of the Code, was in question, and upon the question of testator’s waiver of the privilege of the attorneys by making them subscribing witnesses, the court says: “ The law presumes knowledge on his (testator’s) part of its provisions, etc.”

We cannot believe that the court intended by that expression to extend that doctrine of presumption to a case like this.

We think, therefore, in this case the burden was cast upon the proponent of showing that the testator understood the provisions of this will and that it was not the subject of artifice, fraud or undue influence, by proof in addition to the ordinary evidence required by statute to establish a will and admit it to probate.

We do not see how this will can be declared a trust as there is no cestui que trust named in it, and in such case if it created a trust the trustee would hold it without accountability to any one unless it should be held that a resulting trust was created in favor of testator’s heirs-in-law or next of kin, in which case there is no apparent reason for declaring a trust as the estate would descend to them by the laws of distribution or descent either directly or through the medium of a personal representative.

The decree of the surrogate is reversed, and an issue awarded to be tried by a jury, issues to be settled by a judge of this court, unless fixed by the stipulation of the parties.

Learned, P. J., and Landon, J., concur.


author: Matham, J.

text:
    Margaret Bell et al., Resp’ts, v. William Bumstead, Jr., Impleaded, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Legitimacy—Evidence.
    Declarations of a parent are competent upon the legitimacy of issue.
    8. Same.
    Proof of such declarations was objected to as hearsay and as incompetent. Held, that such an objection did not raise the question that the evidence was incompetent under Code Civil Procedure, § 889.
    Appeal from an order denying defendant’s motion, founded on the judge’s minutes, to set aside a verdict in favor of the plaintiff, and for a new trial.
    The action was originally brought by these plaintiffs and Elizabeth Gibbons to recover three-twelfths of certain real property described in the complaint.
    Pending the action Elizabeth Gibbons died, leaving a last will and testament, in and by which she devised all her real estate to the plaintiff Jennie Hindell.
    On the trial the jury by the verdict found that the plaintiff Margaret Bell was entitled to recover one-twelfth and the plaintiff Jennie Hindell one-sixth of the premises described in the complaint.
    The evidence discloses that John McIntosh died seized of the premises in question in 1862, intestate, and that he left him surviving a daughter, Ellen Toozy, and a son, John J. McIntosh,
    That after the death of their father Ellen Toozy and John McIntosh divided the land of which their father died seized between themselves, and that Ellen Toozy and John J. McIntosh conveyed their shares to the defendant William Bumstead, who was at the time of the commencement of this action in possession of the lands sought to be recovered therein.
    The plaintiffs claim title to the lands sought to be recovered as the children and heirs-at-law of Alexander McIntosh, deceased, whom they allege to have been one of the children of John .McIntosh, Sr., and entitled to one-third part of the land of which he died seized, and that on the death of Alexander, these plaintiffs, as his children, took his interest in such lands.
    The principal question raised on this appeal is whether the evidence established that Alexander McIntosh was the legitimate son of John McIntosh, deceased, and whether the evidence offered by the plaintiff to establish that fact was competent and properly admitted by the court under the defendant’s objections.

      R. A. Parmenter, for app’lt; James Lynes, for resp’ts.
   Matham, J.

The defendant at the conclusion of the evidence moved to nonsuit the plaintiff on' the ground that no sufficient title had been shown in them or any of them to the real estate in controversy.

That there was no sufficient evidence that plaintiff’s father was an heir or legitimate child of John McIntosh.

If the plaintiff’s father was the legitimate child of John McIntosh, then the right of the plaintiff to the land in controversy follows as a necessary legal conclusion, as the undisputed facts show that John was the common source of the title, through or under whom both parties claim.

Upon this point there is some evidence from which the jury could find that Alexander was the son of John McIntosh, and while the same is slight, it is enough to raise a question of fact which we think was properly submitted to the jury.

There is undisputed evidence that John had been previously married before his marriage to the mother of Ellen Toozy and John J. McIntosh.

This evidence is found in the testimony of Ellen Toozy, one of the children of John by a second marriage ; and we think that the jury would be authorized to find, from her testimony and that of Thomas McCredie and the plaintiff, that Alexander was his son. McCredie testifies that “ the old gentleman used to call Aleck his son, and the wife died before I knew him; ” and Alexander called John his father.

Jennie Hindell, one of the plaintiffs, testifies that she used to call John grandfather, and when her father spoke to John he called him “ father,” and that after her father’s death she used to Visit John and call him grandfather, and Mrs. Bell’s testimony is to the same effect; and the testimony of the last two witnesses is in part corroborated by that of Mrs. Toozy.

Slight as this evidence is, it is entirely uncontradicted and was, we think, if properly received, sufficient to uphold the verdict of the jury; even if the evidence of a former marriage is too vague and uncertain to prove that relation, yet the fact that John McIntosh called Alexander his son, together with the other acts and declarations bearing upon that subject as proved, was sufficient to uphold the verdict of the jury that he was a legitimate son capable of inheriting his estate. The declarations of John were competent to prove that Alexander was his son.

“Such declarations made by the parents in life are admissible to establish the legitimacy of their issue” 23 N. Y., 104.

In Caujolle v. Ferrie, 23 N. Y., 105, the court quotes with approbation the language of Lord Chancellor Eldon in Wilkinson v. Adam, 1 Ves. & Beames, 422, as follows: “The rule cannot be stated too broadly that the description child, son, issue and every word of that species must be taken prima facie to mean legitimate child, son or issue.”

And upon this subject the declaration of the father or other members of the family, when proved by a witness competent to testify in reference to such declaration, is admissible.

John McIntosh being dead, his declaration made to witness McCredie in his lifetime to the effect that Alexander was his son is competent upon the question of Alexander’s relation to John, and under the rule above quoted as to Alexander’s legitimacy, People v.Fulton Fire Ins. Co., 25 Wend., 205, and cases there cited, so, too, the testimony of Ellen Toozy as to the acts and declarations of her father tending to prove that Alexander was his son and a half brother of the witness.

But it is insisted that the testimony of the plaintiffs called as witnesses in their own behalf was improperly received on this subject, and for that reason this order should be reversed.

It is apparent from an examination of the testimony given by the plaintiffs that some of it related to personal transactions and communications had with John McIntosh, now deceased, and through and from whom both parties to this controversy seek to establish title, and the important question presented here is, was such testimony objected to, and if so, was the objection put upon the proper ground to raise the objection to its admissibility under § 829 of the Code of Civil Procedure, under which it is now urged that it was not admissible, and that its admission was error?

None of these objections to the conversation; between the plaintiffs and their grandfather were specifically put upon the ground that the same related to transactions or communications between a party and a deceased person from or through whom they claim to derive some title or interest; but most, if not all of them, were on the ground that the testimony offered was “ hearsay and incompetent evidence.” As we have seen, evidence of the statements of a deceased ancestor or member of a family may be properly proved to establish relationship in the same family under proper conditions ; and that the objection that such statements are hearsay does not lie, because that kind of evidence is allowed to prove relationship.

Does the addition of the word “ incompetent ” to such an objection make the objection available to exclude the testimony of a personal transaction or communication under § 829 of the Code ?

Evidence of that character from a witness not under any disability would not be “incompetent.”

The evidence itself would be competent, but a witness under the disability specified in that section might not be competent to give the evidence; and the objections were not put upon the grounds of any disability of the witness to testify upon that subject, but of the incompetence of the evidence offered.

The rule seems well settled that where there is simply a general objection to evidence, the decision of the trial court overruling the same will be sustained unless there be some ground which could not have been obviated if it had been specified; or unless the evidence called for was in any aspect of the case incompetent Quinby et al. v. Strauss et al., 90 N. Y., 664; Williams v. Sargeant, 46 id., 481; Somerville v. Crook, 9 Hun, 664.

In the last case cited the plaintiff who was an attorney was sworn and examined to establish a claim in his favor for professional service and advice given by him to the defendant’s intestate.

To this the defendant interposed a general objection; the objection was overruled and plaintiff gave his testimony of counsel and advice given by him personally to the deceased, and the value of his services so rendered. Daniels, J., in discussing the admissibility of this evidence uses this language:

“ That answer of course included the counsel and advice mentioned in the preceding evidence of the witness and the services performed in the general charge of the business of the deceased.
“ To that extent the witness was not competent to give evidence because of the decease of the other party to the communication or transaction.
“ In that state of affairs the law has declared that the surviving party shall not be examined as a witness in regard to any personal transaction or communication between himself and the deceased, Code, § 829, and the answer of the witness violated that prohibition, for it related to the value of services performed personally with the intestate. As to that, it was the intent of this provision that the evidence of the survivor should be excluded, and it ought to have been done by the referee.
“The objection as it was taken down by the referee did not specifically mention this as the reason why the evidence is resisted as improper, but it was noted in the most general form.
“ The terms used are ' objected toby the defendant,’ which were insufficient to raise the point that was relied upon to oppose the motion for the confirmation of the report
“ For that reason * * * the defendants have not placed themselves in a position allowing them to take advantage of the admission of this evidence as improper.’’

In Ham v. Van Orden, 84 N. Y, 271, it was held that the objection that the witness was not competent under § 829 of the Code is too general, as he is only incompetent to testify as to a personal transaction or communication between the witness and the deceased person.

If the examination of the plaintiffs as to personal transactions and communications between them and John McIntosh in his lifetime comes within the prohibition of § 829 of the Code of Civil Procedure, then I think within the decisions above referred to, and numerous others to which reference might be made, the defendant failed in this objection to call the attention of the court and opposite counsel to that objection, and it is too late to do so for the first time on this appeal.

It is urged that the word “ incompetent ” in the objection is broad enough to comprehend and embrace any and all objectionable or illegal evidence, and, therefore, includes the objections arising under § 829; but the difficulty with it is that it is too general to apprise the party or the court of the objectionable feature of the evidence to which it is directed, and, therefore, unavailing.

As there was clearly a question of fact in the case as to whether or not Alexander McIntosh, father of the plaintiffs, was the legitimate son of John McIntosh, through or from whom both plaintiff’s and defendants grantors claim title, the trial court properly refused to nonsuit the plaintiffs on the defendant’s motion.

We see no error in the charge of the learned trial court to the jury, or in his refusal to charge as requested by the learned counsel for the defendant.

We think the charge as a whole was a correct exposition of the law as applicable to this case, and contained no error or misdirection for which the verdict should be set aside and a new trial granted.

Order of special term affirmed, with costs.

Learned, P. J., and Landon, J., concur. '


author: Daniels, J.

text:
    Louis F. Martin et al., App’lts, v. Eliza Jane Adams et al., Ex’rs, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Compromise—Fraud—Advantages given to one creditor.
    An insolvent firm made a composition agreement with their creditors by which the latter accepted notes for 55 per cent secured by a mortgage, and one of the firm agreed to pay to each creditor one year after the payment of said notes the net profits of the business of any firm of which he should become a member, not exceeding 10 per cent of their claims and interest thereon from the date of the mortgage. Prior to the making of such agreement the son of said member of the firm, with the knowledge of his father, entered into an agreement with one of the creditors to purchase its interest in the net profits of the business referred to in the composition agreement upon the completion of the composition deed and give his notes therefor, guaranteed by his father. This agreement was unknown to the other creditors. Held, that the agreement made by the son gave to the creditor receiving it an advantage not secured to the other unsecured creditors and rendered the composition agreement void.
    Appeal from a judgment recovered on the report of a referee.

      Sutherland Tenney, for app’lts ; Hugh Porter, for resp’ts.
   Daniels, J.

This action was brought to set aside a composition agreement made with the members of the firm of R. H. Adams, consisting of Henry Adams and Peter Horne, with their unsecured creditors, because of special advantages alleged to have been extended to particular creditors. They had made a general assignment of their property for the benefit of their creditors; and after that an adjustment, or compromise, was effected by which these creditors agreed to accept and receive in satisfaction of the debts owing them fifty-five per cent thereof in the notes of their debtors, endorsed by Robert Adams, and secured by a mortgage upon property situated at Paterson, in the state of New Jersey, and payable in five equal annual payments, with interest And the debtor Henry Adams also agreed to ¡Day each of these creditors at the-expiration of one year after the payment of the notes, the net-profits or earnings of the business of any firm of which he should then be a member, that the books should show him then entitled to, but not exceeding ten per cent of the principal of the respective claims of the creditors, and interest on the ten per cent at the rate of six per cent from the date of the mortgage given to secure-the fifty-five per cent and interest

Before the compromise was completed, and on the 17th of April, 1883, William Adams, who is a son of the debtor Henry Adams, made and entered into a further agreement unknown to-the other creditors with the Second National Bank of Fall River in these words and figures :

“ This agreement witnesseth that, for value received, I, William Adams, do hereby covenant and agree that on the completion of a composition deed now proposed by R & H. Adams with their creditors, or other settlement had, I will purchase the interest of the Second National Bank of Fall River, Mass., which holds note-of the said R & H. Adams for $5,000, due October 17, 1882, in-so much and such part of the interest of said creditor in the net. profits or earnings of the business as is provided in said composition deed, in addition to the fifty-five per cent to be paid, and that I will give therefor my notes aggregating ten per cent of said claim; that is, one note for five per cent of said claim, payable in one year, and another note for five per cent payable in two years, dated on the day of the completion of the above mentioned composition deed, or other settlement And these presents shall bind my heirs, executors and administrators. And I covenant and agree and. hereby promise to give my notes as aforesaid and complete said purchase, and, in the event of my failure to give such notes, I hereby agree to and with each of said creditors to pay them ten per cent in cash on the amount of their respective claims.
“ Witness my hand and seal, at the city of New York, this 17th day of April, 1883.
“(Signed) William Adams.
“ In presence of
“E. W. Orvis.”

And on the same day, and apparently on account of this additional agreement, the bank became a party to the compromise-agreement And after that received the notes mentioned in each of these agreements. And the evidence supports the conclusion that the debtor, Henry Adams, at the time of the execution of the-agreements, understood that this second instrument was made and delivered by William Adams to the person who, as agent for the-bank, acted for it in this business. For he then, with his initials,, subscribed, or attested, the correctness of this instrument:

“April 17, 1883.
“ Henry Adams says he will see that the notes given by William Adams, in settlement of the affairs of R & H Adams, will be paid at maturity.
“H. A.” “0. E. 0.”

It is not necessary to determine the controverted point, whether this created a legal obligation on the part of Henry Adams, binding him to the payment of the notes. For if the notes given by "William Adams secured to the bank a pecuniary advantage beyond that provided for the other unsecured creditors, that rendered the .composition agreement fraudulent, and entitled the plaintiffs to have it set aside.

It has been objected that these plaintiffs were not such unsecured creditors. But the fact is clearly otherwise. It was so alleged in the complaint, and the answer of the defendant answering stated them to be such. And the fact that they became parties to the composition agreement supports that statemenL And so does the omission to present this objection upon the trial. The question is, therefore, in the case whether a greater and further advantage was in this manner secured to the Fall River Bank than that which was provided for the other creditors.

And that there was seems to result from that part of the composition agreement relating to .the additional ten per cent. For there was no absolute obligation on the part of Henry Adams to pay the ten per cent. But at the most it was to depend upon the fact that he should become entitled to the amount as the profits or earnings of a business in which he should become a member. If he did not, then there was no obligation whatsoever to pay the ten per cent, or any part of it; whether it ever should be payable depended upon two contingencies. And they were that he should afterwards become interested in or connected with a business of some firm, and that he should become entitled to so much of the net profits or earnings of that business. These contingencies were intended to be avoided by the notes of William Adams. And they were avoided in form at least when the notes were given, as they were with the others for the fifty-five per cenL That William Adams was not at the time a responsible person does not change the effect of the transaction.

For the notes were offered as preferable to the uncertainty of the realization of the ten per cent, and were so accepted and re- , ceived. They were regarded as the most valuable, inasmuch as there was a probability that the circumstances of the maker would improve, ana their payment could be enforced against him when they should mature and become due. They gave the creditor receiving them the chances of an advantage not secured to the other unsecured creditors. And that was a fraud upon these other creditors, entitling them to avoid the composition agreement. Solinger v. Earle, 82 N. Y, 393 ; Zoebisch v. Von Minden, 47 Hun, 213 ; 13 N. Y. State Rep., 349 ; White v. Kuntz, 107 N. Y., 518; 12 N. Y. State Rep., 297. The judgment should therefore be reversed and a new trial ordered, with costs to the plaintiffs to abide the result.

Van Brunt, P. J., and Lawrence, J., concur. _


text:
    Daniel A. Higgins, Pl’ff, v. The Mayor, etc., of New York, Def't.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Municipal corporations—Unlawful removal of laborer—Veterans-—Wages.
    Plaintiff, who was employed hjr the city as a laborer, was discharged but afterwards restored to his position on the ground that his discharge was unlawful under chap. 464, Laws 1887. Beld, that he was entitled to recover his wages for the time he remained necessarily unemployed, and that the employment and payment of another in his place was no defense; that the discharge, being entirely without right, could not deprive him of the emoluments of his employment.
    Motion by defendant for new trial on exceptions taken at the circuit and ordered to be first heard at general term.

      Walker Hartwell, for deft; Jeroloman & Arrowsmith, for pl’ff.
   Daniels, J.

The plaintiff was employed as a laborer at the Dog Pound in the city of Mew York. That employment was terminated by the act and authority of the mayor, on the 7th of March, 1889, and another person was employed to and afterwards did render the same servica. The plaintiff in October following commenced a proceeding by mandamus to secure his restoration to his position on the ground that he was an honorably discharged Union soldier of the late war, and that resulted in his restoration in February, 1890. After that he brought this action to recover his wages during the interval, and a verdict was directed in his favor, and to that an exception was taken by the defendant. Whether that exception was well taken is the important point now to be decided.

On behalf of the defendant it is maintained that it is, and the cases of Dolan v. Mayor, 68 M. Y., 275 ; Mc Veany v. Mayor, 80 id., 185, and Terhune v. Mayor, 88 id., 247, are brought to the attention of the court in support of this position. But they are-all cases of public officers unlawfully removed, having fixed salaries assigned by law for the incumbent of the office, and it was held that payment of the salaries to the person actually in the office for the time was a defense against the action of the rightful official for its subsequent recovery.

But the plaintiff was not an official nor the occupant of an office. He was a laborer only; and when a laborer, or other person, may be employed by a public or private corporation, or by an individual, to render personal services, and he has been unlawfully discharged, he is entitled to the stipulated compensation for his services during the time he is necessarily unemployed. And the employment and payment of another person has never been allowed as a defense for the employer. These cases have been uniformly held to depend upon the fact whether the discharge was without legal cause, and when it appears'to 'have been so, there the employer has been uniformly held to be liable.

The case is substantially one of contract and not of official selection or appointment. That was the nature of the plaintiff’s employment It resulted from his preceding honorable service as-a Union soldier and his selection for this employment. The law-then assured him a preference in its continuance. That is the plain language of chap. 464 of the Laws of 1887. By its first section it has declared that “in every public department and upon all public works of the state of New York, and of the cities, towns and villages thereof, and also in non-competitive examinations under the civil service laws, rules or regulations of the same wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved.”

And by the second section: “All officials or other persons having power of appointment to or employment in the public service, as set forth in the first section of this act, are charged with a faithful compliance with its terms, both in letter and spirit, and a failure therein shall be a misdemeanor.”

This law gave the plaintiff a vested right to the continuation of his employment over the person selected in his place to render the same service. It had all the force and effect of a clearly made and well defined agreement that he should be retained in this service. And the violation of its provisions^ on no well defined principle could relieve the defendant from the duty to perform its obligations. To violate that obligation has been made a misdemeanor, and the commission of the offense cannot, with any consistency, be assigned as a legal protection against the payment of the compensation to which the plaintiff would without it have been clearly entitled. The statute was intended to secure to him this right and he cannot be deprived of it by a mere violation of its injunctions. And it has been in its effect so already considered in the cases of Washburn v. French, 52 Hun, 464; 24 N. Y. State Rep., 207; O'Connor v. Adams, 53 Hun, 141; 25 N. Y. State Rep., 351; and Sullivan v. Gilroy, 55 Hun, 285 ; 28 N. Y. State Rep., 566.

The direction of a verdict for the plaintiff was right even though he was discharged from his employment instead of being suspended, as he most probably was. The discharge was entirely without right, and could not deprive him of the emoluments of his employment And as there are no other exceptions worthy of consideration, that which has been referred to should be overruled, and the plaintiff should have judgment on the verdict, with costs.

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


text:
    Paul Morse Richards, App’lt, v. Charles H. Ludington, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Usury—Parties—Assignee of borrower.
    The light to maintain an action to annul a contract for the loan of money at an unlawful rate and to recover the securities given therefor is restricted to the borrower, and his assignee for the benefit of creditors is not a necessary or proper party thereto, either as plaintiff or defendant.
    Appeal by the plaintiff and his assignee from an order directing Edgar A. Tredwell, as assignee, to be made a defendant in this action, and that the summons and complaint and all proceedings be so amended as to make him a defendant herein.

      Thos. J. Keighorn, for app’lt; Amasa. Richard Angell, for resp’t.
   Daniels, J.

The plaintiff has brought this action to set aside an agreement made by him with the defendant for the loan of money and to obtain a return of collaterals held by way of security for the loan, on the ground that it was made for a usurious rate and reservation of interest. Two days after the action was begun the plaintiff made a general assignment for the benefit of his creditors, and soon afterwards the defendant made the motion resulting in this order. Its object was to substitute the assignee as plaintiff, but that was denied, and he was directed to be joined' as a defendant From that order both himself and the plaintiff have appealed.

This action has been brought under a statute of this state, authorizing the borrower of money at an unlawful rate of interest to maintain an action to annul the contract for the loan, and to recover money, goods, or things in action, received by the lender as security for the loan in violation of the act And that action may be maintained by the borrower without the payment or the offer to pay any part of the principal or interest of the loan. 2 R. S., 6th ed., 116-5.

The right to maintain it has been specially restricted to the borrower. Wheelock v. Lee, 64 N. Y., 242. The controversy is wholly, therefore, between himself and the lender. And no other person can, as this action is presented by the pleadings, be either a necessary or proper party to it To substitute the assignee for the borrower would at once have defeated the suit, and to add him as a defendant would be of not the least service to the defendant in the way of aiding him in his defense to it The effect would be to delay its progress, by requiring the complaint to be framed anew, and a further and useless attribute added to the action, which could be of no benefit to the plaintiff or the defendant. In this respect the case is within the principle followed in Chapman v. Forbes, 123 N. Y., 532; 34 N. Y. State Rep., 351. No beneficial result to any one can legally follow from the order, and as both the assignee and the plaintiff object to it, the order should be reversed, with ten dollars costs and the disbursements, and the motion denied.

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


author: Van Brunt, P. J.

text:
    William Paine, App’lt, v. Elizabeth W. Aldrich, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Deed—Validity—Incapacity.
    The mere fact that a grantor was of advanced age and suffered the infirmities incident thereto is not sufficient to justify holding the deed void because of incapacity, in the absence of evidence that such infirmities have impaired his mental faculties to such an extent that he could not collect in his mind the particulars of the business to be transacted and hold them sufficiently long to perceive their obvious relations to each other and form a rational judgment in respect to them.
    2. Same.
    Evidence insufficient to show such incapacity.
    3. Same—Evidence.
    In an action to set aside a deed on the ground of incapacity of the grantor it is not error to reject evidence of a lay witness as to whether the grantor was in his opinion, rational or irrational, based on his conversations with him’. 5
    Appeal from judgment of the special term dismissing complaint upon the merits.

      L. L. Kellogg, for app’lt; G. P. Smith, for resp’t.
   Van Brunt, P. J.

Prior to the 28th of May, 1885, one-John Paine was seized and possessed in fee simple of certain real estate in the city of Mew York. On or about said day the said John Paine executed and delivered a deed of said premises to the defendant, Elizabeth Moble, who conveyed the same to one William Coates in June, 1888. John Paine died in Movember, 1885. Certain other conveyances were made and proceedings had affecting the title to this property whereby the title became vested in one Elizabeth Coates in April, 1889. On the 8th of April, 1889, Elizabeth W. Aldrich bought said premises from Elizabeth Coates, and received a deed therefor, paying full consideration. In June, 1889, this action was commenced by the plaintiff, who was interested in the estate of John Paine, deceased, to have the deed to Elizabeth Noble declared void upon the; ground that at the time of its execution John Paine was non-compos mentis. The defendant Aldrich was not originally made a party to this action, but was subsequently brought in and answered, and upon the trial of the case, a large amount of testimony having been given, the learned judge found that the said John Paine at the time of the execution of the deed in question had sufficient capacity to execute the same, and dismissed the complaint upon the merits, and from the judgment thereupon entered this appeal is taken.

In the disposition of this appeal it is impossible to rehearse at length the evidence in the case or to review in detail that which has been given by each witness ; and the impressions which are left upon the mind upon reading the evidence and considering the relations of the parties and the nature of the evidence is all that can possibly be attempted.

It also should be borne in mind that the learned judge before whom this case was tried had the benefit of having the witnesses before him, and could much better judge of their credibility than can this court, having only the record of what those witnesses testified to, unaided by the demeanor of the witness and his manner of testifying in concluding what weight is to be given to the evidence

Therefore, unless it appears that the conclusion arrived at is fairly against the reasonable construction of the evidence, that conclusion should not be interfered with.

At the time of the transaction in question John Paine was a very old man, ninety-two years of age; he was feeble, his sight was impaired, his hearing was affected, and his memory had lost some of its original strength.

If we are to believe the evidence of some of the persons surrounding him, he was undoubtedly in a condition of imbecility. But there is no question but that those symptoms upon which the physicians, who were examined and testified in answer to hypothetical questions, placed the most stress were grossly exaggerated and misrepresented by the witnesses called on the part of the plaintiff.

The evidence tending to show unconsciousness of movements of the bowels and urine is beyond question untrue in its main features. Such incidents may have happened on one or two occasions, the reasons for which are easily ascertained, because it appears that on one occasion at least he had been given an overdose of medicine. But that (as the witness Theodore Carter swore) he was in the habit of unconsciously having movements of the bowels, and remained hours in that condition, only being discovered when he was undressed for bed, is absolutely untrue, because Mr. Paine was all the time surrounded with people who were taking care of him, and it is conceded by this man Carter that, when he was undressed, the odor was very offensive, and it is incredible that such an offensive condition of his person could exist for any length of time without discovery.

It is true that this man, when recalled, endeavored to repair the blunder which he had made by swearing that he discovered that he had had movements from the odor.

This one circumstance tends to show that this man Carter was ready to swear to anything which might tend to the advantage of the person on behalf of whom he was called, and shows that he was utterly unworthy of belief.

There is another feature of his testimony, and that is that this old man was so feeble and his mind so weak that he could not feed himself. This man Carter had to do it all the time. How the evidence given by other witnesses shows beyond all question that Carter exaggerated this condition to a very great extent. With some kinds of food, in consequence of his feeble condition, he was unable to feed himself, but that that feebleness existed to so great an extent that that was the habit, as Carter claims, is amply disproved.

Then a great parade is made of the fact that Carter was accustomed to fasten his napkin around his neck, one of the most ordinary things for the attendant upon an aged person to do. Then it is said that when Mr. Paine was accustomed to smoke he got the ashes from his cigars all over his clothes. If that is an evidence of imbecility, I am afraid that most smokers will have to give up the habit or they will never be able to carry out any business transaction which cannot be attacked upon the ground that they are non compos mentis.

With respect to the other witnesses who were servants in the household their "evidence was very much of the same character, and evident amplification of incidents innpcent in themselves having no probative force whatever, but by exaggeration magnified into alleged facts of the gravest importance.

It is said he could not recognize people, as an evidence of his imbecility, when the fact was that he was suffering from cataracts of the eyes and could not see anything, except in a downward direction. Under these circumstances it was not at all peculiar that his powers of recognition were somewhat impaired.

So it is said he was accustomed to ask questions over again. The evidence shows that his hearing was to a great degree affected, which would account for very many of the instances which have been referred to by the witnesses of the repetition of questions.

It is true that some witnesses who were examined upon the part the plaintiff gave testimony tending to show that the mental powers of Mr. Paine had been considerably impaired and some were allowed to testify as to whether they thought Mr. Paine was rational or not at the times when they called upon him, and who testified that he was irrational, that they did not think he could comprehend a business transaction very well where there was very much money involved.

Of course testimony of this kind was entirely incompetent, usurping the functions of the judge who was trying the cause. He was to draw his conclusions in that respect from the evidence produced before him and not have all his labors taken from his shoulders by the kindness of the witnesses. But these opinions do not overcome the fact that Paine did continue to transact his business up to the time of his death, and it does not appear that any members of "his family had any idea prior to that time that this great degree of incompetency and imbecility actually existed.

It is well settled that the mere infirmities incident to advanced age are not sufficient to justify the court in holding the acts of a party void because of incapacity. Such infirmities must have impaired the mental faculties to such an extent that the party cannot collect in his mind the particular's or elements of business to be transacted, and cannot hold them in his mind a sufficient length of time to perceive their obvious relations to each other, and cannot form a rational judgment in respect to them.

The evidence in this case fails to establish that such was the condition of the mind of John Paine at the time he executed the deed in question.

Our attention is called to various exceptions to the exclusion of testimony and to various exceptions taken to the admission of testimony. The court refused to admit the evidence of a lay witness as to whether John Paine was, in his opinion, rational or irrational, based upon his conversations with him. It is true that evidence of a like character was admitted from other witnesses , called in favor of the plaintiff; but it was no error to refuse to allow the witness to answer this question, which is clearly within the prohibition of the rule laid down in the case of Holcomb v. Holcomb, 95 N. Y., 216.

The objections to the questions to the following effect: “ Did Mr. Paine’s conversations at the times described by the witness appear rational or irrational,” were not well taken. It is true that probably the form of the question was improper because it did not limit the inquiry sufficiently to the conversation which the witness had repeated as having taken place with Mr. Paine; if this defect had been called to the attention of the court it undoubtedly would have been remedied, the evidence itself being entirely competent

The objection to the evidence given by Sarah Dunn, upon the ground that she was interested in the result, does not seem to be well taken, because whatever interest she had was adverse to the success of the defendant on whose behalf she was called as a witness and testified. But it is difficult to see in what manner she was in the slightest degree interested in the result of this litigation.

Upon the whole case, therefore, we are of the opinion that the judgment appealed from should be affirmed, with costs.

Daniels and Lawrence, JJ., concur.


text:
    Charles S. McCulloh, Rec’r, Resp’t, v. The Paillard Non-Magnetic Watch Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Service—Foreign corporation—Cashier.
    _ A person who receives and handles whatever money a foreign corporation receives in this state is its cashier within the meaning of § 432 of the Code, and service of process against the corporation may he made upon him where there are no officers of said corporation within the state.
    Appeal from order denying motion to vacate judgment

      Roderick Robertson, for app’lt; A. Knauth, for resp’t.
   Van Brunt, P. J.

This action was brought against the defendant, a non resident corporation, and the summons was served upon one Hannaford, claiming that he came within the designation of cashier of the corporation within the statute.

The Code, § 432, provides that personal service of the summons upon the defendant being a foreign corporation must be made by delivering a copy thereof within’the state as follows: To the president, treasurer or secretary, or if the corporation lacks either of these officers, to an officer performing corresponding functions under another name, or upon a person designated for the purpose by a writing as prescribed by the Code; or if such designation is not made, or the person designated cannot be found with due diligence, and the corporation has property within the state, or the cause of action arose therein, to the cashier, a director or a managing agent of the corporation within the state.

As already stated, the service of the summons in this action was made upon one Hannaford, it being claimed by the plaintiff that he was defendant’s cashier. A previous service was made upon one Smith, it being claimed by the plaintiffs that he was managing agent of the corporation, but upon proof that he was a mere salesman the service was set aside.

It is apparent from the language of the Code that it was the intention that foreign corporations having property within the state should not be permitted to do business or have property within the state without making themselves liable to the service of process. Therefore it has provided for a service upon any of the officers of the company or upon their managing agent or upon their cashier within the state.

How it appears that this corporation had no officers whatever within the state. It further appears that this person who was served was a man who handled whatever cash the corporation received. He received the money upon the sales which were made in the Hew York office. It is true that his duties in that respect are very much belittled, but he is the only person shown to have had the handling of the cash received upon the sale of goods in the office of the corporation in this state. He was therefore the cashier within the meaning of the Code. Foreign corporations doing business in this state cannot be allowed to shelter themselves under the claim that they have no cashier, no managing agent, and no officers within the state, and that therefore they are at liberty to violate the rights of the citizens of this state with impunity. Such a claim is simply preposterous.

The object of the service of process, as was said in the case of Pope v. Terre Haute Car Mfg. Co., 87 N. Y., 140, for the commencement of a suit or other legal proceeding, is to give notice to the party proceeded against, and any service which reasonably accomplishes that end answers the requirements of natural justice and fundamental law, and what service shall be deemed sufficient for that purpose is to be determined by the legislative power of the country in which the proceeding is instituted, subject only to the limitation that the service must be such as may reasonably be expected to give the notice aimed at It appears from the evidence in this case that the man who was served was really managing the business of this corporation within this state, and, as a consequence, came within the class of persons upon whom service may be made.

The order should be affirmed, with ten dollars costs and disbursements.

Daniels, J., concurs.


author: Lawrence, J.

text:
    George F. Vietor et al., App’lts, v. William M. Halstead et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Costs—Extra allowance—Demureer.
    _ A demurrer is a defense within the meaning of § 3253 of the Code, providing for granting an extra allowance in a difficult and extraordinary case where a defense has been interposed.
    Appeal by the plaintiffs from that part of a final judgment in favor of defendants Coster et al, which awarded an additional allowance to said defendants.

      Blumenstiel & Hirsch, for app’lts; Charles E. Tracy, for resp’ts.
   Lawrence, J.

We are of the opinion that a demurrer is a defense, within the meaning of § 3258 of the Code of Civil Procedure, and that it is within the power of the court to grant an allowance. If an authority is needed for this proposition, beyond the sections of the Code relating to demurrers, it will be found in the case of Kingsland v. The Mayor, etc., of New York, 52 Hun, 99; 22 N. Y. State Rep., 497 In that case the court held that in a controversy submitted upon an agreed state of facts, under § 1279 of the Code of Civil Procedure, the court had power to grant an allowance, and the court said: “ The position of the defendant is the same as that of a defendant who demurs to the complaint in an ordinary action. He admits the facts as alleged, but denies that they entitle the plaintiff to any relief against him * *

The demurrer is deemed to be a defense under § 3253.

We see no reason for interfering with the discretion exercised by the court below, and shall, therefore, affirm the order appealed from, with costs and disbursements.

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