text:
    Charles F. Mattlage, Resp’t, v. The New York Elevated Railroad Company et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Railroads—Elevated—Maintenance of station—Double compensation.
    In an action to recover damages caused by the maintenance of defendants' elevated railway station opposite plaintiff’s premises, it is error to allow the jury to award damages both for rental value and increased consumption of gas, as, in effect, it allows double compensation for a single injury, the loss of rental value being based principally upon loss of light.
    3. Same-Legal expenses—Evidence.
    In such case, it is error for the court to admit evidence of plaintiff’s legal expenses in a former action, as they are not the natural consequences of maintaining the structure, and had not been alleged as matter of special damage.
    3. Same—Legal expenses as damages.
    In such case, even if properly pleaded as matter of special damages, counsel fees paid for argument of an appeal involving the right to maintain the station, could not be allowed as damages.
    4. Same—Exemplary damages.
    The fact that defendants took an appeal to the general term and then to the court of appeals and withdrew the latter appeal when about to be reached, is not such evidence of a want of their good faith as will justify the submission to the jury of the question of exemplary damages for maintaining the station.
    Appeal from a judgment entered upon the verdict of a jury at a trial term of this court in favor of plaintiff.

      Julien T. Davies and Brainard Tolies, for app’lts; Charles D'. Bidgway, for resp’t.
   Bookstaver, J.

This action was brought to recover damages which plaintiff claimed he had sustained by reason of the maintenance of a station on the line of the defendant’s elevated railway in Warren street west of the westerly line of Greenwich street,, from July 28,1884, to April 22, 1889. There had been a former adjudication by this court determining that so much of that station as was westerly of that line was without authority in law, and awarding damages to the plaintiff for the maintenance of that structure in front of his premises. From this an appeal had been taken to the general term of this court, where that judgment was affirmed, and from that affirmance an appeal had been taken to-the court of appeals, which was subsequently withdrawn, the defendants paying all the taxable costs. Upon the trial of this action, the learned judge who tried the cause directed the jury in returning a verdict to separately state the amount of damages, if any, which they awarded the plaintiff; first, for gas bills; second, for loss of rental value; third, for exemplary damages; fourth, for additional labor; fifth, for staircase, and, sixth, for legal expenses. The jury awarded nothing for additional labor or for putting up staircase, but awarded fifty dollars for gas bills, $1,000 loss of rental value, six cents for exemplary damages, and $450 for legal expenses; and upon the coming in of the verdict, the court directed that judgment be entéred thereupon for the aggregate amount of these separate items.

The appellants contend that it was error to allow anything for extra gas bills paid by plaintiff, and in this we think they are correct, because the loss of rental value for which damages were awarded was based principally upon the loss of light; the increased consumption of gas arose from the same cause; the rental value was less partly because it was necessary to burn more gas. When, therefore, the learned judge allowed the jury to award the plaintiff damages both for the rental value and the increased consumption of gas, he in effect allowed double compensation for a single injury. We think that the greater included the less, and that this item should be deducted from the judgment as entered.

We also think that under the pleadings in this case it was error to allow the item of $450 for the legal expenses incurred by the plaintiff in the prosecution of the appeals in the former .action. The objection to the admission of evidence respecting counsel fees upon the appeal from the former judgment was distinctly taken upon the trial, on the ground that it was not embraced within the issues made by the pleadings. These were <npt the natural and necessary consequences of maintaining the structure, and fell within what is denominated as special damages, and the rules of pleading require that these shall be specifically stated if, recovery is sought for them. An examination of the complaint shows that there is no allegation in regard to the legal expenses of the former action; there was no request made for an amendment of the pleadings; and on this ground alone, we think the evidence should have been excluded.

But if this item of damage had been pleaded we think it very questionable whether there could have been any recovery for it The “legal expenses” were counsel fees paid Mr. Ridgway for the argument of the appeals. Liability for these must proceed on one of two theories, either that there was an express or implied contract to pay them, or that they were a part of the damages -sustained by plaintiff by reason of defendants’ wrongful acts. If on the former theory then it would have fallen under the condemnation of Hart v. Met. El. R. R. Co., 15 Daly, 891; 27 St. Rep., 813, where this court held that a complaint alleging a cause of action against an elevated railroad company for damages for the construction and operation of its road, and also a cause of action on a bond given by the company to pay all damages assessed, was bad on demurrer for a misjoinder; as it attempted to unite a cause of .action on tort with one on contract. If the liability had been based upon the latter theory, then we know of no rule of law by which a party can recover from his opponent the counsel fees paid on the argument of an appeal by way of damages over and -above those allowed as costs, except by virtue of an express contract, as when a bond or undertaking has been given on procuring .au injunction, attachment, etc.

In any other case if a party chooses to pay more than the amount allowed by law as costs he must do so at his own expense. To permit a successful party to bring an action against his unsuccessful opponent to recover the legal expenses of prosecuting a former action would lead to endless litigation, for a third action might be prosecuted to recover the expense of the second, and so on ad infinitum. The prosecution of the appeal was an absolute ■statutory right. The stays pending the appeals were granted by the court in aid of that right. If this was wrong then the court participated in the wrong. The counsel fees were paid not for ■the purpose of having the stays vacated, but for arguing the appeal, and the law has fixed a definite amount of costs to be paid by the unsuccessful party in such case, and this the defendants in the former action have paid. We think that should be the end of the matter. Much was said by the respondent about the delays •obtained by the appellants by their appeals and about their wrongfully continuing the structure in question after the first judgment. But these delays were only such as the law allows- and sanctions and which this -court, in this case, aided the appellants in obtaining by granting the stays, thereby implying that the appeals were not frivolous but that there was some merit in the appeal. As to wrongfully maintaining the structure after the first judgment the jury have awarded the plaintiff what in their opinion was fair compensation for the injury thus inflicted on him. In the Corn Exchange National Bank of Chicago v. Blye, as Rec’r, 123 N. Y. 132; 33 St. Rep., 75, the court of appeals held that an action was not maintainable to recover damages for depreciation in the value of property occurring during the period, between the judgment and the determination of an appeal therefrom.

It has long been the settled law of this state that in actions for torts, counsel fees and other expenses in conducting the suit, not included in the taxed costs, cannot be taken into consideration in, assessing damages. Lincoln v. Saratoga & Schehectady R. R. Co., 23 Wend., 425; Day v. Woodworth, 13 How., U. S., 363. The latter action was brought to ■ recover damages for wrongfully pulling-down a dam, and the court said: “ It is true that damages, assessed by way of example may thus indirectly compensate the-plaintiff for money expended in counsel fees; but the amount of these fees cannot be taken as the measure of punishment, or as a necessary element in its infliction.”

In Hicks v. Foster, 13 Barb., 663, the supreme court held it was-error for the judge, in an action for slander, to charge that in awarding damages the jury might take into consideration the-expenses to which the plaintiff had been put by being compelled to come into court to vindicate her character. If such expenses cannot be allowed in the original action we fail to see -how they can be made the basis of a subsequent action.

We also think that on the facts in this case there was no question of exemplary damages to be submitted to the jury. The only facts on which to base such damages were that defendants took an appeal first to the general, term of this court and then to the court of appeals, and withdrew the latter appeal when it was about to be reached, from which plaintiff contended want of good faith was shown and that the jury could infer from such a course an intention on the part of the defendants to harass and oppress the plaintiff. But the appeal did not suspend the operation of the injunction. That was done by the order of the court, in the exercise of its judicial discretion. From such an order no cause of action can arise. If the orders were unjust plaintiff should have-appealed from them. The orders were judicial determinations that the appeal presented questions proper for review by the appellate court, and the jury were not at liberty to make any other inference. In an action to recover certain bonds, where the operation of the judgment was suspended by taking an appeal and filing a bond without any order of the court and compensatory damages only, not punitive, were sought for the depreciation in the value of the bonds while in defendants hands, the court of appeals held there could be no recovery, saying “We think the right of appeal cannot he converted into a tort or wrong, and the delay it produces serve as the basis of a new action, and that the judgment already rendered closed the entire controversy.” Corn Exchange Bank v. Blye, supra.

It follows therefore that the judgment entered should be reduced by taking therefrom the sum of $500.06 and as modified affirmed, without costs to either party as against the other, as the errors complained of do not necessitate a new trial. All of them occurred after the trial and consisted in the failure of the court to direct the entry of a proper judgment upon the special findings. Code of Civil-Procedure §§ 1188, 1189.

Bischoff, J., concurs.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    John L. Douglass, App’lt, v. Robert N. Leonard, Ex’r, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Parties—Non-joinder—Joint contractor.
    The non-joinder, as party defendant, of a joint contractor is unavailable for any purpose, unless the objection is taken by answer or demurrer, and the plaintiff is entitled to recover, even though the evidence established his joint employment.

      2. Executors and administrators—Personal liability.
    Where services are performed by an accountant upon the books of an estate at the direct request of an executor, the latter will be personally liable therefor.
    3. Same—Action against—Evidence.
    In an action brought to recover for such services against one executor, plaintiff testified that his instructions concerning the" matter were received from defendant and a co-executor. Held, that letters tending to show that the latter’s instructions were authorized by defendant, were .properly admitted in evidence.
    4. Same—Leading question.
    Defendant- was asked on his direct examination: “Mr. D. has testified that in July, 1885, you requested him to write up the accounts of this estate for you. Is that true?’’ And the question was excluded as leading. Held, error, as the question did not involve any suggestion of either an affirmative or negative answer.
    5. -Same—Conclusions and opinions.
    A witness for the defense was asked why he had not made use of the accounts prepared by plaintiff, in the preparation of those subsequently presented by the witness to the surrogate’s court. Held, objectionable, as calling for the conclusion and opinion of the witness.
    Appeal from an order of the general term of the city court, granting anew trial and' reversing a judgment in favor of the plaintiff against defendant’s testator, entered upon the verdict of a jury.

      Walter Edwards, for appl’t; Wm. W. Badger, for resp’t.

       Reversing 39 St. Rep., 179.

   Bischoff, J.

Plaintiff sued to recover the fair and reasonable value of services, as an expert accountant, alleged to have been rendered and performed by him at the request of William H. Leonard in ana about the preparation of the accounts of said Leonard, George W. Parsons and Mrs. Almira Reed as joint executors of and trustees under the last will and testament of Bbenezer Reed, deceased. The answer denied the employment of the plaintiff by the defendant, the performance of the services and the value thereof and the trial of the issues thus created resulted in a verdict for the plaintiff for $1,500, the full amount claimed, being at the rate of twenty dollars per day for seventy-five days, with interest, upon which judgment was duly entered in his favor.

At the close of the trial the defendant moved for a new trial upon the minutes and upon the several grounds specified in § 999 of the Code of Civil Procedure, which motion was denied, and from the order entered upon that denial, as well as from the judgment, the defendant appealed to the general term of the court below, where the judgment only was reversed and a new trial granted ; and from that order of reversal the plaintiff appealed to this court. The fact, therefore, that the order of the trial justice denying defendant’s motion for a new trial remained undisturbed confines us to the consideration of the validity of defendant’s exceptions as authority for reversal of the judgment

Upon the close of the introduction of plaintiff’s direct evidence defendant’s counsel moved to dismiss the complaint upon the grounds, that plaintiff had failed to establish his employment by the defendant individually, that there was a variance between the pleadings and the proof in that the latter established an employment by the defendant jointly with Parsons and Mrs. Reed, and that defendant and Mrs. Reed, as survivors of the three joint contractors, should have been joined as defendants in this action. The motion was denied and defendant’s counsel duly excepted.

There was no error in this ruling. At common law the nonjoinder as party defendant of one jointly liable did not constitute a variance, and was ground for a plea in abatement only, the defect being waived if the defendant proceeded to trial on the merits, Mountstephen et al. v. Brooke et al., 1 Barn. & Ald., 224; Le Page v. McCrea, 1 Wend., 164, and pursuant to the provisions of the Code of Civil Procedure, §§ 488, 498 and 499, the nonjoinder as party defendant of one jointly liable is unavailable for any purpose, unless the objection is taken by answer, or demurrer. Assuming, therefore, that the evidence conclusively establishes a joint employment as contended by defendant’s counsel, plaintiff was nevertheless entitled to recover. Whether joint or several the defendant’s liability for plaintiff’s entire demand was shown and the payment of a judgment recovered against -him alone could have had no other effect than that which would have resulted from payment without the judgment. Defendant still had his claim for contribution against his co-contractors, Wharton on Contracts, Yol. II., § 835; Aspinwall v. Sacchi, 57 N. Y., 331; Booth v. Farmers & Mechanics' Natl. Bank, 74 id., 228; Harbeck v. Vanderbilt, 20 id., 395, and the only advantage which might have enured to him from their joinder as parties defendant in this action would have been that a judgment therein against the defendants jointly would have concluded the parties in a subsequent action for contribution.

In Patchin v. Peck, 38 N. Y., 39, plaintiff sued to recover upon a demand alleged to be due him individually. The evidence showed it to be owing to a firm of which he was a member, and the defect of parties plaintiff was not objected to by answer or demurrer. The court held the failure to raise the objection by either means rendered proof of the firm ownership of the demand insufficient to bar recovery, and for that reason inadmissible. The principle upon which the decision proceeded is stated as follows; “ It is suggested by counsel for defendant that the rule ought not to be applied in this case, for the reason that the defendant could not determine, from the complaint, that this demand would be claimed by the plaintiff in his action. If this be so, the remedy of the defendant was, either to apply to have the complaint made more specific, or to obtain a bill of particulars of the plaintiff’s demand.

“ The question remains, whether the evidence was admissible to restrict the recovery to the amount of plaintiff’s interest in the demand. The interest of plaintiff was that of a partner, and extended to the entire demand. Payment of the whole to him would have discharged the defendant as to both partners. A recovery of the whole in this action by the plaintiff will have the like effect Under such a state of facts it was held by this court, that when the action was in tort, by one party jointly interested with another in the subject matter, a recovery might be had for the entire demand. Zabriskie v. Smith, 13 N. Y., 322. No reason is perceived why the same rule should not be applied to actions upon contract under the Code.”

The same principle, it seems to us, may be applied to the case of a joint liability on contract. The obligation of each of the joint debtors to pay extends to the entire debt, and if payment thereof is made by one, his remedy against the others for contribution cannot be impaired by the fact that such payment was made pursuant to a judgment recovered in an action to which the others were not made parties defendant. See also Carter v. Hope, 10 Barb., 180.

Another ground urged by defendant’s counsel, in support of the motion for the dismissal of the complaint, was that the evidence established plaintiff’s employment by Leonard, Parsons and Mrs. Heed, not as individuals, but as executors, etc., of Ebenezer Reed. Were the evidence susceptible of no other construction, or inference, than that contended for on defendant’s behalf, there would be no difficulty in the way of reaching the conclusion that the cause of action alleged in the complaint remained unproved and that the motion to dismiss should have been granted.

As it is, however, there was evidence from plaintiff’s testimony that the services for which he sought to recover were performed by him upon the direct request of the defendant, and from that fact the law will imply a promise to pay what they were fairly and reasonably worth. That the services did not enure to the personal advantage of the defendant, but were required in matters pertaining to the estate of which he was an executor, or trustee, did not absolve him from personal liability therefor, in the absence of an agreement to that effect, Ferrin v. Myrick, 41 N. Y., 315; Mygatt v. Wilcox, 45 id., 306; Austin v. Munro, 47 id., 360; New v. Nicoll, 73 id., 131; Seaman v. Whitehead, 78 id., 306, 309. There was no evidence of such an express agreement, and whether or not the contracting parties intended that plaintiff should be confined to the estate for compensation, was at most a matter of inference from the circumstances surrounding the request for, arid the performance of the services. These circumstances may be equally consistent with an inference either way, but it was for the jury to draw it and not for the court. First Nat. Bank of Springfield v. Dana, 79 N. Y., 108, 112; Smith v. Coe, 55 id., 678.

Other exceptions to the rulings upon the trial taken by the defendant prove to be equally without sufficient force to warrant the reversal of the judgment. Plaintiff’s testimony concerning an interview with Mrs. Reed, which was objected to by defendant, •related wholly to a demand by him for payment of the amount claimed for compensation, to which he had previously testified without objection. The letters from Leonard to Parsons, which were admitted against defendant’s objection, referred to the preparation of the accounts, for which plaintiff claimed to have been employed. He testified that his instructions concerning the manner' of their preparation were received partly from the defendant personally, and partly from Parsons, his co-executor, and evidence tending to show that Parsons’ instructions were authorized by the defendant was competent. For that purpose the letters containing such authority were both relevant and material, and, therefore, admissible.

Defendant was asked on his direct examination : “ Mr. Douglass has testified that in July, 1885, you requested him to write up the accounts of this estate for you. Is that true ?’’ and under objection by plaintiff’s counsel this question was excluded as leading. Y7e do not concur in the ruling of the trial justice in this respect, since the question does not apparently involve any suggestion of either an affirmative or negative answrnr, but the subsequent examination at length of the witness concerning the subject matter of the question effectually' waived the error of its exclusion. Neil v. Thorn, 88 N. Y., 277; Crosby v. Day, 81 id., 242.

Edwards, a witness for the defense, was asked on direct examination to state why he had not made use of the accounts prepared by the plaintiff in the preparation of those subsequently presented by the witness to the surrogate’s court. This question also was excluded upon plaintiff’s objection. It is urged that this exclusion was error, because the witness’ answer may have tended to show that the accounts prepared by plaintiff were not as directed by defendant, and that they were worthless; and that these facts materially affected the question of performance by the plaintiff and the value of the services rendered. It was competent for defendant to show these facts, but the form of the question did not require a statement of them, but of the witness’ conclusion and opinion, and was objectionable upon that ground.

Defendant’s counsel requested the court to charge, “ that a trastee has no power to employ an accountant, at the expense of the estate for which he acts, and that the defendant in .this case, if held liable for the claim of Mr. Douglass, has no recourse as a matter of law against the estate of Dr. Reed.” This was charged with the following qualification, “ that a trustee cannot bind the fund of which he is trustee by the employment of a third person; if he employs a person he is individually liable for such employment, but of course when he presents his accounts for settlement, either to the court, or to the surrogate, he has a right to offer such item as a proper disbursement, and it is for the court to say whether or not it is a proper disbursement”

To the refusal*to charge as requested, and the charge as made defendant’s counsel excepted. In view of the fact, however, that the claim in suit was founded upon the personal contract of the defendant and no recovery was sought, or could have been had against him as executor or against the estate of which he was executor or trustee, the charge requested and as made does not appear relevant, since the defendant’s liability to pay for services rendered at his request is not in any degree impaired because he has no means of recourse for the expense incurred. As an abstract proposition of law the charge, as made was correct, Redfield’s Law & Practice of Surrogate’s Courts, 2d ed., p. 456 and cases there cited, and its irrelevancy cannot aid the party at whose request it was made.

The remaining grounds urged for affirmance of the order of the general term of the court below reversing the judgment, namely, that the verdict is contrary to the evidence, that the amount-thereof is excessive and that there was no adequate, or satisfactory proof as to the time spent by plaintiff in the performance of the services for which he sought to recover, authorize us to review the evidence only to the extent of ascertaining whether there was any evidence whatever to support a finding in plaintiff’s favor; and, upon examination, we must conclude that there was. Plaintiff testified that the services were performed and the accounts prepared at the request of and at the direction of the defendant and pursuant to his instructions. These facts implied a promise by defendant to pay the reasonable value of the services. The accounts prepared by plaintiff were given in evidence and presented to the court and jury for inspection, and whether or not they were as defendant directed them to be was a fact capable of being ascertained therefrom. Plaintiff and witness Bergtheil, both expert accountants , testified that the usual compensation for services of expert accountants is from twenty to twenty-five dollars for each day, consisting of from six to eight hours work.

Plaintiff claimed to have spent seventy-five days in the preparation of the accounts. His testimony in this respect, it is true, was vague, but it was aided by the presence of the accounts, and it was competent for the jury to say from their inspection whether seventy-five days, of from six to eight hours each, was reasonably required in their preparation, and the preliminary examination of books, memoranda and other material and attendance' at interviews and consultations requested by the defendant, or otherwise necessary.

The foregoing comprise all of the exceptions urged by the defendant to sustain the order appealed from, and, for the reasons stated, are insufficient.

The order of the general term of the court below, reversing the judgment for plaintiff upon the verdict in his favor and granting a new trial, should be reversed and the judgment affirmed, with costs to the appellant.

Daly, Ch. J., concurs.

On motion by defendant for leave to appeal to the court of appeals, the following opinion was rendered March 18, 1892 :

Per Curiam. We perceive in defendant’s affidavit and brief no pretense of justification for sending this case to the court of appeals. The action was for the recovery of the value of services rendered to the defendant’s testator. The evidence was ample to authorize the verdict, and no new or important principle of law was developed in the trial; indeed, the decision depended merely upon the weight of evidence, and so is not subject to review by the court of appeals. The validity of the judgment is completely vindicated by the elaborate opinion at general term of this court. Manifestly, a further appeal can result only in a “delay” of justice, which, in the enumeration of popular grievances, Ma'gna Charta classifies in the same catagory with a “ denial ” of justice. The defendant distinguishes no specific rule of law which he supposes to be violated by the decision against him, but rests his motion on a general impeachment of the correctness of the judgment. But, as every defeated suitor is apt to bewail himself as the victim of injustice, the complaint here relied on would avail to carry all cases to the ultimate tribunal. Unless a judgment involves some difficult and doubtful question of law, we shall not send it for revision to a tribunal already overburdened by its own proper business. In any other case where error is imputed to this court, the appropriate redress is by motion for a re-argument.

Motion denied, with costs.


author: Daly, Ch. J.

text:
    William R. Gilpin, App’lt, v. The Baltimore & Ohio R. R. Co., Resp’t.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Judgment—Foreign—Fraudulent compromise by guardian—Remedy.
    Plaintiff alleged in his complaint that, by his guardian ad litem, he recovered a judgment of $10,000 against (he defendant in Ohio; that the defendant demanded a new trial and gave a bond for $30,000; that no second trial was ever had, but that subsequently a compromise judgment of $3,800 was entered without any trial and by fraudulent procurement of the defendant, which sum the guardian converted to himself. Held, that plaintiff’s remedy was not by action in New York,but to apply to the Ohio court by motion to set aside the fraudulent judgment, and proceed to a second trial, the original judgment not being enforceable while the bond remains in force.

      2. Same—Grounds op demurrer.
    The complaint was also demurrable because it failed to state that the giving of the bond was fraudulent or collusive, and also because it omitted to state whether the defendant was a foreign or a domestic corporation.
    3. Appeal—Case—Decision op trial judge piñal.
    On a motion to require plaintiff to print in his appeal book an exemplified' copy of a record as a part of his complaint, the affidavit of defendant’s counsel showed that plaintiff had proffered such copy in his complaint, but failed to produce it on the trial, when defendant, with his consent, produced and used it, all of which was denied by the affidavit of plaintiff’s counsel. Held, that as the judge who tried the case granted the application, he was in the best position to know what papers were used at the trial, and his decision should not be disturbed.
    Appeal by plaintiff from judgment of the special term of this court sustaining demurrer to complaint.

      Thomas Nolan, for app’lt; Tracy, McFarland, Ivins, Boardman & Platt, for resp’t.
   Daly, Ch. J.

It appears from the complaint that on October 28, 1870, the plaintiff by his guardian ad litem Henry G. Helmiclc, duly appointed, recovered a judgment against the defendant for $10,000 in the court of common pleas of Franklin county, Ohio ; that the defendant demanded a second trial and, according to the laws of Ohio in such cases made and provided, gave a bond for said second trial dated November 15, 1870, and an additional bond dated November 23, 1870, for $20,000, double the amount of the judgment, as required by said laws as a condition, which bond was duly filed with the clerk of said court.

The complaint goes on to allege that no second trial was ever had as required by the laws of Ohio and provided by the said bond, but that a subsequent judgment of $3,800 was entered in said action without any trial and by way of compromise, and that this was effected by the fraudulent procurement of the defendant with one Henry Chittenden, who illegally procured himself to be appointed guardian while said Helmiek was the actual guardian, and that this was done with connivance of defendant for the purpose of effecting such settlement and compromise for $3,800, which said Chittenden illegally secured and has not paid plaintiff ; that Chittenden had no authority to settle the cause and that said settlement and subsequent judgment are wholly void, and the original judgment of $10,000 is now in full force and effect, and is still due and owing plaintiff; that plaintiff is now twenty-one years of age and upwards and was brought to this city in November, 1871, when he was about ten years of age, and had no knowledge of the proceedings taken in his case in the courts of Ohio, as aforesaid, until within the last nine months, when he instituted this action as soon as the facts came to his knowledge. And the complaint demands judgment for the amount of the judgment recovered as aforesaid with interest from October 28, 1870.

It is manifest at once-from the statement of the complaint that, if no second trial was had, as provided by the laws of Ohio upon the giving of the bond to secure the same, that the remedy of the plaintiff is to apply to the proper court in that state for such second trial. If the alleged collusive and fraudulent judgment and settlement for $3,800 stands in the way of such trial, then his remedy is to move in the court where these proceedings were had to set them aside. But while the bond given by defendant to obtain a second trial remains in force, the original judgment cannot be enforced, and forms no ground of liability against the defendant in Ohio or in this state. There is no allegation in the complaint, as pointed out by the learned judge at special term, that the giving of the bond was in any way fraudulent or collusive, and no subsequent proceedings, no matter how fraudulent, would vitiate the bond in the enforcement of which lies plaintiff’s sole remedy, if any.

The demurrer was properly sustained on the ground that the complaint does not state facts sufficient to constitute a cause of action. There was another ground of demurrer that the complaint omits to state whether the defendant is a foreign or domestic corporation, and this was also well taken. First Nat. Bank of Northampton v. Doying, 11 Civ. Pro., 61; 1 St. Rep., 617; Code, § 1775.

Appeal by plaintiff from order of the special term of this court denying his motion to set aside an order requiring him to print as part of his complaint, in his appeal book, on appeal from the j udgment on the demurrer, the record of the proceedings in Ohio which were used on the argument of said demurrer, and agreed by counsel to be deemed a part of the complaint; and that said record be filed.

Daly, Ch. J. The complaint refers to an exemplified copy of the proceedings, record and judgment of the court of common pleas of Franklin county, Ohio, to be produced and proved on the trial of this action; also to an exemplified copy of the bonds mentioned in the complaint which plaintiff proffers and will produce on the trial. On the trial of the demurrer, defendant refused to proceed unless such records were produced, but as plaintiff did not have them in court, defendant, with his consent, produced such exemplified copies, and the demurrer was argued upon them and the pleadings as served.

This appears by the affidavit of the defendant’s attorney and counsel, but it is denied in the affidavit of plaintiff’s attorney and counsel. As the learned judge who heard the demurrer granted the defendant’s application to make such record a part of the appeal book, and subsequently denied plaintiff’s motion to set aside the order made on such application, we have in effect his corroboration of defendant’s coúnsel as to what occurred- upon the trial, and as he was in the best position to know upon what papers the argument was had, we cannot find that we would be justified in reversing his decision.

The judgment and order appealed from are each affirmed, with costs.

Bischoff, J., concurs.


author: Pryor, J.

text:
    Christopher Pfluger, Resp’t, v. John Wilshusen, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Bills and notes—Accommodation—Contribution—Consideration.
    Where the accommodation maker and accommodation endorser of a negotiable note, after a judgment recovered by an endorser, agree that they will share equally their liability on the note, the agreement is void for want of consideration
    3. Same—Charge to jury.
    In an action on such an agreement, where there was evidence that the plaintiff was to share in the proceeds of the note with the person accommodated, it is error for tne court to charge ‘ ‘ that it is immaterial what the relations were between .the parties, whether they were endorsers for a consideration or not,” where it does not appear but that plaintiff was principal, and, therefore, primarily liable, in which case defendant’s agreement to release him from liability would be without consideration.
    Appeal from judgment bf general term, city court, affirming judgment on verdict. Action by an alleged accommodation maker of a note against an accommodation endorser, upon an alleged agreement of contribution.

      Samuel G. Adams, for app’lt; Eugene H. Pomeroy, for resp’t
   Pryor, J.

The note was made by the plaintiff, endorsed by the defendant for accommodation at the request of the plaintiff, and then endorsed and negotiated by Frederick Pffuger.

Plaintiff’s contention is that both he and the defendant were parties to the note for the accommodation of Frederick Pfluger. Assuming the fact to be so, then, in the absence of a special agreement, the plaintiff would have no right to contribution from the defendant, for successive accommodation parties are not co-sureties as between themselves. Kelly v. Burroughs, 102 N. Y., 93; 1 St. Rep., 161; Easterly v. Barber, 66 N. Y., 433; McDonald v. Magruder, 3 Peters, 470; Shaw v. Knox, 98 Mass., 214; Hillegas v. Stephenson, 75 Mo., 118; McGurk v. Huggett, 56 Mich., 187; Phillips v. Plato, 42 Hun., 189; 5 St. Rep., 124.

But, by express agreement, successive parties on accommodation paper may establish between themselves the relation of co-sureties, and so be reciprocally entitled to contribution. Easterly v. Barber, 3 T. & C., 421; 66 N. Y., 433; Seward v. Huntington, 94 id, 104, 113. Plaintiff gave evidence of such an agreement; but the agreement was not made at the time they became parties to the paper, nor until their mutual rights and liabilities had been fixed by a judgment against them at the suit of an endorsee. At that moment the defendant was entitled to complete indemnity from the plaintiff; and without more, there was manifestly no consideration to uphold defendant’s agreement for contribution.

Assuming, however, that such an agreement would have been valid, still the learned trial justice put the case to the jury on a theory which ignored the relation of plaintiff and defendant as accommodation parties. He said: “I charge you that it is immaterial what the relations were between the parties, whether they were endorsers for a consideration or not ” There was cogent evidence that the defendant endorsed for the accommodation of the plaintiff and his brother Frederick, partners in the building business, and that plaintiff had the benefit of the money realized by the discount of the note. Under the charge the verdict does-not determine but that the plaintiff was, as principal, primarily liable on the note; and if so, there was no consideration for the-discharge of that liability by the defendant

Waiving, however, even the objection and yet it is impossible-to sustain the judgment.

The agreement alleged by the plaintiff was that the defendant-“should pay over to him one-half of the amount he should receive or collect on the judgment" meaning the judgment obtained by the endorsee against the parties, and which had been assigned to the defendant. The proof was that the defendant had received $888 from the wife of Frederick Pfiuger, in pursuance of her promise .to indemnify him for any sum he might pay on account of the endorsement. Co-sureties are entitledto the benefit of any security or payment by their principal; but not of any security or payment by a third party. Seward v. Huntington, 94 N. Y., 104, 114. Recognizing this distinction, the learned trial justice charged, that, if the jury believed that the money paid to defendant by Mrs. Pfiuger “ was so paid as a mere subterfuge and that it was really money belonging to Frederick Pfiuger, and was really paid on account of this judgment, then your verdict must be for the plaintiff.” Mow, there was not a scintilla of evidence in thecasetending to show that the money was the money of Frederick Pfiuger, Kelly v. Burroughs, 102 N. Y., 93; 1 St. Rep., 161; and so, for aught we can know, the verdict went against the defendant upon a supposed fact utterly without proof authorizing the jury to find it.

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

Bookstaver, J., concurs.


text:
    Richard Flatow, Resp’t, v. Theodore Von Bremsen, App’lt.

      (New York Common Pleas, General Term,

      Filed February 1, 1892.)

    1. Pleading—Demurrer—Entry of final judgment.
    The general term of the city court reversed an order of the special term overruling a demurrer, and directed final judgment to be entered for defendant, unless plaintiff served an amended complaint within six days. The plaintiff failed to serve his complaint, and defendant applied to the special term for final judgment, which was granted, and entered as a. judgment of the special term. Held, error; that judgment should have been entered as a judgment of the general term, as that court directed a, final judgment.
    2. Same.
    While § 1203 of the Code prescribes that judgment generally must be entered in the first instance pursuant to the direction of the court at a term held by one judge, this does not restrict the power of the general term, upon appeal from a judgment so entered, from making a direction for a different judgment.
    8. Same.
    The express power granted the general term by § 1224 of the Code to-render final judgment in case of an affirmance does not exclude the exercise of such power in the case of a reversal.

      Appeal from an order of the general term of the city court, affirming an order of the special term vacating a final judgment upon demurrer, entered by direction of the special term.
    The defendant had demurred to the complaint and the special term had overruled his demurrer, ordering judgment for the plaintiff unless defendant answered within twenty days; and an interlocutory judgment to that effect wras entered, from which defendant appealed to the general term. The judgment was reversed, and the general term sustained the demurrer and directed final judgment to be entered for defendant dismissing the complaint, unless plaintiff served an amended complaint within six days. An interlocutory judgment to that effect was .entered at general term. The plaintiff failed to serve an amended complaint within the allotted time, and defendant thereupon applied to the special term of the city court for final judgment upon the demurrer, his motion was granted and final judgment ¡entered as a judgment of the special term. It is this final judgment which the city court has vacated.
    The case was formerly before us upon an attempted appeal from such final judgment, but the appeal was dismissed for want >of jurisdiction of this court to entertain appeals from the special term of the city court. Flatow v. Von Bremsen, 36 St. Rep., 863. Acting upon the suggestion in the opinion delivered by the general term upon that appeal, viz., that the proper final judgment to be entered was a final judgment of the general term of the city court, and that the plaintiff could apply to the city court to have the correct judgment entered, he moved the special term of that court to vacate the final judgment entered thereat as improper, irregular and unauthorized, which motion was granted and an order entered vacating said judgment. From the order of the general term of the city court affirming that order this appeal is-taken.

      George W. Stephens, for app’lt; John Pi Schuchman, for resp’t.
   Daly, Ch. J.

The final judgment of the city court upon demurrer dismissing the complaint for failure to amend it within the time prescribed, should have been entered as a judgment of the general term, for the general term directed both an interlocutory .and a final judgment to that effect and there was no necessity to apply again to the special term. It is only where the court fails to direct final judgment that application must be made for it upon motion. Code, § 1222.

The direction of the general term required a final judgment from which an appeal would lie directly to this court, and it was irregular for defendant to disregard that direction and resort to the special term for a similar final judgment. The irregularity deprived plaintiff of a substantial right, viz., a direct appeal to this court, and involved the burden of delay and the costs of a further formal appeal to the general term in order to obtain a review of a final determination which it had already pronounced.

While § 1203 of the Code prescribes that judgment generally must be entered in the first instance pursuant to the direction of the court at a term held by one judge, this does not restrict the-power of the general term, upon appeal from a judgment so entered, from making a direction for a different judgment In the-case of judgment upon demurrer where the special term in the-first instance may order an interlocutory and also a final judgment, § 1021, that power may be exercised by the general term upon appeal from such interlocutory or final judgment. -Where-the interlocutory .judgment of the general term overrules a demurrer to a complaint it may direct final judgment to be entered upon default of answer, and even though the action be one in which the plaintiff could not have the relief he demanded without application to the court, Code, §§ 1214, 1215, the general term may direct final judgment for such relief. Smith v. Rathbun, 88 N. Y., 660.

Appellant refers us to § 1224 of the Code, which provides that where an order or judgment is wholly or partly affirmed upon appeal to the general term and no issue of fact remains to be tried, the general term may in its discretion render final judgment unless it permits the appellant to amend or plead over ; and his contention is that this express grant of power to the general term in the case of an affirmance to render final judgment, excludes its-exercise in the case of a reversal. We cannot agree with this-construction. The authority granted by the Code to the court to direct both interlocutory and final judgment is nowhere confined to the court at special term after an appeal has been taken to the-general term. In the case of Smith v. Rathbun cited; the power of the general term to award the judgment which the special term could have allowed is not placed upon the authority of § 1224, although that was a case of affirmance. Section 1224 is-not cited in the opinion of the court as reported, but the position taken is that the court, whether acting at special or general term, is the same court and had the power to give such judgment as it-determined the party was entitled to.

The remaining questions raised by the appellant, i. e., loches on the part of the plaintiff in not moving earlier to correct the error in the entry of judgment and waiver of defect by taking an appeal from the unauthorized judgment, were proper for the consideration of the city court, but as they were not deemed sufficient in the exercise of discretion by that tribunal to justify a denial of the relief prayed for by the plaintiff, we cannot disturb the order upon any such ground.

Order affirmed, with costs.

Bischoff and Pryor, JJ., concur.


author: Abbott, S.

text:
    In the Matter of the Probate of the Will of T. B., Deceased.

      (Surrogate's Court, Kings County,

      Filed January , 1892.)

    Will—Probate—Libelous clause.
    A will should not bo permitted to be made a vehicle for libel or contumely, and when such design plainly- appears from the context, such matter, in so far as it is not dispositive, should be refused probate and record.

      Probate of will.

      Fromme Bros., for proponents; Robert Payne, for special guardian.
   Abbott, S.

The special guardian for the infant in this proceeding filed objections to the probate of the last clause of this will on the ground that such clause was superfluous and libelous,, and should be refused probate and record.

It reads substantially as follows: “Item. And whereas one of my sons * * * is deceased, and there is a child in existence, which is claimed to be his, and which is named * * * now it is my will that no portion of my estate, real or personal, shall go to or belong to him, his heirs or representatives.”

The son mentioned in the “item ” aforesaid had not lived happily with his wife, and they had separated after a son had been born to them, whose custody was awarded to the mother, and who is designated as the “ child in existence ” in said “ item; ” but upon the hearing in this matter the proper and ceremonial marriage of this son and the legitimacy of his child were admitted in the broadest and fullest manner by the proponents herein, whx> are also sons of the testator.

The 'testator disposes of his entire estate, both real and personal, by the clauses of his will which precede this “ item; ” consequently said “ item ” effects a disposition of no part of his estate.

A will is an instrument which disposes of one’s property, to-take effect after death, and should not be permitted to be made a. vehicle for libel or contumely, and when such design plainly appears from the context, such matter, in so far as it is not dispositive, should be refused probate and record.

The same reasoning would apply to the opprobrious designation of a beneficiary in a will. A beneficiary ought not to be compelled to take a legacy cum onere. The opprobrious designation should not be probated or recorded; the dispositive words only should be admitted.

I have been unable to find any case in this state in which this-point has been passed upon, but there have been cases elsewhere which establish that probate of part of a properly attested will may be decreed while the rest is rejected, and it would appear that something superfluous may be expunged from a properly executed will, though the right to insert words or reform a sentence is denied. Schouler on Wills, § 219; Rhodes v. Rhodes, L. R., 7 App. Cas., 192; Allen v. McPherson, 1 H. L. C., 208; Fawcett v. Jones, 3 Phill., 455; Morris v. Stokes, 21 Ga., 552.

After referring to the English practice of excluding portions of a will from probate under certain conditions, Redfield on Wills, Yol. II, p. 43 (ed. 1866), says: “And we see no reason why the-same course should not be pursued here. But it has been held that the court cannot, even with the consent of all parties interested, expunge from the probate any parts of the will which constitute operative portions of the instrument. But offensive passages have sometimes been allowed to be omitted from the probate, when the'omission.does not change the legal effect." In re Wartnaby, 1 Robertson’s Ecc. Rep., 423; see also 1 Williams on Executors, 6th Am. ed., p. 443, and cases cited.

Following the doctrine of these authorities it seems manifest to me that as this “ item ” contains no testamentary disposition and is not a necessary or operative part of the will, but simply casts an unwarranted slur upon an innocent child, it should be refused probate and record.

Let decree be presented accordingly.


text:
    In the Matter of Ann Eliza Owens.

      (New York Common Pleas, Special Term,

      Filed February, 1892.)

    1. Lunacy—Supebsedeas.
    The court has no power after the death of a lunatic to supersede the commission of lunacy on the ground that she had been restored to reason.
    '3. Same—Tbavebse.
    But the death of the lunatic is no obstacle to a traverse of the inquisition by a grantee whose conveyance is invalidated by the inquisition.
    Motion to confirm report of referee.

      George Bliss, for the motion; W. Tazewell Fox, contra.
   Pryor, J.

On the 27th day of May, 1873, in a proceeding c?e .lunático inquirendo, Ann Eliza Owens was duly adjudged a lunatic, and a committee appointed of her person and estate. On the 1st July, 1890, the said Ann Eliza Owens conveyed real property of considerable value to the Church of St. Francis Xavier, and shortly thereafter died. Upon a petition setting forth that the said Ann Eliza Owens had ceased, on the lskof July, 1890, to be ■a lunatic, the Church of St. Francis Xavier applied for the appointment of a referee to take proof and report as to the fact of the recovery of said Ann Eliza Owens; and prayed that, if such recovery be established, “ the adjudication and inquisition be annulled, vacated and set aside." Accordingly, a referee was appointed ; and upon testimony as to the mental condition of said Ann Eliza Owens, he reported that, at the time of the convey.•ance to the Church of St. Francis Xavier, “ she was mentally capable of acting and fully understood and comprehended its effect;” .and he recommended that the prayer of the petition be granted, .and that the adjudication of lunacy against said Ann Eliza Owens be annulled, vacated and set aside. On this report and the accompanying evidence the Church of St. Francis Xavier now moves that the said adjudication of lunacy be vacated and set aside. An heir-at-law of the said Ann Eliza Owens opposes the motion; and demands, on the contrary, that the order appointing the referee, and all proceedings under'it, be vacated and set aside.

That there is no logical or legal connection between the sanity •of Ann Eliza Owens on the 1st July, 1890, and the validity of the inquisition of lunacy on the 27th May, 1873, is sufficiently ■obvious. For impeaching the original validity of that inquisition, it was requisite to impugn its regularity, or to establish the then mental competency of the alleged lunatic. True, upon her restoration to sanity, the inquisition and judgment of lunacy might have been superseded; and that such is the object of the present proceeding is apparent upon the. terms of the petition by which it was initiated, as well as of the prayer for relief.

Viewing the proceeding, then, as an application to supersede the-commission of lunacy on the ground of subsequent recovery, the death of the lunatic interposes an insurmountable bar to its maintenance. The petition for a supesedeas must proceed from the lunatic himself, and upon his allegation that he has recovered his senses. Ex parte Rogers, 1 Halst. Ch., N. J., 46; Ex parte Bumpton, Moseley, 78; Ex parte Hanks, 3 Johns. Ch., 567; Ex parte Stanley, 2 Vesey, Sr., 25. And the lunatic must be accessible, so that the court may ascertain, by a personal examination, whether he be-restored to sanity. Shelford on Lunacy, § 11, pages 279-282; Ordrona'ux on Lunacy, title 5, p. 256. The Code, too, unequivocally implies the existence of the lunatic at the time the inquisition is superseded, by providing (§ 2343) that “where he becomes competent to manage himself or his affairs, the court must make an order requiring the committee to restore to him his property,” and by prescribing (§ 2344) that “ where he dies the power of the committee ceases, and his property must be administered- and disposed of, as if a committee had not been appointed.” Indeed, in the very nature of the thing, as an adjudication of the present capacity of the person, a supersedeas of an inquisition of lunacy assumes that the person so adjudged to be competent to-the management of himself and his affairs is not dead, but still lives.

It results, therefore, that the court has no power to supersede-the commission of lunacy against Ann Eliza Owens upon the-ground that since the inquisition she has been restored to reason.

I own my inability to perceive the analogy, suggested by the-ingenious counsel for petitioner, between vacating an inquisition of lunacy and decreeing satisfaction of a judgment. But, how- • ever it be, the law has prescribed the method of declaring satisfied an inquisition of lunacy, namely, by superseding it, and that-we have seen is unattainable after the death of the lunatic.

It does not follow, however, that the petitioner is altogether remediless. Claiming as grantee for value from the alleged lunatic, affirming that at the time of the conveyance she was perfectly competent to its execution, and conceding the technical nullity of the deed because of the inquisition, the petitioner presents a clear case for the exercise of whatever power the court may possess to redress the grievance of which complaint is made. Such power the court has and may exert by means of a traverse of the inquisition. By this proceeding-the present condition of the lunatic is not questioned, buther insanity at the time of the inquisition, or its regularity, is challenged and the issue so raised is tried by a jury, by the court, or by a referee. Such a proceeding need not be instituted by the-lunatic, but a grantee whose conveyance is invalidated by the inquisition will be permitted to traverse it, on stipulating to be bound by the final decision therein, Yauger v. Skinner, 1 McCart. (N. J.), 389; Ex parte Christie, 5 Paige, 242; Medlock v. Cogburn, 1 Rich. Eq., (S. C.), 477; Ex parte Giles, 11 Paige, 243. As to the practice upon -such proceeding, see further Clapp's case, 20 How., 385; Ex parte Tracy, 1 Paige, 580; In re Russell, 1 Barb. Ch., 38; McGinnis v. Comm., 74 Pa. St., 245; Rogers v. Walker, 6 id., 371; Ludwick v. Comm., 18 id., 175; Leckey v. Cunningham, 56 id., 373; Hill v. Day, 34 N. J. Eq., 150. Obviously, as the traverse does not ■question the present condition of the lunatic, and as she is represented by her heirs, her decease opposes no obstacle to the proceeding.

Should the church of St. Francis Xavier choose, by an amended •or original petition, to traverse the inquisition by allegations impeaching its validity, e. g., want of notice to the lunatic, the proceeding will be entertained.

Petitioner’s motion to confirm denied, with ten dollars costs.

The motion to vacate the proceeding denied, without costs, and with leave to petitioner to amend as indicated.


author: Maynard, J.

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

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Deed—Validity—Capacity.
    The mere fact that a grantor was ninety-two years of age; that he had many physical infirmities due to his advanced years, with the consequent impairment of the mental faculties, will not justify setting a deed aside because of incapacity, where the evidence shows that he had such mental capacity at the time of the execution of the deed that he could collect in his mind without prompting all the elements of the transaction and retain them for a sufficient length of time to perceive their obvious relations to each other and to form a rational judgment in regard to them.
    '3. Same—Evidence—Expert.
    A layman cannot properly give an opinion as to the mental capacity of a grantor, or as to whether he was rational or irrational, even when such opinion may be based upon specific acts and conversations and his personal observations. He may state the acts and conversations of which he had personal knowledge and then be permitted to say whether in his judgment such acts and conversations were rational or irrational or were those of a rational or irrational person.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment of special term, dismissing ■complaint upon the merits.

      L. Laflin Kellogg, for app’lt; Geo.' Putnam, Smith, for resp’t.

       Affirming 38 St. Rep., 402.

   Maynard, J.

The plaintiff, as one of the principal legatees and devisees in the will of his grandfather, John Paine, seeks to set aside a conveyance made by the testator May 28, 1885, six months before his death, by which he conveyed to Elizabeth Noble certain valuable real estate in New York city between Sixty-third and Sixty-fourth streets and Tenth and Eleventh avenues, and at the time of the estimated value of $250,000, but upon which there was a mortgage of $70,000. The deed is assailed upon the alleged ground that the grantor was non compos ■mentis at the time of its execution. The consideration of the conveyance was the grant to Paine by Mrs. Noble of certain premises .on Fifty-seventh street in the same city, occupied as "an apartment house, known as 11 The Grenoble,” which was estimated in the exchange to be worth $600,000, and upon which there was a mortgage of $300,000, and upon which Paine executed to Mrs. Noble, at the time of the conveyance to him, a second mortgage of $70,000.

This action was commenced June 4, 1889. Mrs. Noble mortgaged the Sixty-third street property to the Mutual Life Insurance "Company soon after its conveyance to her, and on June 13, 1885, •conveyed the premises to one William B. Coates. It seems to have been unimproved property and was divided up into several lots and portions of it conveyed to different persons and mortgages given and foreclosed. On April 8, 1889, the defendant Elizabeth W. Aldrich became the purchaser of a portion of the premises for the consideration of $300,000, subject to a mortgage to the Mutual Life Insurance Company of $100,000. It is not claimed that she had any notice or knowledge of the alleged mental in■competency of John Paine when he executed the deed to Mrs. Noble in 1885. All the transactions relating to this property are matters of public record and presumably the plaintiff had knowledge that the grantees of John Paine were dealing with it as if they had an unimpeachable title, and that innocent purchasers were.making investments upon the faith of such title, and no objection is shown to have been made by • him or any claim preferred that the deed to Mrs. Noble was, for any reason, void; and no explanation has been made of his conduct in delaying to bring ■this action for a period of over three years and six months after his grandfather’s death. • It appears that the mortgage upon the ■Grenoble property, given by John Paine as a part of the consideration of the exchange of property, was foreclosed in 1886. Presumably his executors and devisees, including the plaintiff, were made parties. Whether any defense was interposed by the plaintiff does not appear, except inferentially. The plaintiff put in evidence a notice ot appeal from an order in the foreclosure .action denying a motion made by him to open the judgment therein. It is evident that the same facts which would have sustained this action to set aside the deed to Mrs. Noble would have •constituted a defense to the foreclosure action.

The plaintiff in his complaint alleges a conspiracy between William Noble, Elizabeth Noble and one Sears, the agent of John Paine, by means of which the execution of this deed was pro•cured, and in consequence of which the grantor and his heirs and legatees suffered loss and damage to the amount of $180,000. There is no allegation that the parties to this conspiracy are insolvent or unable to make restitution, or that the plaintiff has not an adequate legal remedy by means of which he might recover the value of the property lost, without recourse to innocent purchasers.

While all these circumstances may not operate as a bar to a recovery here, they may and should be taken into account by a ■court of equity, and are of such a character as to require clear and conclusive proof of the mental incapacity of plaintiff’s testator when the act in question was done. Such proofs, we think, were not furnished.

It is true it was shown that Mr. Paine was ninety-two years of age ; that he had many physical infirmities, due to his advanced years, with the consequent impairment of the mental faculties; but witnesses of equal credibility differ widely as to the extent of this impairment. Even much of the testimony of plaintiff’s witnesses is susceptible of conflicting inferences upon this point. This court cannot discuss or weigh the evidence. We can only look into it for the purpose of determining whether it was sufficient to pi resent an issue of fact for the decision of the trial court. We have done so, and are satisfied that enough was shown to support the conclusion that the grantor had such mental capacity at the time of the execution of the deed that he could collect in his mind without prompting all the elements of the transaction and retain them for a sufficient length of time to perceive their obvious relations to each other, and to form a rational judgment in regard to them.

We have carefully examined the exceptions taken to the ex-elusion and admission of evidence offered upon the trial,, and are of the opinion that no such errors were committed as to require a new trial of the action. Much of the matter excluded related to the conclusions or opinions of non-expert witnesses, and was clearly inadmissible. The question put to the witness Cornish was not brought within the rule laid down by this court in Holcomb v. Holcomb, 95 N. Y., 316, and kindred cases. The witness had testified to some extended conversations with Mr. Paine, comprising negotiations for a business transaction of an important character, and had stated, with some detail, what he had observed, what had been said and what Mr. Paine-did; and he was then asked : “ From his acts that you saw there in your conversation with him, what opinion, if any, did you form as to his mind ?”

Objection was made and sustained, when this question was asked: “Taking into consideration these facts that you have stated here in your testimony to-day, which you learned from your contact with Mr. Paine and from his conversations with you, what impression did he give you as to whether or not ho was rational or irrational?” An objection to this question was also sustained. The court then put the following question: “ From the conversations you had with him and from his actions, his acts in your presence, were those conversations or those acts those of a rational or an irrational man ? ” which the witness answered in his own way.

The trial court applied the correct rule in regard to this class of evidence. The witness was a layman and could not properly give an opinion as to the mental capacity of the grantor, or as to whether he was rational or irrational, even when such opinion might be based upon specific acts and conversations and his personal observations. He could state the acts and conversations of which he had personal knowledge, and then be permitted to say whether in his judgment such acts and conversations were rational •or irrational, or were those of a rational or irrational person. This is the extent to which any of the cases have gone and the tendency is to limit rather than enlarge the rule; because even in its present form it is an infringement of the fundamental law of ■evidence that a witness, who is not an expert, shall not be permitted to testify to his conclusions or opinions as to an issuable .fact.

There was no reviewable error in the refusal of the court to postpone the trial of the issue between the plaintiff and the defendant Aldrich until other defendants had been served and their ■time to plead had expired. It was a matter relating to the conduct of the action which rested entirely in the discretion of the <court to which the application was made. Sufficient time had ■elapsed since the comencement of the action to enable the plaintiff, with the exercise of due diligence, to procure service upon all ■the necessary parties.

The defendant Aldrich had not been made a party, and she was compelled for her own protection to apply to be brought in. The existence of thejz's pendens seriously obstructed her disposition of the property. She had title to only a part of the premises involved in the action, and, according to the allegations of the comvplaint was the only person interested in the event thereof who stood in the attitude of an innocent purchaser. The judgment •does not conclude the plaintiff as to any other party, or as to the residue of the property, nor is the Us pendens cancelled or discharged, except as to the defendant Aldrich, and, therefore, no substantial right of the plaintiff was invaded by compelling him to go to trial at that time.

The order and judgment appealed from must be affirmed, with costs.

All concur, except Gray, J., not voting.


author: Earl, Ch. J.

text:
    Philip D. Wheatland, Resp’t, v. S. Morris Pryor and Charles W. Drake, App’lts.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Appeal—Reference.
    In an action by a stock broker against a firm for an amount claimed to "be due for securities purchased and sold for it, moneys laid out by plaintiff, •and moneys received by defendants for liis use, defendants contended that although the drafts were in form those of the firm, they were really made in order to enable the plaintiff to raise money. The evidence was conflicting, and the findings of the referee thereon being affirmed by the general term, are conclusive upon this court.
    3. Bills and Notes—Notice.
    On May 28 defendant P. drew a draft on plaintiff for $1,700, which the latter paid as a loan to him individually. On the 11th of .Tune plaintiff drew on P. individually a draft for the same amoun', payable to himself, endorsed, and took it to the T. Trust Go., which endorsed and sent it to the Nat. Bank of the Republic, and that bank on presenting it for pavment received a check signed by P. & On., made payable to R., and by R. endorsed to said bank. Held, that the knowledge acquired by the "Bank ■of the Republic when it repeived the firm check in payment of the draft upon P. individually could not be imputed to plaintiff.

      Appeal from j udgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff entered upon report of referee.

      George 0. Molt, for app’lts; Michael M. Cardozo, for resp’t.

       Affirming 38 St. Rep., 947.

   Earl, Ch. J.

Between October, 1887, and July, 1889, the plaintiff was a broker in Boston and the defendants were a firm of brokers doing business in the city of New York, and during that time the plaintiff and defendants had numerous and extensive dealings with each other. The plaintiff drew numerous-drafts upon the defendants and they drew numerous drafts upon him. The firm of the defendants was dissolved in the latter part of June, 1889, and the business dealings between the parties then ceased. The plaintiff thereafter, in July, commenced this-action, claiming that upon the dealings between them there was .the sum of $11,000 due to him from the defendants. They in their answer denied that they were indebted to him, but on the contrary claimed that there was a small balance due to them. The action being at issue was referred, and the referee found the sum of $9,537.63,. besides interest, due the plaintiff.

There is no dispute that the sum found by the referee in favor of the plaintiff was due to him, either from the defendants as a firm, or from the defendant Pryor individually. Upon the trial the plaintiff claimed, and gave evidence tending to show, that that sum was due to him from the firm. The defendants on the Contrary, claimed, and gave evidence tending to show, that it was due from Pryor individually. The indebtedness, found by the-referee was created by drafts drawn by the defendants in their firm name upon him and paid by him. It was the contention of the-defendants upon the trial that, although these drafts were in form the' drafts of the firm, they were caused to be drawn by the defendant Pryor in pursuance of an arrangement between him and the plaintiff to effect a loan by the plaintiff to him individually, and that the money obtained upon the drafts was a loan to him individually. The evidence as to these drafts, and the purpose-for which they were drawn was conflicting, and upon the conflicting evidence the referee found that the money was advanced and loaned by means of these drafts to the firm and that the firm became indebted to him.- The findings of the referee having been affirmed at the general term are conclusive upon us.

The counsel for the defendants contends, however, that the-general term did not exercise the jurisdiction which it undoubtedly possessed to review the findings of the referee upon the-evidence, and that it assumed that it was concluded by those-findings, and he reaches this conclusion by reading the opinion pronounced at the general term. We harm frequently said that we cannot look at the opinion read in the court below for the purpose of determining whether it exercised its jurisdiction or not. - To determine that question, we always look at its order or judgment. Looking there, we find nothing upon the subject.

Óur attention is called to several exceptions taken during the progress of the trial in the reception and exclusion of evidence. We have given them careful consideration and do not believe that any of them point out error prejudicial to the defendants.

There is one item, however, in controversy between the parties to which we will give particular attention. On the 28th day of May, 1889, the defendant Pryor in his individual name drew a ■draft upon the plaintiff for $1,700, which the plaintiff paid as a loan to him individually. On the 11th day of J*une thereafter, for the purpose of procuring repayment of the loan thus made, the plaintiff drew upon Pryor individually a draft for $1,700, payable on demand to the order of himself. That draft he endorsed and took to the International Trust Company of Boston and there deposited it to his. credit, and the trust company ■endorsed it and sent it for deposit to its credit to the National Bank of the Republic of New York, and the Bank of the Republic on the 12th day of June presented the draft for payment at the. ■defendants’ office, where it was made payable, and there it received a check in the following form:

“ New York, June 12, 1889.
“ Seaboard National Bank pay to the order of George R. Rum-rill, or ourselves, seventeen hundred dollars.
“ $1,700. S. Morris Pryor k Co.”

Endorsed upon the check were these words: Pay to the order of the Bank of the Republic. George B. Rumrill.”

The Bank of the Republic then surrendered the draft drawn by the plaintiff and subsequently obtained payment of the check. The claim of the defendants is that the Bank of the Republic, in presenting the draft and receiving payment thereof, acted as the -agent of the plaintiff ; that when it took the firm check and drew the money thereon it had notice that, the firm property was appropriated to pay the individual debt of Pryor; that that notice was imputable to the plaintiff, and, therefore, that the funds of the firm were appropriated to the knowledge of the plaintiff to pay the individual debt of Pryor to himself; that he thus became obligated to refund that money to the firm, and that the defendants ¡should, therefore, have had credit for that amount. To sustain his contention the defendant’s counsel cites the following among other authorities: Dob v. Halsey, 16 Johns., 38; Elliott v. Dudley, 19 Barb., 329; Atlantic State Bank v. Savery, 82 N. Y., 299; Union Bank v. Underhill, 102 N. Y., 336; 2 St. Rep., 48; Rogers v. Batchelor, 12 Peters, 229; Moriarty v. Bailey, 46 Conn., 592; Kendal v. Wood, L. R., 6 Ex., 243. We do not think any of these authorities are applicable to this case. As we understand the evidence the Boston bank took this draft from the plaintiff and gave him credit therefor in its account with him, and thus it became the owner of the draft, and thereafter it dealt with it as the owner thereof upon its own account. The plaintiff received the amount of the draft drawn by himself upon Pryor, individually, not from the firm, but from the trust company to which he delivered it, and thus he came under no obligation whatever to the defendants on account of the transaction. For this conclusion, if any authority were needed, the case of Moriarty v. Bailey, supra, is precisely in point. In that case there was the firm of Moriarty & Bailey, and Moriarty made his individual note payable to A. or order, and A. had it discounted upon his endorsement at a bank and Moriarty paid it to the bank when due out of partnership funds; and it was held that A. was not chargeable with the-partnership funds thus used, although he was an endorser of the" note and interested in the payment, the money having been received by the bank and not by him. Here after the plaintiff transferred this draft to the Boston Trust Co., he could be made-liable thereon only by such proceedings as would charge him as a. drawer and endorser thereof.

But, further, if we assume that the plaintiff employed the Boston Trust Company to collect the draft on Pryor, and that the Trust Company thus became his agent for that purpose, then the Bank of the Republic became the agent of the Trust Company and not of the plaintiff. Allen v. Merchants’ Bank of New York, 22 Wend., 215; Commercial Bank of Penn. v. Union Bank of New York, 11 N. Y., 203; Ayrault v. Pacific Bank, 47 id., 570. The Bank of the Republic did not become responsible to the-plaintiff, and the plaintiff could not in any way control or direct-its conduct in the discharge of the duty which it had assumed to the Trust Company. Therefore, if upon the facts assumed it knew that the draft drawn by Pryor individually was paid with-firm funds, while that knowledge could be attributed to its principal, the Trust Company, it could not be attributed to the plaintiff, who was not its principal. The reason for the rule which imputes knowledge of an agent to his principal is thus stated in Story on Agency, § 100: “ Upon general principles of public-policy it is presumed that the agent has communicated such facts-to the principal, and if he has not, still the principal having entrusted the agent with the particular business, the other party has-a right to deem his knowledge and acts obligatory upon the principal, otherwise the neglect of the agent, whether designed or undesigned, might operate most injuriously to the rights of such party.” How, within the reason of this rule, could the constructive or imputed notice of the Boston Trust Company, it having no-actual notice, be imputed to the plaintiff ? There can be no presumption that it communicated to the plaintiff knowledge which it did not have; and in omitting to communicate to the plaintiff knowledge which it did not have it was guilty of no wrong and no neglect of duty. The rule of constructive notice to a princi-pal can have no operation whatever in a case where the agent himself has not received actual notice. There are undoubtedly cases where an agent is authorized by his principal to em: ploy sub-agents, and where the nature of the business entrusted’ to the agent is such that it must be assumed he was authorized to employ sub-agents for the principal, and in such cases it is frequently true that both the agents and the sub-agents are the representatives of the principal, and the knowledge which either oí them acquired in the business may be imputed to the principal. But here it is settled upon abundant authority that the agent employed by the Boston Trust Company to collect this draft had no relation whatever to the plaintiff, and owed a duty, not to the plaintiff, but solely to the Trust Company. So in any view of this case the knowledge acquired by the Bank of the Republic when it received the firm check in payment of the draft upon Pryor individually cannot be imputed to the plaintiff. The plaintiff in the end, in some form, received his money from the Boston 'Trust Company in good faith, without notice, and he cannot be made to account for it to the defendants. Stephens v. Board of Education, 79 N. Y., 183.

The judgment should be affirmed, with costs.

All concur.


text:
    Albert M. Crouter, App’lt, v. Annie E. Crouter et al., App’lts, and Ascher Weinstein et al., Resp’ts.

      (Court of Appeals,

      Filed April 12, 1892.)

      t. Partition—Guardian ad litem—Jurisdiction.
    Where, in an action of partition, an order appointing a guardian ad litem for an infant defendant is entered before the expiration of six weeks after personal service without the state, it is a nullity and no jurisdiction is acquired of the person of the infant.
    2. Same—Purchaser—Merchantable title.
    While the judgment is not absolutely void, as the service upon the infants was complete December 12, 1890, and the judgment of partition and sale was not entered until September 3,1891, yet the purchaser at a partition sale has a right to expect and demand a marketable title, and one free from a reasonable doubt as to its validity, and will not be compelled to take property sold in an action where such defect exists, and it is the duty of the plaintiff to apply for the necessary relief by way of an amendment of the proceedings before he can be heard upon a motion to compel the purchaser to complete his purchase.
    Appeal from judgment of the supreme court, general term, first •department, reversing ofder directing purchasers to complete a purchase made at a partition sale.

      G. N. Bovee, Jr., and Wm. H. Arnoux, for app’lt; Henry A. Foster, for resp’ts.

       Affirming 43 St. Rep., 438.

   Maynard, J.

The purchaser upon the partition sale in this .action objects to the title offered upon three grounds. 1st. That the affidavit upon which the order was granted for the service of the summons by publication upon non-resident defendants was insufficient to confer jurisdiction on the j ustice granting it. 2d. That the bonds of the guardians ad litem do not conform to the requirements of § 1536 of the Code; and,'3d. That the order appointing a guardian for the non-resident infant defendants was a nullity, because made before the expiration of the period when the substituted service of the summons upon them became complete.

The first and second objections are, we think, not tenable. While the affidavit upon which the application for the order of publication was made is not as full as might be desired, it states sufficient facts to uphold the finding of the judge to whom it was presented, that the plaintiff would be unable, with due diligence, to make personal service within the state. Kennedy v. N. Y. L. Ins. & T. Co., 101 N. Y., 487.

The bonds are in form a substantial compliance with § 1536. They are executed to the people, and, while a separate bond for each infant might be the better practice, there is nothing in the-statute imperatively requiring it.

With reference to the third objection we have reached the conclusion that the court had no authority to appoint a guardian ad' litem until it had acquired jurisdiction of the person of the infant defendants. Such seems to be the plain inference from the provisions of §§ 441 and 471 of the Code when read together. The latter section provides that where the infant is over fourteen years-of age he may apply for the appointment of a guardian, in a case-like the present, within twenty days after the service of the summons is complete, as prescribed in § 441; which does not occur where personal service out of the state is made, pursuant to an order for publication, until the expiration of a time equal to that, prescribed for publication, being six full weeks from the time of service.

The infant defendants therefore could not make an application for the appointment of a guardian until forty-two days had. elapsed from October 31, 1890, when personal service was made without the state. Before that time the court had acquired and could acquire no jurisdiction of them for such a purpose and they were not competent to waive, by any affirmative act, the restrictive provisions of this act.

In Ingersoll v. Mangam, 84 N. Y., 622, it was held by this: court that a guardian ad litem can only be regularly appointed for an infant defendant after service of the summons personally or by the substituted mode as prescribed in certain specified cases, and that this was clearly implied by the language of § 471. Referring to the provisions of the section the court say (p. 625) The-application in both cases is to be made after the personal or substituted service of the summons has been made. The order forth e appointment of the guardian ad litem in this case authorized the guardian appointed to appear and defend the action in behalf of the infant; but the difficulty is that the order was unauthorized, because the court had no jurisdiction over the infant or to-appoint a guardian ad litem, when the order was made, by reason of the fact' that the infant had not been brought in and the-action had not been commenced against him by the service of the summons, which is the statutory mode by which the court acquires jurisdiction of the person or property of an infant. The-appearance by the guardian was not, therefore, an appearance by the infant and was not within § 424. The infant was incapable of" consenting to such appearance, and the guardian could not consent to the exercise of jurisdiction over him by an appearance-not preceded by the service of process.” The provisions of the Revised Statutes, which authorized proceedings for the appointment of a guardian ad litem of an infant party in a partition suit before service of process upon him, were all repealed upon the-adoption of the second part of the Code of Civil Procedure, by chapter 245 of the Laws of 1880, and the Code now regulates and controls the practice in such cases. A uniform method of procedure was established for the appointment of guardians for infant defendants in all actions and the decisions under previous-laws upon this point have no application to the question here involved. The order appointing the guardian ad litem was, therefore, a nullity and the proceedings in the action must be viewed in the same light as if judgment had been entered without the appointment or appearance of a guardian for the infant non-resident, defendants.

But the judgment is not absolutely void. The service upon the infants was complete on December 12, 1890, and the judgment of partition and salé was not entered until September 3,. 1891. The court then had jurisdiction of the subject matter and of the persons of all the defendants, but the infants not being-competent to plead in their own behalf, and no valid appointment, of a guardian to represent them having been made, they had not. had their full day in court when the judgment was entered, and its entry was premature. It is voidable, however, only at their election and upon their application when seasonably made. McMurray v. McMurray, 66 N. Y., 175; Feitner v. Hoeger, 14 Daly, 470; 15 St. Rep., 377. The defect is also curable if the proper proceedings are taken for that purpose. But the burden of causing the necessary steps to be taken to conclude the defendants in this action cannot be cast upon the purchaser at the sale. He has a right to expect and demand a marketable title and one free-from a reasonable doubt as to its validity. Jordan v. Poillon, 77 N. Y., 518; Fleming v. Burnham, 100 id., 1; Miller v. Wright, 109 id., 194; 14 St. Rep., 811.

The plaintiff is bound to see that the action has been brought and prosecuted in accordance with the provisions of law regulating the procedure in such cases, and if an essential act has been omitted or unseasonably taken, which may render the judgment ineffectual as to any of the parties in interest, it is his duty to-apply for the necessary relief by way of an amendment of the proceedings before he can be heard upon a motion to compel the-purchaser to complete his purchase.

The order appealed from must, therefore, be affirmed, with, costs.

All concur.