text:
    William R. Tabb, App’lt, v. United Electrical Light and Power Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Appeal—Finding.
    The finding of the trial justice, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment in favor of defendant, rendered by the justice without a jury.

      Charles R. Ingraham, for app’lt; Cravath & Houston, for resp’t.
   Giegerich, J.

The action was brought to recover the sum of $100 for the publication of an advertisement in pursuance of an agreement made between the Lawrence Publishing Company "plaintiff’s assignor, and the defendant, of which the following is a copy:

“$100. January 4th, 1894.
“To Hotel Association of the City of New York: Please in.* sert our advertisement in the Memorial Volume of the Hotel Association of the City of New York, commemorating their Fifteenth Anniversary and Banquet at Delmonico’s, January, 1894,. to occupy the space of one page, for which we agree to pay one hundred dollars, on presentation of a copy of this publication.
“Accepted. Name: United Electric Light & Power Co.,
“Date-. Wm. H. Browne, GenTMgr.
“Address: 15 Beekman St., Vanderbilt Bldg.”

The circumstances which led to the execution of ’this contract are involved in dispute, and there were presented to the trial justice for his determination certain questions of fact in relation thereto; arising out of the following propositions, viz: In the first place, the plaintiff claims that the same inured to the benefit of his assignor by reason of an agreement alleged to have been made between said hotel association and plaintiff’s assignor, whereby the • latter agreed to publish said memorial volume, and as compensa-' tian for such work it (plaintiff’s assignor) was to receive all moneys paid on contracts for the insertion of advertisements in such volume ; and, secondly, the defendant charges that the above contract was procured by false and fraudulent representations, made by an agent of the plaintiff’s assignor to the defendant’s general manager. The plaintiff’s evidence upon the first-mentioned subject consists chiefly of conversations which plaintiff testified he had on behalf of his assignor with certain members of the executive committee of the hotel association individually, “not as a body,” the substance-of which was that théy thought favorably of the witness' plan to publish the proceedings at the banquet. And in this connection he further testified : “Q. Who was to pay for it? A. 'That was more between Mr. Fanning and Mr. Merri field. He understood that the advertising would pay for it.” The plaintiff’s testimony as to these matters is contradicted by that of Mr. Simeon Ford,, who was a member of the executive committee of the associationi at the time of the transaction, and who subsequently became the secretary of the association, and Mr. E. L. Meirifield, the president of the association, both of whom testified that neither the executive committee nor the association made any arrangement witbr plaintiff’s assignor for the publication of the memorial volurne. Plaintiff lays great stress upon the fact that Mr. William J. Fanning, the secretary of the association, gave to the representative of the plaintiff’s assignor a paper writing, bearing date October 6, 1893, that: •

“The Lawrence Publishing Compány is authorized to prepare and publish a report of the fifteenth annual banquet of the above association, to be held in January, 1894, and we cheerfully commend said company to all persons interested in this subject as-the only persons authorized by said association to report the proceedings of said banquet, and secure advertisements for the same.”

And also upon the fact that Mr. Merrifield, the president of the-association, gave to the representative of plaintiff's assignor a paper writing, of which the following is a copy :

“Continental Hotel. E. L. Merrifield, Proprietor.
“Wednesday, 11-9,1893.
“The bearer is authorized to solicit advertisements for the Memorial Volume of the Hotel Association of New York City. Any favors or courtesies shown him will be duly appreciated.
E. L. Merrifield.

These letters, however, are of no possible advantage to the plaintiff, as neither of the officers in question had, under the constitution and by-laws of the association, any power or authority to bind the association; that power being alone vested in the executive committee, consisting of five members, which, according to the constitution, has “general supervision of the affairs and property of the association.” Moreover, Mr. Merrifield’s testimony shows that the association had not entered into any arrangement with the plaintiff’s assignor, and that he acted individually, and not for the association, when he signed the letter. He testified, in-part :

“They called to see me in regard to getting up this work, and wanted the sanction of the hotel association. I told them I had no authority to give any sanction, that they would have to see .the executive committee, and, if the executive committee approved of it, that would be a different thing ; and I thought it was a good thing, and something that would please the hotel men, but I gave no authority at all in the matter. * * * They came to me, and wanted a letter in regard to getting advertisements. I said 1 would give a letter, which might aid them in getting advertisements, which I did, and signed it with my own name individually. I did not mix the hotel people with it, as I had" no authority to do so.”

After careful consideration of all the evidence upon this branch of the case, we are satisfied that the trial justice’s determination of the facts in regard thereto was amply justified. The evidence in regard to the second subject amply sustains the charge that the-■contract signed by the defendant was procured by fraud. William H. Browne, the general manager of the defendant, testified that he was induced to sign the contract upon the representation made by a representative of the plaintiff’s assignor that he represented the Hotel Men’s Association, and only them, and that the money was to go to them, to be used to pay their expenses in connection with the banquet. He further testified :

“He presented a blank form of order. I said, ‘In order to make this without question, I propose to write on the order that it is for the Hotel Men’s Association.’ He said : T haven’t any objection. It is for them and them only.' I wrote the order, filled it out, and wrote, ‘To the Hotel Association of the City of New York.’ I gave it to him.' He distinctly said no other party was represented.

He also testified that subsequently, upon hearing that the Hotel Men’s Association had nothing to do with the matter, he refused to have anything to do with it. It is significant that the person who is named as having made the alleged fraudulent representations was not called to the witness stand to deny them. We think that the decision of the trial justice as to the facts was in all respects correct, and we see no reason for disturbing it, in the absence of the elements which are requisite to review such determination, Lynes v. Hickey, 4 Mis. Rep. 522 ; 54 St. Rep. 120 ; Weiss v. Strauss, 39 St. Rep. 78, and that, therefore, the judgment appealed from should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Pasquale Capronigri, App’lt, v. Pasquale Altieri et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Appeal—Interlocutory judgment
    Ho appeal lies to the common pleas from an interlocutory judgment of the general term of the city court.
    Appeal from a judgment of the'city court affirming an interlocutory order and judgment, overruling a demurrer to certain defenses and counterclaims alleged in the answer.

      Chas. W. Dayton, for app’lt; Burr & De Lacy, for resp’ts.
   Bischoff, J.

The record does not disclose the jurisdiction o’f this court to determine the questions presented upon this attempted appeal. The judgment of affirmance of the court below does not award a final recovery. It is interlocutory, also, and from it, therefore, no appeal lies to this court. Fuller v. Tuska, 43 St. Rep. 523. The appeal should be dismissed, with costs.

All concur.


text:
    Ruth A. Wallace, Resp’t, v. Ferrel C. Dinniny, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Principal and agent—Authority.
    An agent to rent premises and collect rent, at least where the lease is for a term of more than one year and under seal, has no implied power to consent to the substitution of a new tenant.

      3. Lease—Surrender.
    Where there is an express covenant to pay rent, no surrender of the lease is to be inferred from the mere fact of occupancy by an assignee of the lessee and the acceptance of rent from him by the lessor.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      John J. Adams, for app’lt; George W. McAdam, for resp’t.
   Bischoff, J.

This action was brought to recover rent due under a written lease for the term of five years. The answer set up an assignment of the lease to the Thompson Hydraulic Opmpany by defendant, and alleged that such assignee had been accepted as tenant by the plaintiff. Upon the trial, judgment was directed in favor of the plaintiff for the amount claimed. The evidence showed that the lease in suit was executed by the plaintiff, but that the negotiations leading to the leasing were had through David Wallace, her husband, as her agent, and that it was with this individual alone that the conversations and transactions whereby a subsequent surrender was sought to be shown took place. It appears that this agent had authority to rent the premises, but not to execute a lease ; to receive the rent, and give receipts in the name of the plaintiff; to endorse checks so received; and also to allow deduction from the rent for the expense of minor repairs made by a tenant.

It is claimed that there was evidence sufficient to call for a determination by the jury of the question whether or not Mr. Wallace had actually accepted a surrender of the lease; whether or not the plaintiff had agreed to the substitution of the new tenants, by accepting rent from them through her duly-authorized agent; and whether Mr. Wallace’s agency was of an apparent scope sufficient to constitute him a general agent. From an authority to make a contract, no implication is to arise of an authority to cancel and surrender it. Stillwell v. Mutual Life Insurance Co., 72 N. Y. 392 ; and an agent to rent premises and collect rent, at least where the lease made is for a term of more, than one year, and under seal,' has no implied power to consent to the substitution of a new tenant. Wilson v. Lester, 64 Barb. 431. When there is an express covenant to pay rent, no surrender of the lease is to be inferred from the mere fact of occupancy by an assignee of the lessee, and the acceptance of rent from the assignee by the lessor. ' Ranger v. Bacon, 3 Misc. Rep. 95; 51 St. Rep. 604. It must be proved that the lessor and lessee mutually agreed to a surrender of the term. Bedford, v. Terhune, 30 N. Y. 464. The facts in evidence do not, we think, justify an inference that Mr. Wallace’s apparent authority was that of a general agent. The scope of his acts with regard to the defendant was confined to the making of leases and the acceptance of rent, and there was nothing to raise an implication that he had the power to enter into an agreement for the surrender of the lease which could bind his principal. Moreover, assuming that he had such power, nothing in the evidence would support a finding that he agreed to a surrender, either expressly, or by implication, from his acts. True, he acquiesced in the assignment, and accepted the rent received from the assignees (Ranger v. Bacon, supra); but this, of itself, did not operate as a release of the-lessee’s obligation under his covenants, and the fact that he suggested to the assignees that alease be made directly with them, to-which they refused assent, has rather an effect in negation of the assumption that the lessee’s covenants under the lease had been surrendered. It appears, then, that upon the questions which the appellant asked to have submitted to the jury, viz., whether the original lease was surrendered, and whether a new lease was not-made, and new tenants accepted, there was nothing in the evidence which could support a favorable finding by the jury, and the direction of a verdict was proper.

We have examined the exceptions taken to rulings upon evidence, and find no prejudice to the appellant.

Judgment affirmed, with costs.

All concur.


author: Bookstaver, J.

text:
    Louis Weiss, Resp’t, v. Edwin F. Ashman, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Supplementary proceedinss—Dismissal.
    The dismissal of proceedings supplementary to execution and refusal to revive them constitute no bar to the granting of a subsequent order therefor.
    3. 'Same—Second examination.
    Where the debtor has been fully examined under one order, no subsequent-examination should be allowed, unless the moving affidavits show that he has subsequently acquired property, or an alias execution has been issued and returned nulla bona, or that new facts have come to the knowledge of the judgment creditor.
    Appeal from an order denying a motion to vacate a previous order, requiring the defendant to appear and be examined in supplementary proceedings.

      W. T. Birdsall, for app’lt; Gilbert R. Hawes, for resp’t.
   Bookstaver, J.

In October, 1893, the plaintiff instituted supplementary proceedings against the defendant, who was from time to time examined under said order, and the proceedings were adjourned until December 5th of the same year, when they were dismissed by reason of plaintiff’s default. Notwithstanding this dismissal, the defendant, at plaintiff’s request, attended in court on the 19th January, 1894, and signed the examination, but did not verify it, the court being engaged at the time ; whereupon defendant claims the plaintiff abandoned the proceedings. Thereafter plaintiff obtained an order to show cause why the defendant should not verify the testimony given and signed by him, and for other relief. Afterwards, on a presentation of all the facts, this motion was denied, and thereafter, and on the same day, the judge who denied the order granted a new order for the examination of the defendant in supplementary proceedings. The affidavit upon which it was granted stated, with more or less accuracy, the previous proceedings in the matter. When this order was served upon him, the defendant made a motion to vacate it, which was denied, and from the order denying the motion, this appeal is taken. Defendant contends that the dismissal of the first order, and the subsequent refusal of the court to revive the proceedings, were res judicata, and that plaintiff cannot a second time seek to enforce the same remedy on the same state of facts. But the authorities cited by him do not sustain this contention. It cannot be argued that a dismissal of an order of this kind would have any greater force than the dismissal of a complaint in an action not on the merits, and a judgment of dismissal is not final and conclusive, in the sense that a plea of res judicata may be founded on it. 21 Am. & Eng. Enc. Law, 265, and cases cited. The refusal of the judge who heard the motion to revive, added nothing to the force of the dismissal. It was doubtless granted on the theory that, where the plaintiff has made default, the injunction and all proceedings under the order fall and cannot be revived. That he did not regard it as res judicata is clear, because he immediately and on the same day, granted the second order in supplementary proceedings.

rBut defendant further contends that section 2435 of the Code restricts the plaintiff to a single examination of the judgment debtor. There is nothing in the language of the section itself which supports this contention. All that can be fairly drawn from it is that but one order can be instituted at a time. The fact that 10 years is the limit fixed by the section within which such proceedings can be commenced would seem to preclude the idea of but a single examination during all that time, and so the courts have uniformly held. Book Concern & Co. v. Hudson, 1 How. Pr. (N. S.) 517 ; Shults v. Andrews, 54 How. Pr. 380; Hamilton v. Morange, 2 N. Y. Monthly Law Bul. 58 ; Carter v. Clarke, 7 Rob. 490; Jurgenson v. Hamilton, 5 Abb. N. C. 149; Rallings v. Pitman, 49 Super. 307; Goodall v. Demarest, 2 Hilt 534. But they have also held that where under one order the debtor has-been fully examined, no subsequent examination should be allowed, unless the moving affidavits show that he has subsequently acquired property, or an alias execution has been issued and returned nulla bona, or that .new facts have come to the knowledge of the applicant. Irwin v. Chambers, 40 Super. 432. As it does not appear from the papers in this case that any new property of the debtor has been discovered, but it does appear that his former examination was completed and signed by him, but not verified, we think that the order denying the motion to vacate the second order should be modified by providing that, if the debtor will appear before one of the judges of this court and duly make oath to his examination in the former proeedings, the motion to vacate the order for the second examination should be granted; otherwise denied.

Ho costs of this appeal to either party.

All concur.


text:
    Fritz Jagau, Resp’t, v. Friederika Goetz, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Appeal—Hew trial.
    The mere denial of a motion for a new trial, made on the minutes, presents no question of fact for review at general term of the city court or by the common pleas.
    2. Contract—Statute of frauds.
    A contract of employment, which specifies no time of service, is not within the statute of frauds.
    3. Limitation—Infant.
    The statutory period of limitation applicable to a cause of action in favor of an infant, which does not expire within one year after he attains his majority, is not extended by reason of his infancy.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      De Lancey Nicoll, for app’lt; Henry F. Lippold, for resp’t.
   Bookstaver, J.

The complaint alleged the performance of services by the plaintiff for the defendant, and at her request, for the agreed sum of $15 for each month, in addition to his bohrd and lodging and clothing, to be paid to him when he left defendant’d service; and that the services continued from November 30, 1882, until May 30, 1886, when the plaintiff left defendant’s employment, and demanded judgment for $645, less the sum of $55, admitted to have been paid on account. The answer consisted of a general denial and the plea of the statute of limitations. On the trial the complaint was amended so as to allege that the money became due and payable to the plaintiff when he became of age, and to claim interest from that date. The answer was amended by setting up the statute of frauds, in that the alleged contract was not one which, by its terms, could be performed within one year, and was not in writing. Upon the trial, plaintiff’s testimony tended to prove that he entered' the employment of defendant under a contract or agreement to be paid $15 monthly, and that he continued in that employment until May 30, 1886, when he was discharged. The defendant gave testimony tending to disprove the making of any agreement for the payment of wages. It was uncontradicted that the plaintiff was the nephew of defendant’s husband, and had been living with them ever since he came to this country when a mere lad. The defendant moved to dismiss the complaint, both at the close of plaintiff’s case and when the evidence was all in, on the following grounds: (1) Tnat the action was brought upon a contract which was not to be performed within one year from its making, and was void under the statute of frauds, not being in writing; (2) that it affirmatively appeared that more than six years had elapsed since the plaintiff’s cause of action accrued, and that it was barred by the statute of limitations; (3) that so much of plaintiff’s claim as accrued before April 28, 1885, was barred by said statute; and when plaintiff rested, also on the ground that the plaintiff, when not more than 15 or 16 years of age, was allowed to work in a place where spirituous liquors were sold, and that this was a misdemeanor under our statute. This ground, however, was not renewed at the close of the whole case, nor is the refusal to dismiss on this ground urged before us as error. The court denied each and all of these motions, and the defendant duly excepted. Thereupon the case was submitted to the jury, which found a verdict in favor of the plaintiff, on which judgment was entered.

The case, as presented to us, does not contain any certificate or statement “that it contained all the evidence in the case,” and, no order having been entered denying defendant's motion for a new trial on the minutes, this court will not review the sufficiency of the evidence, and is confined entirely to the exceptions appearing on the record. Porter v. Smith, 107 N. Y. 531; 12 St. Rep. 479; Davey v. Lohrmann, 48 St. Rep. 716 ; Arnstein v. Haulenbeek, 34 St. Rep. 297, and cases cited. The mere d,enial of a motion made on the minutes presents no question of fact for review at general term or by this court. Maas v. Ellis, 12 Civ. Pro. R. 323. An order must be entered on such motion, and form a part of the papers on appeal. Code, § 1355 ; Willis v. Weaver, 58 N. Y. 681: Boos v. World M. L. Insurance Co., 64 N. Y. 236; Levy v. Coogan, 30 St. Rep. 553 ; Jones v. Sparks, 1 St. Rep. 476 ; Dixon v. Dixon, 12 St. Rep. 505 ; Wagner v. Jones, 7 Daly, 375. The jury having found in favor of the plaintiff, we must assume that the contract testified to by the plaintiff was established, and the first question to be determined is whether it was void under the statute of frauds, not being in writing. The clearest, as well as the principal, evidence of the contract was given by the plaintiff, himself who testified :

“She [meaning the defendant] called, me out from behind the bar, and my uncle was there, and was at the lower end of the bar, and she says to her husband, ‘Fritz [the husband meaning], we will bring $15 every month to the bank for the boy for his services, so that, when he is old enough,—meaning to be of age,— then he will have money enough to start business for himself.” ’

This certainly does not show any hiring for a specific period. From this testimony no inference could be drawn other than that the plaintiff was to serve by the month, and his wages to be by the month, and that they were to be deposited in bank for him. Yeither of the parties had in contemplation a hiring until the plaintiff became of age. Certainly the defendant could not have had such an intention, because she discharged the plaintiff long before he became of age. We think, from the agreement as thus testified to, the presumption would be that there was no express agreement as to the time of service, that it was a general hiring, and that the period of service intended by the 'parties was to be paid for by the month. Moore v. Fox, 10 Johns. 244; Davis v. Gorton, 16 N. Y. 255 ; In re Gardner, 103 N. Y. 533 ; 4 St. Rep. 439; Smith v. Velie, 60 N. Y. 106; Wilson v. Taylor, 8 Daly, 253. The statement by defendant, “so that, when he is old enough,—meaning to be of age,Athen he will have money enough to start in business,” was not a part of the terms of the contract to pay, but merely a part of the general understanding that the plaintiff was to be compensated, and was more in the nature of an expression of hope or purpose on the part of the defendant, and not a definite statement of the time when defendant would pay the money to the plaintiff, or else an expression of a precautionary character in his behalf, in view of their intention to deposit the money for him, instead of paying it to him, in which event he might have spent it. The plaintiff being in defendant’s family as a portion of it, the promise or understanding to pay him wages was necessary, as, without some understanding between parties bearing such relation, no agreement to pay for the services rendered would be implied, and no action would lie. Robinson v. Raynor, 28 N. Y. 496; Williams v. Hutchinson, 8 N. Y. 812. There being, then, no specific or definite time agreed upon as to when the term of service would terminate, nor how long it should continue, and therefore might have continued until either party saw fit to discontinue it, there was no agreement which, “ by its terms,” could not be performed within a year; and the statute does not apply to an agreement which may or may not be performed within one year, and it makes no difference whether the expectation of the parties or the probabilities were that it might last until plaintiff became of age. Trustees of First Baptist Church v. Brooklyn Fire Ins. Co., 19 N. Y. 807 ; Kent v. Kent, 62 N. Y. 564: Warren Chemical & Manufacturing Co. v. Holbrook, 118 N. Y. 586; McKinney v. McCloskey, 8 Daly, 368; Blake v. Voigt, 134 N. Y. 74; 45 St. Rep. 606; Van Schoyck v. Backus, 9 Hun, 68. Moreover, the practical construction of the parties to such an agreement is entitled to much weight in arriving at its real terms; Chicago v. Sheldon, 9 Wall, 50, 54; Topliff v. Topliff, 122 U. S. 121. In this case payments were made to the plaintiff by the defendant from time to time, and deposited in bank in his name, and to his own credit; thus showing that the parties themselves did not construe the contract so as to withhold payments until the plaintiff became of age. We therefore conclude that the agreement as found by the jury was not within the statute of frauds, and could be enforced.

But, if not obnoxious to the statute of frauds, defendant contends that plaintiff’s claim is barred by the statute of limitations. In considering the statute of frauds, we concluded that by the terms of the agreement plaintiff’s services were to be paid for monthly. And it makes no difference, in our judgment, whether the complaint be regarded as alleging that the services were to be paid for when the plaintiff arrived at his majority, or when they were terminated; in either case they are mere allegations to be supported by evidence, and the only testimony, as we have before seen, is that of the plaintiff, which does not support either contention. As the last payment became due on the 30th of May, 1886, it is clear that the claim was barred by the statute of limitations, unless the period was extended beyond the time when the action was commenced, by reason^ of plaintiff’s disability as an infant. This action is upon a contract obligation or liability, and under section 382 of the Code, should have been commenced within six years after the cause of action accrued. This section is part of ■chapter 4, tit. 2 of the Code, and section 396 of the same title is as follows:

“ If a person, entitled to maintain an action specified in this title, except for a pénalty or a forfeiture, or against a sheriff or other officer for an escape, is, at the time when the cause of action accrues, either: 1. Within the age of twenty one years; or, 2, insane ; or, 3, imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life. The time of such a disability is not a part of the time, limited in this title- for commencing the action; except that the time so limited cannot be extended more than five years by any such disability, except infancy ; or in any case more than one year after the disability ceases.”

If, for the moment, we lay out of view the last clause, the meaning of the section is clear, and is that in the case of insanity or imprisonment on a criminal charge the time limited by section 382 may be extended for five years if the disability continues so long, but in the case of infants is extended until the infant arrives at majority, no matter whether the period is more than five years or not. Thus, if we can imagine a case where a cause of action under section 382 would accrue to an infant when but five years of age, he would have sixteen years thereafter to commence his action, and so much more as the last clause of the section would give him. If, now, we consider the last clause, it will be seen that it applies to all three classes contemplated by the section, and limits them all equally as to the extension of time to one year after the disability ceases. It follows that, where a cause of action accrues to an infant when 18 years of age, he would have 6 years from- that date, or until he was 24 years of age, to commence his action, by force1 of section 382, while section 396 would be entirely inoperative to extend his time ; so that it is not strictly correct to say, as has been done in some cases, that the statute does not commence to run until the infant becomes of age. The time limited by section 382 runs from 'the time when the cause of action accrued, and "is merely extended by section 396 for the periods therein fixed under those conditions therein stated. Section 375, relating to actions to recover real property, etc., limits the time of tlie disability to 10 years, and that section has been construed in the way we have here given to section 398. Bucklin v. Bucklin,, *40 N. Y. 241; Acker v. Acker, 81 N. Y. 143 ; Howell v. Leavitt, 95 N. Y. 617. Acker v. Acker, supra, expressly reaffirms Dunham v. Sage, 52 N. Y. 229, which was an interpretation of the six-years statute of limitations, and of the disabilities extending those limitations. The provision theii under consideration was section 101 of the old Code, which is, in substance, the same as section 396 of the present Code, except that it included a fourth class of persons then under disability, to wit, married women. In that case, Peckham, J., writing for the court, said :

“The object of all rules for the construction of statutes is to learn the purpose. It will be observed that the whole provision as to disabilities is made subject to the last clause thereof; nor can it (the disability) be extended in any case longer than one year after the disability ceases. Everything is in force. ' Each disability is preserved until we arrive at the last clause, and there the whole must submit to that. The clause will not apply in many cases. The disability (in case of a married woman)' may continue over eleven years : in such case the person has the whole eleven -years in which to bring the action. It may continue two or three or four years; in such case the disability has no effect upon the statute of limitations. It may continue seven years; then the person has one year thereafter in which to commence his action. Thus the party has six years in any event, five years additional in case the disability so long continues, but in any event only one year additional after the disability-ceases.”

To the same effect is Torrey v. Black, 3 Wkly. Dig. 131, where it was held that the limitation did not run against an infant, though during more than six years he had a guardian who might have brought the action. Applying this interpretation of the section to the case in hand, it follows that plaintiff’s cause of action was barred by the statute of limitations. For the services were begun in November, 1882, and terminated on the 30th May, 1886, and the last payment therefore became due on that date,- and the statute began -to run from that time. The plaintiff was born on the 20th April, 1869, and became of full age .on the 20th April, 1890. Now, he had, under section 382, six full years from. May 30, 1886, to commence his action, which would terminate on the 30 th May, 1892, a little more than two years after he became of -age. But section 396 extended his time for commencing the action by reason of the disability of infancy only one year after he became of age, which terminated on the 20th April, 1891; hence in his case the extension given'by section 396 cannot avail to extend his time, as it ran concurrently with the time given by section 382. This action was not commenced until the 29th April, 1893, more than one year after the period limited by either of the sections. The judgment must therefore be reversed, and a new trial ordered, with costs to the appellant.

All concur.


text:
    Samuel B. Parmelee, Resp’t, v. Associated Physicians and Surgeons, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Corporations—Officers—Powers.
    When, the directors permit the officers of a corporation to hold themselves out as clothed with full power to manage all its affairs for a long time, and thus lead innocent persons to contract with .them in the belief that they had such powers, they cannot be heard to repudiate such contracts by invoking a by-law which they themselves allowed to fall into desuetude.
    Beargument.
   Bookstaver, J.

The plaintiff had judgment in the district court in an action brought upon a contract of employment as collector by the defendant corporation, and the defense was want of authority in-the officer who assumed to make the contract on behalf of the company. This judgment was reversed on appeal, and this is the third reargument of the appeal. And as the controversy on this reargument is as to the facts, the law laid down on the reversal being conceded to be correct, we have carefully gone over all the evidence which was not fully called to the attention of the court on previous arguments, and from that scrutiny the following facts seem to have been "established on the trial: The defendant is a foreign corporation, having an office in the city of New York for the transaction of its business, which is there managed by a secretary and treasurer, Mr. Thompson, who made the contract with the plaintiff, As secretary he was clothed by the by laws with “the general supervision and direction of the business affairs of the company,” and with “full power to make and execute contracts but the same by-laws enacted that “all contracts must be authorized by resolution, and entered in the minutes, and those involving a liability of $50 or more must be reduced to writing, and signed by the president and secretary, and be under the seal of the company.” This contract was for one year, at a salary of $5,200, payable in weekly installments, of $75 for the first six months, and $125 for the last six months. It was in writing, under the seal of the "company", and signed by the secretary, but was not signed by the president, ñor authorized by resolution, nor entered in the minutes. It appears, however, that there had been no meeting of the directors of the company since its organization, and no book'of minutes, and none of the contracts for employment made by the secretary during his conduct of the business as general supervisor and director had been authorized by resolution.

The limitation .upon the secretary’s “full power to make and execute contracts” was not disclosed to the plaintiff, who had no knowledge, indeed, of the secretary’s power, except what was'derived from his representations and his acts. His representation to the plaintiff w;as that he had authority to make the contract, and it appeared from the evidence outside of the by-laws that he was general manager of the company, and had entire charge of its business in New York. If we lay aside, therefore, the evidence of authority furnished.-by the by-laws and limitations therein contained, we find the case presents ample evidence of general executive authority sufficient to bind the company. The president swears that Mr. Thompson was the manager of the company. According to Thompson’s own testimony, he had charge of the management of the business, had entire control of the finances of the association, the president having charge of its “general policy that he had a controlling interest in the stock, and ‘furnished the money to carry on the business ; that the company or its directors-"were satisfied with whatever he did; that he hired all the clerks (about 150), made the contracts with them, and paid them: that he paid the attorney of the company, who was its vice-president,, $65 per week, and also paid a salary to the treasurer, and paid the other bills,—all without any resolution of the board of directors, Ivhich consisted,of three members, and which, as stated before, had never met since the corporation was organized until it met in ■January, 1894, to repudiate this contract. The by-laws, as adopted by himself and the president and the other directors, seem to have been a purely formal matter, and of their contents he testified he was ignorant, not knowing of any limitation upon his power to make the contract with the plaintiff, and such by-laws .seem to have been entirely disregarded by him, with the concurrence of the president and directors. In fact, the management of the concern was left so entirely to him by the president that, with the concurrence of the latter, he acted as the general executive •officer, and, as such, could bind the company by his contract.

As the plaintiff had no notice of any limitation upon the power rthus exercised by the secretary, no such limitation can be set up .against him. As was said in the opinion of this court:

“In dealing with a case involving the apparent powers of a general managing agent of a corporation, these apparent powers are not to be restricted as to third persons by secret limitations ■contained in the by-laws.” Parmelee v. Associated Physicians & Surgeons, 61 St. Rep. 118, citing Rathbun v. Snow, 123 N. Y. 343, 33 St. Rep. 600.

See, also, Moyer v. Terminal Co., 19 S. E. 651.

The defendant here was a foreign corporation, having an office in this state, where its business was carried on by its secretary as its general managing agent, and the contract with the plaintiff as made by him was within the scope of the business of the company, according to the authorities cited. In addition to the evidence of authority already referred to, it may be said that this contract was duly performed on the part of the company by the payment of the plaintiff’s salary thereunder for 22 weeks, while it remained at the lesser weekly sum, and was repudiated just as the larger weekly payments were to commence. This acquiescence by the directors in a matter of which they were bound to ■take notice is additional support of the plaintiff’s claim.

While it is the duty of courts to protect corporations from the ■unauthorized acts of its officers, yet, when the directors permit its officers to hold themselves out as clothed^ with full power to manage all its affairs for a long time, and thus lead innocent persons to contract with them in the belief that they had such powers, they cannot be heard to repudiate such contracts by invoking a by-law which they themselves allowed to fall into desuetude. "

" The judgment should therefore be affirmed, with costs of the original argument and of one reargument to respondent.

All concur.


text:
    L’Artiste Publishing Company, App’lt, v. Isaac Walker, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Principal and agent—Authority,
    An agent, who solicits advertisements, has no authority to agree that payments shall be made therefor in goods furnished to him personally.
    Appeal from a judgment in favor of defendant.

      C. J. G. Hall, for app’lt; Christian G. Moritz, for resp’t.
   Bookstaver, J.

This is the second, appeal to this court in this action. Upon the first trial the district court found against the plaintiff upon one cause of action and in his favor upon the second. On appeal to this court, we held that the determination of the court upon these two issues presented an inconsistency which would require reversal of the judgment. Upon the second trial it was stipulated that the testimony upon the former trial should be regarded as the testimony upon such second trial, and no other testimony was offered, except for the purpose of explaining the absence of a witness. Upon this testimony the district court rendered a judgment against the plaintiff upon both causes of action.

From the testimony it appears that plaintiff’s soliciting agent, one Tongue, called upon defendant, a tailor, to secure his advertisement in a book illustrating the Holland House. The defendant signed a printed contract with certain written provisions, making the whole read as follows:

“In consideration of the insertion of our advertisement in your book illustrating Holland House, to occupy half page, we agree to pay to the order of C. H. Williamson the sum of one hundred dollars upon publication. Edition 10,000 copies guarantied. But it is understood that no other tailor is to be represented.

“Dated N. Y., March 5th, 1891.
[Signed] Isaac Walker.”

On the 1st November, 1891, the defendant requested his advertisement to be transferred to the book of rules of the Holland House, and gave a further order 'for 500 announcement cards, which plaintiff claims were worth $15. These two contracts constitute the two causes of action sued on. The Williamson mentioned in the original contract is the president of the plaintiff. On the former appeal we decided that the defendant had affirmed both of these contracts, and, the testimony being the same, we musí reaffirm that decision. The defense alleged was that Tongue represented himself as being a member of the company, and agreed to take out payment for the advertising and printing in clothes to be furnished to him personally by defendant, and that, in accordance with such agreement, defendant did furnish him with clothes of the value of $150. An agent to solicit orders has no implied authority to receive payment.’ McKindly v. Dunham, 13 N. W. 485. A collecting agent has no power, without special authority, to commute the debt for another thing (Story, Ag. § 99; Martin's Adm'r v. U. S., 15 Am. Dec. 129, and note); nor to contract for payment in groceries to be supplied to him personally, Preserving Co. v. Pearsall, 45 Super. 636. See, also, Henry v. Marvin, 3 E. D. Smith, 71; Sier v. Bache, 7 Misc. Rep. 165 ; 57 St. Rep. 494. Defendant claims there is some evidence tending to prove that Tongue was a director or member of the plaintiff company. We do not think the evidence sustains this contention ; on the other hand, the evidence would seem to establish the fact that he was merely a soliciting agent, and even if, as such agent, he had authority to receive payment, he had no power to make a contract for his own individual benefit, and the plaintiff is not liable-therefor. A release by one partner of a firm debt in consideratibn of a debt due from him individually is void, and does not bind the firm. Beudel v. Hettrick, 35 Super. 405. The defendant’s affirmation of a contract for advertising made with Tongue one year after the same had been performed precludes him from now insisting that the contract had not been performed.

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


text:
    William Kennedy et al., Resp’ts, v. Metropolitan Street Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Negligence—Street cars.
    ' Street railway cars have a preference in the streets and drivers of other vehicles must use reasonable care to keep out of their way.
    Appeal from a. judgment entered on a verdict in favor of plaintiffs.

      John T. Little, Jr., for app’lt; A. B. Smith, for resp’ts.
   Bookstaver, J.

Plaintiff’s driver, in attempting to cross defendant’s tracks, with a wagon heavily loaded, was warned that a car was coming on the downward track around the curve at University Place. He turned his horse back across the uptown track, and before he could cross the track the wagon was struck by an uptown car, which came around the curve at Broadway. He claimed that he looked both ways before starting across ; saw the uptown car at Broadway and Fourteenth street, but did not see any car coming down. There is a conflict as to the speed of the uptown car and as to whether the motorman applied the brakes, and endeavored to stop the car. At the.close of plaintiff’s case, and, again at the close of all the testimony, the defendant moved to dismiss the complaint, upon the ground of contributory negligence on the part of-plaintiff’s driver, and also upon the grounds that no negligence had been shown on the part of the defendant. We think both "motions were properly denied, as facts had been shown from which the jury could have inferred absence of negligence on the part of the driver, and negligence on the part of defendant’s servant in the management of its car. The court thereafter charged the jury, who found a verdict in favor of the plaintiff for $75. The court, in the course of its charge, had laid down the law in regard to the respective rights of railroads and of vehicles upon the same street in such a way as to leave it in doubt whether or not the railway had a preference upon the street, and what the duty of the driver of a vehicle was; wherefore the defendant’s counsel requested it to charge that “street railway cars have a preference in the streets, and, while- they must be managed with care, so as not to negligently injure persons in the streets, other vehicles must use reasonable precaution to keep out of their way,” which the court declined to charge, but said: “ Street railway cars have no preference in the streets. They are entitled by their franchises to run their cars along the rails in the manner laid down, but they must pay a due regard to the rights of others, They have no special rights; but, as I have stated, a person driving a vehicle along a street used by a street car company, because of the fact that the driver of a car is unable to turn to the right or left, is required to consider such fact before he passes over or upon their rails,”—to which refusal the defendant duly excepted. In view of the charge already made and the evidence in the case, we think this was error. In Fenton v. Second Ave. Railroad Co., 126 N. Y. 625; 36 St. Rep. 385, the court said : “ Street railway cars have a preference in the streets, and, while they must be managed with care, so as not to carelessly injure persons in the street, pedestrians must, nevertheless, use reasonable care to keep out of their way.” To the same effect see Baker v. Eighth Ave. Railroad Co., 62 Hun, 41; 41 St. Rep. 353 ; Belton v. Baxter, 54 N. Y. 246; Wendell v. N. Y. C. & H. R. Railroad Co., 91 N. Y. 420; Becht v. Corbin, 92 N. Y. 658. The judgment must therefore be reversed, and a new trial ordered, "•with costs to the appellant to abide the event.

All concur.


text:
    Peter Bang, Resp’t, v. Ida J. Dovey, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Monet paid, laid out, etc.—When action lies.
    Id. an action by a broker for money expended at the purchaser’s request to bind a contract for the sale of land to him, the fact that the broker was to receive commissions from the vendor does not affect his right to recover.
    Appeal from a judgment, rendered by the justice without a jury.

      Lord, Day & Lord, for app’lt; Burr & De Lacy, for resp’t.
   Bischoff, J.

Plaintiff, a real estate broker, expended $200 as advance payment to bind a contract for the sale of a certain piece of property to defendant. The latter afterwards refused to complete the contract, and to repay plaintiff the sum so expended by him, whence this action. Defendant claimed that there had been a misrepresentation upon the part of the plaintiff concerning the property, and that she, therefore, repudiated the transaction. It appears from the evidence that she instructed plaintiff to secure the property in question for her, and recognized the payment of $200 to that end; that she had been shown the exact bounds of the property, and had been given its measurements upon the basis of city lots, and had finally expressed herself as satisfied, upon inspection, both with the land and the house. A deed was prepared, in accordance with the contract, conveying the property to defendant, but it was not accepted by her, the ground assigned being that the lot did not contain more than half an acre, as she subsequently discovered.

There was some conflict of testimony with regard to the exact representations made, but the evidence sufficiently supports the finding that there had been no misrepresentation such as could justify the defendant in repudiating her obligation to the plaintiff' to repay him the sum' expended at her instance. True, the property may have been described to her as measuring “a little less-than an acre,” or “an acre, more or lessbut the actual measurement in square feet was also given, correctly, as conceded, and she had expressed herself as satisfied with the purchase. Clearly, there was no attempt made to mislead her, and no basis existed for her misconception, if any, of the true extent of the property. The fact that plaintiff was to receive commissions from the vendor cannot in any way affect the present question. Defendant testified that there was no agreement that he (plaintiff) was to receive any commissions from her, and, moreover, this is not an action where commissions are sought to be recovered. The evidence is found to support the recovery for traveling and advertising expenses. Judgment affirmed, with costs.

All concur.


text:
    Albert Russell Metz, Resp’t, v. Campbell Printing Press and Manufacturing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Trial—Verdict.
    Where the plaintiff is entitled to the amount sued for or nothing, a verdict for a part of the claim is not secundum allegata, ei probata.

    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Chas. DeHart Brower, for app’lt; Elgin L. McBurney, for resp’t.
   Bischoff, J.

The plaintiff was the owner-of a printing establishment, the chattels appurtenant to which were mortgaged to the defendant. It was mutually agreed by the parties that, for the purpose of paying the debt, the chattels should be sold under a foreclosure of the mortgage, which latter contained a clause to the effect that upon such a sale the mortgagee should be entitled to deduct from the proceeds, for necessary expenses, “lawyers’ fees and commissions for making sale.” The plaintiff contended that it was also agreed, at the time, that the expenses of the sale should, not exceed 5 per centum of the proceeds, but this the defendant disputed. The proceeds realized, and received by the defendant, amounted to $2,926.52, from which it deducted $292.60, for auctioneer’s fees, and $56.50, for attorney’s fees,—an aggregate of $349.10,—having sufficiently accounted to the plaintiff for the remainder. This action was brought to recover the difference between the sum deducted and 5 per centum of the proceeds of the sale, to wit, $202.77. The only issue created by the pleadings was with regard to the making of the alleged agreement of 5 per centum of the proceeds for the expenses of the sale. No other issue was litigated upon the trial, by consent of the parties, manifested either by inference from the evidence admitted, or the character of the objections made, or from an expressed stipulation, or amendment of the pleadings, to such an effect Frear v. Sweet, 118 N. Y. 454 ; 29 St. Rep. 972 ; and the only question submitted by the learned trial’judge to the jury was whether or not the alleged agreement was made. The jury rendered a verdict for the plaintiff in the sum of $91, upon which judgment was rendered, from which, as-well as from an order denying its motion for a new trial, the defendant appealed.

Obviously, the verdict and judgment transcend .the rule that the recovery must be secundum allegata'et probata. Fold v. Kahn, 4 Mis. Rep. 600 ; 54 St. Rep. 134; Pionier v. Alexander, 7 Misc. Rep. 709; 57 St. Rep. 341. Upon the pleadings and the evidence, the verdict should have been either for the plaintiff in the amount claimed, or for the defendant. The jury might well, upon the conflict of evidence which ensued upon the trial, have found either way; but they could not with consistency find both ways. A verdict which repudiated the alleged agreement, and yet awarded any recovery to the plaintiff, was manifestly unjust to the defendant. Neither can the verdict be supported upon any hypothesis that the defendant’s deduction of 10 per centum of the proceeds of sale involved an excessive charge for the auctioneer’s services, because in contravention of the statute which limits the commissions for such, services to 2^- per centum, in the absence of the owner’s written agreement to pay a greater sum. 2 Rev. St. (Banks & Bros.’ 7th. Ed.) p. 1275, § 23. The award is incompatible with computation at the statutory -rates of commissions, and the record is destitute of all evidence tending to show the customary or fair and reasonable expenses to be incurred in cases of like sales. The jury disregarded the plain instructions of the trial judge. Judgment and order appealed from reversed, and new trial ordered, with costs to the prevailing party to abide the event.


text:
    The People, App’lt, v. Thomas G. Cowan, et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Supplementary proceedings—Judgment by default.
    Supplementary proceedings cannot be maintained on a judgment, taken on a forfeited recognizance, where the summons was not served on the parties.
    Appeal from an order vacating and setting aside an order theretofore made, requiring one of the defendants to appear and be examined in supplementary proceedings.

      John B. Fellows and J. D. Lindsay, for app’lt; Benjamin Yates, for resp’ts.
   Bookstaver, J.

The respondents entered into a recognizance, in "manner and form as provided by law, for the appearance of Cowan, the principal, at the court of general sessions, at a time fixed. Upon the principal’s failure to appear at that time, the recognizance was declared forfeited, and an order to that effect was entered ; and thereafter the judgment thereon was duly docketed, according to law, with the clerk of the city and county of New York, and afterwards an execution upon that judgment was issued to the sheriff of the same county, which was returned wholly unsatisfied, and the judgment now remains unpaid.

There is no question as to the regularity'of the judgment, or of the execution issued thereon, and the only question presented on this appeal is whether or not supplementary proceedings can be instituted in such case. It is undisputed that neither of the defendants was served with the summons, and did not appear in the proceedings in which judgment was entered. Proceedings supplemental to the return of an execution are special proceedings, under section 2433 of the Code; and, in order to entitle a judgment creditor to maintain them, the judgment must have been rendered upon the judgment debtor’s appearance, or the personal service of the summons upon him. Code, § 2458. The fact that the judgment was recovered in the manner provided by law does not do away with the necessity of this appearance or service. Section 1480 of the consolidation act, providing for the entry of such a judgment, further says, “An execution may be issued to collect the amount of said recognizance in the same form as upon a judgment recovered in the court of common pleas of said city and county in an action of debt in favor of the people against the persons entering into such recognizance”; and this is the only provision in relation to the execution or proceedings thereafter. And it will be observed it does not provide that the judgment so entered shall be enforced in the same manner and effect as a judgment recovered in the court of common pleas, but declares what rights the judgment creditors shall have under such a judgment, and limits his remedy to the issue of an execution thereon ; and we think a judgment creditor, in such case is entitled only to such, relief as is conferred by that section. The case of People v. Quigg, 59 N. Y. 83, does not touch this question. It merely decides that a judgment so entered is not in violation of the provisions of the constitution restraining the taking of property without due process of law. In the course of the opinion, it is said :

“A party may, by his voluntary act, waive any and every right or privilege personal to himself, and affecting only his rights of property, conferred or secured to him either by the constitution or by statute [citing authorities]. The law permitting judgment to be perfected upon the recognizances, upon default in condition, was in force at the time the recognizances were entered into, and made a part of the terms and conditions of the undertaking and covenant of the parties, as much as if inserted bodily in the instrument. By the recognizance the defendants acknowledged an indebtedness to the people, in the sum named, subject to a defeasance, and consented, upon a failure to perform the conditions, the debt should become absolute, and might be made a debt of record, and judgment perfected thereon, which should be a lien upon the real property, and upon which execution might issue, as upon other judgments for the recovery of a sum certain.”

Giving full effect to this language, the defendants only waived their right to a trial, and submitted themselves to the provisions of law then in force in regard to such matters, which, as before pointed out, is section 1480 of the consolidation' act, which does not provide for proceedings supplemental to execution. We therefore think the order appealed from should be affirmed. We regret this conclusion, as it probably is true, as urged by the district attorney, that it will seriously affect the administration of criminal law; but the remedy rests in the legislature, and not with us.

All concur.


author: Pryor, J.

text:
    Hipolito Dumois, Pl’ff, v. William Hill, et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed February, 1895.)

    1. Money had and received—When not lie.
    An action for money had and received will not lie against a person to whom plaintiff’s creditor has paid it on an invalid claim.
    2. Same—Defenses.
    In such action, defendant may show that he is entitled, as against the plaintiff, to retain the money in equity and good conscience.
    Demurrer to the complaint.

      Goodrich, Deady & Goodrich, for pl’ffs; Shearman & Sterling, for def’ts.
   Pryor, J.

In substance the complaint states: A lease by defendants to plaintiffs of piers in Bast river; an action by defendants against the city of Hew York for injury to the piers, and judgment in their favor for the sum of $52,830.01, damages they had sustained by the Injury to the piers; the wrongful receipt of this money by the defendants, because the money so received by them embraced the damages occasioned to the plaintiffs by the injury to the piers; a demand of judgment for a sum equivalent to the damages sustained by the plaintiffs from the injury to the piers.

The concession in the complaint that the money recovered by the defendants was for the damage they had sustained by the injury to the piers is at once fatal to the complaint, since it admits that the money was not received to the plaintiffs’ use, but in reparation of a wrong the defendants themselves had suffered; and so the defendants are not bound, ex aequo et bona, to refund to the plaintiffs. The action for money had and received, proceeding upon equitable principles, is defeated by an equal equity in the defendant, and he is never held to return what he may keep with a good conscience. 2 Greenl. Ev. § 117 ; note to Bank v. Ellinge, 100 Am. Dec. 523 ; Buel v. Boughton, 2 Denio, 91, 93 ; 4 Wait, Act. & Def. oil. As this allegation in the complaint may have been unnecessary and inadvertent, and as it is desirable to dispose of the demurrer upon grounds which no amendment may obviate, I shall assume the pleading to state the transaction in the' aspect most favorable to the plaintiffs, namely, that the city of Hew York was liable to the plaintiffs in the sum they demand for injury to their interest in the piers, and that this sum the defendants have received from the city upon an invalid claim that it was due to them. Still the action is untenable. The principle decisive of the case is: “That if two or more independent claimants apply to the debtor for payment, and the debtor pay the claimant not entitled thereto, the unsuccessful claimant cannot maintain an action for money had and received against the successful claimant to recover the money so paid. * * * If, however, the payment, though made to the wrong person, operates as a payment of the claim, so that the rightful claimant can no longer assert his claim against the party paying, then the defendant has in fact received money which belonged to the plaintiff, and the plaintiff should be allowed to recover the money so paid.” Keener, Quasi Cont. 168. That the city’s liability to the plaintiffs was not discharged by the payment to the defendants is settled by conclusive authority. Atlantic Dock Co. v. Mayor, etc., 53 N. Y. 64; Rowe v. Bank of Auburn, 51 N. Y. 674; Hathaway v. Town of Homer, 54 N. Y. 655 ; Sergeant v. Stryker, 32 Am. Dec. 404, 405. This being so, the invalidity of the plaintiffs’ contention is clear beyond controversy. Patrick v. Metcalf 37 N. Y. 332; Butterworth y. Gould, 41 N. Y. 450 ; Rowe v. Bank of Auburn, 51 N. Y. 674; Hathaway v. Town of Homer, 54 N. Y. 655; Decker v. Saltzman, 59 N. Y. 275 ; Peckham v. Van Wagenen, 83 N. Y. 40; Fox v. McComb, 45 St. Rep. 754; Moore v. Moore, 127 Mass. 22; Rand v. Smallidge, 130 Mass. 337 ; Hall v. Carpen, 27 Ill. 386, 29 Ill. 512; Kelley v. Lindsey, 7 Gray, 287; Sergeant v. Stryker, 32 Am. Dec. 404,—a case identical in principle with the present, and instructive in its exposition of the action for money had and received. Demurrer sustained, and judgment for defendants.


author: Freedman, J.

text:
    Abner G. Tisdell, App’lt, v. New Hampsphire Fire Insurance Company, Resp’t.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    Insurance—Cancellation.
    Under a provision of a policy providing for its cancellation by the company, the actual payment or a tender of the pro rata unearned premium is essential thereto.
    Appeal from a judgment, entered on a verdict directed by the court-in favor of the defendant.

      Potter, Baldwin & Miner, for app’lt; Robinson, Bright, Biddle & Ward (Henry Galbraith Ward, of counsel), for resp’t.
   Freedman, J.

This action was brought by the plaintiff, as the surviving partner of the firm of Tisdell & Whittlesey, upon a policy of fire insurance issued by defendant to plaintiff’s firm. The policy was in the form prescribed by the laws of the state of New York, commonly called a New York standard policy of fire insurance. At the trial the only question remaining .in dispute was whether there had been a valid cancellation of the policy before the fire. The learned judge who presided at the trial was of the opinion that the evidence had established such cancellation, and-for that reason directed a verdict for defendant. The policy contained the following clause, viz. :

“This policy shall be canceled at any time at the request of the insured; or by the company, by giving five days’ notice of such cancellation. If this policy shall be canceled, as hereinbefore provided, or become, void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rates, except that, when this policy is canceled by this company by giving notice, it shall retain only the pro rata premium.”

It was shown that on two different occasions before the fire the defendant, by its authorized agent, had served notice upon plaintiff’s firm that the company had elected to cancel the policy, and that the same had been canceled, and that the pro rata unearned premium would be placed in the hands of a certain agent of the company, to be held by him subject to the order of plaintiff’s firm. It was admitted by the plaintiff that the policy in suit had not been surrendered or tendered to the defendant by the plaintiff or his firm, and that no demand had been made by plaintiff or his firm for the return of the unearned portion of the premium. But, at the same time, it was admitted by the defendant that neither the premium nor a pro rata amount of the premium of the policy had been returned, paid, or tendered to the plaintiff, or to plaintiff’s firm, by the defendant.

There being no dispute as to the facts, the question presented by the appeal as to the sufficiency of the cancellation is one of law. Almost the identical question arising under the same provision of the New York standard policy was determined by Mr. Justice Bartlett in Nitch v. Insurance Go., and his decision has just been affirmed by the general term of the second department. The decision of that case was to the effect that, although the provision in question does not in express terms require the refunding of a ratable proportion of the premium as a condition of the cancellation of the policy by the company, the condition is to be implied, and that the actual payment or a tender of the pro rata unearned premium is essential to the cancellation of the policy by the companj',. This decision should be followed in the case at bar, and under it the defendant, in order to make its notice effectual, was bound to make at least a tender of the pro rata unearned premium. The question as to the right of the company to demand a return of the policy does not arise until at least such a tender has been made, pursuant to due notice. No payment or tender having' been made in the present case, the mere giving of the notice did not cancel the policy, and consequently it was error for the trial judge to rule that it did, and to direct a verdict for the defendant in accordance with such ruling. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.


author: McAdam, J.

text:
    Tilly Lesser, as Executor, etc., Pl’ff, v. Caroline Lesser et al., by Guardian, etc., Def’ts.

      (New York Superior Court, Equity Term,

      Filed January, 1895.)

    1. Will—Construction.
    Where the_ testator intends to have incorporated in his will a power authorizing a sale of his property, the language, though inartistic and inapt, will be construed equitably and liberally in furtherance of the intention.
    2. Same—Power of Sale.
    The power of sale, if given by, but the donee is not named in, the will, is implied in the executor. 1
    Action to construe a will.

      John L. Brower, for pl’ff; E. Jacobs, for infant def’ts.
   McAdam, J.

There is sufficient in the will to authorize the court to give it a judicial construction. The axiomatic rule is that effect must be given to each and every part of a will and to the testator’s intention, which, when ascertained, must control. That the testator intended his executrix might sell the realty is evidenced by these words :

“ I hereby consent to the partition, upon the consent of my executrix, Tillie Siegel, and sale of any and all realty in which I may have any hereditary interest; said interest being acquired from Leopold Siegel.”

Whatever realty the testator died possessed of was hereditary, and acquired from Leopold Siegel, as in said will named. So that the will was intended to operate upon the property referred to in the complaint. The testator had endeavored to sell the property just prior to his death. It was for sale at that time. Before' and at the time of drawing his will he expressed it as his intention to have incorporated therein a power authorizing a sale of the property. The language used in the will may be inartistic and inapt, but it is to be construed equitably and liberally in furtherance of the intention. Dorland v. Dorland, 2 Barb. 80 ; Saloman v. Lawrence, 52 Super. 154; Stimson v. Vroman, 99 N. Y. 74; Weeks v. Weeks, 16 Abb. N. C. 143; Sugd. Powers (3d Am. Ed.) marg. p. 476, and notes. Precatory words impose a binding duty .where the testator has pointed out with sufficient clearness and certainty both the subject-matter and object of the trust. 2 Redf. Wills (2d Ed.) 411. The desire of the testator has the force of a command when expressing his object. Riker v. Leo, 115 N. Y. 93. Liberally construed with reference to furthering the testator’s intention, the law of energy of construction holds that the will contains a discretionary power of sale, which may be executed by the executrix at such time and in such manner as she may determine. True, the will is silent as to the person who is to sell the lands; but in such case the power is implied in the executrix. Grer. Real Estate (3d Ed.) 443. Under the sixth clause of the will, Caroline Lesser and Selma Lesser, the infant defendants; take an estate in fee in the premises, subject to the execution of said power of sale, and subject to a trust to continue during their minority; the trust, in the event of the execution of the power, being applicable to the proceeds of sale only, and ceasing as to each of said infants on her marrying or becoming of full age. Decree in accordance with these views.


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    Bernard S. McKean, as Assignee, etc., App’lt, v. Charles H. Adams, Resp’t.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Evidence—Declarations—Assignor.
    Where an assignment is merely colorable, or without consideration, leaving the assignors or any of them the real owners of the thing assigned, with a present interest therein, the declarations of the interested assignors are admissible against the assignee.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      E. G. Bullard, for app’lt; H. M. Ward, for resp’t.
   Bookstaver, J.

—The notice of appeal to the general term of the court below purports tó be also an appeal from an order denying a new trial. But no such order is mentioned in the judgment, or included in the judgment roll, or printed in the record. This being the case, the present appeal brings up for review the exceptions and the judgment only. McRichard v. Flint,1 St. Rep. 608; Third Ave. Railroad Co. v. Ebling, 100 N. Y. 98; Matthews v. Mayberg, 63 N. Y. 656. The action was brought by the plaintiff as assignee of a certain claim of $250 for legal services claimed to have been rendered by the law firm of Bullard & Shannon to the defendant. The defendant claimed that these services were rendered under an agreemant between him and the assignors of the claim that they should receive $250 for such services if successful in defending the action in which they had been retained, but if unsuccessful they should receive, at most, a merely nominal sum, and also that the plaintiff was not the real party in interest, but that Bullard & Shannon, were, or, if there had been an assignment of the claim to the plaintiff, that it was as security merely for a loan made to Bullard individually and for his private benefit, and that Mr. Shannon still retained his interest in the claim. To establish this, and also the agreement as claimed by the defendant, various declarations of the assignor Shannon, made both before and after the assignment, were received in evidence under plaintiff’s objection and exception. Various motions were also made after such evidence was received to strike it out, and the reception of such evidence, and the refusal of the court to strike it out., were the only errors alleged on this appeal. The doctrine that where an assignment is merely colorable, or without consideration, leaving the assignors, or any of them, the real owners of the thing assigned, with a present interest therein, the declarations of the interested assignors are admissible against the assignee, is well settled. Paige v. Cagwin, 7 Hill, 381, established the general doctrine that admissions or declarations of an assignor after the assignment are not admissible against the assignee where the assignment is for full value, and made in good faith, but the court said:

“ It is no answer to the views above presented that the rules will permit a transfer to mere nominal parties to avoid the effect of admissions made previously. When such is the fact, there is no change of ownership. The,party by whom the transfer is made is still the party in interest, and his declarations are clearly admissible.”

See, also, Von Sachs v. Kretz, 72 N. Y. 553.

“ Where the vendor, after the sale, still continues in possession, exercising acts of ownership over the property, thus raising the presumption that the sale was fraudulent,” the declarations of the vendor are admissible against the vendee. Flannery v. Van Tassell, 127 N. Y. 633 ; 37 St. Rep. 228; Loos v. Wilkinson, 110 N. Y. 210 ; 18 St. Rep. 110. When the question as to the admissibility of these declarations arose, it was for the trial court to determine whether the evidence then given was sufficient to raise a presumption, or to authorize the jury to find, that the partner Shannon was at the time of the making of the declarations so interested in the claim as to render his declarations admissible. And, even if the evidence was then not sufficient, appellant cannot now claim no sufficient foundation for their admission has been laid. He pointed out no such objection at the time. After these declarations had been received in evidence, further testimony was given by the respondent, without objection, tending to show that at the time of such declarations the partner Shannon was still interested in the claim, and the actual owner of a part of it, and after this was received in evidence no motion was made by the plaintiff to strike out any part of the testimony. So that, if there was not sufficient- evidence at the time the declarations were admitted, other evidence was afterwards adduced which, in our judgment, cured it; and after the introduction of such evidence the plaintiff failed to move to strike it out, as he should have done. U. S. Vinegar Co. v. Schlegel, 143 N. Y. 544; 62 St. Rep. 826 ; Stouter v. Man. Railroad Co., 127 N. Y. 661; 38 St. Rep. 162. If the plaintiff, after the evidence was all in, deemed it insufficient to establish present interest in Shannon at the time the declarations were made, and that such evidence was prejudicial to his case, he could have requested the court to .charge that, if the jury did not find that Shannon had an interest in the claim, they should disregard his declarations entirely. It often happens that evidence is admitted tentatively, and, if a party fears that a jury may be influenced by such evidence, he should ask that they be instructed to disregard it. Gall v. Gall, 114 N. Y. 109, 122; 22 St. Rep. 746; Holmes v. Moffatt, 120 N. Y. 159; 30 St. Rep. 779. We therefore think the judgment should be affirmed, with costs.

All concur.


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    Albert B. Marshall, Resp’t, v. Benjamin F. Cohen, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Mechanic's lien—In absence of contract.
    Where mason work and material on the building are furnished with the owner’s knowledge and consent, it is sufficient to maintain a lien.
    3. Work and labor—Compensation.
    One who agrees to furnish labor for another is entitled, where no price is fixed, to a profit thereon and is not limited to the amount which he paid the. workmen.
    3. Pleadings—Counterclaim.
    In an action to foreclose a mechanic’s lien, a counterclaim sounding in tort cannot be interposed.
    Appeal from a j udgment in favor of plaintiff.

      David McClure, for app’lt; Edwin B. Smith, for resp’t.
   Bookstaver, J.

This action is brought by the plaintiff to foreclose a mechanic’s lien on certain real estate in the city of New York, and recover the balance claimed to be due upon a contract for mason work in building a house and stable on the premises, and for extra work. The defendant interposed a twofold defense: First, he denied the making of any contract with the plaintiff for mason work on his buildings, or the performance of any extra work; and, secondly, he alleges the employment by him of the plaintiff to draw plans and specifications for the erection of'the dwelling house and barn, and that the plaintiff named a price as the outside for the house, which cost much more than the plaintiff stated and also that he did not properly or practically prepare the plans and specifications for the house, and by reason of his dishonesty and incompetency the defendant had been put to a large expense in correcting plaintiff’s errors, and suffered damage in the sum of $10,000, which he seeks to counterclaim against the plaintiff. These issues were duly referred by this court, and the referee found in favor of the plaintiff for the full amount claimed, upon which judgment was entered, and this appeal taken. Defendant seeks to reverse the judgment upon the following grounds : (1) Because it is against the weight of the evidence; (2) the allowance of the recovery for extra work was unjustified, in that it was not rendered at defendant’s request; (3) the complaint should have been dismissed, and the lien discharged; and (4) because the referee erred in rejecting evidence offered by the defendant to prove the counterclaim set up in the answer.

The first and third of these grounds require an examination of the evidence in the case, and the first question' to be determined is whether or not the contract for the mason work on the buildings in question was made with one Bilyeu or with the plaintiff. The complaint, which was duly verified, sets forth that the work was done under a written contract, and his notice of lien contains the same statement. The evidence, however, shows, that, if the plaintiff can recover at ail, it must be upon a verbal contract or a guaranty by the plaintiff of a contract made by Bilyeu. But the evidence shows that this error was made in a very natural way. The plaintiff had handed to the defendant a paper, which was in reality a guaranty that Bilyeu would do the work ; the contents and purport of which he did not recollect. He had an impression that it was an engagement for him to do the work. The plaintiff communicated this impression to his attorney, who drew the complaint accordingly, and also the notice of lien. This error, however, we do not think precludes the plaintiff from a recovery, provided the evidence establishes the fact that he did the work under a verbal agreement with the defendant. The latter claims that there was a contract with Bilyeu, and not with the plaintiff.. The evidence shows that specifications were sent out to Ruhl & Stone, Bilyeu, and others. If the copy thus received by Bilyeu was the one put in evidence, it cannot be regarded as a contract, for it does not purport to emanate from anybody, nor was it ever signed by any one. There is no evidence that Mi; Bilyeu ever executed it or assented to it, and there is no evidence in the case of any other contract on Bilyeu’s part. The bid made by him and delivered to the plaintiff cannot be regarded as such a contract, and the testimony of the parties negatives the idea of any contract between them. Mr. Bilyeu swears:

“ I never made any contract or any agreement with Mr. Cohen to do any work upon that building of any kind, or to do work of any character whatever. * * * I never had any conversation with Mr. Cohen in reference to my doing the work. I never offered Mr. Cohen a bid for .the work. I never had any relation with Mr. Cohen in a'ny way in reference to the erecting of the building, so far as the mason work was concerned. And it is a fact that all the work which I did on that building I did under Mr. Marshall as my employer. He paid me.”

Mr. Cohen swears, in effect, that all the talk he every had with anybody about the contract with Mr. Bilyeu was with the plaintiff. He does not claim that anything, either oral or written, ever passed between him and Mr. Bilyeu upon the subject; and testified :

“I says : ‘I will accept Bilyeu’s contract under no conditions. .You tell me that Bilyeu is a man that drinks ; who’s got a habit of throwing dice. He is not to be trusted with anything.’ And he [Marshall] says, 11 want Bilyeu to do the work, and I will take charge of the whole matter.’ ’’

He also testifies to another discussibn of the matter between himself and the plaintiff, in which he expressed his disapprobation of Mr. Bilyeu’s character, the plaintiff claiming that Bilyeu was a skillful mason, and ought to be allowed to do the work. After this discussion, according to the defendant’s testimony, the plaintiff said, “I will guaranty Mr. Bilyeu’s contract for doing the work on that house and stable, if you give it to Mr. Bilyeu, provided you will allow me to handle the money, so Mr. Bilyeu don’t get the money to squanderand he, the defendant, said; “ If you will guaranty that contract, I will give it to Bilyeu. Mr. Marshall said he would." As far as the evidence shows, the foregoing conversations were never communicated to Mr. Bilyeu. About two weeks after this conversation the following paper was executed:

“ A. B. Marshall, Architect and Builder, 2881 Bainbridge avenue, near 184th Street.
“.Hew York, April 30th, 1892.
“ Mr. B. F. Cohen—Sir: I hereby guaranty Mr. William A. Bilyeu’s agreement to do all the mason work, labor, and material necessary to complete y.our house, H. E. corner Crestón avenue and Primrose street, according to plans and specifications for the sum of two thousand three hundred and fifty-five dollars ($2,355.00). It is understood that the above does not include the stone piers of piazza and port-cochere. All payments to be made to myself.
Respectfully, A. B. Marshall."

Mr. Bilyeu at one time handed to the plaintiff certain figures at which he said he would do the mason work. This, at most, was but a proposition for a contract. That proposition was never accepted, and it cannot be argued that Bilyeu proposed to do the work for the amount stated, payable to another; nor was the agreement finally concluded for the amount thus stated. Mr. Bilyeu testified:

Mr. Marshall did say to me that he had guaranteed my contract. It was shortly after the estimate was put in. He said Mr. Cohen had agreed for me to go on and do the mason work, and he would take the contract, and be responsible for it. That is the way he informed me about it,—that Mr. Cohen had agreed for me to do the mason work under that estimate.”

But this statement cannot overcome the testimony given by him at the commencement of his direct examination, in which he testified, “ I never made any contract or agreement with Mr. Cohen;” and at the conclusion of his cross-examination, where he testified, “ At that time I did not understand from Mr. Marshall that I had any agreement with Mr. Cohen.” The most that can be inferred from all his testimony is that he was to do the mason work, but that the plaintiff was to be responsible to the defendant for it, and was the real contracting party. That there was some contract, oral or written, between tue plaintiff and the defendant, whereby the former was to receive the exact sum he claimed, seems to us clear. Mr. Cohen never personally contracted with any one else for the "mason work on these buildings. Plaintiff' testifies that the defendant’s contract was with him. Mr. Bilyeu testifies it was not with him. Mr. Cohen admits it could not have-been with Mr. Bilyeu unless the plaintiff procured Bilyeu’s assent to the identical proposition submitted by Mr. Cohen, and both the plaintiff and Bilyeu swear it was never stated to the latter, so that he could not have assented thereto. Mr. Marshall testifies that the defendant asked him, “ Why won’t you take the contract, and do it yourself”? and plaintiff replied, “I will take it then, and have the payments made to me;” to which the defendant said, “ Why, that is all right; go ahead and do it;” and adds, “ Then I executed the work, bought the material, and delivered it.” It thus appears to our satisfaction that the contract was really made with the plaintiff, and not with Bilyeu. The fact that plaintiff was an architect as well as a builder, although suspicious, does not necessarily preclude him from taking the contract. The fact was known to the defendant. It was at his suggestion that the plaintiff drew the plans and specifications at a fixed sum, and the superintendency Of the building was discussed between the parties. But the plaintiff was not to be the sole supervisor of the work; the defendant was also to supervise it. There is no charge in the amount recovered for any services as architect. It is not an infrequent occurrence that the builder also prepares the plans of the building to be erected by him. Nor do we think the fact that various bills and receipts were signed by plaintiff as being “ on account of Bilyeu contract,” or “account of agreement of William A. Bilyeu for the mason work,” etc., conclusive, or even entitled to great weight, under the circumstances of this case. The plaintiff had executed the guaranty before set forth, and therefore had himself undertaken to do the work, and in any case the payments were to be made to him. The evidence clearly establishes the fact that he furnished the material and paid for the labor expended upon the mason work. It is true that the defendant denies much of the testimony of the plaintiff and Bilyeu, before quoted, and there is throughout the case not a little contradiction between the parties. But there was certainly quite sufficient evidence to justify the learned and careful referee who tried the case in coming to the conclusion he did upon the question. He had the witnesses before him, and could better judge of their ■credibility than we could from a mere reading of the testimony .and a comparison of facts, and of the contradictions in the testimony ; and in his opinion he says, “As to the making of the contract, I have no doubt whatever.” Whatever confusion there may be in regard to the contract, as before stated, the masbn work and material on the buildings in question were furnished by the plaintiff with defendant’s knowledge and consent, and this is sufficient to maintain the lien. Otis v. Dodd, 90 N. Y. 340; Post v. Campbell, 83 id. 282 ; Husted v. Mathes, 77 id. 390; Muldoon v. Pitt, 54 id. 272; Mosher v. Lewis, 64 St. Rep. 117.

As to the recovery for the extra work. The referee finds in his twelfth finding of fact:

“That, in addition to the specified mason work aforesaid, to be done under said contract for said aggregate sum of $2,355, the plaintiff, at the defendant’s request, furnished other labor, services, and material in and about the mason, carpenter, and other work in the construction of the defendant’s said buildings and appurtenances, of the reasonable value of $223.28, -of which the sum of $20 has only been paid to the plaintiff, and there is now due and owing to the plaintiff from the defendant on account of said extra work and materials the principal sum of $203.28.”

Here, again, the testimony is conflicting, but it is clear that the plaintiff did this extra work and furnished the material therefor, and that no one has been paid for it; nor, so far as the evidence shows, is there any claim made by any one else than the plaintiff for it. On a careful review of the whole evidence on this subject, we think the referee was fully justified in finding as he did. Defendant objects, however, that plaintiff charged too large a price for the labor spent upon this work. It is urged that he charged $3.50 a day for carpenters, while he really paid them only $3 or $3.25, and that the same was true as to the masons.' In answer to this, it may be said that this is the general custom among masons and builders. There was no contract to furnish this labor at a fixed price. The defendant himself had engaged some of the carpenters, and requested the plaintiff to send over others. The compensation to the plaintiff was, by implication of law to be whatever it was reasonable for him to receive, .and it would be neither reasonable nor customary for him to charge for odd jobs just what he paid the men for continuous employment. He was as much entitled to profit upon the labor supplied by him as upon the materials he supplied. He was not bound to furnish either to the defendant at the exact cost to him. Anderson v. Dillaye, 47 N. Y. 679.

° The third ground for reversal urged on this appeal is that the complaint should have been dismissed. This is based upon the fact that defendant claims the plaintiff did not substantially perform his contract by doing the work according to the plans and specifications, but that he left out many items, and did others in a way different from that called for by these plans and specifications. After reading the briefs of counsel and the testimony, we concur with the referee in his findings in respect thereto, and for the reasons stated by him in his opinion, and do not think it necessary to review this point at length. It may be added to what the referee has said that the defendant was constantly about the premises while the work was being done, and that he himself frequently suggested changes in respect to the matters complained of, which were done at his request. Moreover, it appears from the evidence that Bilyeu called on several occasions, and asked the defendant if there was anything to be done to complete the mason work, and he replied that there was not.

The fourth ground on which the judgment is attacked, is that the referee erroneously excluded evidence as to the counterclaim set up in the answer. This counterclaim, however, as set forth in the answer, is grounded on a tort, to wit, the false representation by the plaintiff that he was a competent architect, whereas he was not, by which false pretense of competency the defendant was induced to procure from plaintiff, and to accept, improper plans and ■specifications he otherwise would not, whereby he suffered loss. This action is founded upon a contract. A counterclaim in tort cannot, therefore, be interposed. Piser v. Stearns, 1 Hilt. 86; Drake v. Cockroft, 4 E. D. Smith, 34; Corrigan v. Ritter, 39 St. Rep. 311. Owens v. Ackerson, 1 E. D. Smith, 691, is not in conflict with these decisions. In that case the answer set up as a counterclaim money due to the defendant from the plaintiff for matters not connected with the contract, but arising out of the contract, and, of course, it was properly ■ allowed. But, entirely aside from this consideration, and admitting that the counterclaim could properly be presented, still the questions objected to and the testimony excluded could, in our judgment, have worked no injury to the defendant. They were, if admitted, very far from, proving the incompetency of the plaintiff as an architect. It is clear, however, from the computations made by the referee in this case, that there was an error in the result arrived at by him.

The l’eferee charges the defendant the contract price.. $2,355 06
Extra work.................................... 223 28
Interest.................................. 19 46
Total...................................... $2,597 74
• And gives the following credits :
Payments on account.................. $1,950 80
Omissions to be deducted.............. 71 15
Payment on account of extra work...... 20 00
Sum stricken from case because plaintiff refused to answer question with respect to it. 10 00
Total...................................... $2,051 95

Deducted from the former amount, leaves the balance. $ 545 79 —only due the plaintiff, whereas the referee, in his first conclusion of law, directs judgment against the defendant in the* sum of $576.64, which is $30.85 in excess of the amount shown by the tabulation above. The judgment must therefore be modified by reducing the amount allowed to $545.79,.and, as thus modified, should be affirmed, but, under the circumstances, without costs. All concur.