author: Barnard, P. J. Pratt, J. (dissenting).

text:
    Maria L. Davis, Adm'rx, Resp't, v. The New York, Lake Erie & Western Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Master and servant—Negligence—Evidence.
    In an action to recover for the death of a servant while shoveling coal in a bin caused by the giving way of a partition, the opinion of a witness as to the sufficiency of the braces or anchors to hold the crib-work is inadmissible. (Pratt, J , dissents.)

      (Gerbig v. W. T., L. E. &W. R. R. Go., 51 St. Rep., 534, followed.)
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial. Action to recover for the death of plaintiff’s intestate. The deceased was an employe of defendant and was engaged in shoveling coal in one of the bins, when the partition between the one he was in and the next one gave way, and the coal from that bin and the partition fell on him, causing his death. On the trial one of the witnesses was allowed to testify that anchors of the length used in this structure were insufficient.

      Lewis E. Carr, for app’lt; Frank Comesky, for resp’t.
   Barnard, P. J.

The death of the plaintiff’s intestate was occasioned by the same accident which occasioned the injury to George Gerbig, whose case was heard upon appeal in the court at the last December (1892) term. 51 St. Rep., 534. The questions put to the witness Ferguson, a civil engineer, calling for his opinion as to the safety of the crib which gave way and caused the accident, are similar, in principle, to the questions considered in the Gerbig case. It was therein held that the questions admitted assumed the functions of the jury upon questions of fact.

The judgment and order refusing a new trial should be reversed and a new trial granted, costs to abide event, oil the opinion in the Gerbig case.

Dykman, J., concurs.

Pratt, J. (dissenting).

This is an appeal from a judgment entered upon a verdict by a jury and from an order denying a motion for a new trial upon the minutes.

It is objected that a photograph of a portion of the bin where the accident did not take place was admitted in evidence.

It was admitted solely for the purpose of showing the plan of construction, and so qualified by the court. There was no dispute that it correctly showed the general plan of construction and in no way could mislead the jury or prejudice the defendant. McCarragher v. Rogers, 120 N. Y., 532; 31 St. Rep., 595, and cases tliere cited.

Neither do we think it was' error to admit the opinion of experts. The questions in issue were not subjects of general knowledge, but involved engineering skill and long practical experience to elucidate.

It has always been allowed to examine experts in mechanics, such as bridge building, the operation of all kinds of machinery; in fact, in almost every art and science.

The structure of these bins, the direction and amount of strain to be applied when used; the size, strength and durability of the material and the manner in which it was constructed, were subjects that could not well be placed before the minds of the jury by a mere description. It required peculiar knowledge and skill, and was the result of practical experience.

In Oties v. Cowles Electric S. & A. Co., 26 St. Rep., 869, the plaintiff was injured by the fall of a derrick, and the court held that it was competent to show bjr the evidence of experts what was a safe and proper way of erecting and supporting the mast.

The rule is well stated by Mr. Justice Brown, in Van Wychlen v. The City of Brooklyn, 118 N. Y., 424; 29 St. Rep., 790; “ That. upon which the opinion of witnesses may be given must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge which exist in reason rather than descriptive facts, and, therefore, cannot be intelligently communicated to others not familiar with the subject so as to possess them with full understanding of it:” Under this rule we think the evidence was properly admitted.

It may be said that all expert evidence, although given in the form of an opinion, is, nevertheless, this of facts which skill and experience have taught the expert always exist in connection with certain other facts.

Take the ordinary case of asking a physican or surgeon the cause of death where full history of the case is given. He answers in the form of an opinion, but it is, nevertheless, a fact which he knows from experience always follows the facts submitted in the particular case.

Such facts are known to the expert to the same degree, of certainty that a mathematician knows the result of a problem in mathematics.

Much stress is laid upon the contention that the evidence does not support the verdict. If it was the duty of the jury to believe all the testimony of defendant’s witnesses without qualification, and notwithstanding the other facts in the case, there may be some foundation for this contention, but it was the right of the jury to pass upon the whole evidence, and we cannot say the verdict is not fully sustained by the evidence.

Taking into consideration all the evidence, the jury were at liberty to find neglect of dtity on the part of defendant in several particulars, and they have done so, and the verdict must stand.'

Judgment affirmed, with costs.

Judgment reversed and new .trial granted, costs to abide event.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    In the Matter of the Application of The Board of Health of the City of Yonkers to Punish John Copcutt for Contempt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Contempt—Violation of injunction.
    In an action brought by the board of health, an injunction was granted restraining the defendant from drawing off the water from certain mill ponds below the level of the dams, pending said action. The defendant, however, did so, and although notified and informed that a cessation of such violations would secure indemnity for the past, paid no attention thereto. Held, a proper case for punishment for contempt.
    Appeal from order adjudging John Copcutt in contempt for violation of an injunction order, and imposing a fine.
    On the 8th day of July, 1891, an order to show cause, containing a temporary injunction restraining John Copcutt, his agents, servants and officers from drawing off the water from the mill ponds of the Nepperhan river in the city of Yonkers, known as the first, fifth and sixth water powers, between the 1st day of May and the 1st day of November, so as to expose the surface of the ponds below the level of the- dams, was obtained by the board of health of the city of Yonkers in an action then commenced by said board of health against John Copcutt. That order to show cause was regularly served upon John Copcutt, and was made returnable at the city of Poughkeepsie, before Mr. Justice Barnard, on the 10th day of July, 1891. On the return day of said order, after hearing counsel for the board of health in support of the application to continue the injunction, and counsel for Mr. Copcutt in opposition thereto, Mr. Justice Barnard continued the injunction, and made it permanent pending the action.
    In the month of August, 1892, the board of health directed the city attorney of Yonkers to institute proceedings against John Copcutt for violating the terms of the injunction order. The city attorney thereupon wrote a letter to Copcutt informing him that proceedings would be commenced unless he ceased violating the provisions of that order. Upon receiving such letter John Copcutt called upon the city attorney, and, in the presence of the mayor of the city of Yonkers, admitted that he had been violating the provisions of the order in question, a copy of which order was then exhibited to him; admitted that he had been served with the order, and knew all about it, and asked that the city authorities should not compel him to comply with the terras of the order. Such request was refused, and Gopcutt persisted, declaring, that the health officer had power to grant the request, and at his solicitation the mayor made an appointment with him to meet the health officer on the following day. On the following day John Gopcutt did meet the mayor and the health officer, and requested the health officer to permit him to withdraw the water below the level of the dams, contrary to the terms of the order of this court. Again his request was refused; but he continued, notwithstanding such refusal, to violate the terms of the foregoing order, and withdrew the water below the level of the dams. And on August 31, 1892, the board of health, through the city attorney, obtained an order to show cause why John Gopcutt should not be punished for contempt for violating the terms of the order above mentioned.

      Arthur J. Burns, for app’lt, Copcutt; James M. Hunt, for resp’t, board of health.
   Dykman, J.

This is an appeal from an order of the special term Gopcutt guilty contempt violating an injunction of this court, and imposing a fine upon him for such violation.

The objections to the order are mostly technical, and but a very faint effort is made to deny the offense.

The proof of violation of the injunction is amply sufficient and the technical objections are not well founded.

The defendant has manifested no disposition to yield obedience to the mandate of the court, although it related to a matter of the utmost importance to the public.

Previous to the institution of the proceedings to punish the defendant for contempt he was notified of»his violation of the injunction, and informed that a cessation of his contumacy would secure immunity for the past, but he gave no heed to the notification.

If the process of the court is to be vindicated this order must be upheld.

The order should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.


author: Pratt, J.

text:
    Henry McCarten, Resp't, v. John B. Flagler, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Negligence—Obstruction of sidewalk.
    Plaintiff, while passing defendant’s store at nine o’clock in the evening, had his pants caught on a nail protruding from a hox standing on the sidewalk. Held, that whether the obstruction was necessary in the transaction of defendant’s business, and with reasonable regard to the rights o£ the public, was a question of fact, and that a finding thereon in favor o£ plaintiff was justified.
    2. Same.
    The danger from the protruding nail was one which plaintiff was not called upon to expect, even if he saw the box.
    3. Same—Evidence.
    In an action for such injury, evidence of the maker of the pants as to their value when new is admissible, as such value, the time and amount of wear and the extent of the injury furnish a sufficient basis for arriving at the damages sustained.
    Appeal from judgment of the Dutchess county court, affirming judgment of a justice’s court in favor of plaintiff.
    The following is the opinion of the court below:
    Guernsey, J.—This action was brought to recover damages from the defendant, a merchant doing business on Main street, in the city of Poughkeepsie, for placing and permitting a box of merchandise to obstruct the sidewalk in front of his store.
    The testimony shows that the box was brought on the street between seven and eight o'clock in the morning, and allowed to remain until about half-past nine o’clock in the evening, when, an employe attempted to bring it in and turned it over on the sidewalk. That box was about two feet long and one foot in depth and width.
    From the box a nail protruded from a half inch to two inches as stated by different witnesses.
    The plaintiff in passing the box after it was moved by the employe had his pants caught on the protruding nail and tom so that they could, not be mended.
    Plaintiff was walking with two others abreast and stepped ahead of them to pass the box.
    Pedestrians have a right to the unobstructed use of the sidewalks in cities, with exceptions justified by necessity or public convenience. Merchants may transfer goods from the street across the sidewalks to their store-rooms. The time and manner of such use must be reasonable with reference to the rights of the public and there must be also due diligence on the part of one so using the sidewalk for his own business purposes to keep the passer by from injury.
    There is nothing in the evidence to show that plaintiff did not exercise reasonable care in passing along the sidewalk by the box.
    The question whether the obstruction was necessary in the transaction of defendant’s business and reasonable in regard to the rights of the public is a question of fact depending on all the distances of the case.
    The court below has found on the facts in the case against the defendant. The evidence justifies the finding. A small box was permitted to obstruct the street from early morning, and if not on sidewalk before, was there concededly some time before and until half-past nine P. M. It may well be said there was no business necessity for having the box on the sidewalk at such an hour of the night, and none was shown or attempted to be shown. The defendant, for all that appears, would have escaped collision with the box had it not been for the protruding nail. This was a danger he was not called upon to expect, even though he saw the box.
    As to the amount of damages, it does not seem excessi ve. The evidence is that the pants had been purchased a month before and worn a little, but were new, and so torn they could not be mended. Evidence as to the cost was excluded. The maker of the pants testified he knew the value of such goods, and was asked: “How much were they worth when new?” which defendant objected to and the trial court overruled the objection and gave exception. The answer was nine dollars.
    The question was proper. The value of the pants when new, the time and amount of wear given and extent of damages caused by contact with the box formed, a good and substantial basis for arriving at the injury plaintiff had sustained, which seems to have been reasonable and justly found.
    The judgment is affirmed, with costs.

      William C. Albro, for app’lt; Wood & Morschauser, for resp’t.
   Pratt, J.

Judgment affirmed on opinion of county judge.

Barnard, P. J., and Dykman, J. concur.


text:
    James McCaldin, Resp't, v. William A. Parke et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    1. Negligence—Whare owner.
    Where the owner of a wharf undertakes that a vessel 190 feet long and sixteen feet draft can unload at his dock, it is his duty to know that the undertaking is based on the fact represented, and the omission to know this is negligence.
    2. Same—Evidence.
    In an action for injuries to the vessel caused by running on sunken rocks while entering the wharf, evidence to show that the vessel was properly loaded is admissible.
    8. Same.
    The admission of the bills for repairs, as introductory to evidence of their payment, is proper.
    Appeal from judgment in favor of plaintiff, entered upon verdict.
    The plaintiff was the owner of the steamship Caroline Miller, 190 feet long, which, by charter-party, dated December 24, 1886, was chartered to the defendants, W. A. Parke & Company, for a period of eleven months from January, 1887, to carry lumber from Port Royal to New York.
    She arrived in New York, on her third charter trip, on April 12, 1887, having been ordered by the defendants to discharge at their yard at Hunter’s Point. While approaching the wharf she struck upon a rock in close proximity thereto and received injuries, the repairing of which amounted to $6,320.24. The demurrage named in the charter-party was $100 a day, for twenty-two days, and it was proven that the vessel was detained twenty-two days while undergoing repairs, the whole damage amounting to $8,520.24.
    The plaintiff collected from the underwriters the sum of $4,-496.76, leaving a balance of $4,023.48 for which, with interest from August 1, 1887, as agreed to, the jury found was due the plaintiff.

      The steamship was on her third trip when she met with the accident. She carried 454,909 feet of lumber, and on other trips carried larger quantities of lumber without accident.
    It is proven that she was drawing about fifteen feet, six inches. The defendants contracted that they would have sixteen feet of water, and were informed what the draft of the steamer was to be.

      Edward M. Shepard, for app’lts; W. W. Goodrich, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon a verdict, and from an order denying a motion for a new trial.

The principles of this case were passed upon in a former appeal, 50 St. Rep., 262, and, therefore, there is nothing to be examined at present except the question whether there are any valid exceptions to the rulings of the court upon the trial.

No violation of the principles laid down in the opinion upon the former appeal are pointed out by the appellant, and we find none in the case, and we, therefore, refrain from discussing anything in the case except questions that were not raised in the former appeal.

The exception to the introduction of the bills paid by the plaintiff for repairs was not well taken, as they were merely introductory to evidence of payment, which was put in with the bills.

Neither was the exception to evidence that the vessel was properly loaded error.

In fact, all the exceptions to the admission of evidence are without merit, the evidence objected to being a necessary part of the plaintiff’s case, or proper to meet suggestions and inferences made by the defendants.

There are many exceptions to the charge of the judge, but we fail to find error prejudicial to the defendants in any one of them. The majority of them related to questions of fact, which were properly submitted to the jury under the former general term opinion. If that opinion properly states the law of this case, there is no error.

The amount of damage was fixed in the contract of employment.

All the questions discussed in the brief of the defendants relate to principles raised upon the former appeal, and require no discussion at this time, as we adopt and adhere to the former opinion, and affirm the present appeal upon it

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Barnard, P. J.

text:
    Edith W. Austin, Adm'rx, Resp't, v. The Long Island Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed May 8, 1893.)

    Negligence—Railroad crossing.
    Plaintiff’s intestate, when about to cross defendant’s tracks at the crossing of a street which was not a public highway, but was largely used by pedestrians for that purpose, looked to the east and saw no train; on then attempting to cross, he was struck by a train coming from that direction. It appeared that there was a sign board on defendant’s right of way that obstructed the view except for 125 feet, while without it the track could be seen for a mile. There was a conflict of evidence as to whether the bell was rung or whistle sounded. Held, that there was sufficient evidence to submit to the jury on the questions of negligence and contributory negligence.
    Appeal from judgment in favor of plaintiff, entered on verdict.

      E. B. Hinsdale, for app’lt; L. C. Whiton, for resp’t.
   Barnard, P. J.

On the 28th of June, 1891, John H. Austin, the husband of the plaintiff, was killed by a train upon the defendant’s railroad. The accident happened about mid-day, and near Woodhaven Junction, in Queens county. The deceased was on a street called Ocean avenue, but which appears not to be a public highway, but one commonly used by pedestrians as a place ■of crossing the tracks of the Long Island Railroad Company. The train which struck the deceased comes from the east. It was proven that when the deceased and his companions got within about fifty feet of the crossing, he looked east They saw nothing ; but, in point of fact, there was a train coming east which was hidden by a sign-board with two sides at right angles, each arm being about twelve or thirteen feet long. This sign hid from view about 850 feet of the defendant’s track, and giving only about 125 feet of actual view of the track west of the sign-board. The deceased started rapidly to cross the road of the defendant, and was hit and killed. While it was a question upon the trial whether the bell and whistle were sounded on approaching Ocean avenue, it was found by the jury that no alarm was given. Without the sign-board, an unobstructed view of about a mile would have been given eastward from Ocean avenue.

This proof was sufficient proof of negligence to go to the jury. The sign-board was on defendant’s right of way, and it was so placed that a traveler across the avenue could infer.from the view of the track that he had a mile in which to go fifty feet; while, in point of fact, he might have but a little over 100 feet.

The proof established that the westward view was obstructed, calling for vigilant attention upon the part of deceased to avoid danger from that quarter. That he had protected himself from the east by a. view which did not protect him by reason of defendant’s sign-board.

Whether the deceased looked at the right moment exactly, and in the right direction successivelv, is a question of fact. Greany v. L. I. R. R. Co., 101 N. Y., 419; Oldenberg v. N. Y. Central R. R. Co., 36 St. Rep., 402.

If there was enough evidence to go to the jury on the question of the negligence of defendant, there was also sufficient to submit to them the question as to the freedom of deceased from any contributory negligence on his part. If the defendant had not obstructed his view from the east, he could have saved his life; and the question whether he was careless in looking to the east fifty feet from the crossing, and not afterwards, if they should so find the fact to be, was for the jury. Swift v. Staten, Island R. R. Co., 123 N. Y., 645; 33 St. Rep., 604.

The judgment and order denying new trial should be affirmed, with costs.

Dtkman and Pratt, JJ., concur.


author: O'Brien, J.

text:
    Josephine F. Clason, Resp't, v. Elizabeth S. Baldwin, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Ejectment—Mesne profits—Appeal.
    It is too late to raise the objection for the first time on appeal, that the amount of the verdict for mesne profits directed by the court in an action of ejectment exceeds the amount claimed in the complaint.
    2. Same—Harmless error.
    In an action of ejectment the motion of plaintiff for a direction confined the recovery of mesne profits between the dates beginning with the commencement of the action, down to the date of the trial, and the computation was made as of such dates, there being no dispute about the amount. Meld, that the fact that the court in directing a verdict said that the plaintiff was entitled to recover such profits for six years prior to ' the commencement of the action was a mere harmless slip and cannot be assailed as error on appeal.
    3. Same—Taxes—Evidence.
    In such case, the offer of defendant to prove the payment of taxes on the property in suit was properly rejected, the taxes not having been imposed nor paid for any of the period'for which damages were awarded nor was the defendant under any obligation to pay them.
    Appeal by the defendant from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial in an action of ejectment.

      Isaac N. Miller, for app'lt; Thamas M. Wyatt (George W. Stephens, of counsel), for resp’t.
   O'Brien, J.

At the close of the both sides moved for a direction, the defendant on the ground that plaintiff had failed to prove possession in herself, or her ancestors or predecessors, within twenty years next before the commencement of this action, and upon the further ground that defendant had shown that she held possession under a tax title, the validity and regularity of which had not been successfully impeached. The plaintiff asked for a direction in her favor, which was granted by the court, and a verdict for the recovery of the property, together with the mesne profits, was directed. The contest between these parties with respect to the title to this property has been twice before the general term, and once to the court of appeals. 31 St. Rep., 350; 37 id., 213; 129 N. Y., 183; 41 St. Rep., 496. These decisions render unnecessary a statement of the facts, or any extended discussion of the law.

It would seem that the only difference between this record and that presented for review in 129 N. Y., 183; 41 St. Rep., 496, is that the defendant resorted to the tax title as a defense. We have examined the testimony relating thereto, and the grounds upon which such title is assailed, and we agree with the view taken by the learned trial judge, that the plaintiff succeeded in destroying its force and effect as a defense. Apart, however, from the .question of title, it is insisted that it was error of law for the court to direct a judgment for $5,337, by way of damages for mesne profits. It is suggested that, inasmuch as the complaint demanded but $5,000, no greater amount could be awarded. The answer to this, however, is that no such objection was made upon the trial, nor was the court’s attention directed to this difference between the amount demanded in the complaint and the amount awarded, and, had it been, it would have been entirely within its power to have permitted an amendment to include such excess, the question of damages in such an action being incidental to the main relief, which was to recover possession of the property. Another argument urged is that the court, in directing a verdict, in the language used in the address to the jury, said, in substance, that the plaintiff was entitled to recover mesne profits for six years before the commencement of the action. It is evident, however, from the context, that this was a mere slip, which in no way prejudiced the defendant. The motion made by plaintiff for a direction confined the recovery of such profits between the dates beginning with the commencement of the action, down to the date of the trial, and the computation was made as of such dates, and not for six years before the commencement of the action, as stated by the trial judge. This being a mere harmless slip, and the record showing that there was no dispute about the amount, and the court’s attention not having been called to the difference between the amount awarded and the amount demanded, it cannot be assailed by the defendant as error upon this appeal. The defendant sought a credit for moneys paid for taxes for the years 1881 and 1882. The offer to prove such payment, having been made, was, we think, properly rejected. These taxes were not imposed nor paid for any of the period for which damages were awarded. The defendant was not under the slightest obligation to pay them, and, we think, besides, that no sufficient ground was made to render the certificate competent evidence. There being no other questions in the case requiring discussion, we are of opinion that the judgment appealed from should be affirmed, with cos's;

Yah Brunt, P. J., and Follett, J., concur.


text:
    Therese Murphy, Adm'rx, Resp't, v. Frank K. Hays et al., App'lts.

      (Supreme Court. General Term, First Department

      Filed April 14, 1893.)

    1. Negligence—Elevators.
    In an action to recover damages for negligence, it appeared that plaintiffs’ intestate was a ding in taking a safe from an elevator in defendant’s building and that the elevator started up when the safe was half removed, causing it to tip over and throw intestate through the grating and down the opposite elevator shaft, killing him instantly. Experts were called to show defendant’s negligence, and testified that the elevator’s starting up must have been caused-either because there was pressure on, or air in the cylinder, which the engineer must have known. The engineer testified that the pressure was entirely shut off, but was not questioned as to there being air in the cylinder. There was no conductor in the elevator, its makers having advised that it was safest to leave its control entirely with the engineer, directed from above by the janitor. Plaintiffs’ witness testified that he heard the janitor call to the engineer to keep up the pressure. Held, that the complaint should have been dismissed.
    2. Appeal—Refusal to dismiss complaint.
    When an exception is taken to a denial of a motion to dismiss the complaint, the appellate court may, on appeal, consider whether or not such exception is well taken, and in determining that question must assume that the plaintiff has included in the case all the testimony produced by him upon the trial which he regarded as essential to sustain the ruling made by the court in refusing to dismiss his complaint.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial in an action to recover damages for the death of plaintiff’s husband, caused by the defendants’ alleged negligence.

      Chas. C. Nadal (Thomas S. Moore, of counsel), for app'lts; J. Washbourne Smith and Nelson Smith, for resp't.
   O'Brien, J.

The plaintiff sues as administratrix to recover damages for the death of her intestate, caused, as alleged, by the negligence of the defendants. The intestate was in the employ of the Marvin Company as a safe mover, and was killed while transferring a safe to an office on the seventh floor of defendants’ building. In this building were two passenger elevators, one of which was constructed for the purpose of carrying freight as well as passengers. The complaint alleged that the defendants, “ by and through their wrongful, negligent and careless acts and omissions in the management of the said elevator, while the safe was being taken up and off the said elevator, caused the death of the said Patrick Murphy, without fault on the part of the said deceased.” The defendants’ building had been recently constructed, and no claim is advanced but that the machinery and elevators were of the newest and most approved pattern, and in all respects suitable for the uses for which they were designed, including the hoisting of safes from the ground floor to any of the other floors occupied by tenants. The evidence shows that, on the day of the accident, plaintiff’s intestate, with several others who were in the employ of the Marvin Safe Company, had placed the safe on the elevator, which was then set in motion, and rose until it reached the seventh story of the building, at which place it was intended to remove the safe, and place it in one of the offices on that floor. When the elevator stopped, two iron shoes were put under, and the car lowered so as to rest thereon.

These iron shoes, which had been made according to the recommendation, and under the direction, of an experienced man, were for the purpose of bracing the elevator when it had arrived at the proper floor, and so relieve the strain on the cables while the safe was being removed. They consisted of two broad pieces of iron, which extended beneath the floor of the car, and then making a double angle, projected out over the floor of the hallway. After the elevator was thus lowered upon the shoes, according to the testimony of certain of plaintiffs witnesses, the car began to sag, and the janitor shouted down the elevator shaft to the engineer in the basement to put on some pressure. Whether the pressure was put on or not, it is uncontradicted that the car was brought to a standstill, the flooring was evened up, and four or five men got hold of the safe, some at the sides, and some in front, and pulled at it, to run it out into the hall. While so engaged, and after the safe got partly out of the car, plaintiff’s witnesses testify that the elevator rose suddenly, but gradually, about three feet, tipping the safe over, and throwing Murphy, the intestate, who was standing in the hall, in front of the safe, through the grating, and down the opposite elevator shaft, killing him instantly. Although a different view as to the cause of the tipping over of the safe was advanced by the defendants, we shall, in our discussion, assume the claim as to the rising of the elevator having caused the safe to be overthrown to be the correct theory.

The fact that the accident occurred under the circumstances narrated, would not, under the well-settled rules, entitle the plaintiff to recover. The burden was upon her to establish the liability of the defendants, and to do this she was bound to show that the death was caused solely by the defendants’ negligence. The plaintiff, recognizing this to be the rule of law, undertook to support this burden by endeavoring to show that what produced the movement of the elevator, and the throwing over of the safe, was the result of such negligence. She did not claim, as shown, that any reliance was placed upon defective machinery or appliances, but rested upon the contention that the accident resulted from the negligent management of the elevator while the safe was being taken off.

Expert testimony was introduced, directed towards establishing that the jumping up of the elevator was caused in one of two ways: First, because the engineer had pressure on; or, second, because there was air in the cylinder, and that to whichever of these causes it was due, it was equally the negligence of the defendants. One of the experts, in answer to the question, “ What would cause the elevator to ascend after it had stopped, and was stationary ? ” said: “ That would be caused, in the experience I have had, in two or three ways ; one cause would be that it would have to be operated by somebody operating the hand rope. Another cause would be that when „ the car was brought to a rest, with a heavy load on it, this valve below here, the operating valve, wasn’t closed, or there may have been air in the cylinder. Some additional pressure would have to be applied. If pressure was suddently put on the car would ascend."

How sound are these theories, supported as they are by the opinions of experts, must be determined by the facts proven, upon which they rest. That any one operated the hand rope was discarded. The plaintiff called the engineer of the defendants, who was in charge of the elevators at the time of the accident, and who testified that the equipment of the elevators consisted'of the regular pump and tank pressure • system used for passengers, in which the water is pumped into a tank, and thence into the cylinders, and the pressure is regulated by the elevator conductor by means of the wire rope which passes through the car and connects with the valve, and that in addition there was provided for the freight elevator, to raise the heavy safes, another pump known as the “ high-duty pump,” which forced the water directly into the cylinder without the intervention of a tank; that upon this day the power communicated to the elevator was not from the pressure tank at all; that in hoisting up this safe that day “the power was communicated directly into the circulating pipe. The valve of the pressure tank has to be closed when we are using the freight pump, so we can’t work both of those pumps at the same time with the same elevator. Upon this day, when this accident happened, we were using only one- pump, the pump that I call the the ‘high-duty pump.’ ”

He further testified that after the' elevator became stationary, and the shoes had been placed beneath it, there was no pressure, it having been entirely shut off. Against this positive evidence we have the testimony of witnesses who claim to have heard the janitor on the seventh floor call down to the engineer to “ hold the pressure,” or “keep up the pressure,” which the engineer states he did not hear, and, as matter of fact did not do, followed by opinions of experts that if the pressure was on, upon the weight of the safe being partially removed, it would result in the rising of the elevator. We do not think such evidence sufficient to justify the inference that there was pressure on, particularly when we remember that the car did not continue to rise after the safe had fallen. It would be difficult to understand, upon the theory that the rising was due to continuous pressure, how the elevator, with the safe partly upon it, could have risen three feet, upsetting the safe, and then have stopped, when relieved of the weight after the safe had fallen. It would seem that the effect of such pressure, if it had existed, would have been, not only to upset the safe after raising the elevator three feet, but to cause the elevator to rise until it reached the top of the building, unless sooner stopped by the engineer cutting off or removing such pressure. Equally without evidence to sustain it is the hypothesis that there was air in the cylinder. One of plaintiff’s witnesses testified that the engineer in charge could have known if there was air in the cylinder, and, although this very person was examined upon the other point, he was not questioned as to whether or not such fact existed. In the absence, therefore, of some evidence, it would be mere conjecture and guess-work to assign as the cause of the elevator’s rising that there was air in the cylinder.

Apart from these theories, the plaintiff lays great stress upon the fact that there was no conductor in the elevator car, and this is assigned as an act of negligence. When, however, we consider the reason given by the engineer, of the possible danger of having a conductor on the car, though one was provided for the elevator when used by passengers, and upon this occasion was present, but not in the car, we do not think that upon this circumstance negligence can be predicated,notwithstanding the opinions of some of the experts to the contrary. The failure on this day to make use of the conductor was not a thoughtless omission, but a deliberate act. It • was the result of advice received, and the judgment of the engineer himself, as to the best and safest way of running the elevator; it being thought best to keep the entire control in the hands of the engineer, and permit his being directed from above by orders, which,on the day in question,were given by the janitor, who was on the floor with the elevator, and without the intervention or assistance of any conductor upon the elevator car itself. That it was not negligent to act upon their best judgment, and the advice of those who had constructed the elevator, must become apparent if for a moment we stop to consider what would be the effect of their acting contrary thereto, in the event of an accident occurring. It was the view and judgment of those who constructed the elevators, and who knew the character of the pumps, and the extent of the power required for raising large safes, and of the engineer, who had prior to this time adopted the system, that the safest and best mode was for the the engineer to have complete control over the movement of the' car, and that the interference of a conductor on the car would be a source of danger, on account of the high pressure employed. Under such circumstances, the permitting of a conductor on the car to interfere with the movements thereof, should it result in injury to a third person, would leave the defendants in a position that they would have no ground of escape from their liability for negligence. And this liability would follow, notwithstanding they were able to show that janitors or engineers in other buildings approved of this very method of operation.

In this discussion we have confined ourselves entirely to the evidence presented upon the part of the plaintiff, and which we have considered with a view to determine whether the motion made at the end of plaintiff’s case to dismiss the complaint should or should not have been granted. On this record, if not controlled by the disposition which we think should be made of the case upon the motion to dismiss, we could not consider the question as to whether or not the verdict is against the weight of evidence, for the reason that there is no statement that the case contains all the evidence, and under the well-settled rules of practice the only matters presented for review would be the judgment roll and exceptions. An exception having been taken, however, to. the denial of the motion to dismiss the complaint, we are at liberty to consider whether or not such exception is well taken; and in determining that we must assume that the plaintiff has included all the testimony produced by him upon the trial which he regarded as essential to sustain the ruling made by the court in refusing to dismiss his complaint. We have examined all of plaintiff’s evidence, and unless we were to hold, contrary to the rule laid down in Cosulich v. Standard Oil Co., 122 N. Y., 118; 33 St. Rep., 287, and kindred cases, that the fact of the elevator’s rising, and causing the safe to tip over, raised a presumption, or was a fact from which an inference of negligence could properly be drawn, then there was no other evidence in the case to prove that the death of plaintiff’s intestate was caused by defendants’ negligence.

The only direct or positive evidence given as to the manner in which the pumps and machinery which raised the elevators were actually handled was that given by the engineer of the defendants, when called as a witness for the plaintiff, and his testimony was directly opposed to any suggestion or inference of negligence. And, apart from him, the only evidence having the slightest tendency to show defendants’ negligence consists of the opinions of experts, who suggest possibilities and theories to account for the movement of the elevator. These suggest causes which, if proven as facts, might be sufficient to present a question for the jury; but where, as here, plaintiff’s proof of the cause of the elevator's movement begins and ends in a theory, and the cause itself is not proved, no definite theory or opinion ‘being given as to ■ exactly what occasioned such movement, a verdict founded upon such hypotheses and theories, in the absence of testimony to support them, cannot be sustained. “Whatever might have been the cause of death, it was for the plaintiff to show how it occurred. The burden of proof lay upon her to establish the liability of the defendants, and to do this she was bound to show affirmatively, not only the absence of contributory negligence on the part of her intestate, but the negligence of the defendants in respect to some matter which caused the injury complained of.” Per Ruger, Ch. J., in Dobbins v. Brown, 119 N. Y., 195; 28 St. Rep., 957. As in that case, so it may be said here: “Any inference that the accident happened in the manner suggested would, it seems to us, have been substituting conjecture for proof, and violated the rule requiring proof always to be made the basis of á recovery.” We are of opinion, therefore, that the motion to dismiss the complaint should have been granted ; and this necessitates that the judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.

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


author: Per Curiam.

text:
    Jeanie R. Maddock, Resp't, v. George Steel, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Partnership—Interest.
    Where one person agreed to become a partner of another for the purpose of complying with the statute prohibiting the use by a partnership of names of persons not interested in the business, such person becomes a partner in fact, liable for the debts of the business to third parties, and entitled to the protection of the court to compel the application of the firm property to the payment of such debts, and the other person cannot come into a court of equity and claim that, because the interest was not sufficient, no partnership existed.
    Appeal from an order continuing an injunction pendente lite against defendant and his agents.

      George C. Blanke (Andrew W. Kent, of counsel), for app'lt; Hinrichs & Rudolph (Frederick W. Hinrichs, of counsel), for resp’t.
   Per Curiam.

This action is to wind the affairs of the firm of Haddock & Steel; the plaintiff claiming that she, together with the defendant, composed said firm. The only question presented here is whether the relation of partners existed between the plaintiff and defendant, so that she (the plaintiff) might maintain this action. It appears that prior to September 1, 1889, one Henry Haddock had been carrying on business in the city of New York, and upon said date an agreement was entered into between the said Henry Haddock and George Steel, who had been a clerk of Haddock prior to that time, looking to a continuation of the business by said George Steel, and the use by him of the name of Haddock, either alone or jointly with his own name; one. of the objects of such continuation plainly being the keeping of said business in existence until one Sidney Haddock, a son of Henry Haddock, should become of age, which would occur on the 26th of January, 1893. After providing for the continuation, for the contribution of capital, b) the agreement Steel agreed to employ said Sidney Haddock in the business from the 1st day of January, 1890, and to pay him for his services sums of money equal to one half of the net profits, after deducting interest on capital at six per cent per annum, which profits should be determined yearly, and to admit" him as an equal partner on the 26th of January, 1893, upon his contributing to tbe capital a sum in cash equal in amount to that contributed by Steel, and then standing to his credit on the books. Steel thereupon continued said business, using the name of Haddock, and on the 20th of December, 1889, it being discovered that it was improper to use the name of Haddock in the style of the firm, in the absence of a partner by that name, on said date an additional agreement was entered into between Henry Haddock and George Steel, in which agreement Jeanie E. Haddock joined. This agreement was to the following effect:

“ Whereas, it is the desire of the parties to the foregoing agreement,” referring to the agreement of September 1,1889, “ that the business therein set forth shall be conducted under the name of Haddock & Steel; and whereas, it is doubtful whether the name of Haddock can be legally used until Sidney Haddock attains his majority and becomes a partner, in 1893; and whereas, Jeanie E. Haddock, wife of Henry Haddock, has consented to become a partner in the mean time: Now, therefore, for the purpose of enabling George Steel to carry on the business under the name of Haddock & Steel, Jeanie E. Haddock is hereby constituted a partner under said agreement until January 26, 1893, and her interest is hereby declared to be one-half of the compensation provided in said agreement to be paid to the said Haddock.”

The business was thereupon carried on under the name of Haddock & Steel, and it being claimed upon the part of the plaintiff that the defendant, George Steel, was seeking to gain control of the business and assets, to her exclusion, and to her pecuniary prejudice, this action was brought.

Upon the part of the appellant it is urged that the plaintiff in this action had no such interest in the partnership business as gave her the rights of a partner. But, in our opinion, the question as to the right of the plaintiff to maintain this action does not depend upon the interest that she may have in the assets of this copartnership, but it does depend upon the fact as to whether the relation existing between herself and Steel was that of copartners.' This rests upon what was agreed between these partners. For the purpose of avoiding the penalties of the statute preventing the use of the names of partners who were not interested in the business, this subsequent agreement was made, as appears upon its face, and business was conducted under it. Now, after the parties have agreed between themselves, for the purpose of avoiding a prohibition contained in a statute, that they are partners, certainly they cannot come into a court of equity, and claim that, because the interest was not sufficient, therefore no copartnership existed. All these questions of interest which have been discussed in numerous cases have arisen where it was necessary to determine, not whether the parties actually agreed to become partners, but whether, by having such an interest, they did not become partners by the mere fact of the interest which they had in the business of the copartnership. We think, therefore, that these parties, having agreed to become partners for the purpose of complying with the statute, were partners, and that the plaintiff became liable for the debts of this business to third parties; and she has a right to the protection of the court, in order that the copartnership property shall be applied to the payment of those liabilities for which she is jointly liable with her copartner, Steel.

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

Yan Brunt, P. J., and Ingraham, J., concur.


author: Van Brunt, P. J.

text:
    Patrick J. Murphy, App'lt, v. Mary Naughton, Individually and as Adm'rx, Resp't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Executors and administrators—Pleading.
    Under § 1815 of the Code, there is no misjoinder of causes of action where defendant is sued for the funeral expenses of her husband both individually and as administratrix.
    2. Same—Funeral expenses.
    An administrator is not liable in his representative capacity for the funeral expenses of his intestate; such liability is personal only.
    Appeal from judgment sustaining demurrer to complaint.

      F. Solinger, for app’lt; Kantrowitz & Esberg (M. Esberg, of counsel), for resp’t.
   Van Brunt, P. J.

— This action is brought against Mary Naughton, individually, and as administratrix of the goods, etc., of Thomas J. Naughton, deceased. The complaint alleges the death of Thomas J. Naughton, and the issuance of letters of administration upon his estate to the defendant, and her qualification ; that the plaintiff is an undertaker, and at the request of the defendant furnished casket, hearse, carriages, and other necessaries for the funeral of deceased, which services and material were reasonably worth the sum of $376.90; and that the whole of said sum was due, and judgment was demanded therefor.

The defendant demurred to the complaint upon three separate and distinct grounds: First, that it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action; second, that in the complaint two causes of action had been improperly united, to wit, an action against the defendant, Mary ÍTaughton, individually, and an action against her as administratrix; third, that the complaint did not state facts sufficient to constitute a cause of action to charge the defendant as administratrix. The court below sustained the demurrer as to the second and third grounds, and an interlocutory judgment was thereupon entered, from which this appeal is taken.

It is not claimed upon this appeal that the complaint does not state a good cause of action as against the defendant individually, but it is urged that there is no misjoinder of causes of action, for the reason that the facts stated in the complaint constituted but one cause of action; and that, having failed to sustain the demurrer on the first ground, costs should not have been awarded against the appellant. In fhe consideration. of these questions it is necessary to refer to § 1815 of the Code, because cases may exist where an action is brought for but one cause of action in which a person may be sued both in an individual and in a representative capacity. This section, so far as applicable to the case at bar, is as follows:

“ An action may be brought against an executor or administrator personally, and also in his representative capacity, in either of the following cases: First, where the complaint sets forth a cause of action against him in both capacities, or states facts which render it uncertain in which capacity the cause of action exists against him.”

A complaint may, therefore, contain a cause of action against an executor or administrator personally and in his representative capacity, without there being any misjoinder of causes of action. Consequently the court erred in sustaining the demurrer upon the ground of misjoinder of causes of action. But upon an examination of the complaint it will be seen that no cause of action whatever is alleged against the defendant in a representative capacity. She is not liable in her representative capacity for debts incurred subsequent to the death of the deceased, even though they may be incurred in respect to the administration of the estate, and although upon the passage of her accounts such indebtedness might be proper to be allowed to an administratrix. It is only a personal liability, and the defendant could only be charged personally in an action for the funeral expenses. There is, therefore, no cause of action set out against the defendant in her representative capacity. In view of the provisions of the Code, the words “ individually and as administratrix ” cannot be treated as mere surplusage, because it was the evident intention of the pleader to hold the defendant liable in both capacities ; the allegation in the complaint of the appointment of the defendant as administratrix being only pertinent to a claim against her in her representative capacity. In view of the fact that no cause of action was set out against the defendant in such representative capacity, we do not think that the court erred in allowing costs upon the demurrer. The judgment must, therefore, be modified by sustaining the demurrer only as to the third ground, and, as modified, affirmed, without costs of this appeal to either party.

O’Brien and Follett, JJ., concur.


author: Ingraham, J.

text:
    Francis H. Weeks et al., Ex'rs, Resp'ts, v. Frederick B. Esler, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Bills and notes—Sealed instruments.
    Two instruments in the form of promissory notes, signed by the president and treasurer of a corporation, had in one corner impressions of what purported to be the corporation’s seal. The instruments did not recite that the seal of the company was affixed, nor was there evidence to show that the seal impressed was the company’s or that it was affixed by authority. Held, that the court was justified in holding that these were not sealed instruments.
    Appeal from a judgment entered on a verdict directed by the court and from order denying new trial.

      Hoadly, Lauterbach & Johnson (William H. Rand, Jr., and Edward Lauterbach, of counsel), for app'lt; De Forest & Weeks (George Holmes, of counsel), for resp’ts.
   Ingraham, J.

The single question presented in this case is whether or not the two instruments sued on were promissory notes, or, in consequence of the impression upon the paper of what appears to be the seal of the corporation making the notes, became specialties, and thus lost their negotiable character. The instruments are set forth in full in the complaint, and are substantially the same, except that one is payable thirty days after date, and the other sixty days after date. Bach is in the form of a promissory note, whereby the Electric Power Company promised to pay to the order of the defendant $4,000, and is signed by Frederick B. Esler, president, and F. A. Lee, treasurer. At the lower left hand corner of each of these instruments there was impressed upon the paper the following words : “ The Electric Power Company, Incorporated. Seal, 1889.” The instruments do not recite that the seal of the company is affixed, nor is there any evidence to show that what was thus impressed upon them was in fact such seal, that the instruments were intended to be under seal, that they were in fact sealed with the seal of the company, or that said seal was impressed on them by its officers, or anyone else, with authority of the corporation.

There was absolutely no evidence, either from the instruments themselves, or from witnesses produced on the trial, to show that the seal of the company was ever impressed upon the instruments by authority of the company, or that it ever was the intention of the corporation to make the instruments, or either of them, a sealed instrument. Without some evidence of the fact of sealing, or that it was the seal of the company that was impressed upon the instruments, we think the court would not have been justified in holding, as a matter of law, that the instruments were under seal. To justify the execution of a contract by a corporation, it must appear that the corporation has authorized the person assuming to act for it in the execution of the instrument to execute it in the manner and form in which it was executed.

In this case, it is not shown that either the president or treasurer had any authority to use the seal of this corporation in the execution of these instruments, nor that, as a fact, the seal of the company was so used. In the case of an individual, who executes an instrument with a seal upon it at the time of its. execution, it is assumed that he adopts the seal then upon it as his own; and this is especially true where the instrument ends with the words, “Witness my hand and seal.” But in the case of a corporation, where its seal Can only be used with the authority of the corporation, and especially in the absence of any words in the contract indicating an intention to execute the contract as an instrument under seal, before the instrument can be held to be a specialty there must be evidence to show that the seal affixed was the seal of the corporation, and was affixed with its authority.

In all the cases cited by appellant in which* the instrument was held to be a sealed instrument, either the instrument itself recited that the parties had thereunto set their hands and seals, or words of similar import, or the fact was proved that such seal was affixed by authority of the corporation executing the paper, or was in fact its seal. Thus, in the case of Coe v. Cayuga Lake R. Co., 8 Fed. Rep., 537, Blatchford, J., in delivering the opinion of the court, says:

“ The instruments, aside from the seal of the company, have all the qualities of promissory notes, and of promissory notes made by the company as a corporation. They are in the name- of the company, it promises to pay, and it signs them by its president. But they were sealed with the seal of the company, and it was a corporation; and said seal was duly impressed on them by its president and treasurer, by its authority, at the time the notes were signed by it. From what appears in the bill of exceptions it may properly be inferred that the seal referred to was the corporate seal of the corporation, and that the words, ‘ Seal of the Cayuga Lake Railroad Company,’ appear impressed on the face of each instrument as the impression of the seal referred to, though these facts are not thus distinctly stated in the bill of exceptions.”

It will thus be seen that in the case last cited the evidence that is lacking in this case was before the court, i. e., that the seal of the corporation was affixed to the instrument in question by its authority.

In the case of Mercer Co. v. Hacket, 1 Wall., 83, the supreme court of the United States expressly held that the addition of a seal to corporation bonds, payable to bearer, does not change their character as negotiable instruments; and this rule, we think, should be followed, unless it clearly appears, either from the instrument itself, or from evidence upon the trial, that it was-the intention of the parties to the instrument that it should be an instrument under seal and not negotiable. We think, therefore, the court was justified in holding that these were not sealed instruments.

There was no request to submit the question as to whether or not the corporation had, as a fact, affixed its seal to these instruments. Each side moved for a direction of a verdict, and the parties, therefore, agreed to submit any disputed question of fact, to the decision of the judge ; and we agree with the court below in its determination that the instruments in question were not under seal, and that the plaintiffs were entitled to a verdict It follows that the judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    John Cahill, Ex'r, Resp't, v. Joseph H. Brennan, Impl'd, App'lts.

      (Supreme Court, General Term., First Department,

      Filed April 14, 1893.)

    Will—Power of sale.
    Where the only clause relating to the sale of real estate by the executor in a will and its codicil which gave legacies largely exceeding, in the aggregate, the value of the testatrix’ personal property, was “until the sale and conveyance of said premises by mv executor, as hereinafter provided, I give and devise unto my sister C. the use of the top floor of premises-known as No. 237 Bast Fifty-second street, New York city, free of rent,” Held, that there was no power of sale contained in the will.
    Appeal from a decree of the court in this action construing the-will of plaintiff’s testatrix and fixing the amount of the lien of the appellant on the leasehold premises described in the complaint.

      G. W. Cotterill, for app’lt; C. Elliott Minor, for resp’t Cahill; C. H. Morgan, guardian ad litem, for resp’t Manning.
   Ingraham, J.

The action was brought to obtain a judicial construction of the will and codicils of Elizabeth Broderick, deceased. The judgment of the court below held that the true intent and meaning of the will gave to the plaintiff, as executor, the right and power to sell the real property owned by the deceased, known as “ No. 237 East Fifty-second street,” in the city of New York, for the purpose of applying the proceeds of such sale to the pa}'"ment of the debts of the deceased, and to the payment of the legacies given by the will and codicils; that it was the intention of the deceased to convert said real estate into personal property ; and that the direction to sell had the effect of making the same personal property, for the purposes aforesaid. It was further held that the unexpired term of certain leasehold premises-held by the testatrix was personal property, and that this appellant had a lien on said leasehold premises for the sum of $399 per , annum; and the judgment directed the plaintiff, in selling said leasehold premises, to pay to said infant appellant a sum sufficient to extinguish such lien.

The infant appellant appeals from all of the judgment, except that part which adjudges that the defendant Brennan has a lien on the leasehold premises. There is thus no appeal from the provisions of the judgment holding that Joseph H. Brennan has such lien on the leasehold premises, and that question is not before us for review. The court below held that there was no general power of sale of all the real estate given to the executor, that the legacies were not a charge upon the real estate, and that the leasehold was personal property. We agree with the court below that the leasehold is personal property, and, as such, vested in the executor, to be applied in the usual course of administration of the estate. We also agree with the court below in the determination that the legacies are not a charge upon the real estate of 'the testatrix, and that there is no general power of sale contained in the will. *

The remaining question to be determined is whether there is a special power of sale as to the premises No. 237 East Fifty-second street, and an equitable conversion of said premises into personal property. The provision from which the court below inferred this power of sale is the second clause of the will. It is there provided:

“ Until the sale and conveyance of said premises by my executor, as hereinafter provided, I give and devise unto my sister Catherine Denny the use of the top floor of premises known as ‘No. 237 East Fifty-second street,’ New York city, free of rents.”

There is no provision in the will by which the executor was authorized to sell and convey this piece of property; and this power of sale must be implied, if at all, from this single provision, coupled with the fact that the will and codicil give legacies which, in the aggregate, largely exceed the value of the personal estate of the testatrix. It seems to us very clear that the court cannot infer a power of sale from this latter fact alone; for, if that can be so, in every case in which legacies are given in excess of the personal property, where the testator leaves real estate, the legacies would be a substantial charge upon the real estate.

It would be contrary to the settled rule in this state, that legacies are not such a charge unless it expressly appears in the will that it was the intention of the testator to make them a charge upon real estate. We think that the second clause of the will, standing alone, cannot be said, either expressly or by inference, to give to the executor a power of sale. In the first place, the very language used contemplates a further provision in the will as to such sale. The words are, “ until the sale and conveyance of said premises by my executor, as hereinafter provided, I give and devise," etc. Just what sale or conveyance was in the mind of the draughtsman who prepared this clause is not apparent. The conditions upon which the sale was to be made do not appear, but it is perfectly clear that it was a sale to be thereafter provided for that was intended, and not that the testatrix intended by the language used in this clause of the will to authorize the sale. It might be that she intended, if it became necessary, to subsequently authorize her executor, by a codicil, to sell; that before such codicil was executed she changed her mind, and that this condition was annexed to the devise to her sister so that such devise would not prevent the proper execution of any power to sell that she should subsequently wish to give. We cannot tell what authority to sell the testatrix intended to give to her executor, or what conditions she intended to impose upon the exercise of that power. We know that she never did give her executor an express power of sale; and to say that the testatrix intended to give a power of sale by language which limited a devise to the time that the property should be sold as afterwards provided would be to imply such intention from words that mean the exact contrary; would be to ■say that she intended to grant a power of sale by the clause in question, when, by the words used, she said she intended thereafter in the instrument to give a power of sale.

We think, therefore, that there was no power of sale contained in the will in question, and that the judgment must be modified by so declaring, and, as modified, affirmed, with costs to the plaintiff and the infant appellant, to be paid out of the estate.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Michael H. Haffey, App'lt, v. Sarah Lynch, Resp't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Specific performance—Change of conditions cannot be availed of.
    Plaintiff having purchased land at auction, refused to accept a deed because a notice of pendency of an ejectment suit was filed against the land subsequent to the sale and prior to the day fixed for the delivery of th'e deed; defendant offered to return the deposit and rescind the contract, and on plaintiff’s refusal, tendered him a deed, stating the property was not free of incumbrance. Plaintiff refused to accept the deed, and brought suit for specific performance, or, if impossible, $5,000 damages. On the trial, the ejectment suit having been dismissed, he offered to accept the deed, but the court, on appeal, decided that it was too late to change his mind, and that he was not entitled to specific performance. Held, no error; that plaintiff is not entitled to receive the deed formerly refused, now that the ejectment suit has been determined in favor of defendant, and thus claim the advantage of a favorable change in the conditions which have occurred since the commencement of the action.
    Appeal from a judgment dismissing the complaint, in an action for the specific performance of a contract.

      Charles Strauss, for app’lt; Anderson & Howland, (H. H. Anderson and Geo. Welwood Murray, of counsel), for resp’t.
   Van Brunt, P. J.

The facts found by the learned court upon the trial of this case were that on the 28th of February, 1889, the defendant was the owner in fee and possessed of the real property described in the complaint; that on said day she offered the same at auction, and the plaintiff became the purchaser thereof for the sum of $7,800, being the highest bidder therefor, and that a memorandum of sale was on said day signed by both parties, the defendant agreeing to convey by the usual deed, containing full covenants and warranty, subject to certain reservations, covenants and conditions; that the plaintiff had in all things performed the terms and conditions of his contract, and had been on his part ready and willing to fulfil the same, and to accept a conveyance of the property, and the defendant refused to make said conveyance under said agreement, notwithstanding the plaintiff’s frequent requests; that such refusal was due to the fact that after said sale, and before the day fixed for the delivery of the deed thereunder, an action in ejectment was commenced in this court against the defendant by a person claiming the ownership of the premises in question, who had filed a notice of the pendency of the action in the office of the clerk of the county of New York, and that theretofore, and before the trial of the action which, resulted in the judgment appealed from, the said ejectment suit was brought to trial and the complaint dismissed, and from the judgment entered thereon an appeal was taken to the general term, which court affirmed the judgment, and no appeal from the order of the general term was taken to the court of appeals, and the time to do so had then expired; that the plaintiff had expressed his consent, at the trial of the action, to accept from the defendant a conveyance of the land according to the contract of sale, and that less than three years have elapsed since the rendering of the judgment and the filing of the judgment roll in the ejectment action. Upon these facts the court found as conclusion of law that the sale having been made in good faith, and a question as to the title having arisen, the defendant should not be compelled to give a warranty deed, and accordingly dismissed the complaint upon the merits of the action, with costs.

If these were all the facts which were established by the pleadings and the evidence, we should be inclined to hold that a case for specific performance had been made out by the plaintiff; but as the court may look into the evidence to support the judgment where there is a finding upon any point, Marvin v. Brewster Iron Mining Co., 55 N. Y., 547; Berger v. Varrelmann, 127 N. Y., 293; 38 St. Rep.,813, upon examining the record in this case, certain undisputed facts appear, which place an entirely different complexion upon the attitude of the parties. It appears from the complaint, and also from the evidence of the plaintiff, that after the discovery of the filing of the Us pend1 ns the defendant offered to return the amount paid on deposit, and to rescind the contract, and, upon the refusal of the plaintiff so to do, the defendant tendered to plaintiff a deed of the premises, stating, however, that on account of this lis pen-dens the same were not free of incumbrances. The plaintiff refused to accept this deed,stating as his objection that the same was so -incumbered by the notice of the pendency of the action, and then tendered the balance of the purchase money, which the defendant refused. The plaintiff then commenced this action, praying judgmént that the defendant specifically perform the agreement, and that a just deduction be made on account of said incumbrance, and that, if the defendant could not make a good and marketable title to the ¡aremises, she pay to the plaintiff the amount of his deposit, auctioneer’s and exchange tees, and $5,000 damages. Under these circumstances the court held upon the previous appeal, 46 St. Rep., 127,that a specific performance should not be decreed, and reversed a judgment for such performance. It is true that at the time of the previous trial,the ejectment suit was pending, but that in no manner affected the nature of the action. The plaintiff placed himself upon what he deemed his strict legal rights ; and he having insisted then upon such strict legal rights, and he not being then entitled to a judgment of specific performance, as was held upon the former appeal, he cannot now come in and say that he is willing to accept the deed which he refused, because of the happening of subsequent events. As was said upon the decision of the previous appeal:

“ No offer was made by the plaintiff to accept the "deed, simply, until after the trial of this action was ended, so far as the taking of testimony was concerned. Up to that time the plaintiff had insisted upon his pound of flesh, and that was the nature of the bill of complaint filed by him, and it seems to us that it was too late for the plaintiff to change his mind upon the trial, and waive conditions of the contract which he had repeatedly refused. A purchaser should not be permitted to speculate upon defects in title, and decline the title, and, when it subsequently appears to be advantageous to him to accept the same, to be allowed to change his entire position.”

These views are entirely consistent with the present position of the plaintiff. At the time of the bringing of this action he was not willing to accept the title, but claimed that it was defective, and he speculated upon the defect. Having lost in such speculation, he cannot now be allowed to claim the advantages of the favorable change in conditions which has occurred since the commencement of the action. Actions for specific performance cannot be resorted to for the purpose of obtaining extensions of time for the completion of contracts, and the plaintiff should be remitted to his action for damages.

The judgment should be affirmed, with costs.

O’Brien, J., concurs.


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    Percival Knauth et al., Resp'ts, v. Adolph Heller et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Pleading—Amendment—Conditions.
    After the time therefor had expired, a motion was made for leave to serve an amended answer so as to allege that an agent of defendants did not have authority to make the contract in suit, the original answer having admitted such authority. The motion was supported by an affidavit tending to show excuse for delay and failure to allege the defense in the original answer. Plaintiffs resisted the motion on the ground that, as the original answer admitted the agent’s authority, they failed on his examination before trial to attempt to establish it, and that he had since left the stale. Held, that the motion should be granted upon condition that the defendants produce the agent for examination, and pay the costs of the motion and appeal.

      Appeal from order denying leave to serve an amended answer.
    The affidavit in support of the motion was as follows:
    “ There were several reasons why I did not amend my answer more promptly. In the first place, a settlement of this action was contemplated by me. The damages which are the subject of the counterclaim were for the loss of goods for which I believed another party, to wit, the receiver of the Crescent City Brewing Company, of New Orleans, La., was also responsible. The connection of that company with the goods in question is referred to in the plaintiffs’- last amended reply. After the receipt of the amended reply, I was instructed by my clients to proceed to New Orleans for the purpose of making an investigation relating to the same subject matter, and I told the plaintiffs’ counsel that if the defendants could secure from the receiver of the said company compensation for their loss the defendants would be in a condition to consent to a compromise. I went to New Orleans in the latter part of July, and returned during the month of August. At that time the plaintiffs’ counsel who had charge of this matter was absent in Europe, and I had to wait for his return. When he did return I informed him that defendants could not gain anything from the receiver, and that the said suit would have to proceed. I prepared the amended answer, and the same would have been ready for service in October, but the defendants’ agent in this country, Mr. Anton Schwarz, was absent in Europe, detained on account of the cholera longer than was expected, and when he came back, in the beginning of Hovember, the newly amended answer which had been prepared was sent to him, and he signed the verification, but neglected to swear to it, and started on another journey, and remained absent for some time. On the 3d inst., I sent the proposed amended answer to the plaintiffs’ counsel, with a letter explaining that it was not verified, owing to the absence of the defendants’ agent, and requesting them to waive verification and to accept the answer. In reply thereto the proposed answer was returned to me on the ground that it was not verified, and, on the further ground that the time to serve the same had expired. On or about the 13th inst., the defendants’ agent returned to the city, and I caused the .answer to be verified, and re-served the same "on the plaintiffs’ counsel, with a letter inclosing a check for ten dollars. * * * The proposed amended answer and the check were * * * returned with the indorsement that the time to serve an amended ‘answer had expired and no motion made for leave to serve the same. * * * When I was retained I received from my clients the instruction to deny the authority of the agent who contracted the loan, but upon examining the facts as they appeared to me from some of the papers I came to the conclusion that the defendants were not in a condition to deny the authority of their agent, although as a matter of fact the agent violated his duties and exceeded his authority in contracting the said loan. The fact that the agent had so violated his duty was, however, distinctly stated in the original answer in connection with other defenses. The plaintiffs caused Arnold Heller, one of the agents of the defendants, to be examined as a witness before trial, and during said examination said witness testified to facts from which I perceive that not only was the agent without authority in contracting the said loan, but that the plaintiffs were chargeable with knowledge of that fact, and that the loan, which was made solely for the use and benefit of the Crescent City Brewing Company of New Orleans, could be repudiated by the defendants on the ground that the plaintiffs were in possession of facts and circumstances which charged them with the knowledge of the fact that the loan was not made for the defendants, but was made for the Crescent City Brewing Company. The examination of the said witness was only concluded a few days before I received my instruction to go to New Orleans, and it would have been entirely impracticable to prepare the amendment before my return from New Orleans, because if the result of my investigations in New Orleans had been favorable, this action would have been settled, so that in fact there was no unreasonable delay after the discovery that an amendment to the answer was necessary, and the preparation of said amendment and the service of amended answer will not necessarily delay the trial of this action. It is on the calendar, and will probably not be reached for trial until the spring. I am desirous of obtaining leave to interpose the.amendment as soon as possible, in order to obtain a commission for the examination of the witnesses for the defense. I had unusual difficulties in preparing the answers in this action. The defendants’ firm have their principal office in Prague, Bohemia. Albert Heller, the senior member of the firm, lived, however, in Nuremberg, Germany, while his counsel in Europe lives in Pilsen, Bohemia. The books of the concern were in London, England, and some of the facts connected with the defense in tbis action could only be ascertained in New Orleans, La. These facts were made known to the plaintiffs’ attorneys, and it is quite true that they extended to me unusual courtesies during the progress of the action. But I was equally lenient in granting any extension or adjournment which they sought. An order to show cause returnable in less than eight, days is applied for because of the defendants’ desire to proceed with the issuing of a commission which will have to be issued to examine witnesses" in London, Prague, and other places on the continent. No previous application for the annexed order to show cause was made to any other judge or court.”
    The opposing affidavit stated:
    “ I do not know the exact contents of the proposed amended answer, as the same was promptly returned by me when it was served, but do remember that one of the main points on account of which I returned the proposed amended answer was that defendants denied therein the making of the loan to them. This denial I can only regard, from my knowledge of the facts of the case, which have been freely discussed between me and defendants’ attorney, and from the examination of Arnold Heller, and from the papers in my possession, as not put forth in good faith. It would create a new issue in the case. The fact of the agency of Arnold Heller being admitted of record by defendants’ answer, served on February 25, 1892, I did 'not endeavor to establish it when Arnold Heller was examined by me before the trial. I do not know where Arnold Heller now is, and have no means of adding anything to the proofs already stated by me. The plaintiffs have voluntarily, at the request of defendants’ counsel, furnished him with all the information which was in their possession bearing upon this case, have rendered him copies of all their accounts kept with the defendants and their agents, and have, from time to time, supplemented the same by any additional information which was requested; and there is nothing to be litigated between plaintiffs and defendants except the matters of account about which defendants’ attorney has raised certain disputes. These matters could be easily and expeditiously settled by a referee, but defendants’ counsel has always refused to refer this case. I submit that under these circumstances plaintiffs are entitled to a prompt trial upon the issues raised by the present amended answer in this case, served on February 25, 1892, and that the issues should not be further complicated and augmented by more amended answers, which are not even presented to the court on this motion.”

      H. Wehle, for app'lts; A. Knauth, for resp'ts.
   Per Curiam.

The objection relied on by the. respondents to granting the relief asked for is that the witness that they examined, being the person who was the agent of the defendants to whom the loan was made, was not now within this state, so that they could procure his testimony. Such objection would justify the court in ref using the relief asked for, unless the witness is produced for examination by the plaintiffs. Under the circumstances, we think the motion should be granted, upon condition that the defendants produce such witness for examination, and pay ten dollars costs of the motion below, and ten dollars costs and disbursements of the appeal; and that the amended answer be served and the costs paid within two days after service of a copy of the order to be entered hereon, and the witness be produced within thirty days thereafter.

In case these conditions are not complied with, said answer should be stricken out, and the order denying leave to serve said amended answer affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


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    William E. Wamsley, Resp't, v. H. L. Horton & Co., Limited, App'lt.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Reference.
    References under § 1015 of the Code, in respect to disputed questions of fact arising upon motions, should only he resorted to when such a reference is absolutely necessary to determine questions of fact which are of vital importance.
    8. Same—Motion to set aside service on foreign corporation.
    Such a reference should not be granted where the motion’is to set aside the service of a summons upon the ground that the person served was not an officer of tlie defendant, a foreign corporation, and the affidavit of such person simply states that he was not an officer when served, although he had heen, and that he was the principal stockholder, but the motion should be denied.
    Appeal from order of reference.
    The following is the opinion of the court below:
    Barrett, J.—The defendant, a foreign corporation, moves to set aside the service of the summons herein upon the ground that Mr. Horton is not an officer of the company, but merely a director thereof. In his original affidavit, upon which the application was based, Mr. Horton states that on the 9th day of January, 1893, when the summons was served upon him, he was neither “ president, treasurer, secretary, cashier, nor managing agent of the defendant. The plaintiff opposed the application upon an affidavit showing that the defendant has no president, but that the chairman of its board of directors performs functions corresponding to that of president. The affidavit then states that in September last he examined the record of the formation of this corporation, which showed that Mr. Horton owned nearly all its stock, and was chairman of its board of directors. To-this affidavit Mr. Horton now replies that he was not such chairman when the - summons was served upon him. He does not deny that he was chairman in September last, nor that he is the principal owner of the stock of the defendant. He thus, in substance, admits the facts stated in the opposing affidavit, but seeks to avoid them by the statement that, though' he was chairman in September, 1892, he was not chairman on the 9th day of January, 1893. In my judgment, he was called upon to state the facts which effected the change. It may well be that, in law, he is still chairman, notwithstanding his belief to the contrary. When we know the precise facts with regard to the alleged change in the situation we will be better able to judge whether the broad assertion that he was not chairman on the 9th day of January, 1893, is an accurate statement of fact, or an inaccurate conclusion from the actual facts. The plaintiff should not be thrown out of court upon a bald assertion 'which frank disclosure of the circumstances may prove to be inaccurate. The very fact that counsel protested against any further inquiry looking to the examination of Mr. . Horton adds to the doubt created by the suspicious reserve of the replying affidavit. Upon the whole, I think such further inquiry essential to a correct disposition of the motion, and accordingly direct a reference as to the question of fact involved.

      John R. Dos Passos, for app’lt; A. S. Bacon, for resp’t.
   Per Curiam.

We concur with the counsel for the appellant that references under § 1015 of the Code, in respect to disputed questions of fact arising upon motions, should only be ordered in extraordinary cases. In fact, it should only be resorted to when such a reference is absolutely necessary to determine questions of fact which are of vital importance, arising upon motions before the court. A reference upon a motion is frequently a great abuse of the discretion vested in the court by this section, as it requires large expenditures of money in the shape of referee’s and stenographers’ fees, and to procure the attendance of counsel, which are utterly disproportionate to the importance of the questions involved either in the action or upon the motion. We think, therefore, that in the case at bar, upon the facts presented, the court should not have ordered the reference from which an appeal is taken; but we are of opinion, in view of the conclusions arrived at by the court as evidenced by its opinion, and which were justified by the papers before it, that it should have disposed of the motion by denying the same. • We think, therefore, that the order of reference should be reversed, and the motion sent back to the special term, in order that it may be disposed of upon the papers which were then before the court, with ten dollars costs ana disbursements of appeal, to abide the final disposition of the order.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


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    Michael Edesheimer et al., App'lts, v. Amos Quackenbush et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Lease—Covenants—Evidence.
    On the trial of an action to recover damages for breach of a covenant for quiet enjoyment in a lease executed by W. & Q., the latter only was served or answered. Proof tending to show that plaintiff was kept out of possession by one who was in the premises by the consent and under an agreement with W. was excluded. Held, error.

      2. Same.
    Where it appears that the joint owners of certain premises did not act for themselves, but that one acted on behalf of both, as most convenient for_ each, and that the negotiations for the renting of the premises to plaintiff was had with one, while both subsequently executed the lease, it is within the province of the jury to infer an authority upon the part of the one to act for and bind the other in regard to the property.
    Appeal from judgment dismissing the complaint

      B. Loewy, for app’lts; C. A. Hart, for resp’t
   Van Brunt, P. J.

This action was brought against the defendant, Amos Quackenbush, and his mother, Huldah A. Wicks, to recover damages claimed to have been sustained by the plaintiffs for breach of the covenant of quiet enjoyment in a lease executed by said Wicks and Quackenbush to the plaintiffs. The complaint alleged the execution of the lease, which was admitted by the answer, and that the defendants unlawfully, and in violation of the the terms and covenants of the lease, have wholly neglected and refused to give possession to the plaintiffs of the entire buildings and premises leased, but have unlawfully seized, and kept the plaintiffs from the possession and occupancy of, a valuable part of said premises, to the damage of the plaintiffs. The summons and complaint herein were served upon the defendant, Quackenbush, only, and he only answered. Upon the trial it appeared that the plaintiffs had been in possession of a portion of the premises in question for a considerable period of time under a sub-lease executed by one Storz, who held a lease of the whole premises from the defendants, and that one McMahon was a subtenant of said Storz of the balance of the premises in question. Prior to the 1st May, 1890, the date of the expiration of the Storz lease, the plaintiffs had negotiations with the defendant, Wicks, for a lease of the premises in question.

These negotiations resulted in the signing and acknowledging by the defendants on the 14th of April, 1890, of an instrument leasing the whole of the premises in question to the plaintiffs, the execution of which lease was completed on the 3d of May, 1890, by the signing and acknowledging thereof by the defendants, and delivery to the plaintiffs. The plaintiffs, being unable to get possession of the whole of the premises, because of the occupancy of McMahon of the part which he had leased from Storz, brought this action, claiming, among other things, that McMahon remained in said premises by and with the consent of the defendants, and that, therefore, there was a breach of the covenant of quiet enjoyment It was attempted to be proved upon the trial that McMahon remained in the premises in pursuance of some arrangement or agreement with the defendant, Wicks, in respect thereto. This evidence was excluded upon the ground that the defendant, Wicks, had not been served with process, and was not in court, and that she could not bind the defendant, Quackenbush. The complaint was subsequently dismissed, and an exception taken, and from the judgment thereupon entered this appeal is taken.

It is urged upon the part of the respondent that this action cannot be maintained because the defendants were under no obligation to place the lessees in possession of the premises in question, under the authority of Gardner v. Keteltas, 3 Hill, 330. But it seems to us that, in view of the evidence which was offered upon the trial of-this action, the case of Gardner v. Keteltas is not a controlling authority. There is no question but that, if McMahon was in possession of the premises by and with the consent of the landlords, this action would lie, and, therefore, the point presented is whether there was an attempt to prove such consent by competent evidence. We think that proof tending to show that McMahon was in the premises by the consent and under an agreement with one of the joint lessors named in this lease, and one of the common owners of the premises in question, was competent

It appears from the evidence which was actually admitted that the owners of the premises in question did not each act for themselves, but that Mrs. Wicks acted on behalf of both, and that the renting of this property was attended to on behalf of both, for a considerable period of time, as it might be most convenient for each to attend to the same; and it appears from the evidence that the negotiations for the renting of the premises to the plaintiffs was had with the defendant Wicks alone, and that the lease was subsequently executed by the defendants Wicks and Quackenbush. From all these facts, if for no other reason, it was within the province of the jury to infer an authority upon the part of the defendant Wicks to act in regard to this property, and to bind the defendant Quackenbush: and it must be borne .in mind that in respect to the terms of this lease the defendants Wicks and Quackenbush are joint obligors. They both executed the lease, they both entered into the covenants therein contained, and, therefore, it may well be urged that the action of either in respect to premises over which they both assumed control, whereby the covenants of a lease which they both executed were broken, made both liable to the penalties thereby incurred. We think, therefore, it was error to take the case from the jury, and also to exclude the evidence tending to show that the trespasser who withheld possession of a portion of the premises leased to the plaintiffs did so by and with the consent of, one of the lessors named in the lease. The judgment should be reversed, and a new trial ordered, with costs to appellants to abide event O’Brien and Follett, JJ., concur.


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    Louise Meise, Resp't, v. John H. Doscher et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Severance—Judgment for taut admitted.
    In an action-npon promissory notes, the answer admitted the making thereof, but alleged that they were given for a greater amount than was due, that payments had been made, and that the maker was only indebted to an amount specified. Held, that under this condition of the pleadings the court was justified in directing a severance and entry of judgment for the amount admitted to be due.
    2. Bills and notes—Indorser.
    In the absence of allegations or evidence explaining the circumstances of the indorsement, a recovery cannot be had by the payee against the indorser, as the presumption in such case is that the latter intended to be liable subsequent to the payee.
    Appeal from a judgment upon an application under and pursuant to the provisions of § 511 of the Code of Civil Procedure.

      J. H. Hull, for app'lts; J. G. Flammer, for resp't.
   Per Curiam.

This action was brought to recover the defendant Doscher as maker, and the defendant Newman as indorser, of two promissory notes. The defendants, answering, admitted the making of the notes by Doscher, and their indorsement by Newman. It then alleged that Doscher, being indebted'to the plaintiff in the sum of $2,386.05, was induced to sign and deliver the notes in question for $3,000 ; and then, as a further defense, that Doscher had paid to the plaintiff upon the notes $1,922.86, and that he is now indebted to her thereon in the sum of $435.70 only. Under this condition of the pleadings, the court was justified in directing the judgment appealed from, as against Doscher. Section 511 of the Code provides that where “the answer.of the defendant expressly, or by not denying, admits a part of the plaintiff's claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed ; that a judgment be entered for the plaintiff for the part so admitted; and, if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim.” Under the pleadings, therefore, the maker being indebted upon the notes in the amount stated in the answer, the indorser would ordinarily be liable to the plaintiff therefor; and under § 511, above referred to, judgment might be directed against both the maker and the indorser. „

But, in the case at bar, it appears that the plaintiff was the payee of the note, and the presumption of law would be, without some allegation or evidence explaining the circumstances of the indorsement, that the indorser placed his name upon the paper intending to be liable thereon subsequent to the payee. Therefore, in the case at bar, there being no allegation in the complaint that the indorsement of the notes by the indorser was intended to give credit therewith to the payee, no liability against the indorser appeared upon the face of the pleadings. The judgment and order should be reversed as to the defendant Newman, and affirmed as to the defendant Doscher, without costs to either party.

. Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.