text:
    August Voege, Resp’t, v. Pierre L. Ronalds et al., App'lts.

      {Supreme Cowt, General Term, Second Department,

      Filed December 10, 1894.)

    1. Lease—Holding over.
    Holding over under a lease for one year, with the privilege of two additional years, is an election by the tenant to renew for the further term.
    2. Same—Modification.
    A lease under seal cannot be modified by a paroi unexecuted agreement.
    Appeal from a judgment, entered on a verdict directed by the court in favor of plaintiff.

      William B. Hill, for app’lts; J. Stewart Boss, for resp’t.
   Brown, P. J.

This action was brought to recover rent of certain premises in the city of Brooklyn for the year ending November 1, 1892. The defendants entered into possession of the property under a written lease under seal for the term of one year, beginning November 1, 1889. The lease corltainedthe following provision, “ It is further agreed by the party of the first part to extend the above lease for a term of two additional years at the same yearly rental, if the parties of the second part so desire.” The appellants retained possession of the property until November 1, 1891, paying the rent therefor, when, having given notice to the plaintiff, they vacated the premises. The court directed a verdict for the plaintiff, upon the ground that, by holding over after the expiration of thefirstyear, the appellants must be presumed to have elected to extend the term for two years. This ruling was correct. Assuming that the appellants are right in the proposition that the continuance in possession of the property after the expiration of the first year raised only a rebuttable presumption that they elected to extend the term in accordance with the terms of the lease, still there was nothing in the evidence to weaken that presumption, or to raise a question of fact for the jury to pass upon. At the expiration of the first year there was no new transaction or conversation between the parties. The appellants simply continued their occupancy, paying the rent monthly. The lease called for no notice from either party to the other, and none was given. The term was to be extended if the appellants desired it, and there could be no stronger evidence of their desire than their remaining in possession and paying the stipulated rent. When there is a lease for a definite term, with a privilege of an additional term at the tenant’s option, it operates as a lease for the continuous term, if the tenant so elects. Chretien v. Doney, 1 N. Y. 419; Kramer v. Cook, 7 Gray, 550. When, therefore, the appellants continued in possession of the property after the expiration of the first year, it must be presumed tb.oy did so under the lease; and there is no basis for the argument that, by holding over, they became tenants from year to year. The rights of the parties were fixed at the expiration of the first year, and, if there is any defense to the action, it must be found in what occurred during the second year of the term. The testimony introduced by "the appellants tended to show, and would permit the conclusion, that the plaintiff called upon them in March, 1891, and asked .them what they were going to do about staying in the store the third year, and they replied that they would, of course, remain during the second.year, by they could not then give him an answer about the third year, and, if they decided not to stay, they would give him three months’ notice, to which plaintiff replied: “All right; that will be satisfactory.” The rule is settled that a contract or covenant under seal cannot be modified by a paroi unexecuted agreement. Coe v. Hobby, 72 N. Y. 141; Smith v. Kerr, 108 N. Y. 31; 13 St. Rep. 115; McKenzie v. Harrison, 120 N. Y. 260; 30 St. Rep. 934. The conversation testified to, therefore, did not operate to modify in any way the terms of the lease, and did not establish any defense to the action.

The judgment must be affirmed.

All concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Jesse L. Van Caasbeck, Resp’t, v. Town of Saugerties App’lt.

      (Supreme Court, General Term, Third Department

      Tiled December 4, 1894)

    L Towns—Commissioners—Negligence.
    Negligence on the part of the commissioner of highways may consist, as well in the omission to erect barriers in dangerous places in the highway, as in leaving the bed of the highway defective.
    2. Same—Question oe eact.
    Whether the town'is, or is not, negligent in failing to erect suitable railings or barriers along the side of a highway, is a question of fact for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      Charles Davis (P. Cantine, of counsel), for app’lt; Carroll W-hitalcer (John J. Linson, of counsel), for resp’t.
   Herrick, J.

This is an appeal from a judgment in favor of the plaintiff and against the* defendant, for $1,600.55, damage, and costs, and from .an order denying a motion for a new trials The action is brought against the defendant for the neglect of a highway commissioner of the defendant to properly maintain the highway, or a portion thereof, between the city of Kingston and the village of Saugerties. The highway in question is a much-used highway. For a distance of several hundred feet within the town of Saugerties, the highway runs along the Esopus creek, and at a distance therefrom of from one to two hundred feet. The road is at a considerable elevation above the creek, the descent thereto being quite sharp. The ground also rises from the road upon the side furthest from the creek, with about equal abruptness. Upon the side of the road nearest the creek, for a distance of several hundred feet, there is a retaining wall, and the perpendicular distance from the surface of the road to the base of the retaining wall is between four and five feet. The portion of the road described is quite densely shaded by trees. At the point where the accident happened, the roadway is about fourteen feet in width. On a dark, misty, drizzling night, the plaintiff, in endeavoring to drive over this road, with a horse and wagon, went off the side of the road over the retaining wall, and received injuries for which this action is brought. There were no guard rails or barriers upon the side of the road towards the creek, and it does not appear that there ever had been any. It appears in evidence that during the last five years, to which period of time the court limited the inquiry, there had been several accidents to persons at the locality described, by driving off the side of the road. It also appears that the commissioner of highways of the town had been notified upon one or more occasions that it was a dangerous locality, and should be protected.

There was evidence sufficient, I think, to warrant the jury in finding that the plaintiff was not guilty of contributory negligence. There was evidence to show that, for several years prior to the happening of the accident, the commissioner of highways had annually sums, varying from between two and three thousand dollars to between four and five thousand dollars, which were expended in opening new roads, grading hills, filling up hollows or valleys, and erecting iron bridges, so that the question as to whether there was sufficient money in the hands of the commissioner to put the road in proper condition does not, it seems to me, arise.

The question as to whether the road at the place described was dangerous was one of fact for the jury. “ Negligence on the part of the commissioner of highways may consist as well in the omission to erect barriers in dangerous places in the highway as in leaving the bed of the highway defective." Ivory v. Town of Deerpark, 116 N. Y. 476; 27 St. Rep. 643; Bryant v. Town of Randolph, 133 N. Y. 70-76; 44 St. Rep. 75. And it is a question of fact for the jury to determine whether the defendant was or was not negligent in failing to erect suitable railings or barriers along the side of the highway. Wood v. Town of Gilboa, 76 Hun, 175; 57 St. Rep. 300. And upon both of these questions, as to whether it was a dangerous locality, and whether it was negligence not to erect some kind of a barrier, there was some evidence to submit to the jury. These questions were very clearly and fairly submitted by the trial court, and I can see no reason for differing from the conclusions at which the jury arrived.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs in result; Putnam, J., concurs.


author: Putnam, J.

text:
    James Lever, Resp’t, v. Buel L. Foote, App’lt.

      (Supreme Gourt, General Term, Third Department,

      Filed December 4, 1894.)

    Trial—Direction or verdict.
    Where the evidence is conflicting as to the length of the term, it is error to direct a verdict for the lessee in an action against his lessor for possession.
    Appeal from a judgment in favor of the plaintiff.

      John I. Gilbert, for app’lt; John P. Kellas, for resp’t.
   Putnam, J.

From the evidence, it appears that plaintiff, as tenant of defendant, occupied the land, to recover possession of which the action was brought, from October 22 (or 19), 1892, for one year. Plaintiff testified that in a conversation with defendant in September, 1893, he made an agreement with him to lease the same premises for a second year. He is corroborated in this regard by another witness. The defendant, on October 20, 1893, took possession of a part of the premises, and. on the same day this action was brought. The defendant denied that at the conversation in 1893 he rented the premises to plaintiff for a year, testifying that plaintiff only wanted the house until spring; and his witness King, in narrating what transpired at said conversation in September, 1893, testifies that plaintiff said he wanted the house until next spring, and that defendant did not say yes or no.

The trial court directed a verdict for the plaintiff for the recovery of the possession of the premises in question. We think he erred in his disposition of the case. It was, under the evidence, a question of fact for the jury whether the lease was extended until the spring of 1894, or for one year. If for one year, the verdict and judgment were right, as to awarding possession of the premises to plaintiff. If the lease was only extended until spring, the action being tried on the 14th of March, 1894, plaintiff was not entitled to a j udgment for the possession of the premises, but to the verdict and judgment as provided for in § 1520 of the Code of Civil Procedure. In any event, the judgment should have determined the duration of the term for which plaintiff could hold the premises. Code Civ. Proc. § 1519. The error in the disposition of the case, above pointed out, was material. Under the judgment, plaintiff could properly have held possession of the premises until October, 1894, while, if the question of fact had been submitted to the jury, they might have found that the lease terminated on or before the 1st of March, 1894.

We are doubtful whether, in any view, the court should have directed a verdict. According to the plaintiff’s statement, he rented on October 22, 1892, the premises for one year, at the monthly rent of six dollars, payable at the end of each month, and occupied them until the last of September, 1893, when he had a conversation with defendant, and arranged for another year’s occupancy. He then paid defendant six dollars; presumably, the rent due for the month ending in September, 1893. If plaintiff’s statement was true, he was legally in occupation of the premises, as tenant until October 22, 1893, under the first year’s lease,-and defendant unlawfully evicted him on October 20th, two days before the term expired; and hence he was entitled to maintain the action, either as tenant under the first lease, or under the extended tenancy. On the other hand, defendant’s witness King swears that, when plaintiff proposed to rent the premises until spring, defendant made no answer. It was then a question of fact for the jury whether the minds of the parties met, and whether any new lease was created. While, from all the facts and testimony, it is probable that it was understood that plaintiff was to occupy the premises, after the end of his first tenancy, it was not so certain that the court could determine the question as one of law. The rent paid in October was presumably the rent due under the first tenancy. The first lease, according to plaintiff, ceased on October 22, 1893. But defendant testifies that the agreement was that the rent (which was equivalent to saying “ tenancy ”) was to commence on the 19th. If the plaintiff’s tenancy commenced on October 19, 1892, and terminated October 19, 1893, and the tenancy was not extended for- another term, the occupation of the premises in question by defendant, for which this action was brought, may have been on the day after the expiration of the lease. It is not improbable that on the trial the jury may take another view of the-testimony, and conclude that plaintiff was legally in occupation of the premises at the time of the intrusion of defendant thereon, either under the first lease or a renewal thereof. We think, however, that the evidence was not so clear and certain that the court could take the questions involved in the case from the jury. It follows that the j udgment should be reversed, and a new trial granted, with the costs of the appeal to the appellant, to abide the-event.

All concur.


author: Brown, P. J.

text:
    Henry A. Root, Resp’t, v. New York and New England Railroad Company, App’lt.

      {Supreme Court, Gteneml Term, Second Depa/rtment,

      Filed December 10, 1894.)

    Carriers—Exemption—Gross negligence.
    The company was held, under the facts and circumstances of this case, to have been guilty of gross negligence within a provision in the contract, of shipment that the carrier should not be liable except for gross negligence.
    Appeal from a judgment in favor of plaintiff, entered on a decision of the court without a jury.

      W. C. Anthony, for app’lt; Frederick S. Barnum, for resp’t.
   Brown, P. J.

This action was brought to recover the value of a horse shipped upon the defendant’s road, and which plaintiff claimed was killed through defendant’s negligence. The defense is that by the contract of shipment the defendant was released, from all liability for injury to the horse, except when proved to-have occurred through gross negligence. This case was before this court on a prior appeal (76 Hun, 23; 59 St. Rep. 613), and it was then held that the circumstances surrounding the execution of the contract justified the submission to the jury of the question whether it was binding upon the plaintiff. The evidence now before the court does not permit any different conclusion than was then expressed. The paper was not delivered to the shipper. Neither was it read to him, nor was his attention called to the provision which limited the defendant’s liability. But, independent ■of that question, the evidence is ample to sustain the conclusion that the defendant was guilty of gross negligence. The horse was shipped at Brewster’s Station, and put into a car which was designated by the company’s agent, and securely tied. One of the doors of the car, owing to some defect of construction or want of repair, ■could not be closed, and in this condition the car was placed in the train. No examination appears to have been made by the defendant, before the train started, to ascertain the condition of the car, and, if its condition was known, no effort was made to remedy it. And after the train started, in some way not explained in the evidence, the horse fell from the car, and received fatal injuries. The defendant’s liability was brought clearly within the terms of the contract, and the judgment should be affirmed.

All concur.


author: Brown, P. J,

text:
    George Pearson et al., Resp’ts, v. George H. Germond et al., App’lts.

      ■{Supreme Court, General Term, Second Department,

      Mled December 10, 1894.)

    ■Summary proceedings—Counterclaim.
    A failure by the landlord to repair according to the agreement does not constitute a counterclaim, in summary proceedings for non-payment of rent.
    Appeal from a judgment in favor of plaintiffs.

      Arthur S. Tompkins, for app’lts; Ghas. P. and William W. Buck lev, for resp’ts.
   Brown, P. J,

This was a summary proceeding commenced before a justice of the peace to dispossess the appellants from the possession of real estate for the nonpayment of rent. The justice •dismissed the proceeding, and, the landlord having appealed, the case came into this court, on account of the disqualification of the county judge to hear it, where the judgment of the justice of the peace was reversed. The appellants occupied the property under .a written lease, at a yearly rent of $800, payable quarterly in advance, on the 1st days of January, April, July, and October. The petition alleged nonpayment of the rent due October 1, 1893. The answer denied that any rent was due, and pleaded a clause in the lease which provided as follows: “And the said parties to these presents further agree to and with each other that, in case of ■.any damages to the greenhouses on said premises which shall be caused by storm or fire, and which shall exceed the sum of fifty ■dollars, the said - parties of the first part shall be bound to repair the same as expeditiously as possible, or deduct rent for the house damaged until the same and shall be properly repaired by them.”

And the appellants alleged that on or about April 20, 1893, the said greenhouses had been'damaged by rain and wind to an extent in excess of $50, and that the landlord had neglected to repair the injury. They also alleged that, owing to the failure of the landlord to repair said houses, they had suffered damages by reason of injury to their stock of plants in excess of $200, and that by reason of those facts no rent was due under the lease.

The injury to the appellants’ stock of plants and flowers sustained by reason of the failure of the landlord to promptly repair the greenhouses could not be made a subject of counterclaim in this proceeding, although it might be such in an action to recover the rent., When tenants have taken possession of demised property, and become vested with the term, they cannot refuse to pay the rent and retain possession of the premises against the claim of the landlord. They have their election to pay the rent or restore the possession when demanded. People v. Kelsey, 38 Barb 269. The question in a proceeding of this character, the answer to which controls the decision, is, was there any rent due under the lease? If there was, no matter how.small the amount, then the landlord is entitled to the possession of the premises. In this proceeding, appears that the greenhouses were damaged in April, 1893, and were not fully repaired on October 1st, but, with the exception of what is called the “ mushroom house ” and the “ packing shed,” all repairs had been made before October 6th. This proceeding was commenced in December. Upon these facts it is impossible to see how it can be successfully claimed that there was no rent due when this proceeding was commenced. The demised premises consisted of eight greenhouses and the mushroom house. One of the greenhouses was not injured at all, and all were repaired before the proceeding was commenced. The rent was payable quarterly in advance. The lease does not provide that the rent shall abate if any part of the property was injured. It is very doubtful if it is susceptible of the construction that it abated at all. But it is not necessary to decide that question. The covenant is that the landlord will make repairs, “ or deduct rent for the house damaged.” This clearly had reference to the deduction of rent for a particular house that might be injured, and not to the whole rent reserved in the lease. The rent was not apportioned upon the several houses, and the lease made no provision for apportionment in case of an injury to any single house. There was, therefore, no way in this proceeding by which the provision in question could be applied in case the tenant claimed a deduction in the rent for failure to make repairs to any one or more of the greenhouses. The fact appears that one of the greenhouses was not injured at all, and that all had been repaired long before this proceeding was commenced. By the plain and explicit terms of the lease, rent was therefore due to the landlords, and they were entitled to its payment, or to have the possession of the premises restored to them. The judgment must be affirmed, with costs.

All concur.


text:
    Patrick Flannery, Resp’t, v. Aslan Sahagian, App’lt.

      [Supreme Gourt, General Term, Second Department,

      Mled December 10, 1894.)

    Contract—Building—Substantial performance.
    A building contract has not been substantially performed, where the omitted work cannot be done except at great cost and with risk to the building.
    Appeal from a judgment in favor of the plaintiff.

      Joseph F. Daly, for app’lt; F X. Donoghue, for resp’t.
   Brown, P. J.

This action was brought to recover a balance due upon a building cop tract, and for extra work. Under the findings of the learned referee, there was not a substantial performance of the contract. There was a failure to comply with the specifications, in very material matters, and the referee found the omitted work could not now be done, “ except at great cost, and with great risk to the building.” It is only inadvertent and unimportant omissions or defects, and such as may be remedied by slight expenditures, that may be disregarded in a building contract. In this case the building has not been, and cannot be, completed as the plaintiff agreed to build it. In Oberlies v. Bullinger, 132 N. Y. 598; 44 St. Rep. 851, there was an error in the construction, by which the ridge of the roof was five inches lower than called for by the plans. This error did not affect the appearance or utility of the building, and, as it appeared in proof that all other defects were remedied by the contractor, it was held that there was a substantial performance of the contract. Bnt in this case there is not only a failure to make the ceiling of the north store of the height required by the contract, but the cellar ceilings are in some places nearly two feet lower than the specifications require, stone foundations and stone bottoms were omitted under the party walls, and in many other respects the contract was not complied with. In Crouch v. Gutmann, 134 N. Y. 45; 45 St. Rep. 470, it was thought the rule of substantial performance was extended to its full limit. The majority of the court, in that case, felt bound by the findings of fact, but it was said in the prevailing opinion that “ the cost of completion of work, by remedying defects or supplying omissions in it to meet the requirements of a contract, may be so great as to preclude the conclusion of substantial performance.” A party is not to be denied, by the applidation of this rule, the right to have his building erected in the manner agreed upon, and as, in this case, the referee has found that the work omitted by the contractor “cannot now be done, except at great cost and with great risk to the building,” the plaintiff should not be permitted to recover, and the judgment should be reversed, and there should be a new trial.

All concur.


text:
    John W. Brown, App’lt, v. Jonas Fishel et al., Resp’ts.

      (Supreme Court, General Term-, Second Department,

      Mled December 10, 1894.)

    1. Deed—Description.
    Grants of land are presumed to be made, and boundaries fixed, after a view of the premises,
    2. Same.
    Whether a deed, describing land as bounded by a certain street, refers to the apparent street line or to the line as laid out and recorded, was held to be a question for the jury under the facts of this case.
    Appeal from a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial.

      Ii. H. Benjamin, for app’lt; George T. Staclcpole and Wilmot M. Smith, for resp’ts.
   Brown, P. J.

This action was brought to recover possession of a small plot of ground in the village of Riverhead, Suffolk county. The plaintiff concededly has title to a lot upon the north side of Main street, and extending north seventy-five feet from the north line of that street. The defendant has title to a lot immediately north of plaintiff’s land, and bounded on the south by the plaintiff’s north line. The question in dispute is the proper location of the north line of plaintiff’s lot. Both parties derive title from John Benjamin. In 1857, Benjamin conveyed to his daughter, Frances Maria Brown, a lot of land seventy-five feet deep, and bounded “ on the south by Main street, seventy-four and one-half feet.” The plaintiff is a son of Frances Maria Brown, and makes his title under the aforesaid conveyance. In 1886, Benjamin conveyed to the defendant Fishel a parcel of land in the rear of the lot conveyed to his daughter, and being of the same width of said lot north and south, and bounded on the south by “land of the heirs of Frances Brown, deceased.” Main street was first laid out in 1748, and in 1814 it was resurveyed by the commissioners of highways of the town and recorded as a highway. At the date of the deed to Mrs. Brown, as I understand the evidence, there was no fence in front of the property conveyed to her, but there was in front of the property adjoining upon the east, and which was owned by the Congregational Church, and east of that the property was fenced along the street. There was also a fence in front of the Jagger property on the west, and west of that property the land along the .street was fenced, or buildings were erected right up to the line, which would be a continuation of the fence line. This condition of the street had existed for a period that was beyond the memory of any living witness. At the date of the deed to Mrs. Brown, therefore, the street was open and used, and was the principal thoroughfare of the village. Its apparent north line was well marked, and was an actual, visible monument; and the plaintiff’s claim was that the fence line was the north line of the street, and that the north line of his lot was to be ascertained by measuring seventy-five feet north from the fence line. In further support of this view, the plaintiff's father testified that in 1859 he was present with Benjamin, and assisted in taking a measurement of the lot conveyed to his wife, made with reference to the erection of a building thereon; that they .started on the north side of Main street at the fence in front of the Congregational Church, and ran north seventy-five feet; then squared the corner, and ran south. After that measurement was made, Bénjamin erected a building on the lot for his daughter, and the front of it was about ten or twelve feet from the fence line. The defendant produced the records of the street as laid out and recorded by the commissioners of highways. The north line ran from a stone buried -in the ground near the old court-house, upon a designated course in an easterly direction, to a stone in the ground near what is now the southeast corner of the Methodist Church. Mr. Howell and Mr. Post, who were civil engineers and surveyors, testified to ascertaining and surveying that line. They claimed to have located the stones at the end of the recorded line of the street by digging and removing the dirt. The line of the street, as ascertained and located by them, was about ten or eleven feet south of the apparent or fence line of the street. There would appear to be very little doubt but that the stone monument near the court-house was properly located by the surveyors ; but there was some doubt about the monument near the Methodist Church, and the course run by the surveyors between those two points did not correspond to the course given in the record of the street. The explanation for this discrepancy was the variation of the compass since 1814, and local attraction of the needle, the cause of which was unknown. There was other evidence upon the part of the defendant tending to show that the real line of the street as laid out. and recorded was south of the fence line; and his claim was that the north line of the street as laid out was the southern boundary of the plaintiff’s lot, and its depth was to be ascertained by running north from that line. Between the line run by the surveyors and the fence line was the sidewalk, which was about six feet wide, then a row of trees, and then a part of the traveled roadbed: and the distance between these lines represents the width of the lot in dispute measured from north to south. Upon this evidence we are of the opinion that the case was for the jury. The court properly refused to direct a verdict. It could not determine, as a question of law, either the line of the street or the intention of Benjamin and his. daughter in making the street the southern boundary of the lot. These were questions of fact solely. We are of the opinion, however, that the real question to be submitted to the jury to determine was, what was the intention of Benjamin and his daughter in making the street the southern boundary of the property,—did they refer to the line which was visible and apparent, or did they refer to the line of the laid-out and recorded highway? Upon the evidence, there was much that could be said in the way of argument upon both sides of this question. But it nowhere appears that either Benjamin or his daughter had any knowledge or had ever heard that the lines of the street, as actually used, did not correspond to those of the recorded highway; and as grants of land are presumed to be made, and boundaries fixed, after a view of the premises, we are of the opinion that the weight of evidence in the record before us was decidedly upon the side of the plaintiff’s contention. The intention to convey a lot of land 75 feet deep is clear, and it is difficult to believe that any part of the lot was understood to be within the open, visible street. The line of the street had been fixed so long, and the public use of the land as a street up to the fence line had been so open and notorious, that there was strong ground for the claim that, if not within the recorded line of the street, it had been dedicated to public use by the owners ; and, if that was the fact, there could be little doubt that, in making the street the southerly boundary of the lot in question, the reference was to the street as actually used, and not to the mathematical line of the recorded highway. The question of the intention of the parties to the deed in making the street the boundary of the property was not submitted to the jury by the court, and there was no request to submit it. The jury were instructed to determine as a fact where the line of the highway was, and, if they found that it was as fixed by the surveyors, then to render a verdict for the defendant. We are precluded from reversing the judgment upon the facts, for the reason that there is no certificate in the case that it contains all the evidence, and we are compelled to affirm the judgment; but, as the case is one in which the statute provides that a new trial may be had at the plaintiff’s election, we have endeavored to point out what we consider to be the questions upon which the controversy turns, so that, if there should be another trial, it might be submitted to the jury. The judgment must be affirmed.

All concur.


text:
    Jacob Hauptmann et al., as Administrators, etc., Resp’ts, v. First National Bank of City of Brooklyn, App’lt.

      CSupreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Banks—Deposits—Checks.
    Checks, made on a bank account made up of several deposits, the title to one of which is in dispute, will be first applied to the undisputed deposits.
    Appeal from a judgment, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      Joseph A. Burr, for app’lt: George H. Pettit, for resp’ts.
   Brown, P. J.

The complaint in this action, after setting forth the incorporation of the defendant, the death of John Hauptmann, and the appointment of the plaintiffs as the administrators of his estate, alleged that one John Ernst had deposited with the defendant the sum of $15,000 with instructions that the same should be held for the account of the Church of the Annunciation, a domestic corporation, and that defendant had received said sum of money, and placed it to the credit of said church; that said money was the property of said John Hauptmann in his lifetime, and was a part of his estate, and that the title thereto was vested in the plaintiffs, as his administrators. It further alleged that plaintiffs had notified defendant of their ownership of said fund, and had demanded payment thereof, which had been refused, and contained the usual prayer for judgment for the sum named, with interest. The answer put in issue the death of John Hauptmann, and the appointment of the plaintiffs as administrators of his estate, and the ownership of said money by Hauptmann in his lifetime, and 'the plaintiffs’ title thereto. As a further defense, it alleged the deposit by Ernst, and instructions to credit the same to the account of the Church of the Annunciation, and the payment of checks and drafts, to the amount of $8,289.42, drawn by said church upon the defendant before it was notified of the plaintiffs’ claim. It appeared upon the trial that, prior to the demand ■of the plaintiffs upon the defendant, there were other deposits made by said church, and credited generally to its account upon the defendant’s books, and that the fund deposited by Ernst had not been specially appropriated to the payment of the drafts aforesaid, but they had been charged generally to the account of the ■church, and that, after deducting them from the total credits, there remained a balance to the credit of said church of $12,032.78. The identity of the money held by the bank at the commencement of this action with the original deposit of $15,000 is of no importance in this controversy. The action is for money had and received. Its •object was to obtain payment of the debt due to the plaintiffs from the defendant. But it is of an equitable character, and when the account is made up of deposits from two or more sources, the title to only one of which is questioned, the law applies the payments made by defendant of checks drawn upon the account to the reduction of that part which is made up of deposits not in dispute, and leaves those deposits which are in question, so far as practicable, unimpaired. Importers & T. Nat. Bank v. Peters, 123 N. Y. 272; 33 St. Rep. 182. The defendant would have been fully justified in making such application of the payments itself, and in so doing would not have violated any rule of law or ■equity, nor impaired the rights of the church; and, if it had chosen so to act, the case would have been one in which an order ■of interpleader would have been proper, and the defendant might have relieved itself from liability by depositing the balance of the account in court, and left the title to the fund to have been determined in an action between the plaintiffs and the Church of the Annunciation. It elected, however, to defend the action against the plaintiffs’ claim, and if it now finds that it is liable to an action by the church for the same fund its embarrassment is the result of the course it pursued. Upon the pleadings, the only issue was one of fact, and the material question was whether" the money deposited by Ernst belonged to John Hauptmann at-the time of his death. We are of the opinion that the evidence made a case for the jury.

Father Hauptmann died on June 10, 1891. For twenty-seven prior to his death, he had been the pastor of the Church of the Annunciation. Up to June 4, 1891, he had on deposit in three savings banks in the city of Brooklyn, in six separate accounts, the sum of $18,000. One-half of this amount, or three of the accounts, had originally stood in ’the name of Maria Hausman, who had been a housekeeper for the deceased, and who had inherited some property from her relatives. She died in October, 1889, leaving a last will and testament by which she appointed Father Hauptmann sole executor, and bequeathed to him all her property. Father Hauptmann, soon after the admission of the will tó probate, had one of the accounts, amounting to $3,000, transferred to his name, and at the time of his death the other two stood in his name as executor. The other three accounts had always been in Father Hauptmann’s name. On June 4, 1891, all the money on deposit in the several banks to the credit of the six accounts was paid to John Ernst, upon drafts drawn by Father Hauptmann and payable to bearer. At that date Hauptmann was sick, and on the following day he went to Hurleyville, in Ulster county, where he died on June 10th. Ernest was an assistant to Hauptmann, and his account of the transaction was that Hauptmann said the money all belonged to the church, and directed him to deposit it immediately, to the credit of the church, in the Manufacturers’ Bank. This he neglected to do, and it remained in Father Hauptmann’s house (about $6,000 of it in a drawer in his sleeping room, and the balance in a bookcase) until after his death, when Ernst deposited $15,000 with the defendant. On the balance, $2,000 was paid to a monastery in Pennsylvania for masses, and $1,000 for a vault for the interment of Hauptmann’s remains, both of these payments having been made by Hauptmann’s direction.

It would serve no useful purpose to discuss here the evidence in detail. Discussion of testimony in a judicial opinion is seldom profitable, and we shall attempt only to state our conclusions from a careful reading of the case. In reading the evidence two facts are prominent: First. There is absolutely no ground for the claim that the whole fund deposited in the several banks was the property of the church. Hauptmann’s direction to pay from it $3,000 for masses and for a vault for his body is conclusive that he claimed ownership of a part of it. Second. There is no reasonable doubt but that a very substantial part of the fund belonged to Hauptmann. Nine thousand dollars came to him through Maria Hausman’s will. In that instrument, the testatrix mentioned, specifically, “all my money in the banks.” The will bears date August 12, 1874, and at that date the testatrix had on deposit in two of the savings banks about $5,500. After the date of the will, the accounts increased by small deposits and credits of interest to the sum of $9,000. There is no testimony that even suggests that the church had any interest in these deposits, or that Maria Hausman’s interest therein was. other than an unqualified ownership thereof. As executor and sole legatee, Father Hauptmann had the legal title to the whole beneficial interest in the several deposits, subject only to the payment of the debts of the testatrix (Blood v. Kane, 130 N. Y. 517; 42 St Rep. 549), and upon his death the title to the fund passed to his administrators. With reference to the fund deposited in Hauptmann’s individual name, the evidence that any of it was the property of the church is of a meager character. It consists wholly of alleged admissions by Hauptmann that it was church money. But no statement to that effect was ever made by Hauptmann to--7any person entitled to inquire for the church, or who represented it in any way, and none of the alleged admissions were of such a character that they would work an estoppel against him. ' The cashier of one of the banks testified to the deposit of church moneys to the individual credit of Hauptmann, and of his advising him to separate the church funds from his own money; and it appears that he followed this advice as to money belonging to-three church societies. The cashier does not, however, identify any deposit as that of church money, and his testimony is of little value in substantiating the claim that any of it was the property of the church. An unsigned memorandum in Hauptmann’s handwriting was produced by the defendant’s counsel that tends to-identify two deposits in the Dime Savings Bank, of the dates of December 29, 1887, and January 10, 1888, amounting to $900, as-being church money. But no explanation of this paper was offered. We are not informed as to its history, or where it was found, or how defendant became possessed of it. Of course, it was not conclusive. The jury were entitled to consider it, and give it such weight as it deserved. We attach little importance to it. The case is, however, more suggestive in what the defendant omitted to-prove than in what it did prove. Of course, it was not necessary to its defense to show that the fund belonged to the church. It could rest its case on the weakness of the plaintiffs’ evidence. The burden of proof rested upon the plaintiffs to show that the money belonged to Hauptmann at his death. But a prima facie case was-made when it appeared that one-half of the fund had been deposited in the savings bank by Hauptmann, and stood in his name, and that he had acquired title to the other half under Maria Hausman’s will, and that the money was in his possession at the time of his death. The presumption of ownership from these facts was-not at all weakened by the fact that the fund had been on deposit with defendant in the name of the church for more than a year before this action was commenced. That deposit was shown to have been made after Hauptmann’s death by Ernst, who in no respect represented his estate, and who had no authority to dispose of the money. The conclusion to be drawn from Ernst’s evidence was that the possession of the money after it was drawn from the bank was in Hauptmann, and not in Ernst, and all instructions as to depositing it which had been given to Ernst were nullified by Hauptmann’s death. The plaintiffs had, therefore, made a case upon which the conclusion was permitted that the money, at the time it was deposited with defendant, belonged to Hauptmann. The only other possible theory, under the pleadings and evidence, was that it belonged to the church. It appeared that there were books of account of church funds, and that they had been delivered to the pastor who succeeded Hauptmann. Ernst had taken possession of all of Hauptmann’s papers. Why were not the books or papers produced? If the church possessed any money of which Hauptmann had been the custodian, there surely must have beeh some record of it, or there must have been some officer or trustee who had some knowledge of it. But no record of the church was produced, and no witness counected with it was called; and the omission of all evidence from such sources is suggestive of the fact that none existed, and that the claim that the money belonged to the church was a sham. It is impossible to believe that, if Hauptmann had several thousand dollars belonging to the church in his possession at the time of his death, some other person connected with the corporation would not have known of it. And it is equally incredible that, if such evidence was available to the defendant, as it must have been if the claim of the church was well founded, it would not have been produced upon the trial. We are of the opinion, therefore, that the verdict has ample support in the testimony. There is in the evidence a suggestion of a gift of the fund to the church. I understand any such claim to be now abandoned by the learned counsel for the appellant. But the question was submitted to the jury, and they have found against it.

The court instructed them that if the money belonged to Father Hauptmann, and was drawn from the savings banks, and Ernst instructed to deposit it in the Manufacturers’ Bank for the church, and if it was deposited pursuant to that direction, the plaintiffs could not recover. The defendant has no reason to complain of this instruction. I do not think the evidence would support the claim of a gift. There was no delivery to the church, or to any one in its behalf. It was not delivered to Ernst for the church, and, if not to him, then, in legal contemplation, it was always in Hauptmann’s possession. Ernst testified on this subject as follows : “ When I got back to the house with the money, I handed it over to him [Hauptmann], and he said : 1 Well, where shall we put it ? Where will we put it in order that it will be safe? ’ And he put some in a bookcase, and room in a drawer where money was left. * * * These places had a lock and key. The key was placed somewhere where I knew. I didn’t have the key in my possession.”

The money remained thus until Hauptmann’s death. Upon this evidence, there could be no question but that it was under the control of Hauptmann, and subject to his direction, and this disposition of the fund negatives any idea of a delivery to the church.

The judgment appealed from is not binding upon the church, and if it has any valid claim to any part of this fund it may be hereafter presented to the administrators, and determined in the manner provided by law for the adjustment of claims against the estates of deceased persons. We have examined the exceptions taken upon the trial, and there are none which call for a reversal of the judgment, or which required to be noticed.

The judgment must be affirmed.

All concur.


text:
    Jacob A. Perkins, Resp’t, v. City of Poughkeepsie, App’lt.

      {Supreme Court, General Term, Second Department,

      Filed December, 10, 1894.)

    1. Evidence—Negligence.
    Evidence of the condition of premises several months after an accident is not admissible, to prove defects therein at the time of the accident.

      Ü. Tbial—Objections—Waiver. .
    Where such evidence on the part of the defendant was excluded on the ground that none of plaintiff’s witnesses had testified to such subsequent condition, defendant, by not calling' attention to the testimony of one of plaintiff’s witnesses to such fact, waived that ground for its admission.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      G. B. Herrick, for app’lt; Frank B. Lown, for resp’t.
   Brown, P. J.

This action was brought to recover for injuries received by the plaintiff while riding on one of the public streets of the city of Poughkeepsie. While being conveyed to his home, a hired cab in which he was riding was driven into a hole, and the plaintiff thrown from his seat, and so jolted and shaken as to inflict serious injury upon him. There was evidence from which the jury were permitted to find that the hole had existed for a long time previous to the accident, and the negligence of the city in reference to it was established. The principal question of fact litigated upon the trial was as to existence of the hole. The plaintiff supported his allegation by his own testimony and that of the cab driver and several other witnesses. Opposed to this testimony was that of 15 residents upon the street—among them, several who drove over it, and all of whom had opportunity to observe its condition—that they never had seen the hole described by plaintiff’s witnesses.. The accident happened in the month of August, 1892. The defendant called a witness to prove the condition of the street in April, 1893, which evidence the court excluded, upon the plaintiff’s objection. This evidence was clearly inadmissible, as it had no tendency whatever to show that the hole did not exist in August, 1892. In excluding it, however, the court said that, if there had been any testimony given upon the direct examination of any of the plaintiff’s witnesses as to the condition of the street in 1893,- he would admit the evidence. It is apparent from the ruling of the court that he was not aware that any such testimony had been given, and the plaintiff’s counsel was evidently of the same opinion, as his ground of objection was that he had been restrained from proving the existence of the hole in 1893. The counsel for the appellant now calls our attention to the testimony of Mrs. Baker and Mr. Mills that the whole existed in 1893. The fact was called out from the latter witness on cross-examination, and does not aid the defendant’s contention ; and, in reference to. Mrs. Baker’s testimony, if the counsel claimed that the evidence he offered was admissible to contradict her, he should have called the court’s attention to it when the ruling was made. The court distinctly stated that it would admit the evidence if any of plaintiff’s witness had testified in the direct examination to the condition of the street in 1893 ; and the defendant, by failing to call the court’s attention to Mrs. Baker’s evidence, must be deemed to have waived that ground for its admission. The point in the case was as to the condition of the street at the time of the accident. Its condition in the spring of 1893 had no relevancy on that issue, and the ruling of the court was right. No other question requires discussion, and the judgment and order should be affirmed.

All concur.


text:
    William I. Turner, Resp’t, v. Horace Craighead, App’lt.

      (Supreme Court, General Term, Second Department,

      Mled December 10, 1894.)

    Animal—Dog—Viciousness—Knowledge of owner.
    Where a person keeps an animal upon his place, omits to exercise ordinary supervision over it, lets it run and fails to obtain the knowledge which such supervision would give, he is chargeable with the same knowledge that he would have obtained, had he inquired and supervised in the ordinary and usual way.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      William A. Boyd, for app’lt; Frederick W Sherman, for resp’t.
   Brown, P. J.

This action was brought to recover damages resulting from being bitten by a dog owned by the appellant, in July, 1893. The exceptions present a single question only, viz. whether the evidence was sufficient to charge the appellant with knowledge of the vicious habits and character of the dog. It was proven that the dog had bitten persons on two occasions prior to the attack made upon the plaintiff, and that it was his habit, as also that of two other dogs owned by the appellant, to rush out at persons passing upon the highway, and bark at them. A witness named Owens, who had been in the employ of the appellant during the year 1892, testified that the dog had made an attack upon him and bitten and torn his clothing; that he had attacked and bitten a carpenter upon the appellant’s premises; that when any person passed along the highway the three dogs would all rush out after him; that the dog in question was ugly, and would jump at horses’ heads and try and catch them by the snout. There was no evidence to show that the appellant knew of those occurrences, and Owen testified that he never informed him of the habits or characteristics of the dog. The court denied a motion to dismiss the complaint, and in a charge to which there was no exception submitted it to the jury to determine whether the appellant ought to have known that the dog was savage and likely to bite, charging them that if a person keeps an animal upon his place, and fails to exercise ordinary supervision over it, and lets it run, and fails to obtain the knowledge which ordinary supervision over it would give, he is chargéable with the same knowledge he would have obtained had he inquired and supervised in the ordinary and usual way. This ruling of the court was correct, and is sustained by abundant authority. Brice v. Bauer, 108 N. Y. 432; 13 St. Rep. 765; Whart. Neg. § 905; Knowles v. Mulder, 74 Mich. 202. The judgment and order must be affirmed, with costs.

All concur.


text:
    Charles W. Gibbs, App’lt, v. Long Island Bank, Resp’t.

      (Supreme Court, General Term, Second Depm'tment,

      Filed December 10, 1894.)

    1. Bank—Transfer of stock—Limitation.
    A provision in the articles of association that an indebted stockholder shall not transfer his shares until his debt to the bank is paid, is valid.
    2. Same.
    1 A recital in the certificate that the shares are subject to conditions stated in the articles of association, is sufficient to put a purchaser on inquiry.
    Appeal from a judgment, dismissing the complaint on the merits.

      Edward P. Lyon, for app’lt; II. D. Van Orden, for resp’t.
   Brown, P. J.

The facts of this case are not in dispute. As determined by the court, they are as follows: On January 26, 1881, the defendant issued to Delia P. Ducker a certificate for 40 shares of its capital stock, which certificate was as follows:

“Long Island Bank.
•“Brooklyn, New York.
“ Established under the General Banking Law of the State of New York, April 18th, 1838.
“Associated- by Articles Eecorded in the Office of the Clerk of the County of Kings, State of New York, June 17th, 1845.
“ No. -. 40 Shares.
“ Be it known that Delia P. Ducker is entitled to forty shares of the capital stock of the Long Island Bank, of fifty dollars each, and holds the same subject to the conditions and stipulations contained in the articles of association above mentioned, save that the notes of said bank shall be issued subject to the provisions of the constitution and laws of the state of New York now existing, or which may hereafter be enacted, which shares are transferable on the books of the association by the said Delia P. Ducker or her attorney on the surrender of- this certificate. In witness whereof the president and cashier of the association have hereto subscribed their hands in the city of Brooklyn, this 20th day of February, A. D. 1881.
“ J. Sniffen, Jr., President,
“John H. Ditmas, Cashier.”

On December 11, 1882, Mrs. Ducker contracted a loan with the Brooklyn bank upon her promissory note, and assigned said certificate to said bank as collateral security for the payment thereof. The' loan not having been paid, the bank sold said stock to the plaintiff, pursuant to the terms of its contract with Mrs. Ducker, and the plaintiff thereby became vested with such right and title as Mrs. Ducker had thereto. In June, 1893, the plaintiff presented to the defendant the original certificate of stock issued to Mrs. Ducker, with a transfer thereof to himself, and demanded that the said forty shares be transferred to him on the books of the defendant, and a new certificate therefor issued to him. At that date Mrs. Ducker was indebted to the defendant in the sum of $2,338.85, and it refused to transfer said shares to the plaintiff unless said debt was paid. The defendant was incorporated in the year 1845, under chapter 260, Laws 1838. The articles of association, which were duly filed in the clerk’s office of Kings county, provided that “ no shareholder of the association shall be permitted to transfer his shares, or receive a dividend or interest thereon, who shall owe to the association a debt which shall have become due, until such debt be paid, unless by and with the consent of the board of directors of the association.” In reference to Mrs. Ducker's indebtedness to the defendant, it appeared that it first began in February, 1881, and, although the particular debt then contracted was subsequently paid, there was no time from that date to the commencement of this action when she was not a debtor to the bank in excess of the value of the said shares of stock. This case differs from Leggett v. Bank of Sing Sing, 24 N. Y. 283, only in respect to a single fact. There the court found that the provision in the articles of association that shares -of stock should not be transferable until all debts due by the holder thereof to the association were discharged was known to the plaintiff. In this case there is no evidence that the plaintiff or his transferrer, the Brooklyn Bank, had any actual knowledge of the limitation put upon the transfer of shares of stock by the articles of association of the defendant. But we are of the opinion that the provision on the face of the, certificate, that the shares in question were held “subject to the conditions and stipulations contained in the articles of association above mentioned,” was sufficient information to put a purchaser of the shares upon inquiry to ascertain what the conditions and stipulations were, and that in this action the plaintiff must either be presumed- to have made such inquiry, and ascertained the rights of the defendant, or else he was guilty of such negligence as is fatal to his claim to be treated as a Iona fide purchaser of the stock. The agreement between the shareholders, contained in the articles of association, was valid and effectual, and bound every holder of the stock. It was not prohibited by any statute, nor was it inconsistent with public policy. It was intended exclusively for the benefit and protection of the bank. It was referred to upon the face of the certificate, and the date and place of record of the articles of association stated. Every prospective purchaser of shares of the capital stock was thereby informed that the shares were held subject to some condition therein contained. Having such information, a purchaser must be deemed to have had notice of those facts, which, if he had used ordinary diligence, he would readily have ascertained." Williamson v. Brown, 15 N. Y. 354-360; Baker v. Bliss, 39 N. Y. 70. He was bound to examine the articles of association, and cannot plead his ignorance thereof to defeat the defendant’s lien. The learned counsel for defendant has referred us to many cases holding that certificates of stock are to be treated as having elements of negotiability, and that the corporation is estopped from asserting its claim against á bona fide holder for value. None of the cases cited have any application to the facts before us. No question arose in any of them as to-the effect of an agreement between the stockholders qualifying and limiting the transferability of the stock. The certificates-there considered were not different from those in general use, and the questions relating to the rights, as against the corporation, of bona fide purchasers thereof. The defendants rights here rest, upon the agreement between the shareholders, and the case is therefore entirely ouside of the general rule applied in the cases-referred to. We need not inquire what the result would have been had the defendant had notice of the assignment to the Brooklyn Bank before it made the loan to Mrs. Ducker, out of which its-present claim arose. No element of that kind exists in the case. The defendant appears to have dealt with Mrs. Ducker upon the faith of her apparent ownership of the stock, and in reliance upon the agreement contained in the articles of association, and it does not appear to have known of the claim of the Brooklyn Bank, or of the plaintiff’s ownership, until demand was made for the transfer in June, 1893. Under these facts the lien upon the stock existed for the debt outstanding at that date.

The judgment is sustained by numerous authorities, and should be affirmed, with costs.

All concur.


author: Dtkman, J.

text:
    In the Matter of the Estate of Stephen T. Sherwood, Deceased. In the Matter of Mary E. Townsend, as Administratrix, etc.

      (Supreme Court, General■ Term, Second Department,

      Mled December 10, 1894.)
    Decedent—Judgments—Priority.
    Judgments against a decedent are payable in the order in which they were docketed.
    Appeal from a decree, directing a distribution of the personal-estate.

      Herrick & Losey, for app’lt; H. D. Hufcut, for resp’t the administratrix ; Jos. Morschauser, for resp’t Chas. Townsend.
   Dtkman, J.

This is an appeal from the decree of the surrogate of Dutchess county upon the final settlement of the accounts of the administratrix of Stephen P. Sherwood, deceased. The decree of the surrogate shows a balance of money in the hands of the administratrix of $39461. On the 15th day of November, 1879, Sarah J. Smith recovered a judgment against Stephen P. Sherwood, which was docketed in the Dutchess county clerk’s office on that day for $579. That judgment has been assigned to Charles Townsend, and he claims the entire balance in the hands of the administratrix, as the first judgment creditor of the deceased. Charles A. Hoag obtained a judgment against the deceased which was docketed in the Dutchess county clerk’s office on the 16th day of April, 1880, for $418.02, and he now claims payment of his judgment pro rata with the first judgment before mentioned. The fund for which the administratrix rendered an account was acquired by the deceased about two years previous to his death. The surrogate directed the money to be applied upon the judgment which was prior in point of time.

The order of payment of the debts of deceased persons by their personal representatives is prescribed by § 2719 of the Code of Civil Procedure as follows, so far as the provision is applicable to-this case:

Third. “Judgments docketed and decrees entered against the deceased according to the priority thereof respectively. Preference shall not be given in the payment of a debt over other debts-of the same class, except those specified in the third class.”

The determination of the question involved in this appeal demands the construction of subdivision S, above quoted, and the meaning of the term “priority” as it is employed in that statute. “Prior” and “subsequent” are opposite terms, and although the word “'priority ” is sometimes used in the sense of pre-eminence and preference, yet it is generally used to signify antecedence and precedence, and when we speak of prior claims we intend to denote claims which have antecedence. The statute plainly contemplates a preference of some sort in the payment of judgments, because, although the portion of the statute quoted prohibiting a. preference in the payment of one debt over another, except those specified in the third class, is a negative provision, yet, according to the maxim, “JSxpres-sio unius est exclusio alterius," the inference is that preference may be given in the payment of debts which are specified in the third class. Moreover, the word “prior,” when employed to describe a judgment, can signify nothing except priority in point of time, because a judgment cannot be prior in any other respect.

Under the common law, one judgment against a decedent, docketed previous to his death, had no preference in payment over another; but the order of payment of the debts of deceased persons was regulated and prescribed by our Eevised Statutes (2" Eev. St. p. 87, § 27), and the language of the section is the same as the language in § 2719 of the Code, except that the word “entered” follows the word “decree” in the Code, instead of the word “enrolled,” used, in the Eevised Statutes, and the clause prohibiting preferences, except as to debts specified in the third class, is-contained in a separate section in the Eevised Statutes, while in the Code it is placed in the same section. That section of the Eevised Statutes came under review by Chancellor Walworth in the case of Ainslie v. Radcliffe, 7 Paige, 440. The question involved in that case was similar to the one now presented to us, and the chancellor decided that by the provision of the Eevised Statutes judgments docketed and decrees enrolled are entitled to preference in payment out of the personal estate of the deceased debtor, ac•cording to the priority in point of time of docketing the judgment ■or of enrolling the decree, and without reference to any supposed lien of the judgment or decree upon the real estate of the decedent. And a judgment which had been docketed or a decree which had been enrolled more than ten years before the death of the decedent is therefore entitled to be paid out of his personal estate in preference to a junior judgment or decree which had been obtained within the ten years. The case of In re Hazard, 73 Hun, 22; 56 St. Rep. 82, is easily distinguished from this. That matter brought § 1251 of the Code before the court, and it was there decided that under that section docketed judgments became liens at the time -of such acquisition simultaneously upon real property subsequently acquired by the judgment debtor, and without priority between them. There is no question respecting the liens of judgment presented by this appeal, and the Hazard, Case has no application to this case. That was a proceeding to determine the rights ■of certain parties in the surplus arising from the sale of real property under a judgment in an action to foreclose a mortgage on real property, and, as the money assumed the place of the land, it became necessary to determine the question of priority of the liens upon the land, or whether there was any preference of payments between such judgments.

The decree of the surrogate should be affirmed, with costs, to be paid by the appellant.


text:
    In the Matter of Junius B. Alexander, Deceased. In the Matter of Maria Louisa Richardson.

      {Supreme Gourt, General Term, Second Department,

      Wiled December 10, 1894.)

    Wills—Legacies—Payment.
    A petition to compel payment of a legacy can be dismissed only for a cause specified in § 3733 of the Code.
    Appeal from an order dismissing a pettition to compel payment of a legacy.
    , Stichney, Spence,r & Ordway, for app’lt; Miller, Peckham & Dixon, Robert TV. Todd and McFarland & Parkin, for resp’t.
   Dtkman, J.

This is an appeal by Maria Louisa Richardson She presented a petition to the surrogate of Richmond county, in which she stated that she was a daughter of Junius B. Alexander, the decedent above named, and as such was entitled to the distributive share of his estate; that he died intestate, on the 9th day of January, 1893, and was at the time of his death a resident of the county of Richmond, and was the owner of personal property within that county-; that on the 17th day of May, 1893, letters of administration upon the estate of the decedent were duly granted by the surrogate of Richmond county to Eliza H. Alexander and Lawrence D. Alexander, and that more than one year had elapsed since said letters were granted; that the said administrators had filed an inventory of the estate of their decedent, showing personal property in their hands of the value of $1,021,-673 ; that, as the petitioner was informed and believes, the administrators had duly advertised for creditors of their decedent to pre- • sent their claims against his estate; and that the time limited by such advertisement had expired, and claims not exceeding in the aggregate the. sum of $2,000 had been presented in response thereto; that the decedent left, him surviving, his widow, Eliza H. Alexander, and the following children, and none others, ■and no issue of any deceased child, and that such children were all of full age and sound mind, viz.: Ellen L. Mayo, Lawrence D. Alexander, Welcome T. Alexander, Anita M. McFee, Frank D. Alexander, Junius B. Alexander and Maria Louisa ¡Richardson, the petitioner, and that her share in such estate, after all debts and expenses shall have been paid, is not less than the sum of $90,000; that, as she was informed and believes, there is in the hands of such administrators money or other personal property of the estate applicable to the payment of her claims, which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction; that no part of the distributive share has been paid: wherefore she prayed that a decree might be made directing the said administrators to pay her claim ; that they might be cited to show cause why such a decree should not be made, 'and why she should not have such other and further relief in the premises as justice required. The answer denies no material allegation of the petition, and sets forth no facts which show that it is doubtful whether the petitioner’s claim is valid and legal; neither does it deny the validity or legality of her claim. The statute under which the. proceedings are instituted is as follows (Laws 1893, p. 1701):

“ In either of the following cases a petition may be presented to the surrogate’s court praying for a decree directing an executor or administrator to pay the petitioner’s claim, and that he be cited to show cause why such a decree should not be made, * * * Second. By a person entitled to a legacy, or any other pecuniary provision under the will, or a distributive share for the payment or satisfaction thereof, or of its just proportionate part, at any time ■after one year has expired since letters were granted. On the presentation of such a petition the surrogate must issue a citation accordingly, and on the return thereof he must make such a decree in the premises as justice requires. But in either of the following cases the decree must dismiss the petition without prejudice to an action or an accounting in behalf of the petitioner: First. Where an executor or administrator files a written answer duly verified setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal and denying the validity or legality absolutely or on information and belief. Second. Where it is not proved to the satisfaction of the surrogate that there is money or other personal property of the estate applicable to the payment or satisfaction of the petitioner’s claim, and which may be so applied without injuriously affecting the rights of others entitled to priority or equality of payment or satisfaction.”

The prayer of the petitioner was denied; and the petition was-dismissed by the surrogate. The petitioner has appealed from the order, and we think it is erroneous. The general provision of the statute is that the surrogate, on the return of the citation which he is required to issue upon the presentation of the petition, must make such a decree in the premises as justice requires. He is authorized to dismiss the petition where an executor or administrator files a written answer setting forth certain specific facts, and where certain facts are not proved. Neither of these conditions is-presented in this case. The answer does not attempt to set forth any facts which show it is doubtful whether the petitioner’s claim is valid or legal, nor does it deny the validity or legality in any form. In the case of Lambert v. Craft, 98 N. Y. 324, Judge Dan-forth, who prepared the opinion of the court said: “ The citation brings in the executor, not to plead or respond to the petition, but, by a verified written answer, to set forth affirmatively facts, if he has any, which show that it it doubtful whether the petitioner’s claim is valid and legal, and also denying its validity or legality, absolutely, or upon information and belief. Both conditions must concur.”

The claim of the petitioner in this case was that she was one of the seven children of Junius B. Alexander, the decedent, and as such entitled to a portion of his estate. There is no pretence of any dispute as to the validity or legality of this claim. The only allegations of fact in the answer relate to the question of the amount of the petitioner’s share, but even that does not make it doubtful that the petitioner was entitled to at least $90,000. In Re McKiernan's Estate, 4 Civ. Proc. R. 218, it was said as follows: “ In this case, the petitioners alleging assets, and no written answer being filed, as required by said section, I am compelled to grant a decree for the payment of their claim.”

In Re Miller, 70 Hun, 61; 53 St. Rep. 508, it was said as follows : “In order to have justified a dismissal of the petition, the answer should not only have denied the validity of legality of the plaintiff’s claim, but it should have set forth the facts which showed that it was doubtful whether the petitioner’s claim was valid and legal.”

Our conclusion, therefore, is that the order should be reversed, with costs to be paid from the estate, and the proceedings remitted to the surrogate’s court.”


author: Martlet, J.

text:
    Mary Ann Thuringer, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 7, 1894.)

    1. Negligence—Icy sidewalk.
    The owner of a tank, from which water drips and freezes on the sidewalk, is liable to persons injured by slipping thereon.
    2. Same—Question of fact.
    In such case, it is for the jury to say whether the owner was negligent, and whether his negligence contributed to the injury.

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

      G. D. Prescott, for app’lt; Timothy Gurtin, for resp’t.
   Martlet, J.

This action was brought to recover damages alleged to have been sustained through the wrongful or negligent acts of the defendant, in permitting the water from its water column used in supplying its engines to escape and flow upon the sidewalk, and to accumulate and freeze thereon, so that it became icy, dangerous, and an obstruction to the public travel, by reason of which the plaintiff fell and was injured. The evidence of the plaintiff tended to show that the water, which dripped from this column while being shut off, ran upon, or was carried by the wind onto, the sidewalk of James street, in the city of Rome; that the drain which usually carried off the water was allowed to become blocked by ice and snow, and the water allowed to continue to flow upon the sidewalk, which became icy and dangerous; and that on the 10th of January, 1892, the plaintiff, walking on such sidewalk, slipped upon the ice which had accumulated thereon, and received the injuries complained of. The evidence of the defendant tended to show that the condition at the water column, and of the sidewalk at the point where the accident occurred, was not as testified to by the plaintiff’s witnesses. ' Upon the whole evidence the court submitted to the jury the question whether the defendant was negligent in permitting the water to flow upon the sidewalk and freeze, so as to render it dangerous for persons passing over it, and also 'the question whether the plaintiff was guilty of contributory negligence. The jury found in favor of the plaintiff on both.

On a former appeal in this case, where the evidence was substantially like that now before us, it was held that the questions of the defendant’s negligence and the plaintiff’s freedom from contributory negligence were questions of fact. 71 Hun, 526; 55 St. Rep. 87. We think that decision should be followed, and that both' of these questions were properly submitted to tho jury. McGoldrick v. N. C. & H. R. R. R. Co., 49 St. Rep. 566; affirmed 142 N. Y. 640; 60 St. Rep. 866; Chisholm v. State, 141 N. Y. 246; 56 St. Rep. 811.

The defendant also claims that the city of Rome was alone liable, and that this action cannot be maintained against the defendant. The McGoldrich Case, supra, arose at the same place, under circumstances quite similar to those proved on the trial of the case at bar. On an appeal to this court in that case the question here presented was raised, and decided adversely to the defendant. As that case was affirmed by the court of appeals, we think it is decisive of the question under consideration, and requires us to hold adversely to the defendant’s claim. Under the evidence, the questions whether the defendant fell upon the sidewalk, and whether the sidewalk was made icy and dangerous by water from the defendant’s water column, were clearly for the jury.

On the trial the defendant asked the court to charge as follows: ■it I ask your honor to charge that, if the ice upon which she fell is found by the jury to have been formed after two o’clock in the afternoon, that the plaintiff cannot recover.” The court replied: “Well, I decline to charge that, for some of your own witnesses swear to the accustomed formation of ice there, to a certain extent.” To this the defendant excepted. We find in this ruling no error that would justify a reversal of the judgment. As no other questions are raised by the appellant, we are of the opinion that the judgment should be affirmed.

Judgment and order affirmed, with costs.

All concur.


author: Rumsey, J.

text:
    The People ex rel. Charles Young, Pl’ff, v. James C. Stout, as Agent and Warden, etc., Def’t.

      {Supreme Court, Monroe Special Term,

      Filed November, 1894.)

    Habeas corpus—Stay.
    The court had no power to stay the operation of a writ of habeas corpus pending an appeal to the court of appeals from a final order discharging a relator.
    Application for writ of habeas corpus.

      H. H. Widener, Asst. Dist. A tty., for the relator; H. J. Sutherland, opposed.
   Rumsey, J.

The relator sent out a writ of habeas corpus at the general term to obtain his discharge from confinement in the Auburn state prison, and upon consideration the general term, holding that his imprisonment was illegal, made a final order that he be discharged therefrom, but suspended the proceedings upon said order for five days to enable the district attorney to appeal to the court of appeals. The time of this suspension being about to expire, the district attorney now moves for a stay of proceedings upon a final order until the hearing of the decision of the"court of appeals upon the appeal.

The only question presented is whether the court had any power to stay proceedings upon such an order. If such a power exists anywhere in the court, the fact that the order was made by the general term affords no reason why the stay should not be granted at this term. The supreme court is one court, no matter whether it be held by one judge or four, and its jurisdiction may be exercised at special or general term, unless some statute especially directs otherwise ; and the special term has jurisdiction to hear and determine all questions which can come before the court, except appeals, unless it is otherwise prescribed by law. People ex rel. Mayor v. Nichols, 79 N. Y. 582. Matter of Canal & Walker Sts., 12 N. Y. 406. But the power of any court to stay the action of the writ of habeas corpus, discharging one who has been illegally confined, is another matter entirely. There is no inherent power in any court to make such an order. The writ of habeas corpus would be deprived of its efficiency, if any court should undertake to continue an imprisonment once declared to be unlawful. Whether authority might be given to a court to stay proceedings in such a case, in view of the provisions of § 4 of art. 1 of the state constitution, may be seriously doubted; but, however that may be, there can be no doubt that, unless the authority is given by law, no court can do anything of the kind. It is no doubt true that in many—indeed, in most—cases the court which has made an order or judgment may, by its own power, without statutory authority, direct such a stay of its mandate as justice shall seem to require, but I do not think this inherent power exists in habeas corpus proceedings. The question presented to the general term by this writ was whether or not the relator was lawfully confined in prison. When the order for his discharge was made, it was a judgment that his imprisonment was illegal. From that time there was no ground for longer holding him in custody. The final order discharging him is conclusive until it is reversed, at least, and the fact that an appeal has been taken does not alter its legal effect. So long as it is unreversed, the imprisonment upon which the relator was held is illegal. Any attempt to stay his discharge by a subsequent order amounts simply to keeping him in custody for the same cause after he has been discharged by the writ, which the law forbids. Code Civ. Proc. § 2050. I can conceive of no principle upon which, after an imprisonment has been judged to be illegal, a party can be restrained of his liberty without some new and legal process, so long as the judgment stands.

It is said, however, that if these proceedings are not stayed the relator will be discharged from his imprisonment, and will leave the country, and therefore a reversal of the final order would be of no effect. All that may be very true, but yet there is no presumption that there will be a reversal, but the contrary; and the claim of the right to keep this man longer in imprisonment is based simply upon the contention of the district attorney that the law will be held differently by the court of appeals. But until it is so held the discharge is legal. Where, then, is the foundation of any right to hold him in custody ? The argument is simply ab inconveniente but that is never of much force, and certainly cannot safely be relied upon to defend the imprisonment of a person without warrant of law. The suggestion of that argument is fully answered in Ex parte Jilz, 64 Mo. 205, as well as in the opinion of Allen, J., in People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 575.

The great weight of authority at.common law is that there was no review of final order discharging a prisoner upon habeas corpus. Ex parte Jilz, supra; People v. Fairman, 59 Mich. 568. In the case last cited the authorities upon the subject seem to be very fully collated. It is quite true that in Yates v. People 6 Johns. 337, it was held by a small majority of the court of errors, against the opinion of the chancellor and all the justices of the supreme court but one, that a writ of error lay to the supreme court to review its action refusing to discharge upon habeas corpus a person who had been illegally committed. But, even in that case, Clinton, Senator, delivering the opinion of the court, says: “ If, then, the judge had jurisdiction of the cause, * * * his discharge being in favor of personal liberty, is final and conclusive. He is, in that respect, a court of dernier resort.” So even that case does not. run counter to the great current of authority, that from an order ■discharging a prisoner upon habeas corpus no appeal or writ of error lies. In this state the right to a writ of error or certiorari to review such an order was given by statute, 2 Rev. St. 573; 3 Hill, 676. Of course, if there was at common law no power to review the action of a court or judge discharging a prisoner upon habeas corpus, there could be no power to stay proceedings upon the order discharging him. The power, if it existed after the right to review was given, must nave come to exist only by virtue of the statute which created the power to review the order. But the statute gave no such power to the appellate court. It says nothing upon the subject. The Civil Code contains many provisions for the disposition of the prisoner during the pendency of an appeal from an order refusing to discharge him, providing for his being admitted to bail in such cases. But it makes no provision whatever for his custody during the review of an order directing his discharge. It does not even provide for letting him be bailed during the pendency of the appeal. It cannot be possible that the legislature would have permitted one whose imprisonment had been declared illegal to remain in prison without bail during the review of the proceedings, and yet if a stay of proceeding in such cases is permissible no other result can be reached. For these reasons, I think, that the power to stay proceedings pending this appeal does not exist, and the application for a stay must be denied. This, however, does not apply to the writ of habeas corpus to determine the right to the custody of a child, which stands upon an entirely different footing. People ex rel. Lawrence v. Brady, 56 N. Y. 182, 192.

Application denied.


text:
    Court of Appeals.
    Filed November 2, 1894.
    Henry Eugene Alexander, App’lt, v. Joseph A. Donohue et al., Resp’ts.

      Edward C. Pe kins, for the motion; P. R. Oouderi, opposed.
   No opinion. Motion for reargument denied, without costs.


text:
    Filed October 23, 1894.
    Philip Becker, Resp’t, v. Town of Cherry Creek, App’lt.

      O. R. Lockwood, for app’lt; Adelbert Moot, for resp’t.
   No opinion. Appeal dismissed, with cos.s. All concur. See 59 St. Rep. 830.


text:
    Piled October 30, 1894
    Susan Cassidy, Resp’t, v. City of Poughkeepsie, App’lt.

      O. B Herrick, for app’lt; J. Morschauser, for resp’t.
   No api :ion. Judgment affirmed, with costs. All concur. Aff’g 54 St. Rep. 224.


text:
    Piled October 23, 1894.
    E. A. Childs, Resp’t, v. Kirke B. Crane et al., App'lts.

      Rafas Scott, for app’lts; A. L. Purdy, for resp’t.
   No opinion. Appeal dismissed, with costs. All concur.


text:
    Piled October 16, 1894.
    Coxe v. State.
   No opinion. Motion to put case on calendar granted.


text:
    Filed November 2, 1894.
    Patrick Donovan, Resp’t, v. Thomas Sheridan et al., App’lts.
   No opinion. Judgment affirmed by default, with costs and ten per cent, ■damages for delay, under § 3251 of the Code. All concur. Aff’g 53 St. Rep. 586.


text:
    John Fiero, Resp’t, v. N. Y. C. & H. R. R. R. Co., App’lt.

      Hamilton Harris, for app’lt; Wm. P. Piero, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Finch, J., not voting. Aff’g 54 St. Rep. 373.


text:
    Filed October 23, 1894.
    Clara Harmon, Resp’t, v. Vanderbilt Hotel Co., App’lt.

      J. Newtoii Mero, for app’lt; H. B. Birdsall, for resp’t.
   No opinion. Order affirmed, with costs, with leave to defendant to answer within twenty days upon payment of costs. All concur. Aff’g 61 St. Rep. 347.


text:
    Filed October 9, 1894.
    William Harrigan, App’lt, v. City of Brooklyn, Resp’t.

      James O. Church, for app’lt; Henry Tonge, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 51 St. Rep. 408.


text:
    ■Filed October 23, 1894.
    Charles P. Hemenway et al., Resp’ts, v. Morris F. Knudson et al., App’lts.

      George A. Blaclc, for app’lts; John 8. Melcher, for resp’ts.
   No opinion. Order affirmed, with costs. All concur.


text:
    Filed October 30, 1894.
    Ludwig Herbst, Resp’t, v. Vacuum Oil Co., App’lt.

      Theodore Bacon, for app’lt; Geoi’ge Truesdale, for resp’t.
   ^_No opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep.


text:
    Filed October 9, 1894.
    Joseph W. Johnson, Resp’t, v. James Girdwood, App’lt.

      Jamies Dunne, for app’lt; Edward S. Clinch, for resp’t.
   No opinion. Judgment affirmed, with costs, on opinions below, with leave1 to defendant to answer upon payment of costs. All concur, except Andrews, Oh. J., not sitting. Aff’g 58 St. Rep. 338.


text:
    Filed November 2, 1894.
    Jacob Koons et al., App’lts, v. Andrew Martin, Resp’t.

      M. H McMath, for app’lts; H. Q. Pierce, for resp’t.
   No opinion. Judgment of general term affirmed, on opinion below, with costs. All concur. Aff’g 49 St. Rep. 866.


text:
    Filed October 9, 1894.
    Lake Shore & M. S. R. Co., App’lt, v. City of Dunkirk, Resp’t.

      DanielH. McMillan, for app’lt; Lester E. Stearns wndWalterD. Holt, for res’pt
   No opinion. Order affirmed, with costs, on opinion below. All concur, A’ffg 48 St. Rep. 208.


text:
    Filed November 2, 1894.
    Matthias Lehn, Resp’t, v. City of Brooklyn, App’lt.

      Henry Tonge, for app’lt; J. D. Bell, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Filed October 9, 1894.
    N. Y., L. E. & W. R. Co., App’lt, v. City of Dunkirk, Resp’t.

      George F. Brownell, for app’lt; Walter D. Holt, for resp’t.
   No. opinion. Order affirmed, with costs, tin opinion below. All concur, Aff’g 48 St. Rep. 208.


text:
    Filed October 30, 1894.
    In Matter of Niagara Falls Hydraulic Power & Manuf’g Co.

      John L. Romer, for app’lt; Herbert P. Bissell, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 51 St. Rep, 887.


text:
    Filed October 9, 1894.
    Mary Neilson, Resp’t, v. Alice Lafflin, App’lt.

      George Clinton, for app’lt; W. Caryl Ely, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Andrews, Ch. J., not sitting. Aff’g 50 St. Rep. 277.


text:
    Filed October 30, 1894.
    John Norris, Resp’t, v. Brooklyn City R. Co., App’lt.

      Morris & Whitehouse, for app’lt; 'Isaac H Maynard, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur, except Gray, J., taking no part. Aff’g 53 St. Rep. 332.


text:
    Filed November 2, 1894.
    Thomas F. Oakes, App’lt, v. Edward Delancey, Resp’t.

      Artemas H. Holmes, for app’lt; Martin J. Keogh, for resp’t.
   No opinion. Judgment affirmed, with costs. All concur. Aff’g 54 St. Rep. 87.


text:
    Filed October 9, 1894.
    Gotthelf Pach et al., Resp’ts, v. Nicholas Geoffroy, App’lt.

      Joseph Fettretch, for app’lt; Chas. E. O’ Conner, for resp’ts.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur, Aff’g 51 St. Rep. 777.


text:
    Filed October 23, 1894.
    The People, Resp’t, v. James Burns, App’lt.

      John H. Keef, for app’lt; Geo. W. Kellis, for the People.
   No opinion. Judgment affirmed, with costs, on opinion below. All concur, Aff’g 59 St. Rep. 855.


text:
    Filed October 30, 1894.
    The People, Resp’t, v. Sara B. Chase, App’lt.

      James Edward Graybill, for app’t; John D. Lindsay, for the People.
   To opinion. Judgment affirmed. All concur.


text:
    Filed October 23, 1894.
    The People, Resp’t, v. Ddward Christian, App’lt.

      A. A. Tates and Hastings é Schoolcraft, for app’lt; Daniel Kaylon, Jr., for the People. . ,,, m
   No opinion. Judgment affirmed, on opinion below. All concur. Aff'g 60 St. Rep. 814.


text:
    Filed October 30, 1894.
    The People, Resp't, v. Philip W. Frederick, App’lt.

      Frank L. Anderson, for app’lt; Horton JD. Wright, for the People.
   Ho opinion. Judgment affirmed, on opinion below. All concur. Aff’g 60 St. Rep. 195.


text:
    Charles Potter et al., Resp’ts, v. Traders’ Nat. Bank, App’lt.

      David Hays, for app’lt; Hector M. Hitchings, for resp’ts.
   Ho opinion. Judgment affirmed, on opinion below, with costs. All concur. Aff’g 53 St. Rep. 432.


text:
    Filed November 2, 1894.
    Richard D. Robens, App’lt, v. Charles R. Barrett, Resp’t.

      J. W. Crane, for app’lt; Will W. Smith, for resp’t.
   Ho opinion. Judgment affirmed, with costs. All concur. Aff’g 49 St. Rep. 172.


text:
    Filed October 16, 1894.
    In Matter of St. Nicholas Terrace.
   Ho opinion. Motion to amend remittitur granted, and remittitur amended by striking out allowance of costs. Ho costs of motion. Aff’g 59 St. Rep. 109.


text:
    Filed October 30, 1894.
    Frederick Schultz, Resp’t, v. N. Y. C. & H. R. R. Co., App’lt.

      L. F. Longley, for app’lt; J. Bider Cady, for resp’t.
   Ho opinion. Judgment affirmed, with costs. All concur, except Finch, J., not sitting, and Gray, J., dissenting. Aff’g 53 St. Rep. 149.


text:
    Catharine L. Thornley, App’lt, v. Charlotte Thornley et al., Resp’ts.

      Hugo Hirsh, for app’lt; Henry A. Forster, for resp’ts. «
   Ho opinion. Judgment affirmed, with costs. All concur. Aff’g 52 St. Rep. 940.


text:
    Filed November 2, 1894.
    Addie V. Tuthill, Resp’t, v. United Life Ins. Ass’n, App’lt.

      Harry Wilber, for app’lt; Wm. F. O'Neill, for resp’t.
   Ho opinion. Judgment affirmed, with costs. All concur. Aff’g 50 St. Rep. 266.


text:
    George F. Vietor et al., App’lts, v. Moritz Bauer et al., Resp’ts.

      James Dunne, for app’lts; Benj. F. Gardozo, for resp’ts.
   Ho opinion. Judgment affirmed, on opinion below, with costs. All concur. Aff’g 53 St. Rep. 907.


text:
    Filed October 9, 1894.
    Anna Walsh, Resp’t, v. Andrew J. Walsh et al., App’lts.

      F. F. Babcock, for app’lts; Frederick Collin, for resp’t.
   Ho opinion. Judgment affirmed, witli costs, on opinion below. All concur. Aff’g 54 St. Rep. 158.


text:
    Filed October 30, 1894.
    August Witte, Resp’t, v. Brooklyn City R. Co., App’lt.

      Morris & Whitehouse, for app’lt; Chas. J. J’atterson, for resp’t.
   Ho opinion. Judgment affirmed, with costs. All concur, except Gray, J., taking no part. Aff’g 53 St. Rep. 334.


text:
    Filed October 16, 1894.
    Otis E. Wood et al., Resp’ts, v. Franklin C. Cornell, App’lt.

      M. N. Tompkins, for app’lt; Simeon Smith, for resp’ts.
   Ho opinion. Dismissed on argument.


text:
    Supreme Court, etc.
    John Albert v. N. Y. C. & H. R. R. R. Co.
    (Supreme Court, General Term, Third Department,
    September 27, 1894.)
   Ho opinion. Motion to amend order granted.


author: Newburger, J.

text:
    Albertype Co., Resp’t, v. Nicholas J. Coundouris, App’lt.
    (City Court of New York, General Term,
    October 23, 1894.)
   Newburger, J.

The only question involved in this case is, “To whom was the credit given?” and as the trial justice properly submitted the question to the jury, and no errors having been committed on the trial that would warl •rant us in disturbing the verdict of the jury, the judgment appealed from must be affirmed, with costs.


text:
    Lina M. Allen, Resp’t, v. B., R. & P. R. Co., App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   Ho opinion. Judgment and order appealed from affirmed.


text:
    John Allen, App’lt, v. Croton Magnetic Iron Mines, Resp’t.
    (Supreme Court, General Term, Second Department,
    May Term, 1894.)
   No opinion. Judgment affirmed, with costs.


author: Per Curiam.

text:
    John Andrews, App’lt, v. John McNamara et al., Resp’ts.
    (City Court of Brooklyn, General Term,
    November 26, 1894.)
   Per Curiam.

We have carefully examined the record on this appeal, and conclude that the questions involved are substantially the same as in People v. McGuire, 126 N. Y. 419; 38 St. Rep. 444, and that the decision of the court of appeals in that proceeding controls the result herein. Judgment affirmed, with costs,


text:
    L. F. W. Arend, Resp't, v. Christopher Smith, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment and order appealed from affirmed.


text:
    In Matter of Attorney.
    (Supreme Court, General Term, First Department,
    June 15, 1894.)
   No opinion. This application must be made on notice to the attorney, on whom copies of the papers must be served. ,


text:
    Theron S. Atwater, Resp’t, v. Edward C. Wilson et al., App’lts.
    (City Court of New York, General Term,
    October 23, 1894.)
   Per Curiam.

The findings of the referee are fully justified and supported by the evidence submitted, and are concurred in by us. The judgment must therefore be affirmed, with costs.


text:
    Horace B. Ball, App’lt, v. Herman Duden, Resp’t.
    (Supreme Court', General Term, First Department,“
    November 16, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


author: Ehrlich, Ch. J.

text:
    Marshall Barber et al. v. Charles H. Rutherford et al.

    (City Court of New York, General Term,
    October 22, 1894.)
   Ehrlich, Ch. J.

The action is upon an undertaking executed by the defendants. The answer denies all the allegations of the complaint, except that the defendants had executed a certain undertaking of the general description and character referred to in the complaint. The proceedings in the action in which the undertaking was given were all denied, so that the' affirmative of the issue was upon the plaintiffs, and it was properly accorded to them. The defense relied upon a counterclaim; but it appeared by the documentary evidence offered by the plaintiffs that the same matters pleaded had been adjudicated adversely to the defendants’ assignors in a litigation to which they were privies, and they were therefore precluded thereby. Under these circumstances, the trial judge properly directed a verdict in favor of the plaintiffs; and, as there are no errors requiring a new trial, * the judgment must be affirmed, with costs.


text:
    John Barg, Resp’t, v. Eugene J. Chapman, App’lt.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment and order,of the Monroe county court appealed from affirmed.


text:
    Charles A. C. Beller, v. Sarah J. Antisdel.
    (Supreme Court, General Term, Third Department,
    September 27, 1894.)
   No opinion. Motion to dismiss appeal denied, without costs, with leave to appellant to serve notice of appeal upon other parties upon payment of $10 costs within twenty days after service of this order.


text:
    Hyman Bloom et al., v. National United Benefit Sav. & Loan Co. et al.

    (Supreme Court, General Term, Fifth Department,
    November 13, 1894.)
   No opinion. Memorandum of decision corrected, so as to provide that the order of reference be vacated.


text:
    Edward C. Bridgeman v. Robert Gair.
    (Supreme Court, General Term, First Department,
    November 16, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    In Matter of Brooklyn & B. B. R. Co.
    (Supreme Court, General Term, Secord Department,
    October 26, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    In Matter of Brooklyn El. R. Co.
    (Supreme Court, General Term, Second Department,
    October 26, 1894.)
   No opinion. Order modified by striking out the words, “to be paid to each of the said above-named defendants to the plaintiff’s attorneys herein,” and, as modified, affirmed, without costs of appeal. All concur.


text:
    Robert Bryson v. Roger St. Helen.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Motion for a reargument denied.


text:
    John Burke, Resp’t, v. John H. Seaman, App’lt.
    (Supreme Court, General Term, First Department,
    October 12, 1894.)
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Campbell Printing Press & Manuf’g Co., App’lt, v. Robert P. Yorkston, Resp’t.
    (City Court of New York, General Term,
    October 23, 1894.)
    Appeal from trial term.
   Newburger, J.

This action was brought to recover the amount of a promissory note made by the defendant to the order of the plaintiff. The defendant admitted his liability upon the note, but set up a counterclaim for commissions upon the sale of printing presses made prior to the giving of the note. The defendant had been in the plaintiffs employ upon a commission basis, but was not in its employ at the time of the sale. A careful reading of the printed case fails to disclose any error in the trial of the case. The rule governing commissions on the sale of personal property was properly stated by the trial justice in his charge to the jury. The judgment and order appealed from must therefore be affirmed, with"costs.


text:
    City of Syracuse, Resp’t, v. Richard M. Stacey et al., App’lts.
    (Supreme Court, General Term, Fourth Department,
    April Term, 1894.)
   Ño opinion. Order affirmed, with $10 costs and disbursements.


text:
    Jane H. Cork, Resp’t, v. William H. Jones et al., App’lts.
    (Supreme Court, General Term, Fifth Department,
    October 17, 1894.)
   No opinion. Judgment and order appealed .from affirmed.