author: DALY, P. J.

text:
    Franklin B. Lord, as Executor, etc., Resp’t, v. John Van Gelder, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 26, 1896.)

    1. False representations—Advice op attorney.
    The fact that the defendant, in an action for false representations as to Ills antliovi.v to enter into a contract for the purchase of land on the part ■ of his wife, when requested to sign the contract of purchase “as attorney” for iter, stated tint he was uet her “attorney,” and, on the advice of his a1 torney, signed iter name per his name, does not exempt him from liabilny-
    2. Appeal—Harmless error.
    It is not ground for reversal, in such action, that the court, in describing the fac's, erroneously stated that the contract was signed by defendant as '‘al torney,” where defendant’s only attempt to correct such mistake was an objeeiion to the instruction on the ground that the contract did not contain the words “as attorney."
    Appeal from a judgment of the general term affirming a judgment for plaintiff, entered on a verdict.
    En fus P. Livermore, for app’lt; Lncius H. Beers and George Lord Day, for resp’t.
   DALY, P. J.

It is undisputed that the defendant executed the contract for his wife, and that he had no authority to do so; but he claims exemption from liability on the ground that he stated,' at the time, that he was not his wife’s attorney. This was immaterial, because he did not sign as attorney, and it is not claimed that he represented himself to be her attorney. It is alleged in the complaint that he represented that he had authority from his- wife to contract with the plaintiff for the purchase of the lands, and the proof fully sustains the allegation. As testified to bv defendant himself, the facts are that he negotiated with plaintiff for the purchase of the lots, the price was agreed upon, and plaintiff was to prepare the agreement. Two or three days after, the defendant went to plaintiff’s office to sign it, and found it had been made .out between plaintiff and himself. He then stated that he did not want to take title in his own name. He wanted it in the name of his wife. The plaintiff asked what difference it made, and suggested that, when the deed was made out, defendant could put it in any name he wished; but defendant said he preferred to have it in Mrs. Van Gelder’s name, and plaintiff told him to alter it himself, and thereupon lie interlined lvs wife’s name. When it carne to a question of signing, he asked how he was to sign. Plaintiff said to sign it as Mrs. Yan Gel tier’s attorney. Defendant said he was not her attorney, and asked his lawyer, who was present,“How will I do that?” The lawyer saidi “Sign it ‘Jennie Van Gelder, per John Van Gelder,’ ” and said to plaintiff, “You are satisfied with that? ” And plaintiff said, “Certainly.” And it was signed that way. In changing the contract from his own to one by his wife, and signing her name, he assumed and asserted authority to do the act on her behalf, and thus made the representation with which he is charged. He did not disclaim the right to do so by stating, with reference to a particular mode of subscription, that he was not his wife's attorney. This scrupulous regard for for accuracy would only strengthen an impression that what lie did do he did by right, and defendant was justified in relying upon his assumed authority, and in subsequently endeavoring to enforge the contract against Mrs. Van Gelder.

The questions of representations and reliance thereon were left * to the jury, and their verdict is conclusive upon us., But it is contended that the jury were misled by a statement in the charge of the judge, and were instructed that the paper was actually signed by defendant as attorney. The jury were not so instructed, but the judge, in describing the facts, erroneously stated that “the written contract bears the signature of the defendant’s wife, Jennie Van Gelder, by himself .as her attorney.”

The defendant excepted “to that portion of the charge wherein the court refers to the words used in the contract ‘signed himself as attorney,’ upon the ground that the contract does not contain the words ‘as attorney.’ ” If this exception was clear enough to point out the error, it is event that the language complained of could not produce any misunderstanding on the part of the jury, for it was made exceedingly plain by the defendant’s testimony that he had avoided signing as attorney. It is claimed that .the charge was a legal construction of the effect of the signature. This it clearly was not; but, if defendant thought it might be deemed so by the jury, he should have asked for an express instruction on the point. It was a mere verbal mistake in the charge, and as the effect, if any, could be cured by an instruction, it was defendant’s duty to ask for it.

The defendant sought to avoid liability on another ground: that the plaintiff might have avoided loss by selling the property, at or before the default under the contract, to one McSorley, a party with whom defendant had been negotiating as a possible buver of the lots: but no offer from McSorley to plaintiff was proved or suggested in the trial.

The judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Sarah Lynch, Resp’t, v. George W. Sauer, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    1. Landlord and tenant—Lease—Repudiation.
    It is the duty of a tenant to repudiate promptly (he agreement in which . he has been induced to enter by duress or fraud, and his failure to do so and continuing in possession and paying rent for nearly three years after he had full knowledge of the facts constituting the duress and fraud, amount to a complete ratification of the contract.
    2. Same—Eviction.
    An eviction is necessary to constitute a breach of the covenant of quiet enjoyment.
    3. Same—Eeaud.
    A promise to do a future act cannot be set up as a fraud.
    4. Same—Repairs.
    It is the duty of the tenant to make ordinary repairs, and he is not justi- ' fled in neglecting to make them and thereafter abandoning the premises as uninhabitable.
    5. Same—Condition precedent.
    The tenant by paying the rent from the commencement of the term recognizes the validity óf the lease and waives a condition precedent to its taking effect.
    Appeal from an affirmance by the general term of the city court of a judgment in favor of plaintiff.
    George M. Curtis and Metzger & Tabor, for app'lt; Henry E. Howland and Anderson, Howland & Murray, for resp’t.
   DALY, P. J.

After enjoying the demised premises and paying rent for two years and eleven months under his lease for five years, the lessee, upon being sued for rent subsequently accruing, interposes as a defense that the lease was procured from him by duress and misrepresentations, and counterclaims damages by reason of the alleged fraud by which he was induced to enter into the lease and expend money on the premises. After so long an acquiescence, these defenses are not available. It was his duty to promptly repudiate the agreement into which he had been induced' to enter by duress or fraud, and his failure to do so, and continuing in possession and paying rent for nearly three years after he had full knowledge of the facts constituting the duress and fraud, is a complete ratification of the contract. Oregon Pac. R. Co. v. Forrest, 128 N. Y. 83; 38 St. Rep. 837; Gould v. Bank, 86 N. Y. 82.

But, even as alleged in the answer, the counterclaim for alleged fraud is groundless. It is first alleged that the lessor falsely represented herself to be the owner in fee of the premises, and had perfect title thereto, and that the defendant, believing it to be true, expended $5,000 in improvements thereon; that the representation was false; and that third parties instituted an action in ejectment, to dispossess the plaintiff. But it is not alleged that he was ever ejected, or suffered the loss of the sum so expended. An eviction is necessary to constitute a breach of the covenant of quiet enjoyment. Boreel v. Lawton, 90 N. Y. 293.

It is next alleged that the defendant was induced to expend the sum of $5,000 (evidently the same expenditure already referred to), on the premises by representations of the plaintiff that she would make large and extensive improvements upon the property, and build a dock as a landing place for boats and vessels, and that the rent should be only nominal until the defendant would succeed in establishing a profitable business; that after his said expenditure the plaintiff threatened to dispossess the defendant unless he would sign the lease sued on, and its execution was obtained by fraud, duress, and misrepresentations; and that the plaintiff failed to make and complete said improvements. The misrepresentation here alleged is a promise to make improvements, and it is well settled that a promise to do a future act cannot be set up as a fraud. 8 Am. & Eng. Enc. Law, 637. Where representations are promissory, there is nothing in them on which to found an action ex delicto. Sparman v. Keim, 9 Abb. N. C. 4.

Finally, it is alleged that about April, 1893, and before the rent sued for became due, the premises became untenantable, by reason of the dilapidation of the roof, and that defendant was consequently evicted, and compelled to abandon the premises. There is no allegation that the lessor agreed to keep the roof in repair, and, by reference to the lease, no such covenant is found. On the contrary, the lessee agrees to take good care of the building upon the premises, and to suffer no waste, and to make certain specified repairs. The enumeration of those specific repairs in the lease affords no ground for claiming that he was not to make repairs to the roof; for those are ordinary repairs, which it is the duty of the tenant to make, and he is not justified in neglecting to make ' them, and thereafter abandoning, the premises as uninhabitable. Suydam v. Jackson, 54 N. Y. 450.

It is urged by the appellant that the agreement to make improvements upon the property, and that the rent should be only nominal until the lessee’s business became profitable, was a condition precedent to the taking effect of the lease. But the defendant, by the paying of the rent from the commencement of the term, has recognized the validity of the lease, and waived the condition, if any could be claimed upon the facts.

Judgment and order appealed from affirmed, with costs.

All concur.


author: BISCHOFF, J.

text:
    John J. Green, App’lt, v. John Weckle, Resp’t.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 26, 1896.)

    1. Appeal—Conflicting evidence.
    A verdict, rendered upon conflicting evidence, will not be disturbed on appeal as against the weight of evidence.
    2. Landlord and tenant—Receipts for rent.
    The fact that the receipts for rent, signed by the landlord, bore the words, ‘‘‘ Terms of letting, one month only,” does not show that the lease was not for a year, where the parties had actually agreed that it should be, and the conclusion that they had done so, is founded upon acceptable proof.
    8. Same—Statute of frauds.
    A verbal agreement between a landlord and tenant .that the tenancy, theretofore from month to month, should continue from May 1, 1895, to May 1, 1896, made after the accrual of the rent for April, 1895, is a lease for one year, to commence in futuro, and is not void under the statute of , frauds. ' •
    4. Same.
    In such case, the fact whether the tenant would have paid the rent for April, 1895, if the verbal agreement had not been made, is immaterial.
    Appeal from a final order on a verdict awarding possession to the tenant.
    W. E. Benjámin, for app’lt; A. E. Hageman for resp’t
   BISCHOFF, J.

The appellant sought to dispossess the res pondent upon the assumption that the latter held over his term as a monthly tenant after the statutory notice to quit had been given. The defense was that a verbal lease for one year had been entered into, and upon a direct conflict of evidence this defense prevailed. We are asked to reverse the order upon the evidence, but fail to find that the preponderance is with the appellant, and in consonance with familiar rules, the jury’s determination upon conflicting testimony is not to be disturbed.

The fact that the receipts for rent, signed by the landlord, bore words, “Terms of letting, one month only,” does • not show that the lease was not for a year, if the parties had actually agreed that • it should be, and the conclusion that they had is founded upon acceptable proof.

A point is made that the agreement was in contravention of the statute of frauds, in that it provided for a tenancy from May 1, 1895, to May 1, 1898, and that it was made while the tenant was in possession before the accrual of the April rent. Thus, it is that the verbal lease was for thirteen months instead of twelve, and so void. From the receipts in evidence, and from the understanding of the parties, it appears, without contradiction, that the April rent was payable in advance, and was therefore due prior to the date of the agreement which was made on the fourth day of that month. Therefore the lease was properly viewed as for a year, to commence in futuro, and, as such, was not repugnant to the statute. Moreover, the statute of frauds was not alluded to upon the trial, and the whole question litigated was as to the termination of the tenancy as to the five-days notice.

The appellant claims that there was error in the exclusion of a question asked the defendant, whether he would have paid his April rent if the verbal agreement of lease had not been made. The question, in view of the attitude taken upon the trial, certainly appeared to be immaterial, and was very vague, if supposed to touch the quéstion of the attitude of frauds; but, at all events, the exclusion was proper, since the duty to pay the rent at that time was apparent, and the matter was not, legally, one admitting' of a choice upon the defendant’s part.

Final order affirmed, with costs.


text:
    Frederick Neff, Resp’t, v. Benno Klopfer et al., App’lts.

      (Supreme Court, Appellate Term, First Department,

      Filed Febr’y 26, 1896.)

    1. Sale—OoNSTUCTiorr.
    An order to manufacture and keep constantly on hand a certain number of boxes, with orders for delivery to follow from time to time, the stock on hand to he constantly kept up, is a continuing order for such number of boxes to be maufactured.
    2. Same.
    -Such order binds the purchaser to receive, within a reasonable time, the number manufactured, after an order for delivery, and to keep the stock up to the required number, unless the purchaser, at the time of the delivery, notifies the manufacturer not to manufacture any more stock.
    8. Evidence—Pabol.
    Evidence is admissible to explain the meaning of terms used in any particular trade, when their meaning is material to construe the contract; and the rule extends to forms of expressions as well as to single words.
    4. Same. .
    Upon an order for the manufacture of a certain number of boxes, tobe kept “on call,” parol evidence is admissible to show the meaning of the phrase “on call.”
    Appeal from a judgment in favor of plaintiff.
    Melville H. Reg'ensburger, for app’lts; Henry Schmitt, for resp’t
   DALY, P. J.

According to the testimony of plaintiff’s witness Wilcox, he called upon the defendant who was a manufacturer of corsets, using paper boxes of a particular description, and solicited orders for the manufacture by plaintiff of such boxes; that defendant gave an order to make 5,000 boxes as a sample order, which proved to be satisfactory, and defendant then said he wished plaintiff to make 9,000, of different colors and sizes, and keep them on call, and replace when called for; that.defendant was to furnish his own labels for the boxes, and did so; that payments were to be made in monthly settlements; that defendant furnished labels for about one year, during which time there were manufactured, delivered and paid for about 150,000 boxes; that in October, 1893, plaintiff had on hand 9.000 boxes that had been made*on call, pursuant to the contract; that defendant then promised to take them, but said he was then temporarily shut down, as the tariff had .affected him, but would take them and a good many more; that defendant, however, took no more boxes, and about a year afterwards this action was brought to recover for the 9,000 boxes.

On this state of facts, plaintiff was entitled to recover, as the justice might find that the defendant had had a Reasonable time in which to take and pay for the goods which had been manufactured and kept on call for him under his order. It is contended¡ however, that, upon a previous trial of this case, the plaintiff’s wit. ness Wilcox gave a different version of the transaction with the defendant, and testified, in substance that, upon his soliciting the defendant’s orders, the conversation was that, if plaintiff would keep stock on hand of these boxes, defendant would give him orders; and it is claimed that the keeping of stock on hand was an im ducement for orders, and that no obligation to pay for them arose until orders were given. Whatever construction might be placed upon the agreement as testified to upon the former trial, the testimony upon the last trial, amplifying the details of the conversation between the contracting parties, tended to show that the stock on hand was made upon an express and continuing order, and that the defendant was bound to receive and pay for the boxes so kept on hand,—if not within a month; according to the terms of payment agreed on, then within, a reasonable time. It is true that the witness Wilcox testified that he considered the answers he gave were substantially the same on both trials; but this construction which he puts upon the effect of his testimony is not very material, since, upon the second trial, he gave the whole conversation. As to the legal effect of the arrangement as now before us, there can be no doubt. An order to manufacture and keep constantly on hand 9,000 boxes was first given, with orders for delivery to follow from time to time, the stock on hand to be constantly kept upf It was a continuing order for 9,000 boxes to be manufactured. This construction imposes no unreasonable burden upon the defendant, who could, at the time of giving any order for delivery, notify plaintiff to manufacture no more stock, and so limit his obligations to his actual needs.

Proof of custom was admitted by the justice to explain the meaning of the contract to keep boxes “on call.” This was proper. Evidence of custom to explain the meaning of the words “ on approval ” was held to be proper. Evidence is always admissible to explain the meaning of terms used in any particular trade, when their meaning is material to construe the contract; and the rule extends to forms of expression as well as to single words. Smith v. Clews, 114 N. Y. 190; 23 St. Rep. 166.

Judgment affirmed, with costs.

All concur.


text:
    William M. Wilson, Resp’t, v. Brentwood Hotel Company, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Febr'y 26, 1896.)

    COBPOEATIONS—DlBBCTOB—RESIGNATION—SEBVTCE OP SUMMONS.
    The service of a summons upon a director, who has sent his resignation to the president, is not a service of the corporation, though such resignar tion has not been accepted and, if accepted, will reduce the number of directors below the minimum allowed by law.
    Appeal from judgments in favor of plaintiff entered by default, on proof of service of summons on Frederick A. Hart, described as one of the directors of defendant, on affidavit showing that Hart had resigned as a director before service of summons.
    Blair & Rudd, for app’l'c; Welch & Daviels, for resp'i,
   DALY, P. J.

It is not questioned that Hart sent his" resignaas director to president of the company, before the summons was served upon him, although it had not been formally accepted. Acceptance was not necessary to make the resignation effective. Chandler v. Hoag, 2 Hun, 613; affirmed, 63 N. Y. 624; Smith v. Danzig, 64 How. Prac. 320; Mor. Priv. Corp. § 563. The fact that the withdrawal of Hart from the company would reduce the number of its directors to less than three, the minimum allowed by law (Business Corporation Law 1892, c. 691, § 2, subd. 7) does not require us to hold the resignation ineffectual as regards the plaintiff or other creditors. There remained the president upon whom service of process could be The same consideration renders it unnecessary to discuss the charge that the resignation of Clark, and another director, Keliam, was intended to defeat the employes of the company in their efforts to recover against it If all the directors had resigned with that intention, a question of great interest would be presented, which it is not necessary now to consider. Carnaghan v. Exporters & P. Oil Co., 32 St. Rep. 1117; Smith v. Danzig, above.

At the time of the service of summons in these actions upon him, Clark notified the person making the service that he had sent in his resignation, and, that he doubted whether he was the proper person to be served. This prompt notification is satisfactory evidence that he had no intention of prejudicing the rights of creditors by his resignation.

The judgments must be reversed.

All concur.


author: McADAM, J.

text:
    Patterson Gas-Governor Company, Resp’t, v. Samuel C. Bayne et al., App’lts.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    1. Sale—Conditions—Burden of proof.
    In an action for the purchase price, payable on condition that the article sold would accomplish certain tilings, the burden is on the plaintiff to prove the performance .of such condition. So held, in an action to recover the price of a gas governor, for which defendant promised to pay, after thirty days' fair trial, on the condition that it would affect a saving of from fifteen to forty per cent, in gas.
    2. Appeal—Conflicting evidence.
    The decision of the trial judge will not be disturbed oa appeal, where the evidence is conflicting.
    Axppeal from a judgment in favor of plaintiff,

      Taylor & Parker (Herman Aaron, of counsel), for app’lts; P. O. Taiman,.for resp’t.
   McADAM, J.

The action was on a contract in these words:

“ New York, November 19, 1894.

“553 West 33d Street.

“ Patterson Gas-Governor Go.: Please attach to meter at Riverside Drive, corner of 108th street, Patterson gas governor, for which I hereby promise to pay to your order ninety dollars, after thirty days’ fair trial, provided said machine effects a saving of from fifteen to forty per cent., as demonstrated by actual time test of same number of burners for a given period, with and without governor, against open street pressure. Failing to record above saving, machine to be removed at your expense,

S. G. Bayne.’"

The burden of proving performance of the condition that the governor would demonstrate, after thirty days’ fair trial, a saving of from fifteen to forty per cent, in the consumption of gas, rested upon the plaintiff. Patterson Gas-Governor Co. v. Glenby, 4 Misc. Rep. 532; 54 St. Rep. 119. Mr. O’Keefe, an employe of the plaintiff, testified that he tested the governor, and that it affected a saving of thirty-two per cent.: and Mr. Patterson, who is also connected with the plaintiff, testified that the defendant Samuel G. Bayne told him he was perfectly satisfied with the work of the governor, and that the company was not notified to take it away. On the other hand, the defendant Samuel G. Bayne testified that he never expressed himself satisfied with the governor; that it impaired the quality of the light, which was not as good after the governor was put on as it had been previously. In short, he contended that the only effect of'the governor was to check the pressure of the gas, and that any saving accomplished resulted from the want of that quantity and brilliancy of light which he had theretofore enjoyed. The plaintiff was never officially notified of any imperfection in the governor, or called upon to take it away; and; so far as the return discloses, it is still in use by the defendants.

The action, though nominally brought against Mr. Bayne and his wife, was treated throughout as a litigation against him alone. He was the only one served with process, and judgment was not entered against her. No motion was made to dismiss the action against the wife, and she was practically regarded as being out of the case ; so that there is nothing to review as against her.

The issue narrowed itself down to a question of fact, which the justice decided upon conflicting evidence; and, while we might have reached a different conclusion, it does not follow that the justice erred.

The judgment must therefore be affirmed, with costs.


text:
    Elwood S. Hand, App’lt, v. Charles P. Rogers et al., Resp’ts.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 26, 1896.)

    1. Pleadings—Parties—Joint obligation.
    Where a party is sued with the members of one firm upon a transaction of his as a member of another firm, he is entitled to deny the making of „ a contract by the copartnership alleged, and to prevail ia the action. So hel.l, in an action on a contract made by a firm, where it appeared that the defendants composed a firm which was notin existence when the contract was made, though some of them were members of the other firm.
    3. Same—Several judgment.
    Section 1305 of the Code does not apply unless it appears that, when the defendant made the contract in a firm name, there was no firm, and he had no partner, or that the contract was made for his own purposes, and not in the business of the firm.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment dismissing the complaint,
    Charles De Hart Brower, for app’lt; John Henry Hall, for resp’ts.
   DALY, P. J.

The defendants were sued as copartners, composing the firm of Charles P. Rogers & Co., upon a contract in writing made November 30, 1889, by the defendant Charles P. Rogers, in the said firm name. The complaint alleged that, at the time, the defendants were, and still are, said copartners. The answer denied all the allegations of the complaint except that ■defendants admit “ that they are copartners under the name al- „ leged.” Upon the trial it was proved that the defendant Charles ■ P. Rogers personally executed the contract in the name of Charles P. Rogers & Co., but who were his copartners, if anv there were at the time, was not shown. It was expressly admitted by plaintiff that the other defendants were not then his copartners, and thereupon defendants moved for a dismissal of the complaint. The plaintiff claimed that the complaint should be dismissed as to all but Charles P. Rogers. The motion to dismiss as to all the defendants was granted..

The position taken by plaintiff at the trial was that an individual liability had been established against Charles P. Rogers, because it appeared that the other defendants were not bis copartners when the contract was made. This is equivalent to saying that, because certain persons were not then his copartners, he therefore had none ; that a defendant can be sued as a copartner upon a contract purporting to be executed by a copartnership, and then charged individually, because the persons the plaintiff happens to join as his copartners were not such in fact. Such a position is untenable. The copartnership must be proved as alleged, or the plaintiff must fail. This is not a case of a person sued as sole defendant upon a contract purporting to be executed by a firm. In such.a case the defendant must take the objection of nonjoinder of his copartners by demurrer or answer; otherwise, the objection is waived, and judgment will be given against him individually. Douglass v. Leonard, 44 St. Rep. 293. But, in order to recover-against him individually, he must bé sued individually. His objection to a nonjoinder of his copartners cannot be precluded unless there is a nonjoinder. _ IE he is sued with the members of one firm upon a transaction of his as a member of another firm, he is entitled to deny the making of the contract by the .copartnership alleged, and to prevail in the action.

The plaintiff claims the benefit of section 1205 of the Code, which provides that:

“ Where the action is against two or more defendants, and a several judgment is proper, the court may in its discretion, render judgment, or require the plaintiff to take judgment, against one or more of the defendants; and direct that the action be severed, and proceed against the others, as the only defendants therein.”

The section in question would apply if it appeared ‘that, when the defendant Charles P. Rogers made the contract in a firm name, there was no firm, and he had no partner, or that the contract was made for his own purposes, and not in the business of the firm. Stedecker v. Bernard, 102 N. Y. 330. In such case he would be individually liable, and judgment might be rendered against him, even if dismissed against ,the other defendants. But it did not appear that there was no firm of Charles P. Rogers & Co. of which defendant was a member at that time, or that the contract was his individual contract. The plaintiff proved nothing of the sort, and a several judgment would be improper.

The case is claimed by the plaintiff to be one of hardship, because, owing to repeated trials and appeals in the city court, costs have accumulated far exceeding the original claim. But the answer of defendants apprised plaintiff at the outset that issue was taken as to the copartnership of the defendants, and he could have saved further expense by discontinuance or amendment " '

Judgment affirmed, with costs.

All concur.


text:
    William E. Uptegrove et al., Resp’ts, v. Central Railroad Company of New Jersey, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed Feb. 26, 1896.)

    1. Carriers—Agent—Instructions.
    Where, in an action against a carrier for goods lost in transit, it appears that, the shipper notified the carrier that he desired to ship .some lumber and the carrier sent its own lighter to transport it to the depot, and that the shipper informed the carrier that instructions as to shipment would be given to the captain of the lighter, to which arrangement, which was the usual one between the parties, the carrier assented, the instructions to the captain, if not unreasonable and without the usual scheme of transaction between the parties, forms a part of the contract of affreightment'.
    8, Same—Deviations from instructions—Liability.
    Where the goods are not shipped according to instructions, the carrier is an insurer, notwithstanding exemptions in the contract, and is liable for a loss of the goods occurring on a connecting line.

      Appeal from a judgment affirming a judgment in favor of plaintiffs, rendered on direction of the trial court
    Robert Thorne, for app’lt; M. P„ O'Connor, for resp'ts,
   BISCHOFF, J.

The plaintiffs brought this action to recover for goods lost in transit, after delivery to the defendant for carriage and forwarding to certain parties in Cincinnati, Ohio. There is no contradiction in the evidence, and upon practically an agreed state of facts the case was submitted to the trial judge for determination. „ His finding was in favor of the plaintiffs, and the defendant’s exceptions bring before us the question whether, as matter of law, a recovery for the loss could be had.

In support of the judgment the following facts appear: Plaintiffs, desiring to make shipments of lumber to two firms in Cincinnati, so notified the defendant, who thereupon sent its own. lighter to transport the lumber from their yard to the depot. The defendant’s agent was personally informed, at the time, that instructions as to the manner in which shipments should be made would be given to the captain of the lighter, and he made answer that ‘‘that was all right.” There had been a course of dealing between the parties with regard to shipments of this nature, and instructions given to the captains of the lighters employed had been uniformly carried out by the defendant. Thus, unless the instruction given in this case, and upon which the matter in suit hinges, was unreasonable, and without the usual scheme of transaction between the parties, we must hold it to have formed a part of the contract of affreightment, and .resolve the question accordingly.

This instruction, which was given to and acquiesced in by the captain of the lighter, was that all the lumber consigned to Unewehr & Co. should he placed in one car, and to facilitate this purpose the consignment was placed in a portion of the lighter separate from other consignments. Actually the shipment was made in two cars; one car being filled, and the excess placed in a car with other goods. The defendant had cars of sufficient size to carry this whole consignment, and had shipped larger quantities of lumber for the plaintiffs before in one car. Ho evidence was adduced wherefrom it might be gathered that this instruction was unreasonable, .in view of the course of dealing between the parties ; and we cannot hold that there was no room for an inference that such a method of shipment as the plaintiffs directed was, in its nature, reasonably within the contemplation of the parties, as an incident to the carriage, when invoked. The matter fell naturally within the province of the captain, who had been held out as an agent to receive instructions touching the manner of shipping. These oral instructions, then, which were in evidence without objection, taken together with the bill of lading, formed the contract between the parties; but, in the bill of lading, it was agreed that the defendant should not be liable for a loss occurring beyond its own line, and, since the evidence shows that the lumber consigned to Unewehr & Co. wás delivered, packed in two cars, to the next connecting carrier, it is claimed that no liability for the loss attached, although only one car load finally reached the consignee.

It appears that the plaintiffs had notice of this restriction of liability, notwithstanding that the particular bill of lading in this case was not delivered until after the goods were in transit, since, in the various other shipments previously made, the same form of contract was used, and nothing different was looked for, apparently, in this instance. Nor does the proof show any negligence upon the,defendant’s part im the method of packing the lost, lumber in the second car, nor in the manner of labeling that car. But the liability was, we think, properly imposed, upon the ground that there was a deviation by the carrier from the terms of the contract, and that, for its failure to ship the lumber in one car, the defendant was.chargeable as an insurer of the goods. It appears that the reason of the requirement for shipment in this manner was that another consignment of similar lumber was made upon the same day by the plaintiffs to other parties in Cincinnati, and it was feared that a commingling and loss might result if the larger consignment was not shipped entirely by itself. Knowing that the defendant assumed no liability beyond its own line, it was but natural that the plaintiffs should seek some reasonably safe method of delivery, and it would appear that, from the defendant’s failure to observe the requirement imposed, exactly what was feared did, happen. The goods were accepted for earriage under an agreement as to the terms of which the defendant had, at least, imputable knowledge, and the case appears to be a proper one for the application of the rule charging a carrier as insurer of goods, notwithstanding exemptions in the contract, where there has been a deviation from its material terms. Maghee v. Railroad Co., 45 N. Y. 514. This main question is alone presented to us by the appellant, and we conclude that there is not ground for a reversal.

J udgment affirmed, with costs.

All concur.


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    Joseph Davidoff, Resp’t, v. Wheeler & Wilson Manufacturing Company, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896,)

    1. Appeal—Weight oh evidence.
    Upon an appeal from the general term of the city court to the appellate term of the supreme court, the affirmance by the general term concludes the appellate court upon the question of preponderance of evidence and the latter court must confine its attention to the exceptions taken at the trial.
    2. Same—Dismissal oh complaint.
    Where there is some evidence in support of the plaintiff’s cause of action, no error arises from denial of the defendant’s motion for a dismissal of the complaint.

      8. Malicious prosecution—Reasonable belief.
    In an action for malicious prosecution, a request to charge, which permits inquiry as to the actual, as well as the reasonable, belief of the prosecution party, is properly refused.
    4. Same —Advice to counsel.
    A refusal to charge that, if the defendant’s action was based upon advice of counsel, given after a full and fair statement of the case, the plaintiff cannot recover, is properly refused where it does not appear that any advice was given favorable to the action taken.
    5. Same.
    The fact that defendant consulted counsel before .instituting the prosecution did not show that the prosecution was advised.
    6 Same.
    An objection to the question put to the defendant’s manager by defendant’s counsel, touching the bringing of the complaint. “ Vvliat was my advice to you ?” was well .s,l,mined, since it had not been shown that a full and fair statement of the case had been made.
    7. Same.
    The fact that, subsequently, the witness stated that he had made such a full and fair statement, while it would have rendered the evidence admissible, had the counsel desired to ask the question again thereafter, does not render the former ruling incorrect.
    Appeal from an affirmance of the general term of the city court of a judgment on a verdict for plaintiff.
    Holden & Allen, for app’lt; Morris Cultor, for resp't. .
   BISCHOFF, J.

The appellant’s counsel has devoted a considerable portion of his brief to argument upon the facts, and touching the weight of the evidence in this case, which industry upon his part must go unrewarded, since the affirmance by the general term below concludes upon the question of preponderance and we must confine our attention to the exceptions taken at the trial. Claflin v. N. Y. Standard Watch Co., 7 Misc. 669; 58 St. Rep. 380; Gold v. Serrell, 6 Misc. 124; 55 St. Rep. 696; Myers v. Cohn, 4 Misc. 185; 53 St. Rep. 223. There was certainly some evidence in support of the plaintiff’s cause of action, and hence no error of law appears from the denial of the defendant’s motion for a dismissal of the complaint The action was for malicious prosecution, based upon the fact that the defendant procured the plaintiff’s imprisonment for eight days, pending examination by the grand jury into the defendant’s complaint of larceny, which charged was rejected by that body. The plaintiff's evidence showed that he had received a certain machine from the defendant under a contract whereby he was to pay sums upon installment in order that title might finally vest in him, and it was further provided that the machine should not be removed from the place of delivery without notice to the defendant. Subsequently, permission for removal into the custody of one Eisenstadt was given by the defendant, and notice of such removal was received from the plaintiff. Thereafter the defendant notified the plaintiff that the machine had been removed from this last location, and required him to trace it, which he did, and forthwith sent a postal card to the defendant, advising them as to where the chattel could be found. Some days afterwards he was arrested upon the defendant’s complaint, and it is in evidence that one of the defendant’s agents admitted, at the time of the arrest, that the postal card had been received. No question of law, therefore, arises upon the evidence, since all the elements of a cause of action for malicious prosecution are found in the matters detailed. The jury believed the plaietiff’s evidence and the general term were satisfied with regard to preponderance of proof. It is not for us to look further.

The first exception relied upon was taken to the court’s refusal to charge, “in the form requested,” that “the true inquiry for the jusy is, not what were the actual facts as to the guilt or innocence, but what did the defendant have reason to believe, and what' did he believe, in reference thereto, at the time of the complaint.” The ruling of the court was certainly very proper, since this proposition permitted inquiry as to the actual, as well as the reasonable belief of the prosecuting party, whereas the latter kind of belief was alone in question. Fagnan v. Knox, 66 N. Y. 525.

Next it is claimed that the court erred in .refusing to charge, in effect, that, if the defendant’s action was based upon the advice of counsel given after a full and' fair statement of the case, .the plaintiff could not recover. The question of advice of counsel, however, was not in the case, since it does not appear that any ad-, vice was given favorable to the action taken. True, the defendant consulted counsel, and subsequently instituted these .criminal proceedings, but whether upon the advice of counsel or not is a matter of surmise merely. Therefore, the ruling was not erroneous. So, too, the court properly excluded the questions whether the defendant’s counsel had carefully considered the case, and had given his advice in good faith. In any aspect, this inquiry would seem to have been immaterial; but, as noted, the advice given, whatever it may have been, did not appear to have influenced the situation.

The objection to the question put to the defendant’s manager by defendant’s counsel, touching the bringing of this complaint, “ What was my advice to you ? ” was well sustained, it not having been shown that a full and fair statement of the case had been made, and this was essential. Ames v. Rathbun, 55 Barb. 194. The fact that, subsequently, the witness stated that he had made such a full and fair statement certainly would have rendered the evidence admissible, had counsel desired to ask the question again thereafter; but the ruling, when made, could not correctly have been otherwise.

No further points are presented, and we have but to affirm the judgment.

Judgment affirmed, with costs.

All concur.


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    Beadleston and Woerz, Resp’t, v. Henry Morton et al., App’lts.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    Accoro and satisfaction—Chattel mortgage—Seizure of property.
    Whore the mortgagee, in taking possession of the mortgaged property upon t.lie attempted conversion of it by the mortgagor’s assignee, is merely exercising his rights to protect the mortgage security, such possession does not in any way operate as an accord and satisfaction of the same. So held, where the defendant purchased saloon property, assuming a chattel mortgage thereon held by-plaintiff as security for rent, and took from the mortgagor an assignment of the lease, promising plaintiff that he would pay the rent, and that on default plaintiff might foreclose the mortgage, and after several installments were due and unpaid, defendant sold out to a third person who attempted to remove the mortgaged property, whereupon plaintiff- took possession thereof.
    Appeal from a judgment in favor of plaintiff.
    Hays & Greenbaum, for app’lts; Guggenheimer, Untermyer & Marshall, for resp’t,
   McADAM, J.

The defendants purchased the saloon No. 9 Murray street, on which there was a chattel mortgage held by plaintiff, a domestic corporation. The mortgage was made by the former proprietor, Gertrude A. Fox, for the sum of $6,750, auc covered the lease, goods, chattels, and fixtures of the place. Thd plaintiff entered into a written agreement with the defendants by which certain clauses in the mortgage were modified, and the time of payment extended, and the defendants assumed the mortgage, to the extent of $2,400. By the third paragraph of said agreement, defendants promised to promptly pay on the 1st day of each month, in advance, all rent to accrue under a certain indenture of lease made by the plaintiff to said Gertrude A. Fox, of which the defendants were the assignees, and agreed that, if default should be made in the payment of such rent, it should be the privilege of the plaintiff, át its option, to immediately demand payment of said mortgage, and, in default thereof, foreclose the same. Thus, the defendants were more than guarantors. They assumed the debt, made it their own, and unconditionally agreed to discharge it. The first installment of rent became due May 1, 1895, and the second on the following June 1st, and neither was paid. The answer was a mere general denial, and there was no-plea of payment, or of accord and satisfaction, and no evidence that would have justified either. Some time in June the defendants gave up possession of the premises, without notice to the plaintiff. It then appeared vthat they had sold out to another party. A bout a week or ten days after defendants’vendee went into possession he moved out, and attempted to take with him part or all of the property and fixtures mortgaged to the plaintiff. The plaintiff thereupon sent Mr. Pottberg down to the place, for the purpose of restraining defendants’ assignee from taking the property on which it held the mortgage. Mr. Obenneier, one of the defendants, was also present, and picked out goods belonging to them. After the removal of defendants’ vendee the mortgaged property was left in the building, and the place closed up.

Appellants claim that the effect of taking possession of the property is to satisfy the plaintiff’s debt, or to suspend all remedies thereon until the property is sold by foreclosure, the equity of redemption extinguished, and the amount of deficiency ascertained, and that for such deficiency, and no other, the defendauts are liable. The appellants cite Olcott v. Railroad Co., 40 Barb. 179; id., 27 N. Y. 546; but there the property had been sold, bought in by the mortgagee, and the proceeds of sale credited on the mortgage debt. 'No sale has been had here, and there is no evidence that the value of the chattels equals or exceeds the debt, or would be likely to satisfy it if a sale were had. The' respondent, on the other hand, contends that, in taking possession of the mortgaged property upon the attempted conversion of it by the defendants’ assignee, the plaintiff was merely exercising its rights to protect the mortgage security, and that such possession did not in any way operate as an accord and satisfaction of the debt. The case is somewhat similar to Lathers v. Hunt, 30 St. Rep. 432. There the mortgaged chattels consisted of furniture mortgaged to secure rent due upon the premises. The mortgagor abandoned the property, and the plaintiff assumed possession of it, and, while, thus in possession, brought his action to recover from the defendant the amount of arrears of rent to secure the payment of which the mortgage was given. Upon the trial, defendant contended that the possession of the mortgaged chattels by the mortgagee operated as a satisfaction of the mortgage debt. The trial justice sustained the contention, and rendered judgment in favor of the defendant, from which an appeal was taken, and the decision of the court below reversed, upon the ground that the action was maintainable. The plaintiff in this action, as in Lathers v. Hunt, supra, took possession of the chattels for the purpose of protecting them, rather than in the exercise of any option of foreclosure. The promise made by the defendauts being an unconditional one, to pay $2,400, in monthly installments of $100 each, we think the justice properly rendered judgment in favor of the plaintiff. Whatever sums the defendants pay will go in mitigation of the debt they assumed, and, when the plaintiff exercises its option of foreclosure, reduce the deficiency, if there.be one, or increase the surplus, if any, arising from the sale. The mortgaged property being saloon fixtures, of precarious value, the plaintiff is probably awaiting a favorable opportunity before attempting a sale at which the property may be sacrificed. " The judgment must therefore be affirmed, with costs.


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    Dixon Van Bussum, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    ÜL Costs—Hew trial.
    When the judgment of a justice of a district court is reversed and a new trial is ordered, with costs to abide the event, the party prevailing upon the new trial becomes entitled to them immediately upon the entry of the new judgment in the district court, and is then entitled to have them taxed by the clerk of the appellate court, and to have them collected.
    8. Appeal—Return—Costs.
    Where a judgment of a district court is reversed and the case remanded to a justice, and, on a new trial, lie dismisses the complaint, he must, on tender of the costs of the second trial, as provided by section 3047 of the Code, and’ without tender of the costs of the former trial, make a return to the appeal.
    Motion to compel the justice to make a return on appeal
    J. Baldwin Hands, for app’lt; Bitch, Woodford, Vovee & Wallace, for resp’t t

   DALY, P. J.

— When the judgment of a justice of a district court is reversed, and a new trial is ordered, with costs to abide the event, the party prevailing upon the new trial becomes entitled to them immediately upon the entry of the new judgment in the district court, and is then entitled to have them taxed by the clerk of the appellate court, and to collect them. There is no practice by which they can be inserted in the judgment of the district court, because (1) they are not awarded by the justice; (2) because the party entitled to them cannot be ascertained until that judgment has been entered, for the judgment is the event upon which they depend; (3) they must be taxed by the clerk of the appellate court in which they are awarded, and they cannot be taxed until the judgment of the district court entitling the party to tax them is produced to the clerk. As the judgment upon the new trial in the district court should include only those costs which the justice has power to award, a party desiring to appeal is not required, as a condition of appealing, to pay other costs than those so awarded. The Code provides that the appellant must pay the costs of the action included in the judgment (section 3047), and this means, of course, the costs of the action properly included in the judgment, i. e. those awarded by the justice.

In the case before us, the justice, upon the new trial, dimissed the complaint, and entered a judgment for $80.15 costs, which included the costs awarded by the general term of the court of common pleas on the appeal from the .former judgment, and $12.25 costs and disbursements of the second trial The appellant tendered the $12.25 to the justice, which was refused, and the justice declined to make a return until the whole of the $80.15 was paid. The appellant is right in his contention, and upon payment of $12.25 the return should be made.

The motion is granted. As the question has not been determined before, no costs of motion will be allowed. All concur.


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    Bernard Kreizer, App’lt, v. John T. Allaire, Resp’t. Same, App’lt, v. John T. Allaire et al., Resp’ts.

      (Supreme Court, Appellate Term First Department,

      Filed Febr’y 26, 1896.)

    1. Appeal—City court—Review by supreme court.
    An order of the general term of the New York city court, permitting an order of the special term vacating an order of arrest, cannot be reviewed by the appellate term of the supreme court, unless the order appealed from shows that the special term order was sustained on the ground that there was no power to grant the order of arrest.
    2. Same.
    Unless the contrary appears in the order appealed from, it must be assumed that it was made by the city court in the exercise of its discretion, and the opinion of the court bc-low cannot be resorted to for the determination of the ground on which it acted in reaching its decision.
    Appeal from orders of the general term, affirming orders of the special term granting motions; vacating orders of arrest in each of said actions.
    Fromme Bros., fór app’lt; G. H. Benn, for resp’ts.
   McADAM, J.

The position of this court ^ with respect to the city court is the same as that occupied by the court of appeals in regard to this court; and the rules that govern the court of appeals in passing upon appeals from the supreme court are applicable to matters coming before this term. McEteere v. Little, 8 Daly, 167; 7 Abb. N. C. 374; Walsh v. Schulz, 12 Daly, 103; Keller v. Feldman, 49 St. Rep. 718. The same reason that prevents the court of appeals from reviewing matters resting in the discretion of other courts applies with full force to appeals brought to this court from discretionary orders of the city court. Id. The decision of the special term of the city court upon the motions in question was reviewable by the general term of that court; but the orders vacating the orders of arrest are not appealable to this court unless they show they were vacated for want of power. Allen v. Meyer, 73 N. Y. 1; Williams v. Telegraph Co., 93 N.Y. 640; Brooks v. Construction Co., Id. 647; Hudson River Tel. Co. v. Watervliet Turnpike & R. Co., 121 N. Y. 397; 31 St. Rep. 524. Unless the contrary appears in the orders appealed from, it must be assumed they were made by the city court in the exercise of its discretion. Clarke v. Lourie, 82 N. Y. 580. The opinion of the court below cannot be resorted to for the determination of the ground on which it acted in reaching its decision. Clarke v. Lourie, supra; Dibble v. Dimick, 143 N. Y., at pages 554, 555, 62 St. Rep. 798. If the general term had incorporated in its orders that the decision of the special term judge was sustained by it on the ground that the action was not maintainable, a question of law would have been raised which might be reviewed here. Anderson v. Anderson, 112 N. Y., at page 106; 20 St. Rep. 344. Birge v. Berlin Iron Bridge Co., 133 N. Y. 477; 45 St. Rep. 874; But the orders contain no such recital, nor do they refer to and make the opinion part of the record, as was done in Tolman v. Railroad Co., 92 N. Y. 353. As the record comes before us, it merely discloses the exercise of a lawful discretion by the city court, and the appeals must therefore be dismissed, with costs

All concur,


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    Solomon Davis, as Treasurer, etc., App’lts, v. Michael Bonn, Resp’t.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)
    Contract—Breach.
    The party, who first commits a breach of the contract, cannot hold the other part)' liable for a subsequent refusal to perform. So held, where the defendant entered into a contract with a labor union by which he agreed to employ only members of the union, and it agreed to furnish defendant on demand with workmen who were members, and afterwards defendant dismissed a workman, whereupon the union withdrew all in defendant’s employ and refused to allow them to return, unless defendant would take back the One he had discharged, and defendant then employed workmen who were not members of the union.
    Appeal from an order of the city court, reversing a judgment on a verdict directed in his favor, and ordering a new trial»
    Fromme Bros., for app’lt ; Jacob Manheim, for resp’fc,
   DALY, P. J.

The agreement between the defendant, a contracting tailor, and the United Brotherhood of Tailors, provided that the former would employ none but members of the brotherhood in good standing, and that the brotherhood should furnish him upon demand a sufficient number of workingmen, members of the corporation. The other provisions related to hours of labor and pay, the reinstatement of members who were employes before the date of the contract, and the furnishing by the defendant of a bond in $400 for the faithful performance of his contract, and providing that in case of a breach thereof that sum was tobe forfeited to the corporation as fixed and liquidated damages. A little over a month after the contract was made, the defendant discharged one of his employees, named Greenberg, a presser, a member of the brotherhood, for not doing his work properly, as aliened. Greenberg thereupon tried to induce the other workmen to strike, but was unsuccessful, and left. The same day, the walking delegate of the brotherhood arrived, and inquired into the trouble, and then called away all the employees from the shop to a meeting, to ascertain the facts, promising to return them in half an hour. A few hours later, a committee from the brotherhood waited ppori defendant, and offered to send back all the hands if defendant would take back Greenberg, and keep him until Friday. This was declined. Defendant offered to pay a week’s wages to Greenberg if the union would send another presser, but that was refused; and plaintiff declined to permit the other men to return because defendant refused to re-employ Greenberg. Defendant subsequently employed other workmen, not members of the union, and action was thereupon commenced upon the bond.

It appears that, while the defendant did employ persons who were not of the brotherhood, it was only after the latter had withdrawn their members from his shop, upon his discharging Green-berg, and had refused to permit them to return unless he would take Greenberg back. The breach- of the contract was on the part of the brotherhood in withdrawing their men. Nothing in the agreement conferred that power. When Greenberg was discharged, the defendant was bound to ask the union for a presser if he desired to have one. Whether the union would be justified in insisting then upon his taking back Greenberg, and refusing to substitute another in his place, is a question with which we have now nothing to do, for the union did not wait for his action in that regard, but withdrew all the employes whom he was willing to retain. At the time they were withdrawn the defendant had committed no breach of his contract, for he had not then employed any one who was not a member of the brotherhood. He had not agreed that he would retain all who were sent and discharge none. He had agreed to employ none but members; and this agreement was not broken by the discharge of a member. The withdrawal of the men by the union, on the other hand, was a direct violation of their agreement to furnish all the men he required. Having first broken the agreement, they could not hold the defendant to it. It was-terminated, and he was at liberty to employ other workmen without liability upon his bond, which fell with the contract.

Judgment affirmed, and judgment absolute ordered on the stipulation, with costs.

All concur.


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    Samuel Levien, Resp’t, v. Solomon Levi et al., App’lts.

      (Supreme Court, Appellate Term, First Department,

      Filed February 26, 1896.)

    Damages—Pledge—Contract to redeem.
    Where, upon a sale by a partner of his interest in firm property to his copartner, the latter with two other persons, agreed to redeem and deliver to the vendor as an additional consideration ceriain jewelry pledged for the partnership, the measure of damages for breach of the agreement is the amount for which the jewelry is pledged, and it is immaterial whether the vendor has himself paid or not paid the pledge.
    Appeal from a judgment in favor of plaintiff.
    Manheim & Manheim, for app’lt; G, M. Boerman, for resp’t.
   McADAM, J.

The plaintiff and the defendant Levi owned property at Colchester, Oonn., in partnership. The plaintiff agreed to transfer his interest to his partner for $300, and executed a deed thereof to him. In consideration of the delivery of this deed the defendants signed an agreement to redeem certain jewelry belonging to the plaintiff, and which he had pawned for $75. The agreement was signed first by Levi, and afterwards, before the delivery of the deed, and as a condition of its delivery, by the defendants Hyman Okun and Morris Okun. These latter defendants claim that they merely signed as witnesses, but this is denied by the plaintiff, and there is nothing in the paper to corroborate their contention. On the contrary, the paper was witnessed by E. S. Day, in whose office the contract was drawn, and the justice must have found it was signed by the three defendants as principals in order to procure the delivery of the deed. The defendants Okun were apparently interested in having the deed delivered to Levi, for he immediately thereafter executed a deed to them for the same farm. Bertha Levien, the plaintiff’s daughter, testified that the plaintiff and Levi were in partnership in respect to the farm ; that they could not agree; that one of the Okuns was a brother-in-law of Levi, and an understanding was arrived at between the defendants and the plaintiff by which Levien was to receive $300 in cash from Levi, as well as the jewelry. From the entire testimony it is clear that the plaintiff was unwilling to trustLevi, with whom he had disagreed ; and that he would not deliver the deed until the Okuns joined in the contract with Levy to return the jewelry to the plaintiff, which was to be his, and his alone. By the contract the defendents agreed to return to the plaintiff the jewelry that was pawned. While it was pawned for the joint benefit of the plaintiff and Levi, it is plain that it was to become the sole property of the plaintiff, and that is why the contract was made to redeem and return the jewelry to him. It is contended by the defendants that, as the value of the jewelry was not proved, no legal measure of damages was established. This is not so. The plaintiff was liable to the pledge for $75, the amount of the loan made, and was interested in having the obligation discharged. The defendants in effect agreed to satisfy the debt, and not only redeem, but return, the property to the plaintiff. A right of action accrued upon the breach of the undertaking, and the measure of damages is the amount agreed to be paid (Port v. Jackson, 17 Johns. 246; Churchill v. Hunt, 3 Denio, 322; Weddle v. Stone, 12 Ind. 625; 2 Sedg. Dam. [7th ed.], pp. 4, 5), and this result follows whether the plaintiff" himself first discharged the debt or not (id.). The.action was founded on the special promise to pay, so that the judgment, which was for $75, is right, and must be affirmed, with costs.

All concur.


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    John Reilly, Resp’t, v. Third Avenue Railroad Company, App’lts.

      (Supreme Court, Appellate Term, First Department,

      Filed Febr’y 26, 1896.)

    1. Negligence—Contributory.
    It is not contributory negligence, as matter of law, for the driver of a ■ dirt cart to attempt to drive across a street car track eighty feet in front of a cable car approaching at the rate of seven miles an hour.

      2. Same.
    The facts, in this case, were held to be sufficient to entitle the plaintifl to go to the jury on the question of negligence on the part of the defendant and freedom from fault on the part of the plaintiff.
    3. Trial—Charge.
    In an action against a street railway company for personal injuries received in a collision with a cable car, it is proper for the court to refuse to instruct that, “if the jury find it is a fact that the defendant’s witnesses are entitled to be believed equally with the plaintiff’s, then the defendant is entitled to a verdict."
    4. Same.
    Where, in such case, there is a direct conflict in testimony, it is not error to charge-that the jury may disregard the testimony of any witness.
    Appeal from a judgment of the general term of the city of New York, affirming a judgment in favor of plaintiff.
    Hoadley, Lauterbach & Johnson (II. L. Scheuerman, of counsel), for app’lt; 0. Sheldon Oarothers, for resp't.
   McADAM, J.

The action is to recover damages for personal injuries to the plaintiff caused by the negligence of the defendant. On the afternoon of April 16, 1894, the plaintiff was driving a one-horse, two-wheeled tipcart, loaded with dirt, along Fortieth street, in an easterly direction, towards the Bast river. When about to cross Third avenue, at that street, just as he was going upon the crossing of the west side of the avenue, he observed one of defendant’s cars going up town upon the easterly track, about 200 feet, or a block, away, and continued across the avenue, thinking he had ample time to cross the track before the car reached him. When the head of the horse reached and was “just upon” the easterly (or up-town) track, the defenant’s car was then, as estimated by the plaintiff, eighty feet away; and, although the car was going at the rate of seven miles - an hour, 'as estimated by the plaintiff, he testified that it did not slacken its speed,—“not one jot.” The plaintiff put up his hand for the gripman to keep back, and drove as fast as he could with his heavy load, striking his horse with the ends of the lines, so as to get out of the way of the car. He was almost clear of the track when the front dashboard of the car struck the tail end of the cart, hitting the heel stick of the cart. The car pushed and knocked the cart around, and off the track, and the plaintiff was thrown off, and under the front wheel of his cart. The horse started, and pulled the cart wheel over the plaintiff’s right leg, breaking it, and he also received bruises upon his head, a slight scalp wound, and some injury to the bones of one of his fingers. The plaintiff was subsequently taken to a police station, and thence in an ambulance to Bellevue Hospital, where he remained for over five weeks.

• The facts stated were sufficient to entitle the plaintiff to go to the jury on the question of negligence on the part of the defendant and freedom from fault on the part of the plaintiff. The injuries were sustained at a street crossing. Both vehicles bad a right to cross, and neither had a right superior to the other. The. right <o£ each should -be exercised in a reasonable and careful manner, so as not to unreasonably abridge or interfere with the rights of the other. O’Neil v. D. D., E. B. & B. Railroad Co., 129 N. Y. 125, 130; 41 St. Rep. 107. In Mills v. B. C. Railroad Co., 10 Misc. Rep. 1; 62 St. Rep. 645, the plaintiff, when at a distance of twelve feet, attempted to cross defendant’s tracks when an approaching car was but sixty feet distant. The court refused to charge, as matter of law, that the plaintiff was guilty of contributory negligence, and held that it was plainly a question for the jury to determine. It is apparent that if a person about to cross the tracks of a city railroad, at a crossing, were to wait until no car was in sight, the traffic of a city would be almost suspended in certain quarters.

The defendant requested the court to charge that, “if the jury find it is a fact that the defendant’s witnesses are entitled to be believed equally with the plaintiff’s, then the defendant is entitled to a verdict.” The court declined to so charge, saying, “The value of the testimony is for the jury.” There is no force in the exception taken to this refusal. In Dolan v. Canal Co., 71 N. Y. 285, the court, at page 290, said:

“It is not strictly proper to refer to the testimony of a witness, •and ask the court to charge that, if the jury believe that witness, they must find in a certain way, or that a certain legal conclusion follows, because it prevents the jury from construing the evidence, and determining what facts it does establish. * * * This would preclude the jury from determining what particular facts Murphy’s evidence if truthful, did establish; the time when, the place where, and the character of the signals given; and also determine the effect of any discrepances or ambiguities there may have been in his evidence.”

The court, therefore, properly told the jury the value of the testimony was for them to determine.

The defendant also requested the court to charge that “the jury are not bound to believe the testimony of the plaintiff, even though it were not contradicted or impeached.” The court declined. to so charge, because “it assumes a condition of things that don’t exist,—it is contradicted.”- No exception was taken to this refusal, and the court voluntarily charged that “the jury are not •bound to believe the testimony of any witness. You, gentlemen, may disregard the testimony of any of the witnesses.” The plaintiff’s counsel then contended “that the same rule applied to all the witnesses in the employ of the defendant.” The court said, “Certainly,” and the defendant excepted. As there was a direct conflict between the evidence given by the plaintiff' and his witnesses, on the one hand, and that given by the defendant’s witnesses, on the other, the charge was unobjectionable, particularly when construed with what preceded it. The defendant’s employees were not wholly disinterested. Kavanagh v. Wilson, 70 N. Y. 177.

The charge, as a whole, conveyed to the jury the correct rule of law. The rights of the defendant were fully protected, and, where language employed is capable of different constructions, that construction will be adopted which will lead to an affirmance of the judgment, unless it fairly appears that the jury were or might be misled. See cases collated in Baylies, New Tr. 182, 183. There was nothing misleading in the charge made. The court did not charge, as in Uransky v. D. D., E. B. Railroad Co., 37 St. Rep. 543, “that the defendant’s employees were not disinterested, and their evidence should be subjected to as severe a criticism as the plaintiff’s.” Nor did the court in any manner refer to the defendant’s employes ás ihterested witnesses. The right to disbelieve them was impliedly placed upon the ground that they were contradicted. Hence, it was for the jury to determine, for themselves from the inherent probabilities of the case, which of the several witnesses on either side was telling the truth.

We find ho error, and the judgment appealed from must be affirmed, with costs.

All concur.


author: SMITH, J.

text:
    C. La Verne Ludlow, Plaintiff, v. Groton Bridge Company, Def’t.

      (Supreme Court, Tompkins Trial Term,

      Filed February, 22, 1896.)

    Master and servant—Foreman.
    The master is not liable where, after originally furnishing a safe plaue to work, it is rendered unsafe by the negligence of a coservant, where the latter is engaged in performing his duties as such coservant. So held in case of a master, who has furnished proper trucks for moving iron and proper stays for fastening it on, where an employe-was injured by failure of the foreman to secure properly the iron on a truck.
    Motion for a new trial.
    Smith & Dickinson, for pl’ff; S. D. Halliday, for' def’t..
   SMITH, J.

The question here arises upon a motion for a new trial, made after the direction by" the court at circuit of a dismissal of the plaintiff’s complaint. The facts are these : The plaintiff was employed as a laborer in the bridge works of the defendant. One Hemmingway was the foreman of the bridge works, and, in removing certain heavy iron, he had failed to properly secure the same to the truck, and by reason of his negligence the iron fell over, and caused the injury of which the plaintiff complains. It is not claimed that the defendant failed to supply proper trucks for the service, nor that they failed to supply proper stays by which the iron could be fastened. The claim of the plaintiff is that the foreman, in securing the iron to the truck, was acting as the alter ego of the master, and that his negligence, rendering unsafe the plaintiff’s place to work, was negligence for which the defendant can be held liable.

I have carefully examined the elaborate brief of the plaintiff’s ' counsel upon this motion. The general rules as stated by him are undoubtedly correct. The master is bound to furnish a safe place to work. He is not only bound to furnish a safe place, but he is bound to keep it in a safe condition. It is undoubtedly true that, in the performance of this duty, his responsibility cannot be delegated. The act of the humblest mechanic, in the performance of this obligation, is his act, for which he is responsible. This is the doctrine which was explicitly held in the case of Ballard v. Hitchcock Manufacturing Co., recently tried at Cortland, and to which reference was made upon the trial. That case, in the court of appeals, is reported in 145 N. Y., at page 619; 65 St. Rep. 865, and reported below in 71 Hun, at page 582; 55 St. Rep. 110. This rule, however, has been somewhat limited by the decisions ; and, while the master is still held liable for the original •furnishment of a safe place to work, and for its subsequent condition, he is no longer held liable where the place has been rendered unsafe by the negligence of a co-servant, while that co-servant is engaged in performing his duties as co-servant. In Crispen v. Babbitt, 81 N. Y. 516, one B. was a forman, in charge of defendant’s works. By his carelessness in letting steam into an engine,, the plaintiff, an employe of defendant, was injured. It was held, in that case, that the act of B. in letting on steam was the act. of a mere operative, for which the defendant would be liable to a stranger, but not to a fellow servant of the negligent employe. In Webber v. Piper, 109 N. Y. 496; 16 St. Rep. 423, the plaintiff was injured while using a circular saw in defendants’ factory where he was employed. In an action to recover damages for the injury, it appeared that the accident was caused by the dullness of the saw. Defendants had furnished duplicate saws, so that, when one needed to be sharpened and reset, it could be replaced by the other. It was the duty of one M., also a servant of defendants, to sharpen and reset the saws when necessary. On the morning of the accident, plaintiff notified M. that the saw he was. using was dull, and asked for another.' M. replied that he had no time then to sharpen a saw, and directed plaintiff to go on with his work. It was there held that the plaintiff was properly nonsuited, that no negligence on defendants’ part was shown,-and that their duty was performed when they furnished suitable saws,-and the means and conveniences for keeping them sharp and properly set. Judge Finch, in writing the opinion in that case, declares some principles of law which are peculiarly applicable to the case at bar. Upon page 499, 109 N. Y., and 16 St. Rep. 423, he says:

“There are many matters of detail, in the management of safe and adequate machinery, which must be intrusted to the operatives, and to which the master owes no duty, except the employment of competent workmen; and we deem this a case of that character. The line of division between the duty of the master? to furnish and maintain safe and adequate machinery, and that of the operative to manage and handle it with prudence and care, is difficult to define by any general description, but is quite obvious when each case, as it arises, comes under -consideration. In the one before us, the neglect, if any, was in the detail of the management of the machinery. A master builder might furnish proper tools to his workmen, but it would not be his duty to sharpen every chisel as it became dull, or sharpen every saw- when that need arose. The appellant relies upon the case of Kain v. Smith, 89 N. Y. 375. If, in that case, the master had furnished another jigger, perfect in all respects, .and safe and adequate for use, and the neglect had been that the foreman used the old one,which had become unsafe, when he might have used the new one, a very different case would have been presented.”

In the case of Kain v. Smith, cited by Judge Finch, it had been held that the place had been rendered unsafe by the use of a defective jigger by the foreman. It was not claimed that the act of the foreman was the ground of negligence, but the jigger itself, which was a tool required to be used, was defective. In the light of these facts, the law, as declared by Judge Finch,—to the effect that, if the neglect had been that of the foreman, in using an unsafe jigger, when a safe one had been provided, a different case would have been presented, — is to my mind declarative of the principle which must govern the case at bar. Such would have been the precise facts which are here for adjudication.

In the case of Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359, Justice Peckham declares the same principle. In that case it appeared that the decedent was employed by the defendant as a labored in his quarry, and was engaged in drilling rock ¿or blasting purposes under the direction of D., defendant’s foreman. After a blast, it was fopnd that the charge in one of the holes had not exploded. D. examined it, and found the fuse unconsumed, but failed to remove it. He set other workmen to work drilling within 2 feet, and directed 0. to drill at a place some 20 ór 30 feet distant. The fuse caught fire, and the charge in the hole exploded, causing C.’s death. It was there held that, assuming D. to have been negligent, his negligence was that of a fellow servant for which the master was not liable. Justice Peekham, in writing the opinion for the court, says:

“The quarry was the place where the work was to go on, and the master was bound to make it reasonably safe place for such work, considering its character, and the necessarily dangerous nature of the work. For the manner in which the persons employed in the quarry should themselves perform their work, the master was not liable. It is not claimed that the master did not furnish a safe place to work in the first instance; that is, when the deceased ■was employed, the quarry was as safe as any quarry is where frequent blasts are being fired off. But the manner of the performance of each of the various details of the work, by which, as a whole, it was to be conducted, rested necessarily upon .the intelligence and care and fidelity of the servants to whom these duties were entrusted. It cannot be .that, every time a blast was exploded, and the men came back, the manner of their distribution for work was the duty of the master, and that the order of a foreman, mistakenly or negligently given, must be regarded as the order of the master, in filling a duty to furnish a safe place to work in. It is, as it seems so me, a detail of the working or management of the business, the risks attending which have been assumed by the party taking employment.”

And on page 7, 126 N. Y. and 36 St. Rep. 359, Justice Peckham, further says:

“In this case, it is the ordinary one of choosing a method, a time, and a place for continuing the work in the quarry; and this involved questions of the judgment and discretion committed in this instance, it would seem, to Doran, He, it may be conceded, mismanaged or misjudged the matter, and after placing the deceased at work, negligently or improperly placed others at work too near the hole in which the powder had not exploded; and the consequence was this most unfortunate accident. The accident resulted from a negligent act done in the very course of the work and by one of the fellow workmen of the deceased. The negligent act was a part performance of the work itself, the risk of which the deceased had assumed. The master had provided a competent and experienced foreman, who had been in his employment a number of years, and he was not chargeable with the consequences of a place to work made dangerous only by the carelessness and neglect of a fellow servant, although that fellow servant happened to be a foreman.”

See, also, Scott v. Sweeney, 34 Hun, 292; Beilfus v. Railway Co., 29 Hun, 556: Faber v. Manufacturing Co., 126 Pa. St 388.

These authorities would seem to be decisive of this,case. The broad doctrine' that the master is liable for any act of a fellow servant which renders unsafe the place to which the plaintiff has been assigned to work is no longer maintainable. Suppose the foreman had been absent and one of the more experienced workmen had been moving this iron; can if. be claimed, for a moment, that his negligence would be the negligence of the master ? Suppose, by negligence, a workman allows his tool to fly, and strike a fellow workman; can it be contended, for a monent, that his negligence is the negligence of the master in failing to secure a safe place to work? Within the authorities, I think, and certainly within the doctrine of the controlling cases in this state, the act of Hemmingway, although the foreman of the defendant, was an act rendered necessary in prosecuting the work in its detail, and the act was that of a fellow servant.

The judgment dismissing the complaint must therefore stand.


author: PRATT, J.

text:
    John C. Hatzel et al., Resp’ts, v. The Hoffman House, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’y 18, 1896.)

    Pleading—Reply.
    Ab answer, which alleges that part of the sum sued for has been paid, and asks that such sum be set off against the sum sued for, states a set-oil and not a counterclaim and a reply thereto is not necessary.
    Appeal from a judgment in favor of plaintiffs on verdict directed by the court.

      John Delahunty, for app(lt; H. C. Henderson, for resp’ts.
   PRATT, J.

This appeal raises only one question, to wit, whether the answer of the defendant set up a counterclaim, and thus rendered it incumbent upon the plaintiffs to serve a reply. The suit was instituted to recover for labor, material, and services in furnishing an electric plant for the' Hoffman House. The answer, material to this discussion, contained the following to wit:

“ Fourth. That the plaintiffs entered into a contract, and it was agreed that a great portion of the work for which the plaintiffs havé charged was paid for by the landlord, and plaintiffs had agreed that defendant should be credited with the same. Defendant denies that said stork and materials sued for herein were all extra, and not included in the original contract, and avers that a great portion of said work and materials was required to be done and furnished under said contract. Fifth. It was agreed by and between the plaintiffs and defendant that for the work, labor and services referred to in the complaint herein, the defendant should be entitled to a credit for so much of said work and materials as was omitted under said contract with the landlord of said premises, and paid for by him, and to that extent the defendant should have credit accordingly, and-for any deviation from -the said contract, work,and materials, made at the request of the defendant, they should charge only about the cost of such changes to them. That this defendant is informed and believes the credits under that arrangement, to which the defendant is entitled, amount to in or about $700, less the amount demanded in the complaint. Sixth. And defendant, answering said complaint, and by way of- counterclaim to the cause of action set forth therein, alleges that by reason of said agreement and arrangement made by and between the plaintiffs and defendant, as hereinbefore, in the fourth and fifth paragraphs of this complaint, set forth, the defendant became entitled to a credit of upwards of $722, which the defendant asks may be offset against any sum which it shall appear the plaintiffs are entitled to recoyer in this action. Wherefore defendant demands judgment that the complaint herein be dismissed, with costs, or that the said stim of $722, for which the defendant is entitled to credit,as aforesaid, maybe offset against any sum which it may appear the plaintiffs are entitled to recover in this action.”

It seems plain that this pleading is a set-off, and not a counterclaim.' The defendant does not even say that the plaintiffs owe it any amount whatever ; but the plea is really a conclusion of law, and not of any facts constituting a counterclaim. It simply says that it ought to be credited a certain amount on the plaintiffs’ account. To constitute a counterclaim, the facts stated must amount to an independent cause of action. When they serve merely to defeat plaintiff’s cause of action, they amount to a defense, and not to a counterclaim. Walker v. Am. C. Insurance Co., 143 N. Y. 167; 62 St. Rep. 191. The matter was not, in the prayer for relief, designated as a counterclaim, but was claimed as an offset against plaintiffs’ claim Society v. Cuyler, 75 N Y. 511; MeElwee Manufacturing Co. v. Trowbridge, 68 Hun, 28; 43 St. Rep. 238. After defendant had made a motion for judgment upon the pleadings, on the ground that a counterclaim was pleaded, which was denied, the plaintiffs proved their case. No evidence was given by defendant upon its set-off, and the court directed a verdict for the plaintiffs for the amount of their claim.

The case was properly disposed of, and judgment must be affirmed, with oosts.

BROWN, P. J., and HATCH, J., concur. BARTLETT, J., concurs in the result.


author: WILLIAMS, J.

text:
    Victoria L. Stanfield, App’lt, v. Knickerbocker Trust Company et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 21, 1896.)

    1. Evidence—Admissions.
    In an action against the surviving member and the executor of the deceased member of a firm, the admission of the deceased member that ha was a partner in such firm, is admissible.
    2. Same—Secondary.
    Testimony of the bookkeeper of a firm that he made diligent search for its books and found some of them in the cellar of the store, in some old. rubbish, and among them the covers of the books in question, but the insides of them had been torn out and taken away and he could not find them, is sufficient proof of loss so as to admit his testimony as to their contents.
    8. Witness—Privileged communication—Attorney and client.
    A conversation between an attorney and client is not privileged as to matters in which the attorney was not at the time acting for the client.
    Appeal from a judgment dismissing the complaint on the merits.
    The action was brought to recover money alleged to have been loaned by the plaintiff to the copartnership. The plaintiff’s husband was concededly a member of this copartnership, and it was claimed that his father, the deceased, was his copartner. The main questions involved in the case were whether the deceased was a member of the copartnership and whether the money loans were to her husband individually. The trial court decided both these questions in favor of the defendant executor. The examination of Charles Donahue for the purpose of showing that Mark M. Stanfield, deceased, was a partner in business with his son, George 0. Stanfield, was as follows: “ I was well acquainted with Mark M. Stanfield in his lifetime. I knew him for about thirty yearsi I drew his last will, and was. a witness to it. Q. Did Mr. Mark M. Stanfield state to you a short time before he died, and about the time you drew the will, anything in relation to this business in which his son was engaged in Fourteenth street? (Objected to by defendants’ counsel, as incompetent, immaterial, and irrelevant. Objection overruled. Exception.) A. You speak about it in connection with drawing the will. It was hardly in connection with drawing the will. By defendants’ counsel: Q. Were you not acting as the counsel of Mr. Stanfield? A. Not in regard to that. Q. You were acting as counsel for Mr. Stanfield, were you not? A. In some things. Q. You were his counsel ? A. In some things only. (Defendants’ counsel objected to the witness testifying to conversations with Mr. Stan-field, the deceased, on the ground that he was acting as counsel for him, and therefore it js privileged. Objection sustained. Plaintiff excepted.) By plaintiff’s counsel: Q. At the conversation which you had with him when he spoke about this business, it was, as I understand it, at the time when you were transacting business for him. I don’t mean that it did not cover a period that you were acting as his counsel, but I mean at the time of this conversation, had you any conversation with him about' the other professional business? A. No; I had not. Q. State what that conversation was. (Objected to by defendants’ counsel.) By defendant’s counsel: Q. Was it not in your office? A. No. Q, Have you not said it was at your office ? A. No. Q. Where was it ? A. It was at the Victoria Hotel. Q. What was the occasion? A. Mr. Wentworth, who was with him asked if I would not 'stop in there and see him; Mr. Wentworth had something he wanted to say, and was to be there. And I went up and saw him in regard to something Wentworth had to do with it. Q. You knew at this time that he regarded you as his counsel, did he not. A. No; not except in those two things. Q. You know that you were consulted by him, and were advising him with reference to certain business matters? A. That is true; yes. Q. And he looked upon you and reposed in you that confidence that a client is so well recognized by the law to repose in his counsel? A. I only know he consulted me about those two’•things. You can draw your own conclusion. Q. Do you think that a client who has a lawyer in whom he places confidence and reposes trust will only talk to him’about his intimate business affairs, when he calls upon him for the purpose of being advised in regard to some particular point? A. That is a matter of ethics the court has to decide, not me. I have given you the facts. By the court: Q. At this time, when you had this conversation, the relationship of counsel to him was then existing? A. Yes; I had been advising him about the lease, in regard to the lease, commencing, I should think, in October, maybe before that. The lease had not- been ended when the will was drawn. (Defendant’s counsel renewed his objection to the witness testifying to conversation with the deceased, on the ground it is privileged and prohibited bv the Code. Objection sustained. Plaintiff excepted.) By plaintiff’s counsel: Q. At this time, and during these thirty years you speak of, you frequently met him, and talked over matters with him as a friend? A, I frequently met him. I don’t know as to it being friendly. My relations commenced with him through Mr. Steele, who had been in my office, and was his counsel when Mr. Stanfield was one of the firm of Stanfield, Wentworth & Co. Q. But, as a matter of fact, he liad other counsel? A. 1 only knew he had Mr. Steele, who had been in my office, as his counsel. Q. Wasn’t he in the habit of calling his-son George Otis? A. Otis I think was the name he generally called him. I don’t recollect his calling him George. I did not know the son. Q. I show you this certificate copy of the will, and I call yonr attention to the clause in reference to George Otis. Did Mr. Stanfield say anything to you at the time you drew that will in relation to his interest in the business? (Objected to by defendant’s counsel as incompetent, it being a privileged communication. Objection sustained. Plaintiff excepted.)"
    Archibald 0. Shenstone, for app’lt; William Allen Butler and John Notman, for resp’ts.
   WILLIAMS, J.

It seems to us that there was abundant evidence to establish both the co-partnership and the copartnership loan, and that the court was in error in dismissing the complaint upon the merits, even on the evidence admitted on the trial. But more than this, we are of opinion that- the trial court erroneously excluded evidence offered by the plaintiff, and objected to by the defendants, which í-equires a reversal of the judgment.

The witness, Frederick II. Smith testified that, just before the death of deceased, he had a conversation with him about the business, his son, the plaintiff’s husband, was carrying on, and the witness was then asked if, in that conversation, the deceased said anything about his being a parner in the business. The court refused to permit the witness to answer these questions. The plaintiff testified to having made the loans, delivering the money to her husband, and she stated the conversation she had with her husband, in reference to the loans at the time they were made. She further testified that the loans were made to the copartnership, and that a full account of such loans and the payments made thereon was kept in the copartnership books. The witness Wingfield G. Burton was called as a witness, and testified that he was in the employ of the copartnership at the time that the loans were alleged to have been made, and kept the books of account; that, since the death of the deceased, he had made diligent search for the books, and had found some of them in the cellar of the store, among old rubbish, and among them the covers of the books in question, but the insides of these books had been torn out and taken away, and he could not find them. He was then asked to state the contents of the books, what account with plaintiff was kept on the books while he was bookkeeper, what amount of loans from the plaintiff to the copartnership, and what accounts of payments to her thereon were entered in such books, and the amount owing to her as appeared on the books. The court refused to permit this evidence to be given. We think the loss or disappearance of the books was sufficiently shown to entitle the plaintiff to give parol evidence of their contents.

Mr. Donahue was called as a witness, and was asked to state the conversation between himself and deceased with reference to the copartnership; but the court refused to allow him to do so, on the ground that the conversation was privileged. We think that no such privilege was shown.

These are some of the-rulings excluding evidence offered on the part of the plaintiff which seem to us to have been erroneous. We think the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

BARRETT, RUMSEY, and PATTERSON, JJ., concur: VAN BRUNT, P. J., concurs in result.