author: Wright, J.

text:
    John J. Mack, Pl’ff, v. Robert H. Anderson et al., Def’ts.

      (Supreme Court, Oswego Special Term,

      Filed March 23, 1895.)

      1. Principal and surety—Release.
    In the absence of an express agreement to extend the time of payment of any part of the original debt, the mere taking of a second mortgage, though on time, does not, by implication, extend the time of payment of that part of the original debt for which 'it was given as additional, collateral security, and does not, therefore, release the surety of the debtor.

      2. Same.
    A stipulation between the mortgagor and mortgagee, after the commencement of an action to foreclose, by which the latter waives his right to a deficiency judgment, does not affect the liability of the farmer’s surety. ,
    W. H. Kenyon, for pl’ff; D. D. Metcalf for def’t Anderson.
   Wright, J.

The plaintiff held a bond and mortgage executed .by the defendant Metcalf. The mortgage covered two parcels of land, one consisting of fifty acres, and the other of twenty-five acres. Subsequent to the execution of the mortgage, Metcalf conveyed by warranty deed the 25-acre parcel to Anderson, who paid full value, without notice of the mortgage. After the mortgage became due, Metcalf made and delivered to the plaintiff another bond and mortgage on other lands, to secure the payment in one year of $385, that being the interest then due on the first bond and mort gage. The plaintiff, after commencing this action to foreclose both mortgages, executed with Metcalf a stipulation by which the plaintiff waived “all claim to recover a judgment for deficiency herein ’’ against Metcalf, and Metcalf waived notice of application for judgment herein and of reference to that end. The defendant Anderson made default, and the action proceeded to judgment, no provision for a further judgment for a deficiency against Metcalf being made therein. Upon Anderson’s application the judgment has been opened as to him, and he allowed to come in and defend. He now urges: First, that, his land being pledged to secure Metcalf’s debt, he stands in a situation similar to that ' of surety to Metcalf, and. that the second mortgage operates as an extension of time of the payment of the original debt, and, therefore, that his twenty-five acres are released from the lien of the mortgage; also, second, that the stipulation is a release of a part of the bond indebtedness, and that such release operates also to discharge him as surety.

On the execution of the second mortgage, there was no express agreement to extend the time of payment of any part of the origk nal debt, and the mere taking of the samé, though on time, does not, by implication, extend the time of the payment of that part of the original debt for which it was given as addditional collateral security. Therefore, Anderson, the surety, is not thereby released. Cary v. White, 52 N. Y. 138. The stipulation does not in terms release Metcalf, the original debtor, from his liability on the bond. Does it impliedly have that effect? Hot unless the bond is merged in the judgment herein. But, as to the rights of Anderson and the liabilities of Metcalf in the relationship of these codefendants to each other, the bond is not merged in the judgment in this action.- Wadsworth v. Lyon, 93 N. Y. 201. The stipulation waived the right only to a contingency,—the right to take judgment in this action for a deficiency in the uncertain event of there happening to be a deficiency after the sale of the land; and its legal effect is limited to its strict terms, and they relate to the plaintiff’s remedy solely in this action. It does not prejudice Anderson’s right of subrogation, the right to pay the original debt, and take an assignment of the bond, mortgage, and judgment; for if he should thus seek to protect his rights, and there should prove to be a deficiency after applying on the mortgage debt the proceeds of a sale of the land described in the mortgage, exclusive of his own, the court, in order to protect Anderson’s equitable rights, would permit him, under section 1628 of the Code of Civil Procedure, to bring an action against Metcalf on the bond for such dciiciencjc The bond in his hands would still be valid for that purpose. Wadsworth v. Lyon, supra. Metcalf could not be injured by such a course, for he still owes the debt, and he knew at the time he took the stipulation that, as between himself and Anderson, he was obtaining no relief from his obligation on the bond in case Anderson should pay the debt and take an assignment of the securities. He was content to provide himself against liability for a deficiency in this action, and the parties, therefore, did not mention the bond or debt in their stipulation. The waiver of contingency in this case is far different from the positive act of releasing a part of a debt, or of releasing a security to which the surety would be entitled by the doctrine of subrogation, as was done in Barnes v. Mott, 64 N. Y. 397. In this case the surety has lost no rights whatever by the stipulation.

Judgment is ordered for the plaintiff, with costs of the term Anderson.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Van Camp Packing Company, Resp’t, v. James F. McGuire, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Evidence —Sale.
    Where, in an action for the price of goods sold by sample, the purchaser refuses to accept the goods and afterwards sells them on the vendor’s account, and purchases them in at a nominal price, evidence that he shipped the goods to a firm of which he was a member, by which they were manufactured into articles of the usual quantity and quality, is admissible as bearing on the good faith of the purchaser in rejecting the goods.
    Appeal from a judgment, entered- on a verdict in favor of plaintiff and from an order denying a motion for a new trial.

      William L. Snyder, for app’lt; John B. Adger Mullally, for resp’t.
   Parker, J.

The judgment under review awards to the plaintiff the contract price of 500 barrels of tomato pulp, sold and delivered to the defendant during the month of November, 1889. The making of the contract, its terms, and a delivery by the plaintiff of a quantity of tomato pulp called for by it, is hot disputed ; the defense being that the goods wére sold by sample, and that the delivery made was inferior in quality to the sample shown at the time the contract' was made. On the part of the plaintiff it was proved that the sample barrel was taken from a, lot of 700 barrels, without any selection, every one of which was made by the same process, in the same manner, and at the same time, from the same tomatoes, and under the same conditions. After the defendant had contracted to take 500 barrels like the sample, they were all taken from this same lot of 700 barrels, and shipped to the defendant. On the part of defendant evidence was offered that the 500 barrels were inferior in quality to that of the sample barrel. We shall not discuss this evidence, because it is not contended that the verdict rendered by the jury in favor of the plaintiff was against the weight of evidence. The questions on this appeal relate to the rulings of the court in admitting evidence, and in refusing to charge as requested by the defendant.

The first exception brought to our attention was taken to the admission of evidence showing that the defendant was a partner of Mr. Lawson, at Camden, N. J., and that he became such in April, 1890. It appears that after the tomato pulp had been received, and the defendant had notified plaintiff that he refused to accept it as a fulfilment of the contract to deliver to him 500 barrels like the sample, he stored it in his own name, and after some little time had elapsed, during which a number of barrels were tested and used, he caused the barrels remaining unopened to be sold on the plaintiff’s account. It is not questioned but that the sale was made by a licensed auctioneer, in the regular way, and upon notice to defendant. Upon this sale the defendant became the purchaser at a nominal price. All of this took place after the commencement of this action, and it was not claimed upon the trial that this sale, or the fact of the purchase by the defendant, in .any way affected the legal rights of the parties, which were fixed prior to the commencement of the action. But it seems that, after the defendant had purchased 435 barrels at the auction sale, he sent them over to Camden, where they were manufactured into tomato catsup, and it was for that purpose they were originally purchased by the defendant. Francis Hemphill testified that he was in the employ of Mr. Lawson and this defendant, McGuire, •in 1890, when McGuire sent over the tomato pulp in question for manufacture into catsup, by the firm of which he was a member. Hemphill said that the catsup made from this pulp was like that made from other pulp put up in barrels, and that from every barrel and one-half of pulp they manufactured a barrel of catsup. Without further reference to the testimony of this witness, it will be seen that the object which the plaintiff had in view was to show that the pulp which the defendant insisted upon was worthless was made into catsup by a firm of which he was a member. It is true, as the appellant urges, that if the fact was that the pulji'was inferior to the sample pulp, the manufacture of it by defendant’s firm after it had been purchased by him at the auction sale would not entitle the plaintiff to recover, but it constituted a fact which it was proper for a jury to consider in weighing the evidence presented by the defendant for the purpose of establishing that it was not of the quality bargained for, because, among other reasons, it tended to support the evidence of Hemphill, the employe of defendant’s firm at Camden, that it made good catsup and the usual quantity ; and it was also a circumstance proper to be considered, in connection with other facts found bearing upon the good faith of the defendant in rejecting the pulp. The court refused to charge, at the request of defendant’s attorney, that “whether they did or did not use the nineteen barrels of pulp after this action was commenced is entirely immaterial to this case.” It was a fact that nineteen of the barrels were used after the commencement of the •action, and by this request the defendant -sought to take away from the jury the right to consider it in connection with the other facts proved. If he meant by that request that the fact of the use of the nineteen barrels could not be considered in connection with other facts bearing upon the good faith of the defendant, the request was too broad. If, on the other hand, it was intended by it to instruct the jury that the use of the nineteen barrels after the commencement of the action could not affect the legal rights of the parties, because they were fixed at the time of its commencement, the legal proposition embraced in the request was correct. But on that ground he has no legal grievance, because of its refusal, for the court had already charged the jury to that effect, and the defendant was not entitled to have the same proposition charged a second time. For the same reason the court did not err in refusing to charge the following request:

“I ask your honor to charge the j ury that the' sole question, on the merits of this case, for the jury to determine, is whether the 500 barrels were up to the sample. If they were, then the plaint-' iff is entitled to a verdict; but, if they were not, then the defendants are entitled to a verdict for $659.73.”

The court had fully and fairly presented this issue to the jury/ and in the course of the presentation had made such allusions to the evidence as would naturally tend to aid the jury in reaching & proper conclusion with reference to that issue. By this request the defendant sought to have the proposition recharged, but apart from the comments which the court had deemed it its duty to make in connection with it,—a method of securing a little advantage often resorted to, and quite too frequently with success. But to this request the trial court responded : “That I refuse, except as already charged.” As it already had been sufficiently charged, as we have observed, the disposition made of the request was proper. The judgment should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    E. De Braekeleer & Co., Limited, Resp’t, v. Henry Schwabeland et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Mortgage—Chattel—Uneiled.
    An unfiled chattel mortgage is valid as against-a judgment that is fraudulent and void, and which was entered into pursuant to a fraudulent scheme to cheat the creditors of the judgment debtor and secure for the latter-some benefit out of the property siezed and sold upon an execution issued upon such judgment.
    2. Appeal—First instance.
    In replevin for goods seized under an execution, an objection that the jury fixed their value as of the time of the levy, and not as of the day of trial, cannot be raised for the first time on appeal.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Uriah W. Tompkins, for app’lts; Daniel P. Hayes, for resp’t.
   O’Brien, J.

This action was originally brought against the sheriff to recover certain chattels taken by the latter under an execution upon a judgment. The property, when levied upon, was claimed by plaintiff, and, upon demanding its return, the judgment creditor, with the defendants as sureties on - the bond, having indemnified the sheriff, the latter retained and subsequently sold the property under the execution. This action in replevin., therefore, though originally brought against the sheriff, was changed, by the substitution of these defendants in his place.

The facts alleged in the complaint are that on April 14, 1892? Peter E. Saitta and E. Saitta, at that time in business as retail grocers under the name of Saitta & Co., as security for the payment of their several notes, amounting to $1,429.66, executed and delivered to plaintiff a chattel mortgage upon three wagons, two horses, and certain harness, etc., set out in a schedule attached to the mortgage. This mortgage was not recorded until the 9th day of May, 1892. On the 7th day of May, 1892, the sheriff, under an execution that had issued upon a j udgment of the city court,, wherein E. Christian Korner and Henry Schwabeland were plaintiffs, and the Saittas defendants, for $388.22, levied upon the same property described in the chattel mortgage. The complaint alleged that this judgment was fraudulent and void, and was entered pursuant to a plan or scheme to hinder, delay, and defraud creditors of the firm of Siatta & Co., and to enable the latter to receive benefit from the judgment. Similar charges were made against another judgment in favor of Salvatore Messina; but as-the defendants did not claim that the latter was valid, or seek to-justify the acts of the sheriff, and based their right to a levy and sale of the property on the judgment of Korner & Schwabeland, we need not again refer to the Messina judgment.

It will therefore be seen that the questions involved and submitted to the jury were that plaintiff, claiming under a chattel mortgage, sought the possession of property covered by that mortgage which had been given to them by Saitta & Co. for a good and valuable consideration, and which, by its terms, entitled them, when the amount due was not paid, to the possession of the property mortgaged ; that they were prevented from taking possession by the entry of a judgment, the issuance of an execution, and a levying of the sheriff upon the property, under a judgment which was fraudulent and void. It is conceded that the chattel mortgage was not filed until two days after the levy by the sheriff was made; but it is well settled that the chattel mortgage, as between the parties, is perfectly good without being filed, Jones v. Graham, 77 N. Y. 628, and is enforceable against everybody except a bona fide purchaser or creditor. It is equally well settled that a chattel-mortgage which has not been filed is void as against a bona fide judgment creditor, with an execution in the hands of the sheriff. We regard it also as good law that such mortgage is valid as-against a judgment that is fraudulent and void, and which was entered pursuant to a fraudulent scheme to cheat the creditors of the judgment debtor, and secure for the latter some benefit out of the property seized and sold upon an execution issued upon such judgment. Upon the pleadings, therefore, the issue was fairly presented as to whether or not this judgment under which the sheriff levied was fraudulent and void. To sustain this issue upon plaintiff's part, evidence was introduced tending to show that the debt upon which the judgment purported to be founded had been paid, and that, notwithstanding such payment, an arrangement, with knowledge on the part of the judgment creditors, was by their agent entered into, by which the judgment was tobe entered and execution issued, the property levied upon and sold, and out of the proceeds of sale the judgment debtors were to secure to themselves the benefit of the property when bought in, or a portion of the proceeds ; that this, scheme was carried out; and thatj after- the sale, a portion of the amount realized was paid to the judgment debtors. In addition, there was furnished evidence of the successive steps taken leading up to the entry of the judgment attacked, including the suspicious alteration of dates appearing in the judgment roll. The defendants presented evidence on their side tending to show that the claim which was the basis of the judgment had not been paid, though they admitted that they had received certain property from their debtors to an amount in ■excess of their claim, which they stated, however, was merely as collateral therefor, and not as payment thereof. In this connection, the defendants offered in evidence, as an exhibit, the paper in writing, signed by Saitta & Co., which states: “To satisfy the ■amount and claim due on the suit now pending, and to be discontinued to-day, we hereby assign, transfer, and set over unto Korner & Schwabeland three barrels of whiskey and one barrel of sherryand the plaintiff’s exhibit signed by Korner & Schwabeland, which states: “We agree to allow Sáitta-.& Co. to pay the ■sum of $354, and the goods now deposited with us are to be returned within three months on payment of that amount due us.” These, which are not all the evidence on the subject, are referred to as showing that a question of fact was fairly presented as to whether or not, before the entry of judgment, the claim upon which it was founded had or had not been paid ; and, this question having been properly presented to the jury, their verdict upon this branch of the case is conclusive.

As will be seen from the quotation which we make from the charge of the learned trial judge:

“The question here, therefore, is whether the judgment and execution were valid. The plaintiff says they were not. They claim that judgment was entered against Saitta & Co. after the claim embraced within it had been settled and paid. The defendants’ answer to this is that the claim was not paid. The contention is that the goods which they received were not received under an agreement that they should be taken in payment and satisfaction •of their claim ; that it was to be received only by way of collateral, and that its acceptance, even as collateral, was to depend upon its being satisfactory; that, when received, they found it was not what it was represented to be; and that they notified Saitta & Co. that they would not accept it. That, again, is denied upon the other side, and raises the question of fact for your determination.”

The other question, as to whether the judgment was entered and the execution issued for the purpose of cheating and defrauding these plaintiffs, and preventing their executing their mortgage, was, upon the evidence, a question of fact, and, under proper instructions, was submitted by the court for the determination of the jury. There was no exception to the charge,' and, all the questions involved having been fairly and clearly presented, the verdict of the jury upon the facts is conclusive.

In addition to the question raised upon the motions to dismiss upon the complaint and the opening, and when the testimony of the plaintiff was closed, which, as we have endeavored to point ■out, were properly denied, the appellants have pressed upon our attention one or two other questions which may be briefly referred to.

They insist that the jury fixed the value of the property as of the date of the levy by the sheriff, while the Code requires that the value should be as of the day of trial. This question was not raised below, nor was any exception taken to the charge of the judge upon this subject, the fact being that the judge charged that the jury were to assess the value of the property as they deemed it to be established by the evidence; and at the instance of the defendants’ counsel, who asked that the jury be permitted to consider the testimony of the value of the property as given by the deputy sheriff who sold it, the court stated that they could take into consideration anything that was in evidence upon that subject. While, therefore, the point was not made at the proper time, and is nofnow available, it is still insisted that the plaintiff, under defendants’ objection, was permitted to show the value at the date when some of the goods were purchased, two or three months prior to the time of seizure. That the exceptions thus relied upon are not good either in form or substance is easy of demonstration. The witness who purchased the wagons was on the stand, and testified that he had bought and sold horses and wagons before that time, and was familiar with their value; and, after this testimony showing his competency, the question was asked him, “ What were those wagons w’orth ? ” to which he answered, ‘ We paid $190 apiece for them.” Then came the objection that no foundation had been laid for the question. When the questions were asked, “ What was the value of horses? ” and, again, What was the value of the harness ? ” objections were made upon the same ground, and the further one that it was incompetent, neither of which were good.

The other rulings upon evidence complained of relate to conversations between one of the Saittas and the agent of Korner & Schwabeland, out of which the arrangement grew which resulted in the fraudulent scheme and the entry of the fraudulent judgment complained of. It is insisted that such conversations were not competent as against the sheriff or those indemnitors. This is but another way of urging that it is not competent for the plaintiff to show the fraudulent scheme or the fraudulent judgment, tile mere statement of which proposition, it seems to us, answers itself.

Upon examination of the record, therefore, we fail to find any merit in the appeal. We think that the judgment was right, and should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    In the Matter of De Forest.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Executors—Accounting.
    _ All the creditors, who have presented claims against the estate, must be cited on the accounting. The claim by the executor that he has paid a creditor and presents a voucher therefor, is no excuse for failure to cite, him.
    Motion for reargument.

      Rastus S. Ransom, for the motion, S. S. Perry, opposed.
   Per Curiam.

The appeal in this matter was taken from an order of the surrogate’s court directing a supplementary citation to all the creditors of the estate, including those whose claims the administratrix claimed to have paid in full. Upon the argument, of this appeal the order of the surrogate was affirmed, and this motion for a reargument is made upon the ground, apparently,, that it has not been the customary practice to cite creditors, upon an accounting, whom the executor or administrator claimed to have paid in full, and for which payment the executor or administrator presents alleged vouchers. It is a familiar rule, upon an accounting to, cite all legatees, whether vouchers for the payment of their legacies are produced or not; and it is difficult to see how there can be any distinction between the case of a legatee of a decedent and that of a creditor of a decedent. Certainly, in the statute where the question of citation is spoken of no such distinction is hinted at. Section 2728 reads as follows :

“In.either of the following cases an executor or administrator-may present to the surrogate’s court his account and a written-petition duly verified praying that.his account may be judicially-settled ; and that the sureties in his official bond or the legal representatives of such surety and creditors or persons claiming-to be the creditors of the decedent and the decedent’s husband or wife, next of kin and legatees if any, or if either of these persons is dead his executor or administrator if any, may be cited to attend the settlement.

The right to this accounting depends upon the lapse of one year,' and the publication of a notice to creditors. The surrogate, upon the presentation of such a petition, must issue the citation accordingly. And there is a further provision that a creditor or a person-interested in the estate, although not cited, is entitled to appear at the hearing, and thus make himself a party to the proceeding. It would seem, therefore, that it'was in contemplation of the statute that all creditors of the decedent should be cited, and, if they are dead, their executors or administrators, if any there be. It may well be that where a creditor has not presented liis claim, and has not thereby intervened in the proceeding, he may not be entitled to notice. But having intervened, by the presentation of his claim, it is difficult to see upon what theory he should be ignored in the-subsequent proceedings. It does not seem to be any answer to this-suggestion that the executor claims to have paid the creditor in full, and presents a voucher, because the creditor, if he were allowed an opportunity to do so, might be able to establish that the voucher presented was not his and that he had not been paid. In view of the provision that a creditor or person interested in the estate is entitled to appear on the hearing, and thus make himself a party to the proceeding, although not cited, it may be that the failure to cite the creditor does not oust the court of jurisdiction in respect to the accounting. But it is manifest that it is the better practice, where it is possible, to cite the parties who were interested in the estate at the time of the death of the decedent, unless there is some reason shown why the ordinary course should not be pursued. The argument that it is difficult in many cases to serve a citation upon all creditors, whether they have been paid or not, does not seem to be entitled to a great deal of weight, because, if any obstacles exist which cannot be overcome, undoubtedly service of citation may be dispensed with. The language of the statute does not seem to have made it obligatory upon the surrogate to issue such citation. But, where the surrogate has directed such a citation to issue, this court should not, except in a very plain case, say that it was not a wise exercise of power. Parties, in case they desire, upon the payment of claims, to obviate the necessity of serving citations upon such creditors as they have paid, may very easily take a waiver of citation in the manner provided for by the practice in the surrogate's court. There does not seem, therefore, to be'any reason for a reargument, and the motion should be denied, with $10 costs. •


author: Follett, J.

text:
    John Wyman et al., as Executors, etc., Resp’ts, v. Ellen C. Woodbury et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Wills—Construction.
    The provision “ I appoint ” a person named “my legatee and give to her all not before specified in this, and request her to give as I may direct or sell from what remains,” gives such person all the property not disposed of by the other clauses.
    3. Same—Precatory bequest.
    The words in the above provision " to give as I may direct or sell from what remains,” do not create a precatory trust, where the testatrix fails to direct, by a subsequent testamentary instrument, to whom the property is to be given.
    Appeal from a judgment construing the will.
    September 23, 1891, Lizzie IST. Perkins, aged about sixty years, died at Paris, France, leaving her father, Thomas Harward, her sole heir and next of kin, who died November 30, 1891, aged 103 years, 8 months, and 15 days, leaving an estate of considerable value. He left no descendants, and left a last will, the executors of which are parties defendant herein. Mrs. Perkins left a holographic will and testament, executed January 6, 1890, at Paris, France, by which, after making twelve pecuniary legacies, amounting to $38,000, eleven specific bequests, and two specific devises, she provided: “ I appoint Ellen 0. Woodbury my legatee, and

      give to her all not before specified in this,.and request her to give as I may direct or sell from what remains. I appoint John H. Wyman, L. P. Morton, and John J. Richardson executors, and. direct that, after the payment of my-debts and sums above-named, that they shall sell bonds, stocks, and other property, and give the money thus collected to hospitals and homes for women in Washington and New York.”
    September 22, 1892, the will was duly admitted to probate by the surrogate’s court of the city and county of New York; and October 3, 1892, letters testamentary were issused thereon to the plaintiffs, who were nominated in the will as executors. Among the papers left by the testatrix was the following, written in her own hand, and known in this litigation as “ Exhibit 5
    “ Nell, sell what you can of my things and give the money to-the poor. Give of my paintings to Mrs. Dana something. Give ' my clothing to Lizzie Pennell and my guitar. -To Martie Richardson the small set of silver with kettle, the large Sevres to be sold, money to be given to the poor. Sell the contents of the two large boxes at Lincoln, money to be given to the poor. Give the Nekaver girls some of my paintings. I am too wild Nell with the thought of death to do what I would. As I think of anything I shall put it down. Try to do as I would wish. Give Mrs. Dana my Indian shawls. Florence Matthews the small silver kettle and little cups tea pot. Burn every paper and family picture.”
    It is conceded that Ellen G. Woodbury is the person referred to in this paper as “Nell.” The testatrix left a personal estate inventoried at $129,790.24, which consisted of
    Cash............... $2,688 14
    Furniture and goods............................ 3,478 10-
    Shares of various corporations and bonds issued by
    various corporations.......................... 123,624 00
    $129,790 24
    Real estate in Brooklyn valued at......$10,000 00
    Real estate in Newport (specifically dedevised to Florence Matthews) valued
    at............................... 6,000 00
    Real estate in Washington (specifically devised to Ellen 0. Woodbury) valued
    at............................... 2,600 00
    --.18,600 00-
    Total estate, real and personal............ $148,390 24
    At special term it was held that the legacy of one thousand dollars to “the poor of Bath” was void for uncertainty; and that the legacy of $4,000 to “the American Hospital, if erected in Paris,” was void because no such institution was in existence at. the death of the testatrix. It was also held that the devise and bequest to Ellen C. Woodbury, and to her executors, by the clauses above quoted, were void “ for want of intrinsic certainty and extrinsic applicationand that the residue of the testatrix’s estate passed to her father, Thomas Harward, sole heir and next of kin.

      William G. Choate, for app’lt Ellen C. Woodbury; James D. Fessenden, for resp'ts the executors of Lizzie N. Perkins; Daniel G. Rollins, for resp’ts the executors of Thomas Harward ; B. D. Silliman, for resp’t Greenwood Cemetery; Edmund Kelly, for resp’t Dr. Labadie Lagrave.
   Follett, J.

The plaintiffs, executors of Lizzie N. Perkins, have not espoused the cause of any of the litigants, and do not contend for any particular interpretation of the will, but simply ask the court to construe it so they may be relieved from liability. Ellen C. Woodbury has appealed from the whole of the judgment, but in fact she challenges only that part of it adjudging to be void the clause : “ I appoint Ellen C. Woodbury my legatee, and give to her all not before specified in. this, and request her to give as I may direct or sell from what remains.” The sole question discussed at the bar of this court, and the only one involved on this appeal, is whether Ellen C. Woodbury is the residuary legatee of the testatrix, and entitled to all of her estate not legally devised and bequeathed, or are the executors of her father, who was the sole next of kin, entitled to the residuum ? The two clauses quoted in the statement which proceeds this opinion are the last ones in the will, but a residuary clause may be the first, the last, or an intermediate one, and it is quite immaterial what its position may be, provided it was the intention of the testator by it to dispose of all of his property not devised or bequeathed in other parts of the will. Fleming v. Burrows, 1 Russ. 276, 5 Law J. Ch. 115. The position in the will of such a clause may sometimes aid to interpret it or the other provisions, but, if the intent of the testator is manifest, its position will not affect its validity. The questions in this case are: (1) Did the testatrix intend to give all of her property not disposed of by the other clauses of her will to Ellen C. Woodbury ? (2) In case that was her intent, is the language used by her sufficient, under the rules of law, to carry the residuum to Miss Woodbury? (3) Do the words, “ and request her to give as I may direct or sell from what remains,’’ create a precatory trust ? It is perfectly clear that the testatrix did not intend to die intestate as to any part of her estate. It is manifest that she did not intend that any part of her estate should go to her next of kin, her father,—a centenarian, and more, who, as it appears by his will, had a considerable estate, the pecuniary bequests therein amounting to more titan $90,000, $34,000 being left to charitable corporations. Neither did she intend that all of the avails derived from the sales of “ bonds, stocks, and other property ” should be divided among “ hospitals and homes for women in Washington and New York,” because her pecuniary bequests, amounting to $38,000, exceeded the value of all of her estate, other than her “ bonds and stocks,” most of which she specifically devised and bequeathed. The fact that the testatrix did not intend to bequeath to Ellen C. Woodbury her “ bonds, stocks, and -other property," directed by the final clause to be sold and the •avails given to hospitals and homes, is not decisive of the question whether the testatrix intended that Miss Woodbury should be the residuary legatee, because it often happens .that a residuary clause •carries to such-a legatee lapsed devises and bequests, and property which the testator intended and attempted to give to others, but failed by reason of the invalidity of the provisions by which the intention was attempted to be effectuated. But, when it is doubtful whether the testator intended to give the residuum of his estate to a particular person, all of the clauses of the will may be considered as bearing on the question of intent. It was shown that Miss Woodbury was the- intimate friend and companion of the testatrix, to whom, when the latter was “ wild with the thought of death,” she appealed to “ burn every paper and family picture,” ■and to dispose of many of her articles of personal property as directed, and to “ try to do as I would wish.” The clause under consideration begins: “Iappoint Ellen C. Woodbury my legatee, and give all not before specified in this,” etc. This language was •designed to express an intent then existing in the mind of the testatrix. What was it? Clearly not to give to Miss Woodbury a particular sum, for none is mentioned, nor to make a specific bequest or devise, for no property, real or personal, is specified; and so if the testatrix had an intent, as we must, presume she had, we are driven to the conclusion that her intent was to give her what remained after paying her debts, and satisfying the particular legacies and devises made by the will. The last word of the following sentence is not meaningless: “ And. give as I may direct or sell from what remains." “Remains” plainly refers to some part of her estate. What part ? Manifestly to the part left un-' disposed of by the other clauses .of her will. “ Remains," in this connection, denotes “residue.” This brings'us to the second question, is,the language employed sufficient, under the rules of law, to carry the residuum to Miss Woodbury ?

The words, “ I appoint A. my legatee,” or “ I nominate A. my legatee," of a sum specified, or of the residue of my estate, carries to him the sum specified, or the residue, as effectually as though the formal and more usual words, “ I bequeath to A. a sum specified, or the residue of my estate,” had been used. Spark v. Purnell, Hobart, 75; Tayler v. Web, Style, 801; Jackson v. Kelly, 2 Yes. Sr. 285 ; Parker v. Nickson, 1 De Gex, J. & S. 177; Waite v. Combes, 5 De Gex & S. 676; Hughes v. Prichard, 6 Ch. Div. 24; Laing v. Barbour, 119 Mass. 528; Succession of Ehrenberg', 21 La. Ann. 280. “ No particular mode of expression is necessary to constitute a residuary legatee. It is sufficient if the intention of the testator be plainly expressed in the will; that the surplus of his estate, after payment of debts and legacies, shall be taken by a person there designated.” 2 Williams, Ex’rs (7th Am. Ed.) 801, and cases cited; 1 Jarm. Wills (6th Am. Ed.) 724 et seq., and cases cited. If so intended, the word “bequest” will pass real estate, and the word “devise" will carry personalty. Cole v. Covington, 86 N. C. 295 ; Williams v. McComb, 3 Ired. Eq. 450; Laing v. Barbour, supra; Estate of Pfuelb, 48 Cal. 643 ; Jackson v. Kelly, supra; Hughes v. Pritchard, supra; Trust Co. v. Smith, 82 Hun, 494 ; 64 St. Rep. 134 ; 1 Williams, Ex’rs (7th Am. Ed.) 94; 1 Jarm. Wills (6th Am. Ed.) 693, 697. The clause under consideration is sufficient in law to devise and bequeath the residuary estate to Ellen C. Woodbury.

This brings us to the third question, does the clause create a precatory trust ? The testatrix did not direct Miss Woodbury to give or sell any part of the property devised and bequeathed to her. The clause implies that she may make a direction, but she never did by a subsequent testamentary .instrument, and a trust is not created. In re O'Hara's Will, 95 N. Y. 403; In re Keleman's Will, 126 id. 73; 36 St. Rep. 390. The judgment should be affirmed, except the part which declares to be void the clause: “ I appoint Ellen C. Woodbury my legatee, and give to her all not before specified in this, and request her to give as I may direct or sell from what remains.” This part of the judgment should be reversed, and the executors directed to pay and transfer to Ellen G. Woodbury all of the testatrix’s estate not held to have been legally ■devised and bequeathed by the judgment of the special term. Miss Woodbury having appealed from the whole of the judgment, the Greenwood Cemetery and Dr. Labadie Lagrave were justified in ■appearing in this court to sustain their bequests. The plaintiffs Ellen C. Woodbury, the executors of Thomas Harward, the Greenwood Cemetery, and Dr. Labadie Lagrave are entitled to costs, payable out of the estate.

All concur.


text:
    The People ex rel. Hecker-Jones-Jewell Milling Company, App’lts, v. Edward P. Barker et al., as Commissioners et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Taxes—Review.
    Matters, not presented to the assessors on the application to them for the correction of the assessment, will not be considered on a proceeding to review the assessment.

      ,2. Same—Foreign corporation.
    Debts, incurred by a foreign corporation in acquiring the capital employed in this state, will be deducted from such capital in its assessment.
    Appeal from an order, dismissing the writ of certiorari.

      John M. Bowers, for app’lt; James M. Ward, for resp’ts.
   O’Brien, J.

The writ was sought under chapter 269 of the Laws of 1880, to review, vacate, set aside, or modify the assessed valuation of the personal estate of the relator levied by the commissioners of taxes of the city of New York for the year 1894, at the sum of $2,313,000. This amount was arrived at by the commissioners from a statement filed with them, in which the relator showed that it was a corporation organized under the laws of the state of New Jersey, having its principal office at Jersey City; and, for the purpose of showing its condition for the purpose of assess-meat in this state, it is alleged that its total gross assets were $3,-466,919, and its total liabilities, $4,020,500. OÍ the total gross assets there were in the state of New York at the said date the following assets, and none other:

Beal estate........ $453,800 00

Machinery and tools......................... 600,000 00

Mercantile stock, etc......................... 1,669,650 00

Office furniture..... ......................... 8,500 00

Horses and trucks..................... 32,000 00

Cash............ 2,912 90-

Total

$2,766,862 90

The commissioners instituted no inquiry to controvert the information furnished by the relator itself, but they justify their assessment upon the statement so furnished, and from the total assets as given deducted the assessed value of the real estate, viz. $453,-800, holding that the balance, $2,313,060.90, was subject to taxation. It appeared that the machinery, tools, office furniture, horses, and trucks were acquired in exchange for the stock and bonds secured by mortgage issued by the corporation, the bonds amounting, to $1,680,000; that its indebtedness, exclusive of mortgage liens, was $1,520,500; and that the mortgage liens more than covered the entire value of the property acquired by the issuing of mortgage bonds and stock. The relator insists that the sum of $730,000 was the only sum ever invested by it in business in the state of New York; that all its other personal property within this state was obtained for its bonds and stock in the manner stated. Further to analyze the statement would tend to prove that the relator, on the date named, was insolvent; but it is unnecessary to go into that question here, since the matter to be decided is the amount the relator has invested in business in this state. If the mortgage indebtedness and the indebtedness exclusive of the mortgage liens are just offsets, or if so much of it as was incurred- in this state in the purchase of property is to be deducted, then it is evident that the conclusion of the commissioners are erroneous, because it docs not appear that they had anything before them upon which to make the assessment other than the statement of the relator; for, as held in the case of People ex rel. Edison Electric Illuminating Co. v. Barker, 139 N. Y. 55; 54 St. Rep. 444, where the proofs presented by the relator are full, uncontradicted, and credible, and it does not appear that the commissioners had or acted upon any other information, a refusal of the commissioners to decide in accordance with such statement amounts to legal error. It appearing; therefore, that the commissioners did not act upon' any other information than that furnished by the relator, they could not disregard such information and act capriciously or arbitrarily: and where, as here, they did not show that they had any different information, it will be presumed that their deductions were based upon that furnished. On the other hand, it has been held in People ex rel. German looking Glass Plate Co. v. Barker, 75 Hun, 6 ; 57 St. Rep. 1, that the statement thus submitted is conclusive upon the relator, and cannot, even if shown to be false, be corrected by proof on a reference to reduce or cancel the assessment; and that case is also authority for the further proposition, which has been affirmed in many of these proceedings, that no grievance will be considered upon such a proceeding not urged upon the assessors in application to them for the reduction and correction of the assessment under review.

This, we think, disposes of the claim made by relator that it was entitled to offer evidence showing how much of its indebtedness was due on account of the acquisition of its New York assets or incurred in the purchase thereof, it having made an application upon the return of the writ to the court below to receive such evidence. It is true that section 4, chap. 269, of the Laws of 1880, confers upon the court power to take evidence or appoint a referee for that purpose whenever it is necessary for the proper disposition of the proceeding. In this case, however, we think the testimony proposed to be offered by the relator tending to prove the indebtedness, if it was thereby sought to vary or contradict the statement made to the commissioners, was improper, and, as we think it will appear upon a consideration of the question involved, wholly immaterial.

It is insisted by the relator that the sum invested in this state was the surplus of its assets in this state after deducting the indebtednes incurred by it in the acquisition of such assets. The statute under which the assessment was levied is in this language.

“All persons and associations doing business in this state of New York as merchants, bankers or otherwise, either as principals or partners, whether special or otherwise, and not residents of this state, shall be assessed and taxed on all sums invested in any manner in said business the same as if they were residents of this state, and said taxes shall be collected from the property of the firms, persons or associations to which they severally belong.”

This has been construed in several recent cases, and whether they are controlling upon the questions here raised can be more clearly determined when we state the position assumed by the relator. In addition to the proposition already advanced, we have the further claim that, on the face of the statement filed, the assessment could not have been made at a greater sum than $730,-000, which it is claimed was the entire amount of cash capital ever invested in its business in the state of New York; that, without inquiry as to what proposition of its general indebtedness should be offset against its New York items, the assessment could not have been made at a greater sum ; and that it was due to the error of the court below in refusing to permit evidence to be introduced showing how much of its indebtedness was on account of the acquisition of its New York assets, or incurred in he purchase thereof, that the assessment now claimed to be erroneous was made.

All these different propositions, however, at last resolve themselves down to the question whether or not it was within the right of the commissioners to assess and tax all sums invested in any manner in the business of the relator in this state, xvithout. giving it credit for the indebtedness incurred in purchasing the assets or property going to make up the amount invested in this state. This, as we understand it, was the precise question presented in People ex rel. Thurber Whyland Co. v. Barker, 141 N. Y. 118; 56 St. Rep. 586. There, as here, the relator was a foreign corporation, and complained of the amount of its assessment because its indebtedness was not deducted therefrom. There the amount invested in this state, exclusive of imported goods in original packages (which were exempt from taxation), was stated to be $750,-000, while it owed in New York city a total indebtedness of $1,-218,904.42. Referring to section 1, chap. 37, Laws of 1855, the court says:

“We are of the opinion that this act does not contemplate the deduction of debts from the sums invested in this state by nonresidents. As the person is a nonresident, it is to be assumed that he will at the place of his domicile have all of what might be termed his equities adjusted, and that, if entitled to it anywhere, it will be at such domicile that he will claim and be allowed the right to have such deduction. * * * In a general way, it may be said that he (that is, a resident) is to be charged with all his "personal property, and from that total he may deduct his debts. This cannot be done in the case of a nonresident, although it may, as we may assume, be done at his domicile. All that we are to do is to assess and tax the sum here invested, and the equities must, as we have said, be adjusted at the domicile of the person. The assessment of a domestic corporation is made after a deduction for debts, because its capital and surplus, are to be assessed at their actual value, which cannot be arrived at without considering and deducting debts'. A foreign corporation is not to be thus taxed, and no inquiry is made as to the actual value of such capital or surplus, and, as such value is not assessed or taxed, the debts should not be deducted from specific property here invested.”

■ In support of the view that the sum invested is to be regarded as the surplus after deducting the indebtedness, we are referred to the case of Clark v. Bailey, 12 Blatchf. 156, Fed. Cas. No. 2,814. There a statute of the United States was. involved which in many respects was dissimilar to the act of 1855 ; and even if there were' some clashing between the two decisions, which we do not concede, we are bound, in passing upon our own statute, to follow the construction that has been given to it by our highest court, which we think is the construction that would be given to it were that statute under consideration in the courts of the United States.

The claim advanced by the relator that the sum actually invested in business in this state is only to be ascertained by deducting from the total gross assets invested in business in this state the debts of the corporation or the liens upon its investments in business within this territorial jurisdiction, we regard as having been finally disposed of by the court of appeals in People ex rel. Thurber-Whyland Co. v. Barker, supra.

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

All concur.


author: Van Brunt, P. J.

text:
    Kate Ryan, Administratrix, etc., Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Master and servant—Discharge.
    Where the plaintiff’s intestate, who had been appointed an inspector of masonry by the defendant, performed his duties as such for a short period when the division engineer informed the chief engineer that he had ordered such intestate to report under suspension, whereupon the chief engineer communicated with the board of commissioners, which a few days later demanded the resignation of the intestate, who never afterwards performed, or offered to perform, any work, the question whether the demand for his resignation is equivalent to a discharge is one for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff directed by the court, and from an order denying a motion for a new trial.

      J. T. Malone, for app’lt; E. G. Delaney, for resp’t.
   Van Brunt, P. J.

This action was brought to recover 'the sum of $3,120, alleged to be due the plaintiff’s intestate for services performed as inspector of masonry upon the new aqueduct from October 24, 1887, to December 24, 1889. The complaint alleges the appointment by the aqueduct commissioners of the city of New York on the 8th of June, 1887, of the said Ryan as inspector of masonry, to supervise and inspect the work of construction of the new aqueduct, at a salary of $120 per month; and, further, that the plaintiff entered upon said employment, and faithfully performed all the duties and services required of him, from the 8th day of June, 1887, to the 24th day of December, 1889, when he was dismissed: that there was paid to him for his services a certain sum; and that there remained due to him the sum of $3,120. The answer admitted the appointment, but denied that Ryan had performed services from the 8th of June, 1887, to 24th December, 1889, and alleged the discharge of said Ryan on the 24th of October, 1887, and that he had performed no work since that time.

The evidence showed the appointment as admitted, and that Ryan served from the time of such appointment until the 24th of October, 1887, and had been paid for such services. On the 25th of October, 1887, the division engineer wrote to the chief engineer that he had ordered said Ryan to report to him under suspension. Thereupon the chief engineer communicated with the board of aqueduct commissioners, and on the 28th of October, 1887,' the resignation of Ryan was demanded from him, and he ceased thereafter to do any work uqon the aqueduct. There is evidence that since this time Ryan never reported for duty, although one witness upon the part of the plaintiff swore to having seen him subsequently upon the work. Ryan, however, made repeated applications for reinstatement, which applications were denied.- Upon this state of the evidence, the defendant asked to go to the jury upon the question as to whether it was the understanding of both of these parties that the communication to Ryan was his discharge. The court denied this motion, and directed a verdict for the plaintiff, which was excepted to. It seems to us that this was error. The right to recover under a contract for services depends upon the rendition of those services, or upon an offer to serve and a refusal to accept the same. We have been unable to find in this case any evidence whatever upon the part of Ryan that he offered his services subsequent to his claimed discharge. All his efforts were to be reinstated. From this circumstance the jury would have a right to infer that Ryan understood, and the aqueduct commissioners intended, that their communication should operate as a discharge. The fact of their subsequent resolution dismissing Ryan from service was evidently brought about by certain decisions which had been made respecting suspensions, and offers but a very.slight clue as to the intention with which the previous communications were made. As already suggested, it seems to be evident that Ryan understood, when his resignation was called for, that his place was vacant,- as it does not appear that he tendered any services at all thereafter, but made continual applications for reinstatement. We think that the defendant had a right to go to the jury for the purpose of having them determine from this evidence as to what was understood by these parties by the action which had been taken.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.

All concur.


text:
    James S. Bearns, Resp’t, v. Howard E. Burras, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Deposition—Discovery and inspection.
    An application by a partner, after the dissolution of the firm, for an examination of the firm books will be denied, where the copartner offered to allow him to examine them at his office or at the office of his counsel and he had refused the offer without sufficient reason.
    Appeal from an order, denying a motion for the discovery and inspection of books.

      C. E. O'Connor; for app’lt; John R. Dos Passos, for resp’t.
   Van Brunt, P. J.

A partner has the right, undoubtedly, notwithstanding the dissolution of the partnership, to examine the books of the concern at any reasonable time and place, because they are as much his property as that of his copartner; and, if there had been a refusal upon the part of the copartner to allow the moving party in this action to examine the books, it would have been the duty of this court to have afforded him facility for so doing. But it appears that the party moved against offered to allow the moving party to examine the books in question either at his office or at the office of his counsel, which offer the moving party refused, upon the ground that the relations between the plaintiff and the defendant and between the plaintiff’s attorney and the defendant are not of a character which, would permit the defendant with comfort to accept the courtesies which might be extended to him by either office, and that the plaintiff’s attorneys are well aware of this fact. We do not think that this is any sufficient excuse for coming to the court and presenting an application, as a matter of right, for- the examination of the books. There is no ground except a mere matter of punctilio at the foundation of this motion. The courts have sufficient serious business to engross their time, and cannot permit a party, simply for the purpose of gratifying his fancy, to call upon its powers to get in some way more pleasing to him that which is freely offered to him. We think, therefore, that the court below was justified in denying the motion, as being entirely unnecessary and without merit.

The order should be affirmed, with $>10 costs and disbursements.

All concur.


author: Clement, C. J.

text:
    Thomas McCann, by Guardian, etc., App’lt, v. James Mathison et al., Resp’ts.

      (Brooklyn City Court, General Term,

      Filed April 22, 1895.)

    Master and servant—Minor.
    A master is not liable for injury to an infant servant sustained in operating a dangerous machine, where the risks are open and apparent to such servant.

      H. B. Woods (H. D. Birdsall, of counsel), for app’lt; Jackson & Burr, for resp’ts.
   Clement, C. J.

This case comes before us on an appeal from a judgment of nonsuit, and therefore there is no dispute as to the facts. The plaintiff, who was then fourteen years of age, on August 2, 1893, at seven o’clock in the morning, sought work at the cooperage factory of defendants, in this city. The foreman put him at work on a buzz saw. He was shown how to saw stoves, which were twelve or fourteen inches long, in two pieces, crosswise. Plaintiff, after working three or four hours, involuntarily allowed his left hand to come in contact with the saw, and as a result the thumb and two fingers were cut off. There was nothing concealed about the saw, and its rapid movement was open and apparent.

The case or Crown v. Orr, 140 N. Y. 450, is directly in point in favor of the contention of defendants, except in that case the plaintiff was nineteen years of age, and had worked around the planing machine on which he was injured for three weeks. In the ease of Ogley v. Miles, 139 N. Y. 458; 54 St. Rep. 711, the plaintiff was injured on a buzz saw. At the time he was sixteen years of age, and had previously worked on a saw for some time. The court of appeals held that the case should have been dismissed. In Buckley v. Manufacturing Co., 113 N. Y. 540; 23 St. Rep. 618, the plaintiff was a boy of the age of only twelve years, and had worked two full days in the' factory, and sustained an injury by a fall on a dangerous machine. The court here held that it is not negligence simply to employ a minor of the age of twelve years on a dangerous machine; also that, if the danger is open and apparent, the minor takes upon himself the usual risks, in the same manner as an adult. In White v. Lithographic Co., 131 N. Y. 631; 43 St. Rep. 312, the plaintiff was thirteen years of age, and was-injured in a factory after an employment of three months. Judge Earl there said, page 635, 131 N. Y., “the rule of law laid down is that the omission by the employer of instructions in such a case does not impose upon him liability, provided the boy knew, by experience or observation, the nature of the machine, and the dangers to be apprehended therefrom, and so we held in Hickey v. Taaffe, 105 N. Y. 26; 6 St. Rep. 426.” It is clear, as matter of fact, that a buzz saw is a dangerous machine, and that its dangers are open and apparent to an adult, and, under the authorities cited, to a minor. We hardly think that an opinion was necessary in this case, as the authorities in the court of appeals are very plain on the points involved, but have written our views out of respect to the learned counsel for the appellant. It follows that the judgment and order denying new trial must be affirmed, with costs.

Osborne, J., concurs.


author: Van Wyck, J.

text:
    Louis Strube, as Executor, etc., Pl’ff, v. Delia Leutzbach, Def’t.

      (Brooklyn City Court, General Term,

      Filed April 22, 1895.)

    Will—Power to sell.
    Where testator, after giving a pecuniary legacy which absorbed all the personal property, directs the balance of the estate to be equally divided among his children and gives the executor full power to sell said estate to his best knowledge, a general power in trust to sell the real estate is given to the executor.
    Controversy submitted without action on an agreed statement of facts.

      W. W. Butcher, for pl’ff; John H. Wolters (Stephen B. Jacobs, of counsel), for def’t.
   Van Wyck, J.

This is a submission under section 1279 of the Code of Civil Procedure. The will of Philip Leutzbach gives-$800 to his daughter Therese, directs the balance to be divided equally between his three minor children, Therese, William, and Frederick, and appoints the plaintiff, Strube, his executor, giving him full power to sell said estate to his best knowledge. He left $800 in personal estate, and the balance in real estate. Does this will give the executor good power to sell real estate? is the question we are called upon to answer. We think it is manifest that a general power in trust is confided to the executor to sell the real estate, with a clearly implied duty imposed upon him of dividing the proceeds therefrom equally between these three minor children. Kinnier v. Rogers, 42 N. Y. 531. If the defendant is correct in his contention that this power clause creates a beneficiary power in favor of plaintiff, Strube, vesting an absolute estate in him as the donee of the power, we are satisfied Strube, after conveying as executor, would be estopped from thereafter setting up any claim to the same in his own right.

Plaintiff is entitled to judgment, with costs.

All concur.


author: Osborne, J.

text:
    Annie De G. Van Sickle, as Administratrix, etc., App’lt, v. Atlantic Avenue Railroad Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed April 22, 1895.)

    1. Master and servant—Risk.
    Where a servant knows whether an appliance is defective but has never complained of its condition as unsafe or dangerous, nor of a fellow-servant as incompetent or negligent, he must be deemed to have assumed voluntarily any risks resulting from the use of the appliance or the employment, of such co-servant.

      2. Same.
    The evidence was held, in this case, insufficient to charge the company with negligence.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Horace Graves, for pl’ff; Tracy, Boardman & Platt, for def’t.
   Osborne, J.

Plaintiff’s intestate had been in defendant’s employ for some eighteen or nineteen years prior to his decease, and for the past four or five years had been foreman of the repair shop of the Bergen Street Line of defendant, located on Bergen street, at the termination of that line, and having “charge of the fixing and repairing of the cars and of the depot, and looking after the depot in general, as regards repairsand in the absence of James J. Roddy, the superintendent, deceased had general charge of the depot. At the termination of this line, on Bergen street, and on the northerly side of the street, was its car house, which connected with the tracks on the street by a tongue switch. A short distance further east was a cross-over switch, used for transferring cars from the southerly or up track to the northerly or down track. On January 10, 1891, the day that plaintiff's intestate met his death, he was engaged in repairing a car (No. 11) which was standing on the northerly or down track on Bergen street, with its rear end overlapping the switch leading into the car house. One Thomas Roddy, a young man also in defendant’s employ, got on car No. 40, standing on the southerly track, and started to drive it up to the cross-over switch, with a view of transfering it to the northerly or down track. After driving about two car lengths, his car took the switch leading into the car house, ran up against the car which deceased was working upon, and the head of deceased was crushed between the drip rails of the two cars, causing his death.

Plaintiff brings this action to recover damages for causing her intestate’s death; claiming that it was due to the negligence of defendant in maintaining said tongue switch in a defective condition, and also in the employment of said Thomas Roddy, who, she claims, was an incompetent servant. On the trial, plaintiff adduced evidence tending to show that this tongue'switch was in bad condition, in that the tongue of the switch was worn down to a point below the level of the rail, and-that the pin holding one end of the tongue was so loose that a wagon running over the switch, ■or any striking of the rail by a car, would jar the tongue from ■one side to the other, so as to open the switch, and that this alleged defective condition had existed for six months prior to the accident. Defendant introduced evidence tending to show that the switch was in good condition, and that there were no such defects in it as plaintiff claimed; and the switch itself was produced in court for inspection, and it was shown that it was in the same condition as when plaintiff’s intestate was killed, and that no repairs had been made on it since that time. Defendant further proved that the practice as to blocking this switch was as follows:

“ In case of blocking a switch, if the block was out of the switch, we would go in, or send some one, to get Joe (deceased) to get the block ready; and he would go out, and put it "in the ■ switch. Sometimes he would put a block of iron in it, which was a nut. If he didn’t have a nut, he would put a block of wood in it. If it was not a block of wood, we would put a piece of rubber in it. But it was invariably a block of iron—a large nut—which was put into that switch. He (deceased) did the blocking. Sometimes a block would remain there for a week,—for a month, sometimes; a block of iron. Other times it would be lost, by the conductor taking it, and forgetting to put it back in the open switch. When it was discovered that the block was not in the switch, they went to Joe, and Joe brought the block there, and placed one in place of the one that had been lost or went astray.”

It was also testified to by Superintendent Roddy that on the evening before the accident the switch was blocked, and that he drove over it on the morning of the accident, and that it was in perfect condition. It further appeared that, when a conductor wanted to run a car from the car track into the car house, it was ■his “duty to get off the back of his car, and go to the front, where the switch is, and take the block of wood, turn the switch, and tell the driver to drive into the car house; after the car has passed ■over the switch, to turn the switch back to its proper place, and place the block there again, where he had taken it out.” It was further shown that deceased had received positive orders from the superintendent to take all cars that needed repairing-into the car shop, and repair them there, sothat “there would be no danger of ■accidents.”

On the question of the alleged negligence of the defendant in employing an incompetent servant, it was shown by a witness for the plaintiff that the young man, Thomas Roddy, who was driving the car No. 40 at the time it took the switch, was about seventeen or eighteen years old; that he had been employed around the depot about ten years, and had been driving cars around there for three or four years before the accident; that he also acted as tow boy, drove cars down to the shop, and brought horses from the ’•stable. And this witness further testified:

“ I have seen Roddy transfer these cars from one track to the ■other, as he was doing this time, probably a hundred times. I have seen Yan Sickle (deceased) working around there while Roddy was doing this work of which I have spoken, frequently.”

At the close of all the evidence a motion to dismiss the complaint was granted by the learned trial judge, on the ground that there was no proof that the switch was closed when the car left the track, and on the further ground that, if the switch was defective, it was apparent to any one who worked on the premises, and that the deceased assumed the risk ; and on the ground that the driver was not incompetent, and, even if he was incompetent, it was known to the deceased, and he assumed the risk of working in the neighborhood. The learned counsel for the plaintiff asked to go to the jury on the questions of contributory negligence and negligence of the defendant, and excepted to the refusal to submit the case 'to the jury, and the exceptions taken were directed to be heard in the first instance at the general term. This case is now before us on those exceptions.

After a careful examination of this case, we are of the opinion that plaintiff failed to sustain her cause of action. It was her duty to show, affirmatively not alone the freedom of deceased from contributory negligence, but also that his death was due solely to the negligence of the defendant; and, in default of her so doing, defendant was entitled to a dismissal of the complaint. Rose v. Railroad Co., 58 N. Y. 217, 222. It is plain that the collision of the cars which caused the death of plaintiff’s intestate was due to one of two causes,—either, firstly, that the switch in question was left open through the negligence of the deceased, or some other employe of the defendant; or, secondly, that at the time of the accident the switch was closed, and that by reason of its defective condition it was opened by the passage of the car, and the collision resulted which caused the death of plaintiff's intestate. There is no evidence whatever that this switch was closed at the time of the happening of the accident, even though it was not' blocked; and a verdict based on the claim of the plaintiff that the collision of the cars was due only to the defective condition of the switch, and to its being opened by the jar of the car, would necessarily be based on speculation. The evidence is plain, clear, and uncontradicted that deceased was in the habit of providing the block or iron nut with which to block the switch, and that when one was lost or mislaid he was applied to, and furnished another, and that it was the duty of the conductor taking a car into the car bouse to unblock and open the switch, and, then, after his car had passed over the switch, to close and again block it. There is nothing to show but that this switch was left open by some conductor after taking a car into the car house. For aught that appears to the contrary in the evidence, it is just as likely that the switch was left open as that it was jarred open. If left open, then it was clearly negligence on the part of a fellow servant, and in that event defendant would not be liable. To have submitted this case to the jury on the contention of the plaintiff that the switch was jarred open, in the absence of any evidence that it was closed before the car approached it, would simply call upon the jury to conjecture what the real situation was.

But even if we conceded, for the sake of the argument, that the death of plaintiff’s intestate was due solely to the defective conditian of the switch, or that it was due in part to that cause and in part to the incompetency of Eoddy, the driver of the car, we still fail to see how plaintiff could be entitled to recover. Deceased was an old employe of the defendant, a railroad mechanic, and thoroughly familiar with, and constantly working about, this switch, and also equally familiar with Eoddy and his method of doing the work he was called upon to perform. If, as claimed by plaintiff, this switch was defective, none knew it better than deceased ; and there is no pretense that hfe ever complained of its condition as unsafe or dangerous, or of Eoddy as an incompetent, or negligent servant. Under those circumstances, deceased must be deemed to have voluntarily assumed any risks resulting from the use of the switch or the employment of Roddy. Sweeney v. Envelope Co., 101 N. Y. 520; Gibson v. Railroad Co., 63 id., 449 ; Running v. Railroad Co., 49 id., 521; Williams v. Railroad Co , 116 id., 628; 27 St. Rep. 760; Plunkett v. Donovan, 36 St. Rep. 91.

The exceptions taken to the admission of evidence at folios 68'? 69, and 72 have no merit, and do not call for any discussion.

For the reasons above stated the exceptions of the plaintiff should be overuled, and judgment directed for defendant, with costs.


author: Bischoff, J.

text:
    Arrowitz Wolfe et al., Resp’ts v. Edward C. Horn et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 1, 1895.)

    1. Appeal—Notice.
    A notice of appeal sufficiently shows, without naming them, which of several defendants appeals, where one of them did not appear or answer and the others appeared and litigated the issues.
    3. Same.
    An error in the referee’s conclusions of law and the judgment appealed from, which" is prejudicial to one defendant alone, does not afford adequate ground for the reversal of the judgment with regard to the other defendants.
    3. Mechanic’s lien—Breach op contract.
    A mechanic’s lien cannot be obtained for damages caused by a breach of contract.
    Appeal from a judgment in favor of plaintiffs;

      Thos. O'Callaghan, Jr., for app’lts; W. W. Culver, for resp’ts.
   Bischoff, J.

The action was brought to foreclose a lien claimed, pursuant to the provisions of the mechanic’s lien law (chapter 342, Laws 1885, and chapter 316, Laws 1888), against the defendants Horn and Smith, as owner and contractors, and the defendant Dow, as owner only, for a balance owing of the fair and reasonable value of services rendered and materials furnished in the making of certain improvements upon the premises described in the complaint. Agreeably to the notice contained in the record, the appeal from the judgment entered was taken by “the defendants,” without naming them. The defendant Dow, however, did not answer the complaint, or otherwise appear in the action. Ho proposed findings of fact or conclusions of law on his behalf were presented to the referee. Heither do any exceptions to the referee’s decision appear to have been taken by the said defendant. The defendants Horn and Smith alone litigated the issues upon the trial. The judgment against the defendant Dow, therefore, was rendered upon his default to appear and defend ; and, as no appeal will lie from such a judgment, Code Civ. Proc. § 1294; Keller v. Feldman, 2 Misc. Rep. 179 ; 49 St. Rep. 718, it is obvious that the appeal was intended to be taken by the defendants Horn and Smith only.

The. judgment entered appeal’s upon inspection to be of doubtful validity with regard to the defendant Dow. It is nowhere conceded, nor has the referee found, that Dow assumed payment for the plaintiff’s work, or assented to the making of the improvements. Upon what authority then, are the plaintiffs entitled •either to personal judgment against Dow, or to a lien upon his interest in the premises as owner? Laws 1885, chap. 342, § 1; Mosher v. Lewis, 64 St. Rep. 117. He was not to be subjected to the ■costs ensuing upon the litigation of the issues, since he did not defend, and the liability was not a joint one. Holler v. Apa, 47 St. Rep. 485. Error, however, in the referee’s conclusions of law, .and the judgment appealed from, which is prejudicial to the defendant Dow alone, does not afford adequate ground for the reversal of the judgment with the regard to the defendants Horn and Smith. By such error the two last-mentioned defendants are in no sense aggrieved.. Code Civ. Proc. § 1294; Biershenk v. Stokes, 7 Misc. Rep. 692, 694; 57 St. Rep. 704.

The answer presenting the issues litigated also interposed a ■counterclaim for the the plaintiffs’ alleged breach of contract. Ho reply appears to have been made to this counterclaim. Hone ■is contained in the record, and no point because of its omission was made on the trial. We are therefore to consider the issues as they were tried and determined by the referee with the consent of the parties. Muldoon v. Blackwell, 84 N. Y. 646. The complaint alleged, and the answer admitted, that on or about the 29th day of March, 1892, the plaintiffs and the defendants Horn and Smith, the latter being at the time lessees of the premises, entered into a contract whereby the plaintiffs agreed to do certain plumbing work, and the defendants Horn and Smith agreed to pay therefor $1,010, in three installments,—$300, $300, and $410, respectively, —as the work progressed. It was further alleged in the complaint that, upon the maturity of the first installment the defendants ■omitted payment thereof, that the plaintiffs thereupon declined to proceed with the completion of the work; that the defendants Horn and Smith thereupon paid the sum due, and requested the plaintiffs to proceed; that, acting upon such request, the plaintiffs resumed the work, and were thereafter, before the maturity of the second and third installments, prevented by the defendants Horn and Smith from completing it; that, at the time when the plaintiffs were so prevented, the fair and reasonable value of work actually ■ done was $438.23, of which, after crediting the defendants Horn and Smith with the $300 paid, there remained due and owing $188.-23; and that on June 29, 1892, the plaintiffs filed their notice,, claiming the lien for the foreclosure of which this action was brought.

That the facts admitted and those alleged as aforesaid, if proved,, entitled the plaintiffs to a recovery against the defendants Horn and Smith, is indisputable. Flaherty v. Miner, 123 N. Y. 382 ; 33 St. Rep. 681; Whelan v. Ansonia Clock Co., 97 N. Y. 293. The answer denied any breach of the contract on the part of the defendants Horn and Smith, and that the work done by the plaintiffs was of the value as claimed. As a counterclaim, the answer alleged that the plaintiffs committed a breach of the contract in having failed to complete the work, to the damage of the defendants Horn and Smith in the sum of $502.01. Regarding the reply as waived and the counterclaim as denied, Muldoon v. Blackwell, supra, the questions presented to the referee for his determination were: Hirst, whether the plaintiffs or the defendants Horn and Smith committed a breach of the contract; and, secondly, if the defendants Horn and Smith were guilty of such a breach, the amount of the plaintiffs’ damages recoverable in this action, or, if the plaintiffs were guilty of the breach, the amount, of the defendants Horn’s and Smith’s damages. The evidence adduced by the parties in support of their several and respective contentions created but a conflict, which it was the referee’s province to determine. Sufficient appears in the record in support of every essential allegation of the complaint. No such inconsistencies appear on the part of the plaintiffs, nor is the evidence adduced by them so tainted by improbability that we may say that the preponderance of the evidence was with the defendants. Brown v. Sullivan, 1 Misc. Rep. 161; 48 St. Rep. 685; Siefke v. Siefke, 5 Misc. Rep. 406; 55 St. Rep. 388. Hence, the referee’s determination of the facts is conclusive upon us. Baird v. Mayor, etc., 96 N. Y. 567. Obviously, the determination that the defendants Horn and Smith prevented the plaintiff’s performance precluded the farmer’s recovery upon their alleged counterclaim.

It is contended by the appelants that the referee erred in his refusal to credit them with certain expenditures made after the breach of contract had occurred. These expenditures, it is true, had the contract been completely performed, would have had to be borne by the plaintiffs. In support of the referee’s conclusions in this respect, it is, however, only necessary to point out that the action was not to recover damages for the profits prevented, but proceeded, on the part of the plaintiffs as well as of the defendants Horn and Smith, as one to recover upon a quantum meruit, for the services actually rendered and the materials actually furnished; for in no other aspect of the action and of the issues litigated could the plaintiffs have supported their claim of a lien, the statute failing to afford such a lien for damages accruing from a prevention of a performance of a contract for services and materials, and limiting it to the services rendered and the materials furnished in the making of improvements and repairs. Laws 1885, chap. 342 ; Dennistoun v. McAllister, 4 E. D. Smith, 729; Miner v. Hoyt, 4 Hill, 193; Hoyt v. Miner, 7 Hill, 524; Morgan v. Taylor, 24 St. Rep. 60.

Other exceptions taken by the appellants to rulings upon evidence disclose no justification for reversal of the judgment. It should therefore be affirmed as to the defendants Horn and Smith, with costs.

All concur.


author: Daly, C. J.

text:
    Elwood S. Hand, Resp’t, v. Francis Callaghan, App’lt.

      (New York Common Pleas, General Term,

      Filed March 15, 1895.)

    1. Appeal—Dismissal.
    A motion to dismiss an appeal must be made on eight days’ notice.
    3. Same.
    A motion to dismiss an appeal from the New York district court for defects in the appeal, service of notice or failure to file the return, must be made at the special term of the common pleas.
    3. Same—Notice of argument.
    „ The failure of the appellant to serve a notice of argument is by itself ns ground for dismissing an appeal.
    Motion to dismiss an appeal.

      Chas. De Hart Brower, for app’lt; Charles A. Walson, for resp’t.
   Daly, C. J.

Motion by respondent to dismiss appeal for (1) failure to serve a proper notice of appeal; (2) failure to file a return as required by law ; (3) failure to serve a notice of argument. The appeal is from a judgment of a district court rendered May 10, 1894, and the judgment was satisfied on execution. The notice of appeal was served June 2, 1894, and the return of the justice was filed November 13, 1894. Neither party has placed the cause on the general term calendar, and the motion to dismiss the appeal is made on five days’ notice. The motion must be denied because a notice of motion of five days is insufficient. Code, § 780 ; Salters v. Sheppard, 11 Wkly. Dig. 189. An additional reason for denying it is that motions to dismiss appeals from district courts for defects in the appeal or service of notice thereof, or for failure to file return, must be made at the special term. Eules 9 and 11 of the Common Pleas ; Eules of Courts of Eecord, 1888, p. 374. Failure of appellant to serve notice of argument is by itself no ground for dismissing an appeal. Despondent, having given notice of argument, should have placed the cause on the general term calendar, and brought the appeal to a hearing. Notice of argument may be given for the additional term in April next, and a note of issue filed therefor.

This motion is denied, with $10 costs to appclient to abide event of appeal.

All concur.


text:
    The People ex rel. Central Stamping Company, Resp’t, v. Edward P. Barker et al., as Commissioners, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    'Taxes—Assessment.
    After an assessment has been reduced upon an application of a corpora: tian, it cannot be increased without twenty days’ notice to the applicant.
    Appeal from an order reducing the assessment.

      David J. Dean, for app’lts ; Charles H. Beckett, for resp’t.
   Per Curiam.

It is conceded that, after the assessment books were opened for correction and review, the relator applied for a reduction of the assessment made against it, which was granted by the tax commissioners, and the assessment reduced from $500,000 to $221,153. Subsequently, and without notice, upon evidence satisfactory to them, the assessment was increased to $357,468.13. This, we think, was error, because, having corrected the assessment, they were without authority to thereafter increase is, except upon twenty days’ notice to 'the relator. Laws 1882, chap. 410, §819.

The order should be affirmed, with $10 costs and printing disbursements.


text:
    Edward H. Swan, Jr., Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    Appeal—Excessive verdict.
    Where a verdict is set aside an excessive, a second verdict, on the same or no stronger evidence, for a greater amount will be alsd set aside.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      W. C. Beecher, for app’lt ; Wilhelmus Mynderse, for resp’t
   Per Curiam.

Upon the last trial, plaintiff recovered a verdict for $20,538.07. On the former trial the jury awarded the plaintiff $12,500, and this court decided that that was excessive. Swan v. Railroad Co., 61 St. Rep. 28. It is not claimed by the respondent that the present case, in any of its essential features, is stronger in favor of the plaintiff, upon the question of damages, than that presented by the former record on appeal; and while an examination of the record confirms the claim,, by reason of the time that had elapsed, that the injuries were serious, we regard the case as not quite so strong for plaintiff as upon the first trial. Upon the second trial no evidence was given of doctors’ bills, nor was there anything to show how plaintiff’s injuries had affected his ability to get about and enjoy himself, upon both of which points evidence was presented at the former-trial. In this state of the record, consistency requires that the judgment, which, upon similar evidence, is almost double the one that was set aside as excessive, should not be affirmed. Unless, therefore, the plaintiff will stipulate to reduce the verdict to $10,000, it should be reversed, and a new trial ordered, with costs to abide the event.

All concur.


text:
    Albany Brass & Iron Co., App’lt, v. Charles H. Hoffman, Resp’t.
    Sup. Ct., 4 D.,
    May 24, 1895.
   No opinion. Order affirmed on the opinion of the court below, with $10 costs and disbursements.


text:
    David Aldridge, as Superintendent of Poor, Resp’t, v. Mary Walker, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment modified by reducing the recovery of damages to $708, and, as modified, affirmed, with costs of appeal to appellant.


text:
    Joseph Amo, Resp't, v. Adirondack Sanitarium Co., App’lt.
    Sup. Ct., 3 D.,
    May 24, 1895.
   No opinion. Order affirmed, with costs and disbursements.


text:
    Joseph J. Bach, Resp’t, v. Charles R. Skinner, App’lt.
    Sup. Ct., 3 D.,
    May 24, 1895.
   No opinion. Order affirmed, with costs and disbursements.


text:
    Nicholas J. Barry, Resp’t, v. Bridget Gibbons, App’lt.
    Sup. Ct., 3 D.,
    May 29, 1895.
   No opinion. Order affirmed, with costs and disbursements.


text:
    Matter of Board of Street Opening. Matter of Guarino.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Reference ordered to Frederick S. Wait to take proof, and report with his opinion.


author: Ehrlich, C. J.

text:
    Boyden v. Baldwin et al.

    N. Y. C. C.,
    April 9, 1895.
    Motion for a reargument.
   Ehrlich, C. J.

This cause was not argued at the preceding term, but submitted on account of the failure of the appellants to comply with one of the rules of the court which provides that the appellant shall furnish to each of the three judges composing the general term, at least four days before the meeting thereof, one copy of the printed case on appeal. The appellants have excused their failure to comply with the rule, and, as the case is one of some importance, a reargument will be ordered, provided the appellants, within ten days, pay to the attorney for the respondent $10 costs; in default of which payment the motion will be denied, with $10 costs. In this particular instance, and to prevent any possible injustice, the order indicated will be made.


author: Cullen, J.

text:
    Brooklyn El. R. Co., App’lt, v. Bertha Metzger, Resp’t.
    Sup. Ct., 2 D.,
    May 13, 1895.

      Hoadly, Lauterbach & Johnson, for app’lt; John A. Taylor, for resp’t.
   Cullen, J.

I vote to affirm without opinion.


text:
    Brooklyn El. R. Co. v. William C. J. Voss.
    Sup. Ct., 2 D.,
    May 13, 1895.
   No opinion. Order affirmed, with costs.


text:
    William Brown et al., Resp'ts, v. Lodema M. Crabb, App’lts.
    Sup. Ct.. 4D.,
    November, 1894.
   No opinion. Judgment and order affirmed, with costs.


text:
    Matter of Brown’s Estate.
    Sup. Ct., 4 D.,
    November, 1894.
    Edwin Maples and Oscar Maples, Resp’ts; Lydia M. Brown, App’lt.
   No opinion. Decree of surrogate’s court reversed, with costs to the appellant against the respondents personally. See 1 Brad. R. L. 9, Abbott v. Curran, 98 N. Y. 663; Code Civ. Proc. § 2591.


text:
    William Burns, App’lt, v. Edward A. Matthews, Resp’t.
    Sup. Ct., 4D.,
    November, 1894.
   No opinion. Judgment and order affirmed, with costs.


text:
    James Busby v. Edward A. Jenks.
    Sup. Ct., 2 D.,
    May 13, 1895.
   No opinion. Judgment affirmed, with costs.


author: Dykman, J.

text:
    Butler v. Brown.
    Sup. Ct., 2 D.,
    May 13, 1895.

      Louis S. Phillips, for app’lt; Estes, Barnard & Tiffany, for resp’t.
   Dykman, J.

This is an appeal by the plaintiff from a judgment rendered against him in favor of the defendant. The action was brought to recover the sum of §222 and interest thereon, which at the time of the trial amounted to $275.98 for principal and interest. The indebtedness was not denied by the defendant, but he set up a counterclaim, which amounted to $631.37 for principal and interest at the time of the trial. The counterclaim was for the amount due upon an account stated. The cause was tried before a judge of this court without a jury, and he has found that the counterclaim was established by the evidence, and set off against the claim of the plaintiff sufficient to extinguish the same, and directed judgment in favor of the defendant for the balance, which was $494.94. The evidence sustains the decision, and justice has been done to both parties. There is no error in the record, and the judgment should be affirmed, with costs.


text:
    William J. Carey, App’lt, v. Gay Bros. & Co., Resp’ts.
    N. Y. C. P.,
    March, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Louisa Carlson, App’lt, v. Maria L. Winterson, Resp’t.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion for leave to appeal to the court of appeals granted.


text:
    Margaret J. Carney, App’lt, v. Metropolitan Life Ins. Co., Resp’t.
    N. Y. C. P.,
    March, 1895.
   No opinion. Motion to dismiss appeal granted.


text:
    John Cassidy, App’lt, v. Atlantic Ave. R. Co., Resp’t.
    B. C. C.,
    May 27, 1895.

      Thomas E. Pearsall, for app’lt; Tracy, Boardman & Platt, for resp’t.
   Per Curiam.

We cannot distinguish the case on this appeal from that on the former appeal. They are substantially the same, and -therefore the judgment and order must be affirmed on the opinion of this court in the former appeal, with costs.


text:
    Matter of Jay Chawgo.
    Sup. Ct., 3 D.,
    May 24, 1895.
   No opinion. Order affirmed, with costs and disbursements.


text:
    City of Syracuse Resp't, v. Richard M. Stacey et al., App’lts.
    Sup. Ct., 4D.,
    April, 1895.
   No opinion. Motion denied, without costs to either party.


text:
    George C. Clark et al., Resp’ts, v. James Sheridan, et al., App’lts.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    Cochrane Carpet Co., Resp’t, v. Henry C. Howells et al., App’lts.
    Sup. Ct. 1 D.,
    April 11, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Artemus S. Cody, Resp’t, v. William De W. Bruce, App’lt.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Decree affirmed, with costs.


text:
    David Mayer Brewing Co., Resp’t, v. Josiah Denner, App’lt.
    Sup. Ct, 1 D..
    May 17, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Robert E. DeForest, Resp’t, v. Kenyon G. Viele, App’lt.
    N. Y. C. P.,
    March, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    William Dempsey, Resp’t, v. New York Cent. & H. R. R. Co., App’lt.
    Sup. Ct, 4 D.,
    April, 1895.
   No opinion. Interlocutory judgment affirmed, with costs, with leave to defendant to answer on payment of costs of the demurrer and of this appeal. Leave granted to appeal to ihe court of appeals.


text:
    Charles C. Denney, Resp’t, v. Susan Cory, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Timothy Donovan et al., Resp’ts, v. Standard Oil Co. of New York, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment affirmed, with costs.


text:
    Ida M. Dow-Currier, Resp’t, v. David Henderson, App’lt.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Motion denied, with $10 costs. The case of Tozer v. Railroad Co., 105 N. Y. 617, was not overlooked, but the question arose in that case quite differently from the manner in which it is presented in the case at bar.


text:
    Thomas F. Dowd, Resp’t, v. Brooklyn Heights R. Co., App’lt.
    B. C.'C.,
    April 23, 1895.

      Morris & Whitehouse, for app’lt; Tredwell & Catlin, for resp’t.
   Per Curiam.

Action to recover damages for negligently causing the death of plaintiff’s intestate. On the first trial of this cause the complaint was dismissed on the ground that deceased was negligent, and that no negligence was shown on the part of the defendant. On appeal to the general term we reversed the judgment of the trial term, holding that a prima facie case of negligence had been made out against the defendant, and that the question of contributory negligence was for the jury to determine. On the second trial the jury, on all the evidence, found a verdict for the plaintiff. We are now asked to reverse the judgment entered thereon on the ground that “plaintiff failed to prove that the death of his intestate was due to any negligence on the part of defendant’s servants, and without negligence on his own part.” The evidence on the second trial presented a sharp conflict between the plaintiff’s and defendant’s witnesses as to the facts ui.d circumstances which 'resulted in the killing of plaintiff’s intestate. The jury have determined the issues in favor of the plaintiS, and there is nothing 'in the case which would justify us in interfering with the verdict. Judgment and order denying new trial affirmed, with costs.


text:
    Edison General Electric Co., Resp’t, v. Sylvester H. Kneeland, App’lt.
    N. Y. C. C.,
    May 28, 1895.

      A. Prentice, for app’lt; Charles H. Brewster, for resp’t.
   Per Curiam.

Judgment appealed from affirmed, with costs. ,


text:
    Empire Warehouse Co. v. Peter Mallett.
    Sup. Ct., 1 D.,
    April 11, 1895.
   No opinion. Motion for reargument' denied,


text:
    George W. Evans, App’lt, v. Patrick Carroll, Resp’t.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    George H. Failing, Resp’t, v. Daniel M. Leahy, App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment and order affirmed, with costs. Hardin, J., not voting.


text:
    James S. Farmer, Resp’t, v. New York Cent. & H. R. R. R. Cc., App’lt.
    Sup. Ct., 4 D.,
    November, 1894.
   No opinion. Judgment of the county court and that of the justice’s court reversed, with costs. Held, the evidence is insufficient to warrant the finding of negligence.


text:
    Jacob W. Feeter, Resp’t, v. Eliza J. Aikenburgh, App’lt.
    Sup. Ct., 1 D.,
    May 17, 1895.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    Alexander Finelite v. Catherine Garrick et al.

    N. Y. C. C.,
    May 28, 1895.
   No opinion. Judgment affirmed, with costs.


text:
    First Nat. Bank of Syracuse v. New York Cent. & H. R. R. R. Co.
    Sup. Ct., 4 D.,
    April, 1895.
   No opinion. Motion denied.


text:
    Fitchburgh R. Co., App’lt, v. James E. Kennedy, Resp’t.
    Sup. Ct., 3 D.,
    May 14, 1895.
   No opinion. Judgment affirmed, with costs.


author: Ehrlich, Ch. J.

text:
    Samuel D. Folsom et al. v. Robert C. Lewis et al.

    N. Y. C. C.,
    April 9, 1895.

      Benjamin Wright, for app’lt; Samuel Mullen, for resp’t.
   Ehrlich, Ch. J.

The plaintiffs proved that they, as real estate brokers, were employed by the defendants to find a purchaser for the house No. 146 East Sixty-first street, this city, at the price of $29,000;= that they found a person willing to buy on these terms, and that the parties were brought together through the instrumentality of the plaintiffs. The brokerage on such transactions is conceded to be one per cent, of the purchase money, making $290, the amount of the verdict, exclusive of interest. The proofs also show that the failure to complete was owing to the inability on the part of the defendant. It was claimed by him that infants were interested in the property, and that they could not give title without an order of the court. But one of the plaintiffs testified that there was no such condition attached to the employment, and that the defendant had told him that this had been provided for, We think the plaintiff established sufficient to go the jury, that the questions involved were fairly submitted to them, and that their finding thereon is sustained by the evidence. It follows that the judgment and order appealed from must be affirmed, with costs.


author: Conlan, J.

text:
    Julius Freudenheim et al., App’lts, v. Julia Raduziner, Resp’t.
    N. Y. C. C.,
    May 28, 1895.

      Edward Clark, for app’lt; A. H. Berrick, for resp’t.
   Conlan, J.

This is an appeal from a judgment entered on a verdict by direction of the court, and from an order denying a motion for a new trial. Judgment affirmed on former opinion of this court.