text:
    Bertha E. Martin, Adm’rx, Resp’t, v. Spencer C. Platt et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. New trial—Motion for before judge other than one presiding AT TRIAL. 0
    Where a motion is made for a new trial on the ground that the verdict is against the weight of evidence before a judge other than the one presiding at the trial, and no objections are taken to the hearing of the motion at the term where it is made, it may be assumed that a direction had been given by the trial judge allowing it to be so made.
    3. Appeal—Verdict.
    The appellate court cannot interfere with the verdict of a jury on the ground that it is against the weight of the evidence, unless the preponderance is both decided and apparent from an examination of the evidence.
    Appeal from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial.

      William G. Wilson, for app’lts; George C. Coffin and Edward S. Clinch, for resp’t.
   Daniels, J.

A variety of exceptions were taken at the trial to rulings made in the progress and for the final disposition of the case, and but one question of fact appears from the charge to have been submitted to the jury. And to its submission to the jury no exception was taken. After the verdict was rendered, the court, at the instance of the defendants, ordered the exceptions to be first heard at the general term, and judgment in the meantime suspended. And those exceptions were afterwards heard and overruled and judgment directed in favor of the plaintiff upon the verdict, and that judgment, although somewhat informal, has since between entered in the action. It necessarily, as well as in form, disposed of all the questions presented by the exceptions, and having been directed and authorized by the general term, no appeal could afterwards regularly be taken from that judgment to the general term again. The whole case, so far as it depended upon the exceptions, has been disposed of by the general term, and nothing further remains to be heard or considered by that tribunal in the appeal taken from the judgment. It is substantially an appeal from one term of the general term to another, for which the present system of practice has provided no authority. And the appeal, so far as it has been taken from the judgment, should, therefore, be dismissed,.with costs.

After the judgment entered upon the direction of the general term as the result of overruling the exceptions, the defendants were at liberty to move for a new trial on the ground that the verdict was against the evidence. That motion is authorized by § 1006 of the Code of Civil Procedure. And so it was held by this general term on the disposition of the appeal from the order denying a motion to vacate an order extending the time to serve a case. The opinion was there given by Presiding Justice Van Brunt, and it was stated by him: “ That a motion may be made for a new trial on the ground that the verdict is against the weight of evidence after the hearing of the exceptions . at the general term seems to be expressly sanctioned by § 1006 of the Code.” And it is from the order resulting in the denial of that motion that the appeal has been taken which still remains to be considered and decided.

It has been objected that the motion should have been made at a court held by Mr. Justice Andrews, who presided at the trial. And that undoubtedly would have been the regular course of practice to have taken unless he ordered the motion to be heard at a court held by another justice. But inasmuch as no objections seem to have been taken to the hearing of the motion at the term where it was made, it may be assumed that such a direction had been given by Mr. Justice Andrews, and that the motion was regularly heard and decided at the special term held by Mr. Justice Ingraham.

The plaintiff brought the action upon a memorandum or statement made on the 16th of January, 1879, and subscribed by the executors of Nathan 0. Platt, deceased. He had performed services in an action brought by them against George W. Platt to recover certain real estate, and for an accounting. And by the instrument which, was subscribed it was stated that he had prepared accounts and balance sheets on the reference, and had rendered clerical assistance in preparing arguments, cases, indexes, etc., for which the sum of $7,000 was claimed. And the instrument declared that the above bill had been examined by the executors, and the amount due to Howard A. Martin, who was the plaintiff in the action, adjusted at $7,000. And it was consented and agreed that the same should be paid out of the first proceeds of judgment against George W. Platt.

The plaintiff in the action, who has died since the trial, and his administratrix has been appointed in his stead, claimed that these services mentioned in' the statement had been rendered for the executors, and that they had become personally liable to pay this compensation to him. While they insisted that the instrument, or statement, was not subscribed or made for that object, but that the design was to enable the plaintiff in the suit to use it for the purpose of raising this sum of $7,000, which was to be divided between himself and the executors and William R Martin, the counsel in the suit of the executors against George H. Platt. And upon the trial the evidence of the two surviving executors, the present appellants, was directly to the effect that the statement, or instrument, was made solely for this purpose, and that no money had been raised upon it, and that Howard A. Martin, the original plaintiff, had afterwards stated that the instrument itself had been destroyed, and therefore could not be returned, as it was claimed it should be, in compliance with the terms of the agreement actually made. This was denied by the plaintiff. And William R Martin testified that the instrument was drawn and subscribed by the executors as an adjustment of the bill of Howard A. Martin, his brother, for the performance of these services ; and that no agreement or stipulation was made that it should be used to raise money to be distributed or divided between these parties; and if that could not be done that then the instrument should be returned. And the evidence of Howard A. Martin also tended directly to contradict the defense in this manner made by the defendants.

Which of these theories was to be accepted as supported by the evidence was the sole question of fact which the court at the trial submitted to the jury, directing them if the paper was made to raise money upon it, as the defendants insisted it was, that then the plaintiff could not recover. But if it was not, that the plaintiff was entitled to a verdict. Ho exception was taken on the part of either party to the submission of this question to the jury. And for that reason it was not included in the case as it was ordered to be first heard at the general term, for the exceptions alone were sent fo that tribunal to be heard and decided in the first instance. Whether this verdict was against the evidence therefore was a question not disposed of, and could not be disposed of by the hearing and decision of the general term, but it was left open to be brought up and decided, if the defendants desired to present it, by a motion for a new trial after the decision of the general term upon the exceptions and under the authority of § 1002 as well as of 1006 of the Code of Civil Procedure.

As the question was presented to the jury there was no decided preponderance of the evidence in favor of either of the parties, but it raised a question of fact to be decided by the jury. It certainly, in view of the form given to the instrument, cannot be held that the evidence preponderated materially in favor of the defendants. And in the absence of such a preponderance of evidence, the verdict of the jury must be accepted as conclusive upon this disputed question of fact. Upon this subject the rule has been so frequently reiterated as hardly to require any reference to be made to authority for the purpose of sustaining it And that is, that the court cannot interfere with the verdict of a jury on the ground that it is against the weight of the evidence, unless, the preponderance is both decided and apparent from an examination of the evidence. Beckwith v. N. Y. C. R. R. Co., 64 Barb., 299.

This is not a case of that description, and for that reason the court cannot interfere with the order from which this appeal has been taken, but it should be affirmed, with costs.

Van Brunt, P. J., concurs.


source: Caselaw Access Project

author: Kennedy, J.

license: Public Domain

text:
    J. Henry Hallock, Pl’ff, v. Etta A. Bacon et al., Ex’rs, Def’ts.

      (Supreme Court, Onondaga Special Term,

      Filed October, 1891.)

    Costs—Reference of disputed claim against estate.
    On a reference of a disputed claim against an estate the successful party is entitled, as a matter of course, to recover referee’s and witness fees and other disbursements. The court may also, in a proper case, award costs, which, when allowed, are to be at the rates allowed for similar services in an action, and include costs before and after notice of trial, trial and term fees.
    Motion by the defendants for re-taxation of costs.

      H. E. Miller, for def’ts; J. William Wilson, for pl’ff.
   Kennedy, J.

This was a proceeding under the R. S. upon a claim presented to the defendants, as executors, against the estate represented by them, disputed, and referred by stipulation of respective parties, a trial had before a referee, who found and reported the full amount claimed to be owing by the estate. On a motion made to confirm said report and judgment, an order of confirmation was granted, and judgment ordered for the plaintiff, with costs. The plaintiff presented to the clerk a full bill of costs allowed by the Code to the successful party as in an action. Upon taxation the defendants objected to the allowance of any costs except for referee’s fees and disbursements. The clerk overruled the same, and taxed among others the following items:. Before notice of trial, $15; after notice and before trial, $15; trial fee, $30; trial occupying more than two days, $10.

The question is presented whether these items are taxable as a charge against the estate under the order allowing costs.

Was the question an original one it would seem that its proper solution would not be attended with any serious difficulty.

The proceedings are instituted and followed to a conclusion under and in pursuance of the provisions of the Revised Statutes. (Yol. 4, 8th ed, Banks, p. 2562, § 37.) This provides that the referee shall hear and determine the case, and the same proceedings shall be had in all respects, the referee shall have the same powers, be entitled to the same compensation, and subject to the same control as if the reference had been made in an action in which the court might order a reference; and the court may set aside the report of the referee or appoint others in their places, and may confirm such report and adjudge costs as in an action against executors. The Code of Civil Procedure, § 3333, defines an action, when applied to judicial proceedings, to be an ordinary prosecution in a court of justice of a party against another party for the enforcement or protection of rights, etc.

Every other prosecution of a party for either of the purposes specified in the last section is a special proceeding. Sec. 3334.

Proceedings of this kind are, therefore, special proceedings, and they are so defined in Denise v. Denise, 110 N. Y., 569; 18 N. Y. State Rep., 873, and in other cases.

By § 317 of the old Civil Code, it is provided that on a reference of a disputed claim the prevailing party shall be entitled to recover the fees of the referee, witness’ fees and other disbursements, to be taxed according to law. This section was an amendment enacted in 1851, and has not been repealed, and, therefore, the successful party is entitled to recover these items of course, and without application to or the order of the court; and so far changes the provision of the Revised Statutes, which left the right to disbursements, as well as costs, in the discretion of the court, leaving it, however, in its discretion to award costs in addition to such disbursements.

This proceeding being a special proceeding, §§ 1835 and 1836 of the present Code do not apply to it, as these provisions only apply to actions. Being special proceedings, the right of a party to costs, independent of disbursements, is to be determined by § 3240 of the Code,- which provides that costs in a special proceeding instituted in a court of record or upon appeal in such proceeding, taken to a court of record when the costs are not especially regulated by this act, may be awarded to any party in the discretion of the court, at the rates allowed for similar services in an action brought in the same court or on appeal from judgment taken to the same court and in like manner.

It appears quite evident that while these are instituted and prosecuted under the Revised Statutes, that so far as the question of the allowance of costs other than disbursements, either for or against an executor or administrator is concerned, it is one entirely within the discretion of the court; and the amounts to be recovered, if allowed, are those defined in the above section of the Code, and includes statutory compensation as well as disbursements.

The provision of the Code defining what a special proceeding is is sufficiently broad to include every possible case coming within the same, whether the right of the parties is created by the Revised Statutes or the Code itself.

By the Revised Statutes the allowance of costs in these proceedings is left in the discretion of the court. By § 317, above quoted, referee’s fees, witness’ fees and other disbursements are awarded the successful party as a matter of course without the intervention of the court. But this provision does not deprive the court in a proper case to award costs in addition to such disbursements. Hauxhurst v. Ritch, 119 N. Y., 621; 28 N. Y. State Rep., 675. By the provisions of the Code, § 3240, above quoted, in special proceedings the same discretion as by the Revised Statutes is delegated, and that part of the provision of the Code which defines the costs when allowed, also fixes the amount

The rate of compensation as to costs is to be determined by the statute in force fixing the same at the time the proceedings are determined. Supervisors of Onondaga v. Briggs, 3 Denio, 173.

The conflict in the numerous decisions upon the question of costs in special proceedings of this kind cannot be easily reconciled. Thus in Linn v. Clow, Adm., 14 How., 508; Munson v. Howell, 20 id., 59 ; Boyd v. Bigelow, 14 id., 511; Radley v. Fisher, 24 id., 404, each decisions of the general term and each made after the amendment to the Code in 1851, which gave referee’s fees and disbursements to the successful party on a reference of a disputed claim, it is held that the court may allow costs as in an action.

In Overheiser v. Morehouse, 16 Abb. N. C., 208, it is held that the question of costs is controlled by §§ 1835 and 1836 of the Code ; a mistaken application as above suggested, since those sections relate exclusively to an action, while this is a special proceeding

In Sutton v. Newton, 15 Abb. N. C., 452, it is held, as stated, that §§ 1835 and 1836 do not apply to the case, and that, as a matter of right, the prevailing party is entitled to the referee’s fees and disbursements. The case of Denise v. Denise, supra, does not seem to me to dispose of the question, since the right of the court to award costs as in a special proceeding was not in the case, as assumed by the court in the case of Blankman v. McQueen, 58 Hun, 172; 33 N. Y. State Rep., 807, and upon the strength of which the decision in that case rests.

Regarding this, then, as a special proceeding, I think upon the application for confirmation of the referee’s report the court has the power to award costs to the successful party under § 3240 of the Code, and that the costs so awarded are those given in an action for similar services.

If right in „the foregoing, it follows, the court having awarded the plaintiff costs, that the items objected to were properly taxed.

The motion for re-taxation should be denied, and without costs.


author: Patterson, J. Barrett, J.

text:
    Louis B. Hasbrouck, Assignee, Resp’t, v. Emma B. Young, App’lt.

      (Supreme Court, General Term, First Department,

      Filed, October 16, 1891.)

    Deed—Undue influence—-Unsound mind.
    About the middle of July, 1883, Mr. Y. applied to the Title Guaranty & Trust Co. for a loan on his real property, stating that he desired to put it in his wife’s name. The attorney for the company advised him to have an unmarried woman take the title and transfer it to his wife; and after-wards Mrs. Y. selecting the person, (he plan was carried out. Thereafter, according to the evidence of the medical witnesses sworn upon the action to set aside the deed, Y. became more and more nervous, until in September he was seriously ill as to his mind, and witnesses who saw him after January 1, 1889, swore that he was then insane. Held, that the evidence taken as a whole did not show that he was insane at the time of the execution of the deed, or that undue influence was exercised.
    Appeal from a judgment of special term setting aside certain transfers of real and personal property made by Bichard D. Young, the plaintiff’s assignor, to his wife.

      John J. Adams, for app’lt; A. Britton Havens, for resp’t.
   Patterson, J.

The learned judge before whom this cause was tried at the special term stated in his opinion, very concisely, both the question involved and the rule of its solution, as follows, viz.: “ The only question to be determined in this case is, whether the plaintiff was at the times of the execution of the deed by which the house and lot described in the complaint was transferred to the defendant and the execution of the bill of sale on July 23, 1888, and of the assignment executed on January 10, 1889, of unsound mind; for it is an elementary principle of the common law, that a gift or contract is invalid unless the mind goes with the act, and this whether the actor is without mind, or of a mind not possessed of itself, as under duress. Riggs v. American Tract Society, 84 N. Y., 336.”

Both parties have accepted that definition of the matter in contest and each insists that upon the record nothing but issues of fact are raised. The suit was brought originally by Bichard D. Young to set aside certain conveyances of real and personal property made by him to and for the benefit of his wife, upon allegations that they were made and delivered while he was of unsound mind, and that they were procured to be made by undue influence of his wife, the defendant, while he was in that condition. Pending suit, Young made an assignment for the benefit of creditors, and the assignee, who was originally the attorney of record for Mr. Young in this action, has been substituted as plaintiff. This substitution operates no change in the issues. "We are not now concerned with creditors, but are merely to ascertain whether inter partes these conveyances are valid.

The learned judge in the court below found on all the material issues in favor of the plaintiff, and we are now called upon to review that decision and to consider, analyze and weigh all the evidence appearing on the record before us ; and having done so, we cannot resist the conclusion that on the facts the judgment must be reversed, for the evidence, as we think, not only fails to show that as to the deed and bill of sale of July, 1888, Mr. Young was incompetent to make them, but, on the contrary, the preponderance of testimony clearly establishes that, at that time, he was compos mentis, and that the instruments assailed, of that date, so far from being the acts of an irresponsible person, were made after due deliberation, inquiiy, consultation with strangers, and with a fixed purpose to do so as the wisest and best course a prudent and far sighted person would take in his own interest and that of his family, and that ño coercion or undue influence whatever was used by the defendant The utmost that can be said on the testimony is, that at the date referred to the defendant was ill, dejected and fearful as to his health and the future of his business. That his physical condition was impaired to some extent is clear, and it was evidently the consciousness of that fact that prompted his act That he subsequently became worse, until, in September, 1888, his nervous state became serious, is also apparent, but it is likewise true that in July of that year he understood exactly his situation, and that what he then did was in anticipation and prevision of his becoming incapacitated and not a consequence of an already existing incapacity. The proof shows clearly that in January, 1889, he was in such a state of mind as would possibly justify the judgment pronounced as to the bill of sale of that date, but the testimony of the physicians is that his nervous condition, which never really on the evidence amounted to insanity, was progressive, and it can almost be fixed to a certainty that if he were disqualified from doing business at all, that disqualification dated only from September, 1888. A review of the evidence, we think, plainly shows the correctness of the conclusions we have reached, and all of that evidence has been carefully examined as bearing on the two material findings of fact of the court below relating to July, 1888, which ¿re as follows:

“ Fifth. That from the spring of 1888 up to March, 1889, the said plaintiff had been in poor and deficient mental health and condition, and upon the dates mentioned, to wit, the 23d day of July, 1888, and the 10th day of January, 1889, the plaintiff was ■mentally unsound and incapable of appreciating the force, effect and tenor of his acts, or of exercising his own will and judgment and of withstanding the importunities, duress and force or coercion of others.

“ Sixth. That such conveyance and deed * * * were not the proper, free and voluntary acts of the plaintiff, made while he was in full possession of his mental faculties, understanding, will and judgment, but were so made while the plaintiff was in a weak and unsound mental condition, and-as the result of the importunities and influence of the defendant practiced upon him while- the said plaintiff was so mentally unsound and incapable of exercising his own will, judgment and understanding.”

Bearing in mind that the present inquiry is addressed to what took place in July, 1888, and the then mental condition of Mr. Young, and nothing but that, we find almost a complete absence of testimony on the plaintiff’s behalf relating directly and positively to that date, unless we take his own, and he swears he remembers nothing material about it All there is upon which the plaintiff’s case can be founded is the after developments of an admittedly progressive disease, without a single thing to show that by necessary relation his condition in January, 1889, was such that he could not have been compos mentis in July, 1888. The first witness called by the plaintiff was Joseph I. McGrlynn, who acted as notary in taking the acknowledgment of the bill of sale in January, 1889. He took that acknowledgment notwithstanding he swears he did not think Mr. Young was then responsible or rational; but this witness knew nothing of Young or his mental ■state in July, 1888.

The next witness is Hasbrouck, who has filled the triple part of attorney, plaintiff and witness. He swears distinctly he did not see Young in June or July, 1888, and had not seen him from October, 1887, to September, 1888. Then Mr. Birdsall was called, who never saw Young until September or October, 1888, and he candidly says he did not even then make a thorough examination of him, and that it was in the light of subsequent ■events that he made up his judgment as to Young’s condition. Hr. O’Connor, another witness, never saw Mr. Young until January 10, 1889, and this physician very frankly says he could not tell whether the condition in which he then found the patient had ■continued a week or a month. Hr. Phillips never saw Young until the 4th of October, 1888, when the latter went voluntarily to this physician’s sanitarium at Burn Brae, and the witness testifies ■as follows:

“ Q. (By the court) When he was brought there, how far had this disease gone; was he at that time irrational ? A. He never ■was irrational; he was always coherent”

Hr. Jones, the next witness for the plaintiff, did not see Mr. Young until he was at Hr. Kirkbride’s asylum January 26, 1889. This witness and Hr. Morrow alone give any color to the idea that Mr. Young was disturbed mentally in July, and they are both very guarded in what they state. Hr. Jones says “ from the history he (Young) gave me there was reason for his taking sulphonal in July. * * * I would say that his condition had existed six months prior to the time he came there, hut only from the fact of his telling me that he had taken sulphonal for six months, and then I think he narrated other symptoms of the trouble.” Hr. Morrow’s testimony is altogether too vague and uncertain as to "time to be of any service. Taking all the facts and circumstances together it is probable he attended Mr. Young in September (and not in June or July) before he went on his vacation, which he isays began the last week in September. Hr. Helleck did not see Mr. Young until November, 1888, and he made up his judgment from what Hr. Birdsall wrote him,'what that was does not appear, and Hr. Birdsall did not see Mr. Young until September or October, 1888. The other witnesses called by the plaintiff may be dismissed without particular notice. They deposed to nothing which would aid us in the precise inquiry now being made.

The foregoing is a general statement of all there is on the plaintiff’s direct case to impeach the instruments of July, 1888, sought to be set aside. It is meagre, inconclusive, vague and altogether insufficient to reach the standard of judgment which the learned judge below very properly made the test of the rights of the parties ; but when the testimony on behalf of the defendant, some of it coming from disinterested persons (that of the defendant and the children being discarded), and the letters in evidence written by Mr. Young during the period of time in question are considered it seems impossible to resist the conclusion that he was not only sane'on July 23, 1888, but that he was in full possession of his mental faculties and that he himself instigated the making of the instruments of that date. His letters are characterized by a style that evinces he was a man of education, writing deliberately and' calmly and that he was conscious of his surroundings and situation. They are lucid and well written, but, putting them aside and still confining the inquiry to July, 1888, and closely examining the testimony of merely impartial witnesses or those whose interests cannot in any way be affected by the result of this case,, the conclusion we have reached seems to be inevitable.

-The transfer of the house, etc., was made through an intermediary, Miss Helitt. She gives a very clear and inherently probable .account of the transaction. Mrs. Young (the defendant) had written her that Mr. Young desired to put the house in the name-of a third party and aslced her to meet the writer of that letter and her. husband at a lawyer’s office on a day named. She came-to New York and met Mr. and Mrs. Young and Mr. Young took them to the office of Mr. Bright, a lawyer, and the deeds were executed. She was thanked for her kindness and went away. It.is perfectly clear that this young lady had nothing to do with the matter, except to carry out the wishes of her friends. There was neither previous consultation nor pre-arrangement nor anything that could associate her with an attempt on the part of Mrs. Young to get possession of the property.

Her testimony-seems to have -been given in a frank, clear and impartial way, and so far as we can judge from a printed record it is quite evident the part she played in the transaction was that,of an inexperienced and complaisant jmung woman who was glad to oblige her friends. How, then, did she come to render this service and what induced it? The letter from Mrs. Young notified her of the desire to have her act, but Mr. Bright’s testimony illuminates the whole transaction and shows that the scheme and the method of its accomplishment was the work of Mr. Young and no one else. This witness is connected with the Title Guaranty & Trust Company. About the middle of July, 1888, Mr. Young applied-to him for a loan upon the real property in question. He-stated all the particulars, the previous incumbrances and that he thought of putting the house in the name of his wife and asked what would be the best way of doing it. The witness told him the best thing he could do would be to get an unmarried woman to take the title and have her re-convey it to Mrs. Young. This, is clearly the advice after consultation on which Mr. Young acted.. He sought it of his own motion and said he would see Mrs. Young about getting a suitable person and afterwards he told the witness that they had agreed upon Miss Helitt, and that is doubtless the way she came into the business. Mr. Young was unaccompanied when he had these conversations with Bright; his wife-was not present and had nothing to do with them; he acted independently and was informed of the whole relation of the company to a transaction of that kind; he was even told the views the •company’s officers held of the effect,of a gift to a wife as relating to the rights of creditors and the rules of the company.

The testimony as it stands is quite convincing, that the judgment so far as the instruments of July, 1888, are concerned is wrong. The case was determined on the theory that there is no distinction to be made between the transaction of January, 1889, and that of July, 1888. We think there is and that a reading of the record discloses it unmistakably and therefore the judgment must be reversed and a new trial ordered, with costs to abide the -event

Barrett, J.

I concur. I am entirely satisfied, however, that the evidence sustains the findings as to the bill of sale of the business, which was executed on the 10th day of January, 1889. But I think it insufficient with regard to the transactions on the 23d day of July, 1888.

Van Brunt, P. J., concurs.


author: Per Curiam

text:
    Mary C. Cambreling et al., Pl’ffs, v. Euphemia C. Purton, App’lt. M. Lippman, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Reference—Undertaking.
    The special term has no power to order a reference to ascertain damages sustained by reason of an undertaking given to secure a stay pending an appeal, but the remedy is by action on the undertaking.
    Appeal from order denying a reference to ascertain damages on an undertaking.
    The undertaking in question was given to stay proceedings pending an appeal.
    W. P. Quin, for app’lt; T. McAdam, for resp’t.
   Per Curiam

This undertaking was not given upon an injunction and no stipulation was contained in it for a reference to ascertain the extent of the liability of the sureties. The special term was accordingly right in holding that it had no power to order such reference, but' that the remedy was by an action on the undertaking.

The order for that reason should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


author: Van Brunt, P. J.

text:
    The National Broadway Bank, App’lt, v. Stephen T. Barker, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Attachment—Affidavit.
    An allegation in an affidavit for an attachment on the ground of fraud in procuring the discount of notes,made by the cashier of a bank, that said notes were forged and fraudulent, and that plaintiff was thereby defrauded, is no evidence of the existence of these facts, but a simple conclusion, as the affiant could not have had any personal knowledge whether said notes were forged, and, therefore, said affidavit is insufficient to support the attachment.

      Appeal from, order granting motion to vacate attachment upon, the papers upon which the same was granted.

      W. F. MacRae, for app’lt; P. Q. Eckerson, for resp’t.
   Van Brunt, P. J.

action was brought to recover for injury to personal property by reason of the fraud of the defendant in procuring money from the plaintiff between the 15th of June, 1890, and the 5th of August, 1890, upon six promissory notes issued in form to the defendant, and transferred by him for full value to the plaintiff.

It was alleged in the affidavit upon which the attachment was. granted, which was sworn to by the cashier of the plaintiff, that said. notes were forged and fraudulent, and that the plaintiff was thereby defrauded out of the sum for which the attachment was issued. As it-does not appear that the affiant could have had any personal knowledge as to whether the notes in question were forged or not, there is no evidence whatever to support the assertion contained in the affidavit or which tended to establish that fact before the court, The allegation as sworn to was a simple conclusion, and is no evidence of the existence of any fact If it be said that the complaint contained in the motion papers contains allegations in regard to this matter, and establishes a cause of action, it seems, to be sufficient to say that the allegation in regard to the foi'gery of these notes has no greater force because contained in the complaint than it has as stated in the affidavit. The object of requiring the facts upon which an attachment is issued to be stated in the affidavit is that the evidence tending to establish a cause pf action and the other facts necessary to be presented to the court, in order to entitle the plaintiff to an attachment shall be before it The office of a complaint is not to set out the evidence, while that of an affidavit is to present evidence to the court from which conclusions are to be drawn.

Our attention is called to the case of Haebler v. Bernharth, 115 N. Y., 459; 26 N. Y. State Rep., 230, in which it is claimed, that the essential facts necessary to be stated to secure an attachment are laid down by the court of appeals. The court say: “We think the papers presented to the judge, upon which the-attachment was granted, contained some evidence to establish the necessary jurisdictional facts and justified the granting of the writ.” In other words, there was some evidence to establish the facts necessary to confer jurisdiction and therefore the tcourt of appeals would not interfere. The only question was who.her there was any evidence tending to establish the facts conferring jurisdiction. The question before the general term upon an appeal from an order vacating or denying a motion to vacate an attachment is, whether there was not only some evidence tending to. establish the facts, but sufficient evidence to justify the granting of the writ; the jurisdiction of the two courts upon appeal being essentially different, one weighing the evidence and the other only seeing whether there is any evidence to support the necessary allegations. The case cited, therefore, has no effect upon the question now before the court.

We are of opinion that there were nothing but conclusions, and no evidence, set forth in the affidavit upon which the attachment was granted.

The order should be affirmed, with costs.

Daniels and Ingraham, JJ., concur.


text:
    George F. Hodgman, Resp’t, v. Stephen T. Barker, Def’t.

      (Supreme Court, General Term, First Deparment,

      Filed October 16, 1891.)

    Attachment—Vacation—Subsequent attaching creditor.
    An appeal from an order denying motion by a subsequent attaching creditor to set aside the prior attachment will not be entertained where the attachment of the moving creditor has been set aside for insufficiency of the papers on which it was granted; a fact of which the appellate court may take judicial notice.
    Appeal by the national Broadway Bank, claiming to be a subsequent attaching creditor, from an order denying its motion to vacate an attachment previously granted to the plaintiff against the property of the defendant

      W. F. MacRac, for app’lt; E. K. Sackett, for resp’t.
   Van Brunt, P. J.

The disposition of the case of the national Broadway Bank v. The same defendant, seems to dispose of this appeal, notwithstanding the weakness of the papers upon which the plaintiff’s attachment was granted, the appellant cannot succeed upon this appeal, because of the fact, of which this court must take judicial notice, that .its attachment has been set aside upon motion of the defendant because of the insufficiency of the papers upon which it was granted, and is therefore no longer in a position to assert any claim to the property upon which the attachment in this action had been levied.

We think, therefore, that the appeal must be dismissed, but without costs.

Daniels and Ingraham, JJ., concur.


author: Daniels, J.

text:
    Merritt E. Haviland, Ex’r, Resp’t, v. The Manhattan Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Negligence—Evidence—Hypothetical questions.
    In an action for injuries caused by negligence, a question put to a physician who had attended the person injured, assuming that she was in good5 health and uninjured, and in that condition met with the accident in question three days before he attended her, and from her condition when he examined her, what he would say was the cause of the injuries observed by him, is not objectionable as calling for a conclusion of the witness, or as indefinite and uncertain. The object of a hypothetical question in these cases is to obtain the opinion of the witness, and that is no more nor less than his conclusion.
    Appeal from a judgment recovered on a verdict, and from an order denying a motion for a new trial.

      Edward B. Thomas, for app’lt; W. J. Curtis, for resp’t.
   Daniels, J.

The testatrix was a passenger on an elevated railway train proceeding up Third avenue, on the 31st day of December, 1887. When it reached Thirty-fourth street, a shuttle train from tbe ferry reached the main track, and its engine struck the car in which she was seated, and raised it about fifteen inches on the side occupied by her, and threw her from her seat on the floor of the car. By her fall it was claimed she was severely injured, and this action was brought to recover compensation for her injuries. Her own evidence as a witness upon the trial tended to prove that she had previously been in reasonably good health; that she was bruised by her fall in different parts of her body. She testified further that she suffered pain in her hand, arms, legs and back, and continued to do so to the day of the trial, and was unable to do anything or follow her occupation, which was that of a nurse.

A physician visited her about the 3d- of January, 1888, and this is his description of her condition:

“ I found Mrs. Atkins suffering from a rapid pulse and heart action, from bruises on her head and on the side, principally her left side, and she had some black and blue spots on the left side, extending down to the groin, and some injured or ruptured veins in the back of her leg, pain and tenderness on the left side and along her spine from her neck down pretty near to the lower part; that is what I saw. I treated her for what I observed at the time. She was in bed, I think, about four months; three and a-lialf or four months. I treated her again after that for those injuries, the direct result of the injuries, for perhaps a year afterwards. I must have visited her altogether, I should think, up to this time, about sixty or sixty-five times; sixty at any rate. I last saw her about eight or ten days ago. She had not entirely recovered from the symptoms I observed at my first call.”

He was then asked to assume that the plaintiff in this case, Mrs. Atkins, was in good health on the 31st day of December, 1887, and uninjured; that on that day she was riding in a car of the elevated road; that a collision occurred between two trains, of which the car in which the plaintiff was riding was one, and the plaintiff was thrown from her seat and remembered nothing further until she was picked up in the middle track and carried by two policemen to the station house and then carried by ambulance to a place in Harlem where she remained in bed until Monday, and was then removed to Brooklyn; that then you examined her and found that she was suffering from rapid pulse, bruises on her head and left side, black and blue spots on her left side, with large ruptured veins on the back of her left leg, and pain and tenderness of her spine, what would you say was the cause of these injuries?

The counsel for the defendant objected to the question as calling for a conclusion -of the witness, a matter on which expert testimony was not admissible.

The court overruled the objection, and counsel for the defend-, ant duly excepted.

And the witness answered': “I should say it was the result of that accident.” The question was not well framed, and it involved much more than was requisite to obtain an intelligent expression of opinion from the witness. But it was not objected to for either of these reasons. If it had been, the court would probably have directed it to be both simplified and abridged. But the objection was explicit, that it called for a conclusion of the witness, a matter on which expert testimony was not admissible. This objection was without foundation, for it is the object of a hypothetical question in these cases to obtain the opinion of the witness who is expected to answer it, and that opinion in all cases is no more nor less than his conclusion. And that is a matter on which expert testimony may be given, when the facts are of a nature to justify an opinion upon them. The facts grouped together in the question were within the range of the evidence, and largely had been under the observation and treatment of the witness ; what he had no knowledge of was the accident itself and the previous health of the plaintiff, who died since the trial. And he could be very well allowed to answer what in his opinion was the cause of her condition as he observed it, if she had been in good health, and in that condition had encountered this accident three days before he professionally visited her. And that, bereaved of its unnecessary verbiage, was what he from his answer understood to be asked him. The answer was appropriate and within the rule regulating this practice, and the defendant was in no way injured by the improper conclusion of the question in asking for the cause of the injuries, instead of the probable cause of the plaintiff’s condition. And for this reason, as well as the restricted nature of the objections, the court did not improperly allow the answer to be taken. Turner v. City of Newburgh, 109 N. Y., 301; 15 N. Y. State Rep., 93; McClain v. Brooklyn City R. R. Co., 116 N. Y., 460; 27 M. Y. State Rep., 549.

A similar question was asked of another medical witness who had also made an examination of the plaintiff about the 10th of January, 1888. The same objections were repeated to this question, and it was also added that it was indefinite and uncertain, and the witness had no personal knowledge to enable him to answer. But there was nothing either indefinite or uncertain in the question, and the witness did have personal knowledge qualifying him to answer so far as that knowledge extended. The objection, like the other, did not reach any defect of the question, and the court was not in error in taking the answer, which was that the injuries mentioned would naturally be the result of the accident that had been described. The inquiries were for the medical opinions of the witnesses upon matters not within the knowledge or experience of jurors, and they were allowed to be answered as affording some assistance to a just understanding and decision of the cáse.

Other hypothetical questions were propounded to the medical witnesses which were not objected to, and demand no attention in the decision of the case. Other questions were also allowed to be answered over the objections and exceptions of the defendant. But neither of them has been relied upon as affording any support to the appeal, and for that reason no attention will be given to them further than to add that they seem to be without merit.

The verdict was for the sum of $4,750, and that amount has been objected to as excessive. And to sustain this objection reference has been made to the evidence of the plaintiff’s reported statements that in her young days she fell from an apple tree and received an injury resulting in a running wound, and that she had been addicted to the daily use of quinine and morphine pills. But that she had this wound upon her person was denied by herself and the medical witness who first examined her. And she denied that she had used morphine, and added that the pills obtained were for her husband, who had died before this accident to herself on the railway. It was for the jury, in this state of the proof, to decide whether the condition of the plaintiff resulted from the accident. And it is probable that they adopted that view of the evidence. And in that view it cannot be said consistently with the case that the verdict was excessive. The judgment and order should therefore be affirmed, with costs.

Yan Brunt, P. J., concurs.


text:
    James Porter, Resp’t, v. Thomas J. Dunn, Ex’r, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Decedent’s estates—Evidence.
    Plaintiff presented a claim against the estate of defendant’s testator for services performed by Ms wife for the testator, which was disputed and referred. Held, that as it appeared that the wife performed the services mentioned on behalf of her husband, and not on her own account, and made no claim for them herself, she was not incompetent under § 829 of the Code to testify to the contract or arrangement made for their performance.
    2. Same—Agreement to pat by legacy—Recovery.
    Testator agreed, in payment for such services, to provide plaintiff’s wife a legacy of $5,000, but by his will gave her only a legacy of $500. Held, that this did not increase his liability or that of his estate, and that plaintiff was not at liberty to recover for the value of the services, hut must be restricted to the said amount which testator agreed to provide by his will.
    Appeal from a judgment recovered on the report of a referee.

      W. W. Westervelt, for app’lt; Eugene S. Ives, for resp’t.
   Daniels, J.

The plaintiff made a claim against the estate of the testator for services performed by his wife between the 20th of December, 1877, and the 5th of November, 1888, in caring for and attending to him as a consumptive invalid, and for expenses paid on his account, and also for cream furnished to him between the 4th of July, 1886, to the same time in 1888. By the consent of the parties and the approval of the surrogate, the case was referred to a referee for trial and determination, and he reported in favor of the claimant for the sum of $7,599.52, with interest. By his report he allowed for the services rendered to the testator in this manner the sum of $8,404.28, which was reduced by $500 paid by the executor and a legacy of five hundred more given by the will of the testator. The wife of the claimant was the principal witness upon the trial, and she testified that her husband was the lessee of the premises known as 959 Third avenue, and that the testator lived at that house. Her testimony was that in 1877 he rented a room of them, and that he continued to occupy this room until his decease in 1888, taking his meals at, or provided from, the restaurant kept in the same building by her husband.

When it was proposed to prove the contract or arrangement made for the performance of these services by the wife of the claimant, it was objected that she was incompetent under § 829 of the Code of Civil Procedure. But it appeared from her testimony that in what she did for him she was acting in subordination to and with the authority and approval of her husband. The testator was living in the building, and from his bodily illness required the service and attentions of a nurse. And at his request they were given to him by the wife of the claimant, and with his assent. And the testator continued to live in the building in this manner during the entire interval through which the services were rendered, and these attentions were given to him. It was not the understanding of the wife that she was acting for herself in any respect, but that she was aiding and assisting her husband in his business. And when expenditures were required to be made for the testator she obtained the money expended from her husband. And she made no personal claim against the testator, or against the estate, on her own account, but that was made by her husband, the claimant.

From this evidence it is quite clear that she was acting not for herself but in the service of and subordinate to her husband. And within what was held in Reynolds v. Robinson, 64 N. Y., 589, the claim for compensation accrued to him and not to her. That case was very much in its leading circumstances similar to the present controversy. And the court held that the husband and not the wife was the person entitled to recover for the services rendered. And in substance the same thing was also held in Birkbeck v. Ackroyd, 74 N. Y., 356. The case in its leading features was quite different from that of Brooks v. Schwerin, 54 N. Y., 343, as was also the first case which has been here referred to, in which the judge writing the opinion clearly distinguished the one from the other, and maintained the legal principle sanctioning the right of the claimant in this case to recover for these services.

In the disposition of the case by the referee and the confirmation of his report by the court at the special term, the claimant was allowed to recover for what the services were stated to be reasonably worth. But from the evidence of his wife it appears that these services were rendered under an agreement on the part of the testator that for them he would provide the wife a legacy of $5,000 in his will. This he failed to do, giving her a legacy only of $500, which, when it was received, was paid over with the other $500 to the husband as the person entitled to the money. There was no dissent from the proposal of the testator that he would compensate the rendition of the services by this sum of $5,000 to be bequeathed by his will. The services were rendered, and the attentions were bestowed upon him by the claimant’s wife with the understanding that they should be compensated in this manner. And the omission of the testator to make that provision in the will, and thereby perform the obligation of his contract, was not attended with any increase of liability on his part, or on the part of his estate. For the sum of $5,000 was all that was to be paid for the services and attention which it was understood would be required by him; and they were rendered upon the understanding that this sum should form a complete remuneration on the part of the testator. And under this state of the facts the claimant was not at liberty to recover for the value of the. services themselves, but should have been restricted to this sum of $5,000, which the testator agreed to provide by his will, but in the end failed to do so.

It has been objected that the allowance of $146 for cream furnished to the testator should not have been allowed by the referee, or by the court at the hearing when the exceptions to the report were overruled. But it appears from the testimony of the wife that cream was required by the testator, and was furnished to him for such a period of time as in all probability would amount to this ,sum of $146. The other items allowed by the referee were for moneys necessarily expended on account of the testator. And the report and judgment accordingly appear to be correct except in the amount allowed for the services and attention performed and bestowed for him during this period of his illness. For those services the amount exceeded that which should have been allowed by the sum of $3,404.28.

And the judgment should be reversed, and a new trial ordered before another referee, with costs to the appellant to abide the result, unless the claimant within twenty days after notice of this decision shall deduct this amount, with the interest upon it, from the judgment, from the 5th of November, 1888. If that stipulation shall be given, then the judgment will be-modified by making that deduction, and, as modified, affirmed, without costs of the appeal to either party.

Vah Brunt, P. J., concurs.


author: Bartlett, J.

text:
    In the Matter of the Application of the Board of Street Opening and Improvement, Relative to the Opening of Lexington Ave. from Ninety-Seventh to One Hundred and Second Street.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Municipal cobpobations—Discontinuance op stbeet opening pboceedings—Interest op objeotobs.
    Where there are mortgages upon, property, for which an award is made in street opening proceedings, the award belongs not to the owner of the property, but to the mortgagees, and the owner cannot be counted to that ex'ent in estimating whether a majority in amount of assessments and awards object to the proceedings.
    2. Same—Ownebship.
    A deed made by a person is not the proper proof of ownership in him, which should be exacted from claimants not named in the commissioners’ report.
    3. Same.
    The sale of a portion of his property before the report of the referee is made deprives a party of his right to object to the continuance of the proceeding. so far as he bases his objection upon any alleged interest in the portion thus sold.

      Appeal from a special term order denying an application to discontinue the proceeding under § 990 of the Mew York City Consolidation Act.

      James A. Deering, for app’lt; Carroll Berry, for resp’ts.
   Bartlett, J.

Section 990 of the Mew York City Consolidation Act, which is taken in part from chap. 209 of the Laws of 1839, provides that upon the coming in of the report of commissioners of estimate and assessment in street opening proceedings, and upon the hearing of the application for the confirmation thereof, “ if persons who appear by the said report to be interested, either by assessment for benefit or award for damages, to the amount of a majority in amount of the whole assessments and awards, shall appear and object to further proceedings upon the said report, the court shall order the same to be discontinued, and the same shall thenceforth be discontinued.”

The court below held that no persons were entitled to object under this provision except such as were named as persons assessed or benefited in the report of the commissioners; and that where awards had been made to unknown owners, no objection was available on behalf of persons who might come before the special term and establish their ownership when the report came up for confirmation.

We are referred to an opinion of Mr. Justice Roosevelt, delivered at special term, in this city, in 1853, in the Matter of Widening and Extending Canal and Walker Streets, which indicates that a different view of the act of 1839 was entertained by that learned judge; for he speaks of having already decided “that owners whose names do not appear on the report, but the amount of whose awards or assessments, as unknown awards,’ do appear, are entitled, upon proper proof of ownership, to object to the continuance of the proceeding.”

But it will not be necessary to determine which of these conflicting interpretations of the statute is correct; for even if the construction be adopted which is most favorable to the objectors, they failed to make out a case which entitled them to have the proceeding discontinued. A majority in amount of the awards and assessments would be represented by persons interested in the proceeding to the extent of $133,922.93.

The learned counsel for the appellants asserts that the objectors were shown to represent $166,395.61 in the aggregate. In this view I think he is mistaken. Three deductions, at least, must be made from his total, and these reduce it to less than the statutory majority.

One of the objectors is Mary A. Coleman, who claims to own property upon which the assessments are $4,753.26 and the awards are $18,892.23. This property is mortgaged for $24,000. The interest in the awards, therefore, belongs not to her but to the mortgagee, who in this class of cases is presumptively entitled to so much of the award as legally represents the amount of his mortgage. Astor v. Hoyt, 5 Wend., 603; Matter of John and Cherry Streets, 19 id., 659; Barnes v. Mayor, 27 Hun, 238.

It follows that the appellants have over-estimated Mrs. Coleman’s interest in this proceeding to the extent of $18,892.23.

They have also claimed for Stephen H. Thayer, another objector, an interest which is stated in the referee’s report at $13,018.68 and in Mr. Deering’s brief at $10,293.84. There is no competent evidence suffcient to establish the fact that he is interested to the extent of either amount. The claim rests simply on Mr. Thayer’s oral statement that he owns certain property between Ninety-ninth and One Hundredth streets and Third and Fourth avenues. No deed to him is produced, the deed to which reference is made by the counsel for the appellants on the ninth page of his brief being, a conveyance not to Mr. Thayer but from him. This is very far from being the “proper proof of ownership” which Judge Roosevelt must have had in mind in the case already cited and which should certainly be exacted from claimants not named in the report of the commissioners.

A third objector whose interest is over-stated is Eugene T. Lynch. The referee finds him to be the owner of property upon which the assessments amount to $13,512.56. But he had sold a part of his property before the referee took his testimony and before the final hearing of the motion to confirm the commissioners’ report. This, I think, deprived him of any right to object to the continuance of the proceeding, so far as he based his objection upon any alleged interest in the portion thus sold. The statutory majority contemplated by § 990 of the consolidation act must be made up of persons in interest at the time of the coming in of the report of the commissioners and at the time of the hearing of the application for the confirmation thereof. Mr. Lynch does not come within the latter category so far as a portion of his property is concerned represented by $6,794.90 of assessments; for as has already been stated, his interest therein had ceased by reason of the sale thereof before the application to confirm the report came on for a final hearing.

If I am correct in the foregoing views, and the appellants have exaggerated the interest of Mrs. Coleman by $18,892.23, the interest of Mr. Taylor by $10,293.84 (talcing the lower estimate and the interest of Mr. Lynch by $6,794.90, we have an aggregate of $35,980.97, which, when deducted from $166,395.61, the amount which the objectors claim to represent, leaves only $130,414.60, which is less than the prescribed “majority in amount of the whole assessments and awards.”

I think there are other objectors who are not proved to be persons interested, within the meaning of the law, to the extent of their claims, but there seems to he no occasion to go further to show that the application to discontinue the proceeding was properly denied on the facts.

There is nothing in the point that because no exceptions were filed to the referee’s report it stands confirmed as a matter of course, and the facts found by him are, therefore, not open to question. The referee was ordered simply to take proof of the title of the objectors and report his opinion thereon. He was not authorized or 'directed to decide anything, and there is nothing in the order of reference which indicates that the court intended to delegate to him. any of the functions devolved upon it by § 990 of the consolidation act The court simply sought the aid of the referee in taking the necessary testimony, and the benefit of his opinion as to the conclusions of fact to be based upon the proof thus taken; but in so doing it could not deprive itself of its own power to decide the application according to its own view of the facts.

The order appealed from should be affirmed, with costs.

Tan Brunt, P. J., and Barrett, J., concur.


text:
    The Mayor, etc., of New York, Resp’t, v. The Cunard Steamship Co., Limited, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Municipal corporations—Obstructions to piers and slips—Laws 1871, chap. 574.
    On Ajjril 26, 1876, the dock department of the city passed a resolution authorizing the granting of a lease to the Central Railroad of New Jersey of the northerly side of a pier for the purpose of erecting a ferry rack, but without authority to use any portion of the surface of the pier, and a lease was accordingly executed. Subsequently another resolution was passed authorizing it to drive piles in the slip and erect a ferry house. The railroad company thereafter assigned to defendant all its rights and privileges under the resolution of April 26, 1876. Held, that this did not convey to defendant the rights and privileges proposed to be secured to the railroad under the subsequent resolution, and that if it had been intended by the resolution to permit the erection and maintenance of a shed or structure in the slip it was in conflict with § 6 of chap. -574, Laws 1871, prohibiting such obstructions.
    Appeal from a judgment recovered on trial at the special term.

      George De Forest Lord, for app’lt; D. J. Dean, for resp’t.
   Daniels, J.

The action was brought to secure the removal of :a shed erected upon the northerly side of new pier No. 40, extending from the westerly side of West street a distance of about 570 feet into the Hudson river. The easterly end of the shed was upon the new bulkhead line, forming the westerly line of West street, and being 250 feet west of the easterly line of that street The shed extended about fifty feet westerly along the pier line from the bulkhead, and in a northerly direction, for a distance of about ninety feet, occupying in that manner one-half the space between piers 40 and 41. It was erected upon piles driven into the slip west of the bulkhead, and was used by the defendant as a depository or warehouse for goods received to load upon its steamers, and also for goods tinladen from those steamers. Its right to maintain the shed in this manner was derived under a resolution of the dock department of the city of New York, passed on the 26th of April, 1876. This resolution provided:

That the Central Railroad of New Jersey be, and they are hereby informed that this department will grant a lease to the said corporation, for a term of ten years, of the northerly side of .a pier to be built, wholly or in part, upon the premises now occupied by pier 48, ¡¡Sí. R., for the purpose of erecting thereat a'ferry rack, as soon as the pier shall be constructed or completed by this department in conformity with the new plans adopted, or to be adopted, for the improvement of the water front, at a yearly rent of $7,500, but it is understood that the said corporation shall have no right to the use of any portion of the surface of said pier; the department reserves the right to rebuild the said pier, and the-bulkhead wall contiguous thereto, at such time as it may by said department be deemed expedient; and further, that until the department shall take possession of the said pier 48, for the purpose of rebuilding, the said Central Railroad of ¡New Jersey shall pay to this department for the use of the whole of the L., on the north, side of said pier, and for the use of the water adjacent to said north side, for ferry purposes, rent at the rate of $5,000 per annum ; but it is understood that the said corporation shall have no right during such period to the use of any portion of the surface-of the said pier, excepting that of the said L., provided that the said Central Railroad of blew Jersey shall, within five days after the receipt of this notice, file in this office its acceptance in writing of the terms hereof, and agree to execute a lease containing the usual covenants and conditions, and in conformity with the terms herein set forth, for the northerly side of the pier when so rebuilt and ready for occupancy.”

An additional resolution was adopted on the 21st of June, 1876, by the same board, giving permission to the Central Railroad Company of ¡New Jersey to drive piles in this slip adjacent to the north side of the old. pier, then known as pier 48, and to erect thereon a platform and ferry houses, together with such other structures, racks, bridges, etc., as might be necessary for use of a first class ferry, and then in the course of erection. The company-continued to use the slip for the purposes of its ferry until sometime in the year 1878. And on the 1st of ¡November, 1880, the railroad company and its receiver executed an assignment to the defendant, by which “ The parties of the first part, in consideration of the sum of one dollar to them in hand paid, and other-good and valuable considerations, have granted, bargained, sold, assigned, transferred and set over, and by these presents do grant,bargain, sell, assign,transfer, and set over to the said party of the second part, all rights and privileges to which they, the said parties of the first part, or either of them are in any way entitled under or by virtue of a certain resolution of the board of commissioners governing the department of docks, passed at a meeting of said board held on the twenty-sixth day of April, one thousand eight hundred and seventy-six, a copy of which is hereto annexed; and also any lease made by the said department of docks to the said parties of the first part or either of them, 'pursuant to said resolution, and the said parties of the first part hereby request the said the department of docks to substitute the said the Cunard Steamship Company, Limited, as lessees in any lease to be made under or pursuant to said resolution.”

And on the 10th of the same month the dock department, by a resolution, assented “ to such substitution, and hereby agrees to-grant a lease of the premises referred to above, and now known as the northerly side of pier New, 40, North river, but no right to the use of any portion of the surface o'f said pier for a term of eight years and six months from November 1,1880, to the Cunard Steamship Company, Limited, at an annual rent of $7,500, payable quarterly in advance, and to contain a covenant for a renewal term of ten years, at an annual rent of $7,625, provided that the said steamship company shall, within ten days from the receipt hereof, file in this office its acceptance in writing of the terms hereof, and agree to execute a lease containing the usual covenants and conditions, and in conformity with the terms herein set forth, when notified so to do by this board,” the terms of which were accepted by the defendant on the 15th of the same month. After the resolution of the 26th of April, 1876, the department removed the shed which had been erected by the railroad company and rebuilt the pier, as well as the bulkhead, locating the bulkhead about 180 feét westerly of the preceding bulkhead, which was seventy feet westerly of the easterly side of West street. And after the removal of the shed and the completion of the new pier, it restored so much of the shed as still stands upon the piling and is occupied and used-by the defendant

In support of the action it was alleged that this shed was an illegal structure, and that the plaintiff, underits title and authority, was entitled to a judgment securing its removal for the purpose of enabling shipping to reach and use the bulkhead itself without obstruction. And the court adopted that view at the trial, and enjoined the defendant against maintaining the shed, and directing its removal. And People v. Vanderbilt, 26 N. Y., 287, is a precedent, approved by the court of appeals, for this judgment, in case "the plaintiff is entitled to maintain the action.

By the resolution of the 26th of April, 1876, the northerly side -of the pier to be built was leased for the purpose of erecting thereat a ferry rack, and for the use of the water adjacent to the pier for ferry purposes. But the resolution contained no express authority permitting the railroad company to erect the structure now in controversy. That authority was in terms given to it for the first time by the resolution adopted on the 21st of June of the same year. But there was no assignment by the railroad company to the defendant of the rights or privileges which it was proposed by that resolution to secure to the railroad company. The assignment, on the contrary, was exclusively restricted to the interest intended to be created by the resolution of the 26th of April, 1876, which contained no provision for putting up, or maintaining, this structure. And the fact that this liberty or right was not secured by the first resolution, but was in terms intended to be delegated by the second"resolution, is quite a decisive indication that it was understood by the dock commissioners and the Central .Railroad Company that the latter possessed no authority to erect or maintain the structure under the first resolution. íf that had not been the fact, then there certainly was no room whatever for passing the additional resolution of the 21st of June.- And by the assignment, which was limited to the first resolution and the lease therein mentioned, the same intention appears.to have pervaded the acts of the parties. And that was to give to the defendant, the rights and privileges of maintaining the ferry rack, and operating the ferry, but nothing substantial beyond that

But if it had been intended by the resolution of the 26th of' April to permit the erection and maintenance of this structure in the slip, then it was so far unauthorized, for the reason that it. then came in conflict with § 6 of chap. 574 of the Laws of 1871. This act has since undergone changes by which portions of it. have been repealed, but this section was in force at the time when this resolution was adopted, and appeal’s to have so remained to-this time. And it provided for and empowered the department to adopt plans, subject to the approval of the commissioners of." the sinking fund, for this exterior or westerly line of the city, and the extension of this and other piers into the river. And soon after the passage of this act such plans were adopted- and. approved by the commissioners of the sinking fund. And subd.. 3 of this section in that event declared, that the plan so adopted, should “ be the sole plan according to which any wharf, pier, bulkhead, basin, dock, or slip, or any wharf structure, or superstructure, shall thereafter be laid out, or constructed, within the-territory or district embraced in and specified upon such plan, and. be the sole plan and authority for solid filling into waters surrounding said city, and for extending piers into said waters and erecting bulkheads ground said city.”

And it was further directed in the same subdivision that: “From, the time of the adoption of said plan, no wharf, pier, bulkhead, basin, dock, slip, or any wharf structure, or superstructure, shall be laid out, built, or rebuilt, within such territory or district except in accordance with such plans.” And by subd. 5 of the-same section: “ The said Board of the Department of Docks shall proceed according to said plan, or plans, to lay out, establish and construct wharfs, piers, bulkheads, basins, docks, or slips, in the-territory or district embraced in such plan or plans.” And by subd. 6 of the section it was in substance provided that the bulkheads and slips erected according to the plan should be used only for the purposes of commercial business by vessels approaching and secured to them in the course of the transaction of that business.

In the plans which were adopted and followed in constructing-the bulkhead and the pier, there was no appropriation of any part of the slip between the piers for driving piles into the earth, and erecting and maintaining a shed or structure of this description upon those piles. But the spaces between this and other piers included in the plan were left open, unobstructed and free-to be used by water craft in the course óf the transaction of their business. And the erection of this shed over the water of a slip-standing upon these piles was not only in violation of the plan itself, but in contravention of the provisions of the statute already mentioned forbidding any other use of the water front than ' that mentioned in the statute. The theory of the act in this respect characterized the preceding legislation adopted for the locatian and regulation of the water front of the city of New York. An act upon this subject was passed on the 3d of April, 1798, which is known as chapter 80 of the laws of that year. And by that act a similar declaration was made, “ That no building of any kind or description, whatsoever, other than the said piers and bridges, shall, at any time hereafter, be erected upon said streets or wharfs, or between them respectively and the rivers to which they respectively shall front and adjoin.” Another act upon the same subject was enacted in April, 1857, and is known as chapter 763 of the laws of that year. And by § 2 of that act it was declared that it should “not be lawful to fill in with earth, stone, or other solid material, in the waters of said port, beyond the bulkhead line, or line of solid filling hereby established. Nor shall it be lawful to erect any structure exterior to the said bulkhead line, except the sea wall mentioned in the first section of this act.” And these acts exhibit the policy of the legislature to have been, prior to the enactment of the law of 1870 and 1871, to exclude the permanent, or even transient, occupation of the waters of the slips, or beyond the bulkheads, by structures of this description. And that policy has been maintained and followed with uniformity in the enforcement of the legislation of the state. People v. Vanderbilt, 26 N.Y., 287; Commissioners, etc., v. Clark, 33 id., 251, where it was said by Denio, Ch. J., that “ The language and the obvious policy of the statute is that these piers and bulkheads should be kept wholly clear of incumbrances, and it will not answer for parties permanently to engross portions of their area, and then ask a jury to speculate upon the degree of inconvenience which the public would suffer, and whether it was not fairly balanced by the advantage of the structure which constituted the incumbrance.” Id., 265. And this rule of construction was also applied in People v. Mallory, 46 How., 281. And so it was under this statute of 1871 in Kingsland v. Mayor, etc., 45 Hun, 198; 9 N. Y. State Rep., 768; affirmed, 110 N. Y, 569 ; 18 N. Y. State Rep., 701. And this restrictive policy of the statute has been no farther departed from than by chapter 249 of the Laws of 1875, allowing sheds under specified circumstances to be erected on leased piers.

The fact that both the dock department and the city itself has permitted ferry companies using other slips to be incumbered by structures of a similar description, both before and after the passage of this act of 1871, will not legalize this structure. For the authority conferred upon the board was in no respect discretionary. It was absolute and positive, forbidding the waters of the slips to be obstructed or incumbered by such a structure beyond the bulkhead line. If they could be obstructed to the extent to which this structure has reached, the same authority would permit the waters of the slip to be wholly occupied, and the slip in that manner for all practical purposes destroyed. And that certainly could not have been intended to be authorized by the legislature. And, therefore, the action of the department of docks in permitting, or even sanctioning such erections, affords no legal foundation for permitting their maintenance when, as in this case, an action has been brought to secure the removal of the offensive structure. • .

The provisions of the statute are imperative, rendering this an illegal obstruction of the waters of the slip. Whether a ferry can be maintained under the application of this rule it is not necessary to inquire. For if it cannot be, then further legislation for the relief of those enterprises may be required from the legislature. Or, as was considered in Jordan v. Metropolitan, etc., Co., 65 How., 255, the necessary buildings required for the convenient prosecution of the ferrying business may require to be 'extended into the street itself. It is not, however, necessary now tó express any opinion upon that subject. For the disposition of this case, it is only necessary to observe and carry into effect these provisions-of the law of 1871. And under that act, as it has already been construed and enforced, the judgment recovered by the plaintiff is correct, and should be affirmed, with costs.

Van Brunt, P. J., concurs.


text:
    William G. Shailer, Rec’r, App’lt, v. Eugene Corbett et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Bailment—Lien.
    The corporation of which plaintiff is now receiver delivered certain carriages to defendants to be repaired. When the repairs were partly done plaintiff demanded their return in the condition they then were, but made no tender of the amount due for the repairs already made. This demand was refused, as plaintiff and his witness testify, unless a previous bill was paid, which was denied by one of the defendants and the testimony of defendant’s attorney who offered to deliver the carriages on payment of the bill for services and material bestowed on them. Held, that a decision in favor of defendants would not be disturbed.
    2. Same.
    After the demand defendants completed the repairs. Held, that this work was authorized by the contract entered into on the delivery of the carriages to them, and that defendants had a lien on the carriages for such repairs.
    Appeal from a judgment recovered on the report of a referee.

      Hatch & Warren, for app’lt; Charles I. McBurney, for resp’ts.
   Daniels, J.

The action was brought by the plaintiff, as receiver of a corporation known as the N. H. Leadbetter Company, Limited, to recover the value of four carriages which the company, in June, 1889, had delivered to the defendants to be by them repaired. They had performed work and labor and supplied material in the repair of the carriages, and their bill amounted to the sum of $630.85. The repairs upon the carriages were not then completed. But the plaintiff, as the receiver of the company, in November and December, is stated to have demanded these carriages from the defendants in the condition in which they then were, and that the defendants refused to deliver them unless another bill owing by the company to them was paid, amounting to the sum ■of over one thousand dollars. And that they exacted the pay-meat or security for this preceding bill before they would consent to the delivery of the carriages to the plaintiff was maintained as a fact by himself in the course of his evidence, and also by the testimony of Mr. Carr, who was a witness in his behalf. But the defendant who is stated to have made this refusal and exacted this security or payment has positively denied having placed himself, or the defendants, in that position. He testified that he did not claim payment of the old bill, or anything of that kind, and did not refuse to deliver up the carriages until that bill should be paid or guaranteed. And in his denial he is sustained by the correspondence which is shown to have taken place, and the testimony of Mr. Bosworth, the defendants’ attorney, who stated that the carriages would be surrendered to the plaintiff for the amount of the defendants’ bill for services and material bestowed upon them in the making of these repairs; and that this was all that was required to be paid to entitle the plaintiff to receive the carriages. Upon this evidence it, therefore, became a question of fact as to who was to be believed, whether the testimony of the plaintiff and Mr. Carr was the most reliable, or that given by this defendant, sustained, as he was, by the correspondence and the offer which Mr. Bosworth testified had been made. And that, according to the rule which was followed in the case of Baird v. Mayor, 96 N. Y., 567, renders the objection of the plaintiff to the conclusions of the referee as to the weight and effect of the evidence untenable.

In this case the evidence had been very thoroughly examined by the general term. And the conclusion was reached that by its clear preponderance the contract upon which the action depended had been illegally and corruptly entered into by William M. Tweed, at that time the commissioner of public works of the city of New York. But in the court of appeals a different view was taken of the effect of the evidence and this decision was reversed and the judgment on the report of the referee affirmed. And under the principle which was announced and there followed, even though the conclusion upon reading the testimony might be very favorable to the plaintiff, the court upon an appeal is not authorized to interfere with the judgment.

Evidence was received by the referee, over the exceptions of the plaintiff’s counsel, concerning the value of the carriages at the time when they were delivered to the defendants to be repaired. And this evidence, as it was not pertinent to any issue in the case, should strictly have been excluded upon the trial. But it had no bearing whatever upon either of the controverted facts on which the disposition of the case depended. They were, in the first place, the extent of the repairs which had been made upon the carriages-at the time when their possession was demanded by the plaintiff, and the bill which had accrued therefor in favor of the defendants, and the further fact, whether the latter had insisted upon the payment of the old bill as a condition to the surrender of the property to the plaintiff. They were substantially the issuable facts upon which' the decision of the case depended. And receiving this evidence concerning the value of the carriages at the time when they were delivered to the defendants to be repaired was without any effect whatever upon the testimony relating to either of these two facts. While the evidence should not have been received, it produced no possible injury to the plaintiff, and for that reason cannot be made a ground for the reversal of the judgment. Other evidence was excluded by the referee concerning which the same remark is equally as applicable, that it could have no bearing upon either of these facts. But all the testimony which either party offered relating to them was received by the referee, and it was upon that evidence that he acted in making a disposition of the case.

After the demand which was made of the carriages and the refusal to deliver them, and which certainly was justified by the emission of the plaintiff to tender the amount of the bill which at that time had accrued in favor of the defendants, they proceeded to complete the repairs required to be made upon the carriages, .and in that way increased their bill by the sum of $198.20. And the judgment which has been recovered directs a sale of these carriages, not only for the payment of the bill which had accrued at the time when the demand was made, but also for this additional sum of money. And in form that judgment has the sanction of §§ 1787 and 1739 of the Code of Civil Procedure. But whether this additional bill was authorized under the circumstances is a point which has been made by the plaintiff in support of the appeal. The work which was performed and the material supplied in completing the repairs of the carriages were authorized by the contract entered into upon the delivery of the carriages to the defendants to be repaired. And there was at no time any refusal on the part of the plaintiff, or of the company itself, forbidding the defendants to go on and complete the repairs of the carriages. If there had been, then within the authorities the residue of this bill would constitute no lien upon the property itself. Clark v. Marsiglia, 1 Denio, 317 ; Devlin v. Second Avenue r. Co., 44 Barb., 81.

But all that took place, as the referee has accepted the result cf the evidence, was the demand for the restoration of the property to the plaintiff, and the defendant’s refusal to deliver it without the payment of the bill which had then accrued for the repairs of the carriages themselves. That refusal was justified by the circumstances, for the law secured to them a lien upon the carriages for the payment of this bill at the time when the possession was demanded. There, was, consequently, no wrongful act on the part of the defendants forfeiting their right to proceed and complete the performance of the contract.

The point was taken, and proof was offered to support it, that there was unreasonable delay on the part of the defendants in making the repairs. But it was not proposed to be proved that any fault was at any time found with such delay by the company or the receiver before the demand of the carriages; and even then it was not mentioned as supporting the right to théir possession, nor did the complaint claim any advantage or relief because of that fact. But there was an apparent acquiescence on the part of the company and the receiver even if there had been delay in the progress of the repairs; and there was no error in rejecting this proof. -The contract itself, which arose out of the circumstances of the case, was in no respect disaffirmed, neither were the defendants forbidden to go on with its performance on account of their preceding delay in repairing the carriages. And as they were not in the wrong in refusing to deliver- the carriages without the payment of their bill, which had at that time accrued, they were not precluded from still continuing and completing the repairs, as that was designed they should do at the time the carriages were delivered to them; and by the completion of these repairs they became entitled to this sum of money, and to its collection from the property by a sale thereof under these provisions of the Code of Civil Procedure. In no view of the case does there appear to be any cause for interfering with the judgment that has been recovered, unless it may be that part of it which has directed a dismissal of the plaintiff’s complaint. That, however, is no more than a formal irregularity. But consistently it should not have been directed, but judgment ordered for the defendants for the recovery of these amounts and a sale of the property, as that has been directed, to obtain the money for the payment of this indebtedness. In that respect the judgment may be modified, and as so modified it should be affirmed. But whether costs upon the affirmance should be awarded to the defendants should be reserved to be determined at the time when the order itself shall be settled.

Van Bbunt, P. J., concurs.


author: Bartlett, J. Barrett, J.

text:
    The Chatham National Bank, Resp’t, v. James H. Pratt, App’lt

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Guaranty—Op collection—Loches.
    In April, 1885, defendant gave to plaintiff a guaranty of collection of a certain note. He acquiesced in plaintiff’s delay until July, 1886, but no action was commenced on the note until the November following and judgment was not recovered until April, 1887, an answer having been interposed in January, which was set aside on motion a week before the judgment was entered. Held, that the delay after July, 1886, could not be said, under the circumstances, to be such as to free the guarantor from liability. •
    (Barrett, J., dissents.)
    Appeal by the defendant from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.
    E. Ellery Anderson, for app’lt; Daniel P. Hays, for resp’t.
   Bartlett, J.

The guaranty upon which this suit was brought was a guaranty of collection only, and the counsel on both sides agree that a diligent prosecution of the principal was essential in order to charge the guarantor with any liability on the instrument Craig v. Parkis, 40 N. Y., 181; Northern Insurance Co. v. Wright, 76 id., 445. The delay in proceeding against the principal in this case was so great that the learned judge who presided upon the trial correctly charged the jury that it released the defendant unless the plaintiff could show that the delay was due to some agreement, understanding or acquiescence on his part.

The guaranty was given on April 25,1885, and there was testimony by the president of the plaintiff bank tending to show that at a subsequent interview the defendant was informed that no proceedings were being taken to collect the particular note the non-payment of which has given rise to the present action, and that at this conversation he virtually assented to the course taken by the officers of the bank. The testimony of the president is contradicted not only by the defendant himself, but by Mr. William T. Pratt, for whose benefit the guaranty was given ; but we cannot say that the proof was not sufficient to warrant the jury in finding the fact of acquiescence, or that such finding was so clearly against the weight of evidence that the verdict ought to be set aside.

It cannot be held, however, that this acquiescence extended down to a date later than July 17, 1886, by which date it is plain from the evidence in the case that the officers of the bank must have understood that it was their duty to proceed to collect the guaranteed note. The bank did not bring suit until November 29, 1886, and judgment was not obtained against William T. Pratt until April 15, 1887. The defendants insisted that this delay subsequent to July 17, 1886, was so unreasonable that as a matter of law it should be held to discharge the defendant. It appears, however, that the dilatory progress of the action was due to some extent to the interposition on January 7, 1887, of an answer by one of the parties sued on the note. A motion was made to strike out this answer as frivolous on April 8, 1887, which was successful, and judgment was entered a week later. It certainly seems as though the bank ought to have proceeded with more celerity in its efforts to collect the guaranteed paper j but we are not prepared to say as matter of law that the delay after July 17,1886, was such under all the circumstances as to free the guarantor from liability.

The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Barrett, J.

I dissent. I think the delay subsequent to July 17, 1886, was unreasonable. There was no excuse for delaying action until late in the following November.

That alone should release the guarantor. But there was further negligence even after the commencement of the action. For if judgment was delayed by the interposition of Boyd’s frivolous answer there was surely no excuse for the three months of inaction which preceded the motion for judgment


text:
    William H. Yeandle et al., App’lts, v. Celeste Yeandle, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Appeal—When judgment will not be disturbed.
    Where the case involves simple issues of fact, and there have been three trials, in the latter two of which the defendant has succeeded, and no substantial error is shown to have occurred on the last trial, the judgment will not be disturbed.
    Appeal from a judgment at special term dismissing the complaint on the merits.
    Action brought by plaintiffs as the heirs at law of William Yeandle, deceased, to set aside a conveyance made by him to the defendant, who was his wife, of real estate situated in the city of Elizabeth, New Jersey, on the alleged ground of the incompetency of the grantor, and of fraud and undue influence on the part of the grantee.
    The deed was executed on April 16, 1880, and was recorded the next day. The conveyance was made to Eliza H. Hobart, and by her to the defendant, and both deeds express a consideration of $3,000 received from the defendant. William Yeandle lived more than five years after the execution of the deed and died August 24, 1885.

      Marshall P. Stafford, for app’lts; Joseph A. Shoudy, for resp’t
   Bartlett, J.

This case now comes before the general term ior the third time. The action is brought by the heirs at law of William Yeandle, deceased, against his widow, to set aside a conveyance of certain lands at Elizabeth, New Jersey, made by Mr. Yeandle to his wife in 1880, when he was seventy-six years old and she was fifty. This conveyance was attacked on the ground that the grantor was of unsound mind at the time of the execution and delivery of the deed, and that it was obtained from him by the fraudulent exercise of undue influence on the part of his wife. On the first trial the plaintiffs prevailed; but the judgment was reversed by the general term on account of errors by the trial court in receiving evidence which had a direct and material bearing upon the issues. Yeandle v. Yeandle, 13 N. Y. State Rep., 586.

On the second trial the defendant succeeded; but the judgment was again reversed; this time by reason of the erroneous exclusion of testimony. Yeandle v. Yeandle, 24 N. Y. State Rep., 614. On the third trial, the record of which is brought up for review by the present appeal, the defendants have succeeded for the second time; and the plaintiffs for the second time ask us to reverse the judgment

The substance of the argument submitted in their behalf is that upon the undisputed evidence the burden of proof was cast upon the defendant of showing that the transaction between her and her husband was free from fraud and undue influence; that she failed to discharge the burden thus cast upon her; and that the evidence as a whole affirmatively established both the incompetency of the grantor and the exercise of undue influence on the part of the grantee at the time the conveyance was made. We find nothing to indicate, however, that the court below misapprehended or misapplied the rules of evidence applicable to the case, and, on the contrary, a very careful consideration of all the proof satisfies us that it is amply sufficient to sustain and justify the conclusion which was reached. We do not deem it necessary to discuss the facts in detail. It is enough to say that we agree substantially with the views expressed by Mr. Justice Ingraham on the second trial, and by Mr. Justice Lawrence on the trial which resulted in the present judgment. Only one error in the admission or exclusion of evidence is pointed out upon the brief of the appellants; and although the ruling to which our attention is thus called is undoubtedly subject to criticism, its effect can hardly have been seriously injurious to the case for the plaintiff; certainly not harmful enough to warrant a reversal.

We do not think there ought to be any more trials of this action. It involves simple issues of fact which two out of the three judges before whom the case has been tried have decided in favor of the defendant. No substantial error is shown to have occurred upon the last trial, and the judgment then rendered should be affirmed, with costs.

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