text:
    Philipp Bierschenk et al., App’lts, v. William E. D. Stokes, Resp’t.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    1. Contract—Statute of frauds.
    Where the defendant certifies that he holds a certain sum of money, belonging to a third party on the completion of his contract, and that upon the completion of plaintiff’s portion of the contract with him, the defendant would pay his claim against such third person with the latter’s consent, it is a guaranty to pay the latter’s debt, and not an original obligation of the defendant.
    3. Trial—Re-opening case.
    It is within the discretion of the court, upon a motion to dismiss the complaint, to allow the plaintiff to re-open the case.

      Oscar Richter, for app’lts; William R. Martin, for resp’t.
   McCarthy, J.

This is an appeal from a judgment in favor of defendant and against plaintiffs entered January 23, 1893, upon the dismissal of the complaint at trial term, 'with costs, and to review an interlocutory judgment of the general term of this court overruling the plaintiffs’ demurrer to defendant’s counterclaim on the 28th of December, 1892.

The action is brought by plaintiffs as copartners to recover from defendant a balance of three hundred and fifty dollars ($350) claimed to be due for work and labor performed for and materials furnished to and at the request of the defendant between May 21 and September 30, 1891 (fol. 5).

The answer is a general denial of the allegations of the complaint and a counterclaim (fol. 8). The plaintiffs demurred to the counterclaim (fol. 15), and the demurrer was sustained at general term (fol. 17). An appeal was taken to the general term (fol. 23), and the order was reversed and demurrer overruled (fol. 26). An appeal was taken to the general term of the court of common pleas by plaintiff and the appeal was dismissed (fol. 43) and an interlocutory judgment ordered to be entered, • 'hich was done (fol. 46). On the 19th of December, 1892, on motion of plaintiffs’ attorney, an order was made by the general term of this court, based on the remittitur of the court of common pleas, reversing the order of the special terra overruling plaintiffs’ demurrer, with costs, and directing interlocutory judgment (fol. 51); and on December 28, 1892, interlocutory judgment was entered in accordance with said order, and directing final judgment to be entered if the terms were not complied with (fols. 54-56). No final judgment has ever been entered in accordance with this interlocutory judgment and no reply has ever been served on defendant’s counterclaim, and no proceeding or adjudication has been had regarding the counterclaim and no judgment has been entered upon it. The action was tried on plaintiffs’ complaint and the answer, before Mr. Justice McGowan and a jury, and resulted in a dismissal of the complaint at the close of plaintiffs’ case (fol. 70) ; no trial of the counterclaim was had, and none was requested by either party. At the trial the following agreements were - introduced in evidence. No evidence was given of performance:

Exhibit “B.”

New York, May 18, 1891.

Messrs. Bierschenk & Co.

Gentlemen : In accordance with the conversation and agreement between Mr. Owen Cumisky, yourself and myself, on Saturday last, and by direction of Messrs. Squire & Whipple, and at the request of Mr. Cummisky, I hereby hold two thousand seven hundred dollars ($2,700) which I hereby agree to pay you when the work referred to in agreement or contract dated May 12,1891, copy of which Mr. Gumisky has handed me, has been delivered and put in proper and workmanlike manner in twenty-one houses, ten in Eighty-sixth street and eleven in Seventy-second street, twenty-five hundred dollars of which is to be charged on my contract with Squire & Whipple, on account of their contract with Mr. Cummisky, and two hundred dollars to Messrs. Squire & Whipple, on account of their contract with me, for your labor in putting said work in proper place.

Yours truly,

(Signed) W. E. D. Stokes.

P. S.—This letter covers your request.

Exhibit “A.”

This agreement made the twelfth day of May, one thousand eight hundred and ninety-one, between Owen Cumisky and Bierschenk & Co., witnesseth:

Whereas, said Cumisky has a contract with Squire & Whipplé to do the work and furnish the materials for the trimmings, etc., including the work herein mentioned in twenty-one houses belonging to W. E. D. Stokes ; ten on Eighty-sixth street; six on the north side of Seventy-second street, and five on the south side of Seventy-second street, Mew York, and desires to sub-contract a portion of said work to said Bierschenk & Co.

The said Bierschenk & Co.,agree to furnish all the materials and do all the work for the halls, transoms, screens, foyer seats and all other transoms and screens for said houses and all the work shown on the plans and details of the said halls, transoms, screens and foyer seats for said twenty-one houses and have examined the said houses and the plans and the details for the same, and the three sets of details, first for the said ten houses; second, for said six houses, and third, for the said five houses.

The work for the said ten houses and the said six houses to have a little stain to match the other woodwork and the said five houses on the south-east corner of Seventy-second street and West End avenue, to have no stain, and to finish the whole work within ten days for first house from West End avenue and Eighty-sixth street and south side, and third house north side from West End avenue Seventy-second street, all'the other houses to be finished in six weeks from date days from this date to the satisfaction of the said W. E. D. Stokes, at the price of $2,500 which said Cumisky in the completion of the work agrees may be completed from the amounts coming to him from said Squire & Whipple on their existing contract, and said Cumisky agrees to give said Bierschenk & Co. written orders on said Squire & Whipple for any amount or amounts due, which orders said Bierschenk & Co. accept as payment without recourse to said Cumisky.

In witness whereof, the parties hereto have hereunto set their hands and seals the day and year first above written. .

In the presence of:

W. E. D. Stokes.

We agree to the above.

May 15 th, 1891.

Squire & Whipple, Owen Cumisky, Bierschenk & Co.

Received Mew York, June 20, 1891, from W. E. D. Stokes, seven hundred dollars on account of the within contract, and I hereby certify that all wages are paid to date and all materials are paid for, and in consideration of the above statement, this sum of seven hundred dollars'is this day paid to me.

Bierschenk'& Co.

June 20, 1891.

Received New York, June 30, 1891, of W. E. D. Stokes on account of the within contract, five hundred dollars, and I hereby certify that all wages are paid to date, and all materials are paid for, and in consideration of the above statement, this sum of five hundred dollars is this day paid to me,

Bierschenk & Co.

Witness—A. E. Gallup.

Received, New York, August 12, 1891, of W. E. D. Stokes, three hundred dollars on account of the within contract, and I hereby certify that all wages are paid to date and all materials are paid for, and in consideration of the above statement, this sum of three hundred dollars is this day paid to me.

Bierschenk & Co. ■

Witness—A. E. Gallup.

Received, New York, August 15, 1891, of W. E. D. Stokes, two hundred dollars on account of the within contract, I hereby certify that all wages are paid to date, and all materials paid for, and in consideration of the above statement, this sum of two hundred dollars is this day paid to me. Bierschenk & Co.

Received, New York, August 28, 1891, of W. E. D. Stokes, two hundred and fifty dollars on account of the within contract, and I hereby certify that all wages are paid to date and all materials are paid for, and in consideration of this statement, the said sum of two hundred and fifty dollars is this day paid to me.

Bierschenk & Co.

Received, New York, September 12, 1891, of W. E. D. Stokes, two hundred dollars on account of the within contract, and I hereby certify that all wages are paid to date, and all materials are paid for, and in consideration of the above statement, the said sum of two hundred dollars is this day paid to us.

We think that Exhibit B was clearly a guarantee to pay the debt of Cumislcy, and not an original obligation of the defendant.

It was merely certifying.that he held so much money belonging to Cumislcy on the completion of plaintiff’s portion contract with Cumislcy, the defendant, would pay this debt with the consent of Cumisky.

Besides as the case stood at the dismissal there was no evidence of performance.

Even if the first ground was not sufficient on which to grant a dismissal, certainly the failure of proof of performance was.

The plaintiff having rested his case and the defendant having moved to dismiss on the grounds stated, it was within the discretion of the court to allow the plaintiff to reopen case, and his refusal then to allow plaintiff leave to prove that the work specified was performed was not error.

No cause of action has been proved against the defendant, and that was sufficient to dismiss the complaint.

We find no error on the part of the trial justice, and the judgment must therefore be affirmed with costs.

Van Wyck and Newburger, JJ., concur.

New York State Reporter, Vol. 56. [N.Y.CityCt.


source: Caselaw Access Project

author: Van Wyck, P. J.

license: Public Domain

text:
    Henry W. De Mars et al., Resp’ts, v. Samuel C. Boehm et al., App’lts.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Brokers—Employment.
    The effect of an authorization by defendants to plaintiffs to submit their written bid for the property, where it could be given without employment as brokers, should, with the other evidence in the case, be submitted to the jury, where such employment is a disputed question.
    Appeal from judgment on verdict returned by jury for plaintiffs and from order denying new trial.

      Royal S. Crane, for pl’ffs-resp’ts; Jeroloman & Arrowsmiih, for def'ts-app'lts.
   Van Wyck, P. J.

Plaintiffs sue as real estate brokers for . commissions for buying property for defendants. It appears that Sutro & Dulon, Esqrs., were attorneys for .the owners, infant heirs, in a partition suit; that Mr. Crane was the referee to sell the property; that the sale was made by the referee receiving sealed written bids; that plaintiffs’ bid of $65,500 was the highest, and accepted; that the sale was confirmed on the referee’s report, and that the property was deeded to him by defendants. The main issue upon trial was whether defendants had employed plaintiffs to effect the purchase, and whether they were selling brokers for the owners or those who represented them, or buying brokers for the plaintiffs. The plaintiff Bennett testified that his partner got the property for sale from a friend of his; that he saw Sutro & Dulon as the representatives of the infant heirs before he saw the defendants and told them that he was a real estate broker and thought that he could sell their property; that he had taken a buying customer to them and had been before the referee twice about the sale of this property, before he saw the plaintiffs; while De Mars, the other plaintiff, testified that he had endeavored to get for the heirs as high a price for the property as he could, so as to increase his commissions. After, defendants’ bid was made and before the referee reported the same to the court, the defendant, who was active in the negotiation, was called as a witness before the referee and there testified in the presence of the plaintiff De Mars that plaintiffs were not to be paid any commission by defendants and that in making the offer of $65,500 for the property he told plaintiffs particularly that they must collect their commissions from the owners of the property.

Both defendants testified that Sutro & Dulon with their knowledge and consent, had endeavored to have the court direct that their commissions be paid by the infant heirs, and the referee’s report so recommended as follows : “I further report that in my opinion the real estate brokers, Henry W. De Mars and Joseph F. Bennett, are fairly entitled to be paid out of the estate, a brokerage of one per cent of said purchase price, from the owners of said property; they produced the customers, and at every hearing before me, were present, and their customer, Samuel C. Boehm, advanced his bid from $6,000 to $65,000, as I believe, by their suggestion; they have fairly earned the said commission, and I therefore think it is just and right that their services be compensated out of the estate. Mr. Boehm testified that he informed the said brokers that they must get whatever commission they could out of the owners, and that he could not afford to pay them any brokerage.”

It js true that both plaintiffs testified that at the first interview with Nathan Boehm to whose attention they had brought the fact that this property was for sale, they had said to him, “we want you to understand one thing, that the other side will give no commission, and if you buy this property, you will have to pay the commission,” and that he replied, “ Our firm, if they buy it, will pay the commission.” Nathan denied that such conversation was had, and the proof is overwhelming and uncontradicted, that he was not a member of defendants’ firm, and that he was not in any way authorized to act for, or bind them in the transaction, and no proof was made that they had ratified his act or this conversation, and the judge refused to charge as requested “ that Nathan Boehm was not acting for defendants and had no authority to act for them ” to which refusal defendants excepted. The plaintiffs testified that they had a conversation with Samuel Boehm, admittedly a member of defendants’ firm, similar to the one had with Nathan, but he denies this. It is undisputed that defendants’ firm authorized plaintiffs to submit their written bid for the property as required by the referee’s terms of sale, and this authorization is as follows: “New York, April 19, 1892, Boyal S. Crane, Esq., referee.

Dear Sir—I hereby authorize De Mars and Bennett to offer for us, the sum of $65,500 for' the property on northeast corner of Bleecker and Wooster street, New York. Samuel C. Boehm & Co. And that it was by plaintiffs handed to the referee on April 19th, the day he had already fixed for receiving written bids. Plaintiffs testified that this paper was given to them as the employed brokers of defendants, and contended that it evidenced their employment as such by defendants, while defendants testified that it was given just as a verbal authority might be given by any buyer to a seller’s broker, to offer his principal a fixed price, and contended that the only reason it was written was because the referee’s terms of sale required that the bid should be in writing, and that it did not evidence defendants’ employment by them, as their brokers to buy. If this paper is taken out of the case, the plaintiffs’ cause will rest solely upon their own testimony, which would not be sufficient to justify the verdict in their favor in view of their testimony, that they endeavored to get for the infants’ estate as high a price for this property, to buy which they claim they were defendants brokers, as they could so as to increase their commission, and of the other facts testified to by them as above stated.

The judge charged the jury at folio 135 as follows: “Mr. Nathan Boehm says that he was but a salesman for the defendants. The plaintiffs say, that they first called his attention to this property, and that he, acting for defendants, reported the matter to them, the result of which was this paper, dated April 19, 1892, and which I read,” and immediately after reading the paper, continues, “here is an employment of these brokers, authorizing them to pay this sum for this property.” This was excepted to. This paper was certainly an authorization to plaintiffs to file defendants’ written bid with the referee, to whom it was addressed; but whether it, or any other evidence in the case, was proof of an employment of these brokers by the defendant, was a disputed question which should have been left to the jury; hence it was error for the judge to say: “Here is an employment of these brokers,” even though followed by the words, “authorizing them to offer this sum for this property,” for such authorization could be given to plaintiffs by the defendants without an employment of them as brokers. The judge should have charged as requested, at folio 148, that Nathan Boehm had no authority to act for defendants.

The judgment and order appealed from should be reversed and new trial granted with costs -to appellant to abide the event

Newburger and McCarthy, JJ., concur.


author: Robert A. Yah Wyok, P. J.

text:
    David Abraham, Resp’t, v. Louis Goldberg, App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Brokers—Compensation.
    Where a broker, upon request from the owner, initiates the negotiation which eventuates in the sale, but subsequently remains silent upon the promise of the purchaser to pay his commissions in full, thereby inducing the owner to rely upon the purchaser’s certification that there was no ■ broker’s commission, and to fix the purchase price accordingly, it furnishes a consideration for the purchaser’s promise to pay the commissions.
    Appeal by defendant from judgment entered on verdict of jury and from order denying new trial.

      David Leventriit, for pl’ff-resp’t; Arnb. Stern, for deft-app’lt.
   Robert A. Yah Wyok, P. J.

The evidence is amply sufficient to have justified the jury in finding that in June, 1892, the plaintiff, a real estate broker, was requested by one Stocom, the owner of a house in process of construction, to seek for him a purchaser of the same when fully built; that plaintiff immediately called upon defendant, with whom he had previously dealt in real estate transactions, both as his broker in selling and as the broker of the seller of property to him, and brought to his attention the fact that Stocom’s house was for sale at the asking price of $48,000, when completely finished, but possibly could be purchased for $42,500; that plaintiff took defendant with him to look at the house, and together they fully examined same; that at this stage of the transaction defendant requested plaintiff to apparently disappear from all further negotiations in the matter, as shown by plaintiff’s testimony, where he states that defendant said to him “ You know that you are my broker, and you know very well that I am not buying without you, and I am not selling without you, I think I can do better myself with Mr. Stocom, and when I will buy myself I will pay you the commission in full. You keep away; don’t talk with Mr. Stocom at all; ” that thereupon plaintiff ceased all effort in the matter as regards the sale by Stocom to defendant, and refrained from making any other or further endeavor to earn a commission from Stocom by seeking and securing as his broker, some person other than defendant to purchase the house, and that he remained silent as to his instigation of the purchase by defendant, and refrained from claiming any commission of the owner for the sale, which was eventually m^de by him to defendant, who “certified that there is no broker in this sale" in the contract he made with the owner to buy the house for $42,150.

Appellant’s contention is, that there is no consideration for the promise of defendant to pay plaintiff’s commission. This promise is made upon valuable considerations. The plaintiff initiated the negotiations which eventuated in the purchase by defendant of Stocom, the owner, who had in June requested plaintiff to secure a purchaser. This would entitle him to a commission from the owner, except for his engagement with defendant to remain silent about it, thus inducing Stocom to rely on défendant’s certification that there was no broker’s commission, and to fix the purchase price accordingly. He might have earned a commission from the owner by securing a purchaser other than the defendant, except for his agreement to make no such effort.

The judgment and order are affirmed with costs.'

McCarthy, J., concurs.


text:
    Margaret H. Kilpatrick, Resp’t, v. Henry Villaume, Appl’t.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Bills and notes—Fictitious name.
    The use of a fictitious name by the payee in doing the work for which the note was given, is no defense to an action thereon.
    Appeal by defendant from judgment entered on verdict directed by the court for plaintiff.

      Kelly & Macrae, for pl’ff-resp’t; F. Jellenik, for de’ft-app’lt.
   Van Wyck, P. J.

The plaintiff sues upon three promissory notes made by defendant to order of Kilpatrick & Eoylance and alleges that they were made and delivered to her “ doing business as successor to and under the name of Kilpatrick & Eoylance.” The defendant resists on the sole defense, that when the notes were made, there was no such partner as Eoylance, and that plaintiff had not filed the certificate and published the notice for continuing the use of such firm name as required by statute. In the Barron case, 12 N. Y. Supp., 455; 35 St. Rep., 380, Chief Justice J. F. Daly, in referring to the rule laid down in the Gay case, 97 N. Y., says: “This decision establishes the rule, that it is not every case of transacting' business under a fictitious name that is within the statute, but that to make the act illegal, it must appear that credit was given to and reliance placed upon the false designation, and that credit was given to the persons using the false designation; and in the case before us the proposed defense merely alleges the use of the fictitious name by the plaintiff in doing the work for the defendant, and in making the contract therefor, and in carrying on of the business by plaintiff under the fictitious name. These facts alone, if proved, would constitute no defense under the case quoted, and the motion to amend the answer by setting them up was properly denied.” This decision in' the Barron case was rendered by our appellate authority six years subsequent to the adoption of chapter 262 of Laws of 1886. Hence the judgment must be affirmed, with costs.

Newburger and McCarthy, JJ., concur.


author: Robert A. Yan Wyck, P. J.

text:
    Annie De Witt et al., App’lts; v. Samuel Brill et al., Resp’ts.

      (New York City Court, General Term,

      Filed November 27, 1893.

    Pleadings—Redundant.
    A defendant is not allowed to repeat his specific or general denials in each of his entire separate alleged defenses, consisting of new matter. Such matter should be stricken out, on motion, as redundant.
    Appeal from order denying motion to strike from the answer redundant matter.

      Chas B. Lansing, for pl’ff-app’lt; Geo. W. Gallinger, for def’t-resp’t.
   Robert A. Yan Wyck, P. J.

The answer by specific denials, puts at issue every material allegation of the complaint, excepthe copartnership of defendants, and then follows the fourth part agraph of the answer as follows: “For a separate and distinct defense and repeating the previous allegations ” (which are the specfic denials) and then goes on to allege a defense consisting of new matter. , The plaintiff moved to strike from this alleged separate and distinct defense, the words “and repeating the previous allegations ” as redundant. Plaintiff’s contention being that a demurrer will not lie to a part of an entire defense in an answer, and that while the previous specific denials are allowed to stand in the fourth paragraph which sets forth an alleged entire defense consisting of new matter, he is precluded from availing himself of the provisions of § 494 of the Code, which allows demurrer to a defense consisting of new matter contained in the answer, on the ground that it is insufficient in' law, upon the face thereof. And certainly, demurrer will not lie to either a specific or general denial, and if a defendant is allowed to repeat his specific or general denials in each of his entire separate alleged defenses, consisting of new matter, .then he can, at will, nullify the express provisions of § 494; but of course, he has no right to do so: The motion should have been granted and not denied. The order is reversed with ten dollars costs and motion to strike from the fourth paragraph of the answer the words “ and repeating the previous allegations, granted With ten dollars costs, with leave to plaintiffs to demur to the alleged defense in the fourth paragraph consisting of new matter, within six days after entry of order herein.

McCarthy, J., concurs.


author: Van Wyck,. P. J.

text:
    Samuel Gross, Resp’t v. May M. Kellard, App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    1. Bills and notes.—Title.
    The plaintiff, by producing and marking a note in evidence, proves ownership thereof.
    3. Same.—Equities.
    Where an indorser takes up the note after protest and transfers it, the. maker may show payment thereon to payee, and that the note and indorsement are affected by usury.
    3. Same.
    A protested note is, in itself, sufficient notice to all intending purchasers to put them upon inquiry of the maker as to its validity or his defense.
    Appeal by defendant from judgment on verdict directed by the court for plaintiff.

      Jas. G. De La Mare, for appl’t, resp’t; Gardner & Linehan, for deft, app’lt.
   Van Wyck,. P. J.

The plaintiff’s proof shows that he is the holder of a $600 promissory note, dated November 18, 1892, payable four months after date and made by May M. Kellard, the defendant, to her own order, indorsed by her and then by the American Guarantee Association, and by it returned to her with the following letter, dated the same day: “ Mr. T. Robinson, cashier, Mt. Morris Bank. Bear sir: This will introduce Miss May M. Kellard, who wishes her note for $600, bearing our indorsement, which we guarantee, discounted, Kindly do so. Truly, American Guarantee Associationthat she immediately presented the note and this letter to the bank cashier, who discounted the note by paying her $587.80 and retaining 12.20, the legal rate for four months discount, and that after maturity and protest, said note was taken up by said American Guarantee Association, and the amount thereof paid to the bank; but no proof is made as to how or when the note passed from the Association or to the plaintiff; however, the plaintiff proved ownership by producing and marking the note in evidence, and the complaint alleges a payment on account of $150.

The allegations of the answer were sufficient to permit of proof by the defendant, first that she had paid $360 instead of $150 on account of the note, and secondly, that the transactions between her and the American Guarantee Association as regards the making by her and indorsement by it of the note, was a mere device contrived for the purpose of evading or concealing the appearance of a usurious loan made by it to her, when in truth it was such. The defendant at trial made the proper efforts to prove the circumstances under which the note was transferred to plaintiff ; that plaintiff had paid no consideration for the same; that she, defendant, had paid to the American Guarantee Association $360 on account of the note; that the $587.80 handed to her by the bank were not taken from its funds, but directly from the funds of the American Guarantee Association then on deposit with th© bank; that this association, at the time the -note was made by her and indorsed by it, received from her other considerations than the note, and the $12.20 discount; and that the note was so given and indorsed as part and parcel of a transaction by which the American Guarantee Association was. to obtain more than the legal rate of interest on the $600 loan. These efforts of defendant to make such proof were rendered ineffectual by reason of several erroneous rulings which seem to have been induced by the misleading statements of plaintiff's counsel as follows: “Defendant’s attorney: It is not denied by the plaintiff that the note after maturity came back into the hands of the association and was by them transferred. The court: Is that so, Mr. De La Mare? Plaintiff’s attorney : Ho, sir.” At any rate, the association having taken up the note after maturity and paid the bank the amount of same, it follows that if plaintiff afterwards obtained the note from the association, paying nothing therefor, then that defendant had the right to show the payment of $860 on account as alleged in the answer, and the refusal of this right wrould alone force a reversal of the judgment However, as the case must go back for a new trial, it would seem proper to suggest regarding the usurious aspect of the transaction.

The facts alleged in the answer and shown on record, if proven on the new trial would tend to indicate that Miss Kellard, the defendant, had applied to the American Guarantee Association for a loan of $600 for four months, and had been informed by its agents negotiating the transaction that if she would make her two promissory notes, at four months, to her own order for $600 and $210, respectively, and indorse the same, that they would indorse the $600'note and secure its discount for her by the Mt. Morris Bank, provided that she would in consideration thereof promise to pay them $210, as evidenced by the other note, and to secure both notes by a chattel mortgage for $810 on her personal property, and to all of which she and they agreed ; and that she delivered to the association the chattel mortgage for $810, and also the $210 note which she has not since seen, and which it would seem the association claims was paid, for the complaint admits a payment of $150, while she claims payment of $360 on account of the $600 note, thus inducing the inference that the association had applied $210 of the $360 in payment of the $210 note and $150, the balance on account of the $600 note, and that the association had indorsed the $600 note and secured its discount for her by the bank as per the letter to the cashier. If it should be proven that the $587.80 handed to her by the bank in discounting the $600 note were taken, not from the bank’s funds, but directly from the association’s fund then on deposit with the bank, why, of course, the transaction would be usurious and the note invalid in whosoever’s hands it might come, either before or after maturity. But assuming that they were taken from the bank’s own funds, in other words, that it was a regular discounting by the bank for the defendant without any notice to the bank of the previous arrangements between the defendant and this indorsing association, still these previous arrangements would render the transaction usurious and defeat an action on the note against the defendant by such association because it was the original party to these arrangements; and, moreover, it had regained possession of the note after maturity and protest. Has this plaintiff greater rights than the association through whom his title to this dishonored note must have come? Does not a protested note wear the badge of its dishonor, and is it not in itself sufficient notice to all intending purchasers to put them upon inquiry of the maker as to its validity or his defenses ?

Judgment reversed and a new trial granted, with costs to appellant to abide the event.

Newburger and McCarthy, JJ., concur.


text:
    George B. Inman et al., Resp’ts, v. Walter S. Johnston, App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    Contract—Statute of frauds.
    An oral promise by a party to pay for work done at his direction, though necessary to save the franchises of a corporation, is not within the statute of frauds.
    Appeal by defendant from judgment on verdict returned against him and from order denying new trial.

      Lamb & Petty, for pl’ffs-resp’ts; Bangs, Stetson T & McY.for def’t-app’lt.
   Van Wyck, P. J.

Plaintiffs’ alleged cause is for work performed and materials furnished at the request of defendant in and about making certain water line extension. One of the plaintiffs testified that, at defendant’s request, he went to Iowa to ascertain what extensions were required, and upon his return reported to defendant that the extension “ which led up to the city jail ” was required to be made, and that thereupon defendant replied, “ All right, go ahead and make it and I will pay for it; ” and that plaintiff made this extension, and that the same was reasonably worth the sum sued for.

Defendants’ contention on appeal is that because the water line extensions were rendered necessary to save certain franchise rights of a water company corporation, hence, that this promise of defendants’ is a promise to answer for the debt, default or miscarriage of the water company; and not being in writing and signed by him, is void under the statute of frauds. The evidence clearly shows that plaintiffs’ promise was an original promise to pay defendant for the work performed for plaintiff at his request, and not a collateral promise to answer for the debt, default or miscarriage of another.

The verdict for plaintiff is sustained by the evidence, and the judgment and order appealed from are affirmed, with costs.

Hewburger, J., concurs.


author: Yan Wtck, P. J.

text:
    Morris Robinson et al., Resp’ts, v. Charles Lewis et al., App’lts.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    1. Conversion—Offer to return.
    A subsequent offer to return and refusal to receive the goods, unlawfully taken, are no bar to an action for conversion.
    2. Evidence—Value.
    The purchase price of an article is some evidence of its value.
    Appeal by defendants from judgment on verdict in favor of plaintiffs and from order denying new trial.

      David Leventritt, for pl’ffs-resp’ts; Nathan Lewis, for def’ts. app’lts.
   Yan Wtck, P. J.

This action is for the recovery of damages for the wrongful taking and detention of defendants’ goods. The verdict was for plaintiffs, and the proof is amply sufficient to sustain a finding by the jury, that the taking of the goods was unlawful, and so finding, the laws says, that the conversion was fixed and the cause of action accrued at the time of such taking; hence any subsequent offer to return, and refusal to receive the goods, is no bar to an action for the recovery of damages for their unlawful taking. The proof' that the taking was unlawful seems complete and overwhelming, and as to the value of the goods so taken was sufficient to justify the verdict, for the plaintiffs testifying at folio 36, says, that $385.37 was the fair and reasonable value of these goods on the day of the unlawful taking, and that that was the price paid for them by plaintiffs, who purchased them from various merchants in this city. It was not error for the judge to charge in this case that the purchase price of an article is some evidence of its value, as plaintiffs testified that such purchase price was the fair and reasonable value. The rulings of the judgas to admission and rejection of evidence are not erroneous, and no error is found in his charge or his refusals to charge defendants’ request. The verdict for plaintiffs for the full amount claimed was righteous, and the judgment and order appealed from are affirmed, with costs.

Newbhrger, J., concurs.


text:
    George F. Vietor et al., Resp’ts, v. Alexander Goldberg, App’lt.

      (New York City Court, General, Term,

      Filed November 27, 1893.)

    Attachment—Vacation.
    An affidavit for an attachment on the ground that defendant has disposed of his property with intent to defraud his creditors, must contain a lawful averment of some fact from which it can be legally presumed that the grantor was insolvent at the time of the voluntary conveyance.
    Appeal by defendant from order denying motion to vacate warrant of attachment against his property on the affidavits and papers upon which such warrant was granted.

      Blumenstiel & Eirsch, for pl’ffs-resp’ts; Eorwitz & Eershfield, for de’ft-app’lt.
   Van Wyck, P. J.

If any fact, however light, can be gathered from the papers and affidavits upon which the attachment was granted, that tended to show the existence of the statutory conditions, the judge would have acquired jurisdiction and the order appealed from should be affirmed. Of course such fact must be gathered from the legal averments in the affidavits. Conceding that the matters stated on information by affiant Blumenstiel in the fourth, fifth and seventh paragraphs of his affidavit, regarding defendant’s assets and liabilities, and his hasty and irregular effort to secure a loan of $10,000 secured by mortgage by paying a bonus of $1,000, would be sufficient if properly verified, it would not aid the plaintiffs, for they are given on information only, and are unavailing because it is not shown that the persons from whom the affiant professes to have obtained the information, are absent, or that their depositions cannot be procured. Yates v. North, 44 N. Y., 271.

However, this affiant does make lawful proof by his affidavit verified May 9, 1893, that on the 5th of that month the defendant conveyed to his wife, Annie Goldberg, a lot or parcel of real estate eighteen feet wide and one hundred and two feet deep, with the buildings thereon, situated in Hew York city on Seventy-second street, two hundred and fifty-four feet east of Third avenue, for the consideration of one dollar; that on the next day, the sixth, he confessed judgment to his wife for $5,847.07, on which execution was issued to the sheriff of Hew York county, who took possession of defendant’s property by virtue of such execution ; and that two days thereafter, on the 8th, the defendant also confessed judgment to one Pincus Turk, for $4,017.95. Did these undisputed facts give the judge jurisdiction to grant a warrant of attachment against defendant’s property on the ground that he had disposed of his property with intent to cheat and defraud his creditors ? Appellant by his counsel’s able brief, contends that they do not; first, because the fact that a deed is without consideration is not of itself sufficient as to creditors, by reason of express statutory provision, and secondly, because “ there is no competent legal evidence that he was insolvent at the time of the conveyance,” thus practically conceding that if there was, then that the conveyance, if without consideration, was a fraudulent conveyance. The conveyance is without consideration and being voluntary it is more than evidence, it is a fact from which a fraudulent intent may be inferred, provided the affidavit contains a lawful averment of some fact from which it can be legally presumed that the grantor was insolvent at the time of the voluntary conveyance. It can be legally presumed that the defendant was insolvent at the time of the voluntary conveyance to his wife, from the fact that the very next day he confessed judgment to her, his grantee, upon which execution issued under which the sheriff took possession of his property. It is the established rule of evidence that proof that a judgment had been obtained against an alleged fraudulent grantor, upon which execution had been duly issued and returned unsatisfied is prima facie evidence of the insolvency of such grantor at the time of the conveyance, even though made months before, provided that the debt upon which the judgment was recovered was incurred by the grantor prior to his conveyance, and this is the rule, even against a voluntary grantee who had no notice of the insolvency.

But in the case at bar, the voluntary grantee is the same person who, the next day, issued execution and had the sheriff seize the grantor’s property under a judgment confessed to her by him. However, in this case, there had not been a return of the execu-. tion unsatisfied, nevertheless the confession of judgmént to the wife, issue of execution by her, seizure by the sheriff thereunder of defendant’s property is prima facie evidence of his insolvency on the day previous when the voluntary conveyance was made by him to her. The judge writing in the Tuthill case, 124 N. Y., at p. 153; 35 St. 226, says: “ Permitting commercial paper to be dishonored by one engaged in commerce, and his property to be attached in an action in which judgment is subsequently recovered by default, it is evidence, and if unexplained, is proof of insolvency,” and cites Brown v. Montgomery, 20 N. Y., 287. Booth v. Powers, 56 N. Y., 22, 32; Abbott's Trial Ev., 616. The rule thus laid down seems broad enough to justify the conclusion that plaintifiShas by legal evidence made proof of facts sufficient for the legal presumption that defendant was insolvent at the time of the voluntary conveyance. Order appealed from affirmed, with ten dollars costs.

McCarthy, J., concurs.


author: Van Wyck, J.

text:
    William Islin et al., Resp’ts, v. Alexander B. Goldberg, App’lt.

      (New Yord City Court, General Term,

      Filed November 27, 1893.)

    Appeal from order denying motion to vacate attachment on the papers upon which it was granted.

      Blumenstiel & Hirsch, for pl’ff and resp’t; Horwitz & Hirsh, for def’t and app’lt.
   Van Wyck, J.

The papers upon which this attachment was granted and on which defendant moved to vacate the same are substantially the same as those in the companion case of Victor et al v. Goldberg, this day affirmed by this general term, with opinion filed by Van Wyck, Jr., and the order herein appealed from is affirmed, with costs on said opinion.

Van Wyck and McCarthy, JJ., concur.


author: Van Wycic, P. J.

text:
    Mayer Landsberger, Resp’t, v. Kate Murray, App’lt.

      (New York City Court, General Term,

      Filed November 27, 1893.)

    1. Appeal—Admissions.
    Where a party has expressly admitted a fact in court, it is harmless error to permit the adverse party to give evidence bearing upon such fact.
    2. Same—Change.
    In an action by a broker for his commissions, it is not error to refuse to, charge that the jury must find that defendant represented himself to be the owner of the premises, in order to entitle the plaintiff to a verdict.

      Appeal by defendant from judgment on a verdict and order denying new trial.

      Davis & Kaufman, for plf’t-resp’t; Norwood & Coggeshall, for def’tapp’lt.'
   Van Wycic, P. J.

The plaintiff, a real estate broker, sues for commission for procuring a purchaser of defendant’s two houses and lots, at her request. The case was properly submitted to the jury and their verdict returned for plaintiff is not contrary to the evidence, nor against the weight of evidence. Now as to defendant’s exceptions. It was immaterialal who generally took title, the issue here was, who agreed to take title under the instruments of February 10th and March 20th. Although it appears by the record that the objection to the question at folio 54 was sustained, nevertheless, it also appears that it was fully answered. It was harmless error in this action, by the defendant's broker, to allow the purchasers named in the above instruments to state that they had prepared and filed plans and specifications as tending to show their willingness to carry out the agreements of these instruments, in view of the fact that defendant had at folio 104 expressly admitted, “ that they were able to buy the property and willing to do it.” It was not error for the judge to refuse to charge that, “the jury must find that defendant represented herself to be the owner of the premises to entitle the plaintiff to a verdict.” What matters it whether she represented herself as the owner of these two houses and lots, or not ? The issue was whether she had employed defendant to negotiate a sale of these two particular houses, and if so, whether he had successfully done so by producing by his efforts, a purchaser able and willing to buy them at her price, and upon the agreed terms. The evidence shows that he did, and the jury so found. Moreover, she was, at the time of the employment and agreement to sell, the actual owner in fee of one of the houses, and held the fee to three-fourths of the other one, jointly with a daughter who was four months under age, and from .whom she also held a deed of her interest.

The judgment and order must be affirmed with costs.

McCarthy, J., concurs.


author: Per Curiam.

text:
    Oscar Compton, Resp’t, v. Henry E. Bowns, App’lt.

      (New York Common Pleas,

      Filed December 4, 1893.)

    Appeal—Leave. •
    The common pleas has no jurisdiction to entertain a motion for leave to go to the court of appeals, where the remittitur from the common pleas has been filed in the city court, an order making the judgment of the common pleas the judgment of the city court entered, and the cause set down for trial, before the service of notice of motion.
    Motion for leave to go to court of appeals.

      Hyland & Zabrislcie, for motion; Putney, Bishop & Slade, contra.
   Per Curiam.

The remittitur having been filed in the city court, an order entered making the judgment of this court the judgment of that, and the cause set for trial, all prior to the notice of motion, we have no jurisdiction to entertain the motion. Thompson v. Kearney, 14 Daly, 436.

Motion denied, with costs.


author: Bischoff, J.

text:
    Emma T. Green, as Administratrix of, etc. v. Joseph G. Roworth et al.

      (New York Common Pleas, General Term,

      Filed December 4, 1893.)

    New trial—When made.
    A motion for a new trial, for the purpose of reviewing an interlocutory judgment, must be made before the commencement of the hearing directed by the judgment.
    Motion to vacate an order directing the dismissal of defendants’ motion for a new trial pursuant to the provisions of § 1001 of the Code of Civil Procedure, and that the motion for a new trial be heard and determined upon the merits.

      John S. Davenport, for pi’if; Thomas Darlington, for def’ts.
   Bischoff, J.

Defendants sought a review of the interlocutory judgment entered herein by motion for a new trial upon a case and exceptions at general term, pursuant to the provisions of § 1001 of the Code of Civil Procedure; and upon the hearing the motion was dismissed because the case did not purport to have been settled and signed by the trial judge as required by the Code and the general rules of practice. Green v. Roworth, 4 Misc. R., 141; 53 St. Rep., 129. Defendants now move to have the order of dismissal vacated, and to have the motion for a new trial determined upon the merits, because the cáse has since been settled and signed as required. Obviously the present motion is addressed to the discretion of the court, and if it appears that, in any event, the motion for a new trial must be dismissed, this discretion should not be exercised in defendants’ favor. It appears from the affidavit of Mr. Davenport, one of plaintiff’s counsel, in opposition to the present motion, that the hearing on the reference directed by the interlocutory judgment was noticed for March 7, 1892, and that it was proceeded with at that time. This is nowhere challenged. It likewise appears from the affidavit of Mr. Darlington, defendant’s counsel, that the motion for a new trial was not made until March 14, 1892, seven days after the hearing before the referee had commenced. Section 1001 of the Code of Civ. Pro. is explicit that a motion for a new trial, for the purpose of reviewing an interlocutory judgment, must be made before the commencement of the hearing directed by the judgment. Defendant’s motion for a new trial was therefore not made in season, and upon that ground we cannot entertain and determine it. Church v. Kidd, 3 Hun, 254; Produce Bank v. Morton, 10 Jones & Sp., 124; Baylies on New Trials and Appeals, p. 515.

Motion denied, with costs.


author: Hardin, P. J.

text:
    Jackson Montgomery, as Sole Overseer of the Poor of the Town of Spencer, Resp’t, v. Marcellus C. Odell, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1893.)

      1. Costs—Collection.
    An execution cannot be issued upon a judgment against an overseer of the poor in his official capacity,
    3. Same.
    Such judgment may be collected of the town for which the overseer acts.
    3. Same.
    In such case, where the town has been indemnified by a deposit by informers, it may reimburse itself out of such deposit.
    4. Same.
    The part of the deposit not needed for this purpose may be claimed by the perso'ns making it.
    Appeal from an order of the Broome county special term denying a motion “ for an order directing the county treasurer of Tioga county to pay to the attorney for the defendant herein, from the said money so deposited with him, the sum of one hundred and sixty-four dollars and thirty-four cents ($164.34).”

      Edward E. Dean, for app’lt; W. Marlin Jones, for resp’t
   Hardin, P. J.

This action was brought by an officer in his ■official capacity, and no execution can be issued upon a judgment recovered against him in his official capacity. Section 1931 of the Code of Civil Procedure. Such a judgment as has been entered in this action may be collected of the town for which the plaintiff, as overseer, acts. Thayer v. Lewis, 4 Denio., 273; Avery v. Slack, 19 Wend., 50; The People v. The Board of Supervisors of Delaware County, 12 How., 50. The money deposited with the county treasurer was placed there by the informers; they are not plaintiffs in the action; no judgment has been rendered against them. The money needed to indemnify the town against any loss it may sustain by reason of. being obliged to pay any judgment rendered in this action, may be claimed by the town or the officer in its behalf. Such portion of the money as shall not be need to indemnify the town may be claimed by the persons making the deposit. In those controversies the defendant has no vested interest. Nothing is shown by the papers presented upon the motion to indicate that the defendant has not a perfect remedy for the recovery of the costs awarded to him by pursuing the usual methods to enforce judgments in such a case as this. These views, together with those suggested in the opinion of Parker, J., at special term, lead me to advise an affirmance of the order.

Order affirmed with $10 costs and disbursements.

Merwin, J., concurs; Martin, J., not voting.

Rew York State Reporter, Yol. 56. [Sur.Ct.


author: Kehhedt, S.

text:
    In the Matter of the Assessment of the Collateral Inheritance Tax on the Estate of Eliza C. Doty, Deceased.

      (Surrogate’s Court, Madison County,

      Filed December 27, 1893.)

    1. Tax—Collateral inheritaxce.
    Where a clause in a will recites that a legacy is given in view, and in consideration, of the legatee’s unremitting care and attention to the testatrix during her'years of sickness without asking any reward for services rendered, such legacy as taxable.
    3. Same.
    In order .to be exempt, the legacy must be in payment of a legally enforceable debt.
    3. Same.
    The court, in ascertaining whether a legacy is, or is not, taxable, has the right to determine, not only from the provisions of the will but by extrinsic facts, if necessary, whether it is a voluntary gift or in payment of a legally enforceable debt.
    4. Same.
    In such case, the legatee, if he desires to escape the payment of the tax, must establish his debt against the estate, have it paid by the executor in the the usual manner, and let the legacy to him go to the residuary estate.

      Harvey S. Bedell, for app’lt; Charles A. Hitchcock, for People.
   Kehhedt, S.

This proceeding is an appeal from the appraisal and assessment of the collateral inheritance tax of $115.22, upon the legacy given by the will of the deceased to Dr. C. C. Reid, of Rome, R. Y. _

_ The subdivision of the will upon which the question arises is as follows : “ I hold a paid-up insurance ' policy on my husband, R. 5. Doty’s life, of -$2,320. I now add $180, making the sum of $2,500, which I freely give and bequeath to my true friend, Dr. G. C. Reid, of Rome, R. Y., in view and in consideration of his unremitting care and attention to me during my years of sickness without asking any reward for services rendered, as he knew my means were somewhat limited.”

The appellant insists that the legacy in question is not taxable upon the ground that he had in fact rendered professional services for the deceased at some period of her life for which she had not paid. Upon the hearing he offered to prove such services, the time when, the amount thereof and the circumstances under which they were performed; but the surrogate held that the proof offered to establish these facts was incompetent, and excluded it; so that the only question to be determined is whether the legacy, on account of the reasons assigned in the will for the bequest, is taxable. We.must hold it liable to the tax assessed for the following reasons: The appellant did not appear before the appraiser and establish any indebtedness on the part of the deceased to him for professional services or otherwise, nor did he, upon the appeal before the surrogate, prove that he had any valid debt against her. Ro indebtedness being established which could be enforced against her estate, the legacy was a voluntary gift on the part of Mrs. Doty, and, therefore, is not exempt from the payment of the tax prescribed by law.

The estate which passes to an heir or legatee, and upon which a tax is to be assessed, is the amount which remains to be distributed after all the debts and funeral expenses are paid. Hence the existence of a claim which the testator might be honorably but not legally bound to pay is insufficient; it must be one to which there is no legal defense and which the creditor can enforce by legal proceedings. If this were not the legal rule, a testator might either designedly or otherwise defeat the object of the statute and render it practically useless by simply reciting in his will that the legacy is in consideration of care, attention,-kindness, favors received from, or services performed by, the legatee at some period of the testator’s life. The reasons which a testator may give for making a legacy, while appropriate in explanation of his motives, cannot be made use of either by himself' or his legatee to shield a legacy from taxation, because a legacy implies a bounty and not the payment of a debt. Hence the court in ascertaining whether a legacy is taxable or not has the right to determine, not only from the provisions of the will but by extrinsic facts if necessary, whether it is a voluntary gift or in payment of a legally enforceable debt; and if it appears that the legacy was pure gratuity, the- legatee, if he accepts it, must take it subject to the conditions upon which it is given, and subject also to the conditions which the law has impressed upon it. The payment of a tax cannot.be avoided by the mere phraseology of the will. Declarations of the testator cannot rise above the law and abrogate its provisions. The tax cannot be eluded by the use of words not necessary to make the gift effective. If the alleged debt is not admitted by the executor, or is denied by him, it is the duty of the legatee to establish his debt, if he have any, either by legal proceedings against the executor or by such other proceedings before the surrogate as will enable the court to ascertain its validity and thereby determine whether the. legacy exceeds the indebtedness, and, if so, to assess a tax upon the excess. If a testator makes a bequest or devise of' property to his executors or trustees in lieu of their legal commissions and allowances, the excess beyond a reasonable compensation for their services is liable to a tax, and we know of no good reason why a legacy, in payment for services, care, attention rendered a testator, should not be placed upon the same basis. This course protects the state from fraud and prevents legatees from avoiding the tax which the statute has demanded. Ho injustice is done the legatee by adopting this course,' because it is optional with him whether he will accept the legacy with whatever conditions and burdens may be attached to it, or to enforce his claim against the estate. >For acts of kindness shown, for favors received, for some act done at an opportune moment, for many nameless things that were beneficial to him, a testator may, at the time of making his will, feel exceeding grateful, and think it his duty to express his appreciation and remembrance of them by legacies to those who have rendered them ; but unless some legal and enforcible claim exist against the testator by reason of them, a legacy thus given in grateful recognitiorr of the kindly act of friends and relatives should be considered a bounty and not the payment of a debt, unless the debt is in some manner established to the satisfaction of the court, tmd for this reason should not be exempt from taxation.

If the above is a correct statement of the law it follows that the legacy to Dr. Eeid is taxable because there is no evidence that it was given in payment of a valid debt, but solely in view of his unremitting care and attention to the testatrix. The words “ I freely give and bequeath ” indicate that the deceased understood that the appellant had no legal claim against her, but notwithstanding this fact she desired to fittingly recognize the value of his services to her. If she believed that she was indebted to Dr. Eeid in a legal sense, but that the debt could not be enforced against her or her estate by reasons of the statute of limitations if interposed as a defense, she could have revived the debt by proper allegations for that purpose in her will. So too the appellant has recognized the legacy as a gift and not the payment of a debt because he had presented no claim for any indebtedness to the ex-: ecutor, nor did he appear before the appraiser and claim that his legacy was exempt from taxation by reason of any debt he had against the estate. He should, therefore, be deemed to have elected to accept the legacy as a gift and should be estopped from asserting the contrary ar the present time after his refusal or failure to avail himself of the several opportunities offered him by the law to establish his claim, if he had any. No conclusion can be drawn from his conduct save that he accepted the legacy upon the understanding and purpose expressed in the will and no conclusion can be drawn from the will except that the legacy was a mere gratuity, in recognition of services rendered the deceased when she was in limited circumstances, and without expectation of payment. As our records show, Mrs. Doty was worth $20,000 at her death, it will therefore be presumed that if she supposed that Dr. Eeid had any legal claim against her she would have paid him and it will also be presumed for the same reason that if Dr. Eeid had a valid debt against her he would have collected it in her life time. These facts alone, even if she had made no explanation in relation to the bequest to him, are very strong evidence of the non-existence of any legal indebtedness to Dr. Eeid and suggest the real motive and intent of the legacy as well as the reason why Dr. Eeid never attempted to collect any pretended debt against Mrs. Doty. ’ It was in her power to have exempted this legacy from taxation at his expense- by directing that the tax thereon be paid as part of the expenses of administration and not be deducted from the legacy; but she chose to bestow her bounty subject to such conditions as the statute might impose upon it.

It is immaterial whether the law or the testator attaches conditions to testamentary gifts, the legatee cannot take a benefit under the will and refuse the burden imposed oh it. By accepting the provisions of the will the appellant has assented not only to the reasons, purposes and objects of Mrs. Doty in making the bequest to him, as expressed in the will, but to the terms and conditions which the law has annexed to it, and has surrendered every right which he may have had or asserted in the courts against her estate, which was inconsistent with the provisions of the will and the terms and conditions attached to it and forming the consideration and motive of the legacy. The appellant was put to his election, either to establish his claim for professional services, or to accept the bounty which the deceased gave him in recognition of his kindness to her. By neglecting to present any account to the executor, or prove any claim against the estate, and having accepted the gratuity which the deceased provided for him in her will it was the duty of the executor on its payment to him to deduct therefrom the tax which had been assessed by the surrogate. If he desii’ed to escape the payment of the tax, or was dissatisfied with the amount of the legacy, he should have established his debt if he had any against the estate and had it paid by the executor in the usual manner and let tKe legacy to him go into the residuary assets.

“ The times have been,
That, when the brains were out, the man would die,
And there an end; but now they rise again.
With twenty mortal murders on their crowns,
And push us from our stools.”

So in the settlement of estates the legal skeletons of stale claims and outlawed demands stalk forth from their charnel houses and their graves and seek to push from their stools the guests whom the testator has invited to the feast.

This appeal is therefore dismissed, but as the practice in this class of proceedings has not been very clearly settled by the courts, without costs to the appellant.


author: Vanee, S.

text:
    In the Matter of the Application of Edgar T. Phelps for leave to issue executions against the property of Robert Wallace, Deceased.

      (Surrogate’s Court, St. Lawrence County.

      Filed January 2, 1894.)

    1. Execution—Leave to issue.
    An application for leave to issue an execution upon a transcripted justice’s judgment, may be made before the expiration of three years after the issuing of letters of administration.

      2. Same.
    The better practice, in such case, is to apply first to the county court, in which all questions concerning the validity of the judgment can be tested.

      Swift & Bell, for petitioner; 0. A. Boynton, for adm’x.
   Vanee, S.

This is an application for leave to issue executions upon two judgments, recovered in justice court, in favor of the petitioner against Robert Wallace, now deceased, as follows:

On December 23, 1886, for $402.05, a transcript of which was filed with the county clerk the same day and upon which, it is claimed, fifty dollars was paid December 14, 1888, and the other for $184.80 May 19, 1891, transcript filed May 21, 1891. Robert Wallace died January 16, 1892, and letters of administration upon his estate were issued by the surrogate of St. Lawrence county to Maria Wallace, February 5, 1892.

The application is opposed on the ground that under § 1380 of the Code of Civil Procedure the decree sought cannot be granted until three years after the issuing of letters of administration. If the lien of the petitioner’s judgments was created as prescribed in § 1251 of the Code, the objection must be sustained.

Section 1380, so far as applicable to this case, reads as follows: “ After the expiration of one year from the death of a party against whom a final judgment for a sum of money or directing the payment of a sum of money is rendered, the judgment may be enforced by execution against any property upon which it is a lien, with like effect as if the judgment debtor was still living, but such an execution shall not be issued unless an order granting leave to issue it is procured from the court from which execution is to be issued, and a decree to the same effect is procured from a surrogate’s court of this state which has duly granted letters testamentary or letters of administration upon the estate of the deceased judgment debtor. Where the lien of the judgment was created as prescribed in §1251 of this act, neither the order nor the decree can be made until the expiration of three years after letters testamentary or letters of administration have been duly granted upon the estate of the decedent and for that purpose such lien existing at decedent’s death, continues for three years and six months thereafter, notwithstanding the previous expiration of ten years from the filing of the judgment roll.”

It is clearly apparent that the section above cited treats of two classes of judgments. In one class a proceeding such as the one now before this court may be instituted at any time after one year from the death of the party, while in the other class the commencement of such proceeding must be deferred until after the expiration of three years from the granting of letters testamentary or of administration upon the estate of the decedent.. The second class includes all judgments where the lien was created as prescribed in § 1251. Turning to that section it reads thus: “Except as otherwise specially prescribed by law, a judgment hereafter 2’endered, which is docketed in the county clerk’s office, as prescribed in this article, binds and is a charge upon for ten years after filing the judgment-roll and no longer the real property and chattels real in that county, which the judgment debtor has at the time of so docketing it, or which he acquires at any time afterwards, and within the ten years.”

The “ al’ticle ” referred to in the section last cited covers §§ 1245 to 1272, both inclusive, of the Code of Civil Procedure. Only §§ 1245-6 and 7 relate to the question under consideration.

Section 1245 provides that “ each county clerk must keep one or more books in which he must docket, in its regular order, and according to its priority, each judgment which he is required by this article to docket.” Section 1246 provides that each clerk, specified in the last section, must, when he files a judgment-roll, upon a judgment rendered in a court of which he is clerk, docket the j udgment by entering in the proper docket book the particulars therein enumerated. Section 1247 is as follows: “A clerk, with whom a judgment roll is filed, upon a judgment docketed as prescribed in the last section, must furnish, to any person applying therefor and paying the fees allowed by law, one or more transcripts of the docket of the judgment, attested by his signature. A county clerk to whom such a transcript is presented must, upon payment of the fees therefor, immediately file it, and docket the judgment, as prescribed in the last section, in the appropriate docket book kept in his office.” The foregoing are the only provisions prescribing the docketing of judgments found in the article of the Code which includes § 1251.

An examination of these sections will convince the careful reader that they relate only to judgments rendered in a court of record. The judgments of- the petitioner are not such; each was rendered in a court of the justice of the peace. They were docketed in the county clerk’s office not as prescribed in any of the sections above cited, but in accordance with the provisions of § 3017. The lien of the petitioner’s judgments not having been created as prescribed in § 1251, the three years’ limitation of § 1380 is not applicable to them. This conclusion gives meaning and effect to each of the provisions of § 1380. The limitation of one year after the death of a party applies to judgments rendered in courts not of record, transcripts of which have been filed in the office of the county clerk, while the limitation of three years after issuing letters applies to judgments which were originally rendered in courts of record.

It is strongly urged that the lien of the petitioner’s judgments is for ten years after the filing of the transcript, and that they should therefore be included in the second class of judgments mentioned in § 1380. I am not prepared to adopt the proposition that under the provisions of the Code of Civil Procedure the petitioner's judgments are a lien for ten years after the filing of the transcripts thereof in the office of the county clerk. I am aware that there are cases so holding. Townsend v. Tolhurst, 10 N. Y. Supp., 378 ; 32 St. Rep., 21; Matter of Gates, 21 N. Y. Supp., 576. These cases are based on the authority of Waltermire v. Westover, 14 N. Y., 16. The last named case arose upon a judgment docketed under the provisions of the Bevised Statutes, which were that a justice’s judgment docketed by a county clerk “ shall be a lien on the real estate of the defendant within the county in the same manner and with like effect as if such judgment had been in the court of common pleas." Judge Selden, in delivering the opinion of the court, says: “The words, ‘in the same manner and with the like effect,’ are broad and comprehensive, and seem intended to place judgments in justices' courts when docketed upon the same footing in all respects, as to the lien created, with those of the common pleas.” The lien of a judgment of the court of common pleas was by statute declared to exist for ten years. These statutory provisions taken together made it clear that the lien of a justices’ judgment docketed in the county clerk’s office continued ■ for ten years, and the only question in the case was whether the six years statute of limitations, then existing as to such judgments, deprived the plaintiffs of the right of execution.

The provision of the Eevised Statute above quoted was repealed when the Code of Procedure was adopted. The last named act made the statute of limitations, as applied to justices’ júdgmeflts, twenty years, and providing that from the time of filing a transcript thereof in the office of the county clerk, the judgment shall be a judgment of the county court.” Under that Code the questions now under consideration could not possibly arise. Upon the adoption of the Code of Civil Procedure the provisions of the Code of Procedure were repealed, and the statute of limitations, as applied to justices’ judgments, made six years, as under the Eevised Statutes. That this limitation of six years attaches to such judgments after the filing of the transcripts in the county clerk’s office is now well settled. Dieffenbach v. Roch, 112 N. Y., 621; 21 St. Rep., 570. The provision of the Code of Civil Procedure concerning the filing óf transcripts of such judgments is found in § 3017, and is as follows: “ The county clerk of the county, in which the judgment was rendered, must, upon the presentatiou of the transcript and the payment of the fees therefor, endorse thereupon the date of its receipt, file it in his office, and docket the judgment, as of the time of the receipt of the transcript, in the book kept by him for that purpose, as prescribed in article 3 of title 1 of chapter 11 of this act. Thenceforth the judgment is deemed a judgment of the county court of that county, and must be enforced accordingly, except,” etc. It is very significant that the legislature, in substituting one Code for the other, changed the language “shall be a judgment of the county,” of the old Code, to that of “is deemedetc., in the new, and that, while as to the statute of limitations it returned to the provisions of the Eevised Statutes, it failed to re-enact those provisions which made such docketed judgment a lien for ten years. The phrase “ as prescribed by article third,” etc., m the section last quoted, brings forward and incorporates into § 3017 the provisions of article 3 of title 1 of chapter 11, as to the keeping of a judgment book and the docketing of judgments .therein, but it does not' carry- back and insert into that article the provisions of- § 3017 for the filing of transcripts of justices’ judgments in the county clerk’s office. The last named provision is not, therefore, referred to by § 1251.

If I am correct in my construction of the meaning and extent of § 1251, that it does not include judgments rendered in justice’s courts, transcripts of which have been filed in the county clerk’s office, there is no legislation, which I can find, which, in direct terms, prescribes the duration of the lien of such docketed judgment, and a lien once established would be perpetual unless extinguished by payment or the statute of limitations.

After a careful study of all the provisions of the Code of Civil Procedure, and of all reported cases bearing in any wise upon the question, I have reached the conclusion that the only effect of filing a transcript of a justices’ judgment in the clerk’s office is to enlarge the field for its enforcement. It adds nothing to its longevity for any purpose. It ceases to be enforceable in any way in six years after its rendition. This construction removes the anomaly which some of the decisions present of having a judgment, which by operation of the statute of limitation is dead, as a cause of action yet alive so as to be a lien on the real estate of the judgment debtor.

This is in accord with the conclusions of the general term of the New York common pleas in Herrman v. Stalp, 24 St. Rep., 40. While it has been held that it is not material to which court application is first made in these cases, I deem it to be the better practice to apply first to the county court in which all questions concerning the validity of the judgment can be tested, and such practice will hereafter be required in this court.

I will, therefore, withhold the granting of the decree asked for until the decision of the county court upon the application made to it for an order granting leave to issue executions on said judgments.

It is, therefore, ordered that this proceeding be adjourned until the 15th day of January, 1894, at 10 A. M., to allow the petitioner opportunity to have the questions here considered submitted to that court.


author: Herrick, J.

text:
    The People ex rel. Reginald Woodward v. Simon W. Rosendale, Attorney-General.

      (Supreme Court, Special Term, Albany County,

      Filed October 30, 1893.)

    1, Mandamus—When proper.

      Mandamus is the appropriate remedy to compel the performance of executive and ministerial duties by public officers.
    8. Same—Insurance certificate.
    If the attorney-general, in determining whether a proposed corporation is for the purpose of carrying on a business permitted by the statute, falls into an error as to what the law is, mandamus is the most speedy and simple, if not the only remedy.
    3. Same.
    His duties in this matter are entirely ministerial. 0
    "4. Same.
    The fact that, to discharge such duties, he is required to decide questions of law, does not render such duties judicial.
    6. Insurance law—Generad purpose.
    The general purpose of the insurance law is not to limit or restrain the carrying on of any, but to foster and protect all, lawful Insurance business.
    6. Same.
    In this case, it was held that the proposed business was not contrary to public policy or good morals, or in violation of any business principle.

      Woodward & Mayer, for relator; S. W. Bosendale, for resp’t.
   Herrick, J.

The relator, with others, signed and executed a certificate or declaration of intention to incorporate an insurance company; this certificate or declaration of intention, and proposed charter were transmitted to the superintendent of insurance of the state and application made to him for a certificate of incorporation. The superintendent of insurance transmitted the same for examination and certification to the defendant, as attorney-general of the- state, pursuant to § 10, chap. 725, of the Laws of 1893. The attorney-general refused to attach his certificate, because as stated by him in a communication to the superintendent of insurance it “is not a kind of casualty insurance, such as is specified in any of the sub-divisions of § 70 ; nor is it a kind of insurance that can be lawfully carried on under said section. I therefore decline to attach my certificate of approval to said proposed declaration and charter.”

The relator in behalf of himself and the other signers to such declaration of intention to incorporate, applies for a mandamus against the attorney-general to compel him to attach his official certificate to such declaration of intention and charter. The first question that is raised is as to whether a ma,ndamus is the proper •remedy. A mandamus is a fit and proper remedy to enforce the performance of an official duty by a public officer, provided the act that is asked to be performed is not a judicial one, or one that is within the discretion of the officer proceeded against, ordinarily the performance of such duties will not be enforced by mandamus, any further than to compel action, without determining what such action may be. It is the appropriate remedy to compel the performance of executive and ministerial duties by public officers. People v. Mead, 24 N. Y., 114-119. Ministerial duty is one in respect to which nothing is left to discretion, it is a simple, definite duty, arising under conditions admitted or proved to exist and imposed by law. State of Mississippi v. Johnson, 71 U. S. 475-98.

The fact that the officer uses judgment and discretion in the performance of his duties does not make .his action or powers judicial in their character. People v. Contracting Board, 27 N. Y., 378-84; The People ex rel. Corwin v. Walters, 68 N. Y., 403-10. It seems to me that the duties of the attorney-general in this matter are entirely ministerial. The law reads: “ The superintendent shall not file such declaration and charter, or grant such certificate ' of authority until such declaration and charter shall have been examined by the attorney-general, and certified by him to the superintendent to be in accordance with the requirements of law.” Section 10, chap. 725 of the laws of 1893.

The duty is imposed upon him of seeing whether the proposed charter is in proper form, and whether the proposed incorporation is for the purpose of carrying on any of the binds of insurance allowed by law. The fact that to enable him to discharge the duties thus imposed on him, he is required to decide questions of law, I do not think renders such duties judicial ones. A great many -of the ministerial duties imposed upon public officers require in the first instance the determination of some question of law, as for instance, the secretary of state in filing certificates of incorporation has to determine whether the purposes of the proposed incorporation are within the statute, and whether the articles are in proper legal form, and the filing by him of certificates of incorporation has been enforced by mandamus. The People ex rel. v. Nelson, 46 N. Y., 477; The People ex rel. M. C. Co. v. Rice, 138 N. Y., 151; 51 St. St. Rep., 853. So also the comptroller of the state has been compelled by mandamus to perform acts, which required in the first instance the determination by him of some q uestions of law, as to whether it was his duty to do what was asked of him. People ex rel. Bockes v. Wemple, 115 N. Y., 302 ; 26 St. Rep., 330; People ex rel. Gilbert v. Wemple, 125 N. Y., 485; 36 St. Rep., 20; See also People v. Allen 42 Allen 404.

In this case it is not a matter of discretion with the attorney-general ; if the proposed incorporators have complied with the law as to the form of their application, and their business is a lawful one within the insurance statute, then they are entitled as a matter pf right to their certificate of incorporation, and as they cannot receive that except upon the certificate of the attorney-general, it is his duty, when the law has been complied with, to grant such certificate; that duty cannot be enforced by action; neither can it by certiorari; only a judicial determination is re viewable by certiorari. People ex rel. Leo v. Hill, 126 N. Y., 487-506 37 St. Rep., 792. Certiorari is a proceeding to review the acts of inferior tribunals and judicial officers, and to bring up the records of their proceedings to see whether their actions have been in accordance with the law; but it is not a proceeding to compel officers to discharge their official duties. The fact that the attorn ey-gen eral is a law officer of the state does not make his duties judicial any more than similar duties to be performed by the secretary of state, or the duties of the comptroller, in the cases above cited, or the examination of such declarations and proposed charters by the superintendent of insurance prior to the passage of chapter 728 of the Laws of 1893, and granting a certificate thereon, are judicial in their character. It is the duty to be discharged, not the person discharging the duty, that determines whether it is judicial in its nature or not.

I have not been cited to any case by either party precisely in point, and in the brief examination that I have been able to give to the subject, the nearest approach to it that I have been able to find is that of The People v. Tremain, 17 How. Pr., 10. That was an application for a mandamus to compel the attorney-general to give a certificate pursuant to the following provision of the statute: “ Whenever costs shall be adjudged against the People in any civil suit or proceeding, instituted by any officer duly authorized for that purpose, it shall be the duty of the comptroller to draw upon the treasurer for the amount thereof, upon the production of an authenticated copy of the record of judgment, with a taxed bill thereof; and upon a certificate of the attorney-general that such suit was duly instituted as by law required.”" It will be seen that under that statute the attorney-general was required to pass upon a question of law. The court of special term held that a mandamus was an appropriate remedy; the order of the court, however, was reversed at general term (same, page 142) upon another point; the court refusing to pass upon the question as to whether proceeding by mandamus was proper.

The enforcement of duties to be performed by state officers by mandamus has. been so long the practice of the courts, and in recent years, at least, unchallenged, as evidenced by the cases cited herein, that I can see no reason to depart from it now, and the fact that in this case, it is the attorney-general who.is proceeded against, makes no difference: he is not acting as a court.

If in determining whether a proposed corporation is for the purpose of carrying on a business permitted by the statute, he falls into an error as to what the law is, as did the secretary of state and comptroller, in the cases hereinbefore cited, and refuses to grant the certificate, the law cau be determined and his compliance therewith enforced, as was done in those cases. Mandamus is the most speedy and simple, if not the only, remedy in such cases. The objection, therefore, as to the form of the remedy must, be overruled. The objection upon the merits made by the attorney-general to attaching the certificate is that the application is made under subdivision 8 of § 70 of the Insurance Law, and that in his opinion this is not a kind of casualty insurance such as is specified in any of the subdivisions of § 70; nor is it the kind of insurance that can be lawfully carried on under said section.” The business proposed to be carried on as set forth in the proposed charter of the relator and his associates, as described in the proposed charter, is as follows: “ Section 3. The kind of business to be undertaken and carried on by said company shall be: The inspection and certification as to the sanitary conditions of buildings and premises, the insurance of owners, lessees, or tenants of buildings and premises against loss or damage to life, or health from causes arising from the imperfect sanitary conditions of such buildings or premises; the insurance of landlords, lessees, tenants or occupants of houses, flats, or office buildings, or other structures from loss occasioned by imperfect plumbing, bursting pipes, or leaks, to walls, ceilings, furniture or goods and for the doing of such other business as may be lawfully connected with the business of sanitary inspection, care and insurance at such rates and upon such conditions as may be ordered and provided by the directors of said company; under subdivision 8 of § 70, art. 11, of chap. 690 of the Laws of 1892.”

Section 70 of chapter 690 of the Laws of 1892, provides for the incorporation of life, health, casualty and fidelity insurance companies, and the first seven subdivisions thereof specifies various kinds of casualties that maybe insured against, none of them include those specified in the proposed charter of incorporation in question here. The 8th subdivision of § 70 reads as follows: “Against any other casualty specified in the charter which may lawfully be the subject of insurance,” and it is upon the construction to be given to the language of that subdivision that this controversy arises. The general purpose of the insurance law,” (chapter 690 of the Laws of 1892, as I understand it, is to regulate and supervise the business of insurance, and bring under the superintendence and control of the state authorities all corporations desiring to engage, or engaged, in insurance business in this state. It was not intended to limit or restrain the -carrying on of any lawful insurance business, but it was intended to foster and protect, and not to limit or restrict it; and in interpreting and construing the law, those general purposes must be kept in view.

It classifies the different kinds of insurance corporations that may be organized under the laws of the state as life, health, casualty, fire, marine, title, credit, fraternal, town and county, co-operative insurance companies, and the insurance of domestic animals, and provides how corporations for conducting the different kinds of business so classified shall be formed and governed.

Article 11 of said law contains provisions in relation to life, health and casualty corporations. Section 70 before referred to, is the first section of said article and sets forth in the first 7 subdivisions, life, health, fidelity, and all the commonly known kinds of casualties originally insured against; and the legislature, apparently out of abundant precaution, not to shut out any kind of lawful insurance, and to bring all kinds of casualty insurance, within the provisions of article 11 of said law, added the 8th subdivision ; and but for such 8th subdivision the only kind of casualties that corporations could be formed to- insure against, would have been those mentioned in the first seven subdivisions, indeed the construction contended for by the defendant is, that notwithstanding such 8th subdivision, the only casualties that can be insured against are those mentioned in the preceding seven; the construction contended for by the relator is, that not only can they be incorporated to insure against casualties specifically named in the said seven subdivisions, but also for any and all others that are not unlawful.

Either construction contended for, by the parties hereto, is open to objection; the construction contended for by the attorney-general necessarily confines the insurance business of this state to the kinds mentioned in the first seven subdivisions, and renders the eighth subdivision meaningless and of no effect; it confines and restricts casualties “which may be the lawful subjects of insurance,” as authorized by subdivision eight, to those specified in the preceding seven subdivisions. On the other hand it is said that the construction of subdivision eight contended for by the relator, renders the preceding seven subdivisions useless, and that in effect it reduces § 70 to this, that thirteen or more persons may become a corporation for the purpose of insuring against any casualty which may be lawfully the subject of insurance. It is to be presumed that the legislature acted deliberately, knew what it was enacting, and that a purpose was intended to be subserved by each of these subdivisions; full force and effect should be given to the intent of the legislature.

The construction contended for by the relator, while it does not nullify the first seven subdivisions, yet renders them unnecessary, except as specific declarations that the kinds of insurance therein mentioned are lawful, and leaves no question for the court as to the legality of such kinds of insurance, leaves an avenue for the growth of the insurance business in hitherto undeveloped fields, where the same is not contrary to the provisions of any statute, or the common law, and brings all corporations formed to insure against casualties of every description under the provisions of article 11 o fthe law; this construction gives some force and effect to all the subdivisions, whereas the construction of subdivision eight contended for by the defendant, absolutely nullifies it, renders it of no force and effect, and limits the growth of insurance, and the subjects of insurance, for which a company can be incorporated in this state, to those mentioned in the first seven subdivisions; that I do not think was the intention of the statute.

I have been referred to no law prohibiting the kind of insurance contemplated by the proposed charter.

And without discussing it, suffice it for me to say, that I do not see' that the proposed business is contrary to public policy, to good morals, oris in violation of any business principle.

As the facts are not disputed, let a peremptory mandamus issue as prayed for by relator, without costs.


author: Follett, J.

text:
    Washington Belt et al., App’lts, v. The American Central Insurance Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December, 1893.)

    Insurance—Fire co-insurance.
    A change may be made in the co-insurance clause during the running of the policy, if authorized by the insured’s agent and ratified by himself.
    Appeal from a judgment entered on a decision of the special term.
    The defendant is a corporation organized under the Laws of the State of Missouri, and in July ‘ and August, 1892, Ackerman, Deyo & Hilliard were its general ag'ents in the city of Hew York, with power to bind it by contracts of insurance. During this period Brown & Skinner were insurance brokers in the city of Hew York, who were employed by the plaintiffs to procure insurance on their property. July 14th, 1892, the defendant, in consideration of $52.50, through Ackerman, Deyo & Hilliard, insured the plaintiffs’ wool, under policy Ho. 5,934,416, for one year against loss by fire in a sum not exceeding $5,000. Attached to the policy was a stipulation called an eighty per cent, co-insurance clause, of which the following is a copy:
    “ H. Y. Standard Percentage Co-Insurance Clause.
    “If, at the time of the fire, the whole amount of insurance on the property covered by this policy shall be less than eighty per cent, of the actual cash value thereof, this company shall, in case of loss or damage, be liable for only such portion of such loss or damage as the amount insured by this policy shall bear to the said eighty per cent, of the actual cash value of such property.”
    The policy, with the clause attached, was delivered to Brown & Skinner, the agents of the plaintiffs.
    Afterwards the plaintiffs improved the building wherein the property was stored, by reason of which they claimed that they were entitled to have the premium reduced, and on the 26th of August, 1892, their agents, Brown & Skinner, delivered this and other policies issued by Ackerman, Deyo & Hilliard to them for the purpose of having the premium reduced.
    On the delivery of the policy, Ackerman, Deyo & Hilliard delivered a binding slip, of which the following is a copy :
    “Hew York, August 25, 1892.
    “We, the undersigned insurance companies, do hereby insure Belt, Barber & Co. for the amount set opposite our respective names. Subject to the conditions of standard fire insurance policy of the State of Hew York. On stock of wool contained in 120 and 122 Wooster street, H. Y. City, as per policies left with companies for a reduction of the rate.
    “Binding this 26th day of August, at noon.
    “(This memo, to be void on delivery of policies at this office.)
    “Accepted. , Amount.
    “ Company.
    “ 593,416. American Central. $5,000.”
    August 27th, 1892, the property insured was burned. About ten days after the fire the policy was returned to Brown & Skinner, who delivered it to the plaintiffs. When returned it was indorsed as follows:
    “Aug. 22, ’92, rate reduced to 63 per cent, for improvements under slip Ho. 1,483, return premium $18.78 therefor.
    “A. D. & H.”
    The eighty per cent, co-insurance clause was detached and the following clause was substituted in its place:
    “ H. Y. Percentage Co-insurance Clause.
    “ If at the time of the fire, the whole amount of insurance on the property covered by this policy shall be less than the actual cash value thereof, this company shall, in case of loss or damage, be liable for such portion of such loss or damage as the amount insured by this policy shall bear to the actual cash value of such property.
    “Attached to and forming part of policy Ho. 593,416.
    “A. D. & H, Ag’ts,
    “(Signature for Company).”
    When the policy was returned, the binding slip was rendered to Ackerman, Deyo & Hilliard.
    On the 26th of October, the plaintiffs and the insurance companies interested agreed that the damage occasioned by the fire was $87,000. „
    On the 27th of October, 1892, the plainitffs verified and served upon the defendant proofs of loss, by ■ which they claimed $3,294.88, which the defendant, on the 7th of Hovember, 1892, paid, less a reduction for interest, and surrendered the policy, giving the following receipt:
    “$3,294.88. “Hew York City, Nov. 7, 1892.
    “ Received from American Central Insurance Company of St Louis, through Ackerman, Deyo & Hillard, agents, the sum of thirty-two hundred ninety-four and 88 100 dollars, in full settlement, compromise and discharge of all claims and demands for loss and damage -by fire on the 27th day of August, 1892, to the property by policy No. 593,416, Renewal No.--— issued at the agency of said company at New York city, and said policy is hereby surrendered and cancelled.
    “ Amount of loss............................... $3,294 88
    “Discount.................................... 32 94
    “Net draft..................................... $3,261 94
    “Belt, Butler & Co.
    “ W. H. Goldstein & Co.”
    The loss was adjusted upon the basis of a one hundred per cent, co-insurance clause, but had it been adjusted upon the basis of an eighty per cent, co-insurance clause the plaintiffs would have been entitled to receive $4,118.60, a difference of $823-72, to recover which sum this action was brought.

      William H. Hamilton, for app’lt; Michael H. Cardozo, for resp’t
   Follett, J.

When the policy was issued, the plaintiffs' agents knew that it had an eighty per cent, co-insurance clause attached, and what they knew the plaintiffs are deemed in law to have known. Knowing this, the'plaintiffs subsequently received the policy with the rate of premium reduced, a one hundred per cent co-insurance clause substituted, thereafter filed proofs of loss claiming on the basis of the one hundred per cent, co-insurance clause, were paid the full amount of their claim, and surrendered the policy. This, we think, amounted to a ratification of the substitution of the one hundred per cent, co-insurance clause, even if there were no previous authority to make the change, of which” there is some evidence in the case. The presumption arising from the evidence is that the change was either authorized or ratified. There was indorsed on the policy this memorandum:

“ 63 c.; Full Co-in. Cl.: Build, 65 : Stock, 10: Co. full clause.

The evidence tended to show that this indorsement was made by the clerk of Brown & Skinner before the policy was delivered to Ackerman, Deyo & Hilliard for a change of rate. If it were so made by the plaintiffs’ agents, it authorized the substitution of a full or one hundred per cent, co-insurance clause, for the eighty per cent, co-insurance clause. There is no evidence in the case which would sustain a finding that the change was secretly or fraudulently made. What negotiations, if any, were had between the agents which led to the reduction of the premium do not appear.

We think the evidence fails to establish a cause of action in favor of the plaintiffs, and that the judgment dismissing the complaint was right, and should be affirmed, with costs.

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