author: Follett, Ch. J. Bradley, J.

text:
    Enoch C. Swain, Resp’t, v. William H. Schieffelin et al., App’lts.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Damages—Injury to plaintiff's business by sale of poisonous substance.
    Defendants, who are druggists, sold to plaintiff, a caterer, a bottle of “ carlet red,” manufactured by them for the purpose of being used in coloring creams and ices, and represented “that it was absolutely pure and harmless.” Plaintiff used it and sold the creams and ices to about forty different families, customers of his, and about two hundred persons were made sick, with symptoms of arsenical poisoning. In an action for damages, Held, that the measure of damages in such a case was not limited to the difference between the value of the “ carlet red” had it been as warranted, and as it proved to be, but the loss of business and profits and expenses incurred could be recovered.
    Appeal from a judgment of the general term of the supreme court, in the second judicial department, entered on an order made December 8, 1890, which affirmed a judgment in favor of plaintiff entered upon a verdict.

      John C. McGuire, for resp’t; William Jay, for app’lts.

       Affirming 34 St. Rep., 888.

   Follett, Ch. J.

—In 1888 and 1889 the defendants were druggists, and engaged in business at the city of New York. In those years the plaintiff was a manufacturer of ice cream and ices at the city of Brooklyn, which he sold to persons and families for immediate consumption. The defendants knew the character of the business in which the plaintiff was engaged. December 28,1888, the defendants, for two dollars, sold and delivered to the plaintiff a bottle of “ carlet red ” which they had previously manufactured, representing “ that it was absolutely pure and harmless.” The defendants knew that it was purchased for coloring certain kinds of ice creams and ices. One of the defendants testified that the formula for “ carlet red ” is: “ One ounce of red aniline, .half a gallon of alcohol, and two pounds of glycerine, which when mixed makes 96 fluid ounces of carlet red.’ ” March 4, 1889, the plaintiff manufactured some strawberry ice cream and apricot ice, using “ carlet red” to give them color, and sold them to about forty different families, who were customers of his. About 200 persons who ate of the cream and apricot ice were sick with symptoms of arsenical poisoning. An analysis of the “carlet red” showed that it contained arsenic. Some of the persons who ate of these articles became slightly, and others seriously, ill. By reason of the sickness, complaints, and the discovery by the chemists of arsenic in the “ carlet red,” the plaintiff destroyed all of the ice creams and ices colored with that material, and he asserts that the occurrences greatly injured his business. He brings this action to recover, (1), the value of the ice cream and ices destroyed ; and (2), the damages occasioned by the loss of customers, of sales, and profits thereon, subsequent to the occurrences complained of. The trial court submitted the questions of fact to the jury in a charge which was not excepted to in any respect, except as to the rule of damages laid down, and we must determine the case upon the theory that the issues of fact were well found for the plaintiff. The important question presented by this appeal is, what damages was the plaintiff entitled to recover?

The principle on which damages should be assessed is well stated in the recent case of Wakeman v. Wheeler & Wilson Manuf. Co., 101 N. Y., 205, where it is said: “ When it is certain that damages have been caused by a breach of contract, and the only uncertainty is as to their amount, there can rarely be good reason for refusing, on account of such uncertainty, any damages whatever for the breach. A person violating his contract should not be permitted entirely to escape liability because the amount of the damages which he has caused is uncertain. It is not true that loss of profits cannot be allowed as damages for a breach of contract. Losses sustained and gains prevented are proper elements of damage.” That the plaintiff was damaged by reason of the impurity of the carlet red ” has been found by the jury upon conflicting evidence, and the verdict is binding upon this court upon the questions of fact. This injury was brought about by the breach of the contract by the defendants. When one violates his contract or his duty to another, the theory of the law is that compensation shall be made for the injury directly and proximately caused by the breach of contract or duty. Ordinarily, upon the sale and delivery of a chattel accompanied by a warranty of its quality, which is broken,, the measure of damages is the difference between its value had it been as warranted, and as it proved to be. But it seems to be conceded that this rule is not applicable to the case at bar. If it is, the plaintiff was not entitled to recover the value of the property destroyed, but the difference in the value of the “ carlet red ” as it was warranted to be, and as it was found to be, which could not have exceeded the purchase price of two dollars. In case a manufacturer of goods sells them to a purchaser to be used for a particular purpose, which is known by the vendor at the time of the sale, a more liberal rule prevails than in cases where like articles are sold as merchandise, for general purposes. In the former cases profits lost and expenses incurred may be recovered. Passinger v. Thorburn, 34 N. Y., 634; Van Wyck v. Allen, 69 id., 61; White v. Miller, 71 id., 118; White v. Miller, 78 id., 393; Messmore v. The N. Y. Shot & Lead Co., 40 id., 422; Booth v. The Spuyten Duyvil R. M. Co., 60 id., 487.

This broader rule rests on the theory that the vendor having sold the articles with the knowledge that they were purchased for a particular purpose should be held liable for such damages as naturally flow from the breach of his contract and which he, or any reasonable man might-apprehend would follow from the breach.. In the present case the defendants knew the precise use which the “ carlet red ” was to be put to, and we think it is reasonable to hold hold that they should have apprehended that the use by the plaintiff of a poisonous or deleterious article would destroy his business-It seems to us that the natural and probable result of the sale of a poisonous, for a wholesome article, to be used by the purchaser in the preparation of food, to be distributed to and eaten by his patrons, would entail a loss of business and of profit to the purchaser. Had the defendants incorrectly, but without malice, re- ■ ported that the plaintiff had sold unwholesome or poisonous ice cream, they would have been liable for the plaintiff’s loss of custom, Hallock v. Miller, 2 Barb., 630; Bergmann v. Jones, 94 N. Y., 51, although not, in the case supposed, for punitive or exemplary damages. The rules governing the assessment of damages are the same in contract as in tort, unless exemplary damages a.re recoverable. Baker v. Drake, 53 N. Y., 211; 1 Sedg. Dam. (8th ed.), 29, § 30; 2 id., 4, § 429.

In Crain v. Petrie, 6 Hill, 522, an executory contract existed between Petrie and Gage, a butcher, by which the latter agreed to purchase of the former a quantity of mutton. Gage refused to accept of the mutton, because he learned that Crain had sold diseased sheep to Petrie. The action was to recover damages for selling diseased sheep. The plaintiff sought to recover the damages occasioned him by the non-fufillment of Gage’s contract, and also the damages sustained by the refusal of others to purchase mutton of him.

The court, in discussing the right to recover special damages, said that such damages “ must appear to be the legal and natural consequences arising from the tort, and not from the wrongful ac of a third party remotely induced thereby.” * * * “ Th/ the refusal of Gage to receive and sell good and well cured bar shoulders, etc., contrary to a previous arrangement with him, consequence of the reports that the plaintiff 'had purchased a 1 of diseased sheep from the defendant, was a wrongful breach contract by Gage, for which the plaintiff had an adequate rem'p edy against him, and therefore such damages could not be recov> ered against Grain, who sold the sheep.” The court, in its opin' ion, cites Vicars v. Wilcocks, 8 East, 1, and Morris v. Langdale, Bos. & Pull., 284, which lay down the same rule, but these cases have been expressly overruled. Lumley v. Gye, 2 E. & B., 216 Lynch v. Knight, 9 H. L. Cas., 577, 586, 590, 600; Green v. Button 2 C., M. & R., 707; S. C., Tyr. & Gr., 118; Mayne Dam., 4th ed. 661; Stark. S. & L. 4th Eng. ed., 320, 438; 1 Suth. Dam. 68; Smith’s L. C. 464.

The only authorities referred to by the two text writers cited in Crain v. Petrie are the two overruled cases. Petrie's - case is distinguishable from the one at bar in the fact that he did not purchase the sheep to sell to persons who were to use them for food, but he intended to sell them to a butcher who was to sell to consumers; besides, it was not shown in that case that the defendant knew that the plaintiff purchased the sheep for the purpose of having them converted into food, even by others. Again, Petrie did not sell the diseased sheep, so he sustained no loss by reason of their sale.

The case at bar is distinguishable from a class of cases in which the damages sought to be recovered arise from a breach of the contract or of duty, or from the wrongful act of a third person, which breach of contract, duty or wrongful act, may have been remotely caused by the person sued. -In such cases the person injured has a right of action against those who have violated their contract or duty, or have committed a wrongful act, to his injury, but here this plaintiff has no cause of action against his former customers who refused to patronize him because of his sale of poisonous ice cream.

The judgment should be affirmed, with costs.

Bradley, J.

—The jury found that the plaintiff’s product of ice cream, etc., which- became useless by reason of its infection with the compound purchased of the defendants and was destroyed, had the value of fifty dollars. To that extent the damages sustained clearly came within the rule of relief. But the i plaintiff claims further that he was injured in his business by this act of the defendants. And the evidence in its support was that of his average monthly receipts for the year ending in March, 1889, and those for the three months following that time. This, basis of estimate was somewhat speculative or uncertain, as there may within that period of three months have been some other causes for a less average of monthly receipts during such time than for the entire year preceding. But as no exception was taken to the charge as made by the court, or to its refusal to charge on the subject of damages, other than such as went to the right of the plaintiff to recover anything, the question whether the plaintiff should be allowed to recover ^special damages for injury to his business was not specifically or necessarily raised after the close of the evidence. Nor is the exception taken to the denial of the motion to reduce the damages awarded by the verdict available on this review. Oldfield v. N. Y. & H. R. R. Co., 14 N. Y., 310; Standard Oil Co. v. Amazon Ins. Co., 79 id., 506. The only question here in that respect arises upon the exception taken to the reception of the evidence on the subject of the average monthly receipts before referred to of the plaintiff's business. And the admissibility or the inadmissibility of that evidence is dependent upon the question whether or not the plaintiff’s loss, occasioned by injury to his business, may be deemed a proper element of damages. It may be if there was no intermediate ■efficient cause to which the injury may have been imputed. In such case the result usually may be attributed to the primary as the proximate cause. Such was the case of the lighted squib thrown by the party charged into a crowd of people, and then for self protection thrown by one after another until it injured the party who recovered damages for the injury, Scott v. Shepherd, 2 W. Bl., 892; 3 Wilson, 403; and where the boy in escaping the threatened attack of the party pursuing him, ran against and knocked out the faucet of a cask of wine, the pursuing party was held liable for the loss. Vandenburgh v. Truax, 4 Denio, 464. The injurious results which may or ought to be foreseen of a wrongful or negligent act are also deemed the proximate consequences of it. This was illustrated in the familiar case of the person in the balloon descending into the garden under circumstances which invited people to go to his assistance, and in doing so trampled the vegetables, etc., for which he was held liable. Guille v. Swan, 19 Johns., 381. In those cases and others similar in principle, the damages suffered were deemed the proximate result of the wrongful or negligent acts of the parties charged.

In the present case, so far as the plaintiff’s property was injuriously affected or contaminated by the use of the compound sold him by the defendants, the damages were attributable directly to the act complained of, and to that extent he was properly permitted to recover. Jeffrey v. Bigelow, 13 Wend., 518; Mullett v. Mason, L. R., 1 C. P., 559. Beyond that the damages claimed for injury to business and for loss of profits, which the plaintiff may otherwise have realized from his trade, were special and consequential. The question is whether they were the ■natural and proximate result of the act chargeable to the defendants. In Crain v. Petrie, 6 Hill, 522, the defendant was charged with fraudulently selling diseased sheep to the plaintiff, who was engaged in the butchering business and selling mutton. The plaintiff there gave evidence subject to exception, that one Gage who "had agreed to take mutton from him, also other customers of’the plaintiff, declined to do so in consequence of the report that he had purchased the diseased sheep. The court on review held that the reception of the evidence was error; that so far as related to the refusal of Gage to take mutton, it was a breach of contract for which the plaintiff had his remedy against him; and that the discontinuance of purchases by others ■“ resulted’ from a want of confidence in the care, skill or integrity of the plaintiff himself, the people assuming that he might sell the meat of diseased sheep for a good and merchantable article.” And Chief Justice Nelson there said: “The consequential loss which the plaintiff was allowed to prove at the trial was too remote and speculative to come within any established rule on the subject; ” and that “ to maintain a claim for special damages this must appear to be the legal and natural consequence arising from the tort and not from the wrongful act of a third party remotely induced thereby. In other words, the damages must proceed wholly and exclusively from the injury complained of.”

The proposition there, in its relation to the claim founded upon the refusal of Gage to take mutton as he had agreed, is clearly distinguishable in principle from that in the case at bar. The refusal of Gage was a violation of his contract and it might be treated as the efficient and immediate cause of the damages so occasioned to the plaintiff within the. doctrine that when the original wrong is rendered injurious by reason only of the intervention of some independent wrongful act of another the latter will be treated as the proximate cause of the injury, which will be imputed to it alone. Hoey v. Felton, 11 C. B., N. S., 142; Vicars v. Wilcocks, 8 East, 1; Ward v. Weeks, 7 Bing., 211; Terwilliger v. Wands, 17 N. Y., 54; Lowery v. W. U. T. Co., 60 id., 198. This rule was not applicable to his other customers who for like reason had ceased to buy his meat And apparently there is no distinction in principle between the Crain case in that respect and the present one so far as relates to the claim for special damages resulting from the loss or reduction of the business of the plaintiff. And therefore by giving controlling application to this case of the views of Mr. Chief Justice Kelson as broadly as expressed in Crain v. Petrie, the consequential injury to the plaintiff’s business might not be treated as imputed to the act of the defendants as the legal or proximate cause, but would be deemed attributable in that sense to the want of confidence in the care, skill or integrity of the plaintiff.

As has already been observed, there may be in the causation a succession of dependent acts or events through which may be traced the primary as the proximate cause of the resulting injury; and when injurious consequences, which proceed from a wrongful or negligent act, may, or ought to have been foreseen, the author of it is responsible. A dealer in food products, who is known to use deleterious substances in their production, cannot expect much patronage in that line of trade. And it could with ordinary forecast be- foreseén that the supply to him of poisonous compounds to use for such purpose would, if made public, be materially prejudicial to his business. The publicity of the fact of the purchase by him of poisons to be so used would have an effect in that direction similar to that of the report of his use of them for such purpose, and differing, if at all, in degree only.

In the present case, the published imputation that the plaintiff had sold poisonous ice cream seems to have been justified by the fact. And the compound by which his product was so infected was innocently used by the plaintiff upon the faith of the defendants’ representation that it was wholesome. The disposition made of the Crain case was not dependent upon the exception to evidence offered to prove that the customers, other than Gage, had ceased to deal with Petrie. It could rest upon the proposition that the violation by Gage of his contract was the only cause to which the damages resulting from his refusal to take mutton were legally imputable, and for which he alone was liable to Petrie, the plaintiff in that action at the trial, and defendant in error on the .review. And in view of the legal principles to which advertence has been made, the Crain case may properly, and should be, limited to that proposition in its application to the present one. There was here no intermediate wrongful or negligent act to which the consequential injury to the plaintiff, or the special damages .sustained by him, can be imputed. In view of the facts as found by the jury in respect to the nature of the compound, those damages followed according to the ordinary course of events from the ■cause complained of, and may be deemed the legitimate sequence ■of it.

The judgment should be affirmed.

Judgment affirmed, with costs.

Parker, Brown and Landon, JJ., concur with Follett, Ch. J.; Bradley, J., reads opinion, and Vann and Haight, JJ., concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    William L. Hopkins, Resp’t, v. Menzo Marlette, Surviving Administrator, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

      1. Bills akd notes—Payable after death.
    An instrument reading as follows: “ One day from date, for value received, I promise to pay JEL, or bearer, one thousand dollars, with interest, payable at my death," is in form a valid promissory note.
    :2. Appeal—Conflicting evidence.
    When the evidence is conflicting and contradictory the findings of a referee will not be disturbed on appeal.
    Appeal from a judgment entered in Otsego county on the 30th day of April, 1891, upon- the report of a referee; and also from an order denying defendant’s motion to set aside and vacate the report of the referee and from an order of confirmation of the referee’s report. Plaintiff presented a claim against the defendant .-as administratorthere was an offer to refer and a reference had under the statute and a report was made by the referee awarding to the plaintiff the sum of $1,665.69.

      W. H. Johnson and Melville Keyes, for app’lt; S. S. Edick and C. F. Mayham, for resp’t.
   Hardin, P. J.

—Upon the hearing before the referee the plaintiff produced a promissory note in the following words:

“ Laurens, April 21, 1883.

“ One day from date, for value received, I promise to pay Wm. L. Hopkins, or bearer, one thousand dollars, with interest, payable at my death.

“(Signed) Maria Harrison.”

Recently in two cases decided by the court of appeals such an instrument has been held to be a valid promissory note. Carnwright v. Gray, 127 N. Y., 92; 38 St. Rep., 56; Hegeman v. Moon, 131 N. Y., 462; 43 St. Rep., 662.

Whether the note was genuine or not was made one of -the urincipal questions upon the hearing before the referee. On either side much evidence bearing upon that question was produced. 'The referee saw and heard the witnesses and reached a conclusion' upon their conflicting statements; and applying the rule governing appellate courts in review of such findings upon evidence conflicting and contradictory like that found m the appeal book, we do not feel at liberty to disturb his conclusion. Baird v. Mayor, 96 N. Y., 576; Aldridge v. Aldridge, 120 id., 617; 31 St. Rep., 948; East River National Bank v. Gove, 57 N. Y., 598.

In Aldridge v. Aldridge, supra, it was said that ‘"To justify a reversal it must appear that the findings were against the weight of evidence, or that the proofs so clearly predominated in favor of a contrary result that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion.”

(2) We are of the opinion -that the rulings made by the referee and the exceptions taken thereto present no prejudicial error. The questions of fact and the rulings made by the referee are quite satisfactorily discussed in the opinion of Parker, J., delivered at the September special term in Tioga in deciding the motion to set aside the report of the referee.

(3) No question was made before the special term last mentioned, nor is any made by the appellant in the brief before us as to the award of costs in this action, and we therefore do not pass upon that question.

Judgment and orders affirmed, with costs.

Martin and Merwin, JJ., concur.


author: Merwin, J.

text:
    David Collin et al., Ex’rs, Resp’ts, v. A. Foster Wilcox et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Will—Legacies.
    By testator’s will, among other things, he gave the sum of $1,000 to each of his grandsons, to be paid them on coming of age, and the residue to his children, his daughters to have a life estate only, with remainder to their children. The legacies were directed to be first paid out of the personal and real estate, and the executors were authorized to sell the real estate. Several accountings were had, at which such legacies were directed to be paid when due, and the executors directed to retain the necessary amounts. The managing executor gave to the others a bond for the payment of such legacies to the grandsons, secured by a chattel mortgage arid one on real estaté, and afterward became insolvent, and the executors were unable to collect on said securities sufficient to pay said legacies. From the rest of the estate a certain amount has been collected but not sufficient to make the daughters’ shares equal to what the sons have received, exclusive of the real estate undisposed of. Held, that the executors had no right to limit the lien of the legacies, that their act in setting apart the securities did not exonerate the rest of the estate, and that the grandsons could reach the general fund in preference to the claims of the residuary legatees to apply the same to equalize the residuary payments.
    Appeal from certain portions of a judgment entered in Onondaga county on August 18, 1891, upon the decision of the Onondaga special term, September, 1890.
    The action is brought for the construction of the will of Asel Wilcox and for directions to the plaintiffs as to the administration of the estate.

      Lyman & James, for app’lts; N. R. Chapman and W. S. Andrews, for resp’ts.
   Merwin, J.

—On the 5th of June, 1867, Asel Wilcox, of Manlius, in Onondaga county, died, leaving a will and codicil which were duly proved on June 27, 1867. He left two sons, Franklin- and Asel F., and three daughters. By the ninth clause of the will he gave to his grandson Asel, the son of his son Franklin,, one thousand dollars, to be paid to him upon his arrival at the age of twenty-one years, with interest from one year after his death, and he also provided that “ if he, said Franklin, shall have any other son or sons, or my son Asel F. shall have any son or sons, lawful heirs, before a final distribution of my property, I give and bequeath unto each such grandson the sum of one thousand dollars, to be paid him without interest on arriving at the age of twenty-one years.” By the tenth clause, he gave and devised all the rest and residue of his estate, real and personal, to his five children, to be divided equally between them, the daughters to have only a life estate with remainder over to the children of each. By a prior provision, he directed that his debts and the specific legacies thereinafter named should be first paid out of his personal and real estate. The executors were authorizéd tosed and convey any part or all of his real estate and invest the avails on good landed security by bond and mortgage, but they should not be compelled to sell any of the real estate under five years nor his Sodus Bay estate under ten years from his death.

The appellants upon this appeal are the five sons of Asel F. Wilcox, and the questions here relate to the remedy they have for the collection of their legacies. One was of age when this action was commenced, one has since become of age, and the others are still minors.

The executors named in the codicil were the plaintiffs and Asel F. Wilcox. The testator provided that the latter should have chief charge of the estate. On the 8th August, 1878, an accounting was commenced before the surrogate of Onondaga county by Asel F. Wilcox, as sole managing executor, of his acts and transactions to that date. This accounting was continued from time to time to-June 25, 1877, when a decree was made as of August 8, 1873, stating and allowing the accounts of the executor to that date. By this decree it appears that there was then in the hands of the executor, after crediting him with all payments made, the sum of $51,636.43. Certain payments to Franklin Wilcox upon his share were authorized, and the executor was also authorized to retain certain sums on his own share. He was directed to retain and hold in trust such sum of his own share as shall be necessary to pay one-fifth part of all the legacies to the grandsons of the testator born before the final distribution of the estate, and also to retain and hold in trust so much of the share of Franklin as may be necessary to pay one-fifth of all said legacies. He was directed “ to pay the several legacies of $1,000 each to said grandsons out of the principal of the estate as such grandsons shall respectively arrive at the age of twenty-one years,” and it was provided that in case of diminution of the principal of the estate by the payment of any of those legacies each share would bear and contribute one-fifth of such diminution. He Was also* directed to keep such sums as may from" time to time belong to the respective shares of the daughters “ securely invested, paying over the net income to them, respectively, annually during their natural lives, and to finally distribute to the children of each daughter of the testator the principal money belonging to such share, the same being one equal fifth part of the residuum of the estate after paying the specific and general legacies provided in said will.” Special provision was made in the decree for the payment of the legacy to Asel 0. Wilcox, the oldest grandson.

On the 23d July, 1877, a second accounting was commenced before the surrogate concerning the acts and transactions of said executor from August 8, 1873. A decree was entered oh October 8, 1877, stating and allowing the account to the time of such accounting. At this time there was in the hands of said executor in cash and securities belonging to the estate, including the sum of $2,060.89 of .Franklin Wilcox’s share, and the same amount of the share of the executor, set apart and reserved by the executor for the payment of the grandsons’ legacies, the sum of $31,-057.55. By the decree above referred to it was directed “ that the above sums, amounting to $31,057.55, be held in trust for the purposes mentioned in said will, as adjudged in said former decree in this matter; and that annually, or oftener, the net income thereof be paid to the persons entitled to the same, according to the provisions of said will.”

At the time of the second accounting there was found to be and was in the hands of Asel F. Wilcox, the managing executor, the sum of $7,347.55, which was uninvested and unsecured, and was a part of the principal of the estate. On the 16th December, 1878, Asel F., for the purpose of securing the payment of this sum and interest, executed to all the executors, being said Asel and the plaintiffs, his bond conditioned for the payment of $1,000 of the principal to each of the grandsons entitled to a legacy of that amount, or their representatives, when such legacy should be payable, the balance to the other parties in interest. As collateral security for three-fifths of the amount, a chattel mortgage was given, and for two-fifths a real estate mortgage, which was also to be collateral to the chattel mortgage. It is found by the special term that the executors, in taking this bond and the mortgages, “intended to and did thereby sequestrate and set apart from the principal of said estate the said sum of $7,347.55 as a fund for the payment of the legacies ” to the grandsons. Asel F. was then solvent and the property covered by the mortgages was then of value sufficient to furnish ample security for the payment of the legacies. At this time there were six grandsons, or their representatives, that would in the future be entitled to legacies. " Of these grandsons one was the son of Franklin Wilcox and five were the sons of Asel F. Wilcox. Thereafter and on December 6, 1879, another son, the appellant Willard T. Wilcox, was born to said Asel F.

Since 1879 Asel F. has been insolvent and the executors are unable to collect upon said bond and mortgages sufficient to pay the legacies in full None of the legacies to the sons of Asel have been paid except the defendant A. Foster Wilcox' has received a part.

Asel F. Wilcox withdrew from the active management of the estate in 1880 and turned over to the plaintiffs, his co-executors, all the property and securities of the estate except the chattel mortgage. Since then the plaintiffs have set apart and held in trust for the shares of the daughters under the residuary clause,, securities belonging to the estate to certain amounts, but not sufficient to make the shares of the daughters equal to what the sons have received into the sum of $1,384.37 for each share. Aside-from the property so set apart, there is in the hands of the executors and treated as unappropriated property about the sum of $2,000 of the personal estate, and also real estate undisposed of to the value of from $4,000 to $5,000. Aside from the real estate there is not enough to make the shares of the residuary legatees equal.

It seems to be conceded that the power to sell real estate was by implication a direction to sell. If so, there was an equitable conversion of the real estate into personalty and this is to be borne in mind in construing the will.

I do not understand that the appellants make any claim upon the securities already set apart by the plaintiffs to the shares of the daughters above referred to. The court below in the seventh finding of law found, as matter of law, that they were to be treated as payments to such shares, and to belong absolutely to the daughters and the remaindermen. . This finding is not excepted to. The claim, therefore, of the appellants refers to this unappropriated personal property and the undisposed of real estate. These items are understood to be amply sufficient to provide for the deficiency of the legacies, but not enough for that deficiency and also to make up the daughters’ shares equal to what the sons have received. . .

It was decided by the special term that the grandsons, in the collection of their legacies, were limited to the security furnished by the bond and mortgages of December 16, 1878, and that if enough could not be realized from them to pay the legacies in full, the deficiency could not be made good out of the general estate Whether this conclusion of the special term is correct is the main question here.

By the will, there was no provision for setting apart a fund for the payment of these legacies. They were made,a charge generally upon the estate. In the first decree, there was a provision that these legacies as they became due should be paid from the principal of the estate and when so paid, each share to be diminished accordingly. No fund was directed to be set apart for that special purpose. The • executor was directed to retain and hold in trust so much of his own share as would be necessary to pay one-fifth of the legacies, and a like amount from the share of his brother 'Franklin. The entire amount of the other shares he held, as the daughters were only entitled to the income. The second accounting shows that the executor had retained about $2,000 from his own share and the smea. from that of his brother. The decree directed the whole fund to be held in trust for the purposes mentioned in the former ■decree. There was no setting apart of a fund for the legacies. There was no direction of the court as to the amount or kind of .any investment for that purpose.

So that, for aught I see, the question whether the investment ■of December, 1878, is to have the effect that has been given to it depends upon whether the act of the executors in setting apart this fund is sufficient of itself to exonerate the balance of the estate from the charge which concededly was upon it up to that time.

It is not found, nor does the evidence show, that the security taken was one in which under the law the executors would have had the right to invest a trust fund. That being so, the rule laid down in Leitch v. Wells, 48 N. Y., 585, would be somewhat applicable. It is there said that, in case a fixed sum is bequeathed to executors in trust to pay the income to one party and at his death divide the principal among others, the executors ■cannot, without the consent of the beneficiary, or, in case they are infants without an order of court, set apart and appropriate bank stocks to the satisfaction of the trust and release the residue ■of the estate from its liability to perform the trust.

In 2 Williams on Exrs., 6 Am. ed., 1511, it is said: When a fund has been appropriated for the payment of an annuity given by a will, a question may arise whether the legatee is to suffer the loss consequent on the partial failure of the fund. In cases where the annuity is a charge upon the whole personal estate, it seems clear that the executor cannot affect the legatee’s right to the entire annuity by any appropriation,” and many cases are referred to. If an estate shrinks, whether by devastavit of the executor or otherwise, the loss primarily falls upon the residuary legatee. Baker v. Farmer, L. R., 3 Chan. App. Cases, 537; 2 Williams Ex’rs, 1465; 13 Am. & Eng. Encyc. of Law, 132.

We are of the opinion that the executors had no right to limit the lien of the legacies and that their act in setting apart the bond and mortgages did not exonerate the balance of the estate •and cannot be deemed the equivalent of a payment of the legacies. It follows that the appellants are right in their position, that they can reach the general fund in the hands of the executors in preference to the claims of the residuary legatees to apply the same to ■equalize the residuary payments.

It was apparently claimed by the plaintiffs at the trial that the ■appellant Willard T. Wilcox was not entitled too legacy upon the ground that upon the second accounting there was a final distribution of the property and he was not born until December 6,1879. The special term held to the contrary and no appeal is before us from that part of the judgment It is not necessary therefore to consider the question.

. It follows that the judgment should be modified so as to allow the appellants payment in full of their legacies from any of the testator’s estate remaining in' the executors’ hands, and not covered by the seventh finding of law. The appellants should also have-costs of the action and of the appeal payable from the estate.

Judgment modified, as stated in the opinion and as modified affirmed, with costs to the appellants of the appeal and of the-action payable out of the estate. Judgment to be settled beforeMerwin, J.

Hardin, P. J., and Martin, J., concur.


text:
    Darwin M. Beardslee, Resp’t, v. Vincent W. Hemingway et al., Adm’rs, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Partnership—Liability of estate of deceased partner.
    Plaintiffl’s assignor held certificates of deposit drawing three per cent, issued by a firm of which defendant’s intestate was a partner. After his death said assignor wished to withdraw his money, claiming that he could, get more interest, when the surviving partner agreed to pay more interest! if he would allow it to remain, which he did. There was no agreement as-to the time it should remain and none which would prevent a demand, therefor at any time. Held, that there was no extension of the time of payment which would discharge the estate of the deceased partner.
    3. Same—Insolvency of survivor.
    A creditor may maintain an action to enforce payment from the estate-of a deceased partner without first obtaining judgment against the survivor where the survivor is shown to be insolvent.
    Appeal from judgment entered in Broome county on 24tb August, 1891. The case was tried at Broome circuit, May, 1891r before the court without a jury, and the decision of the court, was in favor of plaintiff for $1,208 and interest at three per cent from December 1, 1889.

      Alex. & A. W. Cumming, for app’lts; Carver, Deyo & Jenkins, for resp’t.
   Merwin, J.

—This action is brought to recover the amount of four certificates of deposit, amounting in the aggregate to $l,208r given by the banking firm of H. Hemingway & Son to P. P. Beardslee, prior to May 14, 1886. The certificates were in th&= usual form and each had the clause, “ interest at three per cent if left six months.” The firm was composed of Harry Hemingway and Eugene B. Hemingway. The former died on May 14r 1886, and the certificates in question were then outstanding. Eugene B. continued and individually carried on the business at. the same place, and also adjusted unsettled copartnership business.

On or about June 15, 1886, there was a conversation between P. P. Beardslee and Eugene B. Hemingway with reference to an increased rate of interest upon the certificates. Beardslee said to-Hemingway that he could at some other bank get four per cent, and Hemingway replied that he would allow him four per cent on the-certificates if he would leave them. At the close of Hemingway’s evidence, in reply to the question, “When you agreed to pay the four per cent, what was the conversation btween you and Mr. Beardslee, the witness testified: “ He said he could get four per cent. here in Binghamton at the savings bank, and that if I could not pay it he would probably make the change; he did not say he really would, but carried that idea, and I told him I would give him the increased rate of interest, four per cent, on the condition that he left it; that is all the conversation in regard to it.” In substance, Hemingway verbally agreed to pay Beardslee four per cent interest if he would leave the money. The money was not drawn out, and-thereafter and up to December 1, 1889, interest was paid at the rate of four per cent. There was, as the court below found on sufficient evidence, no agreement to leave the money any time, or till the happening of any event, and no agreement which would have prevented the holder from demanding the same at any time. The defendants had no knowledge of and did not consent to the change of interest. They were appointed administrators on the 23d September, 1886.

Shortly after December 1, 1889, Eugene B. Hemingway failed. The present action was commenced on 20th August, 1891, and the plaintiff, to whom the certificates had been transferred, recovered their amount, with interest at three per cent from December 1, 1889.

The defense is mainly based on the transaction between plaintiff’s assignor and the surviving partner with reference to the increased rate of interest

There was nothing to prevent the creditor from demanding his pay at any time upon the certificates. There was therefore no extension of time of payment that would release the estate of thq deceased partner, assuming it occupies the position of a surety. Indeed the claim of the defendant does not seem to be placed on this basis, but upon the theory that there was in effect a new contract between the creditor and the surviving partner that operated to release the estate.

In Hamersley v. Lambert, 2 Johns. Ch., 508, it is said by Chancellor Kent to be the established doctrine that neither delay, nor lapse of time, nor dealing with the survivor, nor calling for and receiving part of the debt from the survivor, amounts to a waiver, or bar of the claim upon the assets of the deceased. In Parsons on Partnership, 438, 2d ed., it is said, with reference to the liability of a retiring partner, that “ if a creditor of a firm contracts or agrees with a new firm to take their security in discharge of that of the old, the retiring partner is discharged from any liability to pay the debt, -and whether such an agreement has taken place is a question of fact for the jury. To discharge the retiring-partner, however, it is not sufficient to take a new security, but there must be an agreement to discharge him from the liability of the old firm.” The mere receiving of interest from the new firm will not discharge the old. Id., 441; Daniel v. Cross, 3 Ves., 277. In Heath v. Percival, 1 Peere Williams, 682; S. C., 1 Str., 403, and referred to in 2 Coll. on Part., 6th ed., 914, there was an agreement by the continuing partner to pay an increased rate of interest, and a receipt of the same by the creditor. It was held that the estate of the retiring partner was not released. The question in such cases seems to be whether the transactions show that the creditor has accepted the liability of the survivor in discharge of the liability of the partnership, Winter v. Innes, 4 Myl. & Craig, 101; 16 Am. & Eng. Encyc. of Law, 906, 908, and cases cited; Fogarty v. Cullen, 49 Superior Court, 397, and this is a question, of fact. Harris v. Farwell, 15 Beav., 33.

In the present case, the certificates of the firm were not surrendered, nor was there any further obligation in writing taken from the survivor. The creditor was given the option of allowing 'his-money to remain, and receiving an increased rate of interest. This option the creditor availed himself of for several years. Th& debt was not changed. There is no finding, or request to find, that the creditor intended to release the estate, or that the survivor intended or agreed to become solely liable. We cannot, say as matter of law, upon the facts as here presented, that such intent existed on the part of either party, or that exclusive credit, for the debt was given to the survivor. It follows that the defense in this regard is not made out.

In the course of the trial the plaintiff showed that on the 2d July, 1890, he recovered a judgment in the supreme court against Eugene B. Hemingway upon the claim in controversy, upon which execution was .thereafter issued and returned wholly unsatisfied The defendants claim that this judgment is invalid by reason of certain defects in the affidavits upon which an order for the service of the summons by publication was based. This question it. is not important here to consider, as it is found upon sufficient evidence that Eugene B. Hemingway at the time of the commencement of this action and for some time prior thereto was insolvent. This authorized an action to enforce payment against, the estate of the deceased partner; Pope v. Cole, 55 N. Y., 124.

It was not error for the court to decline to receive evidence that defendants had no assets. Code, § 1824. Nor does it appear that the ruling of.the court as to certain declarations of plaintiff’s, assignor was erroneous. Clews v. Kehr, 90 N. Y., 633.

The judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    The People, Resp’ts, v. Albert Christy, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Malicious mischief—Penal Code, §§ 654, 655, 660.
    The offense of wilfullv killing a horse or other animal by poison is punishable by indictment under § 654 of the Penal Code. It is not the intent of the statute to exclude from the operation of that section all acts that might possibly be included in §§ 655 and 660.
    2. Witness—Evidence.
    A witness who was charged with being an accomplice having testified to. the effect that defendant procured the poison to be administered, and having stated that he did not know that there was any understanding with the-district attorney that he would not be prosecuted if he stated the matters-which he did, was asked if he understood that by making the statement he would relieve himself from prosecution, which question was excluded. Held, error; that it was competent and material as affecting his credibility.

      3. Same.
    Said witness testified that on two occasions, in the middle of May and. about ten days later, he purchased arsenic for defendant; the latter date he fixed by saying that he saw an account in a newspaper that complainants’’ horses were dying. He was sick during June and July. Defendant offered to show that no such article appeared in that paper during April, May or June. Held, that such proof was admissible on the question whether he made such purchase before the horses died, and that its rejection was error.
    4. Same.
    Where the defendant is not a witness, evidence that he kept a place of bad character is inadmissible even though offered only as bearing on the character of one of his witnesses.
    5. Criminal law—Evidence.
    It is competent to show against a defendant that he bore toward the party injured enmity of a sort te'nding to the criminal result.
    Appeal from a judgment of the court of sessions of Herkimer county, entered June 1, 1891, upon a conviction of the defendant of the crime of unlawfully and wilfully destroying personal property of another.
    In the first count of the indictment the defendant is accused “ of the crime of unlawfully and wilfully destroying personal property of another,” and it is specified that on .the 10th July, 1889, at a place named, the defendant did willfully, unlawfully, feloniously and maliciously, kill, destroy, and poison unto death, three horses, the personal property of the firm of Grilboy Brothers, and of the value of $175. In the second count the defendant is accused “ of the crime of wilfully and unlawfully destroying personal property of another, contrary to and in violation of § 654 of the Penal Code,” and the specification is substantially as in the first count, except the date is laid on 15th July, 1889. Upon the trial the defendant was found guilty as charged in the indictment.

      J. D. Beckwith, for app’lt; Irving R. Devendorf, for resp’ts.
   Merwin, J.

-—The defendant claims that the facts alleged in the indictment, and the evidence given upon the trial, do not constitute the crime of which the defendant was convicted, and that the indictment should have been dismissed.

By § 654 of the Penal Code it is provided that “ A person who unlawfully and wilfully destroys or injures any real or personal property of another, in a case where the punishment is not specially prescribed by statute, is punishable as follows: 1. If the value of the property destroyed, or the diminution in the value of the property by the injury is more than twenty-five dollars, by imprisonment for not more than four years. 2. In any other case, imprisonment for not more than six months, or by a fine of not more than two hundred and fifty dollars, or by both such fine and imprisonment”

The claim of the defendant is that the crime, if any,, is that of cruelty to animals, under § 655 of the Penal Code, or"§ 660: that, the punishment thereof is specially prescribed by those sections, and that therefore the case is not within the purview of § 654.

By § 655 it is, amohg other things, provided that a person who unjustifiably injures or kills any animal, or causes it to be done, is guilty of a misdemeanor. By § 660 it is provided that a person who unjustifiably administers any poisonous substance to an animal is guilty of a misdemeanor. By § 15 of the Penal Code it is provided that: “ A person convicted of a crime declared to be a misdemeanor, for which no other punishment is specially prescribed by this Code, or by any other statutory provision in force at the time of the conviction and sentence, is punishable by imprisonment in a penitentiary or county jail for not more than one year, or by a fine of not more than $500, or by both.” The inference from this section is that when by some other provision of the Code an offense is simply made a misdemeanor, the punishment is not considered as thereby “specially prescribed.”

By subd. 27 of § 56 of the Code of Criminal Procedure courts of special sessions have, in the first instance, exclusive jurisdiction to hear and determine charges of misdemeanors for cruelty to animals. It is not claimed that this case was brought before the grand jury by virtue of a certificate-under § 57 of Code Criminal Procedure. So that apparently if the theory of the defendant is correct, not only is the crime a misdemeanor simply, but the remedy by indictment is not proper.

Section 654 of the Penal Code is a part of chapter 14 of title 15. This title is “ Of crimes against property ” and chapter 14 is of “ Malicious mischiefs and other injuries to property.” The subject of “ Cruelty to animals ” is under another title, and relates rather to the manner in which an act is done than to an interference with the property rights of others. The term “ personal property ” used in § 654 cannot, as claimed by defendant, be construed to mean only inanimate property. For by the rules of construction furnished by the same Code, the term personal property ” includes chattels of every description. Penal Code, § 718, subd. 15. People v. Maloney, 1 Park. Cr., 593; 2 Black Com., 387.

Section 654 relates to hets “ unlawfully and wilfully ” done to ■the property of another, while §§ 655 and 660 relate • to• acts “ unjustifiably ” done without reference to the ownership. It looks reasonably clear that it is not the intention of the statute to exclude from the operation of § 654 all acts that might possibly be included in the other sections. By § 677 it is provided that an act or omission which is made criminal, and punishable in different ways by different provisions of law, may be punished under any one of those provisions, but not under more than one.

We are of the opinion that the court below did not err in •refusing to dismiss the indictment.

The horses in questions died about the 15th or 20th July, 1889, .and there is evidence tending to show that the death was caused by poison which the defendant procured to be administered. This in effect was testified to by the witness Grarlock, who, however, is •charged to have been an accomplice. He was, we think, corroborated by other evidence that tended to connect the defendant with the commission of the crime. Code Grim. Pro., § 399. In the -course of his cross-examination, after having testified as follows: “ I don’t know as there was any understanding between Mr. Harris and me, or the district attorney and me, that I would not be-prosecuted if I stated to him the matters which I did state,” he was asked the question: “ Did you understand, by making the statement which you did make, you would relieve yourself from prosecution? ” This was objected to and excluded and defendant excepted. This should have been admitted. Wharton Crim. Ev., § 477. It related to the position of the witness with reference to the complainant and the prosecuting officer, and was competent and material as affecting his credibility.

Garlock testified that upon two occasions, the first about the middle of May and the second about ten days afterwards, at the request of defendant, he purchased arsenic. The date of the second purchase he fixed by saying that before he got it he read in a. newspaper, the Evening Times, of Little Falls, a statement that a number of Gilboy’s horses were dying. The defendant offered to show that in the months of April, May and June there was in the paper referred to no account of the death of Gilboy's horses. This was excluded and exception taken. Garlock had testified that he was sick and confined to the house from the 1st June to-about the middle of July, which was about the time the horses in question were poisoned. If before Garlock was sick there was no-publication, it would reflect on the question whether he made any purchase before the horses in controversy died. The evidence should have been admitted.

Upon the cross-examination of one Horn, a witness for the defendant, the People were allowed to prove that defendant kept atIlion a place of bad character. This was admitted as bearing upon the character of the witness. Its natural and chief effect was, however, upon the character of the defendant and the People had no right to attack his character in that way. He was not a witness and had a right to all legal presumptions in his favor. Ho sufficient reason is apparent for the admission of the testimony. 1 Bishop Crim. Pro., § 1122.

The defendant and the Gilboy Brothers were competitors in business, and the People were allowed to prove to a considerable-extent the state of feeling between them. Among other things, they were allowed to prove in detail actual assaults upon two occasions. It is competent to show against a defendant that he bore toward the party injured enmity of a sort tending to the-criminal result. 1 Bishop on Cr. Pro., § 1109. Threats are admissible. Id., § 1110. In the present case it is at least doubtful whether the People were not permitted to go too far in this line. Be that as it may, the rulings upon the evidence above referred to cannot in their effect be deemed immaterial, and it follows that, the defendant is entitled to another trial.

Judgfnent reversed and a new trial ordered.

Hardin, P. J., and Martin, J., concur.


author: Per Curiam.

text:
    The People ex rel. Daniel Sutliff, Resp’t, v. The Board of Supervisors of Fulton County, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed September 29, 1892.)

    Certiorari—Fees for return.
    Where the proceeding is against a board of supervisors as a body, § 8280 of the Code does not apply, but the fee for making the return is to be at the rate prescribed by § 2185.
    Motion for reargument. For former opinion, see 46 St. Rep., 470.

      Smith & Nellis (John M. Carroll, of counsel), for resp’t; N. H. Anibal (J. A. Dennison, of counsel), for app’lt.
   Per Curiam.

—Motion for re-argument on ground that § 3280 of the Code of Civil Procedure and § 1 of chap. 63, Laws of 1886, were overlooked or misapprehended.

The laws in question were not overlooked or misapprehended. This proceeding is against the board of supervisors as a board or body, and not against the individual supervisors of Fulton county.

The defendant is to make a return as a board, the individual members are not to make a return of their separate individual actions ; hence we think the laws referred to are not applicable to the question involve'd in this case.

The defendant should state the amount of fees demanded, measured by § 2135 of the Code, and the order heretofore entered may be so modified as to require the defendant, within ten days after the entry thereof, to serve upon the relator’s attorney a bill of items of the fees claimed by it, properly verified, which if disputed by the relator may be taxed before a judge of this court, or at a special term thereof upon notice by either party, and that upon the payment thereof if not disputed, dr as taxed by su«h judge or court, that then the defendant forthwith file its return.

Motion for reargument denied; order modified as per memorandum, without costs.

Mayham, P. J., Putnam and Herrick, JJ., concur.


text:
    Court of Appeals—Second Division.
    Filed October 1, 1892.
    In the Matter of the Will of Frederick G. Dale, Dec’d. Alexander de Bottari, App'lt.

      John R. Bos Pasaos, for appl’t; James Thompson, for respt’s.
   Judgment affirmed, without costs. All concur.

Affirming 30 St. Rep., 419.


text:
    Chauncey Abbey, App’lt, v. Bradford Taber and Hanora Taber, his wife, App’lts. Henry W. Taber et al., Resp’ts.

      H. J. Swift, for app’lts; Norris Morey, for resp’ts.
   Judgment affirmed, with costs. All concur, except Haight, J., not voting.

Affirming 33 St. Rep., 572.


text:
    Charles C. Taber et al., Resp’ts, v. The N. Y. Elevated R. R. Co., App’lt.

      John E. Parsons, for resp’ts; Brainard Tolles, for app’lt.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 706.


text:
    Emma A. Porth, Resp’t, v. The Manhattan R’way Co. et al., App’lts.

      James B. Ludlow, for resp’t; Samuel Blythe Rogers, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 709.


text:
    John A. Bell, Resp’t, v. Jacob Gittere, App’lt.

      Carl T. Chester, for resp’t; Adelbert Moot, for app'lt.
   Judgment affirmed, with costs. All concur.

Affirming 30 St. Rep., 219.


text:
    Henry R. Granger, Resp’t, v. Electa M. Granger, App’lt.

      I. Sam Johnson, for resp’t; M. E. & E. M. Bartlett, for app’lt.
   Order affirmed, and judgment absolute rendered against appellant, with costs. All concur, except Bradley and Haight, JJ., not sitting.

Affirming 2 St. Rep., 211.


text:
    Sophia L. Mattern, App’lt, v. Russell Sage, Resp’t.

      Ira Shafer, for app’lt; Henry S. Bennett, for resp’t.
   Judgment affirmed, with costs. All concur, except Parker, J., not voting.

Affirming 30 St. Rep., 855.


text:
    Emilie Raberg Noel, Resp’t, v. The H. Bencke Lithographic Co. et al., App’lts.

      Noel Gale, for resp’t; Charles Blandy, for app’lts.
   Judgment affirmed, with costs. All concur.

Affirming 33 St. Rep., 759.


text:
    Eliza T. Brush, Resp’t, v. George W. Batten, Sheriff, App’lt.

      E. M. Ashley, for resp’t; Frank Brundage, for app’lt.
   Judgment affirmed, with costs. All concur, except Bradley and Haight, JJ., not sitting, and Parker, J., not voting.

Affirming 15 St. Rep., 548.


text:
    John Hayes, Resp’t, v. Catherine E. Rabold, Impl’d, App’lt.

      A. B. Moore, for resp’t; George W. Carr, for app’lt.
   Judgment and orders affirmed, with costs. All concur.

Affirming 14 St. Rep., 933.


text:
    Supreme Court—General Term—First Department.
    Filed June 29, 1892.
    The American Bank Note Co. v. The Manhattan Railway Co.
   Motion denied, witlrten dollars costs.


text:
    George H. Dyett, App’lt, v. The Central Trust Co., Resp’t.
   Motion denied, with ten dollars costs.


text:
    Filed July 7, 1892.
    Sarah E. Mellen, App’lt, v. Gordon McKay Mellen et al. by Jane H. Pierce, their guardian, Impl’d, Resp’ts.
    Appeal from final judgment dismissing complaint.

      Henry Daily, Jr., for app’lt; Alfred T. Ackert, for resp’ts.
   Per Curiam.

—The respondents demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled at special term, and from the order and interlocutory judgment entered overruling it the present respondents appealed to the general term of this court. There the demurrer was sustained, and the order and interlocutory judgment overruling the demurrer were reversed and final judgment directed to be entered dismissing the complaint, with costs.

The opinion of the general term sustaining the demurrer, which is to be found in the case, is controlling, and as the questions now presented were therein fully discussed and passed upon, nothing remains but to affirm the judgment, with costs and disbursements.

Van Brunt, P. J., O’Brien a..d Patterson, JJ., concur.


text:
    General Term—Second Department.
    Filed July 22, 1892.
    Maria Lydecker v. Samuel Gilchrist.
   Judgment affirmed for non-submission of papers according to stipulation.


text:
    Annie J. Parshall, Adm’rx, v. The N. Y., Lake Erie & W. R. R. Co.
   Re-argument ordered.


text:
    Watson Van Benthuysen v. The Central New England, etc., R. R. Co.
   Appeal withdrawn.


text:
    The Mission, etc., of Homeless Children, etc., v. Michael Cronin.
   Re-argument ordered. Dykman, J., not sitting.


text:
    Catherine Lewis, Adm’rx, v. The N. Y. C. & H. R. R. R. Co.
   Re-argument ordered.


author: Dykman, J.

text:
    Joseph M. Johnson et al., Ex’rs, Resp’ts, v. Simon Feist, App’lt.
    Appeal from judgment of special term in favor of plaintiffs.

      J. W. & C. J. Ridgway and Henry B. Twombly, for app’lt; W. J. Gaynor, for resp’ts.
   Dykman, J.

—This is an action to procure the specific performance of a contract in writing for the sale of real property.

, By the contract the plaintiffs, as executors of the last will and testament of Roza Johnson, deceased, agreed to sell, and the defendant agreed to buy, two lots of land and the buildings thereon in the town of New Lots, in Kings county.

The defendant raised objections to the right of the plaintiffs to make the sale of the property, and also in relation to certain taxes upon the property, but the objections were frivolous and entirely insufficient to justify the defendant in refusing to consummate his purchase and perform his contract.

The trial judge found the facts and the law against the defendant, and his decision is fully justified by the evidence. -

There is no merit in the appeal, and the judgment should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concur.


author: Cullen, J.

text:
    Edwin Bailey et al., Resp’ts, v. Barbara Gluth, App’lt.
    Appeal from judgment of Suffolk county court, affirming justice’s judgment in favor of plaintiffs.

      Andrew Heyman, for resp’ts; T. M. Griffing, for app’lt.
   Cullen, J.

—In the original return of the justice the testimony is presented in a form that makes it difficult to discern what the evidence really was. But enough appears from the original and amended returns to show that a fair question of fact was presented to the justice for decision.

As there was evidence to support the judgment no error of law was committed, and this court has no power on appeal to consider the weight of evidence or disturb the finding of fact. Thurber v. Townsend, 22 N. Y., 517.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    The People, Resp’ts, v. Andrew Steckenreider, App’lt.
    Appeal from judgment of the court of sessions of Kings county, convicting defendant of the crime of assault in the third degree.

      August P. Wagener, for app’lt; Jas. W. Ridgway, for resp’ts.
   Dykman, J.

—This is an appeal from the conviction of the defendant in the court of sessions in the city of Brooklyn of assault in the third degree, and also from the order dated December 30, 1891, affirming such conviction on the appeal to the court of sessions of Kings county, and from the affirmance of such conviction on such appeal, and from the conviction of the defendant in the court of special sessions in the city of Brooklyn of assault in the third degree, and also from the order dated December, 1891, affirming such conviction on the appeal to the court of sessions in Kings county and from the affirmance on such appeals.

All these appeals are destitute of merit.

The testimony taken upon the trial rendered it entirely plain that the defendant was guilty of the offense charged, and the conviction and all the orders should be affirmed.

Barnard, P. J., and Cullen, J., concur.


text:
    James J. Cook, Resp’t, v. The American Express Company, App’lt.
    Appeal from judgment of Dutchess county court, affirming justice’s judgment in favor of plaintiff.

      Frank Hasbrouck, for app’lt; Ransom Baker, for resp’t.
   Dykman, J.

—This is an appeal ti-om a judgment of the county court affirming a judgment of a court of a justice of the peace in favor of the plaintiff against the defendant.

The case is one where the appellant has not demanded a new trial in the appellate court, and m such cases “the appellate court must render judgment according to the justice of the case without regard to technical errors or defects which do not affect the merits.” Code of Civ. Pro., § 3063.

Assuming as we must that the county court rendered the judgment from which this appeal is taken in obedience to this requirement of the'law, we are not at liberty to disregard the decision.

This case well illustrates the wisdom of the statute. The amount involved is small, as it frequently is in actions in courts of a justice of the peace, and independent of technical objections the judgment does substantial justice between the parties.

The judgment should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concur.


text:
    Almira H. James, Resp’t, v. Winifred K. Finch, App’lt.
    Appeal from judgment at special term in favor of plaintiff.

      George Murray Brooks, for app’lt; A. M. & G. Card (W. Farrington, of counsel), for resp’t.
   Dykman, J.

—This is an appeal from a judgment in favor of the plaintiff in an action upon the guaranty of the payment of a promissory note tried before a judge without a jury.

Answer set up want of consideration for the guarantee' and failure to make demand of payment of the note of the maker at its maturity, and an agreement with the maker to extend the time of payment upon the note.

All the defenses were destroyed by the proof upon the trial, and the liability of the defendant was fully established.

The record' presents no error, and the judgment should be affirmed, with, costs.

Cxjllbn, J., concurs; Barnard, P. J., not sitting.


text:
    Henry C. Bainbridge et al, Resp’ts, v. Maurice Lillienthal, App’lt.
    Appeal- -from order denying motion to compel plaintiffs to receive a notice of appeal.

      Wm. F. Randel, for app'lt; Jos. A. Burr, Jr., for resp’ts.
   Dykman, J.

—This is an appeal from an order denying a motion of the defendant to compel the plaintiff to receive a notice of appeal from an order denying a motion to make a complaint more definite and certain.

The appeal is entirely destitute of merit, and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., concurs; Cullen, J., not sitting.


text:
    James A. Thompson, Resp’t, v. Frank J. McGreevy, Impl’d, App’lt.
    Appeal from judgment in favor of plaintiff.

      Lyman Jenkins (Fred. E. Ackerman, of counsel), for app’lt; Hermanee & Arnold, for resp’t.
   Dykman, J.

—It is the claim of the' plaintiff in this action that the defendants were copartners in business under the name of McGreevy & Brohel, and as such executed and delivered to him their promissory note in the name of the firm, dated February 6,1891, for the payment of $66.40, and this action is-based upon that note.

The defendant, Frank J. McGreevy, alone answered the complaint and defended the action. He denied the copartnership with him, and said he was not a member of the firm, and that the copartners were Mary Agnes McGreevy and John J. Brohel.

The cause was tried before a jury, and the verdict rendered in favor of the-plaintiff for the amount of the note and interest, and the defendant, Frank J. McGreevy, has appealed from the judgment only.

There was sufficient evidence to justify the verdict, and the jury found the-facts against the testimony and contention of the appealing defendant.

There was no error, and the judgment should be affirmed, with costs.

Cullen, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    In the Matter of the Petition of The N. Y. & Brooklyn Bridge.
    Appeal from order refusing to confirm report of commissioners of appraisal.

      J. W. Knox (G. W. Wingate, of counsel), for app’lts Clark et al; Charles N. Morgan, for app’lt Lynch; W.W. Goodrich, for app’lt Jonsen; Abel E. Blackmar, for app’lt Gilbert; Bergen & Dykman, for resp’ts.
   Barnard, P. J.

—The fee of the lot of land to be taken is in the trustees under the will of R. S. Clark, deceased. The trustees let the premises to Jon-sen for ten years at a rent of $6,000 a year by lease ending in 1896. Jonsen sublet the under part thereof to W. K. Gilbert for $1,500 a year for the last seven years of the lease. Jonsen agreed with the trustees to convert the property into a first-class hotel, and expend not less than $8,000 in repairs and improvements thereon, which was to go to the owner at the end of the lease. Jonsen leased the upper part of the premises to Lynch at a rent of $7,500 a. year. Lynch spent considerable sums in improving the property. The owners gave evidence tending to show that the value of the property as it now is, is nearly or quite $200,000. The tenant, Lynch, gave evidence tending to-show that his lease was worth over $20,000 a year. Gilbert gave evidence tending to show that the premises were worth a rental value of $8,500 a year. H-fe had expended a large sum in fitting them up for his business.

Upon this proof the commissioners gave

To the owners To Jonsen .... To Lynch.... To Gilbert ... $104,625 00 6,375 OO 45,000 00 4,000 00

In all.. $160,000 00

The owners have been ill-paid for their land, but they do not object. They rented the property when it was a warehouse with a view of improvement. It is so improved that very reputable and skilled appraisers put the present rent at near $25,000 a year. Jonsen’s interest is readily determined by the figures. He pays $6,000 and he gets $7,500, and he has over four years at this rate. The award to Lynch and Gilbert is sustained by the evidence of the rental value of the premises of which they are deprived. The report does not show any mistaken principle upon which the assessment was made. Neither the evidence or the report show that the property is not worth the total of all the awards. If the owner rents property at a small rent, the value of the fee is not thereby reduced by taking out a large rent, and especially when so much has been expended on the property since the owner leased.

The order refusing to confirm the report should be reversed with costs and disbursements, and the report confirmed, without costs.

Dykman, J., concurs; Cullen, J., dissents.


text:
    General Term—Third Department.
    Filed September 14, 1892.
    Emma Dunckel, Resp’t, v. William Dunckel, App’lt.
   Judgment affirmed, with costs.


text:
    John P. Eisenlord, App’lt, v. David H. Clum, Resp’t.
   Motion to set aside default granted upon payment of thirty dollars argument fees and ten dollars cost of motion with printing disbursements.


text:
    The People ex rel. Benjamin W. Wooster, Resp’t, v. Edward A. Maher, Mayor, App’lt.
   Motion to correct decision by granting relator costs granted.


text:
    Daniel C. Hewitt, v. The City Mills.
   Motion to dismiss appeal denied, with ten dollars costs.


text:
    The People ex rel. John A. Roeblings Sons Co. v. Edward Wemple, Comptroller.
   Motion to re-settle order granted.


text:
    Filed September 29, 1892.
    Robert Dansinger and James H. Vandenburgh, App’lts, v. Edward C. White, Resp’t.
   Motion for re-argument denied, with costs.


text:
    Fourth Department.
    Filed September 30, 1892.
    Arthur L. Hall, App’lt, v. George Hanchett et al., Adm’rs, Resp’ts.
   Judgment and order affirmed, with costs.


text:
    In the Matter of the final Judicial Settlement of the Accounts of Douglas Boardman, as Executor of the last will and testament of Jennie McGraw-Fiske, Dec’d. Thomas H. McGraw et al., App’lts; George R. Williams et al., Ex’rs, Resp’ts.
   Decree of the surrogate’s court modified by deducting from the amount of commissions allowed therein to the executor the sum of $2,575, and as modified affirmed, without costs of this appeal to either party.

Hardin, P. J., not voting.


text:
    De Witt C. Middleton et al., Resp’ts, v. Richard M. Esselstyn, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Philip R. Corlyon, Resp’t, v. Timothy N. Doane, Impl’d, App’lt.
   Judgment affirmed, with costs.


text:
    Malinda Hall, Resp’t, v. The London Assurance Corporation, App’lt.
   Motion denied.


text:
    William Evans, App’lt, v. Margaret Dalton, Resp’t.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Ebenezer H. Hart, Resp’t, v. Minor T. Jones et al., App’lts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Austin O. Ames et al., Resp’ts, v. Amos L. Mason, Impl’d, App’lt.
   Order modified so that the appellant be restrained only until the further order of the court or the determination of the action, and as modified affirmed, without costs to either party.


text:
    Nina Howe, App’lt, v. James R. Picket, Surviving Adm’r, Resp’t.
   Judgment and order affirmed, with costs.


text:
    Duane Pickert, App’lt, v. Richard D. Bunkey, Resp’t.
   Order reversed, with ten dollars costs and disbursements. Motion denied, with ten dollars costs. (Following 43 Hun, 214: 6 St. Rep., 189; 24 Wk. Dig., 168; 45 Hun, 39; 9 St. Rep., 423.)


text:
    Wilmot E. Knapp, Resp’t, v. Carrie E. Knapp, App’lt.
   Order reversed, with ten dollars costs and disbursements.


text:
    Watts T. Loomis et al., Ex’rs, Resp’ts, v. Abram E. Bellinger, App’lt.
   Judgment affirmed, with costs.


text:
    In the Matter of the Probate of the Last Will and Testament of Lorenzo M. Sheldon, Dec’d. Solemus D. Seamans, App’lt, v. Truman H. Day, Resp’t.
   Decree of the surrogate’s court affirmed, with costs.


text:
    James J. Dunham, App’lt, v. Ezra P. Allen, Resp’t.
   Judgment reversed and a new trial ordered, with costs to abide the event.

See 121 N. Y., 250; 30 St. Rep., 977; 60 Hun, 495; 39 St. Rep., 561.


text:
    Jane Vader, Resp’t, v. William Reed, App’lt.
   Judgment and order reversed upon the exceptions and a new trial ordered, with costs to abide the event.


text:
    William C. Allison, App’lt, v. Harvey N. Loomis et al., Impl’d, Resp’ts.
   Judgment affirmed, with costs.


text:
    Same v. Same.
   Order modified so as to limit the allowance to $200, and as modified affirmed, with ten dollars costs and disbursements to the appellant.

See 31 Hun, 384; 39 id., 566; 59 id., 351; 36 St. Rep., 541; 15 Civ. Pro., 171.


text:
    Flora M. Cronk, Resp’t, v. Asel Wilcox, App’lt.
   Judgment and order reversed and a new trial ordered, with costs to abide the event. Held, (1st) verdict is against the weight of evidence; (2d) the court erred in instructing the jury that Warner would be entitled to the recovery awarded; (3d) the court erred in excluding the evidence of the witness Walters as to the conversation between her and the defendant.


text:
    Melville L. Greenfield, Resp’t, v. George W. Getman et al., Ex’rs, App’lts.
   Judgment and order affirmed, with costs.


text:
    Jane Mills, Resp’t, v. Charles Mills, App’lt.
   Judgment affirmed, with costs.


text:
    John A. Johnson, Resp’t, v. David Devan, App’lt.
   Judgment of the county court and of the justice’s court reversed, with costs. Held, that the justice erred in excluding the second mortgage and evidence that it was fraudulent.


text:
    Mary Frink, Resp’t, v. Freeman Frink et al., App’lts.
   Judgment and order affirmed, with costs.


text:
    Ed. Farr, Resp’t, v. Catharine Warren, App’lt.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People, Resp’ts, v. Edwin S. Hoagland, App’lt.
   Appeal dismissed.


text:
    James Murphy, an Infant, by guardian, App’lt, v. The New York, Ontario & Western R. R. Co., Resp’t.
   Judgment affirmed, with costs.


text:
    Jay A. Loomis, App’lt, v. The Rome, Watertown & Ogdensburgh R. R. Co., Resp’t.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


text:
    William G. Cross, Resp’t, v. Philo W. Casler and David F. Broughton, App’lts.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that the question of settlement as claimed by the defendants should have been submitted to the jury.


text:
    Alice Roberts, App’lt, v. James S. Love, Resp’t.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that the question of plaintiff’s ownership of the horse should have been submitted to the jury.


text:
    James Whitney, App’lt, v. John C. Roe, Resp’t.
   Order affirmed, without costs of appeal to either party.


text:
    New York Superior Court—General Term;
    Filed July 5, 1892.
    Iden v. Sommers.
   Motion denied, with ten dollars costs.


text:
    Wehle v. Koch.
   Motion granted.


text:
    United States Trust Co. v. O’Brien.
   Motion denied, with ten dollars costs.


text:
    The People ex rel. Rudolph Grancher, Relator, v. Charles F. Mac Lean et al., Commissioners, Resp’ts.
    Proceeding by certiorari to review a finding and judgment of the Board of Police imposing upon the relator a fine of five days pay.

      Louis J. Grant, for relator; W. H. Clark, for resp’ts.
   Per Curiam.

—The evidence upon which the respondents proceeded was sufficient to sustain their .action.

The writ should be dismissed and the determination of the respondents affirmed, with fifty dollars costs and disbursements.

Freedman, Dugro and Gildersleeve, JJ., concur.


text:
    Helena L. G. Asinari, Resp’t, v. Catharine Regna, Impl’d, App’lt.
    Appeal from order overruling answer of defendant Regna as frivolous, and granting judgment thereon.

      P. Van Alstine, for app’lt; Gillender & Stoiber, for resp’t.
   Per Curiam.

—The order should be affirmed, with ten dollars costs and disbursements.

Freedman, Dugro and Gildersleeve, JJ., concur.


text:
    William S. Vernam et al., App’lts, v. Edwin H. Baker, Resp’t.
    Appeal by plaintiffs from an order staying the trial of this action.

      Robertsons & Harmon, for app’lts; Wing, Shoudy & Putnam, for resp’t.
   Per Curiam.

—The order should be affirmed, with ten dollars costs and disbursements.

Freedman, Dugro and Gildersleeve, JJ., concur.


text:
    Thomas S. Clarkson et al., App’lts, v. Frederick S. Howard, Resp’t.
    Appeal from judgment entered upon a verdict directed by the court in favor of the defendant.

      Ogden, Beekman & Ogden, for app’lts, Cannon & Atwater, for resp’t.
   Per Curiam.

—Upon the whole case it clearly appeared that the plaintiffs were not the procuring cause of the sale, and that the sale was effected by the broker Sterne. It was a clear case of two brokers trying to sell the same property to the same party—the one failing and the other succeeding. The rule of law in such a case has been well defined in Alden v. Earle, 56 Supr. Ct. 366; 33 St.. Rep., 961, affirmed in 121 N. Y., 688; 31 St. Rep., 375.

The direction of a verdict against the plaintiffs was proper, and the judgment should be affirmed, with costs.

Freedman, Dugro and Gildersleeve, JJ., concur.


text:
    Thomas S. Bassford, Resp’t, v. Charles H. White, App’lt.
    Appeal from a judgment entered in favor of the plaintiff upon the decision of a judge after trial of the issues without a jury.

      Jas. C. De La Mare, for app’lt; Ernest Hall, for resp’t.
   Per Curiam.

—As it appears that the contract between the parties was a fair one under all the circumstances, that the rule of damage applicable to the case was properly stated and applied by the learned trial judge, and that there is no exception which calls for reversal, the judgment must be affirmed, with costs.

Freedman, Dugro and Gildersleeve, JJ., concur.


author: Freedman, J.

text:
    Martha G. Seggermann, App’lt, v. The Hillis Plantation Coffee Co., Resp’t.
    Appeal from judgment entered upon the report of a referee.

      Yellott D. Dechert, for app’lt; James Flynn, for resp’t.
   Freedman, J.

—The facts were determined by the referee upon conflicting testimony. The conflict between the witnesses of the respective parties was quite marked, and the result depended upon the credibility of the witnesses. The referee, in addition to hearing their statements, had the advantage of seeing them and observing the manner in which they gave their testimony. Upon the whole case as presented, the general term would not be justified, in interfering with the decision of the referee on the ground that his findings were made against the weight of the evidence. Nor is there any merit in the claim that some facts found by him are not supported by evidence. The facts being found, they support the conclusion of law based thereon, in conformity with which the judgment was entered.

I have also looked at the exceptions taken by the plaintiff to the rulings of the referee at the trial, but none of them presents ground for reversal.

The judgment should be affirmed, with costs.

Dugro and Gildersleeve, JJ., concur.


author: Dugro, J.

text:
    The People ex rel. John J. Gilroy v. Charles F. MacLean et al., Comr’s.
    Certiorari to review proceedings of defendants.

      Louis J. Grant, for relator; William H. Clark, for resp’ts.
   Dugro, J.

—A careful examination of the papers presented shows that no injustice was done to the relator.

The judgment of the board of police is wholly confirmed, with fifty dollars costs and disbursements.

Freedman and Gildersleeve, JJ., concur.


text:
    Annie Barrett, an Infant, by Albert T. David, her guardian ad litem, Resp’t, v. George Waldo Smith and John S. Sills, App’lts.
    Appeal from judgment in favor of plaintiff.
    For former appeal, see 38 St. Rep., 526, 922.

      Richard O’Gorman, Jr., for resp’t; James A. Seaman, for app’lts.
   Per Curiam.

—It was not error to allow the plaintiff to show that the witness Vero had said at the time of his arrest: “Is this the One Hundred and Eighth street racket; ” for this evidence tended to show that Vero testified untruly when he, upon his direct examination, said, “No unusual accident was brought to my attention, except when I was arrested.” Upon the whole case the judgment and order should be affirmed, with costs.

Freedman, Dugro and Gildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    Frederick Michel and Walton Townsend, App’lts, v. James B. Colegrove, Resp’t.
    Appeal from a judgment of the special term, dismissing the complaint.
    _ 'Henry Daily, Jr., for app’lts; Thornall, Squires & Pierce (Franklin Pierce, of counsel), for resp’t.
   Gildersleeve, J.

—In May, 1886, the defendant had and controlled an option for the purchase of a certain mining property, in Colorado, known as the V Caledonia,” at a stipulated sum. It was the purpose of the defendant to find a purchaser for the property before the expiration of the option, at a price that would yield him a profit. Before the option expired, the property was sold to the Caledonia Gold Syndicate, Limited,” a corporation organized under the laws of Great Britain, having its place of business in the City of London, England. The plaintiffs bring this action upon an alleged agreement, which, they claim, was entered into between them and the detendant, by which the three became jointly interested in the sale of said mining property. The complaint alleges that it was understood and agreed that each one of them should give his time and attention and best efforts to accomplishing the sale of said mining property, and that all profits and gains, over and above actual and necessary disbursements, should be divided into three equal parts, and that the plaintiffs and defendant should each receive one of said parts. The complaint further alleges that the gains and profits, over and above all necessary and actual expenses attending said sale, amounted to the sum of sixty thousand dollars, which sum the defendant received on behalf of plaintiffs and himself, and it demands judgment that the defendant account to the plaintiffs for said $60,000, and be directed to turn over to the plaintiffs such portions of said profits as they are entitled to receive under the conditions of the aforesaid agreement. The answer denies all the material allegations of the complaint, and sets up a counterclaim for moneys loaned to plaintiffs and services rendered to them. The counterclaim does not appear from the record to have been litigated.

The case was tried at special term, and, after an exhaustive trial, at which a large amount of evidence was introduced by both sides, the court below ordered judgment i;i favor of the defendant, dismissing the complaint upon the merits. From this judgment the plaintiffs appeal.

The complaint sets forth a good cause of action and the right of the plaintiffs to recover depended entirely upon the evidence. After a careful examination of the record, the most that can be said on behalf of the plaintiffs is, that there was a conflict of evidence.

The trial court on the questions of fact found adversely to the plaintiffs; and we are of opinion that the conclusions are fully sustained by a strong preponderance of evidence. _ The learned counsel for the appellants urges several exceptions to the admission or exclusion of evidence as valid; but an examination of the questions raised by these exceptions fails to disclose any error prejudicial to plaintiffs.

The judgment appealed from should be affirmed, with costs.

Freedman and Dogro, JJ., concur.


text:
    George Peyser, Resp’t, v. John C. McCarthy et al., App’lts.
    Appeal froma judgment entered on the verdict of a jury and from an order denying defendants’ motion for a new trial in an action to recover moneys paid to the sheriff of the county of New York under duress and protest.

      Henry D. Hotchkiss, for app’lts; John Fennel, for resp’t.
   Dugro, J.

—A careful examination of the case discloses no error.

The judgment and order should be affirmed, with costs.

Freedman, J., concurs.


author: Freeman, J.

text:
    Flora Jacobs, App’lt, v. David Morrison, Individually and as Trustee, Resp’t.
    Appeal from a judgment entered upon an order dismissing the complaint in an action to recover a deposit on account of purchase money in a transaction relating to the sale of real estate.

      Reeves & Todd, for app’lt; J. George Flammer, for resp’t.
   Freeman, J.

—The record submitted does not contain the evidence given upon the trial of the issues and consequently it must be assumed that the findings of fact which were made were supported by sufficient evidence. That being so, the only substantial question presented by the appeal is whether the facts as found justify the conclusion of law based thereon and the judgment as u mially entered.

Upon due examination I have satisfied myself that the conclusions of law are fully warranted by the facts as found, and that the judgment as entered is correct.

The judgment should be affirmed, with costs.

Gildersleeve, J., concurs.


text:
    William Bradley, Resp’t, v. Margaret Shafer and Robert Shafer, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 29, 1892.)

    1. Pleading—Waiver of objection.
    Where the complaint is clear and unambiguous, setting up a cause of action against two defendants, but the prayer demands judgment only against one, the other defendant has a right to rely on the pleading and is not called upon to make any objection or call the attention of the court to it.
    2. Same—Amendment after verdict.
    In an action against husband and wife for a tort committed by the wife, the complaint demanded judgment only against the wife. The jury rendered a verdict for plaintiff. Thereafter the court ordered the complaint amended so as to conform to the facts and demand judgment against both defendants. Held, error, as it had the effect of creating by order a verdict never given.
    Motion for reargument. For former opinion see 46 St. Rep., 462.

      Henry T. Sanford (Eugene Burlingame, of counsel), for app’lts; FranJc Kampfer (Jacob Glide, of counsel), for resp’t
   Per Curiam.

We have again examined this case. Robert Shafer was made a party defendant with his wife Margaret, and the facts as claimed by plaintiff were sufficiently stated in the complaint to constitute a cause of action against both defendants. But the prayer for relief was as follows, “ Whereupon the plaintiff and his family have been brought into disrepute * * * to his damage $5,000, for which amount plaintiff demands judgment against the defendant Margaret Shafer and costs.”

It will be seen there is no ambiguity in this prayer. It is quite clear that no money judgment is asked for by the plaintiff in the complaint against Robert Shafer. Nor are we able to see that anything occurred in the course of the trial, nor was any statement made in the charge of the trial judge indicating "that plaintiff expected to recover a money judgment against the defendant Robert. It is true that the trial judge stated that Robert was a necessary party defendant, but we are unable to discover anything in his remarks that should give notice to defendants that plaintiff claimed any other relief than that demanded in the prayer of his complaint.

This, motion is made on the ground that during the trial, on the motion for non-suit and on the submission of the case to the jury no objection was made by defendants, or either of them, to the pleading. Ho suggestion was made that under the complaint plaintiff should not recover a money judgment against the defendant Robert

It is true that when a cause of action against one or more defendants is defectively stated in the complaint and such defendant or defendants make, no objection on the trial to the defective pleading, but try the case as - if the complaint were properly framed, that such defendant will not be allowed afterwards on appeal to raise the question as to the sufficiency of the pleading that he should have objected to on the trial.

But here the complaint was clear and unambiguous. The plaintiff made no claim against the defendant Robert to recover a money judgment. Robert was not called upon to make any objections. The complaint was such that no judgment could be recovered against him except for nominal damages. He had a right to rely upon the pleading, and was not bound to call the attention of the court to it.

Had the attention of the learned counsel who represented plaintiff been called to the prayer for relief in the complaint during the trial, doubtless the court could and would have allowed an amendment. But the complaint remained unamended and the verdict of the jury in fact rendered was a verdict against the defendant Margaret alone. Ho verdict was or could have been entered against Robert, because none was asked when the ease was submitted to the jury. According to the statement contained in the case: “ The jury rendered a verdict in favor of the plaintiff of $2,500 damages.” This verdict must be deemed rendered in pursuance of the prayer of the complaint against the defendant Margaret alone. The change made in the prayer of the complaint some weeks after the rendition of the verdict and the judgment entered in pursuance of such amended prayer, has the effect of creating by order a verdict never given.

The motion for re-argument should be denied, with costs.

Mayham, P. J., Herrick and Putnam, JJ., concur.


text:
    John DeWitt Peltz et al., Adm’rs, Resp’ts, v. John A. Schultes et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed September 29, 1893.)

    Executors and administrators—Costs.
    Defendants, as executors of a deceased executor, were cited to account for property of the estate of which their testatrix was executor which had come to their hands, and set up the statute of limitations as a defense, on which they were defeated. They claim to have acted on the advice of counsel and that of creditors of the estate they represented. Held, that such plea was an unconscionable one under the circumstances, and that the defendants were personally liable for the costs.
    Motion to modify decree so as to relieve defendants from any personal liability for costs and expenses. For opinion on the appeal see 46 St. Rep., 216.

      John D. White (Eugene Burlingame, of counsel), for app’lts; William McElroy (William L. Learned, of counsel), for resp’ts.
   Per Curiam.

At the last term of this court we affirmed the decision of the surrogate in the above entitled matter, and awarded the costs and expenses of the appeal against the defendants personally.

The defendants now apply to this court to have the decree against them so modified as to relieve them from any personal liability for such costs and expenses. They allege in their petition for such relief that when they were asked to account for any property belonging to the estate of Isaac H. Watson that had come into their hands as the executors of Mary Watson, that they consulted counsel and also the creditors of Mary Watson, and did the same thing again after the decision of the surrogate, from which they appealed, and they claim to have been' advised by such counsel and creditors to take the course that they have taken.

The facts in the case are sufficiently stated in the opinion handed down when the appeal was decided.

It is very clear that the executors of the estate of Mary Watson had no right to retain any of the property of Isaac H. Watson.

The creditors of Mary Watson had no interest in it. There was no reason why they should be consulted in regard to it. The defendants must have known that the creditors of Mary Watson could not be paid out of the assets of Isaac Watson.

Again, they state that they were advised to set up the statute of limitations in opposition to their being brought to account.

That was briefly discussed in the opinion heretofore pronounced in this case. The effect of a successful effort in that respect .will be adverted to here as bearing upon the consideration the defendants are entitled to from this court upon this application. Had the defendants been successful in that defense, they would have been left in possession of property to which they had no right or title, and for which no one could call them to account.

The defendants must have been perfectly aware of that.

It is not the case of executors resisting the payment of a stale claim made against an estate, but apparently an attempt to invoke a statute enacted for other purposes to enable them to retain property to which they are not entitled from those who are.

The plea, under the circumstances, was an unconscionable one, and leaves the defendants open to the suspicion that, by invoking it, the defendants intended, under the forms of law, to appropriate to their own use property which did not belong to them.

The proceedings in the case are not such as to commend themselves to the court, and the motion must be denied, with ten dollars costs, to be paid by the defendants personally.

Mayham, P. J., Putnam and Herrick, JJ., concur.