text:
    In the Matter of the Application of the Board of Street Opening. In the Matter of One Hundred and Twenty-Eighth Street.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Municipal Corporation—Opening street.
    Section 990 of the Consolidation Act does not apply to streets, which the municipal hoard is authorized to open whenever, in its opinion, the interest of the public demands it.
    Appeal from an order affirming the report of the commissioners, and refusing to discontinue proceedings.

      Louis Marshall, for app’lt; John P. Dunn, for resp’t.
   O’Brien, J.

This board of street opening and improvement presented to this court a petition reciting that it was necessary, useful, and proper for the public interest to acquire title, for use as a public street, to certain lands upon what would be, when opened, 128th street, between Amsterdam avenue and Convent avenue, in this city. The commissioners appointed pursuant to the petition made a report awarding as damages to divers persons the sum of $1,105, taxing the costs at $1,006.48, and assessing those claimed to be benefited $2,111.46. Of the assessments thus laid, nearly $1,900 was against the appellants, who, upon the application to confirm the report, moved for the discontinuance of the proceedings, pursuant to the provisions of section 990 of the consolidation act (Laws 1882, c. 410), which; among other things, provides that:

“Upon the coming in of the said report * * * if persons who appear by the said report to be interested, either by assessment for benefit or award for damages, to the amount of a majority in amount of the whole assessments and awards, shall appear and object to further proceedings upon the said report, the court shall order the same to be discontinued, and the same shall thenceforth be discontinued.”

There can be no doubt that, if this section has application to a proceeding such as was here initiated, it is controlling, and the appellants were entitled to a discontinuance of the proceeding as a matter of right. The question is, does this section apply to a proceeding such as this? By the Laws of 1807, and subsequently by thé Laws of 1839 (chapter 209), 1873 (chapter 335), 1874 (chapter 604), and 1876 (chapter 436), statutes were passed regulating and providing for the opening of streets in different portions of the city. There were afterwards brought together, and now appear in chapter 410 of the Laws of 1882, known as the “ Consolidation Act.” Section 990 of that act was originally a portion of the act of 1839 (chapter 209), being a general act relative to assessments. Section 105 of chapter 335 of the Laws of 1873 (now section 955 of the consolidation act) confers upon the board of street opening the power, whenever they deem it for the public interest to lay out new streets south of Fifty-ninth street Section 956 of the consolidation act confers similar power upon the department of public works above Fifty-ninth street, except in- the Twenty-Third and Twenty-fourth wards, in which wards, by the next section, the power is conferred upon the department of public parks. In this (section 957) and the following section, relating to the power of the department of public parks with respect to the. mode of acquiring title for the use of the public to lands required for streets in the Twenty-Third and Twenty-Fourth wards, the provisions are taken from chapter 604 of the Laws of 1874, and notably those portions of section 958 which permit such department, whenever it shall deem it for the public interest so to do, to acquire lands for streets, avenues, roads, public squares and places laid out by them. By chapter 436 of the Laws of 1876 streets to be laid out by the park department .under chapter 604 of the Laws of 1874 were to be divided into three classes, viz. first, second, and third. Streets of the first class were to be opened whenever, in the opinion of the department of the city government having control of such opening, the interest of the public demanded such opening; streets of the second class were to be opened only on the petition of the owners of one-third of the linear feet of frontage on such streets; and streets of the third class were to be opened only on the petition of the owners of three fourths of the linear feet of frontage. In re Rider Ave. (No. 324, vol. 31, 1885, Ct. App. Cas., at Bar Ass’n) 36 Hun, 645; 99 N. Y. 683, which was a proceeding initiated in 1885 by the pubic-authorities, an application such as is here made was presented, for leave to discontinue by property owners representing the necessary majority of awards and assessments, under section 990 of the consolidation act, and it was held that that section did not apply ; the judge at special term, in his opinion, saying:

“ Eider avenue is an avenue of the - first class, under the provisions of the act of 1874, just referred to, and can therefore be opened, if the commissioners are of the opinion that the interests, of the public demand such opening and grading.”

It will thus be seen that prior to the consolidation act the provision permitting a discontinuance did not apply to all proceedings relating to street openings, or the laying out of public squares or spaces,—it being, in effect, held that the act of 1839 is general in its provisions, and applies to all cases not governed by any special act; that, as the power was given by the act of 1876 to the “ board or department of the city government having control of such opening ” to open streets of the first class, as to such streets the act of 1839 was superseded. There is authority, there fore, for the proposition that the general character of the act- of 1839 is to be limited by special acts conferring power upon departments of the city government; that where such power is given m the public interest, and it is attempted to be exercised, it cannot be nullified by án appeal to the act of 1839, conferring the right, upon the majority of property owners to be affected. See, also, In re Board of Street Opening 16 St. Rep. 91. In this last case it appeared that the legislature declared that a certain plot of land thereafter should be known on the map of the city as a public place; held, that section 990 had no application to such a proceeding, but referred only to cases in which there were both awards for damages and assessments for benefits, not to those in which a tax was laid upon the city at large. Although, as now found in the consolidation act, the classification of streets in regard to other portions of 'the city is not so marked or distinct, it will 'be found that a distinction is always made between those streets that are tó be opened pursuant to the power conferred upon the-public authorities, and those opened upon the application of the-property owners. Section 955, c. 410, of the Laws of 1882, and chapter 185 of the Laws of 1885, authorized the board of street opening and improvement to lay out and open streets, avenues, etc., “ wherever they may deem it for the public interest so to-do ;” and the counsel to the corporation is required, upon the request of said board, to immediately take proceedings to acquire title to the land to be taken. Section- 963, c. 410, of the Laws of 1882, authorizes the mayor, aldermen, and commonalty of the city of Hew York to open any street, avenue, etc., laid out by the commissioners under the act of 1807, either of their own volition, or upon the petition of three-quarters of the linear frontage thereon. It provides:

“* * * And also whenever and as often as so many proprietors of lands fronting on any such street * * 1 * as shall together own three-fourths parts of all the lands fronting on such streets * * * shall by petition desire the said mayor, aider-men and commonalty to open any such street * * * and the said mayor, aldermen and commonalty shall deem the opening thereof to be necessary or useful it shall be lawful for the said mayor, aldermen and commonalty to cause the same to be opened.”

We think that there is force, therefore, in the claim of the city that this classification of streets into those that the public authorities could open of their own accord, and those for the opening of which proceedings should bé initiated by the property owners themselves was not intended to be disturbed by the act of 1839, of which section 990 of the consolidation act is a part In different portions of the consolidation act, we find the right conferred upon the public authorities, whenever they deem it for the public interest, to open streets, avenues, or public places. If it could be held that section 990 had reference to proceedings so initiated by the public authorities, then it necessarily would be restrictive of the power which, in the broadest terms, is given to them, whenever they deem it for the public interest, to open and lay out streets and public places. As stated, the act of 1839 was general, and related to all proceedings connected with public improvements wherein there were assessments and awards. ' But the acts of conferring the power upon the different boards and departments of the city, being special, must be given force and effect, in view of their purpose and scope, and in the public interest. We think that this can be done by leaving, as the legislature undoubtedly intended to leave, in the public authorities, the right to proceed with public improvements in the way of street openings, without interference by a majority of the owners affected by such improvements. But in regard to streets and avenues, where such officers proceeded upon the petition of the property owners themseves, we think that section 990 applies; and upon the coming in of the report, if it appears that a majority in interest object, they have the right to discontinue the proceedings. This construction only can harmonize the conflicting provisions of the consolidation act, relative to public improvements.

In this particular case, we think, £or another reason, that the judge below was right. It is true that the appellants are the owners of the equity of redemption in lands abuttings upon the proposed street; but it also "appears that such lands are mortgaged for very large amounts, and that the mortgagees were neither present upon the motion, nor have they consented to a discontinuance of the proceedings. That the mortgagees have such an interest in the property, within the meaning of the section, we think apparent. As they have not united with the owners of the equity of redemption, it cannot be said, upon the evidence furnished to the court below, that those appearing and consenting represented a majority in amount of those who were interested.

We think the order below was right, and should be affirmed, with $10 costs and disbursements.

All concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    In the Matter of Widening of Riverside Avenue.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

      1. Condemnation proceedings—Absence op commissioner.
    The absence of one of the commissioners from some of the meetings does not invalidate the proceeding.
    3. Same—View.
    Commissioners, appointed in a proceeding under chap. 548 of 1893, may view the premises as they are authorized to do in a street opening proceeding.
    3. Same—Rule op damages.
    In such proceeding, the true rule of damages is the diñerence between the value of what remained and the value of the whole lot.
    Appeal from an order confirming the report of the commissioners of appraisal.

      Truman H. Baldwin, for app’lts; J. P. Dunn, for resp’t.
   Van Brunt, P. J.

In 1892 the legislature passed an act providing for the taking of land for the widening of Riverside Drive, between 127th street and Claremont avenue, which widening consisted in taking fourteen feet from the lands on the easterly side thereof. Commissioners of appraisal were-appointed in pursuance of said act, and, they having reported, the report was confirmed, and from the order of confirmation this appeal is taken.

There is no question about the fact that the report of the commissioners of appraisal is subject to the supervision of this court; otherwise there would be no necessity for any application to the court for confirmation. The mere fact that such application is required to be made shows that it was the intention of the legislature that the court should have control and supervision over the action of the commissioners.

In the case at bar it is urged that the awards were contrary to the evidence, and were calculated upon an erroneous principle, and that the commissioners were guilty of misconduct, because they viewed the premises, which they had no authority to do. It is also claimed that the report should be set aside because one of the commissioners took very little part in the matter of appraisal. In the consideration of these objections, it is proper that they should be taken up in their inverse order of statement. The fact that one of the commissioners was not present at most of the hearings does not seem to invalidate the proceeding. Laws 1882, chap. 410, §§ 967, 989. In any event, our attention is not called to any statute which has any such ..effect. The claim that the commissioners erred in viewing the premises is founded upon the meager phraseology of the act under which the commissioners of appraisal acted. The act provides that the counsel of the corporation, on the petition of the commissioners of public parks in said city, shall apply to a special term of the supreme court in the first judicial department for the appointment of commissioners of appraisal to ascertain and determine the loss and damage to the owners of the property required for such widening in consequence of relinquishing the same to public use. All provisions of law in-relation to notice of application for the appointment of commissioners of estimate and assessment in street opening proceedings, and in relation to hearings thereon, the making and confirmation of the report thereon, and the taxing of costs, and the amount thereof, and the payment of awards made for lands taken, shall be applicable to proceeding under this act, provided that no assessment for benefits shall be made in said proceeding; but the expenses incurred for the improvement shall be paid in the manner hereinafter provided. It, was evidently the intention of the legislature that the commissioners-of appraisal should proceed in the same manner in which similar commissioners in street opening proceedings were required to proceed by law. The provision of the statute is that all the provisions of law in reference to notice of application for the appointment of commissioners, in street opening proceedings, and those in relation to hearings thereon, and as to the making and confirmation of the report, etc., should be applicable. It would be impossible for the provisions of the statute in reference to hearings to be applied without the proceedings which under the street opening act are preliminary to the hearing should have been also performed. In street opening proceedings it is provided that the commissioners may view the lands ; and then they are to make a just and equitable estimate and assessment, and to file proper maps; and then comes the provision granting to objectors an opportunity to be heard. Without these preliminary proceedings, there would be nothing in respect to which the objectors could be heard; and it is the clear intent of the act that the commissioners, after the hearing only, shall have authority to make corrections or alterations in their assessment, which the said commissioners, or any two of them, shall find to be just and proper, and after this their report is to be presented to the court for its action. The commissioners, therefore, would seem to have had the authority to view the premises if they considered it necessary for the purpose of appraisement The next question to be considered is that of the damage which has been awarded for the taking of the property in question. We see no reason for interfering with the conclusion of the commissioners in that regard. We think the claim advanced upon the part of the appellant is not well founded, and that the commissioners adopted the true" rule of damage, which was the difference between the value of what remained and the value of the whole-lot, including the 14 feet taken for this improvement. It is true that the commissioners had no right to take into consideration the question of benefit, as they were not authorized to levy any assessment for benefits. But the ordinary rule of damage is the differ-once "between the value of the thing as damaged and its value in its original condition. This seems to have been the rule applied by the commissioners in the case at bar, and fully indemnified the owners of the lands for the property taken.

The order appealed from should be affirmed, with costs.

All concur.


author: O'Brien, J.

text:
    Louis Munzinger, App’lt, v. Courier Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Pleading—Amendment.
    Where there is merely a misnomer or some defect in the designation, and not a substitution or change of the party, an amendment will be allowed.
    Appeal from an order, denying a motion to amend the summons and compaint.

      Benjamin Patterson, for app’lt; Ansley Wilcox, for resp’t.
   O'Brien, J.

The plaintiff brought an action for libel against the Courier Company, alleging upon information and belief, that it was a domestic corporation, and the proprietor and publisher -of a newspaper called the “Buffalo Courier.” The amended answer, while admitting that the Courier Company was such proprietor and publisher, denied that it is or ever was a domestic corporation ; and this answer is verified by George Bleistein, who deposes that he is president of the Courier Company. Upon service of this answer, plaintiff, upon an affidavit showing that he had inadvertently sued the defendant as a domestic corporation, when in fact it is an unincorporated association doing business under the name of the Courier Company, and that there is no corporation by the name of the Courier Company, moved for leave to amend the summons and complaint by making the title of the defendant “George Bleistein, as president of the Courier Company,” . and by changing the allegation that the defendant was a corporation to one that it was an unincorporated association.

There is no question made but that, if the defendant is an unincorporated association, the Code provides that it may be sued in the name of its president, or all its individual members may be sued, if known to the plaintiff. Code Civ. Proc. § 1919. The real question is as to whether the court had power to allow the amendment in the title. The judge at special term denied the motion for leave to amend upon the authority of the case of New York State Monitor Milk-Pan Ass'n v. Remington Agr. Works, 89 N. Y. 22, wherein it was held that the Code, § 723, does not authorize the striking out of the name of the sole defendant in an action, and the insertion in lieu thereof of the names of other persons as defendants; and the reasons given are that the effect of striking out the name of the defendant, and inserting the names of three other persons as defendants in lieu thereof, “is to continue the action against other and different parties than the one named thus substituting a cause of action with new and other defendants.” In the opinion, the case of Bassett v. Fish, 75 N. Y. 303, is cited, wherein it was held that the complaint could not be Amended by striking out the names of the defendants, who were sued as school trustees, and inserting the name of the corporate board of education to which they belonged. In both these cases it will be noticed that the persons sought to be brought in were different from those upon whom process had been served; and these decisions go to the extent of holding (and very properly) that, where one person or corporation is sued, another and different person, upon whom process has not been served, cannot be brought in as a sole defendant, by way of substitution. This is clearly pointed out in the dissenting opinion of the general term in New York State Milk-Pan Co. v. Remington's Agr. Wks., 25 Hun, 479, which was the one receiving the approval of the court of appeals. Among the other cases therein collated and discussed, reference is made to Newton v. Manufacturing Co., 17 Abb. Pr. 318, note; Tighe v. Pope, 16 Hun, 180 ; and Bank of Havana v. Magee, 20 N. Y. 355. As therein said:

Newton v. Manufacturing Co. is a special term case, briefly reported, where the plaintiff, in ignorance of the true name of defendants, and supposing them to be a corporation, which they were not, had sued them by the name in which they transacted their business. He was allowed, on motion, to substitute their names as defendants, under section 175 of the old Code of Civil Procedure. If the plaintiff in the present case had made the Remington Agricultural Company defendant, supposing it to be a corporation, this case would have been like that cited. As it is, the analogy fails, because the plaintiff has not sued Philo Remington and his partners, but has sued an existing corporation, which is entirely distinct from them. In the case cited there was no corporation, but the name inserted in the summons as that of the defendant was the partnership name of the very persons whose real names were afterwards substituted. Ho new person was brought in. The real defendants had been sued under their partnership name. * * * The case of Tighe v. Pope was one where an action was brought against one, describing her as administratrix, and asking judgment against her as such. The motion was to strike out the words ‘as administratrix. The court held that it should be granted, remarking that, ‘whether the amendment were allowed or not, the same person will be defendant.’ * * * The case of Bank v. Magee was one where the plaintiff miscalled himself by the name ‘Bank of Havana,’ instead ■of using his true name, ‘Charles Cook.’ An amendment giving his true name brought in no new party. There was no person, natural or artificial, called ‘Bank of Havana,’ but that name was one used by Cook, the real plaintiff, in his business. Like the case last cited, therefore, the amendment brought in no person who had not in fact been a party previously.’’

In addition to the above, we have a special term decision of this court, of McKane v. General Committee, 21 Abb. N. C. 89, where a voluntary, unincorporated association was sued in its own name, but the summons was served on its president; and an amendment to the title of the action was allowed, changing the defendant’s name to that of its president, in order to comply with the Code of Civil Procedure, § 1919, allowing such an association to sue or be sued in the name of its president or treasurer. As therein said

“ The plaintiff endeavored to bring into court the voluntary association, against which he seeks to enforce some right. He has caused the proper officer of that association to be served with process, and has simply omitted to name that officer in the title of the action as president of the association.”

It is true that in the case last cited the plaintiff did not, as here, sue the defendant as a corporation : but in that, as in the other cases cited, the distinction between a case where an amendment, will and where one will not be allowed is pointed out, viz., that, where there is merely a misnomer, or some defect in the designation, and not a substitution or change of the party, the amendment will be allowed. The question, therefore, is whether there is here sought a change of .the party defendant. The plaintiff is, suing the proprietor and publisher of the Buffalo Courier, which is called the Courier Company, and does business under that name. This the defendant admits, denying merely that it is a corporation. The amendment desired is not to substitute an individual, but to change the name so as to conform to the statute. It is the Courier Company, publisher and proprietor of the Buffalo-Courier, that will still be the defendant; but as it turns out that, instead of being a corporation, it is an unincorporated association, the title of the action must be changed. The amendment asked is precisely the same as if a person were sued as administrator of A., and it subsequently appearing that he was not such administrator, but was the administrator of B., an application shbuld then be made to amend so as properly to designate the party defendant. That the court has the power to allow such an amendment,, under section 723 of the Code, in furtherance of justice, has been, many times held, and yet such an amendment is nothing more than the plaintiff here asks; that is, to bring in a party doing business under a name equally suited to either a corporation or an unincorporated association, and which he finds, upon the party appearing in court, has been incorrectly described or misnamed, but which he still wishes to retain in court, after amending the process and pleadings so as properly to designate the defendant. In other words, there is no change of party, the same individual being still before the court, but, having misnamed him, it is proposed to correct such misnomer, which we think.the court, in a. proper case, has the right to permit. The error into which the plaintiff fell was a natural one, and his failure properly to describe-the defendant is satisfactorily explained. There being no denial of the merits, and no loches having been shown on the part of the-plaintiff iri moving,—it having been denied by the court below solely upon the ground of want of power,—we think that the order should be reversed, with $10 costs and disbursements to appellant, and the motion for leave to amend granted upon payment by plaintiff of the costs of the action up to the date of the service by plaintiff of his notice of motion.

Follett, J., concurs; Van Brunt, P. J., dissents.


author: Titus, C. J.

text:
    Olive E. Waters, Pl’ff, v. Albert S. Waters, Def't.

      (Buffalo Superior Court, Special Term,

      Filed January, 1894.)

    1. Service and Proof—Publication.
    Publication in the “ Buffalo Daily Transcript ” is not such a variance from the terms of an order for publication in the “ Daily Transcript ” as to invalidate such publication, where there is no other paper published in the city of Buffalo .at such time bearing a similar name.
    2. Same—Affidavit.
    The affidavit is sufficient, though it describes the affiant as manager, and not as printer and publisher, or his foreman or principal clerk.
    3. Same—Time to Answer.
    The time for the defendant to answer does not begin to run until the expiration of six full weeks from the day of the first publication.
    4. Same—Jurisdiction.
    An omission to publish once a week for six successive weeks is a jurisdictional defect.
    Motion for an order to show cause why defendant’s property should not be sequestered, and a receiver appointed, in order to satisfy a decree of divorce granted to plaintiff against defendant, allowing her alimony.

      Daniel J. Kenefick, for pl’ff; W. W. Woodworth, for def’t.
   Titus, C. J.

This matter is brought before the court on an order to show cause by the plaintiff why the property of the defendant should not be sequestered, and a receiver of the rents and profits appointed, and by him paid over to the plaintiff, and applied in satisfaction of a decree of divorce granted the plaintiff against the defendant, allowing alimony to her. It appears that the parties, who were husband and wife, were divorced for the adultery of the defendant, and in the decree the defendant was ordered to pay $46.46 costs, and $8 a week, from the date of the decree, for the support and maintenance of the plaintiff and her children of the marriage. The judgment was signed, and entered in the office of the clerk of this court, on the 30th day of October, 1883. No portion of the sum directed to be paid has ever been paid by the defendant, and at the time this motion was made it amounted, with interest, to $5,498.06. The defendant is a resident of Chicago, and recently, by .the death of his father in this city, inherited enough property to pay the amount now due under the decree. The defendant opposes the granting of the order on various grounds,—among others,' that no valid service of the summons was ever made upon the defendant, and that at the time of the application for judgment the defendant was not in default, even if there had been a good service of the summons upon him. The consequences of a decision either way are so serious that I have taken considerable pains to ascertain the law of the case, and have made inquiry outside of the record for some additional facts which would throw light upon the subject; but the lapse of time, and the loss or destruction of the papers in which the summons was published, have rendered futile all efforts in that direction. The question is most important for the reason that, shortly after the divorce was granted to the plaintiff, she again married, and is now living with her husband, and has one or more children by " him, in the assurance that she was legally and duly divorced from the defendant. Then, the sum which the defendant is called upon to pay. would practically require all of the property which he has inherited from his father, and, as she has been supported and maintained by her present husband, it seems a hardship to require the defendant now to make, full payment. The decree reserves to the defendant the right to move the court at any time to alter the allowance for alimony ; but no application for the purpose has ever been made, and the court is not now asked to modify the decree in that respect. Kamp v. Kamp, 59 N. Y. 223. It appears that the action was commenced on the 21st day of May, 1883, by delivering the summons to the sheriff with instructions to serve it upon the defendant. She did not succeed in getting a service, and Mr. Cutting, the plaintiff’s attorney in the action, then tried to find the defendant, and discovered that he had left the city of Buffalo, but the. place of his whereabouts he was unable to learn. Thereupon he made application to the country judge of Erie county, who, on the 13th day of July, granted an order of publication of the summons in the Buffalo Evening News and the Daily Transcript, and provided in the order that the mailing of the summons and complaint and order to the defendant be dispensed with. It is claimed by the defendant that the affidavit presented to the county judge, of the inability to make a personal service upon the defendant, was not sufficient to authorize the order of publication. I am inclined to hold it sufficient. Although it is mostly on information, yet the affiant swears to his own efforts to find the defendant, and after the lapse of 10 years I do not think the judgment should be disturbed on that ground. Steinle v. Bell, 12 Abb. Pr. (N. S.) 171. It appears by the affidavits of the “foreman" of the Buffalo Evening News that the notice was published for six weeks, the first insertion being on the 14th day of July, and the- last on the 18th day of August, which would give time for six insertions on each seventh day for six weeks. The affidavit of the publication in Buffalo Daily Transcript was made by the “manager" of that publication, and it is to the effect that it was published once a week for six weeks, commencing on the 14th day of July, and ending on the 17th day of August, and that not more than six days intervened between any one publication thereof. No question is raised that the proof of publication in the Buffalo Evening News is sufficient. But the sufficiency of the affidavit of publication in the Daily Transcript is questioned. Tt is claimed that the order directed the summons to be published in the "Daily Transcript,” while it appears to have been published in the “Buffalo Daily Transcript.” I do not think this is such a variation from the terms of the order as to invalidate the publication, ,if it was legal and sufficient in other respects. There was no other paper published in this city at that time bearing a similar name, and the Buffalo Daily Transcript was undoubtedly -the paper intended to be mentioned in the order. Another objection is urged,—that the affidavit is made by a person who describes himself as “manager,” and not “printer or publisher, or his foreman or principal clerk.” I do not think this objection is well taken. The object of the statute is that the affidavit shall be made by' some person who knows that the notice was printed, and can give positive proof, and if that person is the “manager,” when there is nothing to cast suspicion upon the affidavit, the object of the statute is attained, and for that purpose the term “manager” is synonymous with “publisher” or “foreman.” I have cited no authorities in support of these holdings, for the reason that it does not seem necessary to do so, and, as I have not been referred to "any, it is probable, from the nature of the case, that none can be found.

The application for judgment was made at special term on the 12th day of September, and the first day of publication in the Daily Transcript was on the 14th day of July. Allowing 42 days to elapse before the defendant’s time to answer would begin to run, it would not expire until the 27th day of August, and the defendant would then have 20 days in which to appear and answer. This would allow him until the 16th day of September following. The default was entered on the 12th day of September, so that 62 days did not elapse before the order of reference was made. If the notice had been properly published, so that service on the defendant was complete, and application for judgment was made, before the expiration of the defendant’s time to answer, it would not affect the jurisdiction of the court over the person of the defendant, but would at most be an irregularity, Hallett v. Righters, 13 How. Pr. 43, and would not necessarily render the judgment void; and the court will not, after the lapse of so many years, set aside a judgment for an irregularity in the proceedings after the service of the summons, Soulden v.Cook , 4 Wend. 217. The defendant in this case has known of this judgment for nearly 10 years, and at this late day the consequences of such an exercise of power would be too serious to warrant the court in interfering to set it aside on that ground. Bank v. Spencer, 19 Hun, 569; Decker v. Kitchen, 26 Hun, 173 ; Skinner v. Dayton, 5 Johns. Ch. 190.

I have assumed, in what has been said, that the service was properly made, so as to confer jurisdiction upon the court to authorize the proceedings and render a valid judgment; and the provisions of section 445 of the Code with reference to allowing the defendant to come in and answer, after default, as well as fixing the limit after which no judgment will be set aside, must be understood and considered, on the assumption that legal service of the summons has been made, as provided by the statute, “ that the summons has been served pursuant to an order made as prescribed in this article,” and the court obtained jurisdiction of the person of the defendant by complete service. Hallett v. Righters, supra. It is claimed by the defendant that the proof of publication in the Daily Transcript is not sufficient, in that, if the first publication was on the 14th day of July, and the last on the 17th day of August, including both dates, it would be only 35 days, and, as no publication was made on the thirty-sixth day, there was no publication made in the sixth week at all, and hence there was not a publication “ not less than once a week for six snccessive weeks,” as required by section 440 of the Code. If no legal service of the summons was made as required by the Code, then the court obtained no jurisdiction, and all proceedings thereafter had are void, and no valid decree could be entered. This presents the most serious question to be determined. Section 441 of the Code provides: “ For the purpose of reckoning the time, within which the defendant must appear or answer, service by publication is complete, upon the day of the last publication pursuant to the order. *' * *” Section 137 of the old Code provides: “In the cases-mentioned in section 135, the service of the summons shall be deemed complete at the expiration of the term prescribed by the order for publication.” It would seem, from the language of this section, that the service would not be complete until the end of full six weeks, while under section 441 of the new Code the time would appear to be complete ‘‘upon the day of the last publication pursuant to order.” In other words, under the old Code the time to answer would commence to run at the expiration of 36 days, if that was the last day of publication. This construction was given section 137 of the old Code by the supreme court in Richardson v. Bates, 23 How. Pr. 516, where it was held that the service was not complete until the end of 42 days, and that the defendant’s time to answer did not begin to run until the service was complete, after which he had 20 days in which to answer. But this question is no longer an open one. The court of appeals, in Market Nat. Bank v. Pacific Nat. Bank, 89 N. Y. 397, after reviewing the authorities under the old Code, came to the conclusion that section 441 had not changed the rule existing at the time of the adoption of the present Code, and that the defendant’s time does not begin to run until the expiration of 6 full weeks, or 42 days, after the first publication. The question was directly before the court, and the opinion of Judge Miller was concurred in by all of the judges taking part in the decision of the case. In this case the first publication was on the 14th day of July, and the last on the 17th day of August, which would allow but 35 days, counting the first and last days of publication ; so that there could not have been a publication in 6 different weeks, because, counting the first and last days of publication, there would be but 5 weeks, of but 7 days each, and, to have a publication on the sixth week, the last publication must have been on the thirty-sixth day. If a party, under this provision of the Code, is not required to publish the summons in the sixth week, there is no reason why he should not publish it in the fifth or fourth weeks, only so that there are six insertions. This was" not the intention of the legislature, as the court of appeals has held. The omission to publish once a week for six successive weeks is not a mere irregularity. The court gets no jurisdiction over the person of the defendant unless the statute in this respect is conformed to. The proceedings to procure service by publication are jurisdictional facts. The court can amend any proceeding after the service is complete and jurisdiction obtained, but cannot amend any of the proceedings necessary to confer jurisdiction upon the court. The provision of the statute must be strictly pursued and fully complied with, to confer jurisdiction. Hallett v. Righters, supra. The judgment obtained on defective publication is absolutely void. The judgment roll in this case does not show, on its face, facts which confer jurisdiction upon the court.. It is the absolute right of a party to arrest and stay proceedings upon and vacate a void judgment upon which active proceedings are in progress to enforce the same, and to deprive him of his property and compel obedience to its mandates. Kamp v. Kamp, 59 N. Y. 223; Kinnier v. Kinnier, 45 N. Y. 535. It is not necessary in this case to vacate the judgment. No application is made for that purpose. The defendant simply contests the plaintiff’s claim to have the judgment enforced against him for the collection of alimony, and I have ño doubt of his right to invoke the áid of the court to protect him against its enforcement. If the position taken is correct, the motion of the plaintiff should be denied, but I think it should be denied without costs.


author: Bradley, J.

text:
    In the Matter of the Probate of the Will of Almira Pike, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed December 26, 1894.)

    1. Will—Capacity.
    Mere mental and physical weakness, incident to old age, does not render one incapable of making a will.
    2. Same—Undue Influence—Juey Tbial.
    Upon the reversal of a decision refusing probate to a will on the ground of undue influence, such question should be tried by a jury.
    Appeal from a decree denying probate.

      Walter S. Hubbell, for app’lt; William K Werner, for resp’ts.
   Bradley, J.

By the terms of her propounded .will, bearing date December 26, 1892, Almira Pike, having directed the payment of her debts and funeral expenses, and to the payment to the city of Rochester of a suitable sum to keep her burial place in repair, gave all the rest, residue, and remainder of her property and estate, real and personal, to Sophia T. Birdsall, upon the condition that she remained with and attended upon the decedent during the life of the latter, and nominated her to be the executrix of the will. In the proceeding instituted by the petition of Mrs. Birdsall for its probate, Charles H. Newton and AnnaE. Forbush appeared as contestants. The probate of the instrument as the will of the decedent was denied upon the ground that she was not competent to made a will, and that she was unduly influenced by Sophia T. Birdsall to make it. The will, in manner'and form, was duly executed, and had prima facie support as such by the evidence of the subscribing witnesses. The questions arising upon the evidence introduced at the hearing were those of fact, having relation to the capacity of the decedent, and to the causes by which the making of the instrument by her was induced. She was a childless widow, eighty-two years of age, and had resided for many years in the city of Rochester. For some years prior to and until in November, 1892, she had been attended by a Miss Scott, who, then having become insane, was taken to an asylum. Thereupon the proponent, through a person acquainted with her, was recommended and introduced to the decedent. This was about the middle of November, 1892. The will was made the 26th of December following, and Mrs. Pike died January 28, 1893.

It may be observed that, while the contestants were her heirs= and next of kin, she never had seen or known them. They resided in the state of Massachusetts, in which state she, in her early life, had lived; and, so far as appears, she had no communication with any relatives there or elsewhere. She lived substantially alone, having intimate and friendly relations with at least some of her neighbors. This isolation of herself from her relatives detracts somewhat from the apparent significance of the omission to make them objects of her bounty. But evidence on the part of the contestants was given tending to prove that at the time the will was made she was in such feeble condition, mentally, as to-render her incompetent °to make testamentary disposition of her property. This evidence was in the testimony of witnesses-to the effect that within the year or more preceding her death there had been an apparent change in her mental condition ; that she failed to recognize some of her friends and acquaintances when they called upon her; that she manifested less interest in her own affairs ; that she would carry on no conversation, and at times acted queerly, as they expressed it, and failed on certain occasions to-observe the amount of sums of money paid to her, or to correctly recognize and state the denomination of bills and coin when she handed them out to be used for her purposes; and some medical opinions, based upon hypothetical questions, were to the effect that Mrs. Pike "was not rational at the time in question. As bearing upon her competency to take care of her property, and upon her susceptibility to influence, it was proved that a few years prior to her death she loaned to one Pierpont $3,000, and took the note-of him and his wife, payable in three years, without other security, and that Pierpont'turned out to be unable to pay the note; that in February, 1890, she conveyed to Edwin Yan Yorst a house and lot near that occupied by her, by deed expressing the consideration of one dollar, and reserving to herself a life estate in the premises; that she received no greater consideration than that expressed in the deed. The amount so loaned .constituted the larger portion of the money she then had, and her only real property remaining, other than such life estate, was the house and lot where-she resided up to the time of her death. Yan Yorst had occupied, the house so conveyed to him a number of years before the deed was made, and thereafter he paid her rent at the rate of $13 per month. On the part of the proponent evidence was given to the effect: That Mrs. Pike, after she had made the deed, referring to that fact, stated that the premises belonged to Yan Yorst, and that the deed to him, reserving to her a life estate, was as she desired it, and that she expressed friendship for Mr. and Mrs. Yan

Vorst. That, in respect to the loan to Pierpont, she said, substantially, that she had known him for a long time,—had acted as nurse in his family some years before; that she thought him honest ; that she recognized the fact that he was unable to pay; and that the money was lost. And further evidence on the part of the proponent on the subject of the mental capacity and condition of Mrs. Pike for a period of time covering that when the will was-made, and up to near the time of her death, tending to prove that she was intelligent, maintained her acquaintance with and relation to her friends and neighbors, recognized them, understood what she did, and was rational. It is unnecessary to refer specifically to the evidence pro and con upon the subject. The evidence is in the testimony of a large number of witnesses, and there is a marked conflict in that of those called by the respective-parties, bearing upon the capacity and condition of the decedent. It may be assumed that she had the feebleness of old age, both mentally and physically. This did not necessarily render her incapable of making a will, nor was she so if she was rational, and had sufficient capacity to comprehend the condition of her property, her relations to the objects of her bounty, and the scope and bearing of the provisions of her will. Van Guysling v. Van Kuren, 35 N. Y. 70; Horn v. Pullman, N. Y. 269. The feeble condition of the decedent rendered her the more susceptible to artifice, fraud, or undue influence. While the burden of showing undue influence was with the contestants, it cannot well be said that there was no evidence bearing upon that proposition. Tyler v. Gardiner, 35 N. Y. 559 ; McLaughlin v. McDevitt, 63 N.. Y. 213; In re Budlong, 126 N. Y. 423; 38 St. Rep. 436. The fact, that Mrs. Birdsall, until a month and a half before the-will was made, had been a stranger to the decedent, and that she was the sole attendant having the care of her when it was made, together with the fact that Miss Scott, who had been in that relation to her for some years, and then in the asylum, was not recognized as an object of her bounty, are circumstances for consideration upon the question whether or not the will expressed the voluntary purpose of the decedent, and was her voluntary act. Rollwagen v. Rollwagen, 63 N. Y. 504. There is, however, some evidence tending to prove that Miss( Scott, in her attendance and care-upon Mrs. Pike, had not been entirely satisfactory to the latter, while the proponent had been quite so, and that the decedent was much pleased with her attendance and care, and desired the continuance of such relation during her life,—a period then uncertain,, and during which, as age and feebleness increased, the care required might become more indispensable, and substantially incessant, and the burden as well as the responsibility of it greater. Whether or how long she might be entirely helpless was unknown at the time the will was made. While the fact that Mrs. Birdsall had until recently been a stranger to the decedent is one for consideration upon both questions, the latter may have been prompted, by reasons satisfactory to herself, to dispose of her property as she-sought to do it, upon the condition expressed in the will. Her right to do this cannot be questioned, if she was competent to make a will, and if the one in question was her voluntary act. In ire Will of Mondorf 110 N. Y. 450.

It appears by the record that it contains all the evidence given upon the hearing, and therefore the questions of fact are here for review, and to be considered de novo. Code, § 2586. We are not entirely satisfied with the conclusion reached by the surrogate upon the facts, and as to what the result upon the evidence should be is a question of doubt. The matter should be sent to a jury. Howland v. Taylor, 53 N. Y. 627 ; In re Lansing, 17 St. Rep. 440; Van Ornam v. Van Ornam, 34 St. Rep. 824. The decree of the surrogate should therefore be reversed, with costs of this appeal, payable out of the estate, to abide the event of a new trial in the circuit court of Monroe county of the questions: First. At the time of the execution of the will, on December 26, 1892, did the •deceased have testamentary capacity ? Second. Was the instrument purporting to be her last will and testament voluntarily made by her? Third. Was the instrument purporting to be the last will and testament of the decedent obtained, and the execution thereof procured, by fraud, circumvention, or undue influence practiced upon her? All concur.


author: Parker, J.

text:
    Edward Spencer Hall, App’lt, v. Herter Bros., Res’pt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Corporation—Contract—Assumption.
    Where a corporation succeeds to the business of a firm, it does not assume all the contracts of the latter, in the absence of an agreement to such effect.
    35. Same—Transaction op Business.
    Where there are but few interested in the management of a corporation, ordinary business may be transacted without the formality of resolutions.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      C. N. Bovee, for pl’ff; Julius H. Seymour, for def’t.
   Parker, J.

The plaintiff, in January, 1890, made a contract with the firm of Herter Bros., under which he claims there is over $3,000 due ; and this sum he salys Herter Bros., a corporation, is legally bound to pay. William Baumgarten and William Gh Nichols were for a number of years prior to the month of January, 1891, partners doing business under the firm name of Herter Bros. During that month, Baumgarten and Nichols promoted a corporation under the name of Herter Bros., joining with themselves, as incorporators, a brother of Baumgarten, Nichols’ father, and Arthur Norton, their salesman. To this corporation there was conveyed and transferred all the real and personal property -of the partnership. The instrument by which all of the partnership property of Herter Bros, was turned over to the corporation Herter Bros, contained no promise to pay the debts of the partnership. About a year prior to this transaction, plaintiff entered into a contract of employment with the firm of Herter Bros., by which he was to receive 5 per cent, commission for obtaining and supervising the execution of contracts in the line of business in which the firm was engaged; the plaintiff to draw from the firm during the year $75 a week on account, and at the end of the year his account to be credited or debited, dependent upon the amount of commissions earned by him during the year, and the balance paid to him, if a credit, and charged to him, if a debit. Thereafter plaintiff entered into negotiations with W. L. Elkins for fitting and decorating his house. Ho prepared estimates, in connection with the partners, for doing the work, which called for $68,860. Subsequently Mr. Elkins’ representative informed the firm that it would be impossible to accept the estimate in competition with other houses, and that it should be lowered. It is claimed on the part of the defendant that there were conversations between Baumgarten and plaintiff about cutting down the estimate $5,000, the result of which was a special agreement between them that plaintiff should accept one-half commissions on that particular contract, rather than lose it, and that the rest of the deductions should be borne by the firm. * The fact is that the contract was entered into between Elkins and Herter Bros., and by reason of the extra work done the total sum paid by Elkins to the firm and corporation of Herter Bros, was $127,225. On this amount, commissions at the rate of 2% per cent, were paid to the plaintiff before the commencement of this action. He seeks now to recover the other 2J per cent.

The question whether the plaintiff and Herter Bros, made a special agreement, as contended by the defendant, with reference to the Elkins contract, was not reached in the trial court, the court holding that the plaintiff had failed to show that the corporation of Herter Bros, the assumed the liabilities of the firm of Herter Bros. We have omitted to say that the corporation took up and carried out all the contracts which the firm of Herter Bros, had made for the fitting and decoration of buildings, including the Elkins contract. From the record which comes to us of the discussion between the learned trial judge and the counsel for the plaintiff at the close of the testimony, we understand that the plaintiff largely relied upon the assumption of the Elkins contract by the corporation to support plaintiff’s right of recovery. He contended that inasmuch as Hall procured the contract with Elkins, and, was under agreement to supervise it until its completion, the assumption of the Elkins contract by the corporation necessarily carried with the assumptiqn of all other contracts which Herter Bros, had entered into for the purpose of obtaining and executing the Elkins contract. This we think was a mistaken view, and, without stopping to discuss the authorities which appellant has cited, we concur in the position taken by the trial court on that question. The contract which Herter Bros, had with this plaintiff had no connection with the contract which they had with Elkins. Their contract with the plaintiff was not only entered into months before the Elkins agreement, but was intended to secure the services of the plaintiff in procuring, not the Elkins contract, but as many contracts as possible. It required more of him than that he should obtain the contracts. He was to supervise them as well. They were entirely independent contracts, and it was within the power of the corporation to assume the carrying' out of either one of them without being bound to fulfill the contract with the firm of Herter Bros, as to 'the other.

But the record presents another question, and that is whether there was not such evidence of assumption of plaintiff’s contract by the defendant as entitled to him to have that question submitted to.the jury. It was within the power of the corporation to-assume the contract which the partnership had with the plaintiff, as well as the Elkins contract. Not by any resolution or formal action on the part of the incorporators of the corporation, by an instrument in writing, or by any oral agreement, was it in terms provided that the partnership obligation under the contract with Hail should be assumed by the corporation. But the evidence on that subject is such as tends to support the inference that it was intended by both parties to the original contract, and the directors and officers of the corporation, who were the stockholders as well,, that it should be assumed by the corporation.

This brings us to the question whether there is not evidence of such conduct on the part of the corporation, and its officers as would authorize a finding that the corporation ratified, adopted, and made binding the informal and unenforceable understanding which a jury might find from the evidence to have existed,—an understanding which induced action on the part of plaintiff, of which the defendant received the benefit. While a corporation is not bound by the engagements made on its behalf by its promoters before the organization, it may, after it is organized, make such-engagements its contracts by adopting them as its own. Less evidence tending to show adoption will be required to-establish it- where the officers were also the promoters than where the officers and promoters were different persons. It should be borne in mind, as we refer to the acts tending to show adoption of the partnership contract with the plaintiff, that there were but five incorporators of this corporation, and their relation to the business, of the firm of Herter Bros., which became Herter Bros., a corporation, was as follows : William Baumgarten and William G. Nichols constituted the partnership; Arthur Norton was a salesman, and had been in the employ of the firm 10 or 12 years ; Emile Baumgarten was a brother of William, andl had been in the employ of the firm a year or two ; William S. Nichols was the father of William G. Nichols, one'of the parties; and the stock vrhicli was subscribed by the incorporators, other than the partners, was given to them in order to qualify them for the purposes of incorporation. After incorporation, its officers were as follows: William Baumgarten, president; William G. Nichols, vice-president and treasurer; and Arthur Nichols, secretary. Now, when there are so few interested in the management of a corporation, ordinary business may be transacted without the formality of resolutions. It may be done by conversation, without formal votes. Melledge v. Iron Co., 5, Cush. 158 ; Sheridan Electric Light Co. v. Chatham Nat. Bank, 52 Hun, 582, 24 St. Rep. 622 In the latter case the trustees of the plaintiff were five in number, one of whom never qualified or acted, and another of whom had been present at only one of the earlier meetings of the board. The court said:

“ The stock of the company was substantially owned by the three members of the committee, and by a Mr. Sheridan, for the employment of whose inventions it was incorporated. And, where that is the nature of the corporation, it is not essential that the selection of the committee shall be by formal resolution of the board of trustees, entered in their minutes ; for it has been held that where a corporation consists of a small number of persons, like a partnership, they may transact all their business by conversation, without formal vote.”

Some features of the testimony tending to show an adoption of plaintiff’s contract with Herter Bros, will now be referred to. In the first place, the president of the corporation testified :

“ We also had several conversations with Mr. Hall, requesting him to continue under the same conditions with the corporation that he had under the old copartnership,—continue the same way he did before. That ■ has been repeatedly discussed by Mr. Nichols and myself with him. All of the debts of the partnership were paid by the corporation. All of my associate incorporators knew of the existence of Mr. Hall’s contract, and of the Elkins •contract.”

The Mr. Nichols referred to in Baumgarten’s testimony was the vice-president and treasurer, and one of the principal stockholders, of the corporation. From Baumgarten’s testimony, the inference may be legitimately drawn that Hall was informed by him, after the incorporation, that he was to have the same commissions on sales and continuance of sales as before. The plaintiff assented to this proposition, and thereafter continued to supervise, and attend to the execution of, their contracts, including the Elkins contract, about which the officers frequently conferred with him. It should be borne in mind that plaintiff’s work was not ended when he had procured the making of the contract between Herter Bros, and Elkins. The receipt of his commissions was further made dependent upon his attending to the supervision and completion of the contract, and he not only continued to supervise the work, which seems to have been done to the entire satisfaction of the corporation, but he was given instructions and directions by the officers during its performance. January 11, 1892, nearly a year after the incorporation, defendant, in response to plaintiff’s request for settlement, sent him the following letter :

“ Herter Bros., 154 Fifth Avenue.
W. Gr. Nichols, President and Treasurer. Arthur Norton, Vice President and Secretary.
“ New York, Jan. 11, 1892.
“ E. S. Hall. Esq.-—Dear Sir : Inclosed herewith find check for $400 on acct. There are several matters to be settled up yet, such as Barney, Rose & Stone, and the Elkins matter; and if you will do your share, and hasten what you can to a settlement of these accounts, you, of course, will receive a prompt settlement in all these and other matters. Do what you can.
“ Yours, very truly, . Herter Brothers,
“ H. B. Decosta.”

This letter, it will be observed, contained a distinct recognition of the fact that he was at work upon the contracts in which the corporation was interested, including the Elkins contract, and, further, an assurance tlxat defendant would pay him as soon as matters should be closed up. About a month later, defendant paid plaintiff commissions at the rate of per cent, on the entire amount of the Elkins contract, and the reason assigned for refusing to pay the other 2% per cent., when it was demanded by the plaintiff, was not that the defendant was under no obligation to pay him his commissions, but that there was only 2% per cent, commissions due to him on the Elkins contract, because of a special agreement entered into by him with the firm, at the time tlxe contract was taken, that 2Í¿ per cent., as to that particular contract, should be received by him as full compensation for his services, We are not called upon to express any opinion upon the merits of that question, for, under the evidence adduced, it was for the jury to determine whether he was entitled to full or one-half commissions on the Elkins contract, should they first find in his favour upon the question we have suggested. Our duty is ended when we announced the conclusion at which we have arrived,—that under this evidence the plaintiff was entitled to have the jury say whether the defendant is chargeable with having assumed the obligations of the contract of the plaintiff with the firm of Herter Bros. The plaintiff’s exceptions should be sustained, and a new trial ordered, with costs to plaintiff to abide the event. All concui’.


text:
    Austin Baldwin et al., Resp’ts, v. Albert Von Micheroux et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    1. Injunction—Fbaud.
    Where employes of a firm are co-operating with one of the partners to perpetrate a fraud upon his co-partners, with full knowledge on their part that such was their intent, and that it was all done in order that they, as well as the said partner, should profit at the expense of the firm, the court has power to restrain them from either proceeding further with, or consummating, such illegal scheme.
    3. Evidence—Lettebs.
    Letters written by such partner to said employes, tending to show knowledge on the part of the latter of the fraudulent practices, in which the former was engaged for their mutual benefit, are properly admissible against them.
    Appeal from an interlocutory judgment in favor of plaintiffs.

      Henry Schmitt, for app’lts; Willam D Guthrie, for resp’ts.
   Parker, J.

This controversy relates to the ownership of and right to use a secret or unpatented process for manufacturing tobacco flavors, and to certain trade-marks and brands, used in the business of the linn of Baldwin Bros. & Co. from the time of the commencement of this suit up to January 1,1893. Baldwin Bros. & Co. were continuously in business in the city of New York for a period of over 30 years prior to the commencement of this suit. One of the members of the partnership was George B. Seymour, one of these defendants, who had been a member of the firm for nearly 10 years, and had been one of their clerks for some fifteen years prior thereto. Yon Micheroux, from December 1883, until October, 1892, was in the employ of the firm as a traveling salesman, and the defendant Boulger had been in the employ of the firm as a-compounder or rectifier .of liquors for nearly ten years prior to the. commencement of this suit. . Boulger and Seymour had full knowledge of the secret process by which the tobacco flavorings were manufactured. Indeed, while its manufacture was suggested by Mr. Baldwin, the experiments were conducted almost entirely by Boulger and Seymour. The theory of plaintiff’s suit is that these defendants conspired together, while Seymour was-yet a partner and the other defendants in the employ of the firm,, to form a partnership for the manufacture and sale of the tobacco-flavorings, the secret process for the manufacture of which was the property of the firm of Baldwin Bros. & Go.; that their plan went beyond the manufacture and sale of the product under their own firm name, and involved a scheme to wrongfully divert the business of Baldwin Bros. & Co. to themselves. To accomplish this they caused circulars to be prepared before any of them had terminated their relation with Baldwin Bros. & Co., in which they described themselves as being the sole owners of this secret process, and made use of trade marks belonging to the partnership. These circulars they sent to those dealers who had been accustomed to do business with Baldwin Bros. & Go. That the ruin of the business of Baldwin Bros. & Co. might be more certainly accomplished for their benefit, the fact that Seymour was a member of the new firm was kept secret. He notified his partners that he should go out of the firm at their convenience, and January 1, 1893, was selected as the date of the dissolution of the firm. In the meantime he made the most of his opportunities to divert customers of Baldwin Bros. & Co. to the new firm in which his membership was kept secret. The trial court decided that the secret process belonged to the firm of Baldwin Bros. & Co. prior to its dissolution, which took place December 31, 1892 ; that the manufacture and sale of the extracts by the defendants prior to such dissolution were a fraud upon plaintiffs, and that defendants should account therefor; that an injunction should issue, restraining defehdants from representing, by the issuing of circulars or otherwise, that they are the exclusive owners of the secret process, or of the trademarks and devices used in connection with the goods manufactured by such process. The conclusions of fact upon which the judgment is based are entirely sufficient for its support, and the reasons presented by the trial court for its decision are so satisfactory as to make i-t wholly unnecessary for this court to attempt to add anything to them.

The appellants insist that there were errors in the rulings of the-trial court. Some of' the findings of fact, they urge, are unsupported by evidence. We cannot agree with them, but think there was evidence upon which to base every inference of fact. The-appellants press upon the attention of this court exceptions taken to the admission in evidence of certain letters written by Seymour to Yon Micheroux and Boulger during the time which elapsed between the agreement to form the new firm and the commencement of this suit, and from which it appears that Seymour was employed in taking away from his long-time partners all the trade he could reach. These letters disclose some of the fraudulent practices of which Seymour was guilty. They tend to «show the nature of the conspiracy to wrong Baldwin Bros. & Go., and make it clear that Yon Micheroux and Boulger were fully aware of the secret and fraudulent work in which Seymour was engaged against his old firm for the benefit of the new one. A reference to some of their letters will cause it to appear that the trial court was not in ■error in receiving them. November 14th, Seymour, then the plaintiff’s partner, wrote to his partners in the new firm, expressing his annoyance that the plaintiffs had received an order from one ■of their regular customers, and makes an inquiry which indicates a wonder on his part whether their fraudulent scheme had proved ineffective in that one case, or whether Yon Micheroux had neglected to perform his part of the work. It contains other suggestions of duplicity. But let the letter speaks for itself:

“I have just come from 58 Broadway, and I am very much annoyed to report we rec’d to-day 90 gal. order from Stern Bros., Chicago. What ails these d—— Jews? Did you not sent them 0 a circular? I have also other news to report. The inclosed is a copy of a letter from B. Bros. & Co., lawyers, to H, B. P., upon the propriety of suing out an injunction upon us. I am going there to-morrow, probably, but I am of the opinion, when I am through, there will be no injunction, I am quite sure.”

The day following, November 15th, Seymour advised what plaintiff’s traveling salesman was doing. The next day he informed Yon Micheroux that there might be danger that Marburg, •one of plaintiff’s oldest customers, would send an order to Baldwin Bros. & Co. instead of defendants. In the letter of November • 19th to Yon Micheroux, Seymour says, among other things :

“We have got them tight, I think, beyond all doubt. They don’t dare to attempt such a thing. Baird [the plaintiffs’ traveler], as I wrote you, went out over the N. Y. Central road', but so far has sqld nothing. Only one letter from him since Monday, and no «report of work beyond Albany. * * * They will have to discharge him, and try it again, which will probably take the wind out of their sails, and all the fight out of them as well. From what I hear, the latter is pretty well squeezed out of them now. On Monday I am to see Guthrie, and you bet I will feel pretty independent. I know where I stand better than they dó. * * * They are dying fast, much faster even than Roberts, and I hardly think six months will see them in the biz.’ If we hold Finzer and old trade, won’t last even that after I leave.”

From the letter of November 22d we take the following :

“ But we doubt it. Of course, they may be foolish enough to do so. No one can tell what fools may do. * * * Please, in all first orders, don’t fail to give prices, terms, etc., as soon it will be impossible for writer to have access to B. B. Oo.’s to get these particulars. * * * No orders at 53.”

These letters fairly indicate the general character of those received by the court, which defendants insist were immaterial. That Yon Micheroux was as blameworthy as the other two defendants appears from his letters generally, and particularly in one of November 15, 1892, immediately after the order from Chicago, of which Seymour complains in his letter of November 14th. He writes:

“ 1 think we better send at once our trade-mark to Washington, and have it registered. I think you better communicate with Mr. Seymour at once, and that he shall attend to it at once without ■delay. Am sorry to see the order from Chicago in our enemy’s hands, but of course it cannot be helped for the present. By New Year’s all the agony will be at an end. All the trade has received our circulars. Nothing more to state. I am, dear sirs.”

Of course, it is not pretended by the appellants that these letters did not show unlawful conduct on the part of Seymour, but they insist that they could in no way affect the defendants Bouiger and Von Micheroux, because they were not, like Seymour, a partner in the firm of Baldwin Bros. & Co., but merely employes, and so could leave the business at any time, and engage in business on their own account. That Seymour’s conduct was of such a character as would cause a court of equity to restrain him from committing further frauds of the character described in the letters written by him, and charge him with the damages resulting from the fraudulent. acts already committed, is so well established as not to require citation of authority. The reason for it is well stated in Holmes v. Gilman, 138 N. Y. 369; 52 St. Rep. 873. At page 377, 138 N. Y., the court said :

“That a partner occupies a fiduciary position with regard to his copartners and the funds of the firm, and will not be permitted to make a personal profit out of the use of such funds, is, I think, clearly established. * * * Although partners do not, in the strict sense of the term, occupy the position of trustees towards each other and towards the firm funds, yet the position is one of a fiduciary nature, calling for the maintenance and exercise of the greatest good faith between them. Such a relationship authorizes the same remedy on behalf of the wronged partner as would exist against a 1 trustee,’ strictly so called, on behalf of & cestui que trust."

Now, while Von Micheroux and Boulger were not partners of Baldwin Bros. & Co., and did not stand in a fiduciary relation to plaintiffs, still they were co-operating with Seymour in his efforts to perpetrate a fraud upon his partners, with full knowledge on their part that such was his intent, and that it was all to be done in order that they, as well as Seymour should profit at the expense of Baldwin Bros. & Co. ° The court had the power to restrain them, as well as Seymour, from either further proceeding with or consummating such illegal scheme. For the damages sustained by plaintiffs because of Seymour’s conduct, the other defendants were participants, and likewise chargeable. This proposition is-supported by Emery v. Parrott, 107 Mass. 95. We quote, as especially applicable to the facts of this case, from the opinion, as follows:

“ The case of the defendant Head stands somewhat differently, but is governed by the same general principles. He did not stand in any fiduciary relation to the plaintiffs. But he knew the position of Parrott, and became the partner of Parrott, uniting with him to effect a sale of the property to Parrott and the plaintiffs, for the sake of dividing with Parrott the secret commission which the owner of the property had agreed to pay for effecting the sale. He was thus fully cognizant of the illegal conduct of Parrott, and co-operated with him in inducing the plaintiffs to make the pur.chase. He participated in the profits of the transaction; and the court are of opinion that he, as well as Parrott, must disgorge the secret gain which they thus jointly obtained and divided with each other.”

If this position be well taken, it follows that evidence tending to show knowledge on the part of Von Micheroux and Boulger of the fraudulent practices in which Seymour was engaged for their mutual benefit was properly admissible against them. Such was the purport of these letters. We have not, of course, referred to all of them, but to enough at least to point out that from day today Seymour was putting them in possession of accurate information touching the steps being taken by him to mislead and defraud his partners. The letters were all of the same general character, and they had the effect to inform the defendants Boulger and Von Micheroux of substantially everything that was being done by Seymour which was in violation of the relation existing between . him and the other members of the firm of Baldwin Bros. & Go., and therefore the evidence was immaterial. There were a number of exceptions taken to the admission of evidence, but we do not, think they call for a reversal of the judgment.

The judgment should-be affirmed, with costs.

All concur.


author: Follett, J.

text:
    James Brand, Resp’t, v. Henry J. Newton, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Principal and agent—Question of fact.
    Under the state of the evidence, it was held to be a question for the jury to determine whether goods, purchased by a third person and charged to defendant, were sold to the defendant or to such third person.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      E. H. Benn, for app’lt; Morris J. Hirsch, for resp’t.
   Follett, J.

It is alleged in the complaint that between February 24, 1891, and June 4, 1891, the plaintiff sold and delivered goods to the defendant at the agreed price of $3,901.59, which he has not paid, or any part thereof, except $427.83, leaving due $3,-428.76. The answer consists of a general denial. It is not disputed that the plaintiff sold and delivered goods for the price stated, and that there is due him therefor the amount alleged. The question is whether the goods were sold to the defendant or to Henry Van Gelder. Previous to May, 1887, Henry Van Gelder and Charles Van Gelder were partners under the name of Van Gelder Bros., and in that month they made a general assignment for the benefit of creditors to Henry J. Newton. Much of the stock assigned consisted of unmanufactured material, and the assignee employed the assignors to manufacture it into salable articles. In March, 1888, the assignee settled his accounts, and was discharged. After that Van Gelder Bros, carried on a similar business in the name of Van Grelder Bros., as agents, and purchased goods of the plaintiff in the name of the defendant, the bills for which were paid. Subsequently the firm was dissolved, and Henry Van Gelder continued to carry on the same business in his name, as agent. Goods were purchased in 1890 and 1891 in the name of the defendant, which were used by Henry Van Gelder in his business. A witness, called by the plaintiff, testified that he heard the defendant sworn as a witness in December, 1889, and that he then swore ‘‘that thereafter, immediately following the sale of the machinery (in March 1888), he employed or allowed'the firm of Van Gelder Bros., the individuals who formerly composed the firm of Van Gelder Bros., to carry on business as his agents, and to buy goods in the name of Van Gelder Bros., agents, and he stated that they were carrying on business as agents of Henry J. Newton.” The goods were sold on seven different occasions between February 24, 1891, and June 4, 1891, and charged to the defendant, to whom the plaintiff rendered seven bills of items, stating the amount and the price of the goods sold. On every one of these bills the defendant wrote : “ Payment guarantied. H. J. Newton.” The defendant, testifying in his own behalf, denied that Van Gelder Bros., or either of them, were authorized to purchase goods in his name, but admitted that he received the bills of the goods in which they were charged to him,,as the purchaser, and that he wrote upon the face of every one of them the words : “ Payment guarantied. H J. Newton.” He never notified the plaintiff that the goods should not be charged to him. Under this state of the evidence it was a question of fact for the jury to determine whether the goods were sold to che defendant or to Van Gelder, and, having found in favor of the plaintiff, the verdict should not be disturbed as contrary to the evidence.

The defendant moved that the complaint be dismissed. The motion was denied, but no exception was taken, and no exception was taken to the charge or to the refusals to charge. The only questions presented on this motion arise on the appeal from the order denying the motion for a new trial made on the minutes, and on one objection taken to the admission of evidence. The plaintiff testified that Henry Van Gelder told him that he (Van Gelder) had power to buy goods for the defendant. After the testimony had been taken, the defendant’s counsel said, “ I object to the declarations of Henry Yan Gelder.” No ruling was made upon the objection, no exception was taken, and ho motion was made to strike out the testimony. This presents no question for this court. The judgment and order should be affirmed, with costs. All concur.


text:
    Hugh J. Grant, as Temporary Receiver, etc., App’lt, v. George C. Treadwell Co., Impleaded, etc.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Corporation—Biles and Notes.
    The fact that a promissory note, was not signed by the treasurer of a corporation, in accordance with the by-laws, constitutes no defense to an action on such note in the hands of a bona fide holder, where the corporation has received the benefit of the proceeds.
    Motion for a new trial on exceptions, ordered to be heard at general term in the tirst instance.
    February 1, 1892, the George C. Treadwell Company was incorporated under the Laws of New Jersey, and had places of business at the cities of New York and Albany in this state. From the date of the organization of the corporation, and until April 17, 1894, George H. Treadwell was its president and general manager. August 21, 1893, two promissory notes for $2,500 each were made, of which the following is a copy :
    “$2,500 00—100. Albany, N. Y, Aug. 21, 1893.
    “ Four months after date, we promise to pay to the order of Geo. H. Treadwell twenty-five hundred 00—100 dollars, at Hotchkiss & Go’s Banking House, New York, 31 & 33 Broadway.
    Geo. C. Treadwell Co.,
    “ By Geo. H. Treadwell, President.
    “ Yalue received.
    “ No.-. Due Dec. 24.
    . “ [Indorsed] Geo. H. Treadwell.”
    The two notes were precisely alike. Both were written by Geo. H. Treadwell, president, and were indorsed by him individually, and were discounted by Hotchkiss & Co., for the benefit of the corporation. Shortly afterwards and before the notes came due, they were transferred by Hotchkiss & Co. to the St. Nicholas Bank for value, which received them in good faith. This bank subsequently failed, and the plaintiff was appointed temporary receiver thereof.

      John M. Bowers, for pl’ff; Daniel C. Thompson, for def’t.
   Follett, J.

At the close of the plaintiff’s case, the court, on defendant’s motion, dismissed the complaint, and the plaintiff excepted, and asked that the question of the power of the president to execute the notes be submitted to the jury, which request was refused, and the plaintiff excepted. The inherent power of the defendant corporation to bind itself by promissory notes was not questioned on the trial. The sole question litigated at circuit was whether the president of the defendant had authority to bind it by these promissory notes; and the only question presented on this motion is, was the evidence sufficient to authorize the jury to find that the president had such power ? George H. Treadwell held two offices. He was the president and also the general manager of the corporation, and was the largest stockholder in the company. The by-laws prescribed the power of the president as follows:

“The president of the company shall be the general executive officer of the company, and shall have general supervision of its business affairs. * * * He shall preside at all the meetings of the board, and generally he shall perform all duties appertaining to the officb of president.”

The powers of the general manager were prescribed by the bylaws as follows:

“The general manager of the company shall * * * have power to purchase goods for the said company, both in the United States and in foreign countries, and to fix and establish the price for which goods are to be sold, both at wholesale and retail. He shall have power to employ and discharge clerks, porters, and servants connected with the purchase and sales department of the said business, and shall, under the president of said company, have supervision of the whole business of the said company, and shall perform such further duties as shall from time to time be assigned to him by the board of directors.”

How many directors there were does not appear, but it seems from the case that they did not, as a board, exercise any control over the affairs of the corporation during 1893, but left the whole management of the business to the president, and to him was left the duty of raising money and paying the debts of the defendant

A by-law of the corporation was introduced which provides:

“He [the treasurer] shall, together with the president or the secretary, accept and indorse drafts, and sign and indorse promissory notes for the purpose of the purchase of merchandise for the company’s use and sale and other necessary expenditures, to the amount that shall not exceed at any one time outstanding twenty per cent, of the paid-up capital.”

It is urged that under this by-law the note, not having been signed by the treasurer, is not binding upon the company. In National Spraker Band v. George C. Treadwell Co., 80 Hun, 363; 61 St. Rep. 817, it was held'that the fact that a promissory note was not signed by the defendant’s treasurer, in accordance with the by-laws, constitutes no defense to an action on a note in the hands of a bona fide holder, the corporation having received the benefit of the proceeds. In this case it was shown that the president executed, in the name of the corporation, other notes for its benefit, some of which were paid before the defendant passed into the hands of a receiver, and some were not, and there is no pretense that the president’s acts have been repudiated or even questioned by the directors, nor is it asserted that he was guilty of any wrongdoing, or that he had diverted, the obligations of the com-pony or of their proceeds. The fact that the defendant received the avails of these notes, together with the other facts in the case, was sufficient to have sustained a finding that the president was authorized to execute these two notes, or that their execution had been ratified, which is the equivalent of original authority. Whether the president was authorized to make the notes should have been submitted to the jury ; and the court erred in dismissing the complaint of the plaintiff, whose exceptions should be sustained, and a new trial granted, with costs to him. to abide the event. All concur.


author: Follett, J. O’Brien, J.,

text:
    John Gray et al., Resp’ts, v. Central Railroad Company of New Jersey, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Damages—Sale.
    Upon the failure of a vendee to perform an executory contract for the purchase of specific personal property, the measure of damages- for the , breach, where the vendor retains the property, is the difference between the actual value at that time and the contract price.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes.

      Robert W. De Forest, for app’lt; Jacob F. Miller, for resp’ts.
   Follett, J.

This action was brought to recover damages for the alleged failure of the defendant to perform an executory contract for the purchase of a steamboat. On the 17th of December, 1866, the parties entered into the following contract:

“Office of the President. Central Railroad of New Jersey, 103 Liberty St. John Taylor Johnston, Pres’t. 1
New York, Dec 17th, 1866.
“The Central Railroad Company of New .Jersey agree to buy the steamboat John Adams from J. & R. J. Gray for the sum of fifteen thousand dollars cash, providing, upon trial, they are satisfied with the soundness of her machinery, boilers, &e.; and the said J. & R. J. Gray agree to sell the above boat for the above price. John Taylor Johnston Pres’t.
“J. & R J. Gray.”

The defendant refused to take the boat and pay the price agreed. After the refusal of the defendant to accept it, the plaintiffs evidently contemplated selling it, and suing the defendant for the difference between the contract price and the amount that the boat should bring when sold. On the 9th of January, 1867, they gave the following notice :

“Law offices of Miller & Peet, 192 Broadway, cor. John St.
“New York, Jan. 9, 1867.
“The Central Railroad Company"of New Jersey : Take notice that the steam ferryboat John Adams will be sold at public auction at the Merchants’ Exchange salesrooms, 111 Broadway, N. Y, on 22d instant, at 12 m., by E. H. Ludlow & Co., autioneers, and that you will be held liable for any difference between the amount of said sale and the amount for which said boat was sold to you by us, with all costs, expenses, and charges.
“Yours, J. & R. J. Gray,
“Per Miller & Peet, Attys.”

The boat was not sold at auction pursuant to the notice, but on the 22d of April, 1867, it was sold at private sale to Samuel Lap-ham for $8,000.

Upon the failure of a vendee to perform an executory contract for the purchase of specific personal property, the vendor may sell it, and recover the difference between the contract price and the price for which it is sold, or he may retain the property, and recover his damages for the breach, which is the difference between its actual value at the time of the breach of the contract and the contract price. Dustan v. McAndrew, 44 N. Y. 72; Hayden v. Demets, 53 N. Y. 426 ; Bridgford v. Crocker, 60 N. Y. 627. This action is for the recovery of damages for the failure of the defendant to take and pay for the vessel. On the trial but little evidence was given bearing upon the question of the actual value of the vessel at the time it is asserted the defendant should have received it. It was shown that the plaintiffs sold the boat April 22, 1867, for $8,000, and perhaps the vessel is so described that there was sufficient evidence to authorize the jury to determine its actual value, but that question was not submitted to them. One of the plaintiffs testified:

“Q. Didn’t you testify on the former trial, Mr. Gray, in response in the question. ‘Did you not regard the boat at that time [referring to the time of this transaction] as reasonably worth $15,-000?’ did you not testify, ‘I regard her as worth more’? A. What time have you reference to Mr. De Forest ? Q. I have reference to about the time of this trial trip, when she was laid up in Hoboken. A. What I meant when I made the response to that question was that when she was sold to the Hew Jersey Central Railroad she was worth more than $15,000; she was sold below her value. That was the meaning of that answer. Q. And that it what you mean now ? Q. And that is your present opinion? A. That is what I mean now. A. That is own judgment”

In this case, under the complaint, the measure of damages was the difference between the contract price and the actual value of the vessel. In instructing the jury on the question of damages, the court charged that, if the plaintiffs were entitled to a verdict, they were entitled to the difference between the contract price, $15,000, and $8,000, the amount for which they sold the boat, with interest, for which sum a verdict was rendered. To this instruction the defendant excepted, and asked the court to charge:

“(10) measure of damages is contract price and the actual value of the boat at the time of the refusal to take her.”' “(13) That if, on the evidence, the boat appears to have been worth the contract price at that time, then plaintiffs cannot have a verdict for more than nominal damages.”

These requests were refused, and the defendants excepted. these requests the attention of the court was specifically called to-the true rule of damages applicable to the issue in-this case, and it was error to instruct the jury that the measure of damages was the difference between the contract price and the price for which the boat was subsequently sold. For this error the judgment and order must be reversed, and a new trial granted, with costs to the appellant to abide the event. Yak Brunt., concurs.

O’Brien, J.,

(concurring).—The plaintiffs, against the persistent, objection and exception of the defendant, were permitted to recover the difference between the contract price and the price that the steamboat brought upon a resale; and this recovery is sought, to be sustained upon the authority or Van Brocklen v. Smeallie, 140 N. Y. 70, 75, 55 St. Rep. 263. That case lays down no new rule of damages, but restates what has been frequently held, as-shown in the cases referred to by Mr. Justice Follett. It must be regarded,-therefore, as settled law, as said in Van Brocklen v. Smeallie, that:

“The vendor of personal property has three remedies against the vendee in default: The seller may store the property for the buyer, and sue.for the purchase price; or may sell the property as agent for the vendee, and recover any deficiency resulting; or may keep the property as his own, and recover the difference between the contract price and the market price at the time and place of delivery.”

These remedies are not concurrent, but upon default the person injured must make his election, and the remedy which he has so-elected must be determined from his complaint. Here the plaintiffs, as shown by the complaint, elected to treat the property as their own, and brought their action for damages; and under such complaint the only damages recoverable are the difference between the contract price and the market value. Nothwithstanding such election, however, and without proper allegations in the complaint, the plaintiffs were permitted to sue upon one theory and recover upon another. I concur, therefore, with Mr. Justice Follett, that under the complaint, and against the objection of the defendant, th.e plaintiffs could not recover the difference between the-contract price and the price which the steamboat brought upon a. resale, and that for the reason the judgment be reversed, and, a new trial ordered, with costs to appellant to abide event.


text:
    Mayor, Aldermen and Commonalty of the City of New York, Resp’t, v. New York Refrigerating Construction Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 14, 1894.)

    Bond—Recital.
    Where the recital of a bond refers to a contract in words, “as will in said instrument, one part whereof is hereto prefixed, more fully and at large appear,” such language indicates that it is the-intention of the parties, that the instrument should thereby be incorporated in the recital.
    Appeal from a judgment in favor of plaintiff.

      Burton N. Harrison, for app’lts; T. Farley, for resp’t.
   Van Brunt, P. J.

We might very well rest our decision of the appeal in this case upon the opinion of the court below. Great stress, however, is laid by the counsel for the appellants upon the claim urged by him that the sureties were not bound by the bond, the subject-matter of this action, in respect to the payments for the default in the making of which this action has been maintained. It is urged that the recital of the bond expresses the intent of the parties, and controls the condition or obligation which follows; and that, although the' condition may have used more general language than the recital, the defendants’ obligation is to be controlled by the terms of the recital. Even applying this rule, it does not seem to us that the contention of the appellants can be sustained. The recital of the bond is in thesewords :-

“Whereas, the above-bounden, the New York Refrigerating Construction Company, by an instrument in writing under its corporate name and seal, bearing even date with these presents, has contracted with said the mayor, aldermen and commonalty of the city of New York, by the comptroller of said.city, to introduce and maintain refrigerating apparatus in the New West Washington Market, for preserving meats, etc., as will in said instrument-one part whereof is hereto prefixed, more fully and at large appear.”

It is contended that the evidence shows that this was done ;and that the refrigerating apparatus was duly introduced in the market, and was there maintained, as agreed ; and that there is no complaint on that account; and that this is all that the recital of the bond indicated that the defendants were to do. It will appear upon a consideration of the recital that it was not understood or intended to contain the whole of the obligations which were entered into between the parties by reason of the contract to secure which the bond was given. The recital is, “to introduce and maintain refrigerating apparatus in the New West Washing ton Market for preserving meats, etc., as will in said instrument, one part whereof is hereto prefixed, more fully and at large appearthis language evidently indicating that it was the intention of the parties that the instrument itself should thereby be incorporated in the recital, and that the phraseology employed was-intended to be a mere general designation of the contract, without any particularity as to its terms. The words quoted are of the most indefinite character. There was no obligation upon the part, in this recital, of the defendants, that the apparatus in question should do anything of the kind for which it was constructed. So long as the refrigerating apparatus was introduced and maintained for the purpose of preserving meats, etc., whether it accomplished such purpose or not was immaterial, according to the contention of the defendants. It is clear that this indefinite statement could not ever have been intended by the parties to recite the whole of the obligation, and that reference is made to the contract itself as more fully and at large expressing ■ the terms of the obligation; and this is in harmony with the condition of the bond. This condition was that the defendants should well and truly, and in good, sufficient, and workmanlike manner, .perform the said contract,— namely, the contract referred to in the recital,—and each and every provision therein contained on its part to be done and performed, and should maintain the said apparatus in accordance with the terms and provisions in said contract stipulated, and should in each and every respect comply with the conditions therein contained; thus showing that it was in the mind of the parties that not only was the refrigerating apparatus to be introduced and maintained, but that the terms of the contract in all other respects were to be complied with. And this is in accord with the natural rule of construction where the contract itself is made paid of the recital. We think, therefore, for the reasons .stated in the opinion of the court below, as well as those herein •expressed, the judgment appealed from should be affirmed, with •costs.

All concur.