author: Bocees, J.:

text:
    DANA L. TRACY, Appellant, v. WILLIAM H. BAKER, Respondent.
    Pleading— when a denial of all facts not specifically admitted will be sustained.

    An answer, by which. “ the defendant denies any knowledge or information sufficient to form a belief as to every allegation in the complaint not hereinbefore admitted,” will be held in the third department to put in issue the facts alleged in the complaint and not specifically admitted by the answer, where the denials are so specific as to clearly point out the allegations of the complaint to which they are intended to apply.

      Calhoun v. Hallen (22 Hun, 155), and Cla/i'h v. Pillan (15 Abb. N. C., 276), followed.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court.

      Chamberlain dk Hale, for the appellant.

      H. Magone, for the respondent.
   Bocees, J.:

Appeal from the judgment of the St. Lawrence County Court dismissing the complaint.

This was an action for an escape, brought in the County Court of St. Lawrence county. The complaint alleged the official character of the defendant as constable; the recovery of a judgment in Justices’ Court in favor of the plaintiff against one King; the issuing of an execution thereon against the person of King; the delivery thereof to defendant; the arrest of King by defendant ; and the escape of King by permission of defendant without plaintiff’s consent.

The defendant in his answer admitted his official character, and averred that the execution was delivered to him with instructions not to arrest King, but to use it as a means to induce him to secure the amount of the judgment. The answer concludes as follows: The defendant denies any knowledge or information sufficient to form a belief as to every allegation in the complaint not herein-before admitted.”

The action came on for trial before Hon. John M. Kellogg, county judge, and a jury. The plaintiff proved the recovery of the judgment in the Justices’ Court, the issuing of the execution, and the amount due thereon, and rested. "Whereupon defendant moved for judgment on the ground that plaintiff had not proved an escape. The court held that the arrest and escape were controverted by the answer, and instructed the jury to find a verdict for the defendant ; to which ruling and instruction plaintiff excepted.

The effect to be given to a denial in an answer like the present has been repeatedly under discussion in the courts, and the decisions on the subject are not harmonious. The cases bearing thereon pro and con are gathered together and commented upon in a note to the case of Clark v. Dillon (15 Abb. N. C., 276, et seq). Here and again to examine the cases and to offer further discussion of them would be, as we think, a profitless ceremony. In this department we have already held a denial as in this case to be sufficient to put in issue the averments of the complaint not before in the answer admitted. (Calhoun v. Hallen, 25 Hun, 155.) Doubtless the answer was put in and the decision of the court at the trial was made in view of this decision. It must also be presumed that the plaintiff’s attorneys were aware of the ruling upon the question in ibis department, hence were bound to be prepared on the trial to make proof according to its requirements. We should, as we think, adhere to the decision in the case cited made in our department; especially should we do this under the existing diversity of opinion upon the subject in the courts.

It seems to be supposed that the question was determined against the decision in Calhoun v. Hallen by the Court of Appeals, in Clark v. Dillon (97 N. Y., 370). But an examination of the latter case shows such supposition unfounded. The decision in Calhoun v. Hallen was then referred to; but it was not disturbed because it was deemed unnecessary then to consider it. (See remarks of Ruger, Oh. J., on page 375.) The test to be applied to a case like the present, deducible from all the decisions as declared in the note to Clark v. Dillon (15 Abb. N. C., 282), and which seems reasonable, is this: That a defendant may use this form when the excepted denials are so specific as to clearly point out the allegations of the complaint to which they were intended to apply.” Tested by this rule, the denial in this case was sufficient to present the question of fact for trial as held by the learned county judge. But without an elaboration of the subject we are of the opinion that the decision in Calhoun v. Hallen must be held to be conclusive of the question here presented.

Judgment affirmed, with costs.

Present — Learned, P. J., Bookeb and Landon, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: LaNdoN, J.:

license: Public Domain

text:
    AUGUSTUS F. LATHAM, Respondent, v. THE BOSTON, HOOSAC TUNNEL AND WESTERN RAILWAY COMPANY, Appellant.

      Corporation — liability of, for the negligence of a consolidation as a pa/i't of which it is engaged in running its road.

    In 1881 the defendant corporation attempted to consolidate with other companies and form a new corporation. In 1883 it was decided by the court that the ■attempt to form the new corporation was ineffectual, that the defendant had never ceased to exist as a corporation and that it should be treated as a valid existing corporate entity.

      Held, that the defendant was liable for the damages sustained by the plaintiff by reason of an injury to his eye, occasioned by the negligence of the persons operating' the road under the attempted consolidation.
    Appeal from the judgment, entered upon the verdict of the jury in favor of the plaintiff, and from an order denying a new trial made upon the minutes of the court. The action was brought to recover damages sustained by the plaintiff because of an injury to his eye, caused by the alleged negligence of the defendant. The defendant denied that it was operating the railway at the time of the injury. The facts in this respect were:
    That the Boston Hoosac Tunnel and Western Railway Company, defendant, was formed by consolidation in 1880 of two corporations of the same name, one organized. under the laws of the State of New York, and the other under the laws of the State of Yermont, which is known as the consolidation of 1880. In March, 1881, the said company attempted a consolidation with several other companies under the same name. The new organization, which was known as the consolidation of 1881, took control and management of the railway property, and continued to manage it until, on the 16th day of July, 1883, it was adjudged, by the Supreme Court of this State, in an action brought by the attorney general on behalf of the People, that the consolidation of 1881 was illegal and had been ineffectual to form a new corporation; that it resulted in a mere association of the parties without corporate existence and must be dissolved. In making this decision the court protected the rights acquired under the consolidation of 1880, by deciding that the defendant never ceased to exist as a corporation, and in substance, that inasmuch as it had not voluntarily abandoned the exercise of its franchises, and as the railroad property had been continually operated (although by another association), it should be treated as a valid and existing corporate entity. The defendant, upon the trial, asked the court to dismiss the complaint on the ground that the defendant now in court was not operating the railroad property at the time of the alleged accident, but was in a state of quiescence or torpor, and that the road was being operated at the time mentioned by the consolidation of 1881, which went ©ut of existence July 16, 1883.
    The motion was denied and an exception taken.

      Thos. II. Hubbard, for the appellant.

      A. J. ParTcer, for the respondent.
   LaNdoN, J.:

The defendant was one of the constituent companies out of which the association was formed which was intended to be a new corporation. As this association has been adjudged to hare had no legal capacity to exist as a corporation, it follows, as was also adjudged, that the individual entity of the defendant was not merged in it. Therefore the defendant remained as an actor and participator in the association which did operate the railway, and thus one of the parties by whose negligence the plaintiff was injured. As such it was severally liable as one of the wrong-doers. (Creed v. Hartmann, 29 N. Y., 591; Roberts v. Johnson, 58 id., 613.)

If the association was the lessee of the railway, defendant as a constituent of the association was also one of the lessees. The defendant was not in a state of quiescence or torpor; instead of operating the road alone it operated it with others. The transfer of its railroad by the defendant to the association being without legislative authority, the defendant remained liable for injuries caused by those operating it. (Abbott v. Johnstown, etc., Horse Railroad Co., 80 N. Y., 27.)

Upon the evidence in the case we do not think we ought to disturb the verdict.

Judgment and order affirmed, with costs.

LearNEd, P. J,, concurred.

Present — Learned, P. J., and LaNdoN, J.

Judgment and order affirmed, with costs.


author: Landon, J.:

text:
    FREDERICK A. SANDS, Receiver of the Columbian Insurance Company, Respondent, v. JOHN S. PERRY and Others, Appellants.

      Discharge in larihruptcy — it does not authm'ize the moating, on a motion, of a judgment subsequently entered in a pending action.

    September 5, 1867, the defendant Perry filed a petition in bankruptcy and on April 28,1868, procured his final discharge therein. In this action, which was pending when the petition in bankruptcy was filed, the defendant having before that time appeared and answered therein, a final judgment was entered and docketed against him on March 25, 1871.

      Meld, that as the judgment was entered after the defendant had procured his discharge in bankruptcy it imported absolute verity, and that a motion made by the defendant in 1885 to vacate it should he denied, hut without prejudice to any motion to be made by him to have the judgment opened and to be allowed to plead the discharge.
    , Appeal from two orders made by the Special Term, óne denying •defendant’s motion to cancel the judgment entered against him, I and the other granting the plaintiff leave to issue execution thereon. ! •September 5, 1867, the defendant Perry filed his petition in bankruptcy in the United States District Court, this action then being pending. . He obtained his discharge in bankruptcy April 28, 1868, from all debts existing against him as of the date of filing the petition. Afterwards, and o.n March 25, 1871, judgment against him in this action was entered and docketed. Defendant had appeared and answered in the action before the filing of his petition, but thereafter allowed judgment to pass against him as upon default.

      Hamilton Harris, for the appellants.

      W. Frotlvmgham, for the respondent.
   Landon, J.:

The authorities are decisive to the effect that a discharge in bankruptcy extinguishes all the debts of the bankrupt provable under the act existing at the date of the filing of his petition in bankruptcy, and any judgment that may be obtained upon any of such debts, if such judgment be entered before the date of the discharge in bankruptcy. (Clark v. Rowling, 3 N. Y., 216; Monroe v. Upton, 50 id., 593; Arnold v. Oliver, 64 How., 452.) In sucb cases tbe judgment is not regarded as a new debt, but simply tbe old debt in a new form (Revere Copper Co. v. Dimock, 90 N. Y., 33), and tbe judgment debtor is entitled upon motion, to be made under section 1268 of tbe Code, at any time after two years have elapsed since bis discharge, to an order directing tbe judgment to be canceled and discharged of record. Tbe defendant in this case contends that be is entitled to tbe libe order although bis discharge in bankruptcy preceded tbe entry of judgment. Tbe authorities cited do not so bold, and tbe case cited from 90 New York seems to bold otherwise. Tbe judgment in that case was entered after tbe discharge. Tbe matters urged by tbe learned counsel for the defendant to distinguish that case from this do not touch tbe vital point, namely, that a judgment rendered after a discharge imports absolute verity. Therefore, tbe discharge in bankruptcy, or anything else in tbe form of evidence tending to show that no judgment should have been rendered, cannot now be beard. Sucb matters must be adduced upon tbe trial, and in order to avail himself of them tbe defendant must procure bis default and the judgment to be opened, and be allowed to defend.

It may be conceded that there is some difficulty in perceiving why upon principle a judgment rendered before tbe discharge-in bankruptcy upon a debt existing at tbe date of filing tbe petition is less an absolute verity than one rendered after tbe discharge upon tbe like debt, and why it is that that judgment can be canceled upon motion and need not be opened. It seems to be an exception to tbe general rule affirming tbe absolute verity of judgments. That a judgment rendered after a discharge in bankruptcy should not be admitted within tbe exception seems obvious enough. Sucb a judgment may rest upon facts affecting tbe debt, but arising after tbe discharge, as in tbe case of Dusenbury v. Hoyt (53 N. Y., 521), where a new promise to pay tbe discharged debt made after tbe discharge, was held to be good.

These views are in accord with those expressed by tbe learned judge at Special Term, and lead to an affirmance of tbe order denying tbe motion to cancel tbe judgment. But tbe notice of motion asked for sucb other relief as the court shall deem it proper to grant. Tbe order appealed from does not speak of any motion to allow the judgment to be opened and a defense interposed. But the learned judge at Special Term intimates in his opinion that the laches of the defendant is fatal to such an application. We are not entirely clear that this is so. If upon a further hearing it should appear that the merits are on the side of the defendant, as the papers before us seem to indicate, a motion addressed to the favor of the court will no doubt be so decided as to prevent gross injustice.

We affirm both orders, with costs and disbursements, but without prejudice to a motion to open the judgment and allow the discharge in bankruptcy to be interposed, and without prejudice to such a stay of execution as shall give effect to any order the court may grant upon the hearing of such motion.

Learned, P. J., concurred.

Present — Learned, P. J., and Landon, J.

Orders affirmed, with ten dollars costs and printing disbursements in each, without prejudice to motion to open judgment, etc.


text:
    MARY RENIHAN, Appellant, v. MARTHA A. DENNIN, Individually and as Executrix, etc., of JAMES DENNIN, Deceased, Respondent.

      Evidence — a physician cannot testify as to information acquired, while attending a patient — no one hut the patient can waive the privilege— Code of Civil Procedure, secs. 834, 836.
    Upon the trial of issues framed by the court, in a proceeding instituted to have a will admitted to probate, the contestant, in order to establish the mental incapacity of the deceased to execute the will, called a physician, who had been called in consultation with the physician attending the deceased, and offered to prove by him what he then saw and learned as to the condition of the deceased*.

      Held, that the testimony was properly excluded as inadmissible under sections 834 and 836 of the Code of Civil Procedure.
    Appeal from a judgment, entered upon the verdict of a jury upon special .issues, and from a decree of the surrogate of the county of Bensselaer, admitting the will of James Dennin to probate.
    The will of James Dennin was presented to the surrogate of Bensselaer county, and by him admitted to probate. Upon appeal the General Term of the Supreme Court reversed the decree of the surrogate and sent the case to the Bensselaer Circuit to be tried upon certain issues framed by the court touching the testamentary capacity of the said Dennin. The issues were tried at a Bensselaer Circuit, held May, 1885, before Mr. Justice Peokham and a jury. The jury found in favor of the proponent of the will upon all the issues submitted.
    Upon the trial it appeared that Dr. Burton was the attending physician of the deceased, and a witness to his will. The will was executed the same day Dennin died, and but a short time previous to his death. Shortly before the execution of the will, and in the evening of the day on which Dennin died, Dr. Bonteeou was called in consultation with Dr. Burton, and in his company made an examination of the deceased. On the trial of the cause the contestant called Dr. Bonteeou as a witness, and offered to prove by him what he saw and learned of the condition of the deceased while thus attending him. This was objected to by the proponent, and the objection was sustained by the court.

      E. Countryman, for the appellant.

      Charles E. Patterson, for the respondent.
   Landon, J.:

Section 831 of the Code provides that “ a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to attend in that capacity.”

Section 836 provides that section 831 shall “apply to every examination of a person as a witness unless the provisions thereof are expressly waived by the person confessing the patient or the client.”

In our opinion the testimony offered fell directly within the exclusion commanded by the statute, and we are not cited to any authority which in our opinion will justify us in disregarding its plain direction. Argument founded upon considerations of necessity seems to be irrelevant. The recent case of Westover v. Ætna Insurance Company (99 N. Y., 56) confirms us in these views. Following the statute we affirm the judgment and order, with costs.

Learned, P. J., and Bookes, J., concurred.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES A. WRIGHT v. ALFRED C. CHAPIN, the Comptroller of the State of New York.

      Application to cancel a tax sale made by the comptroller — construction of statutes requiring the fling of the original assessment-roll and of a copy thereof — a defect in the copy filed in the town cleric’s office will not invalidate the sale.

    Upon an application to the comptroller for the cancellation of a sale of non. resident land for the non-payment of taxes assessed against it in 1870, it was shown by the applicant that the original tax roll for that year was lost; that a paper on file in the town clerk’s office, which purported to be a copy of the corrected assessment-roll of the town for that year, did not have upon or annexed to it the oath of the assessors, nor was there any “fifth column” as required by the statute, nor was the amount of the tax set down in dollars and cents. The affidavits of the collector and the certificate of the county treasurer, filed in the office of the comptroller as required by law, were sufficient in form and substance to authorize the comptroller to make the sale.

      Held, that the defects in the copy filed in the town clerk’s office did not establish. the existence of those defects in the original roll.
    That the fact that the copy filed in the office of the town clerk for the use of the town, as required by section 35 of 1 Revised Statutes, 396, was not a correct copy of the original roll, did not invalidate the sale.
    That the action of the comptroller in refusing to cancel the sale should be affirmed.
    Certiorari to review the determination of the comptroller refusing to cancel a sale of lands made by the comptroller for the non-payment of taxes.

      Wm. B. Van Rensselaer, for the relator.

      D. O’Brien, attorney general, for the comptroller.
   Landon, J.:

The relator applied to the comptroller to cancel the tax sale made by him of certain lots of the relator in the town of Moor-house, Hamilton county, upon the ground that the alleged tax upon which the sale was made was not lawfully levied. This the comptroller is authorized by chapter 427, Laws of 1855, sections 83, 84, 85, to do upon his discovery “ that the sale was for any cause whatever, invalid or ineffectual to give title to the lands sold.” The comptroller upon hearing the relator and upon examination of the evidence presented, denied the application and this certiorari brings his decision before us for review. (Code C. P., § 2140.)

The sale was made upon default in payment of the tax assumed to have been levied for the year 1870, as upon lands of a nonresident. The affidavits • of the collector and certificate of the county treasurer, filed in the comptroller’s office, of the levy of the tax and default in its payment, were sufficient in form and substance to authorize the comptroller to make the sale. The comptroller’s deed is presumptive evidence of regularity. (Colman v. Shattuck, 62 N. Y., 348.) The burden, therefore, rested upon the relator to show that the sale was for some cause “invalid and ineffectual to give title to the lands sold; ” and the question brought here for review is whether the evidence adduced by him before the comptroller affirmativelv showed this. He showed that the original assessment-roll of the town of Moorhouse for the year 1870 was lost. He then gave in evidence a duly verified “ copy of a paper writing purporting to be a copy of the corrected assessment-roll of the town of Moorhouse for the taxes of the year 1870 on file in the town clerk’s office” of said town. The copy thus copied does not have upon or annexed to it the oath of the assessors, and there is no “ fifth column ” in it, and no sum is set down thereon of the exact number of dollars and cents to be paid as a tax upon any of the relator’s lots.

If this is conclusive evidence of the assessment-roll and of the whole thereof, then it is thereby shown that no valid tax was levied upon the relator’s lots for the year 1870. (Van Rensselaer v. Witbeck, 7 N. Y., 517; Johnson v. Elwood, 53 id., 431; People ex rel. Gillies v. Suffern, 68 id., 321; Bradley v. Ward, 58 id., 401; People ex rel. Gillies v. Suffern, 6 Hun, 304; Hinckley v. Cooper, 22 id., 257.)

The Eevised Statutes require the board of supervisors to cause to be delivered to the collector of each town the corrected assessment-roll or a fair copy thereof. (1 E. S., 396, § 36.)

Section 4, chapter 427 Laws 1855, requires the collector in all cases to return and deposit with the county treasurer the original assessment-roll.

Section 35 of the Eevised Statutes requires the supervisors to cause the corrected assessment-roll or a copy thereof to be delivered to the supervisor who shall deliver the same to the town clerk, to be kept by him for the use of the town.

Construing these sections together, it would seem that the practicable way to give them all effect would be for the board of supervisors to deliver the original roll to the collector, and a copy thereof to the supervisor, in which case the copy would be filed with the town clerk “ for the use ” of the town.

There was then filed with the town clerk a copy of the corrected assessment-roll, and it is this copy that discloses the absence of an affidavit of the assessors, and the omission of the fifth column, in which the statute requires the amount of the tax to be paid to be entered.

The distinction between the original assessment-roll by which the tax is actually levied, and the copy thereof which may be delivered to the collector or filed with the town clerk is very clearly shown in Bradley v. Ward (58 N. Y., 401). The absence of the affidavit from the copy affords no presumption that it was not made and attached to the original roll. With respect to the omission of the fifth column from the copy, the evidence justified the conclusion that in that respect the copy was defective. It must be presumed that in this case the original assessment-roll was returned to and deposited with the county treasurer as required by the act of 1855'. The records of the comptroller’s office do show that the collector made due return verified by his affidavit of the taxes remaining unpaid upon the assessment-roll for the year 1870, in which return were set down the relators lots with the taxes extended; also that the county treasurer did certify that he examined and compared such account with the entries of the same taxes in the original assessment-roll of said town for said year and found the same to be a true transcript from such roll.” (Laws 1855, sec. 4, chap. 427.) We thus have statutory evidence, which lies at the foundation of the comptroller’s sale, that in the original roll the tax was properly extended. The relator urges that the fact that the “ copy ” has no fifth column, while the certificate of the county treasurer shows its existence, is evidence that the tax was extended by some one other than the board of supervisors, and therefore invalid under Bellinger v. Gray (51 N. Y., 610), and People v. Hagadorn (36 Hun, 610). But it affirmatively appeared in both these cases that a third person, not the board of supervisors, extended the tax. And in Bradley v. Ward (58 N. Y., 401) it was held that it would not be presumed that such extension was not done under the direction of the board while in session, unless it affirmatively so appeared.

The relator further contends that the direction to file a true copy of the whole assessment-roll in the town clerk’s office is mandatory, and if omitted renders the tax invalid. The statute says this copy shall be “ for the use of the town.” Tt was held in Bradley v. Ward (supra) that the original assessment-roll, if fully conformable to the statutory requirements, establishes the tax and justifies its collection. This conclusion was reached upon consideration of the defects in the copy delivered to the collector, and seems to answer the objection suggested.

Order of comptroller affirmed, with costs.

Learned, P. J., concurred.

Present — Learned, P. J., and Landon, J.

Order affirmed, with fifty dollars costs and printing disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE HORN SILVER MINING COMPANY, Appellant.

      Taxes upon corporations — 1880, chap. 543, as amended by 1881, chap. 361 — when a foreign corpoi'ation does business in this Slate within the meaning of the said acts— when it cannot claim am exemption as “carrying on manufacture within this State.”

    The defendant is a corporation, organized under the laws of the territory of Utah, and is engaged in mining and smelting silver in Utah and Illinois. The bullion is shipped to the city of New York in bars containing about 990 parts of pure silver in each 1,000 parts of the bullion, and delivered at the United States assay office where it is refined to the standard of 999 parts to 1,000. Upon the delivery of the bullion at the assay office certificates for the silver deposited are delivered to the defendant, and the same are sold by it in the market.

      Held, that the defendant could not claim exemption from the taxes imposed upon corporations by chapter 543 of 1880, as amended by chapter 361 of 1881, as a manufacturing company “carrying on manufaetnre within this State.”
    The defendant had its corporate office in the city of New York, where the registry of its stock was kept and in which its board of directors held their meetings and from which they issued instructions to their agents in Utah and Illinois. All its silver product was shipped to New York, and the certificates received therefor from the assay office were there sold. Its dividends were there declared- and made payable, and a large amount of its funds were there invested.

      Held, that the defendant was a foreign corporation “ doing business in this State ” within the meaning of the said act.
    Appeal from a judgment in favor of the plaintiff, entered upon, the report of a referee and from an order granting an additional allowance.
    The action was brought by the attorney general in behalf of the people, under the provisions of section 3 of chapter 542 of 1880, as amended by chapter 361 of 1881, to recover from the defendant corporation the taxes upon its franchise and business for the years ending November 1, 1881 and 1882, respectively.

      Julien T. Davies and Edward Lyman Short, for the appellant,

      D. O'Brien, attorney general, for the People.
   Landon, J.:

Tbe referee found the fact to be tbat tbe defendant was a corporation organized under the laws of tbe Territory of Utah, and was carrying on business in tbis State. He also found tbat it was not a manufacturing corporation carrying on manufactures witbin tbis State. These facts brought tbe defendant witbin tbe terms of chapter 542, Laws of 1880, section 3, as amended by chapter 361, Laws of 1881, section 1, which provide tbat such a company “ shall be subject to and pay a tax, as a tax upon its corporate franchise or business into tbe treasury of tbe State annually.”

Tbe defendant urges tbat tbe referee erred in so finding tbe facts upon tbe evidence. Without repeating the evidence here at length, tbe fact seems to be undisputed tbat tbe defendant did do some part of its business here, and tbat, a very important part. Tbe statute says —“ doing business in tbis State ”— not all its business. Tbe referee could not have found otherwise in tbis respect.

Tbe evidence also showed tbat tbe defendant was not “ a manufacturing company carrying on manufacture witbin this State.” It may be tbat its operations in Utah and Illinois where it separated tbe silver from tbe other metals and from tbe crudities with which it is found to be mingled as it is taken from the mines, may be conventionally and perhaps properly termed a manufacture, but no such separation, and no mechanical or other work was done upon it in tbis State by tbe defendant. It was brought here in bars containing about 990 parts of pure silver out of 1,000 and was delivered to tbe United States assay office, where it was refined to tbe standard of 999 parts in 1,000. But tbis refined silver was not returned to tbe defendant. Tbe assay office delivered to tbe defendant its certificates for tbe silver deposited, and these certificates tbe defendants sold in tbe market. If tbe refining done by the assay office could be called a manufacture, it was a manufacture carried on by tbat office, and not by tbe defendant. Tbis proposition seems to us too plain to need further elucidation.

In People v. Equitable Trust Company (96 N. Y., 387), which was tbe case of a Connecticut corporation, having an office in tbe city of New York, doing tbe bulk of its business outside of tbis State, and but very little in it, tbe tax imposed under the statute in question was upheld. Tbe court held that tbe State could impose a tax upon its business done within this State, that that tax could be specific or arbitrary and not measured by the amount of business done, or dividends earned, or capital employed here. The hardship of this rule of taxation was adverted to in the decision, and its rigor has since been modified by chapter 501, Laws 1885, but this legislation has no effect upon the present case. In the Equitable case, however, it was not denied that the foreign corporation did business in this State within the meaning of the statute, and hence, the court said it was relieved from the necessity of inquiring what is meant by the language doing business ” and corporate business ” in this act. “ Does it mean,” the court asks but does not answer, occasional or incidental corporate business, or continuous business through the year % ” Other questions are propounded in like manner from which the learned counsel for the appellant argues that, the intimation is plain, that if the question had been in the case, the court would have decided that the business of the Equitable company, done in this State, was too “ occasional or incidental,” or insignificant, to be fairly considered as falling within the purview of the statute. And he asks that the supposed intimation in that case be made the rule of decision in this.

We do not think, however, that the business of the defendant done in this State can be said to be merely occasional or incidental. It had its corporate office in the city of New York, in which its board of directors held their meetings and its officers issued direc' tions to the agents of the company in Utah and Illinois, and where the registry of stock was kept. Besides this, all its silver product was sent to New York to be refined at the assay office and to be disposed of by the sale of the certificates issued by that office. Its dividends were declared and made payable there, and its funds to large amounts invested there. We are cited to the case of People ex rel. Bank of Montreal v. Commissioners of Taxes (59 N. Y., 40) as an authority to the effect that money sent by a non-resident, to this State for investment is not taxable against him under chapter 37, Laws 1855, which subjects non-residents doing business in this State, to taxation upon the moneys employed in such business. But the exemption in that case was allowed under chapter 176, Laws of 1851, which exempted foreign capital transmitted to agents here for the purpose of investment, or otherwise, from taxation^ The court drew the distinction between the principal who lived out of the State, and himself transacted his business in it, without the intervention of a resident agent, and the principal whose real residence and business were in another State, but who sent money here to be loaned by his resident agent. In the former case the fact of non-residence, if the principal in fact and in person did business here, did not exempt his capital employed in the business from taxation under the law of 1855; while in the latter case if the nonresident simply sent money here to a resident agent to be loaned in the name of the principal, and no other business was transacted, the exemption of the act of 1851 applied, the court holding that such a transaction was not the doing iusiness which gave the State jurisdiction to tax the money lent. The defendant, however, is not a mere non-resident money lender acting through the person of a resident agent. So far as it is possible for a foreign corporation to be personally present, it is in person doing business here, and that business embraces the further business necessary to be done to make its base bullion marketable as standard bullion and to market the same, and thus to realize in this State the money it loans here. Nor does it simply send its product here for sale and remit all the proceeds to the State of its incorporation or legal residence as in the case of People ex rel. Parker Mills v. The Commissioners of Taxes (23 N. Y., 242).

We do not think the Court of Appeals has yet announced a rule that will exempt the defendant from the taxes imposed. The tax imposed upon the defendant was $7,500 for the year 1881, and $30,000 for the year 1882. It was imposed upon the basis of the reports made to the comptroller. The statute provides that “if the officers of any such corporation shall neglect to pay the tax imposed on such corporation within fifteen days after the first of January, it shall be the duty of the comptroller to add ten per centum to the tax of said corporation for each and every year for which said tax shall not have been paid, which percentage shall be assessed and collected with the said tax in the usual manner of collecting and assessing such taxes.” The tax not having been paid within the prescribed time, or at all, the comptroller did add ten per centum thereto and such addition is embraced in the judgment from which this appeal is taken.

Evidence was given upon the trial which seems to exhibit this additional tax or penalty as a harsh addition to the original tax, but the comptroller had the power, and perhaps was bound to impose it. The defendant did neglect to pay the tax. That neglect was no doubt induced by the hope that the rule of construction adopted by the comptroller would be modified by the courts, and that the statute as to foreign corporations would be declared unconstitutional. Time was really what the defendant wanted in the hope that time would show its right to exemption in whole or in part. The comptroller extended time; but the comptroller could not repeal or suspend the law. The extra allowance granted was, under the circumstances, quite moderate.

Judgment and order affirmed, with costs.

Learned, P. J., concurred.

Present — Learned, P. J., and Landon, J.

Judgment affirmed, with costs. Order affirmed, with ten dollars costs and printing disbursements.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. RICHARD STOKES, Appellant, v. JOSEPH H. RISELEY, Sheriff of Ulster County, Respondent.

      Court of Special Sessions — restrictions upon the power of, to impose a sentence upon one convicted before it— Code of Criminal Procedure, see. 717 — habeas corpus— proper remedy for one imprisoned under a void, judgment.

    The relator was convicted before a Court of Special Sessions of having disposed of personal property, upon which he had previously executed a chattel mortgage, and was sentenced to pay a fine of $250, and to stand committed to the county jail until the fine should be satisfied, not exceeding one year.

      Held, that as the power of the Court of Special Sessions to inflict punishment is restricted by section 717 of the Code of Criminal Procedure to a fine not exceeding fifty dollars, or an imprisonment not exceeding six months, the sentence imposed upon the relator was void.
    That the remedy of the relator by which to obtain a release from an illegal imprisonment under the sentence was by a writ of habeas corpus.»
    That his right to this remedy was not affected by the fact that he might have reviewed the judgment of the Court of Special Sessions by an appeal therefrom.

      Appear from an order of the county judge of Ulster county, dismissing a writ of habeas corpus issued upon the application of the relator.
    The relator, on the 31st day of January, 1885, was convicted before F. D. L. Montar ye, a justice of the peace of the town of Marbletown, in Ulster county, of the crime of having disposed ■of personal property, npon which he had theretofore executed a mortgage, and was sentenced to pay a fine of $250, and to stand committed to the county jail of Ulster county until the fine he satisfied, not exceeding one year. Not paying the fine he was com. mitted to the county jail, whereupon he sued out a writ of habeas corpus before the county judge of Ulster county.

      J. W. Fiero, for the appellant.
    A. T. Clearwater, district attorney, for the respondent.
   Landon, J.:

The conviction of the relator was valid. (Penal Code, § 571.) He therefore is not entitled to his discharge, because he sho*uld sutler proper punishment. (The People ex rel. Devoe v. Kelly, 97 N. Y., 215.) Put he was convicted before a Court of Special Sessions held by a justice of the peace. Whatever punishment a court of record might impose upon conviction for this offense a Court of Special Sessions is restricted by section 717 of the Code of Criminal Procedure; the fine cannot exceed fifty dollars, nor the imprisonment six months.” There the fine was $250 with this addition, “ and stand committed to the county jail of Ulster county until the fine be satisfied, not exceeding one year.” Section 718 of the Code of Criminal Procedure provides that “ a judgment that the defendant pay a fine may also direct that he be imprisoned until the fine be satisfied, specifying the extent of the imprisonment which cannot exceed one day for every one dollar of the fine.” These sections are in part five, entitled, of proceeding in courts of Special Sessions and Police Courts.” Section 718 is a transcript of section 484 in part four, entitled “ of the proceedings in criminal actions prosecuted by indictment.”

It thus seems that the days of imprisonment cannot exceed the dollars of fine in any court. We think a Court of Special Sessions could not pronounce the sentence thus imposed. The suggestion is made that the sentence is valid to the extent of fifty dollars and a liability to- fifty days’ imprisonment. We think not; non constat that the relator would not immediately have paid the fifty dollars if that had been imposed, and thus have escaped imprisonment altogether. Two hundred and fifty dollars may be quite beyond his ability to pay. Thus the illegal sentence confines him in jail, when a legal one might not, and in this respect the case is distinguishable from People ex rel. Trainor v. Baker (89 N. Y., 460).

The People ex rel. Decoe v. Kelly is authority to the effect that a writ of habeas corpus is the proper remedy. The relator is detained upon an invalid judgment; it needs a valid one lawfully to detain him. Section 2016 of the Code of Civil Procedure denies habeas corpus to a person “ where he has been committed, or is detained by virtue of the-final judgment or decree of a competent tribunal.” It was held in People ex rel. Tweed v. Liscomb (60 N. Y., 559), as explained People ex rel. Woolf v. Jacobs (66 id., 10), that, when in pronouncing its sentence the court has exhausted its authority, if it proceed further to impose additional sentences, such additions are void. Thus “ the final judgment ” must be of a competent tribunal,” and where the competency to pronounce it is exhausted, or never existed, it does not come within the definition of the final judgment as to which habeas corpus is ineffective.

It is suggested that the relator’s remedy is by appeal. No doubt, upon appeal, the court could set aside the illegal judgment and pronounce a legal one. (Code of Crim. Pro,. §§ 543, 164.) But, meantime, it is true that the relator is unlawfully detained upon an invalid sentence, and he should be speedily freed from that restraint. Since we cannot detain him upon this sentence, and in this proceeding cannot ourselves pronounce any, and as it is impracticable to remand him to the Court of Special Sessions, we must discharge him.

The order of the county judge is reversed, and the defendant discharged.

Learned, P. J., concurred.

Present — Learned, P. J., and Landon, J.

Order reversed, and relator discharged.


text:
    JACOB H. CLUTE, Respondent, v. ROBERT ROBISON and Others, as Commissioners of Highways of the Town of Rotterdam, Appellants.

      Contract with a public officer — when a pa/rty rendering valuable services in good faith will be allowed to recover although he was not employed in the manner required by law.

    This action was brought by the plaintiff to recover the value of professional services rendered by him to the defendants, as commissioners of highways. The plaintiff was employed by two of the three commissioners, who acted without consultation with or notification to the third commissioner. On being subsequently notified of the plaintiff’s employment, the third commissioner-expressed his indifference to it.

      Held, that the irregularity in the employment of the plaintiff should not prevent him from recovering the value of his services, as it appeared that he had acted in good faith and without knowledge of the defect in the authority of the' officers employing him.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a'jury, and from an order denying a motion for a. new trial made upon tbe minutes of tbe justice before whom the-action was tried.

      8. W. Jackson, for tbe appellants.

      J. II. Clute, respondent, in person.
   Landon, J.:

Tbe plaintiff was employed as counsel in bebalf of tbe commissioners of highways, at the instance of two of tbe three commissioners, without any notice to, or consultation with tbe third. Tbe third commissioner was subsequently informed of such employment of tbe plaintiff by bis associates, and expressed bis indifference.. Under this employment tbe plaintiff rendered valuable services and incurred disbursements, and tbe jury have awarded him by their verdict a recovery therefor.

This manner of employment was irregular, because tbe third, commissioner had no opportunity to know anything about it until after tbe employment was made, but tbe employment itself was not ultra vires. Tbe commissioners, in a regular way, bad the power to employ the plaintiff. The plaintiff did not know of any irregularity in the proceedings by which his employment was authorized. He rendered valuable services in good faith, under circumstances which justified his reliance upon a regular retainer.

There is authority to the effect that where a person in good faith enters into a contract with public officers, within their power to make if they act in a regular way, and such person performs the contract on his part, and the performance is beneficial to the public, the public officers will be estopped to allege the irregularity of their action to the prejudice of the person who has so performed. (Brady v. Mayor, 20 N. Y., 312, 319; Moore v. Mayor, 73 id., 238; Nelson v. Mayor, 63 id., 535.)

If there is a statutory prohibition of power unless exercised in a regular way then the estoppel could not operate.

But here two made the employment; two could make it at a meeting of the three, or at a meeting of two if the third had had reasonable notice of the meeting. (2 R. S., 555, § 27, as amended by chap. 321, Laws 1874.) The statute authorized two to act; they; did act; their action presupposes that the third officer was present or had been notified to attend the meeting. This presupposition or presumption, if there is no statutory prohibition, will exist in favor of the innocent third party dealing with the two. (Bank v. Dandridge, 12 Wheat., 70.) We do not think there exists a statutory prohibition of the exercise of power in this case.

The distinction between the rights of an innocent third party, relying upon the regularity of the acts of public officers and parting with his services and money upon the faith of the presumption which the law encourages, and the right of public officers to take the property of the citizen by virtue of their official action, is obvious and founded in sound policy. In the latter case the regularity of the action of public officers should be shown. Such is the sacredness of private rights that they can only be invaded by strict obedience to law; but in the former case, justice requires that public officers should deal in good faith, that they should not mislead the citizen, that they should not despoil him of his property, and then deny their power. Another distinction may be pointed out; it is the distinction between the acts or conditions which lie at the foundation of the existence of a power, and of the acts and conditions which are precedent to the right to exercise it, the power itself existing. In the former case the conditions precedent must exist in order that the power exist; in the latter case the exercise of the power is a representation that the conditions precedent to the right to exercise it exist, and an innocent third party relying upon such representation and parting with value is protected. (Gifford v. Town of White Plains, 25 Hun, 606, and cases there cited.)

The motion upon the trial at the close of the evidence to strike from the record the names of the two defendants, whose term of office had expired, and allow the action to proceed in the name of the sole commissioner now in office was properly denied. The defendants elected to go to trial without having moved for substitution of parties and hence cannot complain if the action is determined according to the liability of the parties as existing when the action commenced.

The judgment should be affirmed, with costs.

LeaRNEd, P. J., concurred.

Present — Learned, P. J., and Landon, J.

Judgment and order affirmed, with costs.


author: LeaRned, P. J.: Bocees, J".: JLaNdoN, J.

text:
    JANE KINNEY, Respondent, v. THE CITY OF TROY, Appellant.

      Negligence — liability of a city for am, injury sustained by one falling m the street on a smooth piece of ice — evidence—what is admissible as tending to show notice.

    In an action against a city to recover damages for an injury sustained by a fall alleged to bave been caused by slipping upon an icy sidewalk, it is no defense to the city to show that the ice upon which the plaintiff slipped was not in hommocks and ridges so as to obstruct travel, but was smooth and level, if it was so slippery as to be dangerous to persons passing over it. (Landon, J., dissenting.)
    "Upon the trial of this action the court allowed the plaintiff to show that the street in which the accident occurred was patrolled by the police of the city, and in his charge to the jury the judge instructed them that they should ask themselves “ whether there was anything in the condition of the street at that time, as the officer passed, to call his attention, or that of any other man passing by there, to the fact that it was in a dangerous condition.”

      Held, no error.
    Appeal from a judgment for $1,133.62 in favor of the plaintiff, «entered upon the verdict of a jury at the Rensselaer Circuit in May, 1885, and from an order denying the appellant’s motion to set aside the 'verdict and for a new trial, made upon the minutes of the justice before whom the action was tried.
    The plaintiff fell on the sidewalk on the south side of Hoosick street, between North Third and iNorth Second streets, in the city of Troy, on the 24th day of December, 1880, and sustained a fracture of the wrist of the right arm. The plaintiff lived less than a block away from the place of the accident, viz., in Green street, which is a narrow street or lane between North Second and North Third streets, and she had lived there for thirteen years. She had been to Patton’s laundry, and was returning home with three dozen shirts, which she was carrying in her arms, about three o’clock in the afternoon. One Conway kept a meat market on the southwest corner of Hoosick and North Third streets, the principal entrance to which was on Hoosick street, near to North Third. When opposite Conway’s building the plaintiff slipped and fell on a patch of ice. The grade of the street, and the grade of the sidewalk from the building to the gutter, were good. The ice upon which the plaintiff slipped extended in a thin sheet from the house to the gutter. Upon the trial the plaintiff was allowed, against the defendant’s objection and exception, to show that the portion of the street where the accident occurred was daily patrolled by policemen. In his charge the judge said: “ If you find that the officers, who are policemen, had traversed this street and saw that the street was in the condition named, then you would ask yourselves whether there was anything in the condition of the street at that time, as the officer passed, to call his attention, or that of any other man passing by there, to the fact that it was in a dangerous condition. Was it in a dangerous condition to such an extent as to call for immediate or any attention on the part of the citizens ? The mere fact that there is an icy sidewalk is not sufficient. If that were sufficient then there would be one continual work on the part of all citizens to attempt, at least, to keep their sidewalks entirely free from ice, and it would be a failure, at that, in many instances. But if this policeman passing along, simply, saw there was some ice npon that spot, the question would be for you to say whether it was, as matter of. fact, such a dangerous spot as called for the suppression of it under the duty which the city owed of fairly active vigilance in regard to such matters. If you find that under these circumstances there was no negligence on the part of the city, why that is the end of the case so far as any right of the plaintiff t® recover is concerned.”

      William J. Roche, for the appellant.

      Thomas Neary and James Lcmsi/ng, for the respondent.
   LeaRned, P. J.:

In examining the Massachusetts cases Stanton v. Springfield, (12 Allen, 566) and Luther v. Worcester (97 Mass., 268), and the like, which are strongly urged on us by the defendant, we must notice that the liability there sued upon is statutory. In the latter case, at page 271, it is said : “ It cannot be supposed that the legislature in malcing towns liable for damages caused by defects in highways intended,” etc. And it will be seen by reference to the former case that the statute is one which applies to towns and cities, requiring them to keep roads “safe and convenient,” and the argument of the court is that towns could not be required to keep roads free from ice. But the only liability under which our cities are is one which arises from the common-law principle of liability for negligence. There is not an absolute duty to keep roads and streets safe and convenient. But there is a duty not to be negligent. And the question of negligence is one for the jury, as has often been said.

I am aware of the danger that juries may sympathize with the injured plaintiff, and may be unjust to the corporation. But that is one of the imperfections of the tribunal, which the people have established. It is no less the lawful .tribunal. Now I cannot see that a smooth surface of icy sidewalk may not be just as dangerous as a ridgy surface. And if the city is liable when it knowingly permits a ridge of ice to continue on a sidewalk, on which a person falls, it must be liable when it knowingly permits a smooth piece of ice to continue, and a similar accident happens. The doctrine of Todd v. City of Troy (61 N. Y., 506), does not rest upon the particular shape in which the ice existed. It rests on the duty to exercise an active vigilance to keep the streets in a reasonably safe condition. And such has been the doctrine of the numerous cases which have followed that.

In Muller v. Newburgh (32 Hun, 24) a majority of the court held that when ice formed on Thursday, and the plaintiff fell and was injured on Sunday, there was not evidence for the jury on the question of presumptive notice to the defendant. I think great difficulty will be found, if the courts attempt to declare, as law, what time the obstruction must have existed in order tc permit the question of notice to go to the jury.

The court in the present case carefully charged the jury that the mere fact that there was an icy sidewalk was not sufficient; that the question was whether the city had exercised that vigilance which should be exercised under the circumstances. I cannot see that such vigilance should be directed only to uneven, and never to smooth, ice. As to the testimony given in respect to the patrolling of policemen and their instructions, taken in connection with the charge of the court, it seems to me to be unobjectionable. I do not see that the defendant’s liability was made to follow from the acts of the policeman.

I think the judgment and order should be affirmed, with costs.

Bocees, J".:

The defendant was bound to keep and maintain its streets in a reasonably safe condition for public travel, and this as regards impediments to safe travel, whether because of actual obstructions, as in the case of hommocks and dangerous obstructions of every kind of a material character, as also because of holes and slippery surfaces. The particular form of the obstruction which may be claimed to be dangerous or otherwise cannot be declared as matter of law, that must depend entirely upon the proof as to what caused the injury. A smooth slippery surface may be dangerous to the traveler, and such condition of danger should be remedied in a case like the present, or liability for injuries to him because of it would follow, so be it that the city had notice, actual or constructive, and in due time after notice omitted to remedy it or to give needful warning of tbe danger' tbe injured traveler bimself being free from fault. I am clearly of tbe opinion tbat tbis case was for tbe jury on tbe proof.

Tbe exception taken to tbe evidence, and also to tbe charge of tbe court touching tbe subject of tbe patrolling of tbe streets by tbe police, is, as I think, without force. Tbe learned judge did not, in the admission of tbe proof or in tbe charge, bold as matter of law tbat notice to tbe police was notice to tbe city. He allowed tbe fact to be proved tbat tbe street was patrolled, tbat is, passed over by tbe policeman. Tbis was but showing who passed along the street, and how frequently and bow employed, as evidence bearing on tbe question of constructive notice to tbe city of tbe danger. Had it been intended to raise tbe question whether notice to the policeman was notice to tbe city, it should have been done by obtaining a ruling by tbe court directly upon tbe proposition.

On tbe whole I am of tbe opinion tbat tbe judgment should be affirmed.

JLaNdoN, J.

(dissenting):

In Todd v. City of Troy (61 N. Y., 506) tbe rule tbat it is tbe duty of a municipal corporation to exercise an active vigilance over the streets, to see tbat they are kept in a reasonably safe condition for public travel, was so applied as to charge tbe city with negligence for omitting to take notice of and remove a ridge of ice, formed by the discharge of water from a conductor of a bouse. Tbis water ran across the walk into tbe street gutter and would alternately thaw and freeze, as tbe weather was warm or cold. The court said that tbe municipal authorities are called upon to observe, notice and see tbat tbe public streets, in time of winter, are reasonably cleared of snow and ice. It would be unreasonable in this climate to require a municipal corporation to keep its sidewalks absolutely free from snow and ice. Tbe cases show tbat something more than tbe mere proof tbat snow or ice has been suffered to remain upon tbe sidewalk, is required to charge tbe municipality with a neglect of its duty.

In Todd v. City of Troy tbe negligence or wrong of tbe householder co-operated with the elements to create a dangerous icy ridge upon tbe walk.

In Evans v. City of Utica (69 N. Y., 166), the snow had not been at all removed from the portion of the sidewalk in question, but had been suffered to accumulate for a month or more and had thawed and frozen until the ice had formed from four to six inches thick with an uneven surface.

Darling v. Mayor (18 Hun, 340) was very like the Todd case. In Pomfrey v. Village of Saratoga (34 id., 607) the snow had fallen from a barn, and being suffered to remain formed such a ridge on the walk that it could not be crossed without difficulty.

In Stanton v. City of Springfield (12 Allen, 566) it was held that the mere fact that a highway is slippery from ice upon it when there is no such accumulation of ice and snow as to constitute an obstruction, and if the walk is in other respects in good order, is not a defect requiring action on the part of the city.

In Luther v. Worcester (97 Mass., 268), the above rule was repeated, but it was held that a defect might be found to exist where the ice or snow was suffered to remain in drifts or ridges, or so uneven, as by means of these peculiarities to add to the danger which mere slipperiness of the snow or ice would occasion.

Such we think to be the proper rule and the one indicated in the cases above cited; also in Durkin v. City of Troy (61 Barb., 437, 454); Muller v. City of Newburgh (32 Hun, 24).

In this case the judge substantially so charged. "We do not think the evidence established any defect from the ice which the city was under any obligation to remedy. There was a small patch of ice, extending from the house out upon the walk. The plaintiff’s testimony is to the effect that it had been sprinkled with sawdust. Some attempt was made to have her describe it as a ridge, but this does not appear to have succeeded. She spoke of a gutter coming down from the building, but it plainly appears there was none. She described the ice as “ all in one sheet just alike.” It is plain that she slipped upon the ice because it was slippery, not because it was uneven, or rounded, or ridgy.

The judgment should be reversed.

Judgment and order affirmed, with costs.


text:
    WILLIAM H. WING, Respondent, v. CHARLES H. BULL, Appellant.
    Demurrer— it will not lie to the nonjoinder a proper, but not a necessary, party to the action.

    The complaint alleged that the defendant held the legal title to certain premises under a trust to convey the one equal undivided one-half-thereof to the plaintiff, and the other like one-half to Eliza Bull, the defendant’s wife; that the ■defendant, though often requested so to do, refused to make a conveyance of his interest therein to the plaintiff; that the defendant had been in the use and enjoyment of the said premises and was entitled to certain credits, and refused to account to the plaintiff; the complaint then demanded judgment for an accounting and a conveyance.

      Held, that a demurrer interposed upon the ground that Eliza Bull, the other cestui que trust, was not made a party, was properly overruled as she was not a necessary, though she might be a proper, party to the action.
    Appeal from an interlocutory judgment, entered upon an order overruling a demurrer to the complaint.
    The complaint charges that the defendant holds the legal title to certain premises under a trust to convey the equal undivided one-half thereof to the plaintiff in this action, and the other like one half to Eliza Bull, the defendant’s wife; that the defendant, though often requested so to do, refuses to make a conveyance of his interest in the premises to the plaintiff; that the defendant also has been in the use and enjoyment of said premises and is entitled to certain credits, and refuses to account to the plaintiff, and judgment is demanded for an accounting and conveyance. Defendant demurred because Eliza Bull, the other cestui que trust, was not made a party either plaintiff or defendant. The demurrer was overruled by the Special Term, and the defendant appealed.

      Charles Hughes, for the appellant.

      Theo. j¥. Melvin, for the respondent.
   Landon, J.:

The demurrer was properly overruled. Mrs. Bull may be a proper party to such an accounting as would adjust the rights of all the parties as between each other, but she is not a necessary party to an accounting between tbe plaintiff and defendant. She may have a like claim to tbe land as the plaintiff, but she has no community of interest in the plaintiff’s claim. Upon the case stated in the complaint the plaintiff is entitled to have the defendant convey to him an undivided one-half of the land, subject to such lien thereupon as may be shown to exist in the defendant’s favor, upon an account stated between plaintiff and defendant.

If the account should show that the balance is in favor of plaintiff he can in this action obtain no lien upon Mrs. Bull’s share, nor can he state any account as between himself and Mrs. Bull. The simple question is, between himself and defendant, upon what 'terms shall defendant convey to him. If there is any equity existing between the parties, by which the plaintiff’s share should be charged with the whole amount of the moneys advanced by him or by the defendant, or with any use enjoyed by Mrs. Bull, or if the accounts between the plaintiff and defendant are so dependent upon their accounts with her, that the accounts of the three must be adjusted in order to ascertain the balance between the two, the present answer to such a suggestion is, that the complaint does not show such a state of facts, and therefore not till they are alleged in the answer, or the fact appears upon the trial, will it appear that Mrs. Bull is a necessary party. It is true the complaint alleges that the plaintiff has advanced money as a charge upon the whole land, that he has received some use thereof, and that Mrs. Bull has received some use thereof, but the plaintiff not having chosen to sue Mrs. Bull, can take nothing-against her in this action, and he can state no account against the defendant except for what the defendant has or ought to have received. He can show under his complaint that, as between himself and defendant, the defendant ought to convey to him the undivided one-half of the premises upon being reimbursed that part of the balance due defendant upon his advances, which the defendant, can show are properly chargeable upon plaintiff’s share of the land. It may well be that Mrs. Bull would have been a proper party to-this action, to the end that the parties rights against her should also be adjusted. But she is not a necessary party, until it appears that her rights must be adjusted between one party or the other, in order to adjust them between each other, and that does not yet appear. The plaintiff need only show his title to the undivided one-half as against the defendant; he need not show who owns the other half. He need only show upon what terms, as between himself and defendant, the defendant should convey to him. Mrs. Bull had no interest in plaintiff’s share of the land, nor in the state of the account between plaintiff and defendant. She is not therefore a necessary plaintiff. (Code, § 446.) She has no interest adverse to the plaintiff’s claim against the defendant, and therefore is not a necessary defendant. (Sec. 447.) The court may completely determine the controversy between the parties without prejudice to her rights. (See. 452.)

Interlocutory judgment affirmed, with costs, with usual leave to withdraw demurrer and answer upon payment of costs.

Learned, P. J., concurred.

Present — Learned, P. J., and Landon, J.

Judgment interlocutory on demurrer affirmed, with costs, with privilege to withdraw demurrer on payment of costs.


author: LaNDON, J.:

text:
    JOHN V. RECTOR, Respondent, v. THE RIDGWOOD ICE COMPANY, Appellant.

      Amendment to complaint — must be without prejudice to proceedings already had— Oode of Oml Procedure, see. 542.
    In the summons and complaint in this action Albany county was designated as the place of trial. Neither party resided in that county. The defendant, which had its principal place of business in King’s county, demanded that the place of trial be changed to Kings county. The plaintiff, who resided in Rensselaer county, thereupon amended his complaint by designating Rensselaer county as the place of trial. Dp on the defendant’s motion coming on it was defeated upon the ground that the proper county was designated in the amended complaint.

      Held, that this was error as the complaint could only be amended, without prejudice to the proceedings already had. (Learned, P. J., dissenting.)
    Appeal from an order, made at a Special Term, denying a motion to change the place of trial of this action.

      Nathaniel 0. Moah, for the appellant. .

      S. W. Rosendale, for the respondent.
   LaNDON, J.:

The summons must state the county in which the plaintiff desires the trial. (Code, § 417.) The complaint must contain the name of the county which the plaintiff designates as the place of trial. (Code, § 481.) Both summons and complaint named Albany county as the place of trial. Neither party resided in that county. Defendant demanded that the place of trial be changed to Kings county. (Sec. 985.) The defendant resided in that county. Plaintiff thereupon amended his complaint by designating Rensselaer county (his residence) as the place of trial. This he could do, of course, in the proper time, but without prejudice to proceedings already had. (Sec. 542.) Defendant brought on his motion to change the place of trial to Kings county. He was defeated because the proper county was designated in the amended' complaint. (Sec. 987.) If that order prevails then the plaintiff’s amendment of the complaint prejudiced proceedings already had by defendant looking to a change of the place of trial.

The order must be reversed, with ten dollars costs and disbursements, and motion granted with ten dollars.

Booses, J., concurred; LearNed, P. J., dissented.

Order reversed, with ten dollars costs and printing disbursements,' and motion granted.


text:
    THE JAMES GOOLD COMPANY, Respondent, v. WILLIAM F. MAHEADY and FANNIE L. MAHEADY, Appellants.

      Fraudulent transfer of property — liability of one who allows the transfer to be made to him, although he does not actually receive the property.

    In this action, brought to set aside as fraudulent a transfer of property from a husband to his wife, the complaint alleged, and the referee found, that the assignment to the wife “ was not accompanied by an immediate and continued change of possession of the property, hut that said property remained in the actual possession and under the control ” of the husband. A judgment having been entered against the defendants for the value of the property so transferred* the wife claimed that the judgment could not he sustained as against her for the reason that it was not shown that the property was ever in her possession, and that the referee found that it had not actually left the husband’s possession.

      Held, that the claim should not be sustained; that the wife should not be allowed to set up her own wrongful act as a defense; that she was liable to account as a trustee ex maleficio for the benefit of the husband’s creditors.
    Appeal from a judgment of the Supreme Court in favor of the receiver appointed in an action brought by the James Goold Company against the defendants, entered upon an order of the Special Term, confirming the report of a referee before whom the defendants were directed to account to the receiver.
    The James Goold Company brought an action against the defendants to set aside a transfer of personal property made by the defendant William F. Maheady to his wife, the defendant Fannie L. Maheady, on the ground that the same was made with intent to hinder, delay or defraud creditors.
    The action was tried before a referee, who duly made his report against the defendants, finding that the transfer was made with intent to hinder, delay and defraud creditors; that it was not accompanied by an immediate delivery and an actual and continued change of possession, and was therefore void, and directed that judgment be entered accordingly. The referee also directed that the defendants account to a receiver, to be appointed upon notice, before a referee, for the property embraced in the transfer, the value of which was fixed at $1,500, except that on such accounting defendants were to be credited with $700 received for a part of the property sold by Wm. F. Maheady, with his wife’s approval, before the commencement of the action, which sum of $700 was applied towards the payment of Wm. F. Maheady’s debts. The defendants proceeded to an accounting, and the referee made his report, directing the defendants to turn over the property mentioned in the transfer to the receiver, or its value $800, after crediting them with $700.

      Charles JE. Tefft, Jr., and L. B. Pike, for the appellants. Arthur I. Anct/rews, for the respondent.
   Landon, J.:

The defendant Fanny L. Maheady urges that it was error to enter judgment against her for $800. She claims that the fact has been found to be as alleged in tbe complaint, that the assignment to her by her husband was not accompanied by an immediate and continued change of possession of the property, but that said property remained in the actual possession and under the control of the defendant ¥m. F. Maheady,” and therefore she ought not to account for the property.

This finding was made as between the plaintiff and the defendants, but as between the defendants themselves it is quite immaterial whether there was any actual change of possession of the property or not. The bill of sale was made in order to give an appearance of a valid transfer of title, and to have it so far effective as to be a convenient shield to be interposed between the property and the plaintiff’s execution. It was practically effective for that fraudulent purpose, and as a consequence and by the wife’s connivance and co-operation in the scheme, the husband was enabled to dispose of part of the property and to enjoy the rest. As a consequence the property has not been applied upon the plaintiff’s judgment against the husband as it ought to have been.

For this result the wife is responsible, not because of her actual, but of her pretended possession and ownership of the property. By her becoming the fraudulent assignee of the property, she in common with her husband withheld it from application in satisfaction of the plaintiff’s judgment. That wrong continues, and the court has ordered that it shall continue no longer; that both defendants shall account for the property, and, as part of it has been disposed of since the plaintiff’s right to its application has accrued, that the defendants shall pay its value.

The wife’s answer to this proposition is — true, I pretended to own and have actual possession of the property, but that pretense was false. The object of the plaintiff’s action was to show that it was a false pretense, to the end that because it was false the wife might not continue to withhold the property. He has succeeded in showing its falsity, but meanwhile part of the property has been disposed of. Who should lose in consequence, the plaintiff or she whose unlawful pretense has caused the loss ? The answer is obvious. The wife should not be permitted to shift her ground so as to avail herself first of the advantage of her wrong in keeping the plaintiff so long at bay, and when forced from that position, then to assert that she was not in truth in posses non of the property, and therefore should not account for it. She is found to have been the fraudulent assignee of this property, and, therefore, was trustee ex maleficio of it for the benefit of her husband’s creditors. (Dewey v. Moyer, 72 N. Y., 70, and cases there cited.)

We are cited to the case of Nicholson v. Leavitt (4 Sandf., 252) as an authority in support of the position that the wife cannot be made to account for the property unless it actually came into her possession. That case is to the effect that where the vendor made a bill of sale of his household furniture to the vendee, and the vendor still retained the possession, and none of the property was in any way disturbed or disposed of, the vendee could not be made to account for its value although the bill of sale was fraudulent. We -do not dissent. In that case the moment the bill of sale was set aside the entire property was, without diminution or loss applicable to the judgment creditors’ execution. The vendee need not pay for the property, for the property remained intact. The question was not presented as to the liability of the fraudulent vendee, if by his acts or connivance the property had not been forthcoming.

We have examined the other points urged by the appellants and do not think them well taken. The evidence warranted the judgment entered in the first instance; that was a final judgment; what followed was the machinery for its execution, and the evidence warranted the supplemental judgment for that purpose made upon the foot of the first judgment. The practice is not challenged by the appellants and it seems to be well settled. (Produce Bank v. Morton, 67 N. Y., 199; Myers v. Becker, 95 id., 486.)

The judgment and orders appealed from should be affirmed, with •costs.

Bookes, J., concurred.

Present — Bookes and Landon, JJ.

Judgment affirmed, with costs.


text:
    SIMON UHLMAN and FREDERICK UHLMAN, Appellants, v. WILLARD R. DAY, Respondent.

      Contract for the sale of goods — the acceptance of an offer must he an unconditional one— when the tide does not pass until the goods home teen actually weighed.

    One Primrose, an agent of the plaintiffs, telegraphed to the defendant that ha would give twenty-four cents for the defendant’s hops. In answer to a telegraph from defendant, saying “twenty-five or no sale,” Primrose telegraphed,, “will take them at twenty-five. Will send some money on afternoon train.”' On the same day he wrote a letter saying “ I send you hy registered letter, this mail, ten dollars in confirmation of my last dispatch. I will take the hops in Tuesday morning.” He inclosed ten dollars and gave the letter to the postmaster to he registered and immediately forwarded, hut hy the neglect of the postmaster this letter did not reach the defendant until the next day. The defendant having then refused to accept the money or to deliver the hops, after a tender of the amount of the purchase-price had been made, the plaintiffs brought this action to recover their possession.

      Held, that the action could not be maintained for the reason that no valid contract of sale was established, because:

      Hirst. The offer of the defendant to sell at twenty-five cents was not unconditionally accepted by either the telegram or the letter sent by Primrose.

      Second. That even if there was an unconditional acceptance of the offer, yet the contract was an executory one as the hops had not then been weighed and the actual price to be paid was for that reason unknown.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The defendant had twenty-nine bales of hops, at Burke upon the Ogdensburgh and Lake Champlain railroad. The plaintiffs were hop buyers and by their agent Primrose, had been negotiating with defendant for the purchase of the hops. Primrose had seen the hops and inspected them; they had not been weighed. In this condition of facts, Primrose on May 19, 1882, telegraphed to the defendant from- Malone, a station. upon the same railroad, seven miles from Burke, as follows:
    “ Malone, May 19, 1882.
    “To W. Day:
    “I will give you twenty-four cents for your hops, answer immediately.
    « J. E. PEIMEOSE.”

      In reply to which and on that day the defendant sent the following telegram to the said agent:
    “Burke, May 19, 1882.
    “ To J. E. Primrose :
    “ Twenty-five or no sale.
    “ W. E. DAY.”
    And on the same day Primrose telegraphed the defendant as follows:
    “ Malone, N. Y., May 19, 1882.
    “ To W. E. Day, Bwrke, JY. Y.:

    “Will take them at twenty-five. Will send some money on afternoon train.
    “J. E. PEIMEOSE.”
    Each of which dispatches was duly received by the respective parties. And on the nineteenth the said agent wrote the following letter *
    “ Malone, N. Y., May 19, 1882.
    “ W. E. Day, Esq., Bwrke, 1Y. Y. :

    “ Dear Sir. — I send you by registered letter this mail ten dollars in confirmation of my last dispatch. I will take the hops in Tuesday morning. Will come there on morning train. Please acknowledge receipt and oblige.
    “Yours, truly,
    “JOHN E. PEIMEOSE.”
    This letter, inclosing ten dollars, Mr. Primrose, on the day it was-written and bears date, intrusted to the postmaster at Malone with directions to register the same and forward it by mail, and through the carelessness of the latter it failed to reach the defendant until the next day in the afternoon.
    On the evening of the same day the defendant went to Malone-to notify Primrose that he would not let him have the hops, but failed to see him. On the following day Primrose went to Burke, when defendant told him he could not have the hops, and said he-declined to accept the ten dollars, and offered to return it to Primrose, who refused to take it. The defendant mailed it to him at Malone, but Primrose refused to take the letter, and the letter being-returned to defendant the money was upon the trial delivered to the-referee. On the twenty-third Primrose informed the defendant .that he was ready to weigh and take the hops and offered to pay for them, and then produced money enough for the purpose, and was able, ready and willing to perform upon the part of the plaintiffs. The defendant refused to let him have the hops, whereupon this .action to recover their possession was brought by the plaintiffs.

      S. A. Beman, for the appellants.

      J. P. Badger, for the respondent.
   Landon, J.:

There was no contract of sale, and therefore the title to the hops •never passed from the defendant to the plaintiffs.

Fi/rst. The plaintiffs did not without qualification accept the proposition of the defendant. In response to the offer by plaintiffs •of twenty-four cents, the defendant said “twenty-five or no sale.” To this the plaintiffs telegraphed “will take them at twenty-five; will send some money on afternoon train.” How about the rest of ■the money ? When was that to be paid or sent ? “ Will take them .at twenty-five,” standing alone, would mean will take and pay forj them immediately; but when there is appended “ will send some money on the afternoon train,” there is implied in addition to the indefinite delay of payment, an indefinite delay of taking the hops, •and thus the defendant is asked to vary the terms which his proposition imported, and to this variance he did not assent. If the plaintiffs’ letter is to be regarded as the acceptance, then the defendant was asked to wait until Tuesday following, and thus a delay was asked hy the plaintiffs to which the defendant did not accede.

Second. If there was an acceptance by the plaintiffs of the offer by the defendant, then the contract was an executory one and'the title did not pass. There were twenty-nine bales of hops, but they had not been weighed, and until this should be done the price would be unknown. Payment and delivery were, by the terms of the contract, to be simultaneous acts since it was not otherwise agreed. (Tipton v. Feitner, 20 N. Y., 423.) Until the weighing should be done the title under the agreement would not pass. (Joyce v. Adams, 8 N. Y., 291; Terry v. Wheeler, 25 id., 525; Kein v. Tupper, 52 id., 553; Olyphant v. Baker, 5 Den., 381.) Such being the case it could make no difference in the title whether the weighing was to be done by the buyer or seller, since the act of weighing, not the person who should do it, was the condition precedent to the transfer of title. (Ward v. Shaw, 7 Wend., 404.) The title not having passed this possessory action cannot be maintained, however it might be as to an action for damages.

Third. The award by the referee of one dollar damages for the detention of the property by the plaintiffs, upon their seizure thereof under process, may, in the absence of evidence upon that subject, be treated as an award of nominal damages. As the defendant was probably obliged to procure the preparation and execution of papers tu repossess himself of the property, he probably suffered more damages than he recovered.

The judgment should be affirmed, with costs.

Learned, P. J., concurred.

Present — Learned, P. J., and Landon, J.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    JULIA A. MORSE, Appellant, v. THE CITY OF TROY, Respondent.

      Duty of a city to take care of land dedicated as a public street — in what condition it must be put by the person attempting to so dedicate it — charter of the city of Troy— 1870, chap, 598, tit. 6, sec. 4 —1872, chap. 129, tit. 4, sec. 3 — a person suing as a poor person may appeal — privilege of so suing does not extend to such appeal— Code of Civil Procedure, sec. 466.
    September 12, 1871, one Albertson conveyed to one Collins a strip of land twenty-five feet in width and 265 feet in depth bounded on the north by the south line of a public street. The deed described two certain courses and then provided that “the lands for said street shall he opened on the southerly side of and adjoining said two lines on or before the 1st day of June, 1872,-forty-seven feet and six inches in width, for the use of the public and be known as Collins street. ” The lands on each side of the strip were used for agricultural purposes. At the time of the conveyance the strip was in rough condition and it had not been graded at the time of the accident. Albertson had worked on it year after year, first cutting it down a foot and lowering the trees, and then another foot and again lowering the trees, closing up the road with barricades while so working. Tlie city had never done anything upon the street; it had neither worked nor graded it, nor had it set up lamp-posts in it.
    The plaintifl having been injured on May 7, 1877, by falling into a hole while ' passing along this strip of land, sought to hold the city liable for the damages thereby sustained, on the ground that the said strip had become a public street under a provision of the charter of the city, providing that “ all streets and avenues in said city which are now opened or shall hereafter be opened to public use and shall be used as such for five years continuously, shall be deemed and taken to be public streets and avenues.”

      Held, that as the time fixed by the deed for the opening of the street, June 1,1872, was not five years prior to the time of the accident, the conveyance could not be construed as an opening of the street within the meaning of the statute. That the acts performed by Albertson in working and grading were not sufficient to put the strip of land in such a condition as to make it fit and suitable for the uses of a public street, so that the city might have accepted it as such.
    To impose a duty upon the city of taking care of land dedicated for street purposes, the person who dedicates it must have done such acts as would enable the city to have accepted the dedication at the beginning of the said period of five years, and at all times during that period.
    The fact that a plaintifl is suing as a poor person does not prevent him from appealing from an adverse decision, but the privilege of litigating as a poor person does not apply to any appeal so taken by him.
    Appeal by the plaintiff from a judgment dismissing the complaint upon the merits, entered pursuant to an order granting the ■defendant’s motion made at the close of the testimony upon a trial had before Mr. Justice Ingalls and a jury at the Rensselaer county Circuit, in May, 1884
    The action was brought to recover damages for injuries sustained by the plaintiff through the alleged negligence of the defendant in permitting an alleged street, in the city [of Troy, called Collins avenue, to be in an unsafe and dangerous condition. The plaintiff •sues as a poor person, she having brought an action before the present one for the same cause, in which the complaint was dismissed, with costs. An order was thereupon obtained permitting the prosecution of this action im, forma pauperis, and “ that she be not prevented from prosecuting the same by reason of her being liable for the costs of the former action brought by her against the same defendant.”
    On the evening of May 15, 1877, the plaintiff, while passing through what is called Collins avenue, fell into a hole and sustained the injuries, to recover damages for which this action was brought. In September, 1871, Albertson conveyed certain premises to William Collins, and in the conveyance bounds them “on the north by the south line of a public street,” the deed describes two certain courses and then declares that “ the lands for said street shall be opened on the southerly side of and adjoining said two lines on or before the 1st day of June, 1872, forty-seven feet and six inches in width, for the use of the public and to be known as Collins street.” This strip of land was irregular in lines and form and extended from Maple avenue to Pawling avenue. At this time the land all about there, including what was to be a street, was pasture and farming land, with a lane through it where cattle were driven.

      John B. Oreen, for the appellant.

      Wm. J. Roche, for the respondent.
   Learned, P. J.:

This is an action to recover for injuries suffered by plaintiff by falling into a hole. The principal question is whether the place where the hole was, at the time of the accident, was a public street. The plaintiff was nonsuited on the ground that it was not.

The accident happened May 7, 1877. The plaintiff relies principally on a provision of the charter (Laws 1872, chap. 129, tit. 4, § 3, and Laws of 1870, chap. 598, tit. 6, § 4): “ All streets and avenues in said city which are now opened or shall hereafter be opened to public use, and shall be used as such for five years continuously, shall be deemed and taken to be public streets and avenues,” etc.

Albertson, the owner of certain premises, on the 12th day of September, 1871, conveyed to Collins a strip of land, twenty-five feet in width and 265 feet in depth, bounded on a public street. The street is said to run from Maple avenue to Pawling avenue, describing two certain courses, and the conveyance adds: “ The lands for said street shall be opened on the southerly side of and adjoining said two lines on or before the first day of June, 1872, forty-seven feet six inches in width for the use of the public.” The lands on each side were used for agricultural purposes. Thus it will be seen that the time when this street was to be opened was not five years prior to the accident. If the conveyance then is to be con strued as an opening, the statute had not established an acceptance at the time of the accident.

Rut plaintiff insists that the acts done in respect to this land in April or May, 1872, constituted an opening. And indeed it is on such acts that the plaintiff must rely; because the deed of conveyance was only a contract with Collins and not itself a dedication to the public. There were, as Collins testifies, no houses on the street, so that it does not appear that any persons along the alleged street, except Collins, acquired rights therein; Albertson, the grantor, being the owner of the adjacent land. It appears that the land, thus called a street, was in a rough condition, and that it is not graded even yet; that Albertson the owner worked on it year after year; first cut it down a foot and lowered the trees; then another foot and lowered them again; that when working Albertson closed up this street with barricades at each end. The city has never done anything on this street; has not worked it or graded it or set up lampposts on it. In construing the provision of the charter above cited we refer to Strong v. Brooklyn (68 N. Y., 1), and Petition of Rhinelander (68 id., 105). In the former it is remarked that at the time when thrown out and for the term of five years continuous use the premises must be in the shape and for the purpose of streets.” "Without repeating in detail the testimony, we may say that we think it fails to show this condition of things in respect to this piece of land for five years prior to the accident. The general rule is that there must be an acceptance of a proposed street, as well as a dedication in order to impose on the city a duty to take care of the street. The statute comes in the place of an acceptance, as the courts say. If this be so, then it must follow that the person who dedicates the street must have done such acts that the city might have accepted the dedication at the beginning of the five years; that is, there must be five years of such dedication, that an acceptance by the city at any time within that peoiod would be binding on the person who dedicated the land. Now we think it is not shown here that the city, on the 15th of May, 1872, and on every day thereafter, could have taken this strip of land as being actually a dedicated street. If this be so, the learned justice was right in his nonsuit. In this view the question of the admission of Albertson’s statement is immaterial. A question was raised as to the plaintiff’s right to appeal under section 466 of the Code, she having commenced this action as a poor person. We are of the opinion that that section does not prevent her from appealing, but that the privilege of litigating as a poor person does not apply to the appeal taken by her.

The judgment is affirmed, with costs of the appeal against plaintiff.

Landon, J., concurred.

Present — Learned, P. J., and Landon, J.

Judgment affirmed, with costa.


author: Landon, J.;

text:
    MARIAM CAMPBELL, Respondent, v. DENIS HUBBARD and PEARL LEWIS, Administrators, etc., of SYBIL CHITTENDEN, Deceased, Appellants.

      Evidence — when inadmissible as calling for a personal communication with a deceased person — Code of Civil Procedure, see. 829.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of referee upon a statutory reference.
    The plaintiff alleged that she rendered services to Sybil Chittenden for a period of about six years, and up to the time of her decease, in nursing and caring for her in her illness.
    The court at General Term after considering other questions said: “ The plaintiff, however, was permitted notwithstanding the objections of the defendants to testify as to the condition and action of the intestate after she was taken sick; and who was with her during her sickness other than the plaintiff; the plaintiff’s counsel claiming that it was competent for the plaintiff to testify to what she saw and observed of the intestate, and of the presence or absence of others.
    “ Within the case of Holcomb v. Holcomb (95 N. Y., 825) we think this was error. The plaintiff sought to recover as upon a quantum meruit for services rendered to an invalid. The invalid condition was needful to be shown, as showing the occasion for the services. Its duration and continuousness were material as showing the amount of time given to the service. Its severity was material as showing the care and attention required and thus the value of the services. The presence or absence of others was material as showing the exclusive dependence of the invalid upon the plaintiff, and^ thus the amount of service and the length in time thereof. Connected with other evidence the importance of all this testimony is very manifest. The referee was thus aided by the testimony of the plaintiff to determine the extent and nature and value of the personal transactions between the plaintiff and deceased. Her claim rested upon her personal transactions with the deceased, and her evidence tended to prove them. Section 829 of the Code of Civil Procedure inhibits the testimony.
    “ The judgment should be reversed, the referee discharged, a new trial granted, costs to abide the event.”

      Wm. Lounsbery, for the appellants.

      Griswold ds Crowell, for the respondent.
   Opinion by

Landon, J.;

Learned, P. J.,

concurred.

Present — Learned, P. J., and Landon, J.

Judgment reversed, new trial granted, referee discharged, costs to abide event.


text:
    JOHN STROUGH, Respondent, v. EDWIN S. BROWN, Appellant.

      Statute of frauds — a promise to pay the debt of another must be supported, by a valuable consideration.
    Appeal from a judgment of the County Court of Fulton county, in favor of the plaintiff, and from an order denying a motion for a new trial.
    The plaintiff, a blacksmith, did work for one Nathan Brown, father of defendant, for which Nathan became indebted to him in a sum of upwards of thirty dollars. The plaintiff and Nathan then had some words and plaintiff told Nathan he would do no more work for him. Afterwards the defendant requested the plaintiff to do some work for him, and plaintiff told him he would not do it upon the account of Nathan. Defendant said: “ I want you to do my work and I will pay you.” Plaintiff said: “ How about that account of your father’s that stands back yet.” Defendant said: “I will pay you the whole.” The plaintiff afterwards did some work for defendant and received some merchandise from him at a price amounting to more than the price of the work done for defendant. Afterwards the plaintiff and defendant together adjusted the accounts of the plaintiff against both Nathan and the defendant, treating them as one account against the defendant, and after allowing credits, including the merchandise furnished plaintiff by defendant, found a balance of thirty dollars and twenty-seven cents in plaintiff’s favor. For this balance the defendant gave this due bill:
    “ 1877, Marroh 9th-

    “This day settled in full and found due John Strough thirty dollars and twenty-seven cents.
    “EDWIN S. BROWN.”
    The court at General Term said: “ The plaintiff upon the trial recovered the amount of this due bill. Upon his own account the defendant owed plaintiff nothing, and although the above instrument is a promissory note the consideration may be inquired into between the parties. The note is in fact a promise by defendant to pay the debt of Nathan Brown, and is within the statute of frauds unless it was made upon a consideration moving to the promisor and beneficia1 to him. This settlement was made in pursuance of the defendant’s promise to pay Nathan’s back account. If the plaintiff would do work for him he said he would pay the whole, that is, the amount of the indebtedness he should incur and the amount his father had already incurred. The plaintiff was to work for the defendant for full compensation for that work, and therefore that work and the compensation for it so balanced each other that there was no unsatisfied overplus of work to be done that could form any consideration for the promise of the defendant to pay his father’s debt.” (Pfeiffer v. Adler, 37 N. Y., 164; BeCk/na/p v. Bender, 75 id., 446.)

      J. M. c& H. Dudley & Thorne, for the appellant.

      Orumby <& Jones, for the respondent.
   Opinion by

Landon, J.;

Learned, P. J.,

concurred.

Present — Learned, P. J., and Landon, J.

Judgment reversed, with costs.