author: WHITE, J.

text:
    The People ex rel. Norman Ramsdell et al., App’lts, v. Edgar B. Jewett et al., Resp’ts.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    1. Municipal corporation—Police—Reserve force.
    The word “duty,” as used in the Buffalo city charter, means actual and active duty, as distinguished from being kept in reserve or within call of such actual and active duty.
    2. Same.
    A provision of such charter that no two platoons of police shall be on “duty” at the same time, except when, in the discretion of the board, public demands are such as to require the aid and assistance of a second platoon, does not prevent the board from requiring that patrolmen, belonging to one or the other of the platoons not on active duty, shall remain at the station house as a reserve, subject to call in case of necessity.
    3. Same.
    The board of police is vested with discretionary power to determine and decide for itself when, in the language of the charter, “public demands are such as require that members of different platoons shall be on duty at one and the same time.”
    4. Same.
    Such provision does not prohibit the board from placing three platoons on duty at once.
    5. Same—Review.
    The discretion of the board of police is not subject to review by the courts.
    Certiorari to review proceedings by the board of police of the Buffalo department of police.
    John Cunneen and Charles J. Oishei, for relators; A. H. Jackson, for def’ts.
   WHITE, J.

The relators are patrolmen on the police force of the city of Buffalo. The city charter creates a department of police, and provides that there shall not be less than eleven, nor more than fourteen, police precincts; that the common council shall fix and determine the number of patrolmen in the police force; that there shall be a board of police, which shall consist of the mayor, ex-officio, who shall be the president of the board, and two commissioners; that the board shall designate the number of patrolmen to be assigned to each precinct. The provision of the charter over which this controversy arises is as follows:

“The board [i. e. the defendants] shall designate the number of patrolmen to be assigned to each of said precincts and shall divide said number of patrolmen into three platoons; no two of said platoons to be on duty at one and the same time, nor shall they wear uniforms when not on actual patrol duty, except when in the discretion of the board public demands are such as to require the aid and assistance of a second platoon, or the 'board may in its discretion on such occasions order on duty all of said three platoons. * * *”

On July 5, 1895, the defendants, by preambles and resolutions,, made a determination, order, or provision that thereafter a certain number of the members of one or both of the platoons not on ac-' tive duty should constitute a reserve; that the men in reserve should remain at the station house, subject to call for active duty in case of emergency, during short periods of time, when a platoon other than the one to which they belonged was on active duty. In other words, the defendants decided and determined that certain patrolmen, who were not members of the platoon on active duty, should hold themselves in readiness to respond to a call to active duty in case of an emergency at one and the „same time that a platoon of which they were not members was engaged in active duty. The men so in reserve were not required to wear-then’ uniforms, nor to observe any particular line of conduct, except to be at the station house, and to respond if an emergency made their services necessary. This arrangement of July 5th was immediately put into practice by the defendants, and that is what the relators complain of. As matter of fact, the hours of active duty are less under this new arrangement than they were under the one in force prior to its adoption. The aggregate of time spent by all the members of any platoon in active duty and in reserve slightly exceeds eight hours out of the twenty-four for each member of the platoon. The claim of the relators is that the holding of a member of any platoon in reserve at the station'• house, while a platoon other than the one to which he belongs is on active duty, is a violation of the statute, in that it requires members of two plataons to be on duty at one and the same time. They claim, further, that the “ occasions” mentioned in the statute when the defendants are authorized to order on duty, at one and the same time, members of different platoons, are times only when there is riot, tumult, disorder, a large fire, or an extreme breach of the peace, within the city. They also claim that when the new arrangement was made by the defendants there was not sufficient evidence of its necessity, or that one platoon on active duty was not adequate for the proper police protectiou of the city.

The facts of the case touching the necessity of the action taken by the defendants which it is sought to annul, according to the record as it is made up, are about as follows: There was no riot, tumult, large fire, or extreme breach of the peace. There was more or less disorder, but it may be assumed that it was not greater than usually prevails in the city of Buffalo. The language o£ the provision of the charter with which we are dealing is not such as we should expect from one skilled in the drafting of statutes, but its real meaning may be determined, I think, with less difficulty than is frequently met with by courts in similar cases. We may broadly assume, for the purposes of this proceeding, that when the statute in question says, “ No two platoons to be on duty at one and the same time,” in means simply that no member of one platoon shall be required to do duty with another platoon, on the theory that the greater number, or the whole platoon, includes the lesser number, or some part of the platoon ; that, when the statute says that “ platoons shall not wear uniforms when not on active duty except when in the discretion of the board public demands are such as require the aid and assistance of a second platoon,” it means that no patrolman shall wear his uniform when not on actual, active'duty; and when the statute says the board may, in its discretion, on such occasions, order on duty all three platoons, it means simply that they may order on duty any part of said three platoons. Such is evidently the meaning of the law. Now, a careful comparison of the statute with the record before us, and the determination sought to be annulled, makes its plain (1) that the defendants designated the number of patrolmen to be assigned to each police precinct; (2) that the defendants divided the patrolmen in each precinct into three platoons; (3) that no patrolmen is required to wear his uniform except when he is on actual active duty; (4) that no member of either of the three platoons is required to perform active parol duty at the same time that a platoon other than that of which he is a member is performing active parol duty. If the word “ duty,” at used in the statute, means actual, active, parol duty, as I think it does, then the defendants must succeed in this controversy, because they have not violated the law, but have complied with all its requirements. The “duty of the relators, within the meaning of the charter, is measured by the service which they are obligated to perform as patrolmen. The word, as used in the charter, has rio reference or relation to their conduct in religion, morals, or ethics. The duty of the relators to respond to a call for service within the line of their vocation, in case of an emergency, is the same whether they be at the station house or in their homes, or whether they be in uniform or not, when the call is made. In either case it is their “ duty” to respond, and perform in a proper manner, the necessary service, and it is only while they are performing such service that they are on “ duty,” within the meaning of the charter. My conclusion upon this point, therefore, is that the word “ duty,” as used in the charter, means actual and active duty,-as distinguished from being kept in reserve or within call for such actual and active duty. The fact that the defendants use the expression “ reserve duty,” does not imply that they give to the word a.definition different from what I consider the correct one; and, even if it did, it would not prove the fact to be as it may be claimed by the relators their language indicates. The relators, when held in reserve, are not on duty, therefore, within the meaning of the charter, but they are thus kept in reserve to be placed on duty if an emergency shall make it necessary; and, in the absence of any emergency during the time they are held in reserve, they are set at liberty from the restraint which has been put upon their movements, without having performed a moment of such active duty.as by-the charter they are required to perform as patrolmen. In my opinion, there is no conflict between the'charter and the determination of the defendants sought to be annulled.

For the purpose, however, - of further considering the matter in hand, we will assume, for the sake of the argument made by the relators, that the relators are doing “ duty,” within the meaning of the charter, when they are held in reserve. Then, as members of different platoons are on duty at one and the same time, the question arises, in what manner and by whom is it to be determined whether or not public demands are such as to require such service? I can find no basis for the claim made by the relators in this behalf; that is to say, that such service can be required only in cases of riot, tumult, etc. The charter, as we have construed it for the purpose of this proceeding, is given its broadest possible meaning, and is, in effect, that, on occasions when public demands require it, such service may be exacted of the relators. The words “public demands” and “occasions” refer to and identify the same thing or subject-matter, namely, a necessity for having members of different platoons on duty at one and the same time. The very nature of the case makes it clear to me that the defendants, in administrating the affairs of their department, must necessarily act, for the most part, upon apprehensions of danger to the community which may or may not prove to have been well founded. They must necessarily heed and act upon rumors, news items in the daily press, and other publications, confidential communications, surmises or guesses—if you please so to designate them — and information, of a more or less reliable nature, derived from countless sources, as well as upon their own personal knowledge concerning the matters with which they have to deal. In such a condition of things, it is easy to see that an emergency may arise at any moment requiring members of different platoons to be on duty at one and the same time, when to prove the fact that the emergency -exists, by such evidence as would be received by a court of justice trying a controverted question of fact, would be an absolute impossibility. For this reason alone, as it seems to me, it must be held that the defendants are vested with the discretionary power to determine and decide for themselves when, in the language of the charter, “public demands are such as require that members of different platoons shall be on duty at one and the same time.” To hold that the relators are entitled to litigate with .their superior officers the question as to whether or not public demands require the service of more or less of the members of the three platoons of patrolmen in a precinct at one and the same time, would be subversive of all discipline, and of that wholesome respect for constituted authority so essential to the efficiency of the police force of a great city. The case of In re Fitch, 147 N. Y. 337; 69 St. Rep. 692, relied upon by the relators as authority for the contention that the writ of certiorari will lie in such a case as the one at bar, does not, in my opinion, support the contention. That and many ■other cases hold—and in fact the rule is elementary—that where, as in that case, a board or officers exercises judicial functions, and no other adequate remedy is available to correct errors made by it or him, the aggrieved party may prosecute the writ of certiorari; but that and all other cases to which my attention has been called, where the writ was upheld, were clearly distinguishable from the one at bar, in that the determinations reviewed were based on evidence which was certain and definite, and could be intelligently weighed and considered by a court on a review of the matter, whereas, in the case at bar, the evidence upon which the defendants made the determination complained of may or may not have been of that character; and, even if it were of that character in the particular instance under consideration, action by them on the same line while exercising their functions as a board of police must frequently, and probably will, be based on facts satisfactory .to them, but which, if submitted to a court in a subsequent controversy as to the fact whether public demands were of a specified nature on a certain date in the past, would seem pureile and foolish. My conclusion is that the writ should be dismissed, ■with costs.

All concur.


source: Caselaw Access Project

author: TITUS, C. J. WHITE, J.

license: Public Domain

text:
    The People, Resp’t, v. Joseph Ledwon et al., App’lts.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

    Witness—Credibility—Child.
    The testimony of a young boy that two persons, with his mother’s consent, killed his father, was held, in this case, admissible on the trial of the mother for murder.
    Appeal from a judgment of conviction, and orders denying motions for new trials made by said defendants respectively, on the ground that the verdict was contrary to law and against the evidence, and from an order denying motions for a new trial on the ground of newly discovered evidence.
    Edward W. Andrews and Henry W. Hill, for app’lts ; Daniel J. Kenefick, Dist. Att’y., and James C. Quackenbush, for the People.
   TITUS, C. J.

—My associate has written an opinion in this case in which he arrives at the conclusion that the conviction of both of these defendants should be reversed, principally for the reason that the testimony of the boy witness, Borowiec, was submitted to the jury for their consideration in determining the question of the defendants guilt. I cannot concur in the conclusions reached by him, that the verdict of the jury and the judgment of conviction should be reversed and set aside; and, as a failure to agree with him results in affirming the judgment of conviction, I desire to state briefly my reason for the conclusion reached by me.

The witness Wladeslaus Borowiec is the son of the defendant Anna Led won and the deceased, Greorge Borowiec, and at the time of his death was eight years old; apparently not very bright or intelligent ; timid and reserved, to the extent that it was difficult to obtain answers from him; brought 'up in surroundings of drunkenness and squalor; and, with no moral training, he is necessarily and naturally inclined to shield those to whom he is accustomed to look for protection and support. With such surroundings, and under such conditions, if ,he was inclined to tell anything but the truth, it would be to tell a story which might seem to him most favorable to his mother, who was on trial for her life. At the time of the death of Borowiec the defendant Anna Led won, through her assertion of the suicide theory, led the coroner to believe that no crime had been committed, and consequently no investigation by a jury into the cause of Borowiec’s death was made; and from that time up to the time of the trial this boy has constantly lived with or been surrounded by friends of the defendant, who insisted that Borowiec killed himself. According to' his own statement, threats were made against him in case he should testify that the defendants killed his father. If it is not true that these defendants assisted in killing Borowiec, I am at a loss to see the motive for the boy’s story. Ño reason is suggested, and none is apparent, why he should persist in telling a lie for the purpose of convicting liis mother of this crime. It is easy to understand why a boy of his age, and immature as he is, should try to shield his mother; but why he should want to convict her by telling a falsehood is past comprehension, and no reason is shown for it. But, on the other hand, there is abundant reason to explain why he should wish to screen his mother. The trial judge carefully presented the case to the jury, and cautioned them against placing too much reliance in this boy’s story. This evidence was characterized as “involved in a hopeless contradiction,” and in submitting it to the jury the court said:

“You are to take this boy as you saw him here, — his age, his appearance upon the stand, his inability to give this in a detailed statement; and you are first'to determine, is he of that degree and order of intelligence that he is capable of determining'-in bis own mind that he must tell the truth, and would be liable to be punished if he did not tell the truth, and, consequently, will you place any reliance upon his testimony, which the court submits to you under the peculiar circumstances of this case? ’’

After calling their attention to his contradictory statements, the court told the jury to examine the boy’s surroundings, to see if he was in position to have seen what he claimed he did, and, if they were not satisfied that his story was true beyond a reasonable doubt, then they should reject it, and give it no force at all.

Aside from the evidence of the boy, one is led to the conclusion that Borowiec was brutally murdered during their drunken debauch, stimulated thereto by excessive drink, prompted by a desire to rid tlie wife and her paramour of an insuperable obstacle, in the person of the husband, to their undisturbed cohabitation. The boy was present, and, while not knowing the motive of the act, as he lay in'his bed, was powerfully impressed with the fact that his father was being killed by these defendants and Zawaczki; and while, undoubtedly, efforts have been made to impress upon his mind the thought that his father killed himself, yet his telling of the scuffle, and of their carrying him out, impresses me with the conviction that he told the truth in that respect. After the severe criticism of the boy’s testimony by the trial judge, and after being told of the importance of a careful scrutiny of his testimony, the jury concluded he was telling the truth; and I think, under the instructions from the court as to their duty in weighing his testimony, they had the right to receive it and act upon it, and their conclusion, I believe, is fully warranted. It may be truthfully said that this evidence is not of the most satisfactory character, but when crime is committed amid such surroundings, where all present are more or less responsible and interested in suppressing the truth, the best and most satisfactory evidence cannot be obtained, and the witnesses must, from the nature of the situation, lack those high social and moral qualities which appeal most strongly to us, but, nevertheless, when the people have produced the best evidence there is, and it is legally sufficient to warrant a verdict of guilty, if the jury are satisfied from it beyond a reasonable doubt, their finding should not be disturbed." Especially is this case where the evidence, without the testimony of the boy, morally satisfies the mind of the guilt of the defendants. In this view of the case, I am inclined to think that the evidence was properly submitted to the jury, and that the judgment of conviction should be affirmed.

Judgment affirmed.

WHITE, J.

(dissenting). — The defendants were convicted of having killed one Borowiec, in his own house, on September 11, 1890. Borowiec and the defendant Anna Ledwon were then husband and wife. The defendant Joseph Ledwon bad at different times prior to the death of Borowiec occupied a room in his house, for which he paid rent to Anna. He purchased and paid for material for food, and the defendant Anna Ledwon cooked and prepared it for his use, and he paid her for such services. That is a common way of-living among people of their class in Buffalo. The evidence in the case justifies the inference that at the time, and for quite a period of time prior to Borowiec’s death, Joseph, and Anna Ledwon had been unduly intimate; and, in the light of all the facts and circumstances of the case, it may fairly be said that the defendants are shown to have had an adequate motive for the commission of the crime of which they have been charged, and of which they have heen convicted. Stephens v. People, 19 N. Y. 549. It.is strenuously urged by the counsel for the defendants that the people failed to establish the corpus delicti of the offense charged by competent and sufficient evidence upon the trial. The death of Borowiec was proven by direct evidence, and so was the fact that his death was caused by the criminal agency of Joseph Ledwon, if the testimony of the boy Wladeslaus Boroweic, a son of the deceased, was properly submitted to the jury, and is sufficient to establish the fact it was intended to. This, witness testified directly to the fact that he saw Joseph and one Zawaczki kill the deceased. For the purpose of this appeal, I aasume that this witness, who was eight years old when his father died, understood and appreciated the nature of the oath under which he testified, and was a competent witness. The trial court, in a carefully written opinion on denying the motion of the defendants for a new trial, says, in speaking of the evidence of this boy upon the trial:

It was not satisfactory testimony, it is not satisfactory testimony now, but it supplied one missing link. The whole case, taken together,—-all the evidence,—tends to bring the mind to the conviction that these defendants were guilty of the crime with which they were charged, and that independent of the testimony of the boy; but the whole evidence, taken together, would have been insufficient to convict the defendants, were it not for the link of testimony supplied by the boy’s evidence.’’

On the trial the court charged the jury, among other things, that,unless the testimony of the boy satisfied them beyond a reasonable doubt that he saw Joseph Ledwon and Zawaczki kill his father, they should reject such testimony, and give it no force at all. The people claim that the jury was justified in believing that part of the testimony of the boy which tended to prove acts of violence by Joseph and Zawaczki upon the body of his father, which caused his death, and that Anna, the mother of the witness, was present and consenting to the criminal acts. It is insisted by the people that the evidence was proper for the consideration of the jury, under the rule prescribed by section 714 of the Penal Code, and adjudged cases which hold that when it appears that when a witness has sworn differently upon the same point upon different occasions, or where he makes contradictory statements concerning .the same matter while testifying in a given case, his testimony is not to be stricken from the case, nor wholly excluded from consideration by the jury, but remains in the case, to be considered in connection with the other evidence, under such prudential instructions may be given by the court. This rule has no application to a case where the testimony given by a witness is, as the trial court correctly pronounces the testimony of this boy Wladeslaus to be, “in a hopeless contradiction, * * * confession that he has not only testified untruthfully upon this trial, but that he testified untruthfully upon another trial involving this transaction.” Where, in short, the testimony is utterly and absolutely contradictory, unreconcilable, inconsistent, unexplainable, and where there is no way of determining beyond a reasonable doubt, or with reasonable certainty, what part is false and what part is true, the rule contended for.by the people does not apply, and such seems to be the case before us. The only safe way, in such a case, is to apply the maxim, “ Falsus in uno, falsus in omnibus.”

After this boy Wladeslaus had been examined at length by the district attorney, as a witness for the people, and cross-examined by the defendant’s attorney, he was taken into a room and questioned in private by the assistant district attorney. The district attorney thereupon came into court with the boy, and stated to the court, in the presence and hearing of the jury, what he claimed the boy had said to him in private, and asked permission to replace the boy upon the stand as a witness, for the avowed purpose of having some of those statements by the boy made to the court and jury, as evidence in the case. Leave was given, and the boy again took the stand as a witness for the people. To this the defendants objected and excepted to the ruling of the court. In his statement to the conrt in asking leave to recall the boy, the assistant district attorney stated, among other things, that a brother of the defendant Joseph Ledwon was imprisoned in Limestone Hill reformatory for stealing coal; that the boy, up to the time he was placed on the stand (as a witness in this case, presumably), had never, to any one in the district attorney's office, made any statement other than that which he made before the grand jury, and which was, in substance, as he had asked the boy while testifying as a witness in this case. The boy had denied that he so testified before the grand jury. The claim of the district attorney was that the boy testified before the grand jury that his bed was in the same room they choked his father in; that Ledwon and Zawaczki were choking him, and his mother was kneeling on his breast. It was stated by the district attorney, as a fact, that the boy testified before the grand jury to the facts as he (the district attorney) claimed them to be. That statement by the district attorney contains the only language used by any person on the trial indicating that Anna Ledwon actively participated in the killing of her husband. The fact indicated by "the statement of the district attorney as to Anna Led won’s active participation in the crime was disputed by the boy, who was the only witness who spoke concerning it. His evidence is that the killing was done by Joseph and JZawaczki, and that his mother took no active part in it. The statement so made by the district attorney, in my judgment, may well have been, if it was not in fact, necessarily prejudicial to the defendants. People v. Greenwall, 115 N. Y. 526; 26 St. Rep. 226; People v. Wood, 126 N. Y. 269; 36 St. Rep. 952. J£ it should be held eventually in this case that the boy Wladeslaus is shown by his testimony to beh'ncompetent as a witness, for lack of understanding and intelligence, the result would be the same as it must be as the case stand. Ahúman being . should not be deprived of liberty on such testimony as that given by this boy, and it is conceded that without it a conviction would not have been warranted. See People v. Quick, (Mich.) 25 N. W. 302; Hardtke v. State, (Wis.) 39 N. W. 726.

These views necessitate a reversal of the judgment of conviction, as to both,of the defendants, without reference to the effect^ if any, which ought to be given to the affidavits of good character used upon the motion for a new trial on ground of newly-discovered evidence.


author: VAN BRUNT, P. J.

text:
    Joshua L. Baily et al., Resp’ts, v. Lewis M. Hornthal, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Jan’y 24, 1896.)

    1. New trial—Newly discovered evidence.
    It is only in cases where justice requires it, by reason of the discovery of evidence which could not, by the exercise of diligence, have been produced, that the court will grant a motion for a new trial on the ground of newly discovered evidence. And, in such case, the evidence must be of such a character that it would probably have changed the result.

      % Same. i
    Where the "existence of the evidence was known, but the witness was unable to speak then with the same particularity that he is at the present time, the evidence cannot be said to be newly discovered.
    S. Same.
    Where it is apparent, from an examination of the affidavit of the proposed witness, that it is,extremely doubtful whether he can testify to anything which will be admissible upon the issues in litigation, the motion for a new trial on this ground will be denied.
    Appeal from an order denying a new trial on the ground of newly-discovered evidence.
    Wm. N. Cohen, for app’lt ; Chas. E. Hughes, for resp’ts.
   VAN BRUNT, P. J.

—Prior to the BOthi of April, 1891, the firm of Weis Bros, were doing business in Galveston, Tex. The firm consisted of Robert and Albert Weis, as general partners, and the defendant, Hornthal, as special partner, claiming' to have contributed the sum of $50,000 to such partnership, as part of the capital. Upon the date mentioned such firm expired by limitation, and on the.23d of May, following, the said firm paid to defendant Hornthal $25,000, as part of his capital. The business of the firm, under the same name, was continued by the general partners, who retained the assets. On the 5th of November, 1891, the said firm of Weis Bros., being insolvent, executed a deed of trust preferring, among other creditors, the defendant, Hornthal, for the balance of his special capital, which was subsequently paid to him by the trustee. The plaintiffs obtained judgments aggregating $8,189.49 for goods sold to the firm óf Weis Bros. With the exception of $1,828.11, these judgments were recovered for debts owing by the special partnership ; and it was claimed that they were entitled to be paid, at least to this extent, before the withdrawal by Hornthal of any portion of his special capital. It was further urged by the plaintiffs that, the special partnership being insolvent, the payment to Hornthal by the judgment debtors, or by their trustee, constituted a fictitious preference. The case was tried in October, 1894, and a decision was rendered in favor of the plaintiff’s for the entire demand, the court holding that the special partnership was insolvent at the time of its dissol a-‘ tion. An appeal was taken to the general term’, and the judgment was affirmed. In March,' 1895, the defendant, Hornthal, moved for a new trial upon the ground of surprise and newly-discovered evidence. This motion was denied, but an order was entered giving leave to renew the motion upon proper affidavits. In April, 1895, the defendant moved for a new trial upon the ground of ne w ly - discovered evidence ; supporting his motion with the affidavit of one De Forest, who was the newly-discovered witness. This motion was denied, and from the order thereupon entered this appeal is taken.

It is a well-settled rule that motions of this kind are not regarded with favor; and it is only in cases where justice requires it, by reason of the discovery of evidence which could not, by the exercise of diligence, have been procured, that the court will grant them. Dillingham v. Flack, 43 St. Rep. 806. And it is also well established that the evidence must be of such a character that it would probably have changed the result. Glassford v. Lewis, 82 Hun, 46 ; 63 St. Rep. 484.

Two principal objections seem to be urged as a reason for the denial of the motion: The first is that evidence could not be called newly-discovered evidence, which could not have been obtained with reasonable diligence on the former trial; and, second, that it appears from the nature of the evidence which it is claimed the proposed witness could give that it would be inadmissible upon the trial.

It appears that, shortly afteir the failure of the firm of Weis Bros., the witness in question removed to New Orleans, and that the defendant, Hornthal, had an interview with him relative to the financial condition of'the firm of Weis Bros., and that at this interview De Forest, the witness, told Hornthal that he had-'made a trial balance, and an estimate of the value of the assets and the amount of liabilities of said firm, and that, if such trial balance could be found, it would, together- with the estimate of values, show the exact financial condition of said firm at that time; that he knew in a general way that the firm of.Weis Bros, were solvent at the time said trial balance and estimate were made by him, but that, without said trial balance, he could not state the amount of the actual surplus of said firm,—and that at the request of said Hornthal the witness made several careful searches for said papers, but was unable to find them, and so informed him. It further appeared by the affidavit of De Forest that on March 17, 1895, in overhauling some old papers at his home, he stumbled upon the envelopes containing the trial balance, and profit and loss statement, and estimate of the value of the assets and liabilities of said firm, made by him in July, 1891, and that said firm was worth, according to the books of said firm, over and above liabilities, the sum of $264,008.01, and that, according to the estimate of the affiant, the net surplus of the firm, over and above all liabilities, was $91,237.02, and that he immediately informed Hornthal of the finding of the papers. And thereupon these motions were made. It will be seen, upon an examination of the affidavit of the proposed.witness, that the only difference in the knowledge which the witness possessed then, and that which he had at the time of the conversations with Hornthal, was in being able to give the exact amount of the surplus of Weis Bros., and that the time of the conversation he knew, from his examination of the books, etc., that the firm was solvent at the expiration of the limited partnership. There was no attempt whatever upon the part of Hornthal to procure the attendance of this witness to swear to the facts which were within his knowledge, if they were competent evidence, or to get his testimony before the court. The existence of this evidence was known, but perhaps the witness was unable to speak with the same particularity that he is at the present time; and it can hardly be said that, under these circumstances, the evidence was newly discovered. v

Even, however, if the defendant had brought himself within the rules entitling him to a new trial on the ground of newly-discovered evidence, there is nothing in the evidence of the witness which shows that he can testify to anything which is competent, evidence. The affidavit is most general in its character. It contains only an estimate of values, and although it states that it is based upon the affiant’s actual knowledge of the values of each item of the assets, and that the affiant made the estimate for the purpose of ascertaining the exact standing and condition of the-firm, yet he does not show upon what his a'ctual knowledge is. based; and there is no presumption that this bookkeeper of the firm of Weis Bros, could give any legal evidence in respect to the actual condition of the debtors of that firm. It is apparent, from, an examination of the affidavit of the proposed witness, that it is extremely doubtful whether he could, testify to anything which would be.admissible upon the issue of the solvency or insolvency of this firm on the 30th of April, 1891. It seems to us, therefore, that upon both grounds the court was right in denying the motion, for a new trial.

The order should be affirmed, with $10 costs and disbursements.

All concur.


author: O'BRIEN, J.

text:
    Charles Gruebler, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York , App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Negligence—Proximate cause.
    Though the presence of piles of earth in the street may prove that the-street is not in good condition, it is no evidence of negligence, unless^ connected with testimony showing, or tending to show, that the plaintiff stumbled against one of the piles and that this was the proximate cause of the accident.
    8. Appeal—Conflicting evidence.
    A verdict, rendered upon conflicting evidence, will not be disturbed on appeal.'
    Appeal from a judgment entered on a verdict for plaintiff and from an order denying a new trial.
    Terence Farley, for app’lt ; Louis Steckler, for resp’t.
   O'BRIEN, J.

—It is urged upon this appeal that, if for no other reason, the judgment should be reversed on the facts, it being insisted that the verdict is against the overwhelming weight of evidence. An examination of the testimony shows that this contention is not borne out by the record. It is conceded that on the 4th day of March, 1893, while the plaintiff was lawfully walking through and along Seventy-second street, between Avenue A and the East river, he received personal injuries resulting from a fall. The dispute centered upon whether the injuries thus sustained were due to the defendant’s negligence in suffering and allowing the sidewalk to remain in an unsafe and- dangerous condition, whereby a large heap or pile of earth or dirt was permitted to remain upon the street, against which the plaintiff stumbled, thus causing the injuries, which included a fracture and upward dislocation of the plaintiff’s right foot. There was a direct conflict between the witnesses upon the two pertinent questions involved, as to what the plaintiff stumbled against, and for what length of time the obstruction, or whatever it was, existed. It is conceded that there were piles of dirt, not only in the street, but upon the sidewalk; and while these, by some of the witnesses, are placed 200 or 300 feet away from a certain lamp-post, near which the accident occurred, the plaintiff is supported by at least another witness who testifies as to the existence of such piles in that immediate vicinity. It is true that, while the presence of such piles may prove that the street was not in good condition, it was no evidence of negligence, unless connected with testimony showing, or tending to show, that the plaintiff stumbled against one of the piles, and that this was the proximate cause of the accident. We think that there was sufficient evidence to present this, as a question of fact, to the jury, as there was also upon the question of the length of time during which such obstructions existed. It is true that the plaintiff’s evidence was far from conclusive, but there was sufficient from which the* inference could reasonably be drawn in favor of the plaintiff’s version, and there was no overwhelming evidence on the other hand to show that this version was incorrect. It being conceded by the defendant that the plaintiff was injured in that street on the night in question by reason either of some obstruction in the street, or by slipping upon the snow and ice, the case really turned, in the end, upon the question whether the proximate cause of the injuries was the latter, or whether, as claimed by the plaintiff, his injuries were the result of his stumbling over one of these piles of dirt. The jury resolved the doubt in plaintiff’s favor, and we see no good reason for interfering with the verdict. The other position taken by the defendant, that there was no proof of compliance with chapter 572 of the Laws of 1886, we regard as without merit.

The judgment should be affirmed, with costs.

All concur.


author: PATTERSON, J.

text:
    William B. Cogswell, App’lt, v. Percy Chubb et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

      1. Insurance—Marine—Warranty.
    The breach of an express warranty in a policy of marine insurance, whether material to the risk or not, or whether a loss happens through the breach or not, absolutely determines the policy, and the assured forfeits his rights under it.
    2. Same.
    Where a stipulation in such a policy, written in between printed portions thereof, is in the following words : “Warranted to navigate only the inland waters of the United States and Canada and not below the Thousand Islands,” going to the open ocean and then returning are a plain breach of the warranty, the consequence of which is to avoid the policy.
    3. Evidence—Custom—Marine insurance.
    Before usage can be appealed to for the purpose of explaining or giving effect to the meaning of an insurance policy, there must be proof that there really is a usage—something existing and in connection with which the underwriter is assumed to have taken the risk.
    4. Same.
    Where all that is in evidence on the subject is that it is customary for yachts and other craft, of large and small dimensions, whenever an international yacht race takes place, to accompany the competing boats over an ocean course, it is insufficient to establish a usage of the character to qualify an express warranty.
    Appeal from a judgment entered on a verdict directed by the court in favor of defendants.
    Everett P. Wheeler, for app’lt ; J. L. Ward, for resp’ts.
   PATTERSON, J.

—The defendants in this action were underwriters *on a policy of marine insurance on the steam yacht Fie-seen, the property of the plaintiff. The insurance was for the term of one year, beginning April 10, 1893, for $21,000, at which sum' the vessel was valued, and these defendants were, by the terms of the policy to pay the 1-1000 part of any loss or damage occasioned by any of the perils insured against. On the 9th day of September, 1893, while in the lower New York bay, and under way, and in tow of another yacht, she came into collision with a steamship, and was damaged to the extent of about $16,000, and this action was brought to recover the 1-100 part thereof. The trial resulted in a direction to the jury to find a verdict for the defendants, from the judgment entered upon which, and from an order denying a motion for a new trial, the plaintiff has appealed.

A stipulation of the policy, written in between printed portions thereof, is in the following words: “ Warranted to navigate only the inland waters of the United States and Canada and not below the Thousand Islands.” It appears in the record that, on the 9th day of September, 1893, the Fieseqn, before the collision referred to, went out upon the high seas beyond the Sandy Hook and Scotland lightships, and into the open waters of -the Atlantic Ocean; and that fact is set up as a breach of warranty, avoiding the policy, and preventing a recover thereon. There does not appear to be any doubt on the evidence, that the vessel, on the 9th of September, had been on the open ocean, at "least ten miles off from the Sandy Hook Lighthouse, to the southward and eastward, as testified by Capt. "Wicks, of the Electra, and she was south and southeast of the Scotland light. Capt. Pressey, of the Vamoose, says the Fieseen raced with the boat commanded by him that day, and that the race began about two miles to the south and east of the Scotland light, and they ran about eighteen miles in varying courses. The witness Bulin says the Fieseen ran about ten miles east from the Scotland lightship. Mr. Stan wood swears she went about twelve miles east-northeast, directly, from Sandy Hook. The effect of the whole evidence is that the vessel went out of inland waters. Such waters are canals, lakes, streams, rivers, water courses, inlets, bays, etc. and arms of the sea between projections of land. That ordinary and accepted signification of the words “inland water ” must be considered the sense in which the parties used them in their contract of insurance, unless, by agreement or understanding, some other was assigned to them; and there is nothing in the record to show that a different or wider meaning was intended to given them. Going to the open ocean, and then returning, was a plain breach of the warranty, the consequence of which was to avoid the policy; for, hard as the artificial rule may be, it is too firmly settled to be questioned that the breach of an express warranty, whether material to the risk or not, whether a loss happens through the breach or not, absolutely determines the policy, and the assured forfeits his rights under it. Chase v. Insurance Co., 20 N. Y. 52 ; Stevens v. Insurance Co., 26 N. Y. 397 ; Day v. Insurance Co., 1 Daly, 13 ; Westfall v. Insurance Co., 2 Duer, 449 ; 1 Phil. Ins. p. 418, § 762.

It is claimed, however, on the part of the appellant, that the words “inland waters,” as used in the policy, are. not limited to their ordinary signification, but that a usage existed, respecting the waters frequented by yachts such as the Fieseen, in view of which usage the policy was written, and that the warranty should be construed by that usage, and a broader meaning applied to the words,—one that would include in the category of inland waters the roadstead outside of Sand Hook, and as far as the yacht went out upon the sea on the 9th of September. Evidence of usage to explain, or rather, to give effect to, the meaning of the policy, is very commonly resorted to in cases of this character; and, as said by Mr. Phillips (1 Phil. Ins. p. 73, § 119), “ the subject-matter of marine insurance and other mercantile contracts makes it necessary to go out of the written instruments in order to interpret them.” But before usage can be appealed to there must be proof that there really is a usage,—something existing and in connection with which the underwriter is assumed to have taken risk. All that is in evidence on the subject is that it is customary for many yachts and other craft, of large and small dimensions, whenever an international yacht race takes place, to accompany the competing boats over an ocean course. This scarcely establishes a usage of the character to qualify an express warranty. International yacht races are of infrequent occurrence. That yachts covered by insurance go upon the ocean to follow them does not appear. This policy was written April 11, 1893. It is not shown that an international yacht race was in contemplation for the year during which the policy was to run. Attending the yacht race at Newport, and the custom of yachts to assemble at that port in the summer for the squadron races, do not establish á usage, for the same reasons. All of this testimony is insufficient to prove that the parties contracted for anything other than what is expressed in the plain and accepted meaning of the words of the warranty.

The further contention is made that, the loss happening after the policy attached, and -the breach of the warranty in no wise producing or contributing to the loss, but it being occasioned by independent causes, the plaintiff may recover, notwithstanding the breach. The learned counsel for the plaintiff admits that the English authorities are against this view, as they very decidedly are. The American cases of- breaches of implied warranties of seaworthiness, cited on the argument, and in the appellant’s brief,' do not establish a contrary rule affecting the express warranty contained‘in this policy.

We fail to see the pertinency of the argument made respecting lights carried by certain vessels under the requirements of the navigation laws of the United States. That steamers plying between New York and Newport, and New York and Long Branch, and New York and Coney Island, carry the light prescribed for vessels navigating inland waters, in addition to those of ocean-going steamers, is doubtless true; but they are the same lights required •of coastwise steamers, and those plying between the places mentioned may be, and probably are, classed as such.

The judgment and order appealed from must be affirmed, with costs.

All concur.


text:
    Paul G. Decker, Resp’t, v. John E. O’Brien, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Jan’y 24, 1896.)

    Mechanic's lien—Judgment.
    Where a judgment, in a proceeding to foreclose a mechanic’s lien, directs that the plaintiff recover of the defendant the whole amount adjudged to be due, but also provides for the sale of the premises, and that, if there js any deficiency remaining on the sale, the amount thereof be specified in the report of the referee, and that the plaintiff recover of the defendant the amount of the deficiency so remaining, and have execution therefor, there is nothing in this judgment from which it can be inferred that execution is to be issued against the property of the defendant for the whole amount of the lien.
    Appeal from a judgment in favor of plaintiff.
    M. Daly, for app’lt; Jeroloman & Arrowsmith, for resp’t.
   PATTERSON, J.

—This is an action to foreclose a mechanic’s lien filed against certain premises in the city of New York, of which the defendant, John E. O’Brien, was the owner. The plaint-was employed, under a written contract, to do certain plumbing work in the said premises, and to furnish the materials therfore, the whole stipulated price being $3,740. The lien also includes an item of $28 for extra work. It appears by the report of the referee before whom the case was tried that $2,000 was paid by the defendant, O’Brien, on account of the contract price, leaving the balance claimed of $1,768. The answer of the defendant sets forth, substantially, that the contract was not performed in accordance with the requirements of certain specifications, which are to be taken as forming part of the contract, and that there was a failure of the plaintiff to perform his- contract in a good substantial, and workmanlike manner; and a counterclaim is set up for damage alleged to have resulted from the non-performance of the contract by the plaintiff, in the sum of $1,882. The referee allowed on the counterclaim the sum o'f $125,50, thus reducing the plaintiff’s claim to $1,642.50, for which judgment was directed.

The appeal brings up for review, in the first place, a ruling of the referee with respect to the admission in evidence of what purported to be specifications of the contract referred to. These specifications were necessary in order to show what was required to beyond by the plaintiff. They were admitted in evidence and it was shown that they were the specifications originally made with certain changes, all of which appear to have been by the defendant. When they offered in evidence, the referee stated that, if any objection to their correctness were to be made, he would then hear it, and if none were made the paper would be marked in evidence. It does not appear that any objection was made, but an exception seems to be recorded to the ruling of the referee. There being no ground of objection stated, and nothing appearing upon the record from which the court, could infer that the referee was in error in accepting the paper in evidence, it is unnecessary to make further reference to this topic.

It is claimed by the appellant that the proof does not establish that the plaintiff substantially performed the contract, and we are asked to examine a folios or more of testimony, and a number of exhibits, to extract evidence of seemingly inconsiderable omissions and defects in the work which was done by the plaintiff. There is no certificate in the case that the record contains all the evidence that was submitted to the referee. We have, however, looked into it sufficiently to ascertain that, on all of the matters of alleged defects specified in the fourth point of the appellant’s brief, there was conflicting evidence, and the determination of the referee respecting what was established by that evidence we are not called upon now to interfere with. So far as the details of the work were concerned, we see no reason to differ with the referee in the conclusion that there was a substantial compliance with the contract.

It appears by the record that upon the trial a witness (Arrowsmith) was allowed to give testimony of a conversation had between himself and one Marshall respecting the absence of a certificate of the architect that the work was properly done, such a certificate being mentioned in the contract as a condition precedent to the payment of the full amount. The objection and exception to this evidence seem to have been taken after the testimony was all given, and from all that appears, it may have been upon the ground that the referee overruled the objection. But what was said was competent evidence of a refusal of the architects to give the certificate required by the contract, and thereby excuse the plaintiff for its'nonproduction. We do not find anything in the" other exceptions, to the rulings of the referee, nor to his findings, of sufficient gravity to disturb the conclusion at which he has arrived. On the evidence, what the referee has allowed on the counterclaim seems to be ample.

Concerning the form of the judgment, to which defendant states an objection, it is true that it directs that the plaintiff recover of the defendant the whole amount adjudged to be due; but it also provides for the sale of the premises, and that, if there be any deficiency remaining on the sale, the amount thereof be specified in the report of the referee, and that the plaintiff recover of the defendant the amount of the deficiency so remaining, and have ex ecu-cation therefor. There is nothing in this judgment from which it could be inferred that execution was to be issued against the property of the defendant for the whole amount of the lien. The true interpretion is that the premises are first to be resorted to, and that plaintiff have execution against the property for deficiency in case the full amount is not realized from a sale of the premises. On the whole case, we are* of opinion that the judgment should be affirmed, with costs.

All concur,.


author: WILLIAMS, J.

text:
    Phillip E. Gallagher, App’lt, v. Estate of Nathan Brewster, Deceased, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Evidence—Memoranda—Executors.
    While a memorandum found among the decedent’s papers is not valid as an obligation, it is competent evidence as an admission against the estate. x
    2. Same.
    In this case, it was held that the relation of the parties and nature of the services rendered, and the circumstances surrounding the parties and the services, do not furnish sufficient ground for the belief that the services were rendered under any promise, express or implied, or in expectation that they should be paid for, and the evidence leads to the conclusion that the memorandum was designed to affect a gift or gratuity to a friend, out of his estate, which the decedent did not see fit to provide for by his will.
    Appeal from a judgment, entered on the report of a referee, to whom the matter was referred, under the statute, dismissing the claim on the merits.
    The reference was of a disputed claim against an estate. The claim was for $500 for' services rendered the deceased by the plaintiff since June, 1888. ' The evidence was undisputed, and showed: That deceased died in 1893, leaving a will which appointed William. D. Ogden and Lizzie Walton executors. That, after the death of the deceased, the executors opened his private box in the safe-deposit company, and found therein the will, and, among other papers, a memorandum, in the writing of and signed by deceased, dated June 15, 1891, and directed to his executors, stating that he had made a will and had named them as executors therein; and, among other things, stated : “ You will pay Phillip E. Gallagher (the plaintiff) $500. I owe him that. He is my old friend-, and may be too modest to put in a claim.” That the plaintiff was well acquainted with deceased for about fifteen years. That their acquaintance ripened into a close friendship, and they became very intimate ten years before the death. That they resided at the same hotel. That deceased had a number of spells of illness during the last five years of his life, and that, plaintiff was with him on most of the occasions during such illnesses. That their relations were of a confidential nature. That they were coexecutors of the will of a friend. That plaintiff saw deceased, during his last illness, every day and night, and was present when he died, at the Metropole hotel, in this city. That deceased always called for plaintiff when he was sick, and he was the first man deceased called for. That plaintiff showed the deceased a great deal of attention,.and they always had a great deal of private business together. That plaintiff attended to business matters for deceased during the times he was ill. That the attention given by plaintiff to deceased extended during the five or six years prior to his death, and he was not ill much before that. That when he was taken ill, he would quite often have the vertigo, and would drop down in the street. That the plaintiff took the deceased to Lakewood two or three'times, when he became convalescent, several years before his death; That plaintiff was a business man, a man of means, and independent in his manner of living.
    D. M. Kellogg, for app’lt ; Wm. H. Sage, for resp’t.
   WILLIAMS, J.

—We are of the opinion the judgment should be affirmed. While the memorandum found • among deceased’s papers was not valid as an obligation,' it was competent, as evidence in the case, as an admission. Robinson v. Cushman, 2 Denio, 149-253 ; Govin v. De Miranda, 140 N. Y. 474 ; 55 St. Rep. 837. These cases are both authorities for the proposition that a memorandum found among deceased’s papers is a competent piece of evidence as an admission against his. estate. The effect to be given to such a piece -of evidence may well vary in different cases. In 2 Denio, above, a memorandum was held to be of little or no value. In 140 N. Y., above, a memorandum was held to establish plaintiff’s ownership of bonds of great valu.e. In this case, considering this piece of evidence-in connection with the other proofs in the case, we are not satisfied that the plaintiff’s claim should be allowed. The claim for services was evidently made up after the discovery of a memorandum among the papers of the deceased. The relation of the parties and nature of the services rendered, and the circumstances surrounding the parties and the services, do not furnish sufficient ground for the belief that the services were rendered under any promise, express or implied, or any expectation, that they should be paid for. The evidence rather leads us to the conclusion that the memorandum was designed to affect a gift or gratuity to a friend, out of his estate, which he did not see fit to provide for by his will. For this no recovery can be had. The decision of the referee was right.

The judgment should be affirmed, with costs.

All concur.


text:
    William S. Halliburton, Resp’t, v. Dwight O. Clapp et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Account stated—Memorandum.
    An account stated, which acknowledges absolutely and unqualifiedly an amount due to plaintiffs assignor,’ is not affected by a memorandum at the foot thereof, “ the above account is subject to an attachment,” for a certain amount, in the suit of a third person against the assignor, where, at the time the action is brought on the account, the attachment had. been discharged.
    3. Set-oee—Joint and separate causes.
    In an action at law, a joint debt cannot be set off against a separate debt.
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    T. H. Dewey, for app’lts ; W. S. Lewis, for resp’t.
   PATTERSON, J.

—This action was upon an account stated between the defendants and one Duke, the plaintiff’s assignor. It was made out and delivered by the defendants to Duke, and accepted by him. It showed a balance of $7,460 due and owing by them to Duke, as of September 28, 1891. It is claimed by the defendant (appellant) that the new promise resulting from an account stated cannot operate or does not exist in this case, because, at the foot of the account, a memorandum was made which they construe as showing that there was no promise to pay. It is in the following words: “ The above account is subject to an attachment of $7,106.25 in the suit of E. D. Butler v. R. J. Bass and B. L. Duke.” This memorandum in no wise alters the legal character of the account stated, nor qualifies the implied promise. No incompleteness of the transactions embraced in the account is suggested, no offset or counterclaim intimated, and nothing left, open between the parties. No right of the defendants’ own, off any kind, to retain the balance admitted, or any portion of it, is alluded to. The acknowledgment that the whole amount is due is absolute and unqualified. There is merely a notification that present payment to Dulce, personally, was prevented by the debt being arrested in the hands of the defendant on an attachment issued at the instance of a third party. The promise to pay still remains,—to pay the money to Duke, or to pay it on his account under the lien of the attachment. The defendants could not lawfully resist a demand for the amount of the balance. If the attachment were enforced, they were bound to pay that balance to the sheriff, as Duke’s money. But, when the action on which the attachment was issued was dismissed, they were bound to pay such balance to the plaintiff. The character of the account not being changed by the addendum to it, the defendants-can.take no advantage, in this action, of a defense under the alleged attachment ; for nothing is set up or claimed under it, in the answer.

The remaining question in the case arises on a counterclaim. The defendants set up a cause of action, also, on an account stated, under these circumstances, viz.: Certain business transactions with the defendants, who were provision brokers, were carried on by one Bass in the name of H. J. Bass & Co., which name, the defendants allege was fictitious, and that the transactions were in truth those of the plaintiff’s assignor, Duke. The dealings referred to were had before Duke became personally acquainted, or had personal relations, with the defendants. This account, kept in the name of Bass & Co., was made up, and showed a balance due the defendants, September 28, 1891, of $7,106.25. The defendants insist that Duke was, as matter of fact, solely responsible for the account. Duke, undoubtedly, did, have some conversation in Hew York with one of the defendants respecting the Bass & Co. account, and correspondence between the defendants and Duke took place concerning it. The defendants’ proof tended to show that it was a joint account of Duke and Bass, but both those persons denied they were jointly interested in it. It was then contended by the defendants that, if the joint interest did not exist (and they relied upon the denialss of Duke and Bass to claim that it did not), enough appeared in the case to show that Duke -was interested as principal in the account, and was liable, as such, for the whole of it. The defendants’ version of the conversations in Hew York referred to, if true, would establish that Duke had some interest in the account; but he emphatically denies that they ever took place in the manner or to the effect claimed by the defendants. The issues as to the account being individual of Duke, or joint of Duke and Bass, were left-to the jury, under instructions that, if they found that Duke alone was the interested party, the counterclaim must be allowed; but if they found that Duke had no interest with Bass in the account, or if that account were a joint one of Duke and Bass- with' the defendants, there could be no recovery on the counterclaim. There seems to be nothing to criticise in the submission to the jury of these issues. On them, conflicting evidence was presented, and the jury found against the defendants. Cóncerning the instruction given on the subject of the counterclaim, that if the jury found it was based upon a joint debt it was unavailable in this action, the views expressed in Spofford v. Rowan, 124 N. Y. 108; 35 St. Rep. 65, fully sustain what was said by the court in this case, which was, in effect, that in an action at law a joint debt cannot be set off against a separate debt, or a debt of the latter description against a joint debt; and it can only be done in equity, where it is necessary to save the claim of a party ; and then the facts must be alleged upon which the party seeking to enforce the debt relies for equitable relief.

The judgment and order denying the motion for a new trial are affirm with costs. All concur.


author: BARRETT, J.

text:
    Gilbert M. Husted, Resp’t, v. Edward Van Ness et al., as Trustees, etc., App'lts.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Appeal—Party agreed.
    Where there is no evidence .whatever of fraud, a defendant, against whom, a complaint to cancel or reform an instrument for fraud is dismissed, is entitled to appeal for non-allowance of costs. In equity actions, the discretion as to imposing costs is not arbitrary.

      2. Contract—Reform—Parties.
    A person, who has parted with all interest in the subject of a release, cannot maintain an action to reform.
    3. Same. •
    Where there is no proof of fraud or mistake, mutual or otherwise, an instrument cannot be reformed.
    Appeal from a judgment, dismissing the complaint as to one-of the defendants without cost, and directing as against the other-defendant the reformation of the instrument.
    Louis A. Noble, for app’lt Van Ness ; George Putnam Smith, for appl’t Thomson ; A. Edward Woodruff, for resp’t.
   BARRETT, J.

—The defendant Thomson is substituted trustee of the estate of Benjamin Lord, deceased. His predecessor was Augustus Cruikshank, appointed by order of the court in 1883, who was the principal party in the transactions under review, and who was represented throughout them by the defendant Yan Ness, as his attorney. The plaintiff was a beneficiary of Benjamin Lord’s estate, claiming a one-eleventh interest therein. On June 16, 1887, he gave to one Savage a power of attorney to act for him in the collection of this claim, and in the same instrument assigned to him fifty per cent, of his interest, as compensation for his services. On September 22d, following, Savage transferred all his interest thus acquired to Woodruff, the attorney for the plaintiff in this action. Judgment in an action brought by Cruikshank for the construction of his decedent’s will was entered December 28, 1887, and plaintiff’s interest was fixed at the one-eleventh claimed.' In the following year several claimants of the Husted interest appeared. On April 29, 1890, Cruikshank brought an interpleader suit to determine the title of these vaiious claimants. The day after the commencement of this latter action, the present plaintiff called upon the defendant Yan Ness, and an agreement was made for the settlement of the one-half of the one-eleventh interest which he still owned. In return he executed a paper which is the basis of the present controversy. It is entitled in an action pending against Cruikshank, as trustee, for an accounting, and recites a judgment in said action which fixed the balance due to the cestuis que truslent. Then comes the statement that plaintiff, one of said cestuis que trustent “in consideration of the premises, and the consideration of the payment to him of the sum of $4,757.09 by the defendant [Cruikshank], the same being one-half of one-eleventh of said balance,” releases and discharges the defendant, as trustee, from all claims and demands whatsoever.

We are now in a position to understand, as far as may be, the present action. The complaint states the above facts, together with much that is immaterial, and makes the charge that plaintiff was doubly defrauded in the transaction set forth—First, in being induced, tiy misrepresentations on Yan Ness’ part as to the difficulty and expense of securing payment of his claim, to settle his interest for less than its value; and, second, in the procurement from him of a paper which, to quote from . the complaint, “ the said trustee’s attorney and the said trustee have used, and purpose to use, in an unconscionable manner.” This unconscionable use consists, so the plaintiff alleges, in the claim said to be made by Cruikshank and Yan Ness that the release was of the whole original one-eleventh interest, and not of the one-half thereof. The demand for relief is that the release be canceled, and the money paid thereon be adjudged to be a payment on account only, or that it be reformed so as clearly to state that it is for one-half of that interest only, and that defendants .be enjoined from using it in any way as a release of the whole interest, or as proof of the settlement of the same. The complaint is remarkable; the proof, still more so. Plaintiff not only wholly failed, but hardly attempted, to prove fraud in the procurement of the release, or an inequitable or unconscionable use of the same. The findings of the trial court negative, as the undisputed evidence rendered inevitable, the existence of either. The court, however, found “that-the said release, in its present form, is capable of being, and has been, used to the serious prejudice and injury, and pecuniary loss and damage, of the plaintiff.” The judgment dismissed the complaint, as to the defendant Yan Ness, without costs, and directed the reformation of the release “ so that the same shall be read and construed as being a release of but one-half of the one-eleventh share ” owned by plaintiff, and enjoined the defendant Cruikshank “ from using or settling up in any way, whether in legal proceedings or otherwise, the said release as a general release of the entire said one-eleventh share.”

The plaintiff raises the preliminary objection that the defendant Yan Ness has not the right to appeal. It is said that he is not a party aggrieved, under section 1294 of the Code of Civil Procedure, since the complaint was dismissed as to him, and the denial of costs violated no legal right. The objection is not well taken. While the imposition of costs in equity actions is discretionary, the discretion is not arbitrary. It is a judicial discretion, calling for the sound judgment of the court upon all the facts and circumstances of the case. There is undoubtedly power in this court to review the judgment in that regard. Ordinarily the appellate court will not interfere with such discretion, where there is a reasonable basis for its exercise. Here, however, we find nothing but unsupported charges of fraud. Mr. Van Ness has been compelled to rest under these charges until the trial, and to defend himself against them. It seems a poor measure of justice to dismiss such charges without awarding him even the meager recompense which the law allows. The dismissal without costs would seem to indicate that, while the plaintiff failed to-establish his charges, there was at least some slight basis for their assertion. Thus, Mr. Van Ness is wronged, not only in pocket— for he has had to bear the expense of defending — but in reputation. The latter should not thus be left in doubt, for it is apparent that the charges were entirely wanton and gratuitous. Nor should the plaintiff be permitted to escape the ordinary consequences of making such unfounded charges. Otherwise there would be encouragement to slander under the protection of judicial proceedings. We think the judgment appealed from should be modified as to the defendant Van Ness, by awarding to him costs of the-trial and of the appeal.

As to the defendant trustee, the judgment should be reversed: (1) There was no proof of damage sustained by, or threatened to, plaintiff, on account of the form of the release. He bad parted with all bis rights, and had no standing in court. As to him, the case is barren or evidence of damage done or .threatened. (2) If, in some unexplained manner, plaintiff has a standing in court to-reform the release; he makes out no case under recognized heads. No fraud is proved; no mistake, mutual or otherwise. The evidence is undisputed that he intended to give release of any rights-he then had, and that he would not have received his money without it. (3) The release was not a proper subject for reformation, at all. It could be used unjustly only to defeat a claim set up by a prior assignée to share in the Lord estate. Nothing else is pretended. But how could it possibly affect such an end? It released simply what plaintiff then had, and could release nothing else. Prior rights remained unaffected. And it did not in any way assume to do what was thus impossible. (4) There was no justification for this action, and it proceeds upon a loose notion of the province of a court of equity. What the plaintiff really wants is not a reformation of the instrument, but a judicial construction of its meaning. He thinks it means just what he wishes the court to say it means. It is to be reformed to mean this, if there is any doubt about it. If there is no doubt, then be wants it to be so construed. But, whether reformed or construed, he wants “certainty.” There is, as yet, no such head of equity.

As to the defendant Van Ness, the judgment appealed from should be modified so as to award him costs both of the trial and the appeal. As to the defendant trustee, the judgment, so far as appealed from, should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


text:
    William H. Schaffer, Resp’t, v. Second Avenue Railroad Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    W ITNESS—CeEDIBIBIT Y.
    In an action for injuries received while a passenger on defendant’s street car, the mere fact that plaintiff made a mistake in his testimony as to the number of the car, does not necessarily impeach his testimony so that no reliance could be placed on the remainder.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Mr. Rogers, for app’lt ; Mr. Stuart, for resp’t.
   VAN BRUNT, P. J.

—This action was brought to recover for personal injuries alleged to have been sustained by the plaintiff on the 16th of August, 1893, while he was alighting from one of the defendant’s cars.

The plaintiff’s case, as far as the details of the accident were concerned, depended upon his own testimony. He stated that, on the morning of the 16th of August, he started from his home for his place of business, and that he took car No. 422 at the corner of One Hundred and Twentieth street and First avenue, which was an open car, occupying the second seat from the back. The destination of the plaintiff was Sixty-eighth street and First avenue. He testified that the car arrived at Sixty-eighth street about eight o’clock, or a few minutes- before, and was obstructed, on the northerly side of the way, so that it could not go any further. ' It came to a dead stop.- The conductor stood on the step of the car; talking with the plaintiff. The plaintiff asked him to step a little ahead, the conductor standing in his way. The plaintiff says

“ I asked him to step a little ahead; that I was going to get off there, to save him the trouble of going across the street. He said, ‘All right,’ stepped ahead, and I started and got ‘off, and was throwed off, and I stepped down on the step, I was half way off, or half way on the step ; just enough to throw me when the car started.”

The plaintiff further testified- that he had been in the habit of riding on these cars; that they were stopped or started by a whistle, and that no whistle was blown so far as he heard; that he notified the conductor to stop, and that at that time the car was-at a dead stop; and had stopped surely half a minute, before the conductor told him to get off.

Upon the part of the defendant the conductor of car No. 422 was produced, and by his record, made at the time, it appeared that no such accident happened upon that car, and that he passed Sixty eighth street at 7-38&, and reached Astor Place and Broadway at 8:12. The conductor of car No. 428 testified that his car left Harlem at 7:33 and reached Sixty-eighth street about eight o’clock; that there was a passenger on the car who resembled the plaintiff, and, just as the car was passing the northerly side of 68th street, this passenger got off the car, without giving, as far as the conductor could remember, any notice to stop the car at 68th street, or telling him that he wanted to get off the car at that point; that at the time the passenger alighted the car had not stopped, but was going slowly ; that the man fell, but he got up, and went away apparently not injured. The driver of car No. 428 testified that he saw the plaintiff on his car on the trip referred to by the conductor; that he got off the car at 68th street or 69th street; that he did not get any signal to stop the car; neither did the car stop ; that he saw the man in the street, getting up, after he had fallen; and that it was only after he saw the man lying in the street that the speed of the car was increased. Another witness was examined upon the part of the defendant, who was . an employee of the firm of W. & J. Sloane, and he remembers riding on a car of the 2d Avenue Line, 1st Avenue Branch, from which a man fell off, or was hurt in some way; that he could not fix the date, but it was either in July or August; that he could not tell whether the plaintiff was the man whom he saw fall; that he recognized the driver and conductor who had testified as the driver and conductor of the car from which the man alighted and fell; that it was .eight o’clock in the morning; that he saw the man after he fell, but did not see him get off the car; that the car was in motion when he'saw the man, it was in the act of stopping, going very slowly, but had not stopped at all, at the upper cross wállc.

Upon this state of the evidence, at the determination of the case, the defendant moved to dismiss the complaint, upon the ground that there was no evidence to sustain the finding of the jury that the defendant, its agents, or servants, were négligent, which negligence was the sole cause of the injury alleged to have been received by the plaintiff, and that there was not sufficient evidence to sustain a finding by the jury that the plaintiff himself was without negligence contributing to the -alleged injury. The case was submitted to the jury, and a verdict was found in favor, of the plaintiff, and from the judgment thereupon entered, and from an order made denying a motion for a new trial, this appeal is taken.

It is now urged, before us, that the facts do not established the propositions to which attention has- been called. It seems to us that there is a probability that the plaintiff may have been mistaken in the number of the car upon which he rode on the morning in question; but there was a clear conflict o’f evidence upon the question as to whether the car was in motion when the plaintiff alighted from it, and whether he notified the conductor of his desire to alight. This conflict of evidence it seems to have been necessary to submit to the jury. The mere fact that the pláintiff made a mistake in .regard to the number of the car did not necessarily tend to impeach his testimony, so that no reliance should be placed upon the remainder.

We do not see, therefore, any ground for interfering with the verdict, and the judgment and order appealed from should be affirmed, with costs.

All concur.


author: PRYOR, J.

text:
    John Byrnes, Plaintiff, v. Edward R. Ladew et al., Defendants.

      (Supreme Court, New York Special Term,

      Filed January, 1896.)

    Deposition—Examination or party before trial.
    A party cannot examine his adversary in order to ascertain whether he has a cause of action or defense against such adversary.
    Motion to vacate an order for the examination of the defendants before trial.
    Martin & Smith, for motion ; Booth & Deane, opposed.
   PRYOR, J.

—As the defendants move, upon plaintiff’s own papers, to vacate the order for their examination before trial, the application, although no notice, is properly heard at part 2 of the special term. Code, § 772, last clause ; Sturz v. Fischer, 71 St. Rep. —. The complaint exhibits a cause of action against defendants for injury from a defective elevator. Upon allegations, in an affidavit, that the plaintiff is unable to “ascertain” whether the defendants or somebody else are responsible for his injury,— in other words, whether he has a cause of action against them,— he proposes to examine them “to ascertain” the fact of-their liability. As said by Bartlett, J., in Churchman v. Merritt, 51 Hun, 375, 377 ; 21 St. Rep. 743 :

“It would seem that the real purpose in the examination of the defendant is not to obtain knowledge of facts which will facilitate the statement [or proof] of a known and ascertained cause of action, but is rather to find out whether any cause of action whatever really exists in her behalf against these defendants. Under these circumstances, an examination of the defendant before trial is not authorized by the statute. To sanction it would be to permit investigations of the most harassing character, and give rise to a practice liable to great abuse.”

See Britton v. MacDonald, 3 Misc. Rep. 514 ; 52 St. Rep. 494 ; Winston v. English, 44 How. Prac. 398.

The cases cited contra are not of authority to overthrow this principle. Sweeney v. Sturgis, 24 Hun, 162, was a decision by a divided court. Douglass v. Meyer, 21 N. Y. Supp. 1091, was a ruling at special term. In Re Nolan, 70 Hun, 536. 53 St. Rep. 737, the application was, before action brought, to take and perpetuate testimony; but, even as such, I question its propriety, since, surely, it was never the policy or purpose of the statute to permit an experiment of ■ discovery whether a plaintiff have a cause of action against any person whom he may be pleased toimplead and subject to the inquisition. A party may examine his adversary in order to frame his pleading, or complete his proof,, but not to ascertain whether he has a cause of action of a defense against that adversary.

Motion granted.


text:
    In the Matter of the Financial Accounting of James Morgan, as Assignee for Benefit of Walter Jones.

      (Supreme Court, Appellate, Divison, First Department,

      Filed January 24, 1895.)

    1. Assignment fob creditors—Assignee—Accounting.
    Where an assignee for the benefit of creditors takes possession of leasehold property and the difference between the income and the expenses of' the administration of such property shows, from the beginning, that it would be a most extravagant and wasteful administration to keep possession of the leasehold, ana such retention is not at the request of creditors, but at the desire of the assignor, the assignee should be held liable for whatever loss has accrued in consequence of such wasteful and extravagant conduct.
    3. Same.
    But, while, in such case, he may be refused a credit for the excess so paid, he cannot be charged therewith, where it does not appear that such excess was paid from moneys of the estate.
    Appeal from a decree confiming the report of the referee.
    Alexander Thain, for app’lt ; Charles B. Reid and Samuel C. Mount (Gibson & Stapler, of counsel), for resp’ts.
   PATTERSON, J.

—An assignee for the benefit of creditors appeals from a decree settling his accounts. He is charged, on the-accounting, by the referee before whom it was had, with a final balance of $10,832.45, as being in his hands and belonging to the assigned estate. The testimony taken by the referee is not before the court, but counsel for the appellant concedes that each of the findings of fact made by the referee is correct, and established by proof. The conclusions drawn by the referee from such admitted facts are alone attacked, and. we have, therefore, to consider only whether he has refused to give credits, or has made debits, to the assignee, at variance with the conceded facts. The general statement of the account as finally settled by the referee charges the assignee with $49,858.34 and credits him with $39,-025.89, leaving the resultant balance mentioned. .The assignee’s accounts are not made up in debtor and creditor form, but by schedules, of which there are four, marked, respectively, “ A,”' “ B,’’ “ 0,” and “ D." Schedule A is the inventory of the assets-o£ the estate and the amount realized on them; B, of rents paid upon leasehold property; 0, various item of payments; and D, payments of ground rents and other charges upon the leasehold, and alleged to have been incurred in connection therewith. The claimed credits in Schehules D and 0, disallowed by the referee, appear in his report; but on the argument the appellant’s counsel stated he would not insist upon the objections to such disallowance. The balance, $10,832.45, is composed of two principal items. As to the first, the referee finds the assignee chargeable with $2,190.73, being the difference between the amount of the assigned estate realized by the assignee, as stated in Schedule A ($5,689.85), and the amount of the credits allowed in Schedule C ($3,499.22).

The objection to the disallowance of items of credits claimed in Schedule 0 being withdrawn, there remains for consideration but one subject, which constitutes the important question in dispute, the facts concerning which are the following: Among the assets of the assigned estate was a leasehold interest in the property at White street and West Broadway in the city of New York. The premises were subject to mortgages to the amount of $70,000, and the full appraised value of the leasehold "was only $75,000. It was also subject to an annual ground rent of $6,000. The assignment was made on the 10th day of November, 1871. In December, 1871, a decree of foreclosure of the $50,000 mortgage was made and entered. Portions of the premises were occupied by tenants of tne assignor. The assignee retained possession, and held it until 1874, when the property was sold under the decree referred to. The assignee’s administration of this leasehold property has been most reprehensibly negligent and improvident. As accurately as can be ascertained during the period of his possession of the household property, he spent $44,168.49 upon it, and received as rents $35,526.67, thus causing the estate to lose, apparently $8,641.82. This grossly incompetent mismanagement was continuous, from the beginning of the assignee’s possession ; and the difference between the income and the expenses of the administration of the leasehold property shows, from the beginning, that it would be a most extravagant and wasteful administration to keep possession of the leasehold. The assignee’s retention of the leasehold was not at the request of creditors, but seems, rather, to have been at the desire of the assignor; and the assignee’s conduct is inexcusable, under the facts as found by the referee, and admitted to be true. For such wasteful and extravagant conduct of the assignee, he should be held liable for whatever loss has accrued in consequence thereof.

But it is urged by the appellant that it is just in that feature that the conclusion of the referee is without support in the facts as he finds them. It is made to appear that the balance of $8,641.82, with which the assignee has been charged on his leasehold account, could not have been paid out of the moneys of the estate, because only thirty-five thousand'and odd dollars were received from it, whereas forty-four thousand and odd dollars were expended on it; and, as all other receipts of the assigned estate have been accounted for, the inference is drawn by the appellant that • the excessive payments on the leasehold over the receipts derived from the pi'operty must have been paid by the assignee out of his own money. On these facts, it is found by the referee that the assignee should be charged with all the expense incurred on the White street property, amounting to $44,168 49, and should be credited with rents received $35,526.67. This is inverting the ordinary way of stating an account. He should be charged with what he received and credited with what he has disbursed. Now, it is fully apparent that all that was received by the assignee from all sources is $41,216.52, and he is allowed by the referee $39,-025.89, which would leave a balance of $2,190.53. It is not perceived how the assignee could have paid out moneys of the estate to the extent of $8,000 more than he received, and it is incomprehensible upon what principle he could be charged with that amount as moneys of the estate when not one dollar of it is traced in his hands, and he is not shown to be responsible for adollar of it in consequence of any neglect in collecting what was due the estate. It is apparent that the assignee did not keep proper accounts, but "the account he has rendered has not been charged with any item which he neglected to receive. It is shown that he allowed the assignor and the mortgagee to collect moneys from the tenants of the leasehold ; but it is not shown that they failed to account to him, or to pay over to him any particular item. He is not to be charged with indebtedness to the estate upon a naked assumption, not supported by any proof, and not one dollar of loss to the- estate is shown by reason of any of the transactions of the assignee in connection with this leasehold. That it was his duty to relinquish the lease when he discovered its unprofitable character is true, and the court below was right in the criticism which it has made upon his conduct in that respect. - But, while he is credited with the rents received, and is allowed his payments to an equal amount, by what process of reasoning he is made a debtor to the estate for moneys paid in excess of that amount, and which are not shown to have been moneys of the estate, and which account is made up by the referee, or how those "moneys can form an asset of the estate, is not comprehensible. The sufficient penalty to the assignee for his improvident action with reference to this.leasehold is the disallowance of a credit for the amount he paid out in excess of the amount he received from this leasehold property. But there is no basis whatever in the. findings of the referee to charge him with any amount of assets over and above those with which the referee has made him accountable.

The decree should be modified by reducing the final balance found due against the assignee from $10,832.45 to $2,190.63, and the account should be restated, and the balance found due redistributed in proper proportions among the creditors, with the costs and disbursements of this appeal to the assignee, to be deducted from the final balance as now made up.

All concur.