author: INGRAHAM, J.

text:
    Bertha Hirsch et al., App'lts, v. David Mayer, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 17, 1896.)
    1. Pleading—Answer—Demurrer.
    Where the facts pleaded iu a count of the answer, standing by itself, are neither a defense to the action, nor a valid offset, nor counterclaim, a demurrer must be sustained.
    2. Same.
    A defense, in an action of interpleader on a policy of life insurance, which simply alleg-es, in substance, that a judgment was rendered in an action for the collection and enforcement of a bond and mortgage which was thereafter assig-ned and delivered to the defendant as security for the same indebtedness for which the assignment to him of the policy in question was made, is insufficient in that there is no statement that there was anything due from the plaintiff’s assignor to the defendant upon the loan or obligation for which the bond and mortgage and policy in question were security.
    Appeal from a judgment overruling a demurrer to a counter», claim set up in the answer.
    Louis Wertheimer, for app’lts; B. Lewinson, for resp’t.
   INGRAHAM, J.

The plaintiffs demur to the fifth subdivi» sion of the answer of the defendant upon three grounds: (1)¡ That the matters averred therein are insufficient in law upon the face thereof; (2) that the counterclaim is not of the character specified in section 501 of the Code of Civil Procedure; and (3) that the counterclaim does not state facts sufficient to constitute a cause of action. The allegations contained in the fifth paragraph of' the answer are pleaded as a separate defense and by way of offset and counterclaim; and if the facts pleaded in this paragraph, standing by itself, are neither a defense to the action, a valid offset, nor counterclaim, the demurrer must he sustained. The action was upon a policy of life insurance, and was originally brought against the insurance company to recover upon a policy on the life of one Jacob Hirsch, by which the company agreed to pay to Jeannette Hirsch, or her assigns, the sum of $5,‘000 within ninety days after notice of the death of Jacob Hirsch; the plaintiffs claiming the amount due upon the policy under an assignment by Jeannette Hirsch, executed prior to the death of Jacob Hirsch. The insurance company appeared in the action, and paid the stun due upon the policy into court, and thereupon the respondent was substituted as defendant) and a supplemental answer was served, setting up these facts, and that the defendant' claimed the money so deposited. The defendant answered the complaint, and alleged (by the second paragraph of the answer) that prior to the assignment to the plaintiffs, and on June 4, 1891, the said Jeannette Hirsch and her husband, Jacob Hirsch, the assured, executed and delivered to the defendant an assignment of the policy referred to in the supplemental complaint, and that the defendant ever since has been, and now is, the owner and holder thereof. And by the fifth clause of the answer (the clause demurred to) the defendant alleges that prior to the assignment of the policy to the plaintiffs the defendant, in an action in the supreme court, in which these plaintiffs were parties, recovered a judgment against the assignor, Jeannette Hirsch, in the sum of $2,275.43, which judgment is wholly unpaid; that the said judgment was rendered in an action for the collection and enforcement of a bond and mortgage, in the sum of $4,000, made by said Jeannette Hirsch, and assigned and delivered to the defendant as security for the same indebtedness, for which the assignment referred to in paragraph 2 of the answer was made. This action, in the form which it has now assumed, is one to determine the ’title to this fund of $5,000, now in court, and the only question to be determined between the parties is as to the disposition of such fund.

It is impossible to determine to what the “matters set out in folio 2” of this amended answer refer. There is no folio 2 of the amended answer in the record, and the defense or counterclaim cannot be aided by this allegation. Paragraph 5 must stand by itself as a separate and independent defense or counterclaim, and as such it is clearly deficient, in that there is no statement that there was anything due from the plaintiffs’ assignor to the defendant upon the loan or obligation for which the bond and mortgage and policy in question were security. The substance of the allegation is simply that a judgment was rendered in an action for the collection and enforcement of a bond and mortgage in the sum of $4,000, made by Jeannette Hirsch, and thereafter assigned and delivered to the defendant as security for the same indebtedness for which the assignment to him of this policy in question was made. There is no allegation here as to the amount of that indebtedness, as to whether any part of it remained unpaid after the amount that was realized upon the sale of the mortgaged premises was applied to this payment; and there is nothing, therefore, that would justify the court in awarding any part of this sum to pay an amount due to the defendant.

We think, therefore, that the judgment must be reversed, and the demurrer sustained, with costs to the appellants, with leave to the defendant to amend his answer within twenty days upon payment of such costs and the costs in the court below.

All concur.


source: Caselaw Access Project

author: BARRETT, J.

license: Public Domain

text:
    People, Resp't, v. William D. Fox, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 17, 1896.)
    Agricultural Law—Oleomargarine.
    The words “in violation of the provisions of this article,” contained in section 28 of the Agricultural Law, embrace every article made contrary to the provisions of the act, and is not limited to a legally punishable violation.
    Appeal from a judgment, convicting defendant of a misdemeanor, and from an order denying a motion for a new trial.
    Appeal from court of general sessions, New York county.
    William D. Fox was indicted for a violation of the agricultural law, in serving to a customer, as food, an imitation of natural butter. From a judgment convicting him of a misdemeanor, and from an order denying his motion for a new trial, defendant
    appeals.
    The indictment charged the defendant with a violation of the provisions of article 2 of chapter 338 of the Laws of 1893, known as the “Agricultural Law,” in serving to a customer, as food, a certain article and substance manufactured out of and from animal fats and animal oils, not produced from unadulterated milk or cream, in imitation and semblance of natural butter. The indictment averred that the article and substance in question was made and produced in the state of Kansas. The defendant demurred to the indictment on the grounds (1) that the grand jury by which said indictment was found had no legal authority to inquire into the crime charged, by reason of its not being within the local jurisdiction of the county of New York; (2) "that the facts stated in said indictment do not constitute a crime; (3)-that said indictment states that the article or substance referred1 to therein had been made and produced elsewhere than in the state of New York, to wit, in the state of Kansas, which matter, if true, constitutes a legal justification and excuse for the acts charged in said indictment, and a legal bar to the prosecution. The" demurrer was overruled, and the defendant thereupon pleaded not guilty to the indictment. He was convicted upon the trial, and sentenced to pay a fine of fifty dollars.
    Benjamin F. Tracy and Frank H. Platt, for the app’lt; John D. Lindsay, for people.
   BARRETT, J.

The question here is as to the meaning of the words, “in violation of the provisions of this article,” contained in section 28 of agricultural law (Laws 1893, c. 338). The section, in substance, provides that no restaurant keeper shall serve as food for his customers, or use for cooking’ purposes, any article or substance made “in violation of the provisions of this article,” namely, article second, relating to dairy products. The appellant insists that the words in question are limited to a legally punishable violation. The respondents contend that they embrace any article made contrary to the provisions of the act. We agree with the latter construction. The act defines its own intent. Section 26 is prefaced with this headline, “Manufacture and Sale of Imitation Butter Prohibited.” Section 28 commences “Prohibited Articles not to be Furnished.” Section 36 reads as follows:

“Object and Intent of This Article. This article and each section thereof are declared to be enacted to prevent deception in the sale of dairy products, and to preserve the public health, rvhich is endangered by the manufacture, sale and use of the articles or substances herein regulated or prohibited.”-

Thus we have a distinct legislative declaration that the substance in question is deleterious, and that the object of the prohibition is to preserve the public health. The words were meant to cover the intent. “Made in violation of the provisions of this article” was simply a concrete expression meaning “made in the manner condemned by this article.” To limit.it to such making as could be punished by the courts would destroy the entire system. “Such construction of a statute,” said Earl, I., in Pierson v. People, 79 N. Y. 433, “should be adopted as appears most reasonable, and best suited to accomplish the objects of the statute.” The appellant insists upon a construction which would enable the proprietor of every hotel and restaurant in this state to serve with impunity what the legislature declares to be a deleterious substance, and thus, according to the legislative judgment, to jeopardize the public health. All the proprietor has to do, upon that construction, is to secure the condemned article elsewhere. If it is manufactured upon the other side of the boundary line of this state, he can injure the public health here with imp-unity. This construction is unreasonable. The prohibited article is none the l§ss made in violation of the provisions of the agricultural law because made where those provisions have no binding force. “Violation” here means practical nonconformity, as well as .punishable transgression. It is urged that section 26 favors the appellant’s contention, because there also the sale of any such article “in violation of the provisions of this section” is forbidden, while the prohibition is coupled with the phrase (which follows), “whether such article, substance or compound shall be made or produced in this state or elsewhere.” The appellant contends that the absence of the latter phrase in section 28 is significant. But still the question as to the meaning, even in section 26, of the words, “in violation of the provisions of this section.” Unless they mean what we have suggested, namely, nonconformity to the maratfactoring regulations of the section, the words which follow, and which are supposed to be significant, have no force and are simply contradictory. The legislature surely never meant to embody in a single sentence such a provision as this: That no person shall sell any article made in this state in violation of the provisions of this section, whether such article be made in this state. What the legislature really intended was to accentuate its previous meaning. The purpose was to prohibit the sale of goods of the condemned class. Lest the expression, “made in violation of the provisions of this section,” should possibly be considered ambiguous, the words of legislative construction, “whether made or produced in this state or elsewhere,” were added. Having used those words, not to amplify or extend the prohibition, but to construe and emphasize it, it was unnecessary to repeat such words of construction in the following twenty-eighth section. They were really unnecessary in section 26. They were equally unnecessary in section 28. Without them there was no genuine ambiguity. The violation contemplated was clear enough, namely, the production or sale or use of goods which the legislature deemed deleterious. But whatever possible doubt there might have been was set at rest by the words we have called “words of construction.” The expression, “in violation of the provisions,” etc., has precisely the same meaning in the one section as the other. The words themselves are the same. They mean the same thing without any words of construction, and they mean it none the less with such words of construction.

We have no doubt that the defendant was properly convicted, and that the judgment should be affirmed.

All concur.


author: RUMSEY, J.

text:
    Frances E. Patterson, Resp't, v. Charles G. Patterson, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 24, 1896.)
    1. Divorce—Alimony
    An order for alimony and counsel fees in matrimonial actions is discretionary, but, where there has been a palpable abuse of the discretion of the court, or, if the court seems to have been controlled by improper considerations in making the order, the appellate division has power to review such action upon appeal.
    3. Same.
    Amount of alimony, awarded to wife, should be such suitable support as will supply not only the bare necessities of life, but such a sum as will keep her in the situation and condition in which her husband’s means entitle .her to live.
    3 Same—Conditions.
    Where a case made by the wife is such as to entitle her to alimony and counsel fees, the court cannot require her to consent to a reference as the condition of obtaining’ it, nor require the husband to nay double the amount which is necessary to support the wife, and enable her to carry on the action, if he does not consent to refer the case.

      Appeal from that portion of an order allowing temporary alimony and counsel fees.
    E. C. Clinch, for app’lt; John R. MacArthur, for resp’t.
   RUMSEY, J.

The action was brought for a separation. After issue was joined, the plaintiff moved for alimony and counsel fees, and after a full hearing the court made an order containing the following provisions, from which the appellant has taken this appeal:

“'That, if both plaintiff and defendant consent to such reference, an allowance of twenty-five dollars per week shall be paid to the plaintiff or plaintiff’s attorneys by the defendant on or before the noon of Saturday of each week, commencing on Saturday, February 29th, and until the referee shall make his report. That the further sum of two hundred and fifty dollars, back alimony, be paid by defendant to plaintiff or plaintiff’s counsel on or before the 29th day of February, 1896, which sum, when paid, shall be in full for all alimony to which the plaintiff shall be entitled up to the 22d day of February, 1896. That two hundred and fifty dollars be paid as a counsel fee by the defendant to plaintiff’s attorneys on or before the 7th day of March, 1896. That if the plaintiff refuses to consent to a reference as above ordered by serving on or before February 24, 1896, a consent in writing upon the attorney for 'the defendant, no alimony or counsel fee shall be allowed, and her motion will be denied. If the plaintiff shall consent as above provided, and the defendant shall not, on ■or before the 29th day of February, 1896, consent to a reference as above ordered, then the amount to be paid by him as above ordered, then the amount to be paid by him as above ordered shall in each .case be double the amount above mentioned.. If there be an order of reference herein, that the said reference proceed on two days’ notice by either party to the other, and continue from day to day until completed unless the referee shall otherwise order.”

It is not necessary to rehearse the testimony in this case. After having’ read it, we are satisfied that, if this order had confined itself simply to awarding to Mrs. Patterson the amount of alimony and counsel fee which was fixed by the court, no fault could have been found with it. The question simply is whether those provisions of the order cited above are proper, so far as they take away the alimony from the plaintiff, if she refuses to consent to a reference, or increase the amount of it in Case the defendant refuses to consent. The order for alimony and counsel fees in matrimonial actions is discretionary, but, like all discretionary orders, it is reviewable by the appellate division. In cases of this kind, if there has been a palpable abuse of the discretion of the court, or if the court seems to have been controlled by improper considerations in making the order, there is no doubt of the power of this court to review an action upon appeal. Lowenthal v. Lowenthal, 68 Hun, 366; 51 St. Rep. 882. That condition of affairs clearly exists here. In making allowances, of this kind to the wife, they should be such only as are necessary to enable her to carry on the action or for her support, having regard to the circumstances of the respective parties. Code Civ. Proc. § 1769. In fixing the amount of alimony, the court should take into consideration the nature of the action, whether or not the wife has a good cause of action, the probable difficulty of proving her case, and the strength of the ease she is likely to be required to meet, and the probable expense of carrying on the litigation. In coming to a conclusion as to the amount of alimony, the station in life of the husband, his means as shown by the tesimony, including his expenditures, and his apparent condition, should be the criterion as to the proper amount necessary to give the wife suitable support; it being remembered that such suitable support is not simply what will supply her with the bare necessaries of life, but such a sum as will keep her in the situation and condition in which her husband’s means entitled her to live. When those questions are answered, and the amount necessary to pay such expenses is ascertained, the amount of the allowance ceases to be entirely a question of discretion, but should be made commensurate with those needs. But the wife, while she should have so great an amount as is necessary to pay those expenses, if the husband’s means will permit, is not to have more than that, and should have nothing awarded to her if she has means of her own sufficient to carry on the action and to support herself. Collins v. Collins, 80 N. Y. 1.

It may be that in actions for separation, where a jury trial is not a matter of right, the court may, as a condition of awarding alimony, require the wife to consent to a reference, to the end that the rights of the parties may be quickly determined, and the amount of permanent alimony to be paid, if the wife is entitled to it, may be ascertained. But alimony or counsel fees should never be given to a wife for the mere purpose of punishing the defendant, the husband, either because he refuses to consent to the taking of any step in the action, or because he has shown by the proceedings in the action that he is an unworthy person. It is quite likely in this case that each of these reasons may have moved the court to double the amount of - alimony and counsel fee in case the defendant refused to consent to a reference, but that action was entirely unwarranted. While the speedy disposition of these actions is always to be desired, yet, ordinarily, parties should not be compelled to consent to a reference. The court, not content with awarding alimony and counsel fees to the wife, directed that, if the husband did not consent to refer the case, double the amount which had been fixed by him as a sufficient, alimony and counsel fee should be paid. This action of the court, we think, was error. The case made by the plaintiff was such as to entitle her to alimony and counsel fee, and there was no case which would authorize the court to require her to con-. sent to a reference as a condition of obtaining it, and certainly nothing to require the defendant to pay double the amount which was necessary to support his wife, and enable her to carry on the action,.if he did not consent to refer the case.

For these reasons so much of the order as denies alimony or counsel fee to the plaintiff if she refuses to consent to a reference, and so much of the order as doubles the counsel fee and alimony if the defendant refuses to consqnt to a reference, and so much of the order as requires that the reference should proceed upon two days’ notice, and continue from day to day until completed, is reversed; but the second, third, and fourth subdivisions of the order, which award alimony and counsel fee to the plaintiff at the sums therein fixed, are affirmed, and, as thus.modified, the. order is affirmed, without costs»

All concur.


author: WILLIAMS, J.

text:
    Alfred C. Manning et al., App'lts, v. Robert Schmitt, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 24, 1896.)
    Witness—Section 829.
    It is erroneous to permit a defendant to testify to personal interviews with a member of plaintiff’s firm who was, at the time of the trial, deceased.
    Appeal from a judgment in favor of defendant.
    The action was brought to recover the balance of the purchase price of a gas engine sold and delivered by plaintiffs to defendant. The defense was breach of warranty, and a counterclaim for a part of the purchase money paid and for damages. The defendant made and delivered to plaintiffs an order for the engine, which ¡plaintiffs received, and under which they delivered the .engine. The purchase was made April 29, 1889. The total purchase price was $377, of which $190 was paid at the time of the delivery of the engine. The warranty was alleged to have been by parol, and proved by the defendant’s evidence alone. There was no other witness sworn on the subject. The plaintiffs were co-partners, and were father and son. The son was not present at the sale, and had nothing to do with it. The father and plaintiffs’ bookkeeper represented the firm in the transaction, and it was with them the interview took place which constituted the- warranty upon which the defense was based. The elder member of the plaintiffs’ firm died April 20, 1891, after the action was begun, but before the trial, which took place in December, 1892. The evidence of the defendant with reference to this interview and warranty yvas objected to when it was given, on the ground that the partner with whom it was had was deceased. Another interview between defendant and this same partner was allowed to be testified to by the defendant as having taken place after the disagreement as to the engine had arisen. This was also objected1 to when it was given. Then a motion was made, later, to strike out all this evidence, which motion was denied. Exceptions were taken by plaintiffs’ counsel to these several rulings. The case was submitted to the jury, and they were instructed that, upon this evidence, they might find a warranty as alleged, and, if there was a breach, they might render a verdict in favor of defendant upon his counterclaim, which they did.
    John J. Connelly, for app’lts; Arthur S. Tompkins, for resp’t.
   WILLIAMS, J.

It was clearly erroneous to permit defendant to testify to personal interviews with the member of plaintiffs’ firm who was, at the time of the trial, deceased. Section 829 of the Code prohibits the giving of such evidence. It cannot be claimed the objection was not brought to the attention of the court with sufficient clearness. When the subject first arose, the court said: “Strike out the testimony that he had this conversation with a man who is alleged to be dead.” The next time the question was presented, the objection was put upon the express ground that it already appeared that the conversation was with the partner who had since died, and the court said: “If you want to put that in, I shall allow you to do it, but at the same time say, as I have said before, it is extremely doubtful, and I do not see that it is necessary to your case. If you think it is, and want to take the risk, I will allow it.” And again, when the later interview was offered to be proven, and objection was made that it as within the provisions of the statute, the court said: “If you want to take the risk, I will let it go in.” The objections were not very definite. They might have been more specific, but it is apparent that the court was fully apprised and was well aware of the grounds of the objections. They were grounds which in no way could have been obviated. The defendant was incompetent to give evidence of either of these interviews, and it was error to permit him to give it.

For this error the judgment should be reversed, and a new trial ordered, with costs to appellants to abide event.

All concur.


text:
    George Hill, App'lt. v. Robert P. Lee, Individually and as Executor, etc., Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 24, 1896.)

      1. Costs—G-uaiidian ad litem.
    An action by a guardian ad litem to recover costs from mortgagee, for acting as such on the foreclosure of the latter’s mortgage, cannot be maintained on the judgment of foreclosure, in the absence of an averment in the complaint that it was adjudged that such costs should be paid by the mortgagee plaintiff.

      3. Same.
    Nor can such guardian recover upon an implied promise upon the part of the mortgagee plaintiff to pay his costs, in the absence of an express promise.
    3. Same,
    The averment that the attorney for the mortgagee plaintiff requested the guardian ad litem to serve his answer is not a request to perform a service for the plaintiff in the foreclosure action.
    Appeal from a judgment dismissing the complaint.
    The complaint alleges, in substance, that one Sarah D. Williams made and executed in 1889, to one De Grauw, a mortgage on real property in the city of Brooklyn, to secure payment of her bond for $1,000; that Mrs. Williams died in 1894, leaving three children, one of whom was Emma H. Williams, an infant; that thereafter an action was begun by De Grauw to foreclose this mortgage, in which said infant, Emma IT. Williams,, was made a party defendant; that the complaint prayed, among other things, that each of the defendants be barred and foreclosed of all right in and title to the property, and that there be paid to the plaintiff, out of the proceeds of sale, the mortgage debt with interest and costs, and the expenses of sale; that upon the petition of her father, and the present plaintiffs consent, the latter was appointed ad litem of Emma H. Williams on January 15, 1895, and was authorized and directed to appear and defend the action in her behalf; that thereupon he served a notice of appearance for the infant in the action; that on January 18, 1895, the attorney for De Grauw requested Mr. Hill to serve his answer as such guardian, which he accordingly did; that such proceedings were thereupon had, on notice to Mr. Hill, that the usual judgment of foreclosure and sale was entered, which provided, among other things, for the payment to Mr. Hill, as guardian ad litem, out of the proceeds of sale, of his costs and disbursements, amounting to $66.85; that Mr. Hill’s services were rendered by him as guardian ad litem of Emma H. Williams, for the benefit of De Grauw, the plaintiff in the foreclosure action, and upon De Grauw’s implied request. It also appeared that De Grauw died pending the foreclosure action, and that it was continued by the present defendant as his executor, and that the property sold for much less than the amount of the mortgage debt,—in fact, that it was bid in by the present defendant for but $50,—and that Mr. Hill has not been paid the sum directed to be paid him by the judgment. There is a further allegation that the referee’s report of sale, as filed, included, in the deficiency statement, the amount of Mr. Hill’s costs. There is no allegation that any deficiency judgment has been entered. The complaint was demurred to upon the • ground that it did not state facts sufficient to constitute a cause of action.
    George Hill, in pro, per.; Theo. F. C. Demarest, for resp’t.
   BARRETT, J.

The complaint avers that it was adjudged in the foreclosure action that the mortgaged premises be sold, and that the-costs of the guardian ad litem be paid out of the proceeds of sale. There is no averment that it was adjudged that these costs should be paid by the mortgagee plaintiff. It follows that the present plaintiff, the guardian ad litem in the foreclosure action, cannot recover upon .the judgment. Nor can he recover upon an implied promise upon the part of the mortgagee plaintiff to pay his costs. No express promise is averred. The averment is that the .guardian’s services were rendered for the benefit of the mortgagee plaintiff, and upon the latter’s implied request. But this is a mere conclusion of law, which is not borne out by the facts stated, and which is not admitted by the demurrer. The services were not, in fact, rendered for the benefit of the mortgagee plaintiff, but for the protection of the infant. Any act of one’s adversary, whereby the litigation is expedited, may, in one sense, be said to be beneficial; but the interposition of an answer, however prompt, is surely not, in a legal sense, an act done for the benefit of the plaintiff. If the mortgagee plaintiff had been unsuccessful in the foreclosure action, the court could have awarded costs against him in favor of the guardian ad litem, the same as in favor of any other successful defendant. But he cannot well be charged with a defendant’s costs, where he was entitled to and has secured his decree, as against that defendant. The court had authority to award, as it did, costs to be paid out of the proceeds of the sale. If these proceeds were insufficient, and the infant had an independent estate, the court could still protect the guardian, in a proper proceeding, by directing payment out of the infant’s estate. But there the power of the court ends, and there the guardian’s rights end. He cannot look to the successful plaintiff personally. The latter has no contract relation with him, express or implied. As well might the committee of a lunatic, or the representative of a deceased judgment creditor, claim such contract relation merely because the mortgagee plaintiff, to secure a valid decree, must bring him in.

The averment that the attorney for the mortgagee plaintiff requested the guardian ad litem to serve his answer is of no moment. That was simply a request that the guardian do his duty by the infant, and do it promptly. It was certainly not a request to perform a service for the plaintiff in the foreclosue action.. This suggestion of the appellant exposes the fallacy of his contention; for how can a plaintiff contract with propriety for a service to himself, the foundation of which is a service to his adversary? And, if he cannot make an express contract, how can one be implied? The guardian is appointed to protect the infant by defeating the plaintiff, if there be just ground of defense. He must look into the case to see whether there be such ground of defense. Of what value would his services be to the infant, where he the hireling of the plaintiff? Even where he finds no defense, and merely submits the infant’s interests to the court, he still must see to it that the plainiff secures no greater judgment than he is legally entitled to. A person in such a position cannot reasonably be likened to the referees or others who are called on by the court to perform independent functions of an official character in the cause, or in the execution of the judgment. The plaintiff is undoubtedly hable for the fees and charges which are incident to the procedure. But these necessary expenses of the litigation are entirely different from the statutory costs awarded to parties as between each other, and from the charges of attorneys for their services to then- clients. The services of the guardian ad litem are not analogous to the necessary disbursements incurred in the cause. They are independent services rendered to the infant for his protection, and not in any just sense rendered to the plaintiff.

Theorderand interlocutory judgment should not,however,have provided for a dismissal of the complaint, in terms, “upon the merits.” The effect of the judgment should not have been thus adjudicated. The judgment should have been in the usual form. It should be modified by strildng out the words “upon the merits,” wherever these words appear therein, and as thus modified affirmed, without costs of this appeal, and with leave to the plain-' tiff to amend his complaint, if so advised, within twenty days, upon payment of the costs awarded by .the special term.

All concur. •


text:
    Nicolas Geoffroy, as Adminisrator, etc., App'lt, v. Alexander Gilbert et al., as Executors, et al., Resp'ts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed May 1, 1896.)
    1. Insurance—Life—Insurable interest.
    A minor child has an insurable interest in the life of its father.
    3. Same—Vested interest.
    In such case, a policy taken out for the benefit of an infant daughter vests in her an absolute interest, of which she cannot be deprived during her life.
    3. Same.
    The fact that the insurance was procured by the father for her benefit, does not diminish her right.
    4. Same.
    It makes no difference whether the policy was, or was not, issued pursuant to the statute of 1840 and the laws amending the same.
    5. Same—Beneficiaries.
    The phrase “legal representatives” in a life insurance policy, ordinarily and unless their meaning is explained and altered by the context, means executors and administrators.
    Appeal from a judgment entered on a decision of the special term.
    B. Crosby, for app’lt; John S. Durand, for resp’ts.
   RUMSEY, J.

In the month of'February, 1868, William R. Clarkson procured from the New York Life Insurane Company a policy of insurance on his life for the sum of $10,000, which sum the life insurance company agreed -to pay on the occasion of his death to Jennie Clarkson or her legal representatives. The consideration for the policy was expressed in it to be the sum of $724.60, “paid by William R. Clarkson for the benefit of his daughter, Jennie Clarkson.” William R. Clarkson was a merchant, residing in Plainfield, N. J. His age at the time this policy was taken out does not appear. Jennie Clarkson was his only daughter, and was, at the time the policy was bought, four years of age. At the age of twenty-six years she married the plaintiff, and died a year or so afterwards, and on the 27th of June, 1891, her father surviving her. He lived until the 16th day of March, 1895, when he died. Geoffrey, the plaintiff, was appointed the administrator of his wife, the daughter of William R. Clarkson, and the present defendants were the executors of William R. Clarkson, by his will. At the time of his death Mr, Clarkson left his wife surviving him, having no children except. Jennie Clarkson. After Mr. Clarkson’s death, the plaintiff made the proper proof to entitle him to the payment of the sum agreed to be paid by the policy, but he was unable to produce the policy itself, which was in the possession of the executors of Mr. Clark-son, and the New York Life Insurance Company declined to pay until the policy was surrendered, which Mr. Clarkson’s executors refused to do. The plaintiff thereupon brought this action to obtain a judgment requiring the executors of William R„ Clarkson to deliver up the policy, and that the life insurance company thereupon pay the amount of it to him. The Jennie Clark-son Baptist Orphanage was made a party defendant because it claimed to be a legatee under the will of William R. Clarkson, deceased. The New York Life Insurance Company paid the-money into court, and the action was discontiued as to it. Upon the trial at special term the court hold that the policy was payable to the executors of William R. Clarkson, and directed a judgment that the complaint be dismissed, and that the money in court be paid to the defendants, executors of William R. Clarkson. From the judgment entered upon that decision, this appeal is taken.

The trial court held that the words “her legal representatives’*' did not have their usual and ordinary meaning in this policy, but-that they were to be construed as meaning “next of kin of Jennie Clarkson,” and for that reason the plaintiff, who was her administrator, was not entitled to the amount of the policy. It is to be-noticed that the policy recites that the consideration for it was paid by William R. Clarkson for the benefit of his daughter, Jennie Clarkson, and the company agreed to pay the amount of the policy, when it should become due, to Jennie Clarkson or her legal representatives-. Jennie Clarkson, being the daughter of William R. Clarkson, and presumably dependent upon him for-her support, had- an insurable interest in the life of her father,. For many years it had been held to be doubtful whether that was the law. The tendency of the decisions in the English courts was that a minor child had no insurable interest in the life of a father. Such continued to be the law for many years, but the tendency of the courts in that direction has been from exceeding strictness to considerable liberality. Whatever may have been the notion heretofore, the rule, we think, with reg’ard to an insurable interest in the life of another, is well settled by Judge Field in the case of Warnock v. Davis, 104 U. S. 775. At page 779 he says:

“It may be stated generally, however, to be such an interest arising from the relations of the party obtaining the insurance, either as creditor of or surety for the assured, or from the ties of blood or marriage to him, as will justify a reasonable exception of advantage or benefit from the continuance of his life. It is not necessary that the exception of advantage or benefit should be always capable of pecuniary estimation, for a parent has an insurable interest in the life of his child and a child in the life of his parent; a husband, in the life of his wife, and a wife in the life of her husband. The natural affection in cases of this kind is considered as more powerful—as operating more efficaciously—to protect the life of the insured than any other consideration." But in all cases there must be a reasonable ground, founded upon the relations of the parties to each other, either pecuniary or of blood or affinity, to expect some benefit or advantage from the continuance of the life of the assured.”

Such, we think, is a fair statement of the law on this subject as it exists to-day. There is no case in this country, to which we have been referred, in which it is held that a near relative, who may derive any benefit from the life of another, has not an insurable interest in that life. Indeed, the cases are all to the contrary, Lord v. Dall, 12 Mass 115; Loomis v. Insurance Co., 6 Gray, 396; Insurance Co. v. Kane, 81 Pa. St. 154: In the case last cited it was held expressly that a child had an insurable interest in the life of a parent. As Jennie Clarkson had an insurable interest in her father’s life, the policy taken out for her benefit undoubtedly vested in her an absolute interest, of which she could not be deprived during her life. The case of Olmsted v. Keyes, 85 N. Y. 593, seems to be conclusive on that point. In that case a life insurance company had issued a policy of insurance on the life of Keyes to the plaintiff, as trustee for Huldah Keyes, his wife. The policy was issued in 1846, and Huldah died intestate in 1857. Afterwards Keyes married again, and thereupon the plaintiff, at the direction of Keyes, assigned to the second wife all his interest as trustee in the policy. Upon the death of Keyes, the plaintiff and- the second wife both laid claim to the proceeds of the policy. The court of appeals held that the first wife acquired, by thp issuing of the policy of insurance to the trustee for her benefit, a vested interest therein; that she could have made a valid assignment of it to any person during her life, or that she could have disposed of the interest by will. It held further that, as she had not disposed of it, it vested in her husband at her death, by virtue of his right of survivorship, and his direction to the plaintiff passed the title in it to the second wife, who was, therefore, entitled to be paid the proceeds of the policy. The fact that the insurance was procured by the father for the benefit of the daughter does not diminish the right of the daughter.' In such a case, where he procures a policy of insurance upon liis life for the benefit of the daughter, he acts simply as her agent, and she acquires a vested interest in the policy at the moment of its delivery to him. Whitehead v. Insurance Co., 102 N. Y. 144. it makes no difference whether the policy be said to have been issued pursuant to the statute of 1840 (chapter 80, Laws 1840) and the laws amending that statute or not. If she had a vested interest in this policy, there was nothing in the case to show that it was divested by her death. As has often been held, and as this court has held in the case of Steinback v. Diepenbrock, recently decided, and reported in 1 App. Div. 417; 37 N. Y. Supp. 279, a valid policy of insurance is a mere chose in action, and. passes, like any other chose in action, upon the death of the owner, to the person who is entitled to take his personal property. In this case the policy, by its terms, is made payable to Jennie Clarkson or her legal representatives. No different rules are to be applied in the construction of a policy of insurance than in any other contract. In that as in every contract the words are to be construed to have the ordinary meaning which is usually, given to them in common parlance, unless facts are shown from which it is made to appear that some other meaning was intended to be given. The phrase “legal representatives” ordinarily means executors or administrators, and in the absence of any proof requiring a different meaning to be given to that phrase, it must be thus construed. Sulz v. Mut. R. F. L. Association, 145 N. Y. 560; 65 St. Rep. 513. Where it is intended to give to the words used in a contract a different signification from that which they are ordinarily to receive, the burden lies upon the person who claims to change the meaning’ to show the facts which authorize that to be done. Unless some such facts are shown, they must receive the usual signification. Id. The respondent cites the case of Griswold v. Sawyer, 125 N. Y. 411; 35 St. Rep. 396, to sustain his contention that in this case the phrase “legal representatives” does not have its ordinary and usual meaning, but must receive another construction. In that case the court conceded the rule to be as is laid down above; that those words ordinarily, and unless their meaning is explained and altered by the context, must be held to mean executors and administrators; and the court there lay hold of certain facts which were made to apnear, from which they concluded that the words used in the policy which was there construed did not have the usual meaning which is given to them. But the facts of that case were very different from those of the case at bar. In that case, as the court held, it was a necessary inference from facts outside of the policy that the words did not have the meaning ordinarily to be given to them. In this case no facts were shown which would give to the court any power to put a different construction upon those words than their ordinary meaning. For that reason the ease of Griswold v. Sawyer does not apply, and cannot control us in the construction of this policy. Here no facts are made to appear from which it could be inferred"that the policy was taken out for any other person than the benefit of the daughter or her husband. The very fact that it was made payable to her legal representatives necessarily leads to the inference that it was to belong to her estate after her death. She was an only daughter. Her father was a well to do man, leaving an estate. In the nature of things, it was fair to infer that she would have children who would he dependent upon her, and would look to her estate for their support; and the provision that the policy should be made payable to her legal representatives must be accepted as a conclusive indication, as it seems to us, that the father, who paid the money and took out the policy for her benefit, intended that she should have it so absolutely that she could make any use of it that any other person could malee of a valuable chose in action which belonged to her. But it is useless to speculate as to the intention of the father in taking out this policy upon any outside facts. It is sufficient to say that nothing has been shown which would warrant the court in giving to these words any other or different; meaning from that which they ordinarily have in common use. For that reason the conclusion of the court below cannot he sustained, and the judgment must be reversed, and judgment ordered that the fund in court belong to the plaintiff, and that it shall be paid to him. The costs of the action and of this appeal should be paid by the defendant.

All concur.


author: MERWIN, J.

text:
    Lucinda Hawley, Resp't, v. City of Gloversville, App'lt.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. Municipal Corporation—Notice.
    In an action to recover for injuries caused by a fall on an iey sidewalk, notice to a policeman, whose duty it is to report to the chief executive officer of the city, is notice to the city, where its charter makes it the duty of the policemen to report to the mayor any dangerous accumulation of snow and ice in the street, brought to their notice.
    2. Appeal—Harmless error.
    But an instruction that a notice to a policeman is notice to the city, if erroneous, is no ground of complaint, where its street superintendent,, notice to whom is notice- to the city, had actual notice of the condition, whatever it was, of the walk in question.
    3. Same—Error cured.
    Any error in regard to the rejection of testimony is cured by the subsenuent admission of the 'witness.

      4. Municipal corporation—Negligence—Contributory.
    Where there are two causes of the injury, both contributing, the-city is liable, if the injury can be traced to either one of those causes,—if the injury is the proximate and direct result of the negligence for which the city is liable.
    5. Same.
    In an action against the city for injuries caused by an accumulation of ice on the sidewalk, the plaintiff, in view of the dangerous situation, is bound to show that he exercised such care and prudence as prudent persons ordinarily would in passing’ over such a place. Upon such proof, it is for the jury to say whether he was going with that care and caution that the circumstances required.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Jerome Egelston and A. D. Baker, for app’lt; Andrew J. Nellis, for resp’t.
   MERWIN, J.

On the 3d day of March, 1894, at about eight o’clock in the morning, the plaintiff fell upon an icy sidewalk in front of No. 44 South Main street, in the city of Gloversville, and sustained injuries, for which, in this action, she has recovered! damages upon the ground that the accident was caused by the negligence of the defendant in its care of its streets. There was evidence tending to show that, at the point where the plaintiff slipped and fell, the sidewalk was in a dangerous condition, caused-by an accumulation of snow and ice of which the defendant had actual or constructive notice. Whether or not the defendant was negligent was a question for the jury. Keane v. Village of Waterford, 130 N. Y. 188; 41 St. Rep. 291; Goff v. Village of Little Falls, 47 St. Rep. 729. This does not scc-m to he disputed by the defendant, but it is claimed on its behalf that material errors were made by the trial court in rulings upon, evidence, and in its action upon defendant’s requests to charge. The plaintiff was permitted to show, over the defendant’s objection and exception, that South Main street, in the vicinity of tho accident, was patrolled by policemen of the city. The defendant requested the court to charge “that knowledge or notice o£ the police officers of the city of the existence of the ice and condition of the sidewalks at the point in question is not notice to tho-defendant.” The court refused, except as already charged, to which the defendant’s counsel excepted. The court had charge-as follows:

“It is true, as stated, that simple notice of an obstruction, to a. policeman, would not be sufficient to charge the corporation with negligence for not removing it. But if there was an accumulation of snow and ice that was dangerous, and that was brought to the notice of a policeman, and the policeman failed to do his duty in that regard, and, by reason of his failure to notify the proper officers of the city, the snow was not removed, and injury resulted, then you might say that the city was chargeable with negligence, because its officers had omitted to perform their duty.”

To this charge, as made, no exception was taken.

By the charter of the city its was made the duty of the policemen to report to the mayor all violations of the ordinances and bylaws of the city. The court, in its charge, without objection or exception by defendant, referred to an ordinance, as being read in the case, that evidently related to the prevention of accumulation of snow and ice on sidewalks. This ordinance is not printed in the case, but we must, I think, assume that there was properly in the case an ordinance of the character and import as indicated in the charge. It thus would appear that it was the duty of policemen to report to the mayor any dangerous accumulation of ice or snow that was brought to their notice. In Rehberg v. Mayor, etc., 91 N. Y. 137, where, by statute, it was made the duty of the police force to remove nuisances existing in the streets, it was held that notice to a policeman of such an unlawful obstruction in the street was notice to the city, and that the city was chargeable with any neglect on his part to make proper observation or inquiry. In Twogood v. City of New York, 102 N. Y. 216; reversing, 12 Daly, 220, a patrolman charged with the duty of reporting any violation of city ordinances made report to his superior officer that the snow and ice had not been removed from a certain locality. It was the practice of the superior officer to forward such reports to police headquarters, and from there they were sent to the office of the corporation attorney. It was charged by the trial court that the reports by the policeman to his superior officer^ made in the usual course, was not notice to the defendant. Tin's was held to he error. The logic of thes* cases‘furnishes some support to the proposition that noticé to the policeman, whose duty it was to report to the chief executive officer of the defendant, wras notice to the defendant. But there is another view of the case from which it seems to me to be quite clear that the defendant cannot complain of any rulings of the trial court as to notice to policemen. The evidence on the part of the defendant leads clearly to the conclusion that its street superintendent, notice to whom was notice to the city (McSherry v. Trustees, 129 N. Y. 612; 42 St. Rep. 263), had actual notice of the condition, whatever it was, of the walk in question.- He claims that it was not in as bad condition as it was claimed to be on the part of the plaintiff. He testifies, with reference to the time of the accident:

“~We had taken steps in the last three days to have the walks cleaned on South Main street. * "x" * I had no notice as to the condition of the walk in front of 44 South Main street; no knowledge of it, only what I saw as I passed by. I never saw any ridge.”

Mr. Lewis, an employe of the city, under the street superintendent, was called as a witness for the city, and testified that for three days prior to the accident it froze at night, and thawed in the daytime. On his cross-examination he testified:

“I noticed this condition of it for three days prior to the accident. I noticed it in front of 44 South Main street, three days prior to the accident. The street superintendent gave me orders to notify people that the walks were slushy, and to clean them; and, if there was ice on the sidewalk, I was to notify them. T notified the occupants of 44 South Main street. I don’t know how many times prior to the accident. I live at Bdngsboro. I passed and repassed on South Main street, day by day, to see whether ice was permitted to accumulate on it, all winter long.”

Evidently the city claimed that it did not know all about the walk, and that, if it was dangerous at all, it was from a cause so recent that the corporation was not liable.

The defendant further claims that questions to the witness Baker, the street superintendent, as to the general condition of the sidewalks, were improperly ruled out. Any error in that regard was cured by the subsequent evidence of the witness. The evidence of the witness Hawley as to the condition of the walk a month previous was not objected to as being too remote. The question to the superintendent, as to whether, at any time during the month of February, a complaint was made as to the condition of the walk at 44 South Main street, if material, was, in substance answered.

It is claimed by the defendant that the court charged that if there were two causes of the injury, both contributing, defendant would be liable, if the injury could be traced to either one of those causes, and that in so charging the rule on the subject, as laid down in Taylor v. City of Yonkers, 105 N. Y. 202; 7 St. Rep. 332, was violated.- This claim of defendant does not correctly state the charge. The court, in the course of its charge, said that if there were two causes which might produce the injury, and it cannot be said which of the two was the cause of it, and the defendant was liable only for one, the plaintiff cannot recover; “but if there were two causes of the injury, both contributing, defendant would be liable, if the injury could be traced to either one of those causes,—if the injury was the proximate and direct result of the negligence for which the city is liable.” This was, in substance, correct. Searles v. Railway Co., 101 N. Y. 661; Ring v. City of Cohoes, 77 N. Y. 83, 88; Goff v. Village of Little Falls; 47 St. Rep. 729. At the close of the charge the following occurred:

“Defendant’s Counsel: If the injury was the result of freezing water on the sidewalk the night before, defendant is not liable. The Court: If that was alone the cause of the injury, and the ice there before did not contribute in any way to it, that is true. Defendant’s Counsel: We except to that'part modifying it. Plaintiff’s Counsel: Suppose the ice was formed from the water in the street; would there not be a modification of it? The Court: If it resulted solely from the ice formed the night before, the defendant is not liable. If it was the result of that, and the accumulation of ice that remained there, the jury may find defendant liable.”

To this no exception was taken. It evidently referred to the rule previously laid down, which was substantially correct.

The court refused to charge several requests, but the law applicable had been already sufficiently stated. “Were several proximate causes contribute to an accident, and each is an efficient cause, without which the accident would not have happened, it may be attributed to all or any of them; but it cannot be attributed to a cause, unless without its operation the accident would not have happened.” Ring v. City of Cohoes, 77 N. Y. 83. The court, in effect, charged that the plaintiff could not recover unless the injury was the proximate and direct result of the negligence for which the city was liable. Upon the question of contributory negligence, the court, in effect, charged that the plaintiff, in view of the icy and dangerous situation, was bound to exercise such care and prudence as prudent persons ordinarily would in passing over such a place, and left it to the jury to say whether she was going with that care and caution that the circumstances required. The court was not required to further* emnhasize .the duty of the plaintiff.

No other questions in the case calls for special consideration. .We find no good ground for reversal.

Judgment and order affirmed with costs.

All concur.


author: BROWN, P. J.

text:
    The People ex rel. John Vanderhoof, App'lt, v. George W. Palmer, as Comptroller, etc. Resp't.
    (Supreme Court, Appellate Division, Second Dept.,
    Filed April 28, 1896.)
    1. Civil service—Chapter 144 or 1866.
    The limitation, prescribed by chapter 144 of 1886, upon the power of removal, does not prevent the abolition of the position held by the officer, nor his discharge from the public service, if there is no work for him to perform.
    2 Mandamus—Denial.
    The only relief that a relator is entitled to, where the allega^ tions in the application are denied, is an alternative writ, which will enable him to have tried and determined the question whether the position which he held has honestly and in good faith been abolished.
    3. Same—Laches.
    Writ of mandamus will he refused where the delay in applying for it is unreasonable.
    4. Same—Explanation.
    Tn such case the applicant should furnish some explanation for the delay.
    _ Appeal from a judgment denying a peremptory writ of mandamus.

      James D. Bell, for app’lt; Joseph A. Burr, corp. counsel., for resp’t.
   BROWN, P. J.

It appears from the petition of the relator that he is a veteran volunteer fireman, holding an honorable discharge from the Metropolitan fire department, and that prior to January 30, 1895, he was a cleric in the tax and,assessment bureau in the department of finance in the city of Brooklyn. Under provisions of chapter 144, Laws 1866, he was protected from discharge from such position, except for cause, and after a hearing. On January 30,1895, he was discharged from the public service by the respondent on the ground that the position he held had been abolished. The relator alleges that the position was not in fact abolished, and he claims that his removal was illegal, and in contravention of the express provision of the law referred to. The respondent, in his affidavit read in opposition to the application for the writ of mandamus, alleges that the position held by the relator was abolished, and that the relator was discharged for the reason that there was no work for him to perform. :

The question whether the respondent’s act in abolishing the position held by the relator was done in good faith, or was color-able only, was one of fact, which it was essential should be determined before the court could grant the writ applied for. . The limitation prescribed by the act of the legislature referred to, upon the power of removal, did not prevent the abolition of the position held by the relator, nor his discharge from the public service, if there was no work for him to perform; and the only relief that the relator was entitled to, upon the papers before the court, was an alternative writ, which would have enabled him to have had tried and'had determined the question whether the position which he held had honestly and in good faith been abolished. For this reason we should be compelled to affirm the order appealed from. But we are of the opinion that the application was prpnerly denied because of the long delay in instituting this proceeding. The writ of mandamus is a discretionary writ, and may be refused where the delay in applying for it is unreasonable; and. we are of the opinion that where a person claims to be entitled to hold a position in the public service of the state or city, and is unlawfully discharged therefrom by his superior officer, he should assert his right to be reinstated promptly. We do not mean to be understood as deciding that the term of ten months is an absolute bar to the proceeding. In many cases neither that period, nor a longer period, would be so treated, but where there is such delay the applicant should furnish some explanation for it. The reinstatement of a clerk so long after his discharge would, to some extent, probably disarrange the public service, and that fact must be given some, weight in deciding applications of this character. In this case the relator furnished no explanation his delay in commencing this proceeding, and for this reason we think the discretion of the court was properly exercised in refusing the writ.

The order must be affirmed, with ten dollars qosts and disbursements.

All concur.


author: BEEKMAN, J.

text:
    People ex rel. Benjamin Bassett, Pl'ff, v. Warden of the City Prison, Def't.
    (Supreme Court, New York Special Term,
    Filed April, 1896.)
    1. Legislature—Power.
    Having' the power to prohibit the liquor traffic, the legislature may impose any conditions it sees fit upon its exercise, and is the sole judge of the reasonableness of any restriction which it may deem proper to impose.
    '3. Excise—Giving awat rood.
    The question whether the prohibition against the giving away of food where liquor is sold is reasonable or not, does not come within the held of judicial inquiry.
    3. Same.
    Section 31, chapter 112 of 1896, is operative with respect to persons holding licenses under the former excise law.
    Habeas corpus ag’ainst the warden of city prison.
    Samuel Untermyer, for relator; John F. McIntyre, for res’pt.
   BEEKMAN, J.

The relator seeks to be discharged on habeas corpus from imprisonment under a commitment made by a city magistrate for violation of subdivision E. of section 31 of chapter 112 of the Laws of 1896, commonly called the “Raines Law,” on the ground that he gave away food to be eaten on certain premises where liquor was sold. The relator has demurred to the return, and challenges the validitv of the commitment on the ground that the section in question, at the time of the alleged offense, was not operative in respect to persons holding licenses under the old excise law, within which it is admitted that the relator comes. If, therefore, the construction of the law for which hen contends is sound, it must follow that the commitment is void, and that he should be discharged from arrest.

The act in question was undoubtedly intended to be a complete embodiment of the policy of the state in respect to the regulation of the liquor traffic, and to express all of the conditions which the legislature considered necessary or desirable by way of limitation in order to safeguard the public interests. The enactment rests for its validity upon the police power of the state, which the courts of this state have sustained in its relation to this traffic, to the extent, even, of absolute prohibition. Wynehamer v. People, 13 N. Y. 378; Bertholf v. O’Reilly, 74 N. Y. 509-520. Having the power to prohibit, the legislature may impose any conditions it sees fit upon its exercise, and is the sole judge of the reasonableness of any restriction which it may deem proper to impose. Whether, therefore, the prohibition against the giving of food where liquor is sold is reasonable or not does not come within the field of judicial inquiry. The difficulty in determining whether this particular prohibition is operative in respect to the class of licensees to which the relator belongs grows out of what seems to be, upon their face, contradictory or inconsistent provisions of the statute. Section 31 provides as follows

“It shall not be lawful for any corporation, association, co-partnership or person which, or who, has not paid a tax as provided in section 11 of this act, and obtained and posted the liquor-tax certificate, as provided in this act, to sell, offer or expose for sale, or give away liquors * * * in any quantity whatever, any part of which is to be drunk on the premises of such vendor or in any outbuilding, booth, yard or garden appertaining thereto or connected therewith. It shall not be lawful for any corporation, association, copartnership or person, whether ■having paid such tax or not, to sell, offer or expose for sale or give away any liquor: (A) On Sunday. * * "x" Or (E) .to sell or expose for sale, or have on the premises where liquor is sold, any liquor which is adulterated with any deleterious drug, substance or liquid which is poisonious or injurious to health; or to give away any food to be eaten on such premises.”

Talcing this section by itself, the meaning is perfectly plain. The traffic in liquor is absolutey prohibited to all persons who have not paid the tax and obtained the certificate for which section 11 provides; and even then certain restrictions are imposed, -limiting the business in respect to time, place, and manner, which are in-x tended to be unconditioned in their operation. The prohibition is absolute in terms, and would have been sufficient without the assertion, “whether having paid such tax or not,” a phrase which" was evidently employed to give special emphasis to the expression of a purpose that under no circumstances should the giving away of food be associated with the sale of liquor in the same place. As section 45 provides that this act shall take effect immediately, there would, of course, be no difficulty in holding that this prohibition was immediately operative, and had been violated by the relator, were it not for certain other provisions of the statute, which-will presently be referred to.

In enacting a law which was intended to put into operation an entirely new system, the legislature was confronted with the fact that an enormous traffic in liquor existed in the state, authorized by licenses granted by commissioners of excise under the authorit^ of, and subject to restrictions and regulations contained in, existing statutes. The new system demanded the appointment and] qualification of a large number of new officers, and the organization of 'their work, before the tax could be received and the certificate issued, which was essential to legalize the1 traffic. It was necessary, therefore, that the act should go into effect immediately, so far, at least, as the administrative portions of it were concerned. At the same time it was also evident that considerable time would have to elapse before the organization would be complete, and that, unless some temporary provision should be made for the continuance of the traffic, the whole business would be abruptly suspended, to the ruin of thousands engaged in it, and the inconvenience and privation of a large portion of the people. Furthermore, justice demanded that a reasonable time should be afforded to those whose fortunes were embarked in the trade to prepare for the impending change in the conditions under which it could be conducted, and to take such steps as prudence might suggest to minimize inevitable loss. Under the influence, doubtless, of these considerations, the following provisions were inserted in the law:-

By section 3 it is provided that from and after the 30th day of April, 1896, all boards of excise in the state are abolished, and that the rights, duties, and powers of all boards of excise, and of all commissioners of excise, and of the clerks and all other employes shall cease and terminate from that date; also, that no licenses to sell liquor should be granted, after the passage of the act, by any such board of excise, to extend beyond the 30th day of April, 1896, and that the fee for such license to so expire shall be in proportion to the fee for one year. Section 4 provides as folows:

“Every license heretofore lawfully granted by a board of excise which is valid when this act takes effect, shall be and remain valid for the term for which it was granted, except as herein provided, unless sooner canceled under the provisions of the law, under which it was granted, and the rights and liabilities of the holder thereof during such term shall be governed by the laws in force immediately prior to the taking effect of this act, except as otherwise expressly provided in this act, but such license shall cease, determine and be void from and after the 30th day of June, 1896; and the tax herein provided to be assessed shall not be levied o? collected upon the business of any corporation, association, co-partnership or person holding an unexpired license until the time lawfully fixed for the expiration of such license, or its termination as herein provided unless such license be sooner canceled.”

In a subsequent section the powers and duties of boards of excise, in respect to the prosecution of violations of pre-existing laws, and the transfer, surrender, and revocation of licenses, are vested in the special deputy commissioners to be appointed under the act for the period intervening between the 30th day of April, 1896, when such boards are abolished, and the 30th day of June, 1896, when all licenses are terminated. o

The prohibition, therefore, which the first-paragraph, of section 31 contains, forbidding any traffic in liquor without previous 7iavment of the tax for which the statute provides, is necessarily subject to these special provisions, which, in continuing existing-licenses, and authorizing new ones to be issued up to the 30th day of April, 1896, sanction the traffic under the old system until the license has terminated as provided in the act. Until -that time arrives, the holder of a license transacts the business which it authorizes pursuant to the laws in force at the time of the passage of the act in question, and “his rights and liabilities” in respect thereto, are governed by such laws. While the words “rights and liabilities” seems to express, in a general way, all the privileges which the licensee enjoyed, and every penalty to which he was subject, under-\hose laws, the important qualification is added, “except as otherwise expressly provided in this act.”

It is here that the divergence of views logically commences in respect to the scope of the prohibitory regulations contained in section 31, which forbids, among other things, the giving away of food on premises where liquor is sold. It is claimed, on behalf of the relator, that no such restriction or prohibition existed in the former laws, that the holder of a license at the time the new law was passed enjoyed the right to do the act thus prohibited, and that, until his license is terminated, he is, therefore, authorized to continue to do so by force of the guaranty above referred to. It is also claimed that the clause, “except as otherwise expressly provided by this act,” refers to the change of jurisdiction from boards of excise to special deputy commissioners of excise, who, by section. 9, are to exercise the powers and perform the duties of the former in respect to the transfer, surrender, or revocation of any license, and the prosecution of offenses for violation of law under any law existing immediately prior to the passage of the act. But this construction is altogether too narrow, and arbitrarily puts a limit upon the operation of an exception which, I think, was intended to cover all provisions of the statute which are inconsistent with or vary from pre-existing law, and which under the system, are susceptible of immediate enforcement without disturbance of the general plan of the statute. In fact, in no other way can due effect be given to the mandate that the act shall take effect immediately. This view is strongly reinforced by section 44 of the act, which provides as follows:

Sec. 44. Laws, Grants and Charters Repealed—Saving Clause. The provisions of any special or local law, grant or charter in conflict with this act are hereby repealed and annulled. Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed, but the provisions of any such relating to the transfer, cancellation or revocation of a license, the collection of penalties or prosecutions for the violation of the law, shall continue in force as to any license which has not expired0 at the time this act takes effect, until the expiration thereof, subject to 'the provisions of this act in relation to the performance of the duties of boards of excise or excise commissioners by special deputies or special agents designated by the state commissioner of excise. The repeal of any law by this act shall not revive a law repealed thereby, but such repeal shall not impair any act done or right accruing, accrued .or acquired', liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, under or by virtue of any law so repealed, and the same may be asserted, enforced, prosecuted or inflicted as fully, and to the same extent, as if such law had not been repealed. All actions and proceedings, civil or criminal, commenced under or by virtue of a law so repealed, and pending immediately prior to the talcing effect of this act, may- be prosecuted and defended to final effect in the same manner as they might have been under the laws then existing, subject to the provisions of this act authorizing special deputy commissioners or special agents designated by the state commissioner of excise to perform the duties of boards of excise.

The schedule referred to in the section includes, and thus apparently repeals, the entire law under which the liquor traffic was conducted and regulated before the passage of the act, with the following exceptions: (1) The provisions relating to the transfer, cancellation, or revocation of a license; (2) the collection of penalties or prosecutions for the violation of the law, in respect to any license which had not expired, until the expiration thereof. Taken in connection with the provisions of sections 3 and 4 of the act, which recognize the continuance of such licenses after the passage of the act, and which declare that “the rights and liabilities” of the holders of such term, “shall be governed by the laws in force immediately prior to the taking effect of this act,”- it must be confessed that the saving of the repealing section is unfortunately narrow, and most inartificially expressed. It is, however, in this condition, a very strong indication of an intention that the sanction given by section 4 to the contined traffic, under licenses issued under the old law, is not to be extended beyond what the necessities of the case may reasonably require.

tinder the former law the license expressed the class of traffic which the licensee was permitted to carry on, and, Avhilc prohibitory regulations, in many respects similar to those which are embraced in section 31 of the present act, are there found, they are appropriately stated as regulations of an already licensed traffic. The rightsj then, which are reserved to existing licensees under tthe present law are those which are conferred in and by the license, to be -exercised according to the license, and adso the quasi property attributes with which.the statute has some extent invested the license itself in respect to its transfer, while the liabilities under the old law which are continued are those which are immediaetly associated with misconduct in respect to that which has thus been reserved, or which has not been obviously replaced, .by some express provision of the latter law. The saving of rights under the license does not necessarily include- freedom from any other prohibitory regulations than those which are contained in the former law. Such regulations were not expressed in the grant of the privilege, or as a part of the license, but are distinct statutory regulations affecting the manner in which the privilege already conferred shall be used. If it be claimed that this construction is narrow or close, the answer seems to he that such a construction is necessary, and therefore legitimate, in order to give due weight to every portion of the act, and proper effect to'the general intent of the legislature which the law as a whole appears to disclose.

In this view of the matter it may fairly he held that what the legislature has seen fit in this act to declare shall not he done by those employed in the liquor traffic was intended to, and therefore does, extend to all who are thus engaged, under whatever form of authority. The prohibitions contained in section 31 with which we have been dealing are also supposed to be founded upon considerations of the public welfare, and, unless an intention to the contrary is obvious, should be held to apply to every case coming within the terms of the definition. In addition to this, a construction of a law should always be avoided, if possible, which, all other things being equal, makes it lawful for one, but unlawful for another, to do precisely the same thing. If the construction asked for by the counsel for the relator should be adopted, this singular and certainly most undesirable condition would exist, that between the 1st day of May and the 1st day of July, 1896, during which liquor dealers in this city will be lawfully engaged in the business, some under the old licenses, and others under the new liquor-tax certificates, it” would be lawful for the former to sell between" 12 and 1 o’clock on Monday morning, to maintain shades and screens before their windows, and to give away food, while it would be unlawful and criminal for the latter to do the same things. It is not reasonable to suppose that the legislature intended to sanction a condition so grotesqque as this, or so mischievous in the contempt for the law which it would naturally inspire. .While it was the purpose of the act to protect those who were engaged in the traffic at the time it was passed, it certainly was not intended to give them any such exclusive privileges.

I am thus led to the conclusion that the provisions of section 31 are now in force, and that the relator was properly committed by the magistrate before whom he was arraigned. The lack of precision of statement, and of proper co-ordination of the different provisions of the statute with each other, renders the task of construing it a difficult one, and the margin for differences of opinion as to its meaning is, therefore, a wide one. I think, however, that the interpretation which I have given it is more consonant with the spirit of the law and its general intent, and should,'therefore, he adopted. The writ is dismissed, and the prisoner remanded.

Writ dismissed, and prisoner remanded.


author: PARKER, P. J.

text:
    Henrietta Church, Resp't, v. Rhoda Shultes et al. App'lts.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. Landlord and tenant—Adverse possession.
    Where the landlord sells the interest of his tenant in the demised premises under an execution, the purchaser enters under the lease and his possession is not averse to that of the landlord.
    2. Parties—Action to recover land.
    In an action to recover possession of land, the son and daughter of the person who claims the right by adverse possession are proper parties defendant, where the son is working the farm and the daughter lives in and has charge of the house and takes care of the alleged owner.
    Appeal from a judgment in favor of plaintiff
    W. & G. W. Youmans (W. Youmans, of counsel), for app’lts; Hun & Johnston (Marcus T. Hun, of counsel), for resp’t.
   PARKER, P. J.

In this action the record title from Stephen Van Rensselaer is conceded to be in the plaintiff, and defendants, to succeed in their defense, must show a title by adverse possession in Rhoda Shultes. On February 15, 1858, Rhoda Shultes took a deed from Cyrus B. Shultes of the premises now occupied by her, which are a part of lot Ho. 308 in the manor of Rensselaerwyck, and which lot had, on July 26, 1803, been leased, by a perpetual lease, by Stephen Van Rensselaer to Shoubal Bouton and Shoubal Bouton, Jr. Cyrus B. Shultes had acquired his interest in the land by a conveyance from Jacob I. Shultes, but it does not appear that Jacob had in any manner succeeded to the interest of the Boutons, or that he had any title whatever to the premises which he so conveyed. He had, however, taken a deed from one Lincoln, dated April 1, 1851, in which is recited the fact that the premises were a part of, lot Ho. 308, and were “subject to its proportion of certain annual rents, and of certain covenants and conditions made and reserved by Stephen Van Rensselaer, Esq., in his original lease of said lot No. 308.” The same fact was recited in the conveyance from Jacob to Cyrus, but the recitation was not, as I understand it, in the deed from Cyrus to Rhoda Shultes. Jacob was the husband, and Cyrus was the son, of Rhoda Shultes, and they all resided on the premises in question. It appears, therefore, that both Jacob and Cyrus Shultes, bv the express terms of their deeds, entered into possession of the premises subject to the Van Rensselaer lease, and the conveyance to Rhoda could not vest in her any other or greater interest. On December 8, 1852, Van Rensselaer had secured a judgment against Jacob Shultes for $302.80, which was a lien upon his interest in the premises when he conveyed to Cyrus, and Rhoda, of course, took her conveyance subject to that lien. Such judgment was not obtained for rent due upon the lease of lot No. 308, but was upon a claim having no connection with Jacob Shultes’ character as a lessee of that lot. Afterwards, in 1856., on execution issued upon such judgment, Jacob’s interest was sold, and conveyance subsequently given by the sheriff of the premises -in question to William Campbell, and on the 21st day of January, 1861, Campbell executed a deed of the premises to Ehoda Shultes. She seems to have taken this conveyance from Campbell as a protection to her interest acquired from Cyrus. . It is also conceded that no rent has ever been paid by Rhoda Shultes.

Defendants’ counsel claims that by virtue of the deed from Campbell January 21, 1861, Rhoda Shultes is to be deemed as having then entered into possession of the premises adversely to Van Rensselaer’s title, and that at the expiration of twenty years therefrom her title became perfect by adverse use. His theory is that, by reason of Van Rensselaer’s action in selling Jacob Shultes’ interest in the premises, any relation of landlord and tenant which may have existed between them was'terminated; that the lease as to such premises was forfeited; that any one entering under a conveyance based upon a sale at once entered upon an adverse use; that the relation of landlord and tenant cannot be said to have ever existed as between such a purchaser and Van Rensselaer; and that, therefore, the provisions of section 373 of the Code have no application. Conceding that Rhoda Shultes took possession under the deed from Campbell, and yet we aré of the opinion that she must be deemed to have entered under the lease.

The defendants’ counsel concedes that Jacob Shultes stood in the relation of a tenant to Van Rensselaer, and it is very plain that he must be so considered. Bradt v. Church, 110 N. Y. 537; 18 St. Rep. 551. It was his interest as such tenant, and that only, which was sold on execution, and which passed under the conveyance to Ehoda Shultes. She acquired the same interest which he had,-—took the benefits of his rights, and the burden of his obligations. Surely none of the interest of the lessor can be deemed sold by such a proceeding, even though the judgment creditor was the lessor. He assumes to sell no more than the lessee’s interest, and wé cannot perceive any difference in effect between this sale and one where the judgment creditor was an utter stranger. The effect of such a sale is not to “forfeit” the lease, but simply to change the tenant. The relation between the landlord and the party sold out is terminated, but the purchaser takes his place, and the lease is still in full force. In short, such a transfer by execution and sale is no different in effect from a conveyance by the lessee to another, and whoever enters must assume possession as a tenant of the lessor. Under this view of the case, Rhoda Shultes entered as tenant, and her possession, under the provisions of section 373 of the Code, could not be deemed adverse, until the expiration of twenty years thereafter. Then, by reason of the nonpayment of rent, it may have become adverse, but since such date a sufficient time has not elapsed to ripen it into a title, and therefore her defense against the record title has failed.

It is further claimed by defendants’ counsel that only Rhoda Shultes should have been made a party, and that as to the other defendants the action should be dismissed. All the parties were living upon the land. The defendant Cyrus Shultes was working the farm, and the defendant Philena living in and having charge of the house, and caring for their mother, Rhoda, who is evidently too old and feeble to care for herself. We think, under the circumstances, they were properly joined in this action.

Our conclusion, therefore, is that the judgment must be affirmed. Judgment affirmed, with costs.

All concur.


text:
    John L. Harris, Resp't, v. David Gregg, as Committee, etc., App'lt.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. New trial—Case.
    Upon a motion made for a new trial upon the ground of surprise, a case is not needed, but the motion may be made upon affidavits.
    2. Same.
    A motion for a new trial upon the ground of newly discovered evidence must be made upon a case.
    3. Same.
    A motion for a new trial for the reason that, upon all the evidence, a nonsuit is improper, can be made only on a case and exceptions.
    Appeal from an order granting a motion for a new trial after a judgment in favor of defendant.
    J. W. Atkinson, for app’lt; Thomas O’Connor, for resp’t.
   PARKER, P. J.

If the motion for a new trial is to be deemed made upon the ground of newly-discovered evidence, it is clear that it should have been made upon a case. Bantleon v. Meier, 81 Hun, 162, is a plain authority to that effect. The arm ell ant urged that objection upon the motion, and it seems to us to have been well taken. If. we consider the motion made upon the ground of surprise, a case was not needed. Such a motion mav be made without a case, and upon affidavits. Code, § 998. But the affidavit- upon which the motion is founded does not present facts sufficient to warrant the granting of a new trial upon that ground. A careful reading1 of the affidavit will disclose that fact, and an analysis of its defects is not necessary. In re Ramsdell, 20 St. Rep. 466; Anderson v. Bank, 66 How. Prac. 8; Jackson v. Roe, 9 Johns. 77; Hatfield v. Macy, 52 How. Prac. 193. Moreover, the motion was not granted on any such grounds. The oninion of the county judge shows that upon the trial before him plaintiff had sought to recover on the ground that he and dcfendant were tenants in common of the crops sued for. That claim the county judge had overruled, and nonsuited the plaintiff. Upon the argument of this motion he seems to have reached the conclusion that they were tenants in common, and that, therefore, the “plaintiff actually had a cause of action which had miscarried.” Upon that ground he grants a new trial. In effect, that is granting a new trial for the reason that upon all the evidence the non-suit was improper. Olearly, in such a case, the motion could be made only upon a case and exceptions. Code, § 997. This case cannot be considered as a motion on the judge’s minutes, because such a motion must be made at the time of the trial. Code, § 999. And at the close of the trial such a motion was not made, but, on the contrary, time was given the plaintiff to make a case. The appellant urged those objections on the motion, and they should have prevailed.

Order of the county judge reversed, with ten dollars costs and disbursements, without prejudice to plaintiff’s making a motion in the county court for a new trial upon the proper papers.

All concur.


text:
    Watson E. Roberts, as Receiver, etc., Resp't, v. Wells & Company, Limited, App'lt.
    (Supreme Court, Appellate Division, Third Dept.,
    Filed April 14, 1896.)
    1. Contracts—Construction.
    Under an agreement by defendant to advance money to plaintiff, on his statement, to pay his men, defendant is not bound to advance money to pay for plaintiff’s own services.
    2. Damages—Breach oe Contract.
    Where, in an action for breach of contract whereby plaintiff was to manufacture and deliver to defendant a number of chairs, upon the latter’s covenant to advance money with which to buy material and .pay plaintiff’s men, some of the chairs had been delivered and others were in process of construction at the time of the alleged breach, which plaintiff held and refused to give up on defendant’s demand, the defendant should not be charged with the whole expense of the work done under the contract, unless he is credited with the fair value of the undelivered material in process of construction.
    Appeal from a judgment in favor of plaintiff.
    Roberts & O’Brien, for app’lt; Carver, Deyo & Jenkins, for resp’t.
   PARKER, P. J.

George T. Ells, doing business under the name and stvlemf the Ells Manufacturing Company, entered into a written contract with the defendant, dated" April 4.. 1893, the terms of which are substantially as follows: Defendant orders Ells to manufacture and deliver to it fifty dozen chairs, for which it agrees to pay a price to be thereafter 'agreed upon. It further agrees to advance to Ells money sufficient to buy the timber for such chairs; such advances to be credited to it on the purchase price of the chairs. It also agrees “to advance bim an account weekly to pay men; the amount as per statement of wages presented by Hr. Ells.” It was further agreed that an exact account of the cost of chairs was to be kept by Ells, and that the price should be agreed upon after the order was turned out, and also the price of future orders; also, it was agreed that the defendant should have the exclusive sale of the “Ells Elastic Back Rocker and Chair.” After some delay, Ells entered upon the performance of this contract. Up to November 11, 1893, he had manufactured and delivered to the defendant 483 chairs, and also had in process of construction, but not completed, a considerable number of others,—just how many does not appear. The defendant furnished more than sufficient timber to manufacture the 600 chairs. It also, from time to time, up to such date, advanced to Ells, in response to calls made by him, the sum of $740.96, to be applied upon wages of men employed ¡upon the work. The defendant then refused to advance any more money, claiming that it had already advanced more than the value of the chairs received. Ells thereupon ceased work on the chairs. Soon afterwards this plaintiff was appointed a receiver of all his property and effects, and, as such receiver, brings this action to recover against defendant damages for a breach of contract.

It appears from the statement rendered by Ells (which is found on page 76 of the appeal book), and it is not disputed by the plaintiff, that the total demands made by Ells for wages, up to November 11th, amounted to $1,150.96. In this amount there was included the sum of $444, as wages to himself at the rate of $3 per day. The amount, therefore, used for wages, other than to himself, up to such date, was $706.66. The defendant had advanced, up to such date, the sum of $740.96, as also.appears from such statement. Therefore, unless defendant was obligated, under the contract, to advance wages to Ells himself, it was not in default at the time it ceased paying. It had, up to that time, performed all that it agreed to do, and no breach of its contract had occurred when Ells stopped his work under it. It was Ells’ duty, under the contract, to at least continue the work, and furnish the chairs, so long as defendant actually advanced the funds which it had agreed to advance. We are of the opinion that under the contract the defendant was not bound to advance money to pay for Ells’ services. The phraseology of the contract is quoted above. In substance, it is to advance to Ells weekly, and on his statement, wages to pay the men. The idea that money was to be advanced to Ells for his own services is not to be found in the language used. On the contrary, it is excluded. It is to pay the men, — evidently men ern. ployed bv Ells,—and it is to pay the wages of men so employed. Ells could hardly be considered as employing himself at wages to be fixed by himself, nor have we any idea that such was the intention of the parties to the contract. Whatever labor Ells put into the construction of those chairs—whether as a workman at the bench, or as an overseer in the shop, or as a purchaser of materials—would properly be figured in when the cost of the chairs was ascertained, and it would be an element in fixing the price; but it was not a part of the expense which the defendant was obligated to advance during the process of the work. Nor is there anything in the conduct of the defendant, acting under the contract, that indicates a different interpretation of it, although Ells’ services were in fact included in the weekly statement rendered. That statement was for a gross amount, and did not, on its face, carry notice to defendant that anything for Ells’' services was being asked for. It appears, therefore, that when he stopped the work Ells was demanding from defendant more than he was entitled to, and no breach of the contract on defendant’s part has been shown.

If, however, it be conceded that a breach of contract by defendant has been shown, it seems that the referee has fallen into an error in estimating the damages which Ells sustained. Ells was in the business of manufacturing this kind of a chair when this order for 50 dozen was given. He entered upon the performance of the work, and, up to November 11th, had, as the referee finds, expended $1,335.93 for labor and material therein. At that date he ceased the work; having delivered to defendant 483 chairs, and having on hand a large amount in process of construction. This appears from the statement rendered by him to defendant in November, and is found on page 79 of the appeal book. The value of that material, as then fixed by him, was $692.80. All this property was retained by the plaintiff, who refused to give it up on the defendant’s demand. The referee, in making up the damages against defendant, charges it with the cost and expenses of all work done by Ells under the contract, amounting to $1,335.93. He gives the defendant credit for the money paid by it on account of wages, $740.96, and he gives it credit for $45, value of chairs and materials retained by plaintiff; and for the balance, of $549.97, he orders judgment against defendant. Manifestly, if the defendant is to be charged with the whole expense of the work done under the contract Ells should be charged with the fair value to him of the material in process of construction, which he never delivered, and upon which much of the work charged against defendant was done. In any method adopted for ascertaining what Ells has actually lost by defendant’s breach of contract, the fair value of the property so retained by him for the purpose^ of being finished into chairs would seem to be an element which should be charged against him. As hie expresses it in the statement sent, “There is enough stuff ready to put up (or nearly so) 150 chairs;” and he values it, for such'a purpose, at $700 or $800. Surely, such property was worth more than $45 to Ells. •He was in the business of making such chairs, and should not be allowed to insist on retaining such property, and yet treat it as only useless wood. Plainly, he had not sustained a loss to the extent of the labor and material he put on that lumber, if at a slight expense, he could convert it into 150 chairs. Tet the referee, as appears from his refusal to find defendant’s fourth request, has so considered it, and has made up Ms damages on that theory. We are of the opinion that the measure of damages so arrived at by the referee is an erroneous and unjust one.

These conclusions require that the judgment should be reversed. Judgment reversed, and a new trial ordered; costs to abide the event. All concur.