text:
    Henry Constant, App’lt, v. John T. Barrett, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Jurisdiction — District court — Summary proceedings.
    Under section 2244 of the Code, as amended in 1893, the power of the district court, if any, to entertain equitable defenses, is limited wholly to defensive purposes.
    2. Mortgage — Right of mortgagee.
    A lessee who, while in possession of the demised premises, purchase a past due mortgage upon the leased property without any notice to or actual consent of his landlord, does not become a mortgagee in possession.
    Appeal from a final order, dismissing the petition.

      Charles Strauss, for app’lt; William H. Sage, for resp’t.
   Bookstaver, J.

— This proceeding was submitted upon an admitted state of facts, and was dismissed by the justice. It is admitted the plaintiff is the landlord of the premises in question, and the respondent is the lessee in- possession under a lease having some years to run; that, while in possession under his lease, the respondent purchased a bond for $10,000, secured by a mortgage-upon the premises, made by a predecessor in title of the plaintiff; that in the month of November, 1894, the principal of this bond became due by reason of the non-payment of the semiannual interest for more than thirty days after the time it was payable ; that on the 1st day of December, 1894, a quarter’s rent under the lease became due and payable, but the respondent refused to pay the same, claiming that he was a mortgagee in possession of the premises, and was not liable for the rent until the amount due upon the mortgage was fully paid, together with interest. The plaintiff then brought this proceeding to recover possession of the premises, upon the ground of nonpayment of rent; the respondent set up as a defense the claim above stated'; and the justice thereupon dismissed the proceeding, mainly upon the authority of Madison Ave. Baptist Church v. Oliver St. Baptist Church, 73 N. Y. 82. It is. clear that no such defense would have availed the respondent before the amendment to section 2244 of the Code of Civil Procedure, 1893, whereby the tenant was allowed to set up a statement of any new matter “constituting a legal or equitable defence or counterclaim," and, further, that “such defence or counterclaim may be set up and established in like manner as though the claim for rent in such proceedings was the subject of an action.” This amendment was apparently made to meet some special emergency, and without any regard to the general scheme adopted in summary proceedings, and with less though as to how equitable defenses were to be established or enforced in district courts or courts of justices of the peace or other officers of limited jurisdiction, where by far the larger number of summary proceedings are determined. District courts are of statutory creation, with limited jurisdiction, specially conferred. Such jurisdiction must not depend upon inference or intendment. Even the formal judgment in such courts is prescribed, and this whether the proceeding is tried by the court with or without a jury. The amendment above referred to confers no equity jurisdiction upon these courts. There is no provision anywhere for special verdicts or findings by the court or jury, and nothing authorizing a decree adjusting or enforcing the equities between the parties. It may, therefore, well be doubted whether these courts have power to entertain equitable defenses even after that amendment, as it is not at all clear how such defenses could be maintained or enforced.

In the case under consideration, it certainly would have no power to grant what would be the full measure of relief, provided the respondent was entitled to such relief on the facts, to wit, a decree allowing him to retain possession of the premises until his mortgage with interest was paid; nor has it the power to appoint a receiver to collect the rents. But, without finally determining the question of jurisdiction in this case, it is manifest that if district courts have any power to entertain equitable defenses, then, in the nature of things, it is wholly limited to defensive purposes, and is available only as far as may be necessary to make the same effective ; in other words, it is a shield for defense, not a sword for attack, and is somewhat in the nature of a plea of title. Of course, many grave questions may arise even with this interpretation of the amendment, as for instance : How far is the district coui't to inquire into the equitable defense ? How is it to be established? What is the effect of the determination of the justice in such case? Is his determination res adjudícala as to the defense, so that, if it is necessary afterwards to inquire into the matter in a court of record, that court will be bound by its decision ?

But the only question we have to determine on this appeal is whether the facts above stated warranted the justice in concluding tnat the respondent was a mortgagee in possession. If he was, then it must be by sheer force of the fact that, while in possession as lessee, he purchased a past-due mortgage upon the leased property without any notice to or actual consent of his landlord. It is a general and well-settled rule of law that a tenant cannot dispute his landlord’s title. One of the effects of this rule is that if, after a tenancy has commenced, the tenant acquires an adverse right to his landlord, he is bound to surrender possession before he can be permitted to assert that right, which he did not do in this case. It is contended, however, that the claim asserted by the respondent is not adverse to the landlord, but in subordination to his title. It nevertheless deprives him of the beneficial use of his property, and annuls or suspends the lease, and changes the relation between the parties without the consent of one of them. Respondent claims that this consent is not necessary, relying upon Madison Ave. Baptist Church v. Oliver St. Baptist Church, supra, and, at first sight, certain statements in that opinion would seem to warrant this conclusion, for in the course of that opinion it is said:

“ While, under our present law, a mortgagee cannot bring ejectment to obtain possession of the mortgaged premises, being lawfully in possession under a mortgage upon which some amount is due, he can retain such possession against the mortgagor until such amount has been paidciting authorities. “It is ordinarily sufficient that a mortgagee is lawfully in possession after default upon the mortgage. The court will not tlien deprive him of the possession until his mortgage has been paid. The possession need not be given under the mortgage, nor with a view thereto.”

But the postulate underlying that case, in the light of which the whole opinion must be read, was that the consent of the owner had been given to the possession of the property by the defendant in that action. It is true that the deed under which the defendant claimed was held to be void by the court, but, while void as a deed, it was nevertheless the highest evidence of the consent of the owner to the possession of the property by the defendant, not as lessee, but generally, and including that of a mortgagee. So that it is not an authority for holding that a mortgagee may go into the possession of the mortgaged premises without the consent of the landlord. Indeed, Howell v. Leavitt, 95 N. Y. 617, expressly holds that such consent is necessary, and' in the course of the opinion it is stated:

“ In most of the cases which have upheld the right of the mortgagee, his possession was obtained with the consent, express or implied, of the owner of the land, although in some of them the mode of acquiring possession did not distinctly appear, and in many the rule is stated quite broadly and with little of restriction or limitation;” citing, among others, Madison Ave. Baptist Church v. Oliver Baptist Church, supra. “* * * The possession requisite for such a defense must have about it at least some basis of right as against the owner evicted, — often his assent or acquiesence may be inferred from slight circumstances, — but the right cannot be founded upon an absolute wrong. To hold that one who has merely a lien, and but an equitable right, can get a legal one by the commission of a trespass, would be neither logical or just. It is easy to understand how some of the very broad statements of the right of a mortgagee in possession originated. Before the Revised Statutes, and in the earlier consideration of mortgage relations, the mortgagee, after condition broken, was deemed to have the legal estate in the land. Of course, his entry upon the premises would be the entry of an owner, and both rightful and lawful, if affected without a breach of the peace. His possession, however acquired, unless by actual violence, was as lawful as that of an owner taking possession of his own. But when the Revised Statutes denies him an action of ejectment, and the progress of judicial decision deprived him of the leased estate in the land, and left him with only a lien, it follows that, after as well as before condition broken, the mortgagee remained the owner, and could not be lawfully deprived of his possession except by a valid foreclosure of his own consent, express or implied.”

In this case there was neither express nor implied consent. It is true the respondent was in possession of the premises by the consent of the"landlord, but that consent was to his occupation of the same as lessee only, and that relation, under the circumstances in this case, could not be enlarged or changed except by the consent of both parties.

We therefore think the decision below was erroneous, and should be reversed, and a new trial granted, with costs to the appellant. This conclusion is in no way burdensome to the respondent. We understand he has already commenced his action to foreclose the mortgage. If the land is not sufficient security for his claim, he may, upon notice to the landlord, have a receiver of the rents appointed in the ordinary and regular way, when all the facts can be fully inquired into, and exact justice, as well as equity, administered to both parties, and he should be compelled to do this.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    Charles Nette, Respt, v. New York Elevated Railroad Company, App’lt.

      (New York City Court, General Term,

      Filed June 27, 1895.)

    Appeal — Harmless error.
    The statement of record by a referee that he has disregarded particular testimony in reaching his conclusion, .cures any error in its admission, if it stands alone and is readily identified.
    Appeal from a judgment for plaintiff.

      Julien T. Davis and B. L. Maynard, for app’lt; J. Aspinwall, Hodge, Jr., for resp’t.
   Bischoff, J.

— This action was brought in the usual form against the defendants, to restrain the operation of , their elevated railway in front of plaintiff’s premises in event of their failure to pay the sum awarded as damages. We think that there is no ground upon which the judgment can be well assailed. The testimony given by plaintiff’s expert justified a recovery in excess of the referee’s award for fee and rental damage, and while, as is usual, the defendants’ evidence conflicted with this testimony, we find that the probabilities are not so overwhelmingly against the plaintiff as to call for a reversal.

It is also claimed that referee erred in refusing to find the presence of benefits, general or special, to plaintiff’s property by reason of the maintenance and operation of defendants’ road. We fail to find the error. The presence of general benefits would naturally lead to the enhancement of value, and would disclose itself in the existing condition of the property, unless there might be circumstances under which general benefits and a still diminished value might result, in which latter case it would be for the defendants to show the value of such benefits, Struthers v. N. Y. E Railroad Co., 5 Misc. Rep. 242 ; 54 St. Rep. 785, which was not done here. Nor, from the evidence before us, are we to say that the finding of the absence, of special benefits results in a palpable miscarriage of justice. Struthers v. Railroad Co., supra. Thus, upon the facts of the case, the finding must conclude.

Further, it is contended that the error, if any, presented by the referee’s admission of testimony, over exception, witli regard to prices paid for or rents received from particular adjacent property, other than the property in suit, was not cured by his statement of record that all such evidence had been disregarded ; and counsel cites the case of American Bank Note Co. v. Metropolitan R. Co., 63 Hun, 508; 45 St. Rep. 322. In this case, however, the evidence disregarded stands alone, and is readily identified — as much so as if definitely marked as striken out: — and the objections found in the case cited to this course of practice are not here apparent. Even in the case of a jury trial, an instruction that the jury disregard certain evidence imports the fact that such evidence found no lodgment in their minds. Chesebrough v. Conover, 140 N. Y. 389; 55 St. Rep. 728. And such, a fortiori, should be taken as the result in a case where a referee states of record that he had disregarded particular testimony in reaching his conclusion. As stated above, the plaintiff’s evidence, irrespective of the testimony disregarded, is found to support the judgment, which, we think, should be affirmed, with costs.

All concur.


text:
    Moses Maas, Resp’t, v. Louis A. Scharbach et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 27, 1895.)

    Sale — Condition—Return.
    The return oí a steamship ticket, which was purchased under a contract that the money should be refunded if the ticket was not used within 1 a certain time, is not essential to recovery, where it is of no value after the lapse of such time.
    Appeal from a judgment for plaintiff.

      A. H. Berrick, for app’lts; Jacob Levy, for resp’t.
   Bischoff, J.

— This case presents nothing more than a well-defined issue of fact, determined by the justice in plaintiff’s favor upon sufficient evidence; hence, under the established rule governing appeals from the district courts, there is no ground for our disturbing the judgment. Whether plaintiff’s agreement with the defendants was that the sum in suit, paid by the former to the latter upon the purchase of a steamship passage ticket from Hamburg to New York, should be refunded if the ticket was not used by the intending passenger within a year, or whether a return of the ticket was essential, was the only point in issue; and the plaintiff’s evidence sufficiently supported the finding that the purchase money was to be refunded, under the agreement between the parties, should the individual to whom the ticket was sent fail to make use' of it, and obtain a passage to the port of New York, within one year. It is not contradicted that a year had elapsed when plaintiff made his final demand for the money, and that the ticket had never been availed of.

The appellant urges that plaintiff should not be allowed to recover back the purchase price without a return of the thing sold, but this contention assumes the ticket itself to have been the subject of the sale, whereas the ticket was but a token furnishing the evidence of a right to demand transportation, 25 Am. & Eng. Enc. Law, 1074, 1075, and cases cited, and from the plaintiff’s -evidence, it is logically inferable that this token was of no value after the elapse of one year from the sale. We have but to affirm the judgment.

Judgment affirmed, with costs.

All concur.


author: Bookstaver, J.

text:
    Alexander Pollock, Resp’t, v. Pennsylvania Iron Works Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Contract — Construction.
    A provision in a contract that the owner’s engineer should interpret the drawings, does not confer upon him the exclusive right to determine the construction and meaning of the specifications.

      % Same.
    A clause in such contract that certain work, when finished, shall be subject to the acceptance of the owner’s general manager and engineer, requires the work to be done to their legal satisfaction.
    • 3. Same — Performance.
    A contract to furnish “heavy, cast-iron trees,” is satisfied by furnishing articles known to the trade by that name.
    Appeal from a judgment of the city court, affirming a judgment, entered on a verdict in favor of plaintiff.

      Andrew W. Kent, for app’lt; Charles De Hart Bower, for resp’t.
   Bookstaver, J.

— This action was brought to recover for extra -work done by respondent for the appellant. The plaintiff contracted with the defendant to do certain work in the Broadway ■ cable power house in this city, under written specifications. This work consisted of the furnishing and erecting of all pipes, valves, .'fittings, and materials necessary for the operations of the boilers, engines, heaters, and pumps in the power house. The alleged •extra work consisted in furnishing certain tees, elbows, and crosses •of special design, drawings for which were furnished by defendant’s engineer in charge of the work. The specifications called for two kinds of fittings, viz. heavy cast-iron tees for one part of the work, and in another part for fittings provided with “extra heavy flanges of a design to be submitted and approved, with bolt bosses extending their full depth.” Plaintiff furnished the fittings with the extra heavy flanges, and, under the specification for beavy cast-iron tees, furnished the standard or commercial heavy ■cast-iron tees, as the jury have found. These, however, were rejected by defendant’s engineer, Mr. Moore, ■ and thereafter he furnished a special design for these tees; and for the difference in ■ cost between these special fittings and the commercial fittings, namely, $425.96, and interest, this action is brought. The difference in-the cost of the two styles of fittings was not disputed, and the case was sent to the jury on the question' whether the fittings-first furnished by the plaintiff were those required by the contract. The whole controversy turns upon the interpretation to be given to this part of the contract between the parties. The appellant, contends that Mr. Moore, defendant’s engineer, in charge of the-work, and Mr. Grist, the general manager of appellant, had, under the provisions of the contract, exclusive right to determine the-construction and meaning of the specifications, as well as the steam-fitting drawings; that, by the terms of the contract, these-questions were all referred for conclusive determination to these-men ; and that plaintiff could not withdraw the decision of such questions from them, and refer them to the determination of a. court, — citing Smith v. Brady, 17 N. Y. 176. The provisions of.' the contract upon which the contention rests are as follows:

“Finally, it is furthermore expressly understood that these specifications and drawings are not to be used to the exclusion of the instructions and direction of the engineer of the Pennsylvania. Iron Works Company in charge, but jointly with them. * * * The work, when finished, shall be subject to the acceptance of the general manager of the Pennsylvania Iron Works Company and. the chief engineer of the Broadway and Seventh Avenue Railroad Company, * * * whose acceptance will be the final acceptance of the Pennsylvania Iron Works Company.
“Note: The interperation and the full intent of the herein mentioned steam-fitting drawings, etc., shall be given by the engineer of the Pennsylvania Iron Works Company in charge, and his decision pertaining to any question which may arise shall be conclusive.”

The first criticism on these provisions is that, by the terrhs of" the contract, the conclusiveness of the interpretation of the engineer extends only to the “steam-fitting drawings,” etc., and not to the- “ specifications,” as is apparent from the sequence of the various-clauses quoted and their puncuation. And the next criticism is-that the stipulation in the contract is a very rigid and dangerous one; it puts a power in the hands of one party, which may be-wielded very.harshly and severly against the other; and we ought, not to construe it with any unnecessary liberality in favor of one-who possesses it. McKenzie v. Decker, 94 N. Y. 650.

In regard to the interpretation of such contracts, the court of! appeals has said:

“ Where there is doubt or uncertainty as to the meaning of words or phrases used in a contract, in seeking for the intent of the-parties as evidenced by the words used, the fact that a construction-contended for would make the contract unreasonable, and place one of the parties entirely at the mercy of the other, may properly be taken into consideration.” Russell v. Allerton, 108 N. Y. 288;. 13 St. Rep. 629.

Again, these provisions are only another form of the usual clause in building contracts to the effect that the work shall be; done to the satisfaction of the architect, and shall be subject to his acceptance. This court has held that the “ satisfaction ” is legal satisfaction, and that an architect cannot capriciously and willfully refuse to be satisfied; that, if the work has been performed substantially in accordance with the contract, the architect ought to-be satisfied, and the law will hold that he is satisfied. Hopper v. Cutting, 37 St. Rep. 504; Byron v. Bell, 32 id. 323; Highton v. Dessau, 46 St. Rep. 922 ; McCarthy v. Gallagher, 4 Misc. Rep. 188; 53 St. Rep. 176 ; Duplex Safety Boiler Co., v. Garden, 101. N. Y. 387 ; Nolan v. Whitney, 88 id. 648 ; Bowery Nat. Bank v. Mayor, etc., 63 id. 336 ; Doll v. Noble, 116 id. 230; 26 St. Rep.. 629. In the case under consideration the contract did not require-the plaintiff to procure a certificate as a condition precedent, and. hence there was no necessity of pleading an excuse for its nonproduction.

The appellant, however, contends that, notwithstanding the law on the subject, the question at issue in this case had been voluntarily submitted to the arbitration of defendant’s general manager,. Mr. Grist, and Mr. McNulty, the engineer of the Broadway &r. Seventh Avenue Railroad Company. We think, however, that it. is clear from the testimony, and the jury rightly found, there was-no voluntary submission to arbitration, but there was a demand that these engineers should declare themselves satisfied, and accept, what plaintiff claimed was the fulfillment of the requirements of" the contract.

Appellant also contends that the engineer was the arbitrator as-to what was required by the specifications. But such a contention is fully answered by the authorities we have cited, and the-contract itself refutes the claim, for it declares that the determination of the engineer is conclusive only when a question arises-, over the interpretation of the “steam-fitting drawings,” etc. As-to the specifications, the provision is that they shall not be used, to the exclusion of the instructions of the engineer. The authorities cited by the appellant in support of its contention are not in-point. In Butler v. Tucker, 24 Wend. 449, the question was solely one of pleading; and in Wiberly v. Matthews, 91 N. Y. 648, it relates to voluntary submission to arbitrators, while in Zimmermann v. Lutheran Church, 11 Misc. Rep. 49 ; 63 St. Rep. 469, the architect’s certificate had been given, and the owner claimed that it was-erroneous, but did not charge a mistake or bad faith. If appellant’s contention were well founded, the engineer could as well, have demanded a 20-inch pipe where a 14-inch pipe was called, for, with corresponding fittings, throughout the whole plant, and thus have enabled him to double or treble the cost of the work.. It cannot be possible that such a right was intended by the parties to be given to the engineer, but that the true interpretation of" it is that the powers granted to him were for the purpose of requiring a compliance with the terms of the contract, and not to-enable him to alter these terms. The question, therefore, resolves, itself to this: Were the “fittings,” etc., furnished by the plaintiff,, in accordance with the terms of the contract ? The word “fittings” means tees, crosses, and elbows, or ells • and what is true of a cross-. is true also of a tee, an ell and a tee being each a modification of ■a cross. The particular clause in the contract which designated the fittings in question is as follows: “The header will be made up of 14-inch pipe, and provided with the necessity heavy cast-iron tees.” The contention of the plaintiff was that there is in the market a specific article of commerce known and specifically designated in the trade as a “heavy cast-iron tee,” and that it is manufactured to “withstand a regular working pressure of 150 pounds.” If there was such an article, then, when the contract called for that article by its trade name, a tender of such article was a full compliance with the contract, and no determination of an engineer could require the delivery of any other or different article. It is •clear from the evidence that the fittings tendered by plaintiff were 'the regular commercial heavy cast-iron tees, and those demanded by Mr. Moore, the engineer, were unusual, special, and extra heavy; and the jury have found in accordance with tnis evidence, •and their finding is conclusive upon us. Upon this appeal, therefore, these facts must be taken as established, and the defendant’s .appeal must rest solely upon his claim that the engineer had the right to reject what the specifications specifically called 'for, and upon the exceptions taken at the trial.

The first claim, we think, has been sufficiently answered, and it •only remains to'examine the exceptions. It follows from what has been said that the appellant’s motion to dismiss the complaint, at the close of the plaintiff’s case, was properly denied. Moreover, it was not renewed at the close of the whole case, and the appellant must therefore be held to have conceded that there was evidence which should have been submitted to the jury.

We do not think the court erred in the admission of expert testimony as to the commercial heavy cast-iron tees and their fittings. The objection to this kind of testimony was all based upon the ^assumed conclusiveness of Mr. Moore’s interpretation of the contract which, as we have shown, was not well founded.

The exception to the testimony of the witness Nason as to the • character of the strain upon the steam fitting of a cable-power plant was not well taken. It is stated to be based on the witness’ lack of qualification to answer. But Mr. Nason had testified to •his experience as a mechanical engineer; that he was president of the Nsson Manufacturing Company, and manufactured fittings for over twenty years; and that he knew what the requirements were for cable use in streets. Throughout the appellant insisted that a cable plant was different from any other known kind of plant, but, as far as we have been able on an inspection of the case to see, failed to give any evidence of such difference.

The exception to the exclusion of the testimony of a witness as to whether the fittings now in the power house could withstand a working pressure of 150 pounds cannot be sustained. The fittings now there were accepted by the defendant, and their capacity was not at issue. Defendant’s counsel asked a witness the following question: “Q. For ordinary uses, as distinguished from the uses for cable purposes, under a working pressure of 150 pounds.” 'This was objected to, and the objection sustained, and we think properly. The question had been preceded by a question relative to the difference in the strain upon a cable plant and general commercial plants, to which the witness had replied, “I don’t see how I can answer exactlyand then asked if counsel wanted him to •define the difference between an ordinary fitting, say, up to one hundred or up to one hundred and fifty; and counsel’s question was then confined to the difference between an ordinary fitting for •ordinary uses and a fitting for cable purposes working under a pressure of 150 pounds. The difference between such fittings, if .any, was immaterial, for the contract specified what plaintiff was .to furnish, and that controlled.

The evidence in regard to the thickness of flange fittings at the Fiftieth street power house was properly rejected. These had been put in by another party. The contract under consideration related to the Houston street power house. The object of this question evidently was to control the specifications in this case by what some other person had done at another place, under other •circumstances and different specifications.

The exceptions to the charge are all based upon the contention -that Mr. Moore’s interpretation óf the contract was binding upon the parties, which, as we have before shown, was not well founded. Upon the trial, evidence was given pro and con on the sufficiency of regular commercial tees, and'.this question also was submitted to the jury. This was more favorable than the defendant was strictly entitled tOj for the plaintiff had nothing to do with the insufficiency of the tees, or with the insufficiency of anything connected with the plant, unless such insufficiency was caused by poor material or unskillful workmanship. He was only bound to follow the provisions of the contract, and this the jury found that he did.

We, therefore, are of the opinion that no review able error was •committed on the trial of this action, and that the judgment should be affirmed, with costs. All concur.


text:
    German Exchange Bank, Resp’t, v. New Jersey and San Domingo Brewing Company et al., Def’ts. Defendant Kroder, App’lt. (Two cases).

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Pleading — Complaint—Description.
    Describing the defendants in the complaint in the singular, instead of the plural, number does not render the pleading fatally defective as to either defendant.
    :2. Same — Answer—Frivolous.
    A motion for judgment on the answer as frivolous is to be determined in favor of the adverse party, unless a mere inspection of the alleged defective pleading discloses its frivolousness in a degree that would render argument impertinent.
    Appeal from an order in each case, granting a motion for judgment on the answer as frivolous.
    The complaint, and the answer of defendant Kroder, are as follows :

      “The plaintiff, by John Fennel, its attorney, complains and alleges, upon information and belief: (1) The plaintiff was at all the times hereinafter stated, and now is, a corporation duly organized under the laws of the state of Hew York; and the Hew Jersey & San Domingo Brewing Company, one of the defendants,, was at all the times hereinafter mentioned, and now is, a corporation duly organized under the laws of the state of Hew Jersey. (2) That the defendant the Hew Jersey & San Domingo Brewing Company, by its certain promissory note in writing, dated on July 30, 1894, for value received, promised to pay to its order the sum of five thousand dollars, four months after the said date, at German Exchange Bank, Hew York City ; and the said defendants,, the Hew Jersey & San Domingo Brewing Company, Theodore: Kruger, John Kroder, Frederick Orth, and Jacob Zahn, after-wards, for value received, indorsed the said note, and the same, so-indorsed, was thereafter, before maturity, for value received, transferred and delivered to this plaintiff, who now holds the same.. (3) That said note was duly presented for payment, and payment demanded, at maturity, at the place where said note was so payable, and payment was refused, whereupon said note was duly protested for nonpayment, and notice of such presentment, demand, and refusal was thereupon duly given to the. defendant. The necessary expense of said protest was $1.35. Wherefore the-plaintiff demands judgment against the defendant for the sum of $5.001.35, with interest thereon from December 3, 1894, besides-the costand disbursements of this action.”
    “The amended answer of the defendant John Kroder to the-complaint: (1) He denies that he has any knowledge, or information sufficient to form a belief, as to the allegation that plaintiff is-a corporation duly organized under the laws of the state of Hew York. He admits, on information and belief, that the defendant, the Hew Jersey & San Domingo Brewing Company claims to be a. corporation of the state of Hew Jersey, but he denies that he has-any knowledge or information as to the allegation that said company is a corporation duly organized under the laws of the state-of Hew Jersey. (2) He denies that this defendant, for value received, indorsed the note mentioned and described in paragraph two of the complaint, and that after being so indorsed, for value,, to this defendant, said note was transferred and delivered to this plaintiff. (3) He denies that he has any knowledge, or information sufficient to form a belief, that said note was duly presented for payment, and payment demanded, at maturity, at the place where said note was made payable, and payment refused, and that-thereupon said note was duly protested for nonpayment, and that, notice of such presentment, demand, and refusal given to the defendants company, Kruger, Orth, and Zahn, and that the necessary expense of said protest was $1.35. And for a further and. separate defense this defendant alleges, upon information and belief: (4) That the defendant did not receive any consideration whatever for his indorsement of said note, and he was only an accommodation indorser, all of which was well known to the plaintiff at the time it received said note. And for a further and sepa.rate defense, and also as an affirmative claim against defendants Kruger, Orth, and Zahn, this defendant alleges: (5) That the note referred to and described in the complaint was one of a series of notes, all made and signed like the note set forth in the complaint ■and given to plaintiff. That before the note mentioned and described in the complaint was indorsed by this defendant, and before certain other notes, of said series of notes, were indorsed by “this defendant, it was agreed by the defendants Orth, Kruger, and .Zahn, with this defendant, that they would each pay one-third of the notes, when due and payable, including the note referred to •and described in the complaint, and that this defendant was not to pay any part thereof. That, as this defendant is informed and believes, the plaintiff accepted and received said series of notes ■made after said agreement, including the note referred to in the ■complaint, with knowledge of, and under and in pursuance and subject to, said agreement. That, as this defendant is informed and believes, when several of said series of notes became dne, said bank •accepted ten per cent, of the amount due, and accepted a new note lor the balance, which new notes were made and indorsed, and were received by plaintiff, under and subject to said agreement. 'That the ten per cent, so paid was paid under said agreement by ■defendants Orth, Kruger, and Zahn, and this defendant did not contribute thereto. All of which, as defendant is informed and believes, was well known to plaintiff at the time it received said ten per cent. That said agreement was made to induce, and did induce, this defendant to indorse said series of notes, and the note referred to and described in the complaint, but this defendant received no consideration whatever for said indorsement. That several of ■said series of notes were discounted by plaintiff before this defend•ant indorsed the same, plaintiff knowing of said agreement. That the note referred to in the complaint was indorsed by this defendant under said agreement, and, as he is informed and believes, was received and accepted by plaintiff under and subject to said agreement. That said note referred to in the complaint was one -of said series of notes; was a renewed note made for the balance •due on a previous note of said series, on which plaintiff received ten per cent., which was paid by defendants Kruger, Orth and Zahn as aforesaid. That defendants Kruger, Orth, and Zahn violated their agreement with this defendant, in not paying the note mentioned and described in the complaint as they had agreed to do as aforesaid; and plaintiff, before this action was brought, knew ■of said violation of said agreement. And, for a further affirmative claim against the defendant the New Jersey and San Domingo Brewing Company, this defendant alleges: (6) That, after this defendant indorsed said note referred to and described in the complaint, said defendant Kruger, as president of, and on behalf of,the defendant the New Jersey and San Domingo Brewing Company, agreed with this defendant, in consideration of his indorsing a certain other note of $5,000 and a certain other note of $2,000, that the said defendant company would raise a sufficient sum of money before the maturity of the note referred to and described in the complaint herein, by a mortgage upon its real and personal property, and that from the sum so raised the note referred to in the complaint herein, as well as the other notes referred to, of $5,000 and $2,000, respectively, which the defendant was requested to indorse, should be paid. That such sum was raised, and a. mortgage was given by said company to the defendant Orth, before the note referred to in the complaint herein became due and payable. That as this defendant is informed and believes, out of the sum so realized, the note for $2,000 which he had so indorsed,, was paid; but the other note which he had indorsed, and the note referred to in the complaint herein, was not paid, as provided by said agreement, and the defendant company had violated its said agreement in this regard with this defendant. There was an utter failure of consideration to this defendant in indorsing the note referred to herein. Wherefore, this defendant demands judgment that the complaint be dismissed with costs, and for such other judgment and relief against his codefendants the New Jersey and San Domingo Brewing Company and Kruger, Orth, and Zahn as may be just and proper.

      Henry Schmitt, for app’lt; John Fennel, for resp’t.
   Bischoff, J.

— These actions were brought upon respective promissory notes made by the defendant brewing company, and indorsed by the other defendants. A motion was made in each action for judgment upon the separate answer of the defendant Kroder and the joint answer of his codefendants, as frivolous; and the motion was granted as against defendant Kroder, who has; taken these appeals. The pleadings are identical in each action, and may, practically be considered as upon one appeal.

A point is made by the appellant that the complaint fails to disclose a cause of action as against him, and hence the plaintiff could not be heard to say that the answer was frivolous, Munger v. Shannon, 61 N. Y. 251; this contention being founded upon the wording of the allegation in the complaint with regard to the essential fact of notice of presentment having been given the defendant indorsers, and which reads as follows: “Notice of such presentment, demand,1 and refusal was thereupon duly given to the defendant.” It is claimed that a fatal defect appears, in that the singular and not the plural of the word “defendant” was thus used; but an express adjudication of this court is found to support the complaint in this aspect, Chamberlain v. Kaylor, 2 E. D. Smith, 134. and therefore the point presented does not affect the merits of the order-appealed from.

We think, however, that the question raised by the pleadings should not have been determined adversely to this defendant upon a motion for judgment upon the answers as frivolous. A motion of this character is in its nature summary, may be made upon five days’ notice, Code Oiv. Proc. § 537, as was done in this case, and is to be determined in favor of the adverse party, unless a mere inspection of the alleged defective pleading discloses its frivolousness in a degree which would render argument impertinent. Youngs v. Kent, 46 N. Y. 672; Cook v. Warren, 88 id. 37; Nat. Broadway Bank v. Swift, 36 St. Rep. 997. Argument may demonstrate the insufficiency of the pleading, but that argument is to be presented, and considered upon the trial of the issues of law raised by demurrer or upon a motion for judgment when the cause is actually brought to trial upon the facts. Upon examination of the answers-before us, we find that there may be some room for question as to whether our approval of their sufficiency, merely upon inspection, would not be more hasty than j ust; and while unhesitating approval might be given to the opinion delivered at considerable-length by the learned judge at special term, and to the argument of respondent’s counsel, which is principally founded upon that opinion, we view the discussion noted to have been essential to the conclusion reached, and the result not one to be arrived at upon the motion as instituted. That in such a case a reversal of the order should follow was held in Exchange Ins. Co. v. Norris, 74 Hun, 527; 57 St. Rep. 191.

Order appealed from reversed, with costs and printing disbursements. All concur.


text:
    Kathrina Proppe, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. In stjrance — Life—Proofs of death.
    Proofs of death, furnished to an insurance company bythe beneficiaries,
    ■ are prima fácie evidence against them, and, when no evidence is given to contradict these proofs, they are conclusive.
    2. Same — Testimony of physician — Privilege.
    In such case, the beneficiary cannot, after submitting the certificate of the attending physician with the proofs of death, object that his statements are privileged, and, therefore, do not bind her.
    Appeal from a judgment, rendered in favor of plaintiff.

      C. N. Bovee, Jr., for app’lt; Patrick H. Loftus, for resp’t.
   Bookstaver, J.

— The action was brought upon a policy for insurance, and the defense was a breach of the conditions of the policy. By its terms the appellant agreed to pay the insurance subject to the conditions therein contained, and provided that the company should pay to one of the persons described in the second condition, “ upon receipt of proofs made in the manner and to the extent and upon the blanks required by condition sixth, of the death of said insured, within twenty years from the date hereof,” etc. It also provided that it was issued “ upon the express understanding that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.” The first condition contained the following provision :

“ This form of policy is issued upon an application which omits the warranty usually contained in applications, and the policy contains the entire agreement between the company and the insured to the holder and owner thereof; and its terms cannot be changed nor its conditions varied except by a written agreement,” etc.

The third condition provided as follows:

“ Unless otherwise stated in the blank space below in a waiver signed by the secretary, this policy is void if the insured, before its date, has been rejected for insurance by a physician for any serious disease or complaint, or has had before said date any pulmonary disease or chronic bronchitis or cancer or disease of "the heart, liver, or kidneys, or if before said date any parent or brother or sister of insured have died of any pulmonary disease or bronchitis or any scrofulous disease.”

The sixth condition provided that:

“ Proofs of death under this policy shall be made upon blanks to be furnished by the company, and the proofs shall contain answers to each and every question propounded in said blanks to the claimant, physicians, and all other persons to whom such questions shall be propounded, and shall further contain the record, ■evidence and verdict of any coroner’s inquest, if one shall be held. All the contents of such proofs of death shall be evidence of the facts therein stated in behalf of, but not against, the company.”

The policy was dated October 15, 1894, and the insured died on the 15th of January, 1895. The evidence shows that proofs of death were submitted to the company upon the forms prescribed by it. The physician’s certificate, in answer to question 8, certified that the chief or primary cause of death was oedem. pulmón., and that the contributory or secondary cause of death was heart disease; and, in answer to question 10 propounded to him, the physician certified that the deceased had been ill for about one year when he was called to attend him. The twelfth question propounded to the physician was as follows: “Was deceased afflicted with an infirmity, deformity, or chronic disease ? If so, please ■specify.” In answer thereto he stated, “ Heart disease.” After answering these questions, the physician certified that he attended the deceased from December 17, 1894, to January 15, 1895. The respondent, in her statement of claim, filed with the company, stated as follows in answer to question 3, as to the cause of death: "“See doctor’s statement; ” and in answer to question 14, as to what sickness previous to the last one deceased had had, she stated that he had a fractured ankle three years before. It will thus be seen that the respondent made as a part of her statement the statements and answers made by the physician, and from these statements it is clear that there was a breach of the condition of the policy; for as it was issued on the 15th of October, 1894, and the insured died of heart disease January 15, 1895, only three months after the date of its issue, and the duration of deceased’s illness was one year, he could not have been in sound health at the time the policy was issued.

Respondent, however, contends that the answer of the physician did not imply that the deceased suffered from heart disease during all that time; but we think a careful consideration of the evidence does not support such a contention. Only one inference can be drawn from it, and that is that the insured died of heart disease, and that he had been afflicted with that disease for a year before his death.

Respondent also contends that the statement of the physician does not bind the claimant on the ground that it is privileged, under the statute. The proofs of death, however, were submitted by the respondent, and thereby their contents were made evidence of the facts therein stated. She could not offer such evidence for a part only of what the statement contained, but the whole became evidence. Besides, by an express clause of the policy, the contents of such proofs of death were made evidence of the facts therein stated. This condition of the contract, we think, is not only a waiver of privilege on the parf of the deceased, but is an agreement and condition binding upon the plaintiff. She cannot claim the benefit of the contract, and sue to enforce it, without accepting and abiding by its provisions. In the case of National Life Association v. Sturtevant, 78 Hun, 572 ; 61 St. Rep. 205, it was held that proofs of death furnished to an insurance company by the beneficiaries of the insurance ar oprima facie evidence against the persons furnishing the same, and that, when no evidence is given (as in this case) to contradict these proofs, they are conclusive. So, -in Schmitt v. National Life Association, 84 Hun, 128; 65 St. Rep. 737, where the facts were similar to those under consideration, it was held that, in the absence of any explanation or other evidence, the statements shall be deemed to establish the facts so stated. The evidence of the physician’s certificate being admissible, conclusive, and uncontradicted, the court below had no course but to hold that liability ever attached upon the policy of insurance. Volker v. Met L. Ins. Co., 1 Misc. Rep. 374; 50 St. Rep. 199.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.


author: Pryor, J.

text:
    George Scofield, Resp’t, v. Ella L. Warren, App’lt.

      (New York Common Pleas, General Term,,

      Filed June 3, 1895.)

    1. Service — Compensation.
    Where a person, who has performed labor in repairing a building, has agreed to look to the rents alone for his recompense, their diversion from their stipulated destination will not deprive him of the reward of his labor.
    2, Principal and agent — Authority.
    An agent to take care of a house was held, under the evidence in this case, to have authority5 to draw drafts in the name of the principal for the cost of repairing the house.
    Appeal from a judgment in favor of plaintiff.

      Abner G. Thomas, for app’lt; Maar & Goldberg, for resp’t.
   Pryor, J.

— As mortgagee, the defendant has an interest to protect the house against dilapidation ; and, indeed, her requirement that Crouch should pay over the surplus of rents “ to the parties then holding title ” evidently anticipates the ownership ,she afterwards acquired. But, even though the house were not her property, if she contracted with the plaintiff for repairs upon it, she must pay for them. Whether she so contracted is the question for determination. In proper person the defendant, made no contract with the plaintiff, but the contention is that she employed him through the instrumentality of another. Had Crouch, the alleged agent, authority to engage the plaintiff, and bind the defendant to pay him for the repairs ? The paper in evidence only empowers Crouch to pay out of the rent as he collected it. This was not necessarily an authority to order the repairs. In Bank v. Griswold, 72 N. Y. 472, the agent bad power to buy lumber, and the question was as to his authority to issue drafts for the purpose. Here Grouch was authorized to pay for the repairs out of the rents, but whether he had power to contract for the repairs may be doubtful, on the face of this paper. But in another paper, by which defendant revokes his agency, she expressly recognizes Crouch “ as agent for the house,” and instructs him to send her 11 whatever bills you have in yopr possession.” Is not this an admission that Crouch ha-d an authority to contract debts on her behalf ? Again, evidence in the case warrants the inference that Gault, defendant's father, had authority to contract for the repairs, and that Crouch, with Gault’s privity and approval, engaged the plaintiff for the work. The defendant and Gault deny that such authority was given to him, but we cannot say that the justice erred in believing Crouch rather than the defendant and her father. Upon all the proofs we are not satisfied that the trial court drew a wrong conclusion in deciding that the plaintiff was employed bv authority of the defendant. It is true, the plaintiff was told that he was to be paid out of the rents; but neither the failure of defendant’s agent.so to pay him, nor her own revocation of that agent’s authority to collect the rents, is effectual to defeat the plaintiff’s demand. He did not agree to look to those rents alone for his recompense, but, if he had so agreed, their diversion by the defendant or her agent from their stipulated destination would not deprive him of the reward of his labor.

Judgment affirmed, with costs.

All concur.


text:
    William W. Owen, Resp’t, v. Edgar E. Sell, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Party in interest — Denial.
    Except in a case where the plaintiff is required to establish ownership as an essential element of his cause of action, proof that he is not the real party in interest cannot be given under a general denial.
    2. Principal and agent — Third person.
    A person dealing with an agent, by his failure to inform himself as to the extent of the agency, assumes the risk that the principal will not he hound by his agent’s acts.
    3. Money paid — Eight to recover.
    A person cannot recover from another money paid for the latter’s benefit, without his request or knowledge.

      Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      F. De Lysle Smith, for app’lt; William H. Regan, for resp’t
   Bischoff, J.

— The claim in suit is for moneys alleged to have been expended at defendant’s instance, and arose out of a certain transaction involving the exchange of real estate between the parties. By the terms of the contract for this exchange, title was to close on August 15, 1892, and all charges for interest upon incumbrances up to that date were to be defrayed by the respective owners of the property incumbered. Interest for six months upon a mortgage for $40,000, covering plaintiff’s property, was to fall due September 1st; but the mortgagee refused to accept payment from plaintiff, upon account, to August 15th. Prior to the date of closing title, defendant was called away from the scene of negotiations, and intrusted the completion of the contract to one Wearn, an agent, who, at plaintiff’s suggestion, entered into an agreement on defendant’s behalf that the former should pay the interest upon the mortgage in question to September 1st, charging the latter with $88.90, the amount of the sixteen days’ interest, which payment was accordingly made. This charge for balance of interest, together with the amount of certain unpaid taxes upon the property received by plaintiff in exchange, constituted the demand in this action, to which the defendant interposed a general denial.

The first point raised by the appellant is that the action was improperly instituted, upon the ground that the plaintiff was not the real party in interest (Code Civ. Proc. § 449), it being claimed that his grantor of the property was such party. Sufficient evidence is disclosed by the record to support the conclusion that the fact was contrary to this contention, and, moreover, the question is not properly before us. Except in a case where the plaintiff is required to establish ownership as an essential element of his cause of action, proof that he is not the real party in interest cannot be given under a general denial. Smith v. Hall, 67 N. Y. 48; Savage v. Insurance Co., 4 Bosw. 1; 36 N. Y. 655; Jackson v. Whedon, 1 E. D. Smith, 141; Abb. Tr. Brief, §§ 941, 942, 954. Ilence there is no dispute as to the plaintiff’s legal title to the property, nor was it essential to prove it; the demand being for an actual expenditure in the transaction between the two parties, with no question of ownership arising from the nature of the claim. The plaintiff, however, by failing to make any objection to the introduction of testimony whereby it was apparently sought to show an interest on the part of his grantor in the recovery, waived this defect in the answer. Whitman v. Foley, 125 N. Y. 654 ; 36 St. Rep. 133 : Alfred Shrimpton & Sons v. Dworsky, 21 N. Y. Supp. 461. But the defendant’s omission to present the point in any way to the attention of the justice below precludes his availing of the contention at this stage of the litigation. Price Printing House v. Jewelers’ Review Pub. Co., 10 Misc. Rep. 743 ; 64 St. Rep. 503; Brown v. Wakeman, 45 St. Rep. 671 ; Fulton v. Met. L. Insurance Co., 47 St Rep. 111.

Upon another ground the appeal must succeed. It is urged by the defendant that his agent Wearn, had no authority to make the agreement in pursuance of which plaintiff paid the interest in question, and credited himself with the amount constituting the item in suit, and that, the agency being special, defendant’s responsibility for the agent’s acts were measured by the restrictions placed upon the authority. It is uncontradicted that this agent’s (Wearn’s) authority embraced only the performance of acts required to carry the contract of exchange into effect. No claim is made, nor does the evidence in any way bear out an assumption, that any of the acts of the defendant could be construed as authorizing plaintiff to deal with Wearn as a ganeral agent. Hence, by his failure to inform himself as to the extent of the agency, he assumed the risk that the principal would not be bound by the agent’s acts. Craighead v. Peterson, 72 N. Y. 283. Upon the evidence, it must be held that the act of Wearn in making the agreement whereby defendant was sought to be charged with a payment made by plaintiff on account of a future charge upon the property, accruing after defendant’s interest in the' subject-matter attached, to the exclusion of the plaintiff’s, involved no responsibility upon the part of defendant, since the authority given was solely to perform the contract, and power in the agent to change it was not to be implied. 1 Am. & Eng. Enc. Law, p. 367, and cases cited. Nor was the delegated authority to be increased by the agent’s own act. Eaton v. Railroad Co., 57 N. Y. 390, 391. True, the payment may well have iqured to the defendant’s benefit; but this does not render him liable to the plaintiff for the amount thus gratuitously expended, with no solicitation upon the farmer’s part, and with full knowledge, or imputable knowledge of the facts. 18 Am. & Eng. Enc. Law, pp. 187, 188; Kenan v. Holloway, 16 Ala. 53 ; Abell v. Douglass, 4 Denio, 309. Had there been any general custom whereby such a transaction as that in question could be recognized as an incident to the performance of the contract, under the circumstances, it might well have been proven; but the evidence tended to show that the only custom existing with regard to payments upon an exchange of property required that the party giving mortgaged property in exchange should charge to the other party to make the full payment when called for by the terms of the mortgage.

The judgment rendered was for $136.60, and the claim above discussed was for but $88.90. While the parties seem to be agreed that the balance was to cover payment made by the plaintiff of certain taxes, which, by the terms of the agreement, were to be paid by the defendant, there is not the slightest proof of their amount in the record, and nowhere is an admission of the liability disclosed.

Judgment reversed, and new trial ordered, with costs to the appellant, to abide the event


text:
    Patrick McNamara, Resp’t, v. John P. Nolan, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Appeal — Appealable order.
    Where the effect of an order of the city court is to deprive a party of his costs, it affects a substantial right and is appealable to the common pleas.
    2. Party — Poor person.
    ■ In an application for leave to sue as a poor person, a petition, in the language of section 459 of the Code, is not contradicted by proof that plaintiff resides with his family on the second floor, consisting of four or five rooms, neatly and comfortably furnished, and that he is regularly employed and in the receipt of $15 weekly wages.
    3. Same.
    In such case, where the facts alleged, if true, constitute a good cause of action, affidavits to show that plaintiff has not a meritorious cause of action will not be considered.
    Appeal from an order of the city court, affirming an order permitting plaintiff to prosecute as a poor person.

      John R. Tresidder, for app’lt; J. J. Karbry O' Kennedy, for resp’t.
   Bischoff, J.

— The action is against a physician to recover damages for the alleged unskillful medical treatment of the plaintiff's child, a minor ; and from an order made at special term in the court below, and by the same court affirmed at general term, permitting the plaintiff to prosecute as a poor person (Code Civ. Proc. §| 458-467), the defendant has appealed to this court.

The right to costs given to litigants by statute is a substantial one. Sturgis v. Spofford, 58 N. Y. 103. And as the effect of the order appealed from it to deprive the defendant of his costs, if the issue of the action proves to be in his favor, it affects a substantial right, and so is appealable to this court, under the provisions of Code Civ. Proc. § 3191, subd. 3.

It is contended for the appellant that the order is erroneous for two reasons: Firstly, that the plaintiff does not appear to be a “poor person,” within the proper meaning of those words; and, secondly, that it does not satisfactorily appear that he has, prima facie, a cause of action against the defendant. Code Civ. Proc. § 460. We are of the opinion, however, than both of these constituents to the validity of the order sufficiently appear from the record, and, upon a mere conflict of evidence, no reversal should follow. An appellate court should only then reverse, upon the facts, if the preponderance of the evidence is so greatly against the findings of the court which made the order that there can be said to have been an abuse of judicial discretion, — Dietlin v. Egan, 46 St. Rep. 762, —which is not here the case. True, a “poor person” is one who is indignent; dependent upon charity; a pauper. But the words also comprehend one who, though not a pauper, is not rich. Cent. Diet. “Poor; ” 18 Am. & Eng. Enc. Law, p. 767, “Poor and Poor Laws,” and cases collected in the notes. The Code, however, has wisely defined the “poor person” comprehended by its provisions to be one who “is not worth one hundred dollars besides the wearing apparel and furniture necessary for himself and his family, and the subject matter of the action.” Section 459. That the plaintiff comes within this class clearly appears from his verified petition. The defendant’s deposition is subject to discredit, as that of a person in interest; but, waiving such consideration, there is nothing in his testimony that the plaintiff resides with his wife and child upon a second floor, consisting of four or five rooms, neatly and comfortably furnished, which in any wise conflicts with the plaintiff’s allegations. The same is to be said with regard to the further facts that the plaintiff is employed, and in receipt of $15 weekly wages.

The Code, section 460, does not require the plaintiff, as a condition precedent to the order permitting him to prosecute as a poor person, to prove his right to recover in the action. The court to which the application for such an order is addressed must be “ satisfied ” that the applicant “ has a good cause of action.” Obviously, this implies no more than that the fact alleged must, if true, constitute a cause of action, and that the action is instituted in good faith. In other words, the court is charged with the duty of refusing the order where the facts alleged for the purposes of a recovery do not constitute a cause of action, or the action is not brought in good faith. Here the complaint concededly sets forth alleged facts which, if established upon the trial, will entitle the plaintiff to recovery. ■ Again, the depositions of the defendant’s experts do not so controvert the plaintiff's allegations regarding the maltreatment of his child that the cause of action may be said to be absolutely disproved. As mere opinion evidence, the statements of the experts are not conclusive of the facts to which they relate. Rog. Exp. Test. p. 486, § 207. The order should be affirmed, with costs.

All concur.


author: Bischoff, J. Pryor, J.

text:
    Johanna Kuechenmeister, App’lt, v. Vernon H. Brown et al., Impleaded, etc., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Nuisance — Lessee.
    Neither the lessee nor occupant of the premises to which a nuisance is appurtenant is absolved upon showing merely that the nuisance was created by the lessor or another, if at the same time it appears that he knowingly acquiesced in its existence or maintainance; and such acquiescence is sufficiently apparent from the lessee’s or occupant’s use of the premises.
    2. Same — Municipal consent.
    Proof of municipal consent to the maintenance of an opening in the sidewalk relieves the opening of its character as a nuisance.
    3. Same — Pboof.
    Such oral consent appears inferentially from the fact that the existence of the opening was notorious for upwards of one year before the accident and continued uninterruptedly and without objection.
    4. Same — Pleading.
    Such, consent is admissible under the denial of any liability as set out in the complaint.

      Appeal from a judgment, dismissing the complaint for insufficiency of proof.

      Chas. Goldzier, for app’lt; Ira D. Warren, for resp’ts.
   Bischoff, J.

— The complaint alleged that on January 22,1892, in the city of New York, the plaintiff sustained personal injury from a fall into a vault or cellar opening in the sidewalk in front of certain premises which were at the time in the possession and occupancy of the defendant respondent as lessee; that the opening was appurtenant to and used by the defendant respondent in connection with thé demised premises; and that it was so used and maintained by him without lawful authority. The action, therefore, was one to recover damages which resulted, as alleged, from the maintenance of a nuisance. That it was accompanied by allegations of the defendant’s neglect with regard to the use of the opening, and of the absence of due care in keeping it securely closed, did not constitute the action exclusively one for negligence, such allegations being relevant to the predicament of a nuisance, Morris v. Barrisford, 9 Misc. Rep. 14; 59 St. Rep. 698; and assuming that the complaint sufficiently averred a cause of action for negligence, as well as one for the maintenance of a nuisance, we can, in view of the absence of the plaintiff’s election, only then affirm the accuracy of the judgment appealed from if we find upon examination that the evidence adduced upon the trial supported neither cause.

We readily accede to the view of the learned trial judge, and the contention of the defendant’s counsel, that the evidence fell short of showing any negligence whatever, either on the part of the defendant or of his servants; and the plaintiff’s counsel does not contend to the contrary upon-this appeal. It is insisted, however, that there was ampié proof of the defendant’s liability for the maintenance of a nuisance. The proof consisted wholly of the testimony of two witnesses called for the plaintiff, — herself and the defendant. The plaintiff testified only to the facts of her fall into the vault or cellar opening in the sidewalk in front of the premises occupied by the defendant, the condition of the covering at the time, and the resultant injury to her. Thereupon the defendant testified, and he remained uncontradicted, that he did not -construct the opening in the sidewalk, and that it existed at the time he went into possession of the premises, which was one year before the accident complained of. He also admitted that he was .at the time of the accident; and for the whole of the year immediately preceding, in the possession and occupancy of the premises, .and that during that time he had availed himself of the use of the opening of the sidewalk for the storage of coal in the cellar of the premises occupied by him. Unquestionably the construction or maintenance of the opening in the sidewalk without lawful authority was a nuisance, and for any damage resulting therefrom to another the person who created, as well as the one who knowingly maintained, the nuisance, was answerable. Congreve v. Smith, 18 N. Y. 79; Congreve v. Morgan, id. 84; Irvine v. Wood, 51 id. 224; Clifford v. Dam, 81 id. 52 ; Jennings v. Van Schaick, 108 id. 530; 13 St. Rep. 686; Ahern v. Steele, 115 N. Y. 203 ; 26 St. Rep. 295; Babbage v. Powers, 130 N. Y. 281; 41 St. Rep. 521; Jorgensen v. Squires, 144 N. Y. 280 ; 63 St. Rep. 686, Neither was the lessee or occupant of the premises to which the nuisance was appurtenant absolved upon showing merely that the nuisance was created by his lessor, the owner, or another, if at the same time it appeared that he knowingly acquiesced in its existence or maintenance ; and such acquiescence was sufficiently apparent from the lessee’s or occupant's use of the nuisance. Wood, Nuis. p. 80, § 77; Cooley, Torts (2d ed.) 724; Shear. & R. Neg. §§ 56, 361 ; Ahern v. Steele, 115 N. Y. 203; 26 St. Rep. 295 ; Jorgensen v. Squires, 144 N. Y. 280; 63 St. Rep. 686 ; Irvine v. Wood, 51 N. Y. 224; Wasmer v. Railroad Co. 80 N. Y. 212; McParthand v. Thoms, 24 St. Rep. 110; Blunt v. Aikin, 15 Wend. 522; Irvin v. Fowler, 5 Rob. (N. Y.) 482; Irvin v. Wood, 4 Rob. (N. Y.) 138 ; Vedder v. Vedder, 1 Denio, 257; Waggoner v. Jermaine, 3 Denio, 306; Brown v. Railroad Co., 12 N. Y. 486. Proof of municipal consent to the maintenance of the opening in the sidewalk, however, relieved the opening of its character as a nuisance. Irvine v. Wood, 51 N. Y. 224; Jennings v. Van Schaick, 108 id. 530 ; 13 St. Rep. 686; Bab-bage v. Powers, 130 N. Y. 281; 41 St. Rep. 521; Jorgensen v. Squires, 144 N. Y. 280; 63 St. Rep. 686. It did not appear in the case at bar, from any municipal ordinance or from any statute, that such a consent was required to be in writing, and an oral consent, therefore, was sufficient. Such oral consent appeared inferentially from the fact that the existence of the opening was notorious for upwards of one year before the accident, and continued uninterruptedly and without objection. Babbage v. Powers, 130 N. Y. 281; 41 St. Rep. 521. 'Notwithstanding the defendant’s omission to plead a municipal consent, Irvine v. Wood, 51 N. Y. 224, we think the fact was available to him under his denial of the plaintiff’s allegations that the opening in the sidewalk was “wrongfully and unlawfully” maintatned, and that she sustained her injury from the “wrongful” acts of the defendant. “It was not a defense necessary to be pleaded. It went to the root of the cause of action, and tended to show that there never had been any liability on the part of the defendants. It was not an affirmative defense which in substance admitted an original cause of action, but showed facts which operated as satisfaction thereof. It was not like a defense of payment, or a release, or an accord and satisfaction. If operative, it showed there never had been any liability, and hence it was admissible under the defendant’s denial of any liability, as set out in the complaint.” Demarest v. Flack, 128 N. Y. 205 ; 40 St. Rep. 383. The judgment should be affirmed, with costs.

Daly, C. J., concurs.

Pryor, J.

(dissenting). — The complaint alleges the “wrongful and illegal” construction of the coal hole in the sidewalk by the owner of the premises ; that the defendant, as lessee, maintained the nuisance; and that from the nuisance, so maintained, the plaintiff suffered injury. From these facts, if supported by proof, the necessary legal conclusion was a judgment for the plaintiff. Clifford v. Dam, 81 N. Y. 52 ; Jennings v. Van Schaick, 13 Daly, 438. The existence of the obstruction in the highway, defendant’s responsibility for it, and plaintiff’s injury by it were established by uncontradicted evidence, and yet the complaint was dismissed, because the defendant’s negligence was not apparent. In such a cause of action, negligence is not an element. Clifford v. Dam, supra. The prevailing opinion upholds the judgment against the plaintiff on a different ground from that upon which the learned trial judge dismissed the complaint, — on the ground, namely, of a permit from the city to construct the coal hole. But this contention is untenable for two reasons: First, license to construct the-coal hole was an affirmative defense, not available unless pleaded (Clifford v. Dam, supra), and there-is no hint in the answer of any such permission; secondly, there is not a suggestion in the evidence of a license to construct the coal hole. It is said, however, that an inference of such license may be deduced by the court, from the fact’of the existence of the obstruction for “ upwards of a year; ” and the authority adduced in support of the proposition is Babbage v. Powers, 130 N. Y. 281; 41 St. Rep. 521. In Babbage v. Poivers, a license was pleaded, and the court held that it was proved by the fact that the coal hole “ had been constructed with knowledge of the city officials, and had been used for nine years.”, This may be sufficient evidence of acquiescence,, but does not involve the implication that the.mere existence of the obstruction for “upwards of a year,” without another circumstance, is such proof of a license as requires that the case be taken from the jury. The plaintiff is defeated upon a defense neither pleaded nor proved. Consistently with familiar principles and due submission to the authority of the court of appeals, I cannot concur in the conclusion of the majority.

The judgment should be reversed.


author: Geigerich, J.

text:
    Maria L. Winterson, Resp’t, v. Hector M. Hitchings et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Default — Admission.
    A defendant, by making default in answering, admits only the facts; properly pleaded in the complaint; not that plaintiff is entitled to the relief demanded, or the extent of that relief.
    2. Execution — Sale—Action to set aside.
    The annulment of a sale under execution issued on a judgment which has been subsequently reversed, where another trial has been had and judgment again rendered for plaintiff therein, will be granted only on condition that the judgment rendered on the second trial be paid.
    3. Same.
    In such case, it is immaterial that, after a demurrer to the complaint, in the action to annul the sale, on the ground that it did not allege an offer to pay such judgment, was overruled, with leave to answer, the defendant nevertheless did not answer or offer to pay the costs of the demurrer.

      Appeal from a judgment rendered in favor of plaintiff.
    This action was, in effect, for restitution, and to restrain the •sheriff from executing a deed under a sale already made by him, and to vacate and cancel such sale and the certificate thereof. The sale was made in execution of a judgment in Carlson v. Winterson, rendered in favor of plaintiff therein, and assigned to Hector M. Hitchings, who became the purchaser at the sale. This judgment was reversed after the sale had been made, and a new trial was granted. Upon the new trial, the plaintiff again recovered, and this action for restitution was then begun. The judgment rendered upon the verdict in the second trial has since been affirmed both by the city court and by this court. The complaint in the present action was demurred to by the defendant upon the ground that it contained no offer to pay the second judgment recovered and held by the defendant against the plaintiff, but the court at special term overruled the demurrer, with leave to answer upon payment of costs, which judgment the general term affirmed, with costs. Instead of paying costs and answering,'the defendant allowed the time for answering to pass, in reliance, ás he claims, upon the fact that all allegations necessary to properly present the question to a court of equity were contained in the complaint, and upon certain passages of the opinions written at special term and at general term upon the decision of the demurrer, intimating that the relief sought in the complaint would only be granted upon satisfaction of the second judgment. As the plaintiff did not move for final judgment, the defendant at last made such a motion upon an affidavit which recounted the history of the matter, and contained an expression of willingness to pay the costs awarded upon the decisions of the demurrer. The proposed judgment was in part as follows: “Now, therefore, it is hereby ordered, adjudged and decreed that it be, and it is hereby, referred to ---, esq., as referee, to ascertain and determine the amounts which "are due and owing from this plaintiff to the defendant Hitchings, as •and for any and all judgments now held and owned by him against the" plaintiff herein, with interest, and any and all disbursements incurred by him in and about the sale of the plaintiff’s property herein, and any and all proper legal charges and" liens owned by him against said propertyand that upon the payment by the plaintiff herein of the amount so found due by said referee, together with the costs of the reference, the prayer of the complaint be, and it is hereby, granted, and that the defendant John B. Sexton be enjoined and restrained from executing to the defendant Hitchings any deed under the sale made September 1, 1892; and that the sheriff’s certificate of sale be vacated and canceled of record, and that the plaintiff recover ■of the defendant Hitchings her said costs and disbursements herein, to wit, the sum of thirty-five and 50-100 dollars, and the sum of sixty-four and 65-100 dollars, amounting in the whole to one hundred and 15-100 dollars.” The motion for the entry of the above judgment was denied, and the following, upon motion of the defendant, was ordered instead : “ Ordered, that the plaintiff have judgment enjoining and restraining the defendant, John B. Sexton, as sheriff, from executing any deed under the sale made Sept. 1, 1892, and that said sale and said sheriff’s certificate of sale be vacated and canceled of record, and that plaintiff recover her costs of this action against the defendant Hitchings.” From the judgment entered in accordance with this order, the defendant Hitchings now appeals, “ and especially from so much of said judgment as fails and neglects to order and adjudge, as a condition of granting the relief therein provided, that the plaintiff should pay to this defendant the amount of the several judgments recovered by one Louise Oarlson (the plaintiff in the original action, and who assigned the judgment she therein recovered to Hitchings, her attorney), as plaintiff, against Maria L. Winterson,” etc., and he also appeals from the order denying his motion for the above judgment proposed by him.

      Hector M. Hitchings, in pro per.; E. F. Bullard, for resp’t.
   Geigerich, J.

— Section 1223, of the Code of Civil Procedure, declares that:

“ Upon an application, by either party, to the court for final judgment, after the decision of an issue at law, as prescribed in the last two sections, the court has the power specified in section 1215 of this act, upon an application for judgment by the plaintiff.”

And section 1215 declares:

“The court must thereupon render the judgment to which the plaintiff is entitled. It may, without a jury, or with a jury, if one is present in court, make a computation or assessment, or take an account or proof of a fact, for the purpose of enabling it to render the judgment, or to carry it into effect; or it may, in its discretion, direct a reference, or a writ of inquiry, for either purpose.”

By his default the defendant admits only the fact properly pleaded; not that the plaintiff is entitled to the relief demanded, or the extent of that, relief. It is for the court to determine, upon the facts, to what relief the plaintiff is entitled. Argall v. Pitts, 78 N. Y. 239; Bullard v. Sherwood, 85 id. 253; Frick v. White, 57 id. 107; U. S. Life Insurance Co. v. Jordan, 46 Hun, 201 ; 11 St. Rep. 448. In overruling the demurrer to the complaint in this action the judge at special term (9 Misc. Rep. 324; 60 St. Rep. 445), said:

“* * * Having voluntarily come into equity to apply for relief, the plaintiff in this action will be deemed to have submitted herself to the invocation of the rule that he who seeks equity must do equity. * * * Accordingly, the relief which she seeks to obtain will only be extented to the plaintiff upon satisfaction of the defendant’s demanded under the second judgment”

And the general term, in affirming that judgment (10 Misc. Rep. 398; 63 St. Rep. 411), said:

“The recovery of a second judgment for the same claim gave him no lien on the property which the judgment debtor must offer to satisfy before claiming restitution. Such subsequent judgment only afforded a ground or claim for equitable consideration when the rights of the parties are submitted to the court for adj udication.”

The respondent urges that the appellant ought to have paid the interlocutory costs imposed, upon the decisions of the demurrer by the special and general terms, as a condition upon which an answer might be served. We cannot see that such a course would have materially altered the situation of the parties. An answer would not have presented the issues more fully than they are now presented, or in any different form; and the appellant expresses-in his affidavit a willingness to pay such costs, and in fact, intro- <■ duced in the proposed final judgment submitted by him a provision to that effect. But aside from this, as the parties have submitted themselves to the equitable jurisdiction of the court, the court has the power to grant such a judgment as will fully dispose of all the issues between them involved in the matter submitted.

Having reached the conclusion that the judgment entered was erroneous in that it makes no provision for satisfying the defendant’s demand under his second judgment, it follows that the judgment should be reversed, and the matter remanded at the special term for further action, with costs.

All concur.


text:
    Xavier Stierle, Resp’t, v. Union Railway Company of New York City, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895)

    Gabbier — Passengers—Street bailway.
    The degree of care required of a carrier of passengers, whose vehicle is-drawn by horse power, is not the same as is exacted of a carrier by steam railway.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      William N. Cohen and Henry L. Scheuerman, for app’lt; Leopold Leo, for resp’t.
   Bischoff, J.

— Plaintiff sued for and recovered damages for injuries sustained by him when a passenger upon a car of the defendant, a corporation engaged in the operation of street cars drawn by horses in the city of New York. At the request of the plaintiff, and over the appellant’s exception, the learned trial judge charged “that, in respect to carrying passengers, a railroad company is bound to exercise all the care and skill which human prudence and foresight can suggest to secure the safety of their passengers.” Under the circumstances of many cases, the pro-' position charged might well Have been a correct rule of law. To this degree of care a carrier of passengers is often held, where the danger of great injury is attendant upon an accident which it would be within the power of the carrier to avoid. Palmer v. Pennsylvania Co., 111 N. Y., at page 492; 19 St. Rep. 493; Weber v. Railroad Co., 58 N. Y. 462. But the rule declaring the measure of “ordinary care” required of a carrier operating a steam railroad upon which cars are propelled with great velocity is not necessarily 'applicable where the act of carriage is performed through the agency of a street car drawn by horses. Unger v. Railroad Co., 51 IT. Y., at page 501. And in this case the facts shown did not appear to call for the application of any such stringent rule as that laid down. We cannot, by any means, hold that this instruction to the jury did not operate to the appellant’s prejudice, and there must be another trial of the cause.

Judgment reversed, and new trial ordered, with costs to appellant, to abide the event

Daly, C. J., concurs.

Pryor, J.

(dissenting). — The judgment is reversed upon a proposition to which I am unable to assent, namely, that the degree of care required of a carrier of pasengers whose vehicle is drawn by horse power is not the same as is exacted of a carrier by steam railway. This court is committed to the contrary doctrine by the adjudication in Maverick v. Railroad Co., and the decision was affrmed by the court of appeals. 36 N. Y. 378, 381. In Cod-ding ton v. Brooklyn C T. Railroad Co., 102 N. Y. 66, 69, the court of appeals reiterated the rule ; saying of a street-car company that “it was bound to use the highest degree of care and prudence, the utmost skill and foresight,” and that “such is the settled law.” I recall no authority in this state for the position maintained by my brethren. It is certainly not sanctioned by the cases cited in its support. How am I henceforth to charge the jury in an action by a passenger against a street railroad for injury in the carriage? that the defendant is to be held only to the exercise of •ordinary care ? The law, as it stands, may not consist with reason; but I apprehend that it may be abrogated only by this legislature, or by the court of last resort. I am for affirming the judgment.


text:
    Cornelius Bagley, Resp’t v. Consolidated Gas Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Hew Trial — Misdirection.
    A new trial must be granted When the court misdirects the jury, and such misdirection may have determined the verdict.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and for an order denying a motion for a new trial.

      Daniel Lord, for app’lt; Lorenzo Semple, for resp’t.
   Pryor, J.

— In an action for negligent injury to the person, these appear to be the circumstances of the accident: The plaintiff with other servants of the defendant, was engaged, under the direction of a foreman, in hoisting a heavy tank over the wall of defendant’s building. A scaffold against the wall, obstructing the •operation, was partially removed, but a fragment remained, with planks on its top. Through $he omission of the defendant to detach those planks, and through the negligence of the foreman in allowing an unsteady and irregular movement of the tank in the process of elevation, it dislodged the planks, and precipitated them upon the plaintiff, while standing under them in the act of helping to hoist the tank. The only issue in controversy at the trial was as to the negligence of the defendant. On the conclusion of the plaintiff’s case the defendant moved for a dismissal of the comp-plaint, and the exception to the denial of that motion presents the question whether the case should have gone to the jury. The immediate cause of plaintiff's injury was the fall of the planks upon his head. The cause of that fall was the irregular movement of the tank in the act of hoisting, and the cause of that irregular movement was the omission of the foreman to block or plank the tank. The foreman was the fellow servant of the plaintiff, Connolly v. Maurer, 6 Misc. Rep. 98; 56 St. Rep. 838; Geoghegan v. Atlas Steamship Co., 3 Misc. Rep. 224; 51 St. Rep. 868; affirmed in the court of appeals; and of course the defendant is not responsible for the negligent hoisting of the tank. Hogan v. Smith, 125 N. Y. 774; 35 St. Rep. 860. But the planks would not have fallen on the plaintiff had they been removed. To assist in lifting the tank, he was obliged to stand under the planks; and their fall is proof that their presence was of peril to him. The plaintiff was not afforded a safe place for the work required of him. It is the duty of the master to be careful in providing a safe place of work for the servant, and if he delegates that duty to a servant he is still liable for negligence in its performance. Fuller v. Jewett, 80 N. Y. 46; Kranz v. L. I. Railroad Co., 123 id. 1; 33 St. Rep. 46; Hankins v. N. Y., L. E. & W. R. R. Co., 142 N.Y. 416; 59 St. Rep. 802; Benzing v. Steinway, 101 N. Y. 547. The insecurity of the place from the superincumbency of the planks was a contributory cause of plaintiff’s injtiry, for it was their fall from their precarious position that was the immediate occasion of his hurt. Thus the negligence of the master concurred and co-operated with the negligence of the foreman in inflicting plaintiff’s injury; and so the defendant might be responsible for the injury. Stringham v. Stewart, 100 N. Y. 516; Ellis v. Railroad Co., 95 id. 546. Connolly v. Maurer, .supra, is distinguished from the present case in the circumstances that there no question was made as to the sufficient safety of the place for work,* and the injury was sustained by plaintiff’s going into a situation of danger by direction of a fellow servant. Hussey v. Coger, 112 N. Y. 614, 618 ; 21 St. Rep. 848. Here the only place in which the plaintiff could do the master’s work was one of insecurity and peril. We are of opinion that from the evidence the jury might well infer the fact of defendant’s negligence, and, that, therefore, the court committed no error in declining to dismiss the complaint, and to direct a verdict for defendant. Kranz v. N. Y., L. E. & W. Railway Co., 123 N. Y. I, 3; 33 St. Rep. 46.

Since our conclusion proceeds upon the postulate of the defendant’s freedom from liability for the negligence in hóisting the tank, and his responsibility, as matter of law, for the perils of the place in which the plaintiff worked, it may be thought that any misdirection of the court as to defendant’s liability for the foreman’s acts was necessarily of no prejudice to the plaintiff. No culpability is imputed to the defendant for the foreman’s negligence, and upon the proof the jury were authorized to find the defendant responsible for the insecurity of the place in which the plaintiff was working. Still, if by charge, or refusal to charge, the conrt gave the jury to understand that' they might find against the defendant because of its responsibility for the negligence of the foreman in hoisting the tank, we cannot know but that this was the very ground of the verdict; and, if so, such misdirection may have been of mischievous consequence. The court was requested to charge “that the defendant is not responsible to the plaintiff for the result of an accident occurring from the negligence of a fellow servant of the plaintiff,” to which the response was, “I charge this purely as a proposition of law, but it has no application, as the injury is alleged to have happened through the negligence of the foreman of the defendant,” to which statement the defendant duly excepted. Again, the defendant asked the court to charge “ that the negligence of a fellow servant is not to be imputed to the defendant, even though he be of superior capacity,” to which the answer was: “ I decline to charge that. It is one of the requests to charge, but is does not apply to this case. If you claim there was some evidence of negligence of the fellow servant, other than the negligence of the foreman, then I will charge that,” — to which -refusal to charge as requested due exception was taken. From the language of the learned judge it is obvious that he did not regard the foreman as the fellow servant of the plaintiff; that he communicated that notion to the jury ; that they were given to understand that the defendant was responsible for the negligence of the foreman ; and that the verdict may have proceeded, and probably did proceed, upon the negligence of the foreman in hoisting the tank. In fact, the proposition that the defendant was liable for the negligence of the foreman in any particluar of the transaction, pervades the charge throughout, and is, indeed, its most conspicuous and impressive feature. With no intimation from the court that the defendant might' be held for its negligent omission to protect the plaintiff by the removal of the planks, the jury must have founded their verdict upon the unsteady movement of the tank in the act of hoisting ; that is, upon the negligence of the foreman. The judgment should be reversed, with costs to abide the event. All concur.


author: Van Wyck, J.

text:
    In the Matter of Accounting by Henry Sanger Snow, as Committee of James H. Learned, a Lunatic.

      (Brooklyn City Court, General Term,

      Filed May 27, 1895.)

    Conflict of law — Committee of lunatic.
    Where the committee of a nonresident lunatic, appointed in this state, has made his accounting in the court of another state and a certain sum has been allowed him as compensation, he, on an application to the courts of this state to fix his compensation, will be allowed, under the rule of comity, only the amount allowed by the foreisrn court.

      Appeal from an order, fixing the amount of the committee’s compensation.

      Nichols & Bacon, for app’lt; Edmund L. Baylies, for resp’t.
   Van Wyck, J.

— This is an appeal from the order fixing the amount of Committee Snow’s compensation at $5,000. The appellant insists that it is too much. From the appeal papers it appears that James Hr Learned and Mary A. Learned were married in 1866, and lived happily together in Colorado, she contributed largely to the accumulation of his property, till he was, in 1883, officially declared a lunatic by the courts of that state; that on February 12, 1886, he was unwisely, through the efforts of his attorney, Horner, declared to have been restored to reason; that on March 25, 1886, Horner received from him a deed of all his property, then valued at $100,000, in trust to pay $8,000 indebtedness ; that in April, 1886, the said James H. Learned came to Brooklyn, and was -married to another woman, and was charged with some offense: that on June 29, 1886, said Learned was declared a lunatic by this court, and Snow was appointed the committee of his person and property; that there was substantially no property in this state, the equity in the house purchased here being worth but a trifle; that Mary A. Learned, the lunatic’s wife, commenced an action in Colorado to have • the deed to Horner set aside; that Snow intervened by attorney, who has been fully paid, in that action, to secure the payment to him of sufficient funds by the custodian of the property there to maintain the lunatic, and that from time to time he received, by order of the Colorado court,' from the custodian, sums aggregating $11,242 ; that the Colorado court called upon Snow, to account for his disposition of the same, and Snow, though objecting to the jurisdiction of the court, did present his account, in which he claimed $6,625 of the amount for his services, and offered proof as to the value thereof; that his compensation was fixed at $3,000; that Snow afterwards applied to this court to pass upon his accounts and fix the amount of his compensation, offering about the same proof of the value of his services as he did in the Colorado court, and that this court fixed his compensation at $5,000. His intervention in the Colorado suit, by attorney who has been fully paid, asking for means to support the lunatic, and his receipt from the Colorado custodian of the property of $11,242, and the payment out of the same of the asylum bills, amounting to about half thereof, for his care, seem to have been the chief services of this committee, though he rendered some others, the most important of which were the sale of a trifling equity in a Brooklyn house, and the settlement with the woman whom the lunatic had married in Brooklyn, for $250. Believing that the sum of $3,000 would be a full and fair compensation for the services rendered by the committee, we do not-feel called upon to decide whether the decree of the Colorado court on the question was res adjudícala, but we have no hesitancy in saying that the decision of the question there, after being litigated by both parties, is entitled by way of comity to weight -and respect by this court. That court was moved by the principle of comity to make the committeee (Snow) appointed by this court a defendant on his application in an action then pending in that jurisdiction, though the lunatic was represented therein, and to award him means for the lunatic’s support in this jurisdiction. Reciprocity should restrain us from totally ignoring the circumstance that the question submitted to the court here had been decided by the Colorado court, both parties having appeared therein and litigated the question there on the merits. Sulz v. Association, 145 N. Y. 573. We think the allowance to the committee should •be reduced to $3,000 as claimed by the appellant, with costs and disbusements to appellant to be paid out of the fund.