author: McAdam, J.

text:
    Margaret Arnold, Resp't, v. The Metropolitan Elevated R. Co. and The Manhattan R. Co., App’lts.
    Appeal from judgment entered upon the report of a referee.

      Davies & Sapallo, for app’lts; B. M. Felt, for resp’t.
   McAdam, J.

The judgment restrains the defendants from maintaining the-elevated railway structure in front of the premises Mo. 875 Sixth avenue, unless the defendants, within a time specified, pay the plaintiff $2,000 and interest, for a release of the easement, and $880 as and for past damages for six years-preceding the commencement of the action. The evidence satisfactorily sustains the findings of the referee and warrants the judgment rendered. _ No-errors were committed during the trial which require a reversal, and the judgment appealed from must be affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Jacob Bookman, Resp’t, v. The New York El. R. R. Co. and The Manhattan R. Co., App’lts.
    Appeal from judgment rendered by the court after a trial at the special term.

      Davies, Short & Townsend (B. B. Thomas, of counsel), for app’lts; Peekham & Tyler, for resp’t.
   McAdam, J.

The judgment appealed from fixes the fee and rental damage-to the plaintiff’s property and awards the usual injunction in case of non-payment.

The main objection urged by the appellants to the judgment, is that the-awards are excessive and not justified by the evidence. To prove this, the appellants’ counsel have made an anaylsis showing the values and rentals of the property in question and comparisions are made with other property in the vicinity. These subjects were all considered by Ihe trial justice in arriving at the result he reached, and were no doubt carefully weighed by him in his-review of the evidence.

The case seems to have been carefully tried, the evidence satisfactorily sustains the result arrived at, and as we find no' error in the rulings or the judgment, it follows'that there must be an affirmance, with costs.

Freedman, and Gildersleeve, JJ., concur.


text:
    Emerson A. Phelps, Resp’t, v. The Metropolitan El. R. Co. and The Manhattan R. Co., App’lts.
    Appeal from a judgment entered upon the report of a referee.

      Davies & Sapallo, for app’lts; B. M. Felt, for resp’t.
   McAdam, J.

The judgment restrains the defendants from maintaining the elevated railway structure in front of the premises known as No. 94 Sixth avenue, unless the defendants, within a time specified, pajr the plaintiff $1,200 for a release of the'easement and $400 damages. The evidence satisfactorily sustains the findings of the referee and warrants the judgment rendered. _ No errors were committed during the trial which require a reversal, and the judgment appealed from must he affirmed, with costs.

Freedman and Gildersleeve, JJ., concur.


author: Gildersleeve, J.

text:
    Benjamin B. Johnston, Resp’t, v. The Manhattan R. Co. et al., App’lts.
    Appeal from a judgment of the special term.

      Davies & Sapallo, for app’lts; Peekham <6 Tyler, for resp’t.
   Gildersleeve, J.

The judgment restrains the defendants from maintaining their elevated railroad in front of the plaintiff’s premises, known as Nos. 231, 233 and 235 Pearl street, in the city of New York, unless the defendants, within a time specified, pay to the plaintiff $8,000^ for a release of the easements; and it awards to the plaintiff $7,500 damages, besides $1,001.61 costs.

The evidence satisfactorily sustains the findings of the court below, and justifies the judgment rendered. No errors were committed during the trial which require a reversal, and the judgment appealed from must be affirmed, with costs.

Freedman and McAdam, JJ., concur.


text:
    Frederick Esper, Resp’t, v. The New York El. R. R. Co. and The Manhattan R. Co., App’lts.
    Appeal from a judgment of the special term.

      Davies & Sapallo, for app’lts; Peckham & Tyler, for resp't.
   Gildersleeve, J.

The judgment restrains the defendants from maintaining and operating their elevated railroad in front of the plaintiff’s premises, No. 987 Third avenue, in the City of New York, unless the defendants shall pay or tender to the plaintiff, within a time fixed by the judgment, the sum of §2,850, with interest thereon from October 20th, 1890, the day the action came on to be tried, as payment for the easements appurtenant to said premises, and accept a grant or conveyance of such easements, duly executed by the plaintiff and by all persons holding mortgages on said premises. It also awards to the plaintiff the sum of $2,249.04, for past damages, together with $283.29, for costs and disbursements.

We find no error in the rulings of the court below that call for a reversal of the judgment; and the evidence sustains the findings of the court below, and justifies the judgment rendered.

For these reasons the judgment appealed from is affirmed, with costs.

Freedman and McAdam, JJ., concur.


text:
    Katharine Neuman, Resp’t, v. The New York El. R. R. Co. and The Manhattan R. Co., App’lts.
    Appeal from a judgment of the special term.

      Davies & Sapallo, for app’lts; Peckham & Tyler, for resp’t.
   Gildersleeve, J.

The judgment restrains and enjoins the defendants from the further maintenance and operation of their elevated railroad in front of plaintiff’s premises, No. 985 Third avenue, in the city of New York, but provides that if the defendants shall pay or tender to the plaintiff, within a time specified by the judgment, the sum of $2,500, with interest thereon from October 20, 1890, the day this action came on to be tried, as and for payment of the value of the easements appurtenant to plaintiff’s said premises, and accept a grant or conveyance of such easements, duly executed by the plaintiff and by all persons holding mortgages on said premises, no injunction shall issue. It also awards to plaintiff the sum of $2,044.62, as and for past damages. together with $232.49, costs and disbursements.

We are of opinion that the preponderance of evidence sustains the findings of the court below, and justifies the judgment. The case seems to have been carefully tried, and we find no error in the rulings that would warrant a reversal.

Judgment appealed from is affirmed, with costs.

Freedman and McAdam, JJ , concur.


text:
    William B. Norman Resp’t, v. Solomon Johnson, App’lt.
    Appeal from a judgment, entered on the verdict of a jury in favor of plaintiff, and from an order denying defendant’s motion for a new trial.

      W. S. Beach, for resp’t; W. B. Waring, for app’lt.
   Gildersleeve, J.

The plaintiff is an auctioneer, and was employed by the defendant to make a sale at auction of a quantity of paintings. Before the-day fixed for the sale, the defendant notified the plaintiff that his services were dispensed with. Upon this refusal of the defendant to permit the plaintiff to conduct the sale, the plaintiff brought this action for breach of the contract of employment.

The right of plaintiff to recover depended upon the determination of issues of fact raised by the evidence, all of which were fairly submitted to the jury by the learned trial judge. The jury found in favor of the plaintiff, and we see no reason for disturbing their decision.

The exceptions to the ruling of the court are not of sufficient importance to require discussion.

. The judgment and order appealed from are affirmed, with costs.

Freedman, J., concurs.


author: Per Curiam.

text:
    George Langdon, Pl’ff, v. The New York Book Co., Def’t.
    Appeal from order denying motion to vacate order granting John B. Aldere. leave to sue receiver.
   Per Curiam.

The order appealed from should be affirmed, with ten dollars, costs and disbursements to be paid by the receiver.

Freedman and Gildersleeve, JJ., concur.


text:
    Samuel H. Randall, Resp’t, v. Jacob A. Sherman et al., App’lts.
    Appeal from order of reference.

      John Brooks Leavitt, for app’lts; Samuel HRandall, resp’t in person.
   Per Curiam.

The order should be affirmed, with ten dollars costs.

Freedman and Gildersleeve, JJ., concur.


text:
    William N. Pooley, Resp’t, v. Mendez D. Senior, App’lt.
   Per Curiam.

Plaintiff’s motion should be granted so far as it asks that the-general term order of October 10, 1891, be vacated and set aside and the plaintiff should have ten dollars costs of motion to be paid by defendant’s attorney personally.


text:
    Mary Cluff, Pl’ff, v. Henry S. Day and John Thompson, Def’ts.
    Exceptions ordered heard at general term in the first instance.

      Robert Owen, for pl’ff; O liarles B. Wilson, for def’t Day; Isaac Bromme, for def’t Thompson.
   Per Curiam.

Defendant’s exceptions were ordered to be heard in the first instance at general term.

The complaint neither states the facts conferring jurisdiction upon the surrogate nor alleges that the decree and amending order referred to in the complaint were duly made, and in this is bad. Section 533, Code Civil Pro.

While as to defendant Thompson it might not be improper to amend the-pleading so as to conform to the proof, as the decree was not put in evidence-against Day, it is best that the exceptions should be sustained and that there should be a new trial. Costs to abide the event. Ordered accordingly.

Dugro and Gildersleeve, JJ., concur.


author: Freedman, J.

text:
    Thomas G. Patterson, App’lt, v. William McIlroy, Resp’t.
    Appeal from judgment entered in favor of the defendant upon the verdict, of a jury.

      Palmer & Booihby, for app’lt; Howe & Hummel, for resp’t.
   Freedman, J.

The appeal being from the judgment only, the questions of fact are not open for review. The action was brought to recover damages for an assault alleged to have been committed by the defendant upon the plaintiff. The issues were submitted to a jury and determined by them in favor of the-defendant. The errors complained of relate to the charge of the trial judge and his refusals to charge otherwise. Upon an examination of the evidence bearing upon this branch of the case, none of the exceptions appear to be tenable. In view of the testimony given by the defendant, plaintiff’s requests for unqualified instructions to the effect that, as matter of law, the defendant had no right to return to plaintiff’s private office after he had been ordered to leave-it, and had started to do so, and that the plaintiff had a right to use the necessary force to eject the defendant, were too broad.

The judgment should be affirmed, with costs.

McAdam, J., concurs.


author: Van Brunt, P. J.

text:
    John H. Haar, App’lt, v. The Consolidated Carson River Dredging Co. et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Corporations—Injunction, when or anted.
    A stockholder in the defendant, a foreign mining corporation, brought an action to set aside a transfer of its property to another foreign mining corporation. Upon an application for an injunction and a receiver the defendant alleged that it was embarrassed by reason of the failure of the plaintiff to fulfil a contract upon the faith of which he had received his stock, that money was needed to develop the mining claims and that the transfer was bona fide. Held, that no ground for a preliminary injunction was shown.
    Appeal from order denying motion for injunction and re•ceiver.

      Lewis Sanders, for app’lt; Victor Dowling, for resp’ts.
   Van Brunt, P. J.

This action having been brought to set .aside the transfer of real estate situated outside of this state made by one foreign corporation to another, a motion was made for an injunction and the appointment of a receiver, which was denied. The court below by its opinion seems to have based its decision upon the ground that the court would not assume jurisdiction of •such an action, although such fact is not stated in the order.

W.thout passing upon the validity of the ground mentioned in the opinion we think that an examination of the papers in this case fails to disclose any case upon the merits in which an injunction should be granted or a receiver appointed.

The complaint alleges that the Consolidated Carson Eiver Dredging Co., having its principal office in the city of New York, is a corporation duly organized under the laws of the state of Nevada, with a capital of $1,000,000, divided into 100,000 shares, which were issued in payment of certain valuable placer claims along the Carson river, in the state of Nevada, of which shares the plaintiff owns 15,000, the defendant Eae 30,000, the defendant Forrester $10,000, and there should be in the treasury of the ■company 10,000 shares, and 10,000 shares donated by the defendant Eae to said company, or their proceeds, and that by the general statutes of Nevada it is provided that the corporate powers of said corporation should be exercised by a board of trustees; that the defendants, Forrester, Halstead, Eae, Jr., Cobb, together with oñe Harris, Douglass and Lowers, were and are the trustees of said company, and that defendant Christie was the assistant secretary of said company; that the defendants Forrester, Halstead,, Rae, Sr., and Christie, for the purpose of perpetrating a fraud •upon the rights of the plaintiff as a stockholder of said company and upon other stockholders in said company and said company, in August, 1890, together with one Olcott, associated themselves together as a corporation, under the name of the Carson River Placer Mining & Dredging Co., under the laws of West Virginia ; that the object and purpose of forming said company was the obtaining of the valuable placer rights of the Consolidated Company by a contract to be made by the defendants Forrester, Halstead,. Rae, Jr., and their associates as trustees of said company, claiming to represent said company, and the defendants Forrester, Hal-stead, Rae, Sr., Christie, as representing the defendant, The Carson River Placer Mining & Dredging Co.; that they published a: notice of the meeting of the stockholders ■ to be held at Dayton, Hev., the real object of which meeting was, as plaintiff accidentally learned, to get a resolution passed which, would authorize the sale of the property of the Consolidated Company to the Carson River Placer, etc., Co. without any adequate compensation, which object was defeated by plaintiff attending in person; that subsequently the individual defendants or some-of them, without notice to plaintiff otherwise than by publication in a newspaper, gave notice of the holding of another stockholders’ meeting published in the. Lyon County Times, of which me'eting the plaintiff did not obtain notice in time to attend personally or -by proxy; that at the meeting of stockholders of said Consolidated Company, held at the time of such notice, the defendantsForrester, Halstead, Rae, Jr., and their associates, claiming to represent said Consolidated Company,- sold, or pretended to sell,, to the Carson River Placer, etc., Company all the rights and property of said Consolidated Company without adequate consideration, in fraud of the rights of the stockholders, etc.; that the value-of said placer right so attempted to be sold has been estimated by competent judges, and assay at over $1,000,000; that plaintiff demanded of said defendant Forrester, the president of said Consolidated Company, and defendant Christie, its assistant secretary, to see the books of said company, and that they give an account of what they have- done with its property, which they severally declined to do; that the reason why the action was not. brought by said Consolidated Company was that said company and the board of trustees were under the control of the defendants Forrester, Rae, Jr., and associates, active participants in said frauds.

The complaint then alleges, on information and belief, that the-property and rights of said Consolidated Company are being converted to the use and benefit of said individual defendants and. the Carson River Placer,etc.,Company under said alleged transfer, to t.he great damage of said Consolidated Company and the plaintiff;. Wherefore the plaintiff prayed judgment for" a receiver of the-property of said Consolidated Company, and for an injunction re straining defendants from encumbering or disposing of or wasting any of the property of said Consolidated Company; that an account be taken, and that the pretended sale or transfer of $he property and rights of said Consolidated Company to the Carson Eiver Placer, etc., Co. be set aside and held for naught, and all such property restored to said Consolidated Company, and for other and further relief.

In the affidavit submitted upon this application made by the plaintiff he makes the usual affidavit "that one. of the conspirators told him that they were going to perpetrate a fraud upon himself and the other stockholders of' the company by selling out the property of the Consolidated Co. to the Carson Eiver Company and carrying on the enterprise through the new company.

The plaintiff sets out certain telegrams received from Eae, Jr., to whom he had telegraphed, who informed the plaintiff on the 12th of October, 1890, that the meeting had been held and the transfer made to the new company. The affidavit also contains the allegation that defendants have been engaged in trying to bind the minor stockholders to the transfer by sending them certificates ■of shares in the new company enclosing what purports to be a •copy of a letter from Eae, Sr. The plaintiff further states in his affidavit that he has examined said placer claims and estimates them to be worth from five to ten millions; and that the transfer .aforesaid was made with intent to defraud said plaintiff and other stockholders as well as said Consolidated Company.

The affidavit of the attorney of the plaintiff also appears, in which he swears to the intention disclosed by Eae to sell out the machinery and assets of the Consolidated Company to a new cornpany that had been formed and which had already purchased machinery which was then on its way to Dayton, Hev., because the Consolidated Company was in debt and could not pay its debts ; that on the 10th of September, 1890, said attorney called at the office of the Consolidated Co., at Ho. 18 Broadway, and there met Christie and Forrester, but neither stated to deponent that a meeting was to be held at Dayton on the 4th of October, although informed by deponent that he represented the plaintiff. It is to be observed that the publication of the notice of this meeting was, as disclosed by the complaint, on the 27th of September.

It is further stated in said affidavit that in October (what time is not stated), the deponent callediat the office of the Consolidated ■Company, at 18 Broadway, and met Forrester, who told him he had nothing to do with the Consolidated Company and knew nothing about it and showed deponent the glass door on which was painted : “ Carson Eiver Placer Mining & Dredging Co.,” and saying: “This is the office of this company: I cannot tell you anything about the other company,” and that deponent then asked him what became of the books of the other company and he said he did not know.

In answer to the motion, affidavits were read upon the part of the defendants Forrester, Eae, Sr., Christie, Halstead, 01 catt and Cobb, all of whom depose to a state of facts entirely inconsistent with those contained in the complaint of the plaintiff, except in respect to the organization of the corporations and the fact of the-transfer of the property.

It appears that the principal office of the Consolidated Company was at Dayton, Nev., and that the meeting at which this, transfer was decided was held at Nevada. It appears that- the Consolidated Company was embarrassed for want of means, and that this want of means arose from a breach of contract upon the part of the plaintiff by which he obtained the stock which made him a stockholder of this corporation. They deny that the property and rights of the Consolidated Company are being converted to the use and benefit of the individual defendants and the Carson River Company, and they aver that said last named company has possession of the property by virtue of a legal and bona fide sale; that the claims formerly owned by the Consolidated. Company are valueless until a practical test is made of their value, and that the Consolidated Company was unable to proceed for want of funds or means wherewith to raise them owing to a. breach of contract upon the part of the plaintiff

In this condition of the proof the issuance of an injunction would seem certainly to be unwarranted. The extravagant estimate of the value of this property placed upon it by the plaintiff seems to be absolutely unsupported by the evidence; neither is he shown to have any knowledge whatever which would enable-him to speak of their value. Here is no evidence of any attempt to encumber or secrete any of the property conveyed by the Consolidated Company to the Carson River Company, and as the-plaintiff waited from October, 1890, until February, 1891, before commencing this action, there seems to be no necessity whatever* for the interposition of the court by the extraordinary remedy of a preliminary injunction.

As for the appointment of a receiver, it is somewhat difficult, to see how a receiver appointed in this state of a foreign corporation could obtain possession of the property of that corporation situated within the country of its organization.

Upon the whole case, therefore, it would appear that there was-no ground whatever for the appointment of a receiver or for the ■ granting of a preliminary injunction, unless the rule is to be-adopted that whenever a plaintiff asks for an injunction such an order is to be issued.

The order should be affirmed, with ten dollars costs and disbursements.

Barrett and Daniels, JJ., concur.


author: Barrett, J.

text:
    Charles Whitlock, Resp’t, v. William T. Washburn et al., Ex’rs, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Will—Power nsr trust—Personal discretion.
    A testator devised certain lands to his two executors in trust “to sell all said real estate from time to time as the same can he sold to advantage. ” Held, that this created a power in trust involving the personal discretion of both executors, and that one could not make a contract which would be a good execution of the power.
    3. Same—Donee cannot delegate—Paeol evidence.
    Such a power cannot be delegated, nor can a contract under seal made by one donee of the power be shown to be the act of both.
    3. Same—Ratification,
    One ratifying an unauthorized act must be shown to have had full knowledge of the material facts.
    Appeal from a judgment in favor of the plaintiff entered upon the decision of a justice of the court at special term.

      N. G. Wood, for app’lts ; David McClure, for resp’t.
   Barrett, J.

This action was brought for the reformation of a contract for the sale of certain real estate in this city, and for a specific performance of such contract when reformed. The defendant Washburn is executor, and the defendant Richardson is executrix of the last will and testament of Benjamin Richardson, deceased. The latter in his life-time was the owner of the property in question, and by his will he devised this property, with other real estate, to these defendants, and to their successors in office, in trust, to sell the same, and to apply the proceeds in a certain manner not necessary to be now specified. The power is in the form of a direction “ to sell all said real estate from time to time as the same can be sold to advantage.” Both the executor - and the executrix duly qualified, and have since acted.

It is entirely clear that the title to the property in question was not vested in the executor and executrix. There was no such express trust as is authorized by law, and consequently, the land descended to the heirs of the testator subject to the execution of the power. At the same time it should not be overlooked that, as donees of the power, these defendants act under the will as individuals clothed with a personal trust, and not in their characters of executor and executrix. As was said by Duer, J., in Dominick v. Michael, 4 Sand., 409: “An executor, as such, has no estate in the lands of the testator and no authority to dispose of them. When he takes an estate it is as a devisee, and when an authority, as the donee of a power." It is true that, by the will, qualifying as executor and executrix is made a condition of the donees acting under the power; but having performed that condition, they act with regard to the real estate as devisees of the power thus created by the owner of the estate, and not under the authority conferred by the surrogate. Newton v. Bronson, 13 N. Y., 593; Conklin v. Egerton’s Administrator, 21 Wend., 430. The legal office of an executor should not be confounded “ with that,” we quote from the opinion of Gowen, J., in the case last cited, “ of one who is not so in any sense of the word, but who is the mere donee of a trust power ; an authority which, so far from having any reference to the office of executor, might just as well have been conferred by the will om any other not named as executor, and one who might have executed the power without probate or letters testamentary.”

It will also be observed that, although the direction to sell the xeal estate covered by the power is in a sense imperative, yet there is an element of discretion both as to time and advantage. This latter consideration is also adverted to in Conklin v. Egerton’s Administrator, and Cowen, J., quotes approvingly the rule laid down by Sherman, J., in the Ohio case of Wills v. Cowper, 2 Ham., 124, to the effect that even ah ordinary power given by the will to the executor to sell and convey land, that is, a mere “ power to do an act of- ordinary sale,” is a personal trust, and that to render a sale under such a power good and valid, the executor must personally assent and act. “ The opinion in this case,” Wills v. Cowper, said Cowen, J. (page 442), “ is farther material, as bearing on an argument advanced for the defendant in error, which supposed that a mere power to do an act of ordinary sale was not the subject of that special trust and confidence which is considered by the law as so strictly personal that it cannot be -delegated to another.”

Let us now consider the facts upon which the questions presented by this appeal arise. Upon the 28th of June, 1889, the defendant Washburn made a contract with the firm of R. H. Gibbs & Co., through one Murpliy, for the sale of a part of the real estate embraced within the power. The contract was in writing and under seal. In it “William T. Washburn, Exr.,” is named as party of the first part, and the instrument is signed, “ William T. Washburn, Exr.” It does not anywhere profess to be made on behalf of the estate of the testator nor in execution of the power conferred by the will. Nor was the executrix in any manner a party to it. Upon the face of the instrument, therefore, it is the naked personal specialty of William T. Wash-burn, who describes himself as “Exr.” and who in specific terms binds “ his heirs, administrator’s and assigns." The contract was prepared and signed with full knowledge on both sides of Mrs. Richardson’s existence as acting executrix, and the claim that there -was a mistake of fact in that respect is wholly without foundation. In fact, the contract was not even prepared by Mr. Washburn, but by a person who drew it at Mr. Murphy’s request ; and the vendee’s signature was procured by Murphy in the absence of Washburn. This Mr. Murphy testified that he asked Washburn if it was not necessary to have Mrs. Richardson’s signature, and that Washburn replied that one was as good as twenty. Murphy added that he had never asked Mrs. Richardson to sign the contract because he did not think it was necessary. Whatever mistake there was, was clearly as to the legal effect of the contract as drawn. There certainly was no mistake of fact. But the respondent does not attempt to sustain the judgment as to the reformation of the contract. To do so would indeed be a difficult task. For the reformation of a contract under seal between A. and B. so as to make it a contract with C. also, G. never having heard of it until after it was signed, on the ground of mistake of law as between A. and B., would certainly be a novelty even in modern jurisprudence.

We might properly rest here and-reverse the judgment upon the ground that the third finding of fact is unsupported by any evidence of “mutual mistake and oversight,” and that the first conclusion of law directing a reformation of the contract is therefore erroneous. But it is proper to go further and to-consider some of the other questions which have been presented.

The respondent claims, that even if the contract be not reformed in a technical sense, it should be treated as the contract of the non-signing executrix, for the reason that she consented to its being made, and also ratified it. Apart from the question of fact upon that head, which we will consider hereafter, there are legal difficulties in the respondent’s way. The contract is not that of the estate of the testator, nor of the executor as one of the donees of the power conferred by the will. As it is under seal, paroi proof is inadmissible to show that it was not Mr. Washburn’s individual contract. It is entirely well settled that an executory contract under seal for the purchase of lands, made by the vendee in his own name, cannot be enforced as the simple contract of another not mentioned in or a party to the instrument, on proof that the vendee named had oral authority from such other to enter into the contract, and acted as his agent in the transaction. Briggs v. Partridge, 64 N. Y., 357; Townsend v. Corning, 23 Wend., 435; Townsend v. Hubbard, 4 Hill, 351. In Spencer v. Field, 10 Wend., 87, it was held that even where the agent describes himself as agent or attorney for his principal, the contract is the contract of the attorney, not the principal.

How in the case at bar, there can be no doubt that as the power was vested in both executor and executrix, who had qualified and were alive, both were required to unite in its execution. 1 R. S., 735, § 112; Van Boskerck v. Herrick, 65 Barb., 250; Ogden v. Smith, 2 Paige, 198; Taylor v. Morris, 1 N. Y., 358; Berger v. Duff, 4 Johns. Ch., 368; Wilder v. Ranney, 95 N. Y., 12.

Mrs. Bichardson has neither united with Mr. Washburn in the execution of the power nor has she contracted to do so. Mr. Washburn did not profess to contract for her, and his contract covered nothing save the execution of the power on his part Hor could Mrs. Bichardson delegate her power. There was no imperative mandate to sell at once and at the best obtainable price. Whether the timé had come to sell to advantage, whether the price was adequate, whether the terms were satisfactory, were all questions which she was bound to consider independently. The element of discretion was there, and it was her duty as well as her right to exercise that discretion.

In Newton v. Bronson, 13 N. Y., 587, it was held that an exeecutor, empowered to sell lands in his discretion, cannot authorize an agent to contract for their sale, that the power is personal and cannot be delegated. It was also held that where such a contract has been executed by the agent without authority, it cannot, in the case of' an executor, be ratified by paroi. The rule is distinctly laid down that where the principal could not delegate authority to the agent to make the contract, the ratification must be in writing subscribed by the principal and in such form as to render the contract valid within the statute as one originally made by him. See also Hay dock v. Stow, 40 N. Y., 371. These views would seem to foreclose the plaintiff upon the law and to be decisive of this appeal. We have, however, considered the evidence upon which a paroi ratification is sought to be made out, and we find that it is wholly insufficient to warrant the finding of fact upon that head. It is clear that Mrs. Richardson knew nothing about this contract until some days after it was signed. Then Mr. Murphy saw her and said, we give his testimony, “ Good morning; you know I have sold those lots ? ” She replied, “Yes, I have told Mr. Wood"and Mr. "Washburn that they could do as they are a mind to in regard to the sale of those lots.” Then Murphy spoke of the sale being for $10,000, and that he thought he had made a good sale. She smiled and said, “I told Mr. Wood and Mr. Washburn.” This was Murphy’s direct testimony, and upon cross-examination he said that what thus took place between himself and Mrs. Richardson did not amount to a conversation; “ It was a passing remark; she was going out.”

This is substantially the testimony upon which the claim of ratification rests. Even that testimony is denied by Mrs. Richardson. But, granting its truthfulness, it amounts to nothing more than a loose declaration of a general and inconclusive character. It was not made with knowledge of all the facts nor with even a pretence of such knowledge. Mrs. Richardson may have known that the sale was for $10,000, but apart from that fact she knew nothing of the terms of the contract, nor did she even know the names of the parties to it. The rule is, that a person ratifying an unauthorized act done by another, in his behalf, must have full knowledge of all the essential facts, Wharton on Agency, §§ 65 and 615, and cases there cited; Seymour v. Wyckoff, 10 N. Y., 213; Rowan v. Hyatt, 45 id., 140; Ritch v. Smith, 82 id., 627, and where such act consists in the execution of a written contract, “it is," as was said by Peckham, J., in Rowan v. Hyatt, supra, “ essential that a party should know what contract has been made, and in a case of this sort, substantially how it was made, before his statement or letter can ratify or affirm it.”

Nor was there any evidence of original authority; that is, of authority to execute this contract on Mrs. Richardson’s behalf. It is true that prior to the signing of the contract there had been conferences between Mr. Washburn and Mrs. Richardson with regard to a sale. She was then told of Murphy’s offer and said that she would like to sell the lots, and that they had better sell them if what Murphy offered was a fair price. These and similar expressions were proved. But there was nothing whatever in these conferences or in the expressions there used, which authorized Mr. Washburn ultimately to act alone or to bind Mrs. Richardson by any contract. The case on both of these heads is weaker than that of Ritch v. Smith, supra. There the court intimated that there were circumstances sufficient to excite a suspicion that there was authority before, or information after, the agent’s act, yet the conclusion was that neither original authority nor subsequent intelligent ratification was made out. That is also our conclusion in the present case. Whatever Mrs. Richardson knew about either a proposed or an actual sale, she knew nothing as to its consummation, never authorized the contract which was signed, and never intelligently.ratified it after it was signed.

There are other and serious questions presented in this appeal which, in the views already taken of the case, it will be unnecessary to consider. We may say, however, that the judgment for damages against the estate is not warranted even by the findings which were made at special term. The contract was not upon behalf of the estate nor by the executor as such. Even if Mrs. Richardson had signed the contract (with Mr. Washburn,) that would not have bound the estate. It would still have been the contract of the donees of the power and not of the executor and executrix as such. Clearly, the estate cannot be mulcted merely because the donees of the power fail to carry out their contract for the sale of real estate made in execution of the power.

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

Van Brunt, P. J.; concurs.


author: Daniels, J. Ingraham, J.

text:
    William M. Tebo, Resp’t, v. Henry G. Jordan et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Charter party—Duty of master of vessel a question of law.
    A tug was towing barges off Nantucket Shoals. The night was hazy and a light which determined the course was not visible. The channel was narrow; with shoals on either side. The master miscalculated the force of the tide, and this, with the wind acting in the same-direction, stranded the vessel. Held, that it was error fi r the court to submit to the jury the question whether in such a situation it was the duty of the master to anchor, verify his position, and take soundings; that the duty of the master was a question of law.
    3. Same—Liability of one who charters a vessel.
    One who charters a vessel is bound to pay for it as long as he uses it, even though the vessel is unseaworthy.
    (Ingraham, J., dissents.)
    Appeal from a judgment recovered on a verdict, and from an order denying a motion for a new trial.

      J. A. JShoudy, for app’lts; W. W. Goodrich, for resp’t.
   Daniels, J.

The defendants entered into a charter-party with the plaintiff, who was the owner of the steamer B. T. Haviland, to tow their coal barges from Mew York, Philadelphia or Mew-port Mews, to Boston, or some other port not east of Portland, in Maine. This charter was made on the 23d of October, 1888, and was to extend from the 26th of the month to the 1st of May, 1889. The compensation to be paid for this use of the steamer was the sum of $2,200 per month, and the privilege was reserved of cancelling the charter upon one month's notice. It was further stipulated that the defendants were at liberty to place a representative on the steamer at any time they saw fit, who was to be free of cost to the tug, excepting the food, which was to be supplied. And for" damages which might be caused by the dangers of the sea the steamer was not to lie held responsible. Under this charter the steamer was engaged in towing the vessels or barges of the defendants until on or about- the 8th of December, 1888, when a notice was served declaring that the defendants would not employ the steamer after that date, on account of the stranding of December 2, 1888, and other injuries received by the tows while under charge of the steamer. The plaintiff declined to acquiesce in this termination of the charter, and after the expiration of one month from the service of the notice brought this action to recover the price stipulated for in the charter, after deducting what the steamer had otherwise earned during that month. And by way of defense to the action, it was alleged that through the carelessness or mismanagement of the steamer two of the defendants’ vessels, which it at the time had in charge, were run aground and stranded, from which injury was received by the vessels and a large amount of money expended in repairing those injuries. And whether this grounding of the vessels was attributable to the unskillfulness or negligence of the persons in charge of the steamer at the time was the subject mainly contested upon the trial of the action.

Under such a charter as this was, the rule is quite well settled that the owner becomes obligated to use care and skill in avoiding injury to the vessels constituting the tow. This rule was clearly stated in Alexander v. Greene, 7 Hill, 533, and has been sustained in the decisions of Wells v. Steam Nav. Co., 4 Seld., 375; Taft v. Carter, 59 Barb., 67; The Margaret, 94 U. S., 494, 497, and Steamer Webb, 14 Wall, 406. It therefore became a matter of fact to be determined from the evidence which was taken, whether the vessels were grounded by reason of the inattention, carelessness or unskillfulness of the persons in charge of the steamer at the time, or from what is denominated in the charter the dangers of the sea. It appeared by the evidence that the vessels and the steamer ran aground near what is called Monomoy island. They were then on their way from Newport News to Boston, and the vessels were laden with coal, one drawing about nineteen feet and the other twenty-ohe feet of water. This occurrence took place on Sunday night of the first of December, and about six o’clock in the evening. About that hour the steamer with the vessels in tow reached what is called and known as the Handkerchief Light Vessel. From there her course lay in a direct line to what is called the Shovelfull Light Vessel, and proceeding from that point to Pollock Eip Light Vessel. The distance between Handkerchief Light to Shovelfull Light was from three to five or six miles. And when about a third of this distance had been passed the steamer and the vessels ran aground. This was caused by the failure on the part of the steamer to follow the course laid down between these two lights, and passing so far to the left of the course'as to go beyond the channel and run into shoal water. And it' was by the stranding which there took place that it is stated the injuries complained of were sustained by the vessels.

On this trip a representative of the defendants was on board the steamer, and he, together with the persons in charge of the vessels, testified that the night was clear and dark, -and when the steamer with her tow left Handkerchief Light Shovelfull Light was in sight And if they were correct in their testimony, then it is entirely clear that there was no obstacle in the way to prevent the steamer from passing directly up the channel to Shovelfull Light. But that the night was clear was denied by the persons in charge of the management of the steamer. They testified that the night was hazy and foggy, and that Shovelfull Light was not visible prior to the time when the stranding took place, but that the light most prominently in view was the Monomoy Point Light, situated upon Monomoy Island. And that at this time the wind was blowing from a westerly direction, and the tide which was rising flowed in the same manner; and that there was reason to apprehend from the narrowness of the channel that the steamer and vessels might be run aground on the easterly side of the channel, and for that reason the course bearing to the west was taken. But it is conceded in the evidence of the master of the steamer that the force of the tide was misapprehended or miscalculated, and by that circumstance the steamer went farther to the westward than it was intended she should go. The intention is stated by him to have been to follow the course between Handkerchief Light-and Shovelfull Light, and that the steamer was put to port, as far as that was done, to follow what was supposed to be the line between these lights. And as there was a conflict between the evidence of the witnesses who were sworn for the defendants and this testimony given on behalf of the plaintiff, and the jury rendered a verdict in his favor, the effect of the evidence given on behalf of the plaintiff must be followed as the controlling proof taken upon the trial. This evidence was mainly obtained from the witness John Gully, who was the master of the steamer. He testified, as near as he could remember, he had made about thirty trips over the voyage upon which he was towing at the time when this accident occurred ; that he had charts of the route on board at the time, and was pretty familiar with them, and that he knew Shovelfull Light was a red light, which was a fact agreed to by the witnesses whose attention was directed to the appearance of that light

He further testified that as he approached Shovelfull on this voyage the wind was blowing on the port hand of the vessel, setting it over towards the Stone House shoals, and the tide was running in the same direction as the wind. His statement was that he could not see the Shovelfull light; that there was a haze low on the water. He could see all the other lights, which were higher and white lights, but Shovelfull was the lowest around in that vicinity, which, however, according to the other evidence, was very nearly of the same height as the light on the Monomoy Point. His testimony further was that he could not see Shovel-, full light, which had been put there for a guide, and if he could have seen Shovelfull at the time he. left Handkerchief he should have left it on the starboard side and kept it on the starboard bow until he got near to it, and then left it on the port side to pass up to the Pollock Rip lightship. His cross-examination was still more explicit as to the situation. He there stated that they shaped the course for the Shovelfull lightship, which was about three miles distant, and that the Shovelfull and Monomoy lights were a mile or three-quarters of a mile apart He also added, “ The Shovelfull lightship is one single red light. I did not see it when we came around the Handkerchief lightship first I saw it after we got off the shoal. Provided there was a perfectly clear horizon it should be plainly visible from Handkerchief lightship. It was a dark night, clear night, but I said before, and I say now, there was a haze on the water, low down on the water. It was kind of a very thick, misty looking haze. ” He also stated that it was very narrow there, and there are shoals each side of us going through there. It is a dangerous place, and that it was good navigation to go ahead when you cannot see and do not know where you are going in that case.

“After we got to Handkerchief lightship to go and anchor her I would stand about as good a chance of going ashore as I would going on; it was full of shoals all around; it is narrow, and it is policy to keep on; it was in a dense fog. He stated that it was an accident to have run on this shoal, and then said: “ It is liable to occur to any mariner, to the smartest navigator, because I couldn't see the light; it was hazy, and in running the course the vessel had got to windward of her course; I considered it very good judgment to keep to the weather side; it was a narrow channel.”-

These statements of the witness described the locality and the condition of the atmosphere, as well as the weather, as the jury probably accepted them in rendering their verdict. And the witness gave one further addition to them by testifying that it was hard to know what the actual strength of the tide was, and that he made a miscalculation; that it sometimes run stronger than at other times. His evidence was also, corroborated by the pilot of the steamer. And as this evidence must be accepted as that which is to be controlling over the disposition of this appeal, it presents the question whether the master of the steamer observed reasonable or ordinary care in endeavoring to navigate her as he did after leaving the Handkerchief lightship. The point to be reached Nvasjthe Shovelfull light, which,according to this evidence, was invisible. The night was dark, hazy and foggy, and the tide, as well as the wind, set against the port side of the steamer. And all that she then had to run upon was the course laid down by the chart from Handkerchief to Shovelfull and the light on the Monomoy Point. And in this condition, with a narrow channel, full of shoals all around, as the witnesses described it, the question arises whether ordinary care was observed in endeavoring to navigate the steamer with these tows through this narrow channel in this condition at that time.

A somewhat" similar state of affairs was considered in the case of The Deer, by Judge Blatchford, 4 Benedict, 852, and in the case of The Gratitude, 25 Fed..Rep., 160, and The Farnsworth, 6 id., 807, the tenor of which decisions would require that the master should come to an anchor and await a change in the condition of the weather, before undertaking to navigate the steamer and the tows through this narrow channel in the fog and haze stated by these witnesses to prevail at the time, and which prevented them from observing the Shovelfall light. All the other lights were visible, including the more distant Chatham light. This was the only one which is stated to have been concealed from their observation. And it was under this state of the evidence that the defendant’s counsel requested the court to charge the jury:

“ That if the weatlier was such that the master and pilot were unable to see the lights, and determine their position, it was .the duty of those in charge of the tug to anchor until they could -verify their position and proceed with safety.”

But the court declined to charge as requested, and on the contrary, charged as follows:

“I also leave it to the jury to say if the weather was such that the master and pilot were unable to see the lights and determine their position, whether upon all the evidence in the case it was the duty of those in charge of the tug to anchor until they could verify their position and proceed in safety, and I decline to charge as requested.”

The defendant’s counsel duly excepted to the refusal of the court to charge as requested, and to the charge as given in that behalf, as above stated.

Under the rule prescribed by the authorities the proposition which the court was requested to submit to the j ury appears to have been justifiable in view of the facts as they were related by the plaintiff's witnesses. For whether the steamer should have anchored, which was not proved to be an insecure precaution, was ■a proposition to be decided by the court. And as the channel was narrow and beset with known shoals and dangers, and the only light that could surely indicate the safe course to be followed was concealed by the fog, reasonable care appears to have required that to be done to ensure the safety of the vessels in charge of the steamer. ' And even if that should not be held to be the law of the case, it was clearly erroneous for the court to submit the question to the jury for them to determine whether it was the duty of the persons in charge of the tug to anchor until they could verify their position and proceed in safety. For that was submitting to the j ury not the determination of any matter of fact, but what should be the legal rule applicable to and governing the conduct of persons at the time in charge of this steamer. And to the submission of this question to the jury in this form the counsel for the defendants excepted.

•And that exception seems to have been well presented. For it was no part of the province of the jury, in case the position and weather were as they have been stated to be, to determine the duty of those in charge of the tug as to coming to an anchor until they could verify their position and proceed in safety. The more practical rule appears to be that where the channel was of the description in which it has been described by the plaintiff’s witnesses, and the night prevented them from discovering the point or light to which they were to proceed, that they should not attempt to prosecute such dangerous navigation until they were able to discover the light which was their guide, and proceed in safety. The same disposition was made of another proposition presented to the court, where the request was made for the direction to the jury that if the master or pilot were in doubt as to their position and the proper direction to pursue, that it was their duty to take soundings for the purpose of ascertaining that position. But this in like manner was declined by the court. And it was left to the jury to say whether, if that doubt did exist and the persons in charge were unable to see the Shovelfull light, it was the duty of the master or pilot to take soundings for the purpose of ascertaining their position. An exception was taken to the refusal to charge, and also to the charge which was given to the jury. ■ And the direction as it was given placed the jury in the position to determine what was the duty of the master or pilot in the situation which had been described. And as that was a legal principle to be settled by the court, it certainly was improper to submit it to the determination of the jury. An exception was also taken to' the direction given by the justice presiding at the trial that the defendants were bound to pay for the vessel as long as they used it, even though she was unseaworthy. But this proposition has the support of Work v. Leathers, 97 U. S., 379. And even without that authority it was clearly the law of the case, for subject to their claim for damages the defendants did not and could not legally deny their liability to pay the charter hire of the steamer up to the time when the notice was given terminating their employment of her. But as the jury should not have been permitted to decide upon the duty of the master or pilot, either in respect to taking soundings or coming to an anchor, which should have been decided by the court, and that authority confided to them may very well have been entirely decisive of the •case, the judgment and-the order should be reversed and a new trial directed, with costs to the defendants to abide the result.

Yah Brunt, P. J., concurs.

Ingraham, J.

(dissenting).—The sole question presented' for determination in this action was whether .the steam tug Haviland was seaworthy and was in charge of competent officers and with a qualified pilot. The court below submitted that question to the jury, stating in the charge: “ This question of seaworthiness is one that must-be determined by the jury upon all the evidence in the case. If the jury should find’ that the vessel was seaworthy and provided with a skillful master and pilot, then as matter of law I charge you that the defendant had no right to terminate the charter party and the plaintiff would be entitled to recover. If, on the other hand the jury should find as matter of fact that the vessel herself was not seaworthy or that the grounding off ISTantucket shoals and the other mishaps which it is claimed delayed the vessel in her voyage was due to the want of skill of the master or pilot, then the defendant had a right to cancel the charter party.”

The court then called the attention of the jury to the testimony and again stated to the jury the question that 'they were to determine as follows:

“ If they should be of the opinion that these mishaps occurred by reason of want of skill of the master or pilot, then the defendant had the right to cancel this charter. If, on the other hand, the vessel was in a proper condition and the master and the pilot had the proper skill to navigate the vessel over this course, and the going ashore and going out of the channel were due to the ordinary dangers of the sea, then the defendant had no right to cancel the charter party.”

The jury found a verdict for tlie plaintiff, thus finding that the tug was seaworthy, in charge of competent officers, and that the stranding of the barges was not caused by the want of skill on the part of the master or pilot, or one of them, and we think that this finding is sustained by the evidence.

The captain of the tug was forty-seven years old, and had been master of tug boats for twenty-five years and was well acquainted with Boston Harbor. The pilot Barnard was on board, and was nt the wheel piloting the vessel at the time the vessel ran on the .shoal, and there is no evidence to show that either the captain or the pilot were not competent men, skilled in their profession, ■except from the fact of the accident in question, and whether or not, under the circumstances, it was their duty to have.anchored instead of proceeding was a question that called for the exercise of their judgment as master and pilot of the vessel, and their determination to proceed cannot be said to be, on the facts that appeared on the trial, such evidence of incompetency or unskillful ness as to require the court to take the question from the jury, and so the course of the vessel in entering Boston Harbor, and the allowance to be made for the wind and tide, were questions that called for the exercise of their judgment, and it cannot be said that because they made a mistake in allowing for the strength of the tide so as to go out of the course it was such an error of judgment as to show, as a matter of law, that they were not competent and skillful navigators.

It was for the jury to say from all the evidence in the case whether or not the implied warranty of seaworthiness of the tug, and that the owners would furnish competent and skillful navigators, had been complied with, and the jury by their verdict have found that it had been, and that the accident that happened was not due to the want of skill on the part of the master or pilot, but was due to the ordinary dangers of the sea.

Upon that finding under the terms of the charter party plaintiff was entitled to their verdict.

The cases cited by defendant from the admiralty court do not apply, for the the court is' to determine the facts as well as the law, while in this case the facts were for the jury.

We have examined the requests to charge submitted by defendants and which were refused by the court, and we do not think that the defendants were entitled to have any of such requests charged. The form in which this question was submitted to the jury was certainly as favorable to the defendant as the facts warranted, and we think no error was committed that calls for a reversal of the judgment.

Judgment should therefore be affirmed, with costs.

Judgment and order reversed and new trial directed, with costs to defendants to abide the result.


text:
    Emily B. Von Hesse, Adm’rx, v. Theodora E. McKaye, Resp’t. Christian Von Hesse, Ex’r, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Trust—Personal property—Reserving the right to use it for. life.
    A father gave certain bonds to his son and took from him a receipt, under which the son agreed to hold them in trust for an adopted daughter, the bonds during the life of the father to be subject to his order. He subsequently stated to his son that his object in putting the bonds in trust was-to enable the son to swear that he had no property of the father in his hands in case a blackmailer should again attack the father. The father-received the interest on the bonds, and for a time pledged some of them for a loan. The son never parted with the actual possession. Held, that a valid trust was created in favor of the adopted daughter.
    (Ingraham, J., dissents)
    Appeal by the executor from a judgment recovered on trial at the special term.

      George H. Starr, for app’lt; Noah Davis, special guardian, and Chas. Francis Stone, for resp’t.
   Daniels, J.

The testator James McKaye, in his life-time, was the owner of ten Kansas Pacific bonds for the sum $1,000 of each. He resided in Paris, and his son William H. McKaye resided in the city of New York. And on the 21st of January, 1887, at the-instance of the testator, William H. McKaye executed and transmitted to him a receipt for these bonds, declaring that they were-to be held in trust by him for the adopted daughter of James. McKaye, who was Theodora Edith McKaye, and for her sole benefit and behoof, but which bonds, during the life of the testator, were-subject to his order. After his decease and the decease of his son,, which followed that of the father very closely, the plaintiff was appointed the administratrix, with the will annexed, of the estate-of William H. McKaye, deceased. And in that capacity she-brought this action to settle the title to these bonds which were claimed by Theodora Edith, the adopted daughter, and also by the executor of the estate of James McKaye. In support of the title of the adopted daughter it was claimed that .the receipt which was given for the bonds, then in the possession of William H. McKaye, created a trust in her favor, subject to the right of the executor to use the bonds during his life in case such use should become desirable or necessary. And in April, 1887, at the suggestion of William H. McKaye, this receipt was returned by the testator, and a copy of it was also transmitted to William H. McKaye, with a statement subscribed by the testator relative to the use of the bonds, to obtain a loan of $2,000 upon their security for him. This receipt and direction are as follows:

“New York, Jan. 21st, 1887.
“ Rec’d of my father, James McKaye, ten Kansas Pacific bonds, of one thousand dollars each, to be held by me in trust for his. adopted daughter, Theodora Edith McKaye, and for her sole benefit and behoof, said bonds for and during his life to be subject .to the order of my father.. (Signed)
“ W. H. McKaye.”
“ April 1, 1887, I directed my son, W. H. McKaye, to borrow for me $2,000, and to use as a security therefor two of the above mentioned bonds. J. McKaye.”

In a letter written by the testator relating to these bonds he stated to his son that the object of placing them in the hands of his sob in trust for Edith was that he might swear, if necessary, that he had no property in his hands belonging to the testator in. case a blackmailer should again attack him. In this letter, which was written on the 18th of January, 1888, he added further that he never meant to part with the right to dispose of the bonds during his life. But as his son seemed to be worried about the receipt given by him he returned it to him. He then added, however: “ But let the understanding between us be that at all times any portion of the bonds that may remain in your hands undisposed of by my order or request you hold for the benefit of Edith, and as her guardian and trustee, so that you can at all times swear that you have no property of mine in your hands.” And by a postscript to the letter he suggested to his son that he should keep a copy of the receipt in his tin box, which he might show if such a thing should be found expedient. On the 27th of September, 1887, he also wrote a letter to his son, stating that he desired about the middle of October to draw on him for about $500, $300 of which he would be enabled to reimburse himself for with the coupons on the Kansas Pacific bonds, and the other $200 were expected to be obtained from another source. And in October he did draw upon his son for this sum of money, as he himself said, against the Kansas Pacific bonds, and the $200 expected to be obtained from a Mr. Burwell. In November of the same year, by a letter then written, he referred to a loan of $2,000, and then suggested that if he concluded to borrow the-money in London, he would allow the interest money due him to be applied to the payment of that loan, and then the ten bonds would be free, and he could have them sent over to London if necessary. In the letter he further added that his only hesitation about having the bonds sent to London was that he might want them sent back to New York. And that he would write Mr. Lowrey by the next mail in regard to the trust, and ask his advice about having all the bonds returned to New York.

In December of the same year, by another letter, he also reiterated what he terms to have been his principal object in putting these bonds in trust for Edith. And then referring to these and other bonds, stated that his idea was to have all the bonds sent to New York to be held under the care of his son in the Safe Deposit Company. In January, 1888, he also wrote to his son that he expected to consult with Mr. Lowrey about, a trust deed of the bonds that were in London, and then added as he had stated "before, “As I have already written you I put the ten bonds you hold in New York in trust for Edith, to enable you to swear at .all times that you had no property, of mine in your hands! I did not intend to put the bonds in such position as that I could not use them during my life, and I do not now believe in any such construction of the receipt” After that he stated further: “ I do not want you to feel uneasy about the matter, so as soon as I see Lowrey I will send you another form of receipt so that you shall be relieved of all responsibility under the trust” This was followed by a letter referring to the ability of the son to borrow for the testator the sum of $2,000 on the security of the bonds he had in his hands. He also wrote to Mr. Lowrey in October, 1887, a letter containing the inquiry as to other bonds, “ How would it do if my wife were to re-deliver to me these bonds, and then that I should put them, with those now held by William in trust for Edith, into the possession of three trustees of which my wife should be one, together with yourself and my son William ? ”

It is not necessary to consider the admissibility of the statements of the testator subsequent to the time when the bonds were placed in the hands of his son, as they were stated to have been by the receipt subscribed by him and transmitted to the testator. For, throughout the correspondence, the trust is substantially acknowledged to have been created, as the receipt expressed that to have been the design of the testator. And when this receipt was to be returned the understanding was reiterated in the letter of the 18th of January, 1888, that the bonds were to be held and remain in the hands of the son for the benefit of Edith, as her guardian and trustee. These statements are unequivocal evidence of the intention of the testator to place the bonds in the hands of his son, there to» remain for the benefit of this adopted daughter, unless during the life-time of the-testator they should be used by him. And that, in judgment of law, did create a valid trust for her benefit. Jones v. Clifton, 101 U. S., 225-:230. And to the same effect is the conclusion that was reached in Van Cott v. Prentice, 104 N. Y., 45; 5 St Rep., 654.

The trust was created for the benefit of this adopted daughter, subject only to the contingency, and the right of the testator creating it to use the bonds or the interest accruing upon them during his lifetime.- And that circumstance, as these authorities settle the law tó be, did not invalidate the trust. It is true that possession of the bonds by the trustee was essential to the creation '■of the trust' as that was substantially held, in Martin v. Funk, 75 N. Y., 134; Phipard v. Phipard, 55 Hun, 433; 29 St. Rep., 294; and in the Matter of Crawford, 113 N. Y., 560; 23 St. Rep., 722; Jackson v. Twenty-third St., etc., R. Co., 88 N. Y., 520, and Young v. Young, 80 id., 430. But all that these authorities require to create a legal gift of the bonds in trust was established by the evidence. For they went into the possession of William H. McKaye, the trustee, and remained subject to his control, and the declaration of trust contained in the receipt, up to fche time of his own decease. They were at no time removed from that possession with a view of abrogating the trust, and no time used for the benefit of the testator in such a manner as to-be inconsistent with its existence.

After the decease of the testator three of the bónds were used to provide the sum of $3,000 for the embalment of his body and its return to and burial in the state of New York. This evidence was objected to on behalf of the executor, but inasmuch as it was no part of the design of the evidence to create a demand against him for the amount of the bonds which had been so used, the exception became entirely unimportant. What was claimed in behalf of. the beneficiary, the adopted daughter of the testator, was that she should be assured the title to the seven bonds which afterwards remained. And as no claim was made, or included in the judgment for the three bonds, or any part of their proceeds, the executor was in no manner injured by the production of this evidence.

The uncontradicted evidence given upon the trial as well as that contained in the letters of the testator proved the fact to be that he not only intended, but did create, a trust for the benefit of his adopted daughter in these bonds. They were in the possession of his son subject to- that declaration and arrangement. And the motive he had for placing them subject to this trust was of no controlling importance in the case. Even if he did design by means of the trust to place his son in a position where he could swear that he had no property of the testator in his -hands, and that was a leading object he had in view, still as he did create a trust for the benefit of this adopted daughter it was legal and valid, notwithstanding the existence of this motive or inducement. • And as the bonds, to the extent of seven, remained subject to the trust at the time of the decease of the testator, the title to them, as the beneficiary of the trust, vested in the adopted daughter, Theodora Edith.

The judgment from which the appeal has been taken should be affirmed, with costs.

Van Brunt, P. J., concurs.

Ingraham, J.

(dissenting.)—I think the evidence in this case-fails to show a delivery of the bonds to William H. McKaye as trustee sufficient to sustain a gift. There is no evidence as to the circumstances under which the bonds were delivered to William H. McKaye: all that appears is that at the time of his death, they were in his possession, and there was also in his possession a receipt which he appears to have given to his father, but which had been subsequently delivered by his father to him, whereby he stated that he received from his father the bonds to be held in trust for the defendant, Theodora Editlx McKaye, for her sole use and benefit and behoof, and which then contained the following provision: “ Said bonds for and during his life to be subject to the order of mv father.”

It does appear that the testator used the interest on the bonds dui’ing his life, and never parted with the right to control their use. He appears to have exercised all acts of ownership, and to have treated the bonds as his own property.

In Jackson v. Twenty-Third Street R. Co., 88 N. Y., 526, the court says: “ The delivery must be such as to vest the •donee with the control and dominion over the property, and to -absolutely divest the donor of his dominion and control, and the delivery must be made with the intent to vest the title of the property in the donee.”

The terms of the receipt given would indicate that there was no intention of the testator to divest himself of the dominion ■and control of the bonds, and his statements, acts and declarations, if they are admissible at all as against the respondent, ■all tend to show that he never did intend to divest himself of the ownership of the bonds, or of the power to use and control them in any way he saw fit.

I am unable, therefore, to concur in the affirmance of this judgment

Judgment affirmed, with costs.


author: Barnard, P. J.

text:
    John Foshay et al., Resp’ts, v. Frederick Robinson, Def’t, William A. Boyd, App’lt, and John W. Young et al., Resp’ts.

      (Supreme Court, General Term, Second. Department,

      Filed December 14, 1891.)

    Mechanic’s lien—Abandonment bt contractor.
    A contractor abandoned work on a building and the owner completed it in pursuance of a clause in the contract at a sum exceeding the amount remaining unpaid of the contract price. At the time of the abandonment the contractor had been paid the first two instalments, and the work required to entitle him to the thud was almost finished. Defendants Young et al. had filed a lien for material exceeding the amount of work" done on the third instalment. Held, that as they were the first lienors they were entitled to the amount of such third instalment, less the amount required to complete that portion of the work and to supply defects.
    Appeal by William A. Boyd from judgment entered on the report of a referee in an action to foreclose a mechanic’s lien.
    The following is the opinion of the referee:
    Woodworth, Referee.—The facts in this case are substantially .as follows: On October 19, 1886, the defendant Boyd, who owned a lot of land at Larchmont, entered into a contract with the defendant Robinson, by which the latter agreed to build a house for him for $7,820, payable in instalments as the building progressed, the third instalment of $1,800 being payable- when the plastering was complete, the fourth of $1,000 when the interior trim is complete, and the balance of $1,420 when the entire works were complete. Such payments were to be made subject to the proviso that the work should progress in a satisfactory manner and that the certificate of the architect be first obtained, such certificate, however, not to exempt the contractor from correcting any defects or making good any departures from the.specifications. The contract also contained this article : “Should the contractor at’ any time during the progress of said works refuse or neglect to supply a sufficiency of materials or workmen the owner shall have power to provide materials and workmen after ■three days notice in writing being given to finish the said works, and the expense shall be deducted from the amount of the contract.” The house was to be finished on May 1, 1887. The progress of Bobinson with the work he contracted to do was very-unsatisfactory ; the various portions of the building were not completed until long after the periods agreed upon in the contract; there were many defects and deviations from the contract Bobinson did not employ efficient mechanics nor a sufficient number of them, and there was a deficiency in the quantity and quality of materials, so that on the 28th day of May the plastering was not all on, the defects were not remedied, although Bobinson had been frequently requested by the architect to remedy them and the work was very far from completion.
    On the 20th day of May, Boyd served the notice stipulated for in the contract, that unless within three days he supplied a •specified number of workmen, he, Boyd, should proceed to finish the work at the contractor’s expense, and the contractor failing "to comply with the' notice, on May 28th Boyd undertook the completion of the work. I am satisfied from the testimony that Boyd was fully warranted in taking this step. At that time Bobinson had received the first two instalments, aggregating $3,600, leaving $4,220 still unpaid, for which amount, together with the value of some extra work, he afterward, on July 6th, filed his lien. The •defendants, Young & Tripp, on May 26th filed a lien for materials furnished amounting to $1,300, and the plaintiff, on June 6th filed a lien for $100. Boyd finished the contract at an expense -of $7,300, or $3,120 more than was remaining unpaid on the ■contract when it was abandoned by Bobinson. Bobinson claims that he. could have finished the work for $500, but these figures are utterly absurd in view of the clear and intelligent testimony •of McDowell. I am satisfied from • all the testimony that the amount paid out by Boyd was fair and reasonable.
    It is very evident, then, that Bobinson’s lien cannot be sustained. •
    As to the liens of the material men, the counsel for Boyd urges that if the contractor’s claim fails, the liens of the material men fall with it. It has been held by many of the earlier decisions in lien cases, that when it appears that nothing is due the contractor, the sub-contractor can recover nothing, he being simply subrogated to the rights of the contractor. Under these decisions the laborer and furnisher of materials had to bear the burden of the delinquencies and rascality of the contractor. But the statute of 18.85, interpreted by the courts in later cases, shifts this burden from the laborer to the owner, is more remedial in its application, and puts a more intélligent meaning into its title, which is “ An act for the better protection of mechanics and others.”
    The statute gives a lien for the principal and interest of the price and value of the materials, with this limitation only: “But in no case shall such owner be liable to pay by reason of all the liens filed a greater sum than the price stipulated and agreed to be paid in such contract and remaining unpaid at the time of filing such lien.”
    Mow by the terms of this contract Bobinson was to be paid $1,800 when the plastering is complete.” The testimony shows that when Boyd took up the contract the plastering was not complete. Robinson says it would have cost thirty-nine dollars to complete it. The evidence is that it actually cost $284. Whenever, therefore, the work arrived at that stage, the third instalment of $1,800 became due. And it makes no difference to the lienor whether Robinson completed the plastering or whether Boyd did it, except that the expense of completing would, by the provisions of the contract, have to be deducted. Boyd is bound by the contract after he takes it up precisely as Robinson was. He cannot alter its terms; he cannot charge the contractor with any greater sum than he expends, and if the expense is less than the amount due by the contract, the lien attaches to the difference. He is liable for $1,800 when the plastering is complete, less what it cost to complete it, just as much after he has assumed the contract himself as before Robinson abandoned it.
    In Foley v. Gough, 4 E. D. Smith, 724, the contract provided that if the contractor failed to finish, the owner on fifteen days’ notice might finish and pay out of any moneys due the contractor.. Held, that a fair interpretation of the contract was that the owner was to deduct what was necessary to complete the work out of-moneys unpaid, and that by failing to fulfil the contract the contractor forfeited only so much as the owner might be obliged to pay to complete.
    It is true that it eventually cost Boyd to complete the whole work far more than was payable under the whole contract, but that cost cannot be offset against the moneys due for completing the plastering. Besides, at the time these liens were filed no such expense had been incurred ; the third instalment was then earned, with the exception of $284, and the cost of remedying some defects, which I will refer to hereafter. All that can be deducted is the expense of reaching this third instalment, whatever that proves to be. The true question which determines the lienor’s rights is, what was earned by the contractor on this third instalment at the time of filing the liens.
    In Wright v. Roberts, 43 Hun, 415; 6 St. Rep., 769 (1887), the contractor did work to the extent of $4,000 and then abandoned his contract. Held, the present lien law limits the liability of the owner to the stipulated price of the contract, and remaining unpaid at the time of filing the lien. The evidence shows that a sum of money had been earned according to the agreed price in-excess of all payments and more than sufficient to pay the.lienors. There is no provision in the act of 1885 which directly or inferentially requires the contract to be performed fully as against a lien-for work and materials by a contractor; if the lienors have put their property into the Paige house, and if at the agreed price, deducting all payments at the time of the lien, there is enough to-pay, the act gives a lien.
    This case was affirmed by the court of appeals in 118 N. Y., 672; 28 St. Rep., 980.
    ■ In Van Clief v. Van Vechten, 48 Hun, 304; 15 St. Rep., 896 (1888), the court says: “ It is not the intention of the lien law to limit the" owner’s liability to such portion of the contract price as happens to be payable according to the terms of the contract at •the time of filing the lien; the true question is what was earned under the contract at that time; there is proof tending to show that a very considerable sum had been earned over and above the payments, and this sum, whatever it may be, is the fund to which the plaintiff has an equitable right under the lien law.”

      Larkin v. McMullen, 27 N. Y. Weekly Digest, 352 (1887): “ The contractor abandoned his work. He had earned and was paid $550, the contract price being $900. The amount paid by the owner to complete was less than $900. Held, that to the extent •of the difference between the contract price and the amount actually expended by the owner to complete the contract work the lien should attach. It was not the intention of the legislature to limit the owner’s liability to such amount of the contract price as liappens to be payable under the express terms of the contract at .the time of filing the lien.”
    After a careful perusal of the cases cited, and others, it is clear to me that the true question to be applied here is, what was earned •on this third instalment ? In other words, how much, after deducting the cost of the third instalment, was left unpaid. If .there was any balance, then to this balance the liens attach. The ■cost of finishing the rest of the work cannot be deducted from this payment, but only from the later instalments. For, supposing Bobinson himself completed the plastering and remedied the defects complained of so as to become entitled to the third instalment, and Boyd had then assumed the contract, it cannot be ■claimed under the cases cited that the expense of completion, be it many times greater than the balance of the contract price, can be offset against the lienor’s lien on this third instalment, however much it might extinguish the contractor’s claim. The lienor’s right becomes vested on the completion of the plastering to the extent of the balance unpaid after deducting the expenses.
    How, what expense had the owner a right to deduct from this instalment? First, of course, the expense of completing the plastering, which was $284. Second, the expense of remedying the defects in previous work which was necessary to make the work satisfactory to the architect and to get his certificate. One ■of these defects were sagging due to imperfect framing and insecure support of beams in the cellar; the cost of jacking up the building appears to have been about sixty dollars. This necessitated the pulling down and rebuilding the dining room chimney at an expense of $100. The back stairs were improperly constructed and cost $100 to rebuild. The mason work in the tower bulged, and was worth $100 to correct The cistern was not built deep enough, and had to be taken down, excavated deeper, and rebuilt at an expense of $125. There were other defects the expense of which does not appear by the testimony. This makes •a total of $769.
    Deducting this amount from $1,800, leaves $1,031, the amount earned on this payment to which the liens attach.
    The counsel for the material men claims that Robinson was also entitled to the fourth payment which became due when the trim was complete. Eobinson testifies that considerable trim was on, but it appears that it could not have been properly put on until the plastering was complete, and there is no. evidence showing how much it was worth or how much it cost to complete it. Besides, it appears that it was put on before the building was-jacked up, and consequently was not true when the building was levelled, and had to be taken off to a great extent and replaced by new trim; that it was only partially stained and oiled, and that improperly; that the front stairs were not built or trimmed ; that many of the windows and door frames had to be reconstructed that absolutely nothing had been done in the basement. I do not see how it is possible to decide that anything whatever was earned on the fourth payment, and the presumption is that it cost fully the amount of the fourth instalment to arrive at that stage of the-building when the interior trim was complete.
    My decision, therefore, is that the defendants, Young & Tripp, are entitled to judgment on their lien against Boyd, the owner, for $1,031 and interest from May 26, 1887, with costs, and against. Eobinson for the balance, $269, with interest. That the plaintiff is entitled to judgment against Eobinson for $100 with costs and interest, and that the defendant, Boyd, is entitled to a judgment against Eobinson for his costs only, no counterclaim against. Eobinson having been set up in his answer.

      A. G. Frcmsioli, forapp’lt; A. T. Hoffman, forresp’ts; Jas. 0. De La Mare, for deft.
   Barnard, P. J.

The appellant Boyd is the owner of a piece of land at Larchmont in Westchester county. He made a contract, with Frederic Eobinson to build a house thereon for $7,820. The payments were provided for by instalments. The two first instalments were earned and paid. The third instalment was $1,800' when the plastering was complete. The contractor failed to complete the work which entitled him to this payment and the owner, under a power contained in the agreement, took possession of the-work and completed the plastering. This cost the owner $284. There was some defective work done by the contractor amounting to $769. The contractor when he failed to complete the work had done some work towards earning the fourth payment which was $1,000, when the interior trim was complete. The owner' completed the house. The referee has found that at the time the contractor left the work he had earned more than he had received pay for, the sum of $1,031, after allowing for bad work which had to be repaired and which was deducted before this balance of $1,031 was reached.

The defendants Young & Tripp were the first lienors for material furnished for the work and their claim was greater than this balance; and to that firm was awarded the entire balance.

The case falls within the case of Van Clief v. Van Vechten, 48 Hun, 306; 15 St. Rep., 896; and Wright v. Roberts, 43 Hun, 413; 6 St. Rep., 769; affirmed, 118 N. Y., 672; 28 St. Rep., 980.

The case of Larkin v. McMullin, 120 N. Y., 206; 30 St. Rep., 902, holds only that under a contract which was not completed and where the referee found that nothing was due under it, no lien could exist in favor of a person who sold materials to the contractor. The questions of fact presented are supported by the evidence. The witness Tripp positively states that the articles for which the lien is claimed went into the house in question. The controversy was one-involving great doubt as to the omission of the contractor and the value of the work actually done when he abandoned the performance of the contract. The trial court was the best judge of the credibility of the witnesses and no case is presented on question of fact upon appeal unless the evidence is of such preponderating weight that a reversal is called for for that reason.

Ho such case is presented and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Michael Daley, Resp’t, v. Theodore Hellman et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Tenue—Change oe.
    In an action brought in Queens county for malicious continuance of an action against plaintiff’s assignor, defendants asked a removal to New York on the ground that the cause of action accrued there, the papers in the former action were filed and most of the witnesses resided there. Plaintiff’s affidavits showed that both he and his assignor resided in Queens county; that the papers referred to were printed, and that most of the questions involved in the issues were ones of law. Held, that an order refusing to make the change was proper.
    Appeal from order denying motion to change the place of trial from Queens county to the county of New York on the ground of the convenience of witnesses.
    Action to recover treble damages for the malicious continuance "by defendants of an action brought by the Metropolitan Concert Co. against plaintiff’s assignor, Sperry, and another. Defendant’s affidavits used on the. motion set forth that the cause of action arose in New York; that the papers in the action named were there filed; that their witnesses resided there, and that neither plaintiff nor his assignor, so far as they could learn, resided in Queens county.
    Plaintiff’s affidavits in opposition to the motion stated that both Re and his assignor resided in Queens county; that the papers in the former action are printed and a certified copy of them will cost less than witness fees; and that most of the issues are issues of law, and that most of defendant’s witnesses are not material.

      Eugene Seligman, for app’lts; Henry Cooper and Howard A. □Sperry, for resp’t
   Dykman, J.

This is an appeal from an order denying a motion to change the place of trial from the county of Queens to the county of New York for the convenience of witnesses.

As a general rule motions to change the place of trial from any of the counties in the second judicial district to New York are denied, because such change not only fails to subserve the convenience of witnesses, but imposes great inconvenience upon parties.

In this particular case the order was fully justified by the affidavits, and the convenience of both witnesses and parties will bepromoted by a trial at Long Island City in Queens county instead of New York.

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


text:
    Lawrence B. Valk, Resp’t, v. Ferdinand McKeige, App’lt, et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Contract—Substantial performance.
    Where it is apparent that the contractor intended to fulfil his contract, and the defects amount to but a small portion of the contract price, a finding of substantial performance is proper, and the contractor may be. allowed to recover the contract price, less the amount of such defects.
    2. Same—Extra work.
    The finding of a referee as to the amount due for extra work upon conflicting-evidence will not be disturbed, even where some portions are based upon the evidence of the plaintiff.
    S. Mechanic’s lien—Costs.
    Upon a recovery by the plaintiff in an action to foreclose a mechanic’slien, although such recovery is less than he claimed, he is entitled to costs •where the defendant denied everything and asked a dismissal, and the-litigation was severe and protracted.
    Appeal from judgment of foreclosure and sale in an action to' foreclose a mechanic’s lien, entered upon the report of a referee.
    Defendant McKeige is the owner of the building upon which the work was done; plaintiff is the principal contractor and lienor, and the other defendants are sub-contractors-and lienors.

      Gratz Nathan, for app’lt; 0. N. & F. T. Payne, for resp’t, Valk; Fred. Ingraham, for resp’ts, Powers Carman and Mirchell • William B. Davenport, for resp’t Lewis.

   Barnard, P. J.

The plaintiff agreed to construct a house for McKeige for $7,000. This sum was payable by instalments, and all the instalments have been paid except the last one, which was $500, payable upon the final completion of -all the work. The question first presented is whether the building was substantially completed so as to entitle the plaintiff to receive this amount, less such items as were required to fully complete the contract. The referee has found the defects to be $275 and that, the contract was substantially performed. This brings the case within the rule laid down by the court of appeals in Nolan v. Whitney, 88 N. Y., 648. The defects in that case were $200 in value, and a judgment for the plaintiff allowing that sum uponthe instalment, was upheld. In this case it appears that extra work was done upon the house exceeding in amount the omissions. It is manifest' that the plaintiff intended to fulfil, and the finding that he did substantially fulfil is supported by the evidence. There is strong proof given tending to show that the work was fully done and according to .the contract in the first instance.

. There was proof that other work was done finally to complete according to specific objection of the owner.

The referee made a liberal allowance for defects under this evidence. This was allowed for extra work.

The plans were changed in some respects, and more work was ■done at the owner’s request than was called for by the contract. The referee has allowed $549.79 for this extra work. Nearly half of this is in one item for extra plumbing. That the plans as to the plumbing were changed is not disputed and that the cost was increased. The amount claimed was admitted in the case, and the concession was withdrawn. The witnesses as to the difference in cost varied. The lowest estimate was $160 and the referee'has allowed $220. The finding cannot be set aside under the rules governing appeals. Another considerable item is for extra work done in coloring the walls. The contract called for white walls, and the coloring was put on at the request of the owner’s wife and with his assent The coloring was an experiment and failed, and the plaintiff was compelled to remedy the failure. The proof shows that it cost $162.75, which was allowed by the referee. The mouldings in the dining room and parlor were changed at the owner’s request from pine to oak. The difference allowed by the referee supports the finding of fifty dollars therefor. The painting in parlor was extra, and the only question about it is whether twenty-five dollars was enough to pay or forty dollars allowed by the referee. The proof is conflicting on the subject. The extra carpenter work allowed is $71.54. The sum is made up of various small items, which rest almost, if not quite wholly, upon the testimony of the plaintiff. These items are particularly specified in the evidence, and if that is credited the finding is fully supported. There is no reason why the plaintiff’s statement in respect thereto should be discredited on appeal.

The costs were properly allowed. It is true that the plaintiff ■claimed more than he got, but there was no offer, and the litigation was severe and protracted. The rule governing actions at law in respect to costs should be applied to the case. The parties differed as to the amount due the plaintiff and through him to the other persons, who put means, labor and material in the building. The defendants denied everything and asked for a dismissal, with costs. The judgment is right in granting costs against him on the plaintiff’s recovery.

Judgment affirmed, with costs,

Dykman and Pratt, JJ., concur.


text:
    Louis P. Weigmann, Resp’t, v. Benjamin Sire et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Verdict—Conflicting evidence.
    In an action for work performed under contracts, by plaintiff’s assignor, the defense was breach of contract and payment. The evidence was conflicting and irreconcilable, and the case was submitted to the jury under a proper charge. Held, that their verdict was final on the questions of fact..
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    The action is brought to recover moneys alleged to be due plaintiff for work, labor and services, and materials furnished by-plaintiff’s assignor in constructing and erecting fire-escapes on the premises of the defendants. The complaint sets forth three causes-of action. The three defendants answered separately. The second cause of action is for seventy-five dollars, and the defense-interposed was a tender of that amount. The third cause of action is for fifty-five dollars, and the answer was breach of contract in failing to complete the work. The first cause of action is for $1,146, and the defense pleaded was failure to comply with, the contract in constructing the fire-escapes and payment by defendants 'for such incomplete work before commencement of the action. The defense to the second cause of action was conceded by plaintiff. There was a conflict of testimony with respect to-the third cause of action.

      Albert I. Sire, for app’lts; H. M. Gescheidt, for resp’t.
   Barnard, P. J.

The record shows nothing but a question of fact. The complaint is based upon facts which showed that one Catharine H. Mittnacht rendered services and furnished material on three separate premises for the defendant The complaint claims $1,146 for one contract, $75 for another, and $55 for the third. The answer states that the contract for which $1,146 is claimed was $960, which was paid. That the contractor failed to execute the $55 contract. The $75 contract is denied. The plaintiff is the owner of the several claims by assignment fromCatharine H. Mittnacht. The parties differed irreconcilably. The-plaintiff’s witness gave proof tending to show that the whole claim in the complaint is due. The defendants gave evidence to the contrary, and in support of the answer. Proof was given of a $750 payment by defendants to Miss Mittnacht, and she gave positive proof that no such payment was ever made. Proof was-given in respect to the performance of the $75 and the $55 items.

The whole case with its many contradictions was sent to the jury under a clear charge in respect to the issues on the several items, and as to the payment, and as to the performance of smaller items. The jury have passed upon the questions. The conflict is so great, and the evidence is so strong on each side, with no-such preponderating force to either side, that the case falls within the general rule that the verdict of the jury is final upon a disputed question of fact.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.