text:
    Thomas C. O’Connor, App'lt, v. The New York and Yonkers Land Improvement Company et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

      t. Costs — Injunction.
    The costs and expenses of a reference to assess the damages resulting from an injunction, are recoverable.

      2. Former adjudication — Between defendants.
    A judgment for or against the plaintiff is not res adjudicata of the matters determined, in favor of one defendant as against a co-defendant, where they were not joint and no issue between them was tendered or litigated.
    8. Same.
    A judgment, which determines a question, upon the basis of which a reference to assess damages is directed, estops the parties from litigating the same question upon the reference.
    4. Evidence — Damages — Injunction.
    In an action to recover damages resulting from an injunction, evidence to show that further speculation with the subject matter enjoined might have reduced the loss, is incompetent.
    Appeal from an order confirming the report of a referee in proceedings for the assessment of damages occasioned by an injunction order granted pendente lite.

      Reeves & Todd, (.Ambrose G. Todd, of Counsel), for app’lt; Francis B. Ohedsey, for resp’ts.
   Bischoff, J.

No error is is predicable of the award of costs and expenses of the reference to assess the damages resulting from the injunction. Lawton v. Green, 64 N. Y. 326, is to the effect that such costs and expenses are not recoverable, except as part of the damages secured by the undertaking given when the injunction order was obtained, but that case was decided with regard to the provisions of the Code of Civil Procedure, which was then in force. The Code of Civil Procedure, however, has since expressly provided for their recovery. Section 623 authorizes a reference in proceedings to assess the damages resulting from an injunction. Section 8236 provides for the allowance of motion costs, in the discretion of the court or judge, upon a reference made pursuant to § 623 ; and section 3251 further provides that upon a reference specified in section 3236 the court or judge may award costs not exceeding ten dollars, besides necessary disbursements for referees’ fees. As part of its damages the defendant corporation claimed the purchase money agreed to be paid by Edwards and Lowerre upon the sale to them of an option for 'the purchase of a tract of land, which purchase-money defendant maintained, was lost to it because of its inability to conclude the sale to Edwards and Lowerre by reason of the injunction. Upon the hearing before the referee, the defendant gave in evidence a judgment-roll in an action in the Superior Court of the city of New York, wherein Edwards and Lowerre were plaintiffs and the plaintiff and defendant in this action were co-defendants. The superior court action was brought to enforce the specific performance of an alleged contract for the sale of the option to Edwards and Lowerre and to restrain the sale of the option to the plaintiff in this action. Both defendants in the superior court action answered the complaint therein, the defendant corporation admitting the contract with Edwards and Lowerre and claiming the agreed purchase-money, the defendant O'Connor denying it. The only issue tendered by the pleadings, and litigated, arose between the plaintiffs and defendants. Ho issue arose, or was litigated, as between the defendants, and nothing was determined as between the latter. The court found as matters of fact that the contract with Edwards and Lowerre was made but that neither party thereto was ready to perform. Hence a judgment for both defendants for dismissal of the complaint, upqn the merits, without costs to either party resulted. A judgment rendered in an action for or against the plaintiff therein is not res adjudícala oí the matters determined, in favor of one defendant as against a co-defendant, where1 the in- ■ interests of the defendants were not joint, and no issue between them was tendered or litigated. Neither of such defendants is estopped from disputing the matter so determined as against the other. Am. & Eng. Ency. of Law, vol. 21, p. 152 ; Black on Judgments, vol. 2, sec. 599; Freeman on Judgments, 4th ed., sec. 158; McMahan v. Geiger, 39 Am. R. 489; Beveridge v. N. Y. El. R. R. Co., 112 N. Y. 19; 20 St. Rep. 962. Unless, therefore, plaintiff was otherwise estopped, it was error on the part of the referee to exclude evidence offered for the plaintiff which tended to show that no contract for the sale of the option to Edwards and Lowerre was in fact made. That the evidence excluded was material is apparent from the fact that the damages claimed by and awarded to the defendant corporation-arose exclusively from the alleged loss of the purchase money agreed to be paid to it by -Edwards and Lowerre. It was, however, among the facts determined by the judgment in this action, upon the footing of which the-reférence to assess damages was directed, that such a contract was entered into. Hence the plaintiff was thereafter estopped from litigating the same question and the evidence offered was for that reason properly excluded. The referee did nbt err in his exclusion of evidence by which it was sought to show that a further speculation upon the part of the defendant corporation with regard to the land constituting the subject matter of the option might have resulted in some reduction of the loss which ensued from non performance of the contract with Edwards and Lowerre. 'No such hazardous embarkation was required of the defendant corporation. Roberts v. White, 73 N. Y. 375. The evidence is abundantly to the effect that Edwards and Lowerre, at the time appointed therefor by the terms of their contract with the defendant corporation, were ready and able to complete the purchase of the option by payment of the agreed purchase money, and that the defendant corporation was prevented from completing the sale, by acceptance of the purchase-money and transfer of the option, by means of the injunction obtained at plaintiff’s instance. Whether or not, Edwards and Lowerre, with or without the aid of a proposed syndicate, were able to avail themselves of the option by the purchase of, the land, which was the subject matter of the option, was a totally irrelevant and immaterial inquiry. Having realized the purchase-money for the sale of the option the defendant corporation was not thereafter to be affected, either beneficially or injuriously, by Edwards and Lowerre’s failure to benefit from the option acquired by them.' 'All evidence, therefore, offered on plaintiff’s, behalf to the effect that the proposed syndicate was never formed was irrelevant and immaterial, and upon that ground properly excluded. Other exceptions.which appear from the record are not specially urged upon this appeal, and upon examination do not require a reversal of the order. Order affirmed with costs and disbursements.

Daly, 0. J., and Pryor, J., concur.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Henry Oellerich, Resp’t, v. George A. Hayes, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    Master and servant—Appliances.
    A master is not answerable to a servant for an injury from an unsafe implement which, upon the failure of the master to provide a better, the servant substitutes without the knowledge or authority of the master.
    Appeal from judgment on verdict and order denying new trial. Action for personal injury from negligence. Plaintiff, in the service of defendant, was furnished an insufficient ladder for the prosecution of his employment. He declined use of the ladder; but, in conjunction with his co-servants and without the defendant’s authority, Selected an insecure and unsafe substitute by which he was injured.

      Alexander T. Goodwin, for app’lt; Dwight S. Mason, for resp’t.
   Pryor, J.

The appellant relies exclusively on his exceptions to the denials of his motions to dismiss the complaint; his contention being that the evidence was insufficient to authorize a verdict against him. The plaintiff was the servant of the defendant, and he sustained the injury from an insecure implement with which he was working in the prosecution of his employment. The point we are to adjudge is, whether the defendant be responsible for the defective appliance which caused the plaintiff’s injury. The defendant furnished the ladder, but not the plank necessary to its use. That, he alleges, custom required to be supplied by the plasterer. But, this custom, of which it is not apparent that the plaintiff had notice, regulated only the relations between the defendant and the plasterer, and was inoperative to affect the defendant’s liability to the plaintiff. As master he was bound to his servant for the security of the ladder; and this obligation he could not escape by transfer to another. Mann v. D. & H. C. Co., 91 N. Y. 495, 500. The insufficiency of the ladder, however, as furnished by the defendant, was not the proximate cause of plaintiff’s injury; for he declined to use it as left incomplete by the defendant. In conjunction with others, his fellow-servants, he undertook to provide a substitute for the ladder; and his injury was the effect of the insecurity of that substitute. But, upon no principle and by no authority can a master be held liable to a servant, who, refusing the use of an deficient appliance provided by the master, himself chooses to supply a substitute so insecure as to cause the injury of which he complains. True, the defendant was at fault in not furnishing a complete appliance; but he never' authorized the plaintiff to use the substitute by which he was hurt. The thing that occasioned the plaintiff's injury was of his own adoption ; and its insecurity the sole cause of his injury. To repeal the inference of defendant’s responsibility it is enough to say that the plaintiff was not injured by the implement he provided, but by an appliance, which unknown to him and sanctioned by him, the plaintiff elected to employ. ' Not only was no act of the defendant a proximate cause of the plaintiff's injury; but the injury was exclusively the effect of the plaintiff’s own act. The so-called foreman was not appointed to superintend generally the execution of defendant’s contract, but was merely leader of the gang engaged on a particular piece of work. He and his co-laborers were fellow-servants. Connolly v. Mauer, 56 St. Rep., 838.

Had the defendant delegated to him the duty of selecting or providing a platform for the use of the plaintiff, the foreman would have represented the defendant in the performance of that duty, and his negligence would have been the defendant’s negligence. But, upon the evidence it is not apparent that the foreman was invested with-any authority in respect to the instrumentalities of work; on the contrary, the defendant himself supplied and designated the ladder for the lathing. That ladder the foreman rejected, and, of his own volition, selected a defective substitute. When the implement provided by the master was found unfit, the servants were absolved from the obligation of using it; but they were not authorized to adopt another of inadequate security, and then charge the master with the consequences of their own improvident action. Benzing v. Steinway, 101 N. Y. 547, is distinguishable by the essential circumstances that the de-, fendant had either furnished the insufficient appliance; or else having furnished none, left the supply of one to the discretion of the foreman. It. is immaterial to remark further, that in the case at bar the plaintiff well knew the condition of the implement he used, for he participated in its construction; and that so his injury was the result of his own concurring negligence. Benzing v. Steinway, supra, p. 551; Kranz v. L. I. R. R. Co., 123 N. Y. 1, 5 33 St. Rep., 46.

.7udgment and order reversed, and new trial awarded, costs to abide the event.

Daly, C. J., and Bischoff, J., concur.


author: Daly, C. J. Pryor, J.

text:
    Mary Fiske Paget et al., Resp’ts, v. Charles G. Stevens, as Trustee, etc., App’lt, et al.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Jurisdiction—Trustee—Non-resident.
    The court of common pleas for the city and county of New York has jurisdiction of an action brouglit.by a resident of the city of New York, against a non-resident of the state to remove him from the office of testamentary trustee, and to make an order for substituted service by publication, when real estate, subject to the trust, is situated in said city.

      2. Same.
    In such a case, the cause of action, being the detriment to the trust prop- ' erty, arose in the city of New York where part of the real property is situated.
    3. Same.
    Where one of the plaintiffs is a resident of the city of New York and the other a non-resident, having a common but not a joint interest, the action is one brought by a resident of the city.
    Appeal from an order of the special term denying the motion of the defendant Charles Gr. Stevens to vacate an order for publication of the summons against him.
    Burrill, Zabriskie & Burrill (George Zabrislcie, of counsel), for app’lt; Iloadley, Lauterbach & Johnson (George Hoadley and John Vernon Bouvier Jr., of counsel), for resp’ts.
   Daly, C. J.

The action was brought to remove the defendant Charles Gr. Stevens from his office as trustee under the will of Paran Stevens, deceased, which was admitted to probate by the surrogate of New York county on May 81st, 1872. The deceased died seized of valuable real estate in three states, namely, New York, Massachusetts and Ehode Island, in the cities of New York, Boston and Newport respectively ; and that which is situated in the city of New York is subject to certain trusts created by the will; one equal third part of the estate being devised to the widow Marietta E. Stevens, to Charles Gr. Stevens and to John L. Melcher, in trust for the testator’s daughter Mary F. Stevens, now Mary F. Paget. Marietta E. Stevens and Mary F. Paget are the plaintiffs herein and Charles Gr. Stevens and John L. Melcher aré defendants. Mrs. Stevens is a resident of the city of New York. Mrs. Paget resides in England and John L. Stevens is a resident of Boston, Mass. The last named defendant questions the jurisdiction of the court in this action, and its power to order substituted service of the summons upon him by publication. If the contention of the defendant be correct then it would seem that the courts of this state are powerless to interfere for the protection of the trust estate, which includes a large body of real property within their jurisdiction, so long as any of the trustees remain out of the state, so that personal service therein of the summons in an action cannot be made upon such non-resident. And it would also seem that so long as the trustees reside in different states it would be impossible to find any court having jurisdiction to reach them no matter what interference might be necessary for the enforcement of the trust and the protection of the interests of the beneficiaries. With respect, however, to this state, we believe that its laws have provided against such a signal failure of justice, and that the situation of a part of the trust property within its borders, confers upon its courts jurisdiction of any action based upon the conduct of a trustee in the performance of his duties ; and with respect to the court of common pleas for the city and county of New York, the situation of the real property, which is the subject of the trust, within that city gives it the same jurisdiction. The superior city courts of this state have jurisdiction of any action to procure a judgment determining, annulling, or otherwise affecting, an, estate, title or other interest in real property which is situated within the city where the court is located; and to an action for any other cause where the cause of action arose within that city; and to an action for any cause brought by* a resident of the city wherein the court is located, against a natural person who is not a resident of the state. Code, § 263, subd. 1, 2, 6. If the plaintiff succeed in this action and Charles Gr. Stevens is removed as trustee, the estate devised to him by the testator as one of the trustees under the will, is determined, or ended, and he will be divested of his title thereto; so that the case is brought directly within the provisions of the Code as one in which a judgment is sought which determines, or otherwise affects, an estate, title or interest in real property; and this is not a mere result or consequence of the judgment, but is the very object of the action. The cause of action arose in New York City, the trust property being there situated. The cause of action, which must not be confounded with the object of the action, and which is the detriment to the trust property which may ensue from the breach of the trustee’s duty, arises "where the property affected is .situated. The subject of the action is the trust property and the subject or cause of action is its preservation and management. Garner v. Thorn, 56 How. Pr. 452. It is not necessary in order to confer jurisdiction, that. all the trust property should be within the particular city or state, for if that were so then it might result that no court would interfere to control a trustee where the trust property was situated in different jurisdictions. The test of jurisdiction is: Can the judgment be enforced in this state ? That it can be, where the judgment removes the trustee from the present or future control of trust property within the state, there is no doubt. Tested by the reasoning in Bryan v. University Pub. Co. 112 N. Y. 387 ; 21 St. Rep. 21, our courts hav,e jurisdiction of the action ; for the judgment would not be one which “ would operate on nothing in the state and be regarded by nobody out of it." As I understand the argument in that case, if the wrongful acts of the trustee were committed in Massachusetts, but the property affected by them is in this state, the courts here would have jurisdiction of the subject of the action. In that view this cannot be regarded in any sense as a personal action against Charles G-. Stevens; for although his acts are urged as ground for relief, the relief demanded is not a money judgment as in McKinney v. Collins, 88 N. Y. 216, nor affecting a personal relation as in Jones v. Jones, 108 N. Y. 424; 13 St. Rep. 838; but affecting the management, control and disposition as well as title and estate of real property within the jurisdiction. - The cases which it is assumed hold a contrary view, differ in character from that before us. They concern chiefly the construction of a section of the Code relating to the place of trial of actions of the character specified in § 263, (Code, § 982); and it was held that an action to ,compel the cancellation of a satisfaction piece of a judgment, did not affect a lien upon real estate in a particular county, because the judgment affected the real and -personal property of the judgment debtor generally; Knickerbocker L. Ins. Co. v. Clark, 22 Hun, 506; also that an action to compel the assignment of a mortgage was not of that character because the mortagage continued to be a lien upon the property no matter to whom it was transferred, Yates Co. Nat Bank v. Blake, 43 Hun, 162 ; 5 St. Rep. 486; and so with regard to an action merely to recover the money due upon town bonds although they were a lien upon real property in the county, Becker v. Town of Cherry Creek, 70 Hun, 6; 53 St. Rep. 555. In Gibson v. American Loan & Trust Co., 58 Hun, 446 ; 35 St. Rep. 192, it was held that the court had jurisdiction of an action to remove a trustee who resided, and was served with process, within the state, the trust property was situated in another state; but this decision in no wise questioned the right of the tribunals where the property was situated to entertain an action for the same purpose. The special jurisdiction ■of the court of common pleas, as a superior city court, also attaches by reason of the residence of the plaintiff, Mrs. Stevens in the city of New York, Code, § 263, subd. 6, above. The fact that Mrs. Paget, the cestui que trust, who is a non-resident, is joined with her, does not oust the court of jurisdiction acquired by the fact of her residence in the city. The two plaintiffs are not jointly interested. Their interest is common but not joint; and Mrs. Paget is not a necessary party plaintiff. She might have been made a defendant; and if she voluntarily appeared and substituted her rights she would have given the court jurisdiction. The fact that she voluntarily comes in as plaintiff in company with a resident plaintiff cannot have a contrary effect and go even further to destroy the jurisdiction which the court acquires by reason of the co-plaintiff’s residence. The court having jurisdiction of the ■cause of action as appears from the papers (Code, § 435) an order of publication was properly granted, the proof showing that the defendant to be served was a non-resident of the state and that a cause of action exists affecting the title to real property within the •state, Code, § 438, subd. 1, 5; and the special term properly denied the motion of the defendant to vacate the order of publication. Order appealed from affirmed, with costs and disbursements. Gtegerich, J., concurs.

Pryor, J.

(Dissenting).-In an action to remove defendant from the position of testamentary trustee of local and foreign property under a domestic will, an order for service of summons upon him by publication, was issued on the ground of his non-residence. The appeal is from the denial of a motion to vacate that order. Conceding that unless the court has jurisdiction of the subject of the action the order cannot stand, Bryan v. University Pub. Co., 112 N. Y. 382, 386; 21 St. Rep. 21, the learned Judge at special term asserted cognizance of the cause as “affecting an estate, right, title, lien or other interest in real property,” situate within the city of New York. Code of Civ. Pro. § 263, sub. 1. As I conceive it such is not the case. The subject of the action is the duty of defendant as trustee, and the cause of action is the breach of that duty. McKinney v. Collins, 88 N. Y. 216, 221. Hence, the action is not local but transitory. Marshall, C. J., in Massie v. Watts, 6 Crunch, 148, 158. The sole issue in controversy is the personal fitness of defendant to discharge the trust. If he be fit he will be retained; if unfit he will be removed. Bat ■ whether he be retained or removed, the estate of which he is trustee will be equally and alike unaffected as to right, title and interest. Upon the trial no question can be raised as to such right, title or interest; and no judgment can be pronounced upon such right, title or interest. True, judgment of removal "would require him to convey to his successor; still such judgment would not, in the sense of the statute, affect the estate but only change the person in whom the title should reside. Knickerbocker L. Ins. Co. v. Clark, 22 Hun, 506; Yates Co. Nat. Bank v. Blake, 43 Hun, 162 ; 5 St. Rep. 486 ; Becker v. Town of Cherry Creek, 70 Hun, 6; 53 St. Rep. 555; Gibson v. American L. & T. Co., 58 Hun, 443, 447; 35 St. Rep. 192; Remer v. McKay, 54 Fed. Rep. 432 ; 35 id. 88. Neither can jurisdiction for this court be claimed on the ground that the cause of action arose in the city of New York. Code, § 263, subd. 2. The cause of action is the violation of his trust by the defendant; and that violation is alleged to be his hostile attitude towards his co-trustee, resident in New York, while he resides in Massachusetts and part of the trust property is there situate. - Obviously, the animosity against the co-trustee imputed to him, and the manifestation of that ill-feeling, must be in the pla'ce of his personal presence, Massachusetts. Nor yet has the court jurisdiction because the action is by a resident of the city against a non-resident. Code, § 263, subd. 6. One of the plaintiffs is a resident of England and the joinder of that party necessarily defeats jurisdiction. An action by a resident and non-resident jointly, is not the action by a resident simply, of which the Code gives jurisdiction. Walsh v. R. R. Co., 6 Fed. Rep. 797. Mindful of the principle on which substituted service of summons on residents proceeds, I cannot hesitate to declare the case not to be within the policy and purview of the statutory provisions. “ Substituted service by publication, or in any other authorized form, may be sufficient to apprise parties of the object of proceedings where property is once brought under the control of the court by seizure or some equivalent act. Such service may also be sufficient in cases where the object of the action is to reach and dispose of property in the state, or of some interest therein, by enforcing a contract or lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate it to a public purpose. In other words, such service may answer in all actions which are substantially proceedings in rem. But where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose.” Pennoyer v. Neff, 95 U. S. 714, 727; Jones v. Jones, 108 N. Y. 415, 424; 13 St. Rep. 838; McKinney v. Collins, 88 N. Y. 216, 224. Here, indisputably, the action is in personam, to determine the right of defendant to continue as trustee, and to exercise the privileges and enjoy the profits of the position. The relation of trustee “is not a res within the state of the party invoking the jurisdiction of a court to dissolve it, so as to authorize the court to bind thq absent party, a citizen of another jurisdiction, by substituted service or actual notice of the proceeding given without the jurisdiction of the court where the proceeding is pending.” Jones v. Jones, 108 N. Y. 424; 13 St. Rep. 838. The conclusion is, that the court was without power to make the ofder of publication. Order denying motion to vacate order should be reversed, and order of publication vacated and set aside; with costs and disbursements.


text:
    James Riley, App’lt, v. The Western Union Telegraph Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    Contract—Telegraph company—Limitation.
    A condition, of which the sender of a message has notice, limiting the liability of a telegraph company for delay in delivering the message to the sum paid for its transmission, constitutes a contract between the parties; and in the absence of gross negligence or wilful misconduct on the part of the company, there can be no recovery against it beyond such amount.
    Appeal from order of the general term, city court, reversing judgment on verdict, and directing a new trial. Action for damages from delay in transmitting and delivering a telegraphic message. The opinion gives other essential facts.

      L. J. Morrison, for app’lt; Rush Taggart and David D. Duncan, for resp’t.

       Affirming 56 St. Rep., 528.

   Pryor, J.

If it be obvious on the record that the order granting a new trial was for error of law only, our jurisdiction to entertain the appeal is unquestionable. McSteere v. Little, 8 Daly, 167.

On the back of the blank form which the plaintiff filled up with his message, was a stipulation that, for delay in delivering it, the defendant should be liable only to the amount paid for the message. Of this1 condition of the defendant’s responsibility, the plaintiff had notice when he dispatched the message. His contract, therefore, was, that in the absence of gross negligence or wilful misconduct on the part of the company, it’s liability should be only for the sum paid for the message. Pearsall v. W. U. Tel. Co., 124 N. Y. 256; 35 St. Rep. 307; Kiley v. W. U. Tel. Co., 109 N. Y. 231; 14 St. Rep. 816. For that sum the trial court was requested, but refused, to direct a verdict; and was requested, but refused, to charge that such sum was the limit of the defendant’s liability. These refusals to direct and to charge, constitute the specific error for which a new trial was ordered by the general term of the court below. The sum paid for the message was twenty-five cents; the amount of the verdict was two hundred and thirty-four dollars and fifty cents. Manifestly, we have but to inquire whether the case exhibits evidence sufficient in law to authorize a finding that the delay in the delivery of. the message was due to gross negligence or wilful misconduct. 16 there was such evidence the ruling of the trial court was correct; if there was not such evidence the ruling was error. Bearing in mind the now settled and familiar rule, that a scintilla of evidence is not enough to uphold a verdict, we concur with the general term below, that the proof was altogether inadequate to> warrant the inference that the delay in the transmission of the mes.sage was the effect of gross negligence' or wilful misconduct.1 The ruling therefore, of the learned trial judge, in refusing the direction and the charge, was error, was error in law, and was error of palpable prejudice to the defendant.

The order must be affirmed, and judgment absolute rendered against the plaintiff on his stipulation, with costs.

Daly, 0. J. and Bischoff, J., concur.


text:
    Sebastian Sommer, as Administrator, etc., Resp’t, v. The Bavarian Star Brewing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Lease—Dower interest.
    An action cannot be maintained to recover rent upon a demise of an inchoate dow.er interest. ■ '
    3. Same—Estoppel.
    In an action by lessor against lessee for the recovery of rent ujpon a lease under seal, with covenant for quiet enjoyment, the lessee is precluded from challenging the lessor’s, title.
    Appeal from interlocutory judgment overruling demurrer to complaint. Action by administrator for rent accruing in lifetime of intestate, upon a lease purporting to demise her interest as dowress. Other necessary facts appear in the opinion.

      E. A. Jacob and George H. Yeaman, for app’lt; Miller & Miller' (Jacob F. Miller, of counsel), for resp’t.
   Pryor, J.

The position that the complaint discloses a defect of parties, is manifestly untenable. The allegation that the interests of the other lessors had been transferred to the defendant, left but the two parties in controversy, plaintiff and defendant. It was no more necessary to join the transferrors in the action, than to unite any assignor with the assignee, in an action on the assigned claim. Apparently all the parties affected are before the court; and that is enough against the demurrer. Estoppel out of the way, we are of opinion that, as a suit for rent upon a demise of a dower interest, the action is not to be upheld. Only by implication does it appear by the complaint that plaintiff’s intestate had a dower interest in the premises; thus, that they were let and conveyed 11 subject to the dower right of Diadema Sommer.” Whether her right was inchoate or consummate is not to be collected from the pleadings;' and if inchoate' only, her interest was incapable of assignment. In Mutual L. Ins. Co. v. Shipman, 119 N. Y. 324; 29 St. Rep. 742; Pope v. Mead, 99 N. Y. 201, and Payne v. Becker, 87 N. Y. 153, the right was consummate ; but here it is not apparent that the husband does not still live; and if so the intestate had nothing to demise. Ex vi termini a lease imports a thing let; and a subject matter susceptible of grant, no less than capable parlies, is indispensable to a demise. A. Bouv. Inst. 254. The statement in the complaint is an insufficient allegation of interest in the intestate. Clark v. Dillon, 97 N. Y. 370 ; Valentine v. Lunt, 115 N. Y. 496, 501; 26 St. Rep. 254. Nevertheless, the action being upon a lease under seal, with a covenant for quiet enjoyment; and by lessor against lessee for the recovery of rent; the defendant is precluded, by the familiar estoppel, from challenging plaintiff’s title. Mayor v. Sonneborn, 113 N. Y. 423 ; 22 St. Rep. 988; McAdam on L. & T. 422. As the action may be maintained for some rent, the demurrer is untenable. The question of the proportion of rent to which the intestate was entitled, is not now for determination.

Judgment affirmed, with costs. Leave to plead over on payment of costs.

Bischoff, P. J., and Gtegerich, J., concur.


author: Bischoff, J.

text:
    Bernhard Stirn, App’lt, v. Hoffman House Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Appeal—Corrected error.
    An error, corrected by the court below, furnishes no ground for reversal.
    2. Same—First instance.
    It is too late to urge on appeal, for the first time, that the jury should have been permitted to determine the credibility of a witness.
    3. Same—Discretion.
    The refusal to rropen the trial is within the discretion of the trial court.
    4. Same—Request to charge.
    No error is committed in denying an entire request to charge, which is incorrect in at least two particulars.
    5. Principal and agent—Authority.
    A general salesman, employed by a firm of merchants to sell its wares, has an implied authority to fix the price and terms upon a sale.
    Appeal from a judgment of the general term of the city court of New York, which modified and affirmed a judgment for defendant at trial term, on a verdict directed by the court. Action to recover for merchandise sold and delivered, the defenses being a general denial, payment and offset.

      Charles Etrauss, for app’lt; John Delahunty, for resp’t.

       Affirming 58 St. Rep., 32.

   Bischoff, J.

Plaintiff sued as the assignee of the claim of L. Somborn & Co., to recover the fair and reasonable value of the champagnes sold and delivered to the defendant. The answer denied generally the sale and delivery, besides pleading payment and an offset against the„plaintiff’s assignors, growing out of discounts on former purchases, to which the defendant claimed to be entitled by agreement with Somborn & Co.’s agent. On the trial Julius Somborn, a member of the firm of Somborn & Co., called as a witness for the plaintiff, testified to the fact of the sale and delivery of champagnes of the fair and reasonable value of two hundred and thirty-two dollars, to the defendant. This testimony not only remained wholly uncontradicted, but was conceded by the defendant’s president, Stokes, to be true; and the defendant’s efforts on the trial were confined to the proof of an agreement with Somborn & Co.’s agent that the defendant should be allowed a discount of ten per cent, of its purchases, the aggregate amount of the discounts claimed being three hundred and twenty dollars and thirteen cents. There was abundant testimony for the defendant to the effect that an agreement to allow the discounts was, in fact, made by Somborn & Co.’s general salesman' with the defendant’s president, some time before the purchases on which it was claimed were made. Both parties asked for the direction of a verdict, the plaintiff for the amount of his claim, the defendant for the amount of its offset. The trial justice intimated his intention to grant the defendant’s motion, whereupon the plaintiff’s counsel requested submission of the case to the jury. This was denied and an exception taken to the denial. A verdict was thereupon directed for the defendant for sixty-seven dollars and thirteen cents, the excess of the defendant’s claim against the plaintiff’s assignors, to which direction plaintiff’s counsel again excepted. On appeal to the general term below, from the judgment entered on the verdict, the court reduced the defendant’s recovery to an amount equal to the plaintiff’s claim, and as so modified affirmed the judgment. It was palpable error for the • trial justice to direct a verdict against the plaintiff for the excess of the defendant’s claim against the former’s assignors, Montanye v. Montgomery, 47 St. Rep. 114, but as the error had been corrected by the court below, no just grievance because of it is apparent on this appeal. When both sides asked for the direction of a verdict in their favor, respectively, it was conceded that only questions of law were left for decision, Leggatt v. Hyde, 58 N. Y., 272, 275; Collins v. Burns, 63 Id. 1; and if there was evidence sufficient to support -the ruling of the trial court, the judgment cannot be assailed on the ground that questions of fact arising on the evidence should have been submitted to the jury. Kirtz v. Peck, 113 N. Y. 222; 22, St. Rep. 733; Provost v. McEncroe, 102 N. Y. 650; Stratford v. Jones, 97 N. Y. 586. To secure the right to have the facts determined by the jury after the trial court has denied a motion for dismissal of the complaint or for the direction of a verdict, an exceptibn only to the ruling is ineffectual. Mallory v. Tioga R. R. Co., 3 Abb. Ct. App. 139; Seymour v. Cowing, 4 Abb. Ct. App. 203 ; People v. Cook, 8 N. Y. 78; Barnes v. Perine, 12 N. Y. 18, 23; Winchell v. Hicks, 18 N. Y. 558; Muller v. McKesson, 73 N. Y. 195; Dillon v. Cockcroft, 90 N. Y. 649 ; Ormes v. Dauchy, 82 N. Y. 443; O'Neill v. James, 43 N. Y. 84; Van Aernam v. Bleistein, 102 N. Y. 355; 2 St. Rep. 470. It is incumbent upon the party, to have the court’s attention div reeled to the specific questions of fact, of which submission to the jury is denied, Waters v. Marrin, 13 Daly, 57; Winchell v. Hicks, Van Aernam v. Bleinstein, Muller v. McKesson, supra ; and it will be too late to urge on appeal, for the first .time, that the jury should have been permitted to determine the credibility of the witness. Williams v. Walker, 9 St. Rep. 60. The following colloquy occurred between the trial court and counsel: “ The Court: If you tell me any disputed question of fact to be presented to the jury, I will present it. Plaintiff’s counsel: The disputed question is the whole case; that the plaintiff sold defendant merchandise, for which he was not paid, and the defendant claims exemption from payment by reason of the agreement with the salesman of the plaintiff, and the plaintiff is ready to take the stand to swear there was no such arrangement made.” Ho other request for submission of any fact appears in the case. Here, then, there was a request for the submission of the facts of the plaintiff’s claim against the defendant, and of the defendant’s claim against the plaintiff’s assignors united with a request that the trial be re-opened after both sides had closed the introduction of evidence. The plaintiff’s claim was conceded by the defendant’s president, and no question of fact therefore remained to be determined with regard to it. It was clearly within the discretion of the trial court to refuse to re-open the trial. Ho error is therefore predicable of its denial of the plaintiff’s request in both of the last mentioned respects. Assuming, now, that the request, in so far as it sought submission of the facts of the defendant’s claim against plaintiff’s assignors, was sufficiently specific, and that if separately made its denial would have been error, it still appears that the entire request was properly denied in at least two particular respects. Hence the appellant has not sustained the burden of showing error. McCabe v. Brayton, 38 N. Y. 196; People v. Beach, 87 N. Y. 508, 512; Bosley v. National M. Co. et al., 123 N. Y. 550; 34 St. Rep. 277. The only question of law which is urged by counsel for the appellant to have arisen on the facts in evidence, and relating to the defendant’s claim against the plaintiff’s assignors, is whether or not a general salesman employed by a firm of merchants to sell its wares has implied authority to fix the price and terms upon a sale. The affirmative of that proposition admits of no successful dispute. The employment of the agent is the measure of his authority, and one employed to sell, inferentially therefore has authority to fix the price and adjust the terms of the sale, for without the last mentioned authority all other authority would be of no avail. “ An agent authorized to sell either real or personal estate, may enter into a contract within the terms of his authority, which will bind his principal. This is of the very essence of the authority given, an authority to sell. That he can bind his principal by a formal contract, is the doctrine of the books from the ■earliest law on the subject,” Haydock Exr. v. Stow, 40 N. Y. 363, 368, and, we may add, that without a price, and terms, there could he no contract of sale. It is conceded that if the agent has departed from the instructions of his principal, to the purchaser’s knowledge, the principal will not be bound. But whether or not the defendant or its officers knew that Somborn & Co.’s salesman had no authority to stipulate for the discounts claimed on the-trial, was a question of fact, which we must assume to have been determined by the trial justice in the defendant’s favor. But one alleged error in ruling on the trial is urged by counsel for appellant, namely, the dismission of the testimony of the defendant’s witness Cornish, as to the amount of the discount claimed by defendant. It is sufficient to say that no exception appears to have-been taken to the ruling. Judgment affirmed with costs. Daly,. C. J., and Pryor. J., concur.


author: Daly, C. J.

text:
    Sigmund Wachsman et al., Resp’ts, v. Columbia Bank of the City of New York, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Bills and notes—Forgery.
    Where the depositor, in the ordinary course of business, commits the examination of the hank account and vouchers to the clerk who perpetrated the forgery, and he fails to disclose the forged checks, the duty of the depositor to the bank is discharged though, if he had made the examination personally, he would have detected them.
    2. Same—Negligence.
    To constitute negligence, it must he shown that the agent was untrustworthy and that the principal had some notice thereof, or that the acts or omissions complained of were out of the usual course of business.
    Appeal from a judgment of the city court affirming a judgment in favor of the plaintiff entered upon the verdict of a jury for $1,886.51, and an order denying a motion for a new trial. The plaintiffs were depositors with the defendant and the action was substantially to recover the amount of three checks which the bank charged against them;. but which they averred to be forgeries. One check was for $493, dated August 18th, 1892 ; one was for $578.96, dated August 30th, 1892, and the last was for $700, dated October 24, 1892.

      I. S. Isaacs (Julius J. Frank, of counsel), for app’lt; David' Leventrett, for resp’t. " -

       Affirming 56 St. Rep. 601.

   Daly, C. J.

There was sufficient evidence to sustain the finding that the disputed checks were not drawn by plaintiffs nor with their knowledge, nor in the course of their business, and that they were forgeries by their bookkeeper. The only questions upon this appeal arise upon exceptions to the court’s refusal to charge-that plaintiffs were estopped from objecting to the correctness of the account as balanced by the bank and delivered to and retained by them' without objection ; and that they had by their course of conduct put it in the power of their bookkeeper to perpetrate the forgery and are estopped by their own negligence from recovery. There'is no ground for holding the plaintiffs estopped. After the bank had parted with its money upon the forged checks nothing was done nor left undone on ,the part of the depositors by which the bank lost any rights; and although the pass-book showing the-account as balanced was retained by them for some time the delay was accounted for by showing that in the ordinary course of business the book and the vouchers were given to their bookkeeper for examination and that he availed himself of the opportunity to conceal the fraud he had already perpetrated. This delay did not make the account stated conclusive upon the plaintiffs but only cast upon them the burden of impeaching it for mistake, and proving that the checks were forged. August v. Fourth, Nat. Bk., 15 St. Rep. 956; 1 N. Y. Supp. 139. Had they even made a personal examination of the vouchers and been deceived by the fraudulent signature and acquisced in the account under the impression that it was correct they would not be estopped from making the claim upon subsequent discovery of the forgery unless the delay had prejudiced the bank. Weisser v. Denison, 10 N. Y. 68. Banks are bound to know the signatures of their depositors and if they pay forged checks they commit the first fault and cannot visit the consequences upon the innocent depositor who, after the fact is also deceived by the simulated paper. So if the depositor in the ordinary course of business commits the examination of the bank account and vouchers to a clerk who is the criminal and he fails to disclose the forged checks the duty of the depositor to the bank is discharged although if he had made the examination personally he would have detected them. The duty of the depositor at most is to exercise ordinary care and this was performed when in the ordinary course they intrusted the duty of examination to the usual agent. Frank v. Chemical Bank, 84 N. Y. 209 ; Welsh v. German Am. Bk., 73 N. Y. 424. It was not error for the court to refuse the instruction asked for by defendant, that the jury must find a verdict for defendant; that the plaintiffs by their course of conduct had put it in the power of their bookkeeper to perpetrate the forgery, if the checks were forged, and the plaintiffs’ own negligence estops them from the right to recover in this action. It is not now contended, however, that the defendant was entitled to a direction of a verdict asked for, but that it was the duty of the court to submit the question of plaintiffs’ negligence to the jury. No such request was made at the trial, and the only exception which it is claimed presents error in this regard is one taken “ to that part of the charge wherein it states that the only question for the jury is whether Wachsman & Company drew the checks in dispute or not.” This exception, in the absence of request to submit the specific question to the jury, did not call the attention of the court to the error now complained of, and is therefore unavailable. Manning v. Case, 21 W. Dig. 108; Sterrett v. Third Nat. Bank, 122 N. Y. 562 ; 34 St. Rep. 241. But even were the exception sufficient to raise the question now argued, it is manifest that the evidence, stated as strongly as the appellant puts it, does not present ground to support an allegation of negligence. It does not appear that there was anything unusual in plaintiffs empowering their bookkeeper to write out the body of checks, make entries thereof in the corresponding stubs, receive the returned and cancelled checks, or vouchers, and voucher lists relating thereto, compare them with stubs in the check book and with the bank book as balanced without any kind of supervision or control whatever on the part of the plaintiffs. The latter had the right to manage their business through agents andaré not to be held for want of ordinary care because the confidence so reposed subjects the latter to temptation. To constitute negligence there must be proof of facts tending to show that the agent was untrustworthy and that the principal had some notice thereof, or that the act or omissions complained of were out of the usual course of business. The burden of proving negligence rested on the defendant and they failed to show it. There is no proof that plaintiffs “intrusted the entire financial management of their business to their bookkeeper” as claimed now by appellants, or, that no supervision or control was exercised by plaintiffs. The duty of the depositor is discharged when he exercises such diligence as is required by the circumstances of the particular case including the relations of the parties and the established or known usages of business. Leather Mfrs. Bank v. Morgan, 117 U. S. 96. It is argued that the exception last referred to is available to appellant because the instruction: that the only question for the jury was whether the plaintiffs drew the checks in dispute or not; did not present the real issue litigated upon the trial, and was therefore erroneous. On the contrary that was the principal issue litigated upon the trial and no error was committed in submitting it to the jury, and in submitting it as the only issue, since appellant claimed, in effect, that there was no other by asking a direction of a verdict on the other question which he deemed established by the evidence. Much of appellant’s brief is devoted to considerations, which, however proper for cognizance by the city court are ineffectual upon this appeal, where we are limited to the review of questions raised by appropriate exceptions. The general exception to the instruction complained of does not suffice to present the question whether there was any proof of the forgery of two of the checks. There was no motion to dismiss the complaint at the close of the case and no request for instruction on the point now made, nor any exception to the submission to the jury of the genuineness of the two checks. The only exception to ruling upon 'admission of evidence presents no error. The forged checks were made payable to one J. G\ Morris and the plaintiffs had the right to show that they had no dealings with such a person. Had they omitted to give such testimony it might have been occasion for unfavorable inference

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

Bischoff and Pryor, JJ., concur.


text:
    Phillip Waldheim, Resp’t, v. Abraham Sonnenstrahl, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1 Guabanty—Condition.
    To maintain an action on a guaranty, the plaintiff must prove performance of a stipulated condition of the guarantor’s liability.
    3. Same—Waives.
    A waiver of performance of such condition, is avoided by the misrepresentation of the party claiming the benefit of the waiver.
    Appeal from judgment of general term, city court, affirming judgment on verdict. Action on guarantee. The facts sufficiently appear in the opinion.

      Hays & Greenbaum, for app’lt; Simpson & Werner, for resp’t.

       Reversing 57 St. Rep. 873.

   Pryor, J.

The judgment on appeal is vitiated certainly by one fatal error. The action being upon a guarantee, plaintiff was under obligation to show performance of any condition of defendant’s liability ; and this though the condition were of no apparent benefit to the guarantor. Barns v. Barrow, 61 N. Y. 39, 42. It was an express term of the contract that the defendant was to be notified “by postal card, if the said Ginns”—the principal debtor —“does not pay $5.00 each week.” We agree with the general term below, that the “testimony certainly shows that the plaintiff failed to comply with this covenant in the guarantee; ” but we are unable to assent ■ to the position on which the court bases its decision against the defendant; namely, “that he waived that provision.” The admission of liability and the payment by the defendant, proceeded on the assurance of plaintiff that the principal debtor had made no default in the weekly payments; and surely, authority is not needed for the proposition, that a waiver is avoided by the misrepresentation of the party claiming the benefit of it. Bishop on Contracts, § 799. For defect of proof that the plaintiff had notified defendant of the debtor’s default, pursuant to the condition of the guarantee, the complaint should have been dismissed in conformity with the appellant’s motion. The same result was equally inevitable if we regard the action as upon an account stated; for the misrepresentation of the plaintiff was as effectual in avoiding the alleged adjustment of the account as the waiver. As" to the exceptions to evidence, first, the receipts by the debtor, in connection with the other facts, were competent and sufficient evidence of the delivery of the goods ; and secondly, the letters from the plaintiff to defendant being rather in the nature of a demand for the debt than an ex parte version of the transaction by plaintiff, are hardly within the principle of Learned v. Tillotson, 97 N. Y. 1, and Bank of British N. America v. Delafield, 126 N. Y. 410; 37 St. Rep. 864.

Judgment reversed and new trial ordered, costs to abide event. Daly, C. J., and Bischoff,- J., concur.


author: Giegerich, J.

text:
    William E. Ball, Resp’t, v. Livonia Salt and Mining Company, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Contract—Employment—Discharge.
    Under an agreement to employ the plaintiff as a traveling salesman, to cover such ground as the defendant may designate, at a certain salary per month and actual traveling expenses, the latter is justified in discharging the former for not following the route list provided for him, and for returning excessive expenses.
    2. Same—Evidence.
    In an action to recover salary after such discharge, evidence as to the items of such expenáe account is competent on the part of the defendant.
    Appeal by the defendant from a judgment of the district court in the city of New York for the first judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. Action to recover damages for wrongful discharge. The opinion sufficienty states the material facts.

      Henry B. Twombly, for app’lt; David Welsh, for resp’t.
   Giegerich, J.

Plaintiff was employed by defendant under an agreement in writing containing the following provisions : “ We are willing to engage you as traveling salesman, to cover such ground as we may designate, from time to time, at a salary of $100 per month and actual traveling expenses incurred in the interests-of our business.” Plaintiff entered upon the performance of his duties, under this contract on the 22d day of May, 1893, and on the 22d of July, 1893, he was discharged. In justification of the discharge, the defendant, on the trial, proved that the plaintiff did not follow the route list provided for him ; that from July 13th to July 17, 1893, he was at Spring Lake, N. J., on a pleasure trip, after he had notified defendant that he would stop over Sunday (16th),at Elmira, N. Y., and that his expenses were excessive. On the 14th day of July, 1893, the defendant mailed to the plaintiff a letter which contained directions as to certain prices to be charged a customer in Elmira, named William Am berg. This letter in the regular course of the mail should have reached the plaintiff on Saturday, July 15th, but according to his own testimony, he changed his route and was absent from Elmira on July 16th, and conseq'ently did not receive the letter until after he had made a sale to the customer in question. On Monday, July 17th, plaintiff wrote defendant from- Elmira : “ Sorry you did not let me know about William Am berg, I might just as well have got' former prices. * * * I went up last Sunday to Ithaca; there is nothing there; and doubled back here, and got here this p. m.” If the plaintiff had attended to business, he would have received this letter on Saturday at Elmira, and been able to carry out its directions. The plaintiff also testified on the trial that he did not go to Ithaca, and endeavored to explain this letter by saying that he had changed his route after he wrote it. He certainly knew on Monday whether or not he had spent the day before in Ithaca. This letter alone is sufficient proof that his employers could not trust him. The plaintiff also admitted, on the trial, that he was in Spring Lake on Friday and Saturday, July 14th and 15th, which trip, it appears from the evidence, was detrimental to the defendant’s interest. The plaintiff also admitted, he did not to.some'extent follow his route lists, although he knew when he was employed by the defendant that the following of the route list closely was stated to be of the greatest importance to the com- » pany. These and other uncontradicted facts, above detailed, justified, in our opinion, the dismissal of the plaintiff, Schouler on Dom. Rel. § 462 ; Wood’s M. & S., § 116 ; Dunkell v. Simons, 15 Daly, 352 ; 27 St. Rep. 811, though they may not have been specially assigned at the time of the discharge ; 14 Am. & Eng. Enc. of Law, 792, 793; Wood’s M. & S., § 119; Jackson v. N. Y. Post Graduate, etc., Hosp., 6 Misc. Rep. 101; 55 St. Rep. 495, general term of this court. It follows, from these views, that the judgment rendered is not supported by the evidence. The justice also erred in excluding the question : “ How do you made up the hotel bill of $16.25 when you were traveling at the company’s expenses only three days that week ? ” and, also, in excluding the itemized statements of plaintiff’s expenses. The fact was material as showing that either he had charged his expenses during his pleasure trip to the defendant, or that the bill was excessive for three or four days’ expenses. The bills were material to show whether his expenses were so excessive as to justify the defendant in discharging him for that cause. For "these reasons the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

BlSCHOFF, P. J., concurs.


author: BiSCHOFF, J. J Pryor, J.

text:
    Edwin V. Brendon, Resp’t, v. George S. Worley, as President, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Contract—Employment at pleasure op employer.
    Under a provision of the by-laws that the physician shall be elected and remain in office during the pleasure of the lodge, a majority vote, at a regular or stated meeting, is an expression of the “pleasure of the lodge.”
    2. Same—By-laws—-Construction.
    Where the language of a by-law pf a lodge is perfectly plain, its construction is for the court, and not for the witnesses.
    Appeal from a judgment of the district court in the city of New York for the first judicial district, rendered for plaintiff upon a verdict in his favor. Action for services as a physician against a voluntary association of more than seven members.

      William R. Wilder, for app’lt; Morris Putman Stevens, for resp’t.
   BiSCHOFF, J. J

Plaintiff, a member of “Nelson Lodge No. 64, • Order Sons of St. George,” was elected its physician, purusant to a provision of the by-laws of the lodge, as follows: “A legally qualified physican (who shall be an Englishman) shall be elected and remain in office during the pleasure of the lodge.” The compensatibn was payable quarter-yearly. At a stated or regular meeting of the lodge, held on November 28, 1892, upwards of thirty qualified members being present thereat, it was resolved by a majority vote that plaintiff’s employment should be discontinued from henceforth. This action was brought to recover compensation as such physician, and it was conceded that every part of the compensation claimed had accrued, if at all, subsequently to the adoption of the resolution above alluded to, and notice thereof to - plaintiff. On the trial plaintiff contended that his dismissal at a regular meeting was unauthorized and that such dismissal could be effected only at a special meeting called for that purpose. Upon his successful issue from that contention, plaintiff’s right to recover in this action was dependent. No ambiguit}' was apparent from the by-law under which plaintiff’s election was made, the words “during the pleasure of the lodge” plainly having no other significance than that plaintiff’s continuance as physician should at all times be at the will of the lodge, and that upon the refusal of the lodge to continue the employment the latter should cease. Elsewhere thé constitution and by-laws of the lodge provided that “ seven valid votes or ballots shall be required to determine-any election, motion or question before the lodge, but a majority of all the valid votes cast shall decide all elections, motions or questions, not otherwise provided for.” No provision was made for the removal of the physician to-the lodge, at a special meeting, or one called for that purpose, nor was there anything inconsistent with the right of the lodge to discontinue its employment of the physician at a regular or stated meeting. It was conceded that upwards of thirty qualified members were present at the meeting of November-28, 1892, and that a majority of the members present voted for the adoption of the resolution. The lodge therefore, expressed its will in the premises as provided for by its by-laws. Hence, with the adoption of the resolution for plaintiff’s dismissal, . and notice thereof to him, his employment must be deemed to have come to an' end. The trial justice, against the protest of defendant’s counsel, admitted evidence tending to show that it was the opinion of some of the officers of the Supreme and Grand Lodges, to which “Nelson Lodge” was subordinate, that the physician was removable only at a meeting specially called for that purpose. This evidence was improperly admitted. Obviously its sole office was to add to the by-laws, not to interpret them. No ambiguity was apparent with reference to the by-laws in evidence.' Their meaning was clear and precise. Granted, as respondent’s counsel contends, that in case of uncertainty in the meaning of a by-law the opinions of officers and members of the association may be competent in aid of interpretation, the proposition is irrelevant to the facts. So far as the by-laws in evidence extend, they appear to be definite and certain beyond dispute. They do not even remotely sustain an inference of the probability of an intention to subject the exercise of the right of the lodge to dismiss its physician to the requirement of a meeting specially called for the purpose. It may be that it would have been wiser to have so provided, but with that we are not concerned, for upon no proper theory of interpretation can the latter be made to supply an omission to express a particular intention. For error in the admission of the evidence alluded to the judgment must be reversed and, as upon the conceded facts, plaintiff is not entitled to recover in any event, the complaint should be dismissed upon the merits, with costs of this appeal, and of the court below, to the appellant.

Pryor, J.

(concurring)-By Sec. 1, Art. XXX of the by-laws of the lodge, its physician is to “ remain in office during the pleasure of the lodge.” The plaintiff was removed by a majority vote at a regular or stated meeting of the lodge; and the question is, whether such vote at such meeting be an expression of the “ pleasure of the lodge ? ” None but an affirmative answer can be returned to the inquiry. The time of the stated meetings of the lodge was appointed by the by-laws; and nothing in the record impeaches in any respect the regularity of the meeting in question. But,“ when a regular stated time is fixed in the charter or by-laws or by usage for the election of officers or the transaction of business, it will be presumed that every member had notice. The effect of a stated day is to dispense with the necessity of proving that notice of the meeting was given to absentees.” 1 Waterman on Corp., § 62. The meeting was perfectly competent to dispose of the plaintiff, and has done so effectually. Critically examined, the testimony of the so called experts was not proof of a custom but only evidence of opinion as to the meaning of the by-law. The language of the by-law being perfectly, plain, its construction was for the court, and not for the witnesses. Wiggin v. Knights of Pythias, 31 Fed. Rep. 122, 124. For these reasons, in addition to those presented in the opinion of Judge Bischoff, I concur in the reversal of the judgment.


text:
    Mayer Foster et al., Resp’ts, v. Edmund T. Oldham, as Assignee, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    Lease—Assignment.
    Where a person other than the lessee is shown to he in possession of leasehold premises, the law presumes that the lease has been assigned to him.
    Reargument of an appeal, by the defendant, from a judgment of the district court in the city of Mew York, for the seventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. The decision in the former appeal is reported in 4 Mise. Rep. 201; 53 St. Rep. 488. Action for rent. The answer was a genereal denial. The opinion states the facts so far as they are material.

      Wilber & Oldham, for app’lt; Sumner B. Stiles, for resp’ts.
   Giegerich, J.

This is a reargument of the appeal taken herein by the defendant. It is now claimed, by the appellant, for the first time, that the final order granted by default in summary proceedings instituted by the respondents against John Pearce, Jr., tenant, and Henry M. Leverich and Edward T. Oldham,' assignees, under-tenants, to recover possession of the premises in question, is an adjudication binding upon the respondents, which creates an estoppel on the theory that the appellant was an under-tenant. Assuming that the final order in such summary proceedings was an adjudication that the appellant was an under-tenant, still, that would have no bearing upon the decision of this appeal, as the appellant promised to pay the rent, which was an independent agreement, made upon sufficient consideration, and was binding upon him. Appellant also claims that a lease was outstanding in another tenant for the very period rent is demanded. This claim is based upon the fact that the lease of the premises in question was made to one John Pearce, Jr., and, as Pearce & Co., a firm, occupied the premises at the time of their assignment to the appellant for the benefit of creditors, and no assignment of the lease by John Pearce, Jr., having been proven, the appellant argues that the lease was in John Pearce, Jr., and that he alone is liable for the rent. The authorities, however, do not favor this contention. When a person, other than the lessee, is shown to be in possession of leasehold premises, the lawr presumes that the lease has been assigned to him. Bedford v. Terhune, 30 N. Y. 453 ; Frank v. N. Y., L. E. & W. R. R. Co., 122 id. 197, 219; 33 St. Rep. 235, and cases cited. There was, therefore, a direct privity of estate between the respondent and the general assignee of the assignors of the lease. The justice determined, upon a conflict of evidence, that the appellant occupied the premises for the months of July, August, September;.and October, 1891, for which period respondents demanded rent, and ye think such determination of that question of fact is amply supported by the evidence. The fact that the appellant acknowledged his liability and promised to pay the rent, only tends to made a stronger case against him. This disposes of all the questions raised by the appellant. We have re-examined the record, and, after again carefully considering the evidence, we are satisfied that the decision of the justice was, in all respects, correct

The judgment should be affirmed, with costs.

Bischoff, P. J., concurs.


text:
    William Halperin, Resp’t, v. Arthur F. Schermerhorn, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Appeal—Fact.
    The finding of the justice will not be disturbed simply because there is a conflict of evidence, in the absence of the elements justifying a review of the questions of fact.
    3. Removal op action—Waives.
    The defendant, by electing to proceed to trial and submitting to the jurisdiction of the court below, waives his right to remove the action into the court of Common Pleas.
    3. Evidence—Contbact.
    What was done on other occasions, does not show what the contract is in reference to the transactions in question.

      Appeal by the defendant from a judgment of the district court in the city of New York for the eleventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. Action to recover plaintiff’s share of brokers commissions. The answer was a general denial. Tender of $31.50 and a counterclaim for moneys loaned and advanced amounting to $66.50. The opinion states the facts, so far as they are material.

      Seymour & Uojjkins, for app’lt; Foley & Powell, for resp’t.
   Giegerich, J.

The parties litigant are real estate brokers in this city at the time of the transactions hereinafter mentioned. By their joint efforts two loans were placed, from which the defendant received in the aggregate $332.50. It was substantially conceded by the defendant, at the tidal, that when a loan is secured by two brokers working together, the custom and usage in this city in the absence of an agreement is to divide their commissions equally. But the defendant contends that there was an express agreement between the plaintiff and himself whereby the plaintiff agreed to first submit all his applications for loans to such defendant, and if any should be placed between them, the plaintiff was to receive a proportion of the commissions which were to depend upon the amount of the loan, viz: thirty-three and one-third per cent, on small loans and twenty-five per cent, on large loans. The defendant also testified that he had loaned and advanced to the plaintiff, at various times, sums aggregating $66.50, which the latter failed to repay. The defendant, on the other hand, testified that he borrowed small sums which were always deducted from the moneys earned by him, from time to time, for divers services rendered by him to the defendant; and he denied that he was indebted to the latter in any amount whatsoever. After the close of the transactions referred to, the plaintiff wrote to the defendant: “ ' * * if you pay me $150, then I can return your $50 and all your cloths * * * ; ” and subsequently he wrote : “ I do notify you a third time that you shall settle my account of $84.50 cash of the $150,"which is deducting the 50 and appraisement, otherwise you will hear some legal action together of formerly claims.” It is urged by defendant’s counsel, that these are admissions by the plaintiff that he owed $50 to the defendant for money loaned ; but the evidence, in our opinion, does not support this construction. It is apparent that the plaintiff is a foreigner who is not familiar with the English language, and this fact, considered in connection with the entire evidence, justified the inference, which was undoubtedly drawn by the justice, that the letters were written at a time when the plaintiff was ignorant of the amount received by the defendant upon the last or Meyer loan, and were indited with a view rather to effect a compromise than to admit any indebtedness to the defendant. We are confirmed in this view by the following testimony of the plaintiff: “ Q. Now, Mr. Halperin, when this Meyer loan went through, did you owe Mr. Schermerhorn any money ? A. Not a cent; I don’t know myself where it comes from, that money that lie demands of me. Q. Is there anything you'wish to state in regard to it ? A. Since lie came to demand $50 I told him, $50, what is the matter; all you have given me for services you put it down on the book.• I said’to him, if I would know it that way, I would have left the office two years ago, and would not stayed in your office; one week he said $25, and two or three weeks afterwards raised up another $25.” The defendant testified that he paid to the plaintiff the sum of $21 on account of commissions on the loans in question, and the plaintiff, on the other hand, testified that he received but the sum of $20. There was also a conflict of evidence as to what compensation the plaintiff was to receive for his services, and we think that the justice’s determination of the facts in this regard and with respect to the other-questions litigated on the trial, is amply supported by the evidence. We have repeatedly held, that the finding of the justice will not be disturbed simply because there is a conflict of evidence. Lynes v. Hickey, 4 Misc. Rep. 522; 54 St. Rep. 120; 24 N. Y. Supp. 731; Weiss v. Strauss, 39 St. Rep. 78; 14 N. Y. Supp. 776. There being an utter absence of the elements justifying a review of the questions of fact, we will not interfere with the justice’s determination of the facts herein. After the judgment heretofore rendered in this action had been reversed and a new trial ordered ; and the case had been remanded to the court below, the defendant applied for the removal of the action to this court, which application, was denied. We think that, in view of the circumstances of the case, the justice ruled correctly. The justice’s return on the former appeal and which former part of the record in the present case shows that, after joinder of issue, an adjournment was had by consent and that the defendant and plaintiff proceeded to trial. Having elected to proceed to trial and submitted to the jurisdiction of the court below, the defendant was bound by his election and lie undoubtedly waived his right to remove the action. See Krahner v. Heilman, 16 Daly, 132; 30 St. Rep. 434; 9 N. Y. Supp. 633. The evidence offered of previous,dealings between the parties litigant, wherein commissions were divided between them upon the same basis as the agreement which the defendant claimed he made with the plaintiff, was properly excluded. What was done on other occasions would not show what the contract was in reference to the transactions in question, Bonynge v. Field, 81 N. Y. 159. We have examined with great care the other exceptions taken at the trial, and points raised on this appeal, and fail to discover the existence of any substantial error which would require the reversal of the judgment appealed from.

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

Bischoff, P. J., concurs.


text:
    Charles Helfrich, Resp’t, v. The John Hancock Mutual Life Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Appeal—First instance.
    A claim, not made upon the trial, cannot be asserted upon appeal.

      8. Insurance—Mutual—Change of beneficiary.
    Where a wife insures her life in favor of her husband, and subsequently applies for a change of beneficiary, upon the condition that her husband “does not claim,” to which the company assents, no change is effected in the absence of proof that he has released his claim, or that he is dead, or that his claim has been barred by the statute of limitations.
    Appeal by the defendant from a judgment of the district court in the city of New York for the seventh judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. The nature of the action and the material facts are stated in the opinion.

      Leonard J. Langbien, for app’It; Joseph Steiner, for resp’t.
   Giegerich, J.

This action was brought upon a policy of insurance, taken out by one Katherina Maierhofer upon her own life, in favor of her husband, for the sum of $100, payable at her death. The answer was a general denial, that plaintiff was not the real party in interest, and that the title of the plaintiff to the policy was void under the statute against the wagering of policies of insurance. The facts appearing from the evidence are, that the insured, wishing to change the beneficiary under the policy in suit, applied to the agent who collected the premiums, telling him to have the change made. That the agent advised her that no such change could be made unless she obtained a release from her husband. Thereupon she told him she did not know exactly where her husband was at that time. It then appears that the agent filled out the ordinary application for the change of a beneficiary in favor of the plaintiff, absolutely; but the company refused to accept it. Another application was then made out at the office of the defendant, and was left with the insured to be signed. After keeping it two weeks, she signed it on October 31st, 1892, and delivered it to the agent.

This application contains the following request, addressed to the defendant company: “ Please make policy Ho. 337,355, B, on my life for the benefit of Charles Helfrich, my friend, * * * provided my husband does not claim.”

Plaintiff’s counsel, in his brief, claims that this instrument has been tampered with. Ho such claim was made upon the trial and cannot, therefore, be asserted upon appeal. On the 18th day of Hovember, 1892, an assistant superintendent of the defendant wrote the following postal card to the insured, viz.:

“New York Branch
“John Hancock Mutual Life Insurance Company,
“of Boston, Mass.,
“28 Union Square, New York, “Nov. 18, 1892.
“ Mrs. Catherine Maierhofer :
“ Dear Madam—The beneficiary of your policy has been changed over to Charles Helfrich. Please pay collector when he calls next week and oblige.
‘1 (Signed) J/ W oodruff,
“Ass't Supt., 28 Union Square, N. 7.”

The respondent claims that this-operated as a change of beneficiary. Even if we concede, for argument’s sake, that the husband’s interest in the policy is not irrevocable, and that Wood-ruff was authorized by the company to change the beneficiary (which is disputed by the defendant), still the statement of Wood-ruff that the beneficiary had been changed must be read in connectiofi with the application for such change, which was expressly made subject to the rights of the husband, and which, in effect, was: If he “ does not claim,” then the plaintiff is to be beneficiary. As it has not been shown that the husband has released his claim, or that he is dead, or that his claim had been barred by the statute of limitations, the plaintiff, even under this view of the case, has whollysfailed to establish any title to the subject matter of the action. The motion to dismiss the complaint made by the defendant when the plaintiff rested and renewed at the close of the case, should, therefore, have been granted.

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

Bischoff, P. J., concurs.


author: Gtegerich, J.

text:
    Samuel Knight, App’lt, v. Isaac Seckendorf et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    Appeal—Fact.
    The determination of a question of fact by a justice is not the subject of review, where the elements, justifying such review, do not appear in the case.
    Appeal by the plaintiff from a judgment of the district court in the city of New York for the third judicial district, rendered by the justice of the first judicial district, acting in the absence of the justice of said first mentioned district court, without a jury, in favor of the plaintiff against the defendants for $17.07 damages and costs. The nature of the action and the material facts are stated in the opinion.
    ■ William 0. Campbell, for app’lt; Julius Offenbach, for resp’ts.
   Gtegerich, J.

This action was brought to recover the sum of $250 as damages for breach of contract under a lease of certain premises in the city of Brooklyn. By such lease plaintiff agreed to furnish defendants steam power and steam for drying room not to exceed ten horse power. After defendants had been in possession under the lease for several months, it was found that there was no' means of ascertaining how much steam they were actually using. Plaintiff claimed they were * using more than the ten horse power granted by the lease. To settle this difficulty, both parties entered into an arbitration agreement whereby they submitted the question of the amount to be paid by the defendants for “live steam” used by them in the past and the arbitrators were also to formulate a plan or rule for estimating the amount used thereafter.

The arbitrators made the following award:

“ Brooklyn, July 14, 1891.
“ We, the undersigned, having been appointed to arbitrate in the matter between S. J. Knight and Seckendorf, Korn & Co., and agree as a basis of settlement, that the horse power used in the past is seventeen horse and the price $80 per year, and the basis for the future we agree that it shall be that at ton of steam per day will be equal to seventeen horse.
“ (Signed), Wiv. Fenton,
“ Charles Ball.”

Plaintiff’s bill of particulars sets forth the items of his claim as follows:

Extra steam used by defendants during the months
January, February, March and September, 1892, $173.30 Water rent as per lease for March and April, 1893, - - 11.57
Damages for repairs to water-closets and elevator, - - 19.00
Five buckets removed from premises by defendants, - 9.00
Total,...............$212.87

It was admitted that the water rent had not been paid and the justice has rendered judgment for the amount thereof with costs. The evidence as to the item for extra steam alleged to have been used is conflicting. There is testimony on the part of the plaintiff that the defendants did use steam' during the months in question, while on the other hand, according to the testimony adduced on the part of the defendants, they did not use any at all during these months; that this period-was devoted to a cleaning of the premises and that no manufacturing was at such time going on in their establishment. The justice evidently believed the defendant’s version and as the determination of a question of fact was peculiarly within his province, it is not the subject of review here, the elements justifying such review not appearing in the case. Lynes v. Hickey, 4 Misc. Rep. 522;, 54 St. Rep. 120; 24 N. Y. Supp. 731; Weiss v. Strauss, 39 St. Rep. 78 ; 14 N. Y. Supp. 776. The justice having determined by the verdict rendered, that the defendants did not use steam during the months referred to, it would be manifestly unfair to compel the defendants to pay the plaintiff for the amount of coal he has burned over and above the amount necessary to produce twenty-spven horse power. A contrary conclusion would intend that liability had been assumed by the defendants for. the plaintiff’s unrestricted use of coal, and this the evidence in no way supports. The award fixed a basis by which the excess of steam over ten horse power used by the defendants could be ascertained. In order to use the award as a basis of compensation it was first necessary to determine that some steam had been furnished to the defendants. As has been shown, the justice’s determination upon this issue finds its support upon the evidence, and the office of the award in question here fails. The testimony as to the remaining items of damage, specified in the bill of particulars, was conflicting, and we see no reason why the justice’s determination of the facts in respect thereto should be disturbed. The record fails to disclose any exception taken by the appellant to rulings upon the trial.

The judgment should be affirmed with costs. Bischoff, P. J., concurs.


text:
    William Lowey, Resp’t, v. The Granite State Provident Association, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    Contract—Validity.
    Any contract, which is repugnant to, or contravenes, a statute of the state, is unlawful and cannot be enforced.
    Appeal by the defendant from a judgment of the district court in the city of New York for the first judicial district, rendered by the justice thereof, without a jury, in favor of the plaintiff. The nature of the action and the material facts are stated in the opinion,

      Jonathan C. Ross, for app’lt; Wakeman & Campbell, for resp’t.
   Giegerich, J.

This action was brought against the defendant, a foreign building and loan association, to recover the agreed, compensation for selling shares of stock of the defendant company. The defense was á general denial. Judgment was given the plaintiff for the full amount he claimed, from which the defendant- has appealed. By the plaintiff’s own testimony it appears that some of the sales upon which he seeks to recover commissions were made during the periods in which the defendant company was not allowed to do business in this state. It is conceded that the sale of shares of stock in such corporations was prohibited by § 9, chap. 146 of the Laws of 1890. The plaintiff boasts that they nevertheless continued the business and “ used to beat the devil around the bush.” But however adroit his work in thus evading or violating our laws may have been, he can hardly expect the court to reward him for it. Any contract which is repugnant to, or contravenes, a statute of -the state is unlawful and cannot be enforced. Excelsior Grain Binder Co. v. Stayner, 25 Hun, 91, and cases cited; Bilordeaux v. Bencke Lithographic Co., 16 Daly, 78; 30 St. Rep. 656; Honegger v. Wettstein, 94 N. Y. 252, 260; Story v. Cube State Bank, 18 Weekly Dig. 269. No claim is made that this contract was illegal at its inception ; but, upon the principle of the above cases, no recovery can be allowed for sales made subsequent to April 21st, 1890, on which day the abovecited statute went into effect. Since the evidence on the part of the plaintiff as to the date of some of the sales'is vague or conflicting, the judgment cannot be modified, but should be reversed and a new trial ordered, with costs to the appellant to abide the events.

Bischoff, P. J.: I concur. See also Dowley v. Schiffer, 36 St. Rep. 869; 13 N. Y. Supp. 552.


text:
    Ludwig T. Muench, App’lt, v. The Globe Fire Insurance Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    I. Contbact—Joint.
    An obligation, undertaken by, or a right given to, two or more persons, without words of severance, is a joint obligation or right.
    8. Same—Defense.
    In an action against an insurance company by a person, who was employed as an adjuster by several companies, partial payments made by them are available to the defendant.
    Appeal by the plaintiff from a judgment of the district court in the city of New York for the" first judicial district, rendered by the justice thereof, without a jury in favor of the defendant. The nature of the action and the material facts are sufficiently stated in the opinion.
   Giegerich, J.

This action was brought by the plaintiff to recover from the defendant, the sum of twenty-four dollars and thirty-five cents claimed to be its proportionate share of $2,500, the alleged value of services rendered by the plaintiff to the defendant and other companies in the capacity of appraiser. The answer was a general denial; denial of the value of the services; neglect and improper conduct of the plaintiff in his duties; and payment. The undisputed facts appearing from the evidence are, that a fire occurred in the establishment of one Henry Siede, a furrier; that he made a claim against the defendant and other fire insurance companies for loss by fire; that being unable to agree upon the amount of loss an agreement was made to submit the matters in difference to appraisers, one to be appointed by the insured and one by the companies, the two so appointed to name an umpire ; that one John Howley who was chairman of the Committee of Adjusters, and who was acting on behalf of all the companies selected the plaintiff to act as their appraiser; that no agreement as to the amount of his compensation was made; and that the plaintiff was engaged in the work about twelve days. At the trial there was a sharp conflict of evidence as to the value of the service rendered by the plaintiff. The justice evidently adopted the defendants’ valuation, and we see no reason for disturbing his finding simply because there is a conflict of evidence, in the absence of the elements justifying a review of the facts. Lynes v. Hickey, 4 Misc. R. 522; 54 St. Rep. 120; 24 N. Y. Supp. 731; Weiss v. Strauss, 39 St. Rep. 78; 14 N. Y. Supp. 776.

The parties litigant by stipulation in writing agreed, that the amount actually paid to the plaintiff by the several insurance companies aggregated $688.31. The justice in rendering judgment in favor of the defendant expressed the opinion “ that the plaintiff has been fully paid for all services rendered under the joint agreement by the several insurance companies.”

The plaintiff contends that the agreement under which the services were rendered was and is several and not joint. The authorities, however, do not favor this contention. “ Whenever an obligation is undertaken by two or more, or a right given to two or more,.it is the general presumption of law that it is a joint obligation or right. Words of joinder are not necessary for this-purpose; but, on the other hand, there should be words of severance, in order to produce a several responsibility or a several right.” 1 Parson on Contract (4th Ed.) p. 11. “It may be doubted,” observes the learned writer, “ whether anything less than express words can raise a liability which shall be at once a joint and a several liability.” (Id. p. 12). Again at page 14, he states what is undoubtedly the law of the case, in the following language : “ In general, all contracts, whether express or implied and resulting from the operation or construction of law, are joint, where the interest in them of the parties for whose benefit they are created, is joint, and separate where that interest is separate. But the interest which is thus important as a criterion, is an interest in the contract, and not in any sum of money, or other benefit, to-be received from it. It is a strictly legal and technical interest, - created by the contract, and does not depend upon the condition or state of the parties aside from the contract.” Addison, says: “If there be a joint retainer and employment of another by divers persons to do one thing for .the benefit of all, they have a joint legal interest in the fulfillment of the contract, by the party employed, although they may have several beneficial interests, and be possessed of separate shares, in the subject - matter of the contract but if there be a separate retainer by each, in respect of the- . separate share of each, then they have separate inteiests in the fulfillment of the contract.” Addison on Contracts (Am. Ed. 1888) p. 74. “In implied contracts and promises, if the con.-idt-ration moves from several persons jointly, the law raises a corresponding implied promise in favor of all, in which all are jointly interested; but if there be several separate considerations moving from the parties separately and individually, the law implies a separate promise in favor of each, and their interests are separate.” (Id. p. 76.) “ When there are a number of persons named as con- , tractors they will be deemed joint contractors unless it. is otherwise expressed in the contract." Cowen’s Treatise, § 752. The record is barren of any evidence of an agreement | creating a separate charge, the obligation of the insurance companies to pay the plaintiff, must therefore be presumed to be joint. It follows-that the partial payments made by the several companies to the plaintiff are available to the defendant, Snow v. Chandler, 84 Am. Dec. 140, and as the justice has found, that these partial payments amounted in the aggregate to a sum which fully paid the plaintiff for all the services rendered by him, the plea,of payment was satisfactorily established. No error appearing in the record the-judgment should be affirmed with costs.

Bischoff, P. J. concurs.


text:
    John O. Sweetser, Resp’t, v. The Metropolitan Life Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)
    Insurance—Life—Limitation. ■
    A provision in a life insurance policy that no suit shall be brought thereon after six months from the date of the death of the insured, is binding upon the parties, unless the obligee himself prevents its commencement or waives such condition.
    Appeal from a judgment of the district court in the city of New York for the first judicial district, rendered by the justice without a jury in favor of the plaintiff. Action upon policy of life insurance.

      G. N. Bovee and J. McG. Goodale, for app’lt; Thomas Bracke , for resp’t.
   Bischoff, J.

The defendant appeals from a judgment in favor of the plaintiff in an action upon a policy of insurance brought by such plaintiff as assignee of the beneficiary therein named. Several defenses were set up in the court below as appears from the record, and their availability upon the evidence was tested by appellant by motion for a dismissal of the complaint upon the ground, among others, of each defense severally as set forth. The motions were made when plaintiff rested and were renewed at the close of the case. Examination of the record leads to the conclusion that the justice’s refusal to dismiss the complaint upon the ground which we proceed to note, was error, and the appeal must prevail. In the policy sued upon the following condition appears “Eighth: * * * No suit shall be brought nor any action commenced against said company under this policy, until ten days shall have expired after the filing of proof of death upon all the forms prescribed by the company in its home office, nor after six months from the date of death of the insured; it being understood and agreed that if any such suit or action be commenced after said six rnonths the lapse of time shall be taken to be conclusive evidence against any claim, the provisions of any and all statutes of limitation to the contrary being hereby expressly waived. The evidence established "the fact that the insured died in the month of January, 1890, and from the record it appears that the action was commenced in the month of December, 1893. The above condition was pleaded in defense and the motion for a dismissal was made and renewed upon the ground that the agreed limitation had run. Such a limitation is binding upon the parties to the contract unless “the obligee himself be the cause that the obligation cannot be performed,” Wilkinson v. First Nat. Fire Ins. Co., 72 N. Y. 499, or a waiver of the condition be shown. Neither of these elements had existence in the case so far as appears. It was sought to be shown by the evidence that the defendant delayed furnishing blanks for proof of death after a call therefor had been made by plaintiff, but it unquestionably appears that this call was first made by him no earlier than September, 1892, the limitation prescribed by the contract having long run at that time. Moreover the evidence establishes the fact that blank proofs of death were furnished by defendant to plaintiff’s assignor within a few days after the death of the insured and these proofs appear to have been filed at that time. The record is barren of evidence tending to show that any acts of the defendant hindered the proper institution of legal proceedings within the terms of the contract. While there appears to be some dispute on plaintiff’s part as to the authenticity of statements appearing in the proofs as filed, this question would merely have presented an issue to be litigated in season, upon the company’s refusal to make payment under the polic}', and in no way affects the limitation of time in which the action was to be brought. No claim is made that the condition in question was waived by defendant, the evidence affirmatively showing that an attitude consistent with the terms of such condition was uniformly maintained by the company.

The judgment must be reversed, with costs.

jBooKSTAVER, P. J., concurs.


author: GIEGERiOH, J.

text:
    Charles H. Whedon, App’lt, v. James Hogan, Impleaded, etc., Resp’t.

      (New York Common Pleas, General Term;

      Filed May 7, 1894)

    1. Bills and notes—Usury.
    The purchaser of apcommodation paper, at a usurious rate, is not excused by reason of his lack of knowledge of its character, even though the payee represents that it is business paper
    2. Same—Estoppel—Certificate.
    A certificate, by the maker and payee, as to the genuineness of their signatures does not create an estoppel
    Appeal by the plaintiff from a judgment of the district court in the city of New York for the ninth judicial district, rendered by the justice of the eleventh judicial'district, acting in the absence of the justice of the first mentioned district court, without a jury, in favor of the defendant, James Hogan. The opinion "states the nature of the action and the material facts.

      Frank Moss, for app’lt; Percy L. Klock, for resp’t.
   GIEGERiOH, J.

This action was brought upon the following promissory note :

“$100. | New York, Jan. 24, 1893.
Three months after date, I "promise to pay to the'order of W. H. Ruffhead, One hundred dollars at No. 36 Beekman St., New York city. Value received. James Hogan.”

which Ruffhead transferred to the plaintiff for $80. Judgment by default was rendered against Ruffhead ; but Hogan set up the defense of usury and judgment was rendered in his favor against the plaintiff. The evidence was conflicting as to whether this was an accommodation or a business note ; but the trial justice evidently found, upon this issue, for the defendant, and there is no sufficient ground for disturbing his decision. Kelly v. Walton 6 Misc. Rep. 152 ; 56 St. Rep. 281; Lynes v. Hickey, 4 Misc. Rep. 522 ; 54 St. Rep. 120 ; 24 N. Y. Supp.731; Weiss v. Strauss, 39 St. Rep. 78 ; 14 N. Y. Supp. 776 ; Dempsey v. Paige, 4 E. D. Smith, 219. The rule is firmly established that the purchaser oi; accommodation paper at usurious rate is not excused by reason of his lack of knowledge of its character; Clark v. Sissons, 22 N. Y. 312 ; Eastman v. Shaw, 63 id. 522, 530; see, also, Claflin v. Boorum, 122 id. 385; 33 St. Rep. 640 and cases cited; and even though the payee represents that it is business paper, it is usurious and void as to the maker. Dowe v. Schutt, 2 Denio, 621, 624; Holmes v. Williams, 10 Paige, 326, and cases cited. This makes the question of Ruffhead’s representation, at the time of the sale, that the note was for commissions, immaterial, as between the plaintiff and Hogan. Estoppel is claimed based upon the following letter :

“ New York, Jan. 26, 1893.
Mr. Whedon : Dear Sir: The signature is all right on the note for $100. W. H. Ruffhead, James Hogan.”

which was sent in reply to a note of inquiry from the plaintiff, before he consented to deal with Ruffhead, with whom all his interviews were had. We can see in this no more than what, upon its face, it purports to be, a certificate to the genuineness of the signatures. Another letter and a conversation between plaintiff and Hogan are also relied upon ; but both were subsequem to the discounting of the note and do not appehr to have influenced the plaintiff to his detriment

The judgment should be affirmed, with costs.

Bischoff, P. J., concurs.