text:
    Mary Ann Robinson, Pl'ff, v. Robert Govers, Ex'r, et al., Resp'ts.

      (Court of Appeals,

      Filed June 6, 1893.)

      t. Abatement and bevivob—Code Civ. Pbo. , § 763.
    Section 763 of the Code, providing for the entry of judgment where a party dies after verdict, does not apply to a case where the cause of action abates by the death of the plaintiff.
    3. Same —Doweb— Confibmation of bepobt.
    Plaintiff brought action to recover dower and filed a consent to accept a gross sum. A verdict was rendered in her favor, and on motion for confirmation and for admeasurement defendants asked leave to pay a gross sum, to ascertain the amount of which a reference was ordered. The referee reported and the court handed down a decision in writing confirming the same and disposing of the question of costs, but the order thereon was not entered until two hours after plaintiff died. Held, that the proceedings had reached such a stage before plaintiff’s death as to vest in her a right to the money representing the value of her estate in the land, and this right passed to her executor.
    (Andrews, Oh. J., dissents.)
    Appeal from order of the supreme court, general term, first department, reversing order granting leave to plaintiff’s executor, Henry Mottet, to continue the action, and amending and denying defendant’s motion to vacate a prior order in the same matter.

      Austen G. Fox, for app'lt; Gratz Nathan, for resp't.

       Reversing 48 St. Rep., 861; 51 id, 802.

   O'Brien, J.

The court, at special term, in this cáse, after the death of the plaintiff, in an action to recover dower, made an order directing that the action be continued in the name of the executor, and that the money which she was to receive in lieu of dower be paid to him. The general term has reversed the order, holding virtually that the action has abated by the plaintiff’s death. We agree with the learned general term that § 763 of the Code has no application to the question. That applies to cases in which the cause of action survives, and unless the order appealed from can be questioned upon some other ground it should stand. The widow’s estate in dower in the lands of her husband terminates at her death, and in an incomplete proceeding for admeasurement there would be nothing for the court to act upon after the plaintiff’s decease. The real question here, however, is whether the plaintiff, at the time of her death, was vested with the right to a sum of money in lieu of dower which passed to her executor and could be claimed by him. In determining that question the various steps taken by both sides in the progress of the action up to the time of the death of the plaintiff become important. The husband and wife had lived separate for some time before his death, and she was in receipt of a stipulated allowance in money from his property, which was paid to her up to the time of her death. Under the husband’s will his collateral relatives took the real estate subject to the widow’s dower. She brought this action to recover it and filed her consent to accept a gross sum under- the provisions of the Code. § 1617.

The defendants were the executor and trustee and the devisees under the will, and they having answered, the issue was tried before the court and a jury, October 22, 1891, and a verdict rendered that the plaintiff was entitled to dower. The plaintiff moved for an interlocutory judgment upon the verdict and an inquiry whether there ought to be admeasurement or a sale. At the same time the defendants moved, under § 1618 of the Code, for leave to pay the gross sum in lieu of dower. The court ordered a reference to ascertain the sum to which the plaintiff would be entitled as the equivalent of her estate in the lands, and the referee made and filed his report that the plaintiff was entitled to a sum of money therein specified as the value of her dower interest. A motion to confirm this report was argued and submitted to the court on the 30th day of January, 1892. On the 15th day of February, 1892, the court decided to confirm the report, and its decision was expressed in the form of an opinion in writing. This decision gave to the plaintiff a specified sum of money as the value of her dower, and disposed of the question of costs between the parties. The formal order embodying this decision was not prepared Bind signed by the judge presiding, and who made the decision, until February 18, 1892, at thirty minutes past two o’clock in the afternoon of that day, when it was immediately entered. The plaintiff died on the same day, at ten minutes past twelve, two hours and twenty minutes before the order was signed and entered. Had the order been entered at any time before the moment of the plaintiff’s death, it is not suggested that there would then be any question as to the right of her next of kin or executor to demand and receive the money. By the plaintiff’s consent filed, and the motion to the court by defendants for permission to pay a gross sum, all parties virtually assented that the plaintiff’s interest in the lands of her husband should be satisfied and discharged by the payment to her of a sum of money. " The plaintiff had consented to receive it. The defendants, by their motion to the court, had expressed their willingness to pay it, and nothing remained to be done except to ascertain the amount or the exact sum which would represent the value of the plaintiff's interest. This involved an inquiry as to little more than two facts, namely, the plaintiff’s age and the value of the whole property. The referee’s report fixed the sum to which the plaintiff was entitled. True, it was not operative or final until confirmed. But it was confirmed. The necessary judicial action to accomplish that result was had. The decision was expressed in writing, and it had all the certainty of a formal judgment. The formal order entered is but the evidence of the decision or judgment, and not the decision itself, which must always precede the entry of the order. The entry of a formal order may have been necessary for the enforcement of the right, but the right itself, that is to say, the plaintiff’s right to demand and receive a certain sum of money in lieu of dower from the defendants, or from the land, was established and declared when the court delivered its decision of the questions before it in writing. The claim or right thus acquired was capable of transmission or transfer when judicially ascertained and determined, and the fact that the formal order, which is required by rules of practice to be signed and entered as evidence of the action of the court, was not so signed and entered till after the moment of her death, did not defeat the right which resulted from such judicial action. When the court had decided to confirm the report of the referee the plaintiff was vested with the right to the sum of money therein specified, and the delay in entering upon the records the formal expression and evidence of that decision did not affect the right, though it might affect the remedy for its enforcement. The material fact is, that before the death of the plaintiff the court had acted upon the case and adjudged what her rights were. What remained was mere formality, and not matter of substance. If the clerk of the court, or her attorneys, failed to place upon the records of the court, before her death, the formal evidence of its action which conferred the right, that may in equity be regarded as done at the time the decision was made. For the purpose of computing the time to appeal, or making an appeal, the decision of the court must be made to assume the form of a judgment or order in the technical sense of these' terms, Knapp v. Roche, 82 N. Y., 366; but when the right to money in lieu of dower depends upon the confirmation of the report of a referee, as in this case, that may be regarded as done at the time the decision was actually made, as then the party acquired the right to have the order entered. The proceedings had reached such a stage before the plaintiff’s death as to vest in her a right to the money representing the value of her estate in the land, and this right passed to her executor. Fulton v. Fulton, 8 Abb. N. C., 210; McLaughlin v. McLaughlin, 22 N. J. Eq., 505-512; Mulford v. Hiers, 2 Beas. Ch. (N. J.), 13-15; Livermore v. Bainbridge, 49 N. Y., 128, 129; Mackay v. Rhinelander, 4 Johns. Cas., 410.

It follows that the order of the general term should be reversed and that of the special term affirmed, with costs.

All concur, except Andrews, Ch. J., dissenting.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Supreme Court—General Term—First Department.
    Filed February 17, 1893.
    Jirah L. Foote et al., Ex'rs, v. Lucy F. Bruggerhof.
   Per Curiam.

The first ground for reargument, viz., that no disposition, "was made of the question as to in what capacity the plaintiffs held the shares of Lucy and Bessie during the minority of said defendants, is an error into which counsel has fallen from a failure to carefully read the opinion. Nothing can be clearer, in speaking of the position that the plaintiffs held towards the fund belonging to these defendants, than language holding that the shares of such defendants were not held by plaintiffs in a personal capacity, but in a representative capacity.

The second ground, that there is no testimony that the shares remained unseparated without objection, and that, therefore, the parties would be precluded on the accounting from introducing important testimony, is equally without merit. No claim is made that these defendants produced testimony showing that there was, under the decree of 1883, a distinct separation of the shares of the several defendants, and thereafter a separate holding of such shares by plaintiffs. The parties, however, upon the accounting, are to be affected, not by the opinion, but by the judgment entered at special term, as modified by this general term; and we fail to see how these defendants would be prejudiced by any expression in the opinion from presenting upon the accounting such objections to the manner in which the various trusts have been administered by the plaintiffs as will secure them their respective rights. We think the application for a reargument is without merit, and should be denied, with ten dollars costs.


text:
    Sarah Lazarus et al., Resp'ts, v. The Metropolitan Elevated Railway Co. et al., App'lts.
   Per Curiam.

It was the intention of the court, in the exacting the stipulation in question, that it should only preclude the railway company from instituting condemnation proceedings in case the judgment should be finally affirmed, but it would not prevent them from instituting such proceedings in case the judgment was reversed. We, therefore, see no reason for interfering with the order made, and the same should be affirmed, with ten dollars costs and dis-" bursements.


text:
    Sarah Lazarus et al., App'lts, v. The Metropolitan Elevated Railway Co. et al., Resp'ts.
   Per Curiam.

The court in making the order appealed from, did nothing was judgment it should do, and, in the settling of the form of the deed, in no way exceeded the judgment which had been entered. The order appealed from should be affirmed, with ten dollars costs and disbursements.


text:
    Filed March 17, 1893.
    In the Matter of James Blewitt.
   Per Curiam.

Nothing needs to be added to the opinion of the special term, upon which the order may well be affirmed, except that it appears from the record that the alleged lunatic has escaped from the custody of the committee, and has left the state of New York, and refuses to disclose his whereabouts; so that it is impossible to procure an examination to be made by a disinterested physician as to his present mental condition. We think the order should be affirmed, with costs.


text:
    Filed April 14, 1893.
    The People v. William Pinckney.
   Motion for resettlement denied.


text:
    William S. Williams v. Robert Lindblom, Impl'd.
   Motion denied, with ten dollars costs.


text:
    Andrew Morris v. The Eighth Ave. Railroad Co.
   Motion denied.


text:
    In the Matter of the Estate of Maria E. Hotchkiss.
   Motion granted, with ten dollars costs.


text:
    Julius H. Caryl v. F. X. Stafford et al.

   Motion denied.


text:
    Philo T. Ruggles v. F. X. Stafford et al.

   Motion denied.


text:
    Wm. E. Daniels v. F. X. Stafford et al.

   Motion denied.


text:
    General Term—Second Department.
    Filed May 8, 1893.
    Mattie Lydecker v. Samuel Gilchrist.
   Judgment affirmed for non-submission of papers according to stipulation, with costs.


text:
    Kate B. Verplanck v. William Farrell et al.

    Appeal dismissed.
   Babnabd, P. J., not sitting.


text:
    William Hill v. The Prudential Insurance Co.
   Appeal withdrawn.


text:
    In the Matter of Silas J. Owen.
    Motion for reargument to be applied for at September term.
   Babnabd, P. J., not sitting.


text:
    The People v. John Craig.
   Appeal dismissed.


text:
    Edson C. Jennings, Resp't, v. The D. G. Burton Co., App'lt.
    Reargument ordered.
   Dykman, J., not sitting.


author: Dykman, J.

text:
    George Morgan, by Guardian, Resp't, v. The New York Central & Hudson River Railroad Co., App'lt.
    Appeal from judgment in favor of plaintiff, entered on verdict.'

      F. Loomis (R. F. Wilkinson, of counsel), for app’lt; Schlosser & Wood, for resp’t.
   Dykman, J.

This is an action for assault and battery committed by an officer of the defendant upon the plaintiff.

The testimony on the part of the plaintiff made a plain case for the jury, and the motion for a nonsuit was properly denied.

The testimony on the part of the defendant tended to show that the officer did no more than he was justified in doing in the discharge of his duty.

So the case went to the jury under a charge to which there was no exception, and which defined the rights of the parties'with accuracy.

As the verdict was found for the plaintiff, we must assume that the jury found facts according to the testimony he laid before them, and that made an aggravated case of assault and battery.

Under such circumstances we cannot interfere with the verdict, and the judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs.

Pratt, J., concurs; Babnabd, P. J., not sitting.


text:
    Vernon Travis, Resp't, v. Edward L. Gallon, App'lt.
    Appeal from judgment of the Westchester county court, in favor of plaintiff, entered on verdict.

      Chas. F. Cossum, for app’lt; Francis Larkin, for resp’t.
   Dykman, J.

This action was tried first in a court of a justice of the peace, where the plaintiff obtained a verdict. Then, on appeal to the county court of Westchester county, there was another trial, and the plaintiff again obtained the verdict.

The action was for services rendered by the plaintiff to the defendant, and the chief controversy upon the trial arose over the question of payments made to the plaintiff.

That was an affirmative defense, and although we would have been better satisfied with a verdict for the defendant, yet we cannot say that the payments were so fully established as to justify us in reversing the judgment.

There was a sharp contradiction of the testimony of the defendant, and the jury must have disregarded it to a very great extent. We can see no reason for such unbelief, but we cannot say there was none.

We reach this conclusion with hesitation, but we cannot say the verdict is so plainly against the preponderance of evidence as to justify an appellate court in interfering therewith.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

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


text:
    Jeremiah P. Robinson et al., Ex'rs, Resp'ts, v. William H. Beard et al., Ex'rs, App'lts.
    Appeal from judgment in favor of plaintiffs.

      Edward Hinman, for app’lts; Win. G. Choate, for resp’ts.
   Dykman, J.

This is an action to compel the defendants, as executors of William Beard, deceased, to perform specifically certain covenants contained in a lease made by their testator to Jeremiah P. Robinson et al.

The action has been tried before a judge at special term and the facts found in favor of the plaintiff, and a judgment directed in his favor.

The defendants have appealed from the judgment, and while they find no fault with the findings of fact, they yet contend that the judgment is erroneous.

On the contrary, in our view, the case depends entirely upon the facts, and our examination satisfies us that the trial judge reached the correct legal conclusion upon the facts which he found, and that all his findings are fully justified by the evidence.

The case depends upon its own peculiar facts and a lengthy analyzation of the evidence will serve no beneficial purpose.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.


text:
    Mary L. Lefurgy, Adm'rx, Resp't, v. James Stewart, App'lt.
    Appeal from judgment in favor of plaintiff, entered on report of a referee,

      Joseph F. Daly, for app’lt; John Brooks Leavitt, for resp’t.
   Dykman, J.

This is an appeal from a judgment entered upon the report of a referee, in favor of the plaintiff.

The action is for the recovery of stone delivered to the defendants, and the principal controversy had reference to the prices of the stone.

A careful examination satisfies us that the referee has made a proper disposition of the case, and his opinion shows that he examined the case with great care.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratí, J., concur.


text:
    Roger M. Sherman App'lt, v. Herbert L. Satterlee, Resp't.
    Appeal from judgment entered on verdict for defendant directed by the court. Action for money had and received.

      Joseph A. Thompson, for app’lt; Henry W. Hardon, for resp’t.
   Dykman, J.

We think the trial judge made the proper disposition of this action at the circuit and that the appeal is destitute of merit.

Whatever may he said about the title of the defendant to the fund in controversy there is no reason why it should be recovered by the plaintiff.

The judgment should be affirmed, with costs.

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


author: Pratt, J.

text:
    The First National Bank of Sing Sing, Resp't, v. Thomas H. Chalmers et al., App'lts.
    Appeal from judgment in favor of plaintiff.

      Calvin Frost, tor app’lts; Francis Larkin, for resp’t.
   Pratt, J.

The testimony sustains the findings that defendants, for a good consideration, agreed with plaintiffs and with Spruce and Leary to pay the debt owing to the bank.

That is the only issue in the case and the judgment must be affirmed, with costs,

Barnard, P. J., and Dykman, J., concur.


text:
    Anne A. Morss, Resp't, v. Edward Burns et al., App'lts.
    Appeal from judgment of foreclosure and sale.

      Michael H. Cardozo and W. Brown, Jr., for app’lts; W. H. Arnoux and C. N. Bovee, Jr., for resp’t.
   Per Curiam.

The questions involved in this appeal seems to have been fully covered by our opinion on the former appeal. We, therefore, affirm the judgment, with costs.

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


author: Herrick, J.

text:
    General Term—Third Department.
    Filed May 9, 1893.
    Aaron M. Stevens et al., Resp'ts, v. The Central National Bank of Boston and Other Certificate Holders, Impl'd, App'lts.
    Appeal from judgment in favor of plaintiffs.

      Campbell & Paige (E. W. Paige, of counsel), for app’lts; Hale & Bulkley (Matthew Hale, of counsel), for resp’ts.
   Herrick, J.

This case has been once before this court, 57 Hun, 499; 33 St. Rep., 130, upon substantially the same facts. Upon the new trial the court in its discretion followed the judgment and opinion of the general term, and I can see no reason for differing from that decision.

The judgment appealed from should be affirmed, with costs.

Mayham, P. J., concurs; Putnam, J., not acting.


text:
    Jennie L. Meek, Adm'rx, Resp't, v. The N. Y. C. & H. R. R. R. Co., App'lt.
    Appeal from judgment in favor of plaintiff.
    Action to recover damages for the death of plaintiff’s intestate alleged to have been caused by defendant’s negligence.

      Harris & Rudd (Hamilton Harris, of counsel), for app’lt; Parker & Fiero {J. Newton Fiero, of counsel), for resp’t.
   Herrick, J.

It seems to me that this case turns upon questions of fact which were finally to jury. question as to intestate attempted to uncouple the cars while they were in motion is a matter to be submitted to the jury; there does not seem to he any positive evidence either way. There was evidence that there was a block in the frog before the accident; that it had been removed, apparently, the day of the accident. The question whether intestate’s foot got caught in the frog when the block had been taken out was for the jury.

Whether it was negligence not to have it blocked or keep it blocked, it having been blocked, was also for the jury. I see no occasion for an opinion.

Judgment should he affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


text:
    Michael Murphy, Resp't, v. Hush Graham, Ex'r, etc., App'lt.
    Appeal from judgment in favor of plaintiff, entered on report of referee.

      Thomas O'Connor, for app'lt; Isaiah Fellows, Jr., for resp't.
   Herrick, J.

The questions involved in this case are entirely of fact, and

while there is a conflict of evidence, there is evidence to sustain the findings of the referee, and I can find no sufficient reason to reverse such findings.

The judgment should he affirmed, with costs.

Mayham, P. J., concurs.


text:
    Filed May 25, 1893.
    William F. Rodgers, Resp't, v. Edward J. Whalen, App'lt.
    Judgment affirmed.
   Mem. by Herrick, J., but not for publication.


text:
    William Moore, Resp't, v. Maria Moore, App'lt.
   Order affirmed, without costs.

Affirming 51 St. Rep., 911.


text:
    Hiland B. Fairbrother and Thomas Dunn, Pl'ffs, v. Mary Devlin, Def't.
   Order affirmed, with costs.


text:
    John H. Haskell, Resp't v. The Northern Adirondack Railroad Co., App'lt.
   Motion for re argument granted, costs of motion to abide the event.


text:
    The People, Resp'ts, v. Edmund Post, App'lt.
   Judgment affirmed.


text:
    Henry Morton, Trustee, Resp't, v. Peter Callanan, App'lt.
   Order affirmed, with costs and printing disbursements.


text:
    Cornelia Kane Rathbone, Executrix of the Last Will and Testament of Lewis Rathbone, App'lt, v. The New York Central & Hudson River Railroad Co, Resp't.
   Judgment affirmed, with costs.


text:
    Orrando P. Dexter, App'lt, v. William Dana Dustin, Leroy M. Wardner, George W. Dustin and Milton Heath, Resp'ts.
   Judgment affirmed, without costs to either party. Putnam, J., not acting.


text:
    Julius V. Burgevin, Resp't, v. The New York Central & Hudson River Railroad Co., App'lt.
   Motion for leave to go to the court of appeals denied, with ten dollars costs.


text:
    General Term—Fourth Department.
    Filed May 13, 1893.
    George Alden, Receiver, App'lt, v. Edward K. Clark and John Le Grange, Resp'ts.
   Order on each appeal amended by adding a provision that the respondent, within twenty days after the entry and service of this order, and upon payment of the costs awarded against him, may amend his answer. Balance of motion denied.


text:
    Henry M. Warren et al., Resp'ts, v. Hector B. Johnson et al., App'lts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People ex rel. Abijah Wakeman, App'lt, v. Rector Seymour, Sole Trustee, Resp't.
   Order affirmed, without costs.


text:
    Gates Thalheimer, Resp't, v. Frank Gillett, App'lt.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event.


text:
    Frank R. Jenks, App'lt, v. Thomas Quinn, Resp't.
   Order affirmed, with ten dollars costs and disbursements.


text:
    The People, Resp'ts, v. Thomas Ryan, App'lt.
   Conviction, judgment and order reversed, and a new trial ordered, and the clerk directed to enter judgment and remit a certified copy thereof, with the return and decision of this court, to the court of sessions of Oswego county, pursuant to §§ 547 and 548 of the Code of Criminal Procedure. Held, The cross-examination of the People’s witnesses was improperly limited, and as the evidence of intent to ravish was so slight, the rulings were prejudicial to the defendant


text:
    Henry H. Stevens, Resp't, v. Henry H. Dean, App'lt.
   Judgment and order affirmed, with costs.


text:
    Seymour Seeley, Resp't, v. George A. Dixon et al., App'lts.
   Judgment and order affirmed, with costs.


text:
    Charles J. Thomson et al., Resp'ts, v. Phonora A. Ryder, Impleaded, App'lt.
   Order reversed and motion granted setting aside the judgment so far as it awards costs against the appellant.


text:
    John Savell, Resp't, v. James Casler, App'lt.
   Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event. Held, that at the time of the seizure the plaintiff had not the right to reduce the property into his possession, and, therefore, replevin is not maintainable. Sec. 1690 of the Code, subd. 3; Savall v. Wauful, 21 Civ. Pro., 18; S. C., 63 Hun, 627; 43 St. Rep,, 968.


text:
    William H. Gardiner, App'lt, v. Patrick O'Donnell, Resp't.
   Order affirmed, with costs.


text:
    Elizabeth B. Alsop, Resp't, v. Charles R. Alsop, App'lt.
   Judgment and order affirmed, with costs.


text:
    Charles McCarthy v. The Thousand Island Park Association.
   Judgment ordered for plaintiff for the amount demanded, without costs to either party. Held, that under plaintiff’s lease the entrance fee was not chargeable against him.


text:
    John W. Truesdell, Administrator, Resp't, v. Fannie L. Bourke, Executrix, App'lt.
   Judgment reversed on the exceptions, and a new trial ordered, with costs to abide the event. Held, that the case involved questions of fact which ought to have been submitted to the jury.


text:
    Louis House, App'lt, v. The New York Central & Hudson River Railroad Company, Resp't.
   Judgment affirmed, with costs.


text:
    The People, Resp'ts, v. M. Jesse Brayton, App'lt.
   Interlocutory order and judgment overruling demurrer affirmed, with costs, with leave to the defendant to answer in twenty days upon payment of the costs of the demurrer and of this appeal.


text:
    Ben. L. Fairchild, Judgment Creditor, Resp't, v. Alonzo B. Cornell, App'lt.
   Order affirmed, with ten dollars costs and disbursements. Held, that the prior proceedings for appointment of receiver furnish no reason why the debtor should not be examined as to his property.


text:
    Richard C. Wilson, Resp't, v. The Schenevus Village Water Works Company, App'lt.
   Judgment affirmed, with costs.


text:
    Bridget O'Hara et al., Executors, App'lts, v. The Dutchess County Mutual Insurance Company, Resp't.
   Order reversed, with ten dollars costs and disbursements. Held, the issues are not referable. See 2 Thompson & Cook, 550; 11 Hun, 511; 12 St. Rep., 620; 9 Hun, 28; 10 N. Y. Supplement, 229; 32 St. Rep., 117; 38 id., 26; 41 id., 172; 103 N. Y., 676; 3 St. Rep., 687; 105 N. Y., 521; S. C., 8 St. Rep., 1.


text:
    Cleveland D. Manville, App'lt, v. Henry McCullock and Horace Bush, as Executor and Trustee, Resp'ts.
   Order affirmed, with ten dollars costs and disbursements.


text:
    In the Matter of the Petition of Hannah Stephens, App'lt, v. John D. Griffith, as Attorney, Resp't.
   Order affirmed, without costs. 'Held, that the question as to the default of the respondent was addressed to the discretion of the special term.


text:
    Simon D. Paddock, App'lt, v. John Bacon et al., Resp'ts.
   Judgment affirmed, with costs. Parker, J., not sitting.


text:
    John J. Wood, App'lt, v. The Town of Volney, Resp't.
   Order affirmed, with costs.


text:
    Peter Manswey, App'lt, v. Henry C. Grunert, Resp't.
   Judgment of the county court reversed, and the judgment of the justice’s court affirmed, with costs.


text:
    Annie Murray, App'lt, v. The Church of St. John the Evangelist, Resp't.
   Judgment affirmed, with costs.


text:
    Ellen C. Beardslee and Guy R. Beardslee, App'lts, v. Heny A. Dolge, Resp't.
    Judgment affirmed, with costs.
   Hardin, P. J., not voting. (Following opinion of Martin, J., on former appeal.)


text:
    S. Albert Johnson et al., Resp'ts, v. Robert W. Bruce et al., App'lts.
   Order affirmed, with ten dollars costs and disbursements, and a provision added to it that upon the defendants paying $9.35, balance of judgment, with interest, within twenty days to plaintiff’s attorney, he shall execute and deliver a satisfaction piece of the judgment.


text:
    William Youmans, App'lt, v. Sherrill E. Smith and George H. Paine, Resp'ts.
   Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event.


text:
    Nellie House, Resp't, v. Frederick Walsh, App'lt.
   Judgment and order affirmed, with costs.


text:
    Ambrose Hine, App'lt, v. Norman Hine et al., Ex'rs, Resp'ts.
   Judgment reversed, and a new trial ordered, with costs to abide the event.


text:
    Esther Bowman et al., Resp'ts, v. George Lowman, App'lt.
   Judgment reversed, and a new trial ordered, with costs to abide the event.


text:
    General Term—Fifth Department
    Filed April 13, 1893.
    George Boll, Adm'r, v. The Steam Gauge & Lantern Co.
   Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit, on the authority of Pwuley against the same defendant, 131 N. Y., 90; 42 St. Rep., 636.


text:
    Electa A. Dyke, Resp't, v. William Spargur et al., App'lts.
   Judgment appealed from affirmed, with costs.


text:
    Belle D. Wilson, Adm'rx, App'lt, v. The New York Central & Hudson River Railroad Co., Resp't.
   Interlocutory judgment appealed from affirmed, with costs, with leave to the plaintiff to amend her complaint in twenty days on payment of the costs of the demurrer and of this appeal.


text:
    In the Matter of the Probate of the Last Will and Testament of Samuel Wilcox, Dec'd.
   Decree of the surrogate of Monroe county admitting the will to probate affirmed, with costs to the respondent, payable out of the estate.


text:
    Clara Whiteman Gibbs, Adm'rx, Resp't, v. The Merchants’ & Farmers’ National Bank of Dansville, N. Y., App'lt.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    George C. Buell et al., Resp'ts, v. John W. Sickly, Jr., App'lt.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Frank P. Pease et al., Resp'ts, v. Anna De Etta Pease et al., App'lts, and two other cases of same title in each case.
   Order appealed from affirmed, with ten dollars costs of one case and disbursements in the three cases.


text:
    Frank Hilliard, Resp't, v. The Mottville Paper Company, Limited. App'lts.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    Oliver Crothers et al., Resp'ts. v. Union Brewing Company et al., App'lts.
   Judgment appealed from affirmed.


text:
    John B. Salisbury et al, Resp'ts, v. George Mott, App'lt.
   Judgment appealed from affirmed, with costs.


text:
    Henry R. East, App'lt, v. The Cayuga Lake Ice Line, Resp't.
   Motion for a reargument denied.


text:
    Susan B. Anthony et al., App'lts, v. The American Glucose Co., Resp't.
   Motion to amend orUer granted.


text:
    William B. Colvin, Resp't. v. The United States Mutual Accident Association of New York City, App'lt.
   ■ Motion for leave to appeal to the court of appeals denied.


text:
    William H. Ordway, Resp't, v. The Village of Canisteo, App'lt.
   Motion for reargument or for leave to appeal to the court of appeals denied.


text:
    Joseph Kress, Resp't, v. The East Side Savings Bank, App'lt.
   Motion for leave to appeal to the court of appeals denied.


text:
    Superintendent of the Poor of the County of Cattaraugus v. The Superintendent of the Poor of the County of Erie.
   Motion for leave to appeal to the court of appeals granted.


text:
    William T. Long v. William Long.
   Motion for reargument denied.


text:
    Bridget McDonald, Adm'rx, Resp't, v. The N. Y. C. & H. R. R. R. Co., App'lt.
   Motion to amend order granted.


text:
    Thomas P. McCormick, Resp't, v. John McCormick, Jr., Impl'd., App'lt.
   Leave granted to defendant to make and serve a proposed case and exceptions on appeal within fifteen days on payment of ten dollars costs of opposing this motion.


text:
    Richard Foran v. The N. Y. C. & H. R. R. R. Co.
   Motion to amend memorandum of decision denied.


text:
    Frances A. Dike v. William Long, Survivor.
   Motion for reargument denied.


text:
    New York Common Pleas—General Term.
    Filed April 10, 1893.
    In the Matter of the Application of The Lawyers' Surety Co. of New York for an Order Respecting the Approval of Bonds and Undertakings.
   Petition authorizing the approvalof bonds of the Lawyers’ Surety Co. of New York granted.


text:
    Edward Duffy, Resp't, v. John Dawson, Def't. Cornelius Evans, Pl'ff, v. John Dawson, App'lt.
   Motion for re-argument denied, with ten dollars costs.


text:
    Catharine A. Peters, Resp't, v. Sidney H. Stuart, Adm'r, App'lt.
   ■ Motion for re-argument denied, with ten dollars costs.


text:
    Henry A. Capel et al., Resp'ts, v. Jeremiah C. Lyons et al., App'lts.
   Motion for re-argument denied, with ten dollars costs.


text:
    Jacob Klee et al., App'lts, v. Hugh J. Grant, Sheriff, Resp't.
   Motion for re-argument granted.


text:
    William Morowske et al., Resp'ts, v. William F. Rohrig, App'lt.
   Motion for re-argument granted.


text:
    Filed April 26, 1893.
    William T. Brown, Resp't, v. George Brown, App'lt.
    Appeal from eleventh judicial district court.
   Judgment reversed, new trial ordered, costs to appellant to abide the event»


text:
    Endora Blakely, Resp't, v. Myer S. Sire, App'lt.
    Appeal from judgment of the eleventh judicial district court.
   Judgment affirmed, with costs.


text:
    Gustav J. Dohrenwend, Resp't, v. Alexander R. Capote, App'lt.
    Appeal from judgment of the fourth judicial district court.
   Judgment affirmed, with costs.


text:
    Davis Rubins, App'lt, v. William F. Grote, Resp't.
    Appeal from judgment of the fourth district court.
   Judgment affirmed, with costs.


text:
    Thomas Leddy, Resp't, v. Edward J. Schenck, App'lt.
    Appeal from judgment of the seventh district court.
   Judgment affirmed, with costs.


text:
    Leopold Schwarz, Resp't, v. George Lindemann, App'lt.
    Appeal from judgment of the fifth district court.
   Judgment reversed, new trial ordered, costs to appellant to abide the event»


text:
    David Boehnet, Resp't, v. Phillip Page, App’lt.
    Appeal from judgment of the fifth district court.
   Judgment reversed, with costs.


text:
    Bernard Rabinowitz, Resp't, v. The Prudential Insurance Co. of America, App'lt.
    Appeal from judgment of the first district court.
   Judgment reversed, new trial ordered, with costs to appellant to abide event.


text:
    Filed May 1, 1893.
    Marshall Barber et al., Resp'ts, v. Albert Gray, App'lt.
    Appeal from judgment of the city court.
   Judgment affirmed, with costs.


text:
    Wm. Champion, Resp't, v. Joseph P. Murray et al., App'lts.
    Appeal from judgment of the ninth district court.
   Judgment affirmed, with costs.


text:
    David Cohen, Resp't. v. C. Merritt, App'lt.
    Appeal from judgment of the eleventh district court.
   Judgment reversed, new trial ordered, costs to appellant to abide the event.


text:
    Patrick McHugh, Resp't, v. Carrie Miller, App'lt.
    Appeal from judgment of the eleventh district court.
   Judgment affirmed, with costs.


text:
    Ignatz Gutman, Resp't, v. Adolph Lehrfeld, App'lt.
    Appeal from judgment of the fifth district court.
   Appeal dismissed, with costs.


author: Pryor, J.

text:
    Henry Morgenthau et al., v. Elizabeth H. Walker.
   Pryor, J.

In Catlin v. Adirondack Co., 19 Hun, 389; 81 N. Y., 379, it was decided that a reversal of a judgment does not per se operate a vacatur of the order of reference. But a subsequent amendment of the Code (§ 1011) pro vides that “the court must appoint another referee.” We merely reverse the judgment and direct a new trial, leaving to the court helow either to name another referee or to vacate the order of reference, as justice may seem to require.

Reversing 48 St. Rep., 937.


text:
    Filed May 2, 1893.
    Thos. M. Rowlette, App'lt, v. Roger Foster et al., Resp'ts.
   Per Curiam.

We have taken the case into consideration and, after investigation, have concluded that the defendants in this action were estopped from setting up the counterclaim which they did; and, therefore, that the judgment should he reversed and a new trial ordered, with costs to appellants to abide the event.


text:
    Wm. Halperni, Resp't, v. Arthur F. Schermerhorn, App'lt.
    Appeal from judgment of the eleventh district court.
   Judgment reversed, new trial ordered, with costs to abide the event.


text:
    Howard G. Lersner, Resp't, v. Frank Miller et al., App'lts.
    Appeal from judgment of the eleventh district court.
   Judgment reversed, new trial ordered, with costs to abide the event.


text:
    Filed May 3, 1893.
    Emil Jung, App'lt, v. Wm. Keuffel et al., Resp'ts.
    Appeal from judgment and order of this court.
   Judgment and order affirmed, with costs.


text:
    David M. Koehler, App'lt, v. John J. Gorman, Sheriff, Resp't.
    Appeal from judgment of the city court.
   Judgment reversed, new trial ordered, with costs to appellant to abide the event.


text:
    Max E. Weiss, App'lt, v. Morris Bloch et al., Resp'ts.
    Appeal from judgment of the city court.
   Judgment reversed, new trial ordered, with costs to prevailing party to abide) the event.


text:
    Filed May 5, 1893.
    Bernard Katz et al., App'lts, v. Cath Atfield, Adm'rx, Resp't.
    Appeal from order of the city court.
   Appeal dismissed, with costs.


text:
    Patrick Murphy, App'lt v. Dennis Shea, Resp't.
    Appeal from judgment of this court.
   Judgment affirmed, with costs.


text:
    Filed May 8, 1893.
    The N. Y. Real Estate & Building Improvement Co., App'lt, v. Thornton N. Motley, Resp't.
   Motion for leave to appeal to the court of appeals granted.


text:
    Bernard Zivi, Resp't, v. Elias Einstein, App'lt.
   Motion for leave to go to the court of appeals denied.


text:
    Wm. F. Meeks, Resp't, v. Lewis Simon, App'lt.
   Motion to direct marshall to return amount collected granted.


text:
    Wm. J. Logan, Resp't, v. The Berkshire Apartment Association, App'lt.
   Motion for leave to appeal to the court of appeals denied, with ten dollars ’Costs


text:
    Henry Whittemore, Resp't, v. James T. White, App'lt.
   Judgment affirmed, with costs.


text:
    Louise Carlson, Resp't, v. Marie F Wintersen, App'lt.
   Motion for a reargument denied, with ten dollars costs.


text:
    Samuel Corn et al. v. Joseph Rosenthal.
   Motion for'leave to appeal to the court of appeals or for a reargument denied, with ten dollars costs.


text:
    John H. Rieger, Resp't, v. Wm. J. Swan, App'lt.
   Motion for reargument denied, with ten dollars costs.


text:
    Bernard B. Christ, Resp't, v. Henry C. Chetwood, App'lt.
   Motion, for leave to appeal to the court of appeals denied, with ten dollars ■costs.


text:
    The Bradley & Currier Co., App'lt, v. James J. Lally, Resp't.
   Leave to appeal to the court of appeals denied, with ten dollars costs.


text:
    Geo. W. Van Allen, Resp't, x. The Manhattan R. Co., App'lt.
    Motion to affirm order no one for
   Motion granted, with costs.


text:
    Filed May 10, 1893.
    Herman Kahn, Resp't, v. The New York Elev. R. R. Co., App'lt.
   Motion for reargumcnt granted,


text:
    Rosanna Mooney, Resp't, v. The New York Elevated R. R. Co. et al., App'lts.
   Motion for reargument granted.


text:
    Valentine E. N. Cook, Resp't, v. The New York Elevated R. R. Co. et al., App'lts.
   Motion for reargument denied, without costs.


text:
    New York Superior Court—General Term.
    Filed May 1, 1893.
    The People ex rel. William Kelly, Relator, v. James J. Martin et al., Commissioners, Resp'ts.

      Certioran'i to review the judgment of the board of police of the city of New York, dismissing the relator from the police force.

      Louis J. Grant, for relator; W. H. Clark (Wm. A. Sweetser, of counsel), for resp'ts.
   Per Curiam.

The judgment should be affirmed and the writ dismissed, with fifty dollars costs and disbursements to the respondents.


text:
    The People ex rel. John S. Coyle, Relator, v. James J. Martin et al., Commissioners, Resp'ts.

      Certiorari to review the judgment of the board of police of the city of New York, dismissing the relator from the police force.

      Louis J. Grant, for relator: W. H. Clark (Wm. A. Sweetser, of counsel), for resp’ts.
   Per Curiam.

The judgment should be affirmed and the writ dismissed, with fifty dollars costs and disbursements to the respondents.


text:
    The People ex rel. William G. Lyons, Relator, v. Nathan Strauss et al., Commissioners, Resp'ts.

      Certioran’i to review the judgment of the board of park commissioners of the park department of the city of New York, dismissing the relator from the police force in said department.

      Louis J. Grant, for relator; W. H. Clark (Wm. A. Sweetser, of counsel), for resp’ts.
   Per Curiam.

identification of the relator as the person who had ridden at an unusual and rapid rate of speed through Seventy-second street, and knocked down and injured a citizen, was by evidence of a circumstantial character, but it was sufficient. There was abundant evidence that the reckless rider wore the uniform of a mounted park police officer, and according to the testimony of officers Purcell and Hoey, and the stableman, Jacob Smith, which was believed by the board of commissioners, the relator must have been the man.

The judgment should be affirmed and the writ dismissed, with fifty dollars costs and disbursements to the respondents.


text:
    Jacob Chaimowitz, App'lt, v. Tauba Buna Chaimowitz, Resp't.
    Appeal from order denying motion for an inspection of papers.

      Charles H. Smith, for app'lt; Abraham H. Sarasohn, for resp't.
   Per Curiam.

The discretion of the court helow was properly exercised, and the order is affirmed, without costs.


text:
    Joseph Simerman, Resp't, v. Daniel E. Sickles, Sheriff, App'lt.
    Appeal by defendant from judgment entered upon verdict of jury, and from order denying defendant’s motion for a new trial.

      Emanuel J. Myers, for app’lt; Joseph Manheim, for resp’t.
   Per Curiam.

The exceptions, argued upon the appeal, relate to the charge and refusals to charge. They are all fully met by considering them in connection with the whole of the charge. Then there appears to have been no error.

Judgment and order affirmed, with costs.


author: Osborne, J.

text:
    City Court of Brooklyn—General Term.
    Filed May 22, 1893.
    Catherine L. Thornley, App'lt, v. Charlotte Thornley and Annie Wallace, Adm'rx of Thomas Thornley, deceased, Resp'ts.
    Appeal from judgment dismissing the complaint.

      Anthony Barrett, for app’lt; Forster & Speir, for resp’ts.
   Osborne, J.

By deed dated February 13, 1879, the plaintiff herein and her husband conveyed to the defendant Charlotte Thornley and her husband, Thomas Thornley, since deceased (who were the parents of plaintiff’s husband), for an expressed consideration of two thousand dollars, a certain house and lot on Van Brunt street in the city of Brooklyn. Said grantees soon after entered into possession of the premises, and such possession has continued up to the present time. On the 9th of December, 1891, plaintiff commenced this action to have said conveyance declared to be a mortgage, and for an accounting. The plantiff and the other witnesses adduced by her upon the trial testified t» matters tending to support her contention, and the defendant and her witnesses directly contradicted the evidence on. behalf of the plaintiff to the effect lhat said deed was a mortgage.

The learned trial judge saw the several witnesses on the witness stand and heard them testify, and his opportunity for judging of their credibility was-much better than ours is. He has decided, upon evidence of a conflicting character, that the plaintiff has failed to sustain her contention. A careful perusal of the evidence shows that there was no preponderance in favor of the plaintiff, and we fail to see any ground that would justify us in interfering with the conclusions of the learned trial judge.

The plaintiff was bound to show, by very satisfactory evidence, that the deed in question was intended to be only a mortgage. Wilson v. Parshall, 129 N. Y., 223, 225; 41 St. Rep., 376. In our opinion, she has entirely failed to do. this. None of the exceptions taken on the trial seem to be of sufficient importance to call for any discussion.

The judgment appealed from should be affirmed, with costs.

Van Wyck, J., concurs.


author: Fitzsimons, J.

text:
    City Court of New York—General Term.
    Filed April 14, 1893.
    Martin Reynolds et al., App'lts, v. Thomas Patten et al., Resp'ts.
   Fitzsimons, J.

We have examined the appeal record carefully and agree with the referee in his opinion and findings.

Judgment is affirmed, with costs.

McG-own and Van Wyck, JJ., concur.


author: Newburger, J.

text:
    Filed May 9, 1893.
    Patrick J. Cassidy and J. Richard Adler, Resp'ts, v. Frederick Aldhous, App'lt.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for new trial.

      Thomas C. Ennever, for resp'ts; W. E. Benjamin, for app'lt.
   Newburger, J.

This is an appeal from a judgment entered upon a verdict and from an order denying a motion made upon the minutes^ to aside the verdict, and for a new trial, upon the ground that the verdict was contrary to the evidence, and against the weight of evidence, and contrary to the law.

This action was brought for plumbers’ materials alleged to have been sold and delivered by the plaintiff to defendant.

The complaint alleged a sale to the defendant, and that the purchase was made through Pearse and Thornton, his agents, who were authorized to buy the materials for his account.

The answer was a general denial.

At the close of plaintiff’s case, defendant moved to dismiss the complaint on the ground that the evidence was insufficient to sustain the claim made in the pleadings for goods sold and delivered to the defendant.

The court denied the motion, and the defendant excepted.

We think the trial justice erred.

There was no evidence to go to the jury showing a sale and delivery of any goods to the defendant, or that Pearse and Thornton had any authority to act for defendant, and the motion to dismiss the complaint should have been granted.

The judgment appealed from must be reversed, a new trial granted, with costs to appellant to abide the event.

Ehrlich, Oh. J., concurs.


author: Ehrlich, Ch. J.

text:
    Moses Tanenbaum et al., App'lts, v. Simon Feist, Resp't.
    Appeal from judgment entered on verdict in favor of defendant.

      Benno Loewy, for app’lts; Howe & Hummel, for resp’t.
   Ehrlich, Ch. J.

The action, instead of being for damages resulting from

the breach of a special contract, was to recover for moneys paid, laid out and expended for the defendant, at his request.

There was no proof of any direction from the defendant to pay the money, and no warrant for a recovery on any such cause of action. The exceptions taken are without merit.

The plaintiff having failed to submit to a nonsuit, the direction to find for the defendant was right, and the judgment entered on the verdict must be affirmed, with costs.

Newburger, J., concurs.


author: Ehrlich, Ch. J. Fitzsimons, J. (dissenting).

text:
    Abraham Elfenheim et al., Resp'ts, v. Dorette Von Hafen, App'lt.
    Appeal from judgment entered on verdict in favor of plaintiffs.

      J. M. & T. B. Seaman, for app’lt; Samuel Strasbourger, for resp’ts.
   Ehrlich, Ch. J.

The action was to recover back a deposit of $500 paid on a contract for the purchase of real estate, on the ground that the title was incumbered by an unexpired lease of record, uncancelled and unsurrendered.

There was no doubt about the existence of the lease, and that it constituted such a defect in the title that the vendee could not be required to take.

It was claimed by the defendant that the lease had been surrendered, and was hence no incumbrance.

The facts respecting the alleged surrender went to the jury, and they found against the defendant thereon.

The evidence sufficiently sustains the finding.

It was not a case in which the court could have directed a verdict in favor of the defendant.

The $150 for searching the title was properly allowed as part of the damages.

The exceptions are without merit, and the judgment appealed from must be affirmed, with costs.

Newburger, J., concurs.

Fitzsimons, J. (dissenting).

The undisputed testimony shows that the lease referred to was surrendered and accepted, and such surrender and acceptance is sufficient in law.

It was, therefore, the duty of the trial justice to direct a verdict for defendant as requested by defendant. It was error not to do so.

The judgment should be reversed, and a new trial ordered.


text:
    William R. Tobin, Resp't, v. The Manhattan Savings Institution, App'lt.
    Appeal from judgment in favor of plaintiff, entered on verdict and from order denying motion for a new trial.

      Friend & House, for resp't; Hoyt & Schell (Ira D. Women, of counsel), for appl't.
   Newburger, J.

This is an appeal from a judgment rendered on the verdict of a jury and from an order denying a motion for a new trial.

This action was brought to recover $1,388.44 which plaintiff claims is a balance due him for deposits with the defendant.

The answer of the defendant i.dmitted that it had on deposit belonging to the plaintiff the sum of $835.44, but denied the balance, and claimed that such balance of $963.00 was drawn from the defendant by a check or draft.

From an examination of the case it appears that the only question raised throughout the trial was whether the defendant was guilty of want of reasonable care and ddigence.

The trial justice properly submitted that question to the jury.

There seems to have been no errors committed during the trial.

For these reasons, the judgment must be affirmed, with costs.

Ehrlich, Oh. J., and Fitzsimons, J., concur.


text:
    The New York Architectural Terra Cotta Company, App'lt, v. Edward Eden, Resp't.
    Appeal from judgment dismissing the complaint.

      Walter R. Beach, for app’lt; Ezekiel Fixman, for resp't.
   Fitzsimons, J.

The testimony admitted establishes a sale, delivery and use-by defendant of the terra cotta mentioned in the order of defendant, dated 19th of July, 1889, by plaintiff to defendant.

It does not vary from the allegation of the complaint, and sustains the same; sufficient facts were presented by said testimony to warrant its submission to' the jury for consideration.

It was, therefore, error for the trial justice to dismiss the complaint.

Judgment reversed, a new trial ordered, with costs to appellant to abide event of action.

Ehrlich, Oh. J.. concurs.


text:
    The Starr Cash Car Co., Resp't, v. Aaron Reinhardt et al., App'lts.
    Appeal from order.

      Joseph C. Rosenbaum, for app'lt; Janeway, Thacher & Richards, for resp’ts.
   Fitzsimons, J.

The trial fee allowed for the so-called trial on November 6, The1891, should not have been allowed, and the order appealed from is modified to the extent of disallowing said charge, and to that amount the bill of costs taxed is reduced, and, as so modified, the order appealed from is affirmed, without costs.

Ehrlich, Oh. J., conours.


text:
    Thomas O. Hague, Resp't, v. Sarah B. Cone, App'lt.
   Fitzsimons, J.

The debt of defendant to plaintiff was clearly proved, the defense of payment was a question was lo satisfaction of the jury.

The claim made by defendant that plaintiff applied the proceeds of her husband’s note to the payment of the cause of action at bar was disbelieved by the . jury. They evidently believed that said note was applied in payment of the husband’s debt as agreed upon by plaintiff and defendant’s husband.

Finding no error tue judgment is affirmed, with costs.

Ehrlioh, Oh. J,, concurs.


text:
    Christopher A. Johnson, Admr., App'lt, v. John P. Friedhoff, Resp't.
    Appeal from judgment dismissing complamt.

      B. Frank Lloyd, for app’lt; Robe & Keller, for resp’t.
   Fitzsimons, J.

The trial justice dismissed the complaint upon the ground that the plaintiff’s testator question.

The hotel having no good will there was a failure of consideration, and, therefore, no cause of action herein.

His ruling was right, and judgment must be affirmed, with costs.

Nbwburgbr, J., concurs.


author: O’Brien, J.

text:
    The People, Resp'ts, v. Joseph Rosenberg, App’lt.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Geminad law—Nuisance—Fat rendering.
    The words “ as a public nuisance,” in § 1 of chap. 646, Laws 1892, relate to and qualify all the preceding acts or kinds of business made unlawful, as well as the phrase •' any business,” immediately preceding them.
    3. Same—Indictment.
    An indictment for carrying on the business of fat rendering within the limits of a city, which does not allege that such business was carried on as a public nuisance, is insufficient.
    •3. Same—Evidence.
    On the trial of such an indictment, defendant offered evidence to show that he had erected the factory on his own land and carried on the business with the permission of the board of health; that no noxious odors arose therefrom, and that the neighborhood was sparsely populated; all of which was excluded. Held, error.
    Appeal from judgment of the supreme court, general term, second department, affirming conviction of defendant of a misdemeanor for violation of chap. 646, Laws 1892.

      B. F. Tracy and A. Simis, Jr., for app’lt; William T. Gilbert and ■John F. Clarke, forresp’ts.

       Reversing 51 St. Rep., 189.

   O’Brien, J.

The defendant was convicted of a misdemeanor in the conrt of general sessions of the county of Kings upon an indictment charging him with a violation of chapter 646 of the Laws of 1892. As this appeal from an affirmance of the judgment ■ Of conviction by the general term raises important questions with respect both to the validity and true construction of the statute, it may be well to give it here in full:

“ An Act to prevent fat rendering, bone boiling or the manufacture of fertilizers within the corporate limits of any incorporated city of this state, or within a distance of three miles from the corporate limits thereof.
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
“ Section 1. It shall not be lawful for any person or persons to engage in or carry on the business of fat rendering, bone boiling or the manufacture of fertilizers, or any business as a public nuisance within the corporate limits of any incorporated city of this state, or within a distance of three miles from the corporate limits of any incorporated city, provided, however, that nothing herein contained shall prevent the rendering of fresh killed cattle or swine.
“ Section 2. All departments of health, or the commissioner or commissioners thereof, in any incorporated city of this state shall have power to enforce the provisions of this act.
“ Section 3. Any person or persons offending against the provisions of this act shall, upon conviction thereof, be guilty of a ' misdemeanor. This act shall not apply to the counties of Ful-. ton, Wayne, Tompkins, Chautauqua, Orange, Dutchess, Erie, Monroe, Oneida, Onondaga, New York, Schoharie, Ulster, Greene, Cayuga, Cattaraugus, Niagara, Saratoga, Schenectady, Hamilton, Montgomery and Orleans.
“ Section 4. This act shall take effect immediately.”

The charge in the indictment is that the defendant, on a certain day named, in a certain locality and building described, within the corporate limits of the city of Brooklyn, did “ engage in carrying on the business and occupation of fat rendering, that is to say, of rendering the fat from animal matter, said animal matter not being then and there freshly slain cattle and swine, against the form of the statute in such case made and provided, and against the peace of the People of the state of New York and their dignity.”

It is claimed that in 1885 the defendant erected a factory on his own land, and for some seven years carried on the business of “ fat rendering ” under the permission in writing and the supervision and inspection of the health department of the city of Brooklyn, and the defendant offered to produce these facts at the trial, as well as the manner in which the business was conducted, and whether any noxious odors arise from the business, and the character of the locality where the business was carried on, whether sparsely or densely populated. The testimony was excluded by the court upon the objection of the district attorney, ’and the defendant’s counsel excepted. The court, in substance, instructed the jury that the act was constitutional, and that if they were satisfied that the defendant carried on the business as charged in the indictment he was guilty of the offense. The defendant’s counsel excepted to these instructions. The defendant, upon conviction, was fined $250. It is apparent that the judgment proceeded upon the theory that the defendant’s business was absolutely prohibited by the statute and made a crime. This is the theory upon which the indictment was framed, and that is the construction which the learned judge who presided at the trial evidently put upon the enactment, and the same is true of the decision at general term.

The discussion in this court upon the question arising upon the appeal has taken a wide range. The learned counsel for the defendant has argued with much force that the act is void because in conflict with at least two distinct limitations upon the power of the legislature created by the constitution of the state He insists that it violates § 6, of article 1, which provides that no person shall be deprived of life, liberty or property without due process of law, and also that as it deprives the citizens of Brooklyn, if the construction adopted below be correct, of rights and privileges secured to the citizens of other cities, situated in counties exempt from its provisions, it is violative of § 1, of article 1, which provides that “ no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by' the law of the land or the judgment of his peers.” A legislative edict that would forbid the carrying on by the citizen of a particular business is always open to serious objections, and unless it can be brought within the somewhat vague and undefined domain of the police power it is difficult to sustain such legislation under our system of government If the disposition of this appeal required us to examine into the power of the legislature to pass enactments of this character it might be difficult to answer some of the positions taken by the learned counsel for the defendant. If the statute is to be construed in the same way that it was by the court below, then constitutional questions of a very grave character are undoubtedly involved. But we have reached the conclusion that it is entirely possible and proper to give to the act a construction which will obviate the necessity of passing upon questions of legislative power. It is only when a case is presented which shows clearly that a statute, when fairly and reasonably construed, is brought in conflict with some provision of the constitution, that this court is justified in pronouncing the law invalid. If the act and the constitution can be construed so as to enable both to stand, and each can be given a proper and legitimate office to perform, it is the duty of the court to adopt such construction. People ex rel. Killeen v. Angle, 109 N. Y., 567; 16 St. Rep., 647; People v. West, 106 N. Y., 293; 8 St. Rep., 713.

The statute is penal in its character, and it should, therefore, receive a strict rather than a liberal construction, Maxwell on Int. of Statutes, chap. 10 ; Verona Central Cheese Co. v. Murlaugh, 50 N. Y., 314; Hoyt v. Bonnett, id., 538 ; Hintermeister v. First Nat. B'k, 64 id., 212; Wood v. Erie Railway Co., 72 id., 196. The act provides that it shall not be lawful for any person to carry ion the business of fat rendering, bone boiling, or the manufacture of fertilizers, or any business os a public nuisance, etc. The last four words relate to and qualify all the preceding acts or kinds of business made unlawful, as well as the phrase “ any business ” immediately preceding them. So that it was made unlawful for the defendant to carry on the business of fat rendering as a public nuisance within the corporate limits of the city of Brooklyn. There is nothing in the grammatical arrangement of the words or in the presumed intention of the legislature that forbids this construction. The legislature, under the police power, may certainly regulate or even prohibit the carrying on of any business in such manner and in such place as to become dangerous or detrimental to the health, morals or good order of the community. But how far it can go in the direction of absolutely prohibiting such business, when it is neither alleged nor claimed that in its nature or from the manner in which it is conducted it injuriously affects the community, is quite another question. That would be venturing upon doubtful ground, and we ought not to give to the statute a construction that would attribute to the legislature a purpose to prohibit the defendant from carrying on his business of fat rendering irrespective of the manner in which he conducted it, or of its effect, injurious or otherwise, upon the community. This court will assume that the legislature intended to act within its ordinary police powers to suppress nuisances and to punish persons carrying on some business in such á way as to become such.

It may be that upon this construction the statute was wholly unnecessary, and that the defendant was liable to indictment and punishment for carrying on the business of fat rendering in Brooklyn, as a public nuisance, without it. We will not now stop to consider that question. It is sufficient to say that an intention should not be attributed to the-law-making power to arbitrarily interdict the conduct of any business theretofore recognized as lawful, irrespective of its effect upon health, morals or public order, unless it has in the statute itself used language of such explicit import as to preclude any other construction. It has not used such language in this case, and, therefore, the defendant was not guilty of the offense unless he carried on the business in such a way as to be a public nuisance.

The judgment is erroneous for two reasons, first, there is no allegation in the indictment that the defendant was carrying on the business of fat rendering as a ,public nuisance, and, secondly, even if there was, the defendant’s counsel offered at the trial to give proof which was material and competent upon that question, and which was improperly, excluded.

The judgment should, therefore, be reversed, and the defendant discharged.

All concur.


text:
    Jean Albert Tauziede et al., Resp’ts, v. Francois Henry Jumel et al., App’lts.

      (Court of Appeals,

      Filed June 6, 1893.)

    Stipulations.
    Prances Ai Gesner, the only party who appeals in this case, was a party to Chester v. Jumel, and also to this case. The appeals from the judgments in both cases were progressing side by side from the special to the general term, when a motion was made to dismiss the appeal in this case, and the court made an order that unless appellant Gesner stipulated within ten days that she would abide the event of the appeal in the Chester case, the appeal in this case should be dismissed. She gave the stipulation. The judgment in the Chester case was modified so as to be more favorable to Mrs. Gesner, and judgment accordingly entered by plaintiffs, but on appeal to this court the modification was reversed and the original judgment affirmed. A motion by respondents for reargument of the appeal in the general term was granted, and, upon the hearing, the special term judgment was affirmed, and Mrs. Gesner lost the benefit of the modification.
      Held, that the violation of the stipulation was not a ground for reversal of the judgment. At the best, it was but a stipulation in an action that the parties would abide the result of a future decision in another case, which, when made, was thought to he in some respects erroneous, and the court had the power, in the exercise of a sound discretion, to modify or vacate the stipulation, and upon a hearing’of the appeal to apply the law as finally determined in the other case.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon decision of the court in an action to fix the rights of the parties in respect to certain property held by a trustee.

      David Thornton, for app’lts; Edward Winslow Paige, for resp’ts.

       Affirming 39 St. Rep., 336.

   O’Brien, J.

Thereafter, a motion was made to the general term by the respondents in the appeal from the judgment in this case for a reargument of the appeal in that court. This motion was opposed, but granted, and upon the hearing the judgment of the special term was affirmed, and in this way Mrs. Gresner lost the benefit of the modification by the general term in the Chester case, which she claims was secured to her by the stipulation, notwithstanding the reversal of that modification in this court. The violation of the stipulation is now urged by her counsel as ground of reversal of the judgment appealed from.

There are, we think, two answers to this contention:

1. The order of the general term which allowed the respondents to bring the case to argument, notwithstanding the stipulation, has not been appealed from. It was in making that order that the alleged error was committed, if at all. It does not enter into the judgment and cannot be reviewed on appeal from it. That order, in effect, relieved the respondents from the stipulation and vacated it, and cleared the way for the application to the case of the decision of this court in the Chester case. It put the case before the court for a hearing in the same way as if the stipulation had not been made, and if that order violated any legal right or, without power, revived an appeal which, as matter of law, had been terminated by the act of the parties themselves, it was reviewable.

2. The appeal from the judgment of the trial court gave the general term jurisdiction which was not lost by the stipulation. That simply provided that the appeal then pending should be decided in the same way as the appeal in the Chester case. But the court did not lose control of the case. Assuming that this stipulation was to abide the decision of the general term in the Chester case, and that it was not intended to apply to the ultimate decision of the appeal in this court, it was within the power of the general term, after this court had passed upon the questions in the Chester case, to relieve the parties, or any of them, from the stipulation and order the case to be argued, and then apply the principle of distribution decided by this court to be the correct one. At best it was but a stipulation in an action that the parties would abide the result of a future decision in another case which, when made, was thought to be in some respects erroneous. The court had the power then, in the exercise of a sound discretion, to modify or vacate the stipulation, and upon a hearing of' the appeal to apply the law as finally determined in the other case. That, in effect, was what was done in the case at bar, and as it touched no legal rights which the party had, the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Maynard, J

text:
    Erasmus D. Garnsey, Resp’t, v. Joseph E. Rhodes, App’lt.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Contract—Evidence.
    In an action upon a building contract, defendant was permitted to show, against the objection of plaintiff, several conversations between him and one of the architects who was employed by and represented defendant, in which he complained that the work had not been done in accordance with the requirements of the plans and specifications, and in which the architect admitted the default of the plaintiff in the respects pointed out by the defendant. Held, error.
    2. Same.
    Such evidence is not rendered admissible by the fact that the architect in collusion with plaintiff and without the knowledge or consent of defendant, prepared inferior plans and made alterations in the specifications to reduce the cost of the building.
    3. Same.
    The admission of such proof is limited to cases where it is shown that two or more persons have combined for an illegal purpose, and the acts and declarations of one of them, sought to be proven against the others, were done or made in pursuance of the original concerted plan and with reference to and for the promotion of the common object.
    4. Same.
    Where there is a paragraph in the contract which provides that if any dispute should arise respecting the true construction and meaning of the drawing or specifications it should be decided by the architects, and their decision should be final and conclusive, this does not render admissible complaints made by defendant to the architects in the absence of plaintiff and their statements in reply.
    5. Same.
    One K. was the principal witness for the defendant to establish the alleged conspiracy. He was at the time employed in the office of the architects, and testified to transactions between them and the plaintiff, tending to show the collusion which the referee found, a few months before he left their employ. Held, that it was competent for plaintiff to prove, if he could, that the witness was unfriendly to the architects.
    Appeal from order of supreme court, general term, first department, reversing judgment in favor of defendant and granting new trial before another referee.

      Joseph J. Burr, for app’lt; Edward S. Clinch, for resp’t.

       Affirming 45 St. Rep., 146.

   Maynard, J

The defendant has appealed from an order of the general term, reversing a judgment in his favor entered upon the report of a referee and granting a new trial. The order does not state that the reversal was upon the facts, and we are confined to a review of the questions presented by the numerous exceptions in the record, and the order must be affirmed if any material error of law appears to have been committed.

The action was upon a building contract, and the defendant was permitted to show, against the objection of the plaintiff, several conversations between him and one of the architects, in which he complained that the work had not been done in accordance with the requirements of the plans and specifications, and in which the architect admitted the default of the plaintiff in the respects pointed out by the defendant. One of the main issues litigated involved the question whether the plaintiff had substantially performed the stipulations of his contract; upon which the referee has found adversely to him, and this evidence had a direct and material bearing upon this branch of the controversy. The architect was in no sense the agent of the plaintiff; but was employed by and represented the defendant. The admission in evidence of the declarations of the defendant and his agents in his own favor was manifestly an infraction of an elementary rule of evidence, unless it is brought within some well-recognized exception.

The defendant seeks to sustain it upon the ground that he alleged and proved, and the referee has found, that after the execution of the contract the architects, in collusion with the plaintiff and without the knowledge or consent of the defendant, prepared other plans for the construction of a house essentially differenfc from that called for by the contract, plans and specifications signed by the parties, and of much less value, and alterations were: made in the specifications to reduce the cost of the building, and that, therefore, the declarations of the architect were admissible in evidence against the plaintiff, because both were engaged as conspirators in the same scheme to defrahd the defendant.

But the rule regulating the admission of such proof is well settled and clearly defined, and is limited to cases where it is-shown that two or more persons have combined for an illegal purpose, and the acts and declarations of one of them, sought to be proven against the others, were done or made in pursuance of the original concerted plan, and with reference'to and for the promotion of the common object. 1 Phillips on Ev., 5th Am. ed., C. & H., 205-211 ; Dewey v. Moyer, 72 N. Y., 70 ; N. Y. Guard. & Ind. Co. v. Gleason, 78 id., 503. A mere statement, however, made by one conspirator, or any act of his not done in pursuance of the conspiracy, is not evidence for or against his associates. The only act of collusion in this case of which there was any proof, or which the referee has found, consisted in the substitution of different plans and specifications for those originally agreed upon by the parties, and the conversations with the architect occurred several months after this had been done, and his admissions and declarations had no reference to the conspiracy, and were not of a character designed to promote its successful accomplishment. It is urged that it was a part of the unlawful scheme to keep the defendant in ignorance of the substitution of different plans and specifications, and to quiet him whenever he discovered that deviation had occurred from the original plan by false promises that they should be corrected. But there is no evidence that the plaintiff suggested such a course of conduct by the architect, or consented to its adoption, and there is no finding to that effect, by the referee. There is a paragraph in the contract which provides that if any dispute should arise respecting the true construction and meaning of the drawing or specifications it should be decided by the architects, and their decision should be final and conclusive, and it is claimed that complaints made by the defendant to the architects in the absence of the plaintiff, and their statements in reply, are admissible under this provision.

It is difficult to see upon what principle such a claim can rest. The reference in this clause is to disagreements between the parties, in which case the matter in difference was to be submitted to the architects, who, after hearing both sides, were to render a final decision in the premises. Ex parte statements by the defendant tó his own agent, and the opinion of the latter based upon them, evidently were not within the contemplation of the parties when this stipulation was adopted.

We also think it was error to sustain the objections of the defendant to the questions put to the witness King, on cross-examination, in which he was asked whether there had been any disagreement between him and the architects; or whether he left their employ in consequence of a disagreement; or whether when. he left it was with friendly feelings towards them, and whether his relations with them were then friendly. This was the principal witness for the defendant to establish the alleged conspiracy. He was at the time employed as a draughtsman in the office of the architects, and testified to transactions between them and the-plaintiff tending to show the collusion which the referee found. A few months after he left their employ, and we think it was-competent for the plaintiff to prove, if he could, that the witness-was unfriendly to the architects. The object of the defense was-to charge the plaintiff with the consequences of a conspiracy between him and the architects, and it was therefore quite as material and important for the plaintiff to show that the witness by whom it was sought to establish the unlawful combination was-hostile to one of the parties to it as it would have been to have shown hostility on his part towards the. plaintiff himself. The admission or rejection of the evidence was not discretionary with the trial court. It is a material fact which may be proved by any competent evidence, as was held by this court in People v. Brooks, 131 N. Y., 321; 43 St. Rep., 294, It was not there held, as the counsel for the defendant seems -to suggest, that it was in the discretion of the court whether such questions should be allowed. All that was said upon the point was that the extent to which such an examination may go must be in some measure within the-discretion of the trial judge. This must be so, or else it might, become interminable.

But here the whole inquiry was ruled out. Even general questions were -disallowed, and, as it must be assumed, for the purposes of this appeal, that if answered the responses would have-shown bias, the plaintiff may have been prejudiced by the exclusion of the evidence.

Inasmuch as'the order must, for these reasons, be affirmed, the-right of the plaintiff to recover for extra work need not be considered. The defendant may have a just defense, but he has-chosen to take the risk of an appeal, with the sequence of a judgment absolute in case of an affirmance, and this court has no altérnative except to affirm the order and direct judgment for the-plaintiff, with costs.

All concur.


author: Earl, J.

text:
    Mary Louise Race, Resp’t, v. The Union Ferry Company of New York and Brooklyn, App’lt.

      (Court of Appeals,

      Filed June 6, 1893.)

    1. Negligence—Ferries.
    A ferry company, in the management of its business, has the right to assume that passengers will take some care of themselves, and if it conducts, its business with such care and skill as will make the entrance upon its-boats safe for persons of ordinary prudence, it meets the requirements of the law.
    2. Same.
    Plaintiff entered the bridge passage way leading to defendant’s ferry„ between four and five o’clock on a winter afternoon, and in stepping on to the boat, which was somewhat lower than the bridge, fell and injured herself. She did not look, and did not see the discrepancy in the height, which, she testified, from her judgment, founded upon the force of the fall, was at least eighteen inches. Held, that her judgment, under the circumstances, did not rise to the dignity of evidence upon which a jury could base a verdict; that plaintifi had the burden of proof to show that defendant was guilty of culpable negligence in permitting the boat to be lower than the bridge, and failed to sustain such burden.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment in favor of plaintiff entered upon verdict, and order denying motion for new trial.

      Joseph S. Auerbach, for app’lt; James D. Bell, for resp’t.

       Reversing 46 St. Rep., 325.

   Earl, J.

On the 6th day of December, 1890, between the hours of four and five o’clock p. m., the plaintiff, desiring to return to her home in New York from Brooklyn, went to the Fulton ferry, and in passing from the ferry bridge on to the ferryboat she fell down and was injured, and she brought this action to recover damages for her injuries. Her claim of negligence against the defendant is that the boat was eighteen or twenty inches lower than the bridge, and that that was the occasion of her fall. She was the sole witness upon the trial to the accident. She produced no other witness who saw the accident, or heard of it at the time. She did not at the time make any complaint to anyone connected with the ferry, and she produced no evidence but her own to show that the boat was lower than the bridge. The substance of her evidence to show that the boat was lower is as follows: “ I fell on the boat from off the bridge. I fell on the boat because the boat was so much lower than the bridge; that is a fact. I didn’t discover that this boat was below the bridge at all until after I had fallen. I should judge from the fall that the deck of the boat must have been eighteen or twenty inches below the "bridge, for the fall was a terrible fall I can tell you. I know what you mean by the bridge descending to the ferryboat. Whether that bridge was on a level, or was inclined downwards at that time; I couldn’t see. I couldn’t tell whether it was inclined down. I couldn’t see whether it was; if I could, why, I wouldn’t have fell.

“ Q. I am asking you about the bridge, not about the boat at all. You got up on top of the bridge, and when you did you were some distance from the boat. Before you commenced to go to the boat at all, after you got on the bridge, was the bridge level, or was there a decline ?

“ The Court: Did you walk down when you went on the boat, or did you walk up ?

“ The Witness: I can’t tell whether it was up or down; I •can’t tell, because I don’t remember whether it was up or down; I walked along about my business and didn’t take any notice of the bridge; * * * I passed down the bridge, and I stepped from the bridge to the boat and fell, because the boat was below the bridge, and then it was that I got the fall that injured me; I •didn’t know anything about the boat being below the bridge until X fell, because I couldn’t see ; I didn’t think to look; I walked right along as usual; I didn’t look; I went about my business; walked right along.

“ Q. Please answer my question. You didn’t look, you say, but if you had looked, it was sufficiently near to you to see? A. Sufficiently what?

“ Q. The boat was sufficiently near to you, if you had looked, to see whether it was below the bridge, wasn’t it ? A. I didn’t look to see.

“ Q. I know; but if you had looked, you could have seen, ■couldn’t you ? A. Why, I suppose I might have if the light had been sufficient, but it was very dim.

“ Q. But you didn’t look, anyhow ? A. Ho, I didn’t look, .anyhow.

11 Q. How, do you know whether the light was so dim or not that you couldn’t see ? A. I don’t know. * * *

“ Q. I think you said to Judge Daily, Mrs. Eace, that it must have been eighteen or twenty inches, the boat, below the bridge ? A. I should judge from the fall that I received, knocking the breath out of my body, that the boat must have been eighteen or "twenty inches below the bridge; I have no other means of judging only, from the steep fall and the jar and injuries received internally ; I have no other means of forming the opinion; I don’t know how far it was below the bridge; I can’t say positively; I did not see how far it was below the bridge.

“ Q. And the whole thing is simply that from the fall you had you have formed a conclusion that it must have been eighteen or twenty inches below the bridge ? A. From the force of the fall and the injuries I received internally, it must have been ; I can’t judge from anything else, because I was jarred internally; I •didn’t see it; I couldn’t see.”

“On re-direct examination:

“After I fell I did not turn and look at the bridge.”

It is clear from this evidence that she could not tell how much lower the boat was than the bridge. She did not look, and she did not see the discrepancy in the height, and when she says it was eighteen or twenty inches, she merely gives her judgment based upon the severity of her fall, and her judgment under the circumstances does not rise to the dignity of evidence upon which a jury could base a verdict. Her fall was unexpected and instantaneous, and she was so severely injured, according to her evidence, that she could not then have formed any accurate or reliable judgment as to the distance she fell. We know from observation and experience that she might have fallen if the discrepancy had been but six inches, or even less, and have been just as badly injured.

The bridge rests upon the water, so that it can rise and fall with the tides, and thus it and the boat when brought to it will usually be substantially at the same level. According to all the evidence on both sides some discrepancy between the height of the bridge and the boat is inevitable, sometimes the bridge being higher than the boat, and vice versa, the discrepancy varying from one to eight inches. The ferry company, in the management of its business, has the right to assume that passengers will take some care of themselves, and if it conducts its business with such care and skill as will make the entrance upon its boats safe for persons of ordinary prudence, it meets the requirements of the law. The proof on the part of the defendant showed that all its ferries were managed-in substantially the same way, and that while they carried many millions of passengers yearly, no accident of this kind was ever-reported or known.

The plaintiff had the burden to show that the defendant was-guilty of culpable negligence in permitting the boat on the occasion of this accident to be lower than the bridge, and we thinkr after a careful scrutiny of all the evidence, that she failed fairly to sustain that burden.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide the event.

All concur.


text:
    The Empire State Insurance Company, App’lt, v. The American Central Insurance Company, Resp’t.

      (Court of Appeals,

      Filed June 6, 1893.)

    Insurance (fire)—Contract of reinsurance.
    Plaintiff’s agents having issued a policy for $2,500, plaintiff through its; special agent directed them to reduce it to $1,000, by cancellation or reinsurance. Said agents were also agents of defendant, and by an entry in. their books “ bound” the risk to the amount of $1,500, in the defendant company, but did not notify it until • after a loss. Held, that said agents-could not bind defendant by the agreement for reinsurance, because they were at the same time the agents of the plaintiff, and could not act in the dual capacity of agents for both parties in effecting the reinsurance.
    Appeal from judgment of the supreme court, general term, fifth department, denying motion for new trial and ordering judgment for defendant on the verdict.

      David Hays, for app’lt; I. N. Ames, for resp’t.

       Affirming 46 St. Rep., 75.

   Earl, J.

The firm of Straub & Morris were of the plaintiff at Pittsburgh, Pa., in August, 1889, and on the 7th day of that month, as such agents, they issued a policy of insurance-whereby the plaintiff insured the Ridgway Lumber Company against loss by fire to the amount of $2,500. Subsequently, on the 20th day of August, the defendant appointed them its agents-also They reported that policy to the plaintiff on the 19th day of August, and it wrote to its special agent, Frank Aull, to have-the risk reduced to $1,000, and he notified the agents to cancel the policy or reduce the risk to $1,000 by reinsurance. Thereafter, on the 21st day of September, Straub & Morris, being then agents for the plaintiff and defendant, reinsured plaintiff’s risk with the defendant, to the amount of $1,500, by entering the agreement for reinsurance in their binder book. Subsequently, on the 12th day of October, the property insured was destroyed by fire before the reinsurance had been reported to the defendant or had come to its knowledge. The plaintiff paid the amount of its liability under its policy for the loss, and then brought this action against the defendant to recover three-fifths thereof under its reinsurance agreement. The defendant refused payment and defended the action on the ground that ‘Straub & Morris could not bind it by the agreement for reinsurance because they were at the same time the agents of the plaintiff, and could not act in the dual capacity of agents for both parties in effecting the .reinsurance. The court below upheld tne contention of the defendant, and whether it was right in so doing is the sole question for our determination.

It is not doubted that the same person may sometimes act as agent for the two parties in the same transaction. But he can do so only in case he has no discretion to exercise for either party. An agent to sell for one party may also act as agent for the buyer, but only in case the price and terms of sale have been fixed by -each party, so that nothing is left to his discretion. But an agent áo sell intrusted with a discretion, and thus bound to obtain the best price he can, cannot buy for himself or as agent for another. In such a case he would Occupy an antagonistic position, and there would be a conflict of interests. He could not faithfully serve the one party without betraying the interests of the other. He would at least be under great temptation to betray the interest of one of the parties. So a person may sometimes act as agent of both parries in the making of any contract. But he cannot do so when he is invested with a discretion by each party, and when -each is entitled to the benefit of. his skill and judgment. The rules of law upon this subject have been laid down and illustrated in many cases, of which it is sufficient for the present purpose to -cite the following: Utica Ins. Co. v. Toledo Ins. Co., 17 Barb., 132; Ritt v. Washington Marine & Fire Ins. Co., 41 id.. 353 ; N. Y. Central Ins. Co. v. National Fire Protection Co., 14 N. Y., 85; Claflin v. Farmers & Citizens' Bank, 25 .id., 293; Murray v. Beard, 102 id., 505, 509 ; 2 St. Rep., 466; Porter v. Woodruff, 36 N. J. Eq., 174; Michoud v. Girod, 4 How., U. S., 503.

Contracts thus negotiated are void at the option of any non-assenting party thereto. The policy of the law condemns them. It matters not that the agent has acted fairly and honestly, and even that neither party to the contract has suffered injury. It- is enough to condemn the contract that the common agent in fact had any, -even the least, discretion to exercise for the parries. As said by the chancellor in Porter v. Woodruff, “ So jealous is the -law upon this point that it will not even allow the agent or trustee to put himself in a position in which to be honest must be a strain upon him.”

These principles of law are not disputed by the counsel who argued this case, and they are so thoroughly embodied in the law that they could not be. Their difference is as to their application to this case. The learned counsel for the plaintiff contends that •Straub & Morris had no discretion to exercise for the plaintiff in •effecting the reinsurance; that so far as they had any discretion to exercise it was for the defendant alone, and thus that there was-no antagonism or incompatibility between the duties they owed to each of their principals; and here we think is his mistake. Straub & Morris were ordered to reduce the plaintiff's risk by cancelling the policy or bjr reinsuring three-filths thereof, and this order they were absolutely bound to obey. They had a discretion to exercise in determining whether they would cancel or reinsure, and in making that determination they acted solely for the plaintiff. They determined to reinsure and thus the option they had to cancel disappeared as if it had never existed, and it can play no part in this case. They then owed the duty to the plaintiff to re-insure if they could.

It does not appear why the plaintiff was unwilling to carry the $2,500 of insurance. It may have been because it thought there was over-insurance, or that the risk was too hazardous, or that for some other reason the insurance was unprofitable or undesirable. It might have been difficult to obtain the reinsurance from any other good company. It was quite clear from what appears in this record that the defendant would not knowingly have reinsured the risk. In order to procure the reinsurance the agents owed the plaintiff their utmost diligence and skill. They had issued an improvident or undesirable policy, and they must have felt under a very strong obligation to reduce the risk as directed. They owed a duty to the plaintiff to take the reinsurance, even if they were convinced that it was undesirable, hazardous and unprofitable, and the more thoroughly they were convinced of these things, the more urgent was their duty to protect the plaintiff. On the contrary, as agents of the defendant, they were bound to exercise their discretion on its behalf, and not make the reinsurance without inquiring and knowing that the risk was a proper one for it to take. It was their duty to it not to take the risk if there was over-insurance or if it was too hazardous, or if it was unprofitable and undesirable; and hence this was a case where they could not in this transaction serve the two masters. There was conflict in their duties and they were under a strong temptation to fail in their allegiance to one or the other of their principals. Hence this agreement is clearly one which the policy of the law condemns, and we see no reason to doubt that the court below properly applied the principles of law, and its judgment should be affirmed, with costs.

All concur.