author: Dykman, J.

text:
    Ernst G. W. Woerz, Resp’t, v. Richard W. Radermacher, App’lt.

      Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Trust —When created—Deed of trust—Specific performance— Title.
    The plaintiff signed and recorded an instrument in relation to certain land here in question, which recited: “Now, therefore, know all men by these presents, that the said conveyance, so made as aforesaid, was made for the joint benefit and advantage of myself and of the trustees (naming them), and that they are, and each of them is, equally interested mw myself in all the benefits and advantages to be derived therefrom, and are equally liable with myself for all costs, expenses and liabilities attending- or in any way connected with the same. ” Held, it was not the office of the instrument to impress a trust upon the property or to operate as a defeasance to the plaintiff's deed of conveyance.
    This is an appeal from a judgment made by Mr. Justice Barnard, at special term, directing a specific performance of a contract for the exchange of .real property. There is no controversy as to any of the facts in this case. The plaintiff is the owner of a gore lot on the south side of Halsey street, 116 feet from Broadway, adjoining the parcel of property owned by the defendant. In the rear of the defendant’s houses he owns a gore lot, and the parties entered into a contract for the exchange of their gore lots, the purpose being to enable each of the parties to straighten his property in full lots. The defendant refused to carry out the contract, on the ground that the plaintiff could not convey a good title to the gore lot agreed by him to be conveyed, the defendant claiming that other persons had an interest or estate in the land. The trial judge has found the following facts with respect to the plaintiff’s title :
    Prior to August, 1876, the Abingdon Square Savings Bank became insolvent, and one Prank Thompson was appointed receiver of its property. He commenced actions against the eleven trustees of the bank, of whom the plaintiff was one. On August 28, 1876, these actions were settled by an agreement between the receiver and the trustees, which agreement was executed by all the trustees and by the receiver, and was approved by the court. By its terms the trustees were to pay thirty-five per cent, of the indebtedness of the bank, and the property contracted to be conveyed by the plaintiff to the defendant, together with other real property in the city of Brooklyn, was by the agreement to be conveyed to the trustees, or to a person designated by a majority of them. This thirty-five per cent, was subsequently paid, but not in equal shares, by the several trustees. Some paid more than others, and the trustee Adam Knobloch contributed nothing toward the payment. Knobloch is now dead. The legal title to the property in question was in the name of Louisa Schumacher, wife of Charles A. Schumacher, one of the trustees, but the property belonged to the bank and was conveyed to the plaintiff by the direction of the receiver under the designation of the plaintiff by a majority of the trustees, and in performance of the agreement of August 28, 1876. All these facts are recited in the deed to the plaintiff.
    The receiver also made a conveyance of the particular property in question to the plaintiff. That deed recites the agreement of August, 1876, executed by all the trustees, the performance by the trustees on their part of all the conditions of the agreement, and the designation by them in. writing of the plaintiff as the person to whom the properly in question should be conveyed. Shortly after the legal title to the property in question had been vested in the plaintiff by the deeds from the receiver, but before Mrs. Schumacher had delivered her deed, the plaintiff signed and recorded an instrument which has been called ‘ ‘ Declaration of Trust.” This instrument recites the agreement between the receiver and the trustees, the designation of the plaintiff by all of the trustees as the person to whom the property in question should be conveyed by the.receiver, and then follows this declaration: “Now, therefore, know all men by these presents, that the said conveyance so made as aforesaid, was made for the joint benefit and advantage of myself and of (the trustees, naming them), and they are and each of them is equally interested with myself in all the benefits and advantages to be derived therefrom, and are equally liable with myself for all costs expenses and liabilities attending or in any way connected with the same.” The defendant claimed that this instrument divested the plaintiff of his legal estate in the land, and created in favor of the persons named in the instrument, an estate equal with the plaintiff.

      Philip L. Balz, Jr., for app’lt; Edwin C. Shaffer, of counsel; Guggenheimer & Utermyer, for resp’t.
   Dykman, J.

It is the object of this action to compel the specific performance of a written contract for the exchange of real estate.

The defendant alleges the imperfection of the title of the plaintiff to the premises he proposes to convey in consummation of the contract, but there seems to be no substantial foundation to his objection.

There never has been any dispute respecting the location of the legal title to the property which the plaintiff proposes to convey, but the contention of the defendant is that the plaintiff divested himself of the fee by the execution of the paper called the declaration of trust, dated July 15» 1878. But the apprehension of the defendant is entirely unwarranted. That instrument so executed by the defendant three days after he become vested with the fee declared certain other persons to be equally interested with the defendant in all the benefits and advantages to be derived from the conveyance of the property to him.

It was not the office of that instrument to impress a trust upon the property or to operate as a defeasance to the plaintiff’s deed of conveyance. Its legal effect was to admit the persons designated to equality with the plaintiff in the benefits derived from the conveyance upon the theory of its absolute and indefeasible character.

The character and sufficiency of the plaintiff’s title being the only question involved in this appeal it does not require further pursuit or examination.

The judgment should be affirmed, with costs.

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


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Anton Schwartz, App’lt, v. Louise Weber, as Adm’x, etc., of Paul Weber, deceased, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Ratification—What is—When not inferred.
    A ratification is an adoption of an unauthorized transaction by the party beneficially interested, and cannot be inferred when there is no knowledge of the transaction on the part of such party.
    Appeal from a judgment at the special term of Kings county and from an order denying plaintiff’s motion to find an additional proposed conclusion of law. This action was brought to remove a cloud from the title of premises situate in the city of Brooklyn and county of Kings.

      Edward Cfrosse, for app’lt; Nichols & Bacon, for resp’t.
   Barnard, P. J.

Paul Weber held a mortgage for moneys loaned on certain premises in Kings county for $1,200. The mortgage was given by one Scroff. Scroff sold to one Rothstein the land subject to the mortgage. The mortgage was given on January 2, 1874, and the deed to Rothstein January 4, 1874. At the time this mortgage was given Paul Weber was in Europe sick, and his affairs were managed by one Hartwig. Weber died on the 11th of January, 1874, in Germany. Hartwig knew of his death early in February, 1874. The plaintiff was appointed administratrix early in May, 1874.

After the death of Paul Weber, and when without authority Hartwig, it is said, cancelled this $1,200 Brooklyn mortgage and took from Rothstein, in his own name, an assignment of a mortgage on property on Sixteenth street, New York, for $1,500.

The fact of the giving of the satisfaction piece does not seem well proven. Rothstein testifies to it and that he left it for record in the Kings county register’s office. The paper is not produced and it was not recorded. It is not material in any event. The agent had no power to give it and none is claimed. The only reason for a reversal of the judgment is based upon a ratification by the plaintiff. The evidence wholly fails to show it.

The plaintiff, as administratrix, asks for the property of the estate.

Among other securities, Hartwig assigned to Louise Weber, individually, the Sixteenth street mortgage. She knew nothing of the facts, and was told soon, by her attorney, that it was a fourth mortgage and entirely valueless. She recorded the assignment to herself. Of course, being ignorant of the pretended exchange for a mortgage which she never knew to have existed, no ratification of the exchange can be inferred.

A ratification is an adoption of an unauthorized transaction by the party beneficially interested. There can be no adoption of a sale or transfer or cancellation unless Mrs. Weber knew the facts, and Mrs. Weber never knew of the existence of this $1,200 mortgage until 1884, when the plaintiff demanded that she cancel it as administratrix.

The mortgage having belonged to Paul Weber and never having been paid, is still an outstanding obligation. Neither the assignee of the Sixteenth stréet mortgage nor the representative of the agent Hartwig are parties, and it is not possible to show any ratification of the $1,500 mortgage without hearing them. There appears to be value in it.

Judgment affirmed, with costs.

Dyicman and Pratt, JJ., concur.


text:
    Aaron H. Detjen, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    New Trial—Not granted to impeach witness—Nor to give cumulative EVIDENCE.
    A new trial will not be granted to give an accumulation of testimony upon one issue, nor merely to impeach a witness.
    Appeal from an order of the Kings county special term denying a motion for a new trial made upon a case and on affidavits.

      Morris & Pearsall, for app’lt; Baldwin F. Strauss, for resp’t.
   Barnard, P. J.

Upon the merits this case is very doubtful. The plaintiff testifies that about eight o’clock on the evening of the 28th of March, 1885, he was injured by the defendants negligence. That he attempted to get on one of its street cars, and that the car completely stopped, and before he succeeded in getting both feet on the rear platform, the conductor sounded the signal to start ahead, and that the car started at full speed. That thereby the plaintiff was thrown down and had his leg broken.

The complaint states the cause of the injury to have been a failure to fully stop the car. The variance is not esssential. Both statements include the same thing. In both cases the cause of the injury is charged to have resulted from a failure to stop the car long enough and completely enough to enable the plaintiff to get in.

Whatever the variance, the question was for the jury. There is a fact still more unexplainable in the case. The plaintiff was found in or near the gutter with his leg SO' broken that it was impossible for him to use his leg.

The accident was some twenty-five or thirty feet away. The plaintiff does not explain how he got to the sidewalk, and apparently was not asked by either party. He may have drawn himself by his hands and arms from the track to the sidewalk. He may have been carried there by some one. He ought to have explained it to make a better case for the jury, and the defendants should have made the inquiry if the explanation would aid the jury in determining the truth. , *

As the case stands the jury had what the parties gave them, and an appellate court should not assume that an explanation could not have been given which would support, the plaintiff’s direct testimony that he was injured at the place, and in the manner he states he was. There was no witness other than the plaintiff who testifies to the occurence as an eye witness. The case does not show what was said by the counsel for the plaintiff in respect to the unproven fact that the plaintiff had been removed after the injury to the sidewalk. The affidavits differ, and the judge heard nothing said upon the subject.

The charge of the judge does not allude to the fact as proven, and evidently the case was not tried on the assumption that such was a fact in the case. The request to charge the negative was, therefore, based upon nothing, and its refusal was not erroneous. The request seems only to have been addressed to the statement of counsel without proof, and that the jiidge did not hear, and, therefore,, could say nothing. As to the new trial on the ground of newly discovered evidence the papers do hot make out a case. The question of the intoxicated condition of the plaintiff was made the subject of severe attack by the defendant on the trial, and a new trial will not be granted to give an accumulation of testimony upon one issue.

The credibility of the plaintiff’s wife, and of the plaintiff, was also made the subject of contradictory evidence on the trial, and a new trial is not granted to merely impeach a witness. There is no new evidence as to the occurrence, and from the whole case there is no probability of a different result than the one reached by the case as tried.

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

Pratt, J., concurs; Dykman, J., dissents.


author: Barnard, P. J. Pratt, J.

text:
    Patrick McDonald, Resp’t, v. The Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Negligence—New trial—Measure op damages—When verdict will NOT BE SET ASIDE AS EXCESSIVE.
    The rule is well settled that in actions for personal injury, when there is no certain measure of damages, a verdict will not be set aside as excessive, or a new trial granted, unless there is reason to believe that the jury were influenced by passion or prejudice, or have totally mistaken the rules of law by which the damages are to be regulated.
    Appeal from a judgment entered on a verdict in favor of the plaintiff at the Kings county circuit, and from an order denying a motion for a new trial on the judge’s minutes.

      Hinsdale & Sprague, for app’lt; John S. Griffith, • for resp’t.
   Barnard, P. J.

The appellant asks to reverse the judgment solely upon a question of fact.

The defendant is a common carrier, and in April, 1885 the plaintiff was a passenger upon the defendants train. He got on at Flatbush avenue and got off at Eockaway avenue. The train stopped. The plaintiff while in the act of leaving the train from the forward platform of the car, was thrown from his balance by the sudden starting of the train. He was thereby thrown under the train, and lost the fore part of his foot. It was late at night. This is the plaintiff’s account of the accident. He is supported by Fox, a passenger on the train at the time. After the car stopped at Eockaway avenue, the plaintiff immediately went to the door and disappeared upon the front platform, “the next there was a jar of the car (he describes it) as if a sudden jerk from the engine.”

If these witnesses are to be credited the action was made out. A railroad company or other carrier of passengers must give sufficient time to the passenger to leave train or other conveyance. The defendant gave proof tending to show that the plaintiff had attempted- to get from the train while in motion, and after it had stopped and started again at Eockaway avenue.

No less than three witnesses who testify as eye witnesses so state. The question was one which must go to and be decided by the jury. There is nothing in the case upon appeal which calls for a reversal of the finding of the jury. The witnesses are apparently candid and truthful and still they differ in the most material manner. The numbers of the witnesses on each side, are not so marked as to impeach the finding.

The damages which were $8,000 are not excessive.

The rule is, in that class of cases when there is no certain measure of damages, that a verdict will not be set aside as excessive, unless there is reason to believe that the jury were influenced by passion or prejudice.

The proof shows that the plaintiff was five weeks in the hospital and one month confined at home, and some two months on crutches. Can now walk a little with a stick. He cannot do his business as he did before his injury, .and never will. The business was an active one requiring the plaintiff to go from place to place and now he is compelled to use a horse and wagon to go about his business when he used to do it on foot. The least inequality under his foot is liable to put his ankle out of joint.

Under the cases upholding verdicts this verdict seems reasonable. Walker v. Erie R. R., 63 Barb., 200; Rockwells. Third Ave. R. R.,53 N. Y., 524; Gale v. N. C. R. R. Co., 76 id., 694; Pantzar v. Tilly Foster Mining Co., 16 N. Y. Week. Dig., 341; Ehrgott v. The Mayor, 96 N. Y., 271.

The judgment should be affirmed, with costs.

Pratt, J., concurs.

Pratt, J.

Only two points are raised upon this appeal: First, that the verdict is against the weight of evidence; and, second, that the damages awarded are excessive. We think the case was properly submitted to the jury. The plaintiff testified as to all the circumstances and was strongly corroborated by one witness. If it was a fact that plaintiff, after the accident, was found at the platform, then the testimony of defendant’s witnesses as to the circumstances of .the accident, could not have been true. It was a case proper to be submitted to a jury, and after having been so submitted and a verdict rendered, it ought not to be disturbed.

Neither do we think the damages were so clearly excessive as to warrant, the inference that the jury was actuated by any motives of passion, partiality or prejudice in rendering their verdict. The rule is well settled that in actions for personal injury the courts will closely scrutinize the facts, and unless it clearly appears that the jury has committed some palpable error or acted under some improper bias, inference or prejudice or have totally mistaken the rules of law by which the damages are to be regulated, a new trial will not be granted on the ground of excessive damages.

In this case the damages are round, but they cannot be said to be excessive with well established rules of law.

Judgment affirmed, with costs.


text:
    John L. Collyer, Resp’t, v. George B. Collyer, Ex’r, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Executors and administrators—Duty as to investment of funds— interest.
    Where an executor held a small amount in trust to pay over the income as directed by the will, which sum was too small to invest on bond and mortgage with advantage, he was not chargeable with any more interest than the savings bank paid to him on the fund.
    Appeal from a judgment of the Westchester county special term in favor of plaintiff.

      McMahon & Handley, for app’lt; Edward Wells, for resp’t.
   Barnard, P. J.

The evidence fails to show me that the the executor should be charged with more interest than he received. The modes of investment, approved by the equitable rules, are very few. State and government bonds, with their large premiums and low interest, although legal, would have been disastrous to the plaintiff. A government four per cent, requires an advance of seven years interest by way of premium and then returns only four per cent, on the face value. Real estate, although an approved mode of investment, has for some years been an uncertain and unsafe investment, The amount of the fund is so small that ordinarily it would not suit property of much value. A good loan on land is not usually now at more than a four per cent. rate. The executor, therefore, did wisely in putting the money in the best of savings banks at four per cent., and the subsequent reduction of rate to three and one-half per cent, accords with the necessity of the times.

If savings banks, with large sums and small ones, to suit all borrowers, cannot give but three and one-half per cent, interest, it is too severe a rule to require an executor, at all hazards, to pay any sum whatever over that rate as a matter of law.

The judgment should be reversed and a new trial granted costs to abide events.

Pratt, J., concurs._


text:
    Stephen B. Alley, Resp’t, v. Emily Conover et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Will—Construction.
    The testator, after giving his wife and daughter a life estate in a certain farm, gave said farm to all the children of said daughter in equal shares, share and share alike, and directed • ‘ that if either of the children of my said daughter, Perlina Frost, shall die under age and without leaving lawful issue, then their part or portion of my estate shall be given to the survivor or survivors of them, share and share alike, but if any of them shall so die and leave a child or children them surviving, I then direct that their part or portion of my estate shall descend to such child or children.” Held, that if either of the two children of Perlina Frost had died under age and without issue, then her portion would have passed to the survivor. But as one of the children died, leaving a child surviving, her portion, which’ was one-half of the estate, descended to such child.
    Appeal from an interlocutory judgment of the Dutchess county special term in an action to partition certain land.

      C. Morschaser, for app’lts; W. S. Thorn, of counsel; Hackett A. Williams, for resp’t.
   Dykman, J.

This is an action for partition of a farm of land in Dutchess county. Both parties claim under the last will and testament of Stephen D. Marshall, deceased, and the provisions of that instrument which control the question involved are as follows :

“First. I hereby give and bequeath to my beloved wife Phebe Marshall the farm on which I now reside, to occupy and pos’séss'during her natural life, and at the death of my said wife, I give and bequeath the use and occupancy of the said farm to my daughter Perlina Frost, for her to possess during the lifetime of my said daughter Perlina Frost; and at the death of my said daughter Perlina Frost, I give and bequeath the said farm to all her children in equal shares, share and share alike. * * *

My further will and direction is that if either of the children of my said daughter Perlina Frost shall die under age and without having lawful issue, then their part or portion of my estate shall be given to the survivor or survivors of them, share and share alike; but if any of them shall so die and leave a child or children them surviving, I then direct that their part or portion of my estate shall descend to such child or children.”

The position of these parties in relation to the land in suit is this : The testator left surviving him his wife Phebe Marshall, his daughter Perlina Frost and her two children, Emily and Amelia. Amelia married the plaintiff and had two children, Elvirina and Arthur C. Elvirina died August 31, 1875, a childless minor, intestate, and her mother Amelia died September 13, 1875, intestate, leaving her son Arthur C., and her husband, the plaintiff in this action, her survivors.

Arthur 0. died June 7, 1880, childless and intestate, and leaving his father, the plaintiff here, his sole heir at law.

Emily Frost married Everett Conover, and she is the defendant in this action, and claims to be the sole, owner of .the premises in question.

It is the claim of the plaintiff, on the contrary, that each of the grandchildren took a vested remainder in fee of the farm of land, subject to be divested by their death under age and without issue.

In other words, his position and claim is, that if either of the children of Perlina Frost had died under age and without issue, then her portion would have passed to the survivor; but as one of the children died, leaving a child surviving, her portion, which was one-half of the estate, •descended to such child.

Our examination leads us to coincide with this view. Remainders are never to be made contingent by construction when they can be taken to be vested.

The wife of the plaintiff survived her majority and left a lawful heir at her death, and so the contingency by which the defendant could grasp and hold the entire farm never came to pass.

The judgment should be affirmed, with costs.

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


text:
    Theodore H. Vetterlein and Bernand Vetterlein, App’lts, v. Demas Barnes, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Assignee—In bankruptcy—Where lien cannot be enforced against HIM INDIVIDUALLY.
    The defendant as assignee in bankruptcy of a certain firm collected certain sums of money in ignorance of the trust existing as to one-eighth of the proceeds in favor of the plaintiff’s firm and paid it over under the decree of the bankrupt court as part of the assets of the bankrupt firm. Held, that the defendant cannot be called upon to answer as an individual for the money in question.
    Appeal from a judgment entered in favor of defendant upon a trial at the Kings county special term.

      Roger M. Sherman, for app’lts; James K. Hill, Wing & .Shoudy, for resp’t.
   Barnard, P. J.

The defendant was the assignee in bankruptcy of the firm of Th. H. Vetterlein & Sons and also of the firm of Vetterlein & Co. There had been a firm known as the H. & B. Vetterlein & Co., which had been dissolved in 1865.

The bankrupt firm succeeded the firm thus dissolved. The defendant was also the assignee in bankruptcy of Theodore H. Vetterlein individually who was a partner in all the firms. The original firm contained Bernard Vetterlein, who was not a member of the succeeding firms though those firms contained one of the same name who was the nephew of Bernard Vetterlein. When the first firm dissolved in 1865 there was a claim held by the firm against Sanders & 'Co., of Philadelphia, for a portion of the sales moneys of the steamer Cambria. The firm organized upon the cessasation of the old firm opened an account with the old firm. The books of the new firm show a debt against Sanders & Co. on account of the Cambria. The books of the bankrupt firm fail to show with any distinctness the interest in the old firm, but do show the claim against Sanders & Co., to be an asset of the bankrupt firm. The defendant collected this sum in ignorance of the trust existing as to one-eighth of the proceeds in favor of the plaintiff’s firm and paid it over under the decree of the bankrupt court as part of the assets of the new firm which he represented.

The bankrupt firm could have recovered it, and if it could, the defendant could as representing it. It would then be his duty to return it as assets of the estate if he was ignorant of the trust.

Neither the books of the bankrupt firm or other evidence show facts from which knowledge could be imputed to the assignee of the trust between the firms.

The liability is no greater of different in respect to the Morse property. That was held by Theodore H. Vetterlein subject to an accounting between the old firm and the succeeding bankrupt firm.

There was no notice of this liability to account for the interest of the old firm in the proceeds. The defendant representing Theodore collected the money and returned it as assets of his estate.

The defendant cannot be called upon to answer as an individual for the moneys in question received in ignorance of the facts. He received it in a representative capacity and never had any title to it as an individual.

The judgment of the special term should therefore he affirmed, with costs.

Dykman, J., concurs; Pratt, J., dissents.


author: Pratt, J.

text:
    Bernard Vetterlein, App’lt, v. Demas Barnes, as Assignee, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Costs of former action—Stay until paid—When.
    The plaintiff, together with a third party as partners, commenced an action against the defendant, which terminated in a judgment for the defendant for costs, no part of which has been paid. The plaintiff commenced this action for the same cause of action as in the former case, but against the defendant as assignee. On motion to stay all proceedings in this action until the payment of the costs adjudged against the plaintiff in the former case: I-Ield, this was a suit between different parties, and not within the equity rule, that a party having brought his adversary into court once by a cause of action, shall not be permitted to implead him again without paying the costs of the first unsuccessful proceeding.
    Appeal from an order staying proceedings until payment, of costs adjudged in another action against the plaintiff.

      Rodger M. Sherman, for app’lt; James K. Hill, Wing & Shoudy, for resp’t.
   Pratt, J.

The plaintiff, together with Theodore H. Vetterlein, as partner, commenced an action against the defendant which terminated in a judgment for the defendant for costs, no part of which has been paid. Thereafter, plaintiff commenced this action for the same cause of action as in the former case, but against the defendant as assignee.

On motion of the defendant an order was made at special term staying all proceedings in this action until the payment of the costs adjudged against the plaintiff in the former case. It is a general rule in equity that a party having brought his adversary into court once by a cause of action, shall not be permitted to implead him again without paying the costs of the first unsuccessful proceeding. But this rule is only applied where the parties and the cause of action are the same. This is a suit between different parties; the defendant, as assignee, is an entire stranger to the litigation in the first suit. It is true that where the same title is drawn in question in the second action between the parties or privies to the first, the court will order a payment of costs of the first suit before they will suffer the second tpproceed. Jackson v. Edwards, 22 Wend., 498; Richards v. White, 27 How., 155. But these cases are not analogous to the present case. It would be manifestly unjust to permit the same title to be litigated twice by the same parties or their privies, but where another defendant is sued it presents an entirely different case.

The first action was against the defendant personally; this action seeks relief against a bankrupt estate only. As assignee in bankruptcy the defendant is a stranger to the former proceeding and judgment, and has no interest in enforcing the payment of costs to himself individually. The case stands precisely the same as if the plaintiff had sued another and entirely different person from the one named in the first suit. No precedent is cited laying down the principle upon which this order is based, and we see no reason in equity for the granting of such a motion. Order reversed, with costs.

Barnard and Dykman, JJ., concur.


text:
    John W. Masury, App’lt, v. William H. Whiton, Ex’r, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Arbitration—The fact that the award is not within the submission IS GOOD GROUND FOR STAY OF EXECUTION UNDER AWARD, OR FOR NEW TRIAL.
    This plaintiff and the defendant’s testator formed a copartnership which was terminated by the death of the latter. By the articles of copartnership and agreements subsequently entered into the surviving partner had the right to take the business under conditions therein specified. The executor of the deceased partner brought an action to procure a settlement of the firm accounts and a settlement of the terms of the performance of the covenants respecting the purchases by the surviving partner. When at issue this action was submitted to arbitration, and an award made in favor of the executor of the deceased partner. This action was brought to stay the execution of the award or get a new trial. Held, that the fact that the arbitrator exceeded his powers would be a good cause for the relief asked.
    2. Same—What within the jurisdiction of the arbitrator to pass upon.
    The charge that the arbitrator had exceeded his powers was based mainly upon his award charging the surviving partner with $10,000 entered on a half-yearly account for depreciation in machinery. No such item had been charged in previous accounts. Shortly after the entry of the item ' the defend nt’s testator died in a distant part of the country and there was no proof that the charge came to his knowledge. The surviving partner by the terms of the agreement was bound to pay the costs of machinery as purchased, as shown by the firm books. Held, that the money paid the executor depending in some manner upon this item in the account being a stated account, and one which bound the estate of the deceased, and the proof making it a fair and even necessaiy inference that the deceased was not bound by it, the item was open for the arbitrator to pass upon, and that his conclusion was right as being based upon a course of business not proved to have been altered. Pratt, J,, held that the account was not an account stated and that by their pleading in the former action the plaintiff having recognized that this transaction had been accounted for, it was not included therein.
    3. Same—Account stated—What is not.

      Held, that the account was not under the evidence an account stated.
    4. Same—Allowance of item—When correct.
    By the agreement the surviving partner was to take the merchandise of the firm at the wholesale market price. The surviving- partner inventoried them at cost. Hid, that the award of the arbitrator allowing the difference to the deceased was correct. Pratt, J., dissenting, held that the arbitrator had wrongly calculated the price of the goods.
    5. Same—Partner not entitled to interest on payment of partnership DEBT MADE BEFORE ITS MATURITY.

      Held, that the surviving partner was not entitled to interest on payments made on a partnership debt before its maturity.
    6. Same—Award within submission not subject of review.

      Held, that the award of the arbitrator being within the submission could not be made the subject of review upon its merits.
    7. Same.

      Held, by Pratt, J., that evidence aliunde the submission and award might be received toxestablish the fact that the arbitrator exceeded his authority in fixing sum to be paid even in cases which otherwise appeared to be within his jurisdiction.

      John L. Hill, for app’lt; Moody B. Smith, for resp't.
   Barnard, P. J.

The plaintiff and Frederick L. Whiton were partners in the business of manufacturing paints from 1857 to the early part of February, 1870, when the partnership was terminated by the death of Whiton. By the articles of co-partnership, and the agreements subsequent to the foundation of the same which modified it, the surviving partner had the right to take the business under certain conditions specified in these agreements. An action was commenced by the executor of the deceased partner to procure a settlement of the accounts of the firm, and for a settlement of the terms of the performance of the covenants in respect to the purchase by the surviving partner. This action was at issue, and was then submitted to an arbitrator. The arbitrator made his award in favor of the executor of the deceased partner to a large amount.

The plaintiff by this action seeks either to stay the execution of the award or to get a new trial, both because the arbitrator exceeded his powers which would be a good cause for relief under Halstead v. Seaman (82 N. Y., 27), and because he was unfair, partial and unjust in his decision, which facts are to be assumed because the decision itself was wrong, and, therefore, unjust and partial.

The charge that the arbitrator exceeded his powers is based mainly upon his award charging the surviving partner with a sum of §10,000, entered on the half-yearly account of January 1, 1870, for depreciation in the machinery of the firm. No such item has been included in previous accounts. Whiton was then very sick, and, in fact, died ■on the 20th of February, 1870. He was in South Carolina, and there was and is no proof that he ever knew of the charge. The executor was at the place of business and knew of the charge, but supposed it would be either approved or disapproved by his brother. The articles of agreement bind the surviving partner as purchaser, to pay the cost of the machinery as shown by the books of the firm. The money to be paid the executor depended in some manner upon the $10,000 in the account of. January, 1870, being a stated account, one which bound the estate of the deceased. The proof makes it a fair and even necessary inference that the deceased was not bound by it. It was not the custom of this firm to make the entry yearly whatever may have been the custom of other firms. The cost of the machinery as really paid was an important figure to retain, and it was retained until the deceased was helpless and dying, and then a lump sum was inserted in the account which was to benefit the survivor. The item it seems to me was open for the arbitrator to pass upon, and his conclusion was right as being based upon a course of business which was not proven to have been altered. It was not a stated account under the evidence. An examination of the other items seems to fairly support the arbitrator, assuming error in conclusion to be basis of fraud. By the agreements the surviving partner was to take the merchandise at the purchaseable wholesale market price of the goods. The surviving partner inventoried them at cost. The arbitrator allowed to the deceased the difference which was according to the agreement.

A man named Titterton gave a mortgage to the surviving executor to cover a debt due the firm. It is a question of fact whether the executor held the mortgage in absolute ownership or for the partnership. The arbitrator held that it belonged to the firm.

In respect to the interest upon payments the arbitrator seems to be clearly right. The surviving partner might have retained all the money until the principal matured. He made payments before the time. There seems to be no principal of equity which will, as matter of law, allow interest on a payment made in advance of the maturity of the debt. It is not according to custom. The money could not be recovered back. The award, in all its parts, was within the submission, and the conclusion under the evidence cannot be made the subject of review upon its merits. The Morris Run Coal Co. v. Salt Co., 58 N. Y., 667; Perkins v. Giles, 50 N. Y., 228.

The judgment should be affirmed, with costs.

Dykman, J., concurs.

Pratt, J.

Appeal from a judgment refusing to set aside an award by which plaintiff was found indebted to defendant for half the following sums, with interest, in settling the partnership affairs of Masury & Whiton: $10,000 charged to profit and loss, December 31, 1869, for wear and tear of machinery; $15,901.02 for-alleged undervaluation of merchandise, $10,000 for deficiency in the Titterton mortgage. The defendant had judgment for the aggregate of these sums and interest, besides expenses of the arbitration, on a counter-claim based on the award. The submission was by written stipulation of “all matters involved” in an action then pending. The arbitrator seems to have erroneously supposed that “all differences” between the parties relating to “a final settlement of the partnership affairs of the firm” were submitted to him. He thus inaccurately recites the terms of the submission in his award. The learned trial judge assumed that all transactions of the firm were involved in the old action simply because it was “for an accounting.” I think he erred in this respect for the following reasons: The duties of the partners were fixed by thrée written agreements which were attached to and made a part of the old complaint. They provide for annual or more frequent accountings, which should be full and complete. It seems that accountings occurred every six months. In alleging default in rendering accounts this old complaint excepts “the regular semi-annual accounts, regularly made out in the business on the first of January and the first of July in each year.” It then proceeded tosíate reasons why the executors believed that no other accounts had been rendered, among which was the fact that this surviving executor, although for some three years in the firm office, had never heard of any other accounts; and then states why they believed that no account had been made out “for the purpose of final settlement,” by which expression was meant an exhibit of the partnership affairs ■on the 1st of July, 1870, as the deceased died February 25, 1870. This old complaint, therefore, distinctly recognized the fact that a “regular semi-annual account” had been “regularly made out” on the 1st of January, 1870—some six weeks before the death of the deceased partner. It makes no allegation of error or fraud in this last, or indeed in any of these “regular semi-annual accounts,” unless, perhaps, it may be said that the ninth paragraph contains such a charge. It is there stated that, during the last year of the business, Masury had made extensive permanent improvements on the factory real estate, and charged them to the expense account instead of to the cost of factory, thereby throwing away those expenditures instead of preserving them as assets. But the trouble with this allegation was that it was not true.

The executor, himself, proved before the arbitrator that these expenses were charged to the factory account, on the books in such way that they were preserved as assets, and thereupon that allegation was wholly abandoned. It thus appears that the only allegation which, by any possibility, could be construed as an attack on these or any of these semi-annual accounts which were thus recognized as “regularly made out in the business ” was shown to be wholly untrue. This old complaint therefore alleged “regular semi-annual accounts,” which included the 1st of January, 1870, without any successful allegations that there was anything wrong in any of them. They were presumably correct as matter of evidence. Story on Part. (7th ed.), § 206; Parsons, 243; Lindley, 840; 3 Paige, 572. But that is not the point. The question under consideration relates to a matter ol pleading-, and, under the circumstances disclosed, it is well settled that if the old action had been tried on that ■complaint, unamended, no judgment for an account could have been rendered, except from and after January 1, 1870. 2 Bindley, 195; 1 Oolyer, 465, 610; Parsons, 522. It appeared by undisputed evidence that this $10,000 item for wear and tear was charged to profit and loss, prior to January, 1870, and was covered by the regular semi-annual account rendered as of that date. It was therefore not legally involved in that action.

It is not to the point to say that the evidence showed that this last semi-annual account had not become an account stated. If Masury had set up this account as a defense, a different question would have been presented—one which would have been necessarily tried on the evidence, and we should then have been concluded by the arbitrator’s action, respecting it. But how could the plaintiffs in that action have been heard to question that account or have expected to succeed in obtaining an interloctory judgment that Masury should render an account of transactions prior to January, 1870, when their own pleading thus recognized the fact that he had already accounted for those transactions, especially when they made no truthful allegation of any error or fraud? Lindley, 975; 1 Colyer, 465, 510; Parsons, 522; 1 Story, Eq. Jur., § 523; 2 John Ch., 217; 15 Wend. 83; 2 Barb., 586.

We are not bound by the arbitrator’s conclusions respecting the extent of his authority. That is an open question which we are bound to examine and determine quite irrespective of the arbitrator’s views on the subject. Halstead v. Seaman, 82 N. Y., 27. The old complaint furnished the specification of his authority, and, as we have seen, it proceeded on the theory of the existence of, and failed to challenge the account which included this item of $10,000. Its only specification of wrong related to transactions which happened either on or after July 1, 1870, the day when the co-partnership business ended and when Masury took the assets to his individual account.

Quite a different question is presented by the item of $15,901.02, alleged under-valuation of merchandise. That was a matter which the arbitrator was undoubtedly authorized to examine. But a careful examination of the undisputed facts will demonstrate that he quite exceeded his authority in fixing the sum which he has charged against plaintiff for this cause. As already observed, the three agreements made by these partners were attached to and made a part of this old complaint in the action for an accounting. Hence, the arbitrator was bound by the true legal construction of these agreements quite as much as by the true legal construction of the allegations of the pleading in other respects. It was the pleading as a whole—the agreements taken as a part of it, which, with the stipulation, constituted and must indicate the extent of the arbitrator’s authority.

An examination of these agreements shows that the plaintiff was entitled to have, and was bound to account for these goods at one or the other of two standards of valuation: Either at the prices indicated by the last inventory preceding the death of deceased, for such part thereof as was covered by that document, and at the cost, of such goods as were not covered thereby; or, at the cost “ wholesale purchasable market price ” of the entire stock at the time when the business was closed, July 1, 1870. It will not be important to determine which of these was the correct standard, for the reason that the undisputed testimony shows that the arbitrator did not apply either rule; on the contrary, he selected a standard which was wholly unwarranted by either, and then certified in his award that he had applied the one last indicated. I think it plain that the purpose of these agreements was, that the survivor should have these goods wholly free from the price or profit which the firm would have realized on the goods under the most favorable circumstances. In the first place, there was not the slightest evidence before the arbitrator which even tended to show that the sum which was entered on the inventory at the balance on July 1, 1870, when plaintiff took the business, varied in any particular from either standard predicable on the contracts. In the next place, it is beyond controversy that he assumed that the sum which plaintiff charged against himself was the cost of the goods, and that it was impossible for any person who had never seen the goods to fix any greater sum as the wholesale purchasable market value thereof. Then the fact, that every witness who testified about their value, from personal knowledge, said that they were over-valued by the plaintiff. The defendant called several witnesses who had assisted in selling these goods for plaintiff after he took them, and neither of them was even asked his opinion of their value. The only evidence submitted in behalf of the defendant touching the value of the goods, which by any possibility could have been used as a basis for the arbitrator’s finding, was given by an expert accountant named Goddard, who had examined the old firm books for some three years immediately prior to July 1, 1870, with the view of ascertaining the profit which the firm had realized on its sales; and he also examined the plaintiff’s sales book for some few months after, but not immediately after he had taken the goods to his own account, arbitrarily selecting the period, with a like purpose respecting the plaintiff’s sales. Having ascertained what he presumed to be a percentage of profit from these several sources,, he added that to the assumed costs of the goods with which plaintiff had charged himself, and called the result the wholesale market price of the goods, quite ignoring the fact which he undertook to look for, and which the arbitrator was bound to find—the “wholesale purchasable,” instead of the “wholesale salable market price.” I think, in one single instance, that this witness did refer to the result as the “wholesale purchasable market price;” but it is impossible that that could have been the fact, because he has given his arithmetical processes, and they show that he took the salable price to the customers of the firm and of the plaintiff, respectively, including the profit, thus showing that he quite overlooked, or else intentionally ignored, the distinction between these two phrases—purchasable and salable.

It is equally clear that the arbitrator simply adopted this expert accountant’s theories and figures. The results stated in his award demonstrate this fact. The arbitrator, himself, on his cross-examination frankly admitted this fact; and the table of figures which he produced excludes the possibility of any other theory. We are thus brought face to face with a case where an arbitrator certifies in his award that he finds the “ wholesale purchasable market price ” of the goods to be a certain sum, when it is as certain as anything in human affairs can be, that he has adopted the wholesale salable and not the ‘ ‘wholesale purchasable market price.” It therefore follows as a necessary conclusion that his award is false in this material and vital particular, unless we are bound to adopt his construction of the contracts; and since they are a part of the complaint and therefore a part of the agreement which constitutes the submission to him, and since we are bound to construe that submission for ourselves, there seems no escape from the conclusion that the arbitrator exceeded his authority in applying any such rule of valuation, and that his award is void in this respect. Besides, to permit it to stand as to this item, involves a plain case of obvious injustice, in that, including interest, it would charge the plaintiff with the sum of $15,510.99, without the slightest foundation of legal liability. The result is a purely arbitrary one.

The setting aside of an award, under such circumstances, involves no attempt to exercise any general supervisory power over awards; but simply the judgment that the arbitrator has exceeded his authority, on the one hand, and been guilty of legal misconduct on the other. Certainly if he refused to take material and important testimony offered by the plaintiff respecting the value of this merchandise, it would have been misconduct. Van Courtland v. Underhill, 11 Johns., 405; Balstead v. Seaman, supra, Morse on A. and A., 539, 533. Is it any the less misconduct in the legal sense of the term, for an arbitrator to take, and then absolutely ignore important testimony? Nay, is it not infinitely worse, when the fact plainly appears, to disregard than to refuse to receive testimony by which he ought to have been controlled? In the former case his error if such it be, is remediable, while under the latter, the worst forms of injustice might be perpetrated without the possibility of redress. Such a result is not within either the letter or spirit of the law. In Butler v. The Mayor, etc. (7 Hill, 332), Senator Bockee said: “ It would seem like a denial of justice where arbitrators have transcended the power and authority given them, that a party shall be precluded from giving proof and be bound to submit, merely because the arbitrators have not made such defective authority apparent on the face of the award. In my apprehension there is great danger and injustice in such a rule.” And he added that which is applicable with great force to this case: “If we

assume what was offered as true, the arbitrators have covered up some $8,000 or $9,000 under the vague and general terms used by them in the appraisement or award, and have in effect given judgment for that amount, etc.” The rule is well established that evidence aliunde the submission and award may be received to establish the fact that the arbitrator exceeded his authority in fixing sums to be paid even in cases which otherwise appear to be within his jurisdiction. Acts of that nature are sufficient evidence of misconduct. See authorities above cited, to which may be added, Morris Run Coal Co. v. Salt Co. (58 N. Y., 667), and Fudickar v. Guardian Ins. Co., (62 N. Y., 392).

I feel less hesitation in reaching this result because of the farther fact which also appeared by the undisputed evidence —that this executor, himself, being familiar, from his three years’ service in the store, with at least the selling prices of these goods, which he now seeks to charge upon the plaint-" iff, actually took the plaintiff’s figures indicating the prices which he proposed to charge against himself and made the extensions on the inventory, well knowing that the result was parried into the balance of the books; and he himself admitted that he never had the slightest cause to suspect the correctness or fairness of the accounts in any respect until the dispute about the Titterton mortgage arose, in August, 1875—which was over five years after these prices were thus fixed and long after the goods had been sold, so that it was no longer possible to obtain the testimony of disinterested parties respecting their value. And, besides, that there certainly was cogent evidence before the arbitrator which strongly tended to show, not only that these goods were over-valued, but that the plaintiff was compelled to throw away a large proportion of the whole stock as absolutely worthless, the fact being that they consisted of sealed packages, so that the contents of those thus lost could not be examined for actual quality when the plaintiff took them.

But these views cannot be applied to the last item—the matter of the Titterton mortgage. It seems that an old book-keeper had embezzled some $10,000 belonging to the firm, and had succeeded in covering up his wrong until about six months after plaintiff had taken the business to his own account. On disclosure of this fact, the plaintiff, with the consent of the executor, took a mortgage on some property in Flatbush to secure the payment of that sum. It was arranged between them that this sum should be, and it was immediately, charged on the books to the estate of the deceased, it being intended that the plaintiff should assign the mortgage to the executors. Through some oversight the assignment was not made, and no attention was given to the matter by either party until August, 1875. This executor then wrote a letter to his lawyer saying that they had taken this mortgage as an investment on bond and mortgage for $10,000, and the mortgage was then assigned to the executors who brought suit for foreclosure, which resulted in a deficiency of some $13,000. The old complaint in the suit for an accounting charges that more than $5,000 was then due from plaintiff for deficiency on that mortgage. It was thus a claim within the letter of the submission. But the plaintiff insists that it was not legally involved in that action, because of the fact that the claim put by the old complaint was for a deficiency which, as he argues, necessarily involved an assignment of the security and a new agreement between the plaintiff and the executors in the nature of a guaranty of one-half the sum secured ‘ thereby. This would probably have been true were it not for the fact that the executor contended before the arbitrator and offered evidence tending to sustain the contention that the assignment was not taken as a payment, but only as a matter of convenience, it being all the while understood to be a firm asset. If that was the fact, the result was the same as if th'e plaintiff had continued to hold the mortgage, in which case the plaintiff and the estate would have borne the loss in equal shares. This claim was, therefore, within the authority of the arbitrator, and his finding in respect thereto is based on conflicting evidence and we cannot interfere with his disposition thereof.

This item seems to be easily and clearly distinguishable from the other, so that the award may stand as to this matter.

The conclusions reached on the other points do not involve any reflection on the motives of the arbitrator. In so far as the decision is placed on the ground of misconduct, it rests on the legal meaning of that term, which is not dependent in any sense on the motives of the arbitrator. Morse on A. and A., 534; Russell on Arbitration (3d ed), 654, 655; Phipps v. Ingram, 3 Dowl., 699.

The judgment should be modified by reducing the recovery to the following basis: The award should stand as of the date thereof (January 26, 1886) at the sum which he finds due on the Titterton mortgage—$9,791.67, besides the $1,544.15 expenses and the $220 allowed as the costs of the old suit for the accounting—thus making in all the sum of $11,339.33. To this sum should be added interest from the date of the award to the entry of the judgment (October 4, 1886), amounting to $467.64, thus making in all $11,806.97.

The judgment should be reversed as to the excess over this sum. And since the plaintiff properly brought his action, and succeeds to the extent of such excess, no costs should be allowed to either party for the trial or upon this appeal.

The judgment, to the extent of costs, should also be reversed.


text:
    Ira Leo Bamberger v. Charles Kahn et al.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Arrest—Order of—When granted by officer having jurisdiction protects parties from action for false imprisonment, even THOUGH SUBSEQUENTLY VACATED.
    An order of arrest, which has been granted by an officer having jurisdiction, and having gained jurisdiction, the subject matter protects parties obtaining it from an action for false imprisonment. This rule holds good where the order is subsequently vacated.
    2. Same—Undertaking—Damages covered by—Costs, etc.
    The undertaking to pay damages by reason of the arrest, which is required upon obtaining the order, is not to provide for a personal wrong or injury, but to cover taxable costs to be awarded in the action, and such other legitimate damages as necessarily flow from the arrest.
    3. Same—Action on undertaking assignable—Code Civ. Pro., § 1910.
    A cause of action for damages sustained by an arrest is assignable, under Code of Civil Procedure, section 1910.
    This action came before this branch of the court upon a case and exceptions to be heard in the first instance at general term.

      Ira Leo Bamberger, pl’ff, in person; Edward C. James, of counsel; James T. Lehmaier, for def’t.
   Barnard, P. J.

It is now settled that an order of arrest which has been granted by an officer having jurisdiction, and upon such officer obtaining jurisdiction of the subject matter, protects parties from an action for false imprisonment. And this is the fact when the order has been subsequently vacated. Marks v. Townsend, 97 N. Y., 590.

The undertaking to pay damages by reason of the arrest is not therefore to provide for a personal wrong or injury. It is a paper designed to cover taxable costs to be awarded in the action, and such other legitimate damages as flow from the arrest and are made necessary by it. Such as counsel fees and expense in money to vacate the arrest and loss of time occasioned' the arrested party in getting bail and in and about moving for his discharge. Such action is assignable under 1910 of the Code. The assignment transferred the costs proper, which have been paid. The extra expense and damage to the party was also transferred by it and these have not been paid and are recoverable upon being proven in an action on the undertaking. The counterclaim set up by the defendants does not, upon the record, destroy the plaintiff’s action. It may be an offset or counterclaim, and may destroy the plaintiff’s cause of action, but it is denied in the pleadings, and upon a new trial the plaintiff may prove under the pleadings that there is no such claim.

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

Dykman and Pratt, JJ., concur.


text:
    Julia A. Barlow, App’lt, v. First National Bank of Sing Sing, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887)

    1. Pleading—Answer—Averment of payment.»
    It is not permissible in an answer to aver facts which make the averment of payment or no payment to depend upon the result'Of an action in which the plaintiff is not a party, and can never be.
    2. Practice—When trial of an action will not be stayed.
    A plaintiff is entitled to assert her claim and have it determined in her action, and not be stayed until an action in which she has no interest can be tried.
    3. Same—Supplemental answer—When too late.
    After the case has been closed and submitted to the referee, it is too late to get a supplemental answer, which adds nothing by way of a defense.
    Appeal from an order made at special term, allowing defendant to put in a supplemental answer, and staying plaintiff’s proceeding on the trial of the action.

      Samuel Watson, for app’lt; M. L. Cobb, for resp’t.
   Barnard, P. J.

There is no substantial difference between the original answer and the proposed supplemental answer. The plaintiff seeks to compel a re-assignment by the defendant to him of a bond and mortgage which she avers she transferred to the bank as collateral to a certain note or notes of a firm of Cocks & Barton and that the notes in question were paid.

The defendant claims that the assignment was made to protect and secure the notes of Mary C. Barlow and were to be a continuing security against such notes.

The papers show that the defendant sued certain notes on which Mary C. Barlow was liable and had levied on certain property supposed to belong to her, and by a sale thereof had received certain moneys.

The original answer averred that one Gildersleeve, by a receiver, had commenced an action to recover his interest in the property so sold, as one of the firm of Barlow & Gilder-sleeve, and that he had been defeated and had appealed. That if the defendant should be held to be liable to refund to Gildersleeve, the amount must be deducted from the credit given on the Barlow notes.

In December, 1885, the administrator of Gildersleeve commenced a new action to recover the same moneys, and it is this new pending action which is to be set up by supplemental answer. An answer must aver facts which constitute a defense. As between the plaintiff and the defendant, there is one issue only. Was the assignment made to secure a debt of Cocks & Barlow which is paid ? If so, the plaintiff is entitled to recover. If not, her bill of complaint must be dismissed, or if the security is decreed to be a continuing one, then the answer must set up what is the amount of that continuing security and the mortgage in question may be enforced for that amount.

Neither the answer nor the supplemental answer sets up anything. It has credited the sum collected by execution, and it does not repudiate it. It is not permissible in good pleading to aver facts which make the averment of payment or no payment to depend upon the result of an action in which the plaintiff is not a party and never can be. She is entitled to assert her claim and have it determined in her action, and not be stayed until an action in which she has no interest can be tried. The result would not bind her. She could still prove, if the fact were so, that the money collected by execution was from the sole property of Mary C. Barlow. Besides this, it is too late after the case has been closed and submitted to the referee to get a supplemental answer which adds nothing by way of a defense. Medbury v. Swan, 46 N. Y., 200; Holyoke v. Adams, 59 id., 233.

_ The order should, therefore, be overruled, with costs and disbursements.

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


text:
    Russell Brusie, App’lt, v. Peck Brothers & Co., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Practice—Pleadings—Amendment of—When not allowed—Loches.
    An order to amend a complaint ten years after joinder of issue, will not tie granted.
    Appeal from an order of Justice Bartlett denying, on the ground of loches, plaintiff’s motion to amend his complaint. The order was entered September 23, 1886. A similar motion had been made previously and denied by Justice Cullen, “without prejudice to renew said motion on further affidavits. The complaint was verified December 11, 1875, and issue was joined by the service of the answer in January, 1876.

      Rollin E. Beers, for app’lt; Sewall, Pierce & Sheldon, for resp’t.
   Dykman, J.

This is an appeal from an order denying a motion made by the plaintiff, ten years after the cause was at issue, for leave to amend his complaint, and that statement is sufficient to justify the making the order from which the appeal was taken.

If the plaintiff has a cause of action against the defendant upon the agreement set out in the original complaint, or in consequence of any • violation of the same, he will experience no difficulty in its exhibition under the original pleadings.

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

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


text:
    William W. Rope et al. Resp’ts, v. Eva Hess, Impleaded, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Mechanic's Liens—When they can be enforced.
    The plaintiffs holding certain claims upon which liens might be filed by them against the money still due the contractor for building a house, made application to the owner for some arrangement for their payment and she promised to notify them before any payment should be made to the contractor from the money then remaining in her hands and due to the contractor. Disregarding her undertaking the owner paid all the money to the contractor without any notification to the claimants who thereafter filed liens. Held, that the last payment was made in bad faith and would not defeat the operation of the mechanic’s lien law in favor of the plaintiffs.
    Appeal from a judgment entered upon the report of a referee.

      E. P. Bellamy, for resp’ts; Jas. H. Greensward, for app’lt.
   Dykman, J.

This action is for the foreclosure of a mechanic’s lien, and several persons who were lienors were made defendants with the owner of the premises.

In the month of August, 1885, the defendant Eva Hess, who was the owner of the premises, entered into a contract with the defendant Herman Humel for the erection of a three-story frame house upon her land for the sum of $4,500, payable in installments as the work and building progressed.

When the building was near to completion and there remained the sum of §1,600 due and unpaid from the owner to the contractor, the latter was indebted to the various persons who subsequently filed liens against the property for work and materials furnished for the erection of the "building, and who are parties to this action.

Holding these claims upon which liens might be filed, these various persons made application to the owner for some arrangement for their payment, and were lulled into security and inaction by her promise to notify them before any payment should be made to the contractor from the $1,600 then remaining in her hands and due to the contractor. Disregarding her undertaking, however, the owner paid all the money to the contractor without any notification to the claimants.

Subsequently the various claimants filed liens, which were all brought forward in this action, and the referee who tried and decided the same found that the last payment was made in bad faith and by collusion, for the purpose of defeating the operation of the mechanics’ lien law in favor of these claimants.

There seems to have been no controversy respecting the amounts due to the respective claimants, and the referee awarded judgment to all.

The questions raised by the owner respecting the validity of the respective liens were all decided in favor of the lienors, and we find no error.

A personal judgment was proper in favor of the defendant McDonald because his contract was with the defendant personally.

The referee has found that the several claimants forbore to file mechanics’ liens or institute any proceedings for their own protection, in reliance upon the promise of the owner to notify and enable them to protect themselves and procure their money.

The evidence in the case fully justifies such finding and does justice to these parties who were evidently misled by the conduct of the owner when she received their notification. They placed her in a situation to protect herself, and disregarding their notice she paid the last installment to the contractor in disregard of the rights of the claimants and apparently of her own interest also.

We find no error, and the judgment should be affirmed, with costs.

Barnard and Pratt, JJ., concur.


text:
    Peter Hartwig, Resp’t, v. The Bay State Shoe and Leather Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Negligence—Convict labor—Duty of employer in furnishing machinery.
    This plaintiff was a convict in the Kings county penitentiary, one of a number who were farmed out to the defendant to be employed in making boots and shoes. By the terms of the contract, the prison authorities were to enforce the performance of the work, and the defendant to furnish all the tools and stock necessary for the employment. Held, that while the usual relation of master and servant did not exist, because the labor was compulsory, the defendant must be held to have owed a duty to the convict in respect to the machinery to be furnished for the purpose of the work.
    3. Same—Extent of duty.

      Held, that the contract for machinery carried with it an obligation to furnish machinery fitted to and sufficient for the work, and that it should be kept in constant repair.
    3. Same—Convict may recover fcr injuries received through imPERFECT MACHINERY.

      Held, that in case of injury received by the plaintiff through the defective condition of the machinery, without negligence on his part, he was entitled to recover damages.
    Appeal from a judgment entered on a verdict of a jury, and from an order denying a motion to set aside the verdict and for a new trial.

      D. WCNorthrup, for resp’t; Charles J. Patterson, of counsel; W. C. Beecher, for app’lt.
   Barnard, P. J.

plaintiff was a convict in the Kings county penitentiary. The defendant is a corporation. The county authorities let and farmed out to the defendant a large number of convicts, to be employed in making boots and shoes.

The defendant hired the labor and service of the convicts. The plaintiff was one of the men included in the contract. The prison authorities, by its terms, were to enforce the performance of the day’s work, and the defendant was to furnish all the tools, machinery and stock necessary for the employment. The plaintiff, while using one of the machines designed to mould the soles of shoes, was injured.

The action is based upon an allegation that the machine by which the convict was injured was out of repair and dangerous. While the usual relation of master and servant did not exist because the labor furnished was compulsory, the defendant must be held to have owed a duty to the convict in respect to the machinery to be furnished for the purpose of the work.

This follows from the covenant itself: A contract for machinery carries with it an obligation to furnish machinery fitted to and sufficient for the work, and that it shaE be kept in constant repair. The contract, it is true, was with the county of Kings, but the convict was essentiaEy a servant of the defendant. By his crime he lost the power over his own freedom to contract and labor, and his services were let out to defendant as minors and apprentices are let out by the authority of a temporary superior.

He was defendant’s workman, though his wages went to the county of Kings.

The case fuEy establishes that the machine was out of order. The machine has a roEer which is essential to its proper working. This roller was worn out.

It was not round, and in consequence thereof the stem was forced up before it should be, and the machine prematurely and without warning closed.

The evidence of both parties agree in this respect.

The direct testimony of the plaintiff who alone speaks of the accident, and the testimony of a witness for the defendant who testified that the use of emery sand, which was proven to have been used, indicated that the machine was out of order.

The verdict of the jury in favor of the plaintiff upon the issue as to the machine being out of order is sustained by the evidence. The plaintiff, therefore, had, if he was free from contributory negligence, a cause of action. Kain v. Smith, 89 N. Y., 375; Stringham v. Stewart, 100 id., 516.

Contributory neghgence is usuaEy a question for the jury, and this was a case upon which the evidence was not only satisfactory, but upon the evidence of the defendant was such that it was susceptible of different deductions.

The convict wás doing his work at the machine when the roEer slipped and the machine became Hable to close. The mould went out of place from the clipps of the roller. The convict attempted to replace it and the machine suddenly closed and smashed his finger. The evidence tends to show on both sides that this disordered machine gave notice of the disorder before it closed, and the contributory negligence consists in this fact. The answer to this, as matter of law, is that it was not uniform, it was likely to close.

The jury were to pass upon the question, especially as a portion of the evidence consisted of a model of the machine which was shown to the jury. Hawley v. Northern Central R. R. Co., 82 N. Y., 370.

Under the findings of the jury the case is a hard one. A convict is forced to work upon a dangerous machine and out of order.

The defendant’s foreman knew of the liability to injury, and made no repair.

The man kept on until he was injured by this defect.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Matter of the Application for Letters of Administration on the goods, etc., of Henry Nolting alleged to be deceased.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Administration—Proof of death—What sufficient.
    It was shown that Nolting left his house under the depression which follows delirium tremens with a declaration of his intention to commit suicide because he was weary of lifo and the lapse of ten years had disclosed no trace of his existence. Held, sufficient to justify the issuance of letters of administration on his estate.
    Appeal from a decree of the surrogate of Kings county adjudging that the evidence presented on the application for letters of administration on the estate of one Henry Nolting was not sufficient to establish the fact of his death.

      Theo. J. Geisler, for app’lt; Hugo Hirsh, of counsel.
   Dykman, J.

In September, 1886, the public administrator of Kings county presented a petition to the surrogate of that county, in which he stated facts sufficient to justify its presentation, and prayed for the issuance of letters of administration to him upon the estate of Henry Nolting.

In the view of the surrogate the evidence presented to him was insufficient to prove the death of Nolting, and he refused the letters upon that ground, although no objection was made.

An appeal was brought from that determination of the surrogate, and we think the proof was sufficient to justify the surrogate in granting the prayer of the petitioner.

It was made to appear by the affidavits and proofs before the surrogate that Nolting was an educated man residing in Brooklyn for five or six years; that he was an industrious and sober man until he lost his wife, when he became dissipated, and finally underwent an attack of delirium tremens the night before he went away; and that while suffering greatly from the effects of his debauch and of that attack, he left his home on the 30th day of July, 1876, expressing his intention to commit suicide, went towards the dock at the foot of Second street in Brooklyn and has never been seen or heard from since by any of his friends and all trace of him has been lost since that time.

He left a bank-book in a savings bank showing a deposit of $150, with John Schwartz.

Down to the time of his disappearance his sister in Germany received letters from him with regularity, and since that time she has heard from him never more.

So it is shown that the man left his home under the depression which follows delirium tremens with a declaration of his intention to commit suicide because he was weary of life, and the lapse of ten years has disclosed no trace of his existence.

From his silent absence during ten years the law would raise a presmnption of his death for some purposes, and that natural inference, coupled with the evidential facts and circumstances produced to the surrogate, justify the issuance of the letters of administration in accordance with the prayer of the petition.

The decree of the surrogate should be reversed, and the case remitted to him with direction to issue the letters.

Barnard and Pratt, JJ., concur.


text:
    John Klinck, Resp’t, v. Stephen J. Burrows, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Contract—Compensation for services rendered under.
    The plaintiff was told Py the defendant that if he effected the sale of a piece of real property for him he should receive §100; that he did not want agents to get hold of it. The plaintiff introduced a party who purchased the property. The defendant had, however, employed a real estate agent, who informed the party afterwards purchasing, of the fact that the property was for sale. The proof showed that the plaintiff did not know of this employment, and was free from fraud. Held, that lie having performed his agreement, was entitled to the price agreed upon for the service rendered.
    Appeal from a judgment of the county court of Kings county affirming a judgment rendered and entered by justice of the peace of the city of Brooklyn in favor of plaintiff.

      H. B. Davis, for app’lt; William E. Shields, for resp’t; Joseph S. Bidgway, of counsel.
   Barnard, P. J.

There is no dispute in respect to the material facts in this cáse. The plaintiff was requested, by one Ring, to obtain the price and terms of payment of a piece of land owned by the defendant. He, in pursuance of this request of Ring, saw the defendant and obtained a price of $15,000 for the property. The defendant told plaintiff on the occassion that he would give him $100 if it “was a sale,” “that the defendant didn’t want any agent to get hold of it.” The plaintiff introduced Ring to the defendant and the sale was made. It was proven that the defendant had put his property in the hands of an agent, one Gallagher, and that Gallagher had informed Ring of the property being for sale. The plaintiff was not informed of this fact and he is therefore entirely free from fraud or suppression of facts. The defendant is not so free from criticism. He employed the plaintiff to escape agents. The inference was permissible that the property was not in the hands of brokers for sale. The plaintiff performed his agreement and is entitled to the price agreed upon for the service rendered. There is one disputed fact. The defendant testifies that the plaintiff, upon being informed subsequent to the sale, that Gallagher claimed a commission if the defendant gave up his claim.

The plaintiff denies this and the finding of the court must control, the judgment, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    William L. Post, an Infant, by Thomas H. Williams, his Guardian, Resp’t, v. George G. Horning et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Will—Construction—Vested remainder.
    The devise of the estate to the testator’s wife for life or until her re-marriage, if she should re-marry, and upon her death or re-marriage the devise of the rest, residue and remainder, to the testator’s children, created a vested remainder in fee in the children. The fee was absolute at the time of taking, possession only was postponed.
    2. Same—Descendants—Lineal, when meant.
    A clause of the will provided that if either of the children should die leaving issue at the death of such child before the life estate fell in, such child’s share was given to the issue of such deceased child. Held, that it meant the lineal descendants of the deceased child.
    3. Same—When remainder becomes vested.
    The testator’s daughters, one of the residuary devisees died leaving a son. Held, her vested remainder went to her son although the life estate was then outstanding. That his estate became complete and not liable to divest even if he failed to outlive his grandmother who had the life estate.

      S. A. Bockfellow, for app’lt; II. G. Wood, of counsel.
   Barnard, P. J.

The devise of the estate to the testator’s wife for life or until her re-marriage, if she should remarry, and upon her death or re-marriage, the devise of the rest residue and remainder to the testator’s children, created a vested remainder in fee in the children. The fee was absolute at the time of taking, possession only is postponed. Livingston v. Greene, 52 N. Y., 118.

The fifth clause of the will provides that if either of the children should die “leaving issue at the death of- such child ” before the life estate fell in, such child’s share was given to the issue of such deceased child. This means the lineal descendants of the deceased child. Bundy v. Bundy, 38 N. Y., 410.

When the testator’s daughter, one of the residuary de- , visees died, she left a son, and by the express terms of the will, her vested remainder went to the son, although the life estate was then outstanding. By the portion of the fifth clause devising over an estate to the surviving children of testator, it is only in case of a child’s death “without leaving any issue living at the death of such child” that such a disposition is attempted.

The son of Charlotte took his mother’s share by the terms of the will when he survived his mother, and the testator did not interfere with the rights of a child when the estate became vested in him.

After the plaintiff’s father survived his mother, his estate became complete and not liable to divest even if he failed to outlive the grandmother who had the life estate. • The result is a naturally just one, and it was the intent of the testator to accomplish it.

Judgment affirmed, with costs.

Pratt and Dykman, JJ., concur.


author: Barnard, P. J. Dykman, J.

text:
    Thomas Theall et al., App’lts, v. William C. Cowper et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Contract—Waiver of rights under—Subsequent demand of performance AFTER WAIVER DOES NOT EXCUSE FROM PERFORMANCE OF NEW CONTRACT BETWEEN PARTIES.
    One of these defendants owned a play, of which, by an agreement made between this plaintiff and defendant, the plaintiff was to become the sole manager in presenting to the public. Under this agreement, the play was to be furnished to the plaintiffs, but the defendant, being an actor, used it for the common interest, and actual delivery was waived. Under a new verbal agreement, the defendant agreed to rewrite the play. This latter agreement, however, was never executed. Held, that the plaintiffs never had title to the play; that they had only the right to cause its representation, and that the production of the play and its delivery having been under the written agreement waived, a subsequent demand for its production gave no right to the plaintiffs to carry out the verbal agreement.

      H. B. Kinghorn, for app’lts; M. L. Marks, for resp’t, Cowper; Andrews & Purdy, for resp’ts, Chapman and Sellers.
   Barnard, P. J.

The case presents no erroneous result and no erroneous ruling. The evidence is not returned and the merits of the case rest entirely upon the findings of the court. The facts are that the defendant, Cowper, owned a play called “Her Last Hope.” The plaintiff entered into an agreement with Cowper by which the plaintiff was to become sole manager for presenting the play to the public. Under this agreement, the play was to be furnished to the plaintiffs, but as Cowper was an actor himself and was interested in presenting the play, the same was used by Cowper for the common interests, and the actual delivery was waived. This continued until the end of some six weeks after the play was produced. It is clear that the non-production of the play, thus far, did no harm. The purposes of a production was accomplished, and the actual production of it was waived. Then the parties made a new verbal agreement. Cowper agreed to rewrite the play, introduce a new act and call the new play ‘ ‘ Blackmail. ” This new agreement was never executed. The title to the play never was in the plaintiffs. They only had the right to cause its representation. After the six weeks’ trial term they could abandon the agreement or continue it. They continued it and the verbal agreement was made. The production of the play and its delivery to plaintiffs under the written agreement having been waived, a subsequent demand for its production gave no right to the plaintiffs to refuse to carry out the verbal agreement if it was binding. If it was not binding, there was nothing to call for the production of the play under the written agreement.

The judgment should be affirmed, with costs.

Dykman, J.

The record presented to us for the determination of this appeal consists of the. pleadings, the findings and refusals to find of the trial judge and the judgment from which the appeal is taken. Presuming support in the testimony for the findings of fact made by the trial judge we can make no advancement towards their examination, and must leave them to stand unimpeached and undisturbed. Upon the facts so found the conclusions of law and the judgment seem to follow as a natural result, and the opinion of the trial judge assigns sufficient reasons for his conclusions.

The judgment should be affirmed, with costs.

Pratt, J., concurs.


text:
    Albert W. Darrow, and Horace F. Darrow et al. v. Isaac O. Horton, Jr., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Title—Sale of land—Purchaser is entitled to good and merchantable title.
    The purchaser of land upon a sale in partition is entitled to a good and merchantable title and if it falls short of this he may be relieved from his purchase.
    8. Same—What not regarded as sufficient title.
    The question whether a sale of a lot on a closed street carried title to the middle of the old street is not one which should be put upon a purchaser to settle by litigation.

      This is an appeal from an order of the special term denying the motion of a purchaser upon a sale had in proceedings for the partition of land to be relieved from Ms purchase on account of a defect in the title.

      A. M. Rice, for petitioner and app’lt; J. Stewart Ross, for resp’ts.
   Barnard, P. J.

If Dekalb street had remained an open street, as it was in 1836, there would be no question but that a lot bounded upon it would pass a title to the centre of the street if an intent to exclude the street was not apparent in the deed. The deed to G-ilfilson and Colgan not only conveyed the lot by a formal description but also in terms conveyed one-half of the street. The street was there discontinued and a new DeKalb avenue laid out. The conveyances after that time convey the lot alone and make no mention of the old street, and as to one-half of the lot the title so stood at the date of the sale. The question whether a sale of a lot on a closed street carried a title to the middle of the old street is not one which should be put upon a purchaser to settle by litigation. The rule is that the title must be good and merchantable and if it falls short of this the purchaser is to be relieved from his purchase.

The agreement to wait till the title could be perfected passed about the 1st May, 1886.

The purchaser gave notice that unless the title was made good by the 1st May, 1886, he would not perfect the sale. There was no continued negotiations mentioned as to time witMn which the title was to be made good.

The case seems to fall within Rice v. Barrett (99 N. Y., 404). The title was not made good until May 19, 1886, and the principle that if the title be made good in a reasonable time it should be taken, would probably cost the loss of the occupancy of the premises for the year in the purchaser.

The order should be reversed and the motion denied with costs and disbursements.

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


text:
    Emma Sprout, App’lt, v. Franklin Newman, Jr., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    1. Deed—Absolute on pace mat be shown to be a mortgage.
    A deed, absolute upon its face, may be shown to be a mortgage.
    2. Contract—When a writing does not contain the whole contract IT MAT BE SUPPLEMENTED BT PAROL PROOF.
    A written contract is deemed to contain all the agreement between the parties, but if it be proven that a portion of the agreement is not contained therein, paroi proof may be given to supplement the contract in that respect.

      3. Same—When writing contains the whole contract it may not be varied by paroi.
    When in the light of surrounding circumstances, the agreement is intended to express the whole contract, it will he conclusively presumed to do so, and oral evidence will not he received to vary it.

      Albert W. Seaman, for app’lt; John D. Bay, for resp’t.
   Barnard, P. J.

It is now well settled that a deed absolute on its face may be shown to be a mortgage. Horn v. Keteltas, 46 N. Y., 605.

There is another rule equally well established that a written contract is deemed to contain all the agreements made between the parties.

If it be proven that a portion of the agreement was not included in the writing, there is a class of cases "which permits paroi proof to be given to supplement the agreement in these respects. When in the tight of surrounding circumstances the agreement is intended to express the whole contract, it will be conclusively presumed to do so and oral evidence "will not be received to vary it. Eighmy v. Taylor, 98 N. Y., 288; Marsh v. McNair, 99 id., 174. The case presented falls within the rule established in those cases.

There was a disagreement between husband and wife and the result was an agreement. By it a quit-claim deed was given. The agreement is full and manifestly in view of the relation and situation of the parties contained all the agreement. The trustee who took the quit-claim deed took it under this paper and his declaration that the deed was intended as security in any other sense than is provided for by the paper cannot be received. What the paper means is not now before us.

It was decided by the court that the reversionary interest of the grantor, husband, passed to the trustee entirely by the deed under the terms of the paper between the husband and wife.

Unless that decision is passed upon by the court of appeals we must follow the rule as laid down on that appeal.

Judgment affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Patrick Reilly, App’lt, v. John E. Murray et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Appeal—Justices oe’ the peace—Amendment.
    It is discretionary with the county court whether it will allow a defective notice of appeal from a decision of a justice of the peace to he amended, and no appeal will lie from the order of the county court entered on said motion.
    Appeal from an order refusing to allow an amendment of a notice of appeal from a justice of the peace.

      B. H. Underhill, with S. A. Underhill, for app’lt; W. J. Qaynor, for resp’ts.
   Pratt, J.

This is an appeal from the county court from

an order refusing to allow an amendment of a notice of, appeal filed to the decision of a justice of the peace. The appeal was taken prior to the adoption of the Code of Civil Procedure, to wit: on September 22, 1880. The appeal was signed by S. A. Underhill, attorney for appellant. Under the former code this notice of appeal was not sufficient unless it appeared that the attorney had authority to appear for the appellant. Both parties conceded that the notice of appeal was insufficient, and the appellant moved to amend. The court denied the motion. It being a discretionary order in that court, no appeal in this court will lie.

Appeal dismissed, with costs.

Barnard and Dykman, JJ., concur.


text:
    Mary B. Van Cleaf, App’lt, v. Catharine Burns, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 15, 1887.)

    Dower—Judgment op court op another state—Full paith and CREDIT TO BE GIVEN TO.
    Upon the trial of an action for the recovery of dower in lands it was shown that an action was brought in the state of Illinois by the husband of this plaintiff for an absolute divorce on a ground not sufficient to procure such relief in the state of New York, and that this plaintiff having voluntarily submitted herself to the jurisdiction of the court, a decree was rendered dissolving the bond of matrimony. Held, that the Illinois court having had full jurisdiction of the matter and the parties, the judgment thereby dissolving the marriage contract was entitled to full faith and credit in all courts and places, and that it formed a bar to the action for dower.

      John H. Kemble, for app’lt; Josiah T. Marean, for resp’t.
   Dykman, J.

This is an action for the recovery of dower in lands in the city of Brooklyn of which David Van Cleaf, the husband of the plaintiff, died seized. The cause was tried before a justice of this court without a jury, who found and decided that David Van Cleaf, the husband of the plaintiff, brought an action against her in his life-time in the circuit court of Cook county, in the state of Illinois, for a divorce and dissolution of the marriage between them, for the cause and ground of the willful desertion and absence by the plaintiff from her husband, without reasonable cause, for more than two years before the commencement of that action, which was by the laws of the state of Illinois a ground for absolute divorce and a dissolution of the bond of marriage; that such proceedings were had in the action; that on the 9th day of April, 1881, judgment was granted and perfected therein in favor of the husband against his wife, the plaintiff, dissolving the bond of marriage between them for the causes and grounds of willful desertion and absence which were therein adjudged to exist; that the court pronouncing the judgment had jurisdiction of the parties and the subject matter of the action; that the husband was at the time domiciled in Chicago, in the state of Illinois, and the plaintiff appeared in person in the action and filed an answer in writing to the complaint therein, after notification of the commencement thereof by the service of a summons and complaint upon her in this state, where she resided.

These facts having been found, the complaint was dismissed upon the merits and the plaintiff appealed from the judgment.

There was a written stipulation that the facts found by the trial judge were all true and the appeal presents a question of law only.

It is to be remarked that the voluntary appearance of the plaintiff in the action commenced against her in the state of Illinois by her husband for the dissolution of their marital relations, clothed the court in which that action was pending with jurisdiction and power to dissolve tho marriage contract between her and her husband. _

_ The judgment rendered by the court in that action, therefore, is entitled to full faith and credit in all courts and places.

Yet the misconduct of the plaintiff upon which the judgment against her was based in the Illinois court was not her adultery, which is the only misconduct for which an absolute divorce can be adjudged in the state of New York. It is, however, provided by our statute that in cases of divorce dissolving the marriage contract for the misconduct of the wife she shall not be endowed.

Must the misconduct here intended be construed to include” only that which entitles the husband to an absolute dissolution of the matrimonial relation in this state ?

The question is not free from embarrassment, but we are inclined to hold that the misconduct of the wife which was sufficient to justify the judgment of -the Illinois court . was sufficient to bring her under the condemnation of our statute.

The judgment of that court is conclusive in every form, and we think it will be in harmony with the fundamental principles of the law, and the spirit of our statute to hold the judgment conclusive against the wife and refuse her a recovery in this action.

The judgment should be affirmed, with costs.

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