text:
    In the Matter of the Metropolitan Elevated Railway Company Elvira Purdy, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Appeal—Condemnation proceedings.
    Though commissioners, in condemnation proceedings, view the premises and act partly on their own judgment, their report may he set aside for inadequacy.
    Appeal from the award of the commissioners of appraisal, and from an order confirming such award.

      G. P. Cowles, for app’lt; A. 0. Townsend, for resp’t.
   O’Brien, J.

The premises involved in this proceeding are two old-fashioned stores and tenements, situated on East Twenty-third street, between First and Second avenues, and near the Twenty-third Street station of the Second Avenue Line of Elevated Railway, and together are thirty-seven feet six inches in width by ninety-eight feet nine inches in depth. As shown by the diagram or map, -the structure of the railway is immediately over the north curb of the street, leaving between such structure and the house line only the sidewalk; the station referred to being also in front of these premises. Ño question of rental value was involved, the commissioners’ duty being to ascertain the fee damage-resulting from the building and maintenance of the road. They found that such construction and maintenance of the railroad “interferes with the light, air and access which would otherwise be derived by said lots from said street; ” and this conclusion is fully supported by the evidence, and by the relative positions of the structures of the road and premises. The value of so much of the easements of light, air and access appurtenant to the premises as were taken was found by the commissioners to be $750,. and the real question presented upon this appeal is as to the adequacy of that award. It is true that in this proceeding the report shows that the commissioners, as they had a right to dor viewed the premises, and they were entitled, to some extent, to act upon their judgment. But, as said in Perkins v. State, 113 N. Y. 660; 23 St. Rep. 266 :

“ The fact that the commissioners are required to view the premises, and to act to some extent upon their own judgment, informed by ocular evidence, does not deprive this court of" "the power to-review their award upon the question of damages. They may adopt some erroneous rule of damages, and their findings may-be such, as to show that they misconceived the facts, and erred in their estimates.”

It is not usual for this court to interfere with an award made by commissioners, but we think that this record presents an exceptional case, where the power which the court has should be exercised in favor of the property owner. As is well known, and as appears by the record, in certain streets the property is more seriously injured by the presence of the elevated structure than in others. In the upper part of the city, and upon the wide avenúes, where considerable space exists between the structure itself and the house line, the damage will never be so serious as will necessarily result to property situated, as the premises in suit are, on Bast Twenty-third street, where the structure extends over the north curb of the street immediately in front of the premises. That resultant damage from the contiguity and nearness of this structure in Twenty-third street to the premises, and by reason of the station immediately in front thereof, is proven, appears, not. only from the report of the commissioners, but also from the testimony in the case; and that this damage is substantial, and not nominal, seems to us evident. The course of rental values with respect to the two houses in suit is shown, by which it appears that, after the road went into operation, the rents began to decrease, continued to fall, and have ever since diminished. Where, therefore, as here, it is shown that the construction of the railway and its operation produced conditions which injuriously affected the premises in question, we think that it was an inadequate amount to fix the value for both houses of the easements so taken at the sum of $750. Had the appraisers given that amount for each house, it would not have been out of the way, because, according to the testimony of the experts offered on behalf of the property owner,the value of the easements so taken was placed between $5,333 as the lowest estimate and $16,000 as the highest for the entire premises. Of course, the commissioners were not required to take even the lowest estimate given by the property owner, because on the part of the petitioner it was shown that this street had been for many years largely a residential street, and that for some years prior to the coming of the elevated road it had been undergoing a transition into use for stores, factories and business. There was also evidence tending to show that the elevated railway largely increased the traffic in this block and street,and that such increase tended to enhance the value of the land for the modern uses of the street. If, as the result of the weight to be given such testimony, the award had been considerably below $5,000, we should not have been inclined to disturb it; but, from an examination of the entire record, we are of opinion that the commissioners erred in their estimate by giving an inadequate award, and that the confirmation of their report would result in injustice to the property owner. We think, therefore, that the' order of confirmation should be reversed, and the report set aside, with costs, and the matter sent to new commissioners for a new appraisal.

All concur


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Sarah E. Mellen, Resp’t, v. William C. Banning, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Appeal—Presumption.
    An order allowing an amendment to a complaint, where the amended complaint does not appear in the papers on appeal, is presumed to be correct.
    Appeal from an order allowing plaintiff to serve an amended and supplemental complaint in place of an amended complaint already served.

      Geo. Hill, for app’lt; Henry Daily, Jr., for resp’t.
   Van Brunt, P. J.

If the papers upon which this appeal has been presented sustained the allegations of the counsel for the appellant that the amended and supplemental complaint set up a new and different cause of action from that contained in the amended complaint, it seems to us that the order appealed from should be reversed. But the difficulty with the appellant’s case as contained in the papers is that it does not appear what the cause of action set up in the amended complaint was. It is true that in the affidavits presented by the appellant in opposition to the motion to serve the amended and supplemental complaint various grounds of objection thereto are set up, among others, that the cause of action set up in the proposed amended and supplemental complaint is inconsistent with the cause of action set forth in the original and amended complaint, and that the plaintiff abandons the action as an action for the construction of the will, alleging that the power of sale contained in the will is void, and now seeks to recover a judgment admitting the power of sale to be valid, and that the power has been extinguished by the acts of the devisees named in the will.' If these objections appeared upon the papers presented upon the motion, it is doubtful whether the court would have been justified in making the order; but, as the amended complaint, then already served, does not appear in the papers upon appeal, it is impossible for the court to tell whether these grounds of objection are well founded or not. The order appealed from is presumed to be correct, and, until the papers upon appeal show that it should not have been granted, it necessarily devolves upon this court to affirm the same.

Order affirmed, with $10 costs and disbursements.

All concur.


author: O’Brien, J.

text:
    Lewis S. Samuel, Resp’t, v. Fidelity and Casualty Company of New York, App’lt.

      (Supreme Court, General Term,, First Department,

      Filed February 16, 1894.)

    Former adjudication—Splitting demands.
    If a ‘plaintiff bring an action for a part only of an entire indivisable demand, the recovery in such action is a conclusive bar to a subsequent suit for another part of the same demand.
    Appeal from a judgment entered on a verdict directed by the court, in favor of plaintiff.

      Thomas S. Moore, for app’lt; Raphael J. Moses, for resp’t.
   O’Brien, J.

The facts relating to this action are fully set forth in Samuels v. Fidelity & Casualty Co., 49 Hun, 122; 16 St. Rep., 917, which was a case between these same parties wherein the plaintiff recovered a judgment, which is now pleaded as a bar in this action. That as well as this action was brought to recover damages for breach of a contract resulting from defendant’s wrongful withdrawal from a bond as surety for plaintiff. A recovery in the first action was had, and sustained at both the general term and the court of app'eals. It appears that upon the former trial the plaintiff sought to recover §1,000, which he . was contingently liable to pay to a surety substituted for the defendant, unless within the time fixed he had given him indemnity. For the reason that he could give the indemnity and that the court held that the plaintiff could recover only the damages actually sustained, this $1,000, agreed to be paid to surety, was excluded from the consideration of' the jury; and it is to recover this $1,000 that this second action • is brought, and for which j udgment against the defendant has been entered by direction of the court.

The ruling of the learned justice presiding at the first trial is not before us for review, the question here presented being whether, after a recovery in the first action, and the payment of the $1,000 by plaintiff, the latter, in this action, could recover that amount. We think that this question is to be solved by a determination of whether the liability of the defendant was extinguished by the recovery in the first action; or, differently expressed, whether the plaintiff had more than one cause of action for the damages sustained by reason of defendant’s breach of the contract. The law as .settled is thus expressed in Perry v. Dickerson 85 N. Y., 345: “ There can be but one recovery for an injury from a single wrong, however numerous the items of damage may be; and but one action for a single breach of a contract.” That case also furnishes the test to be applied in determining whether the judgment in the former action is or is not a bar, by the statement that it depends upon the question whether the claims set up in the two actions “constituted a single and indivisible demand within the authorities, or two separate and independent causes of action.” If there exists in favor of a party but one cause of action, no matter how many may be the items of damage, but o.ne recovery can be had. And we fail to find any reason upon which the argument can be based that, bv reason of defendant’s breach, more than a single cause of action accrued to plaintiff. There was but one bond, and a single breach, and by reason thereof the plaintiff was entitled to recover all the damages that he thereby sustained. If, with respect to one of the items of damage, the plaintiff saw fit to have this depend upon a contingency, and thus uncertain until the contingency happened, he, was equally at liberty to wait until the amount was fixed and determined before beginning his action; or in the action that he brought he could have produced such evidence as would have permitted the jury to determine the extent of his damage. His failure, however, to do one or the other, or the ruling of the judge upon the former trial, for insufficiency of evidence or other cause, having excluded this contingent item of damage from the jury’s consideration, gave no second cause of action. We think in reason and upon the authorities that the plaintiff had but one cause of action, and that by the former judgment it was extinguished, and that he cannot now recover for additional items of damage sustained by the identical breach, whether he sets up the same items of dam-' age as were set up in the previous action or ,not, or whether a recovery for such items was or was not then allowed. It is perfectly settled in this court that if a plaintiff bring an action for a part only of an entire indivisible demand, the demand in that action is a conclusive bar to a subsequent suit'for another part of , the same demand. Guernsey v. Carver, 8 Wend., 492. See also, Secor v. Sturgis, 16 N. Y., 548. Our conclusion, therefore, is that the direction in this case was erroneous, and that the judgment should be reversed; and, as no advantage,could be derived from permitting a new trial, and to enable the plaintiff, if he feels aggrieved, to take his appeal, the complaint should be dismissed, with costs.

All concur.


text:
    Foo Long, App’lt, v. American Surety Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    1. Appeal—Undertaking—Surety.
    To bind the' surety upon the undertaking to the general term, there must be an actual adjudication by the court of appeals.
    2. Same.
    An adjudication, which proceeds upon consent, establishes , nothing as to anybody except, perhaps, the parties to that record.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff.

      J. N. Tuttle, for app’lt; L. H. Arnold, Jr., for resp’t.
   Van Brunt, P. J.

This action was brought upon an undertaking given by the defendant for one, Chu Fong, upon appeal to the general term upon a judgment in favor of the defendanttherein. At the general term this judgment was reversed, and a new trial ordered.. The plaintiff then appealed to the court of appeals from the order granting a new trial, giving a stipulation that, if the same were affirmed, judgment absolute might be tendered against him. After the appeal was taken and the case was on the calendar of the court of appeals, but long before it was reached the plaintiff and the defendant in that action and their attorneys executed, acknowledged and filed a consent entitled -in the court of appeals consenting to the entry of a judgment reversing the judgment of the general term and affirming absolutely the judgment of the circuit court, and, judgment having been entered accordingly, the plaintiff brought this suit against the present defendant on the undertaking. The defendant, in its answer, denied that the judgment at circuit had ever been affirmed within the intent and meaning of the undertaking, and set up in defense that said judgment was not rendered upon any argument or submission of said appeal, or upon any consideration by the court of appeals, but that the plaintiff had entered the judgment of affirmance by consent, without the knowledge and to the prejudice of the defendant as surety, and that said acts of the plaintiff and defendant in that suit were collusive and fraudulent. Upon the case being tried, the learned j ustice excluded all the evidence to support the defense, and gave judgment against the defendant. Upon defendant’s appeal that judgment was reversed, and a new trial ordered. Upon the second trial the plaintiff put in evidence the judgment of the supreme court upon the remittitur, showing that the court of appeals had reversed the order on consent and evidence of demand and notice. The defendant then proved by the remittitur of the court of appeals that the parties had made the consent on January 9,1891 and that judgment in the court of'appeals on said consent was entered on January 12, 1891, months before the case was reached. The defendant then proved the circumstances of the indemnity given to it upon its execution of the undertaking sued upon. The insolvency of the defendant in the first action was established, and certain other facts proven. The court excluded all evidence on the part of the plaintiff to show that when he made the agreement consenting to the affirmance he thought that the defendant in the first action owned the $4 000 deposited with this defendant, and did not know that he had assigned it. The court directed a verdict for the defendant, and from the judgment thereupon entered, and from order denying motion for new trial, this appeal is taken.

The decision of this case upon the previous appeal as contained in 61 Hun, 595 ; 41 St. Rep. 873, seems to dispose of the only question involved herein. It was there held that the presumption was that the decision of the general term was supported by the facts appearing before the court, and that presumption was not overcome by the proceedings afterwards taken in the court of appeals, for that court made no examination whatever into the merits of the appeal or the decision made by the general term, but the directions given by that tribunal were wholly founded upon the stipulation or agreement of the parties or their attorneys, and that no adjudication, therefore, was in fact made by which this presumption of the correctness of the determination of the general term was in the least affected or diminished in force; but the parties or their attorneys, with that presumption existing, entered into an^ agreement to set aside that decision, and to restore the judgment on the verdict which had been reversed by it. It was also held that the only way in which the parties could dispose of the reversal of the judgment by the general term so as to bind the surety upon the undertaking of the general term was by an actual adjudication by the court of appeals upon that question. The learned counsel for the appellant seeks to reargue the questions involved upon the appeal to the general term, but we do not under stand that the decision on that appeal can be impeached in this way. It is the law of this case, until it is reversed by an adjudication made in the usual course by the court of appeals ; and one made by consent, and therefore collusive, can have no such effect. It is a principle too familiar to need the citation of authorities that an adjudication which proceeds upon consent establishes nothing as to anybody, except, perhaps, the parties to that record. It can furnish no foundation for any remedy against any other person or against any other property. Earl of Bandon v. Becher, 3 Clark & F. 497; Gaines v. Relf 12 How. 472 ; Moses v. McDivitt, 88 N. Y. 62. We do not think that further discussion is at all necessary in view of the previous decision.

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

All concur.


author: Per Curiam.

text:
    In the Matter of the Estate of Cornelius V. S. Roosevelt, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894)

    Taxes—Collateral inheritance.
    A remainder, whose value cannot be ascertained during the life estate, iu not taxable until the death of the life tenant.
    Appeal from an order confirming the amended report of the appraiser, assessing the cash value of the property of the testator,

      George H. Yeaman, for app’lts; Ediuard Massed, for resp’t.
   Per Curiam.

Ten nephews and nieces took vested remainders at the death of the testator,_ subject to the life estate of the widow and to the payment of certain annuities after her death. Until the widow dies, it cannot be ascertained how many persons will become entitled to annuities ; nor until that time will the amount or the age of the annuities be known. Therefore, there is no way in which the value of the remainder can be ascertained until after the death of the widow. In re Curtis, 73 Hun, 185 ; 56 St. Rep, 113.

The order should be reversed, with costs and disbursements.


text:
    In the Matter of the Estate of Alexander Milne, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894)

    Taxes—Collateral inheritance.
    Where the testator died about a year before the act of 1892 took effect, interest on the legacy tax is regulated by the act of 1887.
    Appeal from surrogate’s court.

      William K. Arnoux, for app’lt; George S. Coleman, for resp’t.
   Per Curiam.

The testator died April 10, 1891, at Stamford, Conn., leaving property in the state of New York subject to the tax imposed by chapter 483, Laws 1885, as amended by chapter 713, Laws 1887, entitled “An act to tax gifts, legacies, and collateral inheritances.” By this act it was provided (§§ 4 and 5) that, when taxes are not paid within 18 months after the death of a decedent, interest shall be charged at the rate of 10 per cent per annum; provided, however, that where, by reason of necessary litigation or other unavoidable cause of delay, an estate cannot be settled at the end of such 18 months, this penalty of 10 per cent, shall not be charged upon said tax from the expiration of said 18 months until the cause of such delay is removed. On May 1,1892,—one year and twenty days after testator’s death,—chapter 359 of the Laws of 1892 took effect. This act repealed the said laws of 1885 and 1887, but contained a saving clause with respect to rights accruing prior to May 1, 1892. By this act of 1892 it was provided that interest on overdue taxes, where the penalty was remitted, should be at the rate of six per cent, from the time of the decedent’s death, instead of, as provided in the act of 1887, from the expiration of eighteen months after such death. The single question presented here, therefore, is whether the interest upon the amount of tax is to run from the date of the deatli of the testator, as provided by the act of 1892, or from and after eighteen months from such death, as provided by the act of 1887. There can be no doubt but that the tax accrued at the date of the death of the decedent, and the persons subject to the tax were entitled to any immunity or privileges in respect to the time of payment which were provided by the law as it stood when the right to the tax accrued. It has been many times held that, unless the intention is clear, a statute shall not be given a retroactive effect. It is not claimed that there is any expression of legislative intent to give any such effect to the Law of 1892, but the saving clause to which attention has been called in terms provides that it shall not affect or impair any act done, or right accruing, under the prior acts relating to the taxation of legacies and successions. Our conclusion is that the question in respect to penalties and interest was governed by the Law of 1887, and not by the Law of 1892. With regard to remitting the penalty, and substituting, in lieu thereof, interest, a discretion is given to the surrogate whether it shall be one or the other; and in the case at bar it may be that he remitted the penalty because he supposed he had the right to charge interest upon tlie tax from the date of decedent’s death, which, as we have seen, we do not think he could do. The order, therefore, should be reversed, and the matter remitted to the surrogate for such disposition as he may think proper, pursuant to the act of 1887, with $10 costs and disbursements to appellant.


author: Follett, J.

text:
    Elizabeth C. McKibbel, Resp’t, v. William F. Nafis, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Attorney and client—Summary application.
    A summary application to compel an attorney to surrender securities, on which he has a lien for conceded services whose value is in dispute, will he denied.
    Appeal from an order requiring the payment of money and the delivery of a bond and mortgage.

      George Putnam, Smith, for app’lt; Charles Blandy, for resp’t.
   Follett, J.

The appellant is an attorney and counselor of this court, who was employed by the petitioner to collect upwards of $90,000 due from the estate from her deceased father, which sum was collected through the aid and assistance of the attorney. But a question has arisen as to the value of those services. At some time—the date not appearing—a bond and mortgage for $6,000, owned by the respondent, was placed in the hands of the appellant, with power to collect the installments falling due thereon. On the 24th day of July, 1893, the appellant collected $1,500 on this bond and mortgage, which he placed to the credit of the respondent, and subsequently he brought an action against the respondent to recover the amount claimed to be due him for services rendered after crediting this sum. In this action an issue has been joined. Afterwards, the petitioner applied for an order requiring the appellant to pay over the $1,500 so collected and credited, and to deliver to her the bond and mortgage, which was resisted by the attorney on the ground that he had a lien on the sum and on the securities for the services he had rendered.

It is well settled that an attorney has a lien on the securities Of his client, which are in his hands for services which he has rendered. This" lien is a legal one. In re H., 87 N. Y. 525; Maxwell v. Cottle, 72 Hun, 529; 55 St. Rep. 127. The attorney having a legal lien upon .this mortgage and upon this sum, it is difficult to see by what right or upon what principle the court could declare that lie must surrender such lien. If it had been shown that the attorney’s claim was wholly groundless, then, ^undoubtedly, the court, upon a summary application, might require the securities to be surrendered ; but where, as in this case, it is conceded that the attorney has performed some services', and the value of those services is in dispute, we think that the court should not have required him to relinquish his lien.

The order should be reversed, but without costs to either party. All concur.


text:
    George A. Widmayer et al., as Executors, etc., Resp’ts, v. William F. Widmayer; Individually and as Executor, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    1. Trustees—Removal.
    The supreme court has power to remove a trustee from his office as such, though he may be also an executor.
    2. Same.
    While such court does not usually entertain jurisdiction of proceedings and actions of which statutory tribunals have been given cognizance by special enactment, yet it does not follow that, in all cases, it will decline jurisdiction upon that ground.
    3. Same.
    Where the surrogate’s court has no jurisdiction over the matter sought to be attained, and such relief can only be granted by the supreme court, the latter will not remit the parties to the former court.
    Appeal from a judgment In favor of plaintiffs.

      A. R. Dyett, for app’lt; F. B. Candler, for resp’ts.
   Van Brunt, P. J.

This action was brought to remove the appellant from his office as trustee and manager of the estate, under the last will and testament, of George Widmayer, deceased. Said Widmayer died on the 29th of January, 1886, leaving a will which appointed the respondents and appellant executors thereunder, Said will was admitted to probate on the 13th of February, 1886 and letters testamentary duly issued thereon. In and by said will the testator devised to his executors and the survivors and survivor of them, their and his successors and successor, certain real estate, to have and to hold the same, and to receive the rents, income and profits thereof, and to pay over the same as therein directed. Thus there was conferred upon the executors the duties of trustees in addition to that of the ordinary administration of the estate. The testator also inserted in his will the following clause:

“ I desire and direct that my son William F. Widmayer shall receive the sum of one thousand two hundred dollars per year, to be paid in equal monthly payments, over and above all commissions which he shall be entitled to as one of the executors of this, my last will and testament, in consideration whereof it is my desire and wish that said William F. Widmayer shall take and have the active management of the property and estate, and shall collect all the rents and income therefrom, and account therefor to his co-executors, and pay over the same to his co-executor, my son Henry E. Widmayer, who shall receive from said William F. the collections made by him, and shall deposit the same and all other interest, income and dividends from bonds and mortgages, stocks and other securities which shall belong to my estate, and deposit the same in the United States Trust Company of New York. And my said executor, Henry E. Widmayer, shall draw against such deposits for the indicated in my said will.”

It having been claimed by the plaintiffs that the appellant had misconducted himself in his office as manager and trustee of the estate, this action was brought for his removal. Upon the trial at special term the learned court found misconduct on the part of the appellant, and gave judgment directing his removal as manager and trustee of the estate, and also adjudging that said appellant would not be entitled to receive the $1,200 per annum provided for in the will, and that he was indebted to the estate in a considerable sum of money; and from such judgment this appeal is taken.

The appellant claims the court erred in refusing to dismiss the •complaint on his motion, the grounds of which motion being that this court had not jurisdiction to revoke the letters of William F. Widmayer, or to remove him as trustee; and, secondly, that if it had jurisdiction, it could not exercise it. It certainly is not necessary to discuss the proposition that by the same instrument executorial powers may be conferred upon the executors therein named, and also those of trustees having a different character from the powers 'which appertain to an executor. This principle is too well recognized to need either discussion or the citation of authority. It is further conceded that the supreme court has no power to remove an executor from his office as such, and it is also equally well settled that the supreme court has the power to remove a trustee from his office as such although he may be also an executor. But it is urged, if this be true, the surrogate’s court, having jurisdiction to remove the appellant both as executor and trustee, that this court should have remitted the plaintiff to that tribunal, and that this court should have declined such jurisdiction. It is undoubtedly true that the policy of this court has-been not to entertain jurisdiction of proceedings and actions of which statutory tribunals have been given cognizance by special enactment. But it by no means follows that in all cases this court should decline jurisdiction upon that ground ; and where such jurisdiction has been entertained and judgment rendered, unless it is apparent that some rule has been violated in so entertaining such jurisdiction, this court,, at general term, will not necessarily undo that which has been done. But, in the case at bar, there-was reason for the entertainment of jurisdiction. It was sought,, by this action, to remove the appellant from his position as manager of this estate, and to determine the fact that he was no longer entitled to the remuneration which was provided for in the will-appertaining to that occupation. Of this the surrogate’s court had no jurisdiction, and relief could only be granted in this court. There seems, therefore, to have been good reason for the court refusing to remit the parties to the surrogate’s court, as complete-relief could not there be given. 1

It is further urged that if the court could assume jurisdiction to remove appellant as trustee it could only remove him as trustee when the office of trustee is separate and independent from that of executor, or has become so ; and we 'are referred to the decision of the court of "appeals In re Hood, 98 N. Y 363, but we fail to seethe application of the case cited. By the terms of the will under which this appellant -purported to act, the rights of the executors over the real estate in question, and of which the appellant Was-acting as manager under the authority conferred in the will, were given to these executors in trust, and it was as trustees that they were managing the estate and collecting the rents and .disposing of-the same. The duties which were being performed in that regard were no part of the executorial duties, and as such they had no control over the real estate in question. It is therefore manifest - that there were duties cottferred upon these executors as- trustees,, and as trustees simply, and in respect to which they were trustees; and it would necessarily follow that this court had jurisdiction to remove them from that office, and to prevent them from the performance of these functions.

It is also urged that the court erred in removing the appellant from his position as manager of the estate ;_ and it is claimed that-this management was not confined to the collection of rents and income ;' that he was to have the active management of the property, and collect, etc., the first being a purely executorial duty; and the appellant was not a manager, independent of being an executor, such duties being part of and embraced in those as executor; and that, as the court had no power to remove him as executor, it had no power to remove him as manager. It seems to us that the-learned counsel has overlooked the plain provisions of the will. It is plain that it was the intention of the testator to give him some additional and other authority than that which he was to have as executor. He was to manage the estate, and collect the.rents and income thereof, and account therefor to his co-executors, and pay over the same to one of them, who was to have the authority to pay it out. For these services he was to receive a compensation additional to his commission as executor of $1,200 per annum. It is clear that it was the intention of the testator to give the appellant additional authority from that which the office '■of executor had conferred upon him in reference to the management of this estate. How, as to this teal estate, it appears that the only authority which this appellant had was in managing or mismanaging the estate. At this time he had no duties as executor. All his duties were as trustee and as manager, and it was the continuance of his violation of these duties which the court sought to prevent by his removal. The appellant, having neglected to perform the duties imposed upon him by the provisions of the will, clearly was not entitled to the compensation provided for in the will, because it is in consideration of these services that he is to have the payment, or rather the payment is to be made in consideration of the rendition of the services. The provision is:

“ I desire and direct that my son William F. Widmayer shall receive the sum of $1,200 per year, * * * in consideration whereof it is my desire and wish that said W. F. Widmayer shall take and have the active management of the property and estate, and collect all the rents and income therefrom and account therefor etc.

He having voilated his duties by the manner in which he had conducted himself in reference to this property and estate, it seems to us that there is no ground for his continuing to claim the compensation which was provided for in the will for the faithful performance of those services. Therefore the court did not err in holding that the appellant was not entitled to the salary given to him under the will of his father.

It is not necessary to consider the evidence in detail, as to the manner in which this appellant conducted himself in reference to this estate. It appears that he had collected rents which he had not paid over and these plaintiffs were not obliged to run the risk of his insolvency, or their ability to collect these same from him by legal proceedings. The fact that at some future time he may • be very solvent was entirely immaterial. If he failed to pay over, if he conducted the business in an improper way, the fact of his solvency had nothing to do with the question. The plaintiffs, were entitled to have the business conducted as was contemplated by the will, and if that was not done, as it is apparent the appellant did not do, they were entitled to his removal.

Certain objections are taken to the admission of evidence in respect to a certain transaction of this manager, he collected rent ten months in advance, and never paid it over. The objection was that there was no allegation in the complaint upon which the evidence could have been received, as the allegations in the complaint applied to certain other rents which the appellant had not paid oyer.' Although this may be the fact, yet if this were all stricken out, the-evidence justified the relief granted directing the removal of the appellant as manager and trustee, and was so complete that upon this issue the appellant has suffered no injury by reason of the admission of this testimony. The court, m view of the circumstances, had the right to determine, either upon the trial or by reference, as to what amount the defaulting trustee owed to the estate ; and if it chose to take that account upon the trial it was not error so to do. Therefore, the admission of this evidence forms no ground for a reversal. Upon the whole case, we are of opinion, therefore, that no ground is presented for interference, and that the judgment should be affirmed, with costs.

All concur.


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    Peter Peiffer, Resp’t, v. John E. Wheeler, Henry Delafon et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February, 16, 1894)
    Attachment—Amendment.
    Where the circumstances are such that the plaintiff could not have made an innocent mistake, he will not be allowed to amend his warrant of attachment by reducing the amount, but it will be vacated on the motion of a junior attachment creditor.
    Appeal from an order denying a motion by junior attachment creditors to vacate an attachment, and granting plaintiff’s motion amending his attachment

      John Frankenheiiyer, for app’lts; J. B. A. Mullally, for resp’t.
   Van Brunt, P. J.

On the 4th of August, 1893, the respondent obtained an attachment against the property of the defendants Wheeler & Eish for the sum of $2,868.92 on the ground that the defendants were residents of Newark, N. J., setting up in his affidavit a cause of action for work, labor and services performed at agreed prices, aggregating the sum of $2,868.42. The appellants subsequently procured an attachment against the property of the defendants, and the same was levied upon the same property upon which the attachment of the respondent had been levied, and this motion was thereupon made to vacate the plaintiff’s attachment. Upon the hearing of the motion it appeared that but a small portion of the amount for which the attachment was issued was for work and labor; and it was claimed upon the part of the plaintiff that he made a mistake in describing a portion of his indebtedness, which was upon notes lent. It further appeared that another portion was represented by a note which had not yet become due, and a motion was made,, upon the part of the respondent for leave to amend the attachment by reducing it to the amount which was due. This motion was granted, and the motion to vacate denied; and from the order thereupon entered this appeal is taken.

One of the questions presented upon this appeal is that the court has no power to amend a warrant of attachment by reducing its amount; but upon a careful examination of the argument presented upon the part of the appellants we cannot see that- there is any reason to doubt the power of the court, in a proper case, to make sack an amendment It cannot be that, where a party has innocently and in good faith made an averment in regard to the amount of the indebtedness of the defendant in the attachment to him, he must lose his whole lien because he has inadvertently made an error. No such arbitrary and rigid rule has yet obtained, and, in view of the liberal provisions of the Code in regard to amendments, we do not think it will. The only case which has been found to support any such view is that of Buhl v. Ball, 41 Hun, 61; 2 St. Rep. 270; where the court held that, upon a motion to vacate an attachment upon^ the papers upon which it was granted, no affidavit could be received to fortify the allegations contained in the original papers. This arose from the rule of the Code that, where such motion is made upon the papers upon which the warrant was issued, no additional affidavits can be read in support thereof. Neither do we think that Kibbe v. Welmore, 31 Hun, 424, is an authority for the proposition that an amendment can be allowed where an objection is taken to the proof of the facts justifying such amendment upon the hearing of the motion to discharge the attachment. In that case the facts justifying the amendment were presented to the court without objection, and the court conformed the process to the proofs. In order, however, to justify the court in making such an amendment the utmost good faith upon the part of the plaintiff should be shown, and in this regard we think the plaintiff entirely failed. A perusal of the papers upon which this order was made leads to the conclusion that the plaintiff intended to grab everything in sight, in order that he might secure the money due and to become due from the defendants to him. His excuse in regard to the note which was not due seems to be entirely untenable ; and his claim that he forgot that the whole amount for which the attachment was issued was not due for work and labor performed, but that , more than half of it was upon note transactions, seems to make too severe a call upon the credulity to entitle it to belief. The transactions of this plaintiff are not shown to be so large that he would be likely to forget a little thing of this description. Out of $2,800, for which the attachment was issued, only $1,100 appears to have been due for the cause of action set out in the complaint. Now, it is clear that, in case he had declared in a complaint for the cause set out in this affidavit, he could only have recovered the $1,100. Besides this $1,100, he includes some $1,400 on note transactions, and some $400 more for which he held a note which was not due. This could not have been an innocent mistake. The fact that this was an unusual transaction, viz. of borrowing notes, instead of being, as plaintiff alleges, a reason for his forgetting it, was a reason for his remembering it. Wé can come to but one conclusion, and that is that the plaintiff was willing to swear to his whole indebtedness, due or not due, and whether arising out of the facts stated in his affidavit or not, in his great haste to get his security. Under these circumstances we do not think that the court should aid a party in recklessly resorting to the process of the court for the purpose, of securing his debt. The motion to vacate should have been granted, and the motion to amend denied. The order appealed from should be reversed, with $10 costs and disbursements; the motion to vacate granted, with $10 costs ; and the motion to amend denied, with $10 costs.

All concur.


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    Harlem Bridge, Morrisania and Fordham Railway Company, App’lt, v. Town Board of Westchester et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Costs—Extra allowance.
    An extra allowance cannot be granted after the action has been discontinued.
    Appeal from orders granting defendants’ motion for leave to renew motions for extra allowance, and from an order granting such .extra allowance.

      W, V Oohen (II. L. Scheuerman, of counsel), for app’lt; H. G. Henderson (A B. Cruikshank, of counsel), for resp’ts.
   Van Brunt, P. J.

This action was brought on the 13th of' June, 1892, for an injunction to prevent the defendants from interfering with the plaintiff in building and operating its street-surface railroad, and to prevent the defendant traction companies from building their own railroads. An injunction was served with the summons and. complaint, and, after argument, continued pending the trial of the action. Issue was joined in August, 1892, and the case reached for trial on the 18th of November of that year, and adjourned upon the application of the plaintiff. ’ An appeal having been taken from the order continuing the injunction, the same was heard in November, 1892, and a reargument ordered. 50 St. Rep. 934. The case was put on the January calendar, and noticed for argument, but was moved off by the plaintiff, and put on the February calender, and argued. Before a decision was rendered, the plaintiff having made a motion for the discontinuance of the action, on the 27th of February, 1893, an order was made and entered by this court granting the plaintiff’s motion upon certain conditions. On the 7th of March, 1893, an order was entered reciting the compliance by the plaintiff with the conditions contained in the order of February 27,1893, (except as to the extra allowance, to be thereafter disposed of), and the payment of the costs therein required to be paid, and the receipt thereof by the defendants’ attorney. It was ordered that the action be, and the same thereby was, discontinued without further costs to either party as against the other. A motion for an extra allowance having been made, the same was denied; and, an api, plication having been made for leave to renew said motion, such leave was given, and the motion for extra allowance granted, and from the orders thereupon entered this appeal is taken.

I have not been enabled to see how it was possible to make a motion for an extra allowance after an action had been actually discontinued and ended. The order of March 7th discontinued the action without further costs to either party as against the other. It was absolute in its terms, and as long as that order existed there was no action pending in which a motion for an extra allowance could be granted. It may be said that in the body of the order it was recited that the plaintiff had complied with all the conditions for discontinuance, except as to the extra allowance, which was thereafter to be disposed of; but the court had no power to retain the question of extra allowance to be disposed of after an action was actually discontinued. The order directed, notwithstanding these recitals, that the action be discontinued without further costs to either party as against the other. This was the judgment of the court. In this judgment there was no reservation (if such a reservation could have been made) of the right to make a motion for an extra allowance. I have been unable to see how the court could exercise any such power. The moment the action was discontinued, that moment the court lost all jurisdiction of the parties. No action pending, no order could be made therein. The action had been discontinued without further costs to either party as against the other; and an extra allowance is in addition to costs, and is part of the costs, and the granting of such a motion is in contravention of the judgment of discontinuance. I think, therefore, without discussing the question as to the power of the court, in view of the nature of the attempted averments upon information and belief as to the value of the subject matter of the litigation, that the court had no power, after the action had been discontinued, to entertain a motion for an extra allowance. As well might the court, in the case of a trial after judgment entered, entertain such a motion. The order appealed from should be reversed, with $10'costs and disbursements.


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    In the Matter of St. Nicholas Terrace. Ira Shafer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Condemnation proceedings—Apportionment.
    Where the street and the easements are owned separately and both are condemned, the amount awarded must be apportioned between the abutting and fee owners.
    Appeal from an order confirming the report of the referee in favor of the petitioners.

      John- G. Shaw, for app’lts ; James A. Beering, for resp’ts.
   Per Curiam.

We are satisfied that under the conveyances the naked fee of the strip of land called “ Pentz Street ” was retained in the Pentz estate, and under them abutting owners acquired simply the ordinary street easements over this strip; and, the city having condemned these easements and the fee, that the amount awarded must be apportioned between the six abutters and the owners of the fee, for the reasons and upon the principle stated in the opinion in Re Opening Eleventh Ave., 81 N. Y. 446. The awards, therefore, should be equitably apportioned "between the owners of the fee and those persons to whose lands the easements were appurtenant. The orders should accordingly be reversed, and the case sent back- to the referee, in order that an apportionment may be made, with costs to appellants, to be paid out of the awards.


author: Follett, J. Van Brunt, P. J.

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    Charles E. Hart, an Infant, by Guardian ad litem, etc., App’lt, v. Delaware, Lackawanna and Western Railroad Company, Resp’t.

      (Supreme Court, General Term. First Department,

      Filed February 16, 1894.)

    Negligence—Contributory.
    Where the plaintiff’s conduct is not such as authorizes the court to hold, as matter of law, that he is guilty of negligence which contributes to the injury, the dismissal of the complaint on the ground of contributory negligence is improper.
    Appeal from a judgment dismissing the complaint. ,

      John H. Kitchen, app’lt; Walter Edwards, for resp’t.
   Follett, J.

This action was brought to, recover damages for a personal injury, caused, it is alleged, by the negligence of the defendant’s employes. At the time of the accident the defendant was, and for some years prior thereto had been, in the possession and control of a wharf at the city of Hoboken, known as “ Pier No. 11,” which was used for transferring railroad cars to and from floats. The New York, New Haven and Hartford Railroad Company owned and used floats for transporting cars between its railroad and other railroads having terminal facilities on New York harbor. These floats are about 225 feet long and 85 feet wide, and have three tracks extending lengthwise of their decks for cars to move and stand on. Each float has a capacity for sixteen cars, and is moved from place to place by a steam tugdashed to its side. The wharf is approached through a slip formed by spiles driven on each side, and like a ferry slip. Attached to the wharf is an adjustable bridge, which rises and falls with the tide, and can be easily brought to the level of the deck of the float. Railroad tracks extend from the yards of the defendant to the wharf and across the bridge. A windlass stands on the wharf, operating a hawser, which has a ring on the end of it. On the bridge is stationed an'employe of the railroad, whose duty it is to hand the hawser 'to the man standing on the bow of the incoming float, who fastens it to the hook on the float, and then, by means of the windlass, the float is brought to the end of the bridge, after which the bridgeman runs the keys forward into the toggle boxes or grooves on the deck of the float. It is necessary that the ends of the tracks on the float , and of those on the bridge should be brought and kept close together, and in line, so that the cars may be moved to and from the floats. The trades on the bridge and on the floats are held firmly end to end by four steel keys, which are 7 feet long, about 4J inches square, and weigh between 700 and 800 pounds each, one being on each side of the bridge, and two near the center. They are fastened permanently to the bridge, and when in use are run out about 3-J feet onto the float and into toggle boxes or grooves. When the float is ready to leave the wharf, the keys should be, and usually are, shoved back onto the bridge, where they remain until another float comes in. It is the practice and duty of the railroad to operate the bridge and the keys. On May 15, 1890, the plaintiff was, and for three or four years before had been, in the employ of the New York, New Haven & Hartford Railroad Company as a floatman on its floats. On the date mentioned he was engaged on float No. 23, which at the time was towed by tug or transport No. 5. At about 8 o’clock in the evening of the day mentioned, while the tug and float were lying atHarsimus Cove, in Jersey City, the captain was ordered by the New York, New Haven & Hartford Railroad Company to go to defendant’s wharf. The order was obeyed, and the float reached the wharf about 40 minutes part 8 o’clock. When near the wharf, it was found that a float belonging to another line was lying at the bridge. Thomas G-ould, an employe of defendant, came from the wharf onto the float lying alongside of the bridge, and said, “ If you want to get into the bridge, you will have to pull this float out.” Thereupon the persons in charge of tug No. 5 and float No. 23 drew the float lying alongside the bridge out of the slip, and left it in a place of safety near by, and then entered the slip. It was the duty of the plaintiff to stand on the starboard side of the bow of his float, and receive the hawser, which it was the duty of defendant’s bridgeman to hand him. The plaintiff took this position, and, as the float was brought near the bridge; one of the steel keys, which, when the other float was pulled out, had not been drawn back onto the bridge, struck him, breaking one of his legs, and rendering amputation necessary. The negligence complained of was in permitting these keys to project beyond the bridge when the float approached it. The night was dark, and there was some controversy on the trial whether the lights on the bridge and on the float were sufficient to enable the plaintiff, had he exercised due care, to see that the keys projected beyond the edge of the bridge. It was conceded on the trial that the float on which the plaintiff was employed was lawfully at defendant’s pier at the time of the accident; and it was testified, and was not contradicted, that cars are transported at all hours of the day and night, and that the bridges are always manned. It was not unusual for an incoming float to remove an idle float lying at the wharf, and then take its place. And, besides, the captain of float No. 23 was requested by defendant’s bridgeman,- Grould, “ to pull that float out, so that they could get in.” So it appears by the uncontradicted evidence that the float on which the plaintiff was employed wás at this particular time rightfully at the wharf, and, by the authority of defendant’s bridgeman, removed the idle float, and entered in its place. It seems that defendant’s employes had'ample notice that float No. 23 was about to draw near the bridge, and it was their duty to exercise due care to have it in a safe condition to receive the float. It was also testified, and not contradicted, that in case keys projected beyond the edge of the bridge they endangered incoming boats and their employes. This evidence presented a question for the jury as to whether the employes of the defendant were guilty of negligence which caused the plaintiff’s injury. The evidence descriptive of the plaintiff’s conduct on the occasion in question is not such as authorized the court to hold as a matter of law that he was guilty of negligence which contributed to the accident. The evidence presented two fair questions of fact for the jury: (1) Were the defendant’s agents guilty of negligence which caused the injury? (2) Did the plaintiff, by his own negligence, contribute to his injury, and was it error to take the cgse from the jury?

This case has been before this court on a former appeal. 51 St. Rep. 291. Judging from the statement of facts contained in the opinions delivered on the former appeal, the evidence on the first trial was quite different from that given ,on the second. For example, it is stated in the leading opinion delivered on the former appeal that—

“ The Starin float having • been detached from the bridge, the bridgeman took one end of the hawser, the other end being made fast to the float, climbed up on the south rack, walked along the rack as the float made off, and, with the assistance of a man, put on the float by the captain of the tug, secured the float at the mouth of the slip. * * * Before the bridgeman had time to do his work, and return to his position upon the bridge, and before any notice was given that the slip was ready for occupancy, the New Haven float was shoved into ttie slip.”

There is no such evidence in this record, and, besides, it is testified that the bridgeman stood with the hawser in his hand, ready to hand it to the floatman when the float came within reach, and defendant’s employes had notice of the coming of the float. By this record it appears that between 15 and 20 minutes elapsed between the time when the New Haven tug started to pull out the empty float and the time when the bridge was struck, and that the four keys could be pulled back within two minutes. On the former trial it appears by the opinion that the testimony was that it would take eight or ten minutes to run back the keys. A cursory comparison of the opinions delivered on the former appeal. with the present record shows that the facts are quite different. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

O’Brien, J., concurs.

Van Brunt, P. J.

(dissenting)-.I cannot concur in the conclusion arrived at by my associates in this case. I am utterly at a loss to find in this record any evidence of negligence upon the part of the defendant. Whatever negligence there was arose from the impetuosity and undue haste of the pilot of the boat upon which the plaintiff was employed. It appeared from the evidence that when the float upon which the plaintiff was employed came to the slip of the defendant it was already occupied by another float, and that they signaled to know whether they could come into the slip, and received a reply that they could do so provided they pulled out the float then in the slip. It further appeared that they pulled out the float, and, without any invitation or notice that the pier was ready to receive them, tne pilot having charge of the float upon which the plaintiff was injured, being in a hurry, drove the float into the slip, and. one of the plaintiff’s feet was caught in the keys which projected from the bridge. It further appeared that this pilot knew of the existence of these keys, and that they were out upon the float that was occupying the pier, and that they were required to be pulled back before he could enter the pier with safety; and yet, without any notice that they had been pulled back, or that the pier was ready, he drove his float in, and the plaintiff was caught between one of these keys and the deck of the float; the only evidence being that perhaps there was time enough to have pulled in the keys. But I fail to see that there was any negligence upon the part of the employe of the defendant until he was invited to go into the slip after the other float had been removed. Instead of waiting to ascertain whether the pier was ready, knowing that something had to be done before he could safely enter, he was in such a hurry that he drove his float in, regardless of what might be the condition of the bridge. In the prevailing opinion it is said: “It seems that the defendant’s employes had notice that float 23 was about to draw near the bridge, and it was their duty to exercise due care to have it in a safe condition to receive the float.” But where there is, in this case, any notice to them that this incoming float was to be driven in at once, is not pointed out. The employes of the defendant had not reason to suppose that the pilot controlling the float, knowing the danger of coming in with these keys projecting, would rush his boat in, regardless •of the risk, without ascertaining that the slip had been made ready for his reception. That he was negligent is beyond question. Without an intimation that the bridge was ready, to shove his float in, and then, because the bridge was not ready, to claim negligence upon the part of the defendant, seems to be applying a very harsh rule of diligence, and such as has never heretofore been sanctioned.

The judgment should be affirmed, with costs.


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    Isidor Richmond, an Infant, by his Guardian ad litem, etc., Resp’t, v. Second Avenue Railroad Company, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    .1, Negligence—Contributory.
    Whether it is negligent for a passenger to step off a moving car, with his bundles, is a question of fact for the jury, depending upon the rate of speed and the circumstances under which lie attempts to alight.
    2. Appeal—First instance.
    In an action for negligence, the question that the plaintiff is not entitled to recover for his diminished earning power during his minority, cannot be raised for the first time on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Robert Sewell, for app’lt; Maurice Untermyer for resp’t.
   Follett, J.

This action was brought to recover damages for personal injuries inflicted, while alighting from one of the defendant’s cars, caused, as it is alleged, by the negligence of its employes. At the time of the accident, which was about mid-day on March 28, 1892, the plaintiff, then sixteen years of age, was engaged in selling and delivering chair bottoms. A little before noon of the day mentioned, the plaintiff, with two bundles of chair bottoms, united by a strap, by which they were suspended on his suspenders, entered one of defendant’s cars at the corner of Forsyth and Grand streets. There were fifty chair seats in each bundle, weighing twenty-five pounds; one hundred seats in all,' making the total weight fifty pounds. Shortly after entering he was directed by the conductor to ride, with his bundles on the. front platform. He went forward to the platform and rode there to Tenth street, where it became necessary for him to change, when he was given a transfer ticket, and left the car. When the car came along which the plaintiff desired to-take he attempted to board it by the rear platform, but was directed by the conductor to go to the front platform, which he did, carrying his bundles with him. He took the bundles from his shoulder and placed them bn the patform in front of the driver, and near the brake rod. The plaintiff stood on the left side of the driver, and rode in that position until the car passed Eighty-First street, when he took the bundles from the platform, and placed the strap over his left shoulder! As the car reached the south cross walk at the intersection of Eighty-Second street and First avenue, the plaintiff told the driver that he wished to get off. His bundles were to be delivered at a hardware store, on the west side of First avenue between Eighty-Second and Eighty-Third streets. The car was stopped on or near the north cross walk of Eighty-Second street, and the plaintiff attempted to alight from the left-hand .or west side of the car. His bundles were suspended on his left shoulder, and he had hold of the rail of the dashboard with his right hand. Before the plaintiff reached the street the driver loosed the brake, and started the horses, which threw the plaintiff’s right leg under the car, where it was crushed so that amputation j ust below the knee became necessary. The foregoing is the plaintiff’s account of the accident. Another person, subpoenaed by both sides, and called by the plaintiff, who-was riding on the platform at the time of the accident, gave the same account of the transaction, except he did not hear the plaintiff request the driver to stop, nor did he see the brake applied. He testified that the car stopped at or near the south crossing of Eighty-Second street,; but was not certain that it did at the north crossing. He said that he saw the boy preparing to leave the car with his bundles, saw him falling and heard him cry. When he found him his right hand was grasping the dashboard, and his leg had been crushed. He said that when he (witness) got off the; car it had stopped, but ie could not tell how far the boy had been dragged. It was his impression that the car stopped as the boy was getting ready to alight. He also testified that the boy’s back was toward the horses when he attempted to leave the car. This is substantially all of the evidence in behalf of the plaintiff descriptive of the accident. The driver of the car who was sworn for the defendant, testified that the boy fell backwards from the car, just as he attempted to place the bundles on his shoulder, and that the car had not stopped, and that he had not been asked to stop it. When he saw the boy fall he applied the brake, and stopped the car before it had moved more than three-fourths of its length. He then looked for the boy, and found him lying under the car with his leg crushed. The conductor of the car testified that he did not direct the plaintiff to ride on the front platform, and that there was plenty of room for him inside the car. He testified that the car was not stopped until after the boy fell. A policeman who was riding on the front platform at the time of the accident, testified that as the car neared Eighty-First street he saw the plaintiff stooping down to get hold of his bundles so as to get off; that he was then standing with one or both feet on the step of the car; and that he fell or stepped off before the car stopped. This is all of the evidence descriptive of the accident-..

There was some conflict in the testimony as to the precise point where the plaintiff fell, whether just below or just above the north crosswalk. The court submitted the question to the jury whether the plaintiff attempted to alight with his bundles while the car was in motion, without asking the driver to stop it, and left the questions of the negligence of the defendant’s employes and of the contributory negligence of the plaintiff fairly to the jury. Whether the plaintiff fell from the car while putting the bundles on his shoulder, or in attempting to leave it while in motion, or whether his fall was caused by the car being started while he was attempting to leave it, were sharp questions of fact, which turned entirely upon the credibiliy of the witnesses. There is no inherent improbability in either version of the accident, and we cannot say that the jury erred in believing the plaintiff’s version, rather than that of the defendant’s witnesses. The verdict being satisfactory to the learned and experienced trial judge, we are of the opinion that this court ought not to set it aside as against the weight of evidence.

Did the court err in its instructions or refusal to instruct the jury in respect to th'e plaintiff’s right to recover ? The defendant took no exceptions to the charge as delivered, but at its close the usual number of requests—all that could be thought of — were preferred by the respective counsel. We shall consider only those discussed by the appellant. The court was requested to charge “ that it is contributory negligence to step off a moving car backwards.” The court replied: “ Unless the party so stepping is induced to do so by the negligent conduct of the defendant. With that qualification, I charge the proposition.” The defendant excepted to the qualification. We think the instruction was correct, but there is no evidence which would have justified the jury in finding that the plaintiff attempted to alight from the car in that manner. The defendant’s driver testified that the plaintiff stood upon one of the steps, and, while attempting to place the bundles upon his shoulder, fell backward to the street; and we find no evidence in the record that the plaintiff attempted to leave the ear "by stepping backwards from it to the street. The defendant requested the court to charge “that it is contributory negligence to step off a moving car incumbered with bundles weighing fifty pounds.”. The court replied ; “ For me to say that a certain weight would make it contributory negligence is an expression of opinion on the facts of the case. I say to the jury that it would have been contributory negligence for the plaintiff to have stepped off this car with bundles which so encumbered him that he could not exercise or control his movements as well as he coul'd without the bundles.” The defendant’s counsel excepted to the modification, We think the instruction was more favorable to the defendant than it was entitled to. A person incumbered with small bundles is not able to control his movements in leaving a car as well as hfe could' without bundles. If this instruction is correct, it would be negligent for a person to leave the car with bundles which incumbered him in the least. The plaintiff testified, and iti this he was not contradicted, that the bundles were so adjusted that he had the free use of both hands, and that he held on to the rail of the dashboard with his right hand when leaving the car. Whether it was negligent for the plaintiff to step off a moving car, if it were moving, with his bundles,' was a question of fact for the jury, depending upon the rate of speed of the car, and the circumstances under which he attempted to alight. The court was asked by the defendant to charge 11 that no conduct on the part of the driver in any way excuses the action of the plaintiff,” which was declined, and an exception taken. The refusal of the court to. charge -this proposition needs no defense. To have charged as requested would have been a palable error. The defendant also requested the court to charge “ that all the evidence, even the plaintiff’s own testimony, is to the effect that the boy fell off while the bundle was being slung over the plaintiff’s shoulder.” The court replied : “ You have heard the evidence. I do not propose to express an opinion as to it one way or the other.” The defendant excepted. The proposition is not true in point of fact, for the plaintiff testified that he did not fall while engaged in putting the bundles on his shoulder. Besides this was a mere request to charge on the evidence, not on a proposition of law. The defendant requested the court to charge “ that, if the jury believed the plaintiff’s own witness, Silverthau, they must find for the defendant.” The court-replied: “ If .you believe from the evidence of the plaintiff’s own witness, Silverthau, that the accident occurred through the negligence of the plaintiff, then J charge you, you must render a verdict for the defendant. But I do not charge you that if you believe what Silverthau said you must necessarily find a verdict for the defendant.To this instruction the defendant excepted. This exception is not tenable. Sil verthau’s evidence, if believed in every particular, did not establish that the defendant was free from negligence, or that the plaintiff, by his negligence, contributed to the accident. It was not error for the court to refuse to charge “ that it is not any part of the duty of the drivers to assist passengers to alight, and that failure so to do is not negligence.” This is a mere abstract question, having no relation to the case, for it was not asserted as a ground of negligence that the driver refused to assist the plaintiff to alight. On tlie contrary, the plaintiff testified that he did not ask for and did not need assistance. The foregoing are all of the exceptions to the charge relating to the right of recovery which are discussed by the appellant, and we find no errors. The plaintiff testified that before the accident he earned in his business seven or eight dollars a week, but that since he has been able to earn but little. Upon the question of damages the court charged “ that the plaintiff was entitled to- be compensated for the pain and suffering which he has endured, and for the financial loss which he has sustained.” The defendant’s counsel took the following exception to that instruction : “ I except to all that except the permanent loss.” He now seeks to raise the question that the plaintiff’s parents were entitled to recover the damages sustained by reason of his diminished ability to earn money during his minority. We think this question is not raised by an appropriate exception. The exception quoted did not call to the mind oE the trial judge the point that the parents of the plaintiff were entitled to recover for the diminished earning power of the boy from the time of the accident until he should arrive at majority, nor was any objection made to the reception of the evidence upon which the instruction was based. There is no evidence in the case that the plaintiff’s father is living. It appears, however, incidentally, that his mother is living. She is his guardian ad litem, and the plaintiff in his testimony referred to the fact that he lived with his mother, but whether he had been emancipated or not does not appear, and the question that the plaintiff was not entitled to recover for his diminished earning power during his minority cannot be raised for the first time on appeal.

The verdict, $9,000, is a large one, and the interest on it at the legal rate produces $540 per year, which is mftch more than the earning power of the plaintiff, according to his own testimony, How much hé might be able to earn in the future had he not been injured cannot be ascertained and there is no. legal presumption that he would have continued to earn as much as he testified he was earning at the time of the accident. Phillips v. Railway Co., 5 C. P. Div. 291. His ability to earn an income or acquire property might be wholly' destroyed or diminished by sickness, by accident or by some of the vicissitudes of life ; and his damages should not be assessed upon the theory that he migl^t engage in the future, had he not been injured, in a more lucrative vocation than the one in which he was employed at the time of the accident. Railroad Co. v. Elliott, 149 U. S. 266 ; 13 Sup. Ct. 837. In a sense, no money is adequate compensation for the loss of a leg, and the suffering incident thereto. Notwithstanding, the amounf must be limited, otherwise the consequences of the negligence of servants might be ruinous to defendants. I think the verdict is larger than should have been given, under the evidence in this case, and that it should be reduced ; but, as mv associates differ with me on this question, although agreeing on all others, the judgment must be affirmed, with costs.

All concur.


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    Anna B. Stewart, App’lt, v. Union Mutual Life Insurance Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    Insurance—Life—Forfeiture—Waiver.
    Where a policy provides that only the president or secretary, in writing, has power to waive a forfeiture, an agent cannot waive compliance with a provision thereof, unless the company has extended his authority.
    Appeal from a judgment dismissing the complaint.
    • Samuel B. Paul, for app’lt; Sawyer & Getty, for resp’t.
   Van Brunt, P. J.

This action was brought on a policy of insujance, in the sum of $5,000, on the life of Joe H. Stewart, for the benefit of the plaintiff. The defendant was a corporation of the state of Maine, having its principal place of business at Portland, in that state, and having an office for and transacting business in the state of New York. The policy was duly executed and sent by the company to one John M. Crane, who was claimed by the plaintiff to be the manager of the defendant’s business in the state of New York. The policy was delivered by Crane to the insured in April, 1890, and a note was givqn for the premium. On the first of May, 1890, a letter was received from the cashiér in the New York office by the insured as follows:

“Your note for $123.10, given in settlement .'of premium due policy Ho. 93,094, will be due and payable on the 31st inst at your office, where it will be presented at that date.

It would appear that a check had been given for this note by the insured; for oii the 7th of August, 1890, a letter .from Crane was sent to the insured, as follows:

“I have deposited your check for $123.10 for collection to-day. Kindly see that it is protected.”

On the 9th of August, Crane wrote again:

“The bank has returned your check, marked ‘Hot good.’ Iam sorry for this, as it places me in •& somewhat unpleasant position.

I feel sure that you must have overlooked the matter, and will fix> it up as soon as your attention is drawn to it.”

The insured wrote on the 12th of August that he had been very sick in bed since Wednesday, and hoped to be out by the last of the week, and would at once provide for the check, to which Crane replied that he was sorry to hear of his being ill, and trusted he would soon be better. Instead of getting better, the insuredAied, and the check was never paid. Upon suit being brought upon this policy, the defendant set up as a defense, that,' by the terms of the application and policy, the failure to pay the premium in cash upon the delivery of the policy avoided the same ; and the question presented is whether there was any evidence upon which a waiver of the terms of the application and policy could be found. It appears that by the application, which was made a part of the policy, it was provided that such application should constitute— “Ho contract of insurance "until a policy shall first have been is- ' sued.and delivered by the company, and the first premium thereon paid, during the life of the party proposed for insurance, in the same condition of health as described in the application.”

The policy provided that the same was to issue upon and subject to the condition, among others, that:

“All premiums are due at the office of the company in the city of Portland, Maine, at the date named in the policy; but, at the pleasure of the company, suitable persons may be authorized to receive such payments at other places, but only on the production of the company’s receipt therefor, signed by the president, secretary, or assistant secretary. No payments made to any person, ■except in exchange for such receipt, will be recognized by the company, or be deemed by either party as a valid 'payment. No agent, nor any other person, except the president or secretary, in writing, has power to alter or change in any way the terms of this contract, or to waive forfeture.”

It also provided that the first year’s premium, of $123.10, should be paid at the home «office on the delivery of the policy.

There is no question but that the premium was not paid at the time of the death of the insured. But it is urged that a credit had been extended in the payment of the premium upon this policy, .and that, therefore, it had become a binding contract between the parties ; and various cases are cited to support this proposition. It is undoubtedly true that notwithstanding the provisions in a policy of this description, where, from the course of business between the parties, authority to waive this condition may be inferred to rest in any one of the officers or agents of the company, a waiver by such officer or agent is binding upon the corporation. But the difficulty about the plaintiff’s cause of action, in the case at bar, is that there is no evidence whatever of any authority upon the part of Crane to waive the conditions of the policy. It is true that the jury might find that he was the manager of the business in New York; but it is equally true that, by the very terms of the contract itself, no one except the president or secretary, in writing, had power to alter or change the terms of the contract, or waive any of its conditions. And there is no evidence that any practice had obtained by which any person had the right to assume that- these provisions in the contract had been departed from, in the manner in which this defendant conducted its business ; and it would seem from the rule laid down in Conway v. Phœnix Mut. Insurance Co., 140 N. Y. 79; 55 St. Rep. 571, no ground of recovery appeared from the plaintiff’s proofs. In that case it was held that no different rules apply to contracts of insurance than from those which obtain in the case of other contracts, and that where the parties have deliberately and formally executed a contract for the purpose of defining their respective engagements, and of securing due and exact performance thereof, they should be held to the same, and that the only cases in which recoveries have been permitted contrary to the provisions of the contract are where it has been shown that there has been such a usuge or course of business, or such consent, express or implied, as to justify the inference that the insurer had extended its agent’s authority, and thus modified the restrictions contained in the policy, In the case at bar, there is no évidence whatever of any usage or course of business upon the part of the defendant, nor of any consent to the doing of that which the manager did by accepting a note, instead of the cash, upon the delivery of the policy. It is undoubtedly true that the proof might be of such a character as to show a waiver, of the conditions contained in the policy and the application therefor. But in the absence of such proof the jury cannot be allowed to-speculate upon the fact that such might have been the case. We think, therefore, -that the court was correct in dismissing the complaint, and that the judgment should be affirmed, with costs.

All concur. 1


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    James J. Nealis, as Receiver, etc., Resp’t, v. American Tube and Iron Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    1. Receiver—Appointment.
    Section 1788 of Code does not render applicable to temporary receivers the-provisions of § 70 of 2 R. S., 469.
    2. Same—Action.
    That the complaint in an action by a temporary receiver alleges that he-is a permanent receiver, does not bring him within the requirement of the said section of, the Revised Statutes. , >

    3. Same—Attorney-General.
    Attorney General need not appear, nor papers be served upon him, in an action by such receiver, brought by leave of court, to recover assets.
    4. Pleadings—Demurrer.
    Objection on ground of non-joinder of parties/ if it appears upon the face of the complaint and is not taken by demurrer, cannot be raised by answer.
    Appeal from a judgment in favor of plaintiff.

      P. Q. Pekerson, for app’lt; Walter Large, for resp’t.
   Van Brunt, P. J.

This action was brought by the plaintiff as: receiver of the New York Supply Company, to set aside a judgment obtained by defendant against said New York Supply Company, and for a recovery of the money realized upon said judg-i ment. The answer consisted of a general denial, and an allegation that the New York,Supply Company was a necessary party to the action. The complaint alleged that the plaintiff was appointed permanent receiver of the New York Supply Company,. Limited, and that he qualified as such receiver, and took possession-of the property and effects of said company, and that in June, 1889, this court made an order authorizing and directing him to commence and prosecute this action. It further alleged' that the defendant, was a foreign corporation,. and that in October, 1888, the New York Supply Company was insolvent, and wholly unable to pay its debts,- which was well known to - its officers, and also to the-' defendant; that on or about the 30th of said October the defendant began an action against the New York Supply Company, as defendant, by service of a summons upon its treasurer; that on the same day the said company, by its attorney, offered to allow judgmerit, which offer this defendant accepted, and judgment was thereupon entered on the 31st of October; that the defendant issued an execution upon said judgment, levied on the property of said company, which was sold, and realized the sum of $578.50 and §77.47 sheriff’s fees. It further alleged that at the time of the-offer of judgment, and the acceptance thereof, the supply company was wholly insolvent, and said offer was made with the intention to give a preference to the defendant in this action over other creditors of said corporation; and judgment was demanded declaring the offer of judgment and the acceptance thereof, and the judgment and the execution issued thereon, to have been fraudulent and void, and of no effect as to this plaintiff, as receiver, and adjudging that the defendant pay to the plaintiff, as receiver, said sums of money. Upon the trial the plaintiff proved these facts, and also that, at the time of the entry of the judgment, suits-were pending against the New York Supply Company, and that judgments were entered at or about that time for a considerable amount. The court found from this evidence that at the date of the offer of judgment the New York Supply Company was insolvent, and unable to pay its debts, and that such condition was known to the treasurer and general manager thereof at the time they authorized said offer of judgment to be made, and also to the defendant, and that said offer was made in contemplation of such insolvency, and granted the relief asked for in the complaint.

It is urged upon this appeal that the defendant’s motion to dismiss the complaint"should have been granted, because the complaint did not state a cause of action, nor was such a cause of action made out by the evidence. It is urged that it was neither alleged nor proved that the plaintiff, who was appointed receiver in a creditor’s action to sequestrate property of the judgment debtor, the New York Supply Company, ever gave or published notice of his appointment as receiver, and that before publishing such notice he could not, as such receiver, maintain tliis action. And reliance is placed upon the provisions of 2 Rev. St., p. 469, § 70, which is to the effect that receivers, immediately after their appointment, shall give notice which shall contain the same matters as are required by law in notices to trustees of insolvent debtors; and by § 72 it is provided that, after the first publication of the notice, every person in possession of any property belonging to such corporation, and indebted to such corporation, shall account, in answer to such debt, and for the value of such property, to said receivers. It is urged that, the allegation of the complaint being that the plaintiff was a permanent receiver, this provision applied, and he could not maintain this action. It is true that the complaint did, aver that the plaintiff was a permanent receiver, but no proof was given, and the evidence which was admitted without objection showed that he was a temporary receiver; and the court, upon the decision of the case, conformed the pleadings to the proof in that regard, and held that the provision did not apply to a temporary receiver.

It is urged, however, upon the part of the appellant, that there is no distinction in this regard between temporary and permanent receivers, because § 1788 of the Code, relating to temporary receivers, provides that a temporary receiver has power to receive debts, etc.,'of a corporation, and also that a temporary receiyer must qualify as prescribed by law for the qualification of a permanent receiver. It is undoubtedly the fact that, in referring to qualifications, no reference is made to the proceedings of the receiver after his appointment, but rather to those things which he -must do in order that he may act at all. Section 66 of the Revised Statutes provides what a receiver shall do in order to qualify himself for his office. It provides that a receiver, before entering upon the duties of his appointment, shall give security to the people in such penalty as the court shall direct, conditioned on the faithful discharge of his duties as receiver, and accounting for all moneys received, etc. And it is to this provision that the Code refers when it provides that a temporary receiver must qualify as prescribed by law for the qualification of a permanent receiver. ' '

The objection that the attorney general does not appear in the action in any way, and that no papers appear to have been served on him, certainly is not well taken. A receiver is not bound to give the attorney general notice of every suit which he may be authorized by the court to commence. Notice of all proceedings in inspect to the dissolution of á corporation and the distribution of its assets is required to be given to the attorney general by the receiver. But chapter 378 of the Laws of 1883 cannot be given any such extended interpretation as is claimed by the appellant.

The further objection is raised that the New York Supply Company should have been made a party to the action. It is sufficient to say that such objection appeared upon the face of the complaint, and,, not having been taken by demurrer, cannot be raised by answer. Sections 498, 499, Code.

The claim that there was no allegation of any other existing creditors of the New York Supply Company a't the time of the alleged offer of judgment, or of any injury occurring to any creditors by reason of such offer, and that, therefore, the complaint is defective, is not well founded. The allegation is that the company was insolvent, and that its officers knew it, and the defendant knew it, and that this offer was made in contemplation of insolvency. .It appeared from the evidence in the action that suits were pending, and judgments were about to be entered, at the time of the offer; and yet it is claimed upon this argument that there is no evidence that any creditor was injured by reason of the alleged offer of judgment. It is claimed that several judgment rolls were offered in evidence, but no judgment cjocket or record or ■other evidence showing that any such judgment remained unpaid or was unsatisfied, and that, unless it appeared that some of the creditors were injured by the offer of judgment, the action could not be sustained, and, further, that there was no evidence in the case that the company was insolvent at the time of the offer, nor ‘ that the offer was made in contemplation of such insolvency, but, on the contrary, was solvent at the time of making such offer, and so represented to the defendants. This is giving a force to the representations of the officer of an insolvent corporation which has certainly not, as yet received the sanction of courts of law. Judgments were being entered against it, and it was unable to meet its obligations according to the proof presented, and even the defendants in this action upon their execution were unable to realize their judgment. If this does not show a condition of insolvency, then it is difficult to see what character of proof would establish such fact. The evidence in the case seems to fully establish the findings of the court below, and the judgment appealed from should be affirmed, with costs.

All concur.


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    Charles Palmer, Resp’t, v. William D. C. Field, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 16, 1894.)

    1. Bills and Notes—Accommodation indobseb.
    In the absence of any claim of diversion, the holder need not show that he paid to the accommodation indorser any value for his indorsement, if the loan was made in reliance on such indorsement.
    2. Same—Joint and sevebal.
    Where negotiable promissory notes purport to bear several signatures as indorsers, the presumption is that the obligation is several, and not joint.
    3. Pleadings—Answer—Abatement.
    In order to a good plea in abatement, it must aver that the person not joined is alive and within the reach of the ordinary process of the court.
    Appeal from a judgment entered on a verdict, directed by the court in favor of the plaintiff.

      Fred T'K Hinrichs, for app’lt; Michael IT. Cardozo, for resp’t.
   O’Brien, J.

The complaint contained two causes of action, based on two promissory notes, which were in all respects similar as to dates, payees and indorsers. These notes were for $4,500 a piece, and it was made to appear by the evidence that they were renewals growing out of a transaction in which originally a note for $10,000 was delivered to plaintiff in consideration of a loan or discount made by him. The original note was from time to time renewed, and finally divided into two notes of $5,000 each, upon which $1,000 was paid ; leaving the balance sued upon, of $9,000, represented by the two notes of $4,500 each. One of the defenses was that the indorsers, including the defendant here, were accommodation indorsers. But inasmuch as it was made to appear by the testimony that the plaintiff , upon the faith and strength of the indorsements, advanced the money on the note by way of loan or discount, this defense was not made out, nor do we understand that it is seriously pressed, because, even assuming that defendant was wholly an accommodation indorser,—there being no claim of any diversion,—it was not necessary to show that plaintiff paid any value to him for his indorsement, where the fact appeared that, upon the faith of the indorsement, plaintiff had loaned the amount represented by the note. In other words, the consideration paid to the maker of the note, or to the person delivering it to plaintiff, was amply sufficient to support a recovery, under the authorities. This justified the rulings of the court in excluding evidence which attempted to show that the indorsement w.as without consideration directly paid to him. If, however, it was material to show that the defendant was not, in a strict sense, an accommodation indorser,-it was made to appear that, by a resolution of the company for whose benefit this note was discounted, and i n which the defendant was an officer, he was voted a compensation of $500 a year for endorsing the paper of the companyl

The defense which was mainly relied upon at the trial, and most strongly urged upon this appeal, is that the liability of the-defendant was not a several but a joint one, and- that, there being a defect of parties, the complaint, upon his motion, should have been dismissed. '

The first question upon this defense is whether it was properly pleaded. The answer stated that the notes were joint obligations-of defendant and others, whose names were given, and upon the-trial defendant was allowed to arqend the answfer by setting up that, the failure to include such persons was a defect of parties defendant. As thus amended, however, we do not think that the plea was sufficient to raise the'defense. The rule has been many times stated that “ to make a plea in abatement good, when it is based upon the nonjoinder of a party defendant, the plea must aver that the person not joined is alive, and within reach of the ordinary process of the court." Lefferts v. Silsby, 54 How. Pr. 194; Scofield v. Van Syckle, 23 id. 97; Brainard v. Jones, 11 id. 569; Burgess v. Abbott, 6 Hill, 135. Although. this objection was specifically taken, the defendant was permitted to .examine the plaintiff upon1 the question, and to ask him -whether the endorsements upon the paper were not given to him as joint endorsements, to which he-replied: “ I never heard of such a thing. As a matter of fact I did not discuss the question of joint or, several liability at all.” And plaintiff further testified that the original note was handed to him with the indorsements already there, and that he then discounted it.

Some point is made of the fact appearing that the names of the payees in the series of notes were not always the same, nor the indorsements placed in filie same order upon the back ; and upon this is based the argument that a presumption arises that the obligation was a joint one, and not several, and that, no facts to> rebut such presumption having been given by plaintiff, the motion made to dismiss the complaint at the end of plaintiff’s case, and again when all the testimony was in, should have been granted. To this we think there are two answers: It must be remembered that, upon a renewal of the note, it was perfectly proper and competent for the plaintiff to insist; as a consideration for such extension, on a change in the form of the obligation ; and it was. equally competent for the' indorsers to comply with any such suggestion, and the agreement for the extension would have given support to any change in the indorsements. Secondly, although the defendant, in his statement of the rule as to the presumption, relies on a case in Missouri, we do not think that such is the law' in this state; but, on the contrary, the authorities are all the other way, holding that where, as here, the notes purport to bear the several signatures of parties as indorsers on promissory notes which are negotiable, the presumption is that the obligation is several, and not joint.

The defendant, though eliciting from the plaintiff the statement that the notes were not taken with the understanding that the indorsers were to be jointly liable, endeavored, by his own testimony, to show that he had conversations with the plaintiff in regard to the notes and the indorsements thereon; and several questions which were asked of him by his counsel, as to conversations with the plaintiff about the form of the notes, or as to whether they were to be made out to the order of plaintiff, and the general question as to what the plaintiff said in regard to the indorsement or the making of the notes, were excluded, and án exception to such ruling was taken. If the plea had been properly made, we think that these questions, directed, as they might fairly be held to have been, to eliciting what was the arrangement in regard to the taking of the notes by plaintiff, would have been competent and admissible. The specific objection, however, having been taken, that the plea in abatement was insufficient, these rulings were right.

As the case, therefore, stood, upon the evidence, the court was justified in denying defendant’s motion to dismiss the complaint, and in refusing to submit the case to the jury. This request to go .to the jury , after moving to dismiss, was in general terms; and as said in Mayer v. Dean, 115 N. Y. 556 ; 26 St. Rep. 375, “ did not state any question of fact desired to be submitted to the jury.” Upon the pleadings, therefore, and the evidence as presented, the rulings excluding or admitting evidence were correct, and nothing remained but to grant the request of plaintiff for a direction in his favor. The judgment was, therefore, right, and should be affirmed, with costs.

All concur.