author: RUMSEY, J. WILLIAMS, J. (dissenting).

text:
    Henry C. Hopkins, Resp't, v. James F. A. Clark et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Pleading-—Affirmative defense—Bouden of proof.
    Where, in an action to recover the balance of an account which the plaintiff claims ag-ainst the defendants, the defendants set up an affirmative defense that the plaintiff is liable for the purchase of bonds, the burden, not only of proving the purchase of the bonds but of proving either that that purchase was authorized, or, if not authorized, that it was subsequently ratified, so that the plaintiff is bound by it, lay upon the defendants.
    2. Brokers—Ratification.
    Ratification rests within the intention, where the question is between the original parties, and depends upon the fact and not upon appearances.
    3. Same.
    Before a party is called upon to ratify any unauthorized transaction which has been made for him, he is entitled to have all the facts put before hirq; and, after he has received that knowledge, he is entitled to a reasonable time in which to act before he can be compelled to take his position with regard to the transaction.
    4. Evidence—Letters.
    Letters, introduced in evidence, are not documents of which the construction is for the court, but they are portions of the evidence given to enable the jury to come to a conclusion whether or not a particular thing was said.
    5. Same.
    In such case, the party has a right to explain any apparent contradiction.
    6. Verdict—Setting aside.
    Where testimony is given by interested witnesses and there is a clear conflict, the finding' of the jury against the party who has the burden of proof should never be set aside unless it is opposed by such overwhelming testimony that it must be said that the jury were influenced by prejudice, passion or corruption to reach the conclusion which they did.
    Reargument.
    The action was brought to recover an amount alleged to be due and owing by defendants, as stockholders, to the plaintiff. The defendants loaned the plaintiff $4,368.59, and plaintiff deposited with defendants, as collateral to the loan, 200 shares Louisville, New Albany & Chicago Railway Campany stock, and 31 shares of the Oregon Railway & Navigation Company stock. The plaintiff offered to repay the loan, and demanded the return of his stock deposited as collateral. The defendants refused to surrender the collateral upon repayment of this loan, claiming they had also advanced for the plaintiff the further sum of $4,212.50 in the purchase of $10,000 par value of Philadelphia & Reading third preference income bonds, for which they paid 42 cents on the •dollar, their commission being $12.50, and that the collaterals were held as security for this indebtedness as well as the former $4,368.59. The plaintiff denied this additional indebtedness, and the issue tried related to this difference between the' parties. It was agreed that the total amount of the plaintiff’s claim upon his theory, including interest, was $3,075.02, and for this amount the jury rendered a verdict. There was a motion to dismiss the. plaintiff’s complaint made at the close of the plaintiff’s evidence, which was denied with exception. There was no motion made at the close of all the evidence to take the case from the jury. No •objection was made to the submission of the case to the jury. The charge is not in the record upon this appeal. There was a motion for a new trial upon the minutes upon the ground, among others, that the verdict was contrary to the evidence, and this motion was denied, with exception. This raised the question, which is discussed upon this appeal, and which the defendants claim calls for a reversal of the order, and the granting of the motion for a new trial.
    Paul D. Cravath, for app’lts; Michael H. Cardozo, for resp’t.
   RUMSEY, J.

The action was brought to recover the balance of an account which the plaintiff claimed against the defendants. It was conceded that for a considerable time before the month of February, 1893, the defendant Campbell had been in the employ of Brown, Riley & Co., who were brokers in the city of Boston. During that time the plaintiff, who was a personal acquaintance and friend of Campbell, had procured to have purchased by the firm of Brown, Riley & Co. 200 shares of stock of the Louisville, New Albany & Chicago Railroad Company upon a margin; and to secure Brown, Riley & Co. he had deposited with them as collateral 31 shares of stock of the Oregon Railway & navigation ‘Company. In February, 1893, there was due to Brown, Riley & Co. for their advances for the purchase of the Louisville, New Albany & Chicago stock about $4,200, while the value of the stocks held by them belonging to the plaintiff amounted to something in the neighborhood of $7,000; leaving about $3,000 apparently due to the plaintiff. In the early part of February, 1893, Campbell severed his conection with Brown, Riley & Co., and became a partner in the firm of Clark, Ward & Co., the present defendants, and the account of the plaintiff was transferred by Brown, Riley & Co. to Campbell’s new film, who paid to Brown, Riley & Co. the amount due on the stocks, and held them for the plaintiff, as the former firm had done. It appears that these 200 shares of stock which were bought upon a margin by Brown, Riley & Co. for the plaintiff had been carried by them for a long time, and it is fairly to be inferred from the testimony that it was the only speculative transaction which they had had in behalf of the plaintiff. The plaintiff testifies that he was induced to buy this particular stock upon speculation, because Mr. Campbell was a director of the company, and had advised him to buy it; and that he bought it and carried it upon the faith of Campbell’s recommendation. He says that he had no other speculative transaction, and this is not denied by Campbell, and must be assumed to be the truth of the case. On the 17th of February, 1893, the firm of Clark, Ward & Co. advised the plaintiff that they had on that day purchased for him 10,000 income bonds of the Philadelphia & Reading Railroad Company, for which they had paid $4,200. The day on which this purchase was made was Friday, The letter announcing it reached Philadelphia, where the plaintiff was, on Saturday, and he received it on the afternoon of that day,, too late to communicate with the defendants with regard to the transaction. The plaintiff claims that the transaction was not authorized; and, after some communication with the defendants about it, which will he referred to later, he made a demand upon them for the amount of money which he claimed to be due to him after crediting him with the 200 shares of Louisville, New Albany & Chicago Railroad Company stock and the Oregon Railway & Navigation Company stock; and upon their refusing to pay the amount he brought this action to recover it. The defense set up is that the defendants had purchased the Reading bonds; that such purchase had been authorized by the plaintiff, or was subsequently ratified by him; that the result of the purchase was a loss, so that in fact there was nothing due to the plaintiff as a balance upon the stocks which the defendants held on his account. "Upon the trial in the court of common pleas the plaintiff had a verdict for what was conceded to be due him if the purchase of the Reading bonds was not authorized, or had not been ratified. A motion for a new trial was made upon the ground that the verdict was against the weight of evidence, which was denied by the learned justice who presided at the court, and judgment was thereupon entered for the plaintiff. From that judgment, and the order denying a motion for a new trial, this appeal was taken.

It is apparent that the questions which must he decisive of this case are whether there was original authority given by the plaintiff to the defendants, through Campbell, to purchase the Reading bonds on his account, or, if no such autho-rity was given, whether that purchase was subsequently ratified. Just what questions were submitted to the jury by the trial judge does not appear in the record, because the charge is not printed; hut we have a right to assume upon this appeal that the defendants had° no fault to find either with the questions which were submitted or with the manner of their submission. It is fairly to he assumed that the two questions which are indicated above, and which lay at the foundation of the case, were submitted to the jury, and properly so; and the question to be decided here is whether the evidence warranted a finding by the jury in favor of the plaintiff upon each of those questions. So far as the parol testimony is concerned, hut two witnesses were sworn,—the plaintiff on his own behalf, and Campbell on behalf of the defendants. Both agreed that shortly before the 17th of February, 1893, the plaintiff called upon Campbell at the office of the defendants in the city of Boston, and that there took place a conversation with regard to the business transactions between the defendants’ firm and the plaintiff. As to what was said at that time the parties are sadly in conflict. The plaintiff says that the first result of the conversation was that Campbell was to buy for him, if he saw an opportunity, some stock of the Lampson Cask-Carrier Company, which would cost from $1,400 to $1,500 for a hundred shares; that he told Campbell he would like to have him buy him a hundred shares of it; that no other stock was talked ofj and that he had repeatedly and distinctly told Campbell that he should not, under any circumstances, speculate, because, being a marriecT man, and having a child, he did not think it would be proper for him to speculate, and he refused in every way to do it, and that Campbell understood that distinctly. The plaintiff states positively that at that time there was nothing said about buying any bonds, and that there was no authority given to buy any stock except that of the Lampson Cash-Carrier Company. Mr. Campbell says that the business of the plaintiff with Clark, Ward & Co. was generally talked over, and that, after discussing as to purchases and business for the plaintiff’s account, the plaintiff offered to transfer that account, using the equity in it as security for any further purchases that he might make; that the plaintiff “came in to discuss generally the market, the situation in stocks, and stated that now he was out of business, having been in the dry-goods business, and that he had a family to support, and that, if possible, he would like to malee a dollar, and if I would help him he would like to have me do it.” He says that then followed a general discussion of the general condition of various stocks, and that during this general conversation plaintiff stated to Campbell that what he meant was that, if Campbell saw a chance to make a dollar for him, he would want to do it, and that Campbell replied, “Yes.” Campbell further says that the plaintiff stated during that conversation a desire to make money by purchasing stocks for a rise. Ho other testimony was given bp Campbell as to this conversation, and there is no claim that there was any further communication with the plaintiff about business until after the purchase of the Reading bonds, which were made on the 17th of February, 1893. As was said, the notice of this purchase reached the plaintiff on Saturday, the day after it was made, and after business hour's, so that he was unable to communicate with defendants until Monday, February 20th. The plaintiff says that on that day he had a telephone communication with 'Campbell, in which he said that Campbell had no authority to buy anyting but the Lampson carrier stock; that thev had never talked about Reading, or any other stock than that, and that he declined to have anything to do with it; that he wanted nothing to do with reading; that he wanted no speculation; that defendants had no auhoritv for that, and that he would have nothing whatever to do with Reading or any other speculative stock. Campbell admitted that there wras a conversation over the telephone on Monday, says positively that no such conversation took place as stated by plaintiff, but that he discussed the situation or condition of the Reading Company, and the prospect and current rumors in Philadelphia, his disturbance over the situation, and his fear that the security might go still lower, and, finally, that he should rely upon the defendants to look after the thing for him. Campbell says positively that the plaintiff did not repudiate the transaction in any way. This was the sum of oral testimony with regard to the matter. Upon this testimony it is quite clear that there was not only a conflict, but a sharp conflict, of evidence for the jury to decide. But the defendants, admitting that, claim that the correspondence which' is in evidence, and which it is conceded took place between thei parties with regard to the same transaction, is such as conclusively to contradict the plaintiff’s story that he repudiated the, transaction, and conclusively to corroborate Campbell’s story that plaintiff ratified the purchase.

While considering the weight to be given to this testimony, it is necessary to bear in mind the precise question to be presented to the jury, and the position which each party took with regard to it. The fact that the plaintiff was liable for the purchase of these bonds was set up by the defendants as an affirmative defense. Upon them, therefore, .lay the burden, not only of proving the purchase of the bonds, but of proving either that that purchase was authorized, or, if not authorized, that it was subsequently ratified, so that the plaintiff was bound by it. All the testimony with re-1 gard to the original authorization has been stated in the former part of this opinion, and it is quite clear that the jury might have found from that that Campbell was not authorized to make any such purchase, or any purchase. Indeed, it seems to us that upon that branch of the case there can be no question that the defendants entirely failed to show an original authorization. '• It appears in the case that the plaintiff had never had but one speculative transaction. Nobody pretends anything to the contrary. .«All the authorization that the defendants claim is that which was sworn to by Campbell, and it is very evident that what was said to Campbell does not amount to an authority to buy stock upon speculation, unless a much broader construction is given to it than the words would seem to indicate. The most that Campbell says is that the plaintiff told him he would like to malee a dollar if he could, and that, if Campbell would help him, he would like to have him do it. This, standing by itself, is a long way from giving authority to a man to make any speculative transaction, and, taken in consideration with the fact that neither the defendants’ firm nor Campbell had ever done any such business generally for the plaintiff, it practically required the jury to find that there was no original authority. In order that the defendants might succeed, therefore, they were obliged to show that this transaction was ratified by the plaintiff. The burden of proof lay upon them from the beginning to the end of the case to do1 this thing, and in analyzing this evidence it is necessary to bear this in mind. Upon that point the defendants held the affirmative throughout the trial, and their relation to the question never changed. Of course, it happens frequently during the progress of a trial that the party on whom the burden of proof rests gives evidence tending’ to establish his allegation, sufficient sometimes to establish it prima, facie; and it is sometimes said under those circumstances, loosely spealdng, that the burden of proof is shifted; but, as is said by Church, C. J., in Heinemann v. Heard, 62 N. Y. 455:

“All that is meant by this is that there is a necessity of evidence to answer the prima facie case, or it will prevail; but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this burden remains throughout the trial.”

What was the fact to be established by the defendants ? It was that the plaintiff, having given no original authority to purchase this stock, ratified the act of the defendants after he had been advised of it. In this case no rights of third parties are involved. Under such circumstances, a ratification rests upon the actual and • existing purpose to approve the act that has been done. It is a thing which rests within the intention, where the question is between the original parties, and depends upon the fact, and not upon appearances. Glenn v. Garth, 133 N. Y. 18; 44 St. Rep. 80. Before one is called upon to ratify any unauthorized transaction which has been made for him, he is entitled to have all the facts put before him; and after he has received that knowledge he is entitled to a reasonable time in which to act before he can be compelled to take his position with regard to the transaction. 1 Am. & Eng. Enc. Law (2d Ed.),p. 1205. So the, question here was whether the defendants had satisfied the jury by a fair preponderance of evidence, when this case closed, that the plaintiff, with knowledge of all the circumstances, having a reasonable time to consider the matter, had ratified this transaction, which in his name had been entered into without authority. The defendants claim that the story of the plaintiff is so contradicted by the letters which are presented in the case that his evidence is entirely overthrown, and a verdict based upon it cannot stand. The first letter was written on the 20th of February, 1893, which was Monday. It was two days after the plaintiff had received notice of the transacton. It is the first communication, except the telephonic communication, which he had made. It refers to the telephonic communication. It does not, however, state that by the talk through the telephone the Reading purchase had been repudiated, but gives another version of it. ¡Neither is it said in the letter that the transaction is repudiated. On the other hand, there is nothing in the letter from which it can be inferred that the transaction is adopted. Reasons are given why no such purchase should have been made, and there is considerable discussion of the condition of the Reading Company, and it is evident from the letter that the plaintiff was very much worried over the transaction, and not at all certain as to the situation which he occupied about it. This letter is followed by one written by Campbell on the 21st of February, acknowledging the receipt of plaintiff’s letter of the 20th; and it is said that the fact that that letter makes no reference to a repudiation of the^ purchase by the telephonic communication affords almost conclusive evidence that no such repudiation had been made, for, if it had,. Campbell would surely have referred to it. It must be remembered that these letters are not dispositive documents which are to stand as the basis of rights acquired under them. They are simply put in evidence for the purpose of elucidating, so far as may be, the state of mind of the parties at the time they were written, and showing the precise nature of the transactions which took place between them. They were not documents of which the construction is for the court, but they are portions of the evidence given to enable the jury to come to a conclusion whether or not a particular thing was said; and the fact that they maize no statement of the saying of it, while it may be strong evidence tending to show that nothing of the kind was said, nevertheless, is nothing but evidence, and is to be considered by the tribunal whose duty it is to pass upon the evidence precisely as any other testimony which is offered and referred to. In such case it is the right of the party to explain the apparent contradiction. The weight to be given to his explanation is necessarily matter for the jury. If the explanation is satisfactory to them, the apparent contradiction is removed; if not satisfactory, the contradiction still remains, and the conflict of evidence is still there; and it is left for the jury'to say where, under all the circumstances, in view of the conflict and contradiction, they think the fact lies. In this particular case, if no testimony whatever had been given, the defendants surely would have been defeated. Even had the case stood upon the testimony of Campbell alone, it is well settled that his evidences must have been submitted to the jury, and that it would have been error to order a verdict, because he was an interested party. Kavanagh v. Wilson, 70 N. Y. 177; Wilcox v. Selleck, 92 Hun, 37; 71 St. Rep. 800. We have, then, this peculiar state of facts: The defendants had the burden of proof. They sought to establish the necessary fact bv the testimony of a witness which, if it had been uncontradicted, must necessarily have been submitted to the jury to say whether they would accept it as the basis for a verdict in favor of the defendants. It was contradicted. There was opposed to it the testimony of the plaintiff, equally positive, equally clear, and whereby a serious conflict of testimony was raised. The objection is that the evidence of the plaintiff is not worthy of belief, because it was conclusively contradicted by the letters which were in the case. One answer is that, if that were so, still the weight to be given to the testimony of the defendants, upon whom rested the burden of proof, was entirely for the jury. Another answer is that whether or not these letters, written under the circumstances here appearing, conclusively contradict' the testimony of the plaintiff, must be decided like any other question of fact. In such a case as this, where testimony is given by interested witnesses, and there is a clear conflict, a finding of the jury, against the party who has the burden of proof should never be set aside unless it is opposed by such overwhelming testimony that it must be said that the jury were influenced by prejudice, passion, or corruption to reach the conclusion which they did. In our judgment, that condition of affairs does not exist here. Because of the persons by whom the testimony was given, and because of the nature of the testimony that was given, the case was peculiarly one for the consideration of the jury, and when they have decided it their conclusion ought not to be interfered with.

The judgment and order should be affirmed, with costs.

PATTERSON and INGRAHAM, JJ., concur.

WILLIAMS, J. (dissenting).

The questions of fact tried and submitted to the jury were: (1) Whether the defendants were originally authorized to purchase the $10,000 of bonds for the account of plaintiff; and, if not, (2) whether, the purchase having been made under the claim of authority, the plaintiff ratified the purchase.' The only witnesses sworn were the plaintiff and the defendant Campbell, but there were some letters written by these witnesses which were put in evidence. The appellants claim that the jury, in rendering the verdict, must have proceeded upon the theory that there was no authority for the purchase originally, and that the purchase was not ratified, but was repudiated, by the plaintiff. The appellants are very likely correct as to the theory upon which the verdict was arrived at. It is not claimed there was original authority to purchase these specific bonds. There was no talk about these bonds before they were purchased. On the 14th day of February, 1893, the parties had an interview in Boston. They do not agree as. to the particulars of this interview. The plaintiff, in brief, testifies that there was talk about having defendants purchase for plaintiff 100 shares of certain stock, but no other stock or bonds were talked about, and he (plaintiff) stated that he would not speculate in any possible way; while the defendant testifies that there was a general discussion of the stock market, and plaintiff said he would like to make a dollar if defendant could help him do'it; and that he wanted defendant to buy something for him that he could make a profit upon, if he could. The defendants claim that as a result of this interview they had general authority to purchase anything they thought would pay the plaintiff a profit. These witnesses are both parties to the action. Their credibility was for the jury, and the jury had a right to believe the plaintiff and to disbelieve the defendant; and their finding as to the real nature of this interview will not be disturbed by this court on appeal, unless the subsequent transactions between the parties, as developed from their other evidence and their correspondence, were such as to require the jury to credit the defendants’ evidence rather than the plaintiff’s with reference to this particular interview. The plaintiff, after this interview, left Boston, and went to Philadelphia. On the 17th day of February, 1893,—Friday of the week,—the defendants purchased the $10,000 of bonds, for the account of the plaintiff. On the same day this defendant wrote plaintiff the purchase had been made for him, that he (the defendant) regarded the purchase as a good one, that he would look after the bonds, and would sell them when they went up. This letter was received by plaintiff the next day, Saturday, after business hours, and too late to telephone that day. On Monday morning the plaintiff talked with this defendant over a long-distance telephone between Boston and Philadelphia. Both parties testify as to'this interview, and they do not agree as to its details. The plaintiff testifies that he said to this defendant that he defendant) had no authority to make the purcase; that he (plaintiff) wanted nothing to do with these bonds, wanted nc speculation, and asked defendant what he was going to do; that this defendant said he was going to buy more for Mm (plaintiff), and hold them; and that he (plaintiff) replied that he would have nothing to do with these bonds or any other speculation. While this defendant testifies that the plaintiff in this interview discussed the situation or condition of the company whose bonds had been purchased, the pTospects and current rumors in Philadelphia, and Ms disturbance over the situation, his fear that the bonds might go still lower, and said finally that he should want to rely upon him (the defendant) to look after the bonds for him, and that he did not in any way repudiate the purchase. Here, again, the credibility of these witnesses was for the jury, and either might be believed or disbelieved, unless other evidence in the case required the jury to believe one and disbelieve the other. On the same day—Monday, February 20, 1893—the plaintiff wrote this defendant a letter, which was put in evidence upon the trial, wherein the plaintiff' discussed the rumors in Philadelphia as to the Reading Railroad Company, whose bonds had been purchased, and said:

“You can imagine my surprise when I found you had bought (the bonds), when, as I say it was known * * * there seemed no probable way that (the company) could escape bankruptcy. * * * Gould you expect me to buy into a lawsuit? Yon know my position. * * * Please let me hear from you by return mail. Pve got a fair amount of nerve, but Fll allow 1 have sensations to-night which I hope you may never experienced

There was reference made in this letter to the telephone interview, but no claim made that he (the plaintiff) had in that interview asserted want of authority in this defendant to purchase the bonds, -or that he had repudiated the purchase for himself. The next day—Tuesday, February 21, 1893—this defendant replied to this letter, and, having discussed the situation of the Reading Railroad Company, said:

“Prices are steadier to-day, and the general feeling is that the worst is over, and that from now on we shall see an improvement.. It might he policy on the snap rise to let the bonds go with a view to buying back at a profit, but I would not advise this, except on a good sharp advance. I will watch things for you, and keep you posted, and don’t think in the end you will be a loser. * * *”

Two days later, and on Thursday, February 28, 1893, plaintiff telegraphed defendant’s firm:

“I positively decline to accept purchase of * * * bonds. Have written you.”

And on the same day the plaintiff wrote the defendant’s firm:.

“In view of our conversation when I was in Boston last week, I have wired you this morning that I positively decline to accept purchase of * * * bonds. I distinctly told you that I did not wish under any circumstances to engage in a speculation. * * * The whole tenor of our conversation was against anything involving risk in a speculative way. The only definite transaction that entered into our conversation was that * * * (as to a particular stock) I would be willing to take a small quantity. * * *”

To this letter the defendant made a reply the next day, expressing surprise, reiterating his position, etc. It is unnecessary to follow the correspondence further. If there was a general authority resulting from the interview in Boston, February 14,1893, to purchase securities, no particular ones being agreed upon, it is doubtful, in the absence of fraud, if he could repudiate the purchase at all. If there was no such general authority in fact, but the "defendants assumed to have such authority, then, upon being notified of this purchase of the bonds on Saturday, the 18th of February, 1893, it was the duty of the plaintiff, if he desired to repudiate-the purchase, to do so at once, promptly; and it was too late for him to do so for the first time on the following Thursday, February 23, 1893. Unless he did so on Monday, February 20, 1893, in the telephone" interview, he was bound by the purchase. It seems to us, however, considering the transactions between the parties subsequent thereto, as disclosed by the correspondence to which, we have referred, the conclusion is irresistable that there was such general authority growing out of the interview in Boston, and, moreover, that there was-no repudiation of the purchase in the-telephone interview on Monday, February 20, 1893. The plaintiff might have lised the telegraph on Saturday, February 18, 1893, to squarely deny any authority, and repudiate the purchase, and it is inconceivable that the plaintiff would have written the letter of Monday, February 20, 1893, if there had been no such general authority, or if, in the telephone interview of the same morning, the plaintiff had actually denied such authority, and repudiated the purchase, as he claims he had done. The letter contains no intimation of denial of authority or repudiation* no suQ'fi’estion that the telephone interview was to that effect. The letter expressed simple surprise that the bonds had heen purchased in view of the rumors in Philadelphia, and his ideas of the condition of the Reading Railroad Company, whose bonds had heen purchased, and the letter closes with the statement that he (plaintiff) could not he expected to buy into a lawsuit; that he (plaintiff) had a fair amount of nerve, hut he had sensations which he hoped defendant would never experience, and asks for a reply. This letter was written Monday night, while the telephone interview had taken place early in the same day. Moreover, the defendant’s letter the next day, Tuesday, in reply, makes no reference to any denial of authority to purchase, or repudiation of the purchase, as having heen made in the telephone interview, contains reassurances to plaintiff that he would not he a loser in the end, and promises to. watch things for plaintiff, and keep him posted. And to this leter plaintiff made no reply. Two days later, the plaintiff, for the first time, by telegram and letter, expressly declines to accept the purchase. This was too late, as we have said. Letters are troublesome evidence. They cannot he gotten rid of by parol evidence. They must he relied upon as telling the truth; while parol evidence may he easily manufactured. These letters were concededly written. They are entirely inconsistent with plaintiff’s parol evidence. They lead irresistably to the conclusion that there was general authority originally to purchase securities, and that there was not a sufficiently prompt denial of such authority, or repudiation of the purchase. We do not think the jury were at liberty to disregard the effect of this correspondence and of the transactions subsequent to February 14,1893, and to believe the parol evidence of the plaintiff and disbelieve that of the defendant. Boyd v. Colt, 20 How. Prac. 384. These suggestions lead to the conclusion that the verdict of the jury was contrary to the evidence in the case, and should have heen set aside, and a new trial ordered.

The order appealed from should be reversed, and an order entered setting aside the verdict, and directing a new trial, upon payment of costs of the trial, an appellants should have costs of this appeal to abide event.

VAN BRUNT, P. ., concurs.


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    In the Matter of an Application to Compel Accounting of Frank N. Gunnison, as Executor of Laura Matthewson, Deceased.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed June 17, 1896.)
    1. Exectjtobs—Commissions.
    Commissioners to executors should he denied, unless their services have heen performed in such a manner as those interested in the estate had a right to expect.

      S. Same—Expenses oe accounting—By whom paid.
    Where such is not the case, and a contest becomes necessary by the conduct of the executor, the costs of the accounting should be paid out of his estate and not charged against the estate of his testator.
    Appeal from a decree of the surTogate entered in a proceeding to compel an accounting of an executor.
    S. B. McIntyre, for app’lt; T. H. Bennett, for resp’t.
   GREEN, J.

Alfred and Laura Matthewson were husband and wife. Alfred died on or about October 9, 1881, leaving a last will and codicil thereto, wherein, after directing the payment of his debts and funeral expenses, he devised and bequeathed all the rest, residue, and remainer of his estate to his wife, Laura, to have the use, rents, profits, an income thereof during her natural life, and, after her death, unto certain legatees and devisees named therein. The will and codicil were admitted to probate on January 3, 1882, and letters testamentary issued thereon to Laura. Laura Matthewson also made a will, about six months after her husband had made his, the material provisions of which are so like the corresponding provisions of her husband’s will as to create a strong presumption of a mutual understanding between them as to the provisions each made for the benefit of the survivor. Laura outlived her husband nine years and six months, and died on the 3d day of April, 1891. By the terms of Laura’s will, she appointed the respondent, Frank N. Gunnison, the executor thereof. Her will was never changed, and was duly admitted to probate, and letters duly issued thereon to Gunnison, as executor, on the 20th day of April, 1891. There was no issue of the marriage of Alfred and Laura Matthewson. Mark Matthewson was on May 14, 1891, duly appointed administrator with the will of Alfred Matthewson annexed, and, in the month of September following, instituted this proceeding, by filing his petition in the surrogate’s court, praying that the executor of Laura’s will he required to render an account of her proceedings as executrix of Alfred’s will, and to pay over the remainder to Alfred’s representative. Thereupon a citation to show cause was issued by the surrogate, and served upon the executor, returnable October 5, 1891; and, on that day, the executor rendered and filed his account, showing a balance of $1,181 to be turned over to the administrator, subject, however, as claimed in such account, to the deduction of the legal commissions and expenses of the accounting. The balance thus shown consisted of $1,000 in the mortgage of Jacob L. Case, and the remainder in cash. The administrator subsequently filed his objections to the executor’s account, and claimed that said account should he surcharged with numerous items. A contest over the account was had before the surrogate, who thereafter made and filed his decree therein.

An examination of the voluminous evidence upon such contest discloses the fact that the main contention was whether the items-the administrator claimed should be surcharged upon the accounts of the executor were moneys and property belonging to Alfred or to Laura. The surrogate has passed upon such question of fact, and also upon the question of law presented upon the trial, and an examination thereof discloses no reason for interfering with such decision. We are, however, of the opinion that the trial discloses such a condition of affairs as to preclude Laura, the executrix of Alfred’s will, or her representative in her behalf, from claiming commissions. It appears that Laura treated the-estate of Alfred as though devised to her absolutely. She made no inventory of the estate of which she was executrix. Ko appraisal thereof was ever made. The property to which she, as widow, was entitled, was never set oif to her in the manner provided by statute. She kept no accounts as executrix of said estate. The moneys and the property of that estate were mingled with her own at all times. Ko discrimination or division was-made between income and principal. Ko report of her proceedings as executrix was -ever made to the surrogate. Ko account was ever made and filed by her as such executrix. By the terms of the will, she was made the trustee, for the benefit of the residuary legatees of the estate coming into her hands as such executrix. The commissions which her representative now asks should be allowed against the estate of Alfred are for services in the discharge of her trust. Commissions are given to representatives as a compensation for their services in protecting the-estates of those for whom they are acting as trustees, and the cestuis que trustent are entitled to the performance of such services in the preservation of the estate, in such manner as an ordinarily prudent and careful man would exercise under the lilceconditions and circumstances. In this case no such services were ■performed. The law provides for the manner in which such a trustee shall act towards the trust estate. It is the duty of such a trustee, upon the receipt of such an estate represented by him,to make and file in the prooer court an inventory of the property coming into the hands of such trustee, so that those who are interested in the estate may, at the very outset of a trusteeship,, be able to ascertain what property they are -entitled to. After the-making of such an inventory, the trustee should have the property appraised, and such property as the widow, as such, is entitled to, should be set apart by the appraisers. If these requirements' had been fulfilled at the outset of the trusteeship, the character- and extent of the property would have been fully disclosed. It could easily have been ascertained what was principal and what was income, what was the property of the residuary legatees, and upon what property the life tenant was entitled to income. In the proper discharge of her duties as trustee, an account showing the manner in which she was discharging such trust should have been made by her, and an accounting had before the proper court, that those who were interested in the property might thus be apprised of the manner in which it was being administered by the trustee, and whether the life tenant was using only such moneys as belonged to her under the terms of the will, or whether she Avas encroaching upon the corpus of the estate, which belonged to the residuary legatees. ¡None of these things Avere done by this trustee. For more than nine years she treated all of this property as though she was the sole and' exclusive owner, and entitled to the whole of the estate. We think that the, management of this estate has been prejudicial to the interests of those entitled to the residue and remainder of the estate. We are of the opinion that negligence has been shoAvn by this trustee in caring for the property intrusted to her. These commissions, being for services, should be denied, unless the services have been performed in such a manner as those interested in the residue of the estate had a right to expect. These services have not been so performed, and we think that these parties should not be called upon to pay from this estate the commissions of this trustee. To allow commissions • under such circumstances would be countenancing and 'abetting negligent acts of this trustee in the management of this estate.

The surrogate has also decreed that the allowances, costs, and disbursements of the executor of Laura’s estate and of the contestant in this proceeding be paid out of the estate of Alfred. It appears that for more than nine years the trustee failed to keep an account of her disbursements and receipts as trustee, and never filed an account as such, and the remainder-men were in ignorance of the condition of the estate of Alfred during all those years. It appears ,further, that for about four months after the appointment and qualification of the executor of Laura’s will he neglected to malee an account of her trusteeship, and of the condition of the property of Alfred which had come into the hands of Laura, as executrix of his will. After the lapse of that time, the administrator was compelled to, and did, institute proceedings to compel this executor to make and file his account, and to produce and tuTn over into the proper hands the balance and the remainder of the estate of Alfred. This the administrator had a right to do. ¡Not only that; it was his duty to act promptly and vigorously when he ascertained that the executor was refusing and neglecting to turn' over into the hands of the proper representative the trust funds which had been held so many years by the testatrix, Laura. In obedience to a citation of the surrogate’s court, and not until then, did the executor render and file his account in pursuance to the order of the surrogate. In that account he showed a balance of $1,181, which was certified and sAvorn to by him as being the only amount in his hands which the administrator Avit the will annexed of Alfred Matthewson, deceased, was entitled to. Upon examination, the administrator became convinced that such account did not contain a true statement of the moneys of Alfred Mai thewson Avhich had come into the hands of his testatrix; and thereupon he objected to the allowance of such account and asked that the same be surcharged with certain specified items. There is nothing to show that even then, when the executor had been apprised of the claim of the administrator, did the executor offer to allow or surcharge his account with any of the items or amounts of the moneys alleged by the administrator to belong to him as such, or which should be turned over to him as such administrator. A contest, therefore, became necessary, and was had, and the surrogate finds in his eleventh finding of fact as follows: “That the surcharge of said contestant allowed amounts to $800.15;” and yet the surrogate has found that the costs and disbursements of these proceedings, made necessary by the negligent conduct of the administratrix of Alfred’s will in the first instance, and by the delay and the refusal of her executor to file an account, and voluntarily have a judicial settlement of his accounts, and of the moneys held by him Avhich ought to have been turned over to the representative of Alfred, should be entirely paid out of the estate of Alfred Matthew-son. This proceeding, it seems to me, is analogous, upon this question of costs, to an action where the representative of a deceased person is obliged, in carrying out his duties as such representative, to institute an action to compel a delinquent creditor or trustee, who unlawfully Avithholds trust moneys, to pay over such moneys to such representative. These proceedings were not rendered necessary by any act of this administrator, but they were made' necessary by the misconduct and negligence of the executrix. This plainly appears from the record of these proceedings and the history of these estates, and we can see no reason why this representative, who was acting faithfully in the discharge of his duties, should not be reimbursed for his costs and disbursements out of the estate of one who rendered it necessary that such costs and disbursements should be made.

We are of opinion that the parts of the decree allowing the executrix commissions, and ordering the same paid out of the estate of Alfred Matthewson, should be reversed, and that the decree should be modified by striking out the provision for commissions therein contained; the decree should be further modified by striking out the provision that the counsel fee, allowances, costs, and disbursements of the executor and of said contestant be paid out of the estate of Alfred MattheAvson; and that such decree should be further amended by directing that the costs, alloAvances, counsel fees, and disbursements of the executor and of the contestant be paid out of the estate of Laura Matthewson; and, as so modified and amended, the decree should be affirmed. The proceedings are remitted to the surrogate of Ontario county for resettlement of the decree in accordance with this recommendation. As each of the parties succeeds in part and fails in part in this appeal, neither is entitled to the costs of this appeal against the other.

All concur.


text:
    Edwin H. Hewett, as Administrator, Resp't, v. John Chadwick, Impleaded, etc., App'lt.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed June 17, 1896.)
    1. Appeal—Documentary Evidence.
    Where no question has been raised on the trial over the appointment of the plaintiff as administrator and there is no evidence in the record that he was so appointed, the plaintiff may file with the appellate court a certified copy of the decree appointing- him administrator, in order to sustain the judgment.
    3. Interest—Rate.
    Where the principal of a mortgage is not paid when due according to the terms of the contract, the interest after that time upon the amount unpaid can only be recovered as damag-es at the rate of interest allowed by law.
    Appeal from a judgment in favor of plaintiff.
    W. B. Simson, for app’lt; P. M. Sullivan, for resp’t.
   GREEN, J.

action was begun October 30,1894, to foreclose a mortgage on real estate, and the complaint contains the usual allegations in such cases. It is alleged in the complaint that the mortgage was originally given to Edwin H. Hewett, and he assigned it to Mary Hewett, who thereafter died, and that December 24, 1892, the plaintiff was appointed the administrator of her estate. The defendant, by his answer, alleges that he has not sufficient knowledge as to whether the plaintiff was so appointed, to form a belief, and alleges as an affirmative defense that the mortgage has been paid. The only issue tried before the referee was the one of payment, which was found in favor of the plaintiff, upon evidence sufficient to sustain the finding. Ho question seems to have been raised on the trial over the appointment of the plaintiff as administrator, and we find no evidence in the record that he was so appointed; but, the plaintiff having filed with this court a certified copy of the decree appointing him administrator, as it is permissible to do to sustain a judgment (Baylies, New Trials, 161), it is sufficient. The referee has, however, committed an error either in the computation of interest or in computing the same contrary to the rule fixing the rate per cent, allowable under the evidence in this case. The mortgage bears date September 17, 1874. By its provisions interest was to be paid semiannually upon all unpaid sums to the time of each payment. Ho rate of interest was expressed in the mortgage. It became due, by its terms, March 17, 1875. The referee has evidently computed interest at the rate of seven per cent, per annum to the date of his report. The principal was not paid when due according to the terms of the contract. The contract was violated, and the interest after that upon the amount unpaid could only be recovered as damages and at the rate of interest allowed by law. The rate of interest was, on the 1st day of January, 1880, reduced to six per cent., and from that date plaintiff was entitled to interest at that rate, and not at the higher rate pre; vailing at the date of the contract. Adopting this rule in the computation of interest, we find that the amount of principal and interest due and unpaid upon this mortgage at the date of referee’s report was the sum of $737.79.

The judgment herein should be modified by decreeing that the amount due the plaintiff is the sum of $737.79, instead of the sum of $913.21, and, as so modified, judgment is affirmed.

All concur.


author: PER CURIAM.

text:
    In the Matter of Voluntary Dissolution of Gies Lithographic Company.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed June 17, 1896.)
    1. Lien—Priority—Execution—Receiver.
    When an execution is delivered to the sheriff of the county, it becomes a lien on all the judgment debtors goods and chattels within such county, which is not divested by an order appointing a receiver subsequently granted and entered.
    2. Same.
    In such case the lien which is prior in time must prevail.
    Appeal from an order, adjudging that an execution issued out •of the county court against the Gies Lithographic Company is a Een on the real and personal property of such company, superior to the right of a receiver of the judgment debtor, and ordering the receiver to pay the plaintiff out of the first moneys in his hands 'as such receiver.
    Norris Morey, for app’lt; W. C. Miner, for resp’t.
   PER CURIAM.

The Gies Lithographic Company was inoorporated pursuant to the business corporations law of this state, and had its principal business office at Buffalo, N. Y. November 22, 1895, George Bleistein, as president of the Courier Company, began an action in the municipal court of Buffalo against said corporation by the personal service of a summons to recover a sum due for goods sold by the plaintiff to the defendant. November 22, 1895, judgment was recovered in the action for $351.88 damages and costs, which was entered and docketed in the office of the clerk of the county of Erie before ten minutes past 10 o’clock in the forenoon of that day, at which time an execution on the judgment was issued and delivered to the sheriff of that county. November 22, 1895, the directors of the corporation filed a petition praying for its voluntary dissolution on the ground of its insolvency, and for the appointment of a receiver thereof. At fifteen minutes past 12 o’clock in .the afternoon of that day an order was filed with the clerk of said county appointing Homer E. Dudley temporary receiver of the corporation, and restraining its creditors from bringing actions against it, and also from taking further proceedings in actions theretofore brought. The fourth subdivision of the order provided:

“(4) That before entering upon the duties of his trust said receiver execute and file with the clerk of this court a bond with sufficient surety to the people of the state of New York in the sum of twenty thousand ($20,000) dollars, conditioned for the faithful discharge by said receiver of the duties of his trust, such bond to .be approved as to its sufficiency, form, and manner of its execution by a judge of this court; and upon the filing of such bond so approved the said receiver is authorized to take possession and sequester the property of the said corporation, the Gies Lithographing Company, and to take and hold all property held by and in the possession of said corporation; all funds of the said corporation not needed for immediate disbursements to be deposited in the Marine Bank of Buffalo, N. Y.”

At about thirty minutes past 2 o’clock in the afternoon of that clay the receiver filed his bond with the clerk of said county, and immediately thereafter entered upon the discharge of his duties. At forty-five minutes past 4 o’clock in the afternoon of that day a copy of the order appointing a receiver was served on the attorneys who had appeared in the action and recovered the judgment in favor of George Bleistein as president. It is not disputed that the judgment debtor had sufficient chattels in Erie county, subject to levy and sale upon an execution, out of which the judgment could have been satisfied. The only question involved in this appeal is, which acquired the first lien on the chattels, the judgment creditor under his execution, or the receiver under his order? It is suggested that this judgment is void under section 48 of the stock corporation law (Laws 892, chap. 688), which provides :

“Ho conveyance, assignment or transfer of any property of any such corporation by it or by any officer, director or stockholder thereof, nor any payment made, judgment suffered, lien created or security given by it or by any officer, director or stockholder when the corporation is insolvent or its insolvency is imminent, with the intent of giving a preference to any particular creditor over other creditors of the corporation shall be void.”

There is no evidence that the corporation or any of its officers suffered this judgment to be recovered with intent to give a preference to this judgment creditor. It is not asserted that the debt for which the judgment was recovered was not justly due and owing by the corporation to the judgment creditor, and the inference from the facts stated in the record is that the corporation not only did not intend to give this creditor a preference but intended to defeat the attempt to collect this debt by means of a judgment. The judgment was not recovered in violation of the statutory provision quoted. When the execution was delivered to the sheriff of the county of Erie it became a lien on all of the judgment debtor’s goods and chattels within that county (Code Civ. Proc., § 1405), which was not divested hy the order appointing a receiver subsequently granted and entered. Walling v. Miller, 108 N. Y. 173; 13 St. Rep. 92; In re Lewis & Fowler Manuf’g Co., 89 Hun, 208; 69 St. Rep. 44. In re Christian Jensen Co., 128 N. Y. 550; 40 St. Rep. 621, the receiver was appointed two days before the writs of replevin and attachment were issued, and he filed his bond and qualified the day before they were issued, and he took possession of the property the day the writs were issued, and that case does not sustain the appellant’s position. We have before ns two processes of this court, both of which became liens on the goods and chattels of the judgment debtor, and one is as much entitled to the protection and favor of the court as the other. The equities of the parties are equal, and the lien which is prior in time must prevail.

The order is affirmed, with costs and printing disbursements against the receiver, payable out of the estate in his hands.

All concur.


author: WILLIAMS, J.

text:
    Sarah Emily Smith, as Administratrix, etc., App'lt, v. Metropolitan Street Railway Company, Resp't.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Trial—Dismissal of complaint.
    The plaintiff, in considering whether the complaint should have been dismissed without a submission of the case to the jury, is entitled to have the benefit of the facts most favorable to him, which the jury would have been justified in finding upon the evidence.
    2. Negligence—Ordinary Care.
    If, by the exercise of ordinary care, a gripman can avoid an accident, it is his legal duty to exercise such care and the failure to exercise it is negligence.
    3. Same—Contradictory.
    A traveler has a right to rely upon the exercise by the gripman of ordinary care to avoid a collision.
    4. Same.
    The strict rule applicable to steam railroads and travelers in the highway are not applicable to street railways and wag'ons. traveling along- the streets of a city.
    6. Same.
    In the latter case, care is required to be exercised on both side» to avoid collisions, and whether it is negligent on the part of drivers of teams to attempt to cross a street railway track when a car is approaching, is dependent upon the circumstances of each particular case, and is a question of fact to be determined by the» jury and not by the court.
    Appeal from a, judgment entered on a decision of the court, dismissing the complaint on the merits on a trial before a jury.
    The action* was brought to recover damages resulting- from the death of the plaintiff’s intestate, alleged to have been caused by the negligence of the defendant. At the time of the accident resulting in the death the defendant was operating-a street railway by cable along and through Broadway, in New York City, and the deceased was engaged in driving a United States mail wagon. The accident occurred at the junction of Broadway and Bleecker street, about 9:50 o’clock of the night of December 30, 1894, and the death resulted January 2, 1895. The evidence given in the case tended to show the following facts relating to the negligence of the defendant and the absence of contributory negligence on the part of the deceased: The night was clear, and there was an electric street light at the junction of the two streets, so that the gripman and the deceased could see as well as though it had been daylight. The route deceased was driving before the accident took liim through Houston street to Broadway, up Broadway to Bleecker street, and through Bleecker street to station 0, at Hudson and Bank streets. At the corner of Broadway and Houston street he met a cable car in charge of gripman Ryan, the car going up street on the easterly track. The two men spoke to each other. Deceased drove along up Broadway ahead of the car, and on the easterly side of the street and tracks, at an ordinary jog trot. The car went along at a creepy speed, on account of the gipsy or automatic grips, which were then in front of the cable building The oar stopped in the middle of the block at the flag station, and deceased was then within forty or fifty feet of Bleecker street, and then turned westerly to cross the tracks into Bleecker street, on the westerly side of Broadway. When he reached the west track, another cable car, going down Broadway on the westerly track, was 100 feet above Bleecker street, going at a speed of seven to nine miles an hour. The gripman on this car did not attempt to apply his brake until the car was at the Bleecker street crossing, within ten or fifteen feet of deceased’s wagon, which was then on the westerly track. Deceased’s wagon kept on at the same jog trot, and almost got across into Bleecker street, when the car struck the rim of the hind wheel of the wagon, and deceased was thrown from the wagon to the ground and received the injuries which caused his death. Under the conditions which existed at the time, the car could have been stopped within sixteen feet when going at full speed, and when going slowly could have been stopped within three or four feet, or less. There was evidence given by the defendant tending to show a somewhat different state of facts. The evidence was conflicting. Upon the facts stated the court dismissed the complaint, holding as a matter of law that the deceased was guilty of contributory negligence.
    Frank E. Blackwell, for app’lt; Henry A. Robinson and John T. Little, Jr., for resp’t.
   WILLIAMS, J.

The learned court was not justified in dismissing the complaint either upon the ground of a failure of proof of negligence on the part of the defendant or on the ground of failure of proof of absence of contributory negligence on the part of the deceased. In considering whether the complaint should have been dismissed without a submission of the case to the jury the plaintiff is entitled to have the benefit of the facts most favorable to her, which the jury .would have been justified in finding upon the evidence. The jury, and not the court, were to determine what the real facts were from the conflicting evidence. The evidence given by the plaintiff presented a question for the jury as to both of these questions. Whether her witnesses or those sworn in behalf of the defendant told the truth was a question for the jury. In this case it would be usurping the functions of a jury for the trial court or for this court to determine as to the credibility of the witnesses. Upon the evidence presented by the plaintiff it was for the jury to say whether the gripman was guilty of negligence. The deceased had started to cross the tracks while the car was such a distance away that he could have stopped the car, and yet the gripman made no effort to slow down the car, so as to have it under control, but permitted it to ran at a high rate of speed until it was so close to deceased’s wagon that he was apparently unable to avoid a collision. There was evidence tending to show that he made no effort to set the brake until he was quite close to the wagon. The street was clear, and deceased’s wagon was in plain view, and had commenced to cross the track, and there was evidence tending to show that it would have been very easy for the gripman to slow down his car, and get it under control, and so avoid a collision. Allowing it to- ran at full speed and unchecked, as he did, the wagon still had nearly cleared the track, and only the rim of the hind wheel was struck. It was a question for the jury whether, by the exercise of ordinary care, he could have avoided the accident, and, if so, it was his legal duty "to exercise this care, and the failure to exercise such care would be negligence. These same suggestions are applicable to the question of the absence of contributory negligence on the part of the deceased.' He started to cross the tracks while the car was a long distance away. He had a right to rely upon the exercise by the gripman of ordinary care to avoid a collision.

The strict rules applicable to steam railroads and travelers in the highway are not aioplieable to street railways and wagons traveling along the streets of a city. As to the former the rule is that the railroad trains have the right of way, and when travelers ’in the highway know that trains are approaching it is the absolute duty of the travelers in the highway to keep off the track until the trains have passed by. Ho such rule is applicable to street railways and teams traveling in the streets of a city. The teams have a right .to cross the railway tracks, although cars are known to be approaching; otherwise teams would rarely be able to cross the tracks of street- raiLvays, -Especially would this be true in Broadway, whce care are at all times in view, and known to be approaching the point where teams are to cross. Care in these cases is required to'be exercised on both sides to avoid collisions between cars and teams, and whether it is negligent on the part of drivers of teams to attempt to cross a street-railway track when a car is approaching is dependent upon the circumstances of each particular case. In Wendell v. Railroad Co., 91 N. Y. 429, it was said by Ruger, C. J.:

“The rules of conduct which should govern the approach of travelers to crossings over street railways or in the track of vehicles whose rate of progress is under control of their drivers are necessarily quite different from those applicable to the cossing of the track of steam railroads, whose trains traverse vast distances, carrying great burdens, and moving with a momentum necessarily destructive to bodies with which they come in contact. It is within the knowledge and comprehension of the most immature that these agencies cannot be arrested in time to obviate danger to those coming in their way, and therefore a greater degree of care is imposed on those who have occasion to use their tracks. Barker v. Savage, 45 N. Y. 191.”

And in Moebus v. Herrmann, 108 N. Y. 354; 13 St. Rep. 648, Judge Danforth said:

“The duty imposed upon a wayfarer at the crossing of a street by the track of a railroad to look both ways does not, as a matter oi law, attach to such nersons when about to cross- from one side to the other of a city street. The degree of caution he must exercise will be affected by the situation and surrounding circumstances. In the former case there is obvious and constantly impending danger not easily or likely to be under .the control of engineers. In the latter case the vehicles are Managed without difficulty, and injuries" are infrequent.”

Under the circumstances disclosed by the evidence of the plaintiff in this case, it could not be said as matter of law that the deceased was guilty of negligence in attempting to cross these tracks as he did. It was a question of fact to be determined by the jury, and could not be determined by the court. Whether it was prudent or imprudent for the deceased to cross the track under tho circumstances was a question of fact to be determined by the jury. Belton v. Baxter, 58 N. Y. 411. The facts in this case are entirely unlike those in the case of Doller v. Railway Co. (decided by us at the present term), 39 Supp. 770. In that case the deceased was on foot, and was struck by the car just as he stepped over the first rail upon the track. The car was quite close to him when he stepped upon the track, and was running rapidly. He should have kept off the track until the car passed by. There was no opportunity, after the deceased stepped upon the track, for the gripman to slow down his car, and avoid the accident. In this case the whole team had entirely crossed the track, except the outer rim of the hind wheel, when the accident occurred. The car must have been some distance away when the team started to cross over*, and there was full opportunity for the grip-man to slow down his car, and avoid the collision. We think the learned trial court erred in taking the case from the jury and dismissing the complaint.

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

All concur.


author: DALY, P. J.

text:
    Louis Marinelli, Resp't, v. Nelson A. Ferrand, App'lt.
    (Supreme Court, Appellate Term, First Dept.,
    Filed June 22, 1896.)
    1. Distbict courts—Proof.
    The plaintiff must, in the district court, where his cause of action is denied, maintain it by a preponderance of proof. •
    2. Same.
    Where the claim of plaintiff rests upon Ms unsupported testimony and is met by the positive denial of the defendant, so that the case presented is merely that of oath against oath, there is no preponderance and the burden of the plaintiff is not sustained.
    8. Same.
    A judgment in favor of plaintiff, given upon evidence impeached by his prior contradictory statements, especially if made under oath upon a former trial, will not stand.
    Appeal from a judgment entered in favor of plaintiff.
    C. G. Macy for app’lt; R. L. Turk, for resp’t.
   DALY, P. J.

This judgment was rendered upon a second trial of the action. The judgment upon the first trial was reversed for error in ruling as to evidence. 36 Supp. 1128. The action was begun June 20, 1895, to recover $63 for work as a tailor on nine coats, between November 20, and December 11, 1893. The dispute in the case was as to the alleged employment by defendant. In the district court, as in other courts of law* the plaintiff, where his cause of action is denied, must maintain it by a preponderance of pfoof. If he does not, he must fail, and the defendant is entitled to judgment. Where the claim of the plaintiff rests upon his unsupported testimony, and is met by the positive denial of the defendant, so that the case presented is merely that' of oath against oath, there is no preponderance, and the burden of the plaintiff is not sustained. The case is still worse for him if the value of his testimony is affected by his prior contradictory statements, especially if made under oath upon a former trial. A judgment given upon evidence so impeached ought not to stand. Such is the case here. In the month of June, 1895, the plaintiff commenced an action against the defendant in the Second district court on the claim now presented. He was examined in his own behalf, and testified that he never saw or spoke to the defendant. Hpon that testimony the action was discontinued by consent. A month afterwards this action was commenced in another court,—the First district,—and the plaintiff, being examined again on his own behalf, testified that he applied to the defendánt for work, had a conversation with him, was made by him, to sign his name in a book, was given by him a coat to make, and afterwards received from the defendant personally all the work now sued for, and a portion of the part payment on it. The plaintiff is contradicted by the defendant and by his witness Brockington. It appears that Brockington, or his wife, was the proprietor of the establishment for which the plaintiff worked, except for a few months, when defendant was the owner of it by purchase from them; but it was sold back to Brockington several months before the work now sued for was done. The probabilities are all in favor of the truth of the plaintiff’s statement upon the first trial that he never saw or spoke to defendant, and that his transactions were with Brockington. His first explanation on one trial of his self-contradiction that he did not understand the questions put to him, and his subsequent explanation on another trial that he was ill, are not satisfactory. In view of the positive denials of defendant and Brockington, the judgment cannot be sustained. On the last trial plaintiff produced a witness to corroborate him by testifying as to defendant’s personal connection with the business; but the witness located the occurrences he spoke of at an establishment different from the place of business at which it is conceded that the plaintiff worked when he performed the labor for which this action is brought.

Judgment reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


author: INGRAHAM, J.

text:
    Emma Condit Smith, as Testamentary Guardian, etc., Resp't, v. Central Trust Company of New York, Defendant, William Pennington, as Trusteee, etc., App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed June 29, 1896.)
    1. Parties—Necessary,
    In an action in equity by a testamentary guardian to obtain an accounting with respect to the income of certain securities held by the defendant in trust, a substituted trustee is a necessary party to a complete determination of such action.
    8. Same—Bringing in defendant.
    The fact that the nonjoinder of a substituted trustee has been pleaded as a defense does not prevent the court from directing him to be brought in as a party defendant at any time.
    Appeal from an order denying a motion to bring in a substituted trustee as a party defendant.
    Adrian H. Joline, for app’lt; Alex. Thain, for resp’t.
   INGRAHAM, J.

We think this motion should have beefl! granted. The action is in equity, by a testamentary guardian of two infants, to obtain an accounting with respect to the income of certain securities held by the defendant “in trust.” In such an action “any person may be made a defendant who has, or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein.” Code, § 447. And section 452 of the Code provides that the court must direct a-party whose presence is necessary for a complete determination of the controversy to be brought in. It appears that the property concerning which this plaintiff has asked the defendant to account was deposited with the defendant by one George Condit Smith, who held it as trustee; that said Smith is dead, and that William Pennington has been appointed by the chancellor of the state of New Jersey to succeed the said George Condit Smith as-trustee; and that the said Pennington, as such substituted trustee, is a necessary party to a complete determination of an action for an accounting of the property of the trust estate, is apparent. There is nothing in the Code to justify the conclusion that the fact that the nonjoinder of the substituted trustee has been pleaded as a defense prevents the court from directing such a person to be brought in as a party defendant at any time. In fact, the only effect of pleading this as a defense in this action would be, if it was good, to reouire the court on the trial to direct that the person be made a party, and adjourn the proceeding until its order had been complied with. Nor should we determine on this motion the question as to the jurisdiction of the chancellor of New Jersey to make this appointment. The trust was created under the laws of the state of New Jersey, and was to be performed* as provided by its law; and the order of a court of competent jurisdiction, directing how that trust shall be carried out, cannot be-attacked collaterally.

We think the order should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs.

All concur.