author: Cullen, J.

text:
    Oakley, Respondent, v. Cokalete, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by Mahlon B. Oakley against John S. Cokalete. David W. Travis, for appellant. Silas J. Owens, for respondent.
   Cullen, J.

—This action is brought to.dissolve a partnership alleged to exist between the parties, and for an accounting. The defendant answered, denying the partnership, and alleging that the plaintiff was simply an employé of the defendant under an agreement by which the former was to receive one-half of the net profits of the business as compensation for his services. It appeared that the plaintiff had been carrying on business on his own account, the store or shop being the defendant’s property; that, at the time of the change in the business, the plaintiff was indebted to the defendant for rent, and he assigned the stock and fixtures to the defendant by a bill of sale. The defendant testified that it was in payment of the debt; the plaintiff that it was security for it. The question whether the plaintiff was a partner or an employé is of no practical importance, as we think that, in either aspect of the case, by a proper statement of the accounts, plaintiff is indebted to the defendant, and not the defendant to the plaintiff. We shall, therefore, assume that the parties were partners. The trial court found that the plaintiff contributed to the partnership §352.69 ; that during the partnership the plaintiff drew out §79.75, and the defendant §20 ; that at the time of the commencement of the partnership the plaintiff was indebted to the defendant in the sum of $230 ; that during the partnership he became further indebted in the sum of $70 for house rent, and $20 moneys of the defendant collected by the plaintiff. On these facts the court stated the account as follows:

"Plaintiff owes for rent due at the commencement of this action...................................... $230 00
Received from store..................................... 79 75
Collected rent for Cokalete.............................. 20 00
House rent.............................................. 70 00
§399 75
Plaintiff put in................................. .§338 60
■Carpet and smoke house......................... 14 09 852 69
The plaintiff owes....................................... $ 47 06
Due from store.......................................... 20 00
Due from plaintiff....................................... § 27 06
Amount of goods in store................................ $450 00
One-half..............................................$225 00
Less..................................................... 27 00
$174 94”

An analysis of the account will show how the peculiar manner of stating it has resulted to the two partners :

The plaintiff receives a discharge from his personal debt to the defendant, owing at the commencement of the partnership.....................................$230 00
House rent for family................................... 70 00
Moneys of defendant collected by him........... 20 00
Drawn from partnership................................. 79 75
Judgment ordered by the court in his favor.............. 197 94
Total ........................................ §597 69
Deduct plaintiff’s contributions of all kinds............. 352 69
Balance, profit to plaintiff from joint venture.. §245 00
The defendant received partnership stock at dissolution.. §450 00
Drawn from partnership................................. 20 00
Total..........................................$470 00
The defendant loses and satisfies his personal ■ claims against the plaintiff.................. §230 00
70 00
20 00
The judgment requires him to pay plaintiff the
further sum of.............................. 197 94
Total..........................................$517 94
Deduct.................................................. 470 00
Loss to the defendant from joint venture...... § 47 94

The error which has worked out this curious result proceeds from the indiscriminate mingling of accounts of the partners with the partnership and between themselves as individuals. Assuming the absolute correctness of the items of this account, a correct statement of it would show the-true balance due from the defendant to the plaintiff to be $51.47. In our judgment there are errors in the items of the account. The amount contributed by the plaintiff was only §320.90, of which §196.99 -was the value of the fixtures, and the remainder the value of the stock. The plaintiff, by his subsequent testimony, modified his first statement that his contribution amounted to §352.69. The plaintiff put in evidence an account rendered to him by the defendant, showing that during the prosecution of the business defendant paid out §323.26 more than he received. The correctness of this statement is testified to by the witness Craft, and seems to have been in no wise impeached. This excess of payment should have been treated as a contribution by the defendant to the partnership. The plaintiff testified that the value of the stock on hand at the time he was turned out by the defendant was $450. The defendant testified that it was not worth over $200, and that he offered it to the plaintiff for that sum. The trial court found the value to be §450, and we shall adopt that finding. The court made no allowance for the value of the fixtures which the defendant appropriated to his use. We do not know whether the finding of the value of the stock at $450 was intended to include the value of the fixtures, but the view most favorable to the plaintiff is that it did not and we shall proceed on that assumption. With these modifications of the items, the proper statement of the account would toe as follows :

Assets of Partnership.
Stock on hand at dissolution............................ $450 00
Fixtures................................................ 196 99
Due from plaintiff...................................... 79 75
Due from defendant..................................... 20 00-
Total.......................................... $746 74
Contributed by plaintiff.......................... §320 90
Contributed by defendant........................ 323 26 644 16
Profits of partnership................................... $102 58
One-half to’each partner................................ .51 29
Plaintiff’s Account.
Contributed to partnership.............................$320 90
Share of profit..........."................................ 51 29
$372 19 .
Plaintiff owes defendant on private account .....$320 00
Plaintiff owes defendant on partnership account.. 79 75 399 75-
Overpayment due from plaintiff............... § 27 56
Defendant’s Account.
Contributed to partnership.............................$323 26-
Personal claims against the plaintiff..................... 320 00
One-half of profit........................................ 51 29
Total......................................... $694 55-
Defendant has received stock on hand at dissolution....................................... $450 00
Fixtures...................*.................... 196 99 646 99
Balance due from plaintiff to defendant........$ 27 56 -

Judgment appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.


source: Caselaw Access Project

license: Public Domain

text:
    O’Connell, Respondent, v. Clark et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by James O’Connell against John Clark and William Clark.
   No opinion. The court is without a quorum to decide this motion. It must, be resubmitted.


text:
    O’Connell, Respondent, v. Clark et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by James O’Connell against John Clark and another.
   No opinion. Motion for reargument denied, without costs.


text:
    O’Connor, Respondent, v. Johnson, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Martin O’Connor against Charles W. Johnson.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    O’Hara, Respondent, v. Chapman et al., Appellants.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Hugh O’Hara against Aaron F. Chapman and George W. Storms.
   No opinion. Judgment and order affirmed, with costs.


text:
    Oppenheim v. Tamsen.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Leo Oppenheim aganist Edward J. H. Tamsen, sheriff.
   No opinion, Motion denied.


text:
    O’Reilly v. Dale.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
    Action by Lawrence J. O’Reilly against John H. Dale.
   No opinion. Motion denied upon payment of §10 costs.


text:
    Osmun, Respondent, v. Teeter, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by Anna Osmun, as administratrix, etc., against Henry J. Teeter.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Osmun v. Teeter.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by Anna Osmun, as administratrix, etc., against Henry Teeter.
   No opinion. Application for leave to appeal to the court of appeals denied.


text:
    Pagnod v. McGrath.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Arthur Pagnod against Eugene J. McGrath.
   No opinion. Motion granted, with §10 costs.


text:
    Pendleton et al., Respondents, v. Brookman, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by Henry_ M. Pendleton and William W. Ford against Mathias A. Brookman.
   No opinion. The weight of testimony sustains the defendant’s contention that he is a resident of the city of Mt. Vernon. Order reversed and attachment vacated, with §10 costs and disbursements.


text:
    Penney, Respondent, v. Rochester Ry. Co., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Wesley J. Penny, by guardian, against the Rochester Railway Company.
   No opinion. Motion for a reargument denied, and leave granted to appeal to the court of appeals on the ground that the case involves a question of law which ought to be reviewed by that court.


text:
    Penoyar et al. v. Kelsey et al.

    (Supreme Court. Appellate Division, Fourth Department.
    April, 1896.)
    Action by William V. Penoyar and another against William E. Kelsey and another.
   No opinion. Motion for reargument denied ; and it is hereby certified that a question has arisen, under section 686 of the Code of Civil Procedure, which provides that an attachment may issue, viz.: “Where, for the purpose of procuring credit, or the extension of credit, the defendant has made a false statement in writing under his own hand or signature, or under the hand or signature of a duly-authorized agent, made-with his knowledge and acquiescence as to his financial responsibility or standing,”—whether an alleged false statement in writing by a debtor which does not come to the knowledge or notice of a creditor until after credit has been given to the debtor is sufficient to authorize the granting' of a warrant of attachment under such provision.


text:
    People v. Commercial Alliance Ins. Co.
    (Supreme Court, Appellate Division, First Department.
    Oct. 23, 1896.)
    Proceeding for the dissolution of the Commercial Alliance Insurance-Company.
   No opinion. Motion for leave to go to court of appeals granted, certifying question as amended. Order to be entered as of this date.


text:
    People v. Freeman.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
   No opinion. Motion granted.


text:
    People, Respondent, v. Murray Hill Bank, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Proceeding for the dissolution of the Murray Hill Bank.
   No opinion. Motion granted. The order appealed from overruled the defendant’s-answer as frivolous, and directed that the plaintiff have judgment thereon for the relief demanded in the complaint. Instead of being affirmed, absolutely, it must, in accordance with our decision, be modified so as to provide that the plaintiff have judgment only for the dissolution of the-corporation, with leave to apply hereafter for the appointment of receivers in case of the entry of an order in the voluntary proceedings now pending in the first judicial district directing the discontinuance or dismissal of those proceedings.


text:
    People, Respondent, v. Murray Hill Bank, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 8, 1896.)
   No opinion. Motion for leave to appeal to the court of appeals denied..


text:
    People v. Mutual Brewing Co.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Proceeding against the Mutual Brewing Company.
   No opinion. Order modified by directing the return to the purchaser of §250, less the expenses-of the sale. Order settled by Justice Bartlett, and signed.


text:
    People v. National Mut. Ins. Co.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Proceeding against the National Mutual Insurance Company.
   No-opinion. Motion to dismiss appeal granted, unless the appellant Anthony print and serve his appeal papers in time to notice the appeal for the-October term.


text:
    People v. National Mut. Ins. Co.
    (Supreme Court, Appellate Division, First Department.
    Nov. 20, 1896.)
   No opinion. Motion denied upon payment of $10 costs.


text:
    People, Respondent, v. Parrette, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Proceeding against Michael Parrette.
   ,No opinion. Judgment affirmed.

All concur.


text:
    People v. Robbins.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Proceeding against Darius Robbins.
   No opinion. Motion granted, with §10 costs.


text:
    People v. St. Nicholas Bank.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Proceeding against the St. Nicholas Bank.
   No opinion. Motion granted.


text:
    People, Respondents, v. Vosburgh, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Oct. 2, 1896.)
    Proceeding against Margaret Vosburgh.
   No opinion. Judgment and ' order affirmed, with costs. All concur.


author: Per Curiam.

text:
    People ex rel. Barrett v. Roosevelt et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Certiorari by Edward J. Barrett to review the proceedings of Theodore Roosevelt and others, constituting the board of police commissioners,, dismissing relator from the police force. Louis J. Grant, for relator. Theodore Connolly, for respondents.
   Per Curiam.

—The only question is as to whether or not the evidence is sufficient to justify the finding of the commissioners that the relator, on the night of the 31st day of October, 1895, left his post, and went into a saloon. That fact is sworn to positively by Mr. Cooper, the complainant. It is denied by the officer, and thus there is a sharp conflict of evidence. The relator called several witnesses to corroborate his story. Cooper, the’ complainant, swears that he saw the relator go into the saloon between 5 minutes of 10 and 15 minutes after 10. McLaughlin swears that he saw the relator between Eighth and Ninth avenues between half-past 9 and 15 minutes after 10 ; that about 15 minutes before 10 he saw him go towards Tenth avenue, but did not see him again. This is not at all inconsistent, with the complainant’s testimony. ’The relator also called two men who were in this saloon on the night in question, both of whom swore that they did not see the police officer in the saloon. A significant fact, however, appears in relation to the testimony of one of these persons, Peter E. Boer, who swore that on that night, some time after 11 o’clock, the relator came to the saloon and sent for this witness. The relator told the witness that he (the relator) had been accused by a certain person of running away, and he asked the witness how long he (the witness) had been in there. The witness said that he had been in all the evening. “ He [the relator] said he would have a complaint probably. He asked me to come down and testify in his behalf.” It nowhere appears that Cooper told the officer what his complaint against him was. It only appears that Cooper had told the officer that he had run away from him, and had concealed his number-, and refused to give his name; and yet, immediately after such charge was made, the relator goes to this saloon to engage the witness to go and testify in his behalf.” It is a little difficult to see how the officer could have known that Cooper was to charge him with being in the saloon, in the absence of any statement by Cooper to him, unless he had been there. On the whole case we think a question was presented for the commissioners to determine, and that we would not be justified in reversing such determination. The proceedings of the commissioners are therefore affirmed, and the writ dismissed.


text:
    People ex rel. Dillon, Appellant, v. Welles, Police Commissioner, Respondent.
    (Supreme Court, Appellate Division, Second Department.'
    Dec. 15, 1896.)
    Certiorari by Richard Dillon against Leonard R. Welles, police commissioner.
   No opinion. Determination confirmed, with $10 costs and disbursements. All concur.


text:
    People ex rel. Dwyer, Appellant, v. Martin et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    Certiorari by Patrick W. Dwyer against James J. Martin and others. J. Vincent, for appellant. T. Farley, for respondents.
   No opinion. Proceedings affirmed, with costs.


text:
    People ex rel. Eldridge v. Jewett et al.

    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Certiorari by William H. Eldridge against Edgar B. Jewett, Charles A. Rupp, and James E. Curtiss, members of and constituting the board of police of the city of Buffalo.
   No opinion. Motion granted, without costs. All concur.


text:
    People ex rel. Jefferson, Appellant, v. Roosevelt et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896).
    Certiorari by Thomas Jefferson against Theodore Roosevelt and others. L. J. Grant, for appellant. T. Connoly, for respondents.
   Ño opinion.

Proceedings affirmed, with costs.


text:
    People ex rel. Jordan, Appellant, v. Martin et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Certiorari by Albert A. Jordan against James J. Martin and others. J. M. Tierney, for appellant. T. Farley, for respondents.
   No opinion. Proceedings affirmed, with costs.


text:
    People ex rel. Kennedy, Plaintiff, v. Bush, Defendant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 8, 1896.)
    Certiorari by Peter J. Kennedy against Wesley C. Bush, commissioner of the department of buildings, city of Brooklyn.
   No opinion. Determination confirmed, with costs. All concur.


text:
    People ex rel. Lawyers’ Surety Co. v. Anthony.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Proceeding on the relation of the Lawyers’-Surety Company against D.Edgar Anthony.
   No opinion. Motion granted, with $10 costs. See 39 N. Y. Supp. 1130, and 40 N. Y. Supp. 279.


text:
    People ex rel. Meany, Appellant, v. Roosevelt et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    Certiorari by Richard Meany against Theodore Roosevelt and others. E. W. Hawke, for appellant. T. Farley, for respondents.
   Ño opinion. Proceedings affirmed, with costs.


text:
    People ex rel. O’Connor, Appellant, v. Roosevelt et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    Certiorari by William W. O’Connor against Theodore Roosevelt and others. R. J. Robeson, for appellant. T. Farley, for respondents.
   No opinion. Proceedings affirmed, with costs.


text:
    People ex rel. Stone, Appellant, v. Odell, Respondent.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Proceeding, on the relation of Andros B. Stone against Hamilton Odell. G. C. Lay, for appellant.
   No opinion. Order affirmed, with $10 costs and disbursements.


text:
    People ex rel. Sullivan, Appellant, v. Martin et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    Certiorari by John J. Sullivan against James J. Martin and others. L. J. Grant, for appellant. T. Connoly, for respondents.
   No opinion. Proceedings affirmed, with costs.


text:
    People ex rel. Troy Sunday Observer v. Board of Sup’rs of Rensselaer County et al.

    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Proceeding on the relation of the Troy Sunday Observer against the board of supervisors of Rensselaer county and Daniel E. Conway.
   No opinion. Determination of the board of supervisors confirmed, with $50 costs and disbursements. All concur.


text:
    People ex rel. Turner, Appellant, v. Plimley, Respondent.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Herbert B. Turner, for appellant. Francis M. Scott and Thomas E. Rush, for respondent.
   No opinion. Order affirmed, with costs, upon the opinion of Beekman, J., in the court below.


text:
    People ex rel. Vanderhoof, Respondent, v. Palmer, Comptroller, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Application by John Vanderhoof for a writ of mandamus against George W. Palmer, comptroller of the city of Brooklyn.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
      In re Peterson’s Estate.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    In the matter of the estate of Eugene Peterson, deceased.
   No opinion. Motion granted, with $10 costs.


text:
    Pettit, Respondent, v. City of Brooklyn, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 20, 1896.)
    Action by Smith Pettit against the city of Brooklyn.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Phoenix Mills, Appellant, v. First Nat. Bank of Amsterdam, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by the Phcenix Mills against the First National Bank of Amsterdam.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Platt et al., v. New York & S. B. Ry. Co. et al.

    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by William O. Platt and William Man, as trustees, against the New York & Sea Beach Railway Company and others.
   No opinion. Motion for reargument denied. Motion for leave to appeal to the court of appeals granted.


text:
    Pollatschek et al. v. Goodwin.
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    Action by Pollatschek and others against Goodwin. Motion for leave to appeal to the appellate division for reargument. See 40 N. Y. Supp. 682.
   Per Curiam.

—Every point made by the appellant’s counsel upon the argument of the appeal was fully noted and discussed in the opinion handed down, and this motion seems to be no more than an effort to secure further discussion of well-established principles of law in their application to the facts of the particular case. Tne main contention of the appellant’s counsel is that the plaintiffs were not mere middlemen, but brokers intrusted with discretionary powers. The contention is wholly with regard to a question of fact; hence this motion cannot be said to come within the rules laid down in Lynch v. Sauer, 16 Misc. Rep. 363 ; 38 N. Y. Supp. 1, as governing motions for leave to appeal to the appellate division. Motion ■denied, with §10 costs.


text:
    Pond, Respondent, v. Salamanca Nat. Bank, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by Charles F. Pond, as receiver of the Weaver Lumber Company, -against the Salamanca National Bank.
   No opinion. Interlocutory judgment affirmed, with costs.


text:
    Porter et al., Respondents, v. Ducey Lumber Co., Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Hiram P. Porter and others against the Ducey Lumber Company.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Powers, Appellant, v. Eveline, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by William F. Powers, by guardian, against Mary S. Eveline.
   No opinion. Order affirmed, without costs to either party. All concur.


text:
    Proctor, Respondent, v. Sidney Sash, Blind & Furniture Co., et al., Appellants.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by William H. Proctor against the Sidney Sash, Blind & Furniture Company and others.
   No opinion. Motion to go to the court of appeals, and fora certificate from this court under section 190 of the Code, denied.


text:
    Proctor v. Soulier.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by Frederick F. Proctor against Henry P. Soiilier.
   No opinion. Order of confirmation and report of referee modified by reducing the damages, as found by the referee, to the sum of §393.30,—being the sum of §350 for counsel fees, and the sum of §143.30 for costs and expenses of the" referee; and, as so modified, affirmed, without costs of this appeal to either party. All concur. See 40 N. Y. Supp. 459.


text:
    Prokop, Respondent, v. Central R. Co. of New Jersey, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 8, 1896.)
    Action by John Prokop againt the Central Railroad Company of New Jersey.
   No opinion. Judgment and order unanimously affirmed, with costs.


text:
    Pyne et al. v. Phillips et al.

    (Supreme Court, Appellate Division, First Department.
    October 23, 1896.)
    Action by Moses T. Pyne and others against Hartwig J. Phillips and others.
   No opinion. Motion denied upon payment of §10 costs.


text:
    Pyne et al. v. Phillips.
    (Supreme Court, Appellate Division, First Department.
    Nov. 30, 1896.)
    Action by Moses T. Pyne and others against Hartwig J. Phillips.
   No-opinion. Motion denied upon payment of §10 costs.


text:
    Rach’s Mashing Process Co., Respondent, v. Seitz, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 20, 1896.)
    Action by the Rach’s Mashing Process Company against Michael Seitz. J. J. Bennett, for appellant. Fred. W. & Alfred E. Hinrichs, for respondent.
   Per Curiam.

—Assuming that the contract of sale contains a warranty of quality of the beer to be manufactured by the cooking process, defendant, by his pleading, does not present that issue. The answer, at considerable length and in much detail, makes specific denials of the allegations of the complaint, and makes affirmative allegation of breach of contract in several respects ; but it nowhere alleges that there was a warranty in the quality of the beer which the cooker should produce, or that there was a breach of warranty in this respect. Consequently there was no issue raised'which required a determination by the jury. Chambers v. Lancaster, 3 App. Div. 315. The answer is also silent respecting any defect in the boiler, and the evidence offered to establish such defect was properly excluded, for the reason that no suchissue was present to be tried. Linton v. Fire-Works Co., 134 N. Y. 533. In all other respects it was not controverted but that the cooker complied with the contract. There was, therefore, no controverted question of fact to be decided, and the court was clearly right in directing the verdict which it did. The judgment should be affirmed, with costs.


text:
    Ranken, Respondent, v. Janes, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Action by Jesse B. Ranken against William H. Janes. Benjamin F. Tracy, for appellant. Abraham H. Dailey, for respondent.
   Per Curiam.

—We think that the learned trial judge misapprehended the effect of our decision in Matter of Janes, 87 Hun, 57 ; 33 N. Y. Supp. 968, and the opinion there delivered. That was an application by the present appellant to revoke the probate of certain provisions of the will of Eckford Webb in favor of the present respondent, on the ground they were procured by fraud. The surrogate, at the close of the applicant’s evidence, dismissed the proceeding. On appeal, we affirmed the decree of the surrogate. The opinion premises the statement that the appeal was, under the Code (section 2586), a rehearing on the facts. We did not treat the case as similar to a nonsuit in an action, nor did we determine that there was no evidence tending to establish fraud, nor that the provisions of the will were procured by fraud. We did decide, upon the record then before us, that no fraud was practiced on the testator, and that the fraud charged, if it did exist, was not the inducing cause of the testamentary provisions assailed. But these questions were decided as questions of fact, not as questions of law, and the burden of the opinion is to bé treated as an argument on the propositions of fact. Our decision in the proceeding to revoke the probate would not conclude the parties in an action at law to try title to the real estate devised. Corley v. McElmeel, 149 N. Y. 228. The judgment appealed from should be reversed, and a new trial granted, costs to abide the event.


text:
    Regan, Respondent, v. Ehrich et al., Appellants.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Cornelius F. Regan against Samuel W. Ehrich and another. F. C. Eustice, for appellants. A. P. Wagener, for respondent.
   Per Curiam.

—Upon this appeal appellants urge a reversal for the reason, as they argue, that the evidence shows contributory negligence by plaintiff. We have carefully examined the record, and cannot agree with appellant’s contention. There is nothing in the appeal record which would justify us in declaring the finding of the jury that plaintiff was not guilty of negligence was wrong. We always favor upholding the finding of a jury upon a question of fact unless it is clearly and indisputably apparent that the jury were influenced by sympathy, prejudice, passion, or disregard of evidence,—something which, in our judgment, did not happen herein. Judgment must be affirmed, with costs.


text:
    Reifsnyder et al., Respondents, v. Slavin et al., Appellants.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 8, 1896.)
    Action by Howard Reifsnyder and others against Thomas Slavin and others.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Reinhart, Appellant, v. New York Cent. & H. R. R. Co., Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Bernhart Reinhart against the New York Central & Hudson River Railroad Company.
   No opinion. Order affirmed, with costs. All concur.


text:
    Reynolds et al., Appellants, v. Albany Sav. Bank et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 8, 1896.)
    Action by Sarah A. Reynolds and Clarence N. Reynolds against the Albany Savings Bank and others.
   No opinion. Order affirmed, without costs. All concur.


text:
    Reynolds et al., Appellants, v. National Union Bank of Kinderhook et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 8, 1896.)
    Action by Sarah A. Reynolds and Clarence N. Reynolds against the National Union Bank of Kinderhook and others.
   No opinion. Order affirmed, without costs. All concur.


text:
    Rochester & K. F. Land Co., Respondent, v. Roe, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by the Rochester & Kettle Falls Land Company against John O. Roe.
   No opinion. Motion denied, with $10 costs. All concur.


text:
    Romer, Respondent, v. Steinway Ry. Co. of Long Island City, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 6, 1896.)
    Action by James. Isaac Romer against the Steinway Railway Company of Long Island City.
   No opinion. Judgment and order unanimously affirmed, with costs.


text:
    Rossgog, Appellant, v. Braine, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896.)
    Action by Julia Rossgog against Mary Braine.
   No opinion. Motions to dismiss appeals granted unless the appellants file the appeal papers with the clerk on or before December 21, 1896. If the papers are so filed, the motions are denied, without costs.


text:
    Rost, Respondent, v. Brooklyn Heights R. Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Ernst Rost against the Brooklyn Heights Railroad Company.
   No opinion. Judgment and order unanimously affirmed, with costs.


text:
    Rouss, Respondent, v. McDonell, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by Charles B. Rouss against Russell J. McDonell.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Rowell v. Lambert.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by George‘P. Rowell against Edward W. Lambert.
   No opinion. Motion denied, with $10 costs.


text:
      In re Ruppaner.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    In the matter of Antoine Ruppaner.
   No opinion. Motion denied.


text:
    Russell et al., Respondents, v. New York El. R. Co., Appellant.
    (Supreme Court, Appellate Division, First Department.
    Nov. 6, 1896.)
    Action by Joseph F. Russell and others against the New York Elevated Railroad Company. J. C. Bushby, for appellant. E. W. Tyler, for respondents.
   No opinion. Judgment affirmed, with costs.


text:
    Salt Springs Nat. Bank v. Crabtree.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    In the matter of the petition of the Salt Springs National Bank against the executors of William Crabtree, deceased.
   No opinion, Motion denied, with $10 costs.


text:
    Sanders v. Hurlburt (two cases).
    (Supreme Court, Appellate Division, Third Department.
    October 2, 1896.)
    Action by Barent B. Sanders against Kate Bleecker Hurlburt.
   No opinion. Order staying respondent’s proceedings vacated, with $10 costs and disbursements. Motion to dismiss appeals denied, without costs to either party.


text:
    Sanders, Respondent, v. Hurlburt, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by Barent B. Sanders against Kate Bleecker Hurlburt, as executrix.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Sandiford, Respondent, v. Frost, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by Richard Sandiford against Carman Frost.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Schaefer, Respondent, v. Schilling, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896).
    Action by Emil Schaefer against Henry L. Schilling.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Schmalacher, Appellant, v. Stolz, Respondent.
    (Supreme Court, Appellate Division, First Department.
    Sept., 1896.)
    Action by Bernard Sohmalacher against George Stolz. Wm. H. Knox, for appellant. Bailey & Perkins, for respondent.
   No opinion. Judgment affirmed upon argument.


text:
    Schoeneck v. Schoeneck et al.

    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Action by Frank C. L. Schoeneck against Charles W. Schoeneck, Joseph W. Kierst, and others.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Schulz, Respondent, v. Baird et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 30, 1896.)
    Action by Franz Schulz against William A. Baird and Benjamin Newmarlc.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Sciolina, Respondent, v. Erie Preserving Co., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Antonio Sciolina against the Erie Preserving Company.
   No opinion. Motion denied, without costs.


text:
    Seager, Respondent, v. Churchill, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by William B. Seager against John Churchill, as executor of the will of Mary Hyatt, Deceased.
   No opinion. Order affirmed, with costs.


text:
    Sebring, Appellant, v. Quigley et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Charles W. Sebring against James Quigley and others.
   No opinion. Interlocutory judgment, so far as appealed from, affirmed, with costs. All concur.


text:
    Seeley, Respondent, v. New York Cent. & H. R. R. Co., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Lawrence Seeley, as administrator, etc., against the New York Central & Hudson River Railroad Company.
   No opinion. Motion denied, with $10 costs. All concur.


text:
      In re Sheehan.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 8, 1896.)
    Application by James A. Sheehan for admission and license to practice as an attorney and counselor at law.
   No opinion. Application granted, and applicant may appear and take the oath.


text:
    Shimberg, Appellant, v. Weaver, Respondent.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Sarah Shimberg against Van R. Weaver.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Shipman et al., Appellants, v. Long Island R. Co., Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896.)
    Action by James J. Shipman and another against the Long Island Railroad Company.
   No opinion. Order affirmed, with §10 costs and disbursements, upon the opinion of the special term. All concur.


text:
    Sickles v. Canary et al.

    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Charles R. Sickles against Thomas Canary and others.
   No opinion. Motion denied.


text:
    Sitterly, Respondent, v. Journal Co., Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 8, 1896.)
    Action by Alonzo Sitterly against the Journal Company.
   No opinion. Judgment and order denying a new trial affirmed, with costs. All concur.


text:
      In re Smith.
    (Supreme Court, Appellate Division, First Department.
    Oct. 28, 1896.)
    In'the matter of Louise Condit Smith.
   No opinion. Order affirmed, with §10 costs and disbursements. (


text:
    Smith, Respondent, v. International Postal Supply Co. of New York; et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by Lyman O. Smith against the International Postal Supply Company of New York and others.
   No opinion. Order affirmed, with §10 costs and disbursements. All concur.


text:
    Smith, Respondent, v. Rourke, Appellant.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by Elizabeth Yonder Smith against Bernard Rourke. G. E. Waldo, for appellant. B. W. S. Johnston, for respondent.
   No opinion. Order reversed, and motion granted upon condition that the defendant pay §10 costs and disbursements of this appeal; the costs of the present motion and costs of the motion precluding him from giving evidence.


text:
    Smith v. Smith et al.

    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by Esther J. Smith, as administratrix, etc., against Adon N. Smith and others, as executors, etc.
   No opinion. Order affirmed, with §10 costs and disbursements. All concur.


text:
    Snecker, Respondent, v. Snecker, Appellant.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by Louise P. Snecker against William Snecker. A. H. Hummel, for appellant. J. A. Beall, for respondent.
   No opinion. Judgment affirmed, with costs.


text:
    Snell, Respondent, v. Gray, Appellant (two cases).
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Cornelius R. Snell against Rosamond H. Gray.
   No opinion. Order affirmed, with §10 costs and disbursements. All concur.


text:
    Sommer v. Oppenheim.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Rudolph Sommer against Leo Oppenheim. M. Cohn, for appellant. A. A. Joseph, for respondent.
   No opinion. Judgment and order affirmed, with costs.


text:
    Stanton, Respondent, v. Passaic Rolling-Mill Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Action by John E. Stanton against the Passaic Rolling-Mill Company.
   No opinion. Judgment and order unanimously affirmed, with costs.


text:
    State Trust Co. v. Casino Co.
    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by the State Trust Company against the Casino Company.
   No opinion. Application denied.


text:
    Steenburgh, Appellant, v. Miller et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 16, 1896.)
    Action by George W. Steenburg against John H. Miller and others.
   No opinion. Motion for substitution of Loren C. Steenburgh, as administrator, etc., of George W. Steenburgh, as plaintiff in the above-entitled action, granted.


author: Fitzsimons, J. Van Wyck, C. J.

text:
    Steinhardt et al., Respondents, v. Turk, Appellant.
    (City Court of New York, General Term.
    November 2, 1896.)
    Action by Louis Steinhardt and others against Herman Turk. Goldf ogle & Cohn, for appellant. S. Venino, for respondents.
   Fitzsimons, J.

—The attachment granted herein upon its face shows that it was issued for the reason that it appears that defendant has assigned and transferred his property with intent to defraud his creditors.' Such an attachment cannot stand, for the reason that it fails to state the ground upon which it was issued. See Hale v. Prote, 75 Hun, 13, and Johnson v. Buckel, 65 Hun, 601. The motion to vacate said attachment should have been granted. Order appealed from reversed, and the warrant of attachment herein vacated with costs to appellant.

Van Wyck, C. J.

—I concur in the result that the warrant of attachment ■should be vacated with $10 costs, and that order be reversed, with costs.


text:
    Steven, Respondent, v. New York Cent. & H. R. R. Co., Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Jacob E. Steven against the New York Central & Hudson River Railroad Company.
   No opinion. Motion denied, with $10 costs. All concur.


text:
    Stone, Appellant, v. Stone et al., Respondents.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by Andros B. Stone against Georgiana C. Stone and another. G. C. Lay, for appellant. A. Jaretzki, for respondents.
   No opinion. Order reversed, without costs, and motion granted so far as to allow the appellant to serve a new case within twenty days after the entry of the order hereon ; subsequent proceedings to be as though no case except this particular case had ever been served.


text:
    Sullivan v. Union Ry. Co.
    (Supreme. Court, Appellate Division, First Department.
    July, 1896.)
    Action by Edward Sullivan against the Union Railway Company.
   No opinion. Motion denied, with $10 costs.


text:
    Swift, Respondent, v. Swift, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Oct. 2, 1896.)
    Action by Charles H. Swift against William- S. Swift.
   No opinion. Motion for reargument denied, with $10 costs.


text:
    Taylor, Respondent, v. Chamberlain, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 13, 1896.)
    Action by Alexander Taylor against Robert L. Chamberlain.
   No opinion. Motion for reargument denied, with $10 costs.


text:
      In re Taylor Street.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    In the matter of the opening of Taylor Street.
   No opinion. Order reversed, with disbursements allowed to appellant.


text:
    Thomas et al., Respondents, v. Hayes et al., Appellants.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Rebecca A. Thomas and others, as administrators, against Simon B Hayes and others.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Thomas, Respondent, v. Lennon, Appellant.
    (Supreme Court, Appellate Division, First Department.
    Oct. 23, 1896.)
    Action by John Thomas, administrator, against William F. Lennon.
   Per Curiam.

—The same considerations which have been applied in the case of Gamble v. Lennon (decided at this term), 41 N. Y. Supp. 277, obtain and control liere. There was no attempt, apparently, at proper diligence in preparing to print and file the. cases. No valid excuse is given for the delay, and no reason is shown why the attorney should not have procured an extension of time in the proper way. The motion to dismiss the appeal is granted, with $10 costs.


text:
    Thomas v. Lennon.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    Action by John Thomas, as administrator, etc., against William F. Lennon.
   No opinion. Motion denied, with $10 costs. See supra.


text:
      In re Thompson.
    (Supreme Court, Appellate Division, First Department.
    Dec. 11, 1896.)
    In the matter of J. .Walter Thompson.
   No opinion. Motion denied, with §10 costs.


text:
    Thompson, Respondent, v. Village of Gowanda, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Almira Thompson against the village of Gowanda.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Toch, Appellant, v. Toch et al., Respondents.
    (Supreme Court, Appellate Division, First Department.'
    Oct. 23, 1896.)
    Action by Serena Toch against Henry M. Toch, and others. Chas. G,. F. Wahle, for appellant. Louis Wertheimer, for respondents.
   Per Curiam.

—For the reasons stated in the opinion herewith handed down in the case of Toch v. Toch, 41 N. Y. Supp. 353, this order must be reversed, with $10 costs, and the motion denied, with $10 costs.


text:
    Todd, Respondent, v. Morton, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 8, 1896.)
    Action by Henry H. Todd against Thomas S. Morton.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Townsend, Respondent, v. Mann, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Theophelie C. Townsend against John Townsend Mann.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Train, Respondent, v. Davidson, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896.)
    Action by Mary B. Train against George L. Davidson.
   No' opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Traynor, Respondent, v. Murtagh et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    Action by Frank Traynor against Charles E. Murtagh and others. Philip L. Wilson, for appellants. Henry A. Powell, for respondent.
   Per Curiam.

—The plaintiff has recovered a verdict of $400 damages against the defendants by reason of their failure to allow him to complete a contract, into which he had entered, to move their house back from the front to the rear portion of a lot on North Second Street, in the Eastern district of the city of Brooklyn." He alleged that the lot at the rear was not wide enough to receive, the building, and it appears to have been, conceded that, if such were the fact, the defendants were liable, inasmuch as no exception was taken to the instruction, given to the jury by the learned trial judge, to the effect that, if the plaintiff had been prevented from moving the house back because the defendants did not have land of sufficient width to move it back upon, then the plaintiff was entitled to a verdict. Whether there was land enough in the rear for the house to stand on, or not, was a question of fact for the jury, the correct determination of which was largely dependent upon the two surveys which yielded different results,—one favorable to the contention of the plaintiff, the other to that of the defendants. The appellants insist that the plaintiff’s survey should have been excluded, because the surveyor did not take the line mentioned in the conveyances for his starting-point; but we are not able to say, from this record, either as matter of law, or as a conclusive inference of fact, that such is the case. The'plaintiff’s survey is also 'criticised because it was made long after the time when the house was to have been moved; but this fact did not render it inadmissible, inasmuch as there was other evidence in the case tending to show that, at the time of the survey, the encroachment on the rear of the lot, which rendered it too narrow to receive the house, was just the same as it was when the contract concerning the removal of the building was made. The -issues were fairly and clearly left to the jury by the presiding judge, and we 1 cannot interfere with the verdict. Judgment and order affirmed, with costs.


text:
    Truman, Respondent, v. Lake Champlain & M. R. Co., Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Oct. 2, 1896.)
    Action by Alice Truman, as administratrix, etc., against the Lake Champlain & Moriah Railroad Company.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Upham, Respondent, v. Jefferson County Sav. Bank, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Addison L. Dpham, administrator, etc., of Cynthia Phelps, deceased, against the Jefferson County Savings Bank.
   No opinion. Judgment affirmed, with costs. Decision made by the concurrence of all.


text:
    Van Camp, Respondent, v. Village of East Syracuse, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Artimissa Van Camp against the village of East Syracuse.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Vilas Nat. Bank of Plattsburgh, N. Y., Respondent, v. Newton et al., Appellants.
    (Supreme Court, Appellate Division, Third Department.
    Sept. 29, 1896.)
    Action by the Vilas National Bank of Plattsburgh, N. Y., against John M. Newton and others.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Village of Canandaigua, Respondent, v. Benedict, Appellant.
    (Supreme Court, Appellate Division,- Fourth Department.
    Oct. 16, 1896.)
    Action by the village of Canandaigua, by its board of water commissioners, against Robert M.iBenedict, impleaded, etc.
   No opinion. Motion denied, with $10 costs. All concur.


author: Schuchman, J.

text:
    Wales Manuf’g Co., Appellant, v. Lazzaro et al., Respondents.
    (City Court of New York, General Term.
    October 30, 1896.)
    Action by Wales Manufacturing Company against Albert E. Lazzaro- and the Mercantile Supply .Company, W. Furlong, for appellant. H. M. Hitchings, for respondents.
   Schuchman, J.

—This is an appeal from an order dated August 3, 1896, directing the plaintiff to furnish to the defendants a bill of particulars. Said order is modified by striking therefrom the following : “ Showing the dates of orders upon the plaintiff for goods for the defendants,” and “ whether any and .what goods were returned to the plaintiff, with the-date of such return,” as contained in folio 55 of the printed appeal book ; also, “and their connection with the defendants, or either of them,” and “ what other persons, if any, were present at the time of making the sale,” as contained in folio 56 of the printed appeal book. For the reason that the defendants have better knowledge of their own acts than the plaintiff, and that it is not the office of a bill of particulars to apprise the opposite party of the names of witnesses, order appealed from modified as above, with costs of this appeal to the plaintiff against the defendants. Van Wyck, C. J., concurs.


text:
    Wallace, Appellant, v. Payne, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896.)
    Action by Robert Wallace against George E. Payne, individually, etc.
   No opinion. Motion for reargument granted, with $10 costs to abide the event.


text:
    Waterloo Wagon Co., Limited, Respondent, v. Kienetz, Appellant.
    (Supreme Court, Appellate Division, Third Department.
    Oct. 2, 1896.)
    Action by the Waterloo Wagon Company, Limited, against Andrew Kienetz.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Webster, Appellant, v. Village of Ballston Spa, Respondent.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by Sarah C. Webster against the village of Ballston Spa.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Weeks, Respondent, v. Pacher et al., Appellants.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 15, 1896.)
    Action by Angelina Weeks, executrix, etc., against Xavier Backer and others.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Weldon et al., Appellants, v. De Lisle et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    April, 1896.)
    Action by George Weldon and another against Fred J. De Lisle and another.
   No opinion. Judgment affirmed, with costs.


text:
    Weldon et al., Appellants, v. De Lisle et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    June, 1896.)
    Motion denied.
   Per Curiam.

—This, case was submitted on the 14th of March, 1896. Appellant now moves for a reargument, and one of the reasons urged is that the case was submitted instead of being argued orally. Upon an examination of all the grounds urged for reargument, we are of the opinion that the appellant has not made a case entitling him to a reargument according to well-established rules applicable to motions for reargument.Mount v. Mitchell, 33 N. Y. 703 ; Marine Nat. Bank v. National City Bank, 59 N. Y. 67; Bank v. Hunsiker, 73 N. Y. 252; Fosdick v. Town of Hempstead, 136 N. Y. 651. In the course of the examination of the case upon the merits, the court had occasion to refer to Billings v. Russell, 101 N. Y. 336, and Clapp v. Town of Ellington, 87 Hun, 543; and it reached the conclusion that the question involved and passed upon by the referee was one of fact. Vega v. French, 79 Hun, 364; Town of Corning v. Head, 86 Hun, 14 ; Devlin v. Bank, 135 N. Y. 756. Nothing is found in the motion papers submitted for reargument which is sufficient to induce the court to grant the motion.


text:
    Wells, Appellant, v. City of Brooklyn, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by Jane Wells against the city of Brooklyn.
   No opinion. Order resettled and signed.


text:
    Werner, Respondent, v. Steinway Ry. Co. of Long Island City, Appellant.
    (Supreme Court, Appellate Division, Second Department.
    Dec. 1, 1896.)
    Action by Lizzie Werner against the Stein way Railway Company of Long Island City.
   No opinion. Judgment and order unanimously affirmed, with costs.


text:
    Westcott et al. v. Higgins et al.

    (Supreme Court, Appellate Division, First Department.
    June, 1896.)
    Action by Clarence 31. Westcott and another against John H. Higgins and another.
   No opinion. Order affirmed, with §10 costs and disbursements.


text:
    Wm. H. Frank Brewing Co. v. Figundio.
    (Supreme Court,' Appellate Division, Second Department.
    Oct. 27, 1896.)
    Action by the Wm. H. Frank Brewing Company against Teresina Figundio.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Williams et al., Respondents, v. Robinson, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Louis L. Williams and others against William H. Robinson.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Winne, Appellant, v. Fanning et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 18, 1896.)
    Action by Isaac W. Winne against Benjamin Fanning and others.
   No opinion. Judgment affirmed, with costs. All concur.


text:
    Winterson v. Gardner.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by Maria L. Winterson against Maria Gardner.
   No opinion. Motion granted.


text:
    Wittenberg, Respondent, v. Seitz, Appellant.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Henry Wittenberg against Frederick Seitz, impleaded.
   No opinion. Motion denied, with $10 costs. All concur.


text:
    Wood, Appellant, v. Trumbull et al., Respondents.
    (Supreme Court, Appellate Division, Third Department.
    Dec. 2, 1896.)
    Action by Isaac R. T. Wood against John L. Trumbull and others.
   No opinion. Judgment affirmed, with costs. All concur..


text:
    Woodward, Appellant, v. Holland Medicine Co. et al., Respondents.
    (Supreme Court, Appellate Division, Fourth Department.
    Oct. 16, 1896.)
    Action by Charles H. Woodward against the Holland Medicine Company and others.
   No opinion. Order affirmed, with $10 costs and disbursements. All concur.


text:
    Zeiser, Respondent, v. Brooklyn, Q. C. & S. R. Co., Appellant.
    (Supreme Court, Appellate Division, Second Department.
    October 30, 1896.)
    Action by Frank S. Zeiser, administrator, etc., of' Josephine Zeiser, deceased, against the Brooklyn, Queens County & Suburban Railway Company.
   No opinion. Judgment and order affirmed, with costs. All concur.


text:
    Zeller, Appellant, v. Muth, Respondent.
    (Supreme Court, Appellate Term, First Department.
    October, 1896.)
    Action by Lorenz Zeller against John Muth. E. Miehling, for appellant. J. Cochrane, for respondent.
   No opinion. Reversed upon argument.


text:
    Ziegler, Appellant, v. Lamb, Respondent.
    (Supreme Court, Appellate Division, First Department.
    July, 1896.)
    Action by William Zeigler against Hugh Lamb.
   No opinion. Order modified so as to provide as follows : “It is ordered that plaintiff serve a verified bill of particulars upon the attorneys for the defendant within 20 days after the service of a copy of this order upon the attorneys for plaintiff, which said bill of particulars shall state specifically the items of the alleged injury to the building of the plaintiff, and the amount of damage each specific item of injury thereto causes,”—with $10 costs and disbursements to abide the event.


author: Rapallo, J.

text:
    Isaac Untermeyer and another, Resp’ts, v. Alfred J. Bemhauer, App’lt.

      (Court of Appeals,

      Filed May 8, 1887.)

    Í. Reference—Long account—Right to trial by jury,
    An action for unliquidated damages for the breach of a building contract, in which it is claimed that defendant abandoned the work, whereby plaintiffs were compelled to complete, in no sense involves any account, and both parties are entitled, under the constitution, to a trial by jury.
    2. Same.
    In his bill of particulars plaintiff specified eight items of damages relating to loss of interest of occupancy, etc., etc. MM, that these items did not constitute an account.
    3. Same.
    If the action is non-referable, a counter claim set up in the answer cannot make it so.
    4. Same—Motion fob reference, on what founded.

      Meld, that although the motion for reference was made upon an affidavit of plaintiff’s attorney, with no opposing affidavit, yet it was also founded upon the pleadings which are before the court, and it can judge whether an account will be involved in the trial of the issues.
    Appeal from order of supreme court, general term, first department, affirming order of reference made at special term.

      Philip L. Wilson, for app’lt; Samuel Untermeyer, for resp’ts.
   Rapallo, J.

This is an action brought against a builder, to recover damages for the breach of a contract to erect for the plaintiffs a dwelling-house in the city of New York within a stipulated time. The contract price of the work was 825,500, payable in installments. The contract was dated October 21, 1884, and by its terms the defendant agreed that he would fully inclose the building, so as to protect it against the weather, on or before the 20th of December, 1884, and would complete it for occupancy on or before the 30th of April, 1885; that he would commence the construction of the building immediately upon the execution of the contract, and would at no time between the commencement of the work and its completion cease to work thereon with a sufficient force, etc The breach alleged in the complaint is that the defendant, after having. commenced the erection of the building under this contract, ceased work thereon, and abandoned the work before its completion, whereby the plaintiffs were deprived of the use of the building, and were compelled, to employ other persons to complete the contract, at a cost exceeding the contract price, and sustaining damages to the amount of $7,000.

The defendant by his answer, denies the alleged breach; sets up that the agreement was unconscionable, and was executed by a mistake and under duress; that it was prepared by the plaintiffswho are lawyers, and did not fairly embody a previous verbal agreement under which the defendant had undertaken the job, and commenced the performance of the work, and that he was coerced into its execution, after having made and contracted for" large expenditures on the building; that the plaintiffs themselves violated the contract; and also that the plaintiffs are indebted to him for a balance due for work and labor on the building, which he sets up as a counter-claim, and he demands judgment that the contract be declared void, and deemed to have been executed under duress of property, and also for his counter-claim.

The plaintiffs moved for a reference of the action, and the court, at special term "made an order referring all the issues therein to a referee for hearing and determination. On appeal to the general term that order was affirmed, and the defendant now appeals.

The case presented by the complaint is clearly one in which both parties are entitled, under the constitution, to a trial by jury, and consequently it was beyond the power of the court to make an order of reference against the objection of either party. It was simply an action for unliquidated damages for the breach of a contract, and in no sense involved any account. A bill of particulars was furnished by the plaintiffs under an order of the court, and by this bill the plaintiffs specified eight items of damage, which consisted of loss of interest in the value of his property, loss of occupancy of the building, damage to the building occasioned by the defendant’s failure to inclose it, and increased cost of completing it. These items of damage did not constitute an account. It has repeatedly been held that when there is no “account” between the parties, in the ordinary acceptation of the term, the cause cannot be referred, although there may be- many items of damage. Camp v. Ingersoll, 86 N. Y., 433. This rule has been applied in actions on policies of insurance where there are many items of loss. It is contended that the counter-claim set up in the answer, of which a bill of particulars was also ordered and furnished, will require the examination of a long account. Even if this should be assumed, it would not make the action referable. “The character of .the action is determined by the complaint. The answer cannot change it. If the action is a referable one, the answer cannot make it non-referable ” (per Church, C. J., in Welsh v. Darrag, 52 N. Y., 590); and on the same principle, if the action is non-referable, a counter-claim set up in the answer cannot make it so, as was held by this court in Townsend v. Hendricks (40 How Pr., 143). The defendant has a constitutional right to trial by jury on the issues presented by the complaint and answer, and he does not waive .that right by setting up, in addition to his defenses, a counter-claim. If the plaintiffs prevail in the action, it may never become necessary to try the counter-claim. Should the counterclaim ever require examination, a reference can be ordered as to it after trial of the issues. Townsend v. Hendricks, supra, 164.

The plaintiffs rely upon the fact that the motion for a reference was made upon an affidavit of one of the plaintiffs’ attorneys which states that the trial of the issues will necessarily involve a long account, and that there was no opposing affidavit. But the motion was also founded upon the pleadings and the several bills of particulars, and they are all now before the court. From an examination of them, the court can judge as well as the attorney, whether any account will be involved- in the trial of the issues, and no opposing affidavit is necessary to enlighten us on that point.

The order should be reversed, and motion denied, with costs in both courts.

All concur.


author: Peckham, J.

text:
    Mark L. McDonald, Resp’t, v. Erwin Davis, App’lt.

      (Court of Appeals,

      Filed May 3, 1887.)

    1. Bankruptcy—Effect of discharge in, upon judgment—U. S. Stat., § 5105.
    A discharge in bankruptcy is a perfect defense to an action on a judgment founded upon a debt which existed at the time the bankruptcy proceedings were commenced, which debt was provable, and was in fact proved, in the bankruptcy proceedings.
    2. Same.
    The discharge operates only when pleaded like the defense of a release or payment, and it must exist in order to be pleaded, and, as the discharge had not been granted before judgment was entered, it was competent to interpose it, as a shield to any proceedings taken to enforce the judgment, by asking for a perpetual stay upon the execution, or as an answer to any action brought upon the judgment.
    8. Same.
    An order in the bankruptcy court in California, vacating the stay procured by defendant and permitting plaintiff to proceed, had no effect, by way of limitation, upon the subsequent discharge of defendant, and such stay could be properly pleaded in this action.

      Appeal from supreme court, general term, first department.

      Joseph H. Choate and Henry A. Boot, for app’lt; Edmund Randolph Robinson, for resp’t.

       Reversing 26 Hun, 23

   Peckham, J.

The judgment sued on herein was obtained in the state of California against defendant, intermediate the commencement by him of voluntary proceedings in bankruptcy in that state, and the granting of the discharge therein. The judgment was founded upon a debt which existed at the time the bankruptcy proceedings were commenced, which debt was provable, and was in fact proved, in the bankruptcy proceedings.

Under the bankrupt act of 1841, this court held that a discharge in bankruptcy operated upon such a judgment. Clark v. Rowling, 3 N. Y., 216. The ground upon which that decision rested was that although, technically, a judgment upon a contract merged the original debt, yet it did not do it so completely that the court could not look behind the judgment to see upon what it was founded, for the purpose of protecting the equitable rights of the parties in their original relations to each other. It was said that in such a case a judgment, instead of being regarded strictly as a new debt, was to be looked upon as the old debt in a new form, so as to prevent a technical merger from working injustice.

The learned counsel for the plaintiff claims, however, that there are some provisions of the late bankrupt law which differ in such a material degree from those of the law of 1841 as to call for a different disposition of the case. It is urged that in the act of 1841 there was no provision for a stay of proceedings in an action prior to the discharge in bankruptcy, and hence a judgment obtained prior thereto should be discharged by the certificate; while in the later act there is an express provision for such a stay, and a defendant has a legal right to it. The argument, then, is that if, having the legal right to a stay, he does not procure it, or, having once procured it, if it have been vacated by reason of his own neglect, the judgment then obtained ought to merge the debt, and escape the force of the dis- . charge in bankruptcy.

Although it does not appear that this precise argument has been heretofore used for the purpose of permitting such a judgment to remain notwithstanding the discharge, still the question of the effect of such discharge, under the later bankrupt act, upon a judgment obtained under similar circumstances to the one in suit, has been decided, and we do not think it wise to open the door to further discussion here. Monroe v. Upton, 50 N. Y., 593-597. That case detided the question in the same way as Clark v. Rowling (supra). Nothing said or decided in Revere Copper Co. v. Dimock (90 N. Y., 33) affects this question. The judgment in that case was subsequent to the discharge, and the court simply held that the determination, by the judgment, of the existence of a debt on that day, was conclusive, and the prior discharge could not be set up to dispute the absolute verity which the judgment imported. The cases of Clark v. Rowling and Monroe v. Upton (supra), were cited with approval, and distinguished from the one then under discussion. The case went to the supreme court of the United States, where the judgment was affirmed; the court holding that, as the discharge had been obtained before the entry of the judgment, application to the court should have been made for leave to plead it as a defense, and as that was not done, the judgment was valid like any other judgment in an action where a good defense existed, but had not been pleaded, and that such defense could not thereafter be set up in an action on the judgmerff Dimock v. Revere Copper Co., 117 U. S., 559-565. There is nothing in the case of Hill v. Harding (107 U. S., 631; 2 Sup. Ct. Rep., 404) which impairs the authority of the two cases in this court already referred to, and we must still adhere to the law as therein decided, although the courts of some other states may have taken a different view of the question.

Of course the discharge operates only when pleaded like the defense of a release or payment, and it must exist in order to be pleaded; hence the answer to the plaintiff’s claim that the supreme court of California was the only tribunal to which to apply for leave to set up the discharge. If the discharge had been in existence before judgment was entered, undoubtedly that tribunal would have been the one to apply to for leave to set it up as a defense to the action. As it had not been granted at that time, it was then competent to interpose it as a shield to any proceeding taken to enforce the judgment by asking for a perpetual stay upon the execution, if one were issued, or by setting it up as an answer to any action brought upon the judgment. This is all, as I understand the cases, that has been decided by any court of this state, or by the supreme court of the United States.

The next question is as to the construction and effect of the order in the bankruptcy court in California vacating the stay which defendant had procured, and permitting plaintiff to proceed with his case the same as if never restrained, and, in case he obtained judgment therein, permitting him to' take any other proceedings that the law and practice of the state court allowed. We think this older had no effect by way of limitation upon the subsequent discharge of defendant, and that it could therefore be properly pleaded, and its full legal force insisted upon,'in this action. The order simply took away from the defendant the protection of the statute while he was obtaining his discharge; leaving the plaintiff at liberty, if he could, to obtain judgment, and issue execution thereon, and enforce payment of his debt before the discharge was obtained.

This is, or might be, in many cases, a most desirable privilege to a plaintiff; while the defendant, by his negligence, is deprived of his ficedom from harassing litigation during the bankruptcy proceedings, which he otherwise would be entitled to, and which was one of the reasons for the provision granting a stay. Hill v. Harding (supra). As we think this to be the true construction of the order, it is unnecessary to examine the question of its legality, provided it were construed, as the court at general term did, as in effect a dismissal of the bankrupt proceedings as to the plaintiff, grounded upon the assumed right to dismiss them altogether, as to everybody, because the defendant had not applied to be discharged within one year after his adjudication as a bankrupt, there being, as alleged, no assets in the hands of the assignee.

The court should have granted the motion of defendant to direct a verdict for him on the ground of the discharge in bankruptcy being a perfect defense to the action.

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

All concur.


author: Earl, J.

text:
      In re Estate of Robert Soutter; Duchess D'Auxy, App’lt, v. Timothy H. Porter, Resp't.

      (Court of Appeals,

      Filed May 3, 1887 )
    1. Executor—Supplementary accounting—When ordered.
    James T. Soutter. by his last win and testament, gave his son Robert one tenth ot his estate Thereafter Robert died, leaving a will, by which he bequeathed one half his estate to the appellant, ami appointed respondent Ills executor, and after the accounts of the executor had been judicially settled the surrogate refused to grant an application for an order to compel him to lile a turther account, made on the ground that after the death of James T Soutter his executors loaned a large amount ot the assets of his estate to a film composed of William K Sou Iter, oue of his exccutois, ami the respondent Porter, and that Porter should account in refetence to the assets of James K Soutter, which thus came to the firm of Soutter & Co. Held, that the respondent cannot he held to have received any poilion of those assets as executor of Robert Soutter, simply because he was a member of the firm of Soutter & Co He could uot become responsible tm such assets of Robert Soutter until they should come into his hands as executor
    2. Same
    The proper remedy of this appellant was to have an administrator de boats non, with the will annexed, of her husband's estate, appointed, who could call the executois of James C. Soutter to account, and compel payment by them to him of whatever may still be due under the will of James T. Soutter to the estate ot Robert Soutter.

      Lewis Sanders, for app’lt; Stewart L. Woodford, for resp’t.
   Earl, J.

James T. Soutter died in February, 1873, leaving a last will and testament in which Agnes G. Soutter and William K. Soutter, his son, were appointed executors. The will was admitted to probate, and both executors qualified as such. In that will, among other dispositions of his property, the testator gave his son Robert Soutter one-tenth thereof. Thereafter, in July, 1873, Robert Soutter died, leaving a last will and testament, in which he appointed the respondent, Timothy H. Porter, his executor. That will was admitted to probate, and Porter qualified as executor. In it the testator bequeathed one half of his estate to his widow, the present appellant, who has since remarried and become the Duchess D’Auxy, In the winter of 1884 the respondent, Porter, presented his petition to the surrogate of New York, praying for a judicial settlement of his accounts as executor and as trustee under the will of Robert Soutter, and that he be allowed to resign his trust, and that his letters testamentary be revoked. In pursuance of that petition, citations were issued to the appellant and to the other parties interested in the estate, requiring them to appear on a day named to attend the accounting and the hearing upon the petition, and the citation thus issued was served upon all the parties named therein. The respondent filed his account as executor, which was duly examined and considered by the surrogate, and on the tenth day of March he made his decree, in which he ordered and adjudged that the account as filed be judicially settled and allowed, and the executor was directed to make certain payments to the appellant and to the trustee appointed in his placo. It was further ordered and adjudged that, after making such payments, the letters testamentary to the respondent should be revoked, and his resignation as executor and trustee accepted.

There is no dispute that the respondent fully performed the directions contained in the decree, and that his letter's thus became revoked, and his resignation accepted. After-wards, on the 31st day of March, 1886, upon the affidavit and application of the appellant’s attorney, the surrogate made an order that the respondent should show cause before him, on the 15th day of April, 1886, why he should not file a further account as executor of Robert Sou tier's estate, and why the decree entered on March 10, 1884, should not be set aside, and the account re opened. That order was served upon the respondent, and in pursuance thereof he appeared before the surrogate, and, after hearing the parties, on the 15th day of June, 1886, he made an order that the application to open the decree of March 10, 1884, and to compel a further accounting, be denied. From that order the Duchess D’Auxy appealed to the general term, and from affirmance there to this court.

The appellant united in her motion before the surrogate two distinct applications for relief—one to vacate and set aside the decree, and to re open the account; and the other for a further accounting. Upon the argument before us her counsel distinctly abandoned her claim to vacate and set aside the decree, and to re open the account; and contended only that the courts below erred in denying her a further accounting.

The respondent denies the appellant’s right to a further accounting upon various grounds It is, among other things, insisted that as legatee she has no right under the provisions of the Code to a further accounting, and that the decree made March 10, 1884, absolutely binds her until it shall be vacated or set aside, and that the only person who can? call for a further accounting or pursue the assets which she seeks to reach is an administrator with the will annexed, to be appointed by the surrogate. We will, however, assume that the decree judicially settling the respondent’s accounts had no greater foice or effect than is prescribed by section 2742 of the Code, and that the appellant had the right, upon the presentation to the surrogate of proper facts, to have a further accounting.

This decree judicially settling the accounts of the executor should have some force and effect. All the parties interested having been cited, the presumption should be indidged that the account was correct, and that the executor had accounted for all the property that came into his hands as such; and a further accounting should not be ordered unless it is made to appear that there are other matters not embraced in his former account for which he is responsible, and has not accounted. Brown v. Brown, 53 Barb., 217. It is not too much to ask of a party, who seeks to compel an executor who has once accounted to make a further account, to present to the surrogate a clear case before he shall be required to grant the application.

Now, what are the facts here upon which the further accounting is sought H It is not disputed that the respondent accounted for every dollar that came into his hands as executor of the estate of Robert Soutter But the facts upon which a further accounting are asked concern the estate of James T. Soutter, and are these : At the time of the death of James T. Soutter, William K Sou tier, one of his exécutors, and the respondent Porter, were bankers and brokers in the city of New York, under the firm name of Soutter & Co.,'and continued to do business as such until September 28, 1885, when they failed. After the death of James T. Soutter, his executors loaned and placed in their hands as a firm a large amount of the assets of the estate of James T. Soutter, and at the time of their failure they were largely indebted to that estate. By the new accounting the appellant seeks to compel the respondent to render an account in reference to the assets of James T. Soutter, which thus came to the firm of Soutter & Co. and for which they were indebted. But those assets did not come to the respondent*, nor under his control as executor. No part of them was set aside or appropriated as the portion of Robert Soutter under his father’s will. They remained subject to the control of the executors of James T. Soutter’s will, and to those executors the firm were bound to account for them; and for aught that appears those executors and that estate are abundantly able to respond to the estate of Robert Soutter for his share of the former estate under his father’s will. The assets belonging to the father’s estate in the hands of Soutter & Co. are still subject to administration by the executors of the father’s estate, and, if any share of them belongs to the estate of Robert Soutter, it must come through them. The respondent cannot be held to have received any portion of those assets as executor of Robert Soutter, simply because he was a member of the firm of Soutter & Co. He could not become responsible for those assets as executor of Robert Soutter until they should come into his hands as executor. It may turn out on the accounting of the executors of James T. Soutter that no part of those assets will be needed to discharge the obligation of the estate of James T. Soutter to that of Robert Soutter. So far as it is shown in this record, if there is any further obligation on the part of this respondent as executor, it is because he neglected for so long time to procure, from the estate of James T. Soutter, Robert’s share thereof; but it is not shown that that neglect has caused any damage to the estate of Robert Soutter, and whether it has or not cannot well be known until there has been an accounting of the executors of James T. Soutter.

The proper remedy of this appellant is to have an administrator de bonis non with the will annexed of her husband’s estate appointed. He can call the executors of James T. Soutter to an account, and compel payment by them to him of whatever may still be due under the will of James T. Soutter to the estate of Robert Soutter, and he will have ample power by proceedings before the surrogate, or by a proper action, to call the proper parties to an account for the estate of James T. Soutter. It may turn out that that estate is still sufficient to pay -whatever remains due to the estate of Robert Soutter, and, if it is not, that the executors thereof are able to respond for whatever of that estate has been lost through their negligence or misfeasance. If, however, it should turn out that the estate of Robert Soutter has been damaged by the delay of the respondent in collecting from the executors of James T. Soutter what was due to the estate of Robert Soutter, the respondent can then be called to an account by the administrator cle bonis non. But in this proceeding, in the absence of any proof that any portion of the estate of James T. Soutter came to him as executor, or was ever set apart to the estate of Robert Soutter, or that the latter estate has been damaged by the delay, there is no ground whatever for calling him to an account.

We are, therefore, of opinion that the appellant did not make a case which required the surrogate to order the respondent to render a further account, and the order of the general term should be affirmed, with costs.

All concur.


author: Danforth, J.

text:
    Wells, Fargo & Co., Resp’t, v. Erwin Davis, App’lt.

      (Court of Appeals,

      Filed May 10, 1887.)

    1. Appeal—Objection not raised below—Exemplification of foreign JUDGMENT.
    An objection that a paper purporting to be a copy of a judgment roll of the district court of the territory of Utah was not properly exemplified, in that it did not show that the person making it was either “ sole judge, chief-justice, or presiding magistrate of the court,” nor that, at the time of making it, the court from which it purports to come was composed of one judge only, and that the person making the certificate was that judge, although it would have raised a question if it had been presented to the trial court, cannot be considered here for the first time.
    2. Same—Interest in action on foreign judgment.
    In an action brought in this state upon a judgment obtained in Utah the court allowed interest at the rate of ten per cent per annum from the entry of said judgment: Held, error; that interest is given upon a judgment, not upon the principle of implied contract but as damages for delay in performing the obligation, and that plaintiff may properly recover seven per cent from the time of the rendition of the judgment in Utah until 1879, and six per cent from that time.
    Appeal by defendant from supreme court, general term, first department.
    This action was brought on a judgment recovered in the district court for the third judicial district of Utah territory, against Erwin Davis and John N. H. Patrick for $7,462.33, with interest thereon at the rate of ten per cent per annum, from the date thereof, till paid, with forty-nine dollars costs and disbursements. Patrick was not served wdth the summons in this action. The court in this action directed a verdict for plaintiff for the amount of the alleged judgment, with interest at ten per cent from the date of recovery.

      Henry A. Root, for app’lt; Wm. Bro. Smith, for resp’t.

       Modifying 34 Hun, 628, mem.

   Danforth, J.

There are two questions in this case :

First. Whether the paper purporting to be a copy of a judgment roll of the district court of the third judicial district of the territory» of Utah was properly exemplified; and, if so, then,
Second. Whether the plaintiff was entitled in this action to recover interest at the rate of ten per cent upon the sum adjudged thereby to be due.

1. The act of congress (Rev. St. U. S., § 905) requires that the “ records and judicial proceedings of the courts of any state or territory shall be proved or admitted in any other court within the United States, by the attestation of the clerk and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief-justice, or presiding magistrate that the said attestation is in due form.” These forms seem to have been strictly complied with. After the exemplification of the record under the seal of the court comes first the attestation of a judge described as “judge of the district court of the third judicial district, territory of Utah;” that the exemplification referred to is in due form of law; that O. J Averell, whose name is subscribed thereto, was at its date clerk of that court; and that the signature of his name is genuine. After that is the certificate of Averell, described as clerk of the court referred to, that its íecords are in his custody as such officer; that the foregoing is a copy of so much of said records as constitutes the judgment record in said cause; that he has compared the same with the original; and that the same is a correct transcript therefrom and the whole of such original. To this is affixed, as he certifies, his official seal. We have therefore a copy of the entire record, the attestation of the clerk, the seal of the court, and the certificate of an officer described as “judge ” of the court in which the judgment disclosed by the record appears to have been rendered.

The appellant’s objection at this point is that the certificate does not show that the person making it was either “sole judge, chief-justice, or presiding magistrate of the court; ” nor that, at the time of making it, the court from which it purports to come, was composed of one judge only, and that the person making the certificate was that judge. If this objection had been presented to the trial court and there insisted upon, it would be necessary to consider whether, in view of the decisions of other courts, cited by the learned counsel for the appellant, it would not be ground of error. But it was not there pointed out.

The objections to the admission of the copy of the judgment were of a different character. It was assumed by the defendant that the provisions of the laws of the United States applied to the case; but it was said (1) that no evi deuce had been offered of the organization of the court “ which rendered it ” as a territorial court of Utah, and that the judgment does not prove the organization of that court; (2) that the certificate of the clerk does not certify that the judge whose signature is attached to the certificate was a judge of the district court of Utah, and that the exemplification is not a proper one.

In Burnell v. Weld (76 N Y., 103), to which the appellant calls our attention, it appeared that the copy of the record offered in evidence was objected to upon the trial upon the ground that “it was not properly exemplified, as required by the act of congress, in that there was no certificate of the chief-justice,” and we were constrained to sustain an appeal from the ruling of the court below because the defect was specifically pointed out at the time its admission was objected to. It was not so in the case at bar. Had it been, other evidence might have been offered. An objection which could be obviated if made in time cannot prevail when taken for the first time in an appellate court. The same remarks apply to the point now made also for the first time, that the seal to the attestation clause was put directly upon the paper, whereas it is urged it should have been impressed upon wax or other adhesive substance. Without reference, however, to the laws of the United States (supra), we think the record was properly certified under the provisions of the laws of this state, and so admissible in evidence.

But we think the court erred in allowing interest upon the cause of action at the rate of ten per cent per annum. The judgment sued upon was entered in October, 1.877, upon a verdict of $7,462 33, and the record recites “that, by virtue of the law and the piemises aforesaid ”—the proceedings in the action—“ it is ordered and adjudged that saicl plaintiff have and recover from said defendants the sum of seven thousand four hundred and sixty-two and 33-100 dollars, with interest thereon at the late of ten per cent per annum from the date hereof till paid.” Upon the trial the-plaintiff's counsel pioved, against objection and exception by the defendant, that, under the laws of Utah relating to the subject, it was lawful to take ten per cent interest per annum, when the amount of interest has not been specified oi agreed upon, and computed interest upon the recovery from its date at ten per cent per annum, making, at that rate, the sum due upon the judgment of principal and interest, $12,063.88. This sum the court held the plaintiff was entitled to recover, and the defendant by proper exceptions to this ruling, and exceptions to the refusal of the court to charge otherwise, has fairly raised the proposition upon which he asks a modification of the judgment which followed this ruling. We think his contention must prevail under the rule already declared by this court, that interest is given upon a judgment, not on the principle of implied contract, but as damages for delay in performing the obligation.

In Taylor v. Wing (84 N. Y., 471) the mortgage in terms called for interest “at seven per cent until paid,” and by the judgment interest at the same rate was directed to be paid on the amount found due from the date of the decision. Upon appeal this was held to be wrong, and that after judgment the mortgage was merged therein, and thereafter plaintiff was entitled to interest, not by virtue of the mortgage, but of the judgment, and that the interest should have been at the lawful rate, i. e., six per cent. To the same effect was Salter v. Railroad Co. (86 N. Y., 401).

In Prouty v. Lake Shore and M. S. R’way Co. (95 N. Y., 667), the judgment before the court was by its terms payable with interest.

In O'Brien v. Young (95 N. Y., 428), that provision was lacking, but each judgment was recovered when the statutory rate of interest was seven per cent, and as to each it was held that the amount of interest to be collected on execution must be governed by statute, and that the rate changed when the general law reduced that rate to six per cent. Laws 1879, chap. 538. The fact that one judgment specifically provided for the payment of interest was not supposed to create any distinction in the application of the law regulating that question. The law of the state made every judgment interest bearing, and the obligation for its payment was not increased or varied by inserting a direction to that effect in the record. The provision in the judgment of Utah, therefore, in regard to interest, is of no more force in regulating the rate of interest upon suit brought in this state than is the statute of that territory which justified its court in allowing it. As the increase is allowed, not as interest, but as damages, its measure must be that of the state where the action for its recovery is. brought. The lex fori governs. This is the necessary result of the decisions in this court already referred to, and the same doctrine, as to similar cases, prevails in the courts of Massachusetts. Clark v. Child, 136 Mass., 344.

The respondent relies, as against this position, upon an expression in one of the opinions in the O'Brien Case (supra), to the effect that when a judgment requires a specified rate of interest to be paid, the rate specified becomes a part of the obligation to be discharged. That was said in reviewing Prouty v. Lake Shore and M. S. R’way Co. (supra)—a decision in equity which provided for a specific performance of a contract between parties in respect to certain dividends in arrear directed to be paid, with interest thereon from the entry of judgment until the same shall have been fully paid and satisfied.” The clause was held to be insufficient to justify the collection of interest at seven per cent after the act of 1879, although the judgment was recovered before that time; and the remark quoted was by way of argument merely, not essential to a disposition of any question upon which the case finally turned, nor to the conclusion that interest upon a judgment was allowable by way of penalty or damages for default! Concerning it, neither the law of Utah nor the judgment can have extraterritorial force. It seems to me, therefore, that the interest to be allowed as damages in this case should be governed by the law in force in this state at the time of the trial (Laws 1879, chap. 538), viz., six per cent; but a majority of the court are of opinion that the plaintiff may properly recover seven per cent interest from the time of the rendition of the judgment in Utah until the act of 1879 (supra) took effect, and from that time at the rate of six per cent.

The judgment should, therefore, be modified by deduct- • ing the difference between these rates for the times specified, and interest at ten per cent, and, as so modified, affirmed, without costs in this court.

All concur, except Earl and Finch, JJ. who vote for general affirmance.