text:
    The People ex rel. Jehiel B. White, Sheriff, App’lt, v. The Board of Supervisors of Clinton County, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 29, 1893.)

    1. Supervisors—Audit of accounts—Evidence.
    Supervisors are not compelled to receive evidence in regard to an account presented to them when such evidence could not affect their decision.
    2. Same—Sheeiff’s account.
    Where the return to a writ of mandamus shows that the board in auditing a sheriff’s account acted on the statement and admission of the sheriff, and allowed him at the proper rate for each day’s board actually furnished, it cannot be said that the board passed on the account without evidence being taken, or that they did not pass on the several items of the claim.
    Motion for reargument For former opinion see 46 St. Rep., 457.

      Weeds, Smith & Conway (Thomas F. Conway, of counsel), for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t.
   Per Curiam.

The relator insists that the allegation in his petition that the supervisors took no evidence in regard to his claim and refused to receive evidence offered by him is not denied and must, therefore, be deemed to be true. We think in this statement he is mistaken. While there is no technical denial of the statement above referred to in the return of the defendant, it does contain a substantial denial of such allegation.

The statement referred to in the petition is as follows: “And that said committee and board took no evidence in regard to the matters, accounts or items reduced or rejected, and declined to take and hear evidence offered to be produced and submitted to them by petitioner in regard to the same.” It will be seen that the petition does not state what evidence was offered or show that the same was material, or that it would be likely to change the result

But the return denies “that said board, or any committee thereof, acted arbitrarily and without evidence in auditing or rejecting the relator’s accounts, or any part or item thereof, but on the contrary intended to and did act with fairness to relator, and invited him to assist the sheriff’s committee of said board by presenting evidence and law that the said committee and board might understandingly, intelligently and fairly pass upon and audit said relator’s accounts, and that when said board or sheriff’s committee thereof reduced the relator’s account for boarding prisoners, that they did so only to the amount and rate of sixty cents per day for each day’s board actually had, the said relator having charged for a longer period than board was furnished by the relator, and said relator so admitted and stated to the sheriff’s committee and while auditing said accounts.” The return further-states the admission so made by the relator while his accounts', were being audited, and which admissions were acted upon by the board, and states that “said board of supervisors in auditing; the relator’s accounts allowed the relator for board actually furnished as near as they could do so from all the information furnished them by the relator or his accounts, and upon such statement or admission said reduction was made.” The affidavit of Tierney, which was made a part of the return, states that the. board allowed relator at the rate of sixty cents per day for each day’s board actually had, and that the deductions made by the board of supervisors from the amount charged by the relator were made upon his statement and admission.

The affidavit of Tierney was treated on the argument as a part of the return, and the return is to be taken as conclusive as to the facts. People ex rel. Sims v. The Fire Commissioners, 73 N. Y., 437.

It will thus be seen that the return denies that the account in question was passed upon by the board of supervisors without evidence being tahen. It shows that when the defendants acted upon the claim relator was present. He was invited to assist the sheriff’s committee of said board by presenting evidence of law, that the committee and board might understandingly, intelligently and fairly pass upon and audit his accounts. The return further-shows that he was allowed at the rate fixed by a former board of supervisors for the maintenance of each prisoner, and that the-amount allowed was determined by the statement and admission of the relator himself We fail to see, the relator’s own statement being acted upon by the supervisors, why any other evidence was-required. This evidence should be satisfactory to him, and the board having determined to act on his admission required no. other evidence.

The return sufficiently shows that the supervisors, as a board’, in auditing the account in question acted upon the admission-made by relator. The return states that said board of supervisors in auditing the account “ allowed the relator for board actually furnished as near as they could do so from all the information furnished them by the relator or his accounts, and upon such statement and admission said reduction was made."

The return also shows that the board passed upon the several items of the claim in question. The affidavit of Tierney, which, as we have seen, is to be deemed a part of the return, states, “ when said sheriff’s committee reduced the said account for boarding-prisoners that it did so only to the amount and at the rate of sixty cents per day for each day's board actually had, the said sheriff having charged for a longer period than the actual time that hoard was furnished by the said sheriff, and said relator so admitted and stated to the sheriff’s committee.” The affidavit further states “ that said sheriff’s committee * * * allowed the relator for board actually furnished as near as said committee could do so from all the information furnished them by the relator or his accounts and upon his statement and admission said reduction was made.”

It will thus be seen that the supervisors return that they allowed him at the rate of sixty cents per day for each day's hoard actually had. Without quoting further from the return we think ■that it sufficiently appears therefrom that the supervisors passed upon items of the relator’s claim. As stated in the memorandum handed down when this case was decided, the return of the supervisors seems to dispose of the objections to the action of the board in relation to the claim in question.

We think the motion should be denied, but are of the opinion that the order should be modified so that an appeal may be taken, if desired, to the court of appeals.

Motion for reargument denied and order modified as suggested, without costs to either party.

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


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Daniel Schmeer, Adm’r, Resp’t, v. The Gas Light Company of Syracuse, Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Negligence—Gas companies.
    Plaintiff’s intestate was fatally injured by an explosion of gas which escaped from an open pipe in the third floor of a new building. Upon request and after receiving a plan of the pipes in said building, the defendant had furnished a meter to the occupants of the lower floor, who had it' put in by a plumber employed by them, and who turned on the gas. The court charged that the plumber was not an agent of defendant, and it was not responsible for his negligence; but also charged that it was its duty to use reasonable care and diligence to prevent the gas from injuring persons by inhaling or explosion, and left it to the jury to say whether it ought not to have promulgated and insisted on compliance with a rule or regulation requiring any one who turned on the gas on such an occasion to examine the outlets at the different places where the meters were to be put on and see whether they were properly closed. Held, error; that defendant was not charged by the statute with any duty toward the protection of the occupants against the negligence of the agents of the owner or occupants.
    Appeal by the defendant, The Gas Light Company of Syracuse, from a judgment entered in Onondaga county, October 29, 1890, upon a verdict against it for $2,000; also from an order denying a motion on the minutes for a new trial.
    The action is based upon negligence. Both defendants are charged with it, but the jury found in favor of defendant Leahey.

      Martin A. Knapp and Edwin Nottingham, for app’lt; Louis Marshall, for resp’t.
   Merwin, J.

On the 19th April, 1889, Daniel Schmeer, Jr., the plaintiff’s intestate, was fatally injured by an explosion of illuminating gas in a building in Syracuse owned by George Young. The deceased lived with the plaintiff, his father, in apartments in the second story of the building, and in the evening of the day in. question gas was discovered to be escaping in the third story. The' attention of the deceased was called to it, and he went partly upstairs and then returned and said, “ I will get a light, and we will find the leak and fix it until morning.” Then, as Mrs. Ripple, & witness for plaintiff and one of the tenants in the third story, testifies, “ Mrs. Bordner says, ‘Don’t take no light.’ I repeated, ‘ Don’t take no lamp, you will set us afire.’ He said, ‘ I wont take a lamp, that will explode; I will take a candle, I have seen them test-pipes with a candle, I have seen it done.’ ” He then got a candle and went up stairs and the accident happened. It was afterwards'discovered that the end of a gas pipe, that had been carried to the hall in the third story for the purpose of there attaching a meter, was open.

The building was a new three story brick block. In the first, story were a double store and a single one. In each of the other stories there were three apartments or sets of rooms adapted for separate use. The owner employed one Tiley, a gas fitter and plumber of the city, to put in the gas pipes throughout the building, one of the provisions of his contract being: “ Put the joints together in red lead, all pipes to be capped, proven tight and caps left on.” The pipes were so arranged that there could be separate meters for each store and apartment. An horizontal pipe was placed in the cellar in connection with the pipe coming from the street, and from this horizontal pipe risers were carried up in the partitions and let into the halls in the second and third stories and there the ends were capped or plugged, or designed to be, until meters should be attached for the use of the tenants.

On 29th March, 1889, Mr. Young applied to the defendant, The Gas Light Company, for a service pipe into the building, and soon after the application it was put in by the company and led from the main of the company in the street to the inside of the cellar wall. It was conceded at the trial that this service pipe “ was of proper size, properly put in and left in proper condition, with the gas shut off.” A shut-off cock, by which the gas could be turned on or off from the buildings, was placed in this pipe at the curbstone, and access was had to this stop-cock by means of a kind of key which was operated from the surface of the street through a round iron box having a cover which was fastened. The pipes in the building were connected with this service pipe by Tiley a few days before the accident.

On the 18th April, Yinney & Krause, the occupants of the-double store, applied to the gas company for a meter. The company declined to furnish it until they had received from Mr. Tiley the plans of the gas system of the building. These plans were furnished by Tiley the forepart of April 19th, and then a meter was sent by the company to Yinney & Krause. The defendant Lealiey was a plumber apparently in the employ of Yinney & Krause, and he or his employees attached the meter to the horizontal pipe in the cellar by means of a branch or riser entirely separate from the risers that went to the stories above. , This being done, he or his men turned,the gas on at the stop-cock in the street. This operated not only to send gas through the meter of Yinney & Krause, but also through the horizontal pipe in the cellar and up the risers that had been carried to the second and third stories for the accommodation of meters to be thereafter placed there. The escape followed at the locality of the accident.

The gas company in the course of its business allowed plumbers who put in meters that were sent by it to a building for use to turn on the gas at the completion of their work. The plumbers had keys or instruments of their own with which they did it. When meters were put in for the first time, it was not the custom, of the company to make the connections. That was done by plumbers in the employ of Those who wanted to use the gas.

The evidence seems to be undisputed that when plans were furnished to the gas company by the plumbers who put into the building the gas pipes, that was understood by both parties to be a representation that the piping had been properly tested and was ready for use.

Leahey or his employees when they put in the meter did not examine to see whether the outlets in the other parts of the building were closed. They seemed to act upon the theory that after plans were furnished by Tiley to the company, and the latter furnished a meter to the occupant, they had a right to assume that the pipes in the building were all right The verdict of the jury in favor of Leahey is to the effect that he, or his agents, were not guilty of any negligence. Upon the evidence there seems to be no question but that Leahey and Tiley were competent plumbers.

The court, charged the jury that neither Tiley or Leahey were agents of the gas company, and that the company was not responsible for the failure of either to perform any duty he owed plaintiff’s intestate ; that “if the gas company allowed and permitted agents employed by consumers to let on gas without sufficiently securing the outlets of pipes put in or used by such consumers, the company is not liable for the acts of such agents or the consequences resulting therefrom; ” that “ the mere fact that consumers or their agents were allowed and permitted to turn on gas at the curbstone did not make the company liable for the consequences of so doing, when the company had nothing to do in fact with the act of turning on the gas; ” that the gas company “ owed no duty to the plaintiff’s intestate which, required it to inspect the gas pipes in buildings such as that in question, put in by a plumber employed by the owner or consumer, before allowing the gas to be let into the building, unless requested to make such inspection.”

The court, however, charged that it was the duty of the company to use reasonable care and diligence to prevent the gas from injuring persons by inhaling ór explosion, and then left it to the jury to say whether in the discharge of this duty it ought not to have made and promulgated, and insisted upon a compliance with a rule or regulation requiring that whoever turned on the gas upon an occasion like the one in controversy should, at the time, examine and see whether the outlets at the different places where meters were to be put on were properly closed. The verdict of the jury against the company in effect found that the company was negligent in the regard specified and that such negligence produced the injury.

It seems, therefore, to have been held that the company were not bound to inspect, but that they were bound to make a rule for an inspection by the employees of the occupant or owner. There are cases where a corporation is required to make rules and regulations for the conduct of its business and the guidance and control of its servants, Whittaker v. D. & H. C. Co., 126 N. Y., 549 ; 38 St. Rep., 523, but the rule applied here seems to go beyond the scope of those cases.

By the statute, chapter 311 of 1859, § 6, it is provided that, “ upon the application in writing of the owner or occupant of any building or premises within one hundred feet of any main laid down by any such gas-light company, and payment by him of all money due from him to the company, the company shall supply gas as may be required for lighting such building or premises.” By § 8 of the act, the company by its duly authorized agent might, at all reasonable times, “ enter any dwelling, store, building, room or place lighted with gas supplied by such, company, for the purpose of inspecting and examining the meters, pipes, fittings and works for supplying or regulating the supply of gas and of ascertaining the quantity of gas consumed or supplied.”

The defendant here was called on to supply gas to this build-' ing, and accordingly did so by laying its service pipe from the main to the inside of the cellar wall and leaving it in proper condition. The company had no control of the pipes in the building beyond its service pipe; it had nothing to say as to how the owner should put in or locate his pipes or fix the places for the meters or guard against the escape of gas in the building. They could inspect for the purpose of protecting their rights as to the quantity of gas consumed or supplied. • They were not charged by the statute with any duty toward the protection of the occupants against the negligence of the agents of the owner or occupants. .

The gas escaped from a portion of the pipe owned by the owner of the building and where, in accordance with the system of pipes which he adopted, the gas was received preparatory to use from a meter. It was in a receptacle furnished by the owner of the building, and the company had no reason to believe it was defective. On the contrary, it was assured by a competent expert,, so far as the case shows, that the pipe was safe and ready for use.

If the company in the ordinary course of its business allow a party to take its gas into a receptacle furnished and owned by the party himself and preparatory to its use in his building, and the company have no knowledge or any reasonable ground for believing that such receptacle is defective, I fail to see any basis for negligence.

In Flint v. Gloucester Gas Light Co., 3 Allen, 343, it was held that a gas light company which had no charge of the pipes or fixtures inside of the meters in the buildings to which it furnishes gas, is not made responsible in damages for an injury caused by an explosion of gas in a room into which it had escaped by reason of negligence in letting it on before the end of a gas pipe leading into the room was closed, merely by having uniformly permitted without objection the person employed by gas consumers to put in such pipe and fixtures to let on the gas after so doing.

In 2 Shearman & Redfield on Negligence, 4th ed., § 697, it is said: “ The mere fact of the escape of gas, washings or refuse from a place under control of the company is sufficient evidence to raise a presumption of its negligence; but the fact of such an escape from apparatus connecting with the property of the company, but not under its control, is not sufficient, especially if the apparatus is the property of the plaintiff. Nor will it alter the case to show that the company had access to the place where the escape occurred.”

We are of the opinion that the theory upon which the jury were allowed to find the gas company negligent is not tenable, and, therefore, there must be a new trial.

Judgment and order reversed and new trial granted, costs to abide the event.

Hardin, P. J., and Martin, J., concur.


text:
    Fred. C. Eddy, Rec’r, pl’ff, v. The London Assurance Corporation, App’lt, and Giles Everson, Resp’t. Fred. C. Eddy, Rec’r, Pl’ff, v. The Liberty Insurance Co., App’lt, and Giles Everson, Resp’t. Fred. C. Eddy, Rec’r, Pl’ff, v. The Fire Association of Philadelphia, App’lt, and Giles Everson, Resp’t. Fred C. Eddy, Rec’r, Pl’ff, v. The Phenix Insurance Co. of Hartford, Conn., App’lt, and Giles Everson, Resp’t. Fred. C. Eddy, Rec’r, Pl’ff, v. The Westchester Fire Ins. Co., App’lt, and Giles Everson, Resp’t. Fred. C. Eddy, Rec’r, Pl’ff, v. The New York Bowery Fire Insurance Co., App’lt, and Giles Everson, Resp’t. Fred. C. Eddy, Rec’r, Pl’ff, v. The Williamsburgh City Fire Insurance Co., App’lt, and Giles Everson, Resp’t. Fred. C. Eddy, Rec’r, Pl’ff, v. The Williamsburgh City Fire Insurance Co., App’lt, and Giles Everson, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Ihsubance (vibe)—Mobt&agee clause—Fobeclosube.
    Where a standard fire policy contains a mortgagee clause to the effect that the mortgagee’s interest shall not be affected by any act of the owner, foreclosure, change of ownership or occupation for extra hazardous purposes ; and also providing that when the insurer should pay the mortgagee any sum for loss and should claim that as against the mortgagor no liability existed, the insurer should to the extent of the payment be subrogated to the rights of the mortgagee, or might pay the whole of the mortgage debt and receive an assignment of the mortgage and collateral securities, and that no subrogation should impair the right of the mortgagee to recover the full amount of his claim, the mortgagee has a right to enforce his securities to the full amount of his debt, and is not precluded thereby from recovering against the insurer on the ground that he has thereby impaired its right of subrogation.
    3, Same—Over insurance—Apportionment op loss.
    Under such a policy, where the owner procures other insurance in excess of that permitted by the policies in question, without the knowledge or consent of the mortgagee and not for his benefit, the companies which insured the mortgagee’s interest are not entitled to the benefit of such additional insurance in making an apportionment of the loss.
    3. Same—Appraisal op loss.
    Where the appraisers have made an award which is apparently full and complete, they have no right thereafter, in the absence of a further agreement on that subject, to make a further award.
    Appeal in each of the above entitled actions from a judgment entered in Onondaga county on July 8,. 1891, upon the report of a referee in favor of the respondent, against the appellant. All of the actions are upon policies of insurance, obtained by the plaintiff or his predecessor in title, and having the loss payable to Everson as mortgagee. The actions were tried together, the evidence given being deemed to be given in all the cases. There were separate reports and judgments. Everson was made party defendant because he declined to be plaintiff, and he put in an au-l swer in each case, and served it on his co-defendant.
    In and prior to December, 1887, the Syracuse Screw Company, a manufacturing corporation, was the owner of certain property in the city of Syracuse, having thereon two buildings, one on Pearl street and the other on Lock street. Everson had three mortgages, given by the company upon the entire property, to the amount altogether of about $30,000. On the 17th- December, 1887, the London Assurance Corporation, the Eire Association of Philadelphia, Pa., the Phenix Insurance Company of Hartford, Conn., and the Eire Insurance Association of London, England, each issued a policy insuring the company for the term of one year against loss or damage by fire, to an amount not exceeding two thousand dollars, upon the Pearl street property. On December 29, 1887, a similar policy for same amount was issued by the Liberty Insurance Company of New York city. Each of these five policies had the clause, “ privilege for ten thousand dollars concurrent insurance, including this policy.” On the 16th Mayr 1888, the plaintiff was duly appointed receiver of the Syracuse. Screw Company, and the policies, by proper endorsement, were' continued in force for the benefit of the receiver, loss payable as, before. On the 19th November, 1888, the New York Bowery Eire Insurance Company and the Williamsburgh City Eire Insurance Company each issued a policy insuring the plaintiff, as receiver, for the term of one year, against loss or damage by fire, to an amount not exceeding two thousand dollars, upon the Lock street property. On November 20, 1888, the Phenix Insurance Company of Hartford, Conn., and the Westchester Fire Insurance Company of Hew York, each issued a similar policy for same .amount Each of these four policies had the clause, “ other insurance permitted.”
    The nine policies above described are the policies upon which "these actions are brought, and each is in the form known as the Standard Fire Insurance policy of the state of Hew York, and contains, among other things, the following conditions:
    “ This entire policy, unless otherwise provided by agreement endorsed hereon, or added hereto, shall be void if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy, by virtue of any mortgage or trust deed.”
    “ This entire policy, unless otherwise provided by agreement, endorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.”
    “ This company shall not be liable under this policy for a greater proportion of any loss on the described property, or for loss by and expense of removal from premises endangered by fire, than the amount hereby insured shall bear to the whole insurance, whether valid or not, or by solvent or insolvent insurers, covering such property, arid the extent of the application of the' insurance under this policy, or of the contribution to be made by this company in case of loss, may be. provided for by agreement^ or condition written hereon or attached or appended hereto.”
    To each policy there is attached a “mortgage clause,” so called. This clause in the policies of the London Assurance Corporation, the Fire Association of Philadelphia, Pa., and the Phenix Insurance Company of date December 17, 1887, has, among'others, the following paragraphs:
    “ Loss or damage, if any, under this policy, shall be payable to Giles Everson, as first mortgagee (or trustee), as interest may appear, and this insurance, as to the interest of - the mortgagee (or trustee) only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided, that in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same.”
    “ In case of any other insurance upon the within described property, this company shall not be liable under this policy for a greater proportion of any loss or damage sustained than the sum hereby insured bears to the whole amount of insurance on said property, issued to or held by any party or parties having an insurable interest therein, whether as owner, mortgagee or otherwise.”
    “ Whenever this company shall pay the mortgagee (or trustee) any sum. for loss or damage under this policy, and shall claim that as to the mortgagor or owner no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made under all securities held as collateral to the mortgage debt, or may, at its option, pay- to the mortgagee {or trustee) the whole principal due to or to grow due on the mortgage, with interest, and shall thereupon receive a full assignment and transfer of the mortgage, and all of such other securities ; but no subrogation shall impair the right of the mortgagee (or trustee) to recover the full amount of his claim.”
    The mortgagee clause in the other policies in controversy were the same, except that the second paragraph above quoted was omitted.
    On the 4th December, 1888, the property insured was partially destroyed by fire. Thereafter, under the provisions of the policies, an appraisal was made of the loss. Upon the Pearl street property the loss was found to be $5,225.15. Upon the Lock street property the loss, as the referee finds, was appraised at $5,322.68. The appellants claim that in this the referee erred and that the appraisal should be found at $4,877.76.
    On 9th June, 1888, the defendant Everson commenced in the supreme court an action for the foreclosure of the three mortgages held by him. To the last one of the mortgages the receiver put in a defense. The action as to the other two was severed and judgment of foreclosure upon them was entered on the 17th December, 1888. A sale thereon was had on January 9, 1889, and the entire property sold for $15,400, leaving a deficiency unpaid of $4,921.86. Such proceedings were thereafter taken in the action that Everson on the 19th February, 1890, recovered judgment upon his other mortgage, it being adjudged that there was due him thereon the sum of $12,474, aside from the deficiency above stated. Wo consent for or agreement in relation to the foreclosure proceeedings was ever obtained from any of.the insurance companies.
    On the 2d and 25th July, 1888, the plaintiff obtained from other companies other insurance upon the Pearl street property to the amount of $2,750, running one year. Wo consent to this additional insurance was given by any of the insurance companies in the present controversy.
    The plaintiff also at the same dates obtained additional insurance upon the Lock street property to the amount of $1,750, running one year. This additional insurance in both cases was without the knowledge or consent of Everson.
    The referee decided that the foreclosure proceedings without the consent of the insurance companies rendered the contracts of insurance void as betw'een the plaintiff and the defendant companies, and that the insurance upon the Pearl street property was also void as between the plaintiff and the companies by reason of the additional insurance beyond the $10,000. He, however, held that as between the companies and Everson, the insurance was good, and that the rights of Everson were not affected by the additional insurance or by the foreclosure proceedings, and that he was entitled to have the loss upon the Pearl street property apportioned among the cornpanies upon the basis of $10,000 insurance, and the loss upon the Lock street property upon the basis of $8,000 insurance. This resulted in a judgment in favor ol Everson against each of the companies who issued a policy on the Pearl street property for the sum of $1,045.03, and against each of the companies who issued a policy on the Lock street property for $1,330.67, with interest from March 29, 1889, besides costs.
    The referee also adjudged in each case that the insurance company ‘‘upon making payment to said Everson of said loss, is entitled to be subrogated to all the rights of said Everson under any and all securities he may hold as collateral to the said mortgage debt, to the extent of such payment, or to pay the said debt and receive an assignment in full thereof, together with all such securities; but such subrogation cannot impair defendant Ever-son’s right to enforce the collection of his claim in full against the principal debtor or by means of any collateral security he may hold.”
    The plaintiff did not appeal.

      A. H. Sawyer, for app’lts; Waters, McLennan & Waters, for resp’t.
   Merwin, J.

The questions upon these appeals relate to the rights of the mortgagee against the insurers. The appellants claim that their right of subrogation has been impaired by the foreclosure and sale; that the mortgagee by such sale has put it out of his power to subrogate the insurers to the rights which he had under his securities at the time of the fire, and that, therefore, he cannot recover for the loss.

By the mortgagee clause, it was provided that, whenever the insurer should pay the mortgagee any sum for loss and should claim that as to the mortgagor no liability therefor existed, the insurer should, to the extent of such payment, be thereupon legally subrogated to all the rights of the mortgagee, under all securities held as collateral to the mortgage debt, or at its option might pay to the mortgagee the whole of the mortgage debt and thereupon receive a full assignment of the mortgage and all such other securities. It was also provided that no subrogation should impair the right of the mortgagee to recover the full amount of his claim. This permitted the mortgagee to continue the foreclosure proceedings, which were commenced long before the fire, and to apply the proceeds of the sale upon the mortgage debt. In no other way would the right of the mortgagee to recover the full amount of his debt be preserved in accordance with the express stipulation. After the application of such proceeds, there still remained a large deficiency, much more than the entire claim against the insurers. The latter did not offer to pay the mortgage debt, as they might have done and taken an assignment.

The appellants in substance claim that, upon payment of the loss, they became owners of an equivalent proportion of the mortgage debt and would be entitled to the benefit of the same proportion of the proceeds of the securities. This, however, would be inconsistent with the right reserved to the mortgagee to collect the full amount of his claim and that the subrogation should not impair it.

In Foster v. Van Reed, 70 N. Y., 19, there was a provision in the policy that in case of loss the assured should assign to the insurer an interest in the mortgage equal to the amount of loss paid. The insurer however paid the full amount of the mortgage and therefore no question of importance here was considered. In Lett v. Guardian Fire Ins. Co., 52 Hun, 570; 24 St. Rep., 658; 125 N. Y., 82; 84 St. Rep., 411, the plaintiff was assignee of the policy but not of the mortgage. He represented the owner of the property, but as to the owner the policy was void. The mortgaged property after the loss was fully sufficient to pay the entire mortgage debt It was held that plaintiff could not recover as he could not give effect to the right of subrogation which the insurer had upon payment of the loss. Many other cases are cited by the counsel for the appellants, but I find none that sustains the position that under a mortgagee clause like the present one the mortgagee could not enforce his securities to the full amount of his debt. Hi's right to do this was superior to the right of subrogation and so made in express terms.

The appellants further claim that the referee erred in excluding from the basis of apportionment the additional insurance that the plaintiff had obtained and in which the mortgagee had no interest.

In the policies upon the Pearl street property, the limit of insurance was placed at $10,000. The additional insurance was in violation of this provision and this as against the plaintiff made the policies in suit on that property void. In the policies on the Lock street property, there was no such limit. All the additional insurance was without the knowledge or consent of the mortgagee. By the mortgagee clause, it was provided that the insurance as to the interest of the mortgagee “ shall not be invalidated by any act or neglect of the mortgagor or owner.” Does this prevent the insurers from having in the apportionment of the loss the benefit of the additional insurance?

In the body of each of the policies in suit there is a provision that the insurer shall not be liable for a greater proportion of any loss on the described property than the amount thereby insured shall bear to the whole insurance whether valid or not. The claim of the appellants is that there is nothing in the mortgagee clause that will prevent giving effect to this provision and therefore including in the apportionment the additional insurance. It was however decided in Hastings v. Westchester Fire Ins. Co., 73 N. Y., 141, in regard to the effect of a similar provision in a policy and a mortgagee clause in this respect like the one here, that the insurer was not entitled in the apportionment to the benefit of additional insurance obtained by the mortgagor without the knowledge of the mortgagee, although by the policy other insurance was permitted, as it was here in the four policies on the Lock street property. It was there held that the mortgagee clause operated as an independent insurance of the mortgagee’s interest and gave him the same benefit as if he had taken out a separate policy free from the conditions imposed upon the owner and making him responsible only for his own acts. See also, Hartford Fire Ins. Co. v. Olcott, 97 Ill., 455.

The Hastings case, it seems to me, disposes, adversely to the appellants, of all question as to the apportionment, except, perhaps, in the cases of the London Assurance Corporation, the Fire Association of Pennsylvania, and the case of the Phenix Ins. Co. under its first policy. The mortgagee clause in those three cases had an additional paragraph, that in case of any other insurance upon the described property the company shall not be liable for a greater proportion of any loss than the sum thereby insured bears to the whole amount of insurance on the property, issued to or held by any party or parties having an insurable interest therein, whether as owner, mortgagee, or otherwise. In each of those three policies the insurance wás limited to $10,000, and the obtaining of the additional insurance was in violation of this provision, ana as against the mortgagor made the policies void. Here, according to the decision in the Hastings case, there was an independent contract between the mortgagee and the insurers, by one provision of which it was agreed that the mortgagee should not be injured by the act of the mortgagor in obtaining additional insurance. Can it be held that by another provision it was understood that he should be injured by such act ? Was it the intent of the parties thát insurance, obtained by the owner in violation of the limit provided for and by reason of which the insurance would be void as against the owner, and the insurer, if it paid a loss to the mortgagee, would have the right of subrogation, should be included in the apportionment of the loss ? Effect must be given, if possible, to all the provisions of the contract. The main object of the-whole was to give the mortgagee a security upon which he could rely. Any act or neglect of the mortgagor or owner is to be thrown out of view as impairing the security of the mortgagee.. This would throw out of consideration the question of additional' insurance, as that was the unauthorized- act of the owner, and would leave the apportioning paragraph to apply only to the insurance obtained within the authorized limit, or to any insurance obtained upon the interest of the mortgagee himself. The general rule is that before different policies of fire insurance can be held to contribute to the same loss, the insurance must have been upon the same interest in the same property, or some part thereof. Lowell Manufacturing Co. v. Safeguard Fire Ins. Co., 88 N. Y., 591. In Acer v. Merchants' Ins. Co., 57 Barb., 68, the policy issued to plaintiff contained the condition that “ if the assured, or any other person or parties interested, shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not), against loss or damage by fire, on the property hereby insured, not consented to by this company, * * * then this insurance shall be void and of no effect.” It was held that the expression, “ other persons or parties interested,” referred merely to the parties interested in the plaintiff's insurance, and that if other parties who had a different interest obtained insurance upon their interest, the plaintiff’s policy would not be invalidated.

We think that the additional insurance should not be considered in making the apportionment of the loss.

The only other question that need be considered relates to the amount of damages recoverable upon the policies upon the Lock street property. It is claimed by the appellants that the referee erred in finding that the award of loss on that property was the sum of $5,322.68, and that it should have been the sum of $4,877.76. The difference, being the sum of $444.92, was made up from two supplemental statements, one of $28405 and the other of $160.90.

In pursuance of the provisions of the policies an agreement for the appraisal of the amount of the loss was entered into by the parties, a separate agreement being made as to each property. In each agreement, E. M. Allen and D. L Langworthy were named as appraisers, and they in each case named Henry Russell as umpire. The agreement is dated December 7, 1888. Thereafter the appraisers made an award as to the Pearl street property which is dated December 21, 1888, and about which there is no dispute. An award was made by the appraisers and the umpire as to the Lock street property which is dated December 28, 1888, and fixes the damage at $4,877.76. At the end of this there is a written approval signed by Everson. This appraisal in form is complete and covers the whole subject that was submitted by the agreement and no reference is made to other or further papers or statements. After the admission in evidence of the appraisals above referred to, Mr. Wilson, the attorney for plaintiff, testified: “ I knew about the time when the appraisal was being made; after the appraisal I looked at the papers which they made; I found them at the insurance office of Pickard & Jones, the insurance agents who issued the policies, or some of them; I found the awards which have been introduced in evidence here; I found two additional papers with them, two papers in addition to the two that have been introduced in evidence; I have inquired of Mr. Jones for those papers; Mr. Jones is in court; he states that he has looked for the papers among his papers and is unable to find them.” The witness further testified that he made and had correct copies of the two papers and that they were signed by the appraisers Allen and Langworthy.

Upon cross examination he testified that there were two separate papers; that Henry Boggs, whose name appeared attached to one of the papers, was a machinist, and that he knew nothing about what he had to do with the case except what the appraisers said ; that the appraisers lived in Syracuse; that the two papers were with the two awards in a package, folded' in together, and in Mr. Jones’ possession ; that they were not physically attached to the awards. The copies were then received in evidence over the defendants’ objections which stated, among other grounds, that no sufficient foundation was laid for the admission of the copies, and that they were incompetent and immaterial. It appeared that notice to produce had been served upon defendants’ attornies.

Both of these papers bear date January 15, 1889. One purports to be signed by Hqnry Boggs, E. M. Allen and D. I. Lang-worthy, and is headed “ Estimate of damages on the following items in building of screw works.” The items named are “ leather belting,” “ shafting, pulleys, hangers, etc.,” Worthington steam pump ” and “ small steam pump,” and the aggregate of the damages carried out is $284.05. At the bottom is entered “ Pearl street.” The other paper purports to be signed by Allen and Langworthy, and is as follows : “We, the undersigned, find items to be added to award of fire damages upon Lock street building as follows; Benches and ceilings (shelving), $83.90; counters, $40 ; stairs, $20 ; water tank, $7 ; doors and frames, $10. Total, $160.90.” There is evidence tending to show that the items in both papers were in or a part of the Lock street building. The referee, in his special findings, found “ that an additional award was also made of $444.95.” This was a finding in effect that the two papers together constituted an additional award and was valid as such.

Assuming that a case was made for introducing in evidence copies instead of the originals, the question is whether they amount to a valid additional award. In the first paper there is nothing indicating a design to add to the award on the Lock street property, or to indicate that the damages to the items there specified, so far as they were covered by the policies, were not fully included in the awards already made. In the second paper, there appears an intention to add to an award already made of damages “upon Lock street building.” This subject was specifically passed upon in the original award. That was dated December 28, 1888, and upon the evidence as it stands, we must presume that it was then delivered. The appraisers had no right after that to make an additional award, there being no evidence to show that there was any further agreement upon the subject. Doke v. James, 4 N. Y., 568 ; Fallon v. Kelehar, 16 Hun, 266; Flannery v. Sahagian, 45 St. Rep., 598. The second award would be void. Bayne v. Morris, 1 Wall., 97. The first or original award was approved by Everson. There is no explanation as to the making of the subsequent papers. In the proofs of loss on the Lock street property the amount claimed was $4,914.76. The original award was $4,877.76.

It must, I think, be held that neither of the two additional papers constituted a valid additional award, and that the evidence is not sufficient to justify the finding that they, or either of them, can be deemed a part of the original award. It follows that the recoveries upon the policies on the Lock street property must be based on the loss at $4,877.76. This involves a reduction of the recovery on each of those four policies from the sum of $1,330.67, and interest from March 29, 1889, to the sum of $1,219.44, with interest from the same date.

No sufficient reason is apparent for any other interference with the judgments appealed from.

The judgments in the cases against the London Assurance Corporation, the Liberty Insurance Co. of New York city, the Fire Association of Philadelphia, Pa., and the Fire Insurance Association of London, England, are affirmed, with costs. The judgments in the cases against the Westchester Fire Insurance Co., the New York Bowery Fire Ins. Co., and the Williamsburgh City Fire Ins. Co, are modified by reducing the recovery in each case to the sum of $1,219.44, with interest from March 29, 1889, and as modified affirmed, without costs of the appeal to either party. The judgment in the case against the Phenix Insurance Company is modified by reducing the recovery on the policy dated November 20, 1888, to the sum of $1,219.44, with interest from March 29, 1889, and as modified affirmed, without costs of the appeal to either party.

Hardin, P. J., and Martin, J., concur.


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    Marcus Brounstein, Resp’t, v. David A. Sahlein et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1893.)

    1. Malicious prosecution—Replevin.
    An action for malicious prosecution may be maintained for the bringing of a civil action in replevin and the taking of goods therein.
    2. Same—Probable cause.
    After the trial and verdict for the defendant in one of several actio ¡is of replevin, brought by different parties, upon the event of which it was agreed the others were to depend, a stipulation was given by the plaintiffs in one of them, discontinuing the action, and that defendant might enter judgment dismissing the complaint. In an action for malicious prosecution, Held, error to charge that such discontinuance was prima facie evidence of want of probable cause.
    Appeal from a judgment entered in Onondaga county on the 14th March, 1891, upon a verdict at the Onondaga circuit in favor of plaintiff for $3,000; also from an order denying a motion on the minutes for a new trial.
    Action for malicious prosecution.

      W. C. Tracy, for app’lts; Louis Marshall, for resp’t.
   Merwin, J.

On or about December 4,. 1882, the defendants in this action brought an action in replevin against the plaintiff herein to recover the possession of goods to the amount of about fourteen hundred dollars, which had been a short time previous purchased by Brounstein of these defendants or their assignors, Levinson & Co. The purchases by Brounstein were on time that had not expired, and the theory of the replevin action was that the purchases were fraudulent, so that the defendants had a right to rescind the sale and recover the property itself. A portion of the property was taken from Brounstein by the sheriff upon the process issued. Two similar actions were previously brought by other creditors against Brounstein. One of the latter was after-wards brought to trial and resulted in a verdict in favor of Brounstein. Thereupon the action of Sahlein against Brounstein was discontinued. Soon after that the present action was brought. The plaintiff claims that the action in replevin was brought without probable cause and from malice, and the verdict of the jury is to that effect

At the outset the appellants claim that an action for malicious prosecution cannot be maintained for the bringing of a civil action in replevin and the taking of goods therein. No case in this state is cited to sustain the proposition. On the contrary, it was long ago held in Pangburn v. Bull, 1 Wend., 345, that an arrest and holding to bail are not indispensably necessary to the maintenance of an action for a malicious prosecution. In Bump v. Betts, 19 Wend., 421, it is sai'd by Nelson, Ch. J., that the action lies against any person who maliciously and without probable cause prosecutes .another, whereby the party prosecuted sustains an injury either •in person, property or reputation. See, also, Dempsey v. Lepp, 52 How., 11; Lawton v. Green, 64 N. Y., 331; Shafer v. Loucks, 58 Barb., 426; Whipple v. Fuller, 11 Conn., 582 ; Closson v. Staples, 42 Vt., 209 ; 14 Am. & Eng. Ency., 34. In the present case not only was the property of the plaintiff interfered with but his business was largely injured, and, if the plaintiff is correct upon the facts, the process of the court was improperly used by the defendants to his great damage. We think the action is maintainable, so far as the form is concerned.

It is further claimed by the appellants that the court erred to their in j ury in its charge as to the effect of the discontinuance of the replevin action. The appellants asked the court to charge, “that the discontinuance of the replevin action brought by the defendants does not under the circumstances of this case constitute a want of probable cause." To this the court replied: “I decline to charge in that form, but I do charge it adding these words,' but is prima facie evidence of such want.’ ” Exception was .duly taken. The judgment of discontinuance was entered upon .a stipulation signed by the attorneys of both parties, which, after reciting the commencement of the action and the joining of issue, proceeded as follows: “And the plaintiffs being desirous of discontinuing the same, it is hereby stipulated that the defendant may upon filling this stipulation upon said discontinuance enter judgment against the above named plaintiffs, without further application to the court, in his favor, dismissing the plaintiffs’ complaint herein upon the merits, and adjudging that the title of the property involved in this action was on the 4th day of December, 1882, and still is in the defendant,” and the terms of the judgment including the damages and costs were provided for. It appears from the record before us, without dispute, that this stipulation was made after a trial and verdict for Brounstein in one of the cases, and in pursuance of an understanding between the attorneys of the respective parties that upon the trial of one of the cases the others should abide the event. The issues involved in each were the same. So that practically the trial of one was the trial of the whole. In this view the discontinuance was not a voluntary one within the rule laid down in Burhans v. Sanford, 19 Wend., 417. An acquittal is not prima-facie evidence of want of probable cause, Scott v. Simpson, 1 Sand., 601, nor is a neglect to prosecute. Gorton v. DeAngelis, 6 Wend., 418. We think it should not have been held that under the circumstances of this case the discontinuance was prima facie evidence of want of probable cause. The error in that regard is of sufficient materiality to call for a new trial.

The appellants also claim that the court erred in declining to charge as they requested in regard to the effect of advice of counsel, and they refer to some cases which, as they claim, sustain their position. The rule laid down in Hazzard v. Flury, 120 N. Y., 227; 30 St. Rep., 906, seems to throw some doubt upon the correctness of appellants’ position. It is not, however, necessary here to pass upon that and some other questions that are presented, as upon a new trial a different situation may appear.

Judgment and order reversed upon the exceptions and a new trial ordered, with costs to abide the event.

Hardin, P. J., and Martin, J., concur.


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    William W. Gilmore, App’lt, v. Edward E. Ham, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Partnership—Accounting—Limitation.
    Prior to June, 1869, the parties hereto were partners. At that time plaintiff left the firm and state, and defendant retained all the assets and published a notice of dissolution. An action was brought in 1886 against the firm for a debt due from it, which plaintiff paid in 1890. Held, that while he could recover defendant’s half of the amount so paid, in view of the long unexplained delay, plaintiff’s right of action for an accounting was barred by the statute of limitations.
    Appeal by the plaintiff from a judgment entered in Onondaga county on January 2, 1891, upon the decision of the Onondaga special term in his favor for $981.98, besides costs. The plaintiff claims that the judgment should have been in his favor for an additional sum of $5,987.63.
    A former appeal by the plaintiff was dismissed. See 61 Hun, 1; 39 St. Rep., 664.

      T. K. Fuller, for app’lt; Hunt & Everson, for resp’t.
   Merwin, J.

The right of the plaintiff to recover the additional amount, which he claims, depends upon whether his right of action for an accounting was barred by the statute of limitations. It was in effect held at special term that the statute was a bar.

Prior to 1869 the plaintiff and defendant were engaged in business as partners. The partnership was dissolved in June, 1869. This action was commenced July 25, 1890, and the plaintiff, among other things, claimed that an accounting be had between him and the defendant as copartners, and that defendant be adjudged to pay the plaintiff such sum as might be found due him upon such accounting.

It appears that the partnership was for no specified time; that in June, 1869, plaintiff left the firm and the state, and also left in the hands of defendant the entire assets of the firm; that on 7th July, 1869, the defendant published a notice of dissolution,, stating that all the assets were in his hands and that he would settle all accounts with the firm and debts against it. There was never any accounting between plaintiff'and defendant. According to the evidence of plaintiff, there was in defendant’s hands a large amount over and above the debts of the firm. The defendant gave no evidence on the subject, relying on the statute of limitations.

No explanation is given by the plaintiff of his long delay. Nothing at all appears with reference to the partnership matters until in May, 1886, when an action is commenced against the firm to recover a debt. This action was defended by the plaintiff and not by the defendant. A judgment was, however, obtained against the firm and this the plaintiff was compelled to and did pay on 17th June, 1890. In the present action, which was soon thereafter commenced, the plaintiff also sought to recover of defendant the one-half of such judgment. The recovery in his favor is for such half.

In Gray v. Green, 125 N. Y., 203 ; 34 St. Rep., 742, the plaintiff was by the agreement of dissolution made the liquidating partner. More than ten years after the dissolution he brought an action for an accounting, alleging that upon the dissolution the defendant retained possession of firm assets exceeding in amount his partnership interest and that such excess, to be ascertained on an accounting, was due and payable to plaintiff. It was held that the action was barred by the statute as it accrued immediately upon the dissolution. In the opinion of the court it is said that “ when an action is brought against a liquidator as such for an. accounting, the plaintiff must wait a reasonable time before his right of action can at all accrue.”

In the present case, stress is laid by the plaintiff upon the fact that the debts of the firm were not all paid until 1890, when plaintiff paid the judgment above referred to, and it is, therefore, urged that plaintiff should not be charged with loches or,the statute be considered to have commenced to run. This view is sustained by the case of Hammond v. Hammond, 20 Geo., 556, but the doctrine of that case on that subject is distinctly repudiated in Gray v. Green, supra.

Under the light furnished by the court of appeals in Gray v. Green, the most favorable position for the plaintiff is that his right of action for an accounting did not accrue until after the lapse of a reasonable time to enable the defendant to close up the concerns of the firm. Applying that rule, and in view of the long unexplained delay, see Story on Part., § 233 n, we find nothing to prevent the running of the statute for more than ten years before the action was commenced. It follows that the ruling of the special term must be sustained.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


author: Per Curiam.

text:
    Morris S. Miller, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.

    Negligence—Railroads—Speed of train.
    In an action against a railroad company for personal injuries received at a crossing, it is proper to submit to the jury the rate of speed of the train as a ground of negligence.
    Appeal from judgment entered in Oneida county on 13th February, 1892, upon a verdict at Oneida circuit in favor of the plaintiff" for $906; also from an order denying a motion on the minutes for a new trial. For former appeal see 40 St Rep., 987.

      C. D. Prescott, for app’lt; Sayles Searle & Sayles, for resp’t.
   Per Curiam.

The evidence in this case is the same as upon the former trial The main question now is over the charge on the question of speed. The only exception that raises the point is at fol. 620. The defendant’s counsel there asked an exception “ to that part of your honor’s charge in which you hold that the rate of speed constitutes any ground of negligence in this case.” The court replied: “ Yes to whatever I said on that subject.”

It was proper to submit to the jury the rate of speed as a ground of negligence. The court of appeals have so held in a number of cases under circumstances that would apply here. Salter v. R. R. Co.,88 N. Y., 50; Thompson v. R. R. Co., 110 id., 637; 16 St. Rep., 869 ; Coleman v. R. R. Co., general term, fourth department, September, 1891, 40 St. Rep., 985; affirmed in 131 N. Y., 617; 43 St. Rep., 961. The trouble, if any, about the charge relates to the manner in which this question was submitted. No "fault, however, was found with that. If it had been, it might have been at the time remedied. The trouble in that respect, if any, was not of sufficient importance to call for a reversal in absence of a proper exception.

Judgment and order affirmed.

Hardin, P. J., Martin and Merwin, JJ., concur.


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    John G. More, Adm’r, Resp’t, v. Victor Finch et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Executors and administrators—Action bt—Defense of prior appointee.
    Plaintiff, as administrator, brought action to recover the value of a horse which was owned by plaintiff’s intestate at the time of his death. In defense, the defendants showed that prior to plaintiff’s appointment as administrator the widow of deceased was, upon petition, appointed administratrix by the same surrogate, and that no order had been made revoking the same. ■ Held, that plaintiff could maintain the action; that the validity of his letters could not be contested in this action.
    U. Same—Admissions—When binding.
    Admissions by executors or administrators are not binding against the estate, unless made while engaged in their representative capacity in the performance of a duty to which the admissions were pertinent, so as to make them part of the res gestee.

      Appeal from a judgment entered in Delaware county, February 20, 1891, upon the verdict of a jury at the Delaware circuit in favor of plaintiff for eighty dollars; also from an order of the Broome special term, entered in Delaware county, February 13, 1892, denying a motion for a new trial made upon a case and exceptions.

      Marvins & Hanford, for app’lts; H S. Sewell and A. Neish, for resp’t.
   Merwin, J.

The plaintiff, in this case, seeks to recover of the defendants the value of a horse, which was owned by the plaintiff’s intestate at the time of his death, on the 7th July, 1889, and which, as plaintiff alleges, was, on the 7th April, 1890, converted by the defendants to their own use. The plaintiff, before bringing suit, made a demand of the defendants for the horse or-its value, all which was refused. The plaintiff was appointed administrator on the 8th July, 1890, by the surrogate of Delaware county, upon petition by the proper party showing all the facts necessary to give the surrogate jurisdiction.

In defense, the defendants show that prior to plaintiff’s appointment, and on the 19th September, 1889, Daisy Mellenix, the widow of said deceased, was, upon petition in due form, appointed administratrix by the same surrogate, and that the records of his office do not show that any order has been made revoking such letters. The defendants, therefore, claim that the appointment of plaintiff was void, and that plaintiff showed no title to the subject óf the controversy.

It appeared that the widow was a minor, being at the time of the trial about eighteen years old. The appointment of the plaintiff as administrator was made at her request, she for that purpose asking for the appointment of plaintiff as her general guardian. He was so appointed; and then as such upon proper papers was appointed administrator. The widow in her petition stated, among other things, that prior to that time no letters of administration had been applied for or granted so far as she knew. The defendants in their answers deny the appointment of the plaintiff, but do not allege the prior appointment. They set up that all the property left by the intestate did not exceed $400; that all of this became at the death the property of the widow as such, and that she took possession, claiming to be owner; that afterward, and prior to April 2, 1890, she for valuable consideration sold the horse to one A. L. Brown, who on 2d April, 1890, executed to the defendant Victor Finch a chattel mortgage thereog, and that defendants hold under that mortgage.

The court held that the plaintiff could maintain the action, and that the validity of the letters issued to plaintiff could not in this action be contested by the defendants.

In Power v. Speckman, 126 N. Y., 354, 357; 37 St. Rep., 474, it was said, of a similar situation, that the order of the surrogate making a second appointment, while the first stood unrevoked, was not void or without jurisdiction because of the previous appointment ; that that fact simply made it erroneous or irregular, and liable to be reversed on appeal, or vacated on a proper application, and that in the latter case, if the second appointee could furnish some lawful reason for the revocation of the prior letters, they might have been revoked, and his own authority permitted to stand. If the surrogate had jurisdiction, then under § 2591 of the Code, the letters to plaintiff were conclusive evidence of his authority. He in this action sought to recover of the defendants a portion of the assets of the estate, after himself making of them a proper demand. We think that the court below did not err in holding that the plaintiff could maintain the action so far as his appointment was concerned.

It would not, however, follow from this, nor did the court below hold, that the defendants would be precluded from justifying their action through some act of or transaction with the first administrator within the line of her apparent power.

Upon the evidence there is some question whether the horse was included in the mortgage under which the defendants claim. The description of the property in the mortgage would seem to exclude it Be that as it may, the defendants failed to show that the widow ever sold the horse to the mortgagor. Upon this subject, however, the defendants offered to prove the declarations of the widow after her appointment as administratrix and before plaintiff’s appointment. These were objected to as incompetent and not binding upon plaintiff and were excluded. In this rulthe defendants claim error.

The declarations offered had reference to a past transaction and were in substance that she had at some previous time sold the horse to the mortgagor. These were not admissible against the plaintiff within the rule laid down by the court of appeals in Davis v. Gallagher, 124 N. Y., 487 ; 36 St. Rep., 461; see also 2 Whart. Ev., § 1199; Pease v. Phelps, 10 Conn., 62, 68. There is no basis in the case for an estoppel.

The judgment is for the value of the horse as found by the jury. We find no good reason for disturbing it.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


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    The People, Resp’ts, v. John Connor, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Criminal law—Jury—Plea of former conviction.
    Where a plea of former conviction or acquittal is pleaded with that of not guilty, both issues are properly triable before the same jury, as both constitute the defense interposed, and the defendant is not entitled to reexamine the jury after a finding for the people on the special plea.

      2. Same—Disqualification of judge.
    The verdict on a former trial was set aside on the ground that one of the members of the court was related to the defendant within the sixth degree. Held, that such former trial was void, and the conviction thereon formed no basis for a defense of former conviction on a subsequent trial for the same offense.

      Appeal from judgment of conviction of the crime of grand larceny, second degree, rendered against the defendant in the. court of sessions of Delaware county on the 25th March, 1891. A case containing exceptions was made and settled, and the hearing here is upon that and the judgment roll.

      Abram C. Crosby, for app’lt; J. P. Grant, district attorney, for resp’ts.
   Merwin, J.

The defendant was indicted at the Delaware oyer and terminer, September, 1889, and was there arraigned and pleaded not guilty, and the indictment was thereupen sent to the court of sessions for trial. At a term of the latter court, commencing November 17, 1890, both of the justices of the sessions who had been designated according to statute failed to appear, one being dead and the other absent The county judge thereupon, by order duly entered, designated S. Forman Adee, a justice of the peace of the county, to serve as justice of sessions during the term, and also designated Charles McPhail, a justice of the peace of the county, to serve as justice of sessions until the-absent justice attended. The court being so constituted, the. trial of the defendant was moved and had before the court and a jury,, and a verdict of guilty rendered, which was received by the court and recorded by the clerk upon its minutes, and the jury discharged from the case. The defendant then moved to set aside the verdict on the ground of alleged misconduct of one of the jurymen, but this motion was denied. On the 26th November, 1890, at the time fixed for pronouncing judgment on the verdict, the defendant upon affidavits made a motion in arrest of judgment upon the following grounds:

First. That the court of sessions, at which the trial of the defendant had been had and in the minutes of which the verdict of guilty has been entered, was and is illegally constituted in this,, to wit: that S. Forman Adee, one of the members of said court, is related to said defendant within the sixth degree, and that by reason of such relationship he was and is incapacitated from sitting as a justice of sessions and member of said court during said trial, and from pronouncing the sentence of the cpurt upon the-defendant, pursuant to the verdict of guilty.

/Second. Upon the further ground that the proceedings had and statements made in the presence of the jury during said trial regarding the misconduct of a juryman were unauthorized, irregular, illegal and prejudicial to the rights and interests of said defendant.”

This motion was denied, the following being the order as-entered upon the minutes of the court: “Motion denied, as it is not founded on any of the defects of the indictment mentioned in § 331 of the Code of Criminal Procedure, and is not founded upon any facts appearing on the face of the record. But it appearing to the satisfaction of this court that the defendant is related to one of the members thereof, within the sixth degree, ordered that the verdict of the j ury hereinbe,and the same hereby is, set aside.” The defendant duly excepted to each branch of the order, and also moved that the defendant be discharged from custody upon each of the grounds stated in the motion in arrest of judgment. This motion was denied, and. defendant excepted. After the verdict was set aside, another justice was substituted in place of Adee, and an order was made sending and continuing all criminal business, not otherwise disposed of, to the next court of sessions.

The indictment was again moved for trial at a court of sessions commencing 16th March, 1891. The defendant then interposed a plea of former conviction, setting out the proceedings on the former trial. To this the People replied. Then on motion of the district attorney the court ordered that a jury be drawn to try the indictment The defendant objected to the trial of the issues together and to the drawing of a jury generally in the action. The objection was overruled, and defendant excepted. The jury was empanelled, and the court announced that the special plea would be disposed of before entering upon the plea of not guilty, and ruled that the defendant had the affirmative. The trial then proceeded, the evidence consisting mainly of the record of the proceedings on the former trial and proof that Adee, one of the justices of the sessions, was related by consanguinity to the defendant within the sixth degree. The court charged the jury that the plea of former conviction is only supported by proof of lawful trial and verdict; that the only question for the jury to determine on this issue was whether the court before whom the defendant was tried was improperly constituted and without jurisdiction ; that if not so constituted, the former trial was no bar to another trial; that if the jury found that the justice, Adee, was related to the defendant within the sixth degree, the court was improperly constituted, there would be a mistrial, and that this would be no bar to another trial, and the verdict on this issue should be for the People. The defendant duly excepted. The jury found for the People, and the verdict was received and recorded.

The court then directed the parties to proceed to the trial of the issue formed by the plea of not guilty. The defendant objected to the trial before the same jury and asked that all further proceedings upon the indictment be suspended until the questions already tried might be reviewed by appeal. The objection was overruled and request denied. The defendant then asked “ to be permitted to examine each individual member of the jury as to his present opinions and qualifications to sit as a juror, in order to determine whether or not, from what has transpired on the trial, which he has heard, he has at present any bias that disqualifies him from sitting as a juror.” This application was denied. The district attorney then opened the case and gave the evidence on the part of the People. The defendant gave no evidence. A verdict of guilty was rendered and sentence was afterwards pronounced.

The main questions upon this appeal are: 1. Whether it was proper to try before the same jury the issue of former conviction and the issue upon the merits, and 2. Whether the proceedings on the first trial, assuming the relationship of the justice Adee to be as shown, furnished a sufficient basis for the defense of former conviction.

1. By § 332 of the Code of Criminal Procedure, it is provided that a plea of a former judgment of conviction or acquittal may be -pleaded either with or without the plea of not guilty. In the-present case, when the plea of former conviction was put in, the plea of not guilty was not withdrawn. Both pleas stood upon the récord together, as they properly might under § 332. Upon each an issue _ of fact existed. Code Crim. Pro., § 354. Both together constituted the defense-interposed by the defendant. When the trial upon the indictment was moved and ordered, it brought up-for the consideration of the court both pleas. Ho provision is made by the Code for a separate trial in case there is more than one issue. A complete trial involved the disposition of both, so far as it was necessary in order to arrive at a final judgment. By § 388, Code Crim. Pro., which regulates the course-of the trial, it is provided that the evidence "in support of the indictment must be first given, and then the defendant must give-his evidence in support of “ his defense.” This section seems to-apply to all trials without reference to what kind of defense the-defendant has put in. In the present case, the court for the benefit of defendant permitted him to give first his evidence upon the-plea of former conviction. Of this the " defendant does not complain. If it was irregular, the defendant is not in a position to-raise the question. Ho claim was made that the whole case should be presented to the jury at once. In this respect the practice before the Code was followed. See 1 Colby Crim. Law, 277.

In Bishop Cr. Pro., § 812, it is said: “When the special plea, and not guilty are pleaded together, the better practice is not to try them together, but to submit the former to the jury first. Still some American courts appear to allow it, when accompanied by the instruction to the jury to pass on the former first, and disregard the latter if they find on the former for the defendant.”' In 1 Whar. Cr. Law, § 572, it is said that “ in cases where thedefeudant pleads over to the felony at the same time with the-issue in the plea of autrefois acquit, the jury are charged again to inquire of the second issue, and the trial proceeds as if no plea in bar had been pleaded.” In Roches case, 1 Leach, 134, it .is-said, in such'a case, that the issues are always tried upon separate-charges to the jury. The reason was that if the jury found for-the defendant on the plea in abatement, there would be no occasion to proceed to the other issue. There is,’ however, in these-authorities no suggestion that, if it became necessary to have the-main issue passed upon, another jury should be empanelled. The inference is to the contrary.

In People v. Trimble, 60 Hun, 364; 38 St. Rep., 997, the defendant pleaded only a former conviction. This issue was tried before a jury, and verdict for the People. The defendant was= then allowed to'plead anew, and his plea of not guilty was received and the new issue subsequently tried before another juiy. Upon the appeal the claim was made by the defendant that both issues should have been tried by the same jury, and the court. say, “ it is evident that such is not the intention of the statute in case the two pleas are separately interposed.”

We think the court did not err in declining to call another jury. The proceedings on both issues constituted but one continuous trial The Code permitted them to be put in together, and as no provision was made for trial before different juries, it is to be inferred that no such trial was contemplated.

2. If the first trial was void by reason of the relationship of one member of the court, it would follow that there would be no> basis for the defense of former conviction. Canter v. People, 1 Abb. Ct. App. Dec., 308. It would be a case of mistrial, Shepherd v. People, 25 N. Y., 420, citing 2 Hawkins’ Pleas of the Crown, chap. 36, § 15, and that would be no trial. If the court,, as constituted, was without authority in the premises, the defendant was not in jeopardy. 1 Bish. Cr. Law, § 1028. Want of jurisdiction may be shown collaterally. Ferguson v. Crawford, 70 N. Y., 265.

In Baldwin v. McArthur, 17 Barb., 414, it was held that where-one of the members of a court of sessions granting an order of maintenance is one of the persons who, as superintendents of the poor, apply for the order, the court has no jurisdiction and the proceedings and order are void. The action was to recover the-amount allowed by the order. The same principle was held in Rivenburgh v. Henness, 4 Lans., 208, in regard to an order of affiliation made by a court of special sessions composed of two justices, one of whom was related to the complainant within the prohibited degree. The action was for false imprisonment. The same-thing seems to have been held in Oakley v. Aspinwall, 3 Coms., 547. It was there held that when one of the judges of the court of appeals was disqualified to sit in a case by reason of consanguinity to one of the parties, he cannot sit even by consent of both the parties, and if he do, the judgment will be vacated. If the judgment was only voidable it would seem that the consent would cover the irregularity. See, also, Schoonmaker v. Clearwater, 41 Barb., 204; aff’d in court of appeals, 1 Abb. Ct. App. Dec., 341. In this case in the court of.appeals, at page 345, Judge Denio says that the decision of the court of appeals in the Oakley case was that such a judgment was not simply erroneous but utterly void. These decisions were under a provision of the statute similar to § 46 of the Code of Civil Procedure, which provides that a. judge shall not sit as such in a case or matter if he is related by consanguinity or affinity to any party to the controversy within the sixth degree.

With regard to statutes of this kind it is said in Freeman on Judgments, 2d ed., § 146, that the general effect of the statutory prohibition in the several states is undoubtedly to change the rule of the common law so far as to render those acts of a judge involving the exercise of judicial discretion, in a case wherein he is disqualified from acting, not voidable merely but void. See, also,. 12 Am. & Eng. Encyc. of Law, 43. The adjudications of the different states are not entirely in harmony on this subject See 1. Black on Judgments, § 174.

Following the adjudications in this state, it must, I think, be held that the trial in question was void.

If the first trial was not void, but only voidable, the question, might arise whether the order setting aside the verdict, which was made by the same court upon the fact of relationship appearing, would not conclude the defendant until reversed. That order was not appealed from. It was held in Gay v. Monroe General Sessions, 12 Wend., 272, that a court of general sessions had power to set aside a verdict for irregularity. It is not, however, necessary to decide upon the validity of that order.

There are no other questions that call for special consideration. The defendant claims that the order continuing the unfinished business made at the close of the first term to the following term was invalid. It was, however, not necessary that any order should have been made for that purpose. The defendant claims that he was entitled to a separate judgment on the verdict upon the issue of former conviction. We think not. The Code does not seem to provide for this particular contingency. The former practice may therefore be followed. See People v. Trimble, 42 St. Rep., 718. Section 442, Code Criminal Procedure, to which the counsel refers, applies only to judgment in case of special verdict. Nor was the defendant entitled to re-examine the jurors after they had passed upon the question first submitted 'to them. The jury was empanelled to try the indictment. Before it was sworn the defendant had and exercised the right of examination, and there is no claim that he did not then fully exhaust the subject.

The foregoing considerations lead to the affirmance of the judgment.

Judgment of the court of sessions of Delaware county affirmed, and proceedings remitted to that court for the execution of the judgment.

Hardin, P. J., and Martin, J., concur.


author: Van Wyck, J.

text:
    Antonio G. Pucci, Resp’t, v. Charles T. Barney, App’lt.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Contract—Performance—Surveyor’s certifícate—Burden of proof.
    Where the contract provides that the measurements shall be made by and the payments made on the certificate of the city surveyor, and the defendant makes payments on such certificates, but refuses payment on the final certificate, claiming that plaintiff had not done so much work as it specified, Held, that the burden was upon the defendant to show that the certificate was untrue and incorrect.
    Appeal by defendant from judgment entered on verdict returned by jury for plaintiff.

      Ezekiel Fixman, for resp’t; Arnold & Green, for app’lt.
   Van Wyck, J.

These parties entered into a contract whereby plaintiff agreed to excavate and remove earth and rock from twelve city lots belonging to defendant, at one dollar and sixty cents per cubic yard for rock, and eighty cents for earth, and the contract provided that “ the measurements shall be made by Robert A Serrell, city surveyor, and the payments shall be on his written certificate,” and that the defendant “ will pay for said work at said prices on the certificate of said surveyor.” It appears that, defendant, without any question, made seven payments on the several certificates of this surveyor, which were presented to him by plaintiff, but refused to make the eighth and final payment, although plaintiff presented to him the certificate of the surveyor as to the number of yards of earth and rock which had been excavated on the premises, and which certificate is as follows:

“New York, April 28, 1891.
“ The amount of earth and rock now excavated and removed according to sizes in contract from off of lots on north side of Ninetieth street and south side of Ninety-first street, beginning 100 feet west of West End avenue, 150 feet front, both streets, is as follows: Earth, 5,605 cubic yards; rock, 9,883 cubic yards; total, 15,488 cubic yards.
“ Robert A. Serrell, City Surveyor.
“To A. G. Pucci, Excavator; C. T. Barney, Owner.”

The cost of excavating this rock and earth at the prices agreed to in the contract would respectively amount to $15,812.80 and $4,484, making $20,296.80, upon account of which plaintiff admits payments aggregating $19,051.60 and brings this action for $1,-245.20, the balance. The answer admitted these payments on account, but alleged that defendant had thereby overpaid the sum. of $767.14, and counterclaimed for the same, on the ground that, plaintiff had not excavated so much rock and earth as the surveyor had certified that he had.

The serious objections of the appellant on this appeal are based upon the ground that the admission on behalf of plaintiff of the foregoing certificate of the surveyor, made as provided for in the contract, did not throw upon defendant the burden of proving that this certificate was untrue and incorrect as he had alleged in his answer. It was he who had assailed the certificate and challenged its truth and correctness and not the plaintiff, who, in obtaining the same, had done all that by the contract he was required to do to entitle him to payment, subject, of course, to defendant’s right to show that the same was obtained in fraud or by mistake. The defendant had recognized the full force of this provision of the contract, for he had already made seven payments upon the presentation by plaintiff of the surveyor’s certificates. The defendant alleged that the certificate was untrue and incorrect, and he certainly should know whether his allegation is true and correct, and if so he is called upon to substantiate it by proof, and not the plaintiff, for he certainly had made out a prima facie case when the contract and surveyor’s certificate had been admitted in evidence. If this is not the effect of the agreement, then it was one-sided, for the defendant’s surveyor was permitted by plaintiff to attend and examine, and measure the work as it proceeded, as he supposed, in order to have no dispute as to his payments. In the Wyckoff case, 44 N. Y., 145, Judge Earl said: “ The last payment was not to be made until the plaintiffs obtained the certificate of .the architects to the effect that all the work was completely finished. The plaintiffs were bound, as a condition precedent to final payment by the defendant, to procure the certificate, and, whenever they did get it, the defendant was bound to pay, unless he could show that the certificate was obtained by fraud or mistake. There was no attempt to show that the certificate was not given in good faith, and it concludes the rights of both parties.” On the trial of the Wyckoff case, the defendant offered to show that the plaintiffs did not erect and complete the buildings according to contract; but the court held that the certificate was conclusive, and rejected the evidence, and it was this ruling that the court of appeals sustained. But in the case at bar the trial judge was more indulgent to defendant, and permitted him to give evidence going to show that plaintiff had not performed the work according to the contract, even though he had obtained and presented the certificate.

This was allowed to enable the defendant to prove his allegation that the certificate was untrue and incorrect, and to the jury was left the determination of the question whether defendant had proved that the certificate was untrue and incorrect; and although requested, the court refused to charge that upon the plaintiff rested the burden of proving that a certificate obtained by him in accordance with the contract was untrue and incorrect, although the same had never been assailed by him. It seems to us that the sustaining of this ruling disposes of the objections raised by appellant, as the verdict of the jury has determined that the certificate was true and correct except as to the item of $75.20, which the court at folio 99 ruled was included by mistake. Judgment appealed from affirmed, with costs."

Ehrlich, Ch. J., and McCarthy, J., concur.


text:
    Charles G. F. Wahle, Ex’r, Resp’t, v. Samuel McMillen, App’lt.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    1. Depositions—Examination before trial.
    If the information sought is necessarily wholly within, or more within the knowledge of the defendant than of the plaintiff, an order for the examination of the defendant to enable the plaintiff to frame his complaint should be granted, especially where the plaintiff is suing in a representative capacity.
    2. Samé—Affidavit.
    Plaintiff’s affidavit showed that he had discovered in his testator’s books of account a running account with defendant consisting of items of credits and charges, showing a balance against him, nut is unable to find any explanatory entries, and has been informed by testator’s relatives that there was an agreement with defendant as to the rental of certain premises and that he believes that the rental of such premises is embodied m said account, but is unable to prepare his complaint without an examination of defendant. Held, that the affidavit was. sufficient to support an order for such examination.
    Appeal by defendant from an order directing his examination before trial, for the purpose of enabling plaintiff to frame his complaint.

      Edward C. Stone, for resp’t; John C. Shaw, for app’lt.
   Van Wyck, J.

The plaintiff, suing as an executor, seeks, after service of summons and. before trial, an examination of the defendant in order to enable him to frame his complaint, and his affidavit, upon which such examination was ordered, sets forth that lie has discovered in the books of account kept, owned and left by his testator, a running account with defendant, which shows items of charges against and credits to defendant, and that the same shows a balance of $283.42 as due the testator from defendant ; but that he has been unable to discover any explanatory entries in the books as to these charges and credits, although he has been informed by some of his, testator’s, relations that there was some agreement by his testator and defendant as to the rental of certain named premises, and that he believes that the rental of said premises is embodied in said account, and that he has fully and fairly stated the case to his counsel; that he has a good and substantial cause of action on the merits, as he is advised by .such counsel, which he verily believes, and that he is unable to properly frame his complaint, and therefore seeks to examine defendant in order to do so. The defendant did not interpose any opposing affidavits, but merely moved to vacate the order on the papers upon which it was granted, and this appeal is from the order refusing to vacate. The rule with regard to the examination of a party before trial is one of discretion. Herbage v. City, 109 N. Y., 81; 14 St. Rep., 845. It is, therefore, flexible, and must be adapted to and controlled by the facts and circumstances of each case, considered with reference to the relations existing between the parties. Carter v. Good, 57 Hun, 116; 32 St Rep., 501.

0. If the information sought is necessarily wholly within, or more within the knowledge of one party than the other, an order for the examination of such other should be granted, and especially so when the party seeking the examination of his - adversary is suing, as this plaintiff, in a representative capacity. In the case of Raymond v. Brooks, 59 How., 383, where the plaintiff was suing as an administrator, the court said, in sustaining an order for examination of the defendant, “ The plaintiff, suing in a representative capacity, and not having personally participated in the matters concerning which inquiry is sought, properly enough asks that he may be allowed to examine one of the defendants, who is reasonably supposed to have the knowledge, to ascertain the facts.” The plaintiff’s affidavit is sufficient to sustain the order, and the same is affirmed, with ten dollars costs.

Ehrlich, Ch. J., concurs.


author: Vas Wyck, J.

text:
    The Cochran Cotton Seed Oil Co., Resp’t, v. Theodores Haebler et al., App’lts.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Sale—Delivery.
    Plaintiff, a foreign corporation, sold to defendants certain barrels of oil for October delivery in New York. It made three shipments, which were received and paid for without objection as to carrier or place of delivery. The fourth shipment was made by the same carrier, and arrived in Sew York in the afternoon of the last day of the month, but defendants did-not learn of its arrival until the following day. They made inquiries at noon of the last day, but left no instructions to inform them if it arrived, later on that day. Held, that the first three shipments and their acceptance made an agreement as to the carrier and place and method of delivery, and that the delivery of the last lot was good.
    Appeal from judgment on verdict directed for plaintiff.

      R. B. Honeyman, for resp’t; M. P. Stafford, for app’lts.
   Vas Wyck, J.

The plaintiff, whose place of business is at Rock Hill, S. C., sold on September 15, 1891, to defendants,, whose place of business is in New York city, 200 barrels of cotton seed oil for October delivery in New York at twenty-nine cents per gallon, free on hoard, weight guaranteed.

The plaintiff, from time to time prior to October 22d, shipped, to defendants in accordance with this contract three lots, of fifty barrels each, by the Pennsylvania railroad, a common carrier selected by it and not objected to by defendants, and at the time-of each of such shipments notified defendants by mail of the same and enclosed a bill of lading of the same, and also drew upon defendants for the amount of such shipment, which drafts were always paid upon presentation. The plaintiff had given no other notice, and this was the only effort made by them in reference to the delivery, and yet the defendants had received and accepted these three first shipments and paid for them without complaint on their part, either as to the carrier or the place and method of delivery in New York. The dealings and transactions between the parties as to the delivery of these three first lots certainly made an agreement as to the carrier, the place of delivery in New York and the method thereof, and all that plaintiff was called upon to do in refererice to the delivery of the last lot of fifty barrels was to ship them at Rock Hill by the same carrier and immediately mail notice of the shipment with the bill of lading, as it had previously done upon each of the three first shipments, and draw upon defendants for the amount of the invoice. Of course the same must during the month of October have reached the same-pier at which the other lots had been delivered and accepted.

All of this was done and this shipment reached such pier in New York on October 31st, and if defendants did not learn of the same until the next day, it was either their own fault or that of the carrier, who had ceased to be the agent of the- plaintiff the moment the oil reached its destination, free on board and on time. It would seem that defendants had realized that it was their duty after receiving this notice and bill of lading to make inquiry as to the arrival of the shipment, for we find them on that day, at. twelve o’clock, noon, at the carrier’s pier asking if the same had arrived, and upon being informed that the car had not yet arrived, they left no instructions for the carrier to inform them if the car. should arrive later on that day, and certainly the plaintiff, who-was eight hundred miles away and knew nothing of the delay,, could not have so instructed the carrier.

The plaintiff made the same delivery of this last lot as it had of the three others, and the delivery was good as to all. Pacific Iron Works v. R. R. Co., 62 N. Y., 272. Both parties requested the court to direct a verdict and neither requested to go to the jury. The verdict instructed for plaintiff is not against the weight of evidence and the judgment is affirmed, with costs.

Ehrlich, Ch. J., and McCarthy, J., concur.


text:
    Samuel J. Brown, Resp’t, v. Barnard Tausick, App’lt.

      (City Court of New York, General Term,

      Filed October 24, 1892.)

    Trial—Affirmative of issue.
    In an action upon a promissory note, where the answer admits the making of the note, does not deny the allegations of the complaint, but alleges that the note was given without consideration under an agreement that it was to be paid only out of the profits of a certain business that had realized no profits, the defendant has the affirmative of the issue, and a right to open and close, and the denial of such right is reversible error.
    Appeal by defendant from judgment entered on verdict of jury.

      Herman Fromme, for resp’t; M. L. Erlanger, for app’lt.
   Van Wyck, J.

The complaint alleged the making and delivery to plaintiff by defendant of his certain promissory note; the due presentation of same for payment, and its non-payment The answer specifically admitted the making of the note and did not deny any of the allegations of the complaint, and under § 522 of the Code they were therefore to be taken as true, and the plaintiff was entitled to recover without any proof, notwithstanding that the answer alleged affirmatively that the note was given without consideration under an agreement with plaintiff that the same was to be paid only out of the profits of a certain business that had realized no profits. The defendant claimed the affirmative, and requested the right to open and close to the jury, which, however, was denied him, and to which he duly excepted. The affirmative and the consequent right to make the closing address to the jury by the defendant, was in this case a substantial right, the denial of which entitles him to a reversal of the judgment. That such was his right is clearly shown bv the decision of our appellate authority in the Auerbach case, 18 N. Y. Supp., 453 ; 44 St. Rep., 493, in which Chief Justice Daly says: “ The right of the affirmative belonged to the defendant, who had affirmatively pleaded non-delivery of the note by him, and want of consideration.” So, too, in Grabosski v. Gewerz, 44 St. Rep., 127; 17 N. Y. Supp., 528, Judge Bischoff says: “ The defenses were limited to want of consideration and procurement of the note by duress, neither of which disputed the making and delivery of the note; and, before the burden of establishing the fact of consideration by a preponderance of the evidence could be imposed upon the plaintiff, it was requisite that the defendant should in the first place impeach the presumption of consideration by evidence from, which the want of consideration was made to appear, or could be inferred. The trial judge, therefore, properly ruled that the affirmative side of the case was with the defense.” At the trial of the case now under consideration the affirmative should have been awarded to the defendant, and the failure to do so was error which requires that the judgment appealed from be reversed and a. new trial granted, with costs to appellant to abide the event.

Ehrlich, Ch. J., and McCarthy, J., concur.