text:
    Ida K. Helwig, Resp’t, v. The Mutual Life Ins. Co. of New York, App’lt.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Insurance (life)—Evidence.
    The application of plaintiff’s husband for insurance contained a statement that the last physician who attended the applicant was Dr. L. It appeared by the certificate of death furnished by plaintiff that he was attended at a later date by Dr. F. Held, that as the certificate was put in evidence by the plaintiff the statements of the physician were made evidence and tended to prove that the answers of the insured to the questions of the medical examiner were untrue so far as they related to the time he had been last attended by a physician for medical treatment, and that it was error for the court to refuse to charge the jury that this statement of the doctor in the proof of death was to be taken into consideration by them.
    :2. Same.
    • The fact that the blank certificate was furnished by the company does not aid the plaintiff on this appeal.
    Appeal from judgment entered on order of the supreme court, in the second judicial department, affirming judgment entered upon a verdict in favor of the plaintiff.

      Robert Sewell, for app’lt; A. Simis, Jr., for resp’t.

       Reversing 34 St. Rep., 891.

   Bradley, J.

The policy of insurance which is the subject of this action was made upon the application of Richard W. Helwig, August 17, 1887, and by it the defendant upon certain conditions undertook to pay to the plaintiff, his wife, upon Ids death $5,000. The application was part of -the contract, and the answers by him to defendant’s medical examiner were in continuation of the application, and were warranted- by the insured to be true.

Amongst those questions and answers were the following: 151 When last attended by physician, and cause? Six years ago; measles. Name and address of the physician? Dr. Langsman, New York.’’ The charge is that those answers were untrue and that the consequence was a breach of the warranty. And in support of that charge reference is made by the defendant’s counsel to the attending physician’s certificate, made in January, 1888-(verified by his oath), of the death of the insured in December, 1887, in which certificate appear the following questions and answers : “ Were you his medical attendant or adviser before his last illness? Yes. If so, for what disease, and when? For astralgia; about one and a half years ago.”

It is urged that nothing in this certificate can be treated as. evidence of breach of warranty, because it was made to furnish proofs of the death of the insured, and that the matter of the declaration in question of the physician was such as he would n»t. be permitted to disclose as a witness. It is true, that by the contract the furnishing of proofs of death of the insured was made a condition precedent to the liability of the defendant. But by the policy it does not appear that the beneficiary of the insurance was to do anything more in that respect than to furnish to the defendant satisfactory proofs of death of the insured, upon the acceptance of which, and upon the conditions referred to in the policy, the defendant undertook to pay the amount of the insurance; so-that it was not essential to such proofs to represent his condition or medical treatment preceding the time of his death.

It must be assumed that the certificate was put in evidence by the plaintiff, as it appears in the record after the case was opened on her part and before she rested ; and in that view those statements of the physician were made evidence and tended to prove that the answers, before mentioned, of the insured to the questions of the medical examiner were untrue so far as they related to the time he had been last attended by a physician for medical' treatment. Insurance Company v. Newton, 22 Wall., 32; Buffalo L., T. & S. D. Co. v. Knights T. & M. M. A. Ass'n, 126 N. Y., 450 38 St. Rep., 247.

The fact that the defendant would not have been permitted to introduce in evidence this declaration of the physician appearing in the certificate is not important for the purposes of the" question here presented, as the certificate was made evidence-by the plaintiff without, so far as appears, any qualification.

If, as claimed by the plaintiff’s counsel, the blank certificate-was furnished by the company, it is not seen how that fact aids the plaintiff on this review.

The court was requested by the defendant’s counsel to charge the jury that this statement of the doctor in the proofs of death was to be taken into consideration by them. And the exception to the refusal to so charge was well taken.

For that error the judgment should be reversed and a new trial granted, costs to abide the event.

All concur, except Haight and Brown, JJ., not sitting.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    The Dutchess County Mutual Ins. Co., App’lt, v. Frederick S. Van Wagonen et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    Assignment for creditors —Statement as to kind or place of BUSINESS OF ASSIGNOR—Laws 1877, CHAP. 466, § 2.
    The provisions of the statute providing that an assignment for the benefit of creditors shall state the kind and place of business of the assignor is directory, not mandatory.
    Appeal from, a judgment of the general term, third department, affirming a judgment entered upon a decision dismissing the complaint upon the merits.
    . Robert F. Wilkinson, for 'app’lt; A. T. Clearwater, for resp’ts.
   Haight, J.

On the 5th day of October, 1888, the defendant Frederick S. Van Wagonen executed and delivered to the defendant Jacob D. Van Wagonen a general assignment for the benefit of creditors. The assignment states the residence of the assignor and assignee to be the town of Marbletown, in the county of Ulster, state of New York, but contains no statement of the kind or place of business of the assignor, and for this reason it is •claimed to be void.

Section 2, chapter 466 of the Laws of 1877, as amended by chapter 294 of the Laws of 1888, provides as follows:

“ Every conveyance or assignment made by a debtor of his estate, real or personal, or both, to an assignee for the creditors of such debtor shall be in writing, and shall specifically state therein the residence and the kind of business carried on by such debtor at the time of making the assignment, and the place at which such business shall then be conducted; and if such place be in a city, the street ■and number thereof; and if in a village or town, such apt designation as shall reasonably identify such debtor. * * *

It is claimed on behalf of the appellant that the provisions of this statute are mandatory, whilst on the part of the respondents it is claimed to be directory merely. Upon this question the courts below have differed in their conclusions. The case of Bloomingdale v. Seligman, 19 St. Rep., 64; S. C., 22 Abb. N. C., 98, sustains the contention of the appellant, whilst Taggart v. Herrick, 55 Hun, 569; S. C., Taggart v. Sisson, 29 St. Rep., 424; Mullin v. Sisson, 31 id., 210; Strickland v. Laraway, 29 id., 873; Boak v. Blair, 32 id., 911, sustain the claim of the respondents.

The evidence taken upon the trial discloses the facts that the .assignor resided at a place called Stoneridge, in the town of Marbletown ; that it was a small hamlet consisting of a collection of houses on each side of the public highway, and was not incorporated as a village; that he had been a resident of the town for a period of about forty years, was a keeper of a country store at that place, was personally known to nearly every person of mature age residing within the limits of the town, and there was no other person residing in the town of the same name. It is, therefore, apparent that the place and kind of business carried on was w'ell known and understood, and that no harm could result to his creditors from the omission to make such statement in the assignment. It should consequently not be annulled unless it is required by the express provisions of the statute.

The rule that an affirmative statute, without any negative expressed or implied, is directory merely, and leaves the common, law in force, m,av not be controlling upon the question under consideration, for it has more especial reference to statutes giving a new remedy. 2 Coke’s Inst., 200; Stafford v. Ingersol, 3 Hill, 41; Clark v. Brown, 18 Wend., 220; Almy v. Harris, 5 Johns., 175; Wood v. Chapin, 13 N. Y., 521-526; Hall v. Tuttle, 6 Hill, 42;. Dwarris on Stat., 638; Hardmann v. Bowen, 39 N. Y., 196.

But in construing the provisions of the statute the legislative-intent must be our guide. The object of the provision evidently was to identify the assignor and prevent his being confounded with others bearing the same name. For this reason he is required to state the kind of'business carried on by him ; and if in a city, to give his street and number. The statute, however, does, not state what the consequences shall be if the assignment fails to-so state the business of the assignor. There are no express words of. negation, and we see no reason why such words should be implied. The identification of the assignor may be determined by his signature to the assignment and the acknowledgment thereof before an officer specified in the statute. The statement omitted from the assignment would only furnish other means of identification. We, therefore, incline to the opinion that the statute-should be construed as directory merely, and not mandatory.

The principle upon which this conclusion rests has "been repeatedly recognized by the courts. It has accordingly been held that the title vests in the assignee, upon the delivery of the assignment, even before recording, although the assignment is, by the-provisions of the statute, required to be recorded; that the provisions of the statute requiring the assent of the assignee to be-subscribed and acknowledged by him, etc., are complied with by a signing and acknowledgement of the instrument without express words of consent; that the statute providing that the wages, due employees shall be preferred does not invalidate the assignment, even though it contains no provision for such employees. Warner v. Joffray, 96 N. Y., 248; Nicoll v. Spowers, 105 id., 1; 6 St. Rep., 457; Scott v Mills, 115 N. Y., 376; 26 St. Rep., 124; Richardson v. Thurber, 104 N. Y., 606; 6 St. Rep., 489; Franey v. Smith, 125 N. Y., 44; 34 St. Rep., 469.

The judgment should be affirmed,' with costs.

All concur, except Landon, J., not sitting.


author: Andrews, J.

text:
    Paul N. Spofford et al., individually and as Ex’rs, App’lts, v. Pauline Pearsall et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Coxtuact—Construction.
    In a controversy concerning the final ..settlement of executors and trustees’ accounts, a compromise agreement by all the parties provided that the appellant pay out of the income which will become due him to date under his mother’s will, and out of his share of his brother’s estate, a certain sum to equalize any inequality in the distribution of the estate already effected. It was further provided that no claim shall be made by any of the parties for arrears of income or interest upon any of the trust funds created by any of the will's, and that appellant’s share under his brother’s will be placed in trust to make the agreed payments. There was no provision in the agreement providing for the payment of any sum to appellant, no back income referred to. all the funds out of which any income could arise were disposed of by the agreement, and there was no fund established by his mother’s will that had earned any income for him, Held, that the agreement, taken as a whole, failed to show any intention to allow appellant any interest on any fund sought to be established by his mother’s will.
    Appeal from judgment entered on report of referee.

      T. Cleveland and W. V. Rowe, for J. L. Spofford,app’lt; T. G. Shearman, for def’ts Mrs. Pearsall et al.; W. D. Paige, guardian ad litem of T. W. Pearsall, Jr.; W. P. Williams, for executors, ■etc., of E. W. Spofford, deceased; Jacob Halstead, for def’t E. 0. Spofford.
   Andrews, J.

This action is brought by the plaintiffs individually, and as executors and trustees under the will of Paul Spofford, deceased, to settle the accounts of the executors and trustees under the will of said Paul Spofford, deceased, from the time of his death, which occurred in October, 1869, to the time of the trial, and to judicially determine and settle the rights and interests of ail the parties with respe’ct to the estate of said decedent, and with respect to each other.

Paul Spofford died in October, 1869, and left a will, and the plaintiffs Paul N. and Joseph L. Spofford, and their mother Susan, and Gardner S. Spofford, a brother, now deceased, were named therein as executors and trustees. The testator left him surviving Susan Spofford, his widow, the plaintiffs Paul N. and Joseph L. Spofford, and Gardner S. Spofford, and the defendants Pauline S. Pearsall, wife of Thomas W. Pearsall, Edward C. Spofford, and Eugene W. Spofford, his children, and only heirs and next of kin. Susan Spofford, the widow, died May 18, 1886, leaving a will. Gardner S: died intestate January 22,1887, leaving no widow, and but one child, the defendant Adelaide T. Spofford, and the defendant S. Emilie Woodbury was duly appointed administratrix of the personal estate of said Gardner S. The defendant Thomas W. Pearsall was appointed a trustee under the will of Paul Spofford by this court May 10, 1887. Eugene W. Spofford died unmarried, and without issue, August 23, 1887, leaving a will. Neither the plaintiffs nor the defendant Edward C. Spofford have issue. The defendant Pauline S. Pearsall has issue, three children, defendants herein. All of the-parties are of full age except the defendant Adelaide T. Spofford, an infant under fourteen, and the defendant Thomas W. Pearsall, Jr., an infant over fourteen.

By his will the testator Paul Spofford gave to his wife Susan certain personal property, and, after providing for certain annuities, all of which have been paid, gave to his executors, as trustees, separate trust funds of $50,000, to be held for the benefit of each of his six children, with limitations over on the death of the life beneficiary, and then disposed of the residue of his estate as-follows: He gave one-fourth thereof to his executors as trustees to hold the same upon trust for the benefit of his wife, Susan, during her life, and to pay to her the income during her life, and upon her death, he directed the capital to be paid over to all of his children, or their issue her surviving, or to such of his children or their issue then surviving in such proportion, equally or otherwise, and upon such trusts for such children and issue, in all respects, as she should-by her last will and testament appoint and bequeath the same. He also authorized her by deed or deeds, during her life, to appoint and transfer any part of said one-fourth of his estate to any of his children, or their issue.

He then gave the remaining three-fourths of the residue of his estate, in equal shares, to or in part for the benefit of his six children. The testator’s widow received .the income from said fund during her life, and upon her death exercised such power of appointment, and by her will gave to Gardner S. Spofford and Thomas W. Pearsall as trustees the sum of $150,000 to be held, during the life of her son Joseph L. Spofford, and to pay the income to him during his life, with limitations over upon his death.. Her will contained the following provision: “ I will and direct that the bequest of $150,000 above made by this second article-of my will shall bear interest from my death at the rate of seven per cent, per annum, which interest from the time of my death up-to the making up or creation of the trust fund, or thé portions thereof from time to time made up or created, being paid by my general estate, shall be applied and disposed of in like manner as-if it had been income accrued from the trust fund after the 'making up and investment of the same.” She also by her will created another trust fund of $150,000 for the benefit of her son, Gardner S., and made the following provision for establishing said two-trust funds:

“ I appoint, devise, bequeath and direct that there shall be taken and appropriated from the said one-fourth share of the residue of my husband’s estate, over which I have the power of appointment, aforesaid, such amount thereof as shall be equal to such deficiency of my own estate to meet and pay the said two bequests of $150,000 each, with interest thereon as aforesaid, and that suck amounts so taken and appropriated from such' one-fourth of my husband’s residuary estate shall go to and be received by the same persons who shall be trustees of- said respective trusts for the benefit of my sons Joseph L. and Gardner S. respectively.”

The individual estate of said Susan Spofford amounted to about. $50,000 only; and in order to. establish such two funds it would therefore have been necessary' to take from said one-fourth of the-estate of the testator, Paul Spofford, the sum of about $250,000 ; but in point of fact -it appears that such trust funds were never established.

All the defendants answered and subsequently an order of reference was made by which the referee was authorized and directed to hear and determine all the issues in the action, and thereupon* the plaintiffs presented accounts, to which numerous objections-were made, and a great deal of testimony was taken before the referee. After all this had been done, the parties to the action made a compromise, and signed an agreement, which provided that the judgment to be entered should dispose of and finally settle all matters in controversy between them. Thereafter the referee made a report, which contained elaborate findings of fact, including such agreement of compromise, and also conclusions of law based thereon. The appellant, Joseph L. Spofford, asked the-referee to make further findings to the effect that he was entitled to receive from the estate of his father the sum of $53,025; and also requested the referee to find, as a conclusion of law, that the-payment to be made by him to Mrs. Pearsall of $75,000, provided for by the sixth clause of the compromise agreement, should be paid out of said $53,025 and the share of said Joseph L. Spofford in the estate of his brother Eugene. The referee declined to-make either of such findings, and the appellant excepted to such refusal; and judgment was subsequently entered in accordance with the referee’s report, and from such .judgment this appeal is taken.

The sole question presented is whether under the terms of the-compromise agreement it was the referee’s duty to make the findings requested

The record does not contain the evidence taken before the referee, but the pleadings and proceedings had in the action, taken in connection with the report of the referee, and the judgment, discloses undisputed facts which afford some aid in the interpretation of the compromise agreement.

At the time of the death of Paul Spofford, in 1869, he and his-sons the plaintiffs, Paul 1ST. and Joseph L. Spofford, and Gardner S. Spofford, now deceased, were copartners in business, under the firm name of Spofford, Tileston & Go. At the time of such death the testator appears to have been indebted in very large amounts of money and a large part of the assets of said firm, and of his-individual personal property, were hypothecated to secure such debts. Shortly' after such death the plaintiffs and Gardner S. Spofford organized the firm of “ Spofford Bros. & Go.” That firm, also appears to have used in their business the assets of their father in the firm of Spofford, Tileston & Go., and also to have borrowed money on bond and mortgage on the real estate belonging to the testator. The sums so used aggregated very large amounts, and it was claimed by the, defendants that the plaintiffs and the share of said Gardner S. should be charged with interest thereon. It was further contended that if the appellant Joseph L. Spofford was charged with the sums which he had received, and with interest, such amounts would be not only more than equal to his im terest in the estate of the testator, but would also be more than his entire interest in the estate of his brother Eugene.

The two trust funds of $150,000 each, which the will of Susan Spofford provided should be established for the benefit of Joseph L. and Gardner S. Spofford, were never actually established; the estate of the mother as above mentioned being wholly insufficient for that purpose. The appellant Joseph L. Spofford claimed that this trust fund of $150,000 should be established out of the estate of his father; but the defendants contended that the estate ■of Paul Spofford had been greatly diminished by the improper .and unlawful anticipation of the appellant, by his own acts, and that he ought not to have such trust fund established for his benefit

This was briefly the situation of affairs, and such were the respective contentions of the parties, at the time the compromise ■agreement was signed. That agreement is an elaborate document containing many provisions, among which are the following: That the plaintiffs Paul N. and Joseph L. Spofford would resign fheir positions as trustees under the will of their father, and would -consent to the appointment of two trustees in their place, except as to a certain fund of $50,000; that the plaintiffs would make no opposition to the contention of the defendants that the shares of Joseph L. Spofford and Gardner S. Spofford, in the residuary estate of their father, had been already fully withdrawn by them, gnd that Paul N. Spofford had already received his ■•share of said residuary estate; that the plaintiffs would cooperate with the defendants in effecting a compromise with Adelaide T. Spofford, and her guardian, so that instead of a trust ■fund of $150,000 which the will of Susan Spofford provided should be established in favor of the father of said Adelaide T. the amount of such trust fund should be only $50,000; that the defendants would not oppose the contention of plaintiffs that the judgment should direct the said trust fund of $150,000 provided for by the will of Susan Spofford, to be paid over to the trustee of Joseph L. Spofford and to be invested and held as directed by the will; that the plaintiffs would make no claim to commissions either as executors or trustees; and that Jos. L. Spofford should pay one-half of a certain promissory note held by T. W. Pearsall.

The said agreement also contained the following provisions:

“ 6. Out of the amount of the income which will become due to him to date under the will of Susan Spofford, and out of his share of the estate of Eugene Spofford, Jos. L. Spofford will pay to the trustees of the share the income of which is payable to Mrs. Pearsall for life, under the will of Paul Spofford, the sum of $75,000, for the purpose of equalizing to her, and to her children, any inequality in the distribution of the estate already effected.”
“ 12. No claim shall be made by any of the parties to this suit for arrears of income or interest upon any of the trust funds -created by any of the wills mentioned in the complaint.”
“13. For the purpose of securing full payment of all the moneys which may become due and payable from Jos. L. Spofford he will forthwith execute a conveyance of all his interest under the will of Eugene W. Spofford to Thomas T. Shearman, in trust, who shall be authorized out of any moneys received by him under such moneys to make, and who shall make, out of such moneys all payments herein agreed to be made by Jos. L. Spofford; the surplus after such payments are made shall be returned to Jos. L.”

The question now before the court depends upon the construction to be placed upon the sixth clause of the agreement above-quoted ; it being claimed by the appellant that the true meaning; of. that clause was that there should be paid to him from the-residuary estate of his father interest upon said trust fund of $150,000 at seven per cent, from the date of the death of his mother to the date of the execution of such compromise agreement, which interest would amount to said sum of $53,025.

If the said sixth clause be considered in connection with the-rest of the agreement, and in the light of the facts disclosed by the record before us, it is certainly difficult to say exactly what it does -mean. But it is comparatively easy to say what it does not mean; and we are entirely satisfied that it does not mean that the sum of $53,025 was to bo paid to Jos. L. Spofford out of his-father’s estate. And we think that there are several reasons which of necessity lead to that conclusion.

In the first place, there is no provision whatever in the agreement providing for the payment of that sum to him. The claim that it was the intention of the parties that such sum should be-paid to him rests entirely upon an inference, which, it is said, should be drawn from said sixth clause. We think that the absence from the agreement of any provision that such sum should be paid to him conclusively shows that it was not the intention of the other parties to- the instrument that such sum should be-paid to him. It is incredible to us that an instrument of this, character, drawn with such care and elaboration by experienced and eminent counsel, should fail to provide for the payment of" this sum, if the parties to the instrument other than Joseph L. Spofford really intended and understood that he was to receive-the same.

In the second place the 12th clause expressly declares that no-claim shall be made by any of the parties to this suit for arrears-of income, or interest, upon any of the trust funds created by any of the wills mentioned in the complaint.

It would seem to have been impossible to use language which; should more clearly indicate that said sum of $53,025 was not to-be paid to the appellant It is to be remembered that said trust fund of $150,000 had not been established at the ume the compromise agreement was signed; and in fact that it then had no-existence except in the provision above quoted in the will of Susan Spofford. ISTo interest therefore had ever been earned by any such fund. She had provided in her will that said fund of $150,000, which was to be made up out of her own estate, and out. of the one-fourth of her deceased husband’s estate, over which she had the power of appointment, should bear interest at 7 per cent; and enough was to be taken out of the principal of said one-fourth of her husband’s estate to make up not only the $150,000, but the interest thereon, and that interest was to be applied for the benefit of Jos. L. Spofford, in like manner as if it had been “income” accrued from the trust fund. The draftsman of said 12th clause, apparently bearing in mind the language used by Susan Spofford in her will, provided that the parties to the suit. should not only not claim arrears of interest, but should not claim arrears of income. Of course, this clause, unless modified or restricted by the sixth clause, is fatal to the contention of the appellant. His counsel, however, invokes the rule that where a contract contains a special provision, providing for a particular case, ■and afterwards contains a general provision, which would cover the particular case but for • the special provision, such special provision must prevail over the succeeding general one.

There is no doubt but that the rule is correctly stated. But the difficulty is that it does not apply to the case at bar. If the sixth, or any other clause of the agreement had provided that the interest or income upon such trust fund, amounting to $53,025, should be paid to the appellant, then, of course, the • general language used in clause 12 would not prevail against such special provision. But such is not the case. Neither said sixth clause, nor, as. above stated, any other clause of the agreement provides that any por- ■ lion of said interest shall be paid to Jos. L. Spofford. The provision merely is that out of such income, and another fund, Jos. B. Spofford will pay Mrs. Pearsall the sum of $75,000. But that .is not a provision for the payment of the whole sum of $53,025 to Jos. L. Spofford.

It seems to us entirely clear, whatever rights Mrs. Pearsall may have to claim payment out of such income, if the other fund should prove insufficient, Jos. L. Spofford' is entirely cut off by said twelfth clause from the right to have said $53,025, or any part thereof, paid to him for his own use.

In the third place, we think that the provisions of the thirteenth ■clause tend very strongly to support the views above set forth. By that clause, Joseph L. Spofford agrees that he will' forthwith ■convey to a trustee all his interest under the will of his brother Eugene. It is declared in said clause that such conveyance is for the purpose of securing full payment of all moneys which may be due and payable from Joseph L. under this agreement.” Appellant’s counsel argues that this conveyance, which was not to include the income on said $150,000 trust fund, was for the purpose of security alone. In this, however, the learned counsel is mistaken, as will be seen by an inspection of said thirteenth -clause, which after-providing for the execution of the conveyance of said interest to said trustees, then declares that the trustee “ shall be authorized, out of any moneys received by him under such conveyance, to malee, and he shall make, out of such moneys, all payments herein agreed to be made by Joseph L. Spofford; the surplus, after such payments are made, shall be returned to Jos. L. Spofford.”

The appellant, by the terms of the agreement, was to pay, as above stated, the $75,000 to Mrs. Pearsall, and also half of a certain note. The papers before us do not show the value of the appellant’s interest under the will of his brother Eugene. By the terms of the agreement, however, he was not only to pay the $75,000 to Mrs. Pearsall, but also one-half of a certain note; and he not only authorizes but directs his trustee to make both such payments out of said interest under the will of Eugene W. Spofford, so to be conveyed. It would seem that he must have supposed that such interest was sufficient to cover both of such payments. It is certainly very significant that in this thirteenth clause, when provision was to be made for all the payments required of Jos. L. Spofford by the agreement, a provision was not inserted requiring him to convey to the trustee not only his interest under the will of his brother, but also the income on the trust fund, if it had been supposed by him or the other parties to the •contract, that such interest was to be resorted to for the making -of the payment to Mrs. Pearsall.

In the fourth place, the provisions of the second clause of the .agreement also tend strongly to support the position that the ■appellant’s claim is unfounded. In that clause the appellant expressly agrees that he will not oppose the contention upon the part of the defendants that his share in the residuary estate of his father has already been fully withdrawn by him. In view of this -concession by the appellant it would have been extraordinary u the agreement had expressly provided for the payment of $58,025 out of such residuary estate, which is the only fund out of which that sum can be paid; and it would be still more extraordinary if the right of the appellant to receive that very considerable sum •out of such residuary estate, in which he conceded he had no interest, is to be inferred from the provisions of said sixth clause.

In the fifth place, by the terms of the compromise agreement, all the funds, from which the income referred to in said sixth clause could be paid, have been otherwise' disposed of.

One fund out of which such income could be paid was the individual estate of Susan Spofford, but that estate did not exceed $50,000, and by tlie twenty-third clause of the judgment all of that estate is disposed of and it was therein adjudged that no part of said estate should be used in payment of the trust fund to -Jas. L. Spofford. No appeal is taken from this part of the judgment, and therefore it is final and conclusive against the appellant The only other fund which could be resorted to for the payment of such income was the one-fourth of the estate of Paul Spofford, which was subject to appointment by his widow, during her lifetime or by her will. The defendants claim that she had fully •exercised this power during her lifetime, but the plaintiffs and Adelaide T. Spofford denied this. This dispute was compromised by the fortieth finding of fact made by consent to the effect that, •after paying $50,000, without interest, to trustees for Adelaide •Spafford, and $150,000 without interest, to trustees for Jos. L. Spofford, there was nothing left of the one-fourth of the estate of Paul Spofford upon which Mrs. Spofford’s power of appointment •could take effect.

The two funds out of which alone such income could have been paid having been .otherwise applied, by consent of the. appellant, we see no ground upon which it could be claimed that the remainder of the residuary estate should be resorted to, to pay the income of this trust fund, which had not been established up to the time the compromise agreement was signed.

In the sixth place, it is also significant that the fourth clause, while providing for the establishment of the principal of said trust, fund of $150,000, for the benefit of Joseph L. Spofford, in no way refers to the back interest or income thereon.

For all the reasons above set forth we do not think the inference can be drawn from the sixth clause of the agreement that, the income therein referred to, amounting to $53,025, or any part thereof, was to be paid to Joseph L Spofford for his own use. But, as was stated at the outset, it is difficult to determine precisely -what the provisions of said sixth clause in reference to such income do mean. The words “which will become due to him tb date ” are inconsistent with one another, because, if interpreted according to the grammatical construction, the words “ which will become due ” refer to' such income only as should become due after the date of the agreement It is possible that the word “ to ” was used inadvertently in place of the word '“after.” If that were the case the words, “which will become due” would'be appropriate, and the income, out of which payments should be made to Mrs. Pearsall, would be the income, or interest, upon the trust fund, which should become due after the date of the agreement It is also possible that the agreement, as-originally drawn, provided for the payment of back interest on said trust fund, but that such provision was stricken out, and,, by inadvertence, the words “to date” were allowed to remain; or, it is possible that the words “ to date ” were originally inserted inadvertently. But all this of course is mere conjecture.

In discussing the question as to the meaning of this clause, we have assumed that it was the duty of the court to ascertain, if possible, the intention of all the parties to the instrument; and have discussed such question upon the assumption that there was a common understanding and intent of all the parties who signed the agreement. It is quite possible, however, and perhaps probable, that there never was any such common intent and understanding, as to what interpretation should be put upon said clause. It may be that, having been inserted in the agreement by someone, the appellant and his counsel were of the opinion that it authorized and required the payment of said sum of $53,025; while on the other hand it may have been the opinion of the defendants, and their counsel, that it did not authorize, or require,, such payment. Both parties, however, may have decided to retain the clause, leaving the question to be determined thereafter as-to what its real meaning, or legal effect, was.

As already stated, we are entirely clear that it does not authorize or require the payment of said sum of $53,025, or any part thereof, to the appellant. We think that the utmost legal effect which can be given to the clause is that in case the interest of thappellant, under the will of his brother Eugene, should be insufficient to pay Mrs. Pearsall the sum of $75,000, Mrs. Pearsall might, perhaps, have the right to claim that the deficiency should be made up to her from the estate of Paul Spofford; though this is certainly very doubtful. It does not appear what the value of the appellant’s interest under the will of his brother Eugene is, and we do not know, therefore, whether that interest will be sufficient to pay the $75,000.

However, the question is not before us whether, if that interest is not sufficient to pay the $75,000, the deficiency can be made up out of Paul Spofford’s estate; and we do not decide it.

If the legal effect of the provision about income in the,sixth clause be not that which we have just suggested, then it appears to us that, so far as the appellant is concerned, the legal effect amounts to nothing. Joseph L. Spofford agrees in that clause to pay Mrs. Pearsall $75,000; but such payments are to be made either out of such income or out of his interest in the estate of his brother Eugene. If those two sources are insufficient to make up the $75,000, then he is not bound to pay the deficiency, and .Mrs. Pearsall cannot look to him for the payment thereof, except from these two sources.

By the thirteenth clause of the agreement, which binds all the parties who signed it, Joseph L. Spofford has agreed to convey his interest in the estate of his brother Eugene to a trustee, and that Mrs. Pearsall’s claim shall be paid in full out of that interest; and, therefore, that interest must be exhausted before there can be any' possible claim that Mrs. Pearsall shall be paid, in whole or in part, out of the income of the trust fund. As already stated, the trust fund was never established, and there never was any interest or income upon it; and if the appellant had agreed to pay, and Mrs. Pearsall had agreed to receive, $75,000, to be paid in case the appellant’s interest in his brother’s estate is insufficient, out of a fund which never had any existence, the only legal effect, so far as we can see, is that Mrs. Pearsall must take her chances of realizing such sum out of the appellant’s interest in his brother’s estate.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.


author: Van Brunt, P. J.

text:
    Edward J. King, Jr., et al., Resp’ts, v. Albert Jacobson et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    .1. Replevin—Fraudulent representations—Evidence.
    Defendants, in order to secure credit, represented that their assets; amounted to $20,000 and their liabilities to $2,000, and thereby secured credit. Shortly after they confessed judgments on notes, several of which were dated the same day, and one was for money borrowed long before the representations in question. At the time of the purchase it was stated that the goods were needed for manufacturing, whereas they were not manufactured at all, but sold to others below cost. Held, in replevin to recover the goods, sufficient evidence to find that the goods were procured by fraud.
    3. Same—Bona eide purchaser.
    One claiming to be a bona fide purchaser of the goods in question, on. the trial, grossly prevaricated as to his dealings with defendants in the matter. Held, that the claim was properly rejected by the jury.

      Appeal from judgment entered upon the verdict of a jury and from order denying motion for new trial.

      Howe & Hummel, for app’lts; Blumenstiel & Hirsch, for resp’ts.
   Van Brunt, P. J.

This appeal has been before the court upon a previous occasion and it was disposed of upon the questions of law involved in the case, in view of the fact that the case did not. profess to contain all the evidence, and • which," it appears, it did not.

A motion having been made for a Veargument, leave was granted to resubmit the case for .further settlement, and. after settlement, for such reargument.

It is stated in the points for the defendant that the questions to be reviewed on this appeal are, first, upon the motion made to-dismiss the complaint, which brings up the question as to whether under the plaintiff’s evidence in the case any case whatever was made out for the plaintiffs, and also in respect to the charge of the court. And upon the -appeal from the order denying the motion for a new trial, it is contended that the verdict was not only against evidence and against law, but against the weight of evidence.

The questions in regard to the charge were disposed of upon the previous appeal and it is not necessary to reconsider them upon, this reargument. The principle is well settled that where a plaintiff proves title to property, and it is found in the possession of a third party, such third party is bound to show himself entitled to> such possession by reason of being a bona fide purchaser for value.

A very considerable portion of the argument of the appellant, is based upon the fact that at the time of the sale of the goods in question, the purchasers gave notes which were not offered to be-returned either at the time of the demand or upon the appeal.

An examination of the record shows that no such question was-raised upon the trial. Non constat if it had been raised the plaintiffs would have produced" the notes and offered their surrender at the trial, which would have been a sufficient compliance with the-requirement of the law.

The claim that, there was not sufficient evidence that the purchasers of the goods "were guilty of false and fraudulent representations so as to justify the jury in finding a verdict in favor of the plaintiffs cannot certainly be sustained upon 'the record as it now stands. It appears that the purchase in question was made in November, 1887, and that representations were made by one of the purchasers, in order to induce a credit, that their assets-amounted to $20,000 and their liabilities to $2,-000, and that relying upon these representations credit was given. In June, 1888, the purchasers failed and on the 8th of June, 1888, divers judgments were entered against the purchasers by confession for large sums of money and their stock was levied upon by executions-issued upon said judgments and the funds realized were not sufficient "to pay the same. These confessions were all upon notes,, several of them bearing the same date, namely, the 7th of June,. 1888, evidently made for the purposes of the judgments. It appears from the evidence that at least one of these judgments was for borrowed money loaned long before the representations in question. And it further appears that at the time of the purchase of these goods it was stated by one of the purchasers that they were needed for manufacturing in the next month, whereas they were not manufactured at all, but were, even as claimed by the defendants, sold at a price considerably below their cost in the month of January following.

These facts certainly were evidence not only sufficient to justify the jury in finding that at the time of the purchase there was no intention to pay, but almost irresistibly led to that conclusion.

The next question is whether the defendant Bernstein has shown that either he or his predecessor in title were bona fide purchasers of the goods in question. It appears from the evidence that it was claimed that on the 6th of January, 1888, the purchasers sold the goods in question to M. Wein & Co., then doing business in Chicago, where the purchasers also did business,, and that $1,455 was paid therefor, and checks were introduced in evidence for that amount But it appears from the examination of Wein that this claim of sale was probably a pure fabrication, and gotten up for the occasion.

After having given some testimony which was somewhat incredible in respect to a transaction with the Chicago Trust & Savings Bank, the witness testified that the sale of these goods was a bona fide sale to him in perfect good faith; that he bought and paid for them,, and that he had also bought some muskrat skins; but that he bought no other sealskins, and that he had had no transactions with the defendants Jacobson & Perlson, the purchasers of the goods from the plaintiffs, since 'the last transaction of the purchase of these particular sealskins in January. He was then shown a paper bearing date the 22d of May, 1888, whereby it appeared that he had loaned $800 in cash on sixty-six sealskins same as bought from Jacobson & Perlson, and further agreed to pay $800 more in case the goods should be sold by him prior to the 1st of October, 1888. He then testified that these were the same sealskins which he stated he had bought outright on the 6th of January and paid checks for them; and then, four months afterwards, he issued the agreement in question. Then the witness, finding in what a predicament he had placed himself, says: “ I said a moment ago I bought them outright, but that is not the same transaction we have got here; they are not the same seal-skins, but are different ones.” The prevarication was so apparent that it was no wonder that the jury placed no credence at all upon the testimony of the witness. The evidence further showed that the witness consigned these goods to the defendant Bernstein in the city of Hew York, and it was claimed upon the part of Bernstein that he had advanced divers sums of money to Wein upon the credit and faith of these goods. But it is apparent that this was only another attempt to cover up the fraud which had been perpetrated in the disposition of the goods by Jacobson & Perl-son, as Wein and Bernstein fail to agree in respect to the advances which were made upon these goods, Wein stating that he first drew for $300 and Bernstein stating that he drew for $200: Wein stating that Bernstein advanced $1,200 odd, and Bernstein stating that he had advanced $1,600; although in another place he mentions the amount of his advances at $1,236, but when he came to give the particulars they amounted to nearly $1,600.

Under these circumstances we see no reason for interfering with the verdict of the jury. There was certainly sufficient evidence upon which the jury might find that this whole procedure was a fraud from beginning to end.

Upon the whole case, therefore, we are of the opinion that the judgment should be affirmed, with costs.

Patterson, J., concurs.


author: Lawrence, J.

text:
    The Hong Kong & Shanghai Banking Corporation, Resp’t, v. Joseph M. Emanuel, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Bills and notes—Evidence.
    The drawer and indorser of a draft drawn against a consignment of oil, and endorsed for value to a third person, gave the consignee authority to sell the oil and apply the proceeds to the payment of the draft. In an action by the endorsee to recover a balance due on the draft, Held, that the court properly admitted in evidence, on plaintiff’s behalf, the account of sales submitted to him by the consignee, showing the existence of the balance in question.
    2. Pleading—Amendment—New defense.
    The court properly refused to allow the defendant to amend his answer so as to plead payment, as it would have been setting up a new defense.
    Appeal from a judgment entered upon a verdict directed in favor of the plaintiff, and from an order denying a motion for a new trial.

      Sol. Kohn, for app’lts; Amasa A. Bedfield, for resp’t
   Lawrence, J.

Under the pleadings in this case, as the evidence stood at the close of the trial, there was, in our opinion, nothing to go to the jury. The difficulty which was claimed to have existed on the former trial, on account of the refusal of the learned justice to submit to the jury the question whether the defendant Emanuel had given the firm of Meyer & Co. authority to sell the oil against which the draft was drawn, as the agents of the defendants, and to apply the proceeds to the payment df the draft, has now been removed, as it distinctly appeared on the trial which resulted in the judgment from which this appeal is taken, both by the evidence of the defendant Meyer and of the defendant Emanuel, that it was part of the agreement between the maker and endorser of the draft that Meyer & Co. should sell the oil, and that the proceeds should be paid to the plaintiff on account of the draft. Hong Kong & Shanghai Banking Corporation v. Emanuel, 36 St. Rep., 718.

This being the case, it seems most clear that the account of sales submitted by Meyer & Co., who were the defendants’ agents, were admissible in evidence against the defendant Emanuel, and that they were binding on him. There was also no error, in our opinion, committed b^ the learned justice in refusing to allow the defendant to amend his answer so as to plead payment.

To have permitted such an amendment would have been to have allowed the defendant to set up an entirely new defense, for which, even if the court had power to grant it, the evidence in the case offered no jurisdiction. Price v. Brown, 98 N. Y., 388.

The endorsement of the bill, “ Beceived payment for the Hong Kong & Shanghai Banking Corporation, Harold Yacher, Agent,” upon the evidence amounted merely to an acknowledgment that there had been received in payment upon the bill the amount for which the oil had been sold, being the amount for which credit was allowed under the allegations of the complaint. Neither did the justice who tried the cause err in refusing to allow the defendant to go to the jury upon the several questions stated at page 40 of the case.

There could be, on the evidence, no question that the oil had been sold, nor as to the fact that there had been an account of sales rendered to the' defendant Emanuel by his agents Meyer & Co. There was no proof before the court of any payment of the draft beyond that which the plaintiff had established by putting the endorsement upon the draft in evidence. There was no plea of payment by the defendants, nor was there any evidence of negligence on the part of the plaintiff to submit to the jury.

Upon the record, we are of the opinion, therefore, that if the defendant had been allowed to go to the jury upon either of the questions submitted by his counsel, and a verdict had been rendered in his favor, the court would have been compelled to set it aside. Dwight v. Germania Life Ins. Co., 103 N. Y., 341-358; 3 St. Rep., 115; Kelly v. Burroughs, 102 N. Y., 93; 1 St. Rep., 161; Cagger v. Lansing, 64 N. Y., 427.

The judgment and order below must, therefore, be affirmed, with costs and disbursements.

Yah Brunt, P. J., and O’Brien, J., concur.


author: O’Brien, J. Lawrence, J.

text:
    Joseph Marrone, Resp’t, v. The New York Jockey Club, Appl’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Pleading—Irrelevant and redundant allegations—Striking out.
    Plaintiff contracted to blast and excavate rock at a fixed price per cubic yard for such work as should be done. Defendant paid for all work done and refused to let him proceed. Plaintiff then brought suit for damages for not being allowed to proceed with the work. Feld, that allegations in the complaint that the work done was for defendant’s benefit and accepted by it and paid for according to the contract, which contract was signed by defendant’s superintendent, were irrelevant and redundant, and, on motion, should be stricken out. (Lawrence, J., dissents.)
    Appeal from an order of the special term denying defendant’s motion to strike out a part of the complaint as irrelevant and redundant

      Albert B. Oruilcshanh, for appl’t; Edward E. Murphy, forresp’t.
   O’Brien, J.

The complaint alleges that the' parties entered into an agreement, a copy of whicli is annexed, and that the defendant contracted therein under the name of ■ the Westchester Jockey Club:

That all the blasting, excavations and other work done upon the said contract was done upon the land and premises and for the benefit of said defendant, and that said defendant accepted the work already done by the plaintiff under said contract, and that the payments heretofore made to the plaintiff for said work were made by said defendants according to the terms of said contract, and that the James E. Jackson who signed said contract is the architect and superintendent of said defendant.”

The complaint alleges that the plaintiff entered upon the performance of the said contract, and fulfilled all its conditions, until the defendant had broken the said contract by refusing to further allow him to perform the same upon the ground that there was no work tp be done under said contract, and ordered the plaintiff to remove his men and apparatus and tools from those premises, and forbade plaintiff' to do any more blasting, * * * and refused to pay plaintiff for any other and further work than had already been done.”

It is further alleged “ that there remained a large quantity of blasting and rock excavation required to be done under the terms and conditions of the contract.” The contract referred to in this complaint has already been before this general term in this same action, and it was then commented on by the presiding justice as follows:

“ He not only does not show that he has a cause of action against the defendant, but he fails to set out a cause of action against anybody. Not only was the contract in writing under seal, but in the name of a "party other than the defendants, and there is no agreement therein contained that the party contracting with the plaintiff shall allow the plaintiff to do all this work. The plaintiff contracts to take put rock, etc., and the other party contracts to pay him a certain price for what he does take out, and nothing more. It is conceded that the plaintiff has been paid for all work done, and this action is brought to recover damages for not being allowed to do more. As there was no obligation to give the plaintiff more to do, this refusal could not rise to an action for damages sustained by such refusal.”

The language objected to and sought to be stricken out is that above quoted from the complaint. As it stands, it must be answered under oath, and the question therefore presented is whether it is irrelevant and redundant It is apparent that its purpose is, in some way, to support the plea of ratification, upon plaintiff’s theory that the defendant, and not the Westchester Jockey Club, was the real party to the contract If the complaint were that some one else made the contract and defendant afterwards ratified it, this suggestion might have some weight. The theory of plaintiff’s action, however, is that the defendant itself made 'the contract, though under another name. The test, therefore, of its irrelevancy is to be determined by consideratian of what would result upon the cause of action alleged, if all the language complained of were stricken out. So considered, it is clear that the same cause of action would remain, since it is founded, not upon work the defendant did accept, or pay for, or get the benefit of, but upon its refusal to permit the plaintiff to do the work contracted to be done.

The most that can be urged in favor of retaining the language objected to in the complaint would be that it contained a statement of items of evidence in support of the plaintiff’s theory that the contract bau nd the defendant. The answer to this, however, is that facts must be set forth and not evidence of facts. The purpose of pleading is to determine the issues as between the parties, and where, as here, language is introduced in the complaint, which, at best, is but evidence of certain facts, which facts themselves, if true, are not relevant to the issue, it should not be allowed to remain in the pleadings and obscure and cloud the true issue which is to be determined upon the trial between the parties.

As stated by Judge Brady in Isaac v. Velloman, 3 Abb. Pr., 464: “ A party is aggrieved if called upon to answer an irrelevant or redundant statement, and thus to create issues which the rules of pleading do not encourage or. sustain. That imposes upon him a legal obligation, by a system of pleading which does not otherwise exist, and he is aggrieved by it. Every infraction of a legal right is a grievance, however made.”

The principles governing motions of this kind are fully set forth in the case of Smith v. Hilton, 50 Hun, 236; 19 St. Rep., 340, which is an opinion of the general term of this court. It is therein held that it is the duty of the court, upon motion, to strike out such portions of a pleading as are irrelevant

We are of opinion that the motion to strike out the language •objected to should have been granted. And the order is accordingly reversed, with ten dollars costs and disbursements, and motion granted.

Van Brunt, P. J., concurs.

Lawrence, J.

(dissenting.)—We are of the opinion that it cannot be successfully contended that the averment in the complaint which was sought to be stricken out was irrelevant, and that the order made below was, therefore, erroneous.

The complaint, after alleging that the defendant is a domestic corporation,- avers that on the 22d day of September, 1888, the parties to this action entered into a contract in writing, which is annexed, by which the plaintiff was to do certain excavating, and blasting; that the said defendant contracted therein, under the name of the Westchester Jockey Club. It is then averred that all the blasting, excavating and other work done under said contract was done upon the land and premises and for the benefit of said defendant, and that said defendant accepted the work already done under said contract, and that the payments heretofore made to plaintiff for said work were made by said defendant, according to the terms of said contract, and that the Thomas R. Jackson who signed said contract is the architect and superintendent of the said defendant.

The contract referred to is annexed to and made a part of the complaint, is under seal, and is signed Thos. R. Jackson, for the Westchester Jockey Club.

If the paragraph of the complaint sought to be stricken out does not state a cause of action, the proper remedy of the defendant would seem to be by demurrer; but the motion is to strike out the same as irrelevant, and we are not prepared to say upon a motion that it is irrelevant

The opinion of this court delivered in this case, reported in 37 St. Rep., 936, was rendered upon an appeal from an order granting the plaintiff’s motion to compel the defendant to produce a profile and survey for his inspection in order to prepare his complaint. The complaint had not then been drawn and was not before the court, and its sufficiency should be determined upon a demurrer,_ and not upon a motion to strike out portions of it.

It appears that the defendant is in no way aggrieved by the allegations objected to, nor was it embarrassed in its pleading. Code, § 545. see, also, Town of Essex v. N. Y. & Canada Railroad Co., 8 Hun, 361.

The order appealed from must be affirmed, witli costs and disbursements.

Order reversed, with ten dollars costs and disbursements, and motion granted.


author: Van Brunt, P J.

text:
    William L. Reynolds, Resp’t, v. Sylvester H. Kneeland, App'lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Master and servant—Negligence—-Fellow servants.
    In an action by an employee against a railroad owner to recover damages for personal injuries, it was shown that the injuries resulted from defects in a hand-car on which he was returning from work; that the car was originally suited to its use, but got out of repair Held, that the failure of the parties who were using the cars to report its condition to defendant, and request that it be put'in order, was negligence, and affected plaintiff, as they were his fellow servants.
    2. Same—Instructions.
    In such case the court virtually instructed the jury that the plaintiff was entitled to recover if he had not personal knowledge of the condition of the car, no matter how negligent his fellow servants may have been not only in using the car at all, but in placing it in the position they did. Held error.
    Appeal from judgment entered on verdict and from order denying motion for new trial.

      R. Q. Ingersoll, for app’lt; H. Fiske, for resp’t.
   Van Brunt, P J.

This action was brought to recover damages for an injury suffered by the plaintiff by reason of the alleged negligence of the defendant.

The defendant was at the time of the accident on the 20th of June, 1887, and for some time prior thereto, engaged in repairing, reconstructing and widening the guage of the Toledo, St. Louis & Kansas City railroad, which he owned. The plaintiff was in the defendant’s employ as a foreman in charge of a gang of men engaged in the work, and on the 20th of June was employed near Michigantown in the state of Indiana. A Mr. Calhoun was the immediate superior of the plaintiff as a sort of general foreman, and above him was a Mr Goodrich, superintendent of construction. Some three days before the accident the plaintiff was put in charge of the work by Mr Calhoun in his absence according to the orders of Mr. Goodrich, and the plaintiff had charge and control of the gangs at work when Mr. Calhoun was not present. All of these men at the time of the accident lived at Michigan-town with the exception of one foreman, Downhour, who lived at Russiaville, seven miles further on. Downhour’s gang were accustomed to go in the morning from Russiaville to Michigan-town, on a hand car and then lift the hand car on one of the cars of the train which was drawn by a locomotive, and come up with the other gangs ; and in the evening they would go down on the train to Michigantown and then take their hand car on to Russia-ville. The plaintiff testified that he never had occasion to use a hand car while in the defendant’s employ until the day of the accident, except once for a few miles under the charge of another man. On the morning of the accident the general foreman Calhoun saw the gangs at work between seven and nine and again at five. He was at that time travelling on a three wheel car and remained at the place where the men were working about ten minutes, having a general conversation with the plaintiff. On the evening of the 20th of June the construction train was not present to convey the workmen home, but there were a number of hand cars and one or two push cars at the station. Thereupon the several gangs proceeded to construct a train out of the hand and push cars, and the car that Downhour used to return to Russiaville was placed in the middle of this train. One of the witnesses testified that Mr. Calhoun stated that the train would not be there to carry the men home, and that they would have to lash the cars together, and all the men go down on the cars. When the men quit work they proceeded to prepare the train, including therein a car which was known to many of them to be out of • order. After the cars were lashed together the men, among whom was the plaintiff, got on and the train started. After going about a quarter of a mile some one shouted that he had lost a dinner pail, and the train was stopped to allow him to pick it up. The plaintiff, with another foreman, got off the train and walked ahead about a quarter of a mile. During the stoppage, in consequence of the defective condition of this car, which had. been placed in the middle, it was determined to change its location in the train, and it was placed in front, and the train started again. If the car was defective, there was evidence tending to show that the proper place to have placed this car was in the rear of the train and not in the front. When the train overtook the plaintiff he took his seat in front of the train, some one making room for him as the train came along. After it had run a little way it began to go down hill at a pretty high rate of speed, when the car which was out of repair gave way. and the plaintiff was thrown over in front of the car, and the whole train ran over him. He was terribly injured, and brought this action to recover his damages. A recovery having been had, appeal was taken from the judgment thereupon entered and from the order denying the motion for a new trial.

It is claimed upon the part of the appellant, as a ground of this appeal, that the accident happened because of the negligence of fellow servants of the plaintiff, and that therefore no recovery could be had.

It does not need the citation of any authorities to support the proposition of accident- caused by negligence of fellow servants. It is well settled, and there is no dispute in respect' thereto, the distinctions arising in the various cases from the determination as to whether the party injured is a fellow servant of the person guilty of negligence.

It appears from the record that this subject of fellow servants was not distinctly brought before the jury until after the charge, and in pursuance of certain requests made by the defendant. Among other things charged at the request of the defendant, the court- charged that in respect to fellow servants no distinction arises from the different grades or rank of the employees, nor from their being engaged in different work, provided the service tends to accomplish the same purpose; that the foreman of a gang employed by a contractor is a fellow servant of one of the gang; and that the various men who were employed and were working on the railroad in the gangs under Reynolds were fellow servants of said Reynolds. This last proposition took away from the jury all question as to the relation of the plaintiff to the persons who were associated with him in the work which they were there conducting.

It will be observed that' there was evidence tending to show that Reynolds had been put in charge of the work in the absence of Calhoun, and that Calhoun was not present at the time the various gangs stopped work on the day on which the accident occurred, and Reynolds was therefore the general superintendent of all the gangs and their foreman. And the court charged, thus not leaving it to the jury, that all these men were the fellow servants of Reynolds. And in the consideration of the questions raised upon this appeal, it is necessary to treat of the relations of the parties upon that basis.

The court was thereupon requested to charge': “ That if Down-hour knew of the defect in the car, and if he put the defective car in front, and that the injury occurred by reason of the defective car and putting it in front, the defendant is not responsible, as Downhour was a fellow servant, and his knowledge was the knowledge of the plaintiff.”

This request was refused, and the defendant excepted.

The court was further requested to charge: “ That the only thing incumbent upon the defendant in this case was in the first place to supply good machinery, proper tools, and also to employ competent and proper men to superintend the workmen, and that if they believe he did so, purchased proper machinery' and did ■employ competent and proper men to superintend the work, and that although it may appear from the evidence that the persons, ■or some of them, using this hand car found it was defective and persisted in using it afterwards, then that the defendant is not responsible.”

The court declined so to charge, and defendant excepted.

That if the jury believed that the defendant had employed competent men or a competent superintendent, and that he employed •competent men under him, that no complaint ever was made to .this superintendent, and that the superintendent would have repaired any defect had complaint been made to him, and that the men, the fellow servants of this plaintiff, used the car knowing it to be out of repair, then the defendant, having no personal knowledge, is not responsible.

This request was also refused and the defendant excepted.

It is to be observed that the action is based upon the negligence of the defendant. It may not .be always necessary to establish personal negligence upon the part of the defendant; but there must be negligence upon the part of somebody who stands in the position of the defendant, and for whose negligence the defendant may be held responsible. The duty of the defendant was to employ proper machinery and competent workmen, and to exhibit care and prudence in the selection of the men to be employedand if injury results from the carelessness or recklessness of a fellow servant under such circumstanes, the employer ■cannot be said to be guilty of negligence. An employer is not an insurer of the safety of the men employed, although the business may be of a hazardous character. But he must exercise care .and prudence in the conduct of the business in order that his employees may not be unduly exposed to the risk of injury.

In the case at bar the evidence tended to show that the persons whom the defendant had placed in charge of this work were careful, prudent and competent men; and that the car in question was originally entirely suited to the purpose for which it was used, namely, the carrying of a few men along the line of the road. There was evidence tending to show that no complaint in regard to the condition of the car had ever been made to any person in charge of the work; nor any request to repair the same ; and although there was evidence to the contrary, perhaps, yet still that necessarily remained a question for the jury, and was embraced in the request which was refused. With evidence of this character tending to show prudent and careful selection of men and machinery, the fact that such machinery got out ■of repair, was used when out of repair, and such use resulted in accident, seems to indicate negligence upon the part of the parties who were using this machinery and failed to report its condition and to procure its being put in proper condition. And the persons who are chargeable with this knowledge which resulted in an accident were held by the court to be the fellow servants of the plaintiff.

By reference to the requests it will be seen that the counsel requested the court to charge: “ That if the jury believed that the: defendant had employed competent men or a competent superintendent, and that he employed competent men under him, that no complaint ever was made to this superintendent, and that the-superintendent would have repaired any defect had complaint been made to him, and that the men, the fellow servants of this plaintiff, used the car knowing it to be out of repair, then the defendant, having no personal knowledge, is not responsible.”

The refusal to charge this proposition was equivalent to charging the jury that, although the defendant had employed competent men and competent superintendents and that no complaint was ever made in regard to this car, and that if it had been made it would have been repaired, and the men used the car knowing it to be out of repair and dangerous, notwithstanding these facts the plaintiff could recover. This seems to be error, because if those facts existed, the defendant had performed his whole duty.

But it may be said that this' proposition did not embrace the" original furnishing of proper machinery. But the evidence-showed that this car, when originally furnished for this work, was: proper for the use to which it was intended to be put; and that it only became unfit for service because of its having got out of repair. And, therefore, it was not necessary to include in that, proposition the question of proper machinery, as there was no evidence to show, as already stated, that at tine time this car was-originally furnished it was out of "repair.

It is therefore apparent that if there was a failure to report this car as being out of order, and no request for its being put in order, and the accident happened because of its defective condition, there was negligence upon the part of the persons using the car,, and who were the fellow servants of the plaintiff.

In the case of Loughlin v. The State, 105 N. Y., 159; 6 St. Rep., 826, it appears that the plaintiff was employed upon the state boat upon Lake Champlain. While so employed, he was. engaged, under the direction of the captain, in digging and wheeling clay, from a bank near the canal into the boat. The captain of the boat had loosened the overhanging earth, and while the-plaintiff was under it it fell and he was injured. It was found that the injury resulted from the negligence of the captain of the boat, and it was held that although captain of the boat, with power to direct those under him, he was nevertheless a co-servant within" the rule; and that it was the ordinary case of mismanagement by a co-employee of a superior grade, and under such circumstances; no recovery could be had. So in the case of Byrnes v. N. Y., L. E. & W. R. Co., 113 N. Y., 251; 22 St. Rep., 936, where a car had been improperly loaded and it was being moved by the engine from the switch to the main track, the deceased got upon it to stop it, but in consequence of the improper manner in which the car was loaded the brake was rendered useless, a collision occurred and the deceased thrown from the car and killed. It further appeared that the car was in good condition before it was loaded, and that a proper system of inspection had been adopted, "but which system was not followed out, and it was held that having provided a safe car, and a system, of inspection and competent ■men therefor, the defendant was not liable for injuries resulting to .a co-employee. Many other cases of like character might be cited, but these seem to be sufficient to illustrate the principle.

We think upon an examination of the manner in which this case was submitted to the jury that it was a virtual direction upon, the part of the court that the plaintiff was entitled to recover if he had not personal knowledge of the condition of the car in question, no matter how negligent his co-employees may have been not only in using the car at all, but in placing it in the position in the train which they did.

This presented the case in an erroneous form to the jury and deprived the defendant of that protection which the exercise of •due care had thrown around him.

We think that for these errors the judgment should be reversed :and a new trial granted, with costs to the appellant to abide the •event.

Lawrence, J., concurs; O’Brien, J., concurs in result.


author: Dwight, P. J.

text:
    Ella Weed Center, Resp’t, v. James I. Weed, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    IEstofpel—Deed—Fraudulent representations.
    Defendant, for the purpose of inducing plaintiff, his sister, to unite with their sisters in dividing by quit-claim deeds their deceased parents’ property, fraudulently repr sented to her that their mother had died seized of the homestead farm, and the personal property thereon, when in fact he held an unrecorded deed to him of the same, and that if the proposed deeds were executed she would become owner of one-third the homestead and one-fourtli the personal property ; whereupon plaintiff united in the deeds. Held, that defendant was estopped from asserting, as against plaintiff, any title in himself, under the d ed from his mother, to the one-third interest in the homestead and the one-fourth interest in the personal property, and that he convey to her such undivided interest by deed.
    Appeal by the defendant from a judgment entered in Cayuga •county on the report of" a referee.

      J. D. Teller, for app’lt; G. M. Elliott, for resp’t.
   Dwight, P. J.

The parties to the action were brother and sister and, with two other sisters, were the only heirs at law and next of kin of their father and mother, both of whom had died .intestate within a year before this action was commenced. The father died seized of three parcels of real estate in the village of Weedsport, and the mother had been, and it was supposed by the sisters that she was at the time of her death, the owner in fee of the homestead house and lot iivthe same village and the household furniture therein, of which she died in possession. In fact, however, she had, shortly after the death of her husband, conveyed the homestead and furniture to the defendant, subject to her own use during her life, by a deed which he had -withheld from record and the existence of which he had concealed from his sisters, although he had been in the possession of the property •conveyed from the time of his mother’s death. The defendant, moreover, for the purpose of inducing the plaintiff to become a party to the two deeds hereafter mentioned, fraudulently represented to her that his mother had never parted with her title to any of the property in question, but that his sisters and himself had inherited it from her, and in effect that if the proposed deeds were-executed, the plaintiff would become the owner of one-third of the homestead property as well as of certain property left by her father.

By such concealment and fraudulent representation the defendant induced the plaintiff to become a party to two deeds, by one of which Mrs. Putnam, one of the heirs, quit-claimed to the other three all her interest in two parcels of the real estate of their father, and in the homestead real estate, in consideration of the other deed, by which the three grantees in the first quit claimed to her all their interest in the remaining parcel of the father’s real estate, consisting of eight acres of land with farm buildings. The deeds were prepared for execution, with the knowledge and assistance of the defendant, on the 3d day of April, and were executed, acknowledged and delivered on the 5th day 'of the same-month ; but intermediate their preparation and their execution the defendant caused his deed of the homestead to be recorded. These facts were found by the referee with great particularity of detail, and upon proofs which support the findings, and he found: as conclusions of law therefrom, that the defendant is estopped from denying, as against the plaintiff, the truth of the representations above mentioned, and is bound to make them good ; that he is estopped from asserting as against the plaintiff any title in himself, under the deed from his mother, to the one-third interest in the homestead and the one-fourth interest in the personal property which he represented would be hers in case she entered into-the proposed arrangement with Mrs. Putnam; that the plaintiff is-entitled legally and equitably to an undivided one-third interest» in the homestead property, and to an undivided one-fourth part of the personal property in those premises; that she is entitled to a decree adjudging her seized in fee of* an undivided one-third part of the homestead premises and the owner of an undivided one-fourtli interest in the personal property thereon, and that the decree should direct the defendant forthwith to convey to her, by good and sufficient deed, such interest in the homestead premises and judgment was directed and entered accordingly.

We have no doubt that the case was properly one of equitable-cognizance. The plaintiff could not have maintained ejectment for an undivided share of the premises in question, because the legal title to the whole was in the defendant. Nor was she, on the facts of this case, confined to her action for damages by the fraud of the defendant. The mere finding that the defendant was not insolvent at the time of the commencement of the action gives no assurance of his ability to respond in damages for the-wrong done to the plaintiff, and the whole case tends to show that the only effectual remedy for her was to be found in a resort to the land itself under the protection of a lis pendens. Besides, equity acquired jurisdiction of the case by virtue of the allegation of the complaint that the deed to the defendant from his mother was without consideration and was obtained by fraud and deceit; and albeit that issue was finally decided adversely to the plaintiff' equity having thus acquired jurisdiction of the action will retain it until the whole subject is disposed of. Hollister v. Stewart, 20 St. Rep., 941, 949; Ostrander v. Weber, 22 id., 979, 983; Valentine v. Richardt, 126 N. Y., 272; 37 St. Rep., 12. Moreover the-defendant waived the defense that the plaintiff had her remedy at law by not pleading it. See the cases last cited, and Town of Mentz v. Cook, 108 N. Y., 504; 13 St. Rep., 845.

• The case is clearly not within the statutory rule which prescribes three years actual possession in the plaintiff before art action can be maintained to determine conflicting claims to real estate. Code of Civil Procedure, § 1638. It is apparent front the terms of that statute that the action there given is one which is based upon the legal title held or claimed by the plaintiff, and that it has no reference to an action for similar relief, which proceeds upon equitable grounds; and so far from possession in the plaintiff being required in the latter class of actions, relief may, in a proper case, be obtained to set aside a deed or remove a cloud upon title and to recover possession in a single action, Lattin v. McCarty, 41 N. Y., 107; Phillips v. Gorham, 17 id., 270; Bockes v. Lansing, 74 id., 437, 443; the proper cases for the exercise of such jurisdiction being those in which special circumstances of an equitable character exist outside the legal title and right to possession. Moores v. Townshend, 102 N. Y., 387, 393; 2 St. Rep., 440.

We can have no doubt that an equitable estoppel, especially when it is created by intentional and fraudulent representation, may become the basis for affirmative, equitable relief. The principle- is fully recognized, though not actually applied, in the case-of Trenton Banking Company v. Duncan, 86 N. Y., 221, where, as-we gather from the opinion of the court by Andrews, J., pages 228-230, the plaintiff would have been held entitled to affirmative-relief against the defendant if there had been a finding of fraudulent representation or concealment, on the part of the latter, in respect to the title to property which had been conveyed to him by a deed not recorded, or proof that his withholding his deeds from record was with a fraudulent intent. The cases of Wendell v. Van Rensselaer, 1 John. Ch., 344; Hungerford v. Earle, 2 Vern., 261, and Storrs v. Barker, 6 Johns. Ch., 166, were cited as authority for such holding, and in those cases the principle of estoppel was distinctly applied in favpr of the plaintiff in the action.

In the opinión referred to, the court says: “ To authorize the-finding of air estoppel in pais against the legal owner of land there must be shown, we think, either actual fraud or fault or negligence, equivalent to fraud, on his part, in concealing his title.” There can be no question but that the present case comes fully up to the requirement of the rule thus stated. Here the defendant not merely concealed the fact that he held a deed of the homestead property, but affirmatively represented that his mother had never parted with her title to it, and that it belonged, by inheritance, to the four children; and this he did for the purpose of inducing the plaintiff to consent to a division of his father’s estate by which he would, himself, be the gainer to the extent of one-third of the interest of his sister, Mrs. Putnam, in that portion of -the property quit-claimed by her; and it was by means of these ■representations that he induced the plaintiff to part with her interect in the eight acres conveyed to Mrs. Putnam. There can be no ■doubt of the application here of the principle of estoppel.

The only question is of the extent to which that principle shall apply in favor of the plaintiff. In Grissler v. Powers, 81 N. Y., 57, the court, in an opinion bjr Andrews, J., says: “The general rule as to estoppel, where it arises upon a false representation acted upon, is that it operates to the benefit of the party entitled to it to the same extent as if the representation had been true; ” and further: “ The estoppel created by a false representation acted upon, is commensurate with the thing represented, and operates •to put the party entitled to the benefit of the estoppel in the same position as if the thing represented was true.”

Mr. Pomeroy, in his Treatise on Equitable Jurisprudence, says that the party against whom such an estoppel is established “ may be compelled at the suit of an innocent purchaser to make good and specifically perform his representations. Fraud, actual or constructive, is the essential and central element," 2 Pomeroy’Eq. Jr., § 821; and further, “ The general rule is that if a person interested in an estate knowingly misleads another into dealing with the estate as if he were not interested, he will be postponed to the party misled, and compelled to make his representations specifically good." Id., § 807. It is contended on the part of the appellant here, that the principle of estoppel, if it has any operation in this case, can only operate to require the defendant to make good his representations to the extent of the interest in the homestead property which the plaintiff would have taken under the deed of Mrs. Putnam had the latter been, as the defendant represented, the owner of one-fourth of that property; and the interest thus.acquired would have been only one third of one-fourth, or one-twelfth, of the property in question. But this view of the case we regard as too restricted. The representations of the defendant were not confined to a statement of what the plaintiff would receive under the deed from Mrs. Putnam, but extended to an assurance that by entering into the general scheme for a division of the inheritance, and parting with her interest in the eight acres, the plaintiff would become the owner of one-third of the homestead real estate and one-fourth of the household furniture; and such would have been the case but for the deed which he held and fraudulently concealed. It was in reliance upon this representation of the status of the title and in the expectation of this result, that the plaintiff consented to the scheme proposed, and parted with her property.

Under the doctrine of the authorities cited, we think the conclusion of law of the referee was correct, that the defendant was bound to make good to the plaintiff the representation in respect to the title to the property of his mother.

None of the exceptions to the reception and exclusion of evidence on the trial seem to have been well taken.

The judgment appealed from should be affirmed.

Judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.


text:
    Charles Carter, Resp’t, v. Michael Stork, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Principal and agent—Liability op agent.
    Where an agent has received money to which his principal had no right, and has had notice not to pay it oyer, he does so at his own peril, and an. action may be maintained against him for its recovery.
    Appeal by the defendant from a judgment of the county court of Monroe county, entered o'n the findings and decision of the' special county judge, in an action first tried in the municipal court of Rochester, and appealed by the defendant to the county-court for a new trial.

      John A. Bernhard, for app’lt; W. H. Halloch, for resp’t
   Dwight, P. J.

The action was brought by the plaintiff as assignee of the heirs of Catherine Meisch to recover moneys collected by the defendant as rents of premises of which Mrs. Meisch died seized. These rents accrued after the death of Mrs. Meisch, and were collected by the defendant under a power of attorney given to him by her husband, and were paid over to the husband after notice to the defendant that they belonged to and were-claimed by the heirs of Mrs. Meisch, who afterwards assigned their claim to the plaintiff. The husband in this case was not a tenant by the curtesy. These are substantially the facts found by the special county judge, a trial by jury being waived after the evidence was taken.

After the death of his wife, Meisch retained possession and collected the rents of the premises apparently in the belief that he had succeeded to the title of his wife; and the defendant seems to have resisted the demand in behalf of the heirs of Mrs. Meisch under the same mistake of law. Of course no such claim is made for him here, but it is contended that he remained tenant by sufferance after the death of his wife, and that the notice requisite to terminate that tenancy had not been given. The contention is without foundation. Such was not the case at common law, although, during the joint lives, the husband was in effect seized of the estate in the right of his wife, was entitled to receive the rents, issues and profits absolutely, and might even mortgage, lease or sell the land'for the term of the joint lives. But when the wife died without issue by him born alive, the land descended to the heirs of the wife, and his interest terminated at once. Reeves’ Domestic Relations, 28.

But under the married woman’s acts in this state, the husband, who is not a tenant by the curtesy, has no interest whatever in the land of his wife even during coverture, and at the death of the wife there is no tenancy to survive even for an hour. He 'does not remain a tenant by sufferance, because he was never a tenant at all. He has during her life only enjoyed her hospitality, and upon her death he has no more right than a stranger.

The only question in this case which seems to have required examination was that of the liability of the agent, or attorney in fact, under the employment of the husband, to respond directly to the owners of the premises for rents collected by him under such employment, and paid over to his principal. This question was correctly answered adversely to the defense, on the authority of Hearsey v. Pruyn, 7 Johns., 179, and Colvin v. Holbrook, 2 Comst., 126. In the former of those cases Judge Spencer said : The law is, I believe, well settled that an action may be sustained against an agent who has received money to which the principal has no right if the agent has had notice not to pay it over.” And in Colvin v. Holbrook, the rule is clearly laid down by Judge Gardiner that where the principal has no authority to collect money, and of course can confer none upon his agent, the latter acts at his own peril when he pays over money to the former after notice of the facts.

The findings of fact of the special county judge seem to bring 'this case fully within the rule thus established, and demonstrate the right of the plaintiff, as assignee of the persons entitled to receive the rents in question, to maintain this action against the defendant. The findings and decision of the county court dispose of the issues raised by the pleadings, and between the parties to this action; and do not, as we conceive, conflict with the decision made at this term in the case of the same plaintiff against Meisch.

The judgment must be affirmed.

Macomber and Lewis, JJ., concur.


text:
    In the Matter of the Proof of the Will of Francis Raynor, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Will—Probate—Evidence—Trial by jury.
    Where it appeared on application for prohate of an alleged will that ■decedent was a man upwards of seventy, had been stricken with paralysis some months before the alleged will was drawn, and was then lying helpless and speechless, that he made no attempt at spontaneous expression, but at most responded only by look or gesture to questions put or suggestions made ; that two persons had tried to draw the will; that the first failed absolutely to understand deceased, as did the second until aided by a woman present, who put questions and drew conclusions as to his wishes; that decedent seemed to assent when the will was read over to him and touched the pen while his mark was made, Held, that a decree admitting the will to probate should be reversed, and a trial by jury ordered.
    Appeal by contestants from a decree of the surrogate of Erie ■county, granting probate to the alleged will of the deceased.

      W. H. Hotchkiss and M. Shire, for app’lts; Gf. H. Stillwell, for resp’ts.
   Dwight, P. J.

No question is made on this argument as to the testamentary capacity of the decedent at the time of the exe-cution of the paper propounded as his will. The questions discussed are, does the proof satisfactorily establish the fact (1) that the paper thus propounded 'embodies the actual will and purpose •of the decedent; and (2) that it was intelligently and intelligibly published and declared by him to be his last will and testament.

The deceased was a man of upwards of seventy years of age. Some months before this alleged will was drawn he had been stricken by paralysis, and he was then lying helpless and speechless, unable to utter an articulate sound or to move his right hand. He made no attempt at spontaneous expression, but, at the most, responded only by look or gesture to questions put or .suggestions made to him. How it came to be understood that he -desired to make a will does not appear, but it seems that a scrivener was sent for at the same time as the priest, at a moment when the sick man was supposed to be in extremis.

The first person brought in to write the will attempted to communicate with the testator, but was able only to elicit the same motions of the head and one hand and the same gutteral and in .articulate sounds as expressions alike of assent and dissent, and he abandoned the attempt as hopeless. Another person brought in for the same purpose, and who finally wrote the paper propounded as a will, seemed to have experienced the same difficulty in communicating directly with the sick man, and declared to his friends that he could make nothing at all out of the interview with him. It was only when a woman present, whom he took for a nurse, but who seems to have been only a neighbor who came in from motives of curiosity and kindness, volunteered to act as interpreter, that he obtained any idea of the supposed wishes of the testator; and such ideas as were thus communicated to him the scrivener reduced to writing. The testimony of this woman and of other persons present, as to the means by which the supposed wishes of the testator were elicited, is very confused ¡and sometimes contradictory. The idea that the first wish of the .sick man was to make a bequest to his parish priest seems to have been first suggested to the interpreter by his pointing in the .supposed direction of the church; and from this rather uncertain indication, and by means of questions suggested by it, she was able to reach the conclusion that he desired to give $1,000 to the priest, of which $500 were to pay for masses for the repose of his .•soul and $500 was to be used for the purposes of the church.

The other dispositions of his property embraced in the will were indicated in much the same way, and, as understood, consisted of the absolute gift of all the rest and residue of an estate, real and personal, valued at from $50,000 to $100,000, to his wife, with the sole condition that after his death the sum of $100 .should be paid to each of his grandchildren, five in number, of whom three were children of a deceased son. Besides these his heirs-at-law consisted of two sons and three daughters.

The above provisions, with the designation of his- wife and eldest son as executors, having been reduced to writing, the paper was read over to the decedent, and, as the witnesses testify, was assented to by him in the same manner in which his supposed assent had been indicated to its several provisions. The paper was then executed by the scrivener’s appending the mark of a cross while the decedent touched the pen. After that he was asked whether he was satisfied to have the three attesting witnesses sign as such, to which he was understood to assent.

This is the substance of the evidence in support of the propositions that the paper in question embodied the full, free and intelligent purpose of the testator in respect to the disposition of his. property, and that it was duly published and declared by him as- and for his last will and testament.

A valid will may, no doubt, be made and published by a person unable to write or speak, by the use of signs; but to entitle-such a will to probate, there must be clear and satisfactory proof of what was intended by the signs employed, and that they were correctly understood and faithfully interpreted by the person to-whom they were addressed. Rollwagen v. Rollwagen, 3 Hun, 132, and 63 N. Y., 518, and the cases cited. We have found it. impossible to derive from the evidence in this case that degree of satisfaction in respect to the essential facts above stated which would warrant us in affirming the decree appealed from, and,, without further discussion of those facts, we state our conclusion that the questions involved ought to be submitted to a jury, in. accordance with the statute. Code Civ. Pro., § 2588.

Decree reversed on the facts, and a trial by jury ordered of the-material questions of fact arising upon the issues between the parties; such trial to be had in the circuit court in Erie county; order to be settled by the presiding justice of this court; costs of this appeal to abide the final award of costs.

Macomber and Lewis, JJ., concur.