text:
    Agnes Mellwitz, Resp’t, v. The Manhattan Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

      1. Railroad—Injuries to passengers.
    Plaintiff's uncorroborated testimony was to the effect that the guaid of defendant’s train threw her out of the car and struck and caused her to fall on the platform. Disinterested persons who were present contradicted this and testified that she ran towards the train and fell in attempting to get on after the gates were closed and it was moving. Held, that the case should have been taken from the jury, or the verdict in plaintiff’s favor set aside and a new trial granted.
    3. Negligence—Married women—Damages.
    A married woman cannot recover for loss of earnings in an action for personal injuries unless such damages are specially pleaded.
    3. Same—Evidence.
    Where the issue involved is whether plaintiff was injured by a blow or by a fall it is error to allow a witness to testify that he heard the doctor when examining the plaintiff say that the injury was from a blow, where" the doctor’s attention was not called to it when upon the stand.
    Appeal from a judgment in favor of the plaintiff rendered upon the verdict of a jury at circuit, and also from an order denying the defendant’s motion for a new trial.

      I. W. Jacobson, for resp’t; Julien T. Davies and Joseph H. .Adams, for app’lt'
   Barrett, J.

I am inclined to think that the motion for a new trial in this case should have been granted. Certainly we would not have interfered with the judgment of the learned justice who tried the action at circuit had he granted a new trial upon his minutes.

The action is for damages alleged to have been sustained by the plaintiff, upon the morning of the 7th of June, 1889, at the Elevated Railway station at Eightieth street and Second avenue in this city. The plaintiff tells an improbable story as to what then occurred.

In substance, it is this: That she purchased two tickets, put-one of them in the box and held the other in her hand. When-about to enter the car, the conductor or gateman told her to put-her ticket in the box. He then punched or pushed her twice, once on the breast, and thus caused her to fall over on her left side on the station platform. She adds that she had actually got inside the car when this man pushed hér off and ‘-‘threw her out.” This story is entirely without corroboration and it is explicitly denied by six witnesses, three of whom have no connection with the defendant and are apparently disinterested. These witnesses-testify, in substance, that the plaintiff ran towards the train and fell in attempting to get on it after the gates were closed and while it was moving away. Several of these witnesses deny that the conductor or gateman pushed her, while others say that they' were so situated as to be unable to see the conductor. But what-they did see was entirely inconsistent with the version of the-affair given by the plaintiff, and, if credited, conclusively established her contributory negligence. The testimony of these witnesses is criticised by the respondent as improbable, contradictory and unreliable. But, as we read it, their contradictions and variations are slight and with regard to minor matters of detail; just such discrepancies, in fact, as are usually found when several observers of an exciting occurrence attempt to narrate what happened. The very fact of such discrepancies in matters of detail favors the veracity of the narrators, while photographic agreement upon every particular would be suspicious. The plaintiff’s testimony is likewise criticized by the defendant, and with more reason. For she tells a story of brutality without motive and gives us no -idea why she was singled out from a host of passengers for mere wanton outrage.

As the testimony of the plaintiff was in itself improbable, as it was wholly without corroboration, and as it was contradicted' by numerous witnesses, several of whom were entirely disinterested, we think the learned judge should either have taken the-case from the jury or granted a new trial. The trifling amount, awarded to the plaintiff is significant as to what actuated the jury. If her story was true, she was clearly entitled to a much more-substantial verdict, and it really looks as though the jury realized that her case was weak, yet gave her a small sum rather than turn, her out of court entirely empty-handed. This was compassion, not justice, and in considering such a case the following words of' Justice Barculo in Haring v. N. Y. & Erie R. R. Co., 13 Barb., 15, are apt and suggestive:

“We cannot shut our eyes to the fact that in certain controversies between the weak and the strong, between an humble individual and a gigantic corporation, the sympathies of the human mind, and naturally, honestly and generously, run to the assistance and support of the feeble and apparently oppressed, and that compassion will sometimes exercise oer the deliberations of a-jury an influence which, however honorable to them as philanthropists, is wholly inconsistent with the principles of law and the ends of justice."

As a better case may possibly be presented by the plaintiff •upon a new trial, it is proper that we should notice two other points made by the appellant.

The court, against their objection and exception, admitted evidence as to the plaintiff’s loss of earnings. This was error, for the reason that such damages were not pleaded. Uransky v. Dry Dock, E. B. & B. R. R. Co., 118 N. Y., 301; 28 St. Rep., 711. Ordinarily such damages are- provable without being specially pleaded, for in the case of a man or a femme sole they are the natural and immediate consequences of the injury. Not so, however, in the case of a married woman. She may undoubtedly recover them, but only in case she has, prior to the injury, been engaged in the performance of some labor for her sole and separate use and benefit, or can otherwise show that she is entitled to the fruits of her own labor.

In her case, they are not the immediate and necessary result of the injury. They result from the additional and special circumstances that she has been accustomed to avail herself of her statutory right to work for herself, or that for some -other reason she is entitled to the fruits of her own labor. The case cited is directly in point, and must be followed. And the rule there laid down finds support in Filer v. N. Y. Central R. R. Co., 49 N. Y., 55 and 56, where such damages, when claimed by a married woman, were styled “consequential.”

It was also error to permit the question which was put to the witness Wurst: “ Q. Did you hear what the doctor said when he was examining the plaintiff?” This enabled the witness to answer as follows: “ He says that is from a blow."

This testimony was highly prejudicial to the defendants, as the issue was whether the plaintiff fell naturally while attempting to .get on a moving car, or as the result of a push from the conductor. The doctor had been examined before the question was put, but he was not asked whether he made such a declaration at the time and place specified by Wurst

Treated independently, the testimony was hearsay. If offered to contradict the doctor, it was, of course, collateral, and under well settled rules his attention should have been called to it.

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

Yan Brunt, P. L, and Daniels, J., concur.


source: Caselaw Access Project

author: Daniels, J. Barrett, J.

license: Public Domain

text:
    William S. Lawson et al., Resp’ts, v. Curtis N. Douglass, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Account stated—Waiver.
    The presentation of an account to a debtor, his assent to its correctness .on examination, and propiise to pay it, renders it an account stated, and its effect as such is not waived by a subsequent proposal to extend the time of payment, not accepted or acted on by the debtor, nor by a sale of (Collaterals.

      Appeal from a j udgment recovered on the report .of a referee.

      Eustace Conway, for app’lt; D. Morgan Hildreth, Jr., for resp’ts.
   Daniels, J.

The plaintiffs were brokers doing business in the . ■city of New York, and were employed by the defendant in the purchase and sale of stocks. After their transactions were completed, an account was made out in their favor against the defendant showing a balance owing from him amounting to the sum of .$42,553.05. This account contained the charges for losses upon stock transactions made by the plaintiffs for the defendant. And in January, 1890, the witness, D. Morgan Hildreth, Jr., who is the plaintiffs’ attorney in the action, testified that he visited the defendant in the city of Albany, and there presented to him this account, and that after examining the account the defendant .-agreed to its correctness and promised to pay it as soon as he ■could. And the account was stated in the complaint and relied upon as the cause of action as a settled acconnt And from the ■evidence of the witness Hildreth, although he was the counsel for 'the plaintiffs in the action, and his testimony for that reason was ■certainly subject to some criticism, the referee was at liberty to find that this account had been accepted by the defendant in this ■manner. And if it were, that was sufficient to render it a stated .account within the authorities. Knickerbocker v. Gould, 115 N. Y., 533, 537; 26 St. Rep., 651, where the cases upon this subject are collected and referred to by the court

After this settlement of the account a negotiation took place between the parties for an extension of the time of payment, and the plaintiffs consented to extend indulgence to the defendant on payment of the balance in case he paid a note which had been received by them from him amounting to the sum of $5,000. .He, ■did not accept the proposal made in this manner, nor pay the note within the time it was necessary for him to do so to obtain the .advantage of the proposal made to him. And accordingly measures were taken by the plaintiffs to sell the collaterals held by them for the security of the account. And evidence was given, though not by any means conclusive, tending to prove the fact to be that 'they .gave him notice of the time and place when these securities would be sold. While this evidence left the fact’ of the mailing ■of the notice to him in a state of uncertainty, that uncertainty was substantially removed by his failure to deny the receipt of 'the notice. The most that he could say was that he did not re■collect receiving the notice that the stocks mentioned in the account would be sold at a given time. The probabilities, therefore, .are that the notice was mailed, as it was shown to have been made ■out and put up for that purpose and addressed to him at the city ■of Albany, that these securities would be sold at the time and place mentioned in the evidence given on behalf of the plaintiffs. Pursuant to the notice the securities were sold and the amount realized credited to the defendant in his account, leaving an unpaid balance amounting to the sum of $11,140.35, which was the amount claimed to be recovered by the plaintiffs in the action .and for which the referee reported in their favor.

It has been insisted on behalf of the defendant that what took place after the presentation of the account was a waiver of it as & stated account. But the mere proposal to extend the time of payment, not accepted or acted upon by the defendant, was clearly inoperative for that purpose. A mere proposal was not sufficient to constitute a-waiver of a settlement of the account. Neither was the sale which was afterwards made of the collaterals attended with that effect. The account, as long as the referee credited the evidence of the plaintiffs’ witness, still remained a stated and settled account, subject to credit, however, for any amounts which the plaintiffs afterwards realized from the sale of the securities. The questions arising in the case were those dependent upon the-effect of the evidence given by the witnesses during the progress of the trial. The statements made in behalf of the plaintiffs were deemed to be credible by the referee. And it was for him, having the witnesses before him, to determine whether that was-the true construction to be placed upon the evidence, or not. There séems to be no ground upon which the judgment recovered on the report of the referee can be interfered with. On the contrary it is substantially sustained by the evidence, and the judgment should be affirmed.

Van Brunt, P. J., concurs in result

Barrett, J.

I think the discussion with regard to the service-of notice of the sale of the securities is entirely superfluous. The defendant sets up in his answer no claim with regard to such sale. The plaintiffs simply give him credit for the proceeds of the sale.. Whether they should have given a larger credit is a question not. before the court. In fact, but for the averment in the complaint of the sale of the stocks and the reduction pro tanto of the-account stated, the plaintiffs could have rested upon proving such, account stated and left the defendant to plead payment or any counterclaim he might have. Even if the plaintiffs had sold without notice it would not vary the effect of the transaction under these pleadings. Notice or no notice, the plaintiffs have voluntarily given the defendant credit for a sura of money received and applied in part satisfaction of the account stated.

And the defendant neither alleges nor proves that he was entitled to a larger credit

I therefore concur in the conclusion arrived at, as I entirely agree with Mr. Justice Daniels upon all the other points discussed.


author: Barrett, J.

text:
    Eliza A. Simmons, Ex’rx, Resp’t, v. Helen Craig et al., App’lts.

      {Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Motions and obdebs—Affidavits.
    Where an affidavit on a motion asserts a fact positively it can only be-controverted by an equally positive denial or by stating facts upon the affiant's knowledge tending to disprove the fact asserted.
    2. Same.
    An affidavit which denies knowledge or information sufficient to form a-belief is insufficient to controvert a positive statement of a fact. Such, form of denial is only admistible-in a pleading.

      'B. Abatement and beviyob—Judgment.
    Where an action has been revived and continued after the death of the original plaintiff, it is proper to enter judgment in the name of the person who thus became plaintiff on the record. Section 763 of the Code refers only to cases where there has been no revivor or continuance under § 767.
    Appeal by the defendants from, an interlocutory judgment of "the special term, entered on the 3d day of February, 1890; also from an order continuing the action in the name of the plaintiff as executrix of Maria W. Croome, deceased ; also from the final judgment entered herein upon the 16th day of June, 1891.

      M Haines, for app’lts; Alan D. Kengon, for resp’t
   Barrett, J.

The only question in this case which has not •been disposed of by a satisfactory opinion at special term is as "to the right of revivor. The interlocutory judgment is supported by an opinion filed by the learned judge who tried the case, in which we concur. By that judgment it was referred to Augustus *0. Brown., Esq., to take an account and to ascertain and report -certain facts.

The report of the learned referee upon which the final judgment appealed from was entered is also supported by a full and •careful opinion, in which we concur. We think the results arrived at are entirely just, and that the conclusions of the court and the referee should not be disturbed. We have no doubt that ■the order continuing the action was properly made. It was in ■precise accord with § 757 of the Code of Civil Procedure, and with the rule laid down in Coit v. Campbell, 82 N. Y., 509. The affidavit of Mr. Kenyon sufficiently established the admission of -Maria W. Croome’s will to probate, and the issuing to the plaintiff •of original and ancillary letters testamentary thereon. The affi-davit on this head was not met by Mi*. Craig’s denial of knowledge or information sufficient to form a belief, nor by his allegation that he had no such knowledge or information. This form of denial, as has been repeatedly held, is only admissible in a pleading, such as an answer to a complaint or a reply to a counter - ■claim. Where an affidavit on a motion asserts a fact positively, it can only be controverted by an equally positive denial or by stating facts, upon the affiant’s knowledge, tending to disprove the facts asserted. Matter of Sullivan, 55 Hun, 285; 28 St. Rep., 566, and cases there cited.

And further, the facts so testified to by Mr. Kenyon are fully set forth in the statement ” furnished pursuant to the rules, and .-are also referred to at the commencement of the proceedings before the referee.

The action having been thus continued, it was proper to enter judgment in the name of the person who then became plaintiff on the record. Section 763, referring to-the entry of judgment in the names of the original parties where the death occurs after "the interlocutory and before final judgment, refers only to cases where there has been ho revivor or continuance under § 757.

The judgments,, interlocutory and final, and the order continuing the action, should be affirmed, with costs.

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


author: Per Curiam.

text:
    John Fitzpatrick, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Railroads—Elevated—Damages.
    In an action against an elevated railroad past damages may be recovered, by the owner of premises, although they have been in the possession of' tenants.
    2. Same.
    In such action damages down to the time of the trial may he recovered.
    Appeal from a judgment entered upon the report of a referee.

      Henry Q. Atwater, for resp’t; Jnlien T. Davies and Joseph H Lord, for app’lts.
   Per Curiam.

No question of importance is presented in. this case. The findings of facts are well supported by the evidence, and the sums awarded for past damages and fee value are-fair and reasonable.

The appellants’ point that it was error to award past damages,, because the property had been in the possession of tenants holding under the plaintiff for several years prior to the commencement of the action, has been decided against them so frequently that further reference to it is superfluous. As to the award of damages down to the time of the trial, see the opinion handed down in the case of Kane against these same defendants. 42 St. Rep., 415.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., Barrett and Andrews, JJ., concur.


text:
    Robert B. Nooney, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Railroads—Elevated—Damages.
    In an action against an elevated railroad, past damages may be recovered by the owner of premises, although they have been in the possession! of tenants.
    2. Same.
    In such action, damages down to the time of the trial may be recovered.
    Appeal from a judgment entered upon the report of a referee.

      Henry Gr. Atwater, for resp’t; Julien T. Davies and Joseph E... Lord, for app’lts.
   Per Curiam.

No question of importance is presented in this-case. The findings of fact are well supported by evidence,- and the sums awarded for past damages and fee value are fair and reasonable.

The appellants’ point that it was error to award past damages, because the property had been in the possession of tenants holding under the plaintiff for several years prior to the commencement of the action, has been decided against them so frequently that further reference to it is superfluous.

As to the award of damages down to the time of the trial, see. the opinion handed down in the case of Kane against these same ■defendants, 42 St Eep., 415.

The judgment should he affirmed, with costs.

YIn Brunt, P. J., Barrett and Andrews, JJ., concur.


author: Van Brunt, P. J.

text:
    The New York, Lake Erie & Western R. R. Co., App’lt, v. The National Steamship Co., Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    ■Carriers—When liable to connecting lines for freight charges.
    Cotton was shipped from Texas to New York over several connecting railroads, which, with defendant, entered into a common bill of lading, which provided that the carriers should not be liable for loss by fire upon any property while in deposit or places of trans-shipment or at depots or landings at all points of delivery. While the cotton was on defendant’s wharf in New York it was burned. Meld, that the plaintiff, one of the connecting lines, could not recover its charges and those advanced by it from defendant; that' if the cotton had been loaded on defendant’s steamship when the fire occurred defendant might have been under an implied liability to pay the charges.
    Appeal from judgment entered upon verdict directed by the ■court. For opinion on former appeal see 37 St. Eep., 731.

      O. B. Adams, for app’lt; J. Ghelwood, for resp’t.
   Van Brunt, P. J.

This is the second time that this case has been before this general term. Upon the previous appeal it was held that the plaintiff had no right to recover, and there does not seem to have been any change made in the evidence which requires a new discussion of the points which were disposed of upon the former appeal.

We think, therefore, that the judgment appealed from should be affirmed upon the opinion given by Mr. Justice Daniels upon the former appeal, and which is adopted as the opinion of this •court.

The judgment should be affirmed, with costs.

Andrews, J., concurs; Barrett, J., concurs in the result.


text:
    Isaac Fromme, App’lt, v. Abraham Lissner, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Discovery—Verification of petition.
    The petition on an application for discovery and inspection must be verified by the party himself unless some good reason is stated to excuse a personal verification. The mere fact that the party does not reside in the county where his attorney resides is not sufficient reason. The petition should show that there .are merits on the part of the defendant, and that he has some defense.
    Appeal from order of special term granting inspection of papers.

      A. L. Fromme, for app’lt; Horwitz & Hershfteld, for resp’t.
   Van Brunt, P. J.

The complaint alleges in substance that by an instrument in writing the assignor of the plaintiff was employed to procure a purchaser for certain property, and that therein a. certain compensation was promised; that a purchaser was procured and the compensation earned; and that prior to the commencement of the action an assignment of the claim was made, and judgment is prayed for. "

The defendant, before answer, made a petition asking for an inspection of the agreement The petition was sworn to by the-attorney and not by the defendant, and simply alleged that the-agreement was not set forth in the complaint; that it related to-the merits of the action and was indispensable to the deponent for the preparation of the answer; that the agreement is in the possession of the plaintiff or his attorney, and the attorney has been requested to allow the deponent to inspéct the same, which was refused; that deponent had no copy of said instrument in his-possession, and is informed by the defendant that he has no copy thereof, and does not know the terms and conditions thereof, or whether the plaintiff has performed the same as alleged in the complaint.

In the jurat of the petition it is stated that the reason the-attorney makes the affidavit is that defendant does not reside in the city and county of New York, where deponent resides, but. that defendant informed deponent that he had no copy of the-instrument and does not know the terms and- conditions thereof.

No affidavit of merits accompanies the papers, and upon this-petition an order was granted for the inspection, and from such order this appeal is taken.

In the first place, there is ho sufficient reason why the affidavit was not made by the defendant The mere fact that the defendant does not reside in the city and county where the attorney resides is no ground whatever for accepting an affidavit from the attorney. The statement might be entirely true and the defendant have been in the company of the attorney when he made the-affidavit In applications of this character the person to make, the affidavit is* the pai-ty to the action, and there must be some-good ground presented to the court in order that the absence of his oath can be excused. The mere fact that he does not reside in the county where the attorney resides is not sufficient. It would be very convenient for a party, simply because he resides in another county, to get rid of the chances of being indicted for-perjury by having his attorney make his affidavit for him upon declarations not made under oath. Something must be shown to demonstrate the impossibility of getting the affidavit of the-client, and something more than the mere statements of the client, to justify any of these remedies.

And furthermore, the papers do not show that there are any merits upon the part of the defendant, nor that he has any defense. 'The petition was entirely insufficient and the order should, have been denied.,

The order should be reversed, with ten dollars costs and disbursements, and the motion denied.

Patterson and O’Brien, JJ., concur.


text:
    Cornelius W. H. Elting, Resp’t, v. Charles W. Dayton, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Contract—Evidence.
    Under a complaint in an action upon a building contract alleging full performance, evidence tending to excuse delays by plaintiff in completing after the time fixed by the contract, for which it provided a penalty, or to establish a waiver by defendant, is incompetent.
    3. Same—Appeal.
    Where objection to such evidence was duly taken, and no amendment asked for, the appellate court cannot consider the pleadings amended to conform to the proof.
    Appeal from judgment entered upon report of referee.

      W. II. Townley, for app’lt; J. J. lÁnson, for resp’t
   Van Brunt, P. J.

This action was brought to recover a balance claimed to be due upon a contract with the defendant for altering- and repairing five buildings and for certain extra work not included in the contract

The complaint alleged that on the 25th of February, 1885, the plaintiff entered into a contract with the defendant by which the plaintiff agreed to alter and repair five buildings for the defendant, and furnish materials for the work, and the defendant promised and agreed with the plaintiff to pay him the sum therein mentioned therefor. The plaintiff also alleged by his ■complaint that he had fully kept and performed said contract, and had performed all the conditions thereof on his part Then follows an allegation in regard to extra work, to which it is not necessary, in view of the conclusion at which we have arrived, to ■call particular attention. -

The defendant admitted the entering into the contract, which he alleged to be in writing and annexed as a part of his answer, .and denied that the defendant had kept and performed the contract or,its conditions upon his part, and further alleged that said ■contract provided that the plaintiff would on or before the 20th ■of April, 1886, complete his said contract, and that in default thereof he should pay as damages to the defendant for each house remaining unfinished after the above day fifty dollars per week; and that the plaintiff failed to perform and carry out the provisions of his contract in that, among other things, a large part •of the work contracted to be done by him was not done in a good workmanlike and substantial manner to the satisfaction of the architect referred to in said agreement, and also that the alterations in said house were not completed and the same not fit for ■occupancy in every respect on the 20th of April, 1885, as required by the contract, but on the contrary were never completed ■and made fit for occupancy according to the terms of said agreement by the plaintiff.

Upon the trial there was no dispute but that the contract annexed to the answer was the contract referred to in the' complaint. -Neither was there any dispute that the contract was not completed by the 20th of April, nor until a . considerable time thereafter. But it is urged that the defendant had waived the requirement of the contract that it should be completed on the 20th of April, 1886.

That by the terms of the original agreement time was of its-essence is apparent from the fact that a penalty was attached to the failure on the part of the plaintiff to complete the contract within the time therein mentioned, and therefore that unless excused for a failure to perform in time, the defendant would be entitled to-recover the damages arising from such failure to complete!

Upon the trial as soon as the plaintiff commenced to offer evidence tending to excuse his failure to perform, objection was made-upon the part of the defendant .that such evidence was incompetent, that the plaintiff had sued upon the contract alleging that he had strictly kept and performed all the conditions thereof, and that no excuse for non-performance, and no modification or waiver,, oral or written, is set up.

The referee overruled the objection, to which ruling the counsel for the defendant excepted. This, we think, was error. The-allegation in the complaint was that he had entered into this contract on the 25th of February, 1885, and that he had fully performed the same. It further appears that one of the conditions of that contract was that it should be completed by the 20th of April, and that that was an important and essential condition. Therefore the allegation of the complaint was to the effect that the contract had been completed on the twentieth of April, and this was the issue which was presented by the complaint, and which the defendant was called upon to meet. There was no-intimation of any other or subsequent contract, or of any waiver of any rights which had accrued by the execution of the original contract. Hence the defendant was not called upon to meet proof of a waiver under a complaint of this character. If the plaintiff' had intended to claim that the original contract had been modified, or any of its conditions waived, it was necessary that he-should have pleaded the same in' order, by his pleading, to give the defendant notice of such claim. An, allegation in a complaint that the terms of a contract have been fully complied with does not authorize proof that it has not been complied with because of certain facts in respect to which no mention is made in, the pleading.

As has already been stated, the only issue tendered by a pleading containing this allegation is as to completion of the contract, not to excuses for non-performance.

It might have been true that upon a proper application made the plaintiff would have been allowed to amend his complaint, and if no objection had been taken to the admission of this testimony that this court would have amended the complaint in order-to support the judgment. But in view of the fact that objection was taken to this testimony at the time of the trial upon the precise ground which is urged here, and exception taken to the overruling of the objection, this court cannot consider the pleadings amended to conform to the proof.

It does not seem to be at all necessary to consider the otherquestions raised upon this appeal. The question which has been, discussed as the pleadings now stand goes to the root of the whole-matter, and upon the record it would appear that the defendant-was entitled to offset against the claim presented by the plaintiff' at least the damages for non-performance provided for in the’ contract

The judgment should be reversed and a new trial ordered before another referee to be appointed by this court, with costs to-appellant to abide the event

O’Brien and Ingraham, JJ., concur.


author: Andrews, J.

text:
    Sarah E. Mortimer, Resp’t, v. Mary Ann Chambers et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Statutes—Amendment.
    When an act is passed by the legislature declaring that a previous act, or some part of it, shall be amended “so as to read as follows,” the original act is not to be deemed repealed, and re-enacted as modified, but ther unchanged portion is to be considered as having continued the law from the time of its original enactment, and the new or changed portion to-have become the law only at and subsequent to the passage of the amendment.
    2. Evidence—Proof of signature.
    Evidence sufficient to prove signature of a decedent to instrument used as a basis for comparison of signatures,
    3‘ Same—Delivery—Code Civ. Pro., § 829.
    Testimony by plaintiff that an instrument in suit executed by a decedent was in her possession prior to and at the time of the decedent’s death, presumptively proves delivery by the decedent during her lifetime, and is-not incompetent under § 829 of the Code.
    4. Bills and notes—Consideration.
    A non-negotiable note imports a consideration therefor as against a legatee or devisee as well as against the maker or his executors.
    5. Limitation—Action to charge real estate.
    An action brought under §§ 1843-1850 of the Code to charge debts of a testatrix upon devised real estate may be brought at any time within ten years after the cause of action accrues.
    6. Same—Counterclaim.
    Such an action must be brought jointly against all the devisees, and only a joint judgment can be recovered, and hence a counterclaim in favor of one of the defendants only cannot be allowed.
    Appeal from judgment of' special term in favor of the plaintiff.
    . C. Fine, for app’lts; W. J. Underwood, for resp’t.
   Andrews, J.

This action is brought, under §§ 1843 to 1850’ of the Code of Civil Procedure, against the defendants, who aredevisees under the will of one Louisa F. Fardon, for the purpose of charging upon real estate devised to them certain alleged debts-of the testatrix.

The complaint alleges the making by said testatrix of three certain promissory notes ; that the plaintiff is the owner and holder of said notes; that on or about December 25th said testatrix died, leaving a will, of which a copy is attached to the complaint The complaint also alleges, in substance, that the .testatrix by said will ¡gave the defendant Mary Ann Chambers a life estate in all of her property, real and personal, with remainder to her husband, the defendant William F. Chambers, subject to the payment of an annuity of $150 to the defendant William F. Faraón, a son of the testatrix, and a lunatic. It is also alleged in the complaint that the assets of the testatrix were not sufficient to pay the plaintiff’s debt in addition to the expenses'of administration and debts of. a prior class ; also that the real property of the testatrix which ■descended to her heirs was not sufficient to pay the plaintiff’s debt, :and that the plaintiff could not collect her debt by an action against the heirs; that the value of the real estate devised' to the ■defendants was $16,500, and that the same had not been aliened by them at the time when the action was brought No personal judgment against the defendants is asked, but the relief prayed for is that such real estate shall be sold, and the plaintiff’s debt, with costs and disbursements, shall be paid out of the proceeds of ■such sale.

The defendants interposed answers which set up general denials, fraud in obtaining the notes, and the six years statute of limitations. The answer of the defendant Mary Ann Chambers .also contained a counterclaim for $1,040 for board alleged to have been furnished to the plaintiff, to which counterclaim "the plaintiff served a reply containing a general denial. Judgment was rendered by the special term, in which it was found that the amount due to the plaintiff, together with costs, rwas $2,001.25. 'The judgment also appointed a referee to sell the property and ■directed that the plaintiff's debt and costs should be paid out ■of the proceeds and apportioned among the several defendants according to their interests, to be computed and ascertained upon the principles of the Northampton Tables of Life Annuities; and from such judgment this appeal is taken.

Quite a number of objections to this judgment, and the proceedings upon the trial at special term, are raised by the counsel for the appellants. None of them seem to us of sufficient weight to justify a reversal of the judgment.

It is objected that there was no competent or sufficient proof that the three notes upon which the action was brought, or either ■of them, were, or was ever executed, signed or delivered by the testatrix. Upon the trial the plaintiff sought to prove the signature of the testatrix upon the notes by comparing such signatures with the signature which appeared upon a certain bond, which was put in evidence.

Counsel for the appellants claims that as the law stood at the time of the trial such comparison could not be allowed, because ■chap. 36, § 2 of the Laws of 1880, which first authorized such comparisons to be made, was, in effect, repealed by chap. 555 of the Laws of 1888, and the last named statute contained the following clause:

“ But nothing within contained shall affect or apply to any ■action or proceeding heretofore commenced or now pending.”

We think the learned counsel for the appellant, is mistaKen in his view as to the law applicable to this matter.

Chapter 555 of the Laws of 1*888 is entitled: “An act to amend, chap. 36 of the Laws of 1880, entitled an act to amend the laws-of evidence and practice on civil and criminal trials; ” and the first section thereof is as follows: “ Section 2 of chap. 36 of the-

Laws of 1880, entitled: , An act to amend the law of evidence, and practice on civil and criminal trials, is amended so as to read, as follows:’’

The second section contains said § 2, as originally enacted, with some slight amendments.

It has been settled for many years in this state that when the-legislature passes an act declaring that a previous act, or some part-of the same, shall be amended “so as to read as follows,” the earlier act is not deemed to have been repealed by the latter one. This precise point was decided by the court of appeals in the case of Ely v. Holton, 15 N. Y., 595; a part of the syllabus, which states-with accuracy the decision of the court, is as follows: “The effect-of an amendment of a statute made by enacting that the statute. ‘ is amended so as to read as follows,’ and then incorporating the-changes or additions with so much of the former statute as is retained, is not that the portions of the amended statute which are merely copied without change are to be considered as having been repealed, and again re-enacted, nor that the new provisions or the changed portions should be deemed to have been the law at any time prior to the passage of the amended act. The part which remains unchanged is to be considered as having continued the law from the time of its original enactment, and the new or changed-portion to have become the law only at and subsequent to the. passage of the amendment” In the case at bar, therefore, the provision of the act of 1880, which authorized the comparison of signatures, and which was re-enacted by the statute of 1888, was-in force at the time of the trial; and the clause in the act of 1888. which declared that nothing therein contained should affect or apply to any action theretofore commenced, or then pending, was-a mere saving clause, which prevented the amendments made by the act of 1888 from affecting or applying to any action previously brought The evidence objected to was therefore properly admitted,, and the objection is not well taken.

It is further objected that such evidence did not establish a sufficient standard with which to compare the signatures of the notes in question. Upon the triala witness, called bv the plaintiff’s-counsel, produced a bond and mortgage. The bond only appears to-have been put in evidence. The witness who produced these papers testified that he was an attorney in this state, and as the attorney of Mrs. S. E. Morgan he held a bond and mortgage given, by Louise F. Fardon to the Home Insurance Company; which were the ones produced by him in court; that he had the papers first about two years ago, and that they were still outstanding liens on the real property described in the complaint in this actiont and that the witness had gone to the insurance company with an assignment of the same. Mr. Coman, also called for the plaintiff, testified that he was an attorney, and was the subscribing witness to the bond, and that the name of the subscribing witness there was his own name and in his handwriting; that he saw that paper ■executed by Mrs. Louisa F. Fardon. He also testified as follows: “ I saw her sign it I know her. I searched the title and had to •do with the getting of this bond and mortgage from Mrs. Fardon to the Home Ins. Co. I had charge of it. * * * I connect Mrs. Fardon with some Rockland transaction in addition to this, but I cannot be more specific. * * *. I have no doubt that Louisa F. Fardon, who is the mortgagor in this instance, signed that in my presence.” It also appeared by the testimony that the ■ plaintiff was the sister, and that the defendant Mary Ann Chambers was the daughter of the testatrix; also that the plaintiff had :at one time lived with the testatrix and at another time with said •daughter; and that the testatrix with her husband had at one time lived upon the premises described in the complaint. We think that the evidence was sufficient to prove that Louisa F. Fardon, the testatrix, was the same Louisa F. Fardon who signed the bond, ■and that the signature to the bond was the signature of the testatrix ; and this established a sufficient basis for a comparison of the signature upon the bond with the signature upon the notes. Mr. Ames, an expert in handwriting, was called as a witness for' the plaintiff and testified in substance that the signature Lo.uisa .F. Fardon upon the notes was written by the same person who wrote the signature Louisa F. Fardon upon the bond.

Ho contradictory evidence was offered by defendants’ counsel, although the witness, Mary Ann Chambers, was called as a witness, and as she appears by her evidence to have been' an intelligent person, it may be fairly presumed that she was familiar with her own mother's signature; and it is therefore somewhat significant that no attempt was made to prove by her that the signatures upon the notes were not the genuine signatures of her mother. Moreover, another significant fact is, that when the plaintiff, the :sister of the testatrix, was on the stand she was asked this question : “ In whose handwriting is the signature, and in whose handwriting is the body of each of these three promissory notes which have been shown you ?” This question was objected to by the defendants’ counsel, and the objection was sustained. We think ■that the making of the notes was sustained by the evidence.

It is also insisted by the counsel for the defendants that there was no evidence that the notes in question or any of them were, ■or w£s, ever delivered to the plaintiff, or that the testatrix ever negotiated or knowingly parted with the said notes.

The plaintiff, against the objection of defendants’ counsel, testified upon the trial that the notes in suit had been in her possession prior to the month of December, 1880, when Mrs. Fardon •died, and were in her possession at the time of such death.

It is claimed that this was testimony in relation to a personal transaction with the deceased, and that, under § 829 of the Code, it was not competent. We do not think this objection is well' taken. In Simmons v. Havens, 101 N. Y., 433, it was said: Exception was also taken to the plaintiff being allowed to testify' that she had the deed iu her possession and that the signature was in the handwriting of her mother; she was not asked, and did not state from whom she received the deed, and her testimony as to the handwriting or the contents of the deed did not involve a personal transaction between her and her mother. The plaintiff might have received the deed from some third person.” Counsel for the defendants, in his brief, points out some particulars wherein the case of Simmons v. Havens differs from the case at bar. But the portion of the opinion above quoted is clear and explicit, and whatever differences between the cases may exist, we think that the decision in that case applies to and controls the case at bar. See also Taber v. Willets, 44 Hun, 346; 8 St. Rep., 825; Greer v. Greer, 20 Civil Pro., 75; 34 St. Rep., 448; Wing v. Bliss, 28 id., 198.

The evidence was competent and proved the delivery of the notes by the testatrix to the plaintiff before the death of the former.

It is also objected that there was no proof of any consideration for said notes, or any of them, or that they represented a debt of the testatrix. Counsel concedes that the production of the notes might have made a prima facie case against the maker, but claims that the production did not have such effect as against a legatee or devisee, and he cites in support of this proposition § 1843 of the Code; Gere v. Clarke, 6 Hill, 330-332, and Mersereau v. Ryerss, 3 N. Y., 261, 262, 263.

We have examined the statute and the authorities cited, but find nothing in them which sustains the view contended for. And in Carnright v. Gray, 57 Hun, 518; 33 St. Rep., 98, it was held that a non-negotiable note imported a consideration as against the executors of the deceased maker as well as the maker himself. If the question were a new one we should be inclined to adopt the views expressed by Learned, J., in the very able and exhaustive dissenting opinion which he wrote in that case, and held that a non-negotiable note does not import a consideration against anybody. But that case itself holds to the contrary, and there is other authority to the same effect. If such a note imports a consideration as against the maker thereof and his executors, we see no reason why it should not also import a consideration against the devisee, who, for the purposes of the action, stands in the place of the deceased maker of the note.

It is also objected that the Statute of Limitations had fully run as to all the notes in suit, at least as to the defendant William P. Pardon. The answer sets up the six years statute of limitations. The summons was served on the defendant Mary Ann Chambers on October 27th, 1886. The defendant William H. Chambers was not served, but appeared in the action on ¡November 13th, 1886. William P. 'Pardon was not originally made a party, but on August 8th, 1889, a supplemental summons and complaint were served, which brought him in as a party. The notes sued on are dated respectively May 1st, 1879, May 1st, 1880, and July 15th, 1880. The defendant Mary Ann Chambers was executrix of the testatrix’ will, and received her letters testamentary in February, 1881.

Under § 1844 of the Code, this action could not be maintained except three years had elapsed since such letters bad been granted,, and, under the provisions of § 406 of the Code, such three ye arsis not a part of the time limited for the commencement of the-action. The defendant’s counsel concedes, and it would seem to be clearly the law, that the statute did not run, under the circumstances of the case, until after the expiration of nine years from the date of the notes, and as the action was commenced against Mary A. and William F. Chambers in 1886, it is clear that, so far as they are concerned, the statute of limitations had not run. It appears, however, that the defendant Fardon was not served; until August 8, 1889, and if the nine years limitation applies to this case, the debt, had-outlawed as to him at the time said Fardon. was served. To meet this difficulty the counsel .for the plaintiff claims that the nine years limitation does not apply, but that the-case falls within the provisions of § 388 of the Code, which provides that any action, the limitation of which is not otherwise-specially prescribed in the Code, must be commenced within' tern years after the cause of action accrues.

The question presented is not -free from doubt, but the claim, made by the plaintiff’s counsel in this regard is sustained by authority. Precisely the same question was presented in Wood v-Wood, 26 Barb., 356, which was an action like the case at bar,, and in which the same relief was sought. Balcom, J., who delivered the opinion of the court, said: “ The basis of the action is a debt which Jacob Wood, deceased, owed the plaintiff, but that is not the gist of it. It is not an action for the recovery of money only, although the ultimate object of it is to obtain money. Nor is it one for the recovery of specific real property, for the plaintiffs cannot have the land described in the complaint as the-fruits of the litigation ; but it is an equitable action to reach certain real estate which Jacob Wood, deceased, devised to the defendants, and to authorize its sale for the purpose of satisfying a. debt that the deceased- owed the plaintiff. It is strictly an action. in rem, for no facts are set out in the complaint, and none were-established on the trial, to support a claim against the defendants-personally.

“ It was not a case for a jury, but the issues in it were triable by the court (citing authorities). In other words it is an action for-equitable relief, of which the supreme court bad not jurisdiction; prior to the enactment of the Code ” (citing authorities). “ It could therefore be commenced at any time within ten years after the cause of action accrued, either by the Revised Statutes or under the Code.” What is said by the learned judge about the nature of the action in that case applies to the case at bar. The-complaint does not ask for a personal judgment, against the defendants, and the only relief prayed for is that the property described in the complaint shall be sold, and the debt of the-plaintiff paid out of the proceeds. The decision in that case was-based upon the provisions of' the former Code. But there is no difference between the provisions of that Code and the Code of Civil Procedure which would call for a different decision in the-case at bar. "While it must be admitted that the question is not free from doubt, we think that as it has been squarely decided, after argument, by another general term of this court, we ought to follow such decision. The objection, therefore, that the action was not brought in time, as to the defendant "Pardon, must be overruled.

It is also objected that the want of assets was not properly proved. We do not think this objection was well taken, for it was clearly established by the evidence that the personal property amounted to very little, and that what little there was was expended in the payment of physicians’ bills, funeral expenses and other debts.

It is also claimed that the court erred in excluding evidence as to the counterclaim set up in the answer of the defendant Mrs. Chambers. We think, however, that the evidence was properly excluded. Under the provisions of § 1846 of the Code an action of this description must be brought jointly against all the devisees. There can be but one judgment in the action, and the provisions of § 1847, providing for the apportionment of damages and costs, does not render, the action one against the devisees severally, so as to enable a single defendant to interpose a counterclaim.

There can be no separate judgment between the plaintiff and the defendant Mary A. Chambers, and no recovery at all can be had against her individually. When the liability of the defendants is joint and not joint and several, and a joint judgment only can be recovered, a counterclaim in favor of one of the defendants only cannot be allowed. St. Michael's Church v. Behrens, 1 St. Rep., 627; 10 Civ. Pro., 181; Vanderbilt v. Baldwin, 15 Abb. N. C., 312. The plaintiff did not waive the objection that the counterclaim was not allowable by replying to it Smith v. Hall, 67 N.Y., 48; Carpenter v. Manhattan L. I. Co., 93 id., 552; Kiersted v. West, 13 W. Dig., 106. Moreover, as the action is an equitable one, to charge a debt upon the real estate by virtue of the provisions of the statute, and the counterclaim was on an alleged contract between the plaintiff and the defendant Mrs. Chambers, it does not seem to be one of the cases provided for in § 501 of the Code.

The judgment should be affirmed, with costs.

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


author: Van Brunt, P. J. O’Brien, J.

text:
    In the Matter of Antonio J. Moderno, Deceased.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Executors and administrators—Payment of claims—Creditors.
    An assignee of a claim against a decedent’s estate is a creditor within the meaning of.§ 2717 of the Code of Civil Procedure.
    Appeal from order of the surrogate made upon petition for payment of several claims made against the estate above named.

      A. Knauth, for app’lt; no one for the resp’t.
   Van Brunt, P. J.

This application was made by the widow of the decedent, claiming to be a creditor of his estate, for a decree directing the temporary administrator to pay certain claims set forth in her petition. A portion of the claims refer to expenditures made by petitioner for services rendered by third parties to decedent in his'lifetime, such as hotel charges, nursing, etc., which were paid by her and of which she became the assignee. Another portion relates to amounts expended by petitioner for receiving vault and funeral expenses, and another to expenditures in reference to proving satisfactorily the death of the decedent and rendering assistance in and about the probate of the will.

The surrogate refused to direct the payment of the claims of which, the petitioner was assignee, upon the ground that the assignee of a claim against a decedent has no standing in court under the Code, § 2717, to compel payment; and he also refused to allow the payment of the expenses in reference to the probate of the will, upon the ground that the necessity of these expenditures was not stated nor the particulars of the assistance rendered by the petitioner in and about proving the decedent’s death and the probate of the will.

From that portion of the surrogate’s decree disallowing the assigned claims this appeal is taken.

We think the learned surrogate erred in the construction of § 2717 of the Code that an assignee of a claim against a decedent has no standing in court by reason of said section. The provision of the section is that a petition may be presented to the surrogate’s court by a creditor for the payment of a debt against the estate at any time after six months have expired since letters were granted, praying for a decree directing the executor or administrator to pay the petitioner his claim.

The assignee of a claim is certainly a creditor of the estate.

The language of the section does not limit it to original creditors, but to any person who at the time of filing his petition is a creditor of the estate; embracing therefore those who have acquired their claims by assignment as well as those who were original creditors, there being no distinction between the position of an assignee of a claim and the original owner of a claim if it had not been assigned.

We think, therefore, that so far as the order denied the payment of the claims of which the petitioner was an assignee it should be reversed, with ten dollars costs and disbursements.

Lawrence, J., concurs.

O’Brien, J.

I concur in the conclusion reached that as assignee

she had the same status as the original creditor under § 2717 of the Code. Though there was no formal assignment the learned surrogate rightfully says, “the voluntary payment (by petitioner) of decedent’s debts subrogated her to the rights or his creditors and created an assignment to her of the respective amounts paid.


text:
    In the Matter of Opening One Hundred and Eighty-First Street between Tenth and Eleventh Avenues. In re Morton & Bliss.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    1. Municipal, corporations—Assessments—Absence op commissioner.
    Where the parties to a street opening proceeding allow it to go on in the absence of one of the commissioners without .objection they are thereafter precluded by their action from raising the objection that they were entitled to the presence of all the commissioners during each and every part of the proceeding.
    2. Same—Consolidation act, § 920.
    The commissioners have a right under § 920 of the consolidation act, to levy the entire assessment; the owners of land affected having a right to p^y the same by instalments and being charged with interest annually upon the amount remaining unpaid.
    Appeal from order confirming report of commissioners.

      Jas. A. Deering, for app’lt; John P. Dunn and Deming & Logan, for resp’t.
   Van Brunt, P. J.

This is an appeal from an order confirming report of commissioners in this proceeding, because of the absence of one of the. commissioners at the time of the summing up by» some of the counsel after all the testimony had been introduced, and subsequently taking part in the discussion and determination of the commissioners; and also upon the ground that the said commissioners had no jurisdiction to levy an assessment for the entire expense of opening the street against the property of the appellants, nor had the court power to confirm the same.

As to the first ground, it would appear from the record that the parties had been accustomed to go on when one of the commissioners was absent, and that no objection whatever was taken or suggestion made that the presence of all the commissioners was required ; and it was not until after the award had been made and the motion made to confirm that the objection was taken that all were not present at the summing up.

We think this objection was taken too late. After having gone on with the proceedings and,allowed the commissioners to believe that there was no objection to proceeding in the absence of one of their number, and having submitted the case under these circumstances, it is now too late to raise the objection that they were entitled to the presence of all the commissioners during each and every part of the proceedings. Whatever rights they may have had in that regard were waived by the method of their procedure.

In respect to the right of the commissioners to levy an assessment for the entire expense of opening One Hundred and Eighty-first street against the property of the appellants, attention is called to § 920 of the consolidation act, which provides as follows:

“ The assessment for benefit in all proceedings pending on the sixteenth day of June, eighteen hundred and eighty-one, or thereafter commenced or to be commenced, to acquire title to lands in the Twelfth ward, north of One Hundred and Fifty-fifth street and the Twenty-third and Twenty-fourth wards, for a street, avenue or public place, or for the opening or widening thereof, and all assessments levied for grading, regulating, paving and sewers in said territory, and all assessments heretofore levied therein for any of said purposes, shall be payable in yearly instalments of five per centum of the whole amount of each of such assessments, together with seven per centum interest on the whole amount unpaid in any year, which yearly instalment and interest shall be levied and collected with the annual taxes upon the property so assessed, and payment thereof enforced in the same manner as such taxes and with the same penalties. Any person whose property is assessed for any of the purposes specified in this section may pay the whole of such assessments and all the interest due thereon at any time. The amounts assessed for any of the aforesaid purposes, and all arrears so assessed shall, as between vendor and vendee, or upon a judicial sale thereof, be deemed the amount due on such assessment upon each parcel, unless otherwise expressed in writing- between the parties. The said comptroller is directed, upon the application of any owner of any part of a parcel embraced in a single assessment, to apportion the amount to be assessed against such part and the remainder of such parcel, and payment of the sums so apportioned of the yearly portion thereof provided for in this section shall discharge such part from the lien of said assessment”

And it is claimed that no assessment can be made, except that each yearly instalment of five per centum of the whole amount of the assessment shall be levied and collected wdth the annual taxes upon the property so assessed, and payment thereof enforced in the same manner as such taxes and with the same penalties.

It seems to us clear that this interpretation cannot prevail, because the act provides that all assessments levied shall be payable in yearly instalments of five per centum of the whole amount of each of such assessments together with seven per cent, interest on the ivhole amount unpaid in any one -year. It clearly provides that interest upon the whole amount remaining unpaid shall be charged in each year, and collected with the yearly instalment; because the provision is that each yearly instalment and interest shall be levied and collected with the annual taxes upon the property so assessed. The commissioners, therefore, had a right to assess the whole expense; the parties under the law having a right to pay by instalments and being charged with interest annually upon the amount remaining unpaid. Any other construction of the act would require annually the levying of new assessments, thus complicating the proceedings to an infinite degree. The object of the act was to give the owner, upon the payment of interest annually an extension of time for the payment of the principal, and nothing more.

There is no intention manifested in the statute that the lien of the assessment as it had heretofore existed should be in any way changed. The remedies for its enforcement were simply affected.

We think, therefore, that the commissioners .ad a right to levy •the whole assessment, the owners of the land affected having the privilege of paying it by instalments.

The order appealed from should be affirmed, with ten dollars ■costs and disbursements.

Lawrence, J., concurs.


text:
    William B. Perry et al., Resp’ts, v. Albert D. Boomhauer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Tenue—Change of.
    Where it is plainly apparent that the convenience of witnesses will be promoted by a change of the place of trial, the fact that the contract was made in the county m which the trial is claimed should not lead to a denial of a motion to change the venue.
    Appeal from order denying motion to change place of trial.

      L. P. Shedden, for app’lt; J. A. Shoudy, for resp’ts.
   Van Brunt, P. J.

It would seem that this motion should Lave been granted.

. The fact that it may be necessary for the defendant to examine the most if not all the witnesses named by him seems to be conceded by the learned judge below, as he has provided as a condition of the denial of the motion that the plaintiffs should ■stipulate to take the evidence of defendant’s witnesses in the county in which they live.

It is undoubtedly true that the place of the contract should have an important bearing in the determination of the question of ■a change of venue; but it should not necessarily control. Where it is plainly apparent that the convenience of witnesses will be promoted by a change of the place of trial the fact that the contract was made in the county in which a trial was claimed by the plaintiff should not lead to a denial of a motion to change such place of trial.

We think, therefore, in the case at bar that the motion should "have been granted.

The order appealed from should be reversed, with ten dollars ■costs and disbursements, and the motion granted.

Lawrence, J., concurs.


author: O’Brien, J.

text:
    Fannie Grossman, Resp’t, v. Cortland H. Dodd, Treas’r, App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    ¡Carriers—Limitation of liability.
    A contract limiting the liability of a common carrier to a specified sum does not arise as matter of law from the acceptance from an express company of a receipt for baggage containing a clause to that effect, but the carrier to relieve itself from full liability is hound to establish a contract. The question whether a party accepted the receipt with notice of its contents or with notice that it contained the terms of a special contract so as to require him to acquaint himself with its contents, is one for the iurv to ■determine.

      Appeal from a judgment in favor of plaintiff against defendant entered on report of referee.

      Lockwood & Hall, for app’lt; Townsend, Dyett & Mnstein, for resp’t.
   O’Brien, J.

This action was brought to recover the value of wearing apparel in the plaintiff’s trunk, which was delivered to the defendant to be carried from Jersey City to East Eightieth street, New York, and in transit fell into the Hudson river, and was thereby saturated with salt water, discolored and damaged.

The defendant denied negligence and value of property,-and set up a special agreement that in case of loss or damage to said trunk or its contents by reason of negligence, or otherwise, it should not be liable for an amount exceeding $100, unless specially agreed for in writing and noted in said contract, and the extra risk paid therefor. The question most seriously litigated, and the substantial one presented upon this appeal, relates to the defense thus interposed as to whether or not the defendant had limited its liability by the special agreement to $100.

Upon the facts the referee decided against the defendant, and awarded judgment to the plaintiff for $1,707.50, damages and costs.

In support of the conclusions reached by the referee the testimony shows that the plaintiff arrived from Europe by the Red Star Line, landing at its pier in Jersey City. She there delivered her trunk to the agent of the defendant, who immediately signed and delivered to her a paper which appears in full in the referee’s report, and which in substance stated that the express company received the articles subject to charges based upon a gross valuation not exceeding $100 upon any trunk, and further recited as follows: “ It is mutually agreed, and is part of the consideration of this contract, that Dodd & Childs Express shall not be liable for merchandise, * * * for an amount exceeding $100, * * * unless specially agreed for in writing, and noted hereon, and the extra risk paid therefor.” The delivery of the receipt was before the trunk had been removed. Indeed it was part of the same transaction with the delivery of the baggage. The delivery took place about five o’clock in the afternoon of June 12th, in plain daylight on an open pier, the plaintiff being able to read and understand English. When received, plaintiff delivered the paper to her brother, and neither she nor her brother made any objection to the terms specified in the paper.

The question presented therefore is, was the plaintiff bound by the terms and conditions of this paper, whether read by her or not.

Upon the part of the defendant it was claimed that the acceptance of this paper constituted a contract between the parties and for the loss which subsequently occurred it was only "liable to the extent of $100 in accordance with the terms, thereof.

In view of the numerous decisions, we may regard the law as settled, that a common carrier has the right to limit his common law liability by express contract, shielding him from damage occasioned even by his own negligence and that of his servants. But, as stated in Madan v. Sherard, 73 N. Y., 329, where a traveller on delivery of baggage to a local express company receives a paper which from the circumstances of the transaction he has a right to regard simply as a receipt or voucher to enable him to-follow and identify his property, and no notice is given to him that it embodies the terms of a special contract or is intended to subserve any other purpose than as a voucher, his omission to read the paper is not per se negligence, and he is not as matter of law bound by its terms. The question whether in a particular case the party receiving such a receipt accepted it with notice of its contents or with notice that it contained the terms of a special contract, so as to require him to acquaint himself with its contents, is one of evidence to be determined by the jury. It will thus be seen that no such contract arises as a matter of law from the acceptance of the receipt, bu^the defendant, in order to relieve; itself from full liability, is bound to establish a contract. Sunderland v. Westcott, 40 How., 469; Blossom v. Dodd, 43 N. Y., 264; Rawson v. Penn. R. R. Co., 2 Abb., N. S., 220; Limburger v. Westcott, 49 Barb., 283.

In Woodruff v. Sherrard, 9 Hun, 323, which is a decision of this; general term, wherein the cases were collated and discussed, Daniels, J., in writing the opinion, says: “ To make a binding contract in such a case as this. requires at least the implied assent of the party receiving the instrument”

<, In that case it appeared that a daughter of the plaintiff, in company with another young girl, delivered a check for- a trunk to the clerk of a' transfer company at its office in New York, with instructions to transport the same to -her house in Brooklyn. She then turned away and was leaving the office, but at th¿ suggestion of her companion that she ought to have a receipt she returned and demanded a receipt of the clerk, who thereupon delivered to her a receipt by which it was, among other things, stipulated that the company should not be liable to an amount exceeding $100 unless a special contract was made. She did not read the receipt, or know its contents until after the loss of the trunk. Held, that she never assented to the terms of the contract limiting the liability of the company, and that she was entitled to recover the full value of the trunk.

This and the cases already recited are to be distinguished from those relied upon by the appellant, namely, the cases of Nicholas v. N. Y. Central, 89 N. Y., 370; Guillaume v. The General Trans. Company, 100 id., 498, and Germania Fire Ins. Company v. Memphis, etc., R. R. Co., 72 id., 93.

In reference to those cases the referee aptly says: “I am asked to apply the rule of presumption existing in the case of a shipper of merchandise delivering to a railway company, after discussion with the agents as to rates of freight, lines of transportation! etc., and receiving a bill of lading for His goods, the presumption being-that he accepts the terms of this contract as written, and fails to read it at his peril. I don’t think this is fair to passengers by sea or land.”

The learned referee, in our opinion, was right in his view, that whether a contract existed or not was a question of fact Upon ■all the evidence he decided that the burden placed upon the defendant of making out a plea of a special agreement was not sustained.

The only other question presented upon the appeal to which our attention has been called by appellant relates to exceptions taken to rulings of the referee excluding evidence tending to show what the general course of business was of the defendant

The question before the referee was, what was done and said between the plaintiff and the defendant’s servant -from which the special agreement alleged as to the $100 limit of liability could be proved or inferred. We fail to see how the testimony offered in reference to the ordinary process of receiving baggage from the ■steamer could bear upon the determination of this question; and it being clearly irrelevant, the referee was right in excluding it Our conclusion, therefore, is that the judgment appealed from should be affirmed, with costs.'

Yan Brunt, P. J., and Lawrence, J., concur.


text:
    Mary Bloom, Resp’t, v. The Manhattan Elevated Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

      1. Negligence—Married women—-Evidence.
    In an action by a married woman for personal injnries evidence as to the amount of her earnings prior to the accident is inadmissible where thecom- ■ plaint contains no allegation of loss of earnings nor that she was carrying on business for her sole and separate account.
    "3. Same—Charge—Future suffering.
    In the absence of evidence that the injury will cause future pain, it is error to charge the jury that if they believe that plaintiff will suffer recurring pain they should award damages therefor.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict of a jury, and also from an order denying the defendants’ motion for a new trial.

      Jacob Manheim, for resp’t; Davies & Sapallo, for app’lt.
   O’Brien, J.

The action was brought by plaintiff to recover damages alleged to have been sustained by her through the negligence of the defendant. Upon the trial she testified that on the '27th of August, 1888, while attempting to step from one of defendant's station platforms upon one of the cars, and after she had placed her right foot upon the cars, the latter was suddenlytstarted with a jerk,, thereby causing the plaintiff to lose her balance so that her left leg was caught between the platform of the car and the platform of the station. Upon the trial the principal question to which the evidence was directed as showing the cause of plaintiff’s injury was as to whether or not, after the train had stopped ¡at the station, it gave a sudden jerk, and thus precipitated the plaintiff’s leg between the car and the platform. Plaintiff testified to such a motion of the car, but was supported by no other witness, while, on the part of the defendant, eight witnesses who were present when the accident occurred, three of whom appeared to have been entirely disinterested, gave testimony to the directly opposite effect.

The burden of proving defendant’s negligence, which in this ■case was predicated upon the moving of the train, was upon the plaintiff, and this she was bound to do by a fair preponderance of evidence. It is difficult to conclude that this burden was sustained by plaintiff’s uncorroborated version as against the testimony of the eight other witnesses.

It is unnecessary, however, for us to determine that the verdict was against the weight of evidence, for the reason that the judgment must be reversed for other errors appearing upon the trial; two of which will be briefly referred to. Plaintiff testified that when she was injured she had been working at cigars at a factory -on the Bowery. Then she was afterwards questioned: “ What were your'earnings just before the happening of the injuries?”

This was objected to as incompetent, irrelevant and immaterial,- and as not within the issues. The objection was overruled and an exception duly taken by the defendant, and thereupon plaintiff answered : “Mine dollars a week.” She further testified that it was eight months and three weeks after the accident before she was able to move about and attend to her business. The complaint contained no allegation either of loss of earnings, or that plaintiff, who was a married woman, was carrying on business for her sole and separate account, nor that she was allowed by her husband to apply to her own use any wages or earnings in any such separate business. It was, therefore, error to permit the introduction of .such evidence.

This precise question has been passed upon in the case of Mellwitz v. The Manhattan Elevated Railway Company recently decided by the general term .of this department, ante, 354, and in the course of the opinion Mr. Justice Barrett says : “The court, against their (the defendants’) objection and exceptions, admitted evidence of the plaintiff’s loss of earnings. This was an error, for the reason that such damages were not pleaded. Uransky v. The Dry Dock Company, 118 N. Y., 304; 28 St. Rep., 711.

“Ordinarily such damages are proved without being specially pleaded, for in the case of a man or a femme sole they are the natural and immediate consequences of the injury. Mot so, however, in the case of a married woman. She may undoubtedly recover them, but only in case she has, prior to the injury, been ■engaged in the performance of some labor for her sole and separate use and benefit, or can otherwise show that she is entitled to the fruits of her own labor. In her case they are not the immediate and necessary results of the injury; they result from the additional ■or special circumstance that she was accustomed to avail herself ■of her statutory right to work for herself, or that for some other reason she was entitled to the fruits of her own labor. The case ■cited is directly in point and must be followed. And the rule there laid down finds support in Filer v. The N. Y. Central Railroad Company, 49 N. Y., 42, where such damages, when claimed by a married woman, were styled ‘consequential.’ ”

Upon the trial the learned judge, upon the request oí the plaintiff's counsel, to which exception was taken, charged the jury as-follows: “ That there can be but one recovery by the plaintiff for all damages, present and future, which she may have sustained, and if the jury believe that in consequence of the fracture the plaintiff will continue to suffer recurring pain, they should award her damages for such future suffering, if any."

There being no evidence in the case that the injury would cause future pain, it remains to be determined whether the request as charged was an error.

la. Dawson v. The City of Troy, 49 Hun, 322; 17 St. Rep., 559, which was an action for personal injuries, wherein a similar request was made and exception taken, the court, in the opinion, says: “ In the present case, a doctor testified that she would very likely recover in time. It will probably take until a change in life. This, testimony had just that character of probability which the court, held improper in the Strohm case, 96 N. Y., 305. But, furthermore, the doctor did not testify that the plaintiff would probably suffer any pain in the future, so that there was really no evidence-that she would have further suffering. Whether or not this would be painful in the future was a matter, so far as the evidence went,, of conjecture, but the court charged, against defendant’s request,, that if the jury believed there would be future bodily pain, they might allow for it The plaintiff testified as to her present pain and suffering, but without evidence that such pain and suffering-would continue. We think the jury could not, under the case cited, allow for it."

In Crawford v. The Delaware, Lackawanna & Western Railroad Co., 55 N. Y. Superior Court, 255, where no proof was given tending to show that there was any. reasonable certainty of future-pain and disability, it was held error to submit the question of future pain and future disability with power to award damages therefor.

It might be argued from the extent of plaintiff’s injury and the-small amount of the verdict that such a request did no harm, because it must be conceded that if plaintiff, upon the uncontradicted evidence as to the extent of her injuries, was entitled to-recover anything, she should have received a much greater award than she was given by the jury in this case.

Ordinarily allowing a jury to speculate, in the absence of evidence, as to future pain and suffering, would enhance the damages in cases of this character, and this undoubtedly led the courts-to adopt the rule that it is an error of such a character as to justify the setting aside of a verdict. But the -fact that, notwithstanding this error, the verdict was not for a much larger amount maybe explained by the weakness of plaintiff’s case as offset by the-number of witnesses who testified against her; thus calling to-mind the words of Justicé Barculo in the case of Haring v. The N. Y. & Erie R. R. Co., 13 Barb., 15, cited in Mellwitz case, supra; “ That we cannot shut our eyes to the fact that in certain controversies between the weak and the strong, between a single individual and a gigantic corporation, the sympathy of the human, mind naturally, honestly and generously runs to the assistance and support of the feeble and apparently oppressed, and that compassion will sometimes exercise over the deliberations of the jury an influence which, however honorable as philanthropists is wholly inconsistent with the principles of law and the ends of justice.”

Without, however, as before stated, passing upon the question of whether or not the verdict was against the weight of evidence, we think that for the errors assigned above the judgment should be reversed, with costs to the appellant to abide the event.

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


author: Patterson, J.

text:
    Dr. Jaeger’s Sanitary Woolen System Co., App’lt, v. George Le Boutillier, Resp’t. Dr. Jaeger’s Sanitary Woolen System Co., App’lt, v. Frederick Loeser et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Costs—Extra allowance—Trade-mark.-
    The court has no power to grant an extra allowance in an action for infringement of a trade-mark, where the defendant recovers judgment.
    Appeals from orders directing a reference in each case to take proof of the value of plaintiff’s trade-mark with a view to granting extra allowance.

      loot & Clarice, for app’lt; Goepel & Baegener, for resp’ts.
   Patterson, J.

These are appeals from orders in two actions brought for infringement of an alleged trade-mark right claimed by the plaintiff. Judgment in each action was for the defendant In the case against Le Boutillier a temporary injunction was granted. The defendants in each case moved for an extra allowance, and the court below directed a reference in each case to take proof of the value of the plaintiff’s alleged trade-mark with a view of granting such additional allowance, and in connection with the order in the Le Boutillier case the referee was authorized to ascertain the damages caused by the injunction. No objection is made to that part of the order last referred to, and the only question requiring consideration is as to the ordering of the reference in aid of the motions for an extra allowance, and that of course depends upon the power of the court to grant such an allowance in cases of this character.

We are of the opinion that such power does not exist. The whole ■subject is regulated by statute. Section 3253 of the Code of Civil Procedure confers the only authority the court has concerning it, and it is expressly stated there that in all cases not otherwise pro • vided for an extra allowance may, in the discretion of the court, be granted upon a “ sum recovered or claimed, or the value of the subject matter involved.” There was no sum claimed by the plaintiff except as incidental damages arising from alleged profits made by the defendants out of the infringement of the trade-mark claimed, but the real contest was as to the trade-mark right, and it having been determined that no such right existed, there was no question in the case at all as to damages. They could only have resulted from an accounting after a determination that the plaintiff was entitled to judgment on the real issue, and Weaver v. Ely, 83 N. Y., 89, is quite in point That was an action for an accounting, and for the payment of any amount found due on such accounting. The complaint was dismissed on findings which showed the defendants were not liable to account. Extra allowances were awarded them, but the court of appeals held, in reversing the orders, in substance, that where undefined and unascertained interests, dependent wholly on the result of previous inquiry, are in question and the main relief is denied, there is nothing upon, which an allowance may be based. Conaughty v. Saratoga Co. Bank, 92 N. Y., 401, defines also what is meant by the word “ involved ” in the section of the Code above alluded to. It means-the possession, ownership or title to the property or other valuable-thing which is to be determined by the result of the action. That, in these eáses, was the trade-mark, and nothing else.

There are several cases on this subject more recent than those cited by counsel, and among them is Adams v. Arkenburgh, 106 N. Y., 615; 11 St. Rep., 121, and in that case a distinction is made between it and Weaver v. Ely, supra. The opinion in each of those cases was written by the same judge (Danforth), but it was-held in the later case that there was a specific value to be fixed upon the result of an accounting under the peculiar facts of the case, it was for a copartnership accounting, and that the matter should not have been disposed of as a question of law. Here-the subject comes up distinctly as a question of law, and our decision is put upon the plain ground that in such a case as this an , extra allowance cannot be granted to a defendant on the dismissal of a complaint seeking an accounting where the judgment of the court is final that such an accounting cannot be had, and for the reason that any further claim is merely incidental. Moore v. Appleby, 108 N. Y., 237; 13 St. Rep., 492.

But it is further contended that there was a value to the trademark, and that therefore something existed and was in controversy coming within the requirement of the law as above stated. What possible value a mei'e trade mark right can have per se ascertainable by a money standard, it is difficult to understand in. the absence of proof. But when it is adjudged that no trade mark right exists at all, it is more difficult to comprehend what value can be attached to that which is non-existent. Nothing was really involved but the right to the trade mark. The case of Munro v. Smith, 23 Abb. N. C., 275; 25 St. Rep., 624, is referred to as being an authority in favor of the granting of an allowance to the defendant. No such deduction is to be fairly drawn from that case.

The learned judge who wrote the opinion there made careful reference to Coates v. Goddard, 34 Supr. Ct., 118, in which it was held that no money value could be assigned to a trade mark, and it is quite evident that the allowance was made in the Munro case on the-undisputed testimony that the trade mark was worth the sum of $50,000.

The orders so far as they provide for a reference as to an extra allowance are reversed, with costs and disbursements ; but in the Le Boutillier case so much of the order as provides for ascertaining damages on the injunction is affirmed.

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


text:
    Abraham Shenfield, App’lt, v. Jerome Bernheimer, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed February 18, 1892.)

    Jury—Waiver of right to.
    Where a plaintiff includes in his complaint a cause of action which, would entitle him to a jury trial with one in respect to which he is not. entitled to such a trial, he thereby .waives a jury trial as matter of r.ghfc as to either cause of action.

      (People v. Albany <6 Susquehanna B. Go., 57 N. Y., 162, distinguished.)
    Appeal from order denying motion to frame issues upon the pleadings. "

      Joseph Kohler, for app’lt; F. C. Heed, for resp’t.
   Van Brunt, P. J.

The complaint alleges two cáuses of action. The first alleges a copartnership between the plaintiff and defendant and its dissolution and demands an accounting. The second is brought apparently for a balance due upon a contract to pay money. The defendant answered putting in issue material averments of the complaint and set up an affirmative defense ; and the plaintiff thereupon moved that issues be framed and sent to a jury for trial. This motion was denied, and' from the order thereupon entered this appeal is taken.

It is true that in his memorandum filed on deciding this motion the learned justice who heard the motion stated that he thought the motion was premature, and that in this respect he was mistaken; but as in the order it does not appear that the motion was decided only on this ground, thi§ court must consider that it was denied generally.

It is evident that the plaintiff is not entitled as matter of right, to a jury trial, even though he has included in his complaint a cause of action which would have given him, if sued upon alone, such right; because, having included such cause of action with one in respect to which he is not entitled to a jury trial he has waived a jury trial as a matter of right as to either cause of action. Libmann v. Manhattan R. Co., 36 St. Rep., 639; Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y., 319; 7 St. Rep., 203.

The case cited by the appellant, People v. Alb. & Susq. R. Co., 57 N. Y., 162, is not in conflict with this view. All" that that case decides is that, by combining in his complaint legal and equitable causes of action, a plaintiff cannot deprive a defendant of his constitutional right to trial by jury in respect to the legal causes of action. Therefore, the plaintiff was not entitled as matter of right to a jury trial, and we do not think that the discretion of the court was in. anywise abused. There was nothing shown which in anywise made it proper to order a jury trial; and the ■order appealed from should be affirmed, with ten dollars costs and disbursements.

O’Brien, J., concurs.


author: Brown, J.

text:
    Catharine Diefendorf, Resp’t, v. Mariah Diefendorf et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Deed—When not intended as a will
    D., a few days before his death, bein■ ■ sifck, sent for Dr. A., the son of his attending physician, asked him if he ,vould draw a deed, and told him he wished to give all his property to his wile, real and personal, in consideration of $3,000 she had paid to him. < --r, A. drew the paper in question, it was executed by D. before a notary his request, and delivered to the doctor with instructions to retain it for D.’s wife until after his death, and then have it recorded, which was done. Meld, that it was a present conveyance of D.’s property to his wife, and not'p, will.
    3. Same—Action tp quiet title—Possession for three tears.
    Under the statute it is requisite to the mainten;' if an action to determine claims as to real property that there should.iiave been possession for three years or more by the plaintiff, or by her and “ thpse'whose estate she had.” Held, that it was not essential that such possession should be adverse for three years to defendants’ claim. And as plaintiff’s husband had possession for several years, and as between the date of the conveyance under which plaintiff claimed and the commencement o4 this action there was a period of two years and eight months, the action was properly brought.
    3. Same.
    The property was a large building on the corner of two streets, the first floor being used for stores, and plaintiff occupying the second and third floors as a millinery store and as a residence. She res'led on the premises, and collected rents from the tenants. Held, that in vtuis occupation there was that foothold upon the ground which is essential 'o constitute actual possession.
    Appeal from an order of the general term of the third -d-icial department, reversing a judgment of-the special term and gn. ‘mg a, new trial.
    The complaint alleged that plaintiff was in possession of 'teal property under a claim of title by deed from her deceased husband and that defendants claimed the land as heirs at law of her husband. . '
    It demanded a judgment barring said defendants from any estate in said property, and that plaintiff’s title be quieted and adjudged to be free from any right therein of the defendants.
    The answer denied plaintiff’s possession and alleged that John Diefendorf, plaintiff’s husband, was seized of. the property at the time of his death and died intestate, leaving plaintiff as his widow and defendants as his heirs at law.
    The defendants introduced no evidence upon the trial. _
    _ It appeared that John Diefendorf, a few days'before his death, being sick, sent for one Douglass Ayres, a physician, and a son of his attending physician, and asked him. if he would draw a deed of his property and gave him an old deed containing the description of the property in suit. He told Doctor Ayres that he wished to give all his property to his wife, real and personal, and stated to him. what it was. That was to be in consideration of $3,000 that she had paid to him and other considerations. Doctor Ayres drew the paper which is the subject of this controversy, -and it was executed by Diefendorf and delivered to the doctor, with instructions to retain it for his wife until after his death and then have it recorded. After his death it was recorded.
    The special term found this paper not to have been a deed but an attempted testamentary disposition of property, and that Diefendorf died intestate and that defendants were entitled to the property, subject to the plaintiff’s dower therein. The general term reversed the judgment upon the law and facts and granted a new trial. From that order defendants appealed to this court,

      E. Countryman, for' app’lts; N. C. Moah, for resp’t

       Affirming 31 St. Rep., 1003.

   Brown, J.

The complaint contained all the allegations essen-' tial to constitute this an action to determine claims to real prop■erty. Code Civ. Pro., §§ 1638,1639.

The appellants claim that the proof did not show that the plaintiff was in the actual possession of the property. The court found that after her husband’s death she continued to reside upon it and assumed to be its owner, and collected the rents from the part not used by her. The. property was on the corner of Division and ■Canal streets, in the village of Fort Plain, and a large building ■covered nearly the whole lot. The first floor was used for stores. The plaintiff occupied the. second and third floors, partly for a millinery'store and partly as a residence. She testified that she had property in every room in the second and third stories. The other parts of the building were rented to tenants who paid their rent to the plaintiff. In this occupation there was that foothold upon the ground which is essential to constitute actual possession.

Upon the trial defendants moved to dismiss complaint on the ground that the plaintiff had not been in possession for three years.

Under the statute it was requisite to the maintenance of the action that there should have been, possession for three years or more by the plaintiff, or by her and “ those whose estate she had.’ The plaintiff’s husband had been in possession for many years, and it was only necessaiy that the total time of the possession of both should be three years. It is not essential that such possession should be adverse for three years to the defendants’ claim. • Between the date of the conveyance under which plaintiff claimed, ■and the commencement of this action, there was a period of about two years and eight months, and we think the action was properly brought

Upon the facts of the case we concur in the result reached by the general term.

The weight of the testimony was to the effect that Diefendorf intended to make a present conveyance of his property to his wife, and we think there is very slight ground to hold that he intended to make a will. He inquired of Dr. Ayres if he could ■draw a deed.

The statement that he desired to give his property to his wife must be construed in that connection. He contemplated and intended a gift by deed. In form the instrument is a deed. It was sealed and acknowledged as such and the deceased appeared to-understand the necessity of an acknowledgment, as he directed the procuring of a notary public to take it There was nothing in his request to the doctor after its execution to indicate an intention not to make the conveyance effectual immediately. The only direction he gave was that it should not be recorded; but the delivery was for his wife. It was not essential that the delivery should have been to the plaintiff Delivery to Doctor Ayres for her use was enough. Church v. Gilman, 15 Wend., 656. The deceased reserved no control over the deed, and there is no-' question in this case as to its acceptance. The title passed to the plaintiff.

The order should be affirmed, and judgment absolute rendered against the appellants, with costs.

All concur, except Lahdoh,- J., not sitting.