author: Daniels, J. Ingraham, J.

text:
    The Magnolia Anti-Friction Metal Co., Resp’t, v. Samuel Singley, App’lt.

      (Supreme Court, General Term,, First Department,

      Filed December 31, 1891.)

    Patents—Assignment—Future improvements.
    An inventor may assign not only a completed invention but also rights growing out of subsequent improvements made or which may be made by , him.
    (Ingraham, J., dissents.)
    Appeal from a judgment recovered at the special term.

      Rowland Cox and Mason W. Tyler, for app’lt; Alexander & Bacon, for resp’t.
   Daniels, J.

The disposition of this appeal depends upon the consideration and effect of the evidence taken at the trial. By that it appears that the defendant was the inventor of a process for the production of a metal compound known as anti-friction metal. He had manufactured it in small portions and disposed of the manufacture at different places, but had never entered into any extended or continued business for the manufacture of the metal, and did not appear to be a person financially able to-commence or prosecute such business. But it appeared by the-evidence from his conceded habits that he was incapable of instituting and maintaining this business.

The invention was accordingly of but little use or value to himself, and after an interview with Charles B. Miller, at the city of St. Louis, he proceeded to the city of Mobile to enter into an agreement there with Edward C. Miller, a capitalist, for the manufacture and sale of the product of this invention; and at that-place, on the 5th of October, 1886, he entered into an agreement by way of assignment with Edward C. Miller, whereby, for a nominal consideration, he sold and transferred to Miller all his right, title and interest in and to this improvement, and the letters; patent therefor, when they should be granted, to be held and enjoyed by the assignee and his assigns as fully and entirely as they would be by the defendant if the assignment had not been made. On the same day a further agreement was entered into between these two persons, by which it was agreed that the defendant should assist this assignee in manufacturing and marketing the anti-friction metal, and in consideration thereof the defendant was; to receive ten per cent of all net profits accruing from the manufacture and sale of the metal. And it was further agreed, if it became necessary for the defendant to devote all his time in assisting to manufacture and market the metal, then the assignee agreed to pay him a fair and remunerative salary for his time, besides the ten per cent of net profits. These agreements were executed in the presence of Price Williams, Jr., who was a judge, and were certified by him; and after they had been made, the assignee, Edward C. Miller, assigned to Charles B. Miller all the right, title and interest which he had acquired to the improvement and to the letters patent therefor when they should be granted; and a request was made to the commissioner of patents to issue such letters to-this assignee.

After these instruments had been executed, and on or about the 3d of December, 1887, the plaintiff was incorporated under the laws of the state of New York, ostensibly to carry on the business of manufacturing and selling the anti-friction metal, and after that incorporation, and on the 20th of February, 1888, the defendant made a further assignment of the invention to the corporation. By this assignment, and for a nominal consideration, he assigned to the company “ the full and exclusive right to said several inventions as fully set forth and described in the several specifications prepared and executed by me, February 20, 1888, preparatory to obtaining letters patent of the United States therefor for the United States and all foreign countries; and I do hereby authorize and request the commissioner of patents to issue the said several letters patent to the said The Magnolia Anti-Friction Metal Company as the assignee of my entire right, title and interest in and to the same for the sole use and behoof of the said The Magnolia Anti-Friction Metal Company and its legal representatives."

And on the 23d Of the same month a further agreement was made between the plaintiff and the defendant, Charles B. Miller, by which the plaintiff assumed the covenants of Edward C. Miller which were contained in the agreement of the 5th of October, 1886. And thereby it became liable to pay to the defendant for the invention ten per cent of the net profits of the business, and a fair and remunerative salary for his time in case it should become necessary for him to devote that time to manufacturing and selling the metals. On the same day the defendant received the sum of $1,000 in such settlement and discharge of the liabilities of Edward C. and Charles B. Miller to him, and further agreed to assign and set over unto said company any and all my inventions heretofore made, or which may be by me at any time made, in the composition or manufacture of anti-friction alloys or compounds, and to execute all necessary papers in order to secure^ to said company letters patent of the United States and all foreign countries therefor, as sole assignee of all said inventions, provided always that said instruments of February 23, 1888, to said company for the Magnolia anti-friction metals shall apply to all such inventions to be assigned by me, and further covenant not to assist in any way directly or indirectly in the manufacture or sale of anti-friction metals in the United States, without the consent of said company.”

And, under these several agreements, the company acquired a plant and entered upon the manufacture and sale of the metal,, and applications were also made under the laws of the United States for patents to secure the defendant’s inventions to the company, and he also entered into the employment of the company and continued in such employment until about the 4th of June,. 1887, when he entered into an agreement with William H. Jewell to secure to Jewell the benefit and advantage of his inventions, for the sum of $200, to be used in purchasing fittings and for the personal use of the defendant, and the sum of fifteen dollars-per week, together with one-third of the profits of the business..

Soon after that the defendant appears to have become dissatisfied with this last agreement, and then made a statement, which has been authenticated by two witnesses, to the effect that he had been defrauded in obtaining that agreement from him, and that when it was executed by him he subscribed it while he was in an intoxicated condition. But the defendant manifested no disposition whatever to aid or assist the company in the manufacture- and sale of the metal, but identified himself with the interests of others, and proposed by himself to manufacture and sell the-metal in violation of his agreements, to which the plaintiff had in this manner, by the assignment of Charles B. Miller, succeeded.

To restrain this violation of the agreements made by the defendant, this action was brought against him by the plaintiff, and by way of relief it was demanded that he, together with the-other defendants in the action, should be enjoined and restrained from making known the formula or process used in the invention, or from manufacturing or assisting in the manufacture and sale of this article to the detriment and injury of the plaintiff. By way of defense it was alleged in the defendant’s behalf that he had been imposed upon in obtaining from him these several agreements to which the plaintiff had succeeded, and also those-which had been made with the plaintiff itself ; that he was in an intoxicated condition when the papers were signed by him, and that his signature was obtained by fraud and over-reaching him. And his own testimony upon the trial tended to prove the truth of these allegations, but the evidence given by the persons with whom he dealt and by others who were sworn as witnesses on behalf of the plaintiff, was in direct conflict with these statements-of the defendant, and, as these witnesses were before the court, and their appearance, intelligence and manner of testifying was the subject of observation by the judge presiding at the trial, his conclusions must be accepted as conclusive against the defendant, and that, in point of fact, the agreements or assignments were neither of them obtained in this manner from the defendant. As to the other two defendants in the action, the complaint was dismissed, but, as to the present defendant, it was held that the plaintiffs had maintained their right to restrain him from violat-' ing these agreements, and judgment to that effect was directed against him.

In support of the appeal the assignments have been assailed as invalid, but there certainly was no inability or incompetency proved on the part of the defendant to make and bind himself by the assignments and agreements to which he became a party. Upon this subject-the law seems to be quite well settled, maintaining the conclusion that an inventor may not only bind Himself by an assignment of a present completed invention, but also to add to such assignment others- that may afterwards become necessary to transfer subsequent improvements or discoveries made by him. This subject was generally considered in Gayler v. Wilder, 10 How., U. S., 477; R. R. Co. v. Trimble, 10 Wall., 367; Hammond v. Mason, etc., Co., 92 U. S., 724, where the principle which has already been stated was very generally sustained.

Ho doubt, therefore, can be entertained but that the defendant effectually bound himself, so far as he endeavored to do that-by the assignments and agreements to which he became a party; and there was a sufficient consideration appearing from the recitals and statements contained in the instruments to render them legally binding upon him.

But, it has been claimed in his behalf that it is to be presumed, in the absence of proof to the contrary, that hé had been overreached by the Millers and the company in obtaining these instruments from him ; and the principle maintained in Fisher v. Bishop, 108 N. Y., 25; 13 St. Rep., 466, has been appealed to for the purpose of sustaining this position. But that authority contains no statement of the law which will justify the conclusion that either of these instruments failed to be binding and operative upon the defendant, for it not only does not appear that any fiduciary relation existed between himself and either or both of the Millers, but the fact itself appears to be otherwise. He was in no respect concerned with them at the time when the first interview took place with him at the city of St. Louis, contemplating the manufacture and sale of this metal through the assistance or instrumentality of either of the Millers, but he was entirely free to act as he chose to do both at the time of the conversation and after he proceeded to Mobile, where the first assignment and agreement were entered into. And at no time subsequent to that does there appear to have been any misrepresentations, restraint or imposition exercised in obtaining his signature to the other instruments subscribed by him. On the contrary, each of them was executed freely and voluntarily in the presence of one or more responsible as well as indifferent persons, and a compensation was reserved and maintained for him throughout the execution of these instuments that the evidence fails to prove was not entirely adequate for the value of the invention and covenants entered into by the defendant. There is literally no proof in the case from which the conclusion can be adduced that any more advantageous terms should have been conceded to the defendant for the acquirement of the rights and privileges finally vesting in the company, and as he acted freely and independently and was subject to no sinister influence by either of the Millers or the company, there seems to be no reason whatever for disregarding or relieving him from the obligations of his agreements. On the contrary, the effect and tenor of the evidence throughout is that he was fairly and reasonably dealt by and that his own indisposition to avail himself of the advantages secured to him by the agreements is alone the cause of his failure to profit by what was mentioned and agreed to in the instruments. He was, accordingly, in no ■condition where he could disregard the obligations which he had in this manner voluntarily taken upon himself, and, to prevent that disregard of those obligations it was competent for the court to interpose and subject him to the restraint created and declared by the judgment. Champlin v. Stoddart, 30 Hun, 300-302. And no well-founded objection can exist against the validity of the agreement because of the fact that the entire inventions of the ■defendant were intended to be assigned and transferred ultimately to the plaintiff. Diamond Match Company v. Roeber, 35 Hun, 421; S. C., 106 N. Y., 473; 11 St. Rep., 47.

But one exception appears in the case to the exclusion of evidence offered by the defendant, and that was to the letter written by him to the company and Charles B. Miller on the 31st of January, 1889. This letter was offered as proof that the defendant did not assent to an account which was rendered to him by the company on the first day of the same month. But the fact that he had not assented to the account was already stated by him, and there was no contradiction of it, but it seems to have been accepted by the justice presiding at the trial as the truth of that part of the ease. This letter appears to have been written as a studied and elaborate statement of the case as it was claimed by the defendant, and so far as it related to other subjects was clearly inadmissible at the trial, and as no,offer was made to read only those parts of the letter as related to the account, there was no error in its exclusion as evidence by the court. And no evidence was admitted against the defendant to which any substantial objection appears, or could have been taken at the trial. On the contrary, the case seems to have been disposed of in strict conformity to the law as well as the proof, and the only result which can be reached appears to be that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Ingraham, J.

(dissenting.)—The inj unction in this case restrained the defendant from making the sale of any anti-friction metal, alloy or compound whatsoever; from assisting any person or corporation in the manufacture or sale of any anti-friction metal, alloy or compound, and from engaging or continuing in the employ of any person or corporation whatever, either directly or indirectly, in the manufacture or sale of such metals.

The only covenant of the defendant which would serve as the foundation for such judgment is that contained in Exhibit K, where- the defendant covenants not to assist in any way, directly or indirectly, in the manufacture or sale of anti-friction metals in the Hnited States without the consent of the said company, the plaintiff.

Considering the relation that existed between the defendant and the Millers; that the defendant is an uneducated man not accustomed to business transactions of this character; that the effect of this judgment will be to prevent this defendant from earning his living in any way except as this plaintiff may permit, without any obligation on behalf of this plaintiff to pay him any sum of' money, except ten per cent of the net profits arising from the sale of the metal, I do not think an agreement is presented which a court of equity, in the exercise of the judicial discretion vested in it, should specifically enforce. Prom the nature of the agreement,„ the failure of any express covenant on behalf of the Millers or plaintiff to pay the defendant anything, and the fact that the defendant gave up his inventions, his right to work for any one except the plaintiff without any agreement that he himself should be employed by the plaintiff, would seem to indicate that defendant could not have understood what he was doing or the effect of the contract that he made.

This is an application to a court of equity for equitable relief,, and the contracts themselves are so inequitable that I do not think: this court should enforce them.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Daniels, J.

license: Public Domain

text:
    In the Matter of the Will of Samuel B. Peck, Deceased.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Will—Capacity—Intempbbaisce.
    Habits of intemperance are not sufficient in themselves to invalidate a will, but are competent upon the question of mental capacity.
    2. Same—Subsobibinu witnesses.
    Subscribing witnesses to a will may testify to the mental condition of as testator at the 'time of making the will.
    Appeal from a decree of the surrogate of the county of Hew York admitting a will to probate.

      John J. Adams, for app’lt; James D. Bell, for resp’t.
   Daniels, J.

The instrument which is brought in controversy by this appeal was made on the 3d of October, 1889, about a year prior to the decease of the person by whom it was subscribed. He was a man of intemperate habits, and shortly prior to the execution of the instrument had been upon a debauch, resulting in his illness and his confinement to his bed. His wife about the 1st-of October wrote to the sister of Mr. Peck and her husband, living at Pawling, requesting their presence in Hew York to look after him. They went to the city in response to the letter, and to the residence of Mr. and Mrs. Peck. After their arrival, and in the-evening of the 3d of October, and after the retirement of Mrs. Peck for the night, Mr. Peck requested his sister, Sarah B. Baker,, to procure writing material for the purpose of making his will. This she did, obtaining the articles in the room indicated by him in making this request. She was then requested by him to draw his will, but expressed reluctance to doing so because of her unfamiliarity with instruments of that description. But he insisted upon the will being drawn by her, and she sat at the table and under his dictation proceeded to draw the instrument as he worded it. After that he arose from the bed, and proceeded to the table and read the instrument, but was not satisfied with the manner in which it had been drawn, and that was. destroyed, and another instrument, being the one in controversy, was drawn in like manner under his dictation. After that had been done, he again repaired to the table, and took the instrument and read it, and made no objection to the manner in which it had been drawn. He then, according to the testimony of Mr. and Mrs. Baker, subscribed his name to it, and then requested them to subscribe it as witnesses, at the same time declaring it to them to be his last will and testament. They thereupon subscribed the instrument as witnesses.

The next day he went with them to Pawling, where they resided, and with whom his daughter resided, who by the instrument was made the legatee of the sum of $5,000. And after the execution of this instrument he lived for the period of about one year, and then apparently died as a victim to his habits of insobriety. This daughter had resided with his father and mother, and after that and for a period of about eight years resided with the witnesses to this will. Her health was infirm and delicate, and the testator assigned as a reason for making her to this extent the recipient of his property the remainder of which was given to his widow,' that he had done but very little for her, and this condition of her health. And as a matter of fact it was proved by Mr. and Mrs. Baker that they had mainly supported and educated this daughter. At the time of the making of this will the testator was interested in a dry goods business in which he was a partner, in the city of Troy, and had obtained a policy of insurance upon his life for the sum of $5,000 in favor of his wife, the contestant of this will. There was accordingly nothing unnatural in this disposition which he made of his property, although it was not in accordance with a preceding will made by him in the early part of the year 1889.

But on behalf of the contestant it was insisted that his habits were such as to have deprived him of the mental power or ability to make or understand the disposition which he directed should be made of his estate. Mere habits of insobriety alone are not sufficient to invalidate the will made for the final disposition of the property of the victim of such habits. This has been settled by the case of Peck v. Cary, 27 N. Y., 9.

But his habits are a circumstance to be considered, so far as they may have affected his ability and deprived him of the mental power requisite for the intelligent disposition of the estate. And upon those subjects the subscribing witnesses were fully examined, testifying to his mental capacity, and that he was free from restraint at the time when this instrument was subscribed by himself and these witnesses. Their evidence was clear and distinct in favor of his mental capacity, and their opinions were admissible for this purpose because of their being subscribing witnesses to the. instrument. Clapp v. Fullerton, 34 N. Y., 190; Holcomb v. Holcomb, 95 id., 316.

Besides that they have related the conversations which are stated to have taken place with the deceased prior to and at the-time when this instrument was made. And if they have related those conversations correctly, they indicate the existence of such a degree of mental capacity on his part as enabled him to understand, as well as to devise, what should be, and was in fact, contained in this instrument. Upon this subject a physician, who had been quite familiarly acquainted with the habits and disposition of the deceased prior to and after the making of this instrument, was examined as a witness. And while his evidence was. in the first instance excluded on the ground that he had been the-attending physician of the deceased, it was afterwards received by the surrogate upon the correction made by the witness that he was-not at the time acting in this capacity. He, as well as the contestant and a servant residing in the family, described the habits- and disposition of the deceased, and, according to their testimony, especially that of the widow and the servant, he had been in the habit, for ten days prior to the time when this instrument was-drawn, of drinking nearly a quart of whiskey every day. And the physician expressed his judgment that his mind had been so-far affected as substantially to render him incapable of understanding what he was doing. He fully described his appearance, and) from that the inference might very well have been drawn that he-was not competent to make an intelligent and legal disposition of his property. But other evidence was given in the case, especially that of his sister, Mrs. Selleck, sustaining and corroborating the-probability that such a degree of mental capacity was retained by him as the law has required to enable a person to make a final disposition of his property by a testamentary instrument. The witnesses all agree to his habits of insobriety, and the effect that those habits appeared to have produced upon him. But still their testimony, certainly with the exception of that of the physician, was consistent with the existence of his ability, as that was described in the testimony of the subscribing witnesses. And that he understood the condition of his property appears further from the evidence of Mr. Tuthill, who was his partner in the Troy store,, and who had a conversation with him about a year before the hearing, concerning the disposition of the interest of the deceased in the store. This was not far from the time when the instrument in question was executed. And upon that occasion it appears from the evidence of this witness that an agreement was entered into by which he bought out the interest of Mr. Peck in the store for the-sum, as it was finally agreed upon, of $11,500. For that he states-he had given him notes and had paid the notes with the exception of $3,500. These dealings indicate the existence of an equal' degree of mental capacity with that described by the subscribing' witnesses. And upon the whole case there certainly was sufficient evidence to support the surrogate in his conclusion that the deceased did possess that amount of mind and memory which is. required by the law to enable a person to execute a valid will and disnose of his estate.

There were exceptions taken to the ruling of the surrogate upon the admissibility of evidence, but the important exceptions were rectified "by the full and complete evidence given hy the physician after his statement had heen corrected by which it was made to appear that he was not an attendant physician upon the deceased. The others arp of slight consequence, in no way affecting any material disposition of evidence either in favor of or against the instrument. And under all the circumstances there seems to be no legal or valid reason for interfering with the decision of the surrogate admitting this instrument to probate. The decree, therefore, should be affirmed, with costs.

Yah Brunt, P. J., and Ingraham, J., concur.


author: Andrews, J.

text:
    Pauline N. White, Adm’rx, App’lt, v. Mary Davis, Adm’rx, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    1. Insanity—Witness not an expert.
    A witness who is not an expert in insanity may testify as to what a person said or did and may give his opinion whether such remarks or acts were rational; but he cannot express an opinion as to the general mental condition of the person, whether such opinion is based upon the particular remarks or acts as to which the witness testified or upon the evidence in general.
    2. Same.
    Such a witness cannot testify that the person acted like a man who was not right or that he acted queer ; but he may be asked whether he saw any change in the manner in which the person in question conducted business.
    Appeal from a judgment entered upon the verdict of a jury, aad an order denying the motion for a new trial.

      William J. Lynch and Abram Fling, for app’lt; Fréling JL„ Smith, for resp’t
   Andrews, J.

This action was brought by the plaintiff as administratrix of James White, deceased, against Richard Davis, and the latter having died, the defendant, who is his administratrix, was substituted in his place. The cause of action set up in the complaint was for money had and received hy said Davis, ara account of the sale of a certain meat stand in Washington market,, in the city of Rew York, which had been transferred to him by White as collateral security for certain indebtedness, after such indebtedness had been paid by White. The answer contained a general denial, and set up as counterclaims four promissory notes, given by White to Davis, amounting to $3,188.65 ; unpaid loans, amounting to $1,326, and a payment on account of White of $292.05. The plaintiff served a reply setting up a general denial of the allegations of the counterclaims, and as further defenses, payment, want of consideration, and the insanity of James White.

The action was tried before Mr. Justice Barrett and a jury, and after all the testimony on both sides had been taken, the court instructed the jury that if the indebtedness, to secure which the meat stand had been transferred by White to Davis, had been paid before Davis sold the stand, he had no right to sell it, and that plaintiff was entitled to recover the value of the stand, which had been proved to be $3,500 with interest amounting to $1,260, making a total of $4,760; but the court left it to the jury to determine on all the evidence whether such indebtedness had, in fact, been paid before the sale of the stand.

The court also instructed the jury that no defense to the counter-claims, set up on account of the promissory notes, had been proven, and that the defendant must be allowed the full amount of such notes, with interest. The court also instructed the jury that the defendant must be allowed for one of the loans amounting to $326, with interest, but excluded from the consideration of the jury defendant’s counter-claim of $1,092.05. No recovery was asked upon the loan of $1,000. The jury rendered a verdict in favor of the defendant for $257.39, and it is apparent, therefore, that in reaching that verdict, under the instructions of the court, they must have allowed the plaintiff the full amount of her claim of $4,760. A motion for a new trial was made upon the judge’s minutes and denied, and the case now comes before the court upon an appeal from the judgment entered upon the verdict, and from the order denying the motion for a new trial.

The first, second, third, fourth and fifth exceptions taken by the plaintiff’s counsel all relate to evidence in support • of the plaintiff’s claim, which was allowed in full by the jury, or to counterclaims excluded at the request of the defendant. If any error was committed, therefore, it was cured by the verdict and did not injure the plaintiff, and consequently such exceptions constitute no ground for a reversal of the judgment McGean v. The Manhattan Railway Company, 117 N. Y., 219; 27 St. Rep., 337; Tenny v. Berger, 93 N. Y., 524.

The plaintiff’s exceptions, six to fifteen inclusive, were all taken to the exclusion of testimony offered by. her in support of the defense of insanity set up to the counterclaims. Most of such exceptions were taken during the examination of the witnesses Elsey and Durando. After these witnesses had testified that they met White from time to time during the years 1882 and 1883, plaintiff’s counsel, instead of seeking to elicit from the witnesses testimony as to facts relating to White's conduct, endeavored to introduce in evidence the general opinion of the witnesses as to his mental condition. The questions asked and excluded by the court were as follows :

Q. From that condition of affairs, in which you saw him in, in your judgment was he capable of performing the duties of a business man ?

Q. Will you state what you observed in regard to his mental condition, in 1882 and 1883 ?

Q. From the conversation that you had with him, did he appear to you like a sane or insane man ?

Q. Will you state what is the condition you observed him in or what his condition was, from the observations that you made of his mental appearance ?

Q. Will you state what his mental appearance was from the conversation that you had with him from time to time ?

Q From his conduct towards you during 1882 and 1883, did you form an opinion as to his condition ?

Q. From the observations arising from your talks with him from time to time, did he appear to you like a person who is capable of taking care of himself ?

Bach of these questions called for the opinion of the witnesses, who were not experts, as to the general mental condition of White, and it has been settled by repeated decisions of the court of last resort, that such testimony is inadmissible. A witness who is not an expert may be allowed to testify to what a person said or did, and then he may be allowed, if he testifies to remarks made, or acts done, to give his opinion as to whether such remarks or acts were rational or irrational; but even if he testifies to particular words spoken, or particular acts done, he cannot then be allowed to go further than to express his opinion as to whether such words and acts were rational or irrational; he cannot then go on and give a general opinion, based upon such words or acts, as to whether the person was or was not insane; much less can he be allowed, as the plaintiff’s counsel sought to have a witness do, in the case at bar, to give a general opinion as. to the sanity or insanity of an individual, not based upon any facts whatever which are proven in the case. Clapp v. Fullerton, 34 N. Y., 190; O'Brien v. The People, 36 id., 276; Real v. The People, 42 id., 270; Hewlett v. Wood, 55 id., 634; Holcomb v. Holcomb, 95 id., 316. It necessarily follows that none of such exceptions were well taken.

Two other exceptions were taken by plaintiffs during the examination of the witness Durando. That witness was asked the question, “ What did he say ?’’ and he answered, “ He would grab me around the neck, and would want me to go with him, and I was very glad to get rid of him. He acted like a man that was not right.” On motion of the defendant’s counsel, the last sentence was stricken out as incompetent. The same witness was also asked the following question:

“ Q. In regard to his demeanor, was there anything else than grabbing hold of you and putting his arms around your neck ? A. He acted kind of queer, and I took him to his door.”

On motion of defendant’s counsel, this answer was also stricken out.

Under the decisions above cited, these answers were clearly incompetent, and no error was committed in striking them from the record.

The plaintiff’s counsel also took three exceptions during the examination of Burger and Ackerson, witnesses called on behalf of the defendant. The exceptions objected to and which the court allowed to be answered by these witnesses were as follows :

“ Q. Was there any change in his manner of conduct, or in his acts or conduct, during the time that you were with him ? What was Mr. White’s manner of conducting business ? Did you ever see any or know any change in his manner of doing business ?”

These questions called for a statement by the witnesses of any -fact within their knowledge concerning the matters inquired about, and not for opinions. It was held by the general term of this court, in Yeandle v. Yeandle, 24 St. Rep., 614, that questions almost identical were admissible in a case of this character, and the exclusion of such questions was one of the grounds upon which the judgment in that case was reversed. Moreover, as the question of W hite’s sanity or mental condition was not submitted to the jury, the'admission of testimony given in response to such questions cannot possibly have injured the plaintiff.

The twentieth exception taken by the plaintiff was to the refusal of the court to permit the plaintiff to go to the jury and submit to it the following questions:

“ First, as to whether there was any consideration for these notes or moneys alleged to have been paid by the intestate -defendant to the plaintiff’s intestate.
“ Second. Whether these notes were for mutual accommodation of the plaintiff’s and defendant's intestates, and without any actual consideration between the said parties.
Third. As to whether the said White, the intestate, at the time of the alleged delivery of these notes, was sane and in a mental condition to execute and deliver them; and if insane, that in that event the burden of proof is upon the defendant to show the actual consideration or value paid for the notes alleged in the counterclaim.”

We do not think that the exception taken to the refusal of the court to permit plaintiff’s counsel to go to the jury upon these questions was error. The production of the notes by the defendant made out a prima facie case, and the burden was then upon the plaintiff to prove, if she could, want of consideration. The plaintiff offered no evidence upon this point, except some loose testimony to the effect that White and Davis sometimes exchanged notes for mutual accommodation. There was no evidence, however, that the notes in question were given in this way, and if the question had been submitted to the jury, and the jury had found against the defendant as to the notes, the verdict would certainly have been set aside as not based upon any evidence in the case. The loan of the $326 was proven by the uncontradicted testimony of the witness Nelson, and the claim on account of the other alleged loan of $1,000 was withdrawn by the defendant’s counsel.

So far as the question of White’s sanity was concerned, there was no evidence in the case which wrould have justified the court in submitting that question to the jury. A variety of questions, besides those above mentioned, which were excluded by the court, were put by plaintiff's counsel to the witnesses called by him, and were answered by such witnesses, and some evidence was given as to White’s sayings and doings, which was competent evidence upon the question of his sanity. Such evidence, however, was meagre and inconclusive, and as there was evidence that White was addicted to the excessive use of alcoholic stimulants, such sayings and doings of White might as well have been attributed to intoxication as to insanity. We do not think the testimony m question would have justified the jury in finding that White was in such a mental condition as not to understand what he was doing when he gave the notes in question, and we think that no error was committed by the court in refusing to allow the counsel for the plaintiff to go to the jury upon the question of such mental condition.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs.


author: Dykhan, J.

text:
    Grove M. Harwood, Resp’t, v. Oscar H. La Grange et al., Impl’d, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Attorneys—Contingent pee—Lien.
    Defendant La Grange was employed to bring certain suits, his compensation to be contingent on recovery and to be one-half thereof. He employed plaintiff and another as counsel, under a similar arrangement. A settlement having been made and a large sum received thereon, an adjust- ■ ment of the fees to be received by each was made. In an action to establish and enforce plaintiff’s lien on the fund, Held, that the agreement for a contingent fee was sufficient to impress an equitable lien on said fund, and a judgment enforcing the adjustment made was proper.
    Appeal by defendants La Grange, Smith and Wibert from judgment in favor of plaintiff and defendant Buel, declaring that they have equitable liens on the fund in question for their professional services.
    Action to establish and enforce a lien claimed by plaintiff as counsel in certain actions. Defendant La Grange was employed to bring certain actions on an agreement that his fee should be contingent on success, and that he should receive one-half of the sum recovered. He employed plaintiff and the defendant Buel as counsel, on an agreement that their compensation should be dependent on success. Some of the actions were settled, and a large sum received which was placed in the hands of a trustee, and an adjustment of the fees to be received by each was made by La Grange, Buel and the plaintiff. Judgment was rendered awarding to each the sums so agreed upon.

      O. H. La Grange (Charles Strauss and Wm. Tharp, of counsel), for app’lts; William Smith (O. P. Buel and Grove M. Harwood, of counsel), for resp’t.
   Dykhan, J.

We cannot yield assent to the argument of the appellants on this appeal. On the contrary we find all the findings of fact made by the trial judge sustained by sufficient proof, and upon such findings the decision does ample justice to all the parties.

The agreement for a contingent fee was sufficient to impress an equitable lien upon the fund, and the judgment effectuates the lien and enforces it.

The pleadings in the action are voluminous and the facts are numerous and the findings of the trial judge are lengthy and numerous. They have all received careful attention and examination, but it seems unnecessary in this opinion to go over them in detail, as we concur in the findings and judgment.

We find no error in the record, and the judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Dykman, J.

text:
    Clarence R. Conger, App’lt, v. Samuel D. Kinney, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Adverse possession—Burial plot.
    In an action of ejectment to recover land claimed to have been encroached upon by defendant's burial plot, it appeared that the plot had been conveyed to defendant’s father; that on the portion in dispute the body of his brother was buried in 1865; that a headstone had been there for fourteen years and shrubbery planted by defendant for twelve or thirteen years. Held, sufficient to justify his claim to title by adverse possession.
    Appeal from judgment in favor of defendant, entered on verdict, and from order denying motion for a new trial.
    This action was brought in ejectment. The defense was title under a conveyance and adverse possession.
    The land in question is part of a burial plot in Mt. Repose Cemetery at Haverstraw, Rockland county. The cemetery lands were dedicated to that purpose in 1854.
    Isaiah Milburn and John S. Gurnee were made agents to sell and convey plots in such cemetery for the owners of said lands by a written power of attorney given in April, 1854, and recorded the same month and year, and they acted as such.
    On September 2, 1858, said agents by conveyance transferred to James Kinney, the father of the defendant, plot No.1 134, in said cemetery, for the consideration of $21. Possession was thereafter taken of said plot. The wife of said James Kinney and mother of the defendant was buried therein December, 1863. The. lines of the plot were prior to that time designated and located by stakes. In 1865, George Allison, a half brother of the defendant, was buried in this plot. The stakes on the southerly side of the plot were at the time of his burial found where this line is in dispute. He was buried there on this plot inside of the stakes, and since that time five children of the defendant and his father, and his wife have been buried in the plot. Shrubbery was placed and maintained around the plot for twelve or thirteen years, and trees, and the grave of Allison maintained there ever since his burial in 1865.
    A headstone and footstone were placed upon Allison’s grave which have remained there thirteen or fourteen years. No one ever made any objection to the location or lines of the plot until made by the plaintiff. The owners and agents were about the cemetery and made no objection. „
    The plaintiff acquired title to the cemetery lands then unsold under a deed of sale in partition, dated January 19, 1882, but to which action the defendant was not a party.

      Irving Broivn, for app’lt; George E. Weiant, for resp’t
   Dykman, J.

This is an action of ejectment for the recovery of a narrow strip of land used as part of a burial plot in a cemetery in Haverstraw, Rockland county.

The land for the entire cemetery was set apart for burial purposes as far back as 1854, and the owners executed a written power of attorney to Isaiah Milburn and John S. Gurnee, empowering them to make sales and conveyances of the same.

They made a conveyance to James Kinney, the father of the defendant, of plot number 134 in the cemetery, containing 210 sqpare feet, for twenty-one dollars. The defendant is the only child of the grantee James Kinney, and claims the plot of land so purchased as the sole heir of his father. His claim is that the plot was twenty-one feet long by ten feet wide. Possession was taken of the plot, and the mother of the defendant was buried there in December, 1863, and in 1865 George Allison, a half-brother of the defendant, was buried there, and the claim is that his grave is partly upon the land of the plaintiff, who claims that the lot of the defendant was twenty feet by ten, and not twenty-one feet by ten.

The plaintiff acquired title to the unsold portions of the cemetery land by 9 conveyance in pursuance of a sale under a judgment in an action in partition which is dated January 19, 1882, but the defendant is not a party to the action.

If the plot of the defendant is only twenty feet by ten, as the plaintiff contends, then the grave of George Allison encroaches upon the land of the plaintiff; but if it is twenty-one feet by ten, there is no such encroachment.

The defendant claimed title by adverse possession, and there was proof to justify the claim, and all the questions involved in the case were fairly submitted to the jury, and the verdict was rendered in favor of the defendant

The cause was tried upon correct legal principles, and the exceptions of the plaintiff present no error.

The questions involved were questions of fact for the determination of the jury, and the verdict in favor of the defendant leaves no scope for the interference of an appellate tribunal.

The judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


author: Dykman, J. Pratt, J.

text:
    Gustav A. Kirchner, Pl’ff, v. The New Home Sewing Machine Co., Deft.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Release—Tender.
    To obtain release from, an arrest plaintiff gave to defendant a bill of sale of certain goods, but subsequently sued to set it aside and for an accounting, and obtained an injunction. Notwithstanding this, defendant’s servants ejected plaintiff, and took possession of the store and contents. After numerous arrests and litigation, plaintiff gave a release to obtain his goods, but found them injured by neglect. In an action to recover such, damages, Reid, that the release did not cover injuries of which he was ignorant at the time it was given, and that it was' not necessary that he return what he had received as a consideration therefor before he could maintain the action.

      2. Damages—Code Civ. Pro., § 1669.
    In an action of forcible entry, treble damages cannot be allowed under § 1669 of the Code because of a conversion of plaintiñ’s goods .by defendant’s servants, which formed no part of the trespass, though concurrent in time.
    Appeal from judgment in favor of plaintiff for $6,000 entered upon verdict; from order denying motion for a new trial, and from order denying plaintiff’s motion for treble damages under § 1669xof the Code.

      M. L. Towns, for pl’ff; Lehmaier & Williams Osborn M Bright, of counsel), for def’t
   Dykman, J.

This action was commenced for the recovery ol damages sustained by the plaintiff for several wrongs perpetrated upon him by the defendant

The plaintiff produced testimony tending to prove the allegations of his complaint, and the defendant introduced contradictory evidence, and also proved a release executed by the plaintiff. ■

It was the insistence of the plaintiff that the release related only to a particular subject, and did not and was not intended to release the causes of action set up in the complaint

That question of fact was submitted to the jury under proper instructions by the trial judge, with the other questions of fact involved in the case, and the jury found a verdict for the plaintiff, and so we must assume found all the facts in favor of the plaintiff. '•

Such being the case, after the verdict with all the facts settled according to the contention of the plaintiff the law of the case becomes plain, and the verdict must stand.

Upon a contradictory statement of facts, there is but little room for the interference of the appellate tribunal.

All the questions of law were properly disposed of upon the trial, and no errors were committed.

The judgment and order denying the motion for a new trial should be affirmed, with costs.

The plaintiff made a motion for treble damages which was denied, and he has appealed from that order.

That motion was properly denied, and the order should be affirmed, with ten dollars costs and disbursements.

Pratt, J.

In 1885 the parties, plaintiff and defendant, each claimed an indebtedness against the other.

Defendants caused the plaintiff to be arrested, and to gain his liberty he executed a bill of sale of eight sewing machines and other property as security for any balance he should be found to owe.

Their dealings continued and not getting a settlement, plaintiff, claiming a large balance due him, began an action for an accounting, and for the cancellation of the bill of sale.

He also obtained an injunction against interference with his property.

In disregard of the injunction defendants’ servants forcibly ejected plaintiff from his shop and took possession of the •contents.

He began proceedings for “forcible entry and detainer” but the judgment was rendered unavailing by a lease executed by the landlord to an employee of defendants not named in the process.

After enduring numerous arrests, despairing of redress by legal means, plaintiff executed to defendants a release, expecting to thereby regain possession of his premises and goods.

When he returned to his place he learned that his goods had -been largely used or sold by defendants and bis machinery ruined by neglect, rain and frost

In answer to his action defendants interpose the release as a defence.

The court charged the jury that if it was the intention of the parties by the release to cut off all claims existing between the parties, the plaintiff’s action must fail. But that if the only subject of negotiation between them was the release by plaintiff of his rights under his action for an accounting and his claim against them for false imprisonment, then the release would not operate beyond the matters mentioned in the particular clause or in the preliminary discussion.

The court also stated that a release would not operate to cut off -rights the existence of which was unknown to the releasor.

A verdict of $6,000 being rendered,. defendants bring this appeal.

The charge was in accordance with the rule laid down by us on a former appeal in this cause. 59 Hun, 186; 37 St Rep., 189.

It is now suggested that plaintiff cannot maintain his action without restoring or offering to restore what'he received in con.sideration for the release.

If the plaintiff’s right to recover depended on his setting aside 'the release, the point would merit attention. But the plaintiff has no need to set aside the release. Let it stand, and be enforced according to the principles of law as we have declared them, and the plaintiff’s right to the verdict will not be impugned.

The release was declared by the circuit judge to be valid for all the purposes in the contemplation of the parties at the time it was executed and considered in the preliminary discussions or recited in the particular clause.

Unless a wider recovery was sought, there was no need to set .aside the release nor to restore what was received as its consideration. Lindo v. Lindo, 1 Beavan, 496; Turner v. Turner, 42 Law Times, 495; Barclay v. Lucas, 1 D. & E., 291 n.; Lyall v. Edwards, 6 H. & N., 337.

Defendants suggest that responsibility for the trespasses now recovered for was involved in the accounting suit pending in the -city court, to which the release is conceded to have referred. That suit was begun October 31, and the entry into plaintiff’s store, which took place four days later, was not then in existence as a •cause of action.

It is true testimony was given that defendants intended the release to cover everything, but the jury have found with the-plaintiff upon that point

And as remarked by the presiding judge in his opinion on, the former appeal, plaintiff could not .have intended to give up-, his right to demand a return of his goods, as it was to procure-such return that plaintiff made the settlement.

Defendants say their right to the possession and retention of. the articles described in the bill of sale is beyond question, and argue that some of the damages. allowed must have been based upon plaintiff’s being deprived of those goods.

On the contrary, they had no right to the goods except as security for a debt due them.

If no debt existed, the bill of sale was dead.

The plaintiff testified that he owed them nothing, and unless-his statement is correct we are at loss to súpply a motive for their refusal to meet that question in court. Their conduct is not: easily explained upon any theory, except that they were, aware that the accounting would result in his favor.

Why should they violate an injunction and seize with a strong-hand what they could obtain by legal means?

Nor are we able, in the absence of a special verdict, to say that: damages weré based upon the retention of such articles.

It is suggested that evidence of damage not contained in the bill of particulars was improperly received.

The bill of particulars is not before us, and no error is apparent.

Wo find no error of which defendants can complain, and the judgment must be affirmed, with costs.

The plaintiff appeals from the denial of his motion for treble-damages.

It may well be that some part of the verdict was based ripon the conversion of plaintiff’s goods by servants of defendant acting-under its orders.

That was not a part of the trespass upon plaintiff’s land, thought concurrent in time. We think the motion for treble damages was-properly denied.


author: Barnard, P. J.

text:
    Lewis R. Stegman, Resp’t, v. Henry S. Hollingsworth, Impl'd, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Pleading—Reply.
    Although it may he doubtful whether the matter set up in the answer is-intended as a defense of payment or as a counterclaim, a reply thereto-does no harm to the defendant and should not he stricken out.
    Appeal from order denying motion to strike out a reply.

      Fernando Solinger, for app’ít; A. M. é Q. Card, for resp’t.
   Barnard, P. J.

The plaintiff was sheriff of Kings county. The defendant Hódgkinson was his under sheriff and defendant Hollingsworth was surety of Hodgkinson to the sheriff. The-under sheriff got $3,400 as under sheriff and did not pay it over. This action is brought to recover the amount of the surety. The-answer avers that portions of the money collected were paid out", for taxes and assessments and for other purposes. That the under sheriff had paid out the money or part of it to an iron company with plaintiff’s assent It is perhaps a question whether these defenses are designed to set out payments • or independent causes of action which will be allowed as offsets or counterclaims. The reply does no harm to the defendant It may remain a question of doubt upon the trial as to the fact whether or not any portion of the answer is technically admitted because it is not ■ denied.

' The order refusing to strike out the reply should therefore be -affirmed, with costs and disbursements.

Dykman and Pratt, JJ., concur.


text:
    Frances E. Parsons, Resp’t, v. Edward Hughes, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

      1. Pleading—Action for board and lodging.
    A recovery for rent of a room kept for defendant during long absences may be had under a complaint alleging a balance due for “board and lodging.”

      :2. Evidence—Settlement.
    Where it is claimed that plaintiff’s bill for board was allowed in a settlement of a debt due by her husband to defendant, it is proper to allow the plaintiff, after testifying that she was present at such settlement, that her husband was not authorized to take less than the full amount of the bill and that defendant refused to allow it, to answer a question as to whether she thought her bill was paid at that time.
    Appeal from judgment in favor of plaintiff, entered on verdict

      Maurice Dillon, for app'lt; Fred. Wm. Sherman, for resp’t
   Barnard, P. J.

The plaintiff is a married woman and lives -with her husband. The defendant boarded at the house where plaintiff and her husband lived. The plaintiff gave evidence tending to show that she kept the boarding house on her own account and that the defendant boarded with her 1,336 days, which was worth one dollar per day. There was proof that the defendant had a room which was kept for him during absences, and •some washing was done for him. The objection to the proof of the room rent was not good. The complaint claims for board and lodging. There is a sufficient averment to recover for a room when no board was furnished. The plaintiff’s husband had borro wed money of the defendant, and these loans were sued and paid by money and mortgages. The receipt given to the husband waived the claim for board. The plaintiff gave proof tending to show that the charge of one dollar a day was reasonable. The defendant testified that he paid what was due for board by credit upon the borrowed money, and that the entire claim was released beyond the ninety-three dollars which was allowed to the plaintiff’s husband upon the settlement; that this settlement was made ■with plaintiff’s assent.

The plaintiff’s husband testified that no credit for board was made upon the settlement for the notes. That he had his wife’s rossent to an application of the board bill upon the account, and that the defendant refused to make the offset because the business of boarding house belonged to the plaintiff. The case was given to the-jury under a charge which fairly presented the issues between-the parties. _ What was the value of the board and lodging? Was it paid in whole or in part to the plaintiff ? Was it allowed to the plaintiff's husband upon the settlement of the notes ?

The jury found in favor of the plaintiff for the amount she claims to be the balance due her. This appeal is but a reargument of the case upon the facts which were passed upon by the jury. The questions put to the plaintiff, whether she thought her bill was paid at the office where her husband’s debt was settled,, was not eiToneous. It appeared that there was a receipt given by plaintiff’s husband in the settlement which was claimed to include the plaintiff’s board bill. The plaintiff had testified that she was-present; that the defendant refused to allow the bill; that she; never authorized her husband to take less than the full bill, and she did not think that the board bill was being paid at any time.

The conclusion of the jury is well supported by the evidence- and the judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Barnard, P. J. Pratt, J.

text:
    Duncan F. Cameron and Henry Huss, Resp’ts, v. The New York & Mount Vernon Water Company et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Corporations—Sale op stock—Estoppel.
    Where the entire capital stock of a corporation has been sold with Iheassent of its stockholders to another corporation, said stockholders take no interest in the latter company, have no right to its scrip, and are estopped, from claiming that such company had no right to make the purchase.
    3. Same—Consolidation.
    Two water companies, being corporations of the same nature and covering the same territory, may consolidate, although organized prior to the act of 1890.
    Appeal from order denying motion to vacate a preliminary injunction which restrains the consolidation of the defendant corporations, or any of them.

      John B. Gleason, for app’lts; A Ibertus Perry {M. J. Keogh, off counsel), for resp’ts.
   Barnard, P. J.

In 1873 a company to furnish pure water to the village of Mt. Yernon was incorporated under the village water works act, with a capital of $25,000, under the name of the Mt. Yernon Water Company. In 1886 the defendant, the New York & Mt. Yernon Water Company, was incorporated under the-general act authorizing the formation of corporations for manufacturing and other purposes. This company obtained a contract-from the village in March, 1886, to furnish water, if pure, for twenty years. An exclusive privilege for establishing and maintaining water works within and near the village was given by ordinance of the village. The stock of the Mt Yernon Water Company was purchased by the new company, and held for the-stockholders in the same. The stockholders in the old Mt Yernon. Water Company were paid the full par value of their stock, and as the object was to exterminate the prior company, and merge it in the N. Y. & Mt. Vernon Water Works Company, no right exists in the stockholders of the old company to demand new scrip for the stock for which they have been paid. No new right exists in respect thereto beyond whatever advantage may result from the purchase of the old stock to the stockholders in the new compan}'.

The consolidation appears to have been mutually agreed upon, and the acquiescence of the old company has been so long continued that justice cannot be now done after the use of the franchise and the property of the corporation has been delivered over to the new company. The village of Mt. Vernon is not a party, and the plaintiffs have no duty in respect to the rights or obligations of the village. The sole question, therefore, is whether the Mt. Vernon Water Works Company can consolidate with a corporation known as the New York City Suburban Water Company, incorporated under the general law in respect to the formation of manufacturing corporations. The corporations are of the same nature, and they cover the same territory. In such a case the consolidation is authorized, or was at the passing of the resolution by the two companies to be consolidated, under chap. 374, Laws of 1877. All the steps taken towards consolidation were in conformity with the act permitting the consolidation and the repeal of the consolidation act in 1891, subsequent thereto, preserved such inchoate and incompleted acts.

The order should therefore be reversed, with costs and disbursements, and the motion to dissolve the injunction granted, with costs.

Pratt, J.

The injunction was continued in this case on the assumption that the proposed consolidation of the two water works corporations was without lawful authority. Respondents’ counsel justify the injunction solely on those grounds. They contend that the laws in force prior to May 1, 1891, so far as they authorized consolidation, have been repealed by the new business-corporation law, chap. 567, and the stock corporation law, chap. 564, passed in 1890. They insist that consolidation cannot' be effected under the stock corporation law, because its tendency would be to prevent competition, and because it would be against public policy. The facts are substantially undisputed.

I am unable to accept the respondents’ view.

.The consolidation of corporations engaged in the same general line of business is not against public policy. The legislature has permitted it for years, and still permits it. Laws 1867, chap. 960 ; 1877, chap. 374; 1884, chap. 367; 1890, chap. 567, § 13. There is a great difference between the consolidation of two corporations into one new corporation, and the combination between two existing corporations for the prevention of competition. The former is permitted and the latter is condemned.

It is not necessary to point out the distinction so far as the public or private good is concerned. It is enough that the legislature has drawn the distinction. See § 13, chap. 567, 1890, ■and § 7, chap. 564, 1890.

I do not think that the new acts have repealed the old provisions which authorized consolidations. They have simply continued them. True, the old acts appear to be included in the schedule of acts repealed; but the saving and construction clauses of both acts which authorize and provide for consolidation, clearly. show that there has been no material change in the law. Existing rights of existing corporations are all saved by § 22, chap. -567; § 24, chap. 563 and § 71, chap. 564. Certainly two new corporations might be organized now under the new law to do ■the business of supplying water for a village, because it is a “ lawful business.” Section 2, chap. 567, Laws 1890. The effect of ■the repealing clause is to require new corporations to organize ■under the new general law instead of under the old laws. Certainly two new corporations, like the two in question, might consolidate under this new law, but they could not maintain their separate existence and combine to prevent competition between them or between themselves and others; and if such new ones could consolidate under this new law, then the express provisions of § 13 authorize the same thing by old corporations doing the same ■business as new ones organized under the new laws.

Turning now to the saving clause we read that the repeal of a law by that act “ shall not affect or impair any * * * right ¡accruing, accrued or acquired prior to May 1, 1891, under or by virtue of any law so repealed; but the same may be asserted * * * as fully and to the extent as if such law had not been repealed.” Hence, if the old corporation had a right to consolidate under the old laws that right would seem to be saved by’ this clause. And, again, we read in § 23 that where the provisions of this new law are substantially the same as those existing April 30, 1891, they shall be continued as a continuation of such old laws and not as new enactments; and, so far as they differ, they are to be deemed mere modifications or amendments of old laws.

I regard it as plain that the object of all these new provisions was simply in the line of codification. It, therefore, seems to me that the injunction proceeds upon an erroneous theory.

Perhaps some question might have arisen as to the right of the .H. Y. & Mt. Yernon Water Co. to hold the stock of the Mt. Yer-non Water Co. by purchase, if the complaint had not alleged that that purchase was made with the assent of the stockholders of the former. But it appears that such purchase was made with the assent of those stockholders. Hence, the purchase itself cannot be the subject of complaint by any of those stockholders. They are estopped to question the purchase, nor can any stockholder of the Mt. Yernon Water Co. be heard to question the purchase or holding. All the individual holders of that company have sold out. It has all been purchased by the H. Y. & Mt Yernon Water Co.

The complaint assumes that that purchase was made for the purpose of a distribution of that stock among the stockholders of the H. Y. & Mt. Yernon Water Co. I do not so understand their rights. Such a distribution would have been a dividend in property which had been purchased and paid for with capital of tne N. Y. & Mt. Vernon Water Co. In other words, it would have been a dividend out of capital, which could not have been contemplated. On the contrary, the purchase of that stock made it a. part of the property of the company, and not as a special trust for' its stockholders. Their interests in that property were the same-as in any other property of their company; and since that company has the right to consolidate with the New York City Suburban Water Co., it would seem that that stock or its proceeds-will have to abide the event of the effort to consolidate.

The order should be reversed, with ten dollars costs and the disbursements on this appeal to the defendants, and the original injunction should be vacated.


author: Pratt, J.

text:
    Philomena Giraldo, an Infant, Resp’t, v. The Coney Island & Brooklyn Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Negligence—Railroad.
    Plaintiff, an infant three years old, was injured by being run over by one of defendant’s cars. The car was being drawn up a steep grade by three horses. Plaintiff’s witnesses testified that they saw the leading horse strike her and the car run over her. The driver testified that he did not see her until after the accident, and one of defendant’s witnesses testified that she came to the side of the car and put her hand on the step. Held, that a verdict for plaintiff was not so unsupported by evidence as to warrant setting it aside on that ground.
    2. Same—Charse.
    A charge that the highest degree of care is required of a driver who-sees a person lying helpless on the track in front of the vehicle is not reversible error where it does not appear that the driver saw the plaintiff at’ all until after the accident.
    Appeal from judgment in favor of plaintiff entered on verdict
    This action was brought to recover damages for an injury to-the person. The plaintiff is an infant, who, at the time of suffering the injuries complained of, was in her third year.
    The evidence on the part of the plaintiff shows, that while-the plaintiff was upon the roadbed of defendant’s track on Main street, in the city of Brooklyn, on the 27th day of August, 1890, at 2.30 o’clock in the afternoon, she was run into and struck by a team of horses and run over by a car, then being drawn by the-said team of horses, both of which horses and car are admitted by the answer to be defendant’s property, and at the time under the control of defendant’s servants.
    At the time and place of the injury to plaintiff defendant’s car was then being drawn up grade, so much so that instead of the usual two horses, a third horse had been attached at the foot of the hill to assist it over the steep grade. „
    _ While the horses were from forty to fifty feet away from plaintiff some persons called out to the driver to stop, but the car was not stopped until the full length, both horses and car, had passed, the spot where the child was knocked down.

      Neither the driver, boy who was driving the third horse, nor the conductor saw the plaintiff until after she was struck.
    Another and the remaining witness on behalf of defendant present at the scene of the injury, gave a different version of the •accident, in flat contradiction to plaintiff’s witnesses.
    This witness testified that he was sitting with his back to the horses, on the last seat from the horses. The car was an open ■one, with seats extending across its width, parallel to the platforms.
    This witness does not claim to have seen the injury, but states that he saw a little girl come from the sidewalk, and go in the ;same direction then being followed by the car, and take hold of the platform or step on a spot nearer the horses than he was sitting, and to which he had his back turned.
    This action was tried before a judge and a jury, and a verdict rendered in favor of plaintiff.

      Wm. Y Dykman, for app’lt; L. J. Morrison and John G. Kennedy, for resp’t.
   Pratt, J.

The jury believed the accident to have been caused in the manner testified to by the plaintiff’s witness.

We cannot say the verdict is so unsupported by the evidence as to warrant us in disturbing it.

The exception chiefly relied upon is one made to the ruling of the court as to the degree of care required of a driver who sees a person lying helpless upon the track in front of the vehicle.

The jury were told that in such case the highest degree would be required of the driver.

That was error, but it cannot have injured defendant, as in this case the driver did not see the plaintiff, either helpless or ■otherwise, until after the accident.

As the situation supposed did not appear in this case, we must assume that the misdirection caused no injury.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    John Flannery, Resp’t, v. J. Wesley Van Tassell, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    -Fraudulent conveyance—Consideration—Change of possession.
    Plaintiff was surety on the bond of one M. as village treasurer and indorser on his notes, and M. also owed him rent. In consideration of his agreeing to pay said notes and a shortage in the treasurer's accounts, M. sold to plaintiff his stock of goods, horses and wagons. Plaintiff went to the store and took possession, discharging some of the clerks and rehiring others, and two days thereafter defendant levied on the goods under an attachment against M. Held, that there was a good consideration for the sale, and sufficient evidence of a change of possession.
    Appeal from judgment in favor of plaintiff for $1,026.04, ■damages and costs.
    This action is brought by the plaintiff to recover of the defendant, as sheriff of Dutchess county, the value of certain goods ’taken from the plaintiff by the defendant.

      On the 12th of March, 1890, one Edward McManus was the owner and in possession of the goods in question.
    Edward McManus was on the 12th of March, 1890, and had been for more than a year prior thereto, the treasurer of the village of Fishkill Landing. Said McManus gave his bond for $10,000, with John Flannery as his surety, for the faithful performance of his duties as such treasurer. On the 12th of March, 1890, Mc-Manus was short in his account with said village, in the sum of $1,569.38.
    John Flannery was also the endorser on notes of said McManus to the amount of several hundred dollars. McManus was also-indebted to Flannery at that time in the sum of $90 for rent of barn.
    On the morning of the 12th day of March, 1890, McManus sold his stock of groceries in his store, horses, wagons and harness, and a house and lot, to said John Flannery, for which property said Flannery was to pay McManus’ indebtedness to the village of Fishkill Landing as treasurer, to pay the notes endorsed by said Flannery, and the sum due him for rent of barn.
    The plaintiff took possession of the personal property the same morning, discharged one clerk and the bookkeeper, and continued in the actual possession thereof until the 14th day of March, 1890, when the defendant, as sheriff, took possession of said property by virtue of an attachment in the supreme court on behalf of a creditor of said McManus.
    The plaintiff paid McManus’ shortage to the village, $1,569.38, .and the notes of McManus endorsed by him.
    There was no equity in the house and lot conveyed to Flannery by McManus. Its value was about $2,000. It was mortgaged for $1,950, with interest due thereon.
    The value of the personal property was about $1,200.

      Grant B. Taybr (Howard Thornton, of counsel), for app’lt; H. H. Hustis, for resp’t.
   Pratt, J.

There was ample evidence of an actual change of possession of the chattel, and it appeared that a good consideration existed for the transfer.

Plaintiff has actually paid out upwards of $1,500 on account of his liability for McManus.

Whether he could be held to account for any excess of the proceeds of the goods over the debt is not now important, for the recovery is far below the consideration plaintiff was compelled to pay. There are no valid exceptions and we are satisfied with the verdict.

Judgment affirmed, with costs.

Dtkman, J., concurs; Barnard, P. J., not sitting.


text:
    George Krey, Adm’r, App’lt, v. Charles Schlussner, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    .1, Negligence—Elevator.
    Plaintiff’s intestate, a boy, while raising goods on an elevator in defendant’s house, standing beneath to do so, was injured by the fall of the elevator, caused by the breaking of the rope, so as to cause his death.
      Held, that he had a right to rely on defendant having performed his duty to have the elevator in sale condition, and that the fact that he stood below it was not contributory negligence.
    3. Same—Evidence.
    A servant girl was asked what it was that made the elevator go down, and answered because he was hanging on it. Held., that this answer was not called for by the question and should have been stricken out.
    Appeal from judgment dismissing the complaint of the plaintiff and awarding costs to the defendant
    Plaintiff’s intestate, Adam Krey, was a boy of fifteen, employed by Frank A. Bundschuh, a butcher, to carry out orders and to-help around the store, for which he received twelve dollars a. month and his board. On the 19th day of July, 1890, about four o’clock in the afternoon, he was sent by his employer to deliver meat to the defendant, who owned, resided and kept a drug store at No. 644 Bedford avenue, Brooklyn. It was a four-story flat house. He resided in the first flat. There was running from the cellar to the roof an elevator shaft, in which was a dumbwaiter, used and constructed for the purpose of taking groceries, meat, coal and wood from the cellar to the occupants of the various flats. This dumbwaiter was raised by means of a rope passing from the elevator box over a pulley in the roof. To gain access to the elevator from the street it was necessary to go-into the cellar, and from there things were raised to the floors above. On the day in question Adam Krey, deceased, went into the cellar and placed the meat given him by his employer to be: delivered to defendant on the elevator, and raised it to the floor on which defendant lived, and while doing so, and while the meat was being removed, the elevator fell and struck him, causing his death. The fall of the elevator was caused by reason of the rope to which it was fastened being worn out, rotten and unfit for use. Gieorge Krey, the father of deceased, and who received his wages and earnings, was appointed his administrator, and commenced this action to recover, under the statute, damages for the negligence of the defendant in permitting said elevator to be and to remain in an unsafe and dangerous condition, thereby causing the death of his intestate.
    The defendant, in his answer, admitted all the material allegations of the complaint, except that he denied that the elevator or dumbwaiter fell through the fault, negligence or carelessness of the defendant, and alleged that the negligence of deceased, caused or contributed to the accident.
    On the trial defendant’s servant was asked:
    “ Q. What was it that broke that made the dumbwaiter go-down.” Her answer was: “ Because he was hanging on to the dumbwaiter.”
    Plaintiff asked to have this answer stricken out, which request was denied.

      A. H. Dailey, for app’lt; John R. Reid, for resp’t
   Pratt, J.

The testimony clearly showed that the elevator rope was so worn that its insufficiency would have been apparent upon even a casual inspection.

The defendant owed a duty to all persons whom he invited to use it to see that it was maintained in a reasonably safe condition. In that duty he failed and upon that branch of the case a verdict would properly have gone against him.

The question whether the deceased was guilty of contributory negligence must be considered in view of the duty of plaintiff.

Deceased had a right to rely upon defendant having performed the duty cast upon him by the law, viz.: to have the elevator in a safe condition. Had it been in such condition the act of deceased in standing below it when working it would not have exposed him to danger. Worked from below, as its construction required, it is not easy to see how the operator could be free from ■danger if the rope was defective. Had the rope been sound, as deceased had a right to presume, danger would not have existed. We do not see that deceased can be said to be responsible for the injury he received. Being young, had his conduct not been marked with the. care to be expected from an older person, a less degree of caution would have satisfied the law. 67 H. Y., 417 ; 83 id., 620.

Various questions were put to an expert witness which were -excluded. We are inclined to think they were admissible; but the conclusion already expressed renders it needless to discuss them at length.

The opinion which defendant’s servant was allowed to express .as to the cause of the rope breaking was not called for by the question and should have been stricken out. Its retention was error that, by itself, would require a reversal.

Judgment reversed, new trial ordered, costs to abide event.

Barnard, P. J., and Dykman, J., concur.


author: Van Brunt, P. J.

text:
    Margaret M. Brennan, Adm’rx, Resp’t, v. Susan E. Hall et al. Sarah A. Jarvis, App’lt.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Interpleader—Laches .
    An application to come in and be made a party defendant comes too late after an affirmance at general term, where the petitioner knew of the plaintiffs claims to the fund before the trial and was informed of the pendency of the action shortly after the trial.
    Appeal from order denying application of the appellant to come in and be made a party to this action.

      Woolsey Carmalt, for app’lt; Gilbert W. Minor, for resp’t.

         Affirmed ante 748.

   Van Brunt, P. J.

This is an action of interpleader in respect to the proceeds of a certain bond and mortgage which have been paid into court to the credit of this action.

The defendants Hall and Clark, trustees under the last will and testament of W. A. Hall, claimed these proceeds as the absolute owners of the bond and mortgage in question by virtue of the assignment thereof to them, and denied any knowledge sufficient to form a belief as to any agreement having been made by their testator for the benefit of the plaintiff’s intestate. These issues were tried before the court at special term, and after hearing the proofs and allegations of the parties judgment was rendered in favor of the plaintiffs for the proceeds of said bond and mortgage. From this judgment the defendants. Hall and Clark appealed to the general term of this court, which was affirmed, and an appeal was taken to the court of appeals, and that appeal is still pending.

How one Sarah A. Jarvis makes this application to come in and be made a party to this action upon the ground that the defendants hold the bond and mortgage in question for her benefit, and not for the benefit of the plaintiff’s intestate.

It appears that prior to the trial of the action at special term the defendants were apprised of the claim of Sarah A. Jarvis, the petitioner, and upon that trial sought to defeat the plaintiff by showing not only title in themselves, but also title in the petitioner. This latter defense was ruled out upon the ground that, no such claim was set up in the answer. It further appears by the affidavit of one of the defendants that the defendants did not. inform Jarvis of the action or any of the issues or matters pending in this suit until after the judgment at special term, and the-petitioner states in her affidavit that she was not informed of thependency of the action until after the trial at special term; but. she nowhere states that she was not informed of the claims made: on behalf of the plaintiff’s intestate.

How, it appearing that the defendants have allowed this action to be tried, knowing of the claim of Sarah A. Jarvis, they are in no position to complain of any harm which may result to them by reason of allowing this action to proceed. Heither is the petitioner in a position to complain, because, after having been informed of her rights, she has allowed this case to go on, to be submitted to the general term, and to be decided without making any intimation whatever of her claim or her desire to be made a party to the action, and after the plaintiff has succeeded at special and general terms, she seeks to come in and reverse the judgments there rendered and have a new trial in order that her rights may be determined in this action.

What might have been the result of an application made promptly (and in view of the condition of the case the greatest diligence was necessary) it is not requisite here to determine. But having slept upon her rights, and having failed to make her application until after the argument of the appeal at general term and its decision, and,the taking of an appeal to the court of appeals, it seems to us that it would be depriving the plaintiff of the fruits of her diligence and victory to allow the petitioner to come in at this time and require a retrial of the issues presented by her answer. The application seems to be an attempt to procure a reversal of a judgment by the special term after it has been affirmed by the general term.

We think that the order should be affirmed, with ten dollars costs and disbursements.

Barrett and Andrews, JJ., concur.


text:
    Daniel H. Bennett et al., App’lts, v. Frances S. Draper, Impl’d, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 31, 1891.)

    Bond—Surety—“ Successors or assigns”—New firm.
    A bond recited that the obligors were bound to B. & Co. for a sum of money to be paid to B. & Vo., their successors or assigns; that a certain firm expected to borrow money of B. & Co., and wished to give B. & Co. a continuing security for any moneys which it then owed, or thereafter should owe, B. & Co., their successors or assigns, and that B. & Co. had required such security of the firm. The condition was that if the obligors paid the obligees, their successors or assigns, all sums due from the firm to the obligees for loans by the obligees, their successors or assigns, the bond should be void. Held, that the bond covered advances by B. & Co. only, and did not cover subsequent advances made by a new firm of the same name which succeeded B. & Co., but which had a new partner.
    Appeal from an interlocutory judgment sustaining a demurrer to the complaint.

      J. Wolsey Shepard, for app’lts; George A. Strong, for resp’t.
   Daniels, J.

The ground upon which the defendant’s liability was in this action was a bond executed by her as a surety in January, 1881. And this is a copy of that bond:

“ Know all men by these presents: That, we, John H. Draper and George T. Kellock, composing the firm of John H. Draper & Company, of the city of New York, as principals, and Frances S. Draper of the same place, widow, as surety, are held and firmly bound unto H. C. Bennett & Company in the sum of forty thousand dollars, lawful money of the United' States o£ America, to be paid to the said H. C. Bennett & Company, their successors or assigns ; for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seal and dated the 15th and 28th days of January, in the year one thousand eight hundred and eighty-one.
“ Whereas, the said John H. Draper & Co. have borrowed and ■expect, from time to time, to borrow divers sums of money from the said H. C. Bennett & Co., and are desirous of giving to H. C. Bennett & Co., a continuing security for any moneys that the said firm of John H. Draper & Co. now owes or shall at any time owe said H. C. Bennett & Co., their successors and assigns, not exceeding the sum of twenty thousand dollars at any one time, and said H. C. Bennett & Co. having required said firm of John H. Draper & Co. to furnish such security:
“Now the condition of this obligation is such that if the above bounden obligors, their heirs, administrators or executors, shall well and truly pay or cause to be paid to the above named obligees, their successors or assigns, all sums and every sum of money, not however exceeding in the aggregate the sum of $20,000, which shall at any time be due or owing from the said John H. Draper & Co. to the said obligees for or on account of any loans or advances made or any credit granted by the said obligees, their successors or assigns, to the said John H. Draper & Co... then the above obligation to be void, otherwise to remain in full force and virtue.
“ It being expressly understood that this obligation is a continuing security for the sum of $20;000, but that nothing herein contained shall be so construed as to require said obligees, their successors or assigns to allow the indebtedness of John H. Draper &. Co. to reach said sum of $20,000 or to require said obligees, their-successors or assigns, to loan or advance to said firm any sum whatever or to grant them any credit or accommodation whatever.’’

When it was given, the firm of H. C. Bennett & Company, named in the bond, consisted of Hiram C. and Daniel H. Bennett. Hiram C. Bennett died on the 30th of Hovember, 1884, and another person of the same name was then brought into the firm, and that firm continued to exist down to the time of the commencement of this action. The money, for the recovery of which the action was brought, amounting to the sum of $13,500, and interest thereon, was loaned and advanced by this new firm to the firm of John H. Draper & Company, the principal debtors, mentioned in the bond. And whether the firm advancing this-, money is entitled to recover it under the terms of the bond is the legal point presented for decision in this action.

There is no doubt as to the legal principles which each party has appealed to, that the obligation of the defendant as a surety in the bond must appear to a reasonable degree of certainty to-have been created by its language or provisions. And that while the bond is to be strictly construed for the protection of the surety, it is still to have the fair import of its language ascertained for the benefit of the plaintiffs. These principles have been enunciated repeatedly in the authorities, and may be said to be thoroughly well settled. People v. Pennock, 60 N. Y., 421; Ward v. Stahl, 81 id., 406; Schmitz v. Langhaar, 88 id., 503, 506; Douglass v. Reynolds, 7 Peters, 113.

And it is equally as well settled that the contract of a surety entered into for the benefit of one or more ascertained parties cannot, without language contained in it indicating that to have been the intention, be so far extended as to become a security for the-benefit of others. Barns v. Barrow, 61 N. Y., 39.

This bond, it is true, by the repeated use of the phrase “ successors or assigns,” does in a measure sustain the contention of the-plaintiffs that it was not only intended to be a security to the firm of Draper & Company as it was then constituted, but also as it. might afterwards be changed in its membership. But still the-controlling purpose of the instrument appears to be to secure loans-of money made by the firm of H. C. Bennett & Company as that firm was constituted at the time when the bond was executed and delivered. In the first paragraph of the bond this limitation or restriction is clearly indicated. Por the other obligors, as well as. this surety, declared themselves to be held and bound to the firm of H. C. Bennett & Company, and no other firm, even though engaged in business under that name, when it should be constituted. by different members. And it was this firm which it was intended, according to this portion of the bond, that was to advance the money for which it was given as a security for the firm of Draper & Co. And it was only for money advanced by that firm to these obligors that the obligation was declared to be to pay the firm advancing the money, or their successors or assigns.

This was not an obligation to pay money advanced by the successors or assigns of the firm, but it was an obligation to pay these successors or assigns such money as should be advanced by the. firm of H. C. Bennett & Company. And that was designed to include only that company as it then existed. In this respect this paragraph of the bond is clear and explicit, disclosing the intention of the surety at least to have been to become obligated to the firm for the money that it might advance to the other obligors, and to pay that money to that firm, or to its success'ors or assigns. ' And this expressed restriction, in this manner made, is an important circumstance indicating the intention which should govern the construction of this instrument. For, as a general proposition, it has been stated to be the law, and seems to be well sustained by the authorities, where there may be repugnance or incompatible provisions or clauses contained in an agreement, that the earlier shall prevail, the rule in this respect differing from that which is • applied to the construction of a will. 2 Parsons on Contracts, 6th ed., 513, and cases cited in the note.

The recital following the first paragraph of the bond is equally as restricted, for it states the fact to be that the firm of Draper & Company had borrowed, and expected from time to time to borrow, money from the firm of H. C. Bennett & Company, and were desirous of giving to this latter firm a continuing security for any moneys that Draper & Co. then owned, or should at any time owe, the firm of H. C. Bennett & Co., their successors and assigns, not exceeding the sum of $20,000 at any one time, and that H. C. Bennett & Co. had required Draper & Co. to furnish this security. This recital is further evidence that the parties intendded to deliver the bond only as a security for the moneys which H. C. Bennet & Co. should loan or advance to Draper & Co. And in case of a liability arising in favor of Bennett & Co., that then the liability should still continue in their favor, or might be passed over by them to their successors and assigns. The intention evinced is still to restrict the security to such loans as should be made by H. C. Bennett & Company. And the condition of the bond, although somewhat differently expressed, is required to be restricted within the operation and effect of these preceding provisions in order to maintain and carry out the intention of these parties. By this condition the obligors in the bond bound themselves to pay to the obligees, their successors or assigns, all and every sum of money, not exceeding the aggregate mentioned, which should at any time be due or owing from Draper & Co. to the obligees for or on account of any loans or advances made, or credit granted by the obligees, their successor or assigns. An extended construction of this language, without reference to what was previously made a part of the bond, would include loans by the successors or assigns of the firm of Bennett. & Go. But inasmuch as the preceding portions of the bond were clearly restricted to loans and advances made only by Bennett &. Co., what was probably intended to be secured by the additional language contained in the condition was the protection of the successors or assigns of the firm in their right to collect such loans, and advances as should be made by their predecessors who were members of the firm when the bond was given. For no intention has been expressed in the condition to enlarge the construction of what had been previously stated to define the obligations this surety was designed to take upon herself. The succeeding-clause of the bond also indicates this to have been what was intended by the parties to it. For it is there added that the bond should not be so construed as to require Bennett & Co., or their successors or assigns, to allow the indebtedness of Draper & Co. to-reach the sum of $20,000, or to require the obligees', their successors or assigns, to loan or advance said firm any sum whatever, or grant to them any credit or accommodation whatever. This-paragraph in no manner enlarges the obligation previously created and declared. And to so far extend it as to include loans made by the new firm within the scope of the bond, other and more decisive language evincing that purpose should have been inserted in the instrument if that was what was intended to be accomplished, by it

The design which the parties appear to have had in view waste secure the loans or advances which Bennett & Co., as that firm existed at the time when the bond was delivered, should make to-Draper & Co., and to obligate the surety, as well as the principal debtors, to repay those advances either to the firm of Bennett & Co„ as it then existed, or to their successors or assigns, which might become entitled to demand and receive the money so* advanced. It would be an unauthorized extension of the controlling paragraphs contained in this bond toso enlarge it by anything; in this ambiguous and uncertain manner expressed in the condition as to include within the security the advances made to the-principal debtors by the new firm.

The judgment sustaining the demurrer accordingly appears to-be right, and it should be affirmed, with costs.

Yah Bruht, P. J., concurs.

Ingraham, J.

By the bond upon which the liability of the-respondent depends, this respondent with her co-obligors were “held and firmly bound.unto H. C. Bennett & Co. in the sum of $40,000, lawful money of the United States, to be paid to the said. H. C. Bennett & Co., their successors or assigns.

The obligation was to H. C. Bennett & Co., as that firm then existed, and that amount due to that firm the defendant agreed to pay to that firm, their successors or assigns.”

There is no indication of an intention that this respondent, who executed as surety for her co-obligors, assumed any obligation to any other firm or individual except as to the amount due to the-firm of U. C. Bennett & Co., the obligees in the bond. By the? condition it was provided “ that if the above bounden obligors, their heirs, administrators or executors shall well and truly pay or cause to be paid to the above named obligees, their successors or assigns, all sums and every sum of money, not however exceeding in the aggregate the sum of $20,000, which shall at any time be due or owing from the said John H. Draper & Co. to the said obligeesfor or on account of any loans or advances made or any credit, granted by the said obligees, their successors or assigns, to the said John H. Draper & Co., then the above obligation to be void, otherwise to remain in full force and virtue.”

The liability of the defendant thus depends upon the existence-of a debt due or owing from John H. Draper & Co. to the obligees named in the bond (H. C. Bennett & Co., as then existing). If there was no sum of money due or owing from John H. Draper & Co. to the obligees then the bond was void. If such sum of money was due and owing to the obligees, whether that indebtedness existed by reason of loans or advances made by the obligees or their successors or assigns, then the bond was to remain-in full force and effect, but the liability by the condition of the bond must be to the obligees named in the bond, that is, to the said firm of H. C. Bennett &Co., and unless the complaint alleged that a sum of money was due from John H. Draper & Co. to the obligees (the then existing firm of H. C. Bennett & Co.), the complaint stated no cause of action upon the bond.

By the death of one of the partners of H. C. Bennett & Co. that firm became dissolved and the subsequent advances made by the plaintiffs, who may be called the successors to the obligees, created no obligation to the firm that had become dissolved by the death of one of its members. Such advances created a debt which became due to the new firm, but the surviving partner of the dissolved firm, the obligees in the bond, could not have maintained an action to recover for the advances made to John H. Draper & Co. by the new firm.

The complaint does not allege that there is any sum of money-due or owing from the said John H. Draper & Co. to the obligees named in the bond, and according to the express terms of the condition the obligation was void.

I concur, therefore, in the opinion of Mr. Justice Daniels, and the judgment should be affirmed, with costs.