author: Lawrence, J. Van Brunt, P. J.

text:
    Leopold Wise et al., Resp’ts, v. Hugh J. Grant, Sheriff, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Sale—Rescission—Fraud.
    Where the sale of goods was induced by false and fraudulent statements by the vendee as to his financial standing, and three days later a sheriff levies on and takes possession of the goods under an execution against the vendee, the vendor may rescind the sale and reclaim the goods.
    2. Same—Replevin—Demand.
    In such°case, a demand upon the sheriff for the goods is sufficient to authorize the commencement of an action therefor.
    Appeal from judgment in favor of plaintiffs, entered upon verdict and from order denying motion for a new trial.
    Action to recover possession of certain goods, wares and merchandize.

      Cockran & Clark (Abraham Gruber, of counsel), for app’lts; Horwitz & Hershfield (Otto Horwitz, of counsel), for resp'ts.
   Lawrence, J.

The action is brought to recover the possession of certain chattels, consisting of shoes, which it is alleged in the complaint were wrongfully obtained by the defendant, Maier Bothschild, from the plaintiffs on or about August 22, 1887, and that the defendant Grant, as sheriff of the city and county of New York, obtained possession thereof by virtue of some alleged legal process against the defendant Bothschild, and that prior to the commencement of the action a delivery of the chattels was demanded and refused,’ and that the defendants wrongfully and unlawfully detained the same. The defendant, Maier Bothschild, was prior to and at the commencement of the action a resident of Cincinnati, Ohio, and his son, Abraham Bothschild, was carrying on merchandise business in his father’s name in the city of New York, and transacted the business for such defendant. Prior to August 22, 1887, the plaintiffs, who were dealers in shoes in the city of New York, had been' selling various small bills of goods to the defendant Bothschild, and on August 22, 1887, such defendant, through his son, selected a bill of $1,075.24, the goods in question, and it being for a much larger amount than had been previously bought at one time, and the terms not being entirely satisfactory to the plaintiffs, being for a longer term of credit, they refused to deliver the goods'until a statement was made by Mr. Abraham Bothschild, the defendant’s agent. Before the delivery of the goods such a statement was made, which was substantially to the effect that the son had a copy of • a statement of his father’s affairs which was produced at the interview, -which showed that he said defendant was the owner of real estate to the value of $125,000, and that about half of this was in the city of New York, and unencumbered, and that he did not owe for merchandise at any one time exceeding $10,000; and that it was on the faith of these statements that the goods were finally delivered on August 23, 1887. Three days later the plaintiffs heard that the defendant sheriff had taken possession of the store of the defendant Rothschild, No. 40 White street, under an attachment; the goods in question at that time being in such store. Thereupon the plaintiffs elected to rescind the sale, made a demand for the possession of the same upon the deputy sheriff in charge of the store, and upon Mr. Sexton, the undersheriff, at the sheriff’s office, the goods at that time being in possession of the sheriff. Upon a refusal, this action to recover the possession of the same was brought on August 30, 1887. The .statement mentioned in the conversation between Abraham Rothschild, the son of the defendant Maier Rothschild, and Mr. Wise, prior to the delivery of the goods, was a copy of a written statement which had been sent by the defendant Maier Rothschild to a bank here, apparently for the purpose of obtaining credit, and it appeared that on April 11, 1887. the defendant, Maier Rothschild wrote a letter to the plaintiffs in answer to theirs of the 9th, inclosing a bill, in which he said: “I fully approve of any' and all transactions made hy Abraham Rothschild in my name. The Mechanics’ & Traders’ Bank of your city have my signed statement.” It also appeared that the plaintiffs had never seen the defendant, Maier Rothschild, but had all their transactions with Abraham Rothschild, his agent and representative, who was carrying on the business in the name of his father, at 40 White street, in the city of New York, and who was in sole charge thereof. The defendant justified the seizure under an attachment issued on August 26, 1887, against the defendant Maier Rothschild, Charles H. Rothschild and Jacob H. Rothschild, at the instance of John T. Sherman and others, in an action arising upon contract, in the sum of $16,107.15, it being alleged that that sum was the amount of the contract debt; and it was further set forth that the goods seized belonged to the defendants in said attachment.

The case has been twice tried, and the judgment in favor of the plaintiffs rendered upon the first trial was reversed, 59 Hun, 466; 37 St. Rep., 39, on,the ground that evidence had been admitted of admissions made by Abraham Rothschild, the agent of Maier Rothschild, as to the falsity of the representations made prior to the sale and delivery of the goods in question, which admissions were made after the sheriff had taken the property under the attachment issued to him. Upon the trial from which the present appeal is taken no such evidence was given, but it was showm by the testimony of Maier Rothschild himself, taken upon commission, that the statements made by his agent to the plaintiff Leopold Wise at the time of the sale were false, and the jury have so found by the verdict which they rendered in this case. It was undoubtedly the right of the plaintiffs, if the sale of the goods in question was induced by fraud on the part of the vendee, to rescind the sale and reclaim their goods. This the plaintiffs have sought to do, but it is claimed by the defendants that they could not properly maintain this action, because, at the time of the seizure of the property in suit by the sheriff upon a warrant of attachment they did not have the right to reduce it into their possession. We do not see how this contention can be successfully supported. The case of Goodwin v. Wertheimer, 99 N. Y., 149, which is relied upon by the defendants, does not aid them. It was there held that, where a sale of goods had been induced by fraud, before the vendor could maintain an action against the assignee for conversion, or in replevin, there must be a demand shown upon the assignee.

In this case it distinctly appears that there was a demand upon the sheriff prior to the commencement of the action; and it was not necessary for the plaintiffs to show that they had made a demand upon Rothschild for the return of the goods, the goods being out of his possession, and in the possession of the sheriff. The case of Simpson v. Del Hoyo, 94 N. Y., 189, has no bearing upon this case, and the same observation may well be made in reference to the case of Baird v. Mayor, 96 N. Y. 567. On this branch of the case, therefore, we discover no ground for reversing the judgment rendered below.

Certain exceptions were taken during the course of the trial, however, upon which the defendants rely as presenting good grounds for granting a new trial. Those exceptions relate to certain portions of the charge of the justice presiding at the circuit, and certain refusals to charge. In the course of the charge the court stated that, “ if these representations were false, the plaintiff had a right to rescind the sale and take back his property.” To this remark the counsel for the defendants excepted, and asked the court to charge that it is not enough that the representations alleged by Abraham Rothschild and Maier Rothschild were false, in order that the jury may find for the plaintiffs, whereupon the court stated : I did not so charge. I said if they were false, and the plaintiff was deceived and injured thereby.” To this statement the defendants’ counsel also excepted, aud asked the court to charge the jury “ that, before they can find for the plaintiffs they must find that the representations were false, and that they were knowingly false at the time they were made, to the knowledge of Abraham Rothschild and Maier Rothschild.” We think that, if there was any inaccuracy in the charge of the learned court in respect to the representations made by the Rothschilds in the first instance, the error was corrected when the court stated: “I said that, if they were false, and the plaintiff was deceived and injured thereby, the plaintiff had a right to recoverand, after having made that statement, we do not think that the court was obliged to reiterate the proposition, as requested, at page 41, folio 121, of the case. The defendants’ counsel also asked the court to charge that the fact that the sheriff of New York county, the defendant, levied upon the stock of goods of Maier Rothschild under execution against C. H. Rothschild & Co., is no evidence of the falsity of the representations claimed to have been made by Abraham Rothschild or Maier Rothschild to the plaintiffs. This the court refused to do, and we think the refusal was proper. The defendant’s counsel also asked the court to charge that fraud cannot be presumed, but must be proven by a preponderance of testimony ; whereupon the court stated: “ I refuse to charge except as I have charged. The jury must be satisfied from the evidence in the case that the representations were false, aud were known to be false by Abraham Rothschild at the time he made them, and that the plaintiffs were deceived and injured thereby.” In that statement the learned justice clearly, lucidly and succinctly stated the law applicable to the case; and, even if there were any errors in the previous portions of the charge, or in the refusal to charge, those errors were clearly corrected thereby. The defendants’ counsel also asked the court to charge that the jury must find that Abraham Rothschild knew the statements that he made to the plaintiffs were false at the time they were made. The court then refused to charge except as charged. In this there was no error, inasmuch as we have just seen the court had an instant before distinctly charged that Abraham Rothschild must have known the statements were false at the time he made them, and that the plaintiffs were deceived and injured thereby, in order that they might recover.

The remaining exceptions to the charge are covered by the remarks made in reference to the exceptions already referred to. It should be observed in this case that, after the defendant had unsuccessfully moved to dismiss the complaint, and that motion had been, as we think, properly denied, the defendants’ counsel asked to go to the jury upon the question of the falsity of the representations alleged to have been made bv Abraham Rothschild, and on the question of the intent of Maier and Abraham Rothschild to defraud the plaintiffs in the purchase of those goods. That request was granted, and the question was submitted to the jury under a charge which'we think, as a whole, correctly stated the law applicable to the case; and we áre therefore of the opinion that the judgment and order from which this appeal is taken should be affirmed, with costs.

Van Brunt, P. J.

I do not think that -it is a very plain exposition of the law to say that in an action of this kind the plaintiff must show the representations were made; that they were false; and that he was deceived and injured thereby. The more accurate statement would seem to be that the plaintiff, relying upon the truth of the representations, parted with his property. This, perhaps, is meant by the word “deceived,” and I therefore concur in the affirmance of the judgment, with costs.

O’Brien, J., concurs in result.


source: Caselaw Access Project

author: Ehrlich, Ch. J.

license: Public Domain

text:
    Georgine C. Wolters, Resp’t, v. Louis Schultz, App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Breach of promise—Damages.
    In an action for breach, of promise, where it appears that the parties became acquainted four months before the time set for the wedding, and there is no evidence tending to show malice, brutality or other wickedness in the making or breaking of the promise; and where it appeared that after the breach defendant proposed an unlawful alliance, but plaintiff knew during the courtship that he sustained a similar relation to another person, a verdict for $35,000, being one-sixth of defendant’s fortune, is plainly excessive.
    Appeal from judgment in favor of plaintiff Action for breach of promise of marriage.

      George W. Gibbons (Isaac L. Egbert, Jno. C. Sheehan and Edward Browne, of counsel), for resp’t; Campbell & Murphy (David Leventritt and George H. Yeaman, of counsel), for app’lt.
   Ehrlich, Ch. J.

patient examination of the record has satisfied the conscience of the court that the appeal should prevail ; and to avoid misapprehension we place our decision distinctly upon the ground that a review of the facts inspires the belief that the interests of justice require the remanding of the cause to another jury.

In this, and all like cases, the jury is the primary, and must be the final arbiter of damages; but to us the power is intrusted, and upon us is enjoined the duty of reviewing verdicts which are challenged by appeal; we must proceed with deliberate caution in the interests of justice; but we should act with resolute vigor when convinced that the verdict (whether plainly excessive or clearly inadequate) must have been illegally influenced, and we are so convinced in the case at bar.

Assuming, as we are bound to, the substantial correctness of plaintiff’s testimony, early in February, 1891, she first me$ defendant as a customer in her father’s cigar store, she being then about thirty-one years of age and acting occasionally as a clerk therein ; seven weeks later a marriage engagement had been entered into with defendant and the wedding-day fixed for the twenty first day of June following.

Defendant declined or failed to keep the engagement and this action promptly followed, resulting in a verdict against him for $25,000, this sum being about one-sixth of his admitted fortune.

The brief length of the acquaintance before the engagement, the short duration- of the engagement itself, and the absence of all evidence tending to show malice, brutality or other wickedness of defendant in the making or breaking of the contract or during its existence, sufficiently negative the legal propriety of the verdict rendered.

The only testimony in the record that would seem to justify punitive damages is that of plaintiff, to the effect that after defendant had refused to consummate the marriage engagement, he proposed an unlawful alliance with her; but since her knowledge that during the courtship he was sustaining a like relation to another person did not shake her confidence in him, nor diminish her respect or love for him or her desire to marry him, it is inconceivable that the indecent proposal alleged should have wounded her sensibilities to an extent that would, justify the verdict; nor, standing alone, would this evidence be sufficient to support a finding that defendant never intended to marry plaintiff, but deliberately proposed to deceive her.

A new trial being necessary, it would be idle to review in detail the various rulings questioned by appellant’s exceptions.

But a brief statement of our views as to damages in actions of this nature will cover many of these rulings and may guide any future trial of this, or other similar actions.

Whenever it is proved that a defendant has wrongfully broken his promise to marry plaintiff without fault on her part, the law requires and the jury must award a recovery of damages.

These damages should include:

(a.) All expenses justly incurred upon faith of the violated contract and by reason thereof and all pecuniary loss directly caused thereby.

(5.) A sum sufficient in the discretion of the jury, calmly and judicially exercised, to vindicate plaintiff’s character.

(c.) In case defendant is shown to have acted maliciously, unfeelingly or with evil or dishonest intention, a further award of damages must be made sufficient to be a punishment to defendant and a warning to others, and thus a safeguard to society.

The element of damage first mentioned is usually trilling in amount; in the case at bar, a few hundred dollars is mentioned as its limit

The jury must not be allowed to estimate the supposed money value to plaintiff of the marriage contract.

The relation which an engagement contemplates lies at the foundation of social order; the obligations it imposes and the rights it assures are mutual and reciprocal; it holds forth the promise of benefits and blessings which can never be tested by a money standard; therefore it is not to be tolerated that a jury should ever be allowed to speculate upon the net money value to a plaintiff of a violated marriage agreement; beyond the immediate pecuniary loss, we think that all other damage to which plaintiff herself is entitled may be referred to her proper vindication in view of all the facts and circumstances attending the contract and the violation thereof on defendant’s part.

It is true that the authorities declare that plaintiff should have some indemnity or compensation for the disappointment of her expectations, her wounded feelings, her mortification and the harm done to her wordly prospects; but we think the meaning of these expressions is fully satisfied when the jury shall be ah lowed, under proper instructions, to take them into consideration in estimating and fixing a sum which shall properly express the vindication to which she is deemed entitled.

It must not be understood that disappointed hopes and mental suffering shall have no 'weight in fixing the damages, but in no just sense can there be compensation for an injured name or a wounded spirit. The law abhors any attempted traffic in character or in suffering, and no conceivable standard of their money value has ever been set up. o

But as to this element of damage, in fairness it must be said that whenever a man unjustly spurns the hand of a woman which he had won in promised marriage, by the act itself he makes a. thrust at her character; in the eyes of her relatives and acquaintances she is in a measure dishonored, even though he had been guilty of no open slander.

To make a proper award of damages, the jury should scan and weigh the words and acts, and thereby ascertain the leading-motives of both parties; it may consider their social standing, family relations, worldly fortunes, extent and duration of intimacy, length of courtship and the degree or lack of culture, refinement and delicate sensibility possessed by each, and the manifestation of the same in their conduct towards and intercourse-with each other.

If a plaintiff enters into a marriage engagement from mercenary motives only, she may still recover if she intended and was willing to carry out the agreement; but in such event the damage should not exceed the actual pecuniary loss or outlay, since disappointed love of defendant’s money furnishes no ground of legal redress, and she could not justly complain that defendant’s conception of the contract, or his standard of duty, was not higher than her own.

Whatever harm to plaintiff’s prospects in life has been caused by the non-fulfillment of the contract can only be estimated and remedied by courts and juries by way of vindication of her character in view of all the attendant circumstances.

The same is true as to her wounded feelings and mental suffering ; these when properly established to the satisfaction of the jury fairly indicate serious injury to plaintiff’s good name, for they show the plaintiff herself highly valued it.

Vindictive damages should not be awarded upon proof that is doubtful or unconvincing, and only upon evidence of malicious or unfeeling conduct or evil intention on the part of the defendant.

It is true that marriage contracts are favorites of the law; but this alone will not justify an award of punitive damages.

In reaching their conclusion, the jury may take into consideration plaintiff’s previous social standing and pecuniary circumstances, but not with a view of carving out of defendant’s estate & sum sufficient either to improve or maintain such condition ; they should consider these matters with reference to their bearing upon the injury which plaintiff has suffered and the sum which may properly be awarded by way of fair reparation and just vindication.

The amount of defendant’s worldly resources may be considered ; it is plain that a .verdict of a few hundred dollars against one.defendant might sufficiently vindicate a plaintiff and also> adequately punish the wrong-doer, while in another case a like a verdict would amount practically to no redress whatever, and as a supposed penalty would excite derision.

It is self-evident that the jury’s task in a case like the present is difficult and delicate. Specific instructions covering every possible question that may arise cannot well be formulated; the objects to be sought should be carefully set forth, but the particular weight to be given to each item or element of damage alleged, must be left to the sound discretion and judicial temper of the jury itself; the views herein expressed it is believed are as precise as the nature of the questions permit and may sufficiently cover the principal matters likely to arise upon another trial, which is hereby ordered, with costs to appellant to abide the event.

Newburger and McCarthy, JJ., concur.


author: Van Wyck, J.

text:
    Hyman Greenspau, Resp’t, v. The American Star Order, App’lt.

      (City Court of New York, General Term,

      Filed December 7, 1892.)

    1. Benefit societies—Death benefits—Pkoof of by-laws.

      It is not error to allow the plaintiff in an action against a benefit society for death benefits to prove by paroi the by-laws of the defendant, where the answer specifically sets forth the requirements of the constitution and by-laws, and the amount of the benefits is admitted.
    $. Same—Estoppel.
    The defendant is estopped from questioning a certificate of good health of plaintiff's wife by the fact that plaintiff paid dues as a single man prior to his marriage, and larger dues as a married man after that date to his wife’s death and that defendant accepted and receipted for such larger dues.
    Appeal by defendant from judgment entered against it on verdict returned by jury.

      A. H. Sarasohn, for resp’t; A. P. Wagener, for app’lt.
   Van Wyck, J.

This action is by a member of the defendant, .a benefit society, to recover a benefit of five hundred dollars due him upon the death of his wife. When plaintiff first became a member of the defendant he was single, but afterwards married. The defendant’s contention on this appeal is, that plaintiff was allowed, against defendant’s objection and exception, to prove by paroi the provisions of the by-laws as regards death benefits to such member on the death of his wife, without first laying the proper basis for the introduction of secondary evidence as to the ■same. But this cannot avail it, for it was not necessary to prove the by-laws at all in view of the allegations of the seventh paragraph of the answer, which specifically set forth the requirements of the constitution, rules and by-laws of defendant as regards the duties and rights of such a member, except as to the amount of the benefit due such member, and at folio 59 of the case defendant admitted that such member was entitled to $500 upon demise of his wife.

The plaintiff has proved by competent evidence that he has complied with all the requirements of the constitution and bylaws as set forth in this paragraph of the answer. The plaintiff alleged that he presented to defendant on July 5, 1890, the physician’s certificate of the good health of his wife, and after admission by defendant of due notice to produce this certificate and refusal to so produce, he was allowed to prove its contents by paroi, and the question and answer at folio 80 shows that it stated that “ she was well and everything right,” and this was sufficient,, and moreover, it would seem that the defendant is estopped from questioning this certificate, for it was duly proven by the financial secretary of defendant at folio 55 that plaintiff had paid dues as a single member before his marriage in 1890, and afterwards as a married man, and so continued to pay until his wife died in February, 1891; that these dues as a married man were greater than as a single man, and that the same were accepted by the defendant and receipted for by it. This judgment should be affirmed,, with costs.

McG-own and McCarthy, JJ., concur.


author: Tan Wyck, J.

text:
    Jacob London, Resp’t., v. Daniel Cunningham, App’lt.

      (City Court of New York, General Term,

      Filed December 7, 1892.)

    1. NEGKDiaENCB—HUSBAND AND WlEE.
    In an action by a husband for injuries to his wife, he cannot recover for loss of her services in managing and conducting his business, as the wife would be entitled, in an action by her for the same injuries, to recover for loss of her earning power, whether the services were rendered to her husband or another.
    3. Same.
    During his wife’s illness Tdaintiff employed a man to do her work. The-court charged that plaintiff was entitled to recover for the loss of his wife’s services, together with the amount he paid to this hired man. Meld, error.
    Appeal by defendant from order denying new trial and from j'udgment entered against him on verdict rendered by a jury in an action by a husband to recover for damages sustained by him by reason of personal injuries inflicted on his wife through the negligence of the defendant.
    Murphy, Lloyd & Boyd, for resp’t; Stewart & Macklin, for app’lt
   Tan Wyck, J.

This action was brought by a husband to recover damages sustained by him by reason of the personal injuries to his wife through the negligence of the defendant, and which was commenced in January, 1890, upon a cause of action arising in August, 1889; hence this case is not governed by chapter 51 of Laws of 1890, which went in effect on March 18, 1890, the first section of which provided that, “ from and after the date of the passage of this act a married woman shall have a right of action for injuries to her property, injuries to her person or character, and injuries arising out of the marital relations in all cases in which an unmarried woman or a husband now has a right of action by law,” nor is it controlled by the law of 1892, which was the final step taken to place her upon the same footing with men as regards her contracts. The complaint, after setting forth allegations as to the injury of the wife and the cause thereof, alleges: “ That by reason of the premises, plaintiff (the husband) suffered great damage and was pat to great expense by reason of the loss of the services of his said wife, who managed and conducted plaintiff’s business of keeping a restaurant, and in procuring necessary medical attendance and medicines and otherwise, to plaintiff’s damage five hundred dollars.” The husband under the complaint could certainly recover for the loss of his wife’s domestic services and the expenses necessarily incurred by reason of the injuries to her (to this extent the cause of action would survive to his administrator), and the allegations of the complaint may be broad enough to permit of his recovering for the loss of his wife’s society and the comforts of that society.

At the trial, the husband was permitted, over the objection and exception of the defendant, to prove the truth of this allegation as regards the services of the wife rendered in the management and conducting of his business of keeping a restaurant, and that he had employed a man to do this work, in the restaurant, which his wife.had performed before the accident, and had paid him therefor ten dollars per week for six weeks and boarded him at a cost of four dollars per week. A husband cannot recover general damages occasioned by an injury to his wife, for those damages belong to the wife, the person injured, and for such she can bring an action, and the appellant’s brief states that this wife bad already brought such an action on her own behalf against this defendant, but the record does not so show ; however, this is of no consequence, for she has the undoubted right to do so, but at common law she could not include in such action damages for loss of her services of any nature whatever, for all of her time and services of every nature, and how and wherever performed, belonged to her husband, and he alone could sue for loss of the same, but this was changed in this state by the laws of 1860. And the rule now prevailing here as to the measure of her damages as regards loss of her services is, that she can recover in her action for the loss of her earning power, over and above her domestic services, which still belong to her husband, but which, of course, are not limited to those of a domestic servant, but are such as are usually performed by the wife in the household of her husband, having regard to the surroundings of their home and to their condition m life, and such services would include attendance upon visiting friends as well as on boarders in the household; and to all of such services the husband is entitled, and in his action can recover for the loss of all of her services which would appertain to his and her home, be it in the country on a farm, or in the city in a palatial residence or some small apartment in a crowded tenement house. And it can be safely said, that since the act of 1860, the courts of this state have not laid down any broader rule as to the measure of a husband’s recovery for the loss of his wife’s services, and it may be that this measure will be narrowed under the acts of 1890 and 1892. _ ■

_ Of course the rule under discussion only applies to the loss of the wife’s services, for the husband can still recover, in his action, for the loss of his wife’s society and the comforts of that society, and this for the future as well as the past if occasioned by the inj uries to the wife; and in the same action he can recover for the necessary expenses incurred by him by reason of such injuries to her. As both the husband and his wife have separate actions for loss of her services, occasioned by the same injuries to the wife, he, for the domestic services of the household, she, for loss of her earning power over and above such services, it follows that where the one can recover for the loss of the wife’s services the other cannot. If the wife had been “managing and conducting the business of keeping a restaurant ” for another than her husband, she alone could sue for unpaid wages, and if prevented from rendering such services by reason of her injuries, she alone can sue for such loss of services. And since the act of 1860 it has been held that she is entitled to her earnings for services, no matter to whom rendered, including her husband, if they are not such as he is entitled to without remuneration, to wit, domestic household services, and this right to so contract with him and others, as to services, is not affected by the law of 1884; and when this wife’s action against this defendant is reached for trial, she can go on the witness stand and testify that at the time these injuries were sustained by her she was managing and conducting her husband’s business of keeping a restaurant, for which she was paid by him ten dollars per week, and that her injuries prevented her from performing this work, or work of like character, and earning this amount for the period of six weeks, and the court, if properly requested, must charge the jury that she is entitled to recover this sixty dollars for the loss of her earning power, over and above her domestic services, to which alone the husband would be entitled, and if this is so, and the husband is allowed to recover in this action this sixty dollars, the defendant will be compelled to again pay this sum in the wife’s action.

On the trial of this action the defendant duly excepted to that portion of the charge to the jury which said: “ So it seems to me that you are confined, in case you believe the plaintiff is entitled to a verdict, to compensating him for the loss of his wife’s services, whatever you may believe those services to be worth, together with the amount of money he paid to this hired man.” This hired man was the one to whom plaintiff testified he had paid ten dollars per week for six weeks ($60) to perform in his wife’s stead the services in the restaurant which she had been prevented from rendering on account of her inj uries. From the verdict under this charge it would seem that the jury had found that the value of the services of the wife, for the loss of which for six weeks the husband claimed damages, were worth ten dollars per week, for this is what he paid the man who took her place and performed in her stead and that they had added to this $60 “the amount of money he paid to this hired man.” The record shows that the verdict was against the weight of evidence, and the judgment and order appealed from are reversed, with costs to appellant to abide the event.

McGown and McCarthy, JJ., concur.


text:
    Philip Stein, Resp’t, v. Isaac S. Steindler, App’lt.

      (City Court of New York, General Term,

      Filed December 7, 1892.)

    Bills and notes—Discharge of endorser by extension of time.
    An agreement was entered into between plaintiff and one M., for whom defendant was endorser, which stated that the parties had settled and ad- . justed all matt-rs between them except certain notes mentioned in a schedule, of which the note in question was one, and that in addition thereto M. was indebted in an additional amount for which she gave notes, to be paid in instalments and renewal notes given; and plaintiff agreed that no action should be taken by him on the notes mentioned in the schedule until the other notes had been paid, but that in case of a default in such payments he should be at liberty to prosecute the notes mentioned in the schedule. Held, that this was such an extension of the time of payment, without the endorser’s consent, as to discharge the endorser.
    Appeal by defendant from judgment entered against him on verdict directed by the court and from order denying new trial. Ashbel P. Fitch, for resp’t; Rosenberg & Jacobson, for app’lt.
   Van Wyck, J.

This action is against the defendant as payee endorser of a promissory note for $740, made by one Regina Mayer, on December 3, 1889, at four months, and due on April 6, and upon which $600 had been paid prior to May 9, 1890, leaving the balance of $140 sued for herein. It appears that on September 10, 1890, an agreement for valuable considerations and under seal was made between said Regina Mayer as party of the first part, and this plaintiff, who was then the holder of said note, as party of the second part,. and which recited, among other things, that “ Whereas the parties hereto have this day adjusted and settled all matters in controversy between them except certain notes mentioned and described in the schedule annexed,marked Schedule A, which last mentioned notes are still in force, and it appears that, in addition to the notes mentioned in said schedule, the party of the first part is indebted to the party of the second part in the sum of $2,140.15,” and that she should pay him sixty dollars in cash and give her note for $2,080.15 payable on December 28, 1890, with interest, and she further agreed to pay him, notwithstanding the terms of the note for $2,080.15, three instalments of $135 each on account thereof, on October 23, November 23, and December 23, 1890; and he in turn agreed to accept a renewal note for the balance after such payments, but in case of default in any of such payments, the original note was to become due five days thereafter, and there were similar covenants as to third and fourth renewal notes, and it contained the following covenant: “And it is further agreed by and between the parties hereto, that no action shall be taken by the party of the second part on the notes mentioned in schedule ‘A' until the party of the first part has fully paid off and discharged the notes hereinbefore specified, except that in case the party of the first part shall make default in any of said payments, then in that case the party of the second part shall be at liberty to prosecute the notes mentioned, in schedule ‘A.’ ”

There were four notes mentioned in schedule “A,” arid one of them was the note made by Eegina Mayer to the order of and indorsed by Isaac S. Steindler, this defendant, and then held by Philip Stein, the plaintiff, and now sued upon by him in this action, and he covenanted in that agreement of September 10, 1890, with Mrs. Mayer, the maker, that “ ISTo action shall be taken by him ” on the note until she defaults in certain payments, the first of which was to be made on October 23, following, and that he was only “ at liberty to prosecute ” this note after such default, and hence this defendant, the payee and endorser of that note, contends that the payment of the same was extended from September 10 to December 23, the day upon which the third payment was to be made by Mrs. Mayer under that agreement, and it was admitted that she had made the first two payments therein provided for, but whether these two payments were made or admitted or not, she could not be in default until the first payment became due on October 23. This covenant by the holder of a note “ that no action shall be taken ” by him on the note and “ that he shall not be at liberty to prosecute ” the same until the maker thereof shall make default in a certain specified payment, which by the terms of the agreement containing this covenant is made payable on a day subsequent thereto and thereby fixed, is undoubtedly a covenant to extend the payment of such note until such day. A covenant not to sue upon a note or other debt for a fixed period is an extension of payment of same for such period. The holder of a note who took from the maker a warrant of attorney to confess judgment for the amount of the note, and at the same time stipulated not to issue execution if the maker paid a fixed sum in sixty days, and continued to pay a like sum every sixty days thereafter until the judgment was satisfied, thereby released the surety on the note. Bower v. Tiermann, 3 Denio, 378. The liability of an endorser in an action by a subsequent endorser or holder who has given the maker an extension as to payment of the note, is to be determined by the rules governing the relation of principal and surety.

And the rule as to sureties is that if the creditor has bound himself by any transaction with the principal debtor which prevents the surety, upon payment, from immediately prosecuting the principal debtor, the former is discharged. Any valid or binding agreement whereby the surety may be deprived of or delayed in the assertion of his equitable claim to pay the debt and to become subrogated to the rights and remedies of the creditor, if made without the assent of the surety, will discharge him. An agreement for an extension, but for a day, of a secured debt, made without the consent of the surety, upon a valid consideration, which precludes the creditor meanwhile from enforcing the debt against the principal, thereby changing the position of the surety, will release the surety. And every extension to the principal debtor of payment of the debt thereby changes the position of the surety, and will release him unless the remedies of the creditor against the surety are expressly reserved, and in consequence his resulting rights also reserved, but the stipulation to reserve the rights of the creditor against the surety must be plainly seen from the agreement between the principal debtor and the creditor, and if nothing is mentioned about the reservation of these rights, it will not be implied. However, the appellant contends that plaintiff’s rights as holder of the note as against the defendant endorser were expressly reserved by the recitals m the preamble to the agreement of September 10th ; that they (the holder and the maker) “ have this day adjusted and settled all matters in controversy between them, except ” the four notes made by her, one of which is this note in suit; that these four notes “ are still in force,” and that she is indebted to him, “ in addition to these four notes, in the sum of $2,140.15.” But for this exception, the plaintiff would have lost forever his cause of action on the note, both against her and the endorser, and the effect ’of this exception in the preamble is to save the note from being included in the adjustment and settlement of. all matters in controversy between them, as there was no controversy in reference to it

As the note was then due, had the parties stopped right here, the plaintiff would then have had an immediate right of action thereon against both her and the endorser, and this immediate right would have continued had he not have expressly covenanted in the agreement with her to extend the payment of the note, and even then he could have expressly stipulated to reserve his rights as against the endorser but be did not so stipulate, and such stipulation to reserve his rights as against an endorser cannot, under the law of this state, be implied. The judgment and order appealed from are reversed and new tidal granted with costs to appellant to abide the event. The plaintiff may be able to show on the new trial that the note was given to the defendant as an accommodation, and that he subsequently procured its discount ‘and retained the proceeds thereof, which would make his liability as between him and the maker primary, and hence he could not invoke the regulations as to subrogation and suretyship.

McCarthy, J., concurs.


author: Vah Wyck, J.

text:
    Bernard B. Christ, Resp’t, v. Bradbury C. Chetwood, App’lt

      (City Court of New York, General Term,

      Filed December 7, 1892.)

    1. Attorneys—Limitation—Minors.
    In 1879 defendant collected moneys for plaintiff, who came of age in 1884, but did not learn the fact that such moneys had been collected until 1889! Held, that the statute did not begin to run against a claim for such moneys until the latter date.
    2. Guardians—Power to bind infant.
    A guardian ad litem has no general authority to bind the infant or his estate, but his authority is limited to the action in which he is appointed and to the subject matter thereof.
    Appeal by defendant from judgment entered against him on verdict returned by jury.

      H. G. Loew and F. P. Trautmann, for resp’t; J. G. Ritter and J. R. Furlong, for app'lt.
   Vah Wyck, J.

The plaintiff in 1877, who was then about fourteen years of age, owned, with his sister, then an adult, a bond and mortgage for $5,600, and in that year the same was placed in the hands of defendant, a counsellor-at-law, for the purpose of foreclosure, and he brought such an action, and had a guardian ad litem appointed therein for this plaintiff, and in that action the property was sold and bought in for the benefit of this plaintiff and his sister. At that time there was due upon the property for taxes $1,274 and $368 costs, with $122 disbursements of foreclosure, making $1,764. In 1879, the property was again sold for $5,600, and this sum was collected by defendant as attorney for this plaintiff and his sister. After deducting the $1,764 from the $5,600 so collected, the defendant then had in his hands $3,836. It is conceded that before this action he had paid out for plaintiff $520, and to plaintiff’s sister $1,040, and that he had charged her with the further sum of $500, the same being one-half of a $1,000, which he testified in this action wras a reasonable fee for conducting the foreclosure proceedings as attorney for both. Allowing this as a reasonable fee, she has received $1,540, while her half of the $3,836 would be $1,918, and hence she would be entitled to the further sum of $378; however, the court below properly ruled that her claim, if any, was barred by the statute of limitation, and that this plaintiff, who sued herein for himself and as assignee of all her right, title and interest, could recover nothing as assignee of her claim, but instructed the jury that plaintiff could recover his half, to wit, $1,918, less, of course, the $520 which had been paid, and less one-half of what they should find was a reasonable fee for conducting the foreclosure proceedings, and it would seem that they had found with defendant’s contention as to the $1,000 fee, for they returned a verdict for plaintiff of only $930.

This verdict is not against the weight of evidence, and, moreover, there is no certificate in the case that it contains all the evidence. The main contention of defendant at the trial and on the appeal is, that plaintiff's claim, too, was barred by the statute of limitation, as defendant had received this money in 1879, while this action was not commenced against him until May, 1891; but it must be remembered that plaintiff, as the proof shows, became twenty-one years of age on April 29, 1884, and if the statute of six years limitation began to then run, still his claim would be barred, for this action was not commenced until seven years thereafter. However, plaintiff testifies that he first discovered and learnt that defendant had any moneys in his hands for him in March or April, 1889, and that before that time he had no knowledge or any information that defendant had any money belonging to him, "and defendant admits that he had never seen plaintiff from the time that he was a boy in 1877 until he met him in March or April, 1889. This the trial judge treated as a disputed question of fact and, as regards the same, instructed the jury that before the plaintiff could recover at all, they must find that the first knowledge he acquired of there being any indebtedness accruing to him from or on the part of the defendant was in 1889, when those matters came up before Mr. Crane, as testified to, and that they were to say from the testimony adduced, whether the plaintiff had or had not obtained any knowledge until that time, and that if he did not, he was entitled to assert his rights there, otherwise not. These instructions are justified by the first subdivision of § 410 of the Code of Civil Procedure, which says: “ Where the right grows out of the receipt or detention of money or property, by an agent, trustee, attorney, or other person acting in a fiduciary capacity, the time must be computed from the time when the person having the right to make the demand, has actual knowledge of the facts upon which that right depends.” This section was new in 1877, and hence the apparent conflict of some earlier decisions, but as to attorneys at law this provision merely lays down the common law rule, that until a client is notified by his attorney of the collection of money for him, the statute of limitation does not begin to run in favor of the attorney, unless the client has been otherwise informed of the fact. Bronson v. Munson., 29 Hun, 54.

Another contention of defendant is that the court erred in excluding his counterclaim as to services rendered by him in 1877 other than his services rendered in the foreclosure suit and his disbursements therein; but as to those services the defendant testifies that they were not authorized by plaintiff, who was then about fourteen years old, nor by his general guardian, but by his guardian ad litem in the foreclosure suit, who was another than his general guardian, and those services were rendered by defendant in matters disconnected from the foreclosure suit. A guardian ad litem has no general authority to bind the infant or his estate, but the authority of such a guardian is limited to the action in which he is appointed and to the subject matter thereof, and even here his authority is very limited indeed, for he is authorized to prosecute, not to settle; he can settle only by authority of the court; his admissions will not bind the infant party; he can receive no compensation except by order of the court, and a payment to him of money in the action will not bind the infant or his general guardian, unless the person so paying prove that he has given the security required by law, except it is otherwise specially prescribed by law. The cause of action upon which this counterclaim is founded arose, if at all, fourteen years before this action, and the plaintiff attained his majority about seven years before it was commenced, and so it is concluded that the court below ruled rightly as to this counterclaim.

The judgment and order appealed from are affirmed, with costs.

McGown, J., concurs.


text:
    George T. Meislahn, Resp’t, v. Adam J. Englehard et al. App’lts.

      (City Court of New York, General Term,

      Filed December 7, 1892.)

    Bbokb.es—Commissions.
    Evidence sufficient to carry action for broker’s commissions to the jury.

      Appeal by defendants from judgment entered against them on verdict, rendered by jury, and from order denying new trial.

      Malcolm Campbell, for resp’t; Rose & Putzel, for app’lts.
   Van Wyck, J.

There are no exceptions by appellants except to the denial of motion to nonsuit at close of plaintiff’s case, and to dismiss on the merits after defendants had rested, and the case does not contain a certificate that it contains all the evidence, and so it follows that if the evidence and the legal inferences therefrom are sufficient to carry the case to the jury, the judgment and order appealed from must be affirmed. The action is to recover a brokerage of five per cent for causing the sale of defendant’s saloon for $15,750. It was conceded that plaintiff was entitled to this commission of $787.50, if to anything, but liability by defendants was denied. The evidence for plaintiff shows that he took the purchaser to the saloon and introduced him to one partner, and he informed him that he had brought him to buy the saloon, and the purchaser then offered first $10,000 and afterwards $15,000, this offer to stand until Monday night; that this partner refused to accept until he had consulted his co-partner, and bade the purchaser and plaintiff return; that at the appointed time and place both partners, the purchaser and plaintiff met, and the negotiations were renewed by plaintiff, who said the purchaser would pay $15,500, but this the purchaser refused to pay at first, but finally consented, and plaintiff testified: “ Then I had a conversation with defendant Englehard, and he said to me ‘ You see Quirk (the purchaser) again, and see if he won’t go $250; tell him I will split the difference with him.’ So I went out and saw Mr. Quirk, and told him what Mr. Englehard said. Mr. Quirk said $250 would not stand in the way of his getting the saloon. Then I saw Mr. Englehard and told him what Mr. Quirk said, and I asked him what he thought of me as a broker, and he said I was the best go-between he ever saw.’’ And Mr. Englehard, on cross-examination, was asked:

Q. “ Mr. Meislahn didn’t propose to buy this store as principal? ”

A. “ He said the first night‘ my client,’ referring to Mr. Quirk.” The evidence as shown by the record was ample to carry the case to the jury, and the judgment and order appealed from must be affirmed, with costs.

McCarthy, J., concurs.


author: Mayham, P. J.

text:
    Emma Moussette, Resp’t, v. Charles G. Bacon, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Replevin—Bill of sale.
    In an action of replevin it was claimed by defendant that plaintiff had no title, as prior to the giving of the bill of sale to her her vendor had given a bill of sale of the same property to his wife ; but it appeared that he retained possession of the property and that such bill of sale was not filed or delivered to the wife. Held, that the jury were authorized to find that the wife under said alleged bill of sale had no title or interest or right of possession as against plaintiff.

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

      Lee S. Anibal, for app’lt; Frank L. Anderson (A. J. Mills, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff claims title to the property in question under a sale from William H. Rhodes and that she was entitled to the possession, and seeks to recover the possession of the same or its value of the defendant, who, as sheriff, seized and held the same under and by virtue of an execution on a judgment in favor of one Resseguie against Rhodes, plaintiff’s vendor.

The evidence on the part of the plaintiff tended to show that Rhodes was indebted to the plaintiff in the sum of $1,400 for borrowed money, for which she held his notes, and also for $300 which she assumed and agreed to pay to settle a judgment held against him by his brother.

That at the time of the alleged sale to plaintiff of this property Rhodes, to liquidate this indebtedness, assigned to the plaintiff a mortgage of $1,000 and turned out the property in question at the price of $462, and an insurance claim for loss on a policy then in dispu te, amounting in all to about $1,800, the plaintiff paying Rhodes at the time in cash the balance of $100 that was coming to him on the deal, and the plaintiff thereupon delivered up the notes and took possession of the property.

These alleged facts were controverted by the defendant by evidence tending to show that there was no actual delivery of the property and continued change of possession of the same. Also, by the other fact that this alleged sale was on the eve of the recovery of the Resseguie judgment against Rhodes, from which the defendant insisted that the alleged transfer was fraudulent and did not pass to the plaintiff a valid title as against the judgment and execution.creditors.

This disputed question of. fact was, however, as we think, properly submitted to the jury by the trial judge, and they having found for the plaintiff upon evidence sufficient, if believed by them, to support the verdict, we cannot interfere with their conclusion upon that part of the case.

The defendant also insists that the plaintiff at the time of the alleged sale to her got no title to this property, for the reason that before that time Rhodes had sold by bill of sale to his wife the same identical property.

But the plaintiff insists that, as against her, that bill of sale was wholly inoperative, as the property remained in the possession of Rhodes, and the bill of sale was not filed as a chattel mortgage, and was never, in fact, delivered to Rhodes’ wife.

This disputed question of fact was also submitted to the jury under, we think, proper instructions from the court, and found by them in favor of the plaintiff. It is. true that under § 1723 of the Code of Civil Procedure the defendant in an action for the recovery of a chattel may defend on the ground that a third person was entitled to it without connecting himself with the latter’s title. Yet, we think that in this case the jury were authorized by the evidence to find that Mrs. Rhodes, under her alleged bill of sale had no title or interest, or right of possession as against this plaintiff, and that we cannot disturb such finding.

Several objections and exceptions were taken to the rulings of the judge in receiving and rejecting evidence offered, all of which we have examined, and see no error in that regard committed by the court.

Mor do we discover any errors in his charge, or in his refusals to charge as requested by the defendant’s counsel for which the judgment should be reversed.

Judgment affirmed, with costs.

Herrick, J., concurs; Putnam, J., not acting.


text:
    Matilda A. Powers, Resp’t, v. The Village of Champlain, App’lt.

      (Supreme Court, General Term, Third Department,

      Wiled November 22, 1892.)

    Municipal corporations—Negligence.
    Proof that defendant did not remove the snow from its sidewalks; that ice had formed thereon; that its street superintendent had removed a stone and relaid it so as to leave a hole, and that plaintiff slipped on the ice and into said hole, is sufficient to uphold a verdict for the plaintiff on the question of defendant’s negligence.
    Appeal from judgment in favor of plaintiff, entered upon a verdict. j
    This action was brought to recover damages for injuries re-| suiting from a fall upon a sidewalk of one of defendant’s streets, which defendant had negligently permitted to become and remain dangerous on account of an accumulation of ice thereon, and on account of a hole caused by the removal by defendant’s street commissioner of one of the stones forming part of the sidewalk.
    The following facts are established by the evidence:
    The defendant, the village of Champlain, is a municipal corporation incorporated under the Laws of 1870, chapter 291. Church street, where the accident happened, is one of the principal streets in the village, and more people pass over it than over any other street in the village except one; it runs north and south. Center street runs east and west, and intersects Church street at the top of the hill known as “ Brisbin’s Hill.”
    The walk on the east side of Church street is plank, except where it crosses Center street, and there it is of flat stones. On the north side of Center street, between the roadway and the sidewalk, is a gutter running under the cross-walk on Church street.
    When the cross-walk was built the summer before the accident, a large stone forty-nine inches long and forty-four inches wide was placed over the gutter, and fitted right in the corner formed by the intersection of the cross-walk on Church street and the sidewalk on Center street, so that the upper surfaces of the stone and the walk were on the same level, and the stone was a part of the walk, and traveled upon as such.

      The gutter was from about thirteen to nine inches deep at this place.
    The walk on the west side of Church street, opposite the place of the accident, was impassable by reason of the snow banks that were there, and which had not been shoveled out during the whole winter, so that the travel was all upon the walk on the east side. Snow had fallen and accumulated during the winter, and from the south end of the cross-walk down to the north end there extended a ridge of ice about a foot to eighteen inches wide on the top, and slanting down each side, caused by people walking over the snow, and thus packing it down as it thawed and froze during the winter.
    The ridge of ice extended down entirely across the stone on which plaintiff fell, and was five or six inches thick at the top, and sloped to the edges of the stone.
    About twelve or fifteen days before the accident, Oliver Robare, Sr., the street commissioner of defendant, took up the stone at the intersection of the walks.
    Instead of replacing the stone in its proper position, he left it over a foot east from the stone on which plaintiff fell, thus forming a dangerous hole fourteen inches wide, forty-nine inches long, and nine inches deep, without any guard, covering or protection of any kind, between the two stones, and the sidewalk and ridge of ice and stone were suffered by the defendant to remain in that same condition up to the time of the accident
    Two of the trustees and the street commissioner lived on Church street within three blocks of the place of the accident.
    The plaintiff lived with her uncle, Edmund Lamountain, on the west side of Church street about 200 feet south of the place of the accident.
    On the 26th day of February, 1891, about eleven o’clock'in the forenoon, the plaintiff on her way to school crossed Church street from her home to the sidewalk on the east side and walked down in the middle of the walk at an ordinary gait.
    When upon the last stone of the crosswalk her right foot slipped from the ridge of ice into the hole and she fell and sustained the injuries complained of.

      Royal Corbin, for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t
   Mayham, P. J.

This is an appeal from a judgment rendered upon the verdict of a jury, and from an order denying a motion for a new trial on the minutes of the trial judge at the circuit

The action was to recover for alleged injury to the plaintiff, claimed to have been caused by the negligence of the defendant in suffering its side and crosswalks to be out of repair and unsafe, by reason of which the plaintiff while lawfully passing over said sidewalk fell and was injured.

The defense was a denial of defendant’s negligence and an allegation of contributory negligence by the plaintiff.

The jury rendered a verdict for the plaintiff.

We think the evidence sufficient to uphold the verdict of the jury upon the question of the defendant’s negligence.

And as the question of the contributory negligence of the plaintiff was in this case one for the jury, their finding should not be disturbed by this court on appeal.

The rule that all legal and legitimate presumptions from the evidence are to be indulged in to uphold the verdict, applies to this case. Schneider v. Second Ave. R. R. Co., 39 St Rep., 370; Hart v. Hudson R. B. Co., 80 N. Y., 622.

We see no error in the rulings of the judge or in his charge for which the judgment can be reversed.

Judgment affirmed, with costs.

Putnam and Herrick, JJ., concur.


author: Herrick, J.

text:
    Fanny Leopold, Resp’t, v. The President, etc., of The Delaware & Hudson Canal Co., Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)
    1. Negligence—Nonsuit.
    Where there is evidence of defendant’s negligence and of plaintiff’s freedom from negligence, a denial of a motion for non-suit is proper.
    2. Same—Conflicting evidence.
    The court will not disturb the determination of a jury on a controverted question of fact, although it might have come to a different conclusion if acting in the place of the jury.
    Appeal from judgment in favor of plaintiff, entered upon a verdict, and from an order denying motion for a new trial on the minutes.
    Action for injuries alleged to have been received by plaintiff through the negligent act of defendant’s gateman in letting the gate fall upon a horse which was driven by a friend with whom she was riding, which threw the driver out and frightened the horse so that he overturned the carriage.

      Edwin Young, for app’lt; J. W. Houghton, for resp’t
   Herrick, J.

It seems to me that the questions in this case are ones of fact; the principles of law applicable to such cases are pretty well settled, and do not appear to have been violated upon the trial. The plaintiff submitted evidence tending to prove, and from which the jury might infer, that she was free from contributory negligence, also evidence tending to prove negligence on the part of the defendant, so that there was no error in denying the motion for a non-suit

The evidence on the part of the defendant contradicted in many respects that offered on the part of the plaintiff, thus raising issues of fact which it was peculiarly the province of the jury to determine, and with that determination I can see no sufficient reason to interfere although the court might have come to a different conclusion if acting in the place of the jury; the judgment should be affirmed, with costs.

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


text:
    Moses T. Sayles, Appl’t, v. Tristram C. Best et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

      1. Will—Bequest of proceeds of sale of real estate—Judgment.
    One B., by his will, gave a life estate in certain land to his widow, and the balance to his executors on an attempted trtist, with power to his executors to sell the same and divide the proceeds among his legal heirs. Held, that a judgment recovered against one of the heirs was not a lien on his interest therein, as he took no interest in the real estate as such, but only in the proceeds as personal property ; or, if an interest vested, it was subject to the power of sale and was divested by its execution.
    2. Supplementary proceedings—Receiver.
    An order appointing a receiver in supplementary proceedings without personal service of notice on the judgment debtor is void.
    Appeal from judgment dismissing the complaint on the merits. Action against the defendants, as executors of the will of Peter K. Best, to recover a portion of the money received by them upon the sale of the real estate of the testator by virtue of a power of sale contained in the will.
    Plaintiff claims as judgment creditor of Alfred E. Best, one of the lieirs-at-law of Peter K. Best, and also as purchaser at a sheriff’s sale of Alfred’s interest, and also as purchaser of the interest of Alfred E. Best from a receiver appointed in proceedings supplementary to execution.
    The following is the will of Peter K. Best:

      First. I give and bequeath to my wife, Jane E. Best, my homestead farm, where I now reside, during the term of her natural life, to be accepted and received by her in lieu of all,her dower, and after her decease I hereby give my executors hereinafter named said farm in trust, with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms, and in such manner, as to them shall seem meet and to the best interest of my estate, and that the proceeds therefrom shall be equally divided, and given to my legal heirs, share and share alike.

      Secondly. The farm upon which my son Jacob now resides I hereby order, direct and give power to my executors to rent from time to time, or from year to year, and keep the same in proper repair, and the surplus that may accrue from the said rent may be used as my executors think best, until my youngest child who shall live to arrive at the age of twenty-one years, shall arrive at that age. I then give said farm in trust to my executors with power to sell and dispose of the same at public or private sale, at such time or times, and upon such terms and in such manner as to them shall seem meet, and that the proceeds therefrom shall be equally divided, and given to my legal heirs, share and. share alike. Provided, however, that in case my two youngest children, Lydia M. and William M., shall die before the time of sale above provided for, then such power of sale shall be executed immediately after the death of both of said children last mentioned.

      Thirdly. The red house and two lots near the water weir, belonging to me, I order, direct and give my executors the same power to rent, keep in order and dispose of at the same time and in the same manner, and that the proceeds therefrom be divided and given to the same heirs, and in the same manner, as the last above mentioned farm.

      Fourthly. I hereby give to my executors in trust, with power to sell to the railroad company, such land as they require for their own use, at such time and upon such terms as to them shall seem proper and right, and the money arising from such sale may be used as my executors think best.

      Fifthly. I give and bequeath to my wife, Jane B. Best, all my household furniture and all my personal property, of whatever name or nature, subject to the payment of my just debts.

      Lastly. I hereby nominate and appoint my wife, Jane B. Best, my son, Jeremiah L Best, and my brother, Tristram C. Best, to be the executors of this, my last will and testament.

      E. F. Bullard, for app’lt; Charles S. Lester, for resp’ts.
   Herrick, J.

Alfred Best, it seems to me, took no title to the real estate. Whatever interest he had in his father’s estate was as a legatee under his father’s will, and by that he was given no interest in the real estate, only in its proceeds. He could not take any interest in it until it was sold, and then he took it as personal property, It is true probably that within the case of Underwood v. Curtis, 127 N.Y., 523-33, 40 St. Rep. 255, the real property did not actually become converted into personalty until it was sold; but he could not take his portion until it was sold; a portion of it the widow of the testator had the use of during her life time, the balance the executors were to take charge of and receive the rents and profits therefrom. The whole will shows a plain intention on the part of the testator that no part of his real estate should go to his children as such; it is carefully kept out of their possession or control, and specific directions given for the distribution of the proceeds of the sale thereof among them. If Alfred did not take as heir and had no title to the real estate as such, then a judgment against him would not be a lien thereon.

But, if we assume that the title to the real estate vested in the heirs, still that title was subject to the power of sale, and was divested by its execution. 1 R. S., 735; § 107 ; Birdseye Statutes, 2291, § 35; Blanchard v. Blanchard, 4 Hun, 287; Hetzell v. Barber, 6 id., 534 ; Germond v. Jones, 2 Hill, 569.

. Ho personal service in the supplementary proceedings having been made upon Alfred Best, the judgment debtor, the order appointing a receiver was void. Ashley v. Turner, 22 Hun, 226; People ex rel. v. Warner, 51 Hun, 53; 20 St. Rep., 573.

The judgment should be affirmed, with costs.

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


author:
Stover, J.
      Putnam, J.

text:
    Charles J. Webb et al., Appl’ts, v. J. Melvin Thomas et al., Resp’ts. Simon Rawitzer et al., App’lts, v. William T. Pettengill et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    11. Assignment fob cbeditobs—Pbefekencbs.
    An assignment for creditors is not rendered invalid by the fact that the indorser of a note is preferred instead of the holder thereof, although such indorser is one of the assignors. A failing debtor may prefer an indorser or surety.
    2. Same.
    Nor is it avoided because of a mistake in the name of the creditor.
    3. Same—Fobmeb Pabtneb.
    The mere fact that a preferred creditor was formerly a special partner of the assigning firm does not render the preference illegal.
    Appeals from judgments entered on decision at special term, dismissing the complaints.
   The following is the opinion at special term in both cases:

Stover, J.

This is an action brought to set aside a general assignment for the benefit of creditors upon the ground that it was fraudulent. The plaintiffs are judgment creditors of the assignors.

I have examined the testimony and briefs of the parties and think that the only serious question to be considered by the court is that raised by the proofs with respect to the claim described in the assignment as in favor of W. T. Pettengill, one of the assignors. That clause in the assignment is as follows: “ The said several claims existing on the 15th day of April, 1889, except such as are mentioned in schedule A, created since that time and are more particularly set forth in class marked ‘two’ in the schedule to accompany this assignment, and being then in favor of the said firm’s creditors, respectively, as follows: ” Then follows a list of creditors, perhaps fifty or more in number, and in which list the name of W. T. Pettengill appears. The nature or amount of the indebtedness is not set forth. In the schedule filed by the assignors appears a statement of the creditors of said firm with the nature and amount of the indebtedness, and in that list appears, the name of “ W. T. Pettengill,” held by David Cady, amount $1,200, and the character of the indebtedness, “indorsement.” The oral testimony given upon the trial showsthat the defendant Pettengill indorsed a note for $1,200 for the benefit of the firm and that the firm received the proceeds and benefit of the note. ^ At the time of the assignment the note was held by the First National Bank, or by David Cady, who was the cashier of said bank, and that this was the claim referred to in the assignment and schedules. It is claimed on the part of the plaintiffs that this was a fraudulent preference. I do not think that the evidence establishes such fraudulent character. As has been repeatedly held, fraud must be proven, and the fraudulent intent must have existed at the time of the transaction, although it may be evidenced by the acts of the parties in relation thereto. The burden of establishing such fraud is upon the plaintiff, and the evidence should be clear in order to warrant the court to find that it was fraudulent. In this case the defendant Pettengill stood in the position of surety for the firm. The firm had had the benefit, and in making the assignment it had a right to prefer Mr. Cady, or the First National Bank, and it seems to me that this is all that this transaction accomplished. It is true that W. T. Pettengill is named as a debtor, but this, at most, it seems to me, would raise a presumption of fraud, and when the intent was inquired into, and the whole transaction was made to appear, the fact would appear that he was not the creditor in such a sense that he received an illegal preference by the payment of the debt under the assignment, but indirectly, so far as the firm paid the debt, he, as surety for the firm, received the benefit. I do not understand that the law prohibits such a transaction. An insolvent co-partnership may prefer any creditor within the limit as to the amount prescribed by the statute, so long as the debt is a just debt against the partnership, and while it is immaterial what form the transaction takes if it be in fact a fraudulent one and deprives creditors of their just rights in the property, on the other hand, it makes no difference as to the manner in which the preference is exercised if it is free from the intent to defraud creditors, and the conveyance not in a form prohibited by law. In other words, it is the intent with which the act is done that characterizes it as fraudulent or otherwise.

I do not think the proofs in this case would warrant a finding that the firm intended at the time the assignment was made to make a fraudulent preference in favor of W. T. Pettengill. As it would have been free from doubt if the debt had been characterized as due to the first National Bank, or Mr. Cady, I do not think that using the name of W. T. Pettengill in describing the debt made the transaction fraudulent, the actual facts appearing.

It was upon the plaintiff to show the fraud, and I do not think the proofs do this. This case is quite unlike Frazier v. Truax. In that case a person was named as creditor who had no connection whatever with the debt, and it was sought to explain the preference by proving a paroi trust in favor of a third party. The distinction is quite apparent, for in this case there is no question as to the validity or the amount of the indebtedness.

In regard to the claim of H. Inman & Son, it appeared that the firm had had transactions with both firms, and that the actual indebtedness was to the corporation, The Inman Manufacturing Company. This, too, was a valid debt, and the evidence shows that the name of Inman & Son was not inserted with any fraudulent purpose.

I think the plaintiff has failed to sustain the allegations of the complaint.

The decree .will be in favor of the defendants.

Horwitz & Hershfield ( Westbrook & Borst, of counsel), for app’lts; W. L. Van Denbergh, for resp’ts.

Putnam, J.

We think the view taken of these cases at special term was correct. In addition to the opinion there delivered we only deem it necessary to make a few suggestions.

It is sought to void the assignment because of illegal preferences. But it is not claimed that any of the debts in fact preferred are fictitious or fraudulent. The claim for which Pettengill is preferred is shown to be an honest debt owing to the First ^National Bank, of which David Cady was cashier. It is not ^claimed that the notes for which Gardiner and Mrs. Pettengill are indorsers were not honest claims due and owing from the firm. Also the debt for which “ H. Inman & Son ” were preferred was a debt owing'by the firm to the “Inman Manufacturing Company,” the assignors making a mistake in the name of the creditors.

It will be observed that in this regard the case differs from that of Roberts v. Vietor et al., 130 N. Y, 585; 42 St. Rep., 729, and other cases cited by appellants, where the debts sought to be preferred were fictitious or fraudulent.

The plaintiffs failed to show upon the trial any unlawful retention by the assignors of a portion of their property.

Therefore, if the assignment should not be sustained it would be because the assignors, although honestly owing the several notes above referred to, illegally preferred the indorsers instead of the party holding the notes, in one instance such indorser being a member of the firm and one of the assignors.

We think the view taken below as to the last named preference correct. The assignment and inventory are to be read together. Phillips v. Tucker et al., 14 St. Rep., 120. And being so read, we think the assignment should be deemed a preference of the debt of $1,200 owned by the First National Bank, of which David Cady was cashier. And see Smith v. Smith, 39 St. Rep., 46.

It is claimed by appellant that the preference to the several other indorsers named who have not paid the indorsed notes should avoid the assignment. That the preferences should be made to the owner or holder of the debt. I am under the impression, however, that it has long been settled that a failing debtor may prefer an indorser or surety. See Bishop on Insolvent Debtors, 119; Cunningham v. Freeborn, 11 Wend., 250; Griffin Marguardt, 21 N. Y., 123.

In the case last cited the following language is used :

“Nor are the trusts to »pay the indorsers or sureties of the assignor the sums, for which they were severally liable, invalid. It appears from the assignment itself that some of the indorsed notes were not due at the time the assignment was made, and were held and owned by corporations or persons other than those to whom the money was directed to be paid. But these were trusts to pay the- debts or obligations of the assignor, for which the indorsers or sureties were severally liable, and there can be no doubt that the holders and owners of the claims designed to be protected might compel an appropriation of the assigned property to their payment. This being so, the provision has the same effect as if the holders were named the cestuis que trust in the instrument.”

Griffin v. Marquardt, supra, which, we think, has never been questioned, shows that the preference to the several endorsers is, in fact, a preference to the owners or holders of the notes enforcible by the latter.

Under the provisions of §§ 3 and 4 of chapter 414 of the Laws of 1857 the fact that “ Gardiner ” had formerly been a special partner did not render the preference to him illegal.

The judgment should be affirmed, with costs.

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


text:
    Augustus M. Fake, Resp’t, v. Dayton S. Kellogg, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Contract—Breach—Damages.
    In an action for breach of a contract by a vendor on a sale of land for building purposes that he would make, construct and complete a street upon his own land to said premises the measure of damages is the diminution in the value of the premises sold by reason of the failure to construct such street, and not the difference in rental value. There cannot be said to b) a rental value for vacant lots, particularly when situated in a locality just opened up for building purposes.
    Appeal from judgment in favor of plaintiff, entered upon report of referee.
    Action for damages for non-performance of certain covenants made in connection with and contained in a contract for the sale of land.
    April 1, 1885, the parties to this action made and entered into 1 an agreement, and which was evidenced by a writing under seal, for the sale by the defendant to the plaintiff of a parcel of land, consisting of two village lots, situate in the village of Fort Plain, FT. Y. The said agreement contained, besides the contract for sale of the premises, certain covenants by and on the part of each of said parties, to wit: On the part of the plaintiff that he would erect upon said lots, and complete ready for occupancy by or before July 1, 1886, a dwelling house of the value of at least $2,000, and, on the part of the defendant, that he would:

      First. Construct and complete upon and along the course of Kellogg avenue, from the Fort Plain & Cherry Valley road to "Waddell and Clinton avenues, a street which should conform, as regards grade, surface, drive-ways, water-ways, etc., to certain specifications in said agreement particularly set forth and which should be maintained by the defendant until the same was accepted as a public street by the trustees of the village of Fort Plain.

      Second. Grade, construct and well and properly gravel driveways of thirty feet in width, connecting with Kellogg avenue and extending along Clinton avenue to Henry street and along Wad-dell avenue to Gilbert avenue.

      Third. Construct and maintain, along the course of Rural Walk and Kellogg avenue, a walk of width, grade and construction specified in said agreement.

      All of said work was to be completed on or before October 1, 1885.
    Defendant failed to comply with his covenants, and this action was, therefore, brought.
    On the trial the referee admitted evidence, under objection, to show the diminution in value of plaintiff’s lots by reason of such failure to perform on defendant’s part.

      George E. Phillips (A. J. Nellis, of counsel), for app’lt; Wendell & Van Deusen (John D. Wendell, of counsel), for resp’t.
   Herrick, J.

I think the judgment should be affirmed.

The rule of damages contended for by the appellant I do not think -applies to a case like this. There can hardly be said to be a rental value for vacant lots, particularly when situated in a locality just opened up for building purposes.

A large part of the value to purchasers undoubtedly consisted in the promise that streets should be opened and laid out, and the adjoining property thereto made desirable for places of residence and business. I see no occasion for an opinion. See Post v. West Shore R. R. Co., 50 Hun, 301; 20 St. Rep., 180.

Judgment affirmed, with costs.

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


text:
    Isaac G. Hathaway, App’lt, v. The Fitchburg Railroad Co., Resp't

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    Justice’s court—Appeal—Negligence.
    In an action in justice’s court for the killing of a horse alleged to have been caused by defendant’s negligence, it was shown that the horse was found on defendant’s track, and that the fence was out of repair at the place where he apparently got through; but there was no proof that any train of defendant had passed during the night. Held, that while the proof might not sustain a recovery, the plaintiff should not be shut out by a mere reversal.
    Appeal from judgment of the Rensselaer county court, reversing judgment of a justice of the peace.
    Action for the alleged killing of plaintiff’s colt Plaintiff owned a farm near Hoosick Junction and defendant’s east bound track run through the same. The Fitchburg railroad runs from Rotterdam Junction to Boston, and is called the Hoosac Tunnel Route, owning the Hoosac Tunnel, through which it passes. The road is one of the main lines from Boston to the west, and runs a great number of trains both day and night.
    The plaintiff was the owner of a certain colt, on or about the 4th day of October, 1889 ; the colt had been running in the field on the northerly side of the track, and was in the field the night of October 4, 1889, with other colts, and was last seen there alive at about six o’clock, and the next morning at about six o’clock the colt was found lying in the ditch dead, and another colt was driven off the track. Plaintiff, at about nine o’clock A. M., found his colt, side of defendant’s track in the ditch, dead ; one leg was cut off, he was cut in a number of places, and badly mangled. Plaintiff, after finding the colt dead, examined the barbed wire-fence along the field where the colt had been running, and he followed the colt’s tracks down the fence to where the wires were down. The staples were gone from two posts. The posts were fifteen or sixteen feet apart; in one post, the second and third, or third and fourth, staples were missing, and in the next post the staple holding the third wire was missing. At this point where the wire sagged there were tracks of an unshod colt, leading from the field through the fence on to defendant’s right of way. The plaintiff could see where the colt had stepped through the fence and eaten the grass, and there was also hair of the same color as the colt that was killed on the barbs of the wire fence.
    The colt that was killed had never been shod. There is ne evidence that the fence was down or out of repair in that field anywhere else than at the point where the wires sagged, and the colt’s tracks led in on to defendant’s right of way. And there was ne evidence that there was any other place where the colt could get through and on to tracks of defendant. The fence at that place had been out of repair for sometime.
    Ho direct evidence was given to show that a train or locomotive had passed over the road between six at night and six in the morning.

      George K Greene, for app’lt; T. F. Hamilton, for resp’t
   Herrick, J.

I am not entirely satisfied with the disposition made of this case. It is possible that the plaintiff did not go far enough in his proof in the justice’s court to sustain a recovery, although it seems to me he made out a pretty fair case; but I do not think he should be shut out by a mere reversal. I think he should have an opportunity to get out any thing there is in his case, and that, therefore, the judgment of the county court should be so modified as to grant a new trial in the justice’s court, costs to abide the event. Section 1319, Code of Civil Procedure.

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