text:
    The Norfolk & New Brunswick Hosiery Co., App’lt, v. Anna M. Arnold, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Attachment—Warranty—Affidavit.
    An affidavit for an attachment based on a breach of warranty is insufficient which does not contain a statement that a cause of action exists in favor cf plaintiff over and above all counterclaims known to the plaintiff.
    3. Same.
    Allegations upon information and belief, and averments in an affidavit based entirely on inferences as to the making of the warranty relied upon, furnish no legal basis for the granting of a warrant of attachment.
    3. Same—Fraud.
    Defendant and her husband induced plaintiff to purchase and pay for certain sewing machines on the representation that the husband had invented a new stitch which the machines could make satisfactorily for the purposes of plaintiff’s business. The machines failed to work satisfactorily. Held, that these statements were mere expressions of opinion, and were insufficient to justify the granting of an attachment on ihe ground of fraud.
    Appeal from an order vacating an attachment

      Walter D. Edmunds, for app’lt; George E. Blackwell, for resp’t.
   Andrews, J.

The attachment was granted on the summons and complaint and the affidavit of one Carbender. It sufficiently appeared by the papers that the defendant was a resident of the state of New Jersey. The complaint set up two causes of action; •one based upon allegations of fraud, the other on allegations of a breach of warranty. The allegations of the complaint material to the question before the court are as follows :

That prior to October 7, 1881, the defendant represented to plaintiff that her husband, Satterlee Arnold, was the inventor of a new method of stitching together the adjacent abutting cut edges of knit goods, whereby the said edges were stitched together without producing a welt; that said Satterlee Arnold had also invented and constructed a sewing machine called “ Anchor Sewing Machine,” which could produce said stitch and seam under ordinary and usual conditions of manufacture, and with rapidity and perfection, and with commercial economy and success ; that defendant represented that said stitch and seam would prove of very great commercial value and profit to plaintiff if used in its business by means of said machines, and that the said machines constituted suitable devices for making the said “ Anchor ” seam and stitch, and that said machines made the said stitch and seam in a satisfactory manner, and in such a way as to be useful and .necessary to the plaintiff ; that, relying on such representations, the plaintiff ordered one hundred of said machines, and subsequently paid therefor the sum of $16,000; that after the plaintiff had begun to operate said machines it was finally discovered that they were in many respects defective, and particularly, that they were wholly incompetent to operate according to said representations and could not, under the ordinary or usual conditions of manufacture, nor except under exceptional and impractical conditions, produce the said anchor seam or stitch, nor were said machines properly constructed; that said machines proved wholly incompetent and useless, and the plaintiff was obliged to discard all of them, and to wholly abandon the use thereof; that said representations were false and fraudulently made with intent to deceive the plaintiff and with the intent to procure said order for said machines and the payments on account of the price thereof ; that plaintiff did not forthwith repudiate the contract because of further representations made by the defendant that a different style of machines would soon be furnished which would avoid the defects of those originally furnished; that in consequence of such representations the plaintiff extended, for many years, the time of delivery of said machines and refrained, for many years, from bringing this action; that the final delivery of machines under said contract was made in the year 1889, and that the machines last delivered were no better than those first delivered, and were of no use to the plaintiff; that the plaintiff is informed and believes that all of said representations were falsely and fraudulently made, with intent to deceive the plaintiff; that plaintiff has notified the defendant that the machines are worthless, and the plaintiff offers, in his complaint, to allow the defendant to take possession of said machines and remove them from its premises.

For a second cause of action, the complaint alleges'as follows: That the defendant induced the plaintiff to give an order for one hundred of said sewing machines, and warranted that they would be properly constructed, in a workmanlike manner, so as to be durable and able to resist the wear incident to ordinary and usual use of sewing machines, and that they would be such as to enable the plaintiff to use them in the' production of said Anchor seam and stitch; that plaintiff agreed to pay for said machines the sum of $16,000, and that such amount has actually been paid; that the machines were delivered at various times between the years 1882 and 1889, but that each and every of them wholly failed to make good said warranty.

The complaint was accompanied by a Jengthy affidavit of one Carbendér, which sets forth in detail the various transactions had between the plaintiff and the defendant in regard to the purchase and delivery of the machines in question, and the alleged failure of such machines to produce the Anchor stitch, in a manner satisfactory to the plaintiff.

So far as the second cause of action, based upon an alleged breach of warranty, is concerned, the papers upon which the attachment was granted were fatally defective because the affidavit contained no statement that a cause of action existed in favor of the plaintiff over; and above all counterclaims known to it or its-officers. The papers were also defective because no legal proof' was presented that the defendant ever warranted the machines. The allegations of the complaint are made upon information and belief, and Carbender’s affidavit shows that he has no personal knowledge whatever as to the making of such warranty. He says:

“Deponent is not able to swear positively as to any specific statement made to him on behalf of defendant amounting to an express warranty of the machines prior to the 21st day of March, 1889, but it is deponent’s belief that statements were made by said Satterlee Arnold to deponent, to Mr. Johnson Letson and to others, respecting the said machines, prior to their delivery, which were sufficient to constitute a warranty; and it was on this warranty that the price of the machines was paid as aforesaid.” lie then proceeds to state that the agreement for the sale and delivery of the machines was, as he believes, an oral one, made with one Letson personally ; and what was then stated by Mr. Arnold on behalf of the defendant he is unable to state except inferentially.

Letson, who was a former officer of the company, died some time before this action was brought, and it appears that Carbender had no personal knowledge as to the making of the warranty, and that his allegations in respect thereto were based entirely upon his inferences; and it is hardly necessary to say that such inferences furnish no legal basis for the granting of a warrant of attachment.

We are also of the opinion'that there was no such evidence of fraud as authorized the issuing of an attachment. Carbender details at great length alleged difficulties that the plaintiff experienced in using said machines ; conversations had by other officers of the company and by himself with the defendant and her husband; the various promises on the part of the defendant to furnish better machines; the arrangements for the postponement of the final completion of the contract for the delivery of the 100 machines^ the payment of the $16,000 in instalments, and of $90,000 by way of royalties; the final delivery of ten machines in the year 1889, and the failure of such machines to answer the purpose for which the plaintiff had purchased them. His affidavit then contains the following statement: Under the circumstances-deponent reluctantly concludes that Mr. Arnold must have made his said representations respecting these machines knowing them to be false at the time, and relying probably on his belief that experiments in the direction of construction and perfection of the machines would enable him finally to make good the representations. His statements to deponent, however, as well as to other officers of the corporation, was that the machine which he had in mind could make a stitch statisfaetorily and properly for the purposes of the plaintiff’s business; and this now manifestly appears was at the time of the representation an entirely false statement.”

It is too clear for argument that these statements were wholly insufficient to justify the granting of an attachment upon the ground of fraud in making the contract for the sale of the machines; and they are not in any degree strengthened by the allegations in the complaint, made upon information and belief, because the complaint is sworn to by Carbender himself. It clearly appears by the papers that the statements made by and on behalf of the defendant in regard to the machines were expressions of opinion, and all the circumstances indicate that the defendant and her husband believed that such statements were true. It would seem that the defendant and her husband had great confidence that the machines would come up to their representations ; and the plaintiff and its officers evidently shared in that confidence, for it appears that, before making the contract for the 100 machines, they took one. of the machines upon trial; .and it was not until after such trial machine had been in their possession for a considerable period of time that the contract for the 100 machines was made.

Moreover, the plaintiff used the machines during a period of between eight and nine years, and it was not until the expiration •of that long period that Mr. Carbender reluctantly concluded that Arnold must have made his representations respecting the machines knowing them to be false. As plaintiff had faith enough ton make the contract after trying one of the machines, to pay $1(3,000 for the same, in instalments, to pay $90,000 royalties during a long period of years, the defendant and her husband were justified in having a like faith in the success of the machines; and an attachment should not now be granted upon the mere reluctant conclusion of Mr. Carbender that Arnold must have known that his representations were false, and must have made them with intent to deceive the plaintiff.

The order appealed from should be affirmed, with costs.

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


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Mary E. Connor, Adm’rx, Pl’ff, v. The Mayor, etc., of New York, Def’t.

      (Supreme Court, General Term, First Department,

      Filed May 13, 1892.)

    1. Witness—Officer of city—Code Civ. Pro., § 839.
    The chief engineer of a municipal department is not disqualified under § 839 of the Code, by reason of interest, from testifying, in an action to recover salary claimed to be due a deceased employee, to conversations had by him with the deceased.
    3. Municipal corporations—Discharge of employee.
    After receiving a letter from the deputy commissioner of public works stating that he was suspended, plaintiff’s intestate, who was assistant engineer, had a conversation with the chief engineer, who told him that lie had no further work for him to do and that, therefore, his services were dispensed with, and gave him letters of introduction to obtain work elsewhere. Intestate obtained work in other departments, and made no claim for salary as assistant engineer during his lifetime. Held, that there was ample evidence to justify the jury in finding that he was discharged; and that the court was correct, under the circumstances, in charging that the transaction between him and the chief engineer amounted to a discharge.
    Motion for new. trial on exceptions taken at circuit, a verdict having been found in favor of the defendant, and exceptions ordered to be heard in the first instance at the general term.

      L. L. Kellogg, for motion; E. H. Hawke, Jr., opposed.
   Van Brunt, P. J.

The plaintiff, as administratrix of one Addison Oonnor, deceased, sues to recover the sum of $7,950, alleged to be due for salary to said deceased as an assistant engineer of the department of public works, from July 31, 1886, to January 4, 1891. The answer alleges that on or about the 31st of July, 1886, said Connor was duly and regularly discharged, after which time he performed no services for the defendant, and that he acquiesced in said discharge and abandoned the said office for other employment.

It appeared that said Connor, for a considerable time prior to the 31st of July, 1886, was assistant engineer in the department of public works, and that on the 23d of July, 1886, he received a notice of suspension as assistant engineer, to take effect on the 31st of July, 1886, from the deputy commissioner of public works; and that between the 23d of July and the 31st of said month he hada conversation with the chief engineer of the Croton aqueduct, in which the chief engineer stated that he had no further work for him to do, and that therefore his services were dispensed with, upon which occasion Connor talked with the chief engineer about getting work elsewhere, and the chief engineer gave him letters of introduction; and from and after the 31st of July Con-nor never rendered any services to the department, nor did he ever offer to render any such services.

It further appeared that in 1890 he was employed in the dock department and in the meantime he had been out in Illinois and Nebraska on bridge work. Connor having died on about the 4th of January, 1891, intestate, the plaintiff was appointed his administratrix and thereupon this action was brought to recover the-salary of Connor as engineer in the department of public works from the 31st of July, 1886, to the time of his death.

Upon the trial of the action, one George W. Birdsall, the chief engineer of the Croton Aqueduct, was examined as a witness as to communications had between himself and Connor. This was objected to by the plaintiff upon the ground that he was a party in interest, and because he was liable to criminal prosecution, and also because he was liable to be prosecuted in a civil action because of misconduct in office.

Objection was also taken to certain other evidence which will be noticed hereafter; and also to the refusal of the- court to charge-the jury that there was no proof of abandonment in the case; and that the court erred in leaving to the jury any question in relation-to the discharge of Connor, the proof being to the effect that he was suspended and not discharged; and also to the charge of the-court that if they found that the chief engineer told Connor that they had no further work for him to do and therefore his services-were dispensed with, that it was equivalent to a discharge.

It is manifest that the Chief Engineer Birdsall was not prevented from testifying as to conversations had with the deceased. Connor because of § 829 of the Code. The interest there referred to means a vested interest, an interest in the litigation itself, not a, collateral or possible interest, as shown by the opinion of this-court in the case of Bowen v. Sweeney, decided on the 18th of February, 1892, and cases there cited. 44 St. Rep., 182.

The error claimed in admitting testimony as to conversations, with the plaintiff before her appointment as administratrix of the= decedent cannot avail, because such evidence certainly did no harm to the plaintiff, as it was only testimony establishing a fact which had previously been admitted upon the record.

The claim that the court erred in presenting any question to the jury is evidently not well founded. The jury, from all the facts of the case, had the right to find that Connor had been discharged, and not merely suspended from his office as assistant engineer, and that he so understood the action by which his connection with the department was severed, especially in view of the fact that by statute the chief engineer of the Croton Aqueduct department (who at the time of the discharge of Connor was Mr. Birdsall) had the power to appoint, remove at pleasure, and detail the assistant «engineers.

If, therefore, the conversation with Connor occurred in the manner testified to by Mr. Birdsall, there was ample evidence to justify the jury in finding that Connor had been discharged; the letter of the deputy commissioner of public works being merely surplus-age, and in no way affecting the action of the chief engineer.

The charge, of the court that if the chief engineer told Connor that there was no further work for him to do, and that his services were dispensed with, that amounted to a discharge, is clearly correct under the circumstances of this case, because it is apparent that Connor understood it to be a discharge, as he has never made any claim to the contrary, or any offer of services to the department since he left it, and sought and accepted employment elsewhere. It is only after he is dead that courage enough has been acquired to present the claim against the city for his salary during the whole period from the time of his discharge to his death, although no services were rendered and no offer of services made, and not the slightest intimation upon his part that he did not understand that his connection with the department had been severed.

These considerations also show that there was no error in the refusal to charge that there was no evidence of abandonment by Connor of the office. It is entirely immaterial whether there was evidence of abandonment or not. If he was discharged and so understood it, it may not be an abandonment of the office, but it was a severance of his connection with the office more complete and satisfactory than any abandonment could have been.

All that the request to charge meant was that there was no recognition by Connor of his discharge, which was entirely incorrect, and a charge of that kind would have conveyed an erroneous impression to the jury.

There seems to be therefore no error which would call for a setting aside of the verdict, and the exceptions should be overruled and judgment ordered upon the verdict, with costs.

O’Brien and Andrews, JJ., concur.


author: Macomber, J.

text:
    Catherine Mehegan, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Negligence—Contributory.
    Plaintiff's intestate, while attempting to cross defendant’s tracks with a dog and cart, was struck by a backing car and received injuries from which he died. A train was being made up on the switch track and two cars were shunted. On the former appeal it was claimed that the cars were standing still 114 feet away when intes'ate looked, and afterward came upon him suddenly, with such rapidity that he could not escape peril. The court held that if he had given any attention to the train he would have seen that it was not a stationary one and that it would immediately be in motion, and that he was guilty of contributory negligence. On the present trial, there was evidence that just before the car struck intestate the cars came to a standstill for a moment six feet from the crossing, while a coupling pin was withdrawn, and then backed. Reid, that this did not materially change the facts disclosed on the former trial; that deceased must be held to have taken all the hazards of the situation and attempted to make the crossing before the cars should be moved again.
    Appeal by the defendant, the Few York Central & Hudson Eiver Eailroad Co., from a judgment entered upon the verdict of a jury in the superior court of Buffalo, of $4,000, in favor of the plaintiff, and also from an order of the trial term denying a motion made by the defendant for a new trial made upon case and exceptions. The case was removed from the superior court of the city of Buffalo to the supreme court, under § 275 of the Code of Civil Procedure.

      James Frazer Gluck, for app’lt; Seward A. Simons, for resp’t.
   Macomber, J.

The plaintiff’s intestate, Cornelius Mehegan, was killed at a railway crossing on the 20th day of February, 1888, on Michigan street in the city of Buffalo, for which killing this action was brought by the plaintiff in behalf of the next of kin of the deceased. The deceased had in charge a small cart and a dog which assisted in drawing it, and as he was attempting to cross one of the tracks of the defendant’s road he was struck by a car which was backed from the east and received such injuries as that he soon died therefrom. He was eighteen years of age and entirely familiar with this railway crossing.

It is contended by the learned counsel for the appellant that this action has been disposed of by the decision rendered herein by the court of appeals. In the decision of that court in this case, Mehegan v. N. Y. C. & H. R. R. R. Co., 125 N. Y., 768, the opinion of the court is not there printed, but may be found in 36 St. Rep., 188.

It is contended, on the other hand, by the learned counsel for the respondent that new evidence was adduced upon the trial now under review which takes the case out of the operation of the decision of the court of appeals. It is necessary, therefore, to see, in order to arrive at a correct conclusion, what facts were before the court of appeals as contained in the record of the other trial, in order to ascertain whether or not the alleged new evidence now offered, for the first time modifies, in any essential particular, the condemnation which the case there received by the opinion pronounced by Judge Earl.

The case on the other appeal has been furnished to us, and from it the following facts, in addition to those already stated, appear,, and as summarized by the. opinion of the court of appeals above alluded to, are as follows:

A short time before the accident, the engine, drawing seven cars, passed from the west side of the street, on what is called the-house-track, to the round house which was at least six hundred feet east of the street, and then it was backed upon a switch track called the scale track, which was about four hundred and forty-nine feet long, and was, by means of switches, connected at both ends with the house track. Upon the scale track four freight, cars were standing, and the train was backed against them and they were coupled to the rear of the seven cars, and then the two-rear cars of the four were uncoupled, the purpose being to back them and shunt them across the street into the yard on the west side. After the four cars were thus coupled the rear end of the train was about 114 feet from the street. After the deceased came upon the sidewalk, within twenty-nine feet of the northerly rail of the track, he had a plain view, without any obstruction, of the ■whole of the switch track and of the house track east to the round house, and he also had an unobstructed view of the house track for a considerable distance west of the street.

Upon that appeal, the contention of the plaintiff was, that as-the deceased approached the track the train was standing just west of the sidewalk and that it suddenly started back, without, any warning to him, just as he stepped upon the track, and thus ran over and killed him. It was upon that theory alone that the counsel sought to maintain in the court of appeals the recovery-had in the courts below. The court characterized that theory as- “ not very probable, and it can scarcely be conceived that a standing engine could suddenly back eleven cars and give them such momentum that by moving less than the width of the sidewalk, the near car would come upon the deceased with such rapidity and force that he could not, by the exercise of ordinary prudence,, escape peril. If he had given -any attention to the train, he would have seen that it was not, in any proper sense, a stationary train ; that there were men there operating it and that if not actually moving, it would immediately be in motion. The whole-situation must have been apparent to any one who would look. Yet, if there was some substantial evidence to sustain this theory, and the deceased exercised the care proper under the circumstances, the case was properly submitted to the jury. I am unable to find an atom of evidence sustaining it."

It becomes, therefore, necessary to state in what particulars the present case, as is contended by the counsel for the respondent, differs in the testimony from the one contained in the other appeal. This new evidence, if it exists at all, consists of the testimony of Louis Spohr and of Michael Mahoney. The only difference in the testimony of Louis Spohr from that given upon the other trial, is contained in the following quotation from his evidence upon the last trial:

“ Q. As this train backed up. towards Michigan street to the point o£ collision with the boy, what did it do ? A. All I could see, I saw the train stand still; just as I came to the bridge there was a Eed line box car at the end of the crossing on Michigan street, that was the car that struck the boy.
“ Q. You came over there and that car was standing still? A. Yes, sir; just for a moment and then they backed up.
“ Q. Five or six feet from the street ? A. Yes, sir.
“ Q. The box car you saw standing there in that way was the car that struck the boy? A. Yes, sir; a Eed line car.”
After cross-examination he was again asked by the counsel for the plaintiff, as follows:
“ Q. What do you mean by the train backing up ? A. When I struck the bridge I saw the cars stop; when I got to the first track she was backing up.
“ Q. I want you to state what there is with reference to the stop before it backed up and hit the boy ? A. It took me from the bridge to the first track; when I was on the bridge, I saw that the car stopped there.
“ Q. Standing on the east side of Michigan street ? A. Yes, sir; beyond the sidewalk east, four or six or eight feet.”

The witness, Michael Mahoney, when called upon the- last trial, did not give any testimony differing in any particular from that contained in the former record, but after another witness had been called and examined, Mahoney was called back by the plaintiff’s counsel, and at that time testified: “I knew John Cotton at the time of this accident; I saw him before the boy was struck come down between those cars and pull the pin, back out and work his arms giving the signal to the engineer; at-the time he went in to pull that pin the cars came to a standstill.”

This evidence does not change in any material respect the facts disclosed in the case as it existed in the court of appeals upon the hearing already referred to. It is apparent that any observation made by the deceased must have brought home to his intelligence that these cars were -a part of a train which was being switched at this point, and that any pause of the cars at the place named was but a temporary matter, and that they would be immediately moved again. It appears to us, therefore, that the deceased, knowing well the situation, took all of its hazards upon himself, and attempted to make the crossing before the cars should be moved again across the sidewalk. We see in the new evidence nothing to remove the case from the animadversion made upon the facts of the first trial. It follows, therefore, that the judgment and order appealed from should be reversed.

Judgment and order appealed from reversed, with costs, and a new trial granted, with costs to abide the event.

Dwight, P. J., and Lewis, J., concur.


text:
    James Tobin, App’lt, v. William J. Kage, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Conversion—Retention by village treasurer of amount of debt FROM OWNER OF CLAIM.
    Defendant, who was treasurer of a village, in paying a claim in favor of plaintiff against said village, deducted therefrom a debt due to him from plaintiff on open account. Held, a conversion of the amount so retained; that defendant, as treasurer, had no right to pay himself out of the moneys which were thus passing through his hands.
    Appeal by the plaintiff, James Tobin, from a judgment of the county court of Niagara county, entered on the 29 th day of July, 1891, affirming a judgment of the court of a justice of the peace.

      George M. Osgoodby, for app’lt; Herman W. Leary, for resp’t.
   Macomber, J.

The plaintiff had performed labor and furnished certain materials for the village of North Tonawanda, in the county of Niagara, amounting to the sum of $40. This claim was properly allowed by the trustees of the village, and was by them directed to be paid by the treasurer, who was William J. Kage, the defendant in this action. It seems, however, that Mr. Kage, who conducted a grocery business in that village, had a claim for groceries sold and delivered to the plaintiff amounting to the sum of sixteen dollars, and accordingly, when the plaintiff called upon him, as treasurer of the village of North Tonawanda, to pay the $40, the defendant, as a grocer, insisted on the right to take out of such $40 the sum of $16 coming to him individually. The plaintiff objected to this, as was claimed at the trial, and insisted that the defendant should pay him the whole amount of the $40, less perhaps the sum of five dollars, which the plaintiff said he was willing to allow upon his personal bill to the defendant. The plaintiff’s testimony upon this point is unshaken in any respect, and is to the effect that he at no time assented to the deduction of sixteen dollars from the $40. He says, in substance, that when he called for the money the defendant passed out to him a receipt for him to sign, but inasmuch as he could not write the defendant himself signed his name, and he, the plaintiff, made his customary mark, and that then the defendant passed .out to him the sum of $24, and that thereupon, after expressions of surprise by the plaintiff, the defendant told him he had deducted that amount because he owed it to him for groceries. The plaintiff says :■ “ I looked at him and said, ‘ What does this mean?’ He told me ‘You owe me $16 for groceries.’ I said ‘ I remember that, but I am not prepared to pay you all now.’ He said ‘ I know you are not prepared because I paid myself.’ I said ‘ I h’aint going to take this amount.’ Then he said ‘I don’t care if you take it or not.’ The defendant then made a receipt for the $16 which he had kept from me. I told him I wouldn’t take the receipt, said ‘ I won’t take this receipt, but I carry this on further and sue you.’ The defendant told me he didn’t care.”

The testimony of the defendant himself is as follows: “ When I found out that Tobin had a bill from the village, he said he pay me; I ask him again, and he said that he pay me the bill out of the forty dollars; the day when he came in I told him the orders was in and signed; this was in June; plaintiff said he would pay part of the bill and would pay the balance another time_; he promised to pay the whole; I told him that I wanted the whole of it, that I had waited long enough, and he said all right; then I went back to my office and got out my order book and asked him to sign this order; then he told me he couldn’t write, and I wrote his name for him ; I paid him in cash twenty-four dollars, and gave him a receipt of sixteen dollars, as agreed; then Tobin told me it wasn’t right to take out the whole, then I told him I done just as he agreed with me; then he said he would sue me if I didn’t pay the balance; I told him I done just with him as he agreed with me; then he took the money.”

Two witnesses were.called in behalf of the defendant, each of whom, however, said in respect to the conversation at the time stated by the parties thereto themselves, one, Herman 0. Kage, that at the time the plaintiff took the twenty-four dollars, he said he would sue the defendant for the balance. The other, Edward Doolan, stated that Tobin said, immediately on passing out of the store, that the money he received was only part payment and he would sue the defendant for the rest.

Upon this evidence the justice ought to have rendered a judgment in behalf of the plaintiff for the recovery of the unpaid balance. The action was for conversion by the defendant of the unpaid balance of sixteen dollars which was coming to him from the village of Tonawanda.

The defendant, as treasurer of such corporation, had no right to pay himself out of the moneys which were thus passing through his hands as treasurer. It would be against public policy to permit an officer thus to coerce a debtor and to pay himself in the manner described. This might be considered a new way of collecting old debts, except that the same method was attempted, though unsuccessfully, in the case of Clark v. Miller, 37 St. Rep., 345. We but reiterate what we there said, that a public officer cannot be permitted to make his opportunities thus to subserve his private and selfish ends, as was done by the defendant.

A point is made by counsel for the appellant against the judgment m respect to its form. It appears from the record that the justice of the peace, while disallowing the plaintiff’s claim, rendered a judgment in his favor for the costs of the action. It is suggested, however, on the part of the defendant, that this was a mere clerical error in writing in the word “ plantiff ” for the word “ defendant,” and that there really was no intention on the part of the justice of the peace to award costs to the plaintiff. ■ If this was the sole question in the case, we would be of the opinion that the appellant would have no cause to appeal, because" such judgment, if it was actually rendered, was more favorable to him than the decision of the justice would warrant.

But upon the ground above stated, we think the judgment of both the justice of the peace and the county court should be reversed.

Judgment of the county court of Niagara county and of the justice of the peace reversed, with costs of the appeal in this court and in the county court.

Dwight, P. J., and Lewis, J., concur.


text:
    Jane A. McDougall et al., Adm’rs, Pl’ffs, v. The Provident Savings Life Assurance Society of New York, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Insurance (Lire)—Notice.
    The policy in question was for one year, with an agreement to renew and extend the insurance each successive year, upon condition that the insured pay by a certain date each year the mortuary premiums and an expense charge. The only provision as to forfeiture was in case the insured impaired his health by an excessive use of stimulants or narcotics. Held, that the contract was in effect to insure during the life of the insured on the payment of certain premiums, and must be regarded like the usual contracts of the insurance companies doing business in this state, and could not be forfeited for non-payment of premiums without service of the notice required by chap. 321, Laws 1877.
    2. Same.
    A Notice which fails to state that in case of non-payment the policy and all payments thereon will become forfeited and void, is insufficient under the statute.
    Motion by the defendant, the Provident Savings Life Assurance Society of New York, for a new trial upon the exceptions taken at the Steuben circuit in November, 1891, and ordered to be heard at the general term in the first instance.

      Stephen G. Clarke, for def’t; James H. Stevens, Jr., for pl’ffs.
   Macomber, J.

This action was brought upon a policy of life insurance, issued by the defendant to one John McDougall, which was made payable, in case of his death, to his personal representatives or assigns.

At the close of the evidence, the counsel for the defendant asked the court to direct a verdict in favor of his client, which was refused and an exception was taken by him. Thereupon, counsel for the plaintiffs moved that the court direct a verdict for the plaintiffs, which was accordingly done.

The question presented relates to the application of chap. 321 of the Laws of 1877, pertaining to the thirty day notice to the insured to pay accruing premiums.

The contention made by the learned counsel for the defendant is, that the notice required by this law is not applicable to the particular contract made in this instance; and, further, that if it should be held that such notice is required, the one that was actually served was sufficient under such statute. To neither of these propositions are we able to assent.

The policy was issued on the 23d day of July, 1884, and insured the deceased in the sum of $10,000. In view of the attitude taken by the counsel for the defendant, it may perhaps be necessarjr to quote from the policy the material parts of the contract between the parties. These are as follows:

“ The Provident Savings Life Assurance Society of New York, in consideration of the application herefor, and which is made a part of this contract, and in consideration, also, of the payment of $184.80, doth hereby promise to pay to John McDougall, the assured.in this policy, or to the legal representatives or assigns of said assured, at its office in the city of New York, the sum of ten thousand dollars, within ninety days after acceptance of satisfactory proof of the death of John McDougall of Hornellsville, county of Steuben, and state of New York (the insured in this policy), provided such death shall occur before twelve o’clock noon on the 23d day of July, A. D., 1885.
“And the said society promises and agrees to renew and extend this insurance during each successive year from the date hereof; upon condition that the assured shall pay, on or before the 23d day of July, in each successive year during the continuance of this contract, the mortuary premiums as called for by the society, in accordance with the schedule rates for the actual age printed ■on the back of this policy, and also an expense charge of three dollars on each one thousand dollars insured herein, the payment of said mortuary premium and the annual expense charge being the consideration for the continuance of the insurance in each successive year, and provided also that the conditions, stipulations and agreements upon which this policy is issued shall be faithfully observed and fully carried out.
“ Premiums shall be paid, as called for, to the society at its office in the city of New York, on or before the dates herein specified.”

Then follow provisions for a deposit in. bank of seventy-five per cent of the mortuary premium, in trust, for the settlement of death claims, the remaining twenty-five per cent to be invested in securities authorized by law. The policy then provides : “Notice of the amount of the quarterly premium falling" due, and demand for its payment, addressed to the within named assured at his post-office address as it appears on the books of the society, deposited in the post-office, postage prepaid, is accepted by the assured as a sufficient personal notice and demand.”

The only provision in the policy enabling the insurance company to terminate the contract is as follows: “ Should the within named insured impair his health by an excessive use of stimulants or narcotics the society reserves the right to cancel its agreement fo continue and extend this insurance, by notice sent to him in the manner above specified in respect to notices of premiums, and agrees to repay to the assured, in that event, on demand at its office in the city of New York, his full share of the aforesaid guarantee fund.”

An ingenious argument has been constructed by the defendant’s counsel, to the effect that this contract does not fall within the provisions of chap. 321 of the Laws of 1877, because it was a contract, originally, for an insurance for one year only, and that a notice to pay an annual premium was not contemplated by its terms. He fortifies his argument by the assertion that the annual premium, which the assured was required to pay, was less than the amount that would have been required by the ordinary policies issued upon the life of insured persons. But, as it seems to us, the particular form of this policy is unimportant, provided it appears from the whole instrument, as we think it clearly does, that there was an intention on the part of the contracting parties that the insurance should be continued until the death of the assured, providing he fulfilled his part of the agreement in respect to the payment of the premiums. It was not competent, under this contract, for the defendant at any time to terminate the agreement except under the provision in respect to impaired health through the use of stimulants and narcotics, which provision does not concern the case in its present aspect. On the contrary, it was in the power of the insured to continue the contract .by the payment of the annual premium. Under these circumstances, we do-not see but this is, in effect; the ordinary insurance contract-entered into by insurance companies, organized and doing business-in this state, one of which the defendant is shown to be. No scheme, however ingenious, can be devised by any insurance agent-which the courts can permit to be successful in eluding the provisions of this most reasonable statute, which requires a notice to-the assured thirty days before his premium falls due.

The argument of the learned counsel is, as it seems to us, fallacious in this respect, that while it is evident that the contract might not continue for more than one year, it may, nevertheless, at the option of the assured, continue during his natural life. In this respect the agreement is precisely the same as that of all ordinary insurance contemplated by the act in question. It matters not whether the provision of the contract is called a “ condition ” or not, it is the substance of it which the courts should look to ; and we find in this contract a clearly expressed intention on the part of both parties, the one to insure, and the other to pay for the insurance, during the life of the insured, so long as the premiums were paid in pursuance of the terms of the contract.

In respect to the assertion that the annual premium was less because the 'contract was -only one from year to year, it may well be that the company could afford to make it less, by so much, provided it was not required to give a notice of the accruing premiums, as provided- for by this statute. We think, therefore, that this policy must be regarded like the usual contract of the insurance companies organized and doing business in this state; and we accordingly hold that the company is amenable to this-statute, which requires it to send notice in pursuance of the act of 1877.

But it is further contended by counsel for the defendant that the notice which they did, in fact, send, was sufficient under the statute. This policy, which was issued on- the 23d day of July, 1884, was continued from year to year by the payment of the annual premium, the last of which was in July, 1887, and this kept alive the contract until July 23, 1888. The insured died in the month of November, 1888, not having paid the annual premium maturing July 23, 1888.

The notice which the defendant sent to the insured thirty days preceding the 23d of July, 1888, was, so far as this question is concerned, as follows: “ In order to continue and extend the insurance it will be necessary that .the premiums required for that purpose should be paid on or before the date above mentioned, as stipulated in the policy contract. This notice is given to meet the requirements of the New York law.”

This notice was not prepared in conformity with the provisions of the statute. The part of the statute material to this inquiry is as follows: “ Provided, however, that a notice stating when the premium will fall due, and that if not paid the policy and all payments thereon will become forfeited and void, served in the manner heretofore provided, at least thirty days and not more than-sixty days prior to the date when the premium is payable, shall have the same effect as the service of the notice hereinbefore provided for.” ' "

Under this clause of the statute it -is evident that the notice which was actually mailed by the defendant, within the statutory period preceding the 23d day of July, 1888, was insufficient. In the case of Phelan v. The Northwestern Mut. L. I. Co., 113 N.Y., 147; 22 St. Rep., 305, the notice was as follows: “The conditions of your policy are that payment must be made on or before the premium is due, and members neglecting so to pay are carrying their own risk. Agents have no right to waive forfeitures. * * * Prompt payment is necessary to keep your policy in force,” but the court held that such notice did not, in its terms, conform to the statute, and says: “ Many ignorant and unlearned people seek to avail themselves of the advantages proposed by these companies. The statute is designed for the protection of all classes, and the language it prescribes for notice is intelligible to all. To say that in a declared event ‘ a policy will become forfeited and void,’ conveys a meaning easily to be comprehended. To refer to the policy and conditions and say that ‘ members neglecting so to pay are carrying their own risk,’ is quite another thing; and while it may be comprehensible to those versed in the language of insurers and accustomed to their phraseology, it is not the language of the statute and does not embody the notice which the statute requires.” See, also, cases there cited, and Merriman v. Keystone Mut. Benefit Ass., 44 St. Rep., 797.

If these views are correct, it follows that the direction made by the learned justice at the circuit was correct, and, consequently,, that the exception taken by the defendant should be overruled.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.

Dwight, P. J., and Lewis, J., concur.


author: Per Curiam.

text:
    Lewis D. Browning, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Costs—Recovery by both parties—Code Civ. Pro., § 3234.
    This action was brought to recover for the negligent management of defendant’s locomotives, whereby a division fence between plaintiff’s lands was set on fire, by reason whereof certain cattle were destroyed, and also for failure to maintain a proper fence along defendant’s road, by reason of which plaintiff’s cattle escaped on the road and were killed. Both causes of action were controverted by the answer. Plaintiff recovered on the second cause of action, and a verdict was directed for defendant on the first, on the ground that by an ancient deed the owner of the adjacent property was required to maintain fences. Held, that there was a recovery by both parties within the meaning of § 3234 of the Code, and that both were entitled to costs.
    Appeal by the defendant, The New York, Lake Brie & Western BaiJroad Company, from an order made at the Allegany special term, in January, 1892, denying defendant’s motion for costs, under § 3234 of the Code of Civil Procedure.

      James H. Stevens, Jr., for app’lt; V. A. Willard, for resp’t.
   Per Curiam.

This appeal must be governed by the decision of this court, made in the case of Burns v. D., L. & W. R. R. Co., 42 St. Rep., 171, where it was stated in the opinion of Mr. Justice Macoinber that the meaning of the word “ recovers,” used in this section, clearly contemplates a decision upon a question of fact, which, if allowed to remain unreversed, is conclusive upon the parties in respect to the issues there presented.

In the case now before us, three causes of action were stated in the complaint, each one of which was controverted in the answer. The first cause of action consisted of the allegation that the defendant so carelessly and negligently managed its locomotives and cars as to set fire to a division fence, owned by the plaintiff, between two of plaintiff’s lots of land adjacent to the railroad; that by reason thereof seven head of cattle, of the" value of $170, were destroyed, for which a recovery was sought.

The second cause of action was, that at a time stated, two cows ■of the plaintiff, of the value of $25 each, escaped from the plaintiff’s lands, through a defective fence which it was the duty of the defendant to maintain, and entered upon the lands and railroad •of "the defendant, and were run over and killed by the defendant’s locomotive.

The third cause of action is unimportant to the consideration of -any question arising upon this appeal.

The learned justice, at the trial, ruled that he should instruct the jury, which he accordingly did, that upon the first cause of action the jury should render a verdict for the defendant, upon the ground, as appears from the moving affidavits which are not -contradicted, that by an ancient deed of the lands pertaining to the first cause of action, there was a covenant which ran with the lands, which required the owner of the adjacent property to maintain fences, and for that reason no recovery could be had against this defendant.

It will thus be seen that the defendant succeeded upon a question of fact against the plaintiff upon the first cause of action. Upon the second cause of action the j ury rendered a verdict for the value of.the two cows, namely fifty dollars, and interest from the time of the killing.

Under these circumstances, inasmuch as the causes of action were separately stated and issues of fact were taken upon each of them, and a decision in favor of the defendant upon the first cause .of action and in favor of the plaintiff upon the second cause of action was rendered, all the provisions for correlative bills of costs contained in the section above mentioned must be applied; for in regard to each of such causes of action there was a decision by a proper tribunal of a question of fact, which, as long as it remained unreversed, was conclusive upon the parties to this action.

It is clear, therefore, that the plaintiff had a “ recovery ” upon the second cause of action, and it is equally clear that the defendant had a “ recovery ” upon the first cause of action.

This, it seems to us, is the precise case contemplated by this provision of the Code; and it follows that the order appealed from should be reversed and the bill of costs of the defendant, arising upon the first cause of action, should be taxed in defendant’s favor.

Order appealed from reversed, with ten dollars costs and disbursements, and the defendant’s motion granted, with ten dollars •costs.

Dwight, P. J., Macomber and Lewis, JJ., concur.


text:
    Josiah C. Miller, App’lt, v. William H. Cobb et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Fraudulent conveyance—Jury trial—When may be ordered.
    Where the conveyances in question have been the subject of other actions, in one of which they were held void as to existing creditors, and in the other sustained as to subsequent creditors, it is proper to direct a trial of the issue of fraudulent intent by a jury.
    3. Same—Form of issues.
    The form of the issue as settled was as to whether the deed was made with intent “ to hinder, delay and defraud the creditors of” the grantor, “including the plaintiff.” Held, that while this did notnecessarily require plaintiff to prove that the grantor had in mind the fraudulent intent to defraud this particular plaintiff, yet, to obviate all possible objection, the form should be' modified so as to confine the inquiry to the grantor’s intent as to existing and subsequent creditors.
    Appeal by the plaintiff, Josiah 0. Miller, from two orders, one entered in Monroe county on the 23d of May, 1891, but bearing date the last Monday of March, 1891, denying plaintiff’s motion to set aside an order entered in this action on the 29th day of December, 1890; and also from an order entered in the same county on the _ 22d day of May, 1891, bearing date January 29, 1891, settling issues in this action to be tried by a jury at the circuit.

      Q. Van Voorhis, for app’lt; Joseph A. Stull, for resp’ts.
   Macomber, J.

The order bearing date the 23d day of May, 1891, as of the last Monday of March, 1891, simply denies the plaintiff’s motion to set aside the order of the 29th day of December, 1890, and stands solely upon the ground that the questions involved in the application were embraced in a motion then pending before another justice of this court at special term. The other order appealed from settles the issues in this action, which is an action in equity in the nature of a creditor’s bill to reach property claimed to be fraudulently conveyed. The issues settled are six in number, each like all the others except in dates and names. The first one is as follows : “1. Was the deed made by the defendant, William H. Cobb, to Nathaniel Pierce, dated December 27, 1876, and recorded in Monroe county clerk’s office on the 28th day of December, 1876, in liber 299 of deeds, at page 231, conveying certain real estate in Brighton, made with intent to hinder, delay or defraud the creditors of William H. Cobb, including the plaintiff.” This order was made by the court in pursuance of an order previously made by Mr. Justice Angle,, bearing date the 27th day of December, 1888, and entered on the 29th day of December, 1890, immediately preceding his retirement from office. That learned justice had heard the evidence and the arguments in this casé, and after deliberating thereon,, made an order that the issues therein be tried by a jury at the Monroe circuit, and there was accordingly prepared an order which has been followed by the order bearing date the 29th of January, 1891, which settles such issues in the same manner, except that the words “ to hinder, delay and defraud the creditors of William H. Cobb, including the plaintiff,” did not appear, but that the following language was used: “ hinder, delay or defraud the plaintiff herein as a creditor of William H. Cobb.”

Mr. Justice Angle accompanied his order with an opinion, in which, among other things, he states: “ The validity of the above deeds has already been the subject of litigation and decision in creditor’s actions. In one case, that of McGuire, etc., v. Cobb & Cobb, tried at special term before one of the justices of this court, it was decided that the "above deeds, one and two, were made with intent to hinder, delay and defraud the then existing creditors of the said William H. Cobb. In another case between the same parties as last above, tried and decided' before another justice of this court, the same conveyances were sustained as against subsequent creditors. Under these decisions, and after considerable examination of the evidence on which they proceeded, as well as of the evidence upon the trial before me, I am quite satisfied that the issue as to each of the above conveyances mentioned in the complaint, as to whether it was made with intent to hinder, delay and defraud the creditors of William H. Cobb, should be tried by a jury.” In these views we concur with the learned justice. The only question of difference which seems to exist between counsel on this part of the appeal relates to the form of the interrogatories to be sent to the jury. In the order bearing date the 29th day of January, 1891, the expression is, “ made with intent to hinder, delay or defraud the creditors of William H. Cobb, including the plaintiff.” From this, the learned counsel for the plaintiff argues that he may have to maintain before the jury the contention that William' H. Cobb, in making the conveyances aforesaid, had in mind the fraudulent intent to defraud this particular plaintiff. Though we can hardly assent' to such a construction of the language of the order as settled, yet on the whole we are inclined •to modify the statement of the issues so as to obviate all possible objection thereto. ' In each of them, the issue to be tried and decided by the jury should be whether or not such conveyance was, (1) made with intent to hinder, delay or defraud the then existing creditors of William H. Cobb. (2.) Was such deed made with intent to hinder, delay or defraud subsequent creditors of William II. Cobb? With the order thus modified, we cannot see that either party could seriously object to the same in matter of form.

Having already expressed our concurrence with the views contained in the memorandum left by the late Justice Angle, upon the merits of the motion, it follows that the order appealed from should be affirmed, as modified.

Orders appealed from modified, and as modified affirmed, with ten dollars costs and disbursements, to abide the final award of costs.

Dwight, P. J., and Lewis, J., concur.


author: Dwight, P. J.

text:
    The People ex rel. The Delaware, Lackawanna & Western Railroad Co., Resp’t, v. William H. Clapp et al., Ass’rs, et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Taxes—Completion op boll.
    The mere fact that the assessment roll is in several parts on grievance day when presented for review does not constitute an irregularity or substantial departure from the statute. There is no provision of the statute which requires that the roll as originally completed for review shall be in a single volume or upon sheets of paper attached together, or forbids that it should be made out in parts.
    Appeal by the defendants from a final order of Monroe special term in proceedings by certiorari to review an assessment of the relator in the year 1891.

      J. B. Adams, for app’lts; C. J. Bissell, for resp’t.
   Dwight, P. J.

The court at special term adjudged the assessment in question void for irregularities in the proceedings of the assessors,without considering the question of the jurisdiction of the assessors to make any assessment against the relator. The latter, which seems to us the important question, has been considered by us in a case argued at the same term, and decided adversely to the relator’s contention. See The People ex rel. D., L. & W. R. R. Co. v. Reid et al., ante, 408. This leaves to consider, in this case, only the objection which was sustained at the special term and was the basis of the order appealed from, viz.: of irregularity, in the making up of the assessment roll.

Briefly, the facts upon which the objection is based are that the roll was first made in three partsthat it was so on review day, when it was inspected by the relator, which was d uly heard to complain that the valuation of its property was excessive, and a very substantial reduction was made in such valuation; and that afterwards the three parts of the roll were engrossed into a single roll, which was duly verified, as the completed roll, by the assessors and delivered to the supervisor of the town.

With the statute before us we are unable to discover any substantial departure from the letter, even still less from the spirit of the law, in the method of making up this roll. The statute, 1 R. S., 390, § 8, et seq. (Birdseye, 2963, §§ 61, et seq.), provides that between the first days of May and July in each year the assessors shall proceed to ascertain the names of all the taxable inhabitants, and also all the taxable property, real or personal, in their respective towns, § 8 (Birdseye, § 61); that they shall prepare an assessment roll in which the matters thus ascertained shall be set down in four columns, viz., names, quantity of land, full value of land, full value of personal property, § 9 (Birdseye, § 62); that they shall complete the assessment rolls on or before the first day of August in each year and make out one fair copy thereof to be left with one of their number, § 19 (Birdseye, § 70); that they shall give notice, in the manner prescribed, of the fact that the assessment roll is so completed and deposited at a place specified, where it may be seen and examined by any person interested until the 3d Tuesday of August, and that on that day they shall meet at a time and place specified, to review their assessments, § 20 (Birdseye, § 71). The last mentioned section also prescribes the duties of the assessors in respect to hearing, examining and determining all complaints in relation to such assessments that may be brought before them.

A subsequent section of the statute, Birdseye, 2966, § 80, provides that “ when the assessors or a majority of them shall have completed their roll, ” they shall verify it in the form prescribed. By the terms of that verification it appears that the completed roll here mentioned is not, in all respects, the completed roll mentioned in the former section, Birdseye, § 70, for that roll was to be completed on or before the 1st day of August, whereas this roll must embody the corrections made on the review of the first completed roll, and that review is to begin on the third Tuesday of August, and may be continued, by adjournment from time to time, till the 1st day of September, on or before which day the verified roll must be delivered to the supervisor of the town. 1 R. S., 394, § 27; Birdseye’s, § 73.

There is nothing in any of these provisions of the statute which requires that the roll as originally completed for review shall be made out in a single volume, or upon sheets of paper attached together, or which forbids that it should be made out in parts or upon detached sheets, which when brought together constitute the roll completed for purpose of review; least of all is there anything to forbid the re-engrossment of the roll after the corrections of review day. There is* a time, no doubt, when the assessment roll must be in one; a single volume or collection of sheets united together, and that is when the roll is finally completed, after all corrections are made and when the verification is attached thereto.

It is undoubtedly the intention of the statute that the roll first completed, for revision, should be the same in every particular as to its contents as the roll finally completed, for verification, except for the changes made on review ; and this, which is the one essential requirement of the statute in respect to the identity of the roll, was in no particular violated in this case. There is nothing to show that a name or an item of property, real or personal, was added to or subtracted from the roll completed on or before the 1st day of August: nor that the valuation of property, in any instance, was changed except in accordance with the determination,, by the assessors, of conrplaints duly made upon the day advertised for review. Certainly so far as the assessment of the relator is concerned, the roll remained the same from the day of its first completion, until upon the application of the relator on the review day the valuation of its property in the town of York was reduced from the sum of $612,360 to the sum of $437,400 ; and at that sum it remained in the engrossed roll which was-verified by the assessors and delivered .to the supervisor of the town.

The view which we have taken of the intent and purpose of the several provisions of the statute obviates the inquiry whether any one or another of those provisions is directory or mandatory, since we have found them, one and all, to have been substantially complied with in the case of the roll in question. It is apparent,, as we have seen, that the statute contemplates that the roll shall be twice “ completed,” once for revision and once for verification, and the only substantial requirement in respect to the identity of the two rolls is 'that they shall be, in all respects, the same as to their contents, with the exception of changes made on review.

We find no evidence of any irregularity in the assessment roll or in the method by which it was made and completed, which can in any manner invalidate the acts of the assessors or the result of their labors.

The order appealed from should be reversed, and the assessment confirmed.

Order appealed from reversed and the assessment of the relator in the town of York, in the year 1891, confirmed, with costs. ’

Macomber and Lewis, JJ., concur. ’


text:
    Robert J. Waterman, Resp’t, v. Addis E. Bowler, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Factors—Unauthorized expenditures.
    A contract under which defendant was to sell a team of horses for plaintiff provided that plaintiff should pay for their keep after two weeks and allow defendant one-half of the selling price over a certain sum; that defendant should doctor them free of charge; that plaintiff would pay half the shoeing and defendant “handle the team as he shall see fit.” Held, that the last provision did not authorize defendant to make-a gratuity to the purchaser’s coachman at plaintiff’s expense; that the provisions of the contract as to expenses necessarily excluded all others not therein mentioned.
    Appeal by defendant from a judgment entered in Chautauqua. county on the report of a referee.

      Stearns & Warner, for app’lt; J. G. Record, for resp’t.
   Dwight, P. J.

The action was for money had and received. The plaintiff was the owner of a pair of horses which he sent to the defendant, at Boston, Mass., to sell for him. The defendant sold the horses, and the charge is that he kept back part of the price. And so, it seems, he did, but he seeks to justify his conduct in that respect on the plea that he was compelled to pay a fee ” to the coachman of the purchaser of the team in order to effect the sale. He contends that this expense was authorized in two ways : First, by the true construction of his written contract with the plaintiff, and second, by a special authorization given orally after the execution of' the contract. The latter contention was disposed of by the referee when he found upon conflicting evidence that no such specific authority was given. The «other contention is disposed of by a reading of the contract in writing, which was in the following terms:

“ Boston, May 12, 1888.
“ I this day put my team, known as “ Maggie B.” and “ Happy Jack,” into the hands of A. E. Bowler to be sold. I agree to risk their life and health and A. E. Bowler ■ agrees to doctor them in ■case of sickness free of charge to me. A. E. Bowler agrees to keep them two weeks from this date free of charge to me, but after two weeks I promise to pay eighty-five cents per day for the keeping of the two. In consideration of his, A. E. Bowler’s services, I agree to divide equally all the money received for the team after I receive ($1,300) thirteen hundred dollars. He, A. E. Bowler, will provide a doctor for the horses in case of sickness, he to pay for the same and no expense to me. I agree to pay one-half the shoeing .and A. E. Bowler to handle the team as he shall see fit.
“R. J Waterman,
“A. E. Bowler.”

It is under the provision contained in the last line of this agreement: “A. E. Bowler to handle the team as he shall see fit,” that authority to make a present to the coachman at the expense of the plaintiff is claimed by the defendant. The proposition admits of no discussion. Every such expense, and every possible expense to the plaintiff, for whatever should be done in and about the making of the sale of the horses, except those expressly mentioned in the contract are completely excluded thereby. It is a ease for strict application of the maxim, Expressio unius exclusio alterius.

There seem to be no exceptions in the case of greater merit than those already considered.

The judgment should be affirmed.

Macomber and Lewis, JJ, concur.


text:
    Phineas Y. Hawley, Ex’r, Resp’t, v. Bridget Whalen, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

      1. Foreclosure—Deficiency.
    Where the judgment in an action of foreclosure adjudges that a defendont shall pay any deficiency which may arise on the sale, and it appears by the referee’s report that a deficiency has arisen and the amount thereof, the plaintiff is entitled to issue execution therefor without further application to the court or notice to the defendant, and it is not an objection to his proceeding that he has had judgment for such deficiency entered and. docketed.
    &. Same—Statute of limitations.
    The statute of limitations has no application to proceedings in an action which has once been duly commenced.
    3. Same—Jurisdiction of county court.
    The jurisdiction of the county court of actions of foreclosure is unlimited as to the value of the property or the amount of the mortgage, and where it has acquired jurisdiction of the action it may render judgment for any deficiency which may arise therein.
    Appeal from an order of the comity court of Monroe county, denying defendant’s motion to vacate a judgment for a deficiency, entered in an action for the foreclosure of a mortgage.

      D. C. Feely, for app’lt; G. E. Warner, for resp’t.
   Dwight, P. J.

The case of Moore v. Shaw, 15 Hun, 428, appeal dismissed, 77 N. Y., 512, the authority of which seems to be unquestioned, is apparently an answer to most of the allegations of irregularity contained in the defendant’s notice of motion.

Under the doctrine of that case the final judgment of foreclosure and sale having adjudged that the defendant, Bridget Whalen, pay any deficiency which might arise on the sale, and it appearing by the referee's report of sale that a deficiency had arisen, and the amount of it, the plaintiff was entitled to issue execution for such deficiency, against the defendant named, without any further application to the court or notice to the defendant. The fact, however, that judgment for the deficiency was entered and docketed can be no objection to the plaintiff’s.proceedings; it was in accordance with the usual and approved practice, and was no doubt necessary to effect a lien upon real estate of the defendant.

The omission to serve a copy or give notice of the filing of the report of sale was not specified among the irregularities complained of in the defendant’s notice of motion.

The statute of limitations affords no ground of relief to the defendant; that statute has no application to proceedings in an action which has been once duly commenced.

The objection that the amount of the deficiency for which judgment was entered exceeds the jurisdiction of the county court, is based upon the provision contained in §15 of article 6 of the ■constitution of this state, which reads as follows:

“ The county courts shall have the powers and jurisdiction they now possess until altered by the legislature. They shall also have original jurisdiction in all cases where the defendant resides in the county and in which the damages claimed shall not exceed .$1,000. * * * They shall also have such other original jurisdiction as shall from time to time be conferred upon them by the legislature.”

Here it is apparent from the language employed that the limitation to $1,000 relates solely to the class of common law actions, whether on contract or sounding in tort, for the recovery of money only; and that, subject to that limitation, the legislature may confer upon the county courts jurisdiction in any and every class of actions without regard to the extent or value of the property or rights to be affected thereby. Buckhout v. Rall, 28 Hun, 484. The legislature has accordingly conferred upon those courts jurisdiction of the action to foreclose a mortgage without limitation in respect to the value of the property mortgaged or the amount of the obligation to be enforced, Code Civ. Pro., § 340, subd. 1; and it has, moreover, provided 'that “where a county court has jurisdiction of an action, * * *- it possesses the same jurisdiction, power and authority in and over the same, and in the course of the proceedings therein, which the supreme court possesses in a like case; and it may render any judgment or grant either party any relief which the supreme court might render or grant in a like case.” Id., § 348. Under this provision of the statute there can be no question, of the authority of the county court to render a judgment for any deficiency which may arise in any action of foreclosure of which it has obtained jurisdiction. The judgment for a deficiency is necessarily an incident to the action of foreclosure, because the very existence of the deficiency and the amount of it is dependent upon the proceedings in the action!

The judgment in this case seems not to be obnoxious tg any well founded objection to the jurisdiction of the court or the practice in the action. The order appealed from should be affirmed.

Order of c.ounty court of Monroe county affirmed, with costs.

Macomber and Lewis, JJ., concur.


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    Hannah Slaven, Resp’t, v. Edward B. Germain, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Stipulations—Adjournment.
    A stipulation, voluntarily given to obtain a postponement of trial, that the issues except damages abide the result of another action, when made without fraud, deceit or mistake, will be enforced.

      2. CIVIL DAMAGE ACT—EVIDENCE.
    In an action under the civil damage act to recover for the death of plaintiffs husband, evidence is competent, even under the restrictions of such a stipulation, to show an accident, and the resulting injuries to said husband, a short time prior to his death, as bearing on his capacity, to labor and the then probable duration of his life.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury at the Monroe circuit, June, 1891, and from an order denying the defendant’s motion for a new trial on the minutes.
    Also appeal from an order of the Monroe special term, denying'the defendant’s motion to set aside a stipulation entered as made at a former circuit, as a condition of putting the cause over the term.

      J. A. Stull, for appl’t; G. P. Decker, for resp’t.
   Dwight, P. J.

The action was to recover, under the civil damage act, for the loss sustained by the plaintiff in the death of her husband. The cause was pending, at issue, and on the calendar of the Monroe circuit held in March,’ 1890. Mr. J. A. Stull, the attorney of record for the defendant, being necessarily absent from the circuit, the defendant was represented by Mr. H. J. Thomas as counsel. The cause being reached and moved for trial by counsel for the plaintiff, Mr. Thomas moved to put it over the term, on the ground of Mr. Stull’s absence and his (Thomas’) ill health and want of preparation to conduct the trial, and the application was granted upon the tender by Mr. Thomas of a stipulation which was then made in open court. The fact of the stipulation and of the postponement of the trial was entered in the minutes of the clerk, as follows:

(Title of the cause.)
“ This cause having been moved by the plaintiff’s attorney was ordered to trial. On stipulation it was ordered over the term to abide the event of the case of Anna B. Hall vs. the same defendants, now pending in the general term. ”
Mr. Justice Adams, who held the circuit, made the following entry in his minutes: “ Cause moved to trial and stipulated by counsel in open court that the issues in this case, except the question of damages, abide the result of the action of Anna B. Hall vs. same defendants, now pending in the general term.”

And Mr. Osgoodby, the official stenographer of the court, entered the stipulation, at large, in his minutes, as follows :

(Tiffe of cause.)
“ It was stipulated in open court that the issues in this case, except the question of damages, abide the result of the action of Anna B. Hall against the same defendants, now pending in the general term, and that in case that action should result in favor of the plaintiff, all the questions of fact and law in this ease are thereby decided in favor of the plaintiff in this action, except the question of damages; and that in case the general term should reverse the judgment in that case, and send the case back for a new trial, this stipulation should be. of no effect.”

There is no real discrepancy in these several entries. That of the clerk merely notes that the stipulation was made; that of the judge states its substance; and that of the stenographer records it in full in the terms in which it was framed by consent of counsel on both sides. The special term was entirely justified by the proofs in deciding that the stipulation was in f .ct made as recorded in the minutes of the stenographer and verified by him. Such being the stipulation, no ground of fraud, surprise or mistake is shown or suggested why the defendant should be relieved from its operation and effect. He was represented by counsel of his own choice; he asked for the favor of a postponement of the trial, and volunteered the etripnlation as a condition of its being granted. The consideration for the stipulation had been fully rendered, and, in one respect at least, the plaintiff could not be restored to the same position as when the stipulation was accepted; her chosen counsel, earnest, zealous, full of resources, and fully prepared to try her eause, had died since the postponement of the trial. But, on general principles, such stipulations, which should not be lightly made, when they are made without fraud, deceit or mistake, must be enforced. The order refusing to set aside the stipulation in this case must be affirmed.

In April, 1891, the decision of the general term was rendered in the case of Hull v. Germain, 37 St. Rep., 320, affirming the judgment in favor of the plaintiff therein, and at the next circuit thereafter, in June, 1891, this cause was brought to trial and was tried under the stipulation above mentioned. The trial was thus necessarily in the nature of an assessment of damages. All the questions of fact and law bearing upon the liability of the defendant were held to-be determined in favor of the plaintiff, and the only question open to be litigated was the extent of the pecuniary loss sustained by her in the death of her husband. Of this question one important element was the earning capacity of the deceased at a time immediately preceding the intoxication from which his death resulted,, and another was the then probable duration of his life; and both were, in large measure, dependent upon his then existing condition-of physical health or disease. It was, therefore, plainly competent for the defendant, even under the restrictions of the stipulation, to give evidence tending to show, not any immediate cause of death other than the intoxication complained of, but any other cause either of probable incapacity for labor or of probable shortness of life. This rule, we think, was clearly violated by one or more of the rulings of the court. Thus, counsel for the defendant offered to show, by two witnesses who were on the stand, that four or five weeks before his death the plaintiff’s husband fell off from a canal bridge, a distance of some twelve feet, striking on the back of his head and shoulders, and that he was taken up-unconscious with blood running from his nose and ears, and that after that time he was unable to do any work or much df any work; and, in connection with that, evidence to show what was the extent of the injuries received by that fall. This evidence was excluded on the objection of the plaintiff, and the defendant excepted.-"

We think this exception was well taken. The evidence certainly tended to show a reduced capacity for labor, and a probable abbreviation of life; and was thus in two respects competent on the question of the damages sustained by the plaintiff.

For this reason the judgment and order denying the motion for • a new trial should be reversed, and a new trial granted.

Order denying the defendant’s motion to set aside the stipulation affirmed.

Judgment and order denying motion for a new trial reversed and a new trial granted, with costs to abide the event.

Magomber and Lewis, JJ., concur.


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    Isaac Altman et al., Adm’rs, Resp’ts, v. Gabriel Wile et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Executors and administrators—Liability of sureties for property CONVERTED, WITH CONSENT OP ADMINISTRATRIX, BY PERSON AFTERWARDS APPOINTED GUARDIAN.
    It is only for such of the funds and assets of the estate as are paid over by an administratrix as such to the guardian as such that the former can he held discharged of liability as administratrix. For funds paid by her to or which she allows her husband to collect and convert to his own use before his appointment as guardian, or which she permits to come in his hands after such appointment as her agent and not as guardian and be disposed of by him, she and her sureties remain liable, although the husband is also liable therefor as guardian.
    Appeal by the defendants from a judgment entered in Erie county on the report of a referee.

      W. F. Cogswell, for app’lt, Eli Hofeller; Sol. Wile, for app’lt, Gabriel Wile; DeL. Crittenden, for app’lt, Schanette Wile; N. Morey, for resp’ts.
   Dwight, P. J.

The principal question of law arising upon the voluminous and complicated findings of fact in this case is, after all, a very simple one. It is the question of the extent to which the sureties on an administrator’s bond are discharged from liability to the infant next of kin for funds and effects of the estate which are shown to have come into the hands of a person who, for a time previous to the accounting, had been the general guardian of such infant, and to have been converted or withheld by him. The effect of the holding of the referee was to discharge the sureties in respect to all the share of the estate belonging to the infant for which the guardian had become, in any manner, liable; and for no other reason than because the guardian had-become liable therefor. This is the fundamental error of the report which must vitiate the judgment in respect to the appellant Eli Hofeller, lately an infant, sole next of kin of Sigmund Hofeller, deceased, the administration of whose estate is here in question.

Sigmund Hofeller died in January, 1875, leaving a widow and two infant children, Eli and Lily Hofeller, his only next of kin. Lily died in 1877, intestate, and her mother and brother thereby became vested with the estate of Sigmund in equal shares. Sigmund’s administrators were his brother Lehman and his widow Schanette, now the defendant Schanette Wile, wife of the defendant Gabriel Wile, and their sureties were Abram Altman and Jacob Altman, the latter of whom died in November, 1881, and is represented in this action by the plaintiffs as administrators of his estate. Lehman Hofeller, one of the administrators of Sigmund, became insolvent in 1881, and remained so until his death, which occurred in 1886. Before his insolvency the estate of Sigmund had suffered a devastavit, for which both of the administrators were responsible, to the extent of about one-half its value, by unsecured loans to the amount of more than $15,000 to Abram Altman, one of the sureties on their bond as administrators, and who also became insolvent in 1881.

In January, 1880, Gabriel Wile and Schanette Hofeller intermarried, and from time to time thereafter Schanette suffered all, or nearly all, of the funds and assets which remained of the estate of her former husband to pass into the hands of Gabriel, where they remained, unaccounted for to Eli, until the accounting which was taken in this action.

In September, 1881, Gabriel procured himself to be appointed by the surrogate of Erie county general guardian of Eli and administrator of the estate of Lily, deceased, and within a few days thereafter he filed a petition as such guardian and administrator for a judicial settlement of the account of Lehman Hofeller and Schanette Wile, as administrators of the estate of Sigmund Hofeller; thereupon the two administrators voluntarily appeared in the surrogate’s court and consented that such settlement should be made pursuant to such petition, and filed separate accounts as such administrators, and on the same day a decree was made judicially settling the account of Lehman, as presented.

By this decree Lehman was charged with a balance due from him to the estate of about $5,000, which was decreed to be paid to Gabriel Wile, one-half as guardian of Eli, and one-half as administrator of Lily. For the collection of these sums executions were severally issued in .behalf of Gabriel, as such guardian and administrator, respectively, against Lehman, which were returned unsatisfied, and thereupon, by order of the surrogate’s court the bond was assigned to Gabriel; and in February, 1882, two actions were brought by Gabriel as such guardian and administrator, respectively, against the plaintiffs as administrators of Jacob Altman, to recover the amounts above mentioned on the bond so assigned.

In May, 1882, this action was brought by the plaintiffs as such administrators against Gabriel Wile, as administrator of Lily Ilofell'er and as guardian of Eli, and against Lehman Hofeller and Schanette Wile, to vacate and set aside the settlement, above described, of the account of Lehman as administrator of Sigmund Hofeller, and for an accounting in this court by both Lehman and Schanette as such administrators, and to restrain the prosecution of the two actions commenced by Gabriel against the plaintiffs on the bond executed by their intestate as surety.

In the action so originally commenced, an interlocutory judgment was entered providing that the accounts of Lehman and Schanette, as administrators of Sigmund Hofeller, should be judicially settled in the supreme court, and a referee was thereby appointed to take and state such accounts. He made and filed his report in Hovember, 1886, stating the accounts of both administrators, and charging each with all the moneys of the estate of Sigmund Hofeller, including all the moneys loaned to Abram Altman, and crediting each with the payments made by them respectively.

Ho judgment was ever entered on this report, nor, as it seems, were other proceedings had in the action until the plaintiff’s motion, hereafter mentioned, in May, 1888, to bring in new parties defendant, and for leave to serve a supplemental complaint. In the meantime Lehman Hofeller died (in December, 1886) and Eli Hofeller became of age in February, 1888. In March, 1888, a petition was filed in behalf of Eli, in the surrogate’s court, alleging the fact and date of his majority; that a judicial settlement had been had of the account of Lehman Hofeller as one of the administrators of his father's estate, but that no settlement had been had of the account of his mother, Schanette Wile, the other of such administrators, and praying that she be cited to render such account, and that the same be thereupon judicially settled and she be decreed to pay to him his share of the estate of his father. Schanette appeared in that proceeding and filed an account in which she charged herself with a balance due from her to the estate of some $26,000, as of April 2,1888, the date of the account; and on that day Eli filed his consent that the account be settled as filed. In that account Schanette claimed no credit for any moneys paid by her to Gabriel Wile as guardian of Eli, nor for any moneys collected or received by him.

The plaintiffs in this action were not made parties to the last mentioned proceeding, but having learned of its pendency, they made a motion in this action for an order bringing in Eli Hofeller and Levi Adler, the executor of Lehman Lofeller, as defendants, and for leave to serve a supplemental complaint in the action. That order was made in May, 1888; a supplemental complaint was served and issue was joined thereon by the answers of Eli Hofeller and Gabriel Wile, and a reply of the plaintiffs to the answer of Eli, and all the issues in the action were referred to the learned referee whose report is here under consideration.

The foregoing statement of facts serves to show how the question propounded at the outset of this opinion came to arise in this action and between these parties; and but little more seems to be necessary, by way of argument, to demonstrate the incorrectness of the answer given to that question by the report and judgment herein. The theory of the plaintiffs’ case, in this respect, which was substantially adopted by the learned referee, is well exhibited by the prayer for relief attached to their supplemental complaint. It prays for a judicial settlement in this court of the accounts of Gabriel Wile, as general guardian, etc., and of the accounts of Schanette Wile and Lehman Hofeller, as administrators, etc., and it proceeds, “ and that the settlement of such accounts shall be so had and taken as to protect the rights and equities of the plaintiffs as the administrators of the estate of the surety Jacob Altman, and that on such accounting and 'by the final judgment herein, the plaintiffs, as such administrators, shall not be required to pay to Eli Hofeller any part of the assets or securities, legal or equitable, belonging to the estate of Sigmund Hofeller, deceased, which have been turned over to or applied for the benefit of Gabriel Wile, or for any part of said assets or securities which have been disposed of or wasted or lost by the procurement or for the benefit, or with the knowledge or consent, or by the neglect of duty of said Gabriel Wile, but that all such sums shall be charged to said Gabriel Wile in his accounting and as such guardian,” etc.

The theory of the case here disclosed, is, plainly, that to the full extent to which Gabriel W ile as guardian of Eli, had become in any manner charged with liability for the funds and assets of the estate of Sigmund Hofeller, to the same extent Schanette Wile as the administratrix of that estate was, and consequently her sureties were, discharged of such liability. It seems only necessary to state the proposition in this form to demonstrate its fallacy. It is very apparent that the property may have come into the hands of the guardian under such circumstances as to render both the guardian and the administratrix liable therefor to the infant beneficiary of the estate ; and those circumstances may well have been such as are mentioned in the prayer for relief above quoted, viz.: where the funds of the estate “ have been turned over to or applied for the benefit of,” or “have been disposed of or wasted or lost by the procurement or for .the benefit or with the knowledge or consent of ” the guardian. It is very true that for all funds and assets of the estate thus disposed of, wasted or lost, the guardian would be charged, and equally so, whether they were received by him before or after his appointment as guardian ; but it is equally clear that every such disposition of funds and assets of the estate would constitute a conversion thereof which, so far from discharging the administratrix, would of itself render her liable therefor. It is very clear that there is nothing in the fact that the guardian has become charged, which, of itself, discharges the administratrix ; and the assumption to the contrary is, as we have already said, the fundamental error of the conclusions of law of the referee in this respect. He finds as a fact, “ that from the date of the marriage of Gabriel to Schanette, in January, 1880, Gabriel took possession of the property of Eli Hofeller, the son of his wife Schanette, and who from that time was a member of his family, and acted and assumed to act as the guardian of Eli’s property; and that between January, 1880, and September 14, 1881, the following sums of money from the estate of Sigmund Hofeller, deceased, were paid to him by Schanette Wile, or collected and received by him with her knowledge and consent, as follows, to wit: ” and here follows a statement of moneys of the estate received by Gabriel before his appointment either as guardian of Eli, or as administrator of Lily, aggregating the sum of nearly $12,000. It is very clear that for no part of this money was Schanette discharged from liability as administratrix, albeit Gabriel did become charged with liability therefor as guardian, upon his subsequent appointment as such. And the same is equally true of other funds and equitable assets of the estate which came into his hands after his appointment as guardian, if, and so far as they came into his hands as the husband or agent of his wife and not as guardian of his ward, or were either collusively or negligently permitted by the administratrix to- be received and disposed. of by him for his own benefit. It is only for such of the funds and assets of the estate as were paid or turned over by the administratrix, as such, to the guardian, as such, that the former can be held discharged of liability as administratrix. These propositions rest upon elementary principles, and have rarely, if ever, been questioned in adjudicated cases; certainly not in any of the cases to which attention has been called in the elaborate brief of counsel for the respondents. Both the administratrix and the guardian have severally undertaken and given bonds in effect to account to Eli for all his share of his father’s estate which should come to their hands respectively. His full share of that estate has been in their hands successively, and for such part of it as he has not received he has his remedy to enforce the liability of either. The liability of the guardian is, no doubt, absolute for all the share of his ward which has come into his hands, whether honestly or dishonestly, before or after his appointment as guardian; but none the less does the liability of the administratrix continue for all the share of the next of kin which has not been turned over to his duly appointed-guardian in the due administration of the estate.

Effect was given to the erroneous principle adopted by the referee by crediting to the administratrix in ner account all the funds and assets, legal or equitable, of the estate with which the guardian had become by any means chargeable; and judgment was directed against Eli in accordance with the prayer of the supplemental complaint. That judgment must be reversed.

We find nothing in the case to impugn the correctness of the findings and decision of the referee as to the other appellants, and as to them the judgment will be affirmed.

Judgment appealed from reversed as to the appellant Eli Hofeller, and a new trial granted, with costs to that appellant to abide the final award of costs. As to the other appellants judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.